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).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
PIRTLE, Judge.
INTRODUCTION
Jon D. Stolp appeals from a sentence handed down by the district court for York County as a result of his no contest plea to driving under the influence of alcohol, third offense. Although he complains the sentence was excessive, we find that the district court judge who accepted his plea mistakenly advised Stolp as to the potential penalty for a Class IIIA felony and that as a result, plain error occurred and Stolp's plea was not entered freely, voluntarily, knowingly, and intelligently. Accordingly, we reverse, and remand to the district court for further proceedings.
BACKGROUND
On September 3, 2011, at approximately 3:30 a.m., a York County deputy sheriff was driving northbound on U.S. Highway 81 near the intersection of Road 7 in York County, Nebraska. He observed a vehicle that was traveling southbound on Highway 81, near the intersection of Road 7, make a U-turn at Road 8, and head north while still traveling in the southbound lane. The deputy sheriff activated his cruiser's lights and followed the vehicle to Road 9, where the vehicle crossed back into the northbound lane and pulled into a motel parking lot.
The driver of the vehicle identified himself as Stolp, but had no form of identification. Stolp was unsteady getting out of his vehicle and had to use his vehicle for balance. The deputy sheriff detected the odor of alcoholic beverage, and he noted that Stolp had watery and bloodshot eyes and that Stolp swayed while standing. Stolp told the deputy sheriff he was going to the motel for breakfast and argued that he was not driving in the wrong lane.
Stolp failed the standard sobriety tests administered at the stop and stated he was refusing a preliminary breath test. Stolp was then arrested.
Stolp was charged with seven counts related to this incident. Count I was driving under the influence, third offense. The six other counts were refusal of preliminary breath test, refusal of chemical test, false reporting, unauthorized use of a propelled vehicle, driving during impoundment/revocation, and open alcohol container. Through a plea agreement, Stolp entered a no contest plea to driving under the influence, count I, in exchange for the State dismissing counts II through VII. Driving under the influence, third offense, is a Class IIIA felony punishable by a maximum of 5 years' imprisonment, a $10,000 fine, or both, as well as a 15-year license revocation.
On November 7, 2011, a hearing was held in the district court for York County at which time Stolp entered his plea of no contest to driving under the influence, third offense. At this hearing, counsel for Stolp informed the court that her client was going to be pleading no contest to count I in return for the State's dismissing counts II through VII. The court then asked Stolp if that was his understanding, and he answered in the affirmative. At that time, the court stated as follows:
THE COURT: A Class III-A Felony[,] driving under the influence[,] is punishable by a... mandatory minimum sentence of 90 days in jail and a maximum of 365 days in jail and a $1,000 fine, and along with that, there is a 15-year revocation of your operator's license.... Do you understand all of that?
Stolp indicated that he understood, and the court accepted the plea agreement and scheduled a sentencing hearing for December 19, 2011.
Sentencing was delayed until March 15, 2012, at which time Stolp appeared with his attorney in front of a different district court judge, Mary C. Gilbride. At this hearing, Stolp was sentenced to 24 to 60 months' imprisonment with credit for 196 days served. He was also assessed costs of $130 and was fined $600, and his driver's license was revoked for 15 years.
After the sentence was handed down, the following colloquy took place between the judge and Stolp:
[Stolp]: Can I say something?
THE COURT: Sure.
[Stolp]: I'm a little confused. Judge Gless clearly stated the maximum I would face was a year, 90 days to 365. I have a newspaper article here from the York Times that states the same thing.
THE COURT: A Class III-A felony is a maximum five years imprisonment.
[Stolp]: Well, this is what Judge Gless stated in court when I pled.
THE COURT: Well, Judge Gless did not tell you the correct information for a Class III-A felony. A Class III-A felony is a maximum five years imprisonment.
....
THE COURT: Well, the statutes are very clear that a Class III-A felony is a maximum five years imprisonment.
....
THE COURT: The plea agreement that was reflected was that the plea would be to Count I. Count I is driving under influence, third offense, refusal, charged as Class III-A felony.
ASSIGNMENT OF ERROR
Stolp assigns that the sentence imposed by the trial court, although within the statutory limits, was excessive and constituted an abuse of discretion.
ANALYSIS
To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). Stolp's only assignment of error is that his sentence is excessive. However, in the summary of argument section of Stolp's brief, he states that "the sentence in question is excessive and that [Stolp] should have only received a sentence with[in] the parameters of the possible sentence given at the arraignment on the charges." Brief for appellant at 4.
