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STATE v. KIRBY

Cite as 25 Neb. App. 10

State of Nebraska, appellee, v. 

Ramon M. Kirby, appellant.

___ N.W.2d ___

Filed August 29, 2017. No. A-16-741.

1. Pleas: Courts. A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas before sentencing.

2. 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.

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

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

unfairly depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition.

4. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

5. Pleas. To support a finding that a defendant freely, intelligently, voluntarily, and understandingly entered a guilty plea, a court must inform a 

defendant about (1) the nature of the charge, (2) the right to assistance 

of counsel, (3) the right to confront witnesses against the defendant, (4) 

the right to a jury trial, and (5) the privilege against self-incrimination. 

The record must also show a factual basis for the plea and that the 

defendant knew the range of penalties for the crime charged.

6. Pleas: Proof: Appeal and Error. The right to withdraw a plea previously entered is not absolute. 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.

7. Sentences. Factors a judge should consider in imposing a sentence 

include the defendant’s age, mentality, education, experience, and social 

and cultural background, as well as his or her past criminal record or 

Nebraska Supreme Court Online Library

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

09/05/2017 09:13 AM CDT
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STATE v. KIRBY

Cite as 25 Neb. App. 10

law-abiding conduct, motivation for the offense, nature of the offense, 

and the amount of violence involved in the commission of the crime.

8. Bonds: Appeal and Error. A pretrial bond and an appeal bond after 

conviction are treated differently.

9. Bonds. Neb. Rev. Stat. § 29-2302 (Reissue 2016) requires that a reasonable bond be set following a misdemeanor conviction in district court.

10. Bonds: Appeal and Error. Reasonableness of the appeal bond amount 

is determined under the general discretion of the district court.

11. ____: ____. Factors to be considered in determining the reasonableness 

of a defendant’s appeal bond under Neb. Rev. Stat. § 29-2302 (Reissue 

2016) following a misdemeanor conviction include the atrocity of the 

defendant’s offenses, the probability of the defendant appearing to serve 

his or her sentence following the conclusion of his or her appeal, the 

defendant’s prior criminal history, and the nature of other circumstances 

surrounding the case.

Appeal from the District Court for Lancaster County: John

A. Colborn, Judge. Affirmed.

Joseph D. Nigro, Lancaster County Public Defender, and 

John C. Jorgensen for appellant.

Douglas J. Peterson, Attorney General, Erin E. Tangeman, 

and, on brief, George R. Love for appellee.

Moore, Chief Judge, and Riedmann and Bishop, Judges.

Bishop, Judge.

Ramon M. Kirby pled no contest to two counts: (1) criminal mischief causing a pecuniary loss between $500 and 

$1,500, a Class I misdemeanor, and (2) third degree domestic 

assault, a Class I misdemeanor. The district court sentenced 

him to concurrent sentences of 270 days’ imprisonment on 

each count. Kirby argues that the district court would not allow 

him to withdraw his pleas, imposed excessive sentences, and 

set an unreasonable appeal bond. For the following reasons, 

we affirm.

BACKGROUND

On July 17, 2014, the State filed an information charging Kirby with three counts: (1) criminal mischief causing 
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STATE v. KIRBY

Cite as 25 Neb. App. 10

a pecuniary loss over $1,500, a Class IV felony, pursuant to 

Neb. Rev. Stat. § 28-519(1) and (2) (Reissue 2008); (2) terroristic threats, a Class IV felony, pursuant to Neb. Rev. Stat. 

§ 28-311.01 (Reissue 2008); and (3) domestic assault, third 

degree, a Class I misdemeanor, pursuant to Neb. Rev. Stat. 

§ 28-323(1) and (4) (Cum. Supp. 2014). We note that Kirby’s 

offenses occurred prior to August 30, 2015, the effective date 

of 2015 Neb. Laws, L.B. 605, which changed the classification 

of certain crimes and made certain amendments to Nebraska’s 

sentencing laws.

In December 2014, the State filed an amended information charging Kirby with two counts: (1) criminal mischief 

causing a pecuniary loss between $500 and $1,500, a Class I 

misdemeanor, pursuant to § 28-519(1) and (3); and (2) third 

degree domestic assault, a Class I misdemeanor, pursuant to 

§ 28-323(1) and (4). Pursuant to a plea agreement, Kirby pled 

“no contest” to counts 1 and 2 of the amended information. 

