In re Interest of Justin V.
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Decisions
of the Nebraska Court of Appeals
18 nebraska appellate reports
960
In
re I nterest of
Justin V., a child
18 years of age.
State of Nebraska, appellee,
v. Justin V., appellant.
under
___ N.W.2d ___
Filed May 3, 2011.
No. A-10-566.
1. Justiciable Issues. Justiciability issues that do not involve a factual dispute pre
sent a question of law.
2. Moot Question: Jurisdiction: Appeal and Error. Because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction,
an appellate court reviews mootness determinations under the same standard of
review as other jurisdictional questions.
3. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, its determination is a matter of law, which
requires an appellate court to reach a conclusion independent of the decisions
made by the lower courts.
4. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
5. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
6. Juvenile Courts: Minors: Right to Counsel: Waiver: Appeal and Error. The
juvenile court’s determination as to whether a juvenile’s waiver of counsel was
voluntary, knowing, and intelligent is reviewed de novo on the record for an
abuse of discretion.
7. Pleas: Appeal and Error. The right to withdraw a plea previously entered is not
absolute, and, in the absence of an abuse of discretion on the part of the trial
court, refusal to allow a defendant’s withdrawal of a plea will not be disturbed
on appeal.
8. Standing: Moot Question. Standing is judged at the time the action is begun,
and thereafter, the analysis is under the rubric of mootness.
9. Moot Question: Words and Phrases. A case becomes moot when the issues
initially presented in the litigation cease to exist, when the litigants lack a legally
cognizable interest in the outcome of litigation, or when the litigants seek to
determine a question which does not rest upon existing facts or rights, in which
the issues presented are no longer alive.
10. Courts: Jurisdiction. Although not a constitutional prerequisite for jurisdiction,
an actual case or controversy is necessary for the exercise of judicial power.
11. Courts: Judgments. In the absence of an actual case or controversy requiring
judicial resolution, it is not the function of the courts to render a judgment that is
merely advisory.
12. Moot Question. As a general rule, a moot case is subject to summary dismissal.
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13. Criminal Law: Convictions: Proof: Moot Question. A criminal case is moot
only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.
14. Juvenile Courts: Minors: Right to Counsel: Waiver. Whether a juvenile has
knowingly, voluntarily, and intelligently waived the right to counsel is to be determined from the totality of the circumstances.
15. ____: ____: ____: ____. The circumstances considered in a totality of the
circumstances analysis of a juvenile’s waiver of counsel include the age, intelligence, and education of the juvenile; the juvenile’s background and experience generally, and more specifically, in the court system; the presence of the
juvenile’s parents; the language used by the court in describing the juvenile’s
rights; the juvenile’s conduct; the juvenile’s emotional stability; and the intricacy
of the offense.
16. Juvenile Courts: Minors: Right to Counsel: Waiver: Proof. Where a juvenile
waives his or her right to counsel, the burden lies with the State, by a preponderance of the evidence, to show that the waiver was knowingly, intelligently, and
voluntarily made.
17. Juvenile Courts: Minors: Confessions: Waiver. Courts should take special care
in scrutinizing a purported confession or waiver by a child.
18. Juvenile Courts: Minors: Right to Counsel: Waiver. In explaining to a juvenile his or her right to counsel, courts should take care to employ language that
the juvenile can understand and should take the time necessary to conduct a
sufficient inquiry into the juvenile’s understanding of the right to counsel and
waiver thereof.
19. Pleas: Appeal and Error. Prior to sentencing, the withdrawal of a plea forming
the basis of a conviction is addressed to the discretion of the trial court, and its
ruling will not be disturbed on appeal absent an abuse of that discretion.
20. Pleas. After the entry of a plea of guilty or no contest, but before sentencing, a
court, in its discretion, may allow a defendant to withdraw his or her plea for any
fair and just reason, provided that the prosecution has not been or would not be
substantially prejudiced by its reliance on the plea entered.
21. Pleas: Proof. The burden is on the defendant to establish by clear and convincing
evidence the grounds for withdrawal of a plea.
Appeal from the Separate Juvenile Court of Lancaster
County: R eggie L. Ryder, Judge. Affirmed.
Carlos A. Monzón, of Monzón Law, P.C., L.L.O., for
a
ppellant.
Gary E. Lacey, Lancaster County Attorney, Alicia B.
Henderson, and Meagan Deichert, Senior Certified Law
Student, for appellee.
Irwin, Moore, and Cassel, Judges.
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Moore, Judge.
