State v. Cooke , 311 Neb. 511 ( 2022 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    05/20/2022 09:06 AM CDT
    - 511 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. COOKE
    Cite as 
    311 Neb. 511
    State of Nebraska, appellee, v.
    Alisia C. Cooke, appellant.
    ___ N.W.2d ___
    Filed May 6, 2022.     No. S-21-320.
    1. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant
    has not preserved a claim of prosecutorial misconduct for direct appeal,
    an appellate court will review the record only for plain error.
    2. Appeal and Error. An appellate court may find plain error on appeal
    when an error unasserted or uncomplained of at trial, but plainly evident
    from the record, prejudicially affects a litigant’s substantial right and,
    if uncorrected, would result in damage to the integrity, reputation, and
    fairness of the judicial process.
    3. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
    court, an appellate court will not disturb a sentence imposed within the
    statutory limits.
    4. Judges: Words and Phrases. A judicial abuse of discretion exists
    only when the reasons or rulings of a trial judge are clearly untenable,
    unfairly depriving a litigant of a substantial right and denying just
    results in matters submitted for disposition.
    5. Appeal and Error. An appellate court may find plain error on appeal
    when an error unasserted or uncomplained of at trial, but plainly evident
    from the record, prejudicially affects a litigant’s substantial right and,
    if uncorrected, would result in damage to the integrity, reputation, and
    fairness of the judicial process.
    6. ____. An appellate court will find plain error only when a miscarriage of
    justice would otherwise occur.
    7. Trial: Prosecuting Attorneys. Prosecutors are charged with the duty to
    conduct criminal trials in a manner that provides the accused with a fair
    and impartial trial.
    8. Prosecuting Attorneys: Words and Phrases. Because prosecutors are
    held to a high standard for a wide range of duties, the term “prosecuto-
    rial misconduct” cannot be neatly defined.
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. COOKE
    Cite as 
    311 Neb. 511
    9. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial mis-
    conduct encompasses conduct that violates legal or ethical standards for
    various contexts because the conduct will or may undermine a defend­
    ant’s right to a fair trial.
    10. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial
    misconduct based on prosecutorial remarks, a court first determines
    whether the prosecutor’s remarks were improper. Next, a reviewing
    court must determine the extent to which the improper remarks had a
    prejudicial effect on the defendant’s right to a fair trial.
    11. Sentences. The first step in analyzing whether a sentence is excessive is
    to examine the statutory limits on the penalties for such an offense.
    12. ____. If a sentence is within statutory limits, the second step is to deter-
    mine whether the sentencing court abused its discretion in considering
    well-established factors and any applicable legal principles.
    13. ____. 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, (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. The sentencing court is not limited to any
    mathematically applied set of factors, but the appropriateness of the sen-
    tence is necessarily a subjective judgment that includes the sentencing
    judge’s observations of the defendant’s demeanor and attitude and all the
    facts and circumstances surrounding the defendant’s life.
    14. Courts: Plea Bargains. In Nebraska, a court is not bound by the plea
    agreement made between a defendant and the government.
    Appeal from the District Court for Sarpy County: Stefanie
    A. Martinez, Judge. Affirmed.
    April L. O’Loughlin, Deputy Sarpy County Public Defender,
    for appellant.
    Douglas J. Peterson, Attorney General, and Matthew Lewis
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    - 513 -
    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. COOKE
    Cite as 
    311 Neb. 511
    Miller-Lerman, J.
    NATURE OF CASE
    The appellant, Alisia C. Cooke, pled guilty to second degree
    murder in the district court for Sarpy County. Although she had
    reached a plea agreement under which the State would “make a
    recommendation of a sentence of 20 years,” she was ultimately
    sentenced to a period of incarceration of no less than 60 years
    and no more than life. This is Cooke’s direct appeal. Cooke
    argues that the State engaged in prosecutorial misconduct
    by failing to make a sentencing recommendation consistent
    with the plea agreement. She further claims that the sentence
    imposed is excessive. We affirm.
