State v. Qualls

STATE v. QUALLS 	929
Cite as 284 Neb. 929
Thus, the Legislature may amend the statute to refine or change
the definition of an “innocent third party.”
But because such a change is the province of the Legislature,
it cannot come from this court. For over 10 years, the
Legislature has apparently acquiesced in this court’s 2002
assessment of legislative intent and its definition fashioned
to implement that intent. If the definition is to be changed
now, it must be enacted by the Legislature. I therefore join the
court’s opinion.
State of NebraSka, appellee, v. D eviN D. Q uallS, appellaNt.
824 N.W.2d 362
Filed December 21, 2012. 	No. S-12-409.
1. Constitutional Law: Waiver: Appeal and Error. In determining whether a
defendant’s waiver of a statutory or constitutional right was voluntary, knowing,
and intelligent, an appellate court applies a clearly erroneous standard of review.
2. Criminal Law: Statutes: Presentence Reports. The plain language of Neb. Rev.
Stat. § 29-2261(1) (Cum. Supp. 2012) provides that a presentence investigation is
mandatory in felony cases, except if it would be impractical.
3. Presentence Reports: Waiver. The right to a presentence investigation may
be waived.
4. Waiver: Words and Phrases. A waiver is the voluntary and intentional relin-
quishment of a known right, privilege, or claim, and may be demonstrated by or
inferred from a person’s conduct.
5. Constitutional Law: Waiver: Records. A voluntary waiver, knowingly and
intelligently made, must affirmatively appear from the record, before a court
may conclude that a defendant has waived a right constitutionally guaranteed or
granted by statute.
Appeal from the District Court for Sarpy County: DaviD k.
arterburN, Judge. Affirmed.
Patrick 	J. 	Boylan, 	Chief 	Deputy 	Sarpy 	County 	Public
Defender, for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
H eavicaN, c.J., WrigHt, coNNolly, StepHaN, MccorMack,
M iller-lerMaN, and caSSel, JJ.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

930 	284 NEBRASKA REPORTS
H eavicaN, c.J.
INTRODUCTION
Pursuant to a plea bargain, appellant Devin D. Qualls pled
guilty to one count of theft by deception in the amount of $500
to $1,500, in return for the dismissal of other charges and the
State’s promise that it would not object to Qualls’ request that
any sentence be served concurrently to a federal sentence that
had been imposed upon Qualls. The district court sentenced
Qualls to 20 months’ to 4 years’ imprisonment with credit for
5 days’ time served. The district court ordered that sentence to
be served consecutively to the federal sentence. Qualls appeals.
We affirm.
BACKGROUND
Qualls was charged with theft by deception in the amount
of $500 to $1,500. Qualls allegedly used checks written on
accounts with insufficient funds to purchase gift cards sold
as part of a fundraiser for a Catholic school in Papillion,
Nebraska. The record suggests that Qualls perpetrated this
scheme across the Omaha, Nebraska, area.
The issue on appeal is whether Qualls was adequately
informed of his right to a presentence investigation. As rel-
evant on appeal, the record shows that during Qualls’ plea
hearing, the following colloquy took place:
THE COURT: . . . I do need to advise you that since
this is a felony offense, you do have a right to have a pre-
sentence investigation report prepared in this case.
Your attorney has indicated that you wish to waive that
right and have me do sentencing based upon, I believe,
the reports and your criminal history and then any other
information you wish to present.
Do you wish to waive your right to a presentence
report, sir?
[Qualls]: Yes.
THE COURT: All right. Has anyone threatened you or
promised you anything to waive that right?
[Qualls]: No.
THE COURT: Are you waiving that right freely and
voluntarily?