According to the factual basis provided by the State:

[O]n September 6th, 2013, approximately 6:04 a.m., the 

Lincoln Police Department received a report of a domestic assault. They received that report from [T.G.] Officers 

were dispatched to her residence . . . here in Lincoln, 

Lancaster County, Nebraska.

She indicated that between the hours of three o’clock 

a.m. and five o’clock a.m. on September 6th, 2013, she 

was assaulted by her then boyfriend, [Kirby]. She said 

that she had been with [Kirby] for approximately 15 

years. She returned home and [Kirby] was already there. 

She indicated at some point, while they were in the home 

together, he became belligerent, so she asked him to 

leave. She said that [Kirby] refused to leave the house, 

became physical with her.

She said that as she was walking towards the bedroom, 

[Kirby] punched her in the face, forced her into the bedroom, forced her onto the bed, and then once she was on 

the bed, he got on top of her, put his knees on her chest 
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Cite as 25 Neb. App. 10

and put one hand around her neck and the other on her 

head. She said she was unsure if her airway was ever 

obstructed, but she did have significant red marks on her 

neck and her face from the assault, and those were visible to the officer. She also indicated that while he was 

on top of her, on the bed, he said that he was going to 

kill her.

[T.G.] indicated that eventually she was able to get 

away from him and she left the house, went to her daughter’s house . . . . She stayed there for some time before 

returning to the home. . . .

Once [T.G. and her daughter] went into the home, 

they found that [Kirby] had caused significant damage 

to some items, there was a broken computer. Also in the 

bathroom, they noticed that [Kirby] had caused some 

damage as well, evidently he had plugged up the toilet or 

something of that nature; turned on the water, and water 

had been overflowing into the bathroom, and then that 

flowed down into the basement, and they noticed that 

there was standing water in the basement as a result of 

the running water.

There was [sic] damage estimates in excess of 

$3,000. The total restitution of damage in this case was 

$3,453.60.

The State also noted that as part of the plea agreement, 

Kirby was to plead to the two Class I misdemeanors in the 

amended petition and to pay restitution in the amount of 

$3,453.60, which he had paid. When Kirby was asked if that 

was his understanding of the plea deal, Kirby responded, “Not 

quite. They were supposed to reduce the charges considerably, according to how fast I paid off the restitution, and I 

paid it off rather quick . . . [a]nd, no, they did not keep their 

word.” Defense counsel informed the court that Kirby may 

be referring to an original agreement to deal with his case in 

county court, when Kirby was represented by different counsel; current counsel’s understanding was the offer had been 
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withdrawn and the case bound over to district court. Kirby 

said he hired his current counsel because his previous counsel 

“did not make the prosecutor keep their word.” After defense 

counsel was allowed to confer with Kirby, Kirby confirmed to 

the court that the plea agreement outlined at the hearing was 

the agreement as he understood it that day and that he wanted 

the court to accept that plea agreement and his no contest plea 

to each charge. The district court accepted Kirby’s no contest 

pleas to counts 1 and 2.

Kirby failed to appear for sentencing in February 2015, and 

a warrant was issued for his arrest. He was not arrested on the 

warrant until April 2016.

In June 2016, Kirby appeared before the district court for a 

hearing on his motion to withdraw plea. (The motion does not 

appear in our record, but the judge’s notes indicate that it was 

filed in April.) The district court denied the motion, reasoning 

that Kirby understood the nature and terms of the agreement at 

the time of his plea.

On August 2, 2016, the district court sentenced Kirby to 

concurrent sentences of 270 days’ imprisonment on each count, 

with 11 days’ credit for time served. According to the “Judges 

Notes” appearing in our transcript, on August 3, the district 

court set an appeal bond “in the amount of $250,000 Reg. 10% 

bond with community corrections conditions” and Kirby was 

“remanded to custody pending posting of appeal bond.”

Kirby now appeals.

ASSIGNMENTS OF ERROR

Kirby assigns, reordered, that the district court erred when it 

(1) denied Kirby’s motion to withdraw his pleas, (2) imposed 

excessive sentences, and (3) set an unreasonable appeal bond.

