State v. Vanness , 300 Neb. 159 ( 2018 )


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    Nebraska Supreme Court A dvance Sheets
    300 Nebraska R eports
    STATE v. VANNESS
    Cite as 
    300 Neb. 159
    State of Nebraska, appellee, v.
    K elly A. Vanness, appellant.
    ___ N.W.2d ___
    Filed June 8, 2018.     No. S-17-687.
    1.	 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.
    2.	 ____: ____. 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.
    3.	 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.
    4.	 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.
    5.	 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.
    6.	 ____: ____: ____. 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 con-
    stitute deficient performance.
    7.	 Effectiveness of Counsel: Postconviction: Records: Appeal and
    Error. An ineffective assistance of counsel claim is raised on direct
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    STATE v. VANNESS
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    appeal when allegations of deficient performance are made with
    enough particularity for (1) an appellate court to make a determina-
    tion 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.
    8.	 Constitutional Law: Effectiveness of Counsel: Conflict of Interest.
    The fact of multiple representation alone is not a per se violation of the
    Sixth Amendment.
    9.	 Effectiveness of Counsel: Conflict of Interest: Proof. A defendant
    who raised no objection at trial must show that an actual conflict of
    interest existed. When an actual conflict exists, there is no need to show
    that the conflict resulted in actual prejudice to the defendant.
    10.	 Effectiveness of Counsel: Conflict of Interest: Presumptions: Proof.
    If the defendant shows that his or her defense counsel faced a situation
    in which conflicting loyalties pointed in opposite directions and that
    his or her counsel acted for the other client’s interests or the counsel’s
    own personal interests and against the defendant’s interests, prejudice
    is presumed.
    11.	 Sentences: Appeal and Error. Where a sentence imposed within the
    statutory limits is alleged on appeal to be excessive, the appellate court
    must determine whether the sentencing court abused its discretion in
    considering and applying the relevant factors as well as any applicable
    legal principles in determining the sentence to be imposed.
    12.	 Sentences. When imposing a sentence, the sentencing court is to con-
    sider the defendant’s (1) age, (2) mentality, (3) education and experi-
    ence, (4) social and cultural background, (5) past criminal record or
    record of law-abiding conduct, and (6) motivation for the offense, as
    well as (7) the nature of the offense and (8) the amount of violence
    involved in the commission of the crime.
    13.	 ____. Generally, it is within a trial court’s discretion to direct that
    sentences imposed for separate crimes be served either concurrently
    or consecutively. This is so even when offenses carry a mandatory
    minimum sentence, unless the statute requires that consecutive sentences
    be imposed.
    14.	 ____. A court’s failure to advise a defendant of the correct statu-
    tory minimum and maximum penalties does not automatically warrant
    reversal.
    15.	 ____. A determinate sentence is imposed when the defendant is sen-
    tenced to a single term of years.
    16.	 ____. When imposing an indeterminate sentence, a sentencing court
    ordinarily articulates either a minimum term and maximum term or a
    range of time for which a defendant is to be incarcerated.
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    STATE v. VANNESS
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    300 Neb. 159
    17.	 ____. In Nebraska, the fact that the minimum term and maximum term
    of a sentence are the same does not affect the sentence’s status as an
    indeterminate sentence.
    Appeal from the District Court for Holt County: M ark D.
    Kozisek, Judge. Affirmed as modified.
    Martin V. Klein, of Carney Law, P.C., for appellant.
    Douglas J. Peterson, Attorney General, Joe Meyer, and
    Nathan A. Liss for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
    JJ., and Strong, District Judge.
    Miller-Lerman, J.
    I. NATURE OF CASE
    Kelly A. Vanness accepted a plea agreement and entered
    pleas to four charges in the district court for Holt County,
    for which she was convicted and sentenced to a combined
    22 to 22 months’ imprisonment with periods of postrelease
    supervision. Vanness claims that trial counsel was ineffective
    in various respects. She also appeals her sentences, claiming
    they are excessive and an abuse of discretion. The State notes
    two possible points of plain error in connection with the sen-
    tencing. The State notes that (1) the district court incorrectly
    advised Vanness that conviction of a Class IV felony carries
    a maximum of 5 years in prison, whereas the actual sentence
    maximum was 2 years, and (2) the district court “may” have
    imposed an indeterminate sentence, whereas the applicable
    statutes for the convictions on three of the counts require deter-
    minate sentences. We affirm Vanness’ convictions and modify
    certain sentences, as we explain below.
    II. STATEMENT OF FACTS
    In an information filed December 22, 2015, in the district
    court for Holt County, Vanness was charged with four counts
    consisting of the following: operating a motor vehicle dur-
    ing a time of suspension, Neb. Rev. Stat. § 60-4,108 (Cum.
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    Supp. 2016), a Class III misdemeanor (Count 1); possession
    of a controlled substance (methamphetamine), Neb. Rev. Stat.
    § 28-416(3) (Supp. 2015), a Class IV felony (Count 2); pos-
    session of a controlled substance (hydrocodone), § 28-416(3),
    a Class IV felony (Count 3); and possession of drug parapher-
    nalia, Neb. Rev. Stat. § 28-441 (Reissue 2016), an infraction
    (Count 4).
    On February 8, 2016, Vanness pled guilty to all counts
    alleged in the information. At the plea hearing, Vanness stated
    that she was present in Holt County on September 13, 2015,
    operating a motor vehicle with a driver’s license which had
    been suspended for the reason that the insurance had expired.
