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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. COOKE

Cite as 311 Neb. 511

State of Nebraska, appellee, v. 

Alisia C. Cooke, appellant. 

___ N.W.2d ___

Filed May 6, 2022. No. S-21-320.

1. Trial: Prosecuting Attorneys: Appeal and Error. When a defendant 

has not preserved a claim of prosecutorial misconduct for direct appeal, 

an appellate court will review the record only for plain error.

2. Appeal and Error. An appellate court may find plain error on appeal 

when an error unasserted or uncomplained of at trial, but plainly evident 

from the record, prejudicially affects a litigant’s substantial right and, 

if uncorrected, would result in damage to the integrity, reputation, and 

fairness of the judicial process.

3. Sentences: Appeal and Error. Absent an abuse of discretion by the trial 

court, an appellate court will not disturb a sentence imposed within the 

statutory limits.

4. Judges: Words and Phrases. A judicial abuse of discretion exists 

only when the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying just 

results in matters submitted for disposition.

5. Appeal and Error. An appellate court may find plain error on appeal 

when an error unasserted or uncomplained of at trial, but plainly evident 

from the record, prejudicially affects a litigant’s substantial right and, 

if uncorrected, would result in damage to the integrity, reputation, and 

fairness of the judicial process.

6. ____. An appellate court will find plain error only when a miscarriage of 

justice would otherwise occur.

7. Trial: Prosecuting Attorneys. Prosecutors are charged with the duty to 

conduct criminal trials in a manner that provides the accused with a fair 

and impartial trial.

8. Prosecuting Attorneys: Words and Phrases. Because prosecutors are 

held to a high standard for a wide range of duties, the term “prosecutorial misconduct” cannot be neatly defined.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/22/2022 09:06 AM CDT
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. COOKE

Cite as 311 Neb. 511

9. Trial: Prosecuting Attorneys: Words and Phrases. Prosecutorial misconduct encompasses conduct that violates legal or ethical standards for 

various contexts because the conduct will or may undermine a defend

ant’s right to a fair trial.

10. Trial: Prosecuting Attorneys. In assessing allegations of prosecutorial 

misconduct based on prosecutorial remarks, a court first determines 

whether the prosecutor’s remarks were improper. Next, a reviewing 

court must determine the extent to which the improper remarks had a 

prejudicial effect on the defendant’s right to a fair trial.

11. Sentences. The first step in analyzing whether a sentence is excessive is 

to examine the statutory limits on the penalties for such an offense.

12. ____. If a sentence is within statutory limits, the second step is to determine whether the sentencing court abused its discretion in considering 

well-established factors and any applicable legal principles.

13. ____. When imposing a sentence, a sentencing judge should consider 

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, (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. The sentencing court is not limited to any 

mathematically applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing 

judge’s observations of the defendant’s demeanor and attitude and all the 

facts and circumstances surrounding the defendant’s life.

14. Courts: Plea Bargains. In Nebraska, a court is not bound by the plea 

agreement made between a defendant and the government.

Appeal from the District Court for Sarpy County: Stefanie 

A. Martinez, Judge. Affirmed.

April L. O’Loughlin, Deputy Sarpy County Public Defender, 

for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. COOKE

Cite as 311 Neb. 511

Miller-Lerman, J.

NATURE OF CASE

The appellant, Alisia C. Cooke, pled guilty to second degree 

murder in the district court for Sarpy County. Although she had 

reached a plea agreement under which the State would “make a 

recommendation of a sentence of 20 years,” she was ultimately 

sentenced to a period of incarceration of no less than 60 years 

and no more than life. This is Cooke’s direct appeal. Cooke 

argues that the State engaged in prosecutorial misconduct 

by failing to make a sentencing recommendation consistent 

with the plea agreement. She further claims that the sentence 

imposed is excessive. We affirm.

STATEMENT OF FACTS

On March 15, 2019, Cooke entered a plea of guilty to one 

count of second degree murder, a Class IB felony, arising 

from the killing of Brent Quigley. Quigley was stabbed during a home robbery in 2018, and Cooke was among several 

defendants charged in the district court for Sarpy County in 

connection with Quigley’s death. Cooke agreed to cooperate 

fully with the State and provided deposition and trial testimony 

against two codefendants, who were ultimately convicted of 

second degree murder and first degree murder. In return for 

her truthful testimony and plea, in a written plea agreement, 

the State agreed to advise the court of the nature and extent 

of Cooke’s cooperation and to make a recommendation of “a 

sentence of 20 years in imprisonment.”

