                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         STATE V. WADE


  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.

                                   JESSE L. WADE, APPELLANT.


                  Filed June 30, 2020.    Nos. A-19-912, A-19-917, A-19-918.


       Appeals from the District Court for Lancaster County: LORI A. MARET, Judge. Affirmed.
       Darik J. Von Loh, of Hernandez Frantz, Von Loh, for appellant.
       Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.


       PIRTLE, RIEDMANN, and BISHOP, Judges.
       PIRTLE, Judge.
                                         INTRODUCTION
         Jesse L. Wade appeals his plea-based convictions and sentences from three cases in the
district court for Lancaster County, which included two counts of possession of a controlled
substance and one count of terroristic threats. Wade argues that the court should have ruled on his
plea in abatement in two of the cases before he entered into a plea agreement and that his sentences
are excessive. Based on the reasons that follow, we affirm Wade’s convictions and sentences.
                                         BACKGROUND
       The State initially charged Wade with one count of possession of a controlled substance
(methamphetamine), a Class IV felony, in case No. A-19-912; one count of robbery, a Class II
felony, in case No. A-19-917; and one count of possession of a controlled substance
(methamphetamine), a Class IV felony, in case No. A-19-918. The charges arose from incidents




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that occurred on October 7 and 18, 2018, and February 6, 2019. Wade’s three separate appeals
have been consolidated for disposition.
        Shortly after the charges were filed, Wade filed a plea in abatement in cases Nos. A-19-917
and A-19-918, challenging the county court’s decision to bind over the robbery charge and one of
the possession of a controlled substance charges. A hearing was held and the district court took
the matter under advisement.
        Before any ruling was issued, however, the parties entered into a plea agreement in regard
to the three cases involved in this appeal, as well as another case. As part of the plea agreement,
the State filed an amended information charging Wade with one count of terroristic threats, a Class
IIIA felony, instead of robbery. The State also agreed to drop a fourth case in which Wade had
been charged with possession of a controlled substance. In exchange, Wade agreed to plead guilty
to the possession of a controlled substance charges in cases Nos. A-19-912 and A-19-918 and to
the terroristic threats charge in case No. A-19-917.
        After a plea hearing, the district court accepted Wade’s pleas and found him guilty on all
three charges. In summary, the factual basis for the possession of a controlled substance charges
indicated that Wade had twice been stopped for traffic violations and was found with items
containing methamphetamine residue. In regard to the terroristic threats charge, the factual basis
indicated that Wade had threatened an employee at a bakery because he wanted bread, telling the
employee that he had a gun (though he apparently did not) and that he would “blow his head off.”
        At a subsequent sentencing hearing, the court sentenced Wade to 2 years’ imprisonment
and 12 months’ postrelease supervision for each possession of a controlled substance charge, and
3 years’ imprisonment and 18 months’ postrelease supervision for the terroristic threats charge.
The sentences were ordered to run consecutively.
                                   ASSIGNMENTS OF ERROR
       Wade assigns that the trial court erred in (1) failing to rule on his pleas in abatement before
he entered into the plea agreement and (2) imposing excessive sentences.
                                     STANDARD OF REVIEW
       Absent an abuse of discretion by the trial court, an appellate court will not disturb a
sentence imposed within the statutory limits. State v. Montoya, 305 Neb. 581, 941 N.W.2d 474
(2020). Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. Id. An abuse of discretion occurs when a trial court’s decision is based
upon reasons that are untenable or unreasonable or if its action is clearly against justice or
conscience, reason, and evidence. Id.
                                             ANALYSIS
Plea in Abatement.
       Wade first assigns that the trial court erred in failing to rule on his pleas in abatement before
accepting his guilty pleas pursuant to the plea agreement. Although Wade’s assignment of error