INTRODUCTION
Justin V. appeals from an order of the separate juvenile court
of Lancaster County denying his request to withdraw his initial
admission to a charge of criminal mischief. Justin asserts that
he did not make a knowing waiver of his right to counsel and
that he had a fair and just reason for withdrawing his admission to the charge in this case. Because the juvenile court did
not abuse its discretion in determining that Justin’s waiver of
counsel was knowing, voluntary, and intelligent or in denying
Justin’s motion to withdraw his admission, we affirm.
BACKGROUND
On July 10, 2009, the State filed a petition in the juvenile
court, charging Justin with criminal mischief, a Class II misdemeanor, in violation of Neb. Rev. Stat. § 28-519(4) (Reissue
2008). Specifically, the State alleged that Justin was within the
meaning of Neb. Rev. Stat. § 43-247(1) (Reissue 2008) in that
on June 13, he had intentionally or maliciously damaged property belonging to a particular entity, causing a pecuniary loss of
more than $200 but less than $500.
On August 13, 2009, Justin, then 17 years old, appeared
before the juvenile court on the criminal mischief charge. His
mother was present with him at the hearing. The court began
by asking Justin if he had received a copy of the charge and
understood what the charge was. Justin confirmed that a copy
had been sent to him and that he knew what the charge was.
Next, the juvenile court explained Justin’s various rights.
The court explained Justin’s right to be represented by an
attorney during the course of the proceedings. The court
informed Justin that he could hire and consult with a private
attorney; that if his family could not afford an attorney, Justin
could request an attorney and the court would appoint one
at no cost; or that Justin could waive this right and proceed
without an attorney. The court then explained Justin’s right
to a speedy adjudication hearing, the State’s burden of proof,
and Justin’s right to cross-examine witnesses. At this point, the
court asked Justin if he had any questions, and Justin replied
that he did not.
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The juvenile court also explained Justin’s right to testify,
to put on his own defense, and to remain silent. The court
again informed Justin that the State, rather than Justin, had the
burden of proof with respect to the charge. The court warned
Justin that if he chose to say something during the hearing, it
could be used by the State against him. The court clarified by
stating that if Justin said something in court about the charge
that he had not previously said, he was “stuck with it.” The
court then explained that Justin had the right to a prompt or
quick hearing. The court told Justin that if he were placed at
a juvenile detention center, he would have the right to request
a hearing at any time to determine if he could be released
to return home. The court also explained Justin’s right to
appeal the court’s decisions. The court then asked Justin if
he understood his rights and whether he had any questions.
Justin indicated that he understood his rights and did not have
any questions.
Next, the juvenile court explained the potential consequences if Justin admitted to the charge or the State proved
that it was true at trial. The court told Justin that he could
be placed on probation or with the Department of Health
and Human Services, Office of Juvenile Services, and that
there would be specific terms and conditions he would have
to follow as part of either option. With regard to placement,
the court explained that it could allow Justin to remain with
his family, but that if the court determined at some point
that it was necessary and in Justin’s best interests, the court
had the option to consider various out-of-home placements
and even to consider placement at the Youth Rehabilitation
and Treatment Center in Kearney, Nebraska. The court told
Justin that it would need to find out more information about
him before determining the best option. The court further
explained the possible terms and conditions that Justin might
have to follow if the charge were found to be true, such
as paying restitution or performing community service. The
court also informed Justin that the longest amount of time the
case could remain pending would be until Justin turned 19,
but that the case could end sooner if the court determined that
Justin did not need to be under the court’s jurisdiction that
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long. The court told Justin that if the charge were found not
to be true, it would be dismissed. The court asked Justin if he
understood what could happen if the court found the charge to
be true and whether he had any questions. Justin replied that
he understood what could happen and that he did not have
any questions.
The court inquired whether Justin’s mother understood
Justin’s rights and potential consequences and whether she had
any questions. Justin’s mother replied that she understood and
that she did not have any questions.
The juvenile court then further discussed Justin’s right to
an attorney. The court again explained that Justin could hire
a private attorney, have a court-appointed attorney if the family could not afford one, or choose to proceed without an
attorney. The court asked if Justin understood and if he had
any questions. Justin responded that he understood and did
not have any questions. The court asked Justin if he knew
what he wanted to do about an attorney or if he wanted to
talk to his mother before letting the court know his decision.
