Background
Alejandra Alarcon-Romero was charged with two felony counts of theft by shoplifting for stealing a $67.99 bottle of tequila on two separate occasions from a market in Lexington, Nebraska. The charges were felonies due to her prior theft convictions. Alarcon-Romero entered into a plea agreement where she pled no contest to one count in exchange for the dismissal of the second count and another pending case.
The trial court accepted her plea. At sentencing, the court noted Alarcon-Romero had at least six prior theft convictions and a high risk of reoffending. The court sentenced her to 24 months of specialized substance abuse probation and 25 days in jail, with an additional 90 days that could be waived upon successful completion of probation. The court also ordered her to pay restitution in the amount of $146.18, which represented the value of both bottles of tequila, including the one from the dismissed charge.
The Court’s Holding
The Nebraska Court of Appeals affirmed Alarcon-Romero’s conviction but reversed the trial court’s restitution order. Alarcon-Romero argued on appeal that the restitution amount was improper and that her trial lawyer was ineffective. The appellate court agreed that the restitution order was flawed. Under Nebraska law, a court can only order restitution for losses related to a dismissed charge if the defendant consents. Here, the $146.18 restitution amount improperly included the value of the tequila from the charge that was dismissed as part of the plea deal, and there was no evidence Alarcon-Romero had agreed to pay it. The court rejected her argument that the record lacked evidence of her ability to pay restitution, noting the presentence report contained information about her employment and living situation.
The court also found “plain error” in the sentence because the trial judge failed to specify the terms of payment for the restitution—such as immediately, in installments, or within a set period—as required by statute. The court rejected Alarcon-Romero’s claims of ineffective assistance of counsel. The claim regarding counsel’s failure to object to restitution was moot because the court was already correcting the error. A second claim, that counsel failed to investigate and pressured her into the plea, was dismissed as being too vague and conclusory. The case was sent back to the district court with directions to issue a new restitution order for the correct amount (for one bottle of tequila) and to specify the payment terms.
Key Takeaways
- A court cannot order a defendant to pay restitution for losses from a criminal charge that was dismissed as part of a plea agreement unless the defendant explicitly consents to do so.
- When ordering restitution, a sentencing court must specify how it is to be paid (e.g., immediately, in specified installments, or within a specified period of time). Failure to do so constitutes plain error.
- While a court must consider a defendant’s ability to pay restitution, a defendant’s current inability to pay does not, by itself, prevent a court from ordering restitution as part of a sentence.
- To succeed on a claim of ineffective assistance of counsel, an appellant must make specific and particular allegations of deficient performance; broad, conclusory statements are insufficient for appellate review.
Why It Matters
This opinion reinforces the strict statutory limits on restitution in criminal sentencing in Nebraska. It serves as a clear reminder that restitution must be directly tied to the crime for which the defendant was actually convicted. A plea bargain that dismisses certain charges does not implicitly authorize restitution for those dismissed offenses; the defendant’s consent is required. The decision also underscores the importance of procedural correctness for trial courts, highlighting that the failure to specify payment terms for restitution is a reversible error. For defense attorneys, the ruling demonstrates the necessity of raising specific, well-supported arguments on appeal, particularly for complex claims like ineffective assistance of counsel, as general allegations will not be considered by the court.