735 N.W.2d 818 (Neb. 2007)
On October 31, 2005, Richard W. Thompson was charged in Cheyenne County District Court with two counts of sexual assault of a child and one count of first-degree sexual assault.1 He was arraigned on November 8, 2005, and entered a not-guilty plea.2 A plea agreement was later reached under which Thompson would plead no contest to the two sexual-assault-of-a-child counts, the first-degree count would be dismissed, and the county attorney would remain silent at sentencing.3 Thompson’s counsel placed the agreement on the record, the county attorney confirmed it, Thompson affirmed it, he entered the no-contest pleas, a factual basis was provided, and the court accepted the pleas and scheduled sentencing.4
The victim was the twelve-year-old daughter of the woman with whom Thompson lived; the offenses occurred on six occasions between May and September 2005 and consisted of rubbing the victim’s vaginal area outside her clothing, attempted digital penetration on one occasion, Thompson lying on top of the victim while clothed and rubbing against her genital area, and kissing her breasts and mouth.5 At the sentencing hearing on May 23, 2006, the State stated it had “no argument” and noted that this was part of the plea agreement.6 The district court sentenced Thompson to five years of intensive supervision probation on each count, to run consecutively.7
The State timely appealed, contending that the sentences were excessively lenient.8 Thompson asserted that the State had waived its right to appeal by agreeing to remain silent at sentencing pursuant to the plea agreement.9 The presentence investigation report contained Thompson’s personal history, psychological evaluation results, Sexual Adjustment Inventory scores, the victim’s impact statement, and the probation officer’s recommendation for intensive supervised probation with specific conditions including annual jail time, sexual-behavior counseling, and strict limits on contact with minors.10
Whether the State waived its statutory right to appeal the sentences as excessively lenient by agreeing in a plea bargain to remain silent at sentencing?11
The waiver of the right to appeal must be express and unambiguous. Plea agreements are contracts interpreted according to their terms under contract-law principles, and courts will not rewrite an agreement to include terms the parties did not negotiate. An agreement to remain silent at sentencing does not waive the State's statutory right under Neb. Rev. Stat. § 29-2320 to appeal an excessively lenient sentence unless the agreement explicitly so provides.12
No. The plea agreement placed on the record provided only that Thompson would plead no contest to the two sexual assault of a child counts, the first-degree count would be dismissed, and the county attorney would remain silent at sentencing.13 The agreement contained no language addressing appellate rights or waiver of the State's ability to seek review of the sentence.14 At the sentencing hearing the State fulfilled the agreement by stating it had no argument.15
The State's right to appeal is a matter of statutory right in Nebraska rather than a discretionary allowance, further distinguishing those authorities.16 Cases from other jurisdictions are distinguishable because they involved either an actual breach by the prosecution at the trial level or an ambiguous agreement that the court construed against the government, whereas the Nebraska agreement was clear, limited, and silent on appeal.17
The State did not waive its statutory right to appeal the sentences as excessively lenient.18
Related opinions on this issue
Chief Judge Inbody concurred in the result but reached it on different grounds. He would have held that the State waived its right to appeal the discretionary aspects of the sentence because, by agreeing to stand silent, the State submitted to the trial court's discretion as part of the plea bargain. Allowing the appeal would deprive Thompson of the benefit of that bargain and defeat his reasonable expectations, following the reasoning of Com. v. Fruehan.19
Inbody would affirm on the ground that the sentences were not unlawful rather than addressing whether the trial court abused its discretion.20
Whether the district court abused its discretion by imposing consecutive five-year terms of intensive supervision probation rather than imprisonment on two counts of sexual assault of a child?21
A sentence within statutory limits will not be disturbed on appeal unless the trial court abused its discretion, meaning the reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right. When reviewing a claim of excessive leniency the appellate court considers the nature and circumstances of the offense, the history and characteristics of the defendant, the need for deterrence, protection of the public, just punishment, and the defendant's need for correctional treatment under Neb. Rev. Stat. § 29-2322, as well as the factors for withholding imprisonment under Neb. Rev. Stat. § 29-2260.22
No. The presentence investigation report showed that Thompson had no prior sex offenses, maintained steady employment, possessed less than average intelligence, and had only two dated DUI convictions. The evaluating psychologist found no evidence of pedophilia, grooming, or violence and concluded the offenses resulted from poor judgment and impulse control.23 The Sexual Adjustment Inventory placed Thompson in the low-risk range for antisocial behavior, violence, and substance abuse, and the probation officer recommended intensive supervised probation with strict conditions.24 The trial court imposed those conditions, including annual jail time, sexual-behavior counseling, electronic monitoring, and prohibitions on contact with minors and possession of pornography.25
Although the victim and her counselor sought imprisonment, the statutory factors supported probation rather than a finding that imprisonment was necessary to protect the public or that a lesser sentence would depreciate the seriousness of the offense.26
The district court did not abuse its discretion by imposing the consecutive five-year terms of intensive supervision probation.27