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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

STATE v. ETTLEMAN

Cite as 303 Neb. 581

State of Nebraska, appellee, v. 

Tammy J. Ettleman, appellant.

___ N.W.2d ___

Filed July 12, 2019. No. S-17-782.

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 the case of an abuse of discretion.

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

3. Criminal Law: Intent: Minors. The Class IIIA felony of child abuse 

under Neb. Rev. Stat. § 28-707(4) (Reissue 2016) is required to have 

been committed knowingly and intentionally.

4. Criminal Law: Intent: Words and Phrases. Under Neb. Rev. Stat. 

§ 28-201 (Reissue 2016), one commits criminal attempt if he or she 

intentionally engages in conduct which would constitute the crime if the 

attendant circumstances were as he or she believes them to be.

5. Pleas. Requiring a factual basis ensures that a defendant actually committed an offense at least as serious as the one to which he or she is 

willing to plead guilty.

6. Double Jeopardy: Pleas: Appeal and Error. The Double Jeopardy 

Clause is not violated when a criminal defendant pleads guilty while 

reserving his or her right to appeal, prevails on appeal, and consequently 

must either replead, endure further pretrial proceedings, or go to trial.

7. Pleas: Appeal and Error. The remedy for an inadequate factual basis 

is an order vacating the guilty plea and restoring both parties to their 

positions prior to the trial court’s acceptance of the plea. If an appellate 

court determines that a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence must 

be vacated, the dismissed charges reinstated, and the defendant allowed 

to replead or to proceed to trial.

Nebraska Supreme Court Online Library

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

08/09/2019 08:07 AM CDT
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STATE v. ETTLEMAN

Cite as 303 Neb. 581

8. Pleas. Where it is possible to establish a factual basis to the charges to 

which the defendant had entered a plea, the State should be given the 

opportunity to establish a factual basis.

Petition for further review from the Court of Appeals, 

Riedmann, Bishop, and Welch, Judges, on appeal thereto from 

the District Court for Saunders County, Mary C. Gilbride, 

Judge. Judgment of Court of Appeals affirmed in part and in 

part reversed, and cause remanded with directions.

Thomas J. Klein, Saunders County Public Defender, for 

appellant.

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

Klein for appellee.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

We granted the State’s petition for further review of the 

decision of the Nebraska Court of Appeals which reversed 

Tammy J. Ettleman’s plea-based conviction for felony child 

abuse. The Court of Appeals concluded that the factual basis 

presented by the State was not sufficient to support Ettleman’s 

no contest plea and therefore “reverse[d] the order of the 

district court [for Saunders County] which accepted that no 

contest plea and . . . vacate[d] Ettleman’s conviction for 

felony child abuse.” State v. Ettleman, No. A-17-782, 2018 

WL 3902173 at *5 (Neb. App. Aug. 14, 2018) (selected for 

posting to court website). Ettleman had also pled no contest 

to a count of attempted possession of a controlled substance, 

and the Court of Appeals affirmed that plea-based conviction. However, the Court of Appeals reasoned that “because 

the district court ordered only one sentence for both convictions,” it must vacate the sentence and remand the matter for 
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STATE v. ETTLEMAN

Cite as 303 Neb. 581

resentencing on Ettleman’s conviction for attempted possession of a controlled substance. Id. at *1.

The State claims on further review that the Court of Appeals 

erred both when it found there was not a sufficient factual basis 

for the plea to felony child abuse and when it “suggest[ed]” 

that Ettleman could not be subject to retrial on the child abuse 

charge upon remand.

We conclude that the Court of Appeals did not err when 

it found that there was not a sufficient factual basis for the 

felony child abuse plea. However, we determine that the Court 

of Appeals erred in its disposition, because it focused only on 

the conviction for felony child abuse rather than setting forth 

a remedy focused on the entire plea agreement. We therefore 

affirm in part and in part reverse the decision of the Court of 

Appeals, and we remand the cause to the Court of Appeals with 

directions as set forth herein.

STATEMENT OF FACTS

In its memorandum opinion, the Court of Appeals set forth 

the facts of this case for which we find support in the record 

as follows:

On January 17, 2017, the State filed an information 

charging Ettleman with: count I, delivery of a controlled 

substance, a Class II felony, pursuant to Neb. Rev. Stat. 

§ 28-416 (Reissue 2016); count II, aiding and abetting 

delivery of a controlled substance, a Class II felony, pursuant to § 28-416 and Neb. Rev. Stat. § 28-206 (Reissue 

2016); and count III, child abuse, a Class IIIA felony, 

pursuant to Neb. Rev. Stat. § 28-707 (Reissue 2016).

