State v. Ettleman ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. ETTLEMAN
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
TAMMY J. ETTLEMAN, APPELLANT.
Filed August 14, 2018. No. A-17-782.
Appeal from the District Court for Saunders County: MARY C. GILBRIDE, Judge. Affirmed
in part, reversed and vacated in part, and in part vacated and remanded with directions.
Thomas J. Klein, Saunders County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
RIEDMANN, BISHOP, and WELCH, Judges.
BISHOP, Judge.
Tammy J. Ettleman pled no contest to one count of attempted possession of a controlled
substance, a Class I misdemeanor, and one count of child abuse, a Class IIIA felony. The district
court for Saunders County sentenced her to 24 months’ probation. Ettleman claims there was not
a sufficient factual basis to support her no contest plea and conviction for felony child abuse. We
agree. We therefore reverse the order of the district court which accepted her no contest plea to
felony child abuse, and we vacate that conviction. And because the district court ordered only one
sentence for both convictions, we vacate Ettleman’s sentence and remand for resentencing on her
conviction for attempted possession of a controlled substance.
BACKGROUND
On January 17, 2017, the State filed an information charging Ettleman with: count I,
delivery of a controlled substance, a Class II felony, pursuant to Neb. Rev. Stat. § 28-416 (Reissue
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2016); count II, aiding and abetting delivery of a controlled substance, a Class II felony, pursuant
to § 28-416 and Neb. Rev. Stat. § 28-206 (Reissue 2016); and count III, child abuse, a Class IIIA
felony, pursuant to Neb. Rev. Stat. § 28-707 (Reissue 2016).
On March 27, 2017, pursuant to a plea agreement, Ettleman pled “no contest” to an
amended count I (now attempted possession of a controlled substance, a Class I misdemeanor,
pursuant to Neb. Rev. Stat. § 28-201 (Reissue 2016)) and count III (child abuse); the State agreed
to dismiss count II (aiding and abetting delivery of a controlled substance). The State provided the
followng factual basis:
On November 28, 2016, officers with III Corps Drug Task Force and Cedar Bluffs Police
Department executed a search warrant on the residence of Tanya Brainard, Cedar Bluffs,
Saunders County. In the course of that search warrant, the investigation discovered that the
defendant, Tammy Ettleman, had been providing narcotics to Tanya Brainard and that a
significant balance was remaining.
In the course of the investigation, [Ettleman] agreed to -- arrived at Tanya
Brainard’s home a few blocks away in exchange -- to receive some of the past due account,
as well as sell some new pills, that being oxycodone. [Ettleman] indicated that she had her
11-year-old son, identified by initials CE, born in 2005, with her and that he was still in
his PJs.
While the officers were still present, [Ettleman] arrived at the Brainard residence
with her son, CE, and for the purpose of the plea agreement, did attempt to possess
oxycodone, a Schedule II narcotic substance. These events in Saunders County.
When asked if there were any comments to the factual basis, Ettleman’s attorney stated, “Would
address those at sentencing, Your Honor.” The district court proceeded to find the “factual basis
sufficient to convict the defendant on her no contest pleas.” The court found the pleas were entered
into knowingly and voluntarily, and found Ettleman guilty as charged in count I as amended and
count III. The matter was then scheduled for sentencing.
At the sentencing hearing, Ettleman said she realized she made mistakes, “but [she] would
never put [her] son in danger.” She acknowledged giving Brainard “a couple pills here and there,
which [she] should not have done, and that was a huge mistake.” She said she was not “this big
drug dealer,” rather, she felt sorry for Brainard. She “did not take [her son] there trying to put him
into any danger whatsoever. [She] would never do that.” She went on to say, “I love my son very
much, and, you know, I went in there, asked if [Brainard] was there and went out. That was all that
it was. It was not trying to put him in danger at all, you know.” She said she was “taken aback”
when she came in “for the status hearing” after being told it was going to be a misdemeanor, “and
then they threw this felony child abuse in on me.” The court proceeded to order one sentence of
24 months’ probation for both convictions (without any noted separation or apportionment of the
sentence between the two convictions), with various conditions, including serving 90 days in jail
(to be served in three waivable 30-day terms). The court’s written order of probation was filed
June 26, 2017. Ettleman timely appealed.
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ASSIGNMENT OF ERROR
Ettleman assigns that the district court erred in finding the State presented a sufficient
factual basis to support her no contest plea and conviction for felony child abuse.
STANDARD OF REVIEW
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 case of an abuse of discretion.
State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).
ANALYSIS
Ettleman argues that the factual basis provided by the State was not sufficient for the trial
court to find her guilty of felony child abuse. The State claims that because Ettleman pled no
contest to the charge, and at no point objected to the factual basis, her claim on appeal is “defaulted,
or is without merit.” Brief for appellee at 3. However, entering a plea does not waive a defendant’s
ability to challenge an insufficient factual basis. As stated by the Nebraska Supreme Court in State
v. Wilkinson, 293 Neb. at 881, 881 N.W.2d at 855:
A plea of no contest is equivalent to a plea of guilty. To support a plea of guilty or
no contest, the record must establish that (1) there is a factual basis for the plea and (2) the
defendant knew the range of penalties for the crime with which he or she is charged. When
a court accepts a defendant’s plea of guilty or no contest, the defendant is limited to
challenging whether the plea was understandingly and voluntarily made and whether it was
the result of ineffective assistance of counsel. A sufficient factual basis is a requirement
for finding that a plea was entered into understandingly and voluntarily. Therefore, [the
defendant] has not waived his challenge to the factual basis.
