Opinion
No. S-93-1016.
Filed July 29, 1994.
1. Appeal and Error. Although an appellate court does not consider assignments of error not listed and discussed in the briefs, it always reserves the right to note plain error which was not complained of at trial or on appeal but is plainly evident from the record, and which is of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. 2. Indictments and Informations: Homicide: Intent. For an information to be sufficient to charge a defendant with second degree murder, the information must allege that the accused killed another purposely and maliciously.
Appeal from the District Court for Lincoln County: JOHN P. MURPHY, Judge. Reversed and remanded for further proceedings.
R. Bradley Dawson and George E. Clough, of Clough, Dawson Piccolo, for appellant.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ.
Frank R. Ladig, also known as Frank E. Ladig, was convicted of aiding and abetting second degree murder. The district court sentenced Ladig to life in prison, ordered that he be placed in solitary confinement on four separate dates each year, and ordered him to pay restitution. He assigns as error that the district court abused its discretion in imposing an excessive sentence and in ordering solitary confinement and restitution. We reverse the judgment and remand the cause for further proceedings.
FACTS
On January 21, 1993, an information was filed in Lincoln County District Court which charged Ladig with aiding and abetting first degree murder and aiding and abetting attempted robbery in regard to the death of Richard Sterkel on July 28, 1992. Pursuant to a plea agreement, an amended information was filed on September 16, 1993, which charged Ladig with aiding and abetting second degree murder.
The plea agreement, which was stated for the record, required that Ladig enter a no contest plea to aiding and abetting second degree murder and that he testify in the trial of Darrin McHenry, who was charged with first degree murder in Sterkel's death. The agreement provided that a sexual assault charge would not be filed against Ladig in Dawson County. With regard to sentencing, the plea agreement provided that the State could request that Ladig be sentenced to life in prison.
The amended information stated that "on or about July 28, 1992, [Ladig] did aid, abet, procure or cause another to intentionally, but without premeditation, kill Richard Sterkel" in Lincoln County, Nebraska. The amended information did not allege that Ladig's actions were taken purposely and maliciously.
The court accepted the plea, finding that there was a factual basis for the plea and that the plea was made knowingly, voluntarily, and intelligently. The court found Ladig guilty of aiding and abetting second degree murder, based on the evidence in the trial of McHenry. A Class I presentence investigation was ordered.
At the sentencing hearing, the State requested the imposition of a life sentence with solitary confinement and restitution. Ladig informed the court that he had nothing to say before sentence was passed. The court opined that all three defendants involved in the death were equally culpable. The court then sentenced Ladig to life in prison and ordered Ladig to pay restitution, jointly and severally with the other two defendants, in the amount of $4,653.77. The court ordered Ladig to pay the court costs, but found them to be uncollectible. Ladig was not given credit for time served because there was no term to the sentence.
ANALYSIS
The amended information upon which Ladig was convicted and upon which his plea of no contest was entered was worded in the language of Neb. Rev. Stat. § 28-304 (Reissue 1989) and did not allege malice as a specific element of the crime.
In State v. Myers, 244 Neb. 905, 907, 510 N.W.2d 58, 62 (1994), we stated, "[I]t was plain error to omit the element of `malice' from the jury instructions defining second degree murder," and we reversed Myers' conviction for second degree murder and granted him a new trial.
On appeal, Ladig does not assign as error the failure of the information to include malice in the charge. Although an appellate court does not consider assignments of error not listed and discussed in the briefs, it always reserves the right to note plain error which was not complained of at trial or on appeal but is plainly evident from the record, and which is of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. Id. In this case, we note plain error because of the failure of the information to include the element of malice.
In State v. Grimes, ante p. 473, 519 N.W.2d 507 (1994), the information charging Craig T. Grimes omitted malice from the charge. We held that for an information to be sufficient to charge a defendant with second degree murder, the information must allege that the accused killed another purposely and maliciously.
In State v. Manzer, ante p. 536, 519 N.W.2d 558 (1994), Christopher J. Manzer, as the result of a plea agreement, pled guilty to second degree murder, assault in the first degree, and use of a firearm to commit a felony. On appeal to this court, Manzer's sole assignment of error was the excessiveness of his sentences. In reversing his conviction for second degree murder, we held: "[T]he failure to include malice as an element of murder in the second degree is plain error." Id. at 538, 519 N.W.2d at ___.
Accordingly, the judgment of conviction, the sentence, and the order for restitution must be reversed, and the cause is remanded for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.