State v. Schanaman , 286 Neb. 125 ( 2013 )

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STATE v. SCHANAMAN 125
Cite as 286 Neb. 125established in McCroy, Walocha’s suspension for nonpayment
of dues did not render him per se ineffective.
VI. CONCLUSION
Based on our previous holding in McCroy, we decline to
adopt a per se determination of ineffectiveness based solely
upon the fact that Vanderpool’s attorney was suspended for
nonpayment of dues at the time he represented Vanderpool in
his criminal proceedings. We also find that Vanderpool failed
to show that he was denied the effective assistance of counsel
based on specific aspects of his attorney’s actual performance.
Accordingly, we affirm the judgment of the district court
denying Vanderpool postconviction relief.
Affirmed.
State of Nebraska, appellee, v.
David Schanaman, appellant.
___ N.W.2d ___
Filed June 21, 2013. No. S-12-808.
1. Pleas: Appeal and Error. The right to withdraw a plea previously entered is not
absolute. And, in the absence of an abuse of discretion, refusal to allow a defend­
ant’s withdrawal of a plea will not be disturbed on appeal.
2. Pleas. When a defendant moves to withdraw his or her plea before sentencing, a
court, in its discretion, may grant the motion for any fair and just reason, if such
withdrawal would not substantially prejudice the prosecution.
3. Indictments and Informations: Courts. Neb. Rev. Stat. § 29-1802 (Reissue
2008) does not apply to complaints in county court.
4. Statutes: Judicial Constructions: Legislature: Presumptions. When the
Nebraska Supreme Court has construed a statute in a certain manner and that
construction has not evoked a legislative amendment, it is presumed that the
Legislature has acquiesced in the court’s construction.
Appeal from the District Court for Kimball County, Derek
C. Weimer, Judge, on appeal thereto from the County Court for
Kimball County, Randin Roland, Judge. Judgment of District
Court affirmed.
Todd Morten, of Island & Huff, P.C., L.L.O., for appellant.
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126 286 NEBRASKA REPORTS
Jon Bruning, Attorney General, and Melissa R. Vincent
for appellee.
Heavican, C.J., Wright, Stephan, McCormack, and
Cassel, JJ.
P er Curiam.
NATURE OF THE CASE
The State filed a complaint against David Schanaman in
county court, charging him with third degree domestic assault.
That same day, the court arraigned Schanaman and accepted
his no contest plea. Two weeks later, and before sentencing,
Schanaman moved to withdraw his plea. He argued that he
had not received the complaint 24 hours before being asked to
plead, as required by Neb. Rev. Stat. § 29-1802 (Reissue 2008),
which he contended applied to complaints in county court.
The court denied his motion, and the district court affirmed.
Because § 29-1802 applies to prosecutions by indictment or
information and not complaints in county court, failure to com-
ply with it was not a “fair and just reason” for Schanaman to
withdraw his plea. As such, the county court did not abuse its
discretion in denying his motion. We affirm.
BACKGROUND
The parties do not dispute the facts. On December 27, 2011,
the State filed a complaint against Schanaman charging him
with third degree domestic assault. That same day, Schanaman
appeared before the court without counsel. After the prosecutor
read the charges, the court then explained to Schanaman the
nature of the charges and the possible penalties involved, and
then reviewed Schanaman’s rights. This review covered his
rights to counsel, to speedy trial, to confront and cross-examine
the State’s witnesses, to present evidence in his defense, to
remain silent, to testify, and to appeal.
After Schanaman expressly waived his right to counsel, the
court explained the different types of pleas. The court then told
Schanaman that if he entered a not guilty plea, the court would
schedule the case for further proceedings, including a trial.
But if Schanaman entered a guilty or no contest plea, his plea
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STATE v. SCHANAMAN 127
Cite as 286 Neb. 125would waive the majority of his rights. The court then asked
for his plea, and Schanaman pleaded no contest. The court
questioned him about his plea, asking whether anyone had
made any promises, threats, or inducements which prompted
his plea, and whether his plea was voluntary. Schanaman
answered that his plea was voluntary and not the result of
anything improper; as reason for his plea, he explained that he
“just want[ed] to make peace with this.” Based on his plea and
the accompanying factual basis, the court accepted his plea and
found Schanaman guilty.