STANDARD OF REVIEW

[1-3] A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas before sentencing. State 

v. Carr, 294 Neb. 185, 881 N.W.2d 192 (2016). An appellate 

court will not disturb the trial court’s ruling on a presentencing 
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motion to withdraw a guilty or no contest plea absent an abuse 

of discretion. Id. A judicial abuse of discretion exists only 

when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and 

denying a just result in matters submitted for disposition. State 

v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017).

[4] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by 

the trial court. State v. Abejide, 293 Neb. 687, 879 N.W.2d 

684 (2016).

ANALYSIS

Motion to Withdraw Plea.

Kirby asserts that the district court’s denial of his motion 

to withdraw plea was an abuse of discretion because “[i]t is 

clear from the record that [Kirby] did not fully understand the 

nature and terms of the plea agreement,” in that he believed 

the agreement “included a [further] substantial reduction in the 

charges in congruence with him paying restitution.” Brief for 

appellant at 17.

[5] To support a finding that a defendant freely, intelligently, 

voluntarily, and understandingly entered a guilty plea, a court 

must inform a defendant about (1) the nature of the charge, (2) 

the right to assistance of counsel, (3) the right to confront witnesses against the defendant, (4) the right to a jury trial, and 

(5) the privilege against self-incrimination. State v. Carr, supra. 

The record must also show a factual basis for the plea and 

that the defendant knew the range of penalties for the crime 

charged. Id. Kirby was advised as to all of the above, and a 

factual basis for the pleas was given at the December 2014 

plea hearing.

[6] The right to withdraw a plea previously entered is not 

absolute. State v. Carr, supra. 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 
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prejudice the prosecution. Id. See, also, State v. Carlson, 260 

Neb. 815, 619 N.W.2d 832 (2000) (reaffirming standard is that 

court may allow defendant to withdraw plea, not that court 

should allow defendant to withdraw plea). The defendant has 

the burden to show the grounds for withdrawal by clear and 

convincing evidence. State v. Carr, supra. Clear and convincing evidence is that amount of evidence which produces in the 

trier of fact a firm belief or conviction about the existence of 

a fact to be proved. State v. Payne-McCoy, 284 Neb. 302, 818 

N.W.2d 608 (2012).

According to Kirby, Nebraska case law “affords little guidance in articulating a coherent meaning for the ‘fair and just’ 

standard.” Brief for appellant at 15-16. However, while the 

cases may not “articulate” a definition for “fair and just,” 

they nevertheless provide guidance. See, State v. Carr, 294 

Neb. 185, 881 N.W.2d 192 (2016) (holding that newly discovered evidence can be fair and just reason to withdraw plea 

before sentencing, but defendant failed to meet his burden by 

clear and convincing evidence); State v. Schneider, 263 Neb. 

318, 640 N.W.2d 8 (2002) (trial court did not abuse its discretion when it did not allow defendant to withdraw plea after he 

learned he would be required to register as sex offender); State 

v. Roeder, 262 Neb. 951, 636 N.W.2d 870 (2001) (defendant’s assertion that she felt coercion and duress to make plea 

was not fair and just reason to withdraw plea; only evidence 

of duress and coercion was fact that defendant missed trial 

date prior to entering pleas and was told by counsel that if 

she did not accept plea she would spend time in jail due to 

her failure to appear); State v. Carlson, supra (defendant’s 

assertion his attorney promised he could withdraw plea upon 

possible discovery of additional evidence failed to establish 

fair and just reason to withdraw plea); State v. Schurman, 17 

Neb. App. 431, 762 N.W.2d 337 (2009) (defendant was not 

represented at plea hearing, exhibited confusion, and suffered 

from bipolar disorder and hearing loss; counsel subsequently 

appointed for sentencing phase motioned to withdraw plea 
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but motion was denied; reversed on appeal because defendant should have been permitted to withdraw pleas based on 

record presented).

At the hearing on Kirby’s motion to withdraw plea, the court 

received into evidence the bill of exceptions from the December 

2014 plea hearing described previously. Kirby acknowledged 

that after the plea agreement was “put on the record,” he 

conferred with counsel off the record. Defense counsel then 

inquired about Kirby’s recollection of that conversation during 

the following colloquy:

Q[:] . . . Kirby, what is your recollection of our conversation between yourself and myself, as your attorney, 

off the record, on the plea proceeding that was held on 

December 2nd, 2014?

A[:] I explained to you how I had a deal made with 

the prosecution, and they did not hold up their end of 

the deal.

