State v. Landera

STATE v. LANDERA 	243
Cite as 285 Neb. 243
all terms of Neb. Ct. R. § 3-316 of the disciplinary rules,
and upon failure to do so, she shall be subject to punish-
ment for contempt of this court. Accordingly, respondent is
directed to pay costs and expenses in accordance with Neb.
Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb. Ct. R.
§§ 3-310(P) and 3-323 of the disciplinary rules within 60 days
after an order imposing costs and expenses, if any, is entered
by the court.
Judgment of disbarment.
state of nebraska, appellee, v.
angel r. landera, appellant.
826 N.W.2d 570
Filed February 22, 2013. 	No. S-11-940.
1. Judgments: Appeal and Error. When issues on appeal present questions of law,
an appellate court has an obligation to reach an independent conclusion irrespec-
tive of the decision of the court below.
2. Courts: Plea Bargains. In Nebraska, a court is never bound by the plea agree-
ment made between a defendant and the government.
3. Plea Bargains. A party to a plea agreement should not be given the benefit of
implied terms when the party failed to negotiate such terms.
4. Courts: Contracts. Courts are not to rewrite contracts to include what the parties
did not.
5. Courts: Plea Bargains. Courts implementing plea agreements should enforce
only those terms and conditions actually agreed upon by the parties.
6. Plea Bargains: Sentences. A sentencing recommendation need not be enthusias-
tic in order to fulfill a promise made in a plea agreement.
Petition for further review from the Court of Appeals, inbody,
Chief Judge, and moore and pirtle, Judges, on appeal thereto
from the District Court for Platte County, robert r. steinke,
Judge. Judgment of Court of Appeals affirmed.
Nathan J. Sohriakoff, Deputy Platte County Public Defender,
for appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

244 	285 NEBRASKA REPORTS
H eavican, c.J., WrigHt, connolly, stepHan, mccormack,
miller-lerman, and cassel, JJ.
cassel, J.
I. INTRODUCTION
The Nebraska Court of Appeals concluded that the State,
having promised to recommend probation as part of its plea
agreement with Angel R. Landera, violated the agreement
when it recommended a term of incarceration as a condition of
probation.1 We granted the State’s petition for further review in
order to consider how courts should treat matters not explicitly
addressed in a plea agreement and now hold that courts should
enforce only those terms and conditions actually agreed upon
by the parties. However, because the State effectively under-
mined its recommendation of probation and thereby violated
its plea agreement with Landera, we affirm the decision of the
Court of Appeals.
II. BACKGROUND
Landera entered into a plea agreement with the State after
having previously pled not guilty to 2 counts of distribution of
child pornography and 20 counts of possession of child por-
nography. The plea agreement was not reduced to writing, but
was orally described to the district court as follows:
[Public defender]: Your Honor, [Landera] is going to
plead to Counts III, IV, VI, VII, XIII, XIV, XV, XVI,
XVII and XX.
. . . .
[Public defender]: . . . The State will dismiss the bal-
ance of the charges and agree to recommend probation
provided [that Landera] obtain a psychiatric evaluation
and a sex offender evaluation from a reputable individual
and follow through with all recommendations.
THE COURT: [County attorney], does that accurately
represent the plea agreement?
[County attorney]: It does, Your Honor.
THE COURT: Thank you. . . . Landera, your attorney
has recited into the record a plea agreement reached in
1 See State v. Landera, 20 Neb. App. 24, 816 N.W.2d 20 (2012).

STATE v. LANDERA 	245
Cite as 285 Neb. 243
this case, which has been agreed to today by [the county
attorney] on behalf of the State. Does that accurately rep-
resent the plea agreement as you understand it?
[Landera]: Yes.
THE COURT: Are there any other terms or conditions
of the plea agreement that you believe exist that were not
just now fully recited into the record?
[Landera]: No.
Following acceptance by the court of the plea agreement,
Landera withdrew his previous pleas of not guilty and entered
guilty pleas to the 10 counts identified in the plea agreement
(all for possession of child pornography). The court found him
guilty on all counts. The 10 remaining counts were dismissed
with prejudice in accordance with the plea agreement.
Prior to sentencing, the court ordered Landera commit-
ted to the Nebraska Department of Correctional Services at
its Diagnostic and Evaluation Center (D&E) for a 90-day
evaluation, because “the [c]ourt [was] of the opinion that
imprisonment [might] be appropriate in this case but desire[d]
more detailed information as a basis for determining the sen-
tence to be imposed than has been provided by the presen-
tence [report].”
Following completion of the 90-day evaluation, a sentencing
hearing was held. At this hearing, the State made the follow-
ing statement:
Prior to reviewing the evaluation from D&E, the State
was prepared to recommend probation, extensive pro-
bation, with challenging treatment. [Landera] is bright
and that is evidenced by the fact he obtained a full ride
pre-med scholarship. You know, he’s [sic] obviously pos-
sesses a talent that a lot of people before the [c]ourt don’t
have. . . .
In reviewing the presentence, again, for today’s sen-
tencing, along with the D&E evaluation, I’m struck and I
can’t recommend probation —
The State was interrupted at this point by Landera’s attorney,
who reminded the court that the State was bound by the plea
agreement to recommend probation.

