State v. Lane , 299 Neb. 170 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/20/2018 01:09 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. LANE
    Cite as 
    299 Neb. 170
    State of Nebraska, appellee, v.
    Michael E. Lane, appellant.
    ___ N.W.2d ___
    Filed March 2, 2018.    No. S-17-150.
    1.	 Pleas: Appeal and Error. A trial court is given discretion as to whether
    to accept a guilty plea, and an appellate court will overturn that decision
    only where there is an abuse of discretion.
    2.	 Appeal and Error. Plain error may be found on appeal when an error
    unasserted or uncomplained of at trial, but plainly evident from the
    record, prejudicially affects a litigant’s substantial right and, if uncor-
    rected, would result in damage to the integrity, reputation, and fairness
    of the judicial process.
    3.	 Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
    fective assistance of trial counsel may be determined on direct appeal is
    a question of law.
    4.	 ____: ____. In reviewing claims of ineffective assistance of counsel on
    direct appeal, an appellate court decides only whether the undisputed
    facts contained within the record are sufficient to conclusively deter-
    mine whether counsel did or did not provide effective assistance and
    whether the defendant was or was not prejudiced by counsel’s alleged
    deficient performance.
    5.	 Pleas. To support a finding that a defendant has entered a guilty
    plea freely, intelligently, voluntarily, and understandingly, a court must
    inform a defendant concerning (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 establish a factual basis for
    the plea and that the defendant knew the range of penalties for the
    crime charged.
    6.	 Convicted Sex Offender: Sentences. A defendant’s duties to register
    as a sex offender are a collateral consequence to a defendant’s sen-
    tence. Because registration duties under the Sex Offender Registration
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    STATE v. LANE
    Cite as 
    299 Neb. 170
    Act are not punitive, a trial court may inform a defendant of the duties
    imposed under the act before accepting pleas of guilty or no contest,
    but is not required to do so, and a plea is not rendered involuntary or
    unintelligent because a defendant was not aware of his or her registra-
    tion duties.
    7.	 Convicted Sex Offender. The notification requirements of Neb. Rev.
    Stat. § 29-4007 (Reissue 2016) are mandatory.
    8.	 Sentences: Appeal and Error. An appellate court has the power on
    direct appeal to remand a cause for the imposition of a lawful sentence
    where an erroneous one has been pronounced.
    9.	 Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
    counsel is different from his or her counsel on direct appeal, the defend­
    ant must raise on direct appeal any issue of trial counsel’s ineffective
    performance which is known to the defendant or is apparent from the
    record. Otherwise, the issue will be procedurally barred.
    10.	 Effectiveness of Counsel: Records: Appeal and Error. The fact that
    an ineffective assistance of counsel claim is raised on direct appeal does
    not necessarily mean that it can be resolved. The determining factor is
    whether the record is sufficient to adequately review the question.
    11.	 ____: ____: ____. An appellate court can determine whether the record
    proves or rebuts the merits of a claim of ineffective assistance of trial
    counsel only if it has knowledge of the specific conduct alleged to
    constitute deficient performance.
    12.	 Effectiveness of Counsel: Postconviction: Records: Appeal and
    Error. An ineffective assistance of counsel claim is raised on direct
    appeal when allegations of deficient performance are made with enough
    particularity for (1) an appellate court to make a determination of
    whether the claim can be decided upon the trial record and (2) a
    district court later reviewing a petition for postconviction relief to
    be able to recognize whether the claim was brought before the appel-
    late court.
    Appeal from the District Court for Douglas County: Peter
    C. Bataillon, Judge. Affirmed in part, and in part vacated and
    remanded for resentencing.
    Nathan S. Lab, of McGough Law, P.C., L.L.O., for
    appellant.
    Douglas J. Peterson, Attorney General, and Siobhan E.
    Duffy for appellee.
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. LANE
    Cite as 
    299 Neb. 170
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
    Funke, JJ.
    Miller-Lerman, J.
    I. NATURE OF CASE
    Michael E. Lane accepted a plea agreement and entered a
    no contest plea to incest, a Class III felony, on October 31,
    2016. At the sentencing hearing, the district court for Douglas
    County pronounced that Lane was sentenced to 4 to 4 years’
    imprisonment, with credit for 11 days served, and a term of
    2 years’ postrelease supervision. Lane appeals. Lane claims
    that he should be able to withdraw his plea, because at the
    plea hearing, the State and the district court misinformed
    him that he would not need to register as a sex offender. As
    explained below, we reject this assignment of error. Lane chal-
    lenges his sentence in certain respects. However, because, as
    we explain below, we are vacating his sentence due to plain
    error, we do not reach these assignments of error. Finally, Lane
    alleges ineffectiveness of trial counsel. We do not reach the
    merits of Lane’s ineffectiveness of counsel claims. We affirm
    Lane’s conviction, but because we find error in the sentenc-
    ing, we vacate Lane’s sentence and remand the cause for
    resentencing.