Q[:] And the plea agreement that you believe you were 

entitled to was different than the one that was stated on 

the record on December 2nd, 2014, correct?

A[:] Correct.

Q[:] What was the difference between the plea agreement put on the record and the one you believed you were 

entitled to?

A[:] Well, I already made - they had already reduced 

the charges to those, and I was told that the sooner I pay 

the restitution off, they would drop the charges further 

down. And so I paid them off as quickly as possible.

Q[:] And who provided you with that information . . . ?

A[:] That would have been [my public defender].

. . . .

Q[:] At the time of entry of your plea on December 

2nd, 2014, did you feel like you were coerced with regard 

to entering that plea?

A[:] Yes.

Q[:] Why is that?
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A[:] I was just encouraged, I guess, maybe not coerced.

Q[:] And was that, in part, due to the issues that you 

previously noted with regard to the plea agreement?

A[:] Yes.

On cross-examination, Kirby stated that within a month of 

his September 2013 arrest, his public defender told him about 

the plea offer wherein the charges would be further reduced if 

restitution were paid quickly. When asked by the State what 

“further reduced” meant, Kirby responded, “That’s just all [my 

public defender] would tell me.”

There was also some discussion during cross-examination 

as to whether the plea offer Kirby was referring to was made 

in county court, but Kirby did not know where the offer was 

made. The State asked the district court “to take judicial notice 

of the court filing, including the transcript from county court 

that would have been bound over at the time,” and the district 

court said it would do so. However, we note that the court file 

was not offered or received into evidence, nor does it otherwise 

appear in the record before us. But, at the December 2014 plea 

hearing (received into evidence at the motion to withdraw plea 

hearing), when discussing Kirby’s understanding that under the 

plea agreement charges would be reduced considerably based 

on how quickly restitution was paid, defense counsel informed 

the court that Kirby may be referring to an original agreement 

to deal with his case in county court, when Kirby was represented by different counsel; current counsel’s understanding 

was that the offer had been withdrawn and the case bound over 

to district court.

In overruling Kirby’s motion to withdraw plea, the district 

court found the record clearly reflected that Kirby understood 

the nature and terms of the plea agreement. “At the time of the 

plea . . . the Court asked him if that was his understanding of 

the plea agreement, he indicated that it was not. . . . His exact 

words were, ‘Not quite. They were supposed to reduce the 

charges considerably,’ and then he goes on.” The district court 

noted that Kirby was then given an opportunity to talk to his 
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counsel off the record, and when they were back on the record 

the following discussion was had (quoting directly from the 

plea hearing):

[Defense counsel]: Your Honor, I think we’ve cleared it 

up in speaking with . . . Kirby.

THE COURT: All right. . . . Kirby, have you had an 

opportunity to talk to your attorney?

[Kirby]: Yes, sir.

THE COURT: The plea agreement, as outlined by 

[the State], is that the plea agreement as you understand 

it today?

[Kirby]: Yes, sir.

THE COURT: And do you want the Court to accept 

that plea agreement?

[Kirby]: Yes, sir.

THE COURT: Other than this plea agreement, has 

anyone connected with law enforcement or the County 

Attorney’s Office, or anyone else, made any promises, 

threats, or used any force or inducements to get you to 

plead no contest to these charges?

[Kirby]: No, sir.

. . . .

THE COURT: Do you still wish to plead no contest to 

each charge?

[Kirby]: Yes, sir.

THE COURT: Are you freely, voluntarily, knowingly 

and intelligently entering each plea of no contest and 

waiving your rights in this matter?

[Kirby]: Yes.

THE COURT: [Defense counsel], do you believe the 

pleas of no contest are consistent with the law and 

the facts?

[Defense counsel]: I do, Your Honor.

THE COURT: Do you believe your client is making 

each of these pleas freely, voluntarily, knowingly and 

intelligently?

[Defense counsel]: Yes, I do, Your Honor.
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The district court, in continuing its oral pronouncement on 

Kirby’s motion to withdraw plea, found the record clearly 

reflected that Kirby’s pleas were freely, voluntarily, knowingly, 

and intelligently entered, and that the plea agreement was 

outlined clearly in court at the time of the plea hearing. Kirby 

indicated that he understood that was the agreement at the time 

of the pleas and wanted the court to accept that plea agreement. The court held that Kirby’s motion to withdraw plea was 

“overruled and denied.”