A presentence investigation report was prepared for the 

court. The district court held a sentencing hearing on March 

25, 2021, with the parties appearing via videoconferencing.

Counsel for Cooke addressed the court and requested that 

the trial court should “follow the plea agreement in this matter and the State’s sentencing recommendation of 20 years 

with a maximum sentence of ten years,” minus credit for 

time served.
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. COOKE

Cite as 311 Neb. 511

The prosecutor disagreed with Cooke’s characterization of 

the plea agreement. Because the prosecutor’s representations 

to the court are material to Cooke’s claims on appeal, several of the prosecutor’s remarks regarding sentencing are set 

forth below:

The State does appreciate that she assisted in the prosecution of the codefendants, . . . but that doesn’t excuse 

her behavior by any means.

Judge, I’d also note — I do have a copy of the plea 

agreement, which I believe is Exhibit 2, and I’m sure 

the Court has reviewed that previously, because I don’t 

agree with [Cooke’s counsel’s] characterization of the 

plea agreement, Judge. She said that it’s 20 years max 

and I don’t agree that that’s the language. I realize that 

maybe the language could have been clearer between the 

parties, but that is what the agreement is. And I can read 

it for the Court. It says [Cooke] shall also enter a plea of 

guilty to an amended charge of second-degree murder, 

Class 1B felony, punishable by a minimum of 20 years 

imprisonment and a maximum of imprisonment for life. 

In return for her truthful testimony, the State agrees at 

time of sentencing to advise Judge Martinez of the nature 

and extent of [Cooke’s] cooperation and to make a recommendation of a sentence of 20 years imprisonment; 

however, Judge Martinez does not have to abide by the 

20-year recommendation.

Judge, the State’s going to stand by that recommendation because that’s what the language is; however, I 

don’t believe that’s the same as saying that that’s what 

— that that’s what maximum is. The State is going to 

stand by that 20-year recommendation as outlined in the 

plea agreement.

Counsel for Cooke responded that it

sounds back ended like maybe the State isn’t standing 

by that sentencing recommendation. But anticipating that 

that language in the plea agreement might potentially 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. COOKE

Cite as 311 Neb. 511

become an issue, on February 27, 2019, I sent an email 

to [the prosecutor] prior to discussing this plea agreement with my client and prior to her entering that into 

the Court.

Cooke offered as evidence a February 27, 2019, email 

from the State’s prosecutor to her counsel, which email states 

that “[t]he sentence would be 20 years imprisonment which 

is in cut [sic] in half so it would be 10 years imprisonment. 

Thanks for clarifying.” At the sentencing hearing, the prosecutor stated that the February 27 email “is not part of the 

plea agreement.”

Counsel for Cooke made no objections to the remarks made 

by the prosecutor at the sentencing hearing.

The district court rejected the 20-year recommendation of 

the plea agreement. It stated that “the sentence that the State 

has recommended in the plea agreement would depreciate 

the seriousness of this crime and would promote disrespect 

for the law. For those reasons, the Court is not going to go 

along with that recommendation.” The district court sentenced Cooke to a period of incarceration of no less than 60 

years and no more than life. Cooke received credit for 1,017 

days already served.

Cooke is represented in this appeal by her trial counsel.

ASSIGNMENTS OF ERROR

Cooke assigns, summarized and restated, that the State 

engaged in prosecutorial misconduct by breaching the plea 

agreement. She further claims that the district court erred when 

it imposed an excessive sentence.

STANDARDS OF REVIEW

[1,2] When a defendant has not preserved a claim of prosecutorial misconduct for direct appeal, we will review the 

record only for plain error. State v. Kipple, 310 Neb. 654, 

968 N.W.2d 613 (2022). An appellate court may find plain 

error on appeal when an error unasserted or uncomplained 

of at trial, but plainly evident from the record, prejudicially 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. COOKE

Cite as 311 Neb. 511

affects a litigant’s substantial right and, if uncorrected, would 

result in damage to the integrity, reputation, and fairness of the 

judicial process. Id.

[3,4] Absent an abuse of discretion by the trial court, an 

appellate court will not disturb a sentence imposed within the 

statutory limits. State v. Grant, 310 Neb. 700, 968 N.W.2d 837 

(2022). A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just 

results in matters submitted for disposition. Id.

ANALYSIS

In this direct appeal, Cooke claims that the State committed 

prosecutorial misconduct by breaching the parties’ plea agreement with respect to the recommended sentence. In the alternative, she claims that the district court imposed an excessive 

sentence and abused its discretion.

Prosecutorial Misconduct.

