Invalid expost facto sentence reversed but State must allow Defendant to plead to bargained charges

State v. Alba, 13 Neb. App. 519 May 10, 2005. No. A-04-1125.

Defendant thought he was taking a plea to 2 counts of sexual assault on a child, purportedly Class II felonies {Class II’s range from 1-50 years}. Actually the crimes charged in the amended information were class IV felonies {zero to five years}. The Prosecuting Attorney wanted a “do-over” in other words he wanted to discard the plea bargain. The Court holds the defendant is entitled to plead to the crimes he agreed, with a re-sentencing. Defendant first plead to two class II felonies for crimes occurring in 1997 and the Court sentenced him to consecutive sentences of 5-10 and 10-15 years respectively.

Trouble was that the Prosecutor, defense counsel and the Court did not realize that § 28-320.01 {first-offense sexual assault of a child} was a Class IV felony when the defendant committed these crimes {Unicameral changed first-offense sexual assault of a child to a Class IIIA felony. See 1997 Neb. Laws, L.B. 364 (operative date July 1, 1998). Because the crimes set forth in the information were alleged to have occurred on or about January 1, 1997, the version of § 28-320.01 classifying first-offense sexual assault as a Class IV felony controls here. The Appeals Court agreed, holding that the penalties for violating 28-320.01 at the time of the crimes control, as to impose a harsher sentence afterward would violate the ex post facto clause. See State v. Gray, 259 Neb. 897, 612 N.W.2d 507 (2000) (law which creates or enhances penalties that did not exist when offense was committed is unenforceable ex post facto law).

While the Prosecuting Attorney, defense lawyer and judge were all mistaken, the appeals court majority holds that the Prosecutor bears the risk of its own but collective mistake. The State made the agreement with Alba that he would plead no contest to reduced charges, and a particular sentence was not part of the agreement. The State’s expectations regarding sentencing were inherently unreasonable, as said earlier, and thus form no basis for rescission of the agreement. Alba is entitled to a lawful sentence based on the charges of which he and the State agreed that he would stand convicted.

Judge Irwin dissents on the majority’s remedy, stating that an invalid conviction following a plea bargain means the parties start from scratch, and not with the defendant facing no more than 10 years as compared to 100 years in prison. A Pennsylvania Federal Judge has held that if a court must vacate a plea bargain because of a mutual mistake of fact, that it is up to the State Court to fashion a remedy.