The State argues Wilkinson is a “lone case” and that it is irreconcilable with the cases that
precede it. Brief for appellee at 5. The State cites to State v. Burkhardt, 258 Neb. 1050, 607 N.W.2d
512 (2000), which held that 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. The State then
claims “[i]t is a very short and logical extension of that rule to say that a guilty or no contest plea
waives any complaint regarding the factual basis for the plea as well.” Brief for appellee at 4-5.
We disagree. First of all, the proposition in Burkhardt relates to a “voluntary plea,” and a sufficient
factual basis is a requirement for finding the plea is voluntary. Additionally, in Burkhardt there
was a sufficient factual basis for the pleas in that case. We do not read Burkhardt and Wilkinson
to be inconsistent, and we find Wilkinson to be controlling here.
Wilkinson is clear that a defendant has not waived a challenge to the factual basis by
entering a plea, because a sufficient factual basis is a requirement for finding that the plea was
entered into understandingly and voluntarily. See, also, State v. Clemens, 300 Neb. 601, ___
N.W.2d ___ (2018) (noting that defendant in Wilkinson, supra, did not waive challenge to factual
basis for plea when entering plea); State v. Schiesser, 24 Neb. Ct. App. 407, 888 N.W.2d 736 (2016)
(following Wilkinson and rejecting State’s claim that defendant’s no contest plea either waived
ability to challenge factual basis or judicially estopped him from asserting position on appeal
which contradicted his position at the trial level). Furthermore, even though Ettleman did not
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object to the factual basis, the issue was clearly before the trial court because it was required to
determine that a factual basis existed before it accepted Ettleman’s no contest plea to felony child
abuse and found her guilty of the same. See State v. Workman, 22 Neb. Ct. App. 223, 857 N.W.2d 349
(2014) (this court reversed and vacated defendant’s convictions and sentences after finding that
trial court erred in accepting defendant’s guilty pleas without a factual basis; lack of factual basis
raised for first time on motion for rehearing in appellate court). Therefore, Ettleman has not waived
her challenge to the factual basis.
To ascertain whether the State’s factual basis for felony child abuse was sufficient, we must
identify the elements of the statute under which Ettleman was convicted and determine whether
the factual basis meets those elements. See id. Ettleman was convicted of violating § 28-707(1),
which states in relevant part:
A person commits child abuse if he or she knowingly, intentionally, or negligently causes
or permits a minor child to be:
(a) Placed in a situation that endangers his or her life or physical or mental health;
(b) Cruelly confined or cruelly punished;
(c) Deprived of necessary food, clothing, shelter, or care;
(d) Placed in a situation to be sexually exploited . . . ;
(e) Placed in a situation to be sexually abused . . . ; or
(f) Placed in a situation to be a trafficking victim . . . .
Child abuse is a Class IIIA felony if the offense is committed knowingly and intentionally and
does not result in serious bodily injury or death. § 28-707(4). “Endangers” as used in
§ 28-707(1)(a) means to expose a minor child’s life or health to danger or the peril of probable
harm or loss. State v. Crowdell, 234 Neb. 469, 451 N.W.2d 695 (1990).
Based on the plain language of the statute, the factual basis given at the plea hearing did
not set forth how Ettleman intentionally placed her son in a situation that endangered his life or
physical or mental health, and it certainly did not set forth a basis for any of the other elements
contained in the statute. However, we can consider other materials when deciding whether a factual
basis exists.
A factual basis may be determined from inquiry of the defendant or county attorney, or by
examination of the presentence investigation. State v. Richter, 220 Neb. 551, 371 N.W.2d 125
(1985). See, also, State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981) (preferred procedure for
ascertaining whether or not factual basis exists to support guilty plea is to inquire directly of
defendant, but examination before sentencing of presentence report containing such facts is
acceptable alternative.)
The presentence investigation report (PSR) in this case indicates that law enforcement
conducted an investigation involving the distribution of prescription pills in Cedar Bluffs,
Nebraska. During the investigation, it was determined that Ettleman was selling controlled
prescription pills to Brainard. Law enforcement communicated with Ettleman while portraying
Brainard (through text messages) and arranged for Ettleman to deliver 40 controlled prescription
pills to Brainard’s house for $200. Law enforcement waited for her, and upon contact, they
observed that Ettleman brought along her 11-year-old child. After law enforcement identified
themselves to Ettleman, she admitted she was there to deliver 40 pills (oxycodone).
