State v. Andersen

probation searches would unnecessarily interfere with the twin
goals of probation: rehabilitation of the probationer and protec-
tion of society. See id.
We conclude that the stop and search of Colby’s vehicle
and person were valid and lawful. We further conclude that
the search of Colby’s residence was lawful because it was
done pursuant to a search warrant that was supported by prob-
able cause. We therefore find no merit in Colby’s assignment
of error.
CONCLUSION
We conclude that the probation search was lawful and that
the search of Colby’s residence was also a lawful search. We
therefore affirm the district court’s judgment overruling the
motion to suppress.
A ffirmed .
S tAte of N ebrASkA, Appellee , v .
rANdy l. ANderSeN, AppellANt .
748 N.W.2d 124
Filed April 29, 2008. 	No. A-07-547.
1. Pleas: Appeal and Error. A trial court is given discretion as to whether to accept
a guilty plea; an appellate court will overturn that decision only where there is an
abuse of discretion.
2. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
3. Judgments: Words and Phrases. 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.
4. Appeal and Error. Plain error may be found on appeal when an error unasserted
or uncomplained of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process.
5. Pleas. A plea of no contest is equivalent to a plea of guilty.
6. ____. To support a finding that a plea of guilty has been entered freely, intel-
ligently, voluntarily, and understandingly, a court must 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. The record must also establish a
STATe v. ANderSeN 	651
Cite as 16 Neb. App. 651
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

factual basis for the plea and that the defendant knew the range of penalties for
the crime charged.
7. Sentences: Appeal and Error. The standard of review in regard to sentencing is
whether the sentence was within the statutory limits and whether the sentencing
court abused its discretion.
8. Sentences. 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.
9. ____. In considering a sentence to be imposed, the sentencing court is not limited
in its discretion to any mathematically applied set of factors.
10. ____. 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 facts and circumstances surrounding the crime and the
defendant’s life.
11. Homicide: Motor Vehicles: Licenses and Permits: Revocation. A conviction
based on Neb. rev. Stat. § 28-306(3)(a) (Cum. Supp. 2004), motor vehicle homi-
cide by reckless/willful reckless driving, does not give the sentencing court any
authority to order a license revocation.
Appeal from the district Court for douglas County: J oSeph S.
troiA, Judge. Affirmed as modified.
Andrew J. Wilson and Kylie A. Wolf, of Walentine, O’Toole,
McQuillan & Gordon, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
S ieverS, CArlSoN, and moore, Judges.
CArlSoN, Judge.
INTrOdUCTION
randy L. Andersen (defendant) pled no contest to count I,
a charge of motor vehicle homicide by reckless/willful reck-
less driving, a Class IIIA felony. The district court sentenced
defendant to 5 to 5 years’ imprisonment and ordered him not
to drive a motor vehicle for a period of 15 years. defendant
appeals, claiming that the plea was not voluntary and that the
sentence was excessive.
652 	16 NeBrASKA APPeLLATe rePOrTS

FACTUAL BACKGrOUNd
Based on a plea bargain, defendant pled no contest to motor
vehicle homicide by reckless/willful reckless driving, a Class
IIIA felony, on February 23, 2007. As a part of the plea agree-
ment, the State dismissed count II, a charge of assault in the
second degree, a Class IIIA felony, and agreed not to file 10
violations of a protection order, second offense, all Class IV
felonies. After the plea hearing, the court adjudged defendant
guilty of motor vehicle homicide by reckless/willful reckless
driving and sentenced defendant to 5 to 5 years’ imprisonment
and a license revocation of 15 years. defendant appeals.
The relevant facts in regard to defendant’s plea and sen-
tence will be addressed in detail in the analysis section of
this opinion.
ASSIGNMeNTS OF errOr
defendant 	cites 	two 	errors 	in 	his 	brief 	as 	follows:
“[defendant’s] plea of no contest was not made knowingly,
voluntarily and intelligently. . . . The sentence imposed by the
lower court is excessive.”
STANdArd OF reVIeW
[1] A trial court is given discretion as to whether to accept a
guilty plea; an appellate court will overturn that decision only
where there is an abuse of discretion. State v. Lassek, 272 Neb.
523, 723 N.W.2d 320 (2006).
[2] A sentence imposed within statutory limits will not be
disturbed on appeal absent an abuse of discretion by the trial
court. State v. Fester, 274 Neb. 786, 743 N.W.2d 380 (2008).
[3] 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 evi-
dence. State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
[4] Plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputation,
STATe v. ANderSeN 	653
Cite as 16 Neb. App. 651

