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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. MEAD

Cite as 313 Neb. 892

State of Nebraska, appellee, v. 

Wesley A. Mead, appellant.

___ N.W.2d ___

Filed March 31, 2023. No. S-22-010.

1. Pleas: Appeal and Error. A trial court is afforded discretion in deciding 

whether to accept guilty pleas, and an appellate court will reverse the 

trial court’s determination only in case of an abuse of discretion.

2. Pleas: Waiver. In order to support a finding that a plea of guilty or 

nolo contendere has been entered freely, intelligently, voluntarily, and 

understandingly, the court must (1) inform the defendant concerning (a) 

the nature of the charge, (b) the right to assistance of counsel, (c) the 

right to confront witnesses against the defendant, (d) the right to a jury 

trial, and (e) the privilege against self-incrimination; and (2) examine 

the defendant to determine that he or she understands the foregoing. 

Additionally, the record must establish that (1) there is a factual basis 

for the plea and (2) the defendant knew the range of penalties for the 

crime with which he or she is charged. A voluntary and intelligent 

waiver of the above rights must affirmatively appear from the face of 

the record.

3. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Petition for further review from the Court of Appeals, Pirtle, 

Chief Judge, and Bishop and Welch, Judges, on appeal thereto 

from the District Court for Sherman County, Karin L. Noakes, 

Judge. Judgment of Court of Appeals reversed and remanded 

with directions.

Christopher P. Wickham, of Sennett, Duncan, Jenkins & 

Wickham, P.C., L.L.O., for appellant.

Nebraska Supreme Court Online Library

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

03/31/2023 09:06 AM CDT
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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. MEAD

Cite as 313 Neb. 892

Douglas J. Peterson, Attorney General, Siobhan E. Duffy, 

and Erin E. Tangeman for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

We granted further review of a Nebraska Court of Appeals 

decision 1 affirming plea-based convictions. Although the trial 

court did not ask if the defendant understood his rights or that 

his plea would waive certain constitutional rights, the Court 

of Appeals reasoned that the record as a whole demonstrated 

the pleas were entered voluntarily and intelligently. But our 

jurisprudence requires that the court examine the defendant and 

that the record show an affirmative, express waiver of rights. 

Because no such waiver appears in the record, we reverse, and 

remand the cause with directions.

BACKGROUND

Arraignment and Plea

The State charged Wesley A. Mead with 11 felonies. Mead 

appeared with counsel at the arraignment. The district court 

informed Mead that he had the right to a trial by a jury, the 

right to be confronted by all witnesses against him and to 

cross-examine those who testify against him at trial, the right 

to require witnesses to be present at any hearing or trial and 

to have them testify on his behalf, the right to remain silent 

and not be compelled to make any statement or testify against 

himself at any hearing, and the right to be represented by 

an attorney at all stages. The court also advised Mead that 

the State must prove beyond a reasonable doubt that Mead 

committed the offense charged before he could be convicted 

1 State v. Mead, No. A-22-010, 2022 WL 14169162 (Neb. App. Oct. 25, 

2022) (selected for posting to court website).
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Nebraska Supreme Court Advance Sheets

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STATE V. MEAD

Cite as 313 Neb. 892

of the offense and that if found guilty, he had the right to 

appeal the conviction. The court did not ask Mead if he understood those rights.

The court next informed Mead that he would be asked to 

enter a plea. The court explained the various consequences that 

would follow depending on whether Mead entered a plea of not 

guilty, a plea of guilty, or a plea of no contest. It stated, “If you 

plead guilty or no contest, you are advised that you’re giving 

up all the rights previously explained to you except your right 

to an attorney and the right to appeal.”

Following the explanation of the pleas, the court did not 

ask Mead if he understood the various pleas or if he had 

any questions.

