State v. Johnson ( 2015 )


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  •                        Nebraska Advance Sheets
    STATE v. JOHNSON	369
    Cite as 
    290 Neb. 369
    guests and members to swim, the WCOA should have expected
    the public to encounter some of the dangers associated with the
    open body of water. The lake is an inviting scene for people to
    use for swimming in the summer months. Swimming in itself
    is not a highly dangerous activity. And in order to swim, one
    must first get into the body of water. A common method of
    getting into bodies of water is jumping or diving. Especially
    where a person has already jumped and dove into the lake and
    assumes to know its depth, that person would not be expected
    to realize that there was an undue danger associated with div-
    ing into the water another time. Viewing these inferences in the
    light most favorable to Cole, we conclude that the district court
    erred in finding that the open and obvious doctrine applied,
    because the WCOA should have anticipated its guests to come
    into contact with the lake.
    We reverse the lower court’s finding that the open and obvi-
    ous doctrine applied to bar the WCOA’s liability and remand
    the cause to determine the negligence of the WCOA consistent
    with the instructions in this opinion.
    VI. CONCLUSION
    We affirm the lower court’s ruling as to the Willers, and
    reverse, and remand for further proceedings as to the Taylors
    and the WCOA.
    Affirmed in part, and in part reversed and
    remanded for further proceedings.
    Stephan, J., not participating.
    State of Nebraska, appellee, v.
    Tiuana L. Johnson, appellant.
    ___ N.W.2d ___
    Filed March 13, 2015.   No. S-14-245.
    1.	 Indictments and Informations. A ruling on whether to allow a criminal informa-
    tion to be amended is made by the trial court in its discretion.
    2.	 Judgments: Appeal and Error. When reviewing questions of law, an appellate
    court resolves the questions independently of the lower court’s conclusion.
    Nebraska Advance Sheets
    370	290 NEBRASKA REPORTS
    3.	 Sentences: Judgments: Words and Phrases. An appellate court reviews crimi-
    nal sentences for abuse of discretion, which occurs when a trial court’s decision
    is based upon reasons that are untenable or unreasonable or if its action is clearly
    against justice or conscience, reason, and evidence.
    4.	 Judges: Words and Phrases. A judicial abuse of discretion means that the
    reasons or rulings of the trial court are clearly untenable, unfairly depriving
    a litigant of a substantial right, and denying a just result in matters submitted
    for disposition.
    5.	 Habitual Criminals: Sentences: Convictions: Proof. There are no factual find-
    ings that the trial court must make, in order to enhance a defendant’s sentence
    under the habitual criminal statutes, that are not a part of proving the fact of a
    prior conviction.
    Appeal from the District Court for Lancaster County: Jodi
    Nelson, Judge. Affirmed.
    Dennis R. Keefe, Lancaster County Public Defender, Paul
    E. Cooney, and Mark Carraher, Senior Certified Law Student,
    for appellant.
    Jon Bruning, Attorney General, George R. Love, and Mary
    C. Byrd, Senior Certified Law Student, for appellee.
    Heavican, C.J., Wright, Connolly, Stephan, McCormack,
    Miller-Lerman, and Cassel, JJ.
    McCormack, J.
    NATURE OF CASE
    Tiuana L. Johnson was convicted of escape in violation of
    Neb. Rev. Stat. § 28-912(5)(a) (Reissue 2008) and sentenced
    as a habitual criminal. On appeal, Johnson does not challenge
    the underlying conviction for escape. Rather, he challenges the
    habitual criminal statute on its face and as applied. Johnson
    also asserts that the State’s motion to amend the information
    was untimely and that his sentence was excessive.
    BACKGROUND
    On June 21, 2013, Johnson was charged with Class III
    felony escape, under § 28-912(5)(a). In an amended informa-
    tion filed on August 15, 2013, Johnson was also charged with
    being a habitual criminal under Neb. Rev. Stat. § 29-2221
    (Reissue 2008).