and fairness of the judicial process. State v. Mlynarik, 16 Neb.
App. 324, 743 N.W.2d 778 (2008).
ANALYSIS
Plea.
defendant entered a plea of no contest and was adjudged
guilty by the district court of motor vehicle homicide by
reckless/willful reckless driving pursuant to Neb. rev. Stat.
§ 28-306(3)(a) (Cum. Supp. 2004). defendant alleges, in his
first error, that his plea of no contest was not done freely, intel-
ligently, voluntarily, and understandingly.
[5,6] The requirements of such a plea were reiterated in the
case of State v. Lassek, supra, wherein it was pointed out that
a plea of no contest is equivalent to a plea of guilty. To support
a finding that a plea of guilty has been entered freely, intel-
ligently, voluntarily, and understandingly, a court must inform
the defendant concerning (1) the nature of the charge, (2) the
right to assistance of counsel, (3) the right to confront wit-
nesses against the defendant, (4) the right to a jury trial, and
(5) the privilege against self-incrimination. The record must
also establish a factual basis for the plea and that the defend-
ant knew the range of penalties for the crime charged. Id. A
trial court is given discretion as to whether to accept a guilty
plea; an appellate court will overturn that decision only where
there is an abuse of discretion. Id. With these parameters and
guidelines in mind, we turn to the record to determine whether
defendant was adequately informed of his rights, whether he
knew the range of penalties, and whether there was a factual
basis for the plea.
The thrust of defendant’s argument is that in his mind,
the offense should have been a misdemeanor instead of a
felony and that he should have gotten some type of a preagree-
ment on his sentence. The record is not supportive of defend-
ant’s argument.
The following excerpts from the record highlight some of
defendant’s complaints but show the plea herein was made
freely, intelligently, voluntarily, and understandingly.
654 	16 NeBrASKA APPeLLATe rePOrTS

THe COUrT: . . . [Y]ou’ve had an opportunity to talk to
your attorney. What is it you wish to do at this time?
THe 	deFeNdANT: 	I’m 	not 	going 	to 	waste 	the
Court’s time, never have, never will. I’m going to plead
no contest.
THe COUrT: To Count I?
[Counsel for defendant]: Count I.
THe COUrT: I take it pursuant to the plea agreement
that was mentioned when we started where the State
would dismiss Count II and not file on ten counts of viola-
tion of a protection order?
[Counsel for defendant]: That’s correct.
THe COUrT: Okay. Is that your understanding . . . ?
THe deFeNdANT: Yes.
THe COUrT: Okay. And is a no contest plea accept-
able to the State?
[Counsel for the State]: Yes.
THe COUrT: do you understand . . . that a no contest
plea will be treated the same as a plea of guilty as far as
sentencing goes?
THe deFeNdANT: Yeah.
THe COUrT: Is that a yes?
THe deFeNdANT: Yes.
. . . .
THe COUrT: do you understand the maximum pos-
sible penalty for this charge is five years in jail and a
$10,000 fine? The Court doesn’t have to put you in jail for
five years. It could be a day on up, and the Court doesn’t
have to fine you $10,000. It could be a dollar on up. do
you understand?
THe deFeNdANT: Yes.
. . . .
THe COUrT: Has anybody told you or led you to
believe that by entering your plea of no contest you would
receive probation, be given a light sentence or in any way
rewarded for pleading no contest?
THe deFeNdANT: (No audible answer.)
STATe v. ANderSeN 	655
Cite as 16 Neb. App. 651

