State v. Schnell

State of NebraSka , appellee , v .
JohN r. S chNell , appellaNt .
757 N.W.2d 732
Filed November 10, 2008. 	No. A-08-533.
1. 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.
2. Appeal and Error. Consideration of plain error occurs at the discretion of an
appellate court.
3. Rules of the Supreme Court: Dismissal and Nonsuit: Appeal and Error.
Under the rules of appellate procedure prescribed by the Nebraska Supreme
Court, generally, an appellant may dismiss his or her appeal.
4. Criminal Law: Final Orders: Appeal and Error. The State cannot obtain
a review of a trial court’s final order in a criminal case by asserting a
cross-appeal.
5. Criminal Law: Judgments: Jurisdiction: Appeal and Error. Absent specific
statutory authorization, the State, as a general rule, has no right to appeal an
adverse ruling in a criminal case.
6. Dismissal and Nonsuit: Appeal and Error. An appeal cannot be dismissed
except on leave of court, and an appellant cannot do it as a matter of right.
7. Appeal and Error. As a general proposition, an appellant does not possess an
absolute right to withdraw his appeal.
8. ____. Plain error is error plainly evident from the record and of such a nature
that to leave it uncorrected would result in damage to the integrity, reputation, or
fairness of the judicial process.
9. Sentences: Weapons. Neb. Rev. Stat. § 28-1205(3) (Reissue 1995) mandates
that a sentence for the use of a deadly weapon in the commission of a felony be
served consecutively to any other sentence imposed.
10. Appeal and Error. A reply brief cannot be used to raise new matters.
11. Sentences. Ordinarily, a trial court is not required to advise a defendant of the
effect of the possible imposition of consecutive sentences.
12. Pleas. Explaining the possible range of penalties for each crime is adequate to
enable a defendant to freely, voluntarily, intelligently, and understandingly plead
to each crime with which he or she is charged.
13. ____. Where a defendant was unaware of the penal consequences of his or her
guilty plea because he or she had been misinformed by the court, his or her plea
is not voluntary.
Appeal from the District Court for Douglas County: SaNdra
l. dougherty, Judge. Reversed and remanded for further
proceedings.
Stuart J. Dornan, of Dornan, Lustgarten & Troia, P.C.,
L.L.O., for appellant.
STATE v. SChNELL 	211
Cite as 17 Neb. App. 211
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
INbody, Chief Judge, and M oore and caSSel, Judges.
caSSel, Judge.
INTRODUCTION
This matter is before us on John R. Schnell’s motion to
withdraw his appeal, the State’s objection to the motion, and
on the merits of the appeal. We determine that an appellant is
not always entitled to dismiss his or her appeal as a matter of
right, and we overrule Schnell’s motion. Because we find plain
error in the sentences imposed by the district court—done
consistently with the court’s similarly incorrect advisement
regarding the penalty consequences of Schnell’s pleas—we
reverse the judgment of the court and remand the cause for
further proceedings.
BACKGROUND
Schnell pled guilty to four crimes: count I, robbery; count
II, use of a deadly weapon to commit a felony; count III, rob-
bery; and count IV, use of a deadly weapon to commit a felony.
Before accepting the pleas, the district court advised Schnell
as follows:
ThE COURT: And do you understand these are all
Class II felonies and the maximum possible sentence for
a Class II felony is 50 years[’] imprisonment, and it can
carry a one year minimum sentence, do you understand?
[Schnell]: Yes, ma’am.
ThE COURT: And do you understand that if you are
sentenced to terms of imprisonment on more than one
charge, when it comes to — with the two use charges,
[c]ounts II and IV, the [c]ourt must run those sentences
consecutive to the charges before, to each of the robbery
charges, and that means one after another, do you under-
stand that?
[Schnell]: I understand.
ThE COURT: But the [c]ourt does have the discre-
tion, the [c]ourt could run all four of them consecutive,
212 	17 NEBRASKA APPELLATE REPORTS