The following dialog then took place: “[Justin]: Talk to her
about it. THE COURT: Okay. Why don’t you go ahead and
do that. [Justin]: Proceed. THE COURT: Which way? [Justin’s
mother]: Proceed with no attorney. [Justin]: No attorney.” The
court advised Justin that the decision to proceed without an
attorney was his to make and asked if he understood or had
questions. Justin indicated that he understood and did not have
any questions. He again informed the court that he wanted to
proceed without an attorney. In response to the next series of
questions from the court, Justin informed the court that no one
had forced him to give up his right to an attorney or threatened
him to persuade him to do so and that he was doing so of his
own free will and as his own voluntary act. Justin’s mother
confirmed for the court that she agreed with Justin’s decision
to waive his right to an attorney. The court then found that
Justin had waived his right to an attorney freely, voluntarily,
and intelligently.
After being informed that Justin was not eligible for diversion, the juvenile court read Justin the specifics of the criminal
mischief charge. Justin stated that he understood the charge.
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The court informed Justin that he could deny the charge, which
would lead to a hearing where the State would have to call
witnesses and present evidence. The court explained that if the
State did not prove the charge, the case would be over, but that
if the charge were proved at trial, the court would then have
to decide what would happen. The court informed Justin that
he also had the option to admit the charge, which the court
described as being “like pleading guilty” and admitting to the
court that he had done what was alleged. The court explained
that if Justin admitted the charge, there would not be a trial.
In response to the court’s questioning, Justin stated that he
understood the two ways he could respond to the charge and
that he did not have any questions. The court asked Justin if
he would admit or deny the charge, and Justin replied that he
would admit the charge.
After Justin’s admission of the charge, he informed the court
of his age and the court proceeded to question him further
about the admission. In response to this questioning, Justin
told the court that he admitted and understood the charge, that
his admission was made of his own free will and was his own
voluntary act, that no one had forced him to admit the charge
or threatened him to persuade him to do so, that no one had
made him any promises in exchange for his admission, and
that he was not under the influence of any drugs or alcohol.
Justin also told the court that he understood that there would
not be a trial; that no witnesses would testify or evidence be
presented by the State to prove the charge; that he was giving
up his right to see, hear, and cross-examine such witnesses;
that he was giving up the right to testify, put on a defense, or
bring his own witnesses; and that he was giving up his right to
remain silent.
In response to further questioning by the juvenile court,
Justin stated that he understood the court would have to decide
which disposition would be in Justin’s best interests and that
he did not have any questions. Justin again told the court that
it was his decision to admit the charge and informed the court
that he was admitting the charge because it was true. Justin’s
mother informed the court that she had no objection to the
court’s accepting Justin’s admission. The court then found that
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Justin’s admission was entered freely, voluntarily, and intelligently with the consent of his parent.
The juvenile court informed Justin that the State would read
the factual basis, or what it believed the evidence would be if
there were a trial, and asked Justin to listen carefully. The State
then read the factual basis, which stated that on June 13, 2009,
Justin and two other named juveniles were identified as throwing rocks at a particular building in Hickman, Nebraska; that
witnesses observed a glass window in the building break; and
that Justin and the other juveniles were contacted and admitted
to throwing the rocks, but that they denied that the damage was
a result of their throwing the rocks. All three juveniles were
cited for criminal mischief and turned over to their parents. The
estimated damage to the broken window was $388. In response
to further questioning by the court, Justin acknowledged that
he had heard what the State had said and that it was still his
decision to admit the charge.
The juvenile court found that there was a factual basis to support Justin’s admission to the charge, accepted Justin’s admission, and adjudicated Justin as a juvenile under § 43-247(1).
The court explained what would happen next, which would
include options of probation or placement with the Department
of Health and Human Services at a group or foster home, “an
institution,” or “even Kearney.” The court encouraged Justin to
stay out of trouble with the law, to follow the rules at home,
to attend school, and to refrain from using drugs and alcohol
between the date of the admission and the next hearing, as
those were the types of issues that the court would consider
in its decision process. Both Justin and his mother informed
the court that they did not have any questions at that point in
the hearing.
The case was set for a dispositional hearing on September 29,
2009. The case was continued, and on October 29, the juvenile
court placed Justin in the juvenile detention center for allegations that he violated his conditional release. On November 3,
the court held a detention hearing and authorized Justin to be
released to the custody of his mother and appointed an attorney for Justin. On January 13, 2010, Justin was accepted into
drug court. On January 20, an order for immediate custody
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was issued because Justin falsified a urine test by switching his
urine with someone else’s. Justin used marijuana on January
27, the day he was released from the juvenile detention center.
Justin was released to attend residential treatment on February
16, but he was “kicked out” 8 days later for unruly, threatening, and intimidating behavior.