THe COUrT: Has anybody told you what’s going
to happen?
THe deFeNdANT: (No audible answer.)
THe COUrT: There’s been discussion of what you
would like to happen, but has anybody told you what your
sentence is going to be?
THe deFeNdANT: (No audible answer.)
THe COUrT: did your attorney tell you what your
sentence was going to be?
THe deFeNdANT: No.
THe COUrT: did anybody else tell you what your
sentence would be? Nobody’s told you you’re going to
get the minimum and nobody told you you’re not going to
get the maximum, is that correct, or any specific number
as far as jail time?
THe deFeNdANT: I was told in November I was
going to get 20 to 30 months time served.
THe COUrT: Who told you that?
THe deFeNdANT: It was a plea thing that the lawyer
told me, but no.
THe COUrT. Okay.
[Counsel for defendant]: As his attorney, I have told
him that’s what I would ask for. As we have discussed —
THe deFeNdANT: Until these letters came up.
[Counsel for defendant]: — many times, that is not part
of the plea deal. It’s been one of the frustrations [defend-
ant] has expressed with me, is that he wants the sentence
guaranteed, and I’ve expressed to him —
THe deFeNdANT: I said I wanted it in writing.
[Counsel 	for 	defendant]: 	And 	I 	said 	it 	was 	not
guaranteed.
THe deFeNdANT: That was in November.
THe COUrT: do you understand that what your attor-
ney tells you, you know, is something that is recom-
mended to the Court under the circumstances, but the
Court is not bound by that?
THe deFeNdANT: Yeah, I was told that today.
THe COUrT: All right. All right. You’re still willing
to proceed?
656 	16 NeBrASKA APPeLLATe rePOrTS

THe deFeNdANT: I’m done with this. I want it
over with.
. . . .
THe COUrT: Okay. The charge, Count I, is that on or
about the 26th day of November, 2005, in douglas County,
you unintentionally caused the death of Jay Hinchman.
[Counsel for the State]: Hinchman.
THe COUrT: Jay Hinchman, while engaged in the
unlawful operation of a motor vehicle and in violation of
Section [6]0-6,213 or Section 60-6,214.
THe deFeNdANT: What’s those sections for?
[Counsel for the State]: That would be reckless and
willful reckless driving.
THe COUrT: either reckless or willful reckless driv-
ing. That’s what you’re charged under.
THe deFeNdANT: Which is one — or willful, one,
disregard for human life, conscious or deliberate is sub-
states and counties.
THe COUrT: Well, that’s the charge as set out. do you
still wish to plead no contest to that charge?
THe deFeNdANT: I have no choice, yes.
THe COUrT: Well, you can say, no, I don’t want to
and, you know —
THe deFeNdANT: And we wait another year? No, I
don’t want to wait another year.
. . . .
THe COUrT: Before I can accept your plea, I have to
be satisfied there’s a factual basis for the charge. Is the
State going to give the factual basis?
[Counsel for the State]: On November 26th, 2005, here
in douglas County, Nebraska, the defendant was operating
a motor vehicle and turned onto Farnam Street heading the
wrong way on a one-way street. The defendant then struck
a car being driven by the victim, Jay Hinchman, at approxi-
mately 33rd Street and Farnam Street, which caused the
car driven by Mr. Hinchman to spin 180 degrees and strike
a guardrail. According to the coroner’s — excuse me, the
medical examiner’s report, Mr. Hinchman died as a result
of the injuries sustained in that accident.
STATe v. ANderSeN 	657
Cite as 16 Neb. App. 651

