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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, 

Nebraska Supreme Court Online Library

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

10/09/2020 09:07 AM CDT
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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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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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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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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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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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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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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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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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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 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, 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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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).