Nebraska Plea-based Convictions Practice: a Primer and Commentary

• Jurisdiction: Nebraska,United States
• Citation: Vol. 79
• Publication year: 2021

79 Nebraska L. Rev. 293. Nebraska Plea-Based Convictions Practice: A Primer And Commentary

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Alan G. Gless*

Nebraska Plea-Based Convictions Practice: A Primer And Commentary

"In the present state of the criminal justice system, one would have thought that all approved requirements for valid entry of a guilty plea would be car ried out almost as a matter of second nature. Apparently, such is not the case . . . ." Shanahan, J., State v. Jost, 219 Neb. 162, 169, 361 N.W.2d 526, 531 (1985).

TABLE OF CONTENTS

I. Introduction .............................................. 295
II. Appellate Justice and the Precipitation of United
States Supreme Court Activity ............................. 298
A. Federalization of Constitutional Criminal Procedure:
Denial of the Right to Counsel and the Fundamental
Fairness Approach ...................................... 302
B. Right to Counsel Cases ................................. 305
C. General Validity of Plea-Based Convictions Under
United States Supreme Court Cases ...................... 318
1. Voluntariness of Pleas .............................. 320
2. Paper Trail Requisite to Presumptive Voluntariness
of Pleas ............................................ 321
3. Other Considerations in Plea-Based Convictions ...... 326
III. Effect of Pleading Guilty or No Contest in Nebraska ....... 339
A. General Rules .......................................... 339
B. Defenses Not Waived by Plea of Guilty and No Contest ... 341

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1. Subject Matter Jurisdiction - Insufficiency of
Charging Instrument ................................. 341
2. Subject Matter Jurisdiction - Venue Problems ........ 344
3. Subject Matter Jurisdiction - Statute of
Limitations Problems ................................ 350
4. Miscellaneous Defenses Not Waived ................... 353
IV. Validity of Plea on Direct Appeal ......................... 355
V. Sufficiency of the Record ................................. 359
VI. Personally Addressing the Defendant ....................... 360
A. Competence to Plead .................................... 361
B. Written Pleas .......................................... 362
C. Group Arraignments ..................................... 363
D. Grouping of Rights ..................................... 363
E. Sentence Recommendations ............................... 364
VII. Required Information for the Accused ...................... 365
A. Nature of the Charge ................................... 365
B. Possible Penalties ..................................... 369
C. The Right to Assistance of Counsel ..................... 377
D. The Right to a Jury Trial .............................. 383
E. The Right of Confrontation ............................. 387
F. The Privilege Against Compulsory Self-Incrimination .... 388
G. The Factual Basis for the Plea ......................... 389
VIII. The Plea Itself and Findings on the Plea ................. 394
IX. Validity of Prior Convictions for Enhanced
Sentences and in Proving Elements of New Offenses ........ 395
A. Sentence Enhancements ................................. 395
B. Factual Basis ......................................... 396
C. Burdens of Proof ...................................... 399
D. Sufficiency of the Record ............................. 402
E. Application of Enhancement Rules ...................... 409
F. Application of Collateral Estoppel and Res Judicata ... 415
G. The Rise of Separate Proceedings Challenging
Prior Convictions ..................................... 416
H. The Decline of Separate Proceedings Challenging
Prior Convictions ..................................... 421
X. Elements of New Offenses .................................. 443
XI. Conclusion ................................................ 444

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I. INTRODUCTION

On June 2, 1999, Boykin v. Alabama1 passed its thirtieth anniversary in the United States Reports, quietly exerting continuing control over Nebraska practice. In its thirty years, Boykin dramatically changed Nebraska plea acceptance procedures, the records trial courts need to create, and the rules applied in direct appeals from convictions entered on guilty and no contest pleas. Boykin's state court plea proceeding records mandate has changed in Nebraska practice, precipitated by other United States Supreme Court cases dealing with the right to counsel. Additionally, the Court's right to counsel cases, operating both independently of and in concert with Boykin, have also exerted a strong, but less dramatic, influence on Nebraska's enhancement of penalty procedures and on Nebraska collateral attack practice relating to plea-based judgments of conviction.