On March 27, 2017, pursuant to a plea agreement, 

Ettleman pled “no contest” to an amended count I 

(now attempted possession of a controlled substance, a 

Class I misdemeanor, pursuant to Neb. Rev. Stat. § 28-201 

(Reissue 2016)) and count III (child abuse); the State 

agreed to dismiss count II (aiding and abetting delivery of 
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STATE v. ETTLEMAN

Cite as 303 Neb. 581

a controlled substance). The State provided the following 

factual basis:

“On November 28, 2016, officers with III Corps Drug 

Task Force and Cedar Bluffs Police Department executed 

a search warrant on the residence of Tanya Brainard, 

Cedar Bluffs, Saunders County. In the course of that 

search warrant, the investigation discovered that the 

defendant, Tammy Ettleman, had been providing narcotics to Tanya Brainard and that a significant balance 

was remaining.

“In the course of the investigation, [Ettleman] agreed 

to — arrived at Tanya Brainard’s home a few blocks away 

in exchange — to receive some of the past due account, 

as well as sell some new pills, that being oxycodone. 

[Ettleman] indicated that she had her 11-year-old son, 

identified by initials CE, born in 2005, with her and that 

he was still in his PJs.

“While the officers were still present, [Ettleman] 

arrived at the Brainard residence with her son, CE, and 

for the purpose of the plea agreement, did attempt to possess oxycodone, a Schedule II narcotic substance. These 

events [occurred] in Saunders County.”

When asked if there were any comments to the factual 

basis, Ettleman’s attorney stated, “Would address those 

at sentencing, Your Honor.” The district court proceeded 

to find the “factual basis sufficient to convict [Ettleman] 

on her no contest pleas.” The court found the pleas 

were entered into knowingly and voluntarily, and found 

Ettleman guilty as charged in count I as amended and 

count III. The matter was then scheduled for sentencing.

At the sentencing hearing, Ettleman said she realized 

she made mistakes, “but [she] would never put [her] son 

in danger.” She acknowledged giving Brainard “a couple 

pills here and there, which [she] should not have done, 

and that was a huge mistake.” She said she was not “this 

big drug dealer,” rather, she felt sorry for Brainard. She 
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STATE v. ETTLEMAN

Cite as 303 Neb. 581

“did not take [her son] there trying to put him into any 

danger whatsoever. [She] would never do that.” She went 

on to say, “I love my son very much, and, you know, I 

went in there, asked if [Brainard] was there and went 

out. That was all that it was. It was not trying to put him 

in danger at all, you know.” She said she was “taken 

aback” when she came in “for the status hearing” after 

being told it was going to be a misdemeanor, “and then 

they threw this felony child abuse in on me.” The court 

proceeded to order one sentence of 24 months’ probation 

for both convictions (without any noted separation or 

apportionment of the sentence between the two convictions), with various conditions, including serving 90 days 

in jail (to be served in three waivable 30-day terms). 

The court’s written order of probation was filed June 26, 

2017. Ettleman timely appealed.

State v. Ettleman, No. A-17-782, 2018 WL 3902173 at *1-2 

(Neb. App. Aug. 14, 2018) (selected for posting to court website). To clarify the sentencing, we note that in its order, the 

district court set forth the length and terms of probation as 

being applicable to both convictions but it stated that the jail 

time was specifically applicable to the conviction for attempted 

possession of a controlled substance.

Ettleman claimed on appeal to the Court of Appeals that the 

district court erred when it found that the State had presented 

a sufficient factual basis to support her plea of no contest to 

felony child abuse. We have long held that a factual basis is 

required to show that a plea was made understandingly and 

knowingly, see State v. Irish, 223 Neb. 814, 394 N.W.2d 879 

(1986), and that a challenge to the understandingly and voluntary nature of the plea can be made on appeal, see State 

v. Mason, 187 Neb. 675, 193 N.W.2d 576 (1972). The Court 

of Appeals found merit to Ettleman’s claim that the factual 

basis was insufficient. The Court of Appeals first rejected 

the State’s argument that Ettleman had waived a challenge to 

the factual basis when she did not object to the factual basis 
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STATE v. ETTLEMAN

Cite as 303 Neb. 581

in the district court. The Court of Appeals cited our decision in State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 

(2016), in which we reasoned that a sufficient factual basis is 

a requirement for a finding that a plea was entered into understandingly and voluntarily and that, because one of the limited 

challenges that may be made to a plea-based conviction on 

appeal is whether the plea was understandingly and voluntarily made, a defendant does not waive a challenge to the factual basis when he or she enters a plea. See, State v. Clemens, 

300 Neb. 601, 915 N.W.2d 550 (2018); State v. Schiesser, 24 

Neb. App. 407, 888 N.W.2d 736 (2016). The State does not 

challenge this ruling on further review.