On January 10, 2012, after obtaining an attorney, Schanaman
moved to withdraw his plea. Schanaman argued that § 29-1802
required that he have a copy of the complaint 24 hours before
being asked to plead, which did not happen. Schanaman
then argued that he had two other matters pending in the
county—another criminal matter and a divorce—and that the
State would not be substantially prejudiced, if at all, by his
withdrawing his plea. The State argued that § 29-1802 did
not apply and that Schanaman had not shown a fair and just
reason for withdrawing his plea. The court agreed with the
State, emphasizing the colloquy outlined above, and denied
Schanaman’s motion.
The district court affirmed. The court determined that
§ 29-1802 did not apply, from its plain language, to misde-
meanors or county courts. The court determined that, from the
record, Schanaman “entered his plea voluntarily, intelligently
and not as a result of improper promises, threats or induce-
ments.” The district court found no basis for withdrawing the
plea, other than that Schanaman “apparently thought better of
his plea after speaking with counsel.” That being insufficient,
the court found no abuse of discretion and affirmed the county
court’s order.
ASSIGNMENTS OF ERROR
Schanaman assigns, restated, that the district court erred in
concluding that (1) § 29-1802 did not apply to a misdemeanor
complaint in county court and (2) the county court did not
abuse its discretion in denying Schanaman’s motion to with-
draw his plea.
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128 286 NEBRASKA REPORTS
STANDARD OF REVIEW
[1] The right to withdraw a plea previously entered is not
absolute. And, in the absence of an abuse of discretion, refusal
to allow a defendant’s withdrawal of a plea will not be dis-
turbed on appeal.1
ANALYSIS
[2] The county court refused to allow Schanaman to with-
draw his plea. When a defendant moves to withdraw his or
her plea before sentencing, a court, in its discretion, may grant
the motion for any fair and just reason, if such withdrawal
would not substantially prejudice the prosecution.2 Schanaman
argues that he gave a “fair and just reason” to withdraw his
plea and that the county court abused its discretion in denying
his motion.
Specifically, Schanaman argues that he was not served with
the complaint 24 hours before being asked to plead. Section
29-1802 requires a defendant to be served with the indictment
24 hours before that defendant is asked to plead. Schanaman
argues that this 24-hour requirement applies to complaints
in county court. Schanaman also argues that he had other
cases—another criminal matter and a divorce—pending in
the same county and that the State would not be substantially
prejudiced, if at all, by his withdrawing his plea. We note
that the latter arguments relate to the substantial prejudice
issue, which is separate from whether Schanaman presented
a “fair and just reason” to withdraw his plea.3 The sole basis
for his motion to withdraw his plea is his interpretation of
§ 29-1802.
But if § 29-1802 does not apply to complaints in county
court, then the failure to comply with it cannot be a fair
and just reason for Schanaman to withdraw his plea. We set
§ 29-1802 out in full:
1
See, e.g., State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010);
State v. Williams, 276 Neb. 716, 757 N.W.2d 187 (2008).
2
See, e.g., Williams, supra note 1.
3
See id.Nebraska Advance Sheets
STATE v. SCHANAMAN 129
Cite as 286 Neb. 125The clerk of the district court shall, upon the filing of
any indictment with him, and after the person indicted is
in custody or let to bail, cause the same to be entered of
record on the journal of the court; and in case of the loss
of the original, such record or a certified copy thereof
shall be used in place thereof upon the trial of the cause.
Within twenty-four hours after the filing of an indictment
for felony, and in every other case on request, the clerk
shall make and deliver to the sheriff, the defendant or
his counsel a copy of the indictment, and the sheriff on
receiving such copy shall serve the same upon the defend­
ant. No one shall be, without his assent, arraigned or
called on to answer to any indictment until one day shall
have elapsed, after receiving in person or by counsel, or
having an opportunity to receive a copy of such indict-
ment as aforesaid.