Kirby argues that given his confusion as to the plea agreement, he did not give voluntary and knowing pleas of no 

contest, and that the district court erroneously applied a heightened “manifest injustice” standard rather than a “fair and just” 

standard when it denied his motion to withdraw plea. Brief for 

appellant at 18. However, his argument that the district court 

applied an erroneous standard is not supported by the record. 

The district court noted that Kirby initially indicated some 

confusion as to the plea agreement, but after conferring with 

his counsel stated he understood the agreement and wanted 

the court to accept the agreement. The court also considered 

that the pleas were entered on December 2, 2014, and that the 

motion to withdraw plea was not filed until nearly 17 months 

later, on April 25, 2016 (and during the interim Kirby failed 

to appear and a warrant was issued for his arrest). Given the 

circumstances of this case, and in light of the case law cited 

above, Kirby failed to prove by clear and convincing evidence 

that he had a “fair and just” reason to withdraw his pleas. 

Accordingly, the district court’s denial of Kirby’s motion to 

withdraw plea was not an abuse of discretion.

Excessive Sentences.

[7] Kirby asserts that the district court imposed excessive 

sentences and did not give proper weight to the relevant sentencing factors. Factors a judge should consider in imposing 

a sentence include the defendant’s age, mentality, education, 

experience, and social and cultural background, as well as his 

or her past criminal record or law-abiding conduct, motivation 
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for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. See State v. 

Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).

Kirby was 51 years old at the time of the crimes and 54 

years old at the time of sentencing. He obtained his GED in 

1979 and had been unemployed since 1989. When asked by 

the probation officer why he does not work, Kirby said “‘it’s 

just not for me’” and stated his family provides for all of his 

financial needs. He lives with his father, and his brother pays 

for all of his food. According to a letter from the Lancaster 

County Department of Community Corrections to the district 

court, Kirby helps care for his 84-year-old father, who has 

Alzheimer’s disease, and he helps his brother with the family farm.

Kirby has been divorced since 1995 and has three grown 

children, one of whom is disabled and lives with Kirby’s 

ex-wife. Kirby had been in a relationship with the victim in 

this case on-and-off since 1997. He reported using marijuana 

daily from the age of 15 up until 4 months prior to his presentence investigation (PSI), which took place in July 2016. When 

asked how he was able to purchase marijuana since he does not 

work, Kirby said, “‘I get money from my brother.’”

Kirby’s criminal history includes convictions for manufacturing a controlled substance, possession of a controlled 

substance with intent to deliver, possession of drug paraphernalia, “Attempt of Class 3A or Class 4 Felony,” disturbing the 

peace, numerous traffic violations, and numerous failures to 

appear on citations. He has previously been on probation, had 

his probation revoked, and was subsequently incarcerated for 

1 year.

Regarding his current convictions, Kirby physically assaulted 

his then girlfriend, T.G.; threatened to kill her; and damaged 

her home. According to her victim impact statement, T.G. 

was “traumatized by the incident” wherein she was punched, 

choked, and threatened. For several days after the incident, 

she was afraid to stay at her house alone. T.G. “felt violated, 
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humiliated and didn’t feel safe for quite some time afterward.” 

At the time of her victim impact statement, nearly 3 years 

had passed since the incident and T.G. had “moved on with 

[her] life.”

As part of the PSI for his current conviction, the probation 

officer conducted a level of service/case management index. 

Kirby scored in the “high risk range” to reoffend. Due to the 

nature of the offense, he was also given a specific assessment for domestic violence (the “Domestic Violence Offender 

Matrix”) and scored in the “high risk range.”

According to the PSI, Kirby did not want to be considered 

for probation and said:

“I would just rather do my time and be done. That is why 

I didn’t show up for my first appointment. I thought this 

was optional. I didn’t know me not showing up was going 

to piss the judge off. I thought if I didn’t want probation 

there was no need to come.”

He also did not take responsibility for the present offenses 

and told the probation officer that the victim was the one who 

assaulted him; when asked about the injuries to the victim 

he stated, “‘She was quite capable of doing that to herself.’” 

He also denied damaging the home, saying the damage was 

already there. Kirby also stated that his brother paid the restitution, in full.

At the sentencing hearing, defense counsel stated that Kirby 

was not requesting probation, but was asking for the imposition of either a minimal jail sentence or a fine only. Counsel 

noted that Kirby was needed to help care for his father and his 

daughter, as well as to help his brother with the family farm. 