The Court of Appeals then identified the elements of felony 

child abuse as set forth in Neb. Rev. Stat. § 28-707(1) (Reissue 

2016), which provides in relevant part:

A person commits child abuse if he or she knowingly, 

intentionally, or negligently causes or permits a minor 

child to be:

(a) Placed in a situation that endangers his or her life or 

physical or mental health;

(b) Cruelly confined or cruelly punished;

(c) Deprived of necessary food, clothing, shelter, or 

care;

(d) Placed in a situation to be sexually exploited . . . ;

(e) Placed in a situation to be sexually abused . . . ; or

(f) Placed in a situation to be a trafficking victim . . . .

Under § 28-707(4), if the child abuse offense is committed 

knowingly and intentionally and does not result in serious 

bodily injury or death, it is a Class IIIA felony.

The Court of Appeals determined that based on the plain 

language of § 28-707(1), the factual basis that was set forth 

by the State at Ettleman’s plea hearing did not show that 

Ettleman knowingly and intentionally placed her son in a 

situation that endangered his life or physical or mental health, 

nor did it show a basis for any of the other ways set forth in 

the statute for committing child abuse. The Court of Appeals 
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Cite as 303 Neb. 581

acknowledged that it could look beyond the factual basis given 

at the plea hearing and consider other material when deciding 

whether a factual basis existed. The Court of Appeals therefore 

examined the presentence investigation report and noted that it 

contained further details regarding the events that gave rise to 

the charges against Ettleman.

After considering the record as a whole, including information in the presentence investigation report, the Court of 

Appeals stated:

Ettleman took her son to her friend’s house at approximately 8:30 in the evening, and immediately left when 

she realized her friend was not home. While we acknowledge that Ettleman went to the home to sell prescription 

medication, an illegal action, we fail to see, based on 

these facts, how Ettleman knowingly and intentionally 

exposed her child’s life or physical or mental health to 

danger or the peril of probable harm or loss.

State v. Ettleman, No. A-17-782, 2018 WL 3902173 at *4 

(Neb. App. Aug. 14, 2018) (selected for posting to court 

website). The Court of Appeals concluded that the record 

did not show a sufficient factual basis to meet the elements 

under § 28-707(1) and (4) and that therefore, the district court 

abused its discretion when it accepted Ettleman’s no contest 

plea to felony child abuse and when it found her guilty of 

that offense.

Based on this conclusion, the Court of Appeals determined 

that the proper disposition of the appeal was to “reverse the 

order of the district court which accepted that no contest 

plea” and to “vacate Ettleman’s conviction for felony child 

abuse.” State v. Ettleman, 2018 WL 3902173 at *5. The Court 

of Appeals acknowledged that the State had urged in its brief 

that if the factual basis was insufficient, then the proper remedy would be to “‘undo the entire plea bargain, and return the 

parties to square one and start over.’” Id. at *4. The Court of 

Appeals responded to the State’s argument by stating that “the 

State’s ability to further prosecute Ettleman is a matter to be 
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STATE v. ETTLEMAN

Cite as 303 Neb. 581

determined at the trial level before it can be considered on 

appeal.” Id.

Contrary to the State’s urging that the “proper remedy is 

to undo the entire plea bargain,” brief for appellee at 6-7, the 

Court of Appeals vacated Ettleman’s plea-based conviction 

for felony child abuse but affirmed her plea-based conviction 

for attempted possession of a controlled substance. The Court 

of Appeals noted that the district court “provided only one 

sentence for both convictions,” State v. Ettleman, 2018 WL 

3902173 at *1, and it therefore vacated Ettleman’s sentence 

and remanded the matter to the district court for resentencing 

on the remaining conviction for attempted possession of a controlled substance.

We granted the State’s petition for further review.

ASSIGNMENTS OF ERROR

On further review, the State claims that the Court of Appeals 

erred when it found that Ettleman’s plea to felony child abuse 

was not supported by a factual basis and when it therefore 

reversed her conviction for that offense. The State further 

claims that the Court of Appeals erred when it “suggest[ed]” 

that Ettleman would not be subject to retrial on the felony 

child abuse charge. The State contends that if the plea to 

felony child abuse was in fact not supported by a factual basis, 

then the proper disposition upon remand is either (1) the State 

is given an opportunity to establish a factual basis or (2) the 

entire plea agreement is set aside and the original charges 

are reinstated.

STANDARD OF REVIEW

[1,2] 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 the case of an abuse of 

discretion. See State v. Clemens, 300 Neb. 601, 915 N.W.2d 

550 (2018). A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly 
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STATE v. ETTLEMAN

Cite as 303 Neb. 581

depriving a litigant of a substantial right and denying just 

results in matters submitted for disposition. Id.