one after another, which would add up to a possible total
of 200 years, but I also have the discretion, I could run
[c]ount II concurrent with [c]ounts III and IV. Do you
understand that I have discretion?
[Schnell]: Yes, ma’am.
The district court accepted the pleas and subsequently sen-
tenced Schnell to 8 to 12 years’ imprisonment on counts I and
III (the two robbery counts) and 4 to 8 years’ imprisonment on
counts II and IV (the two use of a weapon counts). The court
ordered count II (the first use of a weapon count) to be served
consecutively to count I (the first robbery count), count IV (the
second use of a weapon count) to be served consecutively to
count III (the second robbery count), and counts III and IV
(the second robbery and use of a weapon counts) to be served
concurrently with counts I and II (the first robbery and use of
a weapon counts).
Schnell timely appealed and filed an appellate brief, which
challenged only the excessiveness of the sentences. The State
then filed its appellate brief, arguing that the sentences were
not excessive and pointing out potential plain error in the
court’s failure to make the sentences for use of a weapon
consecutive to any other sentence imposed. Schnell thereafter
moved to withdraw his appeal, but provided no reason for
withdrawal. The State objected, stating that the district court’s
order was invalid and constituted plain error and that this
court has the power to remand the cause for the imposition
of a lawful sentence when an erroneous sentence has been
pronounced. Schnell filed an objection to the State’s objec-
tion, asserting that the State did not have standing to object
to the dismissal both because the State “failed to appeal the
sentence” and because the State “failed to file a cross-appeal.”
Schnell also filed a reply brief in which he argued that his
pleas were not voluntarily made, because the district court
advised him that it had the discretion to run one sentence for
use of a deadly weapon concurrently with the sentences on
other counts.
Pursuant 	to 	Neb. 	Ct. 	R. 	App. 	P. 	§§ 	2-106(E) 	and
2-111(E)(5)(b), no oral argument was allowed.
STATE v. SChNELL 	213
Cite as 17 Neb. App. 211

ASSIGNMENT OF ERROR
Schnell alleges that the court abused its discretion by render-
ing an excessive sentence.
STANDARD OF REVIEW
[1] A sentence imposed within statutory limits will not
be disturbed on appeal absent an abuse of discretion by the
trial court. State v. Kinkennon, 275 Neb. 570, 747 N.W.2d
437 (2008).
[2] Consideration of plain error occurs at the discretion of
an appellate court. State v. Archie, 273 Neb. 612, 733 N.W.2d
513 (2007).
ANALYSIS
Whether Appellant May Dismiss Appeal
as Matter of Right.
As set forth above, 6 days after the State filed its appel-
late brief, Schnell moved to withdraw his appeal. The State
promptly objected. Although Schnell purported to object to
the State’s objection, the rules of appellate practice do not
authorize an objection to an objection. See Neb. Ct. R. App.
P. §§ 2-107(B)(4) and (5) and 2-108(D). Despite this technical
flaw, the issues raised by Schnell’s filing are inherent in our
consideration of the motion to dismiss the appeal. Schnell’s
reply brief did not address the State’s suggestion of plain error,
but by addressing Schnell’s pleas, it seems to concede that
plain error exists in the sentences for use of a weapon. Before
addressing issues of error in the sentences, we first consider
Schnell’s motion to dismiss his appeal.
[3] Under the rules of appellate procedure prescribed by the
Nebraska Supreme Court, generally, an appellant may dismiss
his or her appeal. See § 2-108(A). Thus, the Supreme Court has
long held that as a general rule, an appellant may dismiss his
or her appeal without the consent of the appellee. See Marvel
v. Craft, 116 Neb. 802, 219 N.W. 242 (1928).
But even though the appellee’s consent is not needed, the
court rule on dismissal of an appeal shows that an appellant’s
motion to dismiss does not automatically require dismissal.
First, § 2-108(B) requires the party seeking dismissal to file
214 	17 NEBRASKA APPELLATE REPORTS