    STATEMENT OF FACTS
    On March 15, 2019, Cooke entered a plea of guilty to one
    count of second degree murder, a Class IB felony, arising
    from the killing of Brent Quigley. Quigley was stabbed dur-
    ing a home robbery in 2018, and Cooke was among several
    defendants charged in the district court for Sarpy County in
    connection with Quigley’s death. Cooke agreed to cooperate
    fully with the State and provided deposition and trial testimony
    against two codefendants, who were ultimately convicted of
    second degree murder and first degree murder. In return for
    her truthful testimony and plea, in a written plea agreement,
    the State agreed to advise the court of the nature and extent
    of Cooke’s cooperation and to make a recommendation of “a
    sentence of 20 years in imprisonment.”
    A presentence investigation report was prepared for the
    court. The district court held a sentencing hearing on March
    25, 2021, with the parties appearing via videoconferencing.
    Counsel for Cooke addressed the court and requested that
    the trial court should “follow the plea agreement in this mat-
    ter and the State’s sentencing recommendation of 20 years
    with a maximum sentence of ten years,” minus credit for
    time served.
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. COOKE
    Cite as 
    311 Neb. 511
    The prosecutor disagreed with Cooke’s characterization of
    the plea agreement. Because the prosecutor’s representations
    to the court are material to Cooke’s claims on appeal, sev-
    eral of the prosecutor’s remarks regarding sentencing are set
    forth below:
    The State does appreciate that she assisted in the pros-
    ecution of the codefendants, . . . but that doesn’t excuse
    her behavior by any means.
    Judge, I’d also note — I do have a copy of the plea
    agreement, which I believe is Exhibit 2, and I’m sure
    the Court has reviewed that previously, because I don’t
    agree with [Cooke’s counsel’s] characterization of the
    plea agreement, Judge. She said that it’s 20 years max
    and I don’t agree that that’s the language. I realize that
    maybe the language could have been clearer between the
    parties, but that is what the agreement is. And I can read
    it for the Court. It says [Cooke] shall also enter a plea of
    guilty to an amended charge of second-degree murder,
    Class 1B felony, punishable by a minimum of 20 years
    imprisonment and a maximum of imprisonment for life.
    In return for her truthful testimony, the State agrees at
    time of sentencing to advise Judge Martinez of the nature
    and extent of [Cooke’s] cooperation and to make a rec-
    ommendation of a sentence of 20 years imprisonment;
    however, Judge Martinez does not have to abide by the
    20-year recommendation.
    Judge, the State’s going to stand by that recommen-
    dation because that’s what the language is; however, I
    don’t believe that’s the same as saying that that’s what
    — that that’s what maximum is. The State is going to
    stand by that 20-year recommendation as outlined in the
    plea agreement.
    Counsel for Cooke responded that it
    sounds back ended like maybe the State isn’t standing
    by that sentencing recommendation. But anticipating that
    that language in the plea agreement might potentially
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. COOKE
    Cite as 
    311 Neb. 511
    become an issue, on February 27, 2019, I sent an email
    to [the prosecutor] prior to discussing this plea agree-
    ment with my client and prior to her entering that into
    the Court.
    Cooke offered as evidence a February 27, 2019, email
    from the State’s prosecutor to her counsel, which email states
    that “[t]he sentence would be 20 years imprisonment which
    is in cut [sic] in half so it would be 10 years imprisonment.
    Thanks for clarifying.” At the sentencing hearing, the pros-
    ecutor stated that the February 27 email “is not part of the
    plea agreement.”
    Counsel for Cooke made no objections to the remarks made
    by the prosecutor at the sentencing hearing.
    The district court rejected the 20-year recommendation of
    the plea agreement. It stated that “the sentence that the State
    has recommended in the plea agreement would depreciate
    the seriousness of this crime and would promote disrespect
    for the law. For those reasons, the Court is not going to go
    along with that recommendation.” The district court sen-
    tenced Cooke to a period of incarceration of no less than 60
    years and no more than life. Cooke received credit for 1,017
    days already served.