On April 2, 2010, Justin appeared in court with his mother,
stepfather, and attorney for his disposition hearing. Justin’s
attorney made an oral motion, asking that Justin be allowed to
withdraw his plea and that the matter be set for an evidentiary
hearing. The juvenile court continued the hearing to give Justin
an opportunity to present evidence on the motion.
The juvenile court heard Justin’s motion to withdraw his
plea on April 12, 2010. Justin’s mother testified that on April
1 and 8, she spoke with one of the individuals who had been
with Justin when the rocks were thrown. She also spoke with
another of the involved juveniles on April 8. Justin’s mother
spoke with a third individual approximately a week after the
rock-throwing incident. She testified that based on these conversations, she believed that Justin did not throw any rocks
and should be allowed to withdraw his plea. Justin’s mother
testified that she was present with Justin in court on at least
a dozen occasions between August 13, 2009, and April 12,
2010. Justin’s mother acknowledged that she was able to speak
to Justin about the incident on the day it happened, when law
enforcement came to their residence to issue Justin a ticket for
the criminal mischief.
The juvenile court then asked Justin’s mother a series of
clarifying questions. Justin’s mother had testified that she did
not have a chance to talk to Justin about waiving his right to
an attorney. In response to the court’s questions, she agreed
that she was present in court for the explanation of Justin’s
rights and the potential consequences of the proceedings. She
confirmed that she had been asked whether she agreed and
that she had agreed, at the time, with Justin’s waiver of his
right to an attorney. Justin’s mother stated that she agreed
to the waiver only because she did not have the funds for a
private attorney, but agreed that Justin had been advised that
an attorney would be provided at no cost if the family could
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not afford one. Justin’s mother said she had believed the court
would appoint an attorney based upon her earning capacity. When asked why she did not ask the court to appoint an
attorney for Justin at that time, she replied, “I really don’t
know.” She also agreed that she had not objected to the
court’s accepting Justin’s admission at the time of the August
2009 hearing.
Justin also testified at the April 12, 2010, hearing. He stated
that his admission was voluntary; however, he testified that he
did not believe he entered his plea knowingly because it was
his first time in court and he did not really understand what the
judge was saying.
The hearing on Justin’s motion to set aside his plea resumed
on May 6, 2010, and a dispositional hearing was also held.
One of the other juveniles involved in the rock-throwing incident testified that the third juvenile was the one who threw
the rock that broke the window and that Justin never picked
up a rock.
After reviewing the evidence on Justin’s motion, the juvenile
court determined that it had clearly explained Justin’s rights
to him at the time of the August 2009 hearing in accordance
with statutory requirements. The court observed that Justin had
been appointed an attorney in November 2009 and that in the
intervening 5 months, he did not make a request to set aside
his admission. The court noted that Justin had numerous hearings in drug court and that it was not until he was removed
from drug court and the matter was set for disposition in the
juvenile court that he made the request to set aside his admission. The court determined that Justin had entered into his plea
freely, voluntarily, and intelligently and denied Justin’s motion
to withdraw his admission.
During the dispositional portion of the hearing, the court
discussed Justin’s actions, behavior, and attitude during the
period after August 13, 2009, including his noncompliance at
home, his behaviors at school, his use of marijuana, and his
unwillingness to accept responsibility. The court determined
that it would be in Justin’s best interests to be committed to
the Office of Juvenile Services at the Youth Rehabilitation and
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Treatment Center in Kearney until he is discharged or paroled.
Justin subsequently perfected his appeal to this court.
ASSIGNMENT OF ERROR
Justin asserts that the juvenile court erred in denying his
motion to withdraw his admission where the admission resulted
from an unknowing and uncounseled waiver of his right to
counsel.
STANDARD OF REVIEW
[1-3] Justiciability issues that do not involve a factual dispute present a question of law. Wetovick v. County of Nance,
279 Neb. 773, 782 N.W.2d 298 (2010). Because mootness is
a justiciability doctrine that operates to prevent courts from
exercising jurisdiction, an appellate court reviews mootness
determinations under the same standard of review as other
jurisdictional questions. Kuhn v. Wells Fargo Bank of Neb.,
278 Neb. 428, 771 N.W.2d 103 (2009). When a jurisdictional
question does not involve a factual dispute, its determination
is a matter of law, which requires an appellate court to reach
a conclusion independent of the decisions made by the lower
courts. Id.
[4,5] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings. In re Interest of Jorge O., 280 Neb.