a motion to dismiss and § 2-108(C) requires the party to
serve the motion upon the attorney or attorneys of record for
all other parties. Second, the second sentence of § 2-108(D)
states, “Appellee’s response to the motion must be made
within 14 days.” This supports the State’s right to respond to
Schnell’s motion to dismiss the appeal and dovetails the gen-
eral right to respond to a motion afforded under § 2-106(C)(2)
(“[a]ny response to the motion must be in writing and filed
prior to the submission date”). Third, under the remainder
of § 2-108(D), “[a]ny party having a right of cross-appeal at
the time the motion to dismiss is filed may, within the 14-day
period provided in this rule, file a notice of intention to cross-
appeal. Upon the filing of such notice, the court shall deny the
motion to dismiss . . . .” (Emphasis supplied.) The State has
not filed a notice of intention to cross-appeal, but, as discussed
below, in the instant case the State has no right to file such a
notice as it has no right of cross-appeal.
[4,5] The State cannot obtain a review of a trial court’s final
order in a criminal case by asserting a cross-appeal. State v.
Halsey, 232 Neb. 658, 441 N.W.2d 877 (1989). Absent spe-
cific statutory authorization, the State, as a general rule, has
no right to appeal an adverse ruling in a criminal case. State
v. Merrill, 273 Neb. 583, 731 N.W.2d 570 (2007). In the case
before us, the State did not assert a cross-appeal and it would
not have had a right of cross-appeal, because it did not comply
with the statutory prerequisites to docket error proceedings.
Accordingly, the portion of § 2-108(D) allowing a party having
a right of cross-appeal to file a notice of intention to cross-
appeal is not implicated. however, this does not impair the
State’s right to file a response—a right specifically afforded
under the second sentence of § 2-108(D) and generally pro-
vided by § 2-106(C)(2).
Thus, the question becomes, Does an appellant have the
absolute right to dismiss his or her appeal, or is dismissal upon
an appellant’s motion a matter of judicial discretion? Because
our research has not uncovered any Nebraska law or rule on the
specific issue, we turn to other sources.
[6] “An appeal cannot be dismissed except on leave of court,
and an appellant cannot do it as a matter of right.” 5 C.J.S.
STATE v. SChNELL 	215
Cite as 17 Neb. App. 211

Appeal and Error § 751 at 20-21 (2007). In In re Estate of
Tucci, 104 N.C. App. 142, 408 S.E.2d 859 (1991), the Court
of Appeals of North Carolina determined that a party’s attempt
to withdraw its appeal was ineffective. The court stated it was
well established that “‘[w]hen an appeal has been perfected,
[an] appellant cannot withdraw it without first obtaining the
consent of the appellate court. That court may allow or deny
the motion in the exercise of its sound discretion.’” Id. at 149,
408 S.E.2d at 864, quoting Davidson v. Stough, 258 N.C. 23,
127 S.E.2d 762 (1962).
[7] As a general proposition, an appellant does not pos-
sess an absolute right to withdraw his appeal. State v. Gaffey,
92 N.J. 374, 456 A.2d 511 (1983). See, also, DeGarmo v.
Goldman, 19 Cal. 2d 755, 123 P.2d 1 (1942); Henderson v.
Dreyfus, 26 N.M. 262, 191 P. 455 (1920). The Gaffey court
stated that New Jersey court rules do not give appellants the
right unilaterally to withdraw their appeals and that New
Jersey appellate courts had recognized that an appeal can be
withdrawn only with the consent of the court. But, the Gaffey
court stated that a court will ordinarily permit an appeal to
be voluntarily dismissed, unless prejudice to the appellee will
result. In Gaffey, however, it was the state that was seeking to
withdraw the appeal, and the court determined that it could
require the state to maintain its appeal when the rights of the
defendant may be prejudiced. In DeGarmo, the court refused
to dismiss the appeal because dismissal may adversely affect
a coappellant’s rights. In Henderson, the Supreme Court of
New Mexico stated, “The authorities are uniform to the effect
that an appeal cannot be dismissed except on leave of court,
and that an appellant cannot, as a matter of right, dismiss an
appeal.” 26 N.M. at 266, 191 P. at 457. The Henderson court
further stated, “The court has . . . undoubted control over the
right of dismissal and discretion to grant or refuse the right,
which of course is a judicial discretion, and the right to refuse
the dismissal should not be exercised save upon justifiable
grounds.” Id.
The timing of the filing of the motion also appears to be a
consideration. In Henderson, the parties had stipulated to dis-
miss the appeal, but the stipulation was filed after an opinion
216 	17 NEBRASKA APPELLATE REPORTS

