State v. McBride , 27 Neb. Ct. App. 219 ( 2019 )

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STATE v. McBRIDE
Cite as 27 Neb. Ct. App. 219
State of Nebraska, appellee, v.
Heather M. McBride, appellant.
___ N.W.2d ___
Filed May 7, 2019. No. A-18-797.
1. 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 judicial discretion.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
3. Courts: Final Orders: Appeal and Error. When a district court, sitting
as an intermediate appellate court, enters an order that affects a substan-
tial right, that order is final for purposes of appeal if its judgment can be
executed without any further action by the district court.
4. Courts: Final Orders: Jurisdiction: Appeal and Error. A district
court order affirming, reversing, or remanding an order or judgment of
the county court is itself a final order that an appellate court has jurisdic-
tion to review.
5. Pleas: Sentences: Restitution. The failure to inform a defendant of the
possibility of restitution renders the entry of a plea of guilty involuntary
and unintelligent in that regard and consequently prevents the imposi-
tion of an order of restitution.
6. Pleas: Proof. While in order for a defendant to enter a voluntary and
intelligent plea of guilty, he or she must know the penalty for the crime
to which he or she is pleading, and although it is preferable that such
knowledge be imparted by the judge accepting the plea, it is nonetheless
possible to prove the defendant’s knowledge by other means.
7. Criminal Law: Restitution: Damages. Neb. Rev. Stat. § 29-2280
(Reissue 2016) vests trial courts with the authority to order restitu-
tion for actual damages sustained by the victim of a crime for which a
defend­ant is convicted.
8. ____: ____: ____. Pursuant to Neb. Rev. Stat. § 29-2281 (Reissue
2016), before restitution can be properly ordered, the trial court must
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consider: (1) whether restitution should be ordered, (2) the amount of
actual damages sustained by the victim of a crime, and (3) the amount
of restitution a criminal defendant is capable of paying.
9. Sentences: Restitution. When a court orders restitution to a crime
victim under Neb. Rev. Stat. § 29-2280 (Reissue 2016), restitution is
a criminal penalty imposed as punishment and is part of the criminal
sentence imposed by the sentencing court.
10. Sentences. The appropriateness of a sentence is necessarily a subjec-
tive judgment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circumstances
surrounding the defendant’s life.
11. Sentences: Restitution. After the sentencing court determines that a
conviction warrants restitution, it then becomes the sentencing court’s
factfinding responsibility to determine the victim’s actual damages and
the defendant’s ability to pay.
12. ____: ____. Under Neb. Rev. Stat. § 29-2281 (Reissue 2016), the sen-
tencing court may hold a hearing at the time of sentencing to determine
the amount of restitution.
13. Sentences: Restitution: Evidence. Under Neb. Rev. Stat. § 29-2281
(Reissue 2016), the sentencing court’s determination of restitution shall
be based on the actual damages sustained by the victim and shall be sup-
ported by evidence which shall become a part of the court record.
Appeal from the District Court for Madison County, M ark
A. Johnson, Judge, on appeal thereto from the County Court
for Madison County, Ross A. Stoffer, Judge. Judgment of
District Court affirmed.
Ronald E. Temple, of Fitzgerald, Vetter, Temple & Bartell,
for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
R iedmann, Bishop, and Welch, Judges.
R iedmann, Judge.
INTRODUCTION
Heather M. McBride pled guilty in the county court for
Madison County to an amended charge of attempted for­
gery. She was sentenced to 90 days in jail and ordered to pay
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restitution. She appealed to the district court, which affirmed
the jail term and the county court’s determination of the
amount of restitution, but vacated the restitution order and
remanded the matter to the county court for a determination
of McBride’s ability to pay. McBride appeals to this court.
We find no abuse of discretion in the district court’s order and
therefore affirm.