    Nebraska Advance Sheets
    STATE v. JOHNSON	371
    Cite as 
    290 Neb. 369
    Johnson objected to the State’s motion to amend the infor-
    mation to add the habitual criminal charge. The hearing on the
    State’s motion to amend was held on August 15, 2013. Johnson
    argued that the county attorney had had ample time and that
    Johnson was ready to plead no contest to the charge in the
    original information. The State explained that it had been wait-
    ing to receive the record of two prior convictions that it wished
    to use in support of the habitual criminal charge. The State also
    observed that there was still plenty of time remaining for the
    State’s statutory obligation to bring Johnson to trial. The court
    allowed the amendment. The amended information was filed
    on that same date.
    Johnson thereafter filed a motion to quash the amended
    information insofar as it charged Johnson with being a habit-
    ual criminal. In the motion to quash, Johnson asserted that
    the habitual criminal statutory scheme was unconstitutional
    because it fails to provide for a jury determination of cer-
    tain facts pertaining to the prior convictions. Johnson also
    asserted that application of the habitual criminal statutes vio-
    lated double jeopardy because the same conviction that made
    the escape charge a Class III felony rather than a Class IV
    felony formed the basis of the habitual criminal enhancement.
    Johnson further asserted that the application of the habitual
    criminal statutes would violate a state constitutional provision,
    Neb. Const. art. I, § 15, requiring that penalties be proportion-
    ate to the offense. Finally, Johnson asserted that application of
    the habitual criminal enhancement would be cruel and unusual
    punishment. Johnson did not assert in the motion to quash that
    the untimeliness of the amendment to the information preju-
    diced his substantial rights.
    The court overruled the motion to quash. Johnson waived
    his right to a jury trial and his right to a speedy trial. The
    underlying charge of escape was tried on November 25, 2013,
    on three stipulated exhibits, subject to Johnson’s renewed
    motion to quash and the court’s guarantee that it would not
    consider any other crimes, wrongs, or acts for purposes of
    determining whether Johnson committed the crime of escape.
    Additionally, Johnson stipulated that he was the person named
    in the exhibits.
    Nebraska Advance Sheets
    372	290 NEBRASKA REPORTS
    These exhibits generally show that on September 20, 2012,
    Johnson was incarcerated following a conviction for the com-
    mission of an offense. He was out on an approved “Job Seeking
    pass” in Lincoln, Nebraska, and failed to return. Johnson com-
    mitted a robbery in Omaha, Nebraska, that same day. Johnson
    was apprehended on September 28 and confessed to the escape
    and robbery.
    The court found Johnson guilty of escape, in violation of
    § 28-912(5)(a). Upon the court’s inquiry, Johnson’s coun-
    sel indicated that she was “fine with” taking up the issue of
    enhancement.
    In support of the habitual criminal charge, the court
    accepted into evidence five exhibits proffered by the State.
    Johnson did not make any objection to the exhibits other
    than those based on his prior motion to quash. The exhibits
    demonstrated that before his escape on September 20, 2012,
    Johnson had committed nine crimes for each of which he had
    been sentenced to a term of imprisonment for not less than
    1 year.
    The exhibits show that Johnson was convicted on October
    24, 1997, of receipt of stolen property, in relation to events on
    June 19. He was not sentenced until May 11, 1998, at which
    time he was sentenced to 2 to 4 years’ imprisonment.
    On October 2, 1998, Johnson was convicted of robbery and
    a related use of a weapon charge in relation to events on March
    22 and was sentenced to imprisonment for 2 to 4 years on the
    robbery conviction and 1 to 3 years on the use of a weapon
    conviction. Those sentences were ordered to be served con-
    secutively with each other, but concurrently with the May 11
    sentence for receipt of stolen property.
    On July 31, 2003, Johnson was convicted of four counts
    of robbery under one docket and one count of burglary under
    a different docket. The robberies and burglary occurred on
    different dates between December 15, 2002, and January 6,
    2003, and involved different victims. On September 17, 2003,
    Johnson was sentenced to 21⁄2 to 5 years’ imprisonment for
    each robbery, each sentence to be served consecutively. On
    Nebraska Advance Sheets
    STATE v. JOHNSON	373
    Cite as 
    290 Neb. 369
    that same date, he was sentenced to 2 to 3 years’ imprisonment
    for the burglary, to be served concurrently to the sentences for
    the robberies.
    Finally, on February 8, 2010, Johnson was convicted under
    § 28-912(1)(5) of escape in relation to events on September
    15, 2009. On April 28, 2010, Johnson was sentenced to 2 to 2
    years’ imprisonment for that crime.