246 	285 NEBRASKA REPORTS
In the discussion that followed, the State claimed that it
intended to stand by the plea agreement. However, the State
also 	expressed 	grave 	concerns 	about 	Landera’s 	ability 	to
refrain from the use of child pornography and argued for
the imposition of “punishment” because of the results of the
90-day evaluation.
In response, Landera’s attorney argued that Landera was
expecting “an unqualified recommendation of probation from
the county attorney,” but that the State had instead offered “an
extremely qualified recommendation of probation.” Landera’s
attorney concluded by asking the court to “honor the plea
agreement” and “order probation.”
Following allocution by both sides, the court sentenced
Landera to 30 months’ to 4 years’ imprisonment on each
count, to be served concurrently. The court specifically noted
both at the sentencing hearing and in its written order that it
determined Landera was not “a fit and proper person to be sen-
tenced to a term of probation.”
Landera appealed to the Court of Appeals, alleging, among
other things, that the district court erred in failing to grant
specific performance of the plea bargain after the State “explic-
itly indicated that it did not intend to follow through with the
agreement.”2 Although the Court of Appeals focused consider-
able attention on the remedies dictated in State v. Birge3 for
breach of a plea agreement, it cited no authority for its conclu-
sion that the State had in fact violated the plea agreement by
recommending a term of incarceration as a condition of pro-
bation. Having reached that conclusion, the Court of Appeals
vacated Landera’s sentences and remanded the cause for resen-
tencing by a different judge.4
The State filed a petition for further review, which we
granted in order to provide further guidance on the interpreta-
tion of plea agreements.
2 Brief for appellant at 12-13.
3 State v. Birge, 263 Neb. 77, 638 N.W.2d 529 (2002).
4 See State v. Landera, supra note 1.

STATE v. LANDERA 	247
Cite as 285 Neb. 243
III. ASSIGNMENT OF ERROR
The State argues on further review that the Court of Appeals
erred by determining that the State violated the plea agreement
with Landera.
IV. STANDARD OF REVIEW
[1] When issues on appeal present questions of law, an
appellate court has an obligation to reach an independent con-
clusion irrespective of the decision of the court below.5
V. ANALYSIS
1. treatment of implied terms
in plea agreement
There are two widely accepted ways that courts treat terms
and conditions not explicitly included in a plea agreement. One
of these views, which the Court of Appeals effectively adopted,
holds that terms and conditions not expressly included in a plea
agreement were intentionally omitted. The alternative view is
that courts should not enforce implied terms and conditions of
a plea agreement, but enforce only those terms and conditions
about which the parties did in fact agree. While we find that
this latter approach is more consistent with existing Nebraska
case law on the interpretation of plea bargains, we begin by
providing a brief overview of both views.
[2] We digress to note that some of the federal court deci-
sions arose from alleged violations of a federal procedural rule6
permitting courts to accept plea agreements setting forth the
penalties to be imposed and to become bound by the specified
disposition. In Nebraska, a court is never bound by the plea
agreement made between a defendant and the government.7
Nevertheless, the federal cases are illustrative of the respec-
tive approaches employed to determine a party’s obligations
under a plea agreement. For our purposes, it does not matter
whether the breaching party was the sentencing court or the
5 State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
6 See Fed. R. Crim. P. 11(c).
7 See State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003).

