State v. Fox , 31 Neb. Ct. App. 602 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/21/2023 01:04 AM CST
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. FOX
Cite as 31 Neb. App. 602State of Nebraska, appellee,
v. Jesse R. Fox, appellant.
___ N.W.2d ___
Filed February 14, 2023. No. A-22-640.
1. Pleas: Appeal and Error. A trial court is afforded discretion in deciding
whether to accept guilty pleas, and an appellate court will reverse the
trial court’s determination only in the case of an abuse of discretion.
2. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
3. 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 a just
result in matters submitted for disposition.
4. Pleas: Waiver: Indictments and Informations: Effectiveness of
Counsel: Jurisdiction. The voluntary entry of a guilty plea or a plea
of no contest waives every defense to a charge, whether the defense is
procedural, statutory, or constitutional. Exceptions include the defenses
of insufficiency of the indictment, information, or complaint; ineffective
assistance of counsel; and lack of jurisdiction.
5. Pleas: Waiver. Depending upon the colloquy at a plea hearing, a defend­
ant could be held to have waived an objection to the sufficiency of a
factual basis.
Appeal from the District Court for Furnas County: Patrick
M. Heng, Judge. Affirmed.
Justin M. Daake, Furnas County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Teryn Blessin
for appellee.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. FOX
Cite as 31 Neb. App. 602Moore, Riedmann, and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
Jesse R. Fox appeals his plea-based conviction and sentence
entered in the district court for Furnas County finding Fox
guilty of first degree sexual assault. He asserts that there was
an insufficient factual basis to support his plea and that his
sentence was excessive. Finding no abuse of discretion by the
district court, we affirm.
BACKGROUND
Fox was initially charged with one count of first degree
sexual assault of a child, one count of first degree sexual
assault, and one count of third degree sexual assault of a child.
Pursuant to a plea agreement with the State, Fox pled no con-
test to an amended information charging him with one count of
first degree sexual assault. Specifically, the amended informa-
tion asserted that during
a period of time from October 24, 2019, thru January 1,
2022, [Fox did] subject another person to sexual pen-
etration without the consent of the victim, who knew
or should have known that the victim was mentally or
physically incapable of resisting or appraising the nature
of her conduct; victim identified by the identifying infor-
mation A.D. born in 2003; in violation of Neb. Rev. Stat.
§28-319 [Reissue 2016], a Class II Felony.
At the plea hearing, the State provided the following fac-
tual basis:
The State’s evidence shows that on January 11, 2022,
Sergeant Huntley of the Furnas County Sheriff’s Office
interviewed a young lady who was 18 at that time, senior
at [a local] High School, this being [A.D.] This was . . .
Fox’s stepdaughter.
During the interview, she indicated that during —
during the summer of 2019, when she would have been
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. FOX
Cite as 31 Neb. App. 60215 years old, she indicated that . . . Fox, her stepfather,
had sexually penetrated her on more than one occasion.
Her date of birth is December . . . 2003. She’s — she
gave specific dates of — well, the first time being around
August 7 of 2019. Actually, it was earlier than that, July
of 2019.
Regardless, she was 15. She turned 16 in [December]
2019, so she would have been 15 at that time. This all
occurred in Furnas County, Nebraska.
Your Honor, I think that’s sufficient for the factual
basis. You get to read all the details in the PSI.
The court asked Fox’s counsel, “[I]s your client not object-
ing to the factual basis in order to take advantage of this plea
agreement?” Counsel responded, “That’s correct, Your Honor,
no objection.” The court then asked Fox whether he agreed, to
which he responded, “Yes, Your Honor.” The court accepted
the plea and ordered a presentence investigation report (PSR).
At a subsequent sentencing hearing, Fox’s counsel requested
a term of probation. The court denied the request and sentenced
Fox to 25 to 30 years’ imprisonment. Fox appeals.
ASSIGNMENTS OF ERROR
Fox assigns that the district court abused its discretion (1) by
accepting Fox’s plea because there was not a sufficient factual
basis to support the plea and (2) by denying Fox’s application
for probation and issuing an excessive sentence.
STANDARD OF REVIEW
[1] A trial court is afforded discretion in deciding whether to
accept guilty pleas, and an appellate court will reverse the trial
court’s determination only in the case of an abuse of discretion.
State v. Ettleman, 303 Neb. 581, 930 N.W.2d 538 (2019).
[2] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. State v. Greer, 312 Neb. 351, 979 N.W.2d
101 (2022).
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. FOX
Cite as 31 Neb. App. 602[3] 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 a just
result in matters submitted for disposition. Id.ANALYSIS
Factual Basis.
Fox argues that the district court abused its discretion in
accepting his plea because the factual basis for the charged
crime was insufficient. Specifically, he contends that the time
element is insufficient because the amended information set
forth a time period of October 24, 2019, to January 1, 2022,
but the State’s factual basis identified a time period consist-
ing of “the summer of 2019.” He also challenges the element
of consent required under Neb. Rev. Stat. § 28-319(1)(a)
(Reissue 2016), because the factual basis made no reference
to consent. And although the State referenced A.D.’s age, it
did not provide Fox’s age, nor did the amended information
“allege a statutory rape” under § 28-319(1)(c). Brief for appel-
lant at 12. Finally, he claims the State failed to provide a fac-
tual basis under § 28-319(1)(b) because that subsection does
not create a statutory presumption that a victim is incapable of
consent based solely on age.
