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12/25/2020 12:12 AM CST
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CANADAY
Cite as 307 Neb. 407
State of Nebraska, appellee, v.
Clint C. Canaday, appellant.
___ N.W.2d ___
Filed October 2, 2020. Nos. S-19-1102, S-19-1103.
1. Pleas: Appeal and Error. An appellate court will not disturb the trial
court’s ruling on a presentencing motion to withdraw a guilty or no contest plea absent an abuse of discretion.
2. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
3. Pleas. The right to withdraw a plea previously entered is not absolute.
4. Pleas: Proof. When a defendant moves to withdraw his or her plea
before sentencing, a court, in its discretion, may sustain the motion
for any fair and just reason, provided that such withdrawal would not
substantially prejudice the prosecution. The defendant has the burden to
show the grounds for withdrawal by clear and convincing evidence.
5. Appeal and Error. Appellate courts do not ordinarily consider arguments and theories raised for the first time on appeal.
6. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason,
and evidence.
7. Convicted Sex Offender. Because registration duties under the Sex
Offender Registration Act are not punitive, a trial court may inform a
defendant of the registration duties before accepting pleas of guilty or
no contest, but it is not required to do so.
8. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct,
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CANADAY
Cite as 307 Neb. 407
and (6) motivation for the offense, as well as (7) the nature of the
offense and (8) the amount of violence involved in the commission of
the crime.
9. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
10. ____. Generally, it is within a trial court’s discretion to direct that
sentences imposed for separate crimes be served either concurrently or
consecutively.
Appeals from the District Court for Dawes County: Travis
P. O’Gorman, Judge. Affirmed.
Justin J. Cook, of Lincoln Law, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Pursuant to a plea agreement, Clint C. Canaday entered no
contest pleas to felony charges in two separate cases. At the
sentencing hearing, he made an oral motion to withdraw one of
the pleas. The court overruled the motion and proceeded with
sentencing in both cases. Canaday appeals his convictions and
sentences in both cases, which we have consolidated for appellate review. Finding no error, we affirm.
I. BACKGROUND
On October 12, 2018, Canaday was charged in the district
court for Dawes County with three Class II felonies: intentional
child abuse resulting in serious bodily injury, 1 first degree
assault, 2 and use of a deadly weapon to commit a felony. 3
1
Neb. Rev. Stat. § 28-707 (Reissue 2016).
2
Neb. Rev. Stat. § 28-308 (Reissue 2016).
3
Neb. Rev. Stat. § 28-1205 (Reissue 2016).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CANADAY
Cite as 307 Neb. 407
The information also alleged Canaday was a habitual criminal. 4
Canaday entered “not guilty” pleas to all counts.
About 8 months later, on June 6, 2019, a second felony
information was filed against Canaday, charging him with two
counts of first degree sexual assault of a child, 5 both Class IB
felonies. 6 Canaday entered “not guilty” pleas to both counts.
1. Plea Agreement
In July 2019, Canaday and the State entered into a written
plea agreement involving both cases. In the first case, Canaday
agreed to plead guilty or no contest to an amended information
charging one count of intentional child abuse resulting in serious bodily injury and one count of child abuse not resulting in
serious bodily injury. In return, the State agreed to dismiss the
charges of first degree assault and use of a deadly weapon to
commit a felony, and it further agreed to dismiss the habitual
criminal allegation.
In the second case, Canaday agreed to plead guilty or no
contest to an amended information charging one count of first
degree sexual assault of a child. In return, the State agreed
to dismiss the second count of first degree sexual assault of
a child. And in both cases, the State also agreed not to file
additional charges against Canaday for offenses involving three
specific juveniles occurring prior to the date of his arrest.
A change of plea hearing in both cases was held July 22,
2019. At the hearing, Canaday’s counsel recited the terms of
the plea agreement on the record. The court asked Canaday
whether the terms, as stated, reflected his understanding of the
agreement, and Canaday answered, “Yes.”
During the plea colloquy, the court explained each charge
in the amended informations and the possible penalties,
including an advisement that the sentences imposed could be
ordered to be served concurrently or consecutively. Canaday
4
Neb. Rev. Stat. § 29-2221 (Reissue 2016).
5
Neb. Rev. Stat. § 28-319.01 (Reissue 2016).