ANALYSIS

The Factual Basis in This Case Was 

Not Sufficient to Support the Plea 

to Felony Child Abuse.

The State claims that the Court of Appeals erred when 

it found that Ettleman’s plea to felony child abuse was not 

supported by a factual basis. We have long stated that a trial 

court is accorded discretion in deciding to accept a guilty plea. 

See State v. Clemens, supra. However, we are aware that we 

have not spoken on the particular level of probable guilt for 

the factual basis inquiry. We are further aware that there is 

a range of “proof” which various courts have required. For 

example, some courts have held that a court does not need to 

be convinced beyond a reasonable doubt that the defendant is 

guilty, e.g., Maes v. State, 114 P.3d 708 (Wyo. 2005), but only 

that the record demonstrates the facts to support the elements 

of the offense, e.g., Rhoades v. State, 848 N.W.2d 22 (Iowa 

2014), or that the factual basis must supply evidence about 

the elements from which the court could reasonably conclude 

that the defendant is guilty, e.g., Rhoades v. State, 675 N.E.2d 

698 (Ind. 1996). However, the comment to the ABA Standards 

for Criminal Justice, Pleas of Guilty, Standard 14-1.6(a), commentary at 68 (3d ed. 1999), has summarized this area and 

stated as follows:

The matter is left largely to the discretion of the judge, as 

the circumstances of the case will dictate both the degree 

and kind of inquiry that is necessary. This approach is 

consistent with the Federal Rules of Criminal Procedure 

and most other authorities, except for the Model Code of 

Pre-Arraignment Procedure, which states that there must 

be “reasonable cause” to believe the defendant is guilty. 

The purpose of this language, according to the commentary to that provision, is to assure at the taking of a guilty 
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STATE v. ETTLEMAN

Cite as 303 Neb. 581

plea that there is at least a factual showing sufficient to 

hold a defendant after a preliminary hearing.

We determine that in this case, we need not resolve the 

issue of the proper level of probable guilt for the factual basis 

inquiry because under each of the standards, the factual basis 

was not sufficient and the Court of Appeals did not err when 

it found that the factual basis for felony child abuse was 

insufficient.

We generally read the Court of Appeals’ opinion as determining that although § 28-707(1) sets forth various ways in 

which a person might commit child abuse, the only one that 

was arguably supported by the facts of this case was that set 

forth in subsection (1)(a), which provides that one commits 

child abuse if he or she causes or permits a minor child to 

be “[p]laced in a situation that endangers his or her life or 

physical or mental health.” The Court of Appeals determined 

that there was no evidence that Ettleman’s child was actually 

placed in a situation that endangered his life or physical or 

mental health; instead, the evidence was that she took him to 

the home of a friend and that at the time they entered, it was 

occupied by law enforcement officers. The Court of Appeals 

reasoned that although Ettleman went to the home with the 

intention of committing an illegal act by selling prescription 

medication, there was no evidence of any situation at the 

house that in fact endangered the child’s life or physical or 

mental health. We too recognize that Ettleman went to Tanya 

Brainard’s house to sell prescription medication, and we do 

not condone Ettleman’s conduct. But, we find no assertion or 

evidence in the record that the child was endangered when 

Ettleman embarked upon or drove to Brainard’s house or upon 

entering the house.

On further review, the State challenges the completeness 

of the Court of Appeals’ review of the record, in particular, its consideration of the presentence investigation report. 

It disputes the Court of Appeals’ characterization of certain 

aspects of the record. The State highlights information from 
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STATE v. ETTLEMAN

Cite as 303 Neb. 581

an investigative report prepared by Christian Frerichs, a law 

enforcement officer involved in Ettleman’s arrest. Frerichs’ 

report was included in the presentence investigation report. 

Frerichs’ report indicates that he and other officers executed a 

search warrant at Brainard’s house, during which they gained 

access to Brainard’s cell phone. Frerichs discovered text message conversations with Ettleman which indicated that Ettleman 

had previously sold prescription medication to Brainard and 

that Brainard owed Ettleman “a significant amount of money 

for past drug debts.”

Frerichs initiated a text messaging conversation with 

Ettleman using Brainard’s cell phone and posing as Brainard. 

Frerichs sent Ettleman texts indicating that Ettleman could 

collect some of the amounts that were due if she brought additional pills to Brainard’s house. Ettleman texted in reply that 

Brainard owed her $430, and Frerichs, posing as Brainard, 

said that Ettleman could collect approximately $300 of that 

amount because “a buyer [was] coming to town shortly and 

. . . they would have cash in hand.” After discussing quantities 

and price, Ettleman offered to bring approximately 40 pills to 

Brainard’s house.