    She stated that she was in possession of methamphetamine and
    hydrocodone which was not prescribed to her, and a pipe rec-
    ognized as drug paraphernalia. The district court found that a
    factual basis existed for the pleas of guilty.
    At the plea hearing, the district court informed Vanness of
    her constitutional rights and that by pleading, she would be
    giving up these enumerated rights; Vanness stated that she
    understood and still wished to plead. The district court also
    inquired about Vanness’ satisfaction with her trial counsel,
    which we recite in greater detail below. The district court
    found that Vanness understood her constitutional and statutory
    rights and that her pleas were made freely, voluntarily, know-
    ingly, and intelligently. The court accepted the pleas of guilty
    and found Vanness guilty of all charges.
    The district court postponed sentencing pending Vanness’
    participation in the “North Central Problem Solving Court.”
    However, her participation in the problem-solving court was
    terminated on April 10, 2017.
    On June 6, 2017, following preparation of a presentence
    investigation report, the district court pronounced the sentence
    of 60 to 60 days’ imprisonment for the conviction on Count 1,
    to run concurrently with all sentences imposed. For the convic-
    tion on Count 2, she was sentenced to 12 to 12 months’ impris-
    onment with 9 months of postrelease supervision, with credit
    for 26 days served, to run consecutively to other sentences.
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    For the conviction on Count 3, the district court sentenced
    Vanness to 10 to 10 months’ imprisonment, to run consecu-
    tively to other sentences, with a period of 9 months of succes-
    sive and additional postrelease supervision. Vanness was fined
    $100 for the conviction on Count 4.
    This appeal followed.
    III. ASSIGNMENTS OF ERROR
    Vanness claims that her trial counsel was ineffective in
    various respects and that the district court erred by imposing
    excessive sentences.
    IV. STANDARDS OF REVIEW
    [1,2] 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. [3] 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).
    V. ANALYSIS
    As we explain below, with regard to Vanness’ claims of
    ineffectiveness of trial counsel, we are unable to reach the
    merits of her claim that trial counsel had a conflict of inter-
    est, but we determine that her other claims of ineffectiveness
    are refuted by the record. We determine that the sentences
    imposed on Vanness’ convictions did not exceed the statu-
    tory limits, and we find no abuse of discretion in connection
    with the district court’s rationale in sentencing. However, we
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    find plain error in the sentences imposed for the convictions
    on Counts 1, 2, and 3, because the district court pronounced
    indeterminate sentences where determinate sentences were
    required by statutes. Accordingly, we affirm Vanness’ convic-
    tions and modify her sentences for the convictions on Counts
    1, 2, and 3.
    1. Ineffective Assistance
    of Counsel
    [4,5] Vanness is represented on direct appeal by counsel
    different from the counsel who represented her 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. Lane,
    
    299 Neb. 170
    , 
    907 N.W.2d 737
    (2018). Otherwise, the issue
    will be procedurally barred. 
    Id. The fact
    that an ineffective
    assistance of counsel claim is raised on direct appeal does not
    necessarily mean that it can be resolved. 
    Id. The determining
    factor is whether the record is sufficient to adequately review
    the question. 
    Id. [6,7] 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. 
    Id. 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 appellate court. 
    Id. (a) Trial
    Counsel’s Alleged
    Conflict of Interest
    Vanness asserts that she was denied effective assistance of
    trial counsel because of an actual conflict of interest arising
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    out of counsel’s representation of another individual. Vanness
    specifically notes that her trial counsel also represented another
    person who was arrested with Vanness and that their cases were
    consolidated for purposes of their plea hearings. Vanness con-
    tends that because the other defendant sold the drugs involved
    in this case and the drugs belonged to the other defendant, an
    actual conflict existed.
    [8-10] The fact of multiple representation alone is not a per
    se violation of the Sixth Amendment. State v. Narcisse, 
    260 Neb. 55
    , 
    615 N.W.2d 110
    (2000). A defendant who raised no
    objection at trial must show that an actual conflict of interest
    existed. State v. Cotton, 
    299 Neb. 650
    , 
    910 N.W.2d 102
    (2018).
    When an actual conflict exists, there is no need to show that
    the conflict resulted in actual prejudice to the defendant. 
    Id. If the
    defendant shows that his or her defense counsel faced a sit-
    uation in which conflicting loyalties pointed in opposite direc-
    tions and that his or her counsel acted for the other client’s
    interests or the counsel’s own personal interests and against the
    defendant’s interests, prejudice is presumed. 
    Id. A conflict
    of
    interest must be actual, rather than speculative or hypothetical,
    before a court can overturn a conviction because of ineffective
    assistance of counsel. 
    Id. Although Vanness’
    allegation regarding an alleged conflict
    of interest of her trial counsel due to multiple representation is
    sufficiently stated, the record is insufficient to review it in this
    direct appeal.
    (b) Trial Counsel’s Failure to Investigate
    Innocence Defense and Advisement
    of Lenient Sentencing
    On appeal, Vanness claims that drugs found at the scene
    of the arrest belonged to another individual and that her trial
    counsel failed to investigate a possible defense of innocence.
    The files and records of the case affirmatively show that
    this allegation of ineffectiveness of counsel has no merit. At
    the plea hearing, the trial judge specifically asked whether
    Vanness explained to her trial counsel all theories of defense
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    that she might have or could think of, and whether her
    trial counsel investigated the defenses which she thought she
    might have to her satisfaction. Vanness responded “[y]es” to
    both inquiries.
    Vanness further claims that her trial counsel advised her to
    plead guilty because she would receive “a lenient sentence.”
    Brief for appellant at 10. This allegation of ineffectiveness of