    The court also accepted into evidence, without any objec-
    tion, printouts offered by Johnson of Nebraska inmate details
    from the Nebraska Department of Correctional Services. The
    printouts indicate that October 21, 2002, was the mandatory
    release date for the conviction of receipt of stolen property and
    the convictions of robbery and the related use of a weapon.
    Thus, Johnson was no longer serving those sentences at the
    time of the escape underlying this appeal.
    At the close of the evidence, Johnson renewed his motion to
    quash. With regard to the double jeopardy challenge, Johnson
    argued that the State had failed to show two prior convic-
    tions for purposes of the habitual criminal charge that were
    both convictions under which Johnson was no longer detained
    at the time of his escape on September 20, 2012. Johnson
    explained that he believed the October 24, 1997, conviction
    for receipt of stolen property and the October 2, 1998, con-
    victions for robbery and use of a weapon counted as only
    one conviction under the habitual criminal statutes, because
    the sentences for the robbery and use of a weapon convic-
    tions were to be served concurrently with the sentence for the
    receipt conviction.
    ASSIGNMENTS OF ERROR
    Johnson assigns that the trial court (1) abused its discretion
    by improperly permitting the State to amend the information
    over Johnson’s objection; (2) erred by improperly overruling
    Johnson’s motion to quash, in violation of the 6th, 8th, and
    14th Amendments to the U.S. Constitution and article I, §§ 6,
    9, 11, and 15, of the Nebraska Constitution; and (3) abused its
    discretion by imposing an excessive sentence.
    Nebraska Advance Sheets
    374	290 NEBRASKA REPORTS
    STANDARD OF REVIEW
    [1] A ruling on whether to allow a criminal information to be
    amended is made by the trial court in its discretion.1
    [2] When reviewing questions of law, an appellate court
    resolves the questions independently of the lower court’s
    conclusion.2
    [3] An appellate court reviews criminal sentences for abuse
    of discretion, which occurs when a trial court’s decision is
    based upon reasons that are untenable or unreasonable or
    if its action is clearly against justice or conscience, reason,
    and evidence.3
    ANALYSIS
    Timeliness of Amendment
    to I nformation
    Johnson first argues that the trial court abused its discre-
    tion in allowing the State to amend its information to add the
    habitual criminal charge. He asserts that prior to the hearing
    on August 15, 2013, he was unaware of the State’s intention to
    amend the information. Without providing any further detail,
    he generally asserts that “[t]he unexpected change of the alle-
    gations forced [Johnson] to quickly adjust his defense strategy
    in a manner that prejudiced [Johnson’s] ability to exercise his
    constitutional right to effectively defend himself.”4
    [4] A ruling on whether to allow a criminal information to
    be amended is made by the trial court in its discretion.5 A judi-
    cial abuse of discretion means that the reasons or rulings of the
    trial court are clearly untenable, unfairly depriving a litigant of
    a substantial right, and denying a just result in matters submit-
    ted for disposition.6
    1
    State v. Clark, 
    8 Neb. Ct. App. 936
    , 
    605 N.W.2d 145
    (2000).
    2
    State v. Payne, 
    289 Neb. 467
    , 
    855 N.W.2d 783
    (2014).
    3
    State v. Rieger, 
    286 Neb. 788
    , 
    839 N.W.2d 282
    (2013).
    4
    Brief for appellant at 15.
    5
    State v. Clark, supra note 1.
    6
    State v. Carlson, 
    260 Neb. 815
    , 
    619 N.W.2d 832
    (2000).
    Nebraska Advance Sheets
    STATE v. JOHNSON	375
    Cite as 
    290 Neb. 369
    In State v. Collins7 and State v. Walker,8 we said that the
    defendant waived his objection with regard to the alleged
    untimeliness of the State’s amendment of the information when
    the defendant failed to file a motion to quash. We explained
    that objections to the form or content of an information should
    be raised by a motion to quash.9
    Johnson filed a motion to quash, but the alleged untimeli-
    ness of the amendment to the information was not one of the
    stated bases for the motion. Because Johnson did not raise in
    his motion to quash the alleged untimeliness of the State’s
    amendment to the information, he waived that objection.