248 	285 NEBRASKA REPORTS
prosecuting attorney. We are concerned only with the proper
analytical approach.
(a) Terms Not Expressly Included Considered
Intentionally Omitted
The expansive interpretation of plea agreements embodied
in the Court of Appeals’ decision is consistent with early deci-
sions from several of the federal circuit courts. One of the
leading cases adopting an expansive interpretation of a plea
agreement is United States v. Runck.8 In that case, the Eighth
Circuit considered whether the imposition of restitution as
a condition of probation violated a plea agreement that pro-
vided for a maximum sentence of 3 years’ imprisonment and a
$1,000 fine. While recognizing that “it would be unmanageable
and impractical to require every possible condition of proba-
tion to be included in a plea bargain,” the court held that the
imposition of a large amount of restitution “created a mate-
rial change in the plea bargain.”9 Relying on the precedent of
Runck, the First,10 Second,11 and Ninth12 Circuits similarly held
that when a plea agreement was silent on the matter of resti-
tution, the imposition of restitution—even as a condition of
probation—was precluded by such silence. In so holding, the
Ninth Circuit explained that the failure to expressly provide in
a plea agreement for restitution as a term of probation was “an
intentional omission designed to preclude its imposition.”13 In
contexts other than restitution, the Third14 and Fifth15 Circuits
also interpreted silence in plea agreements as precluding pros-
ecutors from recommending terms or conditions not expressly
mentioned in the plea agreement.
8 United States v. Runck, 601 F.2d 968 (8th Cir. 1979).
9 Id. at 970.
10 See United States v. Garcia, 698 F.2d 31 (1st Cir. 1983).
11 See United States v. Burruezo, 704 F.2d 33 (2d Cir. 1983).
12 See United States v. Kamer, 781 F.2d 1380 (9th Cir. 1986).
13 Id. at 1388.
14 See U.S. v. Gilchrist, 130 F.3d 1131 (3d Cir. 1997).
15 See U.S. v. Munoz, 408 F.3d 222 (5th Cir. 2005).

STATE v. LANDERA 	249
Cite as 285 Neb. 243
In practice, interpreting silence in a plea agreement as an
intentional omission prevents the government from making
any sentencing recommendations not explicitly addressed in
the agreement and restricts the government to only those sen-
tencing recommendations enumerated. In effect, the failure
to include a specific term or condition in a plea agreement
becomes an implicit promise by the government not to recom-
mend that term or condition. At least one court interpreting
plea agreements according to this approach has invoked the
language of implicit promises, noting that the government
“implicitly promised not to argue for an enhancement that was
not part of the plea agreement.”16
Significantly, however, the federal circuit courts that once
espoused this position have since adopted the approach urged
by the State in the instant case and now interpret plea agree-
ments more strictly. Since 1995, the Eighth Circuit has con-
sistently enforced only those terms and conditions actually
addressed in a plea agreement,17 contrary to its prior holding
in Runck.18 And within 10 years of their decisions interpreting
silence as an intentional omission binding upon the govern-
ment, as discussed above, the First,19 Second,20 and Ninth21
Circuits each issued decisions refusing—rather vehemently,
in the case of the First Circuit—to liberally interpret silence
in plea agreements as they had done previously. In recent
16 See id. at 227.
17 See, e.g., U.S. v. Nguyen, 608 F.3d 368 (8th Cir. 2010), cert. denied 562
U.S. 1076, 131 S. Ct. 679, 178 L. Ed. 2d 505; U.S. v. Parker, 512 F.3d
1037 (8th Cir. 2008); U.S. v. Martinez-Noriega, 418 F.3d 809 (8th Cir.
2005); White v. U.S., 308 F.3d 927 (8th Cir. 2002); U.S. v. Austin, 255 F.3d
593 (8th Cir. 2001); U.S. v. Cheek, 69 F.3d 231 (8th Cir. 1995).
18 United States v. Runck, supra note 8.
19 See U.S. v. Anderson, 921 F.2d 335 (1st Cir. 1990).
20 See United States v. Abbamonte, 759 F.2d 1065 (2d Cir. 1985), overruled
on other grounds, U.S. v. Macchia, 41 F.3d 35 (2d Cir. 1994).
21 See U.S. v. Pomazi, 851 F.2d 244 (9th Cir. 1988), abrogated on other
grounds, Hughey v. United States, 495 U.S. 411, 110 S. Ct. 1979, 109 L.
Ed. 2d 408 (1990).

