State v. Bol

294 Neb. 248

882 N.W.2d 674

State of Nebraska, appellee,

v.Angelo M. Bol, appellant.

No. S–15–706

Supreme Court of Nebraska.

Filed July 22, 2016

Charles D. Brewster, Kearney, of Anderson, Klein, Brewster & Brandt, for appellant.

Douglas J. Peterson, Attorney General, and George R. Love, Lincoln, for appellee.

Heavican, C.J., Wright, Connolly, Miller–Lerman, Cassel, Stacy, and Kelc h, JJ.

Connolly, J.

SUMMARY

Angelo M. Bol pleaded no contest to first degree murder. The court accepted Bol's plea and sentenced him to life imprisonment. On appeal, Bol argues that his plea was involuntary and that the court should have appointed him an interpreter because he had trouble understanding the English language. We conclude that Bol could comprehend the proceedings and communicate in English. We therefore affirm.

BACKGROUND

According to the prosecutor's factual basis to support Bol's plea of no contest, in December 2014, Bol got in a fight with the victim. The fight occurred at the meatpacking plant where they worked. Later, Bol's employer fired him. Bol went home and returned to the plant with a handgun. Bol waited a few hours for a shift change. While the victim was leaving the plant, Bol approached him, supposedly to ask a question. He then shot the victim several times in the torso and head. The victim died at the scene.

Although Bol focuses his assignments of error on the plea hearing, the record includes Bol's motion to suppress statements that he made at the scene and to an investigator for the county sheriff during questioning at the jail. Bol claimed that his statements were not freely and voluntarily made because the court did not properly inform him of his constitutional rights.

Officers responding at the scene wondered if Bol could speak English because he never said a word. They learned that Bol was Sudanese and tried to find an interpreter to come to the jail. But when the investigator asked Bol during the booking procedure if he understood English, he said yes. His native language is Dinka Bor. The interpreter who came to the jail appeared to know Bol or to know of him, and the sheriff's office decided not to use him. Because Bol had answered questions during the booking procedure in English, the sheriff's office decided that an interpreter was unnecessary. The booking procedure took 3 to 4 minutes. Later, the investigator read Bol his Miranda rights, had him sign a waiver form, and told him that if he did not understand something, he needed to tell the investigator. Bol said that he was willing to speak to the investigator. During the 2–hour interview, Bol never said that he did not understand a question.

Immigration officials told the investigator that Bol came to the United States in 2001 and became a lawful permanent resident in 2004. In addition to working in various meatpacking plants, Bol obtained a commercial driver's license. The court overruled the motion to suppress Bol's statements, finding that Bol gave his consent freely and voluntarily.

At the plea hearing, Bol's attorney stated that Bol had reached a plea agreement with the State. In exchange for Bol's plea of guilty or no contest to first degree murder, the State agreed to dismiss the charge of using a weapon to commit a felony. The court informed Bol that he would give up the constitutional rights the court would next describe by pleading guilty or no contest to the charges. The court informed Bol that he had the right to (1) have a trial by a jury of 12 persons or the judge alone; (2) be presumed innocent; (3) have guilt proved beyond a reasonable doubt; (4) have the court determine whether bond was appropriate; (5) be represented by counsel at the county's expense if he could not afford an attorney; (6) remain silent and not testify, or testify if he wished; (7) have witnesses against him testify and cross-examine them; (8) call witnesses and present evidence; and (9) use the court's subpoena power to compel a witness' testimony. Conversely, the court explained that Bol still had the right to counsel through sentencing and a direct appeal but that he would likely waive any court error to that point in the proceedings by entering a plea.

After this explanation, the court asked Bol a series of questions calling for yes or no answers. First, it asked Bol whether he had a condition or illness, or had used any substance, that would affect his ability to understand. Bol said no. After Bol's attorney described the plea agreement, Bol confirmed to the court that the stated agreement was correct and that he was satisfied with his attorney's advice and representation. Bol denied being compelled to comply with the agreement. The following colloquy then occurred:

[Court]: Do you understand that if you plead guilty or no contest to Count I in the amended information, which now charges you with first-degree murder, a Class IA felony, you will, in essence, be telling this Court that you committed the crime described in Count I or at least you do not contest the accuracy of the facts stated in Count I; do you understand that?