The court instead asked if Mead could read, write, and 

understand the English language. Mead answered, “Yes.” The 

court asked if Mead was under the influence of alcohol or any 

mind-altering substance and if he was taking any prescriptions 

that affected his judgment. The court inquired if Mead understood what the court was saying, and he answered, “Yes.” The 

court stated, “It appears as though you are responding logically 

to the questions that I’m asking you.”

The court inquired about a plea agreement. Mead’s counsel replied that under the agreement, eight particular charges 

would be dismissed and Mead would enter a plea of guilty or 

no contest to the remaining three charges.

The court then read the three charges against Mead and 

asked if Mead understood the charges. He stated that he did. 

For each of the three charges, the court informed Mead of 

the felony classification—a Class IIIA felony, a Class IB 

felony, and a Class IV felony—and of the sentencing range. 

When the court asked whether Mead understood the possible 

penalties, Mead said, “Other than I thought the IB [felony] 

only was a 15-year minimum, at least that’s what I’ve read 

in your law books, revised of 2016.” After a discussion 

with counsel, the court “reiterate[d] the penalty on sexual 
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STATE V. MEAD

Cite as 313 Neb. 892

assault of a child, first degree.” The court then ascertained 

that Mead understood the possible penalties.

For each charge, Mead entered a plea of no contest and 

the prosecutor provided a factual basis. The court asked if 

Mead contested the factual bases, and Mead answered, “Yes.” 

Mead’s counsel clarified: “My client is saying I entered a no 

contest. I don’t agree with it, but I’m not contesting it.” Mead 

confirmed that was correct and that he was not contesting the 

factual basis provided by the State. The court found that a factual basis existed and that Mead was guilty of the three charges 

beyond a reasonable doubt.

Sentencing

The court ordered a presentence investigation. During the 

sentencing hearing, Mead’s counsel stated that Mead had 

requested counseling a number of times to “go through feelings” 

and “go through issues” but had not been provided a counselor. 

The court imposed consecutive sentences of imprisonment.

Appeal

Mead appealed and assigned three errors. Among other 

things, he assigned that his no contest pleas were not entered 

freely, intelligently, voluntarily, understandingly, and knowingly and that his trial counsel was ineffective in failing “to file 

a motion to obtain a psychological evaluation prior to sentencing for mitigation purposes.”

The Court of Appeals affirmed Mead’s convictions and sentences. It determined that Mead knew and understood what was 

happening at the plea hearing and that he asked questions when 

he did not understand something that was said. As to Mead’s 

claim that counsel provided ineffective assistance of counsel 

in failing to file a motion to obtain a psychological evaluation 

prior to sentencing, the Court of Appeals reasoned that the 

record showed counsel was not ineffective.

Mead filed a petition for further review, which we granted.
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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. MEAD

Cite as 313 Neb. 892

ASSIGNMENTS OF ERROR

Mead assigns two errors in his petition for further review. 

First, Mead alleges that the Court of Appeals erred by finding 

that his pleas of no contest were entered freely, intelligently, 

voluntarily, understandingly, and knowingly. Second, Mead 

alleges that the Court of Appeals erred by finding that trial 

counsel was not ineffective by failing to file a motion to obtain 

a psychological evaluation prior to sentencing for mitigation purposes.

STANDARD OF REVIEW

[1] A trial court is afforded discretion in deciding whether to 

accept guilty pleas, and an appellate court will reverse the trial 

court’s determination only in case of an abuse of discretion. 2

ANALYSIS

Pleas

Mead challenges the validity of his no contest pleas. He 

alleges that the Court of Appeals erred by finding that his pleas 

were entered freely, intelligently, voluntarily, understandingly, 

and knowingly. We agree.

