State v. Dicken

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. DICKEN
Cite as 321 Neb. 301
State of Nebraska, appellee, v.
Michael M. Dicken, appellant.
___ N.W.3d ___
Filed May 1, 2026. 	No. S-25-467.
1. Judgments: Pleadings: Plea in Abatement: Appeal and Error.
Regarding questions of law presented by a motion to quash or plea in
abatement, an appellate court is obligated to reach a conclusion indepen-
dent of the determinations reached by the trial court.
2. Indictments and Informations. Whether an information is fatally
defective is a question of law.
3. Pleas: Waiver. The voluntary entry of a guilty plea or a plea of no con-
test waives every defense to a charge, whether the defense is procedural,
statutory, or constitutional.
4. Pleas: Waiver: Indictments and Informations: Effectiveness of
Counsel: Jurisdiction. The only exceptions to the rule that the volun-
tary entry of a guilty plea or a plea of no contest waives every defense
to a charge are for the defenses of insufficiency of the indictment,
information, or complaint; ineffective assistance of counsel; and lack
of jurisdiction.
5. Indictments and Informations. An information must inform the
accused with reasonable certainty of the crime charged so that the
accused may prepare a defense to the prosecution and, if convicted, be
able to plead the judgment of conviction on such charge as a bar to a
later prosecution for the same offense.
6. ____. An information must allege each statutorily essential element of
the crime charged, expressed in the words of the statute which prohibits
the conduct charged as a crime or in language equivalent to the statutory
terms defining the crime charged.
7. ____. Where an information alleges the commission of a crime using
language of the statute defining that crime or terms equivalent to such
statutory definition, the charge is sufficient.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:45 AM CDT

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STATE v. DICKEN
Cite as 321 Neb. 301
8. Indictments and Informations: Due Process. When the charging of
a crime in the language of the statute leaves the information insuffi-
cient to reasonably inform the defendant as to the nature of the crime
charged, additional averments must be included to meet the require-
ments of due process.
9. Indictments and Informations. An information is deemed sufficient
unless it is so defective that by no construction can it be said to charge
the offense of which the accused was convicted.
10. ____. A complaint or information is fatally defective only if its allega-
tions can be true and still not charge a crime.
11. ____. No information shall be deemed invalid for any defect or imper-
fection which does not prejudice the substantial rights of the defendant
upon the merits.
12. ____. When under a statute an offense may be committed by several
methods, the indictment or information may charge that it was commit-
ted by any or all such methods as are not inconsistent with, or repugnant
to, each other.
Appeal from the District Court for Douglas County: Molly
B. Keane, Judge. Affirmed.
Timothy 	J. Anderson, 	of 	Dornan, 	Howard, 	Breitkreutz,
Dahlquist & Klein, P.C., L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph
for appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Funke, C.J.
INTRODUCTION
Michael M. Dicken appeals his plea-based conviction and
sentence in the district court for Douglas County for burglary.
Dicken assigns that the district court erred in overruling his
motion to quash the information and in convicting and sen-
tencing him based on the information. Dicken argues that the
information did not properly charge the offense of burglary
because it specified stalking as the felony he intended to
commit, and he contends that stalking cannot be the felony

