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STATE v. McBRIDE

Cite as 27 Neb. App. 219

State of Nebraska, appellee, v. 

Heather M. McBride, appellant.

___ N.W.2d ___

Filed May 7, 2019. No. A-18-797.

1. Sentences: Appeal and Error. Sentences within statutory limits will be 

disturbed by an appellate court only if the sentence complained of was 

an abuse of judicial discretion.

2. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

3. Courts: Final Orders: Appeal and Error. When a district court, sitting 

as an intermediate appellate court, enters an order that affects a substantial right, that order is final for purposes of appeal if its judgment can be 

executed without any further action by the district court.

4. Courts: Final Orders: Jurisdiction: Appeal and Error. A district 

court order affirming, reversing, or remanding an order or judgment of 

the county court is itself a final order that an appellate court has jurisdiction to review.

5. Pleas: Sentences: Restitution. The failure to inform a defendant of the 

possibility of restitution renders the entry of a plea of guilty involuntary 

and unintelligent in that regard and consequently prevents the imposition of an order of restitution.

6. Pleas: Proof. While in order for a defendant to enter a voluntary and 

intelligent plea of guilty, he or she must know the penalty for the crime 

to which he or she is pleading, and although it is preferable that such 

knowledge be imparted by the judge accepting the plea, it is nonetheless 

possible to prove the defendant’s knowledge by other means.

7. Criminal Law: Restitution: Damages. Neb. Rev. Stat. § 29-2280 

(Reissue 2016) vests trial courts with the authority to order restitution for actual damages sustained by the victim of a crime for which a 

defendant is convicted.

8. ____: ____: ____. Pursuant to Neb. Rev. Stat. § 29-2281 (Reissue 

2016), before restitution can be properly ordered, the trial court must 

Nebraska Supreme Court Online Library

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

05/28/2019 12:06 AM CDT
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27 Nebraska Appellate Reports

STATE v. McBRIDE

Cite as 27 Neb. App. 219

consider: (1) whether restitution should be ordered, (2) the amount of 

actual damages sustained by the victim of a crime, and (3) the amount 

of restitution a criminal defendant is capable of paying.

9. Sentences: Restitution. When a court orders restitution to a crime 

victim under Neb. Rev. Stat. § 29-2280 (Reissue 2016), restitution is 

a criminal penalty imposed as punishment and is part of the criminal 

sentence imposed by the sentencing court.

10. Sentences. 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.

11. Sentences: Restitution. After the sentencing court determines that a 

conviction warrants restitution, it then becomes the sentencing court’s 

factfinding responsibility to determine the victim’s actual damages and 

the defendant’s ability to pay.

12. ____: ____. Under Neb. Rev. Stat. § 29-2281 (Reissue 2016), the sentencing court may hold a hearing at the time of sentencing to determine 

the amount of restitution.

13. Sentences: Restitution: Evidence. Under Neb. Rev. Stat. § 29-2281 

(Reissue 2016), the sentencing court’s determination of restitution shall 

be based on the actual damages sustained by the victim and shall be supported by evidence which shall become a part of the court record.

Appeal from the District Court for Madison County, Mark

A. Johnson, Judge, on appeal thereto from the County Court 

for Madison County, Ross A. Stoffer, Judge. Judgment of 

District Court affirmed.

Ronald E. Temple, of Fitzgerald, Vetter, Temple & Bartell, 

for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Riedmann, Bishop, and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

Heather M. McBride pled guilty in the county court for 

Madison County to an amended charge of attempted forgery. She was sentenced to 90 days in jail and ordered to pay 
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27 Nebraska Appellate Reports

STATE v. McBRIDE

Cite as 27 Neb. App. 219

restitution. She appealed to the district court, which affirmed 

the jail term and the county court’s determination of the 

amount of restitution, but vacated the restitution order and 

remanded the matter to the county court for a determination 

of McBride’s ability to pay. McBride appeals to this court. 

We find no abuse of discretion in the district court’s order and 

therefore affirm.

BACKGROUND

McBride and her sister, Danica AllAround, purchased a 

2009 GMC Acadia in December 2016 for $13,144. Both of 

their names appeared on the bill of sale and title to the vehicle. In May 2017, McBride had someone forge AllAround’s 

signature on the title, and McBride sold the vehicle for 

$6,500. McBride retained all of the proceeds of the sale, and 

AllAround was not reimbursed for any portion of the purchase price.

