State v. Nunez
A-16-364
| Neb. Ct. App. | Oct 4, 2016Background
- Eric G. Nunez pleaded guilty to two counts of attempted first-degree sexual assault (Counts 1 and 5) pursuant to a plea agreement; three other sexual-assault counts were dismissed.
- Allegations: Nunez, cousins with victims M.M. and N.M., committed penile and digital penetration and unwanted touching at the trailer where he lived between 2009–2014 (M.M.) and July 2009–July 29, 2010 (N.M.).
- At the plea hearing the State recited a factual basis and Nunez acknowledged the touching in a post-Miranda statement; defense counsel had nothing to add.
- Sentencing: Court imposed concurrent 12–15 year terms on both counts, orally awarded 597 days credit for time served; the written order granted 597 days credit against Count 1 only.
- Nunez appealed, arguing (1) the factual basis was insufficient because it did not explicitly show lack of consent, and (2) the court erred by applying time-served credit only to Count 1.
Issues
| Issue | Nunez's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of factual basis for guilty pleas to attempted 1st-degree sexual assault | Factual basis failed to show an element (that penetration was without victims' consent) | Claim waived by guilty plea or judicial estoppel from challenging the plea | Court: Plea not waived for this claim; presentence report + statements establish lack of consent and substantial step—factual basis sufficient |
| Application of 597 days credit for time served | Error: written order applied credit only to Count 1 despite oral award | Oral pronouncement controls; credit applied once for concurrent sentences so form of order is immaterial | Court: No error—oral sentence governing; credit applied once and effectively applies to both concurrent sentences |
Key Cases Cited
- State v. Cervantes, 15 Neb. App. 457 (discusses factual-basis methods for guilty pleas)
- State v. Burkhardt, 258 Neb. 1050 (guilty plea waives all defenses except voluntariness and ineffective assistance)
- State v. Wilkinson, 293 Neb. 876 (sufficient factual basis is required for an understanding, voluntary plea)
- State v. Babbit, 277 Neb. 327 (defines criminal attempt as substantial step toward commission)
- State v. Bree, 285 Neb. 520 (presentence credit for time served is a question of law reviewed de novo)
- State v. Custer, 292 Neb. 88 (oral pronouncement controls over conflicting written judgments)
- State v. Banes, 268 Neb. 805 (when sentences are concurrent, presentence credit is applied once and is in effect applied to each concurrent sentence)