affirming the judgment of the trial court had been filed. In
Sims v. Sims, 228 La. 622, 83 So. 2d 650 (1955), the appellant
filed a motion to dismiss the appeal after the appeal had been
set for hearing. The appellee refused to join in the motion to
dismiss, and the court, citing the state’s code of practice, stated
that the appellant was not entitled to have the appeal dismissed.
In Robertson v. Land, 519 S.W.2d 227, 229 (Tex. Civ. App.
1975), a Texas appellate court determined that where an appeal
had been set for submission but had not been heard or deter-
mined, “there [was] no question of appellants’ right to have
their appeal dismissed.” In the case before us, Schnell filed
the motion prior to submission of the case but after the State
had already filed its appellate brief suggesting the existence of
plain error in sentencing.
We conclude that the granting of an appellant’s motion
to dismiss his or her appeal is left to the discretion of the
appellate court. Generally, such a motion will be granted.
And generally, an appellee who has not asserted a cross-
appeal will have no reason to oppose such a motion. But here,
the appellee—the State—has objected to the motion and has
directed this court’s attention to the possibility of plain error
in sentencing. The Legislature defines crimes and establishes
the range of penalties, and the responsibility of the judicial
branch is to apply those punishments according to the nature
and range established by the Legislature. See In re Petition
of Nebraska Community Corr. Council, 274 Neb. 225, 738
N.W.2d 850 (2007). Because the public has an interest in see-
ing criminals be properly sentenced under the statutes enacted
by the Legislature, we conclude that Schnell’s motion to with-
draw his appeal should be denied.
Plain Error.
Schnell complains that the court abused its discretion by
imposing excessive sentences. In the State’s appellate brief, it
argues that the sentences are not excessive but that they “pose
an issue of potential plain error because the sentences imposed
for use of a deadly weapon are not in compliance with . . .
§ 28-1205.” Brief for appellee at 4. Schnell’s reply brief implic-
itly concedes that the sentences amounted to plain error.
STATE v. SChNELL 	217
Cite as 17 Neb. App. 211

[8] Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judi-
cial process. In re Interest of Brandon M., 273 Neb. 47, 727
N.W.2d 230 (2007). The district court sentenced Schnell to
8 to 12 years’ imprisonment for each robbery conviction and
4 to 8 years’ imprisonment for each use of a deadly weapon
conviction. Each individual sentence is near the low end of
the statutory limits. See Neb. Rev. Stat. §§ 28-105(1) (Cum.
Supp. 2006) and 28-324(2) and 28-1205(3)(b) (Reissue 1995).
The court ordered that each sentence for use of a deadly
weapon conviction be served consecutively to the correspond-
ing robbery conviction and that the second robbery and use of a
deadly weapon sentences be served concurrently with the first
sentences for robbery and use of a deadly weapon.
We find plain error in the sentencing court’s failure to fully
implement § 28-1205(3), which provides that the sentence for
use of a weapon to commit a felony must be served consecu-
tively to any other sentence imposed. In State v. Russell, 248
Neb. 723, 539 N.W.2d 8 (1995), the Nebraska Supreme Court
stated that the trial court’s failure to impose the sentence for
use of a firearm consecutively to the defendant’s life impris-
onment sentence violated § 28-1205(3) and was plain error.
Similarly, this court recently found plain error in a sentencing
court’s failure to impose consecutive sentences for convictions
involving use of a deadly weapon to commit a felony. See State
v. Wilson, 16 Neb. App. 878, 754 N.W.2d 780 (2008). See, also,
State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (2008) (where
trial court ordered two sentences for second degree murder
to be served concurrently to one another and two sentences
for use of firearm counts to be served consecutively to one
another and to sentences for second degree murder; on appeal,
Supreme Court found sentences were excessively lenient but
implicitly approved sentences on use of firearm running con-
secutively to each other and to concurrent sentences for second
degree murder).
[9] In the instant case, the district court properly ordered each
sentence for use of a deadly weapon to be served consecutively
to the corresponding robbery conviction. But the court erred in
218 	17 NEBRASKA APPELLATE REPORTS