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321 Nebraska Reports
STATE v. DICKEN
Cite as 321 Neb. 301
to support the intent element of a charge of burglary under
Neb. Rev. Stat. § 28-507 (Reissue 2016). We conclude that the
information was sufficient to charge the offense of burglary
and that therefore, the district court did not err in overruling
Dicken’s motion to quash or in convicting and sentencing him
based on the information.
BACKGROUND
Information Filed Against Dicken
The State charged Dicken with burglary based on an inci-
dent in which Dicken allegedly broke into the home of a
woman with whom he had had a romantic relationship. In the
operative amended information, the State charged that on or
about August 5, 2024, Dicken did “willfully, maliciously, and
forcibly break and enter into a building located at [a specific
address] with intent to commit STALKING or with the intent
to steal property of any value in violation of . . . §28-507.”
Section 28-507 provides, in part, that “[a] person commits bur-
glary if such person willfully, maliciously, and forcibly breaks
and enters any real estate or any improvements erected thereon
with intent to commit any felony or with intent to steal prop-
erty of any value.”
Motion to Quash
Dicken filed a motion to quash the information. He argued
that the information failed to properly charge the offense of
burglary because it specified stalking as the felony that he
intended to commit. Dicken referred to the statutory defini-
tion of stalking in Neb. Rev. Stat. § 28-311.03 (Reissue 2016),
which provides that “[a]ny person who willfully harasses
another person or a family or household member of such
person with the intent to injure, terrify, threaten, or intimidate
commits the offense of stalking.” Dicken asserted two rea-
sons that stalking could not support a charge of burglary: (1)
because stalking is defined as a misdemeanor and becomes
a felony only by operation of enhancement and (2) because

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STATE v. DICKEN
Cite as 321 Neb. 301
stalking requires a course of conduct that cannot be achieved
in one instance of burglary.
Regarding his first argument, Dicken cited Neb. Rev. Stat.
§ 28-311.04 (Cum. Supp. 2024), which provides in subsec-
tion (1) that, except as provided in subsection (2), a person
convicted of stalking under § 28-311.03 “is guilty of a Class I
misdemeanor,” and provides in subsection (2) that the person is
“guilty of a Class IIIA felony” if one of a list of circumstances,
including that the person has a prior conviction for stalking,
is present. Dicken argued, without citation to any authority,
that stalking could not be used as the felony for the intent
element of burglary because stalking is a misdemeanor that
“only becomes a felony by operation of enhancement, and not
because the behavior is in and of itself a felony offense.”
Regarding his second argument, Dicken cited Neb. Rev.
Stat. § 28-311.02 (Reissue 2016), which in subsection (2)(a)
defines “[h]arass,” in part, as engaging “in a knowing and
willful course of conduct,” and in subsection (2)(b) defines
“[c]ourse of conduct,” in part, as “a pattern of conduct com-
posed of a series of acts over a period of time.” Dicken argued
that stalking could not be used as the felony for the intent
element of a charge of burglary because the course of conduct
or pattern of conduct required to establish stalking “cannot be
achieved in one instance” of burglary.
At a hearing on Dicken’s motion to quash, the State argued
that the amended information was sufficiently particular to
charge the offense of burglary and that to the extent stalking
required a course of conduct, the act of “breaking in was in
furtherance of that course of conduct and part thereof.” At the
hearing and in a brief filed after the hearing, Dicken made an
additional argument that using a second conviction for stalking
to support a conviction for burglary would violate double jeop-
ardy protections, but he does not repeat the argument in his
brief on appeal.
After the hearing, the district court entered an order rul-
ing on Dicken’s motion to quash. The court treated Dicken’s

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STATE v. DICKEN
Cite as 321 Neb. 301
arguments as a challenge to the constitutionality of § 28-507,
the statute defining the offense of burglary. The court stated
that it was not clear whether Dicken was making an as-applied
challenge or a facial challenge. But the court determined that
to the extent Dicken made an as-applied challenge, a motion
to quash could not be used to make an as-applied challenge.
The court further determined that to the extent Dicken made
a facial challenge to § 28-507, a facial challenge required
a showing that there was no valid application of the statute
and Dicken failed to show there was no valid application of
§ 28-507. The court stated that there were “circumstances . . .
under which [§ 28-507] would be valid” and that “the State
may prove burglary not only by proving . . . intent to commit
a felony but also by proving . . . intent to steal property of any
value.” Finding no merit to either an as-applied or a facial con-
stitutional challenge to § 28-507, the court overruled Dicken’s
motion to quash.
Plea Hearing, Conviction,
and Sentencing
After the district court overruled his motion to quash, Dicken
entered a plea of guilty to the burglary charge. As part of a plea
agreement, the State agreed not to charge Dicken as a habitual
criminal. At the plea hearing, the State provided the following
factual basis:
[O]n August 5th of 2024, at that time, the listed victim
. . . and [Dicken], were in an ongoing relationship as
boyfriend-girlfriend. [The victim], however, was trying
to end that relationship and [Dicken] didn’t want that to
occur. So[,] he had posted all of her personal information,
phone and address on a website falsely advertising sex
acts in the days leading up to August 5th, which resulted
in multiple calls and random visits from strange men to
her personal residence. [Dicken] came to her house at
the end of the — in the days leading up to August 5th,
and tried convincing her to let him in, and she wouldn’t

