Opinion
No. A-11-147
08-16-2011
STATE OF NEBRASKA, APPELLEE, v. HECTOR MEDINA-LIBORIO, APPELLANT.
Kathleen Koenig Rockey, of Copple, Rockey, McKeever & Schlecht, P.C., L.L.O., for appellant. Jon Bruning, Attorney General, and James D. Smith for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Douglas County: J. Michael Coffey, Judge. Affirmed.
Kathleen Koenig Rockey, of Copple, Rockey, McKeever & Schlecht, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and James D. Smith for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
SIEVERS, Judge.
Hector Medina-Liborio (Medina) appeals his plea-based convictions for attempted first degree sexual assault of a child and kidnapping. He alleges, consolidated and restated, that the district court for Douglas County abused its discretion by (1) accepting his nolo contendere pleas without first advising him of the potential deportation and naturalization effects of the pleas pursuant to Neb. Rev. Stat. § 29-1819.02 (Reissue 2008) and (2) imposing excessive sentences without considering all relevant factors. Medina also alleges that he did not freely, voluntarily, knowingly, and intelligently waive his right to a jury trial due to the district court's failure to advise him in accordance with § 29-1819.02. Because we find that there was no abuse of discretion by the district court and that Medina waived his right to a jury trial after a complete and proper advisement by the district court, we affirm. Pursuant to Neb. Ct. R. App. P. § 2-111(E)(5)(a) (rev. 2008), this case was submitted without oral argument.
BACKGROUND
Because the only factual background provided in the appellate record is in the form of the "factual basis" offered by the State at Medina's plea hearing, we have interwoven the factual and procedural history in this general background section. At the plea hearing held on November 11, 2010, Medina appeared personally along with his counsel, and counsel for the State was also present. The district judge began the proceeding by asking Medina whether he wished to withdraw his earlier pleas of not guilty so that he could enter pleas to an amended information, and Medina answered in the affirmative. The State then asked for leave to amend the original information. We note that the original information does not appear in the record.
The amended information, filed on November 11, 2010, charges Medina with count I, attempted first degree sexual assault of a child, a Class II felony, in violation of Neb. Rev. Stat. §§ 28-201 and 28-319.01 (Cum. Supp. 2010), and count II, kidnapping, a Class II felony, in violation of Neb. Rev. Stat. § 28-313(3) (Reissue 2008). According to an exchange at the plea hearing between counsel for the State and the district judge, count I from the original information was first degree sexual assault of a child, not the attempted version of the crime, and count II was unchanged from the original information. The judge asked Medina's counsel if there was any objection to the State's amended information, and he said there was not. The judge then granted the State's motion to amend.
The district judge informed Medina of his right to plead not guilty, not responsible by reason of insanity, nolo contendere or no contest, not guilty by standing mute, or guilty. Medina expressed that he understood his options in connection with the charges and informed the court that he wished to plead "no contest." The district judge stated, "Before I can accept your pleas of no contest, I must advise you that by entering those pleas you are giving up many Constitutional rights." The judge then engaged in a lengthy advisement of the various constitutional rights Medina would be waiving by proceeding on the pleas, including his right to a public and speedy trial, to confront the witnesses against him, to require witnesses to appear and testify on his behalf, to remain silent, and to be represented by an attorney at trial and on appeal. The judge explained the State's burden of proof at trial and that the effect of a no contest plea would be the equivalent of a conviction for purposes of sentencing. He informed Medina of the mandatory minimum and maximum sentences for the charged crimes and explained that his sentences could be imposed concurrently or consecutively. Medina indicated that he understood each of the court's advisements. He expressed that he was satisfied with his attorney's representation of him and that his pleas were his own free and voluntary acts.