411, 786 N.W.2d 343 (2010). To the extent an appeal calls for
statutory interpretation or presents questions of law, an appellate court must reach an independent conclusion irrespective of
the determination made by the court below. Id.
[6] The juvenile court’s determination as to whether a juvenile’s waiver of counsel was voluntary, knowing, and intelligent is reviewed de novo on the record for an abuse of discretion. In re Interest of Dalton S., 273 Neb. 504, 730 N.W.2d
816 (2007).
[7] The right to withdraw a plea previously entered is not
absolute, and, in the absence of an abuse of discretion on the
part of the trial court, refusal to allow a defendant’s withdrawal
of a plea will not be disturbed on appeal. State v. Williams, 276
Neb. 716, 757 N.W.2d 187 (2008).
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ANALYSIS
Mootness.
On January 14, 2011, the State filed a motion for summary dismissal, alleging that this case is moot because, as of
December 1, 2010, Justin is no longer a ward of the State, his
case has been closed, and he is no longer considered a parolee
or is not on parole. In response, Justin argues that he continues to be aggrieved and injured by the disposition and order
of confinement entered by the juvenile court and asserts that
we should consider this case under the public interest exception to the mootness doctrine because other rights and liabil
ities may be affected by the determination of this case. We
reserved ruling on the State’s motion until after oral argument
and now proceed to consider the parties’ arguments concerning mootness.
[8] In support of its motion, the State relies on In re Interest
of William G., 256 Neb. 788, 592 N.W.2d 499 (1999). In that
case, the Nebraska Supreme Court dismissed an appeal from an
order of the juvenile court, finding that the appellant no longer
had standing to appeal because after the notice of appeal was
filed, he was discharged from the Youth Rehabilitation and
Treatment Center and he no longer had any further contact
with the Office of Juvenile Services. However, since its decision in In re Interest of William G., the Nebraska Supreme
Court has determined that standing is judged at the time the
action is begun and that thereafter, the analysis is under the
rubric of mootness. See Myers v. Nebraska Invest. Council,
272 Neb. 669, 724 N.W.2d 776 (2006). Accordingly, we
find that In re Interest of William G. is not controlling in the
instant case; rather, our analysis must be under the rubric
of mootness.
[9-12] A case becomes moot when the issues initially presented in the litigation cease to exist, when the litigants lack a
legally cognizable interest in the outcome of litigation, or when
the litigants seek to determine a question which does not rest
upon existing facts or rights, in which the issues presented are
no longer alive. Kuhn v. Wells Fargo Bank of Neb., 278 Neb.
428, 771 N.W.2d 103 (2009). Although not a constitutional
prerequisite for jurisdiction, an actual case or controversy is
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necessary for the exercise of judicial power. Id. In the absence
of an actual case or controversy requiring judicial resolution,
it is not the function of the courts to render a judgment that is
merely advisory. Id. As a general rule, a moot case is subject to
summary dismissal. Id.
Justin is no longer a ward of the State, his case has been
closed, and he is no longer considered a parolee or is not on
parole. Thus, Justin’s case has become moot, a conclusion that
Justin does not dispute. However, Justin argues that an exception to the mootness doctrine should be applied in this case
because he will continue to be aggrieved by the decision.
[13] We turn to an examination of the collateral consequences exception to the mootness doctrine which has been
applied in the context of criminal proceedings in Nebraska. In
State v. Patterson, 237 Neb. 198, 465 N.W.2d 743 (1991), the
Nebraska Supreme Court found that the appeal was not moot,
even though the appellant had completed his sentence, because
the felony conviction subjected him to collateral consequences,
including the loss of voting rights in state elections, possible
use of the felony conviction to impeach his credibility, and
possible consideration of the felony conviction in imposing a
sentence for any subsequent offense. The court in Patterson
relied, in part, on Sibron v. New York, 392 U.S. 40, 88 S. Ct.
1889, 20 L. Ed. 2d 917 (1968), which held that a criminal case
is moot only if it is shown that there is no possibility that any
collateral legal consequences will be imposed on the basis of
the challenged conviction.
Although Nebraska has not applied the collateral consequences exception found in the criminal arena to a juvenile
matter, other states have done so. In Carillo v. State, 480
S.W.2d 612 (Tex. 1972), the Texas Supreme Court was presented with a situation very similar to the case at hand. In
Carillo, the juvenile appealed from an order finding him to be
delinquent and committing him to the Texas Youth Council.
After the appeal was filed, the juvenile was released from
probation and also reached the age of majority. The State of
Texas suggested that the case therefore had become moot.