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STATE v. DICKEN
Cite as 321 Neb. 301
let him in, and he broke the window out. The follow-
ing day, also a few days before August 5th, he broke
into her house when she wasn’t there and ransacked the
entire place, damaging appliances, furniture and personal
belongings. [Dicken] then came back a third time before
August 5th broke in again and was caught while there. He
was taken to the hospital with an injury from breaking in,
and he gave a false name to police and was able to escape
the hospital before police realized the true identity. [The
victim] confirmed that [Dicken] was not — did not have
permission to be there and that he had forced his way
into her personal residence. All those events occurred in
Douglas County, Nebraska.
After the State provided the factual basis, the court asked
whether there was any objection to the factual basis, and
Dicken replied, “No objection.” The court then asked Dicken’s
counsel, “Do you believe the factual basis is sufficient to
support conviction of the charge to which the defendants [sic]
entering his plea of guilty,” and the court also asked counsel,
“Do you believe that your client’s plea of guilty is consistent
with the law and the facts, and in his best interest?” Dicken’s
counsel replied, “[y]es,” to both questions.
The district court thereafter found that Dicken made his
plea freely, intelligently, voluntarily, and understandingly
and that there was a factual basis to support Dicken’s plea.
The court accepted Dicken’s plea and found him guilty
of burglary.
At 	Dicken’s 	sentencing 	hearing, 	the 	State 	noted 	that
Dicken’s criminal history included two prior convictions, in
2018 and 2019, for misdemeanor stalking, as well as other
prior convictions, including a conviction for terroristic threats,
for which Dicken was on post-release supervision at the time
of the offense in this case. The district court sentenced Dicken
to a term of imprisonment for 51 months to 108 months,
ordered the sentence to be served consecutively to his sen-
tence in a separate case in which he had been convicted for

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STATE v. DICKEN
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violating post-release supervision, and gave Dicken credit for
time served against the aggregate sentence.
Dicken appeals his conviction and sentence for burglary.
ASSIGNMENTS OF ERROR
On appeal, Dicken claims that the district court erred in (1)
overruling his motion to quash and (2) finding him guilty of
burglary and sentencing him for the offense.
STANDARD OF REVIEW
[1,2] Regarding questions of law presented by a motion to
quash or plea in abatement, an appellate court is obligated to
reach a conclusion independent of the determinations reached
by the trial court. 1 Whether an information is fatally defective
is a question of law. 2
ANALYSIS
Motion to Quash and Sufficiency
of Information
Dicken assigns that the district court erred in overruling his
motion to quash. He argues that the information in this case
failed to properly allege a felony that he intended to commit
and that stalking cannot be used as the felony in the intent
element of a burglary charge because (1) stalking is a mis-
demeanor that becomes a felony only through enhancement
and (2) stalking requires a pattern or course of conduct that
cannot be achieved in a single instance of burglary. He also
argues that the district court erred by treating his challenge as
a constitutional challenge to § 28-507 and failing to address his
arguments regarding insufficiency of the information. Dicken
does not repeat the double jeopardy argument he made at the
hearing on the motion to quash. We agree that the district court
failed to specifically address Dicken’s arguments regarding the
1 State v. Zitterkopf, 317 Neb. 312, 9 N.W.3d 896 (2024).
2 State v. Davis, 310 Neb. 865, 969 N.W.2d 861 (2022).