6
§ 28-319.01(2).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CANADAY
Cite as 307 Neb. 407
stated he understood. The court also informed Canaday that
on the charge of first degree sexual assault of a child, he
“can be ordered to comply with” the Nebraska Sex Offender
Registration Act (SORA). Canaday stated he understood. The
court advised Canaday of the various rights he would be waiving by entering his pleas, and Canaday stated he understood.
Canaday told the court he did not have any questions about
his rights or the possible penalties, and when asked whether
he had enough time to think about his pleas and discuss them
with his attorney, Canaday replied, “Yes.”
Canaday entered pleas of no contest in both cases, after
which the State provided a factual basis for the charges. The
charges related to Canaday’s treatment of his girlfriend’s three
children. In the first case, concerning the charge of intentional
child abuse resulting in serious bodily injury, Canaday threw
a metal tape measure at his girlfriend’s then 5-year-old son,
causing the child’s lip to split so severely he needed plastic
surgery to correct it. The event was recorded on video cameras
the girlfriend had installed in the home. On the charge of child
abuse not resulting in serious bodily injury, Canaday used a
cattle prod to shock his girlfriend’s then 14-year-old son when
Canaday felt the child had misbehaved.
In the second case, concerning the charge of first degree
sexual assault of a child, the then 11-year-old daughter of
Canaday’s girlfriend told her mother that Canaday had been
sexually assaulting her, and the child’s mother told her she
needed “proof.” The child used her cell phone to make an
audio recording of two incidents in which Canaday anally and
vaginally penetrated her while she pleaded with him to stop. A
transcript of the audio recording was admitted into evidence at
the plea hearing.
After making appropriate findings, the district court accepted
Canaday’s pleas in both cases. In the first case, Canaday was
found guilty of intentional child abuse resulting in serious
bodily injury, a Class II felony, 7 and intentional child abuse
7
§ 28-707(1) and (7).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CANADAY
Cite as 307 Neb. 407
not resulting in serious bodily injury, a Class IIIA felony. 8
In the second case, Canaday was found guilty of first degree
sexual assault of a child, a Class IB felony. 9 A presentence
investigation report (PSR) was ordered and sentencing was
scheduled for October 22, 2019.
2. Sentencing Hearing
When the sentencing hearing began, defense counsel advised
the court:
Mr. Canaday tells me that at the time that he entered into
the plea it was his understanding he wasn’t going to have
to do the registration as outlined in the SORA.
I’ve been through it with him. He refuses to sign it;
does not want to be registered. Says that he would rather
withdraw his plea if registration is part of it because he’s
not going to sign it. He tells me that he — and I knew that
he was somewhat disabled as far as reading and writing.
He says he can’t read or write and just doesn’t understand
any part of it.
So for those reasons Mr. Canaday is requesting today
that he be allowed to withdraw his plea.
No exhibits were offered in support of the motion, and
Canaday offered no testimony. The State opposed the motion,
arguing Canaday had been properly advised of the consequences of his plea in the second case and there was no basis
for allowing withdrawal. The court agreed with the State, stating: “[T]he motion is denied. I told you when you entered your
plea you’d be required to comply with [SORA]. I don’t care if
you sign [the SORA form] or not. I really don’t. I’m still going
to order you to be a lifetime registrant [under SORA].”
The sentencing hearing proceeded. The State generally
requested consecutive sentences in the maximum range. It
argued that throwing the tape measure at the 5-year-old child
was senseless and brutal, that using a cattle prod on the
8
§ 28-707(1) and (4).
9
§ 28-319.01(1)(a).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CANADAY
Cite as 307 Neb. 407
14-year-old child was essentially torture, and that the audio
recording of the sexual assault on the 11-year-old child graphically depicted how vulnerable and helpless she was while
Canaday assaulted her.
Defense counsel did not request specific sentences, but he
argued that Canaday had taken responsibility for some of his
actions. Counsel also suggested that Canaday’s inability to read
and write complicated some of the testing included in the PSR.
Defense counsel confirmed he had discussed the PSR with
Canaday, and counsel also clarified the record regarding some
of the statements contained in the PSR.