[3] We give statutory language its plain and ordinary mean-
ing.4 We agree with the district court that, from a plain read-
ing of § 29-1802, it does not apply to complaints in county
court. Section 29-1802 specifically references procedure in
felony cases (which the county court cannot try5), and it
speaks only of “indictments,” rather than “complaints.” And
although Neb. Rev. Stat. § 29-1604 (Reissue 2008) specifically
extends indictment procedure to informations, there is no such
provision extending indictment procedure to complaints. We
also note that Neb. Rev. Stat. § 29-404 (Cum. Supp. 2012),
which deals with filing complaints in county court, does not
impose any requirements similar to § 29-1802 or reference it
in any way.
But Schanaman argues that § 29-1802 cannot be read in iso-
lation. He argues that Neb. Rev. Stat. § 29-424 (Reissue 2008),
which provides that a complaint must be filed in citation cases
24 hours before the defendant is set to appear in county court,
supports extending the 24-hour requirement of § 29-1802 to
complaints in county court. We find this unpersuasive. Section
4
See Lozier Corp. v. Douglas Cty. Bd. of Equal., 285 Neb. 705, 829 N.W.2d
652 (2013).
5
See Neb. Rev. Stat. § 24-517 (Cum. Supp. 2012).
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130 286 NEBRASKA REPORTS
29-424 shows that the Legislature understood how to create a
24-hour waiting period for situations other than citations, if it
wished to do so. But it did not.
Schanaman also argues that Neb. Rev. Stat. § 25-2701(Cum. Supp. 2012) extends § 29-1802 to complaints in county
court. Section 25-2701 provides, in relevant part:
All provisions in the codes of criminal and civil proce-
dure governing actions and proceedings in the district
court not in conflict with statutes specifically governing
procedure in county courts and related to matters for
which no specific provisions have been made for county
courts shall govern and apply to all actions and proceed-
ings in the county court.
Schanaman argues that § 29-1802 governs an action or pro-
ceeding in district court, that it does not conflict with statutes
specifically governing county court procedure, and that it is
related to matters for which no specific provisions have been
made for county courts. But while § 29-1802 in that sense
“applies” to county courts, § 29-1802’s specific language does
not apply to complaints. We will not rewrite the statute to make
it do so.
It is correct that under § 25-2701, we have applied district
court procedure to county court proceedings. For example, we
have applied § 25-2701 to allow parties in county court to file
motions for new trial6 and motions for summary judgment,7
and to allow county courts to assess attorney fees against the
State under Neb. Rev. Stat. § 25-1803(1) (Reissue 2008).8
But doing so did not require any substantive change to the
statutory language; motions for new trial and summary judg-
ment remained motions for new trial and summary judgment.9
6
See 132nd Street Ltd. v. Fellman, 245 Neb. 59, 511 N.W.2d 88 (1994).
7
See Buckingham v. Creighton University, 248 Neb. 821, 539 N.W.2d 646(1995).
8
See In re Interest of Krystal P. et al., 251 Neb. 320, 557 N.W.2d 26 (1996).
9
See, 132nd Street Ltd., supra note 6; Neb. Rev. Stat. §§ 25-1144 (Cum.
Supp. 2012) and 25-1144.01 (Reissue 2008); Buckingham, supra note 7;
Neb. Rev. Stat. §§ 25-1330 to 25-1336 (Reissue 2008).
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STATE v. SCHANAMAN 131
Cite as 286 Neb. 125Similarly, allowing the county court to assess attorney fees
against the State under § 25-1803(1) did not require any sub-
stantive change to the statutory language.10
But to apply § 29-1802, as Schanaman urges, to complaints
in county court would require substantively changing the text
of § 29-1802. Unlike statutes related to motions for new trial,
for example, we cannot apply the text of § 29-1802 to proceed-
ings in county court. Most obviously, § 29-1802 refers only to
indictments, and so we would be required to substitute “com-
plaint” for “indictment” in the statute. It is true that § 29-1802
also does not refer to informations. But substituting “informa-
tion” for “indictment” under § 29-1604 does not create any
procedural difficulties. Substituting “complaint” for “indict-
ment,” however, does create such difficulties.