STATE v. QUALLS 	931
Cite as 284 Neb. 929
[Qualls] Yes.
THE COURT: A11 right. The Court will find that the
waiver of presentence report has been made freely, volun-
tarily, knowingly and intelligently.
Qualls contends that this advisory was insufficient to inform
him of his right to a presentence investigation. But the State
contends that Qualls was informed that he had a right to a
presentence investigation and that the record establishes that
Qualls’ waiver was made freely, voluntarily, knowingly, and
intelligently, which is all that should be required.
ASSIGNMENT OF ERROR
Qualls assigns that the district court erred in “failing to
advise [him] of the right being waived when he agreed to not
insist on his statutory right to a presentence investigation.”
STANDARD OF REVIEW
[1] In determining whether a defendant’s waiver of a statu-
tory or constitutional right was voluntary, knowing, and intel-
ligent, an appellate court applies a clearly erroneous standard
of review.1
ANALYSIS
[2] In his sole assignment of error, Qualls argues that the
district court erred in failing to properly advise him of his right
to a presentence investigation. Neb. Rev. Stat. § 29-2261(1)
(Cum. Supp. 2012) provides that “[u]nless it is impractical to
do so, when an offender has been convicted of a felony other
than murder in the first degree, the court shall not impose sen-
tence without first ordering a presentence investigation . . . .”
The plain language of the statute provides that this investiga-
tion is mandatory in felony cases; however, there are excep-
tions under which such an investigation is unnecessary.
[3] The first such exception is set out in the statute itself;
an investigation is not necessary if it would be impractical. We
have explained that one such instance might be where another
investigation had just been completed.2 In addition to this
1 Cf. State v. Figeroa, 278 Neb. 98, 767 N.W.2d 775 (2009).
2 See State v. Tolbert, 223 Neb. 794, 394 N.W.2d 288 (1986).

932 	284 NEBRASKA REPORTS
statutory exception, this court has held that such an investiga-
tion may be waived.3
[4,5] Though this court has held that an otherwise manda-
tory presentence investigation may be waived, we have never
before opined upon how such a waiver would be effectuated.
As a general proposition,
[a] waiver is the voluntary and intentional relinquish-
ment of a known right, privilege, or claim, and may be
demonstrated by or inferred from a person’s conduct. .
. . A voluntary waiver, knowingly and intelligently made,
must affirmatively appear from the record, before a court
may conclude that a defendant has waived a right consti-
tutionally guaranteed or granted by statute.4
In State v. Figeroa,5 we addressed whether a defendant had
voluntarily, knowingly, and intelligently waived his right to
counsel. We noted that “a formalistic litany is not required”6
to establish such a waiver and examined the totality of the cir-
cumstances before concluding that the defendant was compe-
tent to waive counsel and that “the defendant was sufficiently
aware of the right to have counsel and of the possible conse-
quences of a decision to proceed without counsel.”7
And in State v. Fox,8 we concluded the district court did
not err in finding that the defendant had waived his right to
be present at trial. In addition to protection under the U.S.
and Nebraska Constitutions, the right to be present at trial is
guaranteed by Neb. Rev. Stat. § 29-2001 (Reissue 2008). But
we have long held that the right to be present at trial can be
waived so long as that waiver was voluntary and knowing.9
We conclude that the appropriate standard to apply in the
case of a waiver of a right to a presentence investigation under
3 Id.
4 State v. Kennedy, 224 Neb. 164, 170, 396 N.W.2d 722, 726 (1986).
5 Figeroa, supra note 1.
6 Id. at 103, 767 N.W.2d at 780.
7 Id. See, also, State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).
8 State v. Fox, 282 Neb. 957, 806 N.W.2d 883 (2011).
9 Id. (citing Scott v. State, 113 Neb. 657, 204 N.W. 381 (1925)).

STATE v. QUALLS 	933
Cite as 284 Neb. 929
§ 29-2261 is whether it is apparent from the record that the
defendant’s relinquishment of the right was knowingly and
intelligently made.10
But this does not end our inquiry. We are next presented
with the question of whether Qualls’ waiver was, in fact,
knowingly and intelligently made. While Qualls acknowledges
that he was informed of his right to a presentence investiga-
tion, he contends that his waiver could not have been made
knowingly, because he was not aware that (1) a presentence
investigation was “mandatory”11; (2) the lack of such a report
would mean that any appellate court “would not have the ben-
efit of [the report’s] findings [were] he to be unsatisfied with
his sentence”12; (3) the absence of a presentence investigation
deprives the sentencing court of the ability to properly consider
all the factors it is required to consider under § 29-2261(3),
further suggesting that a deficient advisement leads to a sen-
tence that is an abuse of discretion in every case; and (4) by
waiving the right to a presentence investigation, he was also
waiving his right to have mitigating factors presented to any
appellate court that might hear his appeal.
We find all of these contentions to be without merit. Qualls
first argues he was not informed that absent waiver, a pre-
sentence investigation was “mandatory.” But he was clearly
informed that he had a right to a presentence investigation. We
decline to engage in Qualls’ game of semantics.
Qualls also asserts that he was not aware that by waiving the
presentence investigation, an appellate court would not have
access to this investigation in the event he was “unsatisfied”
with his sentence. There are two problems with this assertion.
First, it is self-evident that by waiving the presentence inves-
tigation, such investigation would not be completed and thus
would be unavailable to the district court and also to any appel-
late court. Moreover, Qualls does not directly contend that his
sentence was excessive or otherwise problematic, except the
10 See State v. Kellogg, 10 Neb. App. 557, 633 N.W.2d 916 (2001).
11 Brief for appellant at 8.
12 Id.