Canaday was given an opportunity for allocution, but he
declined. The court then addressed Canaday directly:
I’ve listened to and considered the remarks of your attorney as well as the county attorney. I’ve carefully considered the [PSR].
In arriving at your sentence I’ve considered your age,
your mentality, your education, your experience, your
social and cultural background, as well as your past criminal record.
I’ve also considered the motivation for your offenses,
the amount of violence involved, as well as any letters
that I received.
You know, I will say this is one of the toughest sets of
[PSR’s] I’ve ever had to go through. And, you know, I felt
— if going through a [PSR] has bugged me like it did, I
can’t imagine what these children have been through. And
they will never be the same. . . .
You know, the Legislature gives a maximum sentence
on a sexual assault of a child as a life sentence, and, you
know, if there’s ever one that deserved a life sentence it’s
this one.
And you take absolutely no responsibility. You [claim
you] weren’t even there, despite the fact that there’s
video, there’s recordings. It’s just — you’re a monster
and you deserve to spend the rest of your life locked in a
cage. And I can’t say it any more nice[ly] than that.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CANADAY
Cite as 307 Neb. 407
The court then sentenced Canaday to consecutive terms of
imprisonment as follows:
• 20 to 30 years on the conviction of intentional child abuse
resulting in serious bodily injury;
• 2 to 2 years on the conviction of intentional child abuse not
resulting in serious bodily injury; and
• 50 years to life on the conviction of first degree sexual
assault of a child.
Canaday was given credit for 453 days previously served, and
speaking from the bench, the court ordered Canaday to comply
with SORA.
Canaday filed a timely notice of appeal in both cases.
We consolidated the appeals and now resolve them in a single opinion.
II. ASSIGNMENTS OF ERROR
Canaday assigns, renumbered, that the district court erred in
(1) not allowing him to withdraw his plea prior to sentencing
and (2) imposing excessive sentences.
III. STANDARD OF REVIEW
[1] A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas before sentencing. 10 An
appellate court will not disturb the trial court’s ruling on a
presentencing motion to withdraw a guilty or no contest plea
absent an abuse of discretion. 11
[2] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion
in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence to
be imposed. 12
10
State v. Carr, 294 Neb. 185,
881 N.W.2d 192 (2016).
11
Id.
12
State v. Becker, 304 Neb. 693,
936 N.W.2d 505 (2019).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CANADAY
Cite as 307 Neb. 407
IV. ANALYSIS
1. Withdrawal of Plea
[3,4] The right to withdraw a plea previously entered is not
absolute. 13 When a defendant moves to withdraw his or her
plea before sentencing, a court, in its discretion, may sustain
the motion for any fair and just reason, provided that such
withdrawal would not substantially prejudice the prosecution. 14
The defendant has the burden to show the grounds for withdrawal by clear and convincing evidence. 15
(a) Grounds for Withdrawal
Before the district court, Canaday’s counsel offered just two
reasons for seeking to withdraw his plea. First, he stated that
“at the time that [Canaday] entered into the plea it was his
understanding he wasn’t going to have to do the registration as
outlined in the SORA.” Second, Canaday’s counsel stated he
had been through the SORA advisement form with Canaday,
but he “refuse[d] to sign it; does not want to be registered.”
Counsel continued: “He says he can’t read or write and just
doesn’t understand any part of it. So for those reasons [he] is
requesting today that he be allowed to withdraw his plea.”
Both of these reasons pertained exclusively to the SORA consequences of Canaday’s plea to the charge of first degree sexual
assault of a child. Consequently, it appears the district court
treated Canaday’s oral motion to withdraw his plea as confined
only to the conviction for sexual assault of a child.
In his briefing on appeal, Canaday argues for the first time
that his difficulty reading and writing affected his ability
to understand the entire plea agreement and that he should
have been allowed to withdraw all of his pleas on that basis.
But Canaday did not convey such a request in the district
court. Rather, at the sentencing hearing, Canaday requested to
13
Carr, supra note 10.
14
Id.
15
Id.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CANADAY
Cite as 307 Neb. 407
withdraw his “plea” and the only grounds given for this request
were counsel’s representations that Canaday did not understand he would be subject to SORA and that Canaday’s illiteracy prevented him from understanding the SORA advisement form.