BACKGROUND
McBride and her sister, Danica AllAround, purchased a
2009 GMC Acadia in December 2016 for $13,144. Both of
their names appeared on the bill of sale and title to the vehi-
cle. In May 2017, McBride had someone forge AllAround’s
signature on the title, and McBride sold the vehicle for
$6,500. McBride retained all of the proceeds of the sale, and
AllAround was not reimbursed for any portion of the pur-
chase price.
As a result of these events, McBride was originally charged
with three felony counts. Pursuant to a plea agreement with the
State, she pled guilty to an amended charge of attempted sec-
ond degree forgery, a Class I misdemeanor. At the outset of the
plea hearing, McBride’s counsel indicated to the county court
that the parties had reached an agreement whereby McBride
would plead guilty to the amended charge and “the parties will
ask the [c]ourt to set the matter for a restitution hearing and
sentencing thereafter.” After advising McBride of her rights
and ascertaining her understanding, the court accepted her plea
and found her guilty. The court then clarified with McBride’s
counsel his request to have the matter set for a restitution hear-
ing, and counsel confirmed his request.
The restitution hearing was held immediately prior to sen-
tencing. A copy of the bill of sale for the purchase of the
vehicle, a copy of AllAround’s bank statement showing that
she paid the purchase price, and a copy of the vehicle’s title
depicting AllAround’s forged signature were all received into
evidence at the restitution hearing.
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AllAround testified that she paid all of the $13,144 for the
vehicle and that McBride did not pay any portion of the pur-
chase price. Thus, she was seeking restitution from McBride
in the amount of the purchase price. She admitted that she did
not have an opinion as to the value of the vehicle at the time
McBride sold it.
McBride also testified and admitted that she thought
$3,300, approximately half of the price for which she sold the
vehicle, was a fair amount of restitution. McBride was asked
whether she contributed any money toward the purchase of
the vehicle, and she responded, “I choose not to say anything
right now.”
After hearing the evidence, the county court found that the
evidence showed that the vehicle was purchased for $13,144
and that although the names of both AllAround and McBride
were on the title to the vehicle, there was no evidence that
McBride put any money toward the purchase price. Therefore,
because the evidence before the court established that only
AllAround paid the entire amount, the court ordered McBride
to pay restitution in the amount of $13,144. McBride was also
sentenced to 90 days in jail.
McBride appealed to the district court for Madison County.
She assigned that the county court erred in ordering restitu-
tion and imposing an excessive sentence. The district court
affirmed the jail sentence and the amount of actual damages.
However, it vacated the restitution order and remanded the
matter for further determination as to McBride’s ability to pay
restitution and as to the timeframe in which she is able to pay.
McBride now appeals to this court.
ASSIGNMENTS OF ERROR
McBride couches her assigned errors as those committed
by the trial court; however, because she is appealing from the
order on appeal by the district court, we restate her assigned
errors as follows: The district court erred in finding that
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(1) she was properly advised of the possibility of an order of
restitution, (2) the circumstances warranted an order of res-
titution, and (3) the State sufficiently proved the amount of
actual damages.
STANDARD OF REVIEW
[1] 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. Ramirez, 285 Neb. 203,
825 N.W.2d 801 (2013). An abuse of discretion takes place
when the sentencing court’s reasons or rulings are clearly
untenable and unfairly deprive a litigant of a substantial right
and a just result. Id.
ANALYSIS
At the outset, we note that the State asserts that although
the district court remanded portions of the restitution order for
further determination by the county court, this court has juris-
diction over the appeal. We agree.
[2-4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. State v. Coble, 299 Neb.
434, 908 N.W.2d 646 (2018). When a district court, sitting as
an intermediate appellate court, enters an order that affects a
substantial right, that order is final for purposes of appeal if
its judgment can be executed without any further action by
the district court. Barrios v. Commissioner of Labor, 25 Neb.
App. 835, 914 N.W.2d 468 (2018). Where the district court
reverses a judgment in favor of a party, and remands the mat-
ter for further proceedings, that party’s substantial right has
been affected. Id. Further, a district court order affirming,
reversing, or remanding an order or judgment of the county
court is itself a final order that an appellate court has jurisdic-
tion to review. State v. Coble, supra. Having found that this
court has jurisdiction over this matter, we now turn to the
assigned errors.