As a result of these events, McBride was originally charged 

with three felony counts. Pursuant to a plea agreement with the 

State, she pled guilty to an amended charge of attempted second degree forgery, a Class I misdemeanor. At the outset of the 

plea hearing, McBride’s counsel indicated to the county court 

that the parties had reached an agreement whereby McBride 

would plead guilty to the amended charge and “the parties will 

ask the [c]ourt to set the matter for a restitution hearing and 

sentencing thereafter.” After advising McBride of her rights 

and ascertaining her understanding, the court accepted her plea 

and found her guilty. The court then clarified with McBride’s 

counsel his request to have the matter set for a restitution hearing, and counsel confirmed his request.

The restitution hearing was held immediately prior to sentencing. A copy of the bill of sale for the purchase of the 

vehicle, a copy of AllAround’s bank statement showing that 

she paid the purchase price, and a copy of the vehicle’s title 

depicting AllAround’s forged signature were all received into 

evidence at the restitution hearing.
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STATE v. McBRIDE

Cite as 27 Neb. App. 219

AllAround testified that she paid all of the $13,144 for the 

vehicle and that McBride did not pay any portion of the purchase price. Thus, she was seeking restitution from McBride 

in the amount of the purchase price. She admitted that she did 

not have an opinion as to the value of the vehicle at the time 

McBride sold it.

McBride also testified and admitted that she thought 

$3,300, approximately half of the price for which she sold the 

vehicle, was a fair amount of restitution. McBride was asked 

whether she contributed any money toward the purchase of 

the vehicle, and she responded, “I choose not to say anything 

right now.”

After hearing the evidence, the county court found that the 

evidence showed that the vehicle was purchased for $13,144 

and that although the names of both AllAround and McBride 

were on the title to the vehicle, there was no evidence that 

McBride put any money toward the purchase price. Therefore, 

because the evidence before the court established that only 

AllAround paid the entire amount, the court ordered McBride 

to pay restitution in the amount of $13,144. McBride was also 

sentenced to 90 days in jail.

McBride appealed to the district court for Madison County. 

She assigned that the county court erred in ordering restitution and imposing an excessive sentence. The district court 

affirmed the jail sentence and the amount of actual damages. 

However, it vacated the restitution order and remanded the 

matter for further determination as to McBride’s ability to pay 

restitution and as to the timeframe in which she is able to pay. 

McBride now appeals to this court.

ASSIGNMENTS OF ERROR

McBride couches her assigned errors as those committed 

by the trial court; however, because she is appealing from the 

order on appeal by the district court, we restate her assigned 

errors as follows: The district court erred in finding that 
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STATE v. McBRIDE

Cite as 27 Neb. App. 219

(1) she was properly advised of the possibility of an order of 

restitution, (2) the circumstances warranted an order of restitution, and (3) the State sufficiently proved the amount of 

actual damages.

STANDARD OF REVIEW

[1] Sentences within statutory limits will be disturbed by 

an appellate court only if the sentence complained of was an 

abuse of judicial discretion. State v. Ramirez, 285 Neb. 203, 

825 N.W.2d 801 (2013). An abuse of discretion takes place 

when the sentencing court’s reasons or rulings are clearly 

untenable and unfairly deprive a litigant of a substantial right 

and a just result. Id.

ANALYSIS

At the outset, we note that the State asserts that although 

the district court remanded portions of the restitution order for 

further determination by the county court, this court has jurisdiction over the appeal. We agree.

[2-4] Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether it has 

jurisdiction over the matter before it. State v. Coble, 299 Neb. 

434, 908 N.W.2d 646 (2018). When a district court, sitting as 

an intermediate appellate court, enters an order that affects a 

substantial right, that order is final for purposes of appeal if 

its judgment can be executed without any further action by 

the district court. Barrios v. Commissioner of Labor, 25 Neb. 

