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

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/08/2022 01:06 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. COOKE
Cite as 311 Neb. 511State 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
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STATE v. COOKE
Cite as 311 Neb. 5119. 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.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. COOKE
Cite as 311 Neb. 511Miller-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. 511The 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. 511become 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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STATE v. COOKE
Cite as 311 Neb. 511affects 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. 511agree 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. 511promise 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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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. COOKE
Cite as 311 Neb. 511whether 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. 511The 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.