250 	285 NEBRASKA REPORTS
unpublished cases, the Third22 and Fifth23 Circuits have also
made this move to a more limited interpretation of plea agree-
ments. It is to this more restrictive interpretive approach that
we now turn.
(b) Only Terms to Which
Parties Agreed Considered
Part of Agreement
The State urges us to reject the approach adopted by the
Court of Appeals—that terms and conditions not expressly
included in a plea agreement were intentionally omitted and
thus cannot be recommended by a prosecutor without breach-
ing the plea agreement—and to instead hold that courts should
enforce only those terms and conditions about which the par-
ties did in fact agree. As will become evident below, the State’s
approach finds considerable support in federal case law.
In United States v. Benchimol,24 a majority of the U.S.
Supreme Court rejected the enforcement of “implied-in-law
terms” of a plea agreement and held that “it was error for
[the lower court] to imply as a matter of law a term which
the parties themselves did not agree upon.” Although the
Court’s analysis was not extensive, Benchimol provided impor-
tant precedent upon which the federal circuit courts have built.
The First,25 Third,26 Fourth,27 Seventh,28 Ninth,29 and District of
Columbia30 Circuits all have cited to Benchimol as the basis for
declining to enforce implied terms in plea agreements.
22 See U.S. v. Wells, 124 Fed. Appx. 735 (3d Cir. 2005).
23 See U.S. v. Traugott, 364 Fed. Appx. 925 (5th Cir. 2010).
24 United States v. Benchimol, 471 U.S. 453, 455-56, 105 S. Ct. 2103, 85 L.
Ed. 2d 462 (1985) (per curiam).
25 See, e.g., U.S. v. Anderson, supra note 19.
26 See, e.g., U.S. v. Moscahlaidis, 868 F.2d 1357 (3d Cir. 1989).
27 See, e.g., United States v. Fentress, 792 F.2d 461 (4th Cir. 1986).
28 See, e.g., U.S. v. Jimenez, 992 F.2d 131 (7th Cir. 1993).
29 See, e.g., U.S. v. Johnson, 187 F.3d 1129 (9th Cir. 1999); U.S. v. Koenig,
813 F.2d 1044 (9th Cir. 1987).
30 See U.S. v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992).

STATE v. LANDERA 	251
Cite as 285 Neb. 243
[3] Courts have justified the rejection of implied terms for
varying reasons, often applying standards from contract law.
Some courts have reasoned that a party to a plea agreement
should not be given the benefit of implied terms when the party
failed to negotiate such terms.31 The First Circuit explained this
reasoning as follows:
If defendant had wanted to condition his plea on [a cer-
tain benefit,] he could have insisted that such a term be
made part of the Agreement. He did not do so. Under the
circumstances, we find no reason to grant him after the
fact the benefit of a condition he failed to negotiate before
the fact. To read the Agreement, ex silentio, to include
[a certain term or condition] would give defendant more
than is reasonably due.32
Contract law principles have also steered courts to focus on
the affirmative promises made by the parties in the agreement
and to recognize the limitations on their assent.33 For example,
in United States v. Fentress,34 the Fourth Circuit rejected a
defendant’s assertion that the government had promised not
to make any recommendations but those identified in the plea
agreement by treating that agreement as a fully integrated
contract. Because the court concluded that “[e]verything the
government promised to do, it did,” it held that the defendant
could not now supplement the agreement “with unmentioned
terms.”35 The court further explained its holding as follows:
The prosecution owed [the defendant] no duty but that of
fidelity to the agreement. Neither the Constitution nor the
Federal Rules of Criminal Procedure requires that a plea
agreement must encompass all of the significant actions
that either side might take. If the agreement does not
31 See, e.g., U.S. v. Williams, 102 F.3d 923 (7th Cir. 1996); U.S. v. Pollard,
supra note 30.
32 U.S. v. Anderson, supra note 19, 921 F.2d at 338.
33 See, e.g., U.S. v. Streich, 560 F.3d 926 (9th Cir. 2009); In re Altro, 180
F.3d 372 (2d Cir. 1999).
34 United States v. Fentress, supra note 27.
35 Id. at 464.