    II. STATEMENT OF FACTS
    Following the denial of Lane’s motion to suppress, pursuant
    to a plea agreement in which Lane agreed to enter a no contest
    plea, the State filed an amended information charging Lane
    with incest, a Class III felony, under Neb. Rev. Stat. § 28-703
    (Reissue 2016).
    At the plea hearing, the State provided a factual basis for the
    charge. In sum, the victim, who is Lane’s niece, reported an
    incident which occurred on or about November 7, 2015. Lane
    had been living with the victim’s family for about a month
    when the events giving rise to the conviction occurred. The
    crime occurred in Douglas County, Nebraska.
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    STATE v. LANE
    Cite as 
    299 Neb. 170
    At the plea hearing, the district court informed Lane of
    his constitutional rights and that by pleading, Lane would be
    giving up all of those rights but for the right to appeal and
    the right to counsel, and Lane stated that he understood and
    still wished to plead. While informing Lane of the penal-
    ties associated with the crime charged, the court asked the
    State whether the offense required registration under the Sex
    Offender Registration Act (SORA), Neb. Rev. Stat. § 29-4001
    et seq. (Reissue 2016). The State responded that the offense
    did not require registration under SORA. The parties agree
    that this advisement by the State and by the district court was
    incorrect and that an incest conviction requires registration
    under SORA. See § 29-4003(1)(b)(i)(A)(XIV). Lane’s counsel
    did not object or make a statement regarding this erroneous
    statement at the plea hearing.
    Lane pled no contest. The district court found that the plea
    was made freely, knowingly, and voluntarily and accepted
    the plea. The district court found Lane guilty of the charge
    and sentenced him to 4 to 4 years’ imprisonment, with
    credit for 11 days served, and a term of 2 years’ postrelease
    supervision.
    This appeal followed. On appeal, Lane seeks to withdraw
    his plea, challenges his sentence, and alleges ineffectiveness
    of trial counsel.
    III. ASSIGNMENTS OF ERROR
    Lane claims that (1) because the district court and the State
    misinformed him that he would not be subject to sex offender
    registration, he should be permitted to withdraw his plea, and
    (2) the district erred in the sentence it imposed. Lane fur-
    ther claims that (3) he was prejudiced by ineffectiveness of
    trial counsel.
    IV. STANDARDS OF REVIEW
    [1] A trial court is given discretion as to whether to
    accept a guilty plea, and an appellate court will overturn that
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    STATE v. LANE
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    299 Neb. 170
    decision only where there is an abuse of discretion. State v.
    Russell, 
    291 Neb. 33
    , 
    863 N.W.2d 813
    (2015).
    [2] Plain error may be found on appeal when an error unas-
    serted or uncomplained of at trial, but plainly evident from the
    record, prejudicially affects a litigant’s substantial right and, if
    uncorrected, would result in damage to the integrity, reputa-
    tion, and fairness of the judicial process. State v. Ramirez, 
    287 Neb. 356
    , 
    842 N.W.2d 694
    (2014).
    [3,4] Whether a claim of ineffective assistance of trial
    counsel may be determined on direct appeal is a question of
    law. State v. Mora, 
    298 Neb. 185
    , 
    903 N.W.2d 244
    (2017). In
    reviewing claims of ineffective assistance of counsel on direct
    appeal, an appellate court decides only whether the undisputed
    facts contained within the record are sufficient to conclusively
    determine whether counsel did or did not provide effective
    assistance and whether the defendant was or was not preju-
    diced by counsel’s alleged deficient perform­ance. 
    Id. V. ANALYSIS
       As we explain below, we affirm Lane’s conviction. However,
    we find plain error in connection with sentencing, because
    on the record before us, the district court failed to complete
    SORA notification obligations. See § 29-4007. Accordingly,
    we affirm Lane’s conviction but vacate his sentence and
    remand the cause for resentencing. Further, we are unable
    to reach the merits of Lane’s claims of ineffectiveness of
    trial counsel.
