# State v. Irish

> Nebraska Supreme Court · October 10, 1986 · 223 Neb. 814

URL: https://www.frixlaw.com/law-library/cases/9663154

## Case

- **Full name:** State of Nebraska, Appellee, v. Richard Irish, Appellant
- **Court:** Nebraska Supreme Court
- **Decided:** October 10, 1986
- **Citations:** 223 Neb. 814; 394 N.W.2d 879; 1986 Neb. LEXIS 1086
- **Precedential status:** Published
- **Opinion:** Dissent by Shanahan
- **Judges:** Boslaugh, White, Hastings, Caporale, Shanahan, Grant, Krivosha
- **Cited by:** 125 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9663154

## How later opinions describe it (automated extraction)

- holding in relevant part that the trial court must examine the defendant to determine whether the defendant understood the trial court=s admonishments and noting that the record must establish that there is a factual basis for the plea and the defendant was advised of the rang…
- stating that the defendant must be informed of his Boykin rights as well as the nature of the charge and the right to counsel

## Opinion text

Shanahan, J.,
dissenting.
Today, without any plausible explanation, this court’s majority recoils and departs from the ABA standards, which had been judicially “embraced” for 15 years — hardly a proper parting regarding what had been an obviously meaningful relationship.
The plea of guilty is probably the most frequent method of conviction in all jurisdictions; in some localities 90 percent or more of the criminal cases are disposed of in this way. The assumption underlying these standards is that conviction without trial will and should continue to be the most frequent means for the disposition of criminal cases. This assumption is not based on notions of expediency, but rather on the conclusion that a number of values are served by the disposition of many criminal cases without trial. . . .
Conviction on a plea of guilty or nolo contendere, then, is not merely a matter of administrative convenience. Even if more prosecutors, judges, and defense counsel *822 were available and trial of all cases were possible, conviction without trial would continue to be a necessary and proper part of the administration of criminal justice. Indeed, the limited use of the trial process for those cases in which the defendant has grounds for contesting the matter of guilt aids in preserving the meaningfulness of the presumption of innocence. The frequency of conviction without trial, therefore, not only permits the achievement of legitimate objectives in cases where pleas of guilty and nolo contendere are entered, but also enhances the quality of justice in other cases as well. Accordingly, the objective of [these] standards is not to bring about a substantial shift from the practice whereby pleas are obtained and accepted. The objective instead is to formulate procedures that will maximize the benefits of conviction without trial and minimize the risks of unfair or inaccurate results.
Introd., ABA Standards for Criminal Justice ch. 14 at 14.4 and 14.5 (2d ed. 1980).
Concerning a guilty or nolo contendere plea, standard 14-1 .'4 of the ABA standards, supra, provides at 14.19:
(a) The court should not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally in open court and determining that the defendant understands:
(ii) the maximum possible sentence on the charge, including that possible from consecutive sentences, and the mandatory minimum sentence, if any, on the charge, or of any special circumstances affecting probation or release from incarceration.
The immediate predecessor of standard 14-1.4, that is, standard 1.4 of the ABA Standards Relating to Pleas of Guilty at 25 (Approved Draft 1968), prescribed that a sentencing court advise a defendant “(i) of the maximum possible sentence on the charge, including that possible from consecutive sentences.”
In State v. Lewis, 192 Neb. 518, 521 , 222 N.W.2d 815, 818 (1974), this court observed that the practice of informing or advising a defendant of possible penalties preceded State v. Turner, 186 Neb. 424 , 183 N.W.2d 763 (1971), namely:
*823 “The practice of advising a defendant who is about to enter a plea to a felony of the possible penalties on conviction, although not made mandatory by any statute in this state, is one of long standing in this jurisdiction and antedates the adoption of the standards in State v. Turner, supra.”
(Emphasis supplied.)
Nevertheless, certainly since State v. Turner, supra, and until now, we had consistently and repeatedly recognized the ABA standards concerning a guilty or nolo contendere plea as the minimum procedure for accepting such valid pleas. See, State v. Clark, 217 Neb. 417 , 350 N.W.2d 521 (1984); State v. Hill, 204 Neb. 743 , 285 N.W.2d 229 (1979); State v. Evans, 194 Neb. 559 , 234 N.W.2d 199 (1975); State v. Lewis, supra. As expressed in State v. Clark, supra at 421 , 350 N.W.2d at 524 : “In Turner we embraced the ABA Standards Relating to Pleas of Guilty . . .” which prescribed the requisite admonition about possible penalties.
