State v. Williams

stAte of N ebrAskA, Appellee , v .
brAdley k. WilliAms , AppellANt .
757 N.W.2d 187
Filed October 31, 2008. 	No. S 07 1239.
1. Pleas: Appeal and Error. prior to sentencing, the withdrawal of a plea forming
the basis of a conviction is addressed to the discretion of the trial court, and its
ruling will not be disturbed on appeal absent an abuse of that discretion.
2. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentence complained of was an abuse of judi
cial discretion.
3. Pleas: Appeal and Error. a trial court is given discretion as to whether to accept
a guilty plea; an appellate court will overturn that decision only where there is an
abuse of discretion.
4. Pleas. after the entry of a plea of guilty or no contest, but before sentencing, a
court, in its discretion, may allow a defendant to withdraw his or her plea for any
fair and just reason, provided that the prosecution has not been or would not be
substantially prejudiced by its reliance on the plea entered.
5. Pleas: Proof. The burden is on the defendant to establish by clear and convincing
evidence the grounds for withdrawal of a plea.
6. Pleas: Appeal and Error. The right to withdraw a plea previously entered is not
absolute, and, in the absence of an abuse of discretion on the part of the trial
court, refusal to allow a defendant’s withdrawal of a plea will not be disturbed
on appeal.
7. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and (8)
the amount of violence involved in the commission of the crime.
appeal 	from 	the 	District 	Court 	for 	Douglas 	County,
J russell derr, Judge, on appeal thereto from the County
Court for Douglas County, J effrey mArcuzzo, Judge. Judgment
of District Court affirmed.
Daniel W. ryberg for appellant.
Jon bruning, attorney general, and James D. Smith for
appellee.
heAvicAN, 	c.J., 	W right , 	coNNolly , 	gerrArd , 	stephAN,
mccormAck , and miller -lermAN, JJ.
716 	276 NebraSka repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

W right , J.
NaTUre OF CaSe
In this appeal, bradley k. Williams claims the trial court
abused its discretion by refusing to permit him to withdraw
a plea of guilty after his participation in a domestic violence
intervention program was terminated. He was sentenced to 90
days in jail and challenges the sentence imposed by the Douglas
County Court as being excessive. The district court for Douglas
County affirmed both the conviction and the sentence.
SCOpe OF reVIeW
[1] prior to sentencing, the withdrawal of a plea forming the
basis of a conviction is addressed to the discretion of the trial
court, and its ruling will not be disturbed on appeal absent an
abuse of that discretion. State v. Schneider, 263 Neb. 318, 640
N.W.2d 8 (2002).
[2] Sentences within statutory limits will be disturbed by
an appellate court only if the sentence complained of was an
abuse of judicial discretion. State v. Carlson, 260 Neb. 815,
619 N.W.2d 832 (2000).
FaCTS
Williams was charged with domestic assault in the third
degree, criminal mischief, and disturbing the peace. These
charges arose from an altercation with his intimate partner,
b.C., on august 31, 2006. according to police reports, sheriff’s
deputies went to Williams’ residence in response to an anony
mous telephone call. Upon their arrival, they heard someone
screaming inside the house. When the deputies knocked on the
door, b.C. came out of the house with Williams following her.
b.C. stated that Williams had threatened to kill her, punched
and kicked her, and put a knife to her throat.
Williams appeared in court on October 13, 2006. because
he did not have a criminal record, he was eligible to participate
in a plea agreement offered to first offenders. Under the plea
agreement, Williams pled guilty to domestic assault in the third
degree and the State dismissed the remainder of the charges.
additionally, Williams agreed to participate in the “Men’s
Non Violence program,” an intervention program administered
STaTe v. WILLIaMS 	717
Cite as 276 Neb. 716

by the YWCa, and the State agreed to dismiss the remaining
domestic assault charge against Williams if he successfully
completed the program.
The trial court instructed Williams:
Finally, sir, you’ve been offered an opportunity to par
ticipate in a program where by [sic] if you plead guilty
to this charge, I will find you guilty and I will continue
sentencing to a future date. If you successfully complete
the program as outlined by [the deputy county attorney],
and that’s completing this batterers’ intervention program,
you’ll be allowed to come back in front of me, I’ll allow
you to withdraw your plea of guilty, the State will then
dismiss these charges. Do you understand that?
The court further advised Williams that if he did not success
fully complete the program, the court would impose a sen
tence. Williams agreed that he was pleading guilty because he
committed the offense and not just to take advantage of the
intervention program. The court continued the case to May 3,
2007, and told Williams that this court appearance would result
in either sentencing or his withdrawal of the plea and a dis
missal of the charge. Williams fully attended the program from
the time of his enrollment in November 2006 through March
19, 2007.
In 	approximately 	December 	2006, 	Williams 	was 	again
arrested and charged with third degree domestic assault against
b.C. The State requested a review hearing on March 15, 2007,
at which time it asked the trial court to sentence Williams. The
State noted that Williams “will not be eligible to attend that
batterer’s intervention program any longer since he has picked
up new charges and has not accepted accountability.” Williams
protested the acceleration of the sentencing in the original case
based on the new charges and filed a motion to withdraw his
guilty plea in the original case. The court denied his motion
and continued the case for further review, and potentially
for sentencing, until april 19, after the jury trial on the new
charges. a jury ultimately found Williams not guilty of the
new charges.
On March 19, 2007, the YWCa refused to let Williams
continue to participate in the program. In a letter, it noted the
718 	276 NebraSka repOrTS