Cooke assigns that the prosecutor engaged in misconduct 

with respect to the sentencing recommendations embodied in 

the parties’ plea agreement. Cooke has maintained throughout the trial court proceedings and in this appeal that the plea 

agreement between the parties obligated the State to recommend a sentence of 20 years’ imprisonment with a maximum 

sentence of 10 years’ imprisonment.

As an initial matter concerning our review, we note that 

Cooke did not object to the prosecutor’s remarks at the sentencing hearing. She did not seek to withdraw the plea or seek 

specific performance of the plea agreement by way of sentencing before a different judge. See State v. Iddings, 304 Neb. 759, 

936 N.W.2d 747 (2020). When a defendant has not preserved 

a claim of prosecutorial misconduct for direct appeal, we will 

review the record only for plain error. State v. Dubray, 289 

Neb. 208, 854 N.W.2d 584 (2014). Thus, we review Cooke’s 

assertion of prosecutorial misconduct based on the prosecutor’s 

remarks at sentencing for plain error.
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. COOKE

Cite as 311 Neb. 511

[5,6] An appellate court may find plain error on appeal when 

an error unasserted or uncomplained of at trial, but plainly 

evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the 

integrity, reputation, and fairness of the judicial process. Id. 

Generally, we will find plain error only when a miscarriage of 

justice would otherwise occur. Id. “‘[T]he plain-error exception to the contemporaneous-objection rule is to be “used sparingly, solely in those circumstances in which a miscarriage of 

justice would otherwise result.”’” State v. Barfield, 272 Neb. 

502, 511, 723 N.W.2d 303, 312 (2006) (quoting United States 

v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985)), 

disapproved on other grounds, State v. McCulloch, 274 Neb. 

636, 742 N.W.2d 727 (2007).

[7-9] Prosecutors are charged with the duty to conduct 

criminal trials in a manner that provides the accused with a 

fair and impartial trial. State v. Dubray, supra. Because prosecutors are held to a high standard for a wide range of duties, 

the term “prosecutorial misconduct” cannot be neatly defined. 

Id. Generally, prosecutorial misconduct encompasses conduct 

that violates legal or ethical standards for various contexts 

because the conduct will or may undermine a defendant’s 

right to a fair trial. State v. Kipple, 310 Neb. 654, 968 N.W.2d 

613 (2022).

[10] In assessing allegations of prosecutorial misconduct based on prosecutorial remarks, a court first determines 

whether the prosecutor’s remarks were improper. See id. Next, 

a reviewing court must determine the extent to which the 

improper remarks had a prejudicial effect on the defendant’s 

right to a fair trial. See id.

Turning to the case before us, Cooke maintains that the 

statements by the prosecutor concerning the sentence “effectively undermine[d] the promised recommendation” and violated the plea agreement. See State v. Landera, 285 Neb. 

243, 257, 826 N.W.2d 570, 578 (2013). Specifically, Cooke 

points to the following statement by the prosecutor: “I don’t 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. COOKE

Cite as 311 Neb. 511

agree with [Cooke’s counsel’s] characterization of the plea 

agreement, Judge. She said that it’s 20 years max and I don’t 

agree that that’s the language.” Cooke further takes issue with 

the prosecutor’s argument made to the district court to the 

effect that the emails between counsel concerning the sentencing recommendation were not part of the agreement.

Upon our close review of the record, we find that the 

prosecutor did not violate the plea agreement, and thus, his 

remarks regarding the plea agreement were not improper. At 

the sentencing hearing, Cooke’s counsel asked the court to follow the “sentencing recommendation of 20 years with a maximum sentence of ten years.” Replying to this assertion, the 

prosecutor observed that the plea agreement did not promise 

a 10-year maximum sentence, even though he acknowledged 

that application of good time provisions could reduce the sentence actually served. In that regard, we note that Neb. Rev. 

Stat. § 28-105(1) (Reissue 2016) sets a minimum sentence 

of 20 years’ imprisonment for the Class IB felony of which 

Cooke stood convicted. Further, at the initial sentencing, the 

State and the sentencing court are not authorized to determine 

or apply good time to the sentence of a prisoner, even if they 

are familiar with how it might be applied. See Neb. Rev. Stat. 

§ 83-1,110(1) (Reissue 2014).

The record and the terms and conditions actually agreed to 

by the parties show that the State adhered to its written promise 

to recommend “a sentence of 20 years.” Cooke contends that 

the emails between the parties expanded the terms of the agreement such that the recommendation would be “20 years with a 

maximum sentence of ten years” or sometimes phrased as “20 

years with a release date of 10 years.” Neither formulation is 

supported by the record or applicable law.

