State v. Hammel

supervision should have been submitted to a jury, but that
this error was harmless. Therefore, we affirm the conviction
and sentence.
A ffirmed.
StAte of NebrASkA, Appellee , v.
Jeremy J. HAmmel , AppellANt.
769 N.W.2d 413
Filed July 21, 2009. 	No. A-08-1061.
1. Pleas. To support a finding that a plea of guilty or nolo contendere has been
voluntarily and intelligently made, the court must (1) inform the defendant con-
cerning (a) the nature of the charge, (b) the right to assistance of counsel, (c)
the right to confront witnesses against the defendant, (d) the right to a jury trial,
and (e) the privilege against self-incrimination; and (2) examine the defendant
to determine that he or she understands the foregoing, including, in the absence
of an express waiver of such rights by the defendant, whether the defendant
understands that by pleading guilty, the defendant waives his or her privilege
against self-incrimination, right to confront witnesses, and right to a jury trial.
Additionally, the record must establish that (1) there is a factual basis for the plea
and (2) the defendant knew the range of penalties for the crime with which he or
she is charged.
Appeal from the District Court for Douglas County: G erAld
e. morAN, Judge. Reversed and remanded with directions.
Mary Leanne Wells Kendall for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
iNbody, Chief Judge, and SieverS and CASSel, Judges.
iNbody, Chief Judge.
INTRODUCTION
This case comes before this court as Jeremy J. Hammel
appeals the sentence imposed by the Douglas County District
Court, prior to which Hammel pled no contest to one count of
child abuse. Pursuant to Neb. Ct. R. App. P. § 2-111(E)(5)(a),
this case was submitted without oral argument.
788 	17 NEBRAsKA APPELLATE REPORTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

sTATEMENT OF FACTs
On June 13, 2008, the state filed an amended informa-
tion charging Hammel with one count of child abuse, a Class
III felony. Hammel initially pled not guilty but eventually
filed a motion to withdraw that plea and entered a plea of
no contest.
At the plea hearing, the district court engaged in a lengthy
discussion with Hammel about his rights, the charge, and the
penalty for said charge. Upon inquiring as to any plea bargains,
the following discussion was had:
THE COURT: And are there any plea bargains involved
in this case?
[Counsel for the state:] Yes, there are, Your Honor. It’s
my understanding that [Hammel is] pleading straight as
he is today, that the state does not have any objection to a
minimum of four years[’], maximum of six years[’] —
THE COURT: All right.
[Counsel for the state:] — incarceration.
THE COURT: Is it my understanding that your counsel
. . . will request a sentence of no greater than the four to
six that was just — four to six years that was just dis-
cussed by the prosecutor?
[Counsel for Hammel:] Yes, sir, respectfully.
A factual basis was given by the state, and the district
court found that the factual basis was sufficient, that Hammel
understood the possible penalties, and that the plea was entered
freely, knowingly, intelligently, and voluntarily.
At the sentencing hearing, the district court heard statements
from the child’s mother and grandmother and indicated that
the presentence report had been completed and reviewed. The
district court then inquired of Hammel and his counsel whether
“the plea bargain was no more than six years.” Hammel’s
counsel answered in the affirmative, and then the district court
sentenced Hammel to a term of 6 to 6 years’ imprisonment
with credit for 218 days served. After the sentence was pro-
nounced, the following was stated on the record, “[Counsel
for Hammel:] Excuse me Judge. It was — the agreement was
four to six years. THE COURT: No, the agreement was in the
range of four to six years.” No other objections were made,
sTATE v. HAMMEL 	789
Cite as 17 Neb. App. 788

and the hearing was adjourned. Hammel has timely appealed
to this court.
AssIGNMENTs OF ERROR
Hammel contends that the district court erred by not fully
informing him of the consequences of his plea and by abusing
its discretion by imposing an excessive sentence.
ANALYsIs
Hammel argues that the district court erred by not fully
informing him of the consequences of his plea when it did not
advise him that the district court was not bound by the sentenc-
ing negotiations and prosecutor’s recommendation.
[1] To support a finding that a plea of guilty or nolo con-
tendere has been voluntarily and intelligently made, the court
must (1) inform the defendant concerning (a) the nature of the
charge, (b) the right to assistance of counsel, (c) the right to
confront witnesses against the defendant, (d) the right to a jury
trial, and (e) the privilege against self-incrimination; and (2)
examine the defendant to determine that he or she understands
the foregoing, including, in the absence of an express waiver
of such rights by the defendant, whether the defendant under-
stands that by pleading guilty, the defendant waives his or her
privilege against self-incrimination, right to confront witnesses,
and right to a jury trial. State v. Louthan, 257 Neb. 174, 595
N.W.2d 917 (1999); State v. Irish, 223 Neb. 814, 394 N.W.2d
879 (1986); State v. Wiemer, 15 Neb. App. 260, 725 N.W.2d
416 (2006). Additionally, the record must establish that (1)
there is a factual basis for the plea and (2) the defendant knew
the range of penalties for the crime with which he or she is
charged. State v. Irish, supra.
In the instant case, the district court informed Hammel as
to the nature of the charge and the constitutional rights given
up by entering a plea. Hammel was advised that child abuse
was a Class III felony, punishable by a potential sentence of 1
to 20 years’ imprisonment, a $25,000 fine, or both. The state
indicated that, pursuant to the plea agreement, there would be
no objection to a sentence of a “minimum four years[’], maxi-
mum six years[’] . . . incarceration.” A factual basis was then
790 	17 NEBRAsKA APPELLATE REPORTs

given by the state; however, the district court did not inform
Hammel, at any time, that the court was not bound by any sen-
tencing recommendation.
Under the specific facts of this particular case, because the
district court failed to accurately advise Hammel of the range
of penalties for the crime, i.e., that the district court was not
bound by the plea agreement made with the state, we find
that Hammel was not adequately advised as to the complete
range of penalties available to the district court for sentenc-
ing. Therefore, Hammel’s no contest plea could not have been
entered freely, voluntarily, knowingly, and intelligently. see
State v. Irish, supra. Consequently, we must remand the cause
to the district court with directions to vacate Hammel’s convic-
tion and sentence and to hold further proceedings.
Given our resolution of this assignment of error, we need
not address Hammel’s remaining assignment of error regarding
excessive sentence. see Papillion Rural Fire Prot. Dist. v. City
of Bellevue, 274 Neb. 214, 739 N.W.2d 162 (2007) (appellate
court is not obligated to engage in analysis which is not needed
to adjudicate controversy before it).
reverSed ANd remANded witH direCtioNS.
iN re iNtereSt of SylveSter l.,
A CHild uNder 18 yeArS of AGe .
StAte of NebrASkA, Appellee , v. SylveSter l.,
Appellee , ANd depArtmeNt of H eAltH
ANd HumAN ServiCeS, AppellANt.
770 N.W.2d 669
Filed July 21, 2009. 	No. A-08-1188.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. Juvenile Courts: Jurisdiction: Probation and Parole. Under Neb. Rev. stat.
§ 43-416 (Reissue 2008), the Office of Juvenile services has authority over the
parole function for juveniles committed to a youth rehabilitation and treatment
center and may revoke a juvenile’s parole.
IN RE INTEREsT OF sYLvEsTER L. 	791
Cite as 17 Neb. App. 791