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Advisement of Possibility
of Restitution.
McBride argues that the district court erred in finding that
restitution was appropriate because she was never advised of
the possibility of an order of restitution. We disagree.
[5,6] The Nebraska Supreme Court has held that the failure
to inform a defendant of the possibility of restitution renders
the entry of a plea of guilty involuntary and unintelligent in
that regard and consequently prevents the imposition of an
order of restitution. See State v. War Bonnett, 229 Neb. 681,
428 N.W.2d 508 (1988). However, the court has also held
that while in order for a defendant to enter a voluntary and
intelligent plea of guilty, he or she must know the penalty
for the crime to which he or she is pleading, and although it
is preferable that such knowledge be imparted by the judge
accepting the plea, it is nonetheless possible to prove the
defendant’s knowledge by other means. State v. Fischer,
220 Neb. 664, 371 N.W.2d 316 (1985). In State v. Mentzer,
233 Neb. 843, 448 N.W.2d 409 (1989), the Supreme Court
upheld a restitution order where the defendant, through his
attorney, advised the court at sentencing that he was will-
ing to make any restitution that would be ordered, thereby
establishing that he was aware that an order of restitution was
a possibility.
Likewise here, McBride was not informed at arraignment
or at the time she entered her plea that restitution was a pos-
sible penalty for her crime. However, at the outset of the plea
hearing, McBride, through her attorney, informed the county
court that the parties would be asking the court to set the mat-
ter for a restitution hearing. Thus, prior to the time she entered
her plea, McBride was aware that the court could order her to
pay restitution. The record therefore establishes that McBride
was aware of the possibility of restitution prior to entering
her plea, and thus, her plea was not entered involuntarily
or unintelligently.
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Circumstances Warranting
Order of Restitution.
McBride argues that the circumstances of the present case
do not warrant an order of restitution. She claims that the
dispute between her and AllAround should be handled as a
civil matter rather than in the context of the criminal pro-
ceedings. We find no abuse of discretion in the decision to
order restitution.
[7,8] Neb. Rev. Stat. § 29-2280 (Reissue 2016) vests trial
courts with the authority to order restitution for actual dam-
ages sustained by the victim of a crime for which a defendant
is convicted. State v. Ramirez, 285 Neb. 203, 825 N.W.2d 801
(2013). Pursuant to Neb. Rev. Stat. § 29-2281 (Reissue 2016),
before restitution can be properly ordered, the trial court must
consider: (1) whether restitution should be ordered, (2) the
amount of actual damages sustained by the victim of a crime,
and (3) the amount of restitution a criminal defendant is capa-
ble of paying. State v. Holecek, 260 Neb. 976, 621 N.W.2d
100 (2000). The question here falls under the first consider-
ation: whether restitution should be ordered. Neb. Rev. Stat.
§ 29-2282 (Reissue 2016) provides:
In determining restitution, if the offense results in
damage, destruction, or loss of property, the court may
require: (1) Return of the property to the victim, if pos-
sible; (2) payment of the reasonable value of repairing
the property, including property returned by the defend­
ant; or (3) payment of the reasonable replacement value
of the property, if return or repair is impossible, impracti-
cal, or inadequate. If the offense results in bodily injury,
the court may require payment of necessary medical care,
including, but not limited to, physical or psychological
treatment and therapy, and payment for income lost due
to such bodily injury. If the offense results in the death of
the victim, the court may require payment to be made to
the estate of the victim for the cost of any medical care
prior to death and for funeral and burial expenses.
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The Nebraska Supreme Court has stated, “Under § 29-2282,
restitution is warranted ‘[i]f the offense results in bodily
injury.’” State v. Ramirez, 285 Neb. at 208, 825 N.W.2d at 806
(emphasis supplied). Thus, we interpret § 29-2282 to also war-
rant restitution where, as here, “the offense results in damage,
destruction, or loss of property.”
