State v. Kirby, 25 Neb. Ct. App. 10

Ramon M. Kirby pled no contest to two Class I misdemeanors (criminal mischief causing $500–$1,500 loss; third-degree domestic assault) pursuant to an amended information and a plea colloquy in December 2014; a factual basis describing a violent assault and >$3,000 property damage was placed on the record.
Kirby initially expressed confusion about the plea terms, asserted earlier counsel had promised further charge reductions if he paid restitution quickly, but after conferring with his lawyer on the record he confirmed he understood the plea and asked the court to accept it.
Kirby failed to appear for his February 2015 sentencing; a warrant issued and he remained at large for over a year before arrest in April 2016.
Kirby filed a pre-sentencing motion to withdraw his pleas (filed April 2016); the district court denied the motion in June 2016, finding he understood the plea and had not shown a fair and just reason by clear and convincing evidence.
In August 2016 the court sentenced Kirby to concurrent 270-day terms (within statutory limits) and set an appeal bond at $250,000 (10% to be posted).
Kirby appealed, arguing the court abused its discretion by denying withdrawal of his pleas, imposing excessive sentences, and setting an unreasonable appeal bond.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Motion to withdraw plea	Kirby: plea not voluntary or understood because prior counsel promised further charge reductions tied to quick restitution payment	State/District Court: plea colloquy, factual basis, and on-record confirmation showed Kirby knowingly and voluntarily accepted the plea; delay and failure to appear undermined credibility	Denial affirmed — no abuse of discretion; Kirby failed to prove a fair and just reason by clear and convincing evidence
Excessive sentence	Kirby: court failed to give proper weight to mitigating factors and imposed excessive jail time	State: sentence within statutory limits and supported by offense seriousness, victim impact, risk to reoffend, and defendant's criminal history and conduct	Sentences affirmed — within statutory range and not an abuse of discretion
Appeal bond amount	Kirby: $250,000 appeal bond on two misdemeanors is excessive, effectively prevents suspension of sentence pending appeal	State: court permissibly considered factors (offense atrocity, failures to appear, criminal history, flight risk) and set bond to secure appearance	Bond affirmed — §29-2302 requires a reasonable bond; district court did not abuse discretion in view of Kirby’s history and conduct

State v. Carr, 294 Neb. 185, 881 N.W.2d 192 (newly discovered evidence can justify pre-sentencing plea withdrawal; standard explained)
State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (abuse-of-discretion standard)
State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (appellate review of sentence within statutory limits)
State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (sentencing factors and review)
State v. Payne-McCoy, 284 Neb. 302, 818 N.W.2d 608 (definition of clear and convincing evidence)
State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (withdrawal-of-plea analysis)
State v. Roeder, 262 Neb. 951, 636 N.W.2d 870 (withdrawal-of-plea analysis)
State v. Carlson, 260 Neb. 815, 619 N.W.2d 832 (limits on plea withdrawal where promises to withdraw were alleged)
State v. Schurman, 17 Neb. App. 431, 762 N.W.2d 337 (allowing withdrawal where defendant uninformed/mentally impaired)
State v. Meehan, 7 Neb. App. 639, 585 N.W.2d 459 (court may consider nonadjudicated misconduct at sentencing)
State v. Hernandez, 1 Neb. App. 830, 511 N.W.2d 535 (distinction between pretrial bonds and appeal bonds after conviction)
State v. Woodward, 210 Neb. 740, 316 N.W.2d 759 (postconviction bail is discretionary)
State v. Dawn, 246 Neb. 384, 519 N.W.2d 249 (upholding high appeal bond after failures to appear)
State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (district court discretion to modify appeal bond)
State v. Howard, 185 Neb. 583, 177 N.W.2d 566 (factors for reasonableness of bail)