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STATE v. DICKEN
Cite as 321 Neb. 301
alleged insufficiency of the information. However, we deter-
mine that Dicken’s arguments are without merit, and we con-
clude, based on different reasoning, that the district court did
not err in overruling Dicken’s motion to quash.
[3,4] Under Neb. Rev. Stat. § 29-1808 (Reissue 2016), a
motion to quash may be made where there is a defect apparent
upon the face of the record, including defects in the form of
the indictment or manner in which the offense is charged. The
voluntary entry of a guilty plea or a plea of no contest waives
every defense to a charge, whether the defense is procedural,
statutory, or constitutional. 3 The only exceptions are for the
defenses of insufficiency of the indictment, information, or
complaint; ineffective assistance of counsel; and lack of juris-
diction. 4 The arguments that Dicken made in his motion to
quash and that he repeats on appeal allege that the operative
information in this case was insufficient to charge him with
burglary. Dicken’s defense of insufficiency of the information
was not waived when he entered his guilty plea.
[5-7] We have set forth the following standards to deter-
mine whether an information is sufficient. An information
must inform the accused with reasonable certainty of the
crime charged so that the accused may prepare a defense
to the prosecution and, if convicted, be able to plead the
judgment of conviction on such charge as a bar to a later
prosecution for the same offense. 5 As such, an information
must allege each statutorily essential element of the crime
charged, expressed in the words of the statute which prohib-
its the conduct charged as a crime or in language equivalent
to the statutory terms defining the crime charged. 6 Where an
information alleges the commission of a crime using language
3 State v. Start, 239 Neb. 571, 477 N.W.2d 20 (1991).
4 Id.
5 State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020).
6 Id.

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STATE v. DICKEN
Cite as 321 Neb. 301
of the statute defining that crime or terms equivalent to such
statutory definition, the charge is sufficient. 7
[8-11] However, when the charging of a crime in the lan-
guage of the statute leaves the information insufficient to
reasonably inform the defendant as to the nature of the crime
charged, additional averments must be included to meet the
requirements of due process. 8 Nonetheless, an information is
deemed sufficient unless it is so defective that by no construc-
tion can it be said to charge the offense of which the accused
was convicted. 9 A complaint or information is fatally defective
only if its allegations can be true and still not charge a crime. 10
No information shall be deemed invalid for any defect or
imperfection which does not prejudice the substantial rights of
the defendant upon the merits. 11
[12] In the operative information in this case, the State
charged Dicken with burglary in violation of § 28-507, which
provides, in part, that “[a] person commits burglary if such
person willfully, maliciously, and forcibly breaks and enters
any real estate or any improvements erected thereon with
intent to commit any felony or with intent to steal property of
any value.” The information alleged that on or about August
5, 2024, Dicken did “willfully, maliciously, and forcibly break
and enter into a building located at [a specific address] with
intent to commit STALKING or with the intent to steal prop-
erty of any value.” The information generally used the lan-
guage of § 28-507, but, rather than alleging intent to commit
“any felony,” it alleged intent to commit stalking. The infor-
mation alleged in the alternative that Dicken had the intent to
steal property of any value. We have stated that “when under
a statute an offense may be committed by several methods,
7 Id.
8 Id.
9 State v. Brunzo, 262 Neb. 598, 634 N.W.2d 767 (2001).
10 State v. Theisen, supra note 5.
11 Id.