The Texas Supreme Court disagreed, finding that the case
was not moot, relying in part upon Sibron v. New York, supra.
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The court reasoned that a juvenile would have no way to
exonerate himself if his appeal were mooted due to the expiration of a relatively short sentence, the lifting of probation,
or the juvenile’s attaining the age of majority. The court also
noted that an adjudication of delinquency could affect admission to a profession, the armed services, or private employment, and it noted other legal consequences of adjudication,
including consideration upon setting punishment for future
criminal or juvenile cases and publication of the record if
the juvenile were later charged with a felony. See, also, In
re S.J.C., 304 S.W.3d 563 (Tex. App. 2010) (Texas Court of
Appeals found mother’s appeal from finding that she contributed to child’s delinquency reviewable under collateral
consequences exception to mootness doctrine after child completed probation due to various legal consequences, including
requirement that mother attend counseling, pay fees and restitution, and provide probation department with child’s school
records); In re S.J.K., 114 Ohio St. 3d 23, 867 N.E.2d 408
(2007) (Ohio Supreme Court found juvenile’s appeal from
adjudication as juvenile traffic offender not moot following
voluntary payment of fine because imposition of points on
license was statutorily imposed penalty sufficient to create
collateral disability); In re P., 42 A.D.2d 908, 347 N.Y.S.2d
735 (1973) (New York Supreme Court, Appellate Division,
found juvenile’s appeal from adjudication not moot following
his discharge from probation due to possibility of collateral
legal consequences).
We conclude that the collateral consequences exception to
the mootness doctrine should be applied in this case. Justin
asserts that he will be subject to various collateral consequences as a result of his juvenile record. We agree. Courts
in Nebraska routinely consider a defendant’s juvenile court
record when sentencing in adult criminal cases. See, e.g.,
State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011); State
v. Hamilton, 277 Neb. 593, 763 N.W.2d 731 (2009); State
v. Albers, 276 Neb. 942, 758 N.W.2d 411 (2008); State v.
Hall, 237 Neb. 169, 465 N.W.2d 150 (1991); State v. Parks,
8 Neb. App. 491, 596 N.W.2d 712 (1999). Justin may also
have a duty to divulge a juvenile disposition order on various
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admissions and applications, such as the Nebraska bar examination application questionnaire. See, e.g., http://nebar.com/
associations/8143/files/NSBC-ExamApp072007.pdf (last visited Apr. 22, 2011) (requiring reporting of citations, arrests,
charges, or convictions as adult or juvenile for violation of
any law except moving traffic violations which are reported
elsewhere). We also note that the military considers an applicant’s juvenile record when determining fitness to enter into
the armed services or suitability for participation in special
programs. See 32 C.F.R. § 96.1 et seq. (2010) (concerning
acquisition and use of criminal history record information by
military services). We conclude that Justin may be subject to
collateral consequences such that his appeal is not moot.
We are mindful of the Nebraska statutes that allow for the
sealing of juvenile records upon the satisfactory completion
of probation or another treatment or rehabilitation program
and which prohibit questioning a person, with respect to
any arrest for which the record is sealed, in connection with
applications for employment, a license, or other rights or
privileges. See Neb. Rev. Stat. §§ 43-2,108.01 to 43-2,108.05
(Cum. Supp. 2010). These statutes provide, however, that a
sealed record is still accessible to law enforcement officers,
prosecutors, and sentencing judges in the investigation of
crimes and in the prosecution and sentencing of criminal
defendants. § 43-2,108.05(3). There is no evidence in our
record with respect to whether Justin satisfactorily completed
his treatment or rehabilitation program or whether his record
has been sealed.
Having concluded that Justin’s appeal is not moot, we now
turn to the merits of Justin’s appeal.
Did Juvenile Court Err in Denying
Motion to Withdraw Admission?
Justin asserts that the juvenile court erred in denying his
motion to withdraw his admission where the admission resulted
from an unknowing and uncounseled waiver of his right to
counsel. In considering Justin’s assignment of error, we first
consider whether he knowingly, voluntarily, and intelligently
waived his right to counsel. Then we consider whether Justin’s
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newfound claim of innocence is a fair and just reason to withdraw his admission.
Waiver of Counsel.
The first step in examining Justin’s waiver of his right to
counsel is to determine whether he was fully advised of his
rights. The juvenile court is required to advise a juvenile of his
or her right to counsel. Neb. Rev. Stat. § 43-272(1) (Reissue
2008) provides in part:
When any juvenile shall be brought without counsel before
a juvenile court, the court shall advise such juvenile and
his or her parent or guardian of their right to retain counsel and shall inquire of such juvenile and his or her parent
or guardian as to whether they desire to retain counsel.