252 	285 NEBRASKA REPORTS
establish a prosecutorial commitment on the full range of
possible sanctions, we should recognize the parties’ limi-
tation of their assent.36
The basic premise underlying all of these explanations
for the rejection of implied terms in plea agreements is that
parties to such agreements should only be held to terms and
conditions to which they actually agreed. This is the basic
principle that was laid down by the U.S. Supreme Court
in Benchimol.37
Courts that refuse to enforce implied terms as part of a plea
agreement have found that a party breached a plea agreement
for only two reasons: (1) for violating an express term of the
agreement38 or (2) for acting in a manner not specifically pro-
hibited by the agreement but still incompatible with explicit
promises made in the agreement.39 In practice, therefore, this
approach to the interpretation of plea agreements often results
in a reliance on fine distinctions between actions, particularly
in the context of recommendations made under the federal
sentencing guidelines.40 In U.S. v. Parker,41 for example, the
Eighth Circuit held that the application of career offender sta-
tus did not breach a plea agreement that prohibited the parties
from seeking departures or enhancements under the sentencing
36 Id.
37 United States v. Benchimol, supra note 24.
38 See, e.g., U.S. v. Lovelace, 565 F.3d 1080 (8th Cir. 2009); U.S. v. Rivera,
357 F.3d 290 (3d Cir. 2004), abrogated on other grounds, Puckett v.
United States, 556 U.S. 129, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009);
U.S. v. Atkinson, 259 F.3d 648 (7th Cir. 2001); U.S. v. Ledbetter, 172 Fed.
Appx. 947 (11th Cir. 2006).
39 See, e.g., Dunn v. Colleran, 247 F.3d 450 (3d Cir. 2001); U.S. v.
Mondragon, 228 F.3d 978 (9th Cir. 2000); U.S. v. Nolan-Cooper, 155 F.3d
221 (3d Cir. 1998); U.S. v. Brye, 146 F.3d 1207 (10th Cir. 1998); U.S. v.
Canada, 960 F.2d 263 (1st Cir. 1992).
40 See, e.g., U.S. v. Dahmen, 675 F.3d 244 (3d Cir. 2012); U.S. v. Martinez-
Noriega, supra note 17; U.S. v. Medford, 194 F.3d 419 (3d Cir. 1999); U.S.
v. Johnson, supra note 29; U.S. v. Smith, 140 F.3d 1325 (10th Cir. 1998);
U.S. v. Pollard, supra note 30; U.S. v. Carrazana, 921 F.2d 1557 (11th Cir.
1991); U.S. v. Traugott, supra note 23.
41 U.S. v. Parker, supra note 17.

STATE v. LANDERA 	253
Cite as 285 Neb. 243
guidelines, because career offender status technically is nei-
ther a departure nor an enhancement. On the whole, it is fair
to say that under this more limited approach to interpretation
of plea agreements, the government has near-plenary ability
to make any sentencing recommendation not explicitly pre-
cluded by the plea agreement or contradictory to one of its
express terms.
(c) Conclusion Based on
Nebraska Case Law
Having reviewed these two approaches, we now consider
them in light of Nebraska case law—which demands that
courts enforce only those terms and conditions about which the
parties to a plea agreement did in fact agree.
[4] In its petition for further review, the State relied upon
the analysis of the Nebraska Court of Appeals in State v.
Thompson42 to highlight that court’s error in the instant case. In
Thompson, the Court of Appeals rejected the argument that the
State had waived its right to appeal a sentence as excessively
lenient by promising in a plea agreement to “‘remain silent at
sentencing.’”43 Relying upon the opinion of the First Circuit
in U.S. v. Anderson,44 which itself relied heavily upon the U.S
Supreme Court’s decision in Benchimol,45 the Court of Appeals
reasoned as follows:
[T]he State’s waiver of its right of appellate review must
actually be part of the agreement rather than judicially
created from a plea agreement that fails to even mention
such a condition. In short, we enforce the agreement that
was made rather than expand it by judicial fiat, and we
hold that the State did not waive its statutory right to
appellate review of the trial court’s sentences.46
42 State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007).
43 Id. at 773, 735 N.W.2d at 827.
44 U.S. v. Anderson, supra note 19.
45 United States v. Benchimol, supra note 24.
46 State v. Thompson, supra note 42, 15 Neb. App. at 776, 735 N.W.2d at 828
(emphasis supplied).