    Furthermore, Johnson’s bald assertion of prejudice fails
    to demonstrate that the trial court abused its discretion in
    allowing the amendment. In State v. Cole,10 we held that the
    trial court did not abuse its discretion in allowing amendment
    of an information to add a habitual criminal charge on the
    day of trial. We explained that the habitual criminal charge
    was not heard until a week after the trial on the underlying
    charge had commenced. We said this was a reasonable time
    for the defendant to prepare his defense to the habitual crimi-
    nal charge.11
    Here, both the underlying trial and the hearing on the
    habitual criminal charge occurred more than 3 months after
    the State filed its amended information. And Johnson’s counsel
    stated she was “fine with” continuing with the habitual crimi-
    nal hearing on that date. Johnson, in fact, never moved for a
    continuance on the basis that he needed more time to prepare
    a defense to the habitual criminal charge. We will not conclude
    that Johnson was prejudiced by the timing of the amendment
    when he did not ask for a continuance, but, to the contrary,
    7
    State   v.   Collins, 
    281 Neb. 927
    , 
    799 N.W.2d 693
    (2011).
    8
    State   v.   Walker, 
    272 Neb. 725
    , 
    724 N.W.2d 552
    (2006).
    9
    State   v.   Collins, supra note 7; State v. Walker, supra note 8.
    10
    State   v.   Cole, 
    192 Neb. 466
    , 
    222 N.W.2d 560
    (1974).
    11
    
    Id. Nebraska Advance
    Sheets
    376	290 NEBRASKA REPORTS
    indicated he was prepared to address the habitual criminal
    charge at the hearing on August 15, 2013.12
    Right to Jury Trial
    Next, Johnson argues that the habitual criminal statutes
    violate the right to a jury trial under the 6th Amendment and
    the Due Process Clause contained in the 14th Amendment
    to the U.S. Constitution and article I, §§ 6 and 11, of the
    Nebraska Constitution. It is not entirely unclear whether this
    is an as-applied or facial challenge to the statutory scheme.
    Regardless, we find it has no merit.
    In State v. Hurbenca,13 we held that under the U.S. Supreme
    Court’s holding in Apprendi v. New Jersey,14 the determination
    of whether a defendant has prior convictions that may increase
    the penalty for a crime beyond the prescribed statutory maxi-
    mum is not a determination that must be made by a jury. We
    noted that, as stated in Apprendi, the fact of a prior conviction
    is not a fact that relates to “‘“the commission of the offense”
    itself . . . .’”15 Therefore, such fact is a “narrow exception
    to the general rule that it is unconstitutional for a legislature
    to remove from a jury the assessment of facts that increase
    the prescribed range of penalties to which a criminal defend­
    ant is exposed.”16 We noted that the Court in Apprendi had
    said, “‘Other than the fact of a prior conviction, any fact that
    increases the penalty for a crime beyond the prescribed statu-
    tory maximum must be submitted to a jury, and proved beyond
    a reasonable doubt. . . .’”17
    Johnson asks us to reconsider our decision in Hurbenca
    in light of the subsequent decision by the U.S. Supreme
    12
    See, e.g., State v. Collins, supra note 7; State v. Mills, 
    199 Neb. 295
    , 
    258 N.W.2d 628
    (1977).
    13
    State v. Hurbenca, 
    266 Neb. 853
    , 
    669 N.W.2d 668
    (2003).
    14
    Apprendi v. New Jersey, 
    530 U.S. 466
    , 
    120 S. Ct. 2348
    , 
    147 L. Ed. 2d 435
          (2000).
    15
    State v. Hurbenca, supra note 
    13, 266 Neb. at 858
    , 669 N.W.2d at 672.
    16
    
    Id. 17 Id.
    at 
    857-58, 669 N.W.2d at 672
    .
    Nebraska Advance Sheets
    STATE v. JOHNSON	377
    Cite as 
    290 Neb. 369
    Court in Blakely v. Washington.18 Johnson fails to explain how
    the Blakely decision changed the U.S. Supreme Court prec-
    edent that we relied upon in Hurbenca. Instead, in his brief,
    Johnson points only to the Apprendi proposition we applied
    in Hurbenca.