    Cooke is represented in this appeal by her trial counsel.
    ASSIGNMENTS OF ERROR
    Cooke assigns, summarized and restated, that the State
    engaged in prosecutorial misconduct by breaching the plea
    agreement. She further claims that the district court erred when
    it imposed an excessive sentence.
    STANDARDS OF REVIEW
    [1,2] When a defendant has not preserved a claim of pros-
    ecutorial misconduct for direct appeal, we will review the
    record only for plain error. State v. Kipple, 
    310 Neb. 654
    ,
    
    968 N.W.2d 613
     (2022). An appellate court may find plain
    error on appeal when an error unasserted or uncomplained
    of at trial, but plainly evident from the record, prejudicially
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. COOKE
    Cite as 
    311 Neb. 511
    affects a litigant’s substantial right and, if uncorrected, would
    result in damage to the integrity, reputation, and fairness of the
    judicial process. 
    Id.
    [3,4] Absent an abuse of discretion by the trial court, an
    appellate court will not disturb a sentence imposed within the
    statutory limits. State v. Grant, 
    310 Neb. 700
    , 
    968 N.W.2d 837
    (2022). A judicial abuse of discretion exists only when the rea-
    sons or rulings of a trial judge are clearly untenable, unfairly
    depriving a litigant of a substantial right and denying just
    results in matters submitted for disposition. 
    Id.
    ANALYSIS
    In this direct appeal, Cooke claims that the State committed
    prosecutorial misconduct by breaching the parties’ plea agree-
    ment with respect to the recommended sentence. In the alter-
    native, she claims that the district court imposed an excessive
    sentence and abused its discretion.
    Prosecutorial Misconduct.
    Cooke assigns that the prosecutor engaged in misconduct
    with respect to the sentencing recommendations embodied in
    the parties’ plea agreement. Cooke has maintained through-
    out the trial court proceedings and in this appeal that the plea
    agreement between the parties obligated the State to recom-
    mend a sentence of 20 years’ imprisonment with a maximum
    sentence of 10 years’ imprisonment.
    As an initial matter concerning our review, we note that
    Cooke did not object to the prosecutor’s remarks at the sen-
    tencing hearing. She did not seek to withdraw the plea or seek
    specific performance of the plea agreement by way of sentenc-
    ing before a different judge. See State v. Iddings, 
    304 Neb. 759
    ,
    
    936 N.W.2d 747
     (2020). When a defendant has not preserved
    a claim of prosecutorial misconduct for direct appeal, we will
    review the record only for plain error. State v. Dubray, 
    289 Neb. 208
    , 
    854 N.W.2d 584
     (2014). Thus, we review Cooke’s
    assertion of prosecutorial misconduct based on the prosecutor’s
    remarks at sentencing for plain error.
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. COOKE
    Cite as 
    311 Neb. 511
    [5,6] An appellate court may find plain error on appeal when
    an error unasserted or uncomplained of at trial, but plainly
    evident from the record, prejudicially affects a litigant’s sub-
    stantial right and, if uncorrected, would result in damage to the
    integrity, reputation, and fairness of the judicial process. 
    Id.
    Generally, we will find plain error only when a miscarriage of
    justice would otherwise occur. 
    Id.
     “‘[T]he plain-error excep-
    tion to the contemporaneous-objection rule is to be “used spar-
    ingly, solely in those circumstances in which a miscarriage of
    justice would otherwise result.”’” State v. Barfield, 
    272 Neb. 502
    , 511, 
    723 N.W.2d 303
    , 312 (2006) (quoting United States
    v. Young, 
    470 U.S. 1
    , 
    105 S. Ct. 1038
    , 
    84 L. Ed. 2d 1
     (1985)),
    disapproved on other grounds, State v. McCulloch, 
    274 Neb. 636
    , 
    742 N.W.2d 727
     (2007).