The court shall inform such juvenile and his or her parent
or guardian of such juvenile’s right to counsel at county
expense if none of them is able to afford counsel.
Additionally, under Neb. Rev. Stat. § 43-279(1) (Reissue 2008),
the juvenile court shall inform a juvenile:
(a) Of the nature of the proceedings and the possible
consequences or dispositions . . . ;
(b) Of such juvenile’s right to counsel . . . ;
(c) Of the privilege against self-incrimination by advising the juvenile, parent, guardian, or custodian that the
juvenile may remain silent concerning the charges against
the juvenile and that anything said may be used against
the juvenile;
(d) Of the right to confront anyone who testifies against
the juvenile and to cross-examine any persons who appear
against the juvenile;
(e) Of the right of the juvenile to testify and to compel other witnesses to attend and testify in his or her
own behalf;
(f) Of the right of the juvenile to a speedy adjudication
hearing; and
(g) Of the right to appeal and have a transcript for
such purpose.
It is clear from the record that the juvenile court explained
Justin’s rights as required by §§ 43-272 and 43-279. The court
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provided a very detailed explanation of Justin’s rights and the
potential consequences or dispositions, stopping at numerous
points during the hearing to inquire whether Justin understood
the explanation or had any questions. There is no question that
the court’s advisement met the statutory requirements.
[14-18] Next, we consider whether Justin knowingly waived
his right to counsel. Whether a juvenile has knowingly, voluntarily, and intelligently waived the right to counsel is to
be determined from the totality of the circumstances. In re
Interest of Dalton S., 273 Neb. 504, 730 N.W.2d 816 (2007).
The circumstances considered in a totality of the circumstances
analysis of a juvenile’s waiver of counsel include the age,
intelligence, and education of the juvenile; the juvenile’s background and experience generally, and more specifically, in the
court system; the presence of the juvenile’s parents; the language used by the court in describing the juvenile’s rights; the
juvenile’s conduct; the juvenile’s emotional stability; and the
intricacy of the offense. Id. Where a juvenile waives his or her
right to counsel, the burden lies with the State, by a preponderance of the evidence, to show that the waiver was knowingly,
intelligently, and voluntarily made. Id. Courts should take special care in scrutinizing a purported confession or waiver by a
child. Id. In explaining to a juvenile his or her right to counsel,
courts should take care to employ language that the juvenile
can understand and should take the time necessary to conduct a
sufficient inquiry into the juvenile’s understanding of the right
to counsel and waiver thereof. Id.
The juvenile in In re Interest of Dalton S., supra, was 9
years old and mildly mentally handicapped. He was charged
with disorderly conduct for hitting another child and knocking over chairs at school. He was not experienced in the court
system, but his mother was present at the hearing and able
to speak freely with him. The court used plain language in
explaining the right to counsel. After the admission hearing,
the juvenile was appointed a guardian ad litem, who represented his interests throughout the remaining proceedings, and
by the time of the dispositional hearings, when the issues grew
more complex, he was represented by both a guardian ad litem
and retained counsel. Under the totality of the circumstances in
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that case, the Nebraska Supreme Court found no violation of
the juvenile’s right to counsel.
In this case, the totality of the circumstances also points to
a knowing, voluntary, and intelligent waiver of counsel. Justin
was 17 years old. Justin was charged with criminal mischief
for throwing rocks and causing damage to a building, which
is not a complicated offense. Although he was not experienced
in the court system, his mother was present with him at the
hearing. The juvenile court used plain language in explaining
Justin’s rights, often pausing to provide additional clarification.
The court gave Justin the opportunity to speak with his mother
prior to making his decision about counsel. Justin’s mother
stated that she agreed with the decision to proceed without an
attorney. We also note that Justin was appointed an attorney
in November 2009 and continued to be represented by counsel through the remaining proceedings prior to appeal. The
district court did not abuse its discretion in finding that Justin
made a knowing, voluntary, and intelligent waiver of his right
to counsel.
Withdrawal of Admission.
There is no case law in Nebraska setting forth standards for
appropriate grounds for withdrawing an admission in a juvenile case. The State asserts that the standard for withdrawing
pleas in adult criminal cases is appropriate for use in juvenile
court, since it balances the interests of justice and fairness to
a defendant against the potential prejudice to the State by the
withdrawal of the plea.