ordering that the second robbery and use of a deadly weapon
sentences be served concurrently with the first sentences for
robbery and use of a deadly weapon. That sentencing arrange-
ment had the effect of making one of the sentences for use of
a deadly weapon run concurrently with the other sentence for
use of a deadly weapon. Section 28-1205(3) mandates that a
sentence for the use of a deadly weapon in the commission of a
felony be served consecutively to any other sentence imposed.
See, State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004);
State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995); State
v. Wilson, supra.
[10] In Schnell’s reply brief, he argues that his pleas were
not voluntary because the court advised him that it had the dis-
cretion to run one sentence for use of a deadly weapon concur-
rently with the sentences on other counts. A reply brief cannot
be used to raise new matters. State v. Chambers, 241 Neb. 66,
486 N.W.2d 481 (1992). however, because in this instance we
have found plain error in the sentences imposed by the court
and the court’s advisement may have affected Schnell’s deci-
sion to plead guilty, we will consider the issue.
[11,12] We recognize that, ordinarily, a trial court is not
required to advise a defendant of the effect of the possible
imposition of consecutive sentences. See State v. Irish, 223
Neb. 814, 394 N.W.2d 879 (1986). Explaining the possible
range of penalties for each crime is adequate to enable a defend-
ant to freely, voluntarily, intelligently, and understandingly
plead to each crime with which he or she is charged. Id.
[13] however, in the case before us, the district court’s
incorrect 	advisement 	is 	inextricably 	intertwined 	with 	the
court’s plain error in imposing the sentences. The court advised
Schnell that it had the discretion to run one use of a deadly
weapon sentence concurrent with sentences for robbery and
another use of a deadly weapon charge. The court sentenced
Schnell consistent with the advisement, which we above found
to be plain error. In general, under Nebraska law, a defend-
ant must be informed of those consequences which affect
the range of possible sentences or periods of incarceration
for each charge and the amount of any fine to be imposed
as a part of a sentence. State v. Schneider, 263 Neb. 318,
STATE v. SChNELL 	219
Cite as 17 Neb. App. 211

640 N.W.2d 8 (2002). In State v. Golden, 226 Neb. 863, 415
N.W.2d 469 (1987), the Nebraska Supreme Court determined
that a defendant’s guilty pleas to assaulting an officer in the
third degree and using a firearm to commit a felony were not
voluntarily entered because the trial court explained that the
sentences could be imposed concurrently or consecutively and
did not inform the defendant that § 28-1205(3) mandated a
consecutive sentence. Where a defendant was unaware of the
penal consequences of his or her guilty plea because he or she
had been misinformed by the court, his or her plea is not vol-
untary. Id. See, also, State v. Van Ackeren, 234 Neb. 535, 451
N.W.2d 707 (1990) (defendant must be allowed to withdraw
pleas because trial court failed to properly advise defendant
concerning penalty consequence of use of firearm conviction).
Because the court plainly erred in sentencing Schnell and the
sentences were imposed consistent with the court’s erroneous
advisement, we conclude in this instance that Schnell must be
permitted to withdraw his pleas. We emphasize that in the case
before us, we do not address a situation where the sentencing
court gave no specific advisement regarding the possibility of
a consecutive sentence; here, rather, the court gave an incorrect
advisement stating, in effect, that the two use charges could be
made concurrent.
CONCLUSION
We determine that an appellant is not always entitled to have
his or her appeal dismissed as a matter of right. Under the cir-
cumstances presented in this case, we deny Schnell’s motion to
withdraw his appeal. We find plain error in the district court’s
sentences to the extent that the court allowed one of the sen-
tences for use of a deadly weapon to run concurrently with
the other sentence for use of a deadly weapon. Because the
erroneous sentences were imposed consistent with the court’s
advisement to Schnell at the time he entered his guilty pleas,
we conclude that he should be allowed to withdraw his pleas to
all charges. Thereafter, the court may proceed with a rearraign-
ment upon all of the charges.
reverSed aNd reMaNded for
further proceedINgS.
220 	17 NEBRASKA APPELLATE REPORTS