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The Nebraska Supreme Court's first attempt at satisfying the Boykin requirements, State v. Turner,2 remained on the books for roughly ten years as the ruling Nebraska precedent. But Turner did not come close to satisfying Boykin. The Nebraska Supreme Court's second attempt at satisfying Boykin, State v. Tweedy,3 essentially remains good law, despite several refined restatements of its teachings. The first substantial and refined restatement of Tweedy appeared in State v. Irish.4 The most recent restatement, with only slight refinement, appeared in State v. Hays,5 and has been reiterated in opinions released as recently as State v. Louthan6 and State v. Paul.7 Haysactually only reinvigorated Tweedy after several years of benign neglect. As this article makes apparent, far more becomes involved in the acceptance of guilty and no contest pleas than Judge Shanahan may have had in mind when he wrote the words quoted at the top of this article.8 Plea acceptance, as we shall see, can become complicated. In

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addition, the replacement of all of the judges on the state's supreme court in a very short time also may complicate an already complex situation and can even change what reasonably should be the "second nature" part of the plea process.9

Practitioners need ready access to Nebraska's past and current law relating to plea-based convictions and challenges to those convictions. Two types of practitioners could especially benefit from a comprehensive source on the subject. These include practitioners appearing in Nebraska's state courts and in federal courts who deal with the effect of Nebraska state court plea-based convictions under the Federal Sentencing Guidelines, or those practitioners challenging Nebraska state court plea-based convictions in the context of federal collateral attacks. Practitioners10 and judges11 have not had access to a single re

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source in which they could locate most of the controlling Nebraska law. Nor is there a single resource from which they could follow the development of the various rules affecting plea-based conviction problems. The availability of a single resource in which to locate the current rules and the background of currently controlling case law can provide practitioners and judges with information they can use to develop more effective arguments. This article will lessen the use of arguments from previously rejected positions, effectuate more informed decision-making by judges, and provide readily available practical information for new practitioners. This article may also provide academic lawyers with the initial information for scholarly analysis and comments on the areas of Nebraska law that remain in need of clarification.

The purpose of this article is fourfold. Stated in order of relative importance, this article provides the single resource the Nebraska practice literature has lacked. The second purpose lies in a re-analy-sis of Boykin.12 There is ample room to argue Boykin probably required more than it said, more than generally has been required by Nebraska's13 appellate courts, and considerably less than many other state courts have claimed. Third, this article examines other, undeveloped, and sometimes inconsistent areas of Nebraska law affecting plea-based convictions, especially Nebraska law on venue and statutes of limitations in criminal cases. Out of necessity, the Nebraska Constitution is pulled into the discussion at several places. Finally, this article suggests a number of considerations to the bench and practicing bar in dealing with plea-based conviction issues, including use of the state constitution. The article expresses a few thoughts on advocacy approaches for the use of the practicing bar, which should also provide another pedagogical tool for those academic lawyers attempting to teach legal method.14

Most of the advocacy ideas are presented throughout this article in the notes at points where their impact might be maximized, rather than in a centralized location. The discussion of the basic rules applicable in Nebraska's state courts speaks mainly to the members of the

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state's practicing criminal bar and bench. The discussion of the undeveloped or unclear areas of Nebraska law and the re-analysis of the federal case law, however, should speak to a larger audience, including federal and state judges, federal criminal practitioners, and academic lawyers as well.15

II. APPELLATE JUSTICE AND THE PRECIPITATION OF UNITED STATES SUPREME COURT ACTIVITY

Some brief historical information is necessary to set the stage for the developments of the 1960s and beyond. Much changed in the world of appellate justice between 1787 and 1867, not the least of which was its very creation.16 The first Nebraska Constitution, adopted in 1866, guaranteed some criminal appeals to the Nebraska Supreme Court.17 The Nebraska Supreme Court, from its birth in 1867, had habeas corpus jurisdiction18 and appellate jurisdiction over criminal cases, although the court's scope of review on appeal initially was confined within the procedural limits of error proceedings.19

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An interesting semantic point in Nebraska law arises in the applicable appellate...