Opinion
Nos. 40119, 40120.
Filed January 8, 1976.
1. Criminal Law: Guilty Plea: Trial. While it is advisable to do so, the trial court is not required to specifically inquire of the defendant as to the factual basis for a plea of guilty. Inquiry of the county attorney or examination of the presentence report, if before the court, are alternative methods. 2. Criminal Law: Sentences. Unless an abuse of discretion appears, a sentence within the statutory limits will not be disturbed on appeal.
Appeals from the District Court for Cherry County: WILLIAM C. SMITH, JR., Judge. Affirmed.
Duane L. Nelson, for appellant.
Paul L. Douglas, Attorney General, and Gary B. Schneider, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
These appeals are from guilty pleas in two cases, each involving three counts of debauching a minor, in violation of section 28-929, R. S. Supp., 1974. Defendant, LeRoy Painter, was sentenced to 5 years in the Nebraska Penal and Correctional Complex on each count in both cases, with the sentences to run concurrently on the three counts in each case, but the sentences in each case to run consecutively. Defendant sets out four assignments of error: (1) The court erred in accepting pleas of guilty because there was no sufficient factual basis established for accepting such pleas; (2) the pleas were the product of an unfair and improper plea bargain; (3) the court erred in accepting the pleas without specifically having advised the defendant of the potential penalties; and (4) the court erred in imposing an excessive sentence. We affirm.
Painter lived with the complaining witness, Louise Howard, from October of 1972 until August 13, 1973. Also living in the home at that time were Louise Howard's three children, Francis Howard, Glen Donahoo, and Garrett Donahoo, whose ages were 8, 5, and 4. On August 11, 1973, after visiting several bars in Ainsworth, the complaining witness and Painter returned to their home in Wood Lake. It was there, sometime around midnight, that the specific instances of debauchery set out in the informations occurred. No useful purpose will be served by setting out in lurid detail the repulsive details of those incidents. We are here concerned only with the procedural matters of due process.
Defendant does not argue his second assignment of error, consequently, we will not discuss it. Suffice it to say, however, that as a result of the plea bargain two cases, one for assault with intent to do great bodily harm and another for debauching a minor, were dismissed.
Defendant's first assignment is that there was no sufficient factual basis established as a matter of record for accepting his guilty pleas. While the trial court did not specifically ask the defendant about the specific facts of the offenses, he did ask him if he had given his attorney all the facts as he knew them, and the defendant replied that he had. There is no question the trial judge was familiar with the facts sustaining the charges. This case is within the ambit of State v. Leger (1973), 190 Neb. 352, 208 N.W.2d 276. There we held that verification of the fact the court was aware of the factual basis for the plea from the presentence reports was sufficient. While it is advisable to do so, the trial court is not required to specifically inquire of the defendant as to the factual basis for a plea of guilty. Inquiry of the county attorney or examination of the presentence report, if before the court, are alternative methods.
Defendant's third assignment is that the court erred in accepting and entering judgment on the pleas without specifically having advised the defendant on the record of the potential penalties. There is no question in this case but that the defendant was well aware of the range of penalties. The trial court did ask him if he understood what possible penalties there might be and whether or not he had also discussed them with his attorney. He answered both questions in the affirmative. The offenses were described in detail in the information. The preliminary hearing, which is in the record, contains the statement of defendant's attorney as follows: "I have in my hands copies of all four complaints which Mr. LeRoy Painter, the defendant, furnished me about six days ago having had them in his pocket and he having read them. Uh it being my opinion that he does understand the charges and he has inquired of me and I have informed him of the statute and the penalty."
Defendant's last assignment alleges that the court erred in imposing a sentence of 10 years imprisonment, which he claims is an excessive sentence. We could not disagree more. In effect, under section 83-1,105, R. S. Supp., 1974, the defendant has received a 2 to 10 year sentence. Unless an abuse of discretion appears, a sentence within the statutory limits will not be disturbed on appeal. State v. Glouser (1975), 193 Neb. 186, 226 N.W.2d 134. The debauchery involved is particularly heinous and repulsive. On the record, there was no abuse of discretion.
The judgment is affirmed.
AFFIRMED.