reasons for his termination were that “the program has been
notified of a report of abuse or threat of abuse by you” and that
“the program has been notified [of] your use of threats, intimi
dation, or violence.”
at the april 19, 2007, hearing, Williams’ counsel informed
the trial court of Williams’ termination from the program.
Counsel objected to this action because Williams had been
found not guilty of the new charges of violence. The deputy
county attorney stated that “[Williams] wasn’t terminated from
batterer’s intervention because of another charge, or he was
found not guilty of a charge, or that he was kicked out because
his conduct is not suitable for the program.” The court denied
Williams’ request for a presentence investigation, but con
tinued sentencing until May 3 to give defense counsel time
to prepare.
On May 3, 2007, Williams submitted a second motion to
withdraw his guilty plea. In support of this motion, counsel
offered a letter written by counsel to the trial court. The let
ter stated that Williams entered the plea agreement in good
faith; however, counsel believed the prosecutor did not act in
good faith in connection with Williams’ termination from the
program. The letter noted the court’s statement that it intended
to sentence Williams considering only the underlying events
to which Williams pled guilty and presented Williams’ version
of the facts. The letter concluded with a request that the court
give Williams credit for the classes he had attended and permit
him to complete a period of probation. Williams did not offer
any evidence challenging the propriety of his termination from
the program.
The State offered Williams’ status report from the program,
noting that the program administrator had the sole discretion to
terminate a participant from the program. because the admin
istrator terminated Williams from the program, he was unable
to complete the only condition of the plea agreement. The trial
court sentenced Williams to 90 days in the Douglas County
Correctional Center.
Williams appealed to the district court for Douglas County.
The district court affirmed the trial court’s order and con
cluded that the plea agreement requiring Williams to attend the
STaTe v. WILLIaMS 	719
Cite as 276 Neb. 716

program was not a pretrial diversion program as contemplated
by Neb. rev. Stat. § 29 3601 et seq. (Cum. Supp. 2006) and
was therefore not subject to the statutes. The district court also
found that the sentence was not excessive and that the trial
court did not abuse its discretion in denying Williams’ motions
to withdraw his plea. Williams appeals.
aSSIgNMeNTS OF errOr
Williams assigns, consolidated and restated, that the district
court erred in (1) ruling that the trial court did not abuse its
discretion in accepting Williams’ plea, (2) finding that the trial
court did not err in denying Williams’ motions to withdraw his
plea, and (3) finding that the trial court’s sentence of 90 days’
incarceration was not excessive.
aNaLYSIS
The issues are whether the trial court abused its discretion in
accepting Williams’ plea, denying Williams’ motions to with
draw his guilty plea after his termination from the intervention
program, and sentencing him to 90 days’ incarceration.
triAl court A cceptANce of pleA
[3] a trial court is given discretion as to whether to accept a
guilty plea; an appellate court will overturn that decision only
where there is an abuse of discretion. State v. Lassek, 272 Neb.
523, 723 N.W.2d 320 (2006). To support a finding that a plea
of guilty has been entered freely, intelligently, voluntarily, and
understandingly, a court must inform the defendant concerning
(1) the nature of the charge, (2) the right to assistance of coun
sel, (3) the right to confront witnesses against the defendant,
(4) the right to a jury trial, and (5) the privilege against self
incrimination. Id.
Williams and the Douglas County attorney entered into a
plea agreement under which Williams agreed to plead guilty
to third degree domestic assault and the prosecutor agreed to
dismiss the remaining charges. If, at the time of sentencing,
Williams had completed the program, the prosecutor agreed to
dismiss the third degree domestic assault charge as well. The
trial court advised Williams of his constitutional rights and the
alternative outcomes he could expect at sentencing. The court
720 	276 NebraSka repOrTS