At the sentencing hearing the prosecutor stated: “The State 

is going to stand by that 20-year recommendation as outlined 

in the plea agreement.” The prosecutor continued that he had 

not characterized the 20 years as a maximum. The prosecutor’s purported agreement to expand the plea agreement to 
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. COOKE

Cite as 311 Neb. 511

promise either a 10-year maximum sentence of imprisonment 

or a 10-year release date were not within the State’s power, 

and the prosecutor’s remarks which recognized these limitations were not improper. A sentencing recommendation need 

not be enthusiastic to fulfill a promise made in a plea agreement. State v. Landera, supra. See United States v. Benchimol, 

471 U.S. 453, 105 S. Ct. 2103, 85 L. Ed. 2d 462 (1985).

Because we determine that the prosecutor’s remarks regarding sentencing did not breach the plea agreement and were 

not improper, we need not reach the second part of the prosecutorial misconduct analysis regarding whether a substantial 

right was affected. We find no plain error with respect to this 

assignment of error.

Excessive Sentence.

Cooke claims that the district court imposed an excessive 

sentence. Specifically, she contends that the district court failed 

to give proper weight to her age, health and social history, and 

criminal record. Cooke has suffered from cystic fibrosis and a 

brain tumor, which in the past, resulted in her loss of speech, 

mobility, and sight for a period of time. She was the victim of 

sexual assault, and she had a turbulent family history of drug 

addiction, prostitution, and poverty. Cooke also notes that at 

the time of sentencing, she had participated in rehabilitation 

programs and achieved 21⁄2 years of sobriety.

[11,12] The first step in analyzing whether a sentence is 

excessive is to examine the statutory limits on the penalties for such an offense. State v. Grant, 310 Neb. 700, 968 

N.W.2d 837 (2022). Cooke was convicted of second degree 

murder, a Class IB felony. See Neb. Rev. Stat. § 28-304(2) 

(Reissue 2016). Section 28-105(1) sets a minimum sentence 

of 20 years’ imprisonment and a maximum sentence of life 

imprisonment for a Class IB felony. Cooke’s sentence of a 

period of incarceration of no more than 60 years and no more 

than life does not exceed the statutory limits. If a sentence 

is within statutory limits, the second step is to determine 
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Nebraska Supreme Court Advance Sheets

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STATE v. COOKE

Cite as 311 Neb. 511

whether the sentencing court abused its discretion in consid

ering well-established factors and any applicable legal principles. See State v. Blake, 310 Neb. 769, 969 N.W.2d 399 

(2022). A judicial abuse of discretion exists 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. See id.

[13] When imposing a sentence, a sentencing judge should 

consider 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, (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. Id. The sentencing court is not limited to any mathematically applied set of factors, but the appropriateness of the 

sentence is necessarily a subjective judgment that includes the 

sentencing judge’s observations of the defendant’s demeanor 

and attitude and all the facts and circumstances surrounding the 

defendant’s life. Id.

In sentencing Cooke, the district court considered her age, 

mentality, education and experience, social and cultural background, past criminal record or record of law-abiding conduct, 

and motivation for the offense, as well as the nature of the 

offense and the amount of violence involved in the commission of the crime. It noted her eventual cooperation in the case. 

Although the court acknowledged Cooke’s personal and medical history as mitigating circumstances, it addressed Cooke 

regarding her role in the murder:

Quigley would most likely be alive and enjoying his life 

today with his family and friends had it not been for 

you . . . because ultimately, you were the one that set 

this in motion. You were the one that chose the target, 

. . . Quigley; you set up the meeting; you allowed [the 

codefendants] into the home and then finally you prevented his escape . . . .
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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. COOKE

Cite as 311 Neb. 511

The record includes the presentence investigation report. 

The record shows that the court reviewed the entire report, 

which contains the information necessary to weigh the sentencing factors. Cooke was in the medium-risk range for criminal 

history, as well as for alcohol and drug use. She was in the 

high-risk range on some of the other sections. She scored in 

the high-risk range to reoffend overall.

[14] In Nebraska, a court is not bound by the plea agreement made between a defendant and the government. State v. 

Landera, 285 Neb. 243, 826 N.W.2d 570 (2013). The record 

provides a sound basis for the sentence imposed. We find no 

abuse of discretion, and we therefore determine that the sentence was not excessive.

CONCLUSION

For the reasons explained above, we affirm Cooke’s pleabased conviction for second degree murder and her sentence.

Affirmed.