The first sentence of § 29-1802 requires the clerk of the
district court to make a record of the indictment, and if the
original is lost, that copy may be used “upon the trial of the
cause.” This sentence does not distinguish between felonies
and misdemeanors, and the requirement to make a record
applies to indictments and informations in district court—both
may be used to prosecute felonies and misdemeanors.11 But
the same is not true of complaints in county court. As we
have noted in the past, a felony charge generally originates
by complaint in county court, but after a preliminary hearing
and probable cause finding, the county court must bind the
defend­nt over to the district court.12 There, an information
a
is filed, and the trial would proceed on that information.13
So applying the first sentence of § 29-1802 to complaints in
county court would make no sense when a felony is charged.
Yes, the clerk of the county court could make a record of the
filed complaint, but it (or a copy) could never be used “upon
the trial of the cause” in a felony case.
10
See, In re Interest of Krystal P. et al., supra note 8; § 25-1803(1).
11
See, Neb. Rev. Stat. §§ 29-1407 and 29-1601 (Reissue 2008); Nelson v.
State, 115 Neb. 26, 211 N.W. 175 (1926).
12
See State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).
13
See id.Nebraska Advance Sheets
132 286 NEBRASKA REPORTS
Moreover, applying the second sentence of § 29-1802 to
complaints in county court would be impractical. That sen-
tence, in short, requires service on the defendant of a copy of
the indictment or information in all felony cases and in every
other case on request. Applying § 29-1802 to complaints in
county court would, in a felony case, require service of the
complaint on the defendant. And once the defendant was bound
over to district court, § 29-1802 would again require service of
essentially the same document, in the form of an information,
on the defendant. This redundancy would be unnecessary and a
waste of judicial resources.
True enough, in State v. Lebeau,14 we cited § 25-2701 as
support for extending the statutory speedy trial right to com-
plaints for city ordinance violations, in addition to statutory
violations. And that was not simply a matter of applying the
statutory language as written in the county court setting. We
premised that reasoning, however, on our longstanding history
of applying the statutory speedy trial right to complaints in
county court (even though the speedy trial act expressly refers
only to indictments and informations).15 There is no such his-
tory here.
However, Schanaman emphasizes that both the statutory
speedy trial act and § 29-1802 expressly refer only to indict-
ments and informations. And yet he notes that, despite not
referencing complaints, we have applied the statutory speedy
trial right to complaints in county court. He argues that we
must similarly extend § 29-1802 to complaints in county court.
We disagree.
Schanaman is correct regarding the statutory speedy trial
right. In State v. Stevens,16 we held that “[a]lthough statu-
tory requirements for a speedy trial expressly refer only to
indictments and informations, the references may encompass
complaints.” We reasoned that “[i]nclusion of complaints has
been our practice over the years, and nothing in the new statute
14
See State v. Lebeau, 280 Neb. 238, 784 N.W.2d 921 (2010).
15
See id.16
State v. Stevens, 189 Neb. 487, 488, 203 N.W.2d 499, 500 (1973).
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STATE v. SCHANAMAN 133
Cite as 286 Neb. 125suggests change.”17 And we have applied the statutory speedy
trial right to complaints in county court ever since.18
[4] But the Stevens court ignored the plain statutory lan-
guage at issue, apparently because local practitioners had
always applied the statutory speedy trial right to complaints
in county court. Not only is this reasoning questionable (we
cannot simply ignore statutory language), but it is inapplicable
here. As Schanaman’s attorney noted at oral argument, it is
routine for the defendant to receive a copy of the complaint
and then soon after be asked to plead. However, putting aside
the questionable reasoning in Stevens, we reaffirmed that
result in subsequent case law, and the Legislature has not
seen fit to change the law. When we have construed a statute
in a certain manner and that construction has not evoked a
legislative amendment, we presume that the Legislature has
acquiesced in our construction.19 But that does not require us
to employ questionable reasoning again, in a different context,
and we decline to do so here.
CONCLUSION
We conclude that § 29-1802 has no application to a com-
plaint in county court and that, therefore, failure to comply
with § 29-1802 here could not be a fair and just reason to
withdraw Schanaman’s plea. The county court did not abuse its
discretion in denying Schanaman’s motion. We affirm.
Affirmed.
Connolly and Miller-Lerman, JJ., participating on briefs.
17
Id.
18
See, e.g., Lebeau, supra note 14.
19
See, e.g., Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38(2012).