Ettleman arrived at Brainard’s house and, after texting 

Brainard (Frerichs) to announce her arrival, Ettleman “walked 

into Brainard’s residence along with her 11 year old son.” 

Ettleman was met by two officers. Ettleman asked where 

Brainard was, and after she was told that Brainard was not 

there, Ettleman returned to her van to wait for Brainard’s 

return. Frerichs asked the other officers to go speak with 

Ettleman; they did so, and eventually Ettleman returned with 

them to the residence where Frerichs told her that he—rather 

than Brainard—had been exchanging text messages with her.

The State points to information in Frerichs’ report as factual 

support for Ettleman’s plea to felony child abuse. The State 

asserts that “Ettleman knowingly took her son to a substantial 

drug deal to deliver 44 [pills] to a person who already owed 

over $400 for drugs.” Brief for appellee in support of petition 
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STATE v. ETTLEMAN

Cite as 303 Neb. 581

for further review at 6-7. The State further asserts that “there 

would also be an unknown person present who ostensibly had 

money to pay for the drugs Ettleman was bringing.” Id. at 7. 

The State contends that Ettleman should have been “highly 

suspect of a promise . . . that an unknown party had cash in had 

[sic] to pay for the drugs” and that it “should have been readily apparent that there was a substantial chance that Ettleman 

was being set up for a robbery.” Id. The State further contends 

that “to willingly allow her son inside the house where [a robbery might] have occurred at least negligently placed him in a 

situation that endangered his physical health.” Id.

[3] We note that in this case, Ettleman was charged in count 

III as having committed the Class IIIA felony of child abuse, 

which, under § 28-707(4), is required to have been committed knowingly and intentionally. She was not charged with a 

crime committed negligently under the criminal statutes. When 

the alleged abuse does not result in serious bodily injury, the 

abuse is committed negligently and is a Class I misdemeanor 

under § 28-707(3). But, contrary to the State’s urging, the 

felony child abuse to which Ettleman pled could not be supported by a negligent act. The statute under which Ettleman 

was charged requires that the child actually be “[p]laced in a 

situation that endangers” the child. § 28-707(1)(a). Regardless 

of what Ettleman believed regarding the situation in Brainard’s 

house, the situation that actually existed was composed of 

the fact that there were a number of law enforcement officers 

inside the house. It is not accurate to conclude that the child 

was actually endangered by the presence of law enforcement officers.

Despite the facts on the ground, the State’s argument relies 

on inferences that Ettleman should have “known” that the 

person who allegedly had money to buy pills would be at 

Brainard’s house, that she was possibly being set up for a robbery, and that the unknown person posed a threat to her and her 

son. It is not clear from Frerichs’ report that Ettleman was told 

that the buyer would be at Brainard’s house; the record shows 
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only that she was told that the buyer would be “coming to town 

shortly.” The State’s rationale is that Ettleman speculated that 

she was being set up for a robbery because Frerichs, posing as 

Brainard, texted that an unnamed person had cash to buy pills. 

Even if it could reasonably be inferred that Ettleman believed 

she was being set up for a robbery, it requires further inferences to find that she went to a house to be robbed and knowingly and intentionally brought her child to the house to place 

him in the middle of a robbery.

[4,5] More to the point, the information in Frerichs’ report 

makes clear that the State’s fanciful scenario depicting an 

unknown person who intended to rob Ettleman was not the 

situation that actually existed in the house into which Ettleman 

brought her son and, as noted, the State makes no claim that 

Ettleman’s child was endangered during the drive to Brainard’s 

house. In reality, as noted, the situation in the house was that 

there were law enforcement officers conducting an investigation. Even if one could reasonably find that the State’s robbery 

scenario was the situation that Ettleman believed was present 

in Brainard’s house, such evidence would at best support a conviction for the lower-graded offense of attempted child abuse 

to which she did not plead. Under Neb. Rev. Stat. § 28-201(1) 

(Reissue 2016), one commits criminal attempt if he or she 

“[i]ntentionally engages in conduct which would constitute the 

crime if the attendant circumstances were as he or she believes 

them to be,” and § 28-201(4)(d) provides that criminal attempt 

is a Class IV felony when the crime attempted is a Class III 

or Class IIIA felony. In State v. Jost, 219 Neb. 162, 169, 361 

N.W.2d 526, 531 (1985), this court reasoned that requiring a 

factual basis “[e]nsures that a defendant actually committed an 

offense at least as serious as the one to which he is willing to 

plead guilty.”