Before accepting Medina's pleas, the court asked for a "factual basis" from the State, which was as follows: On March 8, 2010, in Omaha, Nebraska, between the hours of 3 and 4 a.m., the victim, A.P., born in July 2005, was in her mother's bed along with her two younger siblings. A.P.'s mother had left the residence, and A.P.'s aunt was left to care for A.P. and the other children. The aunt had invited three guests to the residence, and they were "partying and drinking" in the basement. At some point, the aunt went into a bedroom with one of the guests. Medina then went into the bedroom where A.P. was sleeping and took her to the basement and then outside, at which time he took off her "pink pants." The State indicated that the pink pants were later found by police in an alley near the residence with blood on them.
Counsel for the State said that A.P. would likely testify that Medina not only took off her pants, but he also "hurt her with his hands and fingers." And, that the evidence would show that a doctor from Project Harmony later examined A.P. and such examination indicated that there was "tearing [in the vaginal area] consistent with penetration."
When A.P.'s mother arrived home between 3 and 4 a.m., she noticed that A.P. was missing and immediately began searching for her. She called Medina's cellular telephone—the aunt's guests still at her residence having given her the number—and Medina indicated that he was in the area of 52d and Maple Streets. However, that seemed unlikely to A.P.'s mother because Medina was on foot and the residence is located a significant distance from the location he provided. In any event, police were called and began searching for Medina and A.P.
Simultaneously, near the area of 38th and Parker Streets, an individual observed a man, later determined to be Medina, carrying a little girl with no pants on in cold weather. The individual made contact with them and called the police. The police arrived shortly thereafter and found Medina carrying A.P., who was not wearing any pants. The police escorted A.P. back home, which was approximately 1 mile from where she was found, and located her "pink pants" in an alley near her home. Medina was taken into custody.
After counsel for the State finished the above recitation, the court asked Medina's counsel, "Anything you wish to add," to which Medina's counsel replied:
There's only one correction I would make on the pink pants that was found of the little girl [sic]. DNA samples were taken. To my knowledge I don't believe there was blood found on those pants. Other than that, I have no objection to the factual basis.
After some additional questioning of Medina's attorney, the district judge found beyond a reasonable doubt that Medina understood the nature of the charges against him; that he understood the possible sentences thereunder; that his pleas were made freely, knowingly, intelligently, and voluntarily; and that there is a factual basis for each of the pleas and the pleas are accurate. The court accepted Medina's pleas and adjudged him guilty of the charges. The judge informed Medina that, due to his convictions, he would have to register as a sex offender, and Medina said he understood.
Sentencing was held on January 21, 2011. At the sentencing hearing, Medina's counsel argued that a person such as Medina "with little or no criminal record on a first offense who's also facing banishment and exile from this country and from their family [should] fall somewhere at the low end of the [sentencing] range." After hearing from the State's counsel, the district judge explained what he took into consideration in making his sentencing determination. He made reference to some letters Medina provided to the court, which he reviewed and made part of the presentence investigation report (PSI). The judge further explained:
I've also considered the PSI. I've considered the facts, quite honestly. Sir, I don't have a record to speak of, and if you read the letters that I received and then compare them to the reason you're sitting here today, it's pretty inconsistent. But I do take into consideration, especially in these cases, the victim. And a child is very vulnerable. The State's made a pretty accurate argument that this isn't going to go away for this little girl. She's going to live with it for the rest of her life. . . . I've also taken into consideration that you'll be deported when you complete your sentence.The court then sentenced Medina to 20 to 25 years' imprisonment on the attempted first degree sexual assault of a child conviction and 20 to 25 years' imprisonment on the kidnapping conviction, to run consecutively. Medina was given credit for 318 days served on count I. He was also ordered to sign the sex offender registration. Medina now appeals.
ASSIGNMENTS OF ERROR
Medina assigns, consolidated and restated, that the district court abused its discretion by (1) accepting his nolo contendere pleas without first advising him of the deportation and naturalization consequences of the pleas pursuant to § 29-1819.02(1) and (2) imposing excessive sentences. Medina also alleges that he did not freely, voluntarily, knowingly, and intelligently waive his right to a jury trial.