    1. Withdrawal of Plea
    On appeal, Lane contends that he should be allowed by
    this court to withdraw his plea on the basis that his plea was
    the product of being wrongly advised by the district court and
    the State that he was not subject to SORA and its registration
    duties. We reject this assignment of error. For completeness,
    we note that our rejection of Lane’s claim regarding the pro-
    priety of his plea considers only this basis asserted by Lane.
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    STATE v. LANE
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    299 Neb. 170
    [5] To support a finding that a defendant has entered a
    guilty plea freely, intelligently, voluntarily, and understand-
    ingly, a court must inform a defendant concerning (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. Bol, 
    294 Neb. 248
    , 
    882 N.W.2d 674
    (2016). The record must also establish a factual basis for the
    plea and that the defendant knew the range of penalties for the
    crime charged. 
    Id. [6] In
    State v. Schneider, 
    263 Neb. 318
    , 
    640 N.W.2d 8
    (2002), we held that a defendant’s duties to register as a sex
    offender are a collateral consequence to a defendant’s sen-
    tence. Because the SORA registration duties at issue are not
    punitive, a trial court may inform a defendant of the duties
    imposed under SORA before accepting pleas of guilty or
    no contest, but is not required to do so, and a plea is not
    rendered involuntary or unintelligent because a defendant
    was not aware of his or her registration duties. See 
    id. See, also,
    State v. Payan, 
    277 Neb. 663
    , 
    765 N.W.2d 192
    (2009).
    Compare Doe v. Nebraska, 
    734 F. Supp. 2d 882
    (D. Neb.
    2010) (noting difference between civil duties and punitive
    consequences). Thus, under Schneider, the district court’s
    incorrect advisement regarding the collateral SORA conse-
    quence of Lane’s plea does not invalidate his plea or warrant
    the relief of withdrawal.
    2. Sentencing Errors
    We have reviewed the record, and on the record before
    us, we determine that the district court failed to complete the
    SORA notification requirements of § 29-4007, which the court
    is mandated to do in a conviction for an offense triggering
    SORA duties. As a result, we find plain error in sentencing and
    we vacate the sentence and remand for resentencing.
    Lane was convicted of incest pursuant to § 28-703, which
    is a registrable offense under § 29-4003(1)(b)(i)(A)(XIV). The
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    STATE v. LANE
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    299 Neb. 170
    State suggests that we vacate the sentence and remand this
    cause for additional sentencing proceedings, because the record
    does not show that the district court complied with its duty
    to inform Lane, in writing, about his duty to register under
    SORA. See § 29-4007. We agree with the State.
    Section 29-4007 provides, in relevant part:
    (1) When sentencing a person convicted of a regis-
    trable offense under section 29-4003, the court shall:
    ....
    (b) Require the defendant to read and sign a form
    stating that the duty of the defendant to register under
    [SORA] has been explained;
    (c) Retain a copy of the written notification signed by
    the defendant; and
    (d) Provide a copy of the signed, written notification,
    the judgment and sentence, the information or amended
    information, and the journal entry of the court to the
    county attorney, the defendant, the sex offender registra-
    tion and community notification division of the Nebraska
    State Patrol, and the county sheriff of the county in
    which the defendant resides, has a temporary domicile,
    or has a habitual living location.
    ....
    (3)(a) The Department of Correctional Services or a
    city or county correctional or jail facility shall provide
    written notification of the duty to register pursuant to
    [SORA] to any person committed to its custody for a
    registrable offense under section 29-4003 prior to the per-
    son’s release from incarceration.
    [7] We have stated that the notification requirements of
    § 29-4007 are mandatory. State v. Pathod, 
    269 Neb. 155
    ,
    
    690 N.W.2d 784
    (2005). In Pathod, we noted that the plain
    language of § 29-4007 states that when sentencing a person,
    the court “shall” provide written notification and copies of
    the notification and corresponding journal entry to vari-
    ous parties.
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    STATE v. LANE
    Cite as 
    299 Neb. 170
    In Pathod, the sentencing court failed to enter a journal
    entry or notify the defendant at sentencing, but the notice
    signed by the defendant was filed the day after sentencing and
    was included in the record. Given all the facts in Pathod, we
    concluded that the court’s error in SORA compliance did not
    invalidate the sentence.
    Although the facts we have before us differ, we apply
    an analysis similar to Pathod in the instant case. Here, the
    State notes that on this record, the court failed to provide
    written notification to Lane at sentencing or provide copies
    of the notification and journal entry to the various parties,
    as required by § 29-4007. Unlike Pathod, the record in the
    instant case does not show whether Lane ultimately received
    proper advisements regarding his SORA duties, and we do not
    assume that he did. We agree with the State that the district
    court plainly erred by failing to comply with SORA notifica-
    tion requirements.