254 	285 NEBRASKA REPORTS
The Court of Appeals also specifically noted that “[g]iven the
general principle that courts are not to rewrite contracts to
include what the parties did not, we find that what the plea
agreement between [the defendant] and the State did not say
is of the greatest import in resolving this issue . . . .”47 This
holding was in line with a previous opinion of the Court of
Appeals48 and a previous opinion of this court,49 both of which
enforced only those terms upon which the parties actually
had agreed.
The decision of the Court of Appeals in the instant case
is a departure from this precedent. By holding that the State
breached its plea agreement with Landera by recommending
probation “only with an additional term not contemplated
when the plea agreement was made,”50 the Court of Appeals
erred. The expansive analytical approach would have the effect
of ignoring the plain language of the agreement, creating a
promise by the State not to recommend incarceration as a
condition of probation, and expanding the plea agreement by
judicial fiat.
[5] Because the approach to the interpretation of plea
agreements advocated by the State is consistent with exist-
ing Nebraska case law and a large body of federal case law
encompassing decisions of the U.S. Supreme Court and a
majority of the federal circuit courts, we hold that courts
implementing plea agreements should enforce only those terms
and conditions actually agreed upon by the parties. We now
47 Id. at 773, 735 N.W.2d at 826.
48 See State v. Powers, 10 Neb. App. 256, 264, 634 N.W.2d 1, 9 (2001) (State
did not breach plea agreement by using letters as evidence of subsequent
criminal activity because State “agreed in the plea agreement not to pursue
any charges for the prior letters, but did not agree to never use the prior
letters as evidence in a prosecution for subsequent criminal activity”),
disapproved on other grounds, State v. Smith, 267 Neb. 917, 678 N.W.2d
733 (2004).
49 See State v. Gildea, 240 Neb. 780, 782, 484 N.W.2d 467, 468 (1992)
(terms of plea agreement “will not be extended beyond the bare terms of
that agreement”).
50 State v. Landera, supra note 1, 20 Neb. App. at 34, 816 N.W.2d at 29.

STATE v. LANDERA 	255
Cite as 285 Neb. 243
apply this principle in the instant case to determine whether
the State breached its plea agreement with Landera.
2. WHetHer state breacHed plea
agreement WitH landera
Landera’s plea agreement with the State contained two
promises by each party. Landera promised to plead guilty to
10 of 22 counts in the information and to obtain a “psychiatric
evaluation and a sex offender evaluation from a reputable indi-
vidual and follow through with all recommendations.” In return,
the State promised to dismiss the remaining 12 counts and “to
recommend probation.” When asked by the court whether this
description of the plea agreement “accurately represent[ed] the
plea agreement as [he] underst[ood] it,” Landera replied, “Yes.”
When asked whether there were “any other terms or conditions
of the plea agreement that [he] believe[d] exist[ed] that were
not . . . fully recited into the record,” Landera responded, “No.”
We thus take these four promises to be the extent of Landera’s
plea agreement with the State.
Following the limited approach to interpretation of plea
agreements, we refuse to read into this plea agreement an
implied promise by the State not to recommend conditions
of probation. The terms of the plea agreement included only
two promises by the State: that it would (1) drop the remain-
ing 12 counts against Landera and (2) recommend probation.
The agreement did not include a promise by the State not to
recommend conditions of probation. As the Court of Appeals’
decision makes plain, to hold the State to any such promise
requires a court to imply terms. We decline to do so. Rather,
we enforce only the two promises actually made by the State,
just one of which is at issue in this appeal.
The plea agreement between Landera and the State was
silent as to conditions of probation. And one of the conditions
of probation allowed by statute is incarceration in county jail.51
As such, the State could have recommended incarceration as a
condition of probation without breaching the plea agreement
51 See Neb. Rev. Stat. § 29-2262(2)(b) (Cum. Supp. 2012).

256 	285 NEBRASKA REPORTS
and did not breach the plea agreement for the reason identified
by the Court of Appeals.
But we find that the State did breach the plea agreement,
albeit in a different manner, by not fulfilling its explicit prom-
ise to recommend probation. While the State made a perfunc-
tory recommendation of probation during allocution, the tenor
of its entire argument undermined its purported recommenda-
tion, thereby breaching the express term of the agreement.
At sentencing, the State began its comments by stating,
“Prior to reviewing the evaluation from D&E, the State was
prepared to recommend probation . . . .” A few sentences later,
the State explicitly stated as follows: “In reviewing the pre-
sentence, again, for today’s sentencing, along with the D&E
evaluation, I’m struck and I can’t recommend probation . . . .”
Although the State was interrupted before finishing this sen-
tence, these statements demonstrate that the State had changed
its mind about recommending probation.
During the remainder of its comments, the State strongly
suggested to the district court that it believed the court should
impose incarceration instead of probation. It explained that the
purpose of the 90-day evaluation was “to determine whether
or not [Landera was] fit and proper for probation” and that
Landera “had ninety days to get his act straight, to play along
and he couldn’t do it.” The State also highlighted the predato-
rial nature of Landera’s crimes. But the most telling portion of
the State’s allocution was its conclusion:
I don’t trust that if he is released without . . . punishment
that he won’t be inclined to reign in his impulse control.
It’s ninety days at D&E and he couldn’t keep it under
wraps for ninety days in a prison setting. So, yes, I am
concerned about him being on the streets and walking
past a school or looking at pornography again . . . .
I don’t understand how [Landera] would be able to
function without continuing treatment programs . . . . But
I also believe that there should be a punishment element
and that should be made clear to [him]. I’d submit on
that fact.
By focusing so heavily on the concept of punishment, Landera’s
failure to prove that he was “fit and proper for probation,” and