In North Carolina v. Alford, 400 U.S. 25, 31 , 91 S. Ct. 160 , 27 L. Ed. 2d 162 (1970), the U.S. Supreme Court promulgated a standard for determining validity of a guilty plea: “The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Duration of incarceration unquestionably goes to the very heart of voluntariness required for a valid waiver of a defendant’s right to trial on the charge alleged, as well as the voluntariness of a defendant’s waiver of the other rights to be accorded consistent with our enunciations in State v. Turner, supra, and State v. Tweedy, 209 Neb. 649 , 309 N.W.2d 94 (1981). As we expressed in State v. Curnyn, 202 Neb. 135, 140, 274 N.W.2d 157, 161 (1979): “It is difficult to conceive how a guilty plea can be voluntary and intelligent unless and until the defendant is informed or is made aware of the possible penalties to which he may be subjected by making such a plea.” Cf. State v. McMahon, 213 Neb. 897, 899 , 331 N.W.2d 818 (1983) (“What we are here faced with is a situation in which the defendant was unaware of the penal consequences of his guilty plea because he had been misinformed by the court, and therefore his plea could hardly be said to have been *824 voluntary”).
It is virtually self-evident that a defendant’s decision to plead guilty or nolo contendere to a criminal charge is a grave and personal judgment, which a defendant should not be allowed to enter without full comprehension of possible consequences of conviction by such plea. Whether it be the maximum term of imprisonment authorized by the statute prescribing a penalty for conviction of a crime or whether it be a combination of terms of imprisonment imposed as penalties for convictions of separate crimes, duration of possible imprisonment is an important factor affecting any defendant’s intelligent choice between the alternatives confronting a defendant — going to trial or entering a plea of guilty or nolo contendere. Anyone unaware that the term or duration of incarceration acutely affects a defendant’s decision regarding a guilty or nolo contendere plea in a criminal case is oblivious to one of the realities in our system for efficient criminal justice.
Apart from adoption of the ABA standards as a prescribed procedure in accepting a guilty or nolo contendere plea, other jurisdictions require a court, in accepting a defendant’s plea, to inform a defendant of the penal consequences in the form of a possible consecutive sentence. See, People v. Flannigan, 131 Ill. App. 2d 1059, 1065 , 267 N.E.2d 739, 744 (1971) (a court must inform a defendant of “ ‘the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences’ ”); State v. Ricks, 53 Ohio App. 2d 244, 246-47 , 372 N.E.2d 1369, 1371 (1977) (a defendant’s understanding of the maximum penalty “should include information as to whether defendant is eligible for consecutive or concurrent sentences”); People v. Verderosa, 80 A.D.2d 930, 931 , 437 N.Y.S.2d 783, 784 (1981) (“the failure of the sentencing court to inform defendant . . . that the law required that a consecutive sentence be imposed requires a reversal of defendant’s conviction”); State v. Collins, 176 Conn. 7, 10 , 404 A.2d 871, 872 (1978) (defendant was not “fully . apprised of the consequences of his plea” where he did not know “whether federal and state sentences run concurrently or consecutively”); State v. Flummer, 99 Idaho 567, 569 , 585 P.2d *825 1278, 1280 (1978) (“the possibility of [a] sentence being made to run consecutively” is an aspect of “ ‘consequences of pleading guilty,’ ” to which the defendant must be informed).
When a defendant has been charged with more than one crime, the manner in which that defendant may have to serve each sentence for each conviction, that is, whether multiple sentences are served concurrently or consecutively, is an obvious consequence of a defendant’s plea of guilty or nolo contendere and is necessarily as crucial to a defendant’s deliberated decision as is any admonition about the maximum penalty for each charge. See People v. Flannigan, supra.
As aftermath of today’s holding, this court had embraced, has erased but not replaced a valuable part of a time-tested procedure for basically fair disposition of criminal cases. Consistent with standard 14-1.4 of the ABA standards, the reasonable rule of practicality is: Where a court accepting a plea of guilty or nolo contendere is aware of a defendant’s prior conviction and sentence, raising a possibility of consecutive sentences, the court must advise the defendant of a possible consecutive sentence as an aspect of the admonition required regarding the maximum sentence permissible under law. The district court should have admonished or informed Irish accordingly. Failure to so admonish or inform Irish constituted reversible error.
Krivosha, C. J., and White, J., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9663154. Public record. Not legal advice.