STANDARD OF REVIEW
A trial court is given discretion as to whether to accept a guilty plea, and an appellate court will overturn that decision only where there is an abuse of discretion. State v. Williams, 276 Neb. 716, 757 N.W.2d 187 (2008). A plea of no contest is equivalent to a plea of guilty. State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010).
To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach its conclusion independent of the trial court. See State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010). When construing a statute, the court's objective is to determine and give effect to legislative intent of enactment. Id.
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011).
ANALYSIS
Did District Court Abuse Its Discretion When It Accepted
Medina's Nolo Contendere Pleas Without Advising
Him Pursuant to § 29-1819.02(1)?
Recognizing the unfairness present when a defendant pleads to a crime without knowing the immigration consequences of such a plea, the Legislature enacted § 29-1819.02. State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011). This statute requires that courts apprise defendants of the potential immigration consequences of their pleas and allows some defendants to withdraw their pleas if a court has failed to do so. State v. Yos-Chiguil, supra. While the Constitution does not require such a practice, the Legislature, in its judgment, determined that fairness did. State v. Yos-Chiguil, supra.
Medina alleges that the district court abused its discretion when it accepted his pleas without advising him of the potential deportation and naturalization consequences pursuant to § 29-1819.02, and thus he implores us to vacate his pleas. This assignment of error requires us to interpret § 29-1819.02. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach its conclusion independent of the trial court. See State v. Mena-Rivera, supra. When construing a statute, the court's objective is to determine and give effect to legislative intent of enactment. Id.
Section 29-1819.02(1) provides:
Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:Subsection (2) of § 29-1819.02 provides the remedy for a violation of subsection (1). It states in pertinent part:
IF YOU ARE NOT A UNITED STATES CITIZEN, YOU ARE HEREBY ADVISED THAT CONVICTION OF THE OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY HAVE THE CONSEQUENCES OF REMOVAL FROM THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES.
If, on or after July 20, 2002, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which the defendant pleaded guilty or nolo contendere may have the consequences for the defendant of removal from the United States, or denial of naturalization pursuant to the laws of the United States, the court, on the defendant's motion, shall vacate the judgment and permit the defendant to withdraw the plea of guilty or nolo contendere and enter a plea of not guilty.§ 29-1819.02(2) (emphasis supplied).
It is undisputed that the trial court, in this case the district court, did not advise Medina as required by § 29-1918.02 prior to accepting his pleas at the November 11, 2010, plea proceeding. However, as is clear from the plain language of § 29-1819.02(2), the proper statutory remedy for a defendant under such circumstances is to move to withdraw the plea. Section 29-1819.02 speaks only to immigration consequences. State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011). It is noteworthy that when the defendant in Yos-Chiguil filed his motion to withdraw his plea under § 29-1819.02(2), his conviction and sentence had been affirmed on direct appeal, and he was in the process of serving his sentence. The Supreme Court found, nonetheless, that the district court had jurisdiction to consider the motion being made by the defendant. Moreover, nothing in the text of § 29-1819.02 indicates that the Legislature intended it to serve as a vehicle for asserting all errors in the plea process. See State v. Yos-Chiguil, supra. As such, there is no merit to Medina's claim that the district court's failure to advise him under § 29-1819.02 amounts to an abuse of discretion, or otherwise invalidates his plea, given that he has not employed the statutory remedy--a motion to withdraw the plea--that the Legislature provided for in these circumstances. And, as discussed above concerning State v. Yos-Chiguil, supra, that remedy is still available if he chooses.
Were Medina's Sentences Excessive?
Medina alleges that the district court imposed excessive sentences. Both his convictions are for Class II felonies, for which there is a mandatory minimum of 1 year's imprisonment and a maximum of 50 years' imprisonment. See Neb. Rev. Stat. § 28-105 (Reissue 2008). Medina was sentenced to two terms of 20 to 25 years' imprisonment to run consecutively. He concedes in his brief that his sentences are within statutory limits; however, he claims:
While no one can discount the trauma a small child can undergo in the course of a kidnapping and/or sexual assault, there is first of all no rationale provided by the TrialBrief for appellant at 14-15. We disagree.