The State appears to argue that a factual basis exists for 

either attempted felony child abuse based on circumstances 

Ettleman believed to be present or misdemeanor child abuse 

based on negligent action on Ettleman’s part. But the charge 
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to which Ettleman pled was Class IIIA felony child abuse, a 

conviction which required that she knowingly and intentionally caused or permitted the child to be placed in a situation 

that endangered his life or physical or mental health. Nothing 

in the record indicates that such a situation actually existed in 

the house into which Ettleman brought the child, and because 

in reality there was no such evidence, a fortiori, there was no 

evidence that she knowingly and intentionally placed her child 

in such a situation.

As relevant to this appeal, § 28-707(1) prohibits knowingly, 

intentionally, or negligently causing or permitting a minor 

child to be placed in a situation that endangers his or her life 

or physical or mental health. It is certainly conceivable that 

one could knowingly, intentionally, or negligently endanger a 

child’s physical or mental health by voluntarily taking the child 

along on a prearranged drug deal, if in fact that is the situation 

into which the child is being placed.

But, we agree with the Court of Appeals’ conclusion that the 

record in this case did not provide a factual basis to support a 

plea to Class IIIA felony child abuse. In this case, we have a 

dubious factual basis and no statement from Ettleman that the 

factual basis is sufficient to support a conviction for the charge 

to which she is pleading. Our opinion today should not be read 

to preclude a defendant from being treated as having waived an 

objection to the sufficiency of the State’s factual basis where 

the record of a plea colloquy demonstrates that the trial court 

specifically asked the defendant or his or her counsel whether 

the factual basis provided by the State is sufficient to support 

the plea and the defendant failed to object to its sufficiency 

upon inquiry by the court. We therefore conclude that the Court 

of Appeals did not err when it found that Ettleman’s plea to 

felony child abuse was not supported by a factual basis.

Proper Disposition.

The State argues alternatively that in the event we conclude there was not a sufficient factual basis to support 
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Ettleman’s plea to felony child abuse, the Court of Appeals 

erred in its disposition of this matter. The State specifically 

claims that the Court of Appeals erred when it “suggest[ed]” 

that Ettleman could not be subject to retrial on the felony 

child abuse charge. The State further argues that the Court 

of Appeals erred when it reversed only Ettleman’s conviction 

for felony child abuse rather than disposing of the appeal in a 

manner that encompassed the entire plea agreement. We agree 

with the State that the disposition by the Court of Appeals was 

not comprehensive, and instead, we render a disposition as 

indicated below.

[6] We first address the State’s argument that the Court 

of Appeals “suggest[ed]” Ettleman could not be retried on 

remand. We do not read the Court of Appeals’ opinion as making such a suggestion. Instead, we note the Court of Appeals 

stated that “the State’s ability to further prosecute Ettleman 

is a matter to be determined at the trial level before it can be 

considered on appeal.” State v. Ettleman, A-17-782, 2018 WL 

3902173 at *4 (Neb. App. Aug. 14, 2018) (selected for posting 

to court website). The Court of Appeals therefore properly left 

the question of the State’s further action to be determined on 

remand. We note, however, that we know of no authority to 

the effect that either a trial court’s erroneous acceptance of a 

plea or the determination by an appellate court that the factual 

basis was not sufficient acts as an acquittal or an event that 

implicates double jeopardy concerns. To the contrary, there is 

persuasive authority that “‘[t]he Double Jeopardy Clause is not 

violated when a criminal defendant pleads guilty while reserving his right to appeal, prevails on appeal, and consequently 

must either re-plead, endure further pre-trial proceedings, or go 

to trial.’” U.S. v. Rea, 300 F.3d 952, 959 (8th Cir. 2002) (quoting U.S. v. Martinez-Gaytan, 213 F.3d 890 (5th Cir. 2000)). 

See United States v. Scott, 437 U.S. 82, 90-91, 98 S. Ct. 2187, 

57 L. Ed. 2d 65 (1978) (stating “venerable principle[]” of 

double jeopardy jurisprudence that “[the] successful appeal 

of a judgment of conviction, on any ground other than the 
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insufficiency of the evidence to support the verdict . . . poses 

no bar to further prosecution on the same charge”). See, also, 

State v. Szpyrka, 223 Ariz. 390, 224 P.3d 206 (Ariz. App. 2010) 

(stating in case where factual basis underlying plea agreement became erroneous, repleading or retrial not precluded by 

Double Jeopardy Clause). As discussed below, the case should 

proceed on remand as if the district court had properly rejected 

Ettleman’s plea to felony child abuse for lack of a factual basis, 

and all pending charges remained viable.

We do not appear to have previously addressed how an 

appellate court should remedy the situation when it determines 

that a plea was not valid because it was not supported by a factual basis. As discussed above, we have stated that a sufficient 

factual basis is a requirement for finding that a plea was understandingly and voluntarily entered and hence valid. See State 

v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016). That is, if 

there was not a sufficient factual basis, the plea was not made 

understandingly and voluntarily and therefore the court should 

not have accepted the plea. It logically follows that, as the 

State suggests, a proper remedy on appeal would put Ettleman 

and the State back where they would have been if the court 

had properly refused the plea which lacked a sufficient factual 

basis. And, in this case, the State does not claim it relied on the 

plea to its detriment or that invalidation of the plea precludes it 

from obtaining a valid conviction.