    Regardless, Johnson’s argument is based on a false dichot-
    omy. Johnson attempts to parse the mere fact of a prior con-
    viction from facts Johnson claims are necessary to prove that
    prior conviction for purposes of enhancement. Citing State v.
    Johnson,19 Johnson characterizes such independent facts as
    (1) the nature of the prior convictions, (2) whether the prior
    convictions were based upon charges separately brought and
    tried, (3) whether the prior convictions arose out of separate
    and distinct criminal episodes, and (4) whether the defendant
    was the person named in each prior conviction.
    [5] We have repeatedly held that under our habitual criminal
    statutes, there is no required showing by the State beyond “the
    question of determining whether a [valid] conviction [for pur-
    poses of § 29-2221] has or has not been had.”20 In other words,
    there are no factual findings that the trial court must make,
    in order to enhance a defendant’s sentence under the habitual
    criminal statutes, that are not a part of proving the fact of a
    prior conviction.
    The four facts listed by Johnson have never been set forth
    in our case law as a list of separate and necessary find-
    ings in a habitual criminal proceeding. But to the extent that
    Johnson correctly identifies factual elements of the State’s
    burden in establishing two valid prior convictions for purposes
    of § 29-2221, those factual elements are not separate and apart
    from the fact of a prior conviction. Those facts are the means
    by which the State proves the fact of the prior convictions.21
    18
    Blakely v. Washington, 
    542 U.S. 296
    , 
    124 S. Ct. 2531
    , 
    159 L. Ed. 2d 403
          (2004).
    19
    State v. Johnson, 
    7 Neb. Ct. App. 723
    , 
    585 N.W.2d 486
    (1998).
    20
    Danielson v. State, 
    155 Neb. 890
    , 894, 
    54 N.W.2d 56
    , 58 (1952).
    21
    See, State v. Ellis, 
    214 Neb. 172
    , 
    333 N.W.2d 391
    (1983); State v. Roan
    Eagle, 
    182 Neb. 535
    , 
    156 N.W.2d 131
    (1968); Danielson v. State, supra
    note 20. See, also, State v. Johnson, supra note 19.
    Nebraska Advance Sheets
    378	290 NEBRASKA REPORTS
    We find no merit to Johnson’s argument that such aspects of
    proving a valid prior conviction under the habitual criminal
    statutes must be determined by a jury.
    Double Jeopardy
    Johnson alternatively argues that the habitual criminal stat-
    utes as applied violated constitutional principles prohibiting
    double jeopardy.
    Section 28-912(5)(a) provides that escape while detained
    following a conviction is a Class III felony, while § 28-912(4)
    provides that escape from detention under other circum-
    stances specified in § 28-912(1) is a Class IV felony. Section
    29-2221(1) states that “[w]hoever has been twice convicted of
    a crime, sentenced, and committed to prison, . . . for terms of
    not less than one year each shall, upon conviction of a felony
    committed in this state, be deemed to be a habitual criminal”
    and have his felony sentence enhanced accordingly. Johnson
    asserts that the “dual use”22 of the same conviction to support
    escape under § 28-912(5)(a) and enhancement of his sentence
    under § 29-2221 is unconstitutional.
    In support of his argument, Johnson relies on cases in which
    we have rejected habitual criminal enhancement of sentences
    imposed for third-offense driving while intoxicated or third-
    offense driving with a suspended license, where at least one
    of the two prior convictions supporting the habitual criminal
    charge was also the basis for the third-offense conviction and
    its accompanying enhanced sentence for that recidivist con-
    duct.23 He argues that these cases stand for the proposition
    that such dual use of the same prior conviction for purposes of
    enhancing a sentence is unconstitutional.
    But the double jeopardy question Johnson raises is not
    before us on the facts presented. Without needing to decide,
    in accord­ance with State v. Ellis24 and its progeny, the exact
    number of prior convictions proved by the State under
    22
    Brief for appellant at 21.
    23
    See, State v. Hittle, 
    257 Neb. 344
    , 
    598 N.W.2d 20
    (1999); State v.
    Chapman, 
    205 Neb. 368
    , 
    287 N.W.2d 697
    (1980).
    24
    State v. Ellis, supra note 21.