[5] During oral argument before this court, Canaday conceded that the district court was not presented with a request
to withdraw all of the pleas based on a claim that Canaday’s
inability to read and write made him unable to understand the
written plea agreement. Because appellate courts do not ordinarily consider arguments and theories raised for the first time
on appeal, 16 we will not entertain Canaday’s arguments seeking
to expand the grounds presented to the district court. Thus, in
considering whether the district court abused its discretion in
overruling Canaday’s motion to withdraw his plea, we limit
our analysis to those grounds expressly presented to the district court.
(b) No Abuse of Discretion
[6] For the reasons explained below, we find no abuse of
discretion in overruling Canaday’s motion to withdraw his
plea based on the claim he did not understand the SORA consequences. An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience,
reason, and evidence. 17
The record directly refutes Canaday’s claim that he did not
understand that a conviction for first degree sexual assault of
a child would subject him to SORA registration requirements.
During both his arraignment and his change of plea hearing,
the court advised Canaday that he could be ordered to comply
with SORA and Canaday affirmatively stated he understood.
[7] But even an incorrect or incomplete advisement on
SORA would not have entitled Canaday to withdraw his plea.
16
See State v. Uhing, 301 Neb. 768,
919 N.W.2d 909 (2018).
17
State v. Montoya, 304 Neb. 96,
933 N.W.2d 558 (2019).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CANADAY
Cite as 307 Neb. 407
In State v. Lane, 18 we explained that a defendant’s duty to
register under SORA is not a criminal penalty, but, rather, it is
a collateral civil consequence of a conviction. Because registration duties under SORA are not punitive, a trial court may
inform a defendant of the registration duties imposed under
SORA before accepting pleas of guilty or no contest, but it
is not required to do so. 19 And in Lane, we expressly rejected
the claim that a plea is rendered involuntary or unintelligent
because a defendant was not aware of his or her registration
duties under SORA. 20
On this record, we find no abuse of discretion in the district
court’s decision to overrule Canaday’s motion to withdraw
his plea.
2. Excessive Sentences
In both his appellate briefing and at oral argument before
this court, Canaday concedes the sentences imposed by the
district court were within statutory limits. Where a sentence
imposed within the statutory limits is alleged on appeal to be
excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying
the relevant factors as well as any applicable legal principles
in determining the sentence to be imposed. 21
[8,9] In determining a sentence to be imposed, relevant
factors customarily considered and applied are the defend
ant’s (1) age, (2) mentality, (3) education and experience,
(4) social and cultural background, (5) past criminal record
or record of law-abiding conduct, and (6) motivation for the
offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime. 22
The appropriateness of a sentence is necessarily a subjective
18
State v. Lane, 299 Neb. 170,
907 N.W.2d 737 (2018).
19
Id.
20
Id.
21
Becker, supra note 12.
22
Id.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. CANADAY
Cite as 307 Neb. 407
judgment and includes the sentencing judge’s observation of
the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life. 23
Canaday argues the district court failed to consider these
sentencing factors, but our review of the record affirmatively
refutes this argument. At the sentencing hearing, the district
court stated it had carefully considered the remarks of counsel
and the information in the PSR, which the judge described as
“one of the toughest” he had ever read. The court stated it had
considered Canaday’s age, mentality, education, experience,
and social and cultural background, as well as his past criminal
record. The court also stated it had considered Canaday’s motivation for the offenses and the amount of violence involved,
including the fact that his victims were children who “will
never be the same.” The record shows the district court considered and applied the relevant sentencing factors when determining Canaday’s sentences, and we find no abuse of discretion in that regard.
[10] Finally, Canaday argues it was an abuse of discretion to impose consecutive sentences. He generally characterizes his crimes as “related” and argues the court should have
imposed concurrent sentences. We soundly reject any suggestion that because Canaday’s victims were related, his crimes
were related. Canaday’s convictions involved different offenses
against different children on different dates. Generally, it is
within a trial court’s discretion to direct that sentences imposed
for separate crimes be served either concurrently or consecutively. 24 We find no abuse of discretion in the district court’s
imposition of consecutive sentences.
V. CONCLUSION
For the foregoing reasons, the convictions and sentences
are affirmed.
Affirmed.
23
Id.
24
State v. Leahy, 301 Neb. 228,
917 N.W.2d 895 (2018).