The defendant did show some signs of alcohol impair-
ment to Omaha police officers following a legal blood
draw, his BAC tested at a 0.61. There was also the pres-
ence of marijuana in his urine. All those events occurred
here in douglas County, Nebraska.
. . . .
THe COUrT: do you believe that [defendant’s] plea of
no contest is consistent with the law the facts and in his
best interests?
[Counsel for defendant]: Yes.
THe COUrT: All right. . . . [T]he Court finds beyond
a reasonable doubt that you understand the nature of the
charge against you to which you pled no contest to; that
you understand the possible penalties; that your plea is
entered freely, knowingly, intelligently; that there is a
factual basis for your plea. The Court grants you leave
to withdraw your previously entered plea of not guilty,
accepts your plea of no contest, finds and adjudges you
guilty of the charge. The matter will be referred for a
Presentence investigation.
Based on a careful review of the total record, we find no
abuse of discretion and that this error has no merit. We agree
with the summation of the State in its brief that defendant’s
arguments are founded upon comments made by him which
have been taken out of the context of the entire plea hear-
ing. The fact that defendant did not agree with the evidence,
whether he should be charged with a misdemeanor or felony,
and what his final sentence should be does not change that his
plea was made freely, intelligently, voluntarily, and understand-
ingly. The district court explained to him that he would be
pleading no contest to a felony and that his sentence would be
within the discretion of the court despite the recommendations
of counsel.
Excessive Sentence.
[7] The district court sentenced defendant to 5 to 5 years’
imprisonment based on his plea to count I, motor vehicle
homicide by reckless/willful reckless driving, a Class IIIA
felony. Count I was punishable by up to 5 years’ imprisonment,
658 	16 NeBrASKA APPeLLATe rePOrTS

a $10,000 fine, or any combination of the two. Neb. rev. Stat.
§ 28-105 (Cum. Supp. 2006). The standard of review in regard
to sentencing is whether the sentence was within the statutory
limits and whether the sentencing court abused its discretion.
See, State v. Fester, 274 Neb. 786, 743 N.W.2d 380 (2008);
State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
It is clear that the sentence was within the statutory limita-
tions. defendant argues that although he has had a troubled
past, he has made efforts to take control of his admitted drink-
ing problem. In response, the State points to defendant’s exten-
sive criminal history (six pages in the presentence investigation
report). defendant has been convicted of multiple counts of
driving during suspension, driving under the influence, and
possession of less than 1 ounce of marijuana, among many
other convictions. He has a previous felony conviction for the
offense of felony criminal mischief in which he was sentenced
to an imprisonment of 30 to 60 months. It should be noted that
defendant benefited from a plea bargain in which the prosecu-
tor dismissed and agreed not to file 11 felony charges.
[8-10] 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.
State v. Fester, supra. We have further held that, in considering
a sentence to be imposed, the sentencing court is not limited
in its discretion to any mathematically applied set of factors.
Id. Obviously, depending on the circumstances of a particular
case, not all factors are placed on a scale and weighed in equal
proportion. The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge’s obser-
vation of the defendant’s demeanor and attitude and all facts
and circumstances surrounding the crime and the defendant’s
life. Id.
Based on the criteria set in the law, we find no support for
the argument that the court abused its discretion in defendant’s
sentence of imprisonment.
STATe v. ANderSeN 	659
Cite as 16 Neb. App. 651

Plain Error.
As a part of defendant’s sentence, the court suspended defend-
ant’s driver’s license for a period of 15 years. The State has
conceded that the district court erred in imposing any time
period of license revocation for defendant under the statute to
which he pled and was found guilty. It is clear that the statute,
§ 28-306(3)(a), contains no provision for a license revocation.
The portion of § 28-306(3)(a) in question simply reads as fol-
lows: “If the proximate cause of the death of another is the
operation of a motor vehicle in violation of section 60-6,213 or
60-6,214, motor vehicle homicide is a Class IIIA felony.” Neb.
rev. Stat. §§ 60-6,213 and 60-6,214 (reissue 2004) refer to the
statutes on reckless and willful reckless driving, respectively.
These statutes have no penalty provisions.
[11] We find that under the present state of Nebraska law, a
conviction of the above provision, motor vehicle homicide by
reckless/willful reckless driving, does not give the sentencing
court any authority to order a license revocation. As a result,
we find plain error and vacate that portion of defendant’s sen-
tence that ordered defendant not to operate a motor vehicle for
a period of 15 years. Plain error may be found on appeal when
an error unasserted or uncomplained of at trial, but plainly
evident from the record, prejudicially affects a litigant’s sub-
stantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process. State
v. Mlynarik, ante p. 324, 743 N.W.2d 778 (2008).
CONCLUSION
We therefore affirm the district court’s judgment in all
respects, except that we modify the sentencing order in regard
to the license revocation.
A ffirmed AS modified .
660 	16 NeBrASKA APPeLLATe rePOrTS