App. 835, 914 N.W.2d 468 (2018). Where the district court 

reverses a judgment in favor of a party, and remands the matter for further proceedings, that party’s substantial right has 

been affected. Id. Further, a district court order affirming, 

reversing, or remanding an order or judgment of the county 

court is itself a final order that an appellate court has jurisdiction to review. State v. Coble, supra. Having found that this 

court has jurisdiction over this matter, we now turn to the 

assigned errors.
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STATE v. McBRIDE

Cite as 27 Neb. App. 219

Advisement of Possibility 

of Restitution.

McBride argues that the district court erred in finding that 

restitution was appropriate because she was never advised of 

the possibility of an order of restitution. We disagree.

[5,6] The Nebraska Supreme Court has held that the failure 

to inform a defendant of the possibility of restitution renders 

the entry of a plea of guilty involuntary and unintelligent in 

that regard and consequently prevents the imposition of an 

order of restitution. See State v. War Bonnett, 229 Neb. 681, 

428 N.W.2d 508 (1988). However, the court has also held 

that while in order for a defendant to enter a voluntary and 

intelligent plea of guilty, he or she must know the penalty 

for the crime to which he or she is pleading, and although it 

is preferable that such knowledge be imparted by the judge 

accepting the plea, it is nonetheless possible to prove the 

defendant’s knowledge by other means. State v. Fischer, 

220 Neb. 664, 371 N.W.2d 316 (1985). In State v. Mentzer, 

233 Neb. 843, 448 N.W.2d 409 (1989), the Supreme Court 

upheld a restitution order where the defendant, through his 

attorney, advised the court at sentencing that he was willing to make any restitution that would be ordered, thereby 

establishing that he was aware that an order of restitution was 

a possibility.

Likewise here, McBride was not informed at arraignment 

or at the time she entered her plea that restitution was a possible penalty for her crime. However, at the outset of the plea 

hearing, McBride, through her attorney, informed the county 

court that the parties would be asking the court to set the matter for a restitution hearing. Thus, prior to the time she entered 

her plea, McBride was aware that the court could order her to 

pay restitution. The record therefore establishes that McBride 

was aware of the possibility of restitution prior to entering 

her plea, and thus, her plea was not entered involuntarily 

or unintelligently.
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STATE v. McBRIDE

Cite as 27 Neb. App. 219

Circumstances Warranting 

Order of Restitution.

McBride argues that the circumstances of the present case 

do not warrant an order of restitution. She claims that the 

dispute between her and AllAround should be handled as a 

civil matter rather than in the context of the criminal proceedings. We find no abuse of discretion in the decision to 

order restitution.

[7,8] Neb. Rev. Stat. § 29-2280 (Reissue 2016) vests trial 

courts with the authority to order restitution for actual damages sustained by the victim of a crime for which a defendant 

is convicted. State v. Ramirez, 285 Neb. 203, 825 N.W.2d 801 

(2013). Pursuant to Neb. Rev. Stat. § 29-2281 (Reissue 2016), 

before restitution can be properly ordered, the trial court must 

consider: (1) whether restitution should be ordered, (2) the 

amount of actual damages sustained by the victim of a crime, 

and (3) the amount of restitution a criminal defendant is capable of paying. State v. Holecek, 260 Neb. 976, 621 N.W.2d 

100 (2000). The question here falls under the first consideration: whether restitution should be ordered. Neb. Rev. Stat. 

§ 29-2282 (Reissue 2016) provides:

In determining restitution, if the offense results in 

damage, destruction, or loss of property, the court may 

require: (1) Return of the property to the victim, if possible; (2) payment of the reasonable value of repairing 

the property, including property returned by the defendant; or (3) payment of the reasonable replacement value 

of the property, if return or repair is impossible, impractical, or inadequate. If the offense results in bodily injury, 

the court may require payment of necessary medical care, 

including, but not limited to, physical or psychological 

treatment and therapy, and payment for income lost due 

to such bodily injury. If the offense results in the death of 

the victim, the court may require payment to be made to 

the estate of the victim for the cost of any medical care 

prior to death and for funeral and burial expenses.
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STATE v. McBRIDE

Cite as 27 Neb. App. 219

The Nebraska Supreme Court has stated, “Under § 29-2282, 

restitution is warranted ‘[i]f the offense results in bodily 

injury.’” State v. Ramirez, 285 Neb. at 208, 825 N.W.2d at 806 

(emphasis supplied). Thus, we interpret § 29-2282 to also warrant restitution where, as here, “the offense results in damage, 

destruction, or loss of property.”