The evidence in the present case established that as a result
of McBride’s forging AllAround’s signature on the vehicle’s
title and selling the vehicle, AllAround lost property to which
she was entitled. We understand McBride’s argument that
because her name was also on the title, she may have been
entitled to at least a portion of the value of the vehicle.
However, she argues, without authority, that determination of
any monetary damages is better left to a civil proceeding rather
than handled in the context of this criminal proceeding.
[9,10] When a court orders restitution to a crime victim
under § 29-2280, restitution is a criminal penalty imposed
as punishment and is part of the criminal sentence imposed
by the sentencing court. State v. Clapper, 273 Neb. 750, 732
N.W.2d 657 (2007). Imposing a sentence within statutory
limits is a matter entrusted to the discretion of the trial court.
State v. King, 19 Neb. Ct. App. 410, 807 N.W.2d 192 (2011). In
imposing a sentence, the sentencing court is not limited to
any mathematically applied set of factors. Id. The appropriate-
ness of a sentence is necessarily a subjective judgment and
includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life. Id.
At sentencing in the instant case, the county court noted
that McBride knew the title was forged and therefore was
aware that she was doing something illegal. The court also
observed that McBride herself could have elected to handle
the matter with AllAround via a civil proceeding, but instead,
she chose to circumvent the process and take matters into her
own hands by selling the vehicle unlawfully and retaining all
of the proceeds. The court therefore concluded that an order
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of restitution was appropriate in this case. Based on the record
before us, including the court’s rationale, we cannot find that
that decision constitutes an abuse of discretion.
Actual Damages.
McBride asserts that the order of restitution was an abuse
of discretion because the State failed to prove the amount of
actual damages sustained as a result of the crime. We find no
merit to this argument.
[11-13] After the sentencing court determines that a con-
viction warrants restitution, it then becomes the sentencing
court’s factfinding responsibility to determine the victim’s
actual damages and the defendant’s ability to pay. State v.
Ramirez, 285 Neb. 203, 825 N.W.2d 801 (2013). Under
§ 29-2281, the sentencing court may hold a hearing at the
time of sentencing to determine the amount of restitution. Id.
The sentencing court’s determination of “restitution shall be
based on the actual damages sustained by the victim and shall
be supported by evidence which shall become a part of the
court record.” § 29-2281. To be relied upon by the sentencing
court, the evidence must be sworn and corroborated. State v.
Ramirez, supra.
In relevant part, § 29-2282 provides that in determining
restitution, if the offense results in loss of property, the court
may require payment of the “reasonable replacement value” of
the property.
McBride argues, without authority, that the court’s failure
to consider depreciation when determining the actual dam-
ages for restitution purposes was an abuse of discretion. We
note that the restitution statutes refer to “actual damages” and
“reasonable replacement value” but do not specifically refer
to depreciation or market value. See §§ 29-2281 and 29-2282.
Nor do the statutes address the manner in which actual dam-
ages are to be calculated other than the amount of restitution
must be supported by evidence which shall become part of the
court record. See § 29-2281.
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At the restitution hearing, AllAround testified that she paid
$13,144 for the vehicle and that McBride contributed nothing
toward the purchase price. A copy of the bill of sale and evi-
dence that AllAround paid the purchase price were received
into evidence.
The vehicle at issue here was a 2009 GMC Acadia, pur-
chased in December 2016 and sold in May 2017. The district
court, in reviewing the trial court’s order, found no abuse of
discretion, the “actual damages being based upon a recent
purchase price of the 2009 GMC.” We do not find such a
determination to be an abuse of the court’s discretion, either.
And the undisputed evidence before the court proved that
AllAround paid the entire cost of the vehicle and had not been
reimbursed. Therefore, we find that the district court did not
abuse its discretion in affirming the county court’s valuation of
$13,144 and ordering restitution in that amount.
CONCLUSION
Finding no merit to the arguments raised on appeal, we
affirm the district court’s order.
A ffirmed.