[2] We have delineated the requirements for a valid plea of 

guilty or no contest. In order to support a finding that a plea 

of guilty or nolo contendere has been entered freely, intelligently, voluntarily, and understandingly, the court must (1) 

inform the defendant concerning (a) the nature of the charge, 

(b) the right to assistance of counsel, (c) the right to confront 

witnesses against the defendant, (d) the right to a jury trial, 

and (e) the privilege against self-incrimination; and (2) examine the defendant to determine that he or she understands 

the foregoing. Additionally, the record must establish that 

(1) there is a factual basis for the plea and (2) the defendant knew the range of penalties for the crime with which 

2 State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019).
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STATE V. MEAD

Cite as 313 Neb. 892

he or she is charged. 3 A voluntary and intelligent waiver of 

the above rights must affirmatively appear from the face of 

the record. 4

The record shows that the district court complied with most, 

but not all, of this dictate. The court properly informed Mead 

of the nature of the charges and his rights. It obtained a factual basis for the charges and advised Mead of the range of 

penalties. However, the district court did not examine Mead 

to determine whether he understood the right to assistance of 

counsel, the right to confront witnesses, the right to a jury trial, 

or the privilege against self-incrimination. And although the 

court informed Mead that a plea of guilty or no contest would 

give up some of the rights previously explained, the court did 

not ask Mead if he understood that a guilty or no contest plea 

would waive those rights.

The requirement that the record show a voluntary and intelligent waiver of a defendant’s rights is derived from the U.S. 

Supreme Court’s decision in Boykin v. Alabama.

 5 There, the 

Court held that a defendant’s guilty plea was invalid unless 

the record affirmatively showed that the defendant voluntarily 

and intelligently waived the rights to trial by jury, to remain 

silent, and to confront accusers. The Court stated, “We cannot 

presume a waiver of these three important federal rights from 

a silent record.” 6

Following the lead of Boykin, our decisions require that 

the record contain an affirmative waiver of the constitutional rights to a jury trial, to remain silent, and to confront 

3 State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986). See, also, State 

v. Manjikian, supra note 2; State v. Lee, 282 Neb. 652, 807 N.W.2d 96 

(2011); State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000); State 

v. Hays, 253 Neb. 467, 570 N.W.2d 823 (1997); State v. Ponec, 236 Neb. 

710, 463 N.W.2d 793 (1990).

4 State v. Lee, supra note 3.

5 Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).

6 Id., 395 U.S. at 243.
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Nebraska Supreme Court Advance Sheets

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STATE V. MEAD

Cite as 313 Neb. 892

accusers. In State v. Porchia,

 7 the record revealed that the court 

did not ask the defendant if he understood that his guilty plea 

waived his right to confront and cross-examine witnesses. We 

set aside the conviction and sentence due to the “court’s failure to especially inquire on the record whether [the defendant] 

understood that by entering a plea of guilty he was waiving 

[that right].” 8

We built on Boykin in State v. Irish.

 9 There, we set forth 

what the record must show to support a finding that a plea 

of guilty or no contest has been entered freely, intelligently, 

voluntarily, and understandingly. Among the necessary advisements were that the court inform the defendant concerning the 

nature of the charge, the right to assistance of counsel, the right 

to confront witnesses against the defendant, the right to a jury 

trial, and the privilege against self-incrimination. We stated 

that the court must also “examine the defendant to determine 

that he or she understands the foregoing.” 10 We added that the 

record must establish that there is a factual basis for the plea 

and that the defendant knew the range of penalties for the 

crime charged.

A decade later, in State v. Hays,

 11 we reiterated that an 

affirmative, express waiver of rights is required. There, the 

trial court advised the defendant of his rights but did not 

ascertain whether the defendant understood that he was waiving those rights. We stated that “a guilty plea is valid only if 

the record affirmatively shows that a defendant understands 

that by pleading guilty he waives his right to confront witnesses against him, his right to a jury trial, and his privilege 