    [7-9] Prosecutors are charged with the duty to conduct
    criminal trials in a manner that provides the accused with a
    fair and impartial trial. State v. Dubray, supra. Because pros-
    ecutors are held to a high standard for a wide range of duties,
    the term “prosecutorial misconduct” cannot be neatly defined.
    Id. Generally, prosecutorial misconduct encompasses conduct
    that violates legal or ethical standards for various contexts
    because the conduct will or may undermine a defendant’s
    right to a fair trial. State v. Kipple, 
    310 Neb. 654
    , 
    968 N.W.2d 613
     (2022).
    [10] In assessing allegations of prosecutorial miscon-
    duct based on prosecutorial remarks, a court first determines
    whether the prosecutor’s remarks were improper. See 
    id.
     Next,
    a reviewing court must determine the extent to which the
    improper remarks had a prejudicial effect on the defendant’s
    right to a fair trial. See 
    id.
    Turning to the case before us, Cooke maintains that the
    statements by the prosecutor concerning the sentence “effec-
    tively undermine[d] the promised recommendation” and vio-
    lated the plea agreement. See State v. Landera, 
    285 Neb. 243
    , 257, 
    826 N.W.2d 570
    , 578 (2013). Specifically, Cooke
    points to the following statement by the prosecutor: “I don’t
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. COOKE
    Cite as 
    311 Neb. 511
    agree with [Cooke’s counsel’s] characterization of the plea
    agreement, Judge. She said that it’s 20 years max and I don’t
    agree that that’s the language.” Cooke further takes issue with
    the prosecutor’s argument made to the district court to the
    effect that the emails between counsel concerning the sentenc-
    ing recommendation were not part of the agreement.
    Upon our close review of the record, we find that the
    prosecutor did not violate the plea agreement, and thus, his
    remarks regarding the plea agreement were not improper. At
    the sentencing hearing, Cooke’s counsel asked the court to fol-
    low the “sentencing recommendation of 20 years with a maxi-
    mum sentence of ten years.” Replying to this assertion, the
    prosecutor observed that the plea agreement did not promise
    a 10-year maximum sentence, even though he acknowledged
    that application of good time provisions could reduce the sen-
    tence actually served. In that regard, we note that 
    Neb. Rev. Stat. § 28-105
    (1) (Reissue 2016) sets a minimum sentence
    of 20 years’ imprisonment for the Class IB felony of which
    Cooke stood convicted. Further, at the initial sentencing, the
    State and the sentencing court are not authorized to determine
    or apply good time to the sentence of a prisoner, even if they
    are familiar with how it might be applied. See 
    Neb. Rev. Stat. § 83-1
    ,110(1) (Reissue 2014).
    The record and the terms and conditions actually agreed to
    by the parties show that the State adhered to its written promise
    to recommend “a sentence of 20 years.” Cooke contends that
    the emails between the parties expanded the terms of the agree-
    ment such that the recommendation would be “20 years with a
    maximum sentence of ten years” or sometimes phrased as “20
    years with a release date of 10 years.” Neither formulation is
    supported by the record or applicable law.
    At the sentencing hearing the prosecutor stated: “The State
    is going to stand by that 20-year recommendation as outlined
    in the plea agreement.” The prosecutor continued that he had
    not characterized the 20 years as a maximum. The prosecu-
    tor’s purported agreement to expand the plea agreement to
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. COOKE
    Cite as 
    311 Neb. 511
    promise either a 10-year maximum sentence of imprisonment
    or a 10-year release date were not within the State’s power,
    and the prosecutor’s remarks which recognized these limita-
    tions were not improper. A sentencing recommendation need
    not be enthusiastic to fulfill a promise made in a plea agree-
    ment. State v. Landera, supra. See United States v. Benchimol,
    
    471 U.S. 453
    , 
    105 S. Ct. 2103
    , 
    85 L. Ed. 2d 462
     (1985).