934 	284 NEBRASKA REPORTS
general contention that the sentence imposed upon him was “a
direct result of the absence of the safeguard guaranteed by such
an investigation.”13
Qualls next contends that the lack of a presentence inves-
tigation means that a sentencing court cannot consider the
sentencing factors set forth in § 29-2261(3) and that any result-
ing sentence is an abuse of discretion. Qualls’ argument on
this point is also without merit. Just as it is self-evident that
waiving a presentence investigation invariably means there
will be no presentence investigation completed and available
to the courts, it is also self-evident that such a waiver might
limit the sentencing court’s available information. It should
be noted that in this case, the district court had before it the
police reports and a criminal history, and additionally provided
Qualls the opportunity to introduce other information. (We note
that despite this opportunity, Qualls failed to present any such
evidence.) Moreover, this court has indicated these factors,
among others, are to be considered in all sentencings,14 while a
presentence investigation is mandatory only in felony cases.15
Therefore, in misdemeanor cases, a sentencing court considers
these factors to the best of its ability, even without the benefit
of a presentence investigation; thus, it is difficult for us to
find that the lack of a presentence investigation could have
substantially limited the district court’s ability to adequately
impose sentence.
Finally, Qualls argues that he was not aware that by waiving
the presentence investigation, he was waiving the right of an
appellate court to consider any mitigating factors. But at least
on the facts of this case, such is not so. As is noted above,
the district court provided Qualls the opportunity to introduce
into evidence for sentencing purposes “any other information
you wish to present,” but Qualls failed to do so. If he had
introduced such evidence, the information would have been
preserved for an appellate court’s review.
13 Id.
14 See State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011).
15 See § 29-2261(1) and (2).

IN RE INTEREST OF CANDICE H. 	935
Cite as 284 Neb. 935
We reject Qualls’ contentions that his waiver was not know-
ing. As noted above, this court has previously held, with
respect to constitutional rights, that “a formalistic litany is not
required” to establish waiver, but instead that waiver is shown
under the totality of the circumstances. And we decline to
require a more “formalistic litany” for the waiver of a statutory
right than for the waiver of a constitutional one.
A review of the totality of these circumstances shows that
Qualls was informed of his right to a presentence investiga-
tion, was informed as to what information the judge would be
considering, was provided the opportunity to present any addi-
tional information to the court, was questioned as to whether
he had been threatened or promised anything for his decision
to waive this right, and was expressly asked if his waiver was
made freely and voluntarily. The district court did not clearly
err in finding that Qualls’ waiver was made “voluntarily, know-
ingly, and intelligently.”
CONCLUSION
The decision of the district court is affirmed.
affirMeD.
iN re iNtereSt of caNDice H., a cHilD
uNDer 18 yearS of age.
State of NebraSka, appellaNt, v.
caNDice H., appellee.
824 N.W.2d 34
Filed December 21, 2012. 	No. S-12-424.
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. ____: ____. In reviewing questions of law arising under the Nebraska Juvenile
Code, an appellate court reaches conclusions independent of the lower court’s
rulings.
3. Juvenile Courts: Probation and Parole: Sentences: Records. Satisfactory
completion of a juvenile’s probation, supervision, or other treatment or reha-
bilitation program provided under the Nebraska Juvenile Code or satisfactory