We need not reach the merits of Fox’s claim, however,
because the record establishes that Fox waived any objection
to the State’s factual basis. Because he did so, we reject his
claim that the court erred in accepting his plea.
[4] The voluntary entry of a guilty plea or a plea of no
contest waives every defense to a charge, whether the defense
is procedural, statutory, or constitutional. State v. Manjikian,
303 Neb. 100, 927 N.W.2d 48 (2019). Exceptions include
the defenses of insufficiency of the indictment, information,
or complaint; ineffective assistance of counsel; and lack of
jurisdiction. Id. A sufficient factual basis is a requirement
for finding that a plea was entered into understandingly and
voluntarily. State v. Ettleman, 303 Neb. 581, 930 N.W.2d
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. FOX
Cite as 31 Neb. App. 602538 (2019); State v. Wilkinson, 293 Neb. 876, 881 N.W.2d
850 (2016).
[5] In State v. Wilkinson, supra, the Nebraska Supreme
Court held that the defendant there did not waive his chal-
lenge to the factual basis by entering a plea of no contest
when defense counsel stated any comments as to the factual
basis would be addressed at sentencing. However, in State v.
Ettleman, supra, the Supreme Court explained that depending
upon the colloquy at a plea hearing, a defendant could be held
to have waived an objection to the sufficiency of a factual
basis. The court stated:
Our opinion today should not be read to preclude a defend­
ant from being treated as having waived an objection to
the sufficiency of the State’s factual basis where the
record of a plea colloquy demonstrates that the trial court
specifically asked the defendant or his or her counsel
whether the factual basis provided by the State is suffi-
cient to support the plea and the defendant failed to object
to its sufficiency upon inquiry by the court.
Id. at 594, 930 N.W.2d at 547.
We find that to be the situation here. Fox’s counsel was
specifically asked if Fox was not objecting to the factual
basis in order to take advantage of the plea agreement, and he
responded in the affirmative. Fox responded similarly when
asked whether he agreed with counsel’s statement. Therefore,
pursuant to Wilkinson, Fox waived any objection to the factual
basis presented by the State.
Excessive Sentence.
Fox assigns that his sentence was excessive and that the
court abused its discretion in failing to order probation rather
than a term of incarceration. We find no abuse of discretion in
the district court’s sentence.
Fox was convicted of first degree sexual assault, a Class
II felony. See § 28-319. A Class II felony is punishable
by imprisonment for 1 to 50 years, but with no mandatory
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. FOX
Cite as 31 Neb. App. 602minimum. Neb. Rev. Stat. § 28-105 (Cum Supp. 2022). When
no mandatory minimum is required, a court may impose pro-
bation under Neb. Rev. Stat. § 29-2260(2) (Reissue 2016).
However, probation may be withheld when the risk is sub-
stantial that during the period of probation the offender will
reoffend, the offender is in need of correctional treatment that
can most effectively be provided in a correctional facility, or
if a lesser sentence would depreciate the seriousness of the
offender’s crime or promote disrespect for the law. Id.Prior to imposing its sentence, the district court advised
Fox that it had considered the nature and circumstances of the
crime, as well as the history, the character, and the condition
of Fox. Having done so, it stated that imprisonment was neces-
sary. The court commented on the contents of the PSR, which
revealed there was a younger child involved that Fox was
potentially grooming in anticipation of the victim’s graduating
from high school, and that was a concern.
The PSR also revealed that Fox engaged in inappropri-
ate behavior with A.D. multiple times a week, culminating
in intercourse, over a period of more than 2 years. The court
noted that Fox was in his early thirties when this behavior
started and that he had been a stepfather to A.D. for a num-
ber of years, putting himself in a position of trust. The PSR
indicates that Fox scored in the medium/low risk category on
the “LS/CMI” assessment. He was 35 years of age at the time
of sentencing and had been employed full time prior to his
incarceration. He had been married to the victim’s mother for
approximately 9 years.
The district court indicated that it took into account all
of the above in determining that a sentence of incarceration
was warranted. However, taking into account Fox’s lack of
criminal history, age, and having obtained a “GED,” it deter-
mined a sentence on the high end of the sentencing scale
was inappropriate. Thus, it imposed a sentence of 25 to 30
years’ imprisonment.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. FOX
Cite as 31 Neb. App. 602Accordingly, we find that the district court properly con-
sidered all relevant factors and that Fox’s sentence was not an
abuse of discretion. We reject this assignment of error.
CONCLUSION
Fox waived any objection to the factual basis for his plea
when both he and his attorney advised the court that they were
not objecting to it in order to take advantage of the plea agree-
ment. Further, the district court did not abuse its discretion
when it sentenced Fox to 25 to 30 years’ imprisonment. We
affirm Fox’s conviction and sentence.
Affirmed.