953 N.W.2d 57
Neb. Ct. App.2020Background
- Defendant Jeremy J. Nollett was charged with first‑degree sexual assault of a child and incest; he pled no contest, per a plea agreement, to amended counts: third‑degree sexual assault of a child and attempted incest.
- Factual basis: victim A.V., a stepchild under 15, reported repeated early‑morning fondling and digital/penile penetration between Sept. 1 and Dec. 4, 2018; DNA testing did not exclude Nollett as a source of DNA from the sexual assault kit.
- Plea timeline: plea offer communicated in October 2019; DNA results discussed with counsel Jan. 5, 2020; plea accepted Jan. 6, 2020. Nollett later moved to withdraw his pleas, saying he felt pressured and acted under stress.
- District court denied the motion to withdraw, finding Nollett failed to show clear and convincing grounds (change of mind and stress insufficient) and that he had ample time to consider the plea.
- At sentencing the PSR referenced a polygraph indicating Nollett was untruthful about denying penile penetration; the court considered the PSR, a sexual‑offense risk assessment (moderate risk, defensive testing), and other factors and sentenced Nollett to consecutive terms of 2 years’ imprisonment plus 18 months’ postrelease supervision on each count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court abused discretion by denying motion to withdraw plea | State: plea was knowingly accepted, defendant had months to decide; no fair and just reason shown | Nollett: accepted under stress, pressured by plea deadline and DNA results, insufficient time to consider | Denied. No abuse of discretion; defendant failed to show clear and convincing grounds — change of mind insufficient |
| Whether court erred by considering polygraph at sentencing | State: PSR included polygraph, defendant had access and opportunity to address; sentencing evidence rules relaxed | Nollett: court relied on inadmissible polygraph results | No error. PSR info may be considered at sentencing; sentencing discretion broad |
| Whether court failed to consider mitigating factors | State: court reviewed PSR, risk assessment, defendant’s history and demeanor | Nollett: court did not adequately weigh mitigating evidence and treatment potential | No abuse. Court considered required factors and explained reasons for sentence |
| Whether court abused discretion by imposing incarceration instead of probation | State: offense seriousness, denial impedes treatment, public protection justify incarceration | Nollett: suitable for probation given limited criminal record and positive employment history | No abuse. Sentence within statutory limits and court reasonably declined probation |
Key Cases Cited
- State v. Ortega, 290 Neb. 172 (defines standard for withdrawing plea)
- State v. Archie, 305 Neb. 835 (standards and factors for reviewing sentence)
- State v. Havlat, 221 Neb. 845 (change of mind is insufficient to withdraw plea)
- U.S. v. Bastian, 603 F.3d 460 (same principle: mere regret/change of mind not fair and just reason)
- State v. Galindo, 278 Neb. 599 (role and importance of PSR in sentencing)
- State v. Hurd, 307 Neb. 393 (broad sentencing discretion and sources of information)
- State v. Pullens, 281 Neb. 828 (relaxed evidentiary rules at sentencing)
- State v. Castaneda, 287 Neb. 289 (polygraph generally inadmissible at trial; context noted)
- State v. Wills, 285 Neb. 260 (trial court’s discretion whether to impose probation)