Counsel further noted that restitution for the criminal mischief 

charge had been paid in full.

The district court said it considered the PSI, additional letters from various persons (including the victim in the case), 

and the comments of defense counsel. The court said, “I can’t 

ignore the serious nature of these offenses and the surrounding facts and circumstances. When this matter was originally 
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set for sentencing, you failed to appear and you were gone for 

approximately a year, or a little longer I believe.” The court 

found that imprisonment was “necessary for the protection 

of the public, because the risk is substantial that during any 

period of probation, [Kirby] would engage in additional criminal conduct, and because a lesser sentence would depreciate 

the seriousness of [Kirby’s] crimes and promote disrespect 

for the law.” The district court sentenced Kirby to concurrent 

sentences of 270 days’ imprisonment on each count, with 11 

days’ credit for time served.

At the time of Kirby’s offenses (which occurred before L.B. 

605), Class I misdemeanors were punishable by up to 1 year’s 

imprisonment, a $1,000 fine, or both. See Neb. Rev. Stat. 

§ 28-106 (Cum. Supp. 2014). Kirby’s sentences were within 

the permissible sentencing range. Additionally, in exchange for 

his pleas, Kirby had one of his counts reduced from a felony 

to a misdemeanor, and another felony count was dropped. 

Having considered the relevant factors in this case, we find 

that Kirby’s sentences are not excessive or an abuse of discretion and his sentences are therefore affirmed. See State 

v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013) (sentence 

imposed within statutory limits will not be disturbed on appeal 

absent abuse of discretion by trial court); State v. Meehan, 

7 Neb. App. 639, 585 N.W.2d 459 (1998) (sentencing court 

in noncapital cases may consider defendant’s nonadjudicated 

misconduct in determining appropriate sentence).

Appeal Bond.

Initially, we note that we have found nothing in the record 

to suggest that Kirby motioned the district court to reduce his 

appeal bond. The State asserts that Kirby’s failure to first seek 

reduction of his bond in the district court precludes him from 

challenging the bond amount on appeal; however, the State 

provides us no authority to support its assertion. Accordingly, 

we will address the merits of Kirby’s assigned error regarding the appeal bond. Kirby contends that the district court set 
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an unreasonable appeal bond and “[t]his effectively failed to 

suspend the sentence pending the outcome of this appeal,” 

and that this “was a clear abuse of discretion.” Brief for 

appellant at 18. He argues that “[t]he establishment of a 

quarter million dollar bond on an appeal of two misdemeanor 

convictions is an excessive bond” in violation of Neb. Rev. 

Stat. § 29-2302 (Reissue 2016), as well as constitutional provisions protecting individuals from excessive bail. Brief for 

appellant at 18.

Section 29-2302 states:

The execution of sentence and judgment against any 

person or persons convicted and sentenced in the district 

court for a misdemeanor shall be suspended during an 

appeal to the Court of Appeals or Supreme Court. The 

district court shall fix the amount of a recognizance, 

which in all cases shall be reasonable, conditioned that 

the appeal shall be prosecuted without delay and that in 

case the judgment is affirmed he, she, or they will abide, 

do, and perform the judgment and sentence of the district court.

See, also, U.S. Const. amend. VIII (“[e]xcessive bail shall 

not be required, nor excessive fines imposed, nor cruel and 

unusual punishments inflicted”); Neb. Const. art. I, § 9 (“[a]ll 

persons shall be bailable by sufficient sureties, except for treason, sexual offenses involving penetration by force or against 

the will of the victim, and murder, where the proof is evident 

or the presumption great. Excessive bail shall not be required, 

nor excessive fines imposed, nor cruel and unusual punishment inflicted”).

Since no Nebraska case law specifically addresses factors 

to consider for appeal bonds set by the district court in misdemeanor cases under § 29-2302, our review is guided by the 

plain language of the statute, along with other statutes and case 

law pertinent to appeal bonds in criminal cases.

[8] We preliminarily observe that Neb. Rev. Stat. § 29-901 

(Reissue 2016), which requires release on personal recognizance 
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or bond for “[a]ny bailable defendant,” unless otherwise 

exempted, only applies to cases before judgment. “A bond to 

guarantee the appearance of a defendant at pretrial proceedings 

and at trial is distinct from an appeal bond after conviction.” 