Our review of case law from other jurisdictions, although
not exhaustive, reveals several cases which apply the adult
criminal standard for withdrawal of pleas in cases analyzing a
juvenile’s request to withdraw an admission. See, In re P.L.B.,
40 Kan. App. 2d 182, 190 P.3d 274 (2008); In re J.E.H., 689
A.2d 528 (D.C. 1996); People in Interest of J.F.C., 660 P.2d 7
(Colo. App. 1982). But see In Interest of Bradford, 705 A.2d
443 (Pa. Super. 1997) (finding adult criminal rules and guidelines inapplicable and applying best interests of child standard
to review of decision refusing to permit juvenile to withdraw
admission of delinquency). In In re P.L.B., supra, the Kansas
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Court of Appeals considered an appeal from the denial of a
juvenile’s motion to withdraw his plea and to set aside his
juvenile adjudication. Because there was no provision in the
juvenile justice code for plea withdrawal, the court looked to
the withdrawal provisions of the criminal code for the appropriate standard. Id. In People in Interest of J.F.C., supra, the
Colorado Court of Appeals observed that delinquency proceedings were to be conducted in accordance with Colorado’s criminal procedure rules, except as otherwise provided by statute
or Colorado’s juvenile procedure rules. The court analogized
to the adult criminal rules concerning withdrawal of guilty
pleas. Id. Finally, we note that some states have actual juvenile
procedure rules incorporating standards for withdrawing pleas.
See, Fla. R. Juv. P. 8.075(e) (court may permit withdrawal of
guilty plea for good cause any time prior to beginning of disposition hearing); Minn. R. Juv. Del. P. 17.06, subdivision 3
(child may withdraw plea of guilty before disposition for any
just reason and after disposition if necessary to correct manifest injustice). Because neither the Nebraska Juvenile Code
nor prior case law has determined the standard for a juvenile’s
withdrawal of an admission to a crime, we conclude that it is
appropriate to adopt the criminal standard for withdrawal of a
plea in the context of a request to withdraw an admission in a
juvenile proceeding.
[19-21] Prior to sentencing, the withdrawal of a plea forming the basis of a conviction is addressed to the discretion of
the trial court, and its ruling will not be disturbed on appeal
absent an abuse of that discretion. State v. Williams, 276 Neb.
716, 757 N.W.2d 187 (2008). After the entry of a plea of guilty
or no contest, but before sentencing, a court, in its discretion,
may allow a defendant to withdraw his or her plea for any fair
and just reason, provided that the prosecution has not been or
would not be substantially prejudiced by its reliance on the
plea entered. Id. The burden is on the defendant to establish by
clear and convincing evidence the grounds for withdrawal of a
plea. Id. The right to withdraw a plea previously entered is not
absolute, and, in the absence of an abuse of discretion on the
part of the trial court, refusal to allow a defendant’s withdrawal
of a plea will not be disturbed on appeal. Id.
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Justin argues that he had a fair and just reason to withdraw
his admission because he pled after an unknowing waiver of his
right to counsel and because he now states that he was innocent
of the crime. We have already found that Justin knowingly,
voluntarily, and intelligently waived his right to counsel, so the
question is whether Justin’s newfound claim of innocence is a
fair and just reason to withdraw his admission.
At the August 2009 hearing, Justin told the juvenile court
that it was his decision to admit the charge and informed the
court that he was admitting the charge because it was true.
After hearing the factual basis for the criminal mischief charge,
Justin told the court that it was still his decision to admit the
charge. In support of Justin’s assertion that he did not commit
the crime, his mother testified that she now believes that Justin
did not throw any rocks and should be allowed to withdraw his
plea. Another of the juveniles involved in the incident testified
that Justin never picked up a rock on the evening in question.
Justin also testified that he did not throw a rock. We note, as
did the juvenile court, that Justin did not seek to withdraw his
admission until after being removed from drug court, at which
time he had had appointed counsel for 5 months. We agree with
Justin’s assertion that courts should be attentive to the capacity of juveniles to comprehend how and why they are being
held accountable for their behavior, but there is nothing in the
record to show that Justin was incapable of such understanding. He was a 17-year-old high school student being asked to
account for throwing rocks and damaging a window. Justin
has not shown a fair and just reason for withdrawal of his
plea. The juvenile court did not abuse its discretion in denying
Justin’s motion.
CONCLUSION
The district court did not abuse its discretion in finding that
Justin made a knowing, voluntary, and intelligent waiver of
his right to counsel or in denying Justin’s motion to withdraw
his admission.
Affirmed.
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