7 State v. Porchia, 221 Neb. 327, 376 N.W.2d 800 (1985).

8 Id. at 328, 376 N.W.2d at 800-01.

9 State v. Irish, supra note 3.

10 Id. at 820, 394 N.W.2d at 883.

11 State v. Hays, supra note 3.
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STATE V. MEAD

Cite as 313 Neb. 892

against self-incrimination, or otherwise affirmatively shows an 

express waiver of said rights.” 12

Here, the Court of Appeals recognized, but did not enforce, 

the requirement from Hays that the record affirmatively show 

an express waiver. The court reasoned that although the trial 

court did not specifically ask Mead if he understood the rights 

he was waiving by pleading no contest, the record as a whole 

showed that Mead understood those rights. The court explained 

that “Mead did not express a lack of understanding about what 

the court was saying and there was nothing in the record to 

indicate he did not understand.” 13 The court also determined 

that Mead “fail[ed] to affirmatively assert [on appeal] that he 

did not understand when the court advised him of the rights 

he was waiving” and “simply asserts that the court did not ask 

him if he understood.” 14

Rather than delving into whether a trial court’s colloquy 

with a defendant before accepting a plea of guilty or no contest 

comes “close enough” to compliance with Irish, we instead 

adhere to the mandates of cases such as Porchia, Irish, and 

Hays. Trial courts must ask the defendant whether he or she 

understands that a plea of guilty or no contest waives the right 

to confront witnesses, the right to a jury trial, and the privilege 

against self-incrimination, or the record must otherwise show 

that the defendant expressly waives those rights.

We are confident that our trial courts have followed our 

admonition over 40 years ago to “devise and implement a 

standard procedure for explaining the various rights to defendants entering pleas of guilty [or no contest].” 15 Although we 

then asserted that “there should be no reason in the future 

for a court to fail to properly advise defendants of their 

12 Id. at 475-76, 570 N.W.2d at 829.

13 State v. Mead, supra note 1 at *2.

14 Id. at *3.

15 State v. Tweedy, 209 Neb. 649, 656, 309 N.W.2d 94, 98 (1981).
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Nebraska Supreme Court Advance Sheets

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STATE V. MEAD

Cite as 313 Neb. 892

constitutional rights when offering pleas of guilty [or no 

contest],” 16 we recognize that a standard procedure is not an 

ironclad guarantee against error. Here, the record does not 

show why the omission occurred.

Because the record does not show that the court asked 

Mead if he understood that by entering a plea of guilty or 

no contest he was waiving specified constitutional rights, his 

pleas must be vacated. Like in State v. Ettleman,

 17 we think 

the appropriate remedy is to essentially return the State and 

Mead to the positions they were in before the court accepted 

Mead’s pleas. Thus, we reverse the Court of Appeals’ decision 

and remand the cause to that court with directions to reverse 

Mead’s convictions, vacate the sentences, and remand the matter to the district court with instructions to hold a new arraignment hearing.

Ineffective Assistance 

of Counsel

[3] Mead also assigns that the Court of Appeals erred by 

finding trial counsel was not ineffective for failing to file a 

motion to obtain a psychological evaluation prior to sentencing. Because we are reversing the decision of the Court of 

Appeals and remanding the cause with directions for further 

proceedings, we need not resolve this issue. An appellate court 

is not obligated to engage in an analysis that is not necessary 

to adjudicate the case and controversy before it. 18

CONCLUSION

Because the record did not affirmatively show that Mead 

understood his rights or that he expressly waived them, the 

Court of Appeals erred in finding that his no contest pleas 

16 Id.

17 State v. Ettleman, 303 Neb. 581, 930 N.W.2d 538 (2019).

18 State v. Yzeta, ante p. 202, 983 N.W.2d 124 (2023).
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Nebraska Supreme Court Advance Sheets

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STATE V. MEAD

Cite as 313 Neb. 892

were voluntarily and intelligently entered. We reverse the 

decision of the Court of Appeals and remand the cause to that 

court with directions to reverse Mead’s convictions, vacate 

the sentences, and remand the matter to the district court with 

instructions to hold a new arraignment hearing.

Reversed and remanded with directions.