Summary
The Nebraska Supreme Court affirmed Michael M. Dicken’s burglary conviction and sentence. The court held that the information sufficiently charged burglary under Neb. Rev. Stat. § 28-507 by alleging an intent to commit stalking or, alternatively, an intent to steal property, and that stalking could constitute the felony underlying the burglary charge. The court also rejected Dicken’s challenge to the conviction and sentence based on the alleged insufficiency of the information.
Topics
Practice areas
Questions Presented
- Whether the amended information sufficiently charged burglary when it alleged that Dicken intended to commit stalking, without pleading the elements or felony-enhancement circumstance of stalking.
- Whether stalking may serve as the felony underlying the intent element of burglary under Neb. Rev. Stat. § 28-507 when stalking may be classified as either a misdemeanor or a felony depending on statutory circumstances.
- Whether the district court erred in convicting and sentencing Dicken based on the allegedly insufficient information after accepting his guilty plea.
Holdings
- A voluntary guilty plea ordinarily waives procedural, statutory, and constitutional defenses, but it does not waive a defense that the indictment, information, or complaint is insufficient.
- The information was sufficient because it used the statutory language of burglary, identified stalking as the intended felony, alternatively alleged intent to steal property of any value, and reasonably informed Dicken of the charge he had to defend against.
- The phrase "any felony" in § 28-507 includes stalking committed under circumstances that make it a felony, even though stalking is classified as a misdemeanor in other circumstances.
- The burglary statute focuses on the defendant's intent when breaking and entering, not on completion of the intended felony; therefore, breaking and entering with intent to commit acts that form part of a course of conduct constituting felony stalking can satisfy § 28-507.
- The district court did not err in convicting and sentencing Dicken because the information was sufficient and Dicken's challenge to the factual basis was waived when he failed to object after being specifically asked whether the factual basis supported the plea.
Key quotations
“Because stalking is an offense that can be a felony, the reference to stalking in place of the “any felony” language of § 28-507 indicated that the State was alleging Dicken had the intent to commit stalking in a manner such that the offense would be classified as a felony.” (312)
“We see no reason that breaking and entering with the intent to commit an act or acts that are part of a pattern or course of conduct that constitutes felony stalking would not be encompassed within the “intent to commit any felony” under § 28-507.” (313)
Factual background
The State alleged that Dicken forcibly broke into the residence of a former romantic partner after posting her personal information online in a manner that resulted in calls and visits from strangers. The amended information charged burglary based on an intent to commit stalking or to steal property. At the plea hearing, the State described multiple break-ins and related conduct, and Dicken did not object to the factual basis. The district court accepted his guilty plea and imposed a consecutive sentence of 51 to 108 months.
Procedural history
The State charged Dicken with burglary under Neb. Rev. Stat. § 28-507, alleging that he broke and entered a building with intent to commit stalking or to steal property. The district court overruled Dicken's motion to quash, after which he pleaded guilty pursuant to an agreement under which the State would not charge him as a habitual criminal. The district court accepted the plea, entered judgment, and sentenced Dicken to 51 to 108 months' imprisonment. The Nebraska Supreme Court affirmed.