    Because we determine that the prosecutor’s remarks regard-
    ing sentencing did not breach the plea agreement and were
    not improper, we need not reach the second part of the pros-
    ecutorial misconduct analysis regarding whether a substantial
    right was affected. We find no plain error with respect to this
    assignment of error.
    Excessive Sentence.
    Cooke claims that the district court imposed an excessive
    sentence. Specifically, she contends that the district court failed
    to give proper weight to her age, health and social history, and
    criminal record. Cooke has suffered from cystic fibrosis and a
    brain tumor, which in the past, resulted in her loss of speech,
    mobility, and sight for a period of time. She was the victim of
    sexual assault, and she had a turbulent family history of drug
    addiction, prostitution, and poverty. Cooke also notes that at
    the time of sentencing, she had participated in rehabilitation
    programs and achieved 21⁄2 years of sobriety.
    [11,12] The first step in analyzing whether a sentence is
    excessive is to examine the statutory limits on the penal-
    ties for such an offense. State v. Grant, 
    310 Neb. 700
    , 
    968 N.W.2d 837
     (2022). Cooke was convicted of second degree
    murder, a Class IB felony. See 
    Neb. Rev. Stat. § 28-304
    (2)
    (Reissue 2016). Section 28-105(1) sets a minimum sentence
    of 20 years’ imprisonment and a maximum sentence of life
    imprisonment for a Class IB felony. Cooke’s sentence of a
    period of incarceration of no more than 60 years and no more
    than life does not exceed the statutory limits. If a sentence
    is within statutory limits, the second step is to determine
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    STATE v. COOKE
    Cite as 
    311 Neb. 511
    whether the sentencing court abused its discretion in consid­
    ering well-established factors and any applicable legal prin-
    ciples. See State v. Blake, 
    310 Neb. 769
    , 
    969 N.W.2d 399
    (2022). A judicial abuse of discretion exists when a trial
    court’s decision is based upon reasons that are untenable or
    unreasonable or if its action is clearly against justice or con-
    science, reason, and evidence. See 
    id.
    [13] 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, (6) motiva-
    tion 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. 
    Id.
     The sentencing court is not limited to any math-
    ematically applied set of factors, but the appropriateness of the
    sentence is necessarily a subjective judgment that includes the
    sentencing judge’s observations of the defendant’s demeanor
    and attitude and all the facts and circumstances surrounding the
    defendant’s life. 
    Id.
    In sentencing Cooke, the district court considered her age,
    mentality, education and experience, social and cultural back-
    ground, past criminal record or record of law-abiding conduct,
    and motivation for the offense, as well as the nature of the
    offense and the amount of violence involved in the commis-
    sion of the crime. It noted her eventual cooperation in the case.
    Although the court acknowledged Cooke’s personal and medi-
    cal history as mitigating circumstances, it addressed Cooke
    regarding her role in the murder:
    Quigley would most likely be alive and enjoying his life
    today with his family and friends had it not been for
    you . . . because ultimately, you were the one that set
    this in motion. You were the one that chose the target,
    . . . Quigley; you set up the meeting; you allowed [the
    codefend­ants] into the home and then finally you pre-
    vented his escape . . . .
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    STATE v. COOKE
    Cite as 
    311 Neb. 511
    The record includes the presentence investigation report.
    The record shows that the court reviewed the entire report,
    which contains the information necessary to weigh the sentenc-
    ing factors. Cooke was in the medium-risk range for criminal
    history, as well as for alcohol and drug use. She was in the
    high-risk range on some of the other sections. She scored in
    the high-risk range to reoffend overall.
    [14] In Nebraska, a court is not bound by the plea agree-
    ment made between a defendant and the government. State v.
    Landera, 
    285 Neb. 243
    , 
    826 N.W.2d 570
     (2013). The record
    provides a sound basis for the sentence imposed. We find no
    abuse of discretion, and we therefore determine that the sen-
    tence was not excessive.
    CONCLUSION
    For the reasons explained above, we affirm Cooke’s plea-
    based conviction for second degree murder and her sentence.
    Affirmed.