State v. Hernandez, 1 Neb. App. 830, 834, 511 N.W.2d 535, 

538 (1993). A convicted person is treated differently than “one 

who is awaiting trial and still presumed innocent.” Id. We note 

that the Nebraska Legislature recently amended § 29-901 to 

require a court to consider all methods of bond and conditions 

of release to avoid pretrial incarceration, including consideration of the defendant’s financial ability to pay a bond and 

consideration of “the least onerous” of conditions to “reasonably assure the defendant’s appearance or that will eliminate 

or minimize the risk of harm to others or the public at large.” 

2017 Neb. Laws, L.B. 259 § 2 (effective August 24, 2017). 

While these amendments may impact consideration of bonds 

pertinent to pretrial proceedings, the present matter involves 

the propriety of a bond ordered after a conviction. And as this 

court stated in State v. Hernandez, supra, a pretrial bond and 

an appeal bond after conviction are treated differently. We 

turn our attention to statutes and cases dealing with bonds 

after conviction.

With regard to an appeal bond after a felony conviction, our 

Supreme Court has stated that the

right to bail, after conviction, is discretionary and not 

absolute. Once a defendant has been convicted of the 

felony charged, he is not entitled to be released on bail. 

Such determination is left to the discretion of the trial 

court who may prescribe the amount of the bond and the 

conditions thereof, including a requirement that the full 

amount of the bond be posted.

State v. Woodward, 210 Neb. 740, 747, 316 N.W.2d 759, 763 

(1982). See, also, State v. Dawn, 246 Neb. 384, 519 N.W.2d 

249 (1994) (no abuse of discretion in setting appeal bond 

at $50,000 when defendant had failed to appear after being 

released on bail in two prior cases).
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[9] The above-cited cases make it clear that the setting of 

an appeal bond after a felony conviction is discretionary to the 

district court. We do note, however, that there is some difference in the statutory language regarding postjudgment bonds 

in felony cases and misdemeanor cases. Regarding a felony 

conviction, Neb. Rev. Stat. § 29-2303 (Reissue 2016) states 

in part:

Whenever a person shall be convicted of a felony, and 

the judgment shall be suspended as a result of the notice 

of appeal, it shall be the duty of the court to order the 

person so convicted into the custody of the sheriff, to be 

imprisoned until the appeal is disposed of, or such person 

is admitted to bail.

Whereas, following a misdemeanor conviction, § 29-2302 

states in part, “The execution of sentence and judgment against 

any person or persons convicted and sentenced in the district 

court for a misdemeanor shall be suspended during an appeal 

to the Court of Appeals or Supreme Court.” Therefore, while 

the “judgment shall be suspended” on appeal in felony cases, 

the “execution of sentence and judgment . . . shall be suspended” on appeal in misdemeanor cases. In misdemeanor 

cases, the district court “shall fix the amount of a recognizance, which in all cases shall be reasonable.” § 29-2302. 

Accordingly, § 29-2302 requires that a reasonable bond be set 

following a misdemeanor conviction in district court, whereas, 

§ 29-2303 does not contain that same requirement following a 

felony conviction.

Interestingly, in appeals in criminal cases from county court 

to district court, the county court may exercise its discretion 

with regard to bail. Specifically, the execution of a sentence 

to a period of confinement shall be suspended only if “the 

county court, in its discretion, allows the defendant to continue at liberty under the prior recognizance or bail,” or if 

“the defendant enters into a written recognizance to the State 

of Nebraska, with surety or sureties approved by the county 

court or with a cash bond, filed with the clerk of the county 
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court.” Neb. Rev. Stat. § 25-2730(3) (Reissue 2016). Further, 

when a notice of appeal is filed, “the county court shall fix 

the amount of the recognizance or cash bond, which shall be a 

reasonable amount.” Id. Additionally, § 25-2730(6) allows the 

district court to modify an appeal bond “on motion after notice 

and hearing and upon such terms as justice shall require,” and 

our Supreme Court has indicated that such modifications are 

“consistent with the general discretion of the district court to 

prescribe the amount and conditions of an appeal bond in a 

criminal case.” State v. Griffin, 270 Neb. 578, 583, 705 N.W.2d 

51, 56 (2005).