Although an appellate court ordinarily considers only those errors assigned and discussed in the briefs, the appellate court may, at its option, notice plain error. State v. Drahota, 17 Neb.App. 678, 772 N.W.2d 96 (2009). Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. Id.
The Nebraska Supreme Court many years ago set out the test for whether a plea of guilty or nolo contendre has been entered freely, intelligently, voluntarily, and understandingly. In the case of State v. Irish, 223 Neb. 814, 820, 394 N.W.2d 879, 883 (1986), the court stated as follows:
The rule to be distilled from the foregoing holdings, thus, is that in order to support a finding that a plea of guilty or nolo contendre has been entered freely, intelligently, voluntarily, and understandingly,
1. The court must
(a) inform the defendant concerning (1) the nature of the charge; (2) the right to assistance of counsel; (3) the right to confront witnesses against the defendant; (4) the right to a jury trial; and (5) the privilege against self-incrimination; and
(b) examine the defendant to determine that he or she understands the foregoing.
2. Additionally, the record must establish that
(a) there is a factual basis for the plea; and
(b) the defendant knew the range of penalties for the crime with which he or she is charged.
(Emphasis supplied.)
State v. Hammel, 17 Neb.App. 788, 769 N.W.2d 413 (2009), is similar to the present case. In that case, the defendant, Jeremy J. Hammel, had entered a no contest plea to a charge of child abuse, a Class III felony. At the plea hearing, the district court had engaged in a lengthy discussion with Hammel about his rights, the charge, and the penalty for the charge. Upon inquiring as to any plea bargains, the following discussion was had:
"THE COURT: And are there any plea bargains involved in this case?
"[Counsel for the State]: Yes, there are, Your Honor. It's my understanding that [Hammel is] pleading straight as he is today, that the State does not have any objection to a minimum of four years[`], maximum of six years[`]—
"THE COURT: All right.
"[Counsel for the State]: —incarceration.
"THE COURT: Is it my understanding that your counsel... will request a sentence of no greater than the four to six that was just — four to six years that was just discussed by the prosecutor?
"[Counsel for Hammel]: Yes, sir, respectfully."
Id. at 789, 769 N.W.2d at 414. A factual basis was given by the State, and the district court found that the factual basis was sufficient, that Hammel understood the possible penalties, and that the plea was entered freely, knowingly, intelligently, and voluntarily.
At the sentencing hearing, the district court inquired of Hammel and his counsel whether "`the plea bargain was no more than six years.'" Id. Hammel's counsel answered in the affirmative, and the district court sentenced Hammel to 6 to 6 years' imprisonment with credit for 218 days served. After the sentence was pronounced, the following was stated on the record, "`[Counsel for Hammel]: Excuse me Judge. It was — the agreement was four to six years. THE COURT: No, the agreement was in the range of four to six years.'" Id. No other objections were made, and the hearing was adjourned.
On appeal, this court reversed, and remanded with directions, holding:
Under the specific facts of this particular case, because the district court failed to accurately advise Hammel of the range of penalties for the crime, i.e., that the district court was not bound by the plea agreement made with the State, we find that Hammel was not adequately advised as to the complete range of penalties available to the district court for sentencing. Therefore, Hammel's no contest plea could not have been entered freely, voluntarily, knowingly, and intelligently.
State v. Hammel, 17 Neb.App. 788, 791, 769 N.W.2d 413, 415 (2009).
In the present case, the record confirms that at the hearing held to accept Stolp's plea, the district court judge mistakenly informed Stolp that the potential penalty he was facing was a minimum of 90 days in jail and a maximum of 365 days in jail, as well as a $1,000 fine. However, at the sentencing hearing held before a different district court judge, Stolp was given a sentence of 24 to 60 months in jail. When Stolp attempted to question the sentencing judge about the discrepancy, the judge was not swayed by Stolp's argument that the district court judge who had accepted his plea told him something different. Based on the record before us and on prior case law, Stolp's plea was not entered freely, voluntarily, knowingly, and intelligently. Consequently, we must remand the matter to the district court with directions to vacate Stolp's conviction and sentence and to hold further proceedings.
Given our conclusion above, we need not address Stolp's excessive sentence assignment of error. See Papillion Rural Fire Protection District v. City of Bellevue, 274 Neb. 214, 739 N.W.2d 162 (2007) (appellate court is not obligated to engage in analysis which is not needed to adjudicate controversy before it).
CONCLUSION
We find plain error in the district court's sentence to the extent that the sentence given to Stolp exceeded the minimum and maximum he was advised of at the time he entered his plea. Accordingly, the cause is remanded to the district court with directions to vacate Stolp's conviction and sentence and to hold further proceedings consistent with this opinion.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
