State v. Birge, 263 Neb. 77

Summary

The Nebraska Supreme Court held that the State breached a plea agreement by failing to remain silent at sentencing. Because the defendant objected to the breach, he preserved the issue for appellate review and was entitled to specific performance through resentencing before a different judge, although his failure to move to withdraw his pleas precluded that form of relief.

Holdings

1. A defendant who objects at the trial level to the State's breach of a plea agreement preserves the breach issue for appellate review even if the defendant does not move to withdraw the plea. Failure to move to withdraw the plea precludes relief in the form of plea withdrawal, but does not preclude relief in another form, such as specific performance.
2. The State breached its agreement to remain silent at sentencing by commenting that it did not share the defense comments and asking the court to consider the full range of available sentences. Specific performance was properly ordered by vacating the sentences and remanding for resentencing before a different judge while requiring the State to remain silent.
3. The State's breach could not be cured by offering to withdraw the comments or by the sentencing court's statement that the comments did not influence the sentence. The breach was not subject to harmless-error treatment in these circumstances.

Questions Presented

1. Whether a defendant who objects to the State's breach of a plea agreement but does not move to withdraw the plea preserves the breach issue for appellate review.
2. Whether the appropriate remedy for the State's breach may be specific performance of the plea agreement through resentencing before a different judge rather than withdrawal of the plea.
3. Whether the prosecutor's offer to withdraw the comments or the sentencing court's statement that it was not influenced by them cured the breach or rendered it harmless.

Disposition

affirmed