STATE v. LANDERA 	257
Cite as 285 Neb. 243
concern about Landera’s “being on the streets,” the State made
a powerful, albeit implicit, argument to the court that probation
was simply not an appropriate sentence.
[6] We recognize that a sentencing recommendation need
not be enthusiastic in order to fulfill a promise made in
a plea agreement.52 The State must not, however, effec-
tively undermine the promised recommendation. The State’s
perfunctory adherence coupled with sentencing comments
totally at odds with probation amounts to a failure to recom-
mend probation. And by failing to recommend probation,
it breached the plea agreement with Landera. Because we
find that the Court of Appeals reached the correct result,
albeit for the wrong reason, we affirm its decision to vacate
Landera’s sentences and remand the cause for resentencing
by a different judge.
VI. CONCLUSION
We granted the State’s petition for further review to con-
sider how courts should treat terms and conditions not explic-
itly mentioned in plea agreements. Because the approach
urged by the State is more consistent with existing Nebraska
case law and the case law of a majority of the federal cir-
cuits, we find that the Court of Appeals erred in enforcing
an implied promise by the State not to recommend an addi-
tional condition of probation. Rather, courts should enforce
only those terms and conditions to which the parties actually
agreed. Applying this standard to the instant case, we find
that the State violated its plea agreement with Landera not by
recommending incarceration as a condition of probation but
by effectively arguing for incarceration instead of probation.
Having reached the same result as the Court of Appeals by a
different path, we affirm.
affirmed.
52 See United States v. Benchimol, supra note 24.
connolly, J., concurring.
I concur in the majority opinion’s judgment. I write sepa-
rately because I do not agree with its reasoning. The U.S.

258 	285 NEBRASKA REPORTS
Supreme Court has explained that the substantial benefits
of plea bargaining in the criminal justice system rest upon
assumptions that the bargaining is fair:
[A]ll 	of 	these 	considerations 	presuppose 	fairness 	in
securing agreement between an accused and a prosecu-
tor. It is now clear, for example, that the accused plead-
ing guilty must be counseled, absent a waiver. . . . The
plea must, of course, be voluntary and knowing and if it
was induced by promises, the essence of those promises
must in some way be made known. There is, of course,
no absolute right to have a guilty plea accepted. . . .
A court may reject a plea in exercise of sound judi-
cial discretion.
This phase of the process of criminal justice, and
the adjudicative element inherent in accepting a plea
of guilty, must be attended by safeguards to insure the
defendant what is reasonably due in the circumstances.
Those circumstances will vary, but a constant factor is
that when a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such
promise must be fulfilled.1
“Because a defendant pleading guilty pursuant to a plea
agreement waives a number of fundamental constitutional
rights, . . . the circumstances surrounding the plea agreement
must comport with due process to ensure defendant’s under-
standing of its consequences.”2 Accordingly, many federal
courts have held that in determining whether the prosecution
has breached a plea agreement, a court must consider whether
the government’s conduct is inconsistent with what the defend-
ant would have reasonably understood when he or she entered
1 Santobello v. New York, 404 U.S. 257, 261-62, 92 S. Ct. 495, 30 L. Ed.
2d 427 (1971) (emphasis supplied). Accord State v. Sidzyik, 281 Neb. 305,
795 N.W.2d 281 (2011).
2 Spence v. Superintendent, Great Meadow Cor. Fac., 219 F.3d 162, 167 (2d
Cir. 2000) (citations omitted). Accord U.S. v. Lewis, 633 F.3d 262 (4th Cir.
2011).