found that Williams entered his plea knowingly, voluntarily,
intelligently, and understandingly, and accepted his guilty plea.
There is no evidence that the court participated beyond what
was necessary to inform Williams of his rights.
The plea agreement entered into by the Douglas County
attorney and Williams was a valid plea agreement. The condi
tion requiring Williams to participate in the program was not
part of a pretrial diversion program. as such, the statutes regu
lating pretrial diversion, § 29 3601 et seq., are not applicable.
We find that the trial court properly accepted Williams’ plea.
motioNs to WithdrAW pleA
[4 6] after the entry of a plea of guilty or no contest, but
before sentencing, a court, in its discretion, may allow a defend
ant to withdraw his or her plea for any fair and just reason,
provided that the prosecution has not been or would not be
substantially prejudiced by its reliance on the plea entered.
State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002). The
burden is on the defendant to establish by clear and convincing
evidence the grounds for withdrawal of a plea. State v. Carlson,
260 Neb. 815, 619 N.W.2d 832 (2000). The right to withdraw
a plea previously entered is not absolute, and, in the absence
of an abuse of discretion on the part of the trial court, refusal
to allow a defendant’s withdrawal of a plea will not be dis
turbed on appeal. State v. Minshall, 227 Neb. 210, 416 N.W.2d
585 (1987).
In State v. Carlson, supra, this court determined that the
defendant, who was charged with murder, did not establish a
fair and just reason to withdraw his plea of no contest based
on the trial court’s acceptance of his plea or based on alleged
erroneous advice of his counsel. The defendant claimed that
his attorney had promised him he would be able to withdraw
his plea and that he believed he would be able to withdraw
his plea. before accepting the defendant’s plea, the trial court
asked numerous questions to determine whether the defendant
entered his plea of no contest freely, intelligently, voluntarily,
and understandingly. While the trial court did not specifically
ask the defendant whether his plea was induced by any prom
ises, it did ultimately find that “‘no promises or threat’” had
STaTe v. WILLIaMS 	721
Cite as 276 Neb. 716

been made to the defendant prior to his entering the plea. Id.
at 823, 619 N.W.2d at 838. based on these findings, this court
concluded that the defendant had not presented by clear and
convincing evidence a “fair and just reason” to withdraw his
plea such that the trial court abused its discretion. Id. at 824,
619 N.W.2d at 838.
Similarly, in State v. Schneider, supra, this court held that the
trial court did not abuse its discretion when it did not allow the
defendant to withdraw his plea of no contest after he learned he
would be required to register as a sex offender. When accept
ing the defendant’s plea of no contest as part of a plea agree
ment, the trial court informed him of the possible penalties and
of the constitutional rights he would give up by entering the
plea, but did not tell him he would be required to register as
a sex offender. at sentencing, the defendant made a motion to
withdraw his plea because he was not aware of the registration
requirements. This court determined that the trial court was not
required to inform the defendant of the sex offender registra
tion requirements and did not abuse its discretion in denying
the defendant’s motion to withdraw his plea.
In the case at bar, Williams pled guilty pursuant to a plea
agreement that required him to complete the intervention pro
gram. If Williams completed the program, the trial court would
allow him to withdraw his guilty plea and the county attorney
would dismiss the charge. If he failed to finish the program,
however, the court would sentence him accordingly. after com
pleting approximately half of the required classes, Williams
was terminated from the program. pursuant to the plea agree
ment, the court sentenced him on May 3, 2007.
at sentencing, the Douglas County attorney offered Williams’
termination notice from the program as evidence of his failure
to complete the condition of the plea agreement. Williams’
evidence was a letter from his attorney to the trial court that
claimed the prosecutor had not acted in good faith in connec
tion with Williams’ termination from the program. He did not
offer any evidence to show he was improperly terminated from
the program. Considering the evidence in the record, we con
clude that the trial court did not abuse its discretion in denying
Williams’ motions to withdraw his plea.
722 	276 NebraSka repOrTS

excessive seNteNce
[7] Sentences within statutory limits will be disturbed by
an appellate court only if the sentence complained of was
an abuse of judicial discretion. State v. Carlson, 260 Neb.
815, 619 N.W.2d 832 (2000). When imposing a sentence, a
sentencing judge should consider the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law abiding
conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense, and (8) the amount of violence involved
in the commission of the crime. State v. Thurman, 273 Neb.
518, 730 N.W.2d 805 (2007). presentence reports are required
only for defendants convicted of felonies. Neb. rev. Stat.
§ 29 2261 (Cum. Supp. 2006).
Williams 	pled 	guilty 	to 	domestic 	assault 	in 	the 	third
degree, which is a Class I misdemeanor under Neb. rev. Stat.
§ 28 323(4) (Cum. Supp. 2006). Class I misdemeanors are
punishable by up to 1 year’s imprisonment, a $1,000 fine, or
both. Neb. rev. Stat. § 28 106 (Cum. Supp. 2006). The trial
court sentenced Williams to 90 days’ incarceration, which is
well within the statutory limits. We find that this sentence is
not excessive and that the court did not abuse its discretion.
CONCLUSION
For the reasons set forth herein, we affirm the judgment of
the district court.
A ffirmed .
STaTe v. WILLIaMS 	723
Cite as 276 Neb. 716