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    STATE v. JOHNSON	379
    Cite as 
    290 Neb. 369
    § 29-2221, we reject Johnson’s general assumption that all
    convictions under which the inmate is serving a sentence at
    the time of his or her escape must be considered as bases
    for enhancement under § 28-912(5) for purposes of a double
    jeopardy analysis. Johnson does not otherwise deny that there
    are at least three separate prior convictions proved by the
    State under § 29-2221, and we see no legal basis for him to
    have done so. Accordingly, we conclude that the same convic-
    tion did not constitute the basis for both the Class III felony
    escape enhancement and enhancement under the habitual crim-
    inal statutes.
    We do not decide whether, under different facts, it would
    be unconstitutional or otherwise erroneous to utilize the same
    prior conviction both under a statutory enhancement that is not
    based on recidivism and under the habitual criminal statutes.
    In this case, because the State proved at least two prior con-
    victions that were not necessary to support the conviction of
    escape under § 28-912(5), there is no “dual use” of the same
    prior conviction.
    Excessive and Disproportionate
    Sentencing and Cruel and
    Unusual Punishment
    Finally, Johnson argues that application of the habitual
    criminal charges resulted in a penalty disproportionate to the
    nature of the offense, in violation of article I, § 15, of the
    Nebraska Constitution; that his sentence was excessive; and
    that his punishment was cruel and unusual in violation of the
    Eighth Amendment to the U.S. Constitution.
    In Ewing v. California,25 the U.S. Supreme Court rejected
    the argument that a habitual criminal statute resulted in cruel
    and unusual punishment. The Court explained:
    [T]he State’s interest is not merely punishing the offense
    of conviction, or the “triggering” offense: “[I]t is in addi-
    tion the interest . . . in dealing in a harsher manner with
    those who by repeated criminal acts have shown that
    25
    Ewing v. California, 
    538 U.S. 11
    , 
    123 S. Ct. 1179
    , 
    155 L. Ed. 2d 108
          (2003).
    Nebraska Advance Sheets
    380	290 NEBRASKA REPORTS
    they are simply incapable of conforming to the norms of
    society as established by its criminal law.”26
    The enhanced sentence, the Court reasoned, “is justified by
    the State’s public-safety interest in incapacitating and deter-
    ring recidivist felons.”27 In State v. Chapman,28 we similarly
    rejected the general contention that the habitual criminal stat-
    utes impose penalties in disproportion to the nature of the
    offense.
    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 of the facts and
    circumstances surrounding a defendant’s life.29 An appellate
    court reviews criminal sentences for abuse of discretion, which
    occurs when a trial court’s decision is based upon reasons that
    are untenable or unreasonable or if its action is clearly against
    justice or conscience, reason, and evidence.30
    Johnson points out that his escape did not involve the use or
    threat of force, nor any “dangerous instrumentality to effectu-
    ate the escape.”31 He also claims, without explanation, that the
    court abused its discretion in considering violations other than
    the relevant escape conviction for which Johnson was being
    sentenced. Finally, he argues that the current sentence ignores
    certain unspecified “rehabilitative needs.”32
    Although Johnson’s escape was not violent, we find the appli-
    cation of the habitual criminal enhancement and the resulting
    sentence of 10 to 20 years’ imprisonment to be neither exces-
    sive, disproportionate, nor cruel and unusual. The punishment
    was appropriate given Johnson’s extensive criminal record. We
    note that in addition to the felonies evidenced in support of the
    26
    
    Id. at 29
    (quoting Rummel v. Estelle, 
    445 U.S. 263
    , 
    100 S. Ct. 1133
    , 63 L.
    Ed. 2d 382 (1980)).
    27
    
    Id. 28 State
    v. Chapman, supra note 23.
    29
    State v. Nelson, 
    276 Neb. 997
    , 
    759 N.W.2d 260
    (2009).
    30
    State v. Rieger, supra note 3.
    31
    Brief for appellant at 27.
    32
    
    Id. at 30.
                     Nebraska Advance Sheets
    STATE v. JOHNSON	381
    Cite as 
    290 Neb. 369
    habitual criminal charge, the presentence investigation report
    reveals more than two dozen misdemeanors. We also find it
    pertinent that this is not his first conviction for escape.
    CONCLUSION
    For the foregoing reasons, we affirm the judgment of the
    trial court.
    Affirmed.