Court to justify the two 20 to 25 year terms to be served by . . . Medina in this case. The failure of the District Court to provide a rationale for the sentence[s] it imposed leaves one to wonder how the Court balanced the factors Nebraska cases have long held should be considered in sentencing a Defendant.
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010). An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.
The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. Id. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime. Id.
There is no merit to Medina's assertion that the district judge did not provide a rationale for his sentencing decision or otherwise failed to take into consideration all of the relevant facts and circumstances in this case. The judge explained at sentencing what he took into consideration in making his determination. He said that he considered letters Medina provided to the court, which he made part of the PSI. The judge further expressed:
I've also considered the PSI. I've considered the facts, quite honestly. Sir, I don't have a record to speak of, and if you read the letters that I received and then compare them to the reason you're sitting here today, it's pretty inconsistent. But I do take into consideration, especially in these cases, the victim. And a child is very vulnerable. The State's made a pretty accurate argument that this isn't going to go away for this little girl. She's going to live with it for the rest of her life. . . . I've also taken into consideration that you'll be deported when you complete your sentence.Contrary to Medina's argument, the judge provided a rationale for the sentences. Essentially, all of the information listed in Medina's brief, which he contends the judge did not contemplate in sentencing him, is contained in the PSI, which the judge indicated at sentencing that he read. Medina's two sentences of 20 to 25 years' imprisonment for violent crimes of a sexual nature against an innocent 4-year-old girl who was snatched from her bed while sleeping and made to undergo traumatizing events are quite clearly not untenable or unreasonable or against justice or conscience, reason, and evidence. See State v. Fleming, supra. Medina's contention that his sentences, which are within statutory limits, are an abuse of discretion is without merit.
Were Medina's No Contest Pleas Entered Freely
and Voluntarily in Spite of Court's Failure
to Advise Under § 29-1819.02(1)?
Medina alleges, "The required advisement contemplated by . . . § 29-1819.02 is necessary in order to constitute an intelligent, voluntary and knowing plea in Nebraska." Brief for appellant at 22. The claim which implicitly follows is that he did not freely, intelligently, and voluntarily waive his right to a jury trial due to the court's failure to advise him under § 29-1819.02, and thus, his constitutional rights were violated. We disagree.
There is no constitutional requirement for the advisement required by § 29-1819.02. See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011). However, the Legislature, in its judgment, determined that fairness required the advisement. Id. Medina's implicit claim that his constitutional rights were violated due to the failure of the district court to follow the dictates of § 29-1819.02 is thus without merit.
Moreover, it is clear from the record of the plea proceeding that the district court fully apprised Medina of his constitutional rights prior to accepting his nolo contendere pleas, as have been set forth and required under State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986). To support a finding that a plea of guilty or nolo contendere has been voluntarily and intelligently made,
"1. The court mustState v. Hays, 253 Neb. 467, 471-72, 570 N.W.2d 823, 827 (1997), quoting State v. Irish, supra. As said in our background section above, the district judge engaged in a lengthy advisement of Medina that fully complied with State v. Irish, supra. A voluntary and intelligent waiver of the above rights affirmatively appears from the face of the record. See State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011). This claim is thus without merit.
"a. inform the defendant concerning (1) the nature of the charge; (2) the right to assistance of counsel; (3) the right to confront witnesses against the defendant; (4) the right to a jury trial; and (5) the privilege against self-incrimination; and
"b. examine the defendant to determine that he or she understands the foregoing.
"2. Additionally, the record must establish that
"a. there is a factual basis for the plea; and
"b. the defendant knew the range of penalties for the crime with which he or she is charged."
CONCLUSION
For the foregoing reasons, we affirm the decision of the district court in all respects.
Affirmed.