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STATE v. DICKEN
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the indictment or information may charge that it was commit-
ted by any or all such methods as are not inconsistent with, or
repugnant to, each other.” 12
We have further stated that when prosecuting a defendant
for burglary, “[u]nless the State limits its prosecution to
establishing that the defendant intended to steal property as
encompassed in [§ 28-507], the State must specify which fel-
ony or felonies it believes a defendant intended to commit.” 13
We reasoned that such specificity was required because “[t]he
federal Constitution guarantees criminal defendants a mean-
ingful opportunity to present a complete defense.” 14 We stated
that “[a]n information may sufficiently allege the statutory
elements of a criminal offense, yet fail to state with sufficient
particularity information about the alleged crime which is
vital to the preparation of a defense,” and we reasoned that
the failure “to specify the underlying felonies [in a burglary
charge] prejudiced [the defendant’s] right to notice and denied
[the defendant] a meaningful opportunity to present a com-
plete defense.” 15
In the operative information in this case, in place of the
“any felony” language of § 28-507, the information specified
stalking as the offense Dicken had the intent to commit. Under
Nebraska statutes, stalking may be a misdemeanor or a felony
depending on the circumstances. The offense of stalking is set
forth in § 28-311.03, and the classification of the offense of
stalking is set forth in § 28-311.04, which at the time of the
alleged offense in this case in August 2024 provided:
(1) Except as provided in subsection (2) of this section,
any person convicted of violating section 28-311.03 is
guilty of a Class I misdemeanor.
12 State v. Wilkinson, 293 Neb. 876, 887, 881 N.W.2d 850, 858 (2016)
(internal quotation marks omitted) (quoting State v. Bowen, 244 Neb. 204,
505 N.W.2d 682 (1993)).
13 State v. Nero, 281 Neb. 680, 688, 798 N.W.2d 597, 604 (2011).
14 Id.
15 Id. at 691, 798 N.W.2d at 606.

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(2) Any person convicted of violating section 28-311.03
is guilty of a Class IIIA felony if:
(a) The person has a prior conviction under such sec-
tion or a substantially conforming criminal violation
within the last seven years;
(b) The victim is under sixteen years of age;
(c) The person possessed a deadly weapon at any time
during the violation;
(d) 	The 	person 	was 	also 	in 	violation 	of 	section
28-311.09, 28-311.11, 42-924, or 42-925 . . . at any time
during the violation; or
(e) The person has been convicted of any felony in
this state or has been convicted of a crime in another
jurisdiction which, if committed in this state, would
constitute a felony and the victim or a family or house-
hold member of the victim was also the victim of such
previous felony.
The 	information 	in 	this 	case 	did 	not 	set 	forth 	the 	ele-
ments of stalking, nor did it specify a circumstance under
§ 28-311.04(2)(a) through (e) that made the stalking offense
a felony.
However, in State v. Brunzo, 16 we determined that when
setting forth the offense of felony murder under Neb. Rev.
Stat. § 28-303 (Reissue 1989), an information that simply
listed the underlying felony or felonies was sufficient and was
“a fair means of informing [the defendant] of what he would
have to defend against,” and we stated that it was “not nec-
essary for the elements of the underlying or predicate felony
to be set out in the information” when the defendant was not
charged with the underlying felony and instead the intent to
commit the underlying felony served as a substitute for the
intent to kill.
Similarly, the reference to stalking in place of the statu-
tory “any felony” language in this case was a fair means of
16 State v. Brunzo, supra note 9, 262 Neb. at 606, 634 N.W.2d at 773 (citing
similar holding in State v. Palmer, 257 Neb. 702, 600 N.W.2d 756 (1999)).