    [8] An appellate court has the power on direct appeal to
    remand a cause for the imposition of a lawful sentence where
    an erroneous one has been pronounced. State v. Ramirez, 
    287 Neb. 356
    , 
    842 N.W.2d 694
    (2014); State v. Gunther, 
    271 Neb. 874
    , 
    716 N.W.2d 691
    (2006). Accordingly, we vacate Lane’s
    sentence and remand the cause for resentencing compliant with
    § 29-4007.
    3. Ineffective Assistance
    of Counsel
    We have reviewed Lane’s allegations concerning claims of
    ineffective assistance of trial counsel, and we determine that
    the record on direct appeal is not sufficient to address them.
    [9,10] Lane is represented on direct appeal by counsel dif-
    ferent from the counsel who represented him at trial. When a
    defendant’s trial counsel is different from his or her counsel
    on direct appeal, the defendant must raise on direct appeal
    any issue of trial counsel’s ineffective performance which is
    known to the defendant or is apparent from the record. State v.
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    STATE v. LANE
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    Mora, 
    298 Neb. 185
    , 
    903 N.W.2d 244
    (2017). Otherwise, the
    issue will be procedurally barred. 
    Id. The fact
    that an ineffec-
    tive assistance of counsel claim is raised on direct appeal does
    not necessarily mean that it can be resolved. 
    Id. The determin-
    ing factor is whether the record is sufficient to adequately
    review the question. 
    Id. [11,12] An
    appellate court can determine whether the record
    proves or rebuts the merits of a claim of ineffective assistance
    of trial counsel only if it has knowledge of the specific con-
    duct alleged to constitute deficient performance. 
    Id. An inef-
    fective assistance of counsel claim is raised on direct appeal
    when allegations of deficient performance are made with
    enough particularity for (1) an appellate court to make a deter-
    mination of whether the claim can be decided upon the trial
    record and (2) a district court later reviewing a petition for
    postconviction relief to be able to recognize whether the claim
    was brought before the appellate court. 
    Id. (a) Failing
    to Notify Lane
    of SORA Duties
    Lane has brought to our attention alleged deficiencies
    regarding his trial counsel’s advice regarding his SORA duties.
    Lane contends the alleged deficiencies justify withdrawal of
    his plea. Although the record shows Lane’s trial counsel did
    not comment on the question of SORA’s applicability at his
    sentencing hearing, the record is silent regarding whether Lane
    otherwise received advisements from his trial counsel, includ-
    ing compliance features of § 29-4007, at any other time. In this
    direct appeal, the record is incomplete on the matter, and we
    are unable to determine whether Lane’s trial counsel performed
    deficiently regarding advice pertaining to Lane’s SORA duties
    in connection with counsel’s advice to enter the plea.
    (b) Waiver of Right to Appeal
    Because of Plea
    As noted above, Lane asserts that his plea of no contest
    was the result of ineffective assistance of trial counsel. As
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    STATE v. LANE
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    an additional reason, Lane contends that he was not correctly
    advised that by entering a plea of no contest, he would give up
    his right to appeal the denial of his motion to suppress. See,
    e.g., State v. Payne, 
    298 Neb. 373
    , 
    904 N.W.2d 275
    (2017).
    Lane argues this is prejudicial because he is now unable to
    challenge the denial of his motion to suppress his confession to
    incest, in which motion he claims that he relied on statements
    by a law enforcement officer implying that to acknowledge the
    facts of the incident was not to confess to a crime.
    Upon our review, we determine that the record is insuf-
    ficient to review Lane’s allegation regarding counsel’s advice
    relative to the plea. The nature of Lane’s claim that it was defi-
    cient performance for trial counsel to advise him to waive his
    right to appeal is entwined with his acceptance of a plea deal,
    and on this record, we cannot review the conduct of Lane’s
    trial counsel.
    VI. CONCLUSION
    We affirm Lane’s conviction for incest. However, because
    the district court failed to comply with its obligation to notify
    Lane of his SORA registration duties, we vacate the sentence
    and remand the cause for resentencing. Finally, in this direct
    appeal, the record is insufficient to resolve Lane’s claims of
    ineffectiveness of trial counsel.
    A ffirmed in part, and in part vacated
    and remanded for resentencing.
    Wright, J., not participating.