STATE v. LANDERA 	259
Cite as 285 Neb. 243
the plea.3 Likewise, ambiguities in an agreement are construed
against the government.4
So I have no quarrel with the general proposition that the
parties must have agreed to the terms of the agreement. But
in my view, the question is whether an objectively reasonable
defendant, when agreeing to plead guilty in exchange for the
prosecutor’s promise to recommend probation, would have
understood that the prosecution could nonetheless recommend
a year of incarceration as a condition of probation. The Court
of Appeals’ decision essentially answered no to this question.
I agree.
The prosecution did not specify that it was reserving the
right to seek statutory conditions as part of its agreement to
recommend probation. And it clearly could have included this
term in the agreement if that had been its intent.5 I believe the
Court of Appeals correctly reasoned that we do not permit a
party to a contract to prevail on unstated terms or conditions.
And this reasoning must certainly apply when one of the par-
ties has such a superior bargaining position.
Moreover, the majority’s reasoning would require defend-
ants to understand that Nebraska’s probation statute permits
a court to impose an initial term of incarceration as a condi-
tion of probation. That rule is neither universal nor the com-
monly understood meaning of probation.6 At the very least,
3 See, U.S. v. Larkin, 629 F.3d 177 (3d Cir. 2010); U.S. v. Sharma, 703 F.3d
318 (5th Cir. 2012); U.S. v. Herrera, 928 F.2d 769 (6th Cir. 1991); U.S.
v. Rodriguez-Delma, 456 F.3d 1246 (10th Cir. 2006); U.S. v. Horsfall, 552
F.3d 1275 (11th Cir. 2008).
4 See, U.S. v. Newbert, 504 F.3d 180 (1st Cir. 2007); U.S. v. Griffin, 510
F.3d 354 (2d Cir. 2007) (abrogated on other grounds as recognized in U.S.
v. MacPherson, 590 F.3d 215 (2d Cir. 2009)); U.S. v. Wells, 211 F.3d 988
(6th Cir. 2000); U.S. v. O’Doherty, 643 F.3d 209 (7th Cir. 2011); U.S. v.
Nguyen, 608 F.3d 368 (8th Cir. 2010); U.S. v. Ellis, 641 F.3d 411 (9th Cir.
2011).
5 See State v. Naydihor, 258 Wis. 2d 746, 654 N.W.2d 479 (Wis. App.
2002).
6 See, State v. Nuss, 190 Neb. 755, 212 N.W.2d 565 (1973); Black’s Law
Dictionary 1322 (9th ed. 2009).

260 	285 NEBRASKA REPORTS
the prosecution’s failure to reserve the right to seek conditions
of probation created an ambiguity that should be construed
against the State.
Most important, the facts show that the prosecution did
not intend to reserve the right to recommend incarceration
as a condition of probation when Landera entered his plea.
Instead, the State had a change of heart after the court ordered
Landera’s sex offender evaluation. But that is exactly the kind
of government conduct that the Due Process Clause prohibits.
I believe that the majority opinion will raise serious consti-
tutional questions whether a defendant has voluntarily and
knowingly entered a plea of guilty, particularly if the court did
not advise the defendant that it could confine him or her to a
longer period in jail than what the defendant had agreed to in
a plea agreement.7
mccormack, J., joins in this concurrence.
7 See State v. Cutler, 121 Ariz. 328, 590 P.2d 444 (1979).
state of nebraska, appellee, v.
micHeal c. Wills, appellant.
826 N.W.2d 581
Filed February 22, 2013. 	Nos. S-11-1026, S-12-415.
1. Sentences: Appeal and Error. Whether a defendant is entitled to credit for time
served and in what amount are questions of law. An appellate court reviews ques-
tions of law independently of the lower court.
2. ____: ____. An appellate court will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial court.
3. Sentences. Credit for time served should be taken into account so that the effec-
tive sentence is within the statutory limits.
4. ____. With consecutive sentences, periods of presentence incarceration are cred-
ited against the aggregate of all terms imposed. With concurrent sentences,
such periods are credited against the longest sentence, but are, in effect, applied
against all the sentences.
5. Sentences: Probation and Parole: Appeal and Error. It is within the discretion
of the trial court whether to impose probation or incarceration, and an appel-
late court will uphold the court’s decision denying probation absent an abuse
of discretion.