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informing Dicken of what he would have to defend against in
the burglary charge. Because stalking is an offense that can be
a felony, the reference to stalking in place of the “any felony”
language of § 28-507 indicated that the State was alleging
Dicken had the intent to commit stalking in a manner such
that the offense would be classified as a felony. Because the
information referred to § 28-507, used the language of that
statute defining the offense of burglary, specified a felony that
Dicken had the intent to commit, and, alternatively, alleged
that Dicken had the intent to steal property of any value, we
determine that the information reasonably informed Dicken of
what he would have to defend against and was sufficient to
charge Dicken with the offense of burglary.
Dicken argues, however, that using stalking as the felony he
intended to commit rendered the information insufficient. He
argues that stalking cannot be used as the felony in the intent
element of a charge of burglary because (1) stalking is a misde-
meanor that becomes a felony only through enhancement and
(2) stalking requires a course or pattern of conduct that cannot
be achieved in a single instance of burglary. Dicken does not
cite any authority for these arguments.
Regarding Dicken’s first argument, § 28-507 refers to the
intent to commit “any felony” as an element of burglary. The
broad reference to “any felony” does not limit the types of fel-
onies that can support the intent element of burglary. Relevant
to Dicken’s argument, we read “any felony” to include an
offense committed in such a manner that it is classified as a
felony under the relevant statutes. We do not read “any felony”
to exclude a felony simply because the offense would be clas-
sified as a misdemeanor under different circumstances. We see
no reason that intent to commit stalking in a manner that would
be a felony under the statutes defining and classifying stalking
offenses cannot be “intent to commit any felony” in a burglary
under § 28-507.
Regarding Dicken’s second argument, § 28-507 refers to
the “intent to commit any felony,” not to the commission

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of any felony. In defining the offense of burglary, § 28-507
focuses on a person’s intent when breaking and entering,
rather than completion of the intended felony after breaking
and entering. We see no reason that breaking and entering
with the intent to commit an act or acts that are part of a
pattern or course of conduct that constitutes felony stalking
would not be encompassed within the “intent to commit any
felony” under § 28-507.
Dicken’s arguments do not convince us that stalking cannot
be the felony in the intent element of a charge of burglary
under § 28-507. The issue presented by Dicken’s motion to
quash was whether the information filed against Dicken was
sufficient to set forth a charge of burglary so that Dicken
could prepare his defense to the charge, and we do not find the
information insufficient on the basis that it charged stalking as
the felony he intended to commit. To the extent Dicken argues
that the evidence does not show he had the intent to commit
felony stalking, the sufficiency of the State’s evidence to sup-
port a finding that he had the intent alleged in the information
was an issue that Dicken could have pursued in his defense
against the charge of burglary. But for purposes of the motion
to quash, Dicken’s arguments do not change our determina-
tion that the information in this case was sufficient to charge
Dicken with burglary.
Conviction and Sentence
Dicken also assigns that the district court erred in con-
victing and sentencing him for burglary. We reject this
assignment of error. Dicken entered a guilty plea, and he did
not object to the factual basis provided by the State at the
plea hearing when the court asked whether there was any
objection. On appeal, Dicken does not assign error to the
sufficiency of the factual basis, and we have indicated that a
defendant may be
treated as having waived an objection to the sufficiency
of the State’s factual basis where the record of a plea

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colloquy demonstrates that the trial court specifically
asked the defendant or his or her counsel whether the
factual basis provided by the State is sufficient to sup-
port the plea and the defendant failed to object to its
sufficiency upon inquiry by the court. 17
Instead, Dicken’s argument in support of this assignment of
error is limited to asserting that because the court should have
sustained his motion to quash the information, the court erred
in convicting and sentencing him based on an insufficient
information. Because we have determined that the information
was sufficient and that the district court did not err in overrul-
ing Dicken’s motion to quash the information, we further con-
clude that the court did not err in convicting and sentencing
Dicken based on that information.
CONCLUSION
The operative information in this case was sufficient to
charge 	Dicken 	with 	burglary 	under 	§ 	28-507. 	Therefore,
although our reasoning differs from that of the district court,
we conclude that the district court did not err in overruling
Dicken’s motion to quash the information or in convicting
and sentencing Dicken based on the information. We affirm
Dicken’s conviction and sentence.
Affirmed.
17 State v. Ettleman, 303 Neb. 581, 594, 930 N.W.2d 538, 547 (2019).