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states that the court erred by not ruling on the pleas in abatement in cases Nos. A-19-917 and
A-19-918, his argument only focuses on case No. A-19-918, the case that was originally a robbery
charge, but was reduced to a terroristic threats charge. He argues that to sustain probable cause for
the robbery charge, the county court had to find there was an “intent to steal” and this element was
absent from the facts presented to the county court at the preliminary hearing. As such, the plea in
abatement should have been sustained by the district court.
        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). The only exceptions to this rule include the defenses of insufficiency of
the indictment, information, or complaint; ineffective assistance of counsel; and lack of
jurisdiction. Id. See, also, Neb. Rev. Stat. § 29-1812 (Reissue 2016) (“accused shall be taken to
have waived all defects which may be excepted to by a motion to quash, or a plea in abatement,
by demurring to an indictment or pleading in bar or the general issue”).
        Wade’s voluntary entry of guilty pleas waived any alleged defects raised by his plea in
abatement, and thus, cannot be directly challenged on appeal, unless, for example, the charging
information failed to allege an essential element of a crime, or a defect in the information is of
such a fundamental character as to make the indictment wholly invalid. See State v. Golgert, 223
Neb. 950, 395 N.W.2d 520 (1986). Wade does not assert such claims here. Rather, he argues the
facts presented to the county court at the preliminary hearing did not support the “intent to steal”
element of robbery. He does not allege any insufficiency of the complaint itself. Accordingly,
Wade’s voluntary entry of his guilty pleas waived any alleged defects raised by his pleas in
abatement.
Excessive Sentence.
        Wade assigns that the sentences imposed by the trial court were excessive and an abuse of
discretion. Absent an abuse of discretion by the trial court, an appellate court will not disturb a
sentence imposed within the statutory limits. State v. Montoya, 305 Neb. 581, 941 N.W.2d 474
(2020). Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. Id. An abuse of discretion occurs when a trial court’s decision is based
upon reasons that are untenable or unreasonable or if its action is clearly against justice or
conscience, reason, and evidence. Id.
        Wade was found guilty of two counts of possession of a controlled substance which are
Class IV felonies, punishable by a maximum of 2 years’ imprisonment and 12 months’ postrelease
supervision, and no minimum for imprisonment or postrelease supervision. See Neb. Rev. Stat.
§§ 28-416(3) and 28-105 (Reissue 2016). However, pursuant to Neb. Rev. Stat. § 29-2204.02(2)
(Reissue 2016), the district court shall impose probation for a Class IV felony unless:
                (a) The defendant is concurrently or consecutively sentenced to imprisonment for
        any felony other than another Class IV felony;
                . . . ; or




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               (c) There are substantial and compelling reasons why the defendant cannot
       effectively and safely be supervised in the community . . . .

          Here, Wade was sentenced to a Class IIIA felony at the same time he was sentenced for
the two Class IV felonies. In addition, the district court specifically found that Wade was not an
appropriate candidate for probation. As set out below, the court delineated the substantial and
compelling reasons behind its decision that Wade could not effectively and safely be supervised
in the community. Ultimately, the district court sentenced Wade to 2 years’ imprisonment and 12
months’ postrelease supervision on each charge. This sentence is clearly within the statutory limits
for a Class IV felony when a trial court decides imprisonment is necessary.
          The terroristic threats charge is a Class IIIA felony, punishable by a maximum of 3 years’
imprisonment and 18 months’ postrelease supervision, and no minimum for imprisonment and 9
months for postrelease supervision. See Neb. Rev. Stat. § 28-311.01 (Reissue 2016) and § 28-105.
The district court sentenced Wade to 3 years’ imprisonment and 18 months’ postrelease
supervision. The sentence is also within the applicable statutory range, so we need only address
whether the trial court abused its discretion.
          In determining a sentence to be imposed, relevant factors customarily considered and
applied are 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, and (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. State v. Montoya, supra. The appropriateness 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 surrounding the defendant’s
life. Id.
          Wade argues it was an abuse of discretion to give him the maximum sentence of
incarceration on all three charges and the maximum amount of supervised release. He contends
the court failed to take into account several mitigating factors including his mentality, his social
and cultural background, his motivation for the offense, the nature of the offense, and the amount
of violence involved.
          Prior to sentencing Wade, the court stated that it had reviewed the presentence investigation
and that based on his history he was not a candidate for probation. The court noted that he had
previously failed to comply with terms of probation and with conditions of supervised release and
postrelease supervision. It also noted that Wade had been in prison multiple times. The court stated
that a lesser sentence would depreciate the seriousness of this crime and promote disrespect for
the law and that incarceration was necessary to protect the security of the public. The court found
that the risk was substantial that Wade would engage in additional criminal conduct if sentenced
to probation. Wade had a history of criminal activity, disregard for the law, and an unwillingness
to comport his conduct to comply with the law. The court stated that it could not find that the
circumstances that led to these offenses were unlikely to recur, or that Wade’s character and
attitude indicated he was unlikely to commit another crime.
          As pointed out in Wade’s own brief, he has spent much of his adult life in jail or prison,
and has had probation revoked on two occasions in the past. Wade also admits he has had numerous



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drug-related offenses, including 9 offenses for possession of controlled substances. He has a total
of 15 convictions from driving infractions to robbery to possession of a controlled substance.
        The record shows that the court reviewed the information before it and considered the
appropriate sentencing factors. There is nothing to indicate that the court considered any
inappropriate factors in determining the sentences to impose. Accordingly, the trial court did not
abuse its discretion in imposing Wade’s sentences.
                                         CONCLUSION
        We conclude that Wade’s voluntary guilty pleas waived any alleged defects raised by his
pleas in abatement, so there was no error by the trial court in failing to rule on them. We also
conclude that there was no abuse by the trial court in the sentences it imposed. Accordingly,
Wade’s convictions and sentences are affirmed.
                                                                                      AFFIRMED.




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