[7] Putting the parties back where they would have been, 

as we have determined, appears to be the approach of other 

jurisdictions. For example, the Supreme Court of New Jersey 

in State v. Campfield, 213 N.J. 218, 232, 61 A.3d 1258, 1266 

(2013), reasoned:

The remedy for an inadequate factual basis is an order 

vacating the guilty plea and restoring both parties to their 

positions prior to the trial court’s acceptance of the plea. 

[State v. Barboza, 115 N.J. 415, 558 A.2d 1303 (1989)]. 

If an appellate court determines that “a plea has been 

accepted without an adequate factual basis, the plea, 
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the judgment of conviction, and the sentence must be 

vacated, the dismissed charges reinstated, and defendant 

allowed to re-plead or to proceed to trial.” [Id. at 420, 558 

A.2d at 1305].

[8] In a similar vein, the Supreme Court of Iowa in State 

v. Gines, 844 N.W.2d 437 (Iowa 2014), held that where on 

remand it was possible to establish a factual basis to the 

charges to which the defendant had entered a plea, the State 

should be given the opportunity to establish a factual basis. 

But if the State could not establish a factual basis for the 

specific charges to which the defendant had earlier entered 

a plea, then the State would not have received the benefit of 

its plea bargain (which agreement may have contained other 

features such as dismissal of other charges or refraining from 

seeking enhancement). The Gines court reasoned that “if the 

State cannot establish the required factual basis . . . , we must 

put the State back in the position it was in before making 

the plea agreement,” which included, inter alia, “reinstat[ing] 

any charges or sentencing enhancements dismissed from the 

[operative] information in contemplation of the plea agreement.” 844 N.W.2d at 442. See, also, U.S. v. Tunning, 69 F.3d 

107, 115 (6th Cir. 1995) (describing “‘two remedy’ rule” under 

which federal appellate court either remands to allow government to establish factual basis or vacates plea and remands for 

defendant to plead anew).

We determine that the appropriate remedy in this case is to 

reverse in part the Court of Appeals’ decision with directions 

to vacate the plea and remand the matter to the district court 

for further proceedings. The district court should first determine whether the State can establish a proper factual basis 

for Ettleman’s plea to Class IIIA felony child abuse, keeping 

in mind our analysis herein and the analysis of the Court of 

Appeals in its opinion, which led to the conclusion that the 

record as it stands did not provide a sufficient factual basis. 

If the State cannot establish a factual basis for the plea that 

was entered, then the court should put the State and Ettleman 
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back in the position they were in before the court accepted the 

plea agreement.

Our disposition differs from that of the Court of Appeals 

which limited its remedy to reversal of the felony child abuse 

conviction and vacation of the sentence imposed for both convictions. Contrary to the disposition of the Court of Appeals, 

we reverse the conviction for felony child abuse and give the 

State an opportunity to establish a proper factual basis therefor. 

Failing that, we conclude that in order to put the parties back 

in the position prior to acceptance of the invalid plea to felony 

child abuse, the remedy requires not only that the conviction 

for felony child abuse be reversed and the sentence for both 

convictions vacated but also that the conviction for attempted 

possession of a controlled substance be reversed. Because 

the plea agreement was negotiated as a whole, if one part of 

the plea agreement was not supported by a factual basis and 

should not have been accepted, then the entire integrated plea 

should not have been accepted. And, as noted earlier, in this 

case, the court imposed a single sentence of probation for both 

counts which further suggests that the pleas could reasonably 

be viewed as parts of one agreement.

Upon remand, if the State cannot establish a factual basis for 

felony child abuse, Ettleman’s pleas to both counts should be 

vacated and the parties allowed to either negotiate a new plea 

agreement or proceed to trial on the charges in the operative 

information prior to the agreement that resulted in Ettleman’s 

pleas. Allowing the parties to proceed in such manner permits 

reinstatement of the charges set forth in the operative information, including charges that were dismissed or downgraded as 

part of the plea agreement. See, State v. Gines, 844 N.W.2d 

437 (Iowa 2014); State v. Campfield, 213 N.J. 218, 61 A.3d 

1258 (2013).

CONCLUSION

We affirm the Court of Appeals’ decision to the extent 

it determined that the factual basis for felony child abuse 
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was not sufficient and reversed that conviction. However, we 

reverse the remainder of the decision of the Court of Appeals. 