The evidence in the present case established that as a result 

of McBride’s forging AllAround’s signature on the vehicle’s 

title and selling the vehicle, AllAround lost property to which 

she was entitled. We understand McBride’s argument that 

because her name was also on the title, she may have been 

entitled to at least a portion of the value of the vehicle. 

However, she argues, without authority, that determination of 

any monetary damages is better left to a civil proceeding rather 

than handled in the context of this criminal proceeding.

[9,10] When a court orders restitution to a crime victim 

under § 29-2280, restitution is a criminal penalty imposed 

as punishment and is part of the criminal sentence imposed 

by the sentencing court. State v. Clapper, 273 Neb. 750, 732 

N.W.2d 657 (2007). Imposing a sentence within statutory 

limits is a matter entrusted to the discretion of the trial court. 

State v. King, 19 Neb. App. 410, 807 N.W.2d 192 (2011). In 

imposing a sentence, the sentencing court is not limited to 

any mathematically applied set of factors. Id. 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. Id.

At sentencing in the instant case, the county court noted 

that McBride knew the title was forged and therefore was 

aware that she was doing something illegal. The court also 

observed that McBride herself could have elected to handle 

the matter with AllAround via a civil proceeding, but instead, 

she chose to circumvent the process and take matters into her 

own hands by selling the vehicle unlawfully and retaining all 

of the proceeds. The court therefore concluded that an order 
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STATE v. McBRIDE

Cite as 27 Neb. App. 219

of restitution was appropriate in this case. Based on the record 

before us, including the court’s rationale, we cannot find that 

that decision constitutes an abuse of discretion.

Actual Damages.

McBride asserts that the order of restitution was an abuse 

of discretion because the State failed to prove the amount of 

actual damages sustained as a result of the crime. We find no 

merit to this argument.

[11-13] After the sentencing court determines that a conviction warrants restitution, it then becomes the sentencing 

court’s factfinding responsibility to determine the victim’s 

actual damages and the defendant’s ability to pay. State v. 

Ramirez, 285 Neb. 203, 825 N.W.2d 801 (2013). Under 

§ 29-2281, the sentencing court may hold a hearing at the 

time of sentencing to determine the amount of restitution. Id. 

The sentencing court’s determination of “restitution shall be 

based on the actual damages sustained by the victim and shall 

be supported by evidence which shall become a part of the 

court record.” § 29-2281. To be relied upon by the sentencing 

court, the evidence must be sworn and corroborated. State v. 

Ramirez, supra.

In relevant part, § 29-2282 provides that in determining 

restitution, if the offense results in loss of property, the court 

may require payment of the “reasonable replacement value” of 

the property.

McBride argues, without authority, that the court’s failure 

to consider depreciation when determining the actual damages for restitution purposes was an abuse of discretion. We 

note that the restitution statutes refer to “actual damages” and 

“reasonable replacement value” but do not specifically refer 

to depreciation or market value. See §§ 29-2281 and 29-2282. 

Nor do the statutes address the manner in which actual damages are to be calculated other than the amount of restitution 

must be supported by evidence which shall become part of the 

court record. See § 29-2281.
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STATE v. McBRIDE

Cite as 27 Neb. App. 219

At the restitution hearing, AllAround testified that she paid 

$13,144 for the vehicle and that McBride contributed nothing 

toward the purchase price. A copy of the bill of sale and evidence that AllAround paid the purchase price were received 

into evidence.

The vehicle at issue here was a 2009 GMC Acadia, purchased in December 2016 and sold in May 2017. The district 

court, in reviewing the trial court’s order, found no abuse of 

discretion, the “actual damages being based upon a recent 

purchase price of the 2009 GMC.” We do not find such a 

determination to be an abuse of the court’s discretion, either. 

And the undisputed evidence before the court proved that 

AllAround paid the entire cost of the vehicle and had not been 

reimbursed. Therefore, we find that the district court did not 

abuse its discretion in affirming the county court’s valuation of 

$13,144 and ordering restitution in that amount.

CONCLUSION

Finding no merit to the arguments raised on appeal, we 

affirm the district court’s order.

Affirmed.