State v. JippState v. Jipp
- Reporters:
- , ,
- Before:
- Krivosha
Lead Opinion
The defendant was charged with and pled guilty to, in the District Court for Douglas County, Nebraska, a violation of
Prior to entry and acceptance of the defendant’s guilty plea at his arraignment on May 13, 1982, the following exchange took place between the district judge and the defendant in the presence of counsel. “THE COURT: Do you further know and understand that the penalty for this charge is not less than one nor more than twenty years, or a $25,000 fine, or both such fine and imprisonment? THE DEFENDANT: Yes.” The error relates to that dialogue.
Prior to a 1980 amendment, dispensing of cocaine was a Class III felony; however, in 1980 cocaine was reclassified as an exceptionally hazardous drug and the penalty was increased to that of a Class II felony carrying limits of 1 year to 50 years’ imprisonment.
This case is controlled by State v. Rouse, 206 Neb. 371, 293 N.W.2d 83 (1980). In Rouse the defendant pled guilty to second degree murder. The court accepted the plea and sentenced him to a term of not more than 20 years. The assigned error in that case was “[tjhat his rights to due process and equal protection were violated when the trial court accepted his plea of guilty and entered judgment thereon without advising the defendant of the statutory minimum and maximum penalties for second degree murder . . . .” After an extensive review of the authorities, we said at 375, 293 N.W.2d at 86: “It should be noted that the constitutional requirement is that the plea be voluntary and intelligent and that the determination of that fact be reliably established. State v. Lewis, 192 Neb. 518, 222 N.W.2d 815 (1974). The criterion is whether or not the defendant understands the relevant factors involved in pleading guilty. We have stated that, before accepting such a plea, the judge is expected to sufficiently examine the defendant to determine whether he understands the nature of the charge, the possible penalty, and the effect of his plea.” We further said in Rouse at 375, 293 N.W.2d at 86: “ ‘The standards recommend that a defendant be allowed to withdraw his plea of guilty or nolo contendere upon timely motion if he proves that withdrawal is necessary to correct a manifest injustice. ... In the absence of proof by the defendant of such manifest injustice, the defendant should not be permitted to withdraw her plea,’ ” quoting State v. Lewis, 192 Neb. 518, 222 N.W.2d 815 (1974).
We find the above language from Rouse is pertinent to this case. The defendant does not allege that if he had not been so informed by the trial court, he would not have pled guilty. The allegation is of a technical failure of the trial court to comply with the minimum standards that we have adopted for the acceptance of guilty pleas. The defendant must allege and prove that such omission has resulted in prejudice to him, constituting a manifest injustice that would require this court to give him the opportunity to withdraw the plea. On the face of it in this case, the defendant was advised that the minimum penalty was 1 year. He was sentenced to 1 year. The effect of Rouse was to hold that if a defendant was sentenced within the term described by the trial court, prejudice is not
Affirmed.
Dissenting Opinion
dissenting.
I dissent for the reasons stated in my dissent in State v. Rouse, 206 Neb. 371, 293 N.W.2d 83 (1980).