We remand the matter to the Court of Appeals with directions 

to reverse both convictions, vacate the sentence, and remand 

the matter to the district court with instructions to afford the 

State the opportunity to provide a sufficient factual basis to 

support the validity of a plea to felony child abuse and, failing that, restore the parties to the position they were in before 

making the plea agreement, including reinstating the charges 

in the operative information.

 Affirmed in part, and in part reversed

and remanded with directions.

Freudenberg, J., dissenting.

I respectfully dissent from the majority’s conclusion that 

the district court abused its discretion when it found a sufficient factual basis existed to support the appellant’s no contest 

plea to the offense of child abuse pursuant to Neb. Rev. Stat. 

§ 28-707(1) (Reissue 2016). It is my opinion that the factual 

basis provided by the State prior to the appellant’s voluntarily 

entering her no contest plea provided sufficient information to 

reasonably establish that the alleged crime had occurred. See 

§ 28-707(1).

As stated in the majority opinion, the relevant portion of 

§ 28-707(1) states: “A person commits child abuse if he or 

she knowingly, intentionally, or negligently causes or permits 

a minor child to be: (a) Placed in a situation that endangers 

his or her life or physical or mental health.” The factual basis 

provided to the district court reasonably established that the 

appellant knowingly caused or permitted her 11-year-old son 

to be placed in a situation that endangered his mental health.

To fairly apply an abuse of discretion standard to the district court’s ruling, a liberal reading of the provided factual 

basis should occur. See, generally, 1A Charles Alan Wright 

& Andrew D. Leipold, Federal Practice and Procedure § 179 

(3d ed. 2008 & Supp. 2019) (indicating that federal courts 
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have broad discretion in making factual basis decision). The 

information provided by the State and not timely contested by 

the appellant clearly shows that the appellant had, on several 

previous occasions, illegally distributed prescription narcotics 

to Tanya Brainard and was owed money by Brainard for those 

transactions. After incurring such debt, Brainard provided law 

enforcement information regarding the appellant’s distribution 

activities. Law enforcement, posing as Brainard, then contacted 

the appellant. The appellant agreed to provide prescription 

narcotics to Brainard for a drug transaction on that same day 

involving an undisclosed third party. The appellant gathered 

the narcotics and her 11-year-old son and placed both in her 

vehicle for transport to Brainard’s residence.

The fact that the appellant knowingly and intentionally 

placed her son in the vehicle to accompany her in the commission of a felony drug transaction is sufficient to establish 

she had “endanger[ed]” his mental health under § 28-707(1). 

Black’s Law Dictionary defines “endangerment” as: “The act 

or an instance of putting someone or something in danger; 

exposure to peril or harm.” Black’s Law Dictionary 644 (10th 

ed. 2014). Under this definition and the standard set forth by 

Nebraska law, actual harm is not required to occur under an 

endangerment standard—merely the exposure to potential harm 

is sufficient. Under such standard, the district court clearly did 

not abuse its discretion by finding that a factual basis existed 

to support the entry of the appellant’s no contest plea. For this 

reason, I dissent.

While I dissent in the majority’s decision regarding the 

existence of a sufficient factual basis, I fully agree with the 

remainder of the majority opinion. I specifically address the 

procedural tactic utilized by the appellant in this matter.

The parties informed the district court that a plea agreement had been reached. As part of the plea hearing, the State 

provided a factual basis. When the district court inquired as 

to the appellant’s opinion regarding the sufficiency of the factual basis, the appellant raised no challenge and her attorney 
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simply stated that he “[w]ould address those at sentencing . . 

. .” After this exchange, the appellant, with no further comment from her or her attorney, entered a no contest plea to 

the amended charges. If the appellant had concerns or issues 

with the sufficiency of the factual basis provided, she was 

not required to enter a no contest plea to felony child abuse 

at that time. She had a right to a trial and to fully contest 

the charge.

The approach taken by the appellant should be disfavored 

by this court, and such approach has been addressed in the 

majority opinion. It is clear that the record from the plea hearing does not contain a statement from the appellant affirming 

the sufficiency of the factual basis provided by the State. The 

absence of such acknowledgment has allowed the appellant 

to raise this subsequent challenge. However, as suggested by 

the majority, an expansion of the trial court’s plea colloquy to 

include an inquiry regarding the sufficiency of the factual basis 

would directly address such issue. An affirmative response 

from a criminal defendant would, in most circumstances, act 

as a waiver of a later sufficiency challenge. Any response 

short of an affirmative response places the trial court on notice 

that further inquiry is warranted and, depending on the results, 

may ultimately require the trial court to reject the proffered 

plea. I believe such clarification will adequately address future 

attempts of gamesmanship similar to that utilized during the 

appellant’s plea hearing.