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Ettleman’s statement in the PSR indicated that she and Brainard were friends and that
Ettleman and her son spent a lot of time with Brainard and her three children. Ettleman claims that
she has fibromyalgia, arthritis, and migraines and that she has prescription medication. She had
been giving Brainard three to five pills per month because Brainard was complaining of headaches
and back pain, but could not afford to go to the doctor or pay for medication. Ettleman said on the
night she was arrested, she received an email asking for the rest of her pills, but she said no because
Brainard owed her money ($430). The reply claimed to have $300 of the money owed to Ettleman
and that there was someone there to buy pills from her for $5 per pill. Ettleman asked if Brainard
knew the person, and the response was “yes.” Ettleman said she needed to get her son dressed, and
when they arrived at Brainard’s house, she told her son to stay in the van. But her son wanted to
see Brainard and her children, so he got out and she followed him. When they walked in to the
house, three men were there. When Ettleman asked where Brainard was, they said she was at her
sister’s. Ettleman said she immediately took her son and went to the van, where she texted
Brainard. One of the men walked to the van and flashed a badge. Ettleman claimed she did not
take her son into what she would consider a dangerous situation. “I love [Brainard] and her kids,
[my son] does too. . . . I was simply going to see a friend.”
A juvenile emergency protective custody affidavit contained in the PSR indicates that this
incident took place at approximately 8:28 p.m. and that after Ettleman was arrested, her son was
taken into protective custody where he was placed with his grandparents. Her son’s biological
father is deceased.
Ettleman contends the factual basis “does not give any indication that the minor child was
cruelly confined or cruelly punished,” “does not give any factual information that the minor child
was deprived of food, clothing, shelter, or care,” and “makes no mention of evidence showing that
the minor child was placed in [a] situation so as to be sexually exploited” or sexually abused. Brief
for appellant at 9. Ettleman further argues that “at no time was the minor child’s life or physical
health in danger at the time of this incident.” Id. Notably, she says, law enforcement officers were
present at the residence at the time Ettleman was allegedly delivering oxycodone to another person.
“It is hard to conceive how the minor child’s life or physical health could have been at risk during
this incident as law enforcement officers were present the entire time while the transaction was
transpiring.” Id.
After considering the record as a whole, including the information in the PSR, we find
there was not a sufficient factual basis to meet the elements under § 28-707(1) and (4). Ettleman
took her son to her friend’s house at approximately 8:30 in the evening, and immediately left when
she realized her friend was not home. While we acknowledge that Ettleman went to the home to
sell prescription medication, an illegal action, we fail to see, based on these facts, how Ettleman
knowingly and intentionally exposed her child’s life or physical or mental health to danger or the
peril of probable harm or loss. Because there was not a sufficient factual basis, the district court
abused its discretion by accepting Ettleman’s no contest plea to felony child abuse and finding her
guilty of the same. See State v. Workman, supra. Because the district court abused its discretion in
accepting Ettleman’s plea to felony child abuse, we reverse the order of the district court which
accepted that no contest plea and we vacate Ettleman’s conviction for felony child abuse.
The State argues, without citation to any authority, that if the factual basis was indeed
lacking, “the proper remedy is to undo the entire plea bargain, and return the parties to square one
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and start over.” Brief for appellee at 6-7 (emphasis in original). However, the State’s ability to
further prosecute Ettleman is a matter to be determined at the trial level before it can be considered
on appeal. See, generally, State v. Conn, 300 Neb. 391, 914 N.W.2d 440 (2018) (appellate court
will not consider questions not presented to district court). But see State v. Thalken, 299 Neb. 857,
911 N.W.2d 562 (2018) (jeopardy attaches at the time the trial court accepts the defendant’s guilty
plea).
Because we vacate Ettleman’s conviction for child abuse and because the district court
provided only one sentence for both convictions, we must also vacate Ettleman’s sentence. As
noted earlier in this opinion, the court ordered one sentence of 24 months’ probation for both
convictions without any noted separation or apportionment between the two convictions. The
Nebraska Supreme Court has pointed out that when a defendant has been convicted on separate
counts of an information, it is the better practice for trial courts to impose a separate sentence on
each count whereon there has been a conviction. See, Kroger v. State, 158 Neb. 73, 62 N.W.2d
312 (1954); Williams v. State, 114 Neb. 132, 206 N.W. 731 (1925). The district court’s failure to
do so in this instance necessitates vacating Ettleman’s sentence and remanding the matter to the
district court for resentencing on the attempted possession of a controlled substance conviction.
CONCLUSION
Ettleman’s conviction for attempted possession of a controlled substance is affirmed.
However, because the factual basis was inadequate to support Ettleman’s no contest plea to and
conviction for felony child abuse, we reverse the order of the district court which accepted that no
contest plea and we vacate Ettleman’s conviction for felony child abuse. And since the district
court ordered only one sentence for both convictions, we vacate that sentence and remand for
resentencing on Ettleman’s conviction for attempted possession of a controlled substance.
AFFIRMED IN PART, REVERSED AND VACATED IN PART, AND
IN PART VACATED AND REMANDED WITH DIRECTIONS.
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