[10] We conclude that the plain language of § 29-2302 

requires that a bond be set in the present matter, because the 

execution of sentence and judgment against any person convicted and sentenced in the district court for a misdemeanor 

“shall be suspended” during an appeal to this court or the 

Supreme Court and because the district court “shall fix the 

amount of a recognizance.” Further, the amount of the appeal 

bond should be reasonable. Our review of other related statutes 

and case law leads to the conclusion that reasonableness of the 

appeal bond amount is determined under the general discretion 

of the district court. Accordingly, we review the district court’s 

decision regarding the amount of the appeal bond in this case 

for an abuse of discretion.

[11] In considering the reasonableness of the bond amount, 

we note that it has previously been argued that an indigent defendant could not post a $500 appearance bond and 

that this was excessive and violative of the federal and state 

Constitutions. In State v. Howard, 185 Neb. 583, 584-85, 177 

N.W.2d 566, 567-68 (1970), our Supreme Court stated:

Apparently it is appellant’s contention that for most 

indigents any bail would be excessive. When an offense 

charged is a bailable one, discretion rests with the judge 

in fixing the amount of the recognizance, but this discretion is a judicial one. The question to be determined in every case that is bailable is not whether the 
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defendant may make bail, but whether or not the bail 

demanded is unreasonable and disproportionate to the 

crime charged. . . .

While the pecuniary circumstances of a prisoner should 

be considered in determining the amount of the bail, that 

in itself is not controlling. If that were determinative of 

the question, a defendant without means or friends would 

be entitled to be discharged on his recognizance regardless of the risk involved. As we said in In re Scott, [38 

Neb. 502, 508-09, 56 N.W. 1009, 1010 (1893)]: “Many 

things should be taken into consideration in fixing the 

amount of bail, such as the atrocity of the offense; the 

penalty which the law authorizes to be inflicted in case 

of a conviction; the probability of the accused appearing 

to answer the charge against him, if released on bail; his 

pecuniary condition and the nature of the circumstances 

surrounding the case.”

Definitely, a prior criminal record is an important 

factor to be considered. There is no merit to appellant’s 

claim of the requirement of an excessive bond.

Notably, the factors discussed in the above-quoted cases 

were considered in a prejudgment context, and we offer no 

opinion as to any impact the amendments contained in L.B. 

259 may have on bail considerations in the prejudgment context. That said, we see no reason why the foregoing considerations for fixing the amount of bail in a prejudgment context 

cannot similarly be considered in our review of the reasonableness of Kirby’s appeal bond under § 29-2302 following 

his misdemeanor convictions. In particular, we consider the 

atrocity of Kirby’s offenses, the probability of Kirby appearing to serve his sentences following the conclusion of his 

appeal, Kirby’s prior criminal history, and the nature of other 

circumstances surrounding the case.

Kirby pled no contest to two Class I misdemeanors, one 

of which was a crime of violence against his then girlfriend. 

Kirby physically assaulted his girlfriend; he punched her in 
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the face, and forced her onto a bed, where he got on top of 

her, put his knees on her chest, and put one hand around her 

neck and the other on her head, causing significant red marks 

on her neck and her face. While assaulting his girlfriend 

of 15 years in this manner, he also threatened to kill her. 

Additionally, Kirby failed to appear for sentencing in February 

2015 and a warrant was issued for his arrest. He remained at 

large for more than a year and was not arrested on the warrant 

until April 2016. He was ultimately sentenced in August 2016. 

As noted by the State, the district court did not make it impossible for Kirby to post bail, but given Kirby’s avoidance of 

sentencing for over a year after conviction, the “court ensured 

that Kirby would lose a significant sum if he once again failed 

to appear and went on the run.” Brief for appellee at 8. We 

also take into account Kirby’s prior criminal history, which 

includes numerous failures to appear on citations and the revocation of probation. Additionally, Kirby has been unemployed 

since 1989, he gets money to support his marijuana use from 

his brother, his family provides for all his financial needs, his 

brother paid the restitution in this case, and Kirby failed to 

take responsibility for the present offenses. In other words, 

Kirby’s unwillingness to be accountable, combined with the 

other factors noted, make the appeal bond in this case reasonable under these circumstances. We cannot say that the district 

court abused its discretion when it set the appeal bond “in the 

amount of $250,000 Reg. 10% bond.” Accordingly, we affirm 

the appeal bond.

CONCLUSION

For the reasons set forth above, we affirm the decision of 

the district court.

Affirmed.