[Bol]: No.

[Court]: Okay. What is it about that you don't understand?

[Bol]: The process, the way it work.

[Court]: All right. Basically what's going to happen is if you plead guilty or no contest, there will not be any trial. What will happen is you are telling the Court that I did that crime. Or you are saying I'm not going to agree that I did that crime, but I am going to say that I'm not going to contest it[.] I'm not going to argue against anything that's said in Count I.

[Bol]: Well, yeah.

[Court]: Do you understand that?

[Bol]: Yeah.

[Court]: Okay. In this particular case the State has filed an amended information, that is, it has changed the original information. The way they changed it is they have dismissed the second count. That leaves one count only against you. That count now charges you with first-degree murder, which is a Class IA felony, ... one of the most serious levels of felony under Nebraska law.

....

Do you understand that is the charge or count to which you will be pleading guilty or no contest today?

[Bol]: Yes.

....

[Court]: Now, did you hear my description of the rights that you have under the constitution of the United States, the constitution of the State of Nebraska and the laws of both?

[Bol]: Yes.

[Court]: Do you have any questions with regard to those rights?

[Bol]: No.

[Court]: Do you understand that you will waive or give up all the rights I have told you you will waive or give up, if you plead guilty or no contest?

[Bol]: Yes.

[Court]: Do you understand if you plead guilty or no contest, I'll find you guilty of Count I, first-degree murder, a Class IA felony, without a trial; do you understand that?

[Bol]: What that mean?

[Court]: All right. Again, I want to make sure you understand this very clearly. If you plead guilty or no contest to Count I, I'm going to find you guilty of Count I, but there is going to be no trial. Your admission that you are guilty will be the sole basis upon which I will make a determination and I will find you guilty. Do you understand that?

[Bol]: Yes.

The court asked the prosecutor to advise Bol of the potential penalties he faced if he pleaded guilty or no contest. The prosecutor stated that “first-degree murder is a Class IA felony, punishable by a term of life imprisonment. That is the sentence.” The court asked Bol if he understood the potential penalties; Bol said yes.

Next, the court then explained that Bol's conviction was likely to adversely affect his ability to remain in the country or become naturalized, “assuming that you are ever released from prison.” When the court asked Bol if he still wished to enter a plea of guilty or no contest, his attorney stated that Bol had a question about the immigration consequences. When the court again explained that if Bol were ever released, his conviction would adversely affect his ability to stay in the country, Bol asked, “How can I leave if I will be sentenced to life?” The court responded as follows:

[Court]: That's correct; however, life sentences are not always necessarily life sentences. There are occasions when persons who are sentenced to life in prison get released, perhaps long after the prison term commences, but you need to know that if that would occur for some reason unknown to us at this point, that most likely would adversely affect your ability to remain in this country, work in this country or ever complete the naturalization process. Do you understand that?

[Bol]: Correct.

[Court]: All right. Would you please stand.... [W]ith regard to Count I of the amended information ... charging you with first-degree murder, a Class IA felony under Nebraska law, how, sir, do you plead? What is your plea?

[Bol]: Guilty or no contest.

[Court]: It has to be one or the other. It can't be both.

After an off-the-record discussion between Bol and his attorney, the court and Bol further conversed:

[Court]: ... [L]et's do this for purposes of the record, you are apparently having a little bit of difficulty understanding. I want to make sure you understand. There is little difference between a plea of guilty or no contest. Both will result in a guilty judgment. The only difference is that a plea of guilty can be used against you in some later court proceeding as an identification of guilt. A no contest plea typically cannot be used in most other civil and criminal proceedings, as the plea of guilty can be used. That's the only difference. Both will result in the finding you are guilty. Do you understand that?

[Bol]: It's kind of difficult to understand that.

[Court]: I understand that. Let's go over it one more time. If you plead guilty, it's going to happen because I'm going to find you guilty. I'm going to enter a judgment of guilt on first-degree murder, okay. If you plead no contest, I'm going to find you guilty, I'm going to enter a judgment of guilty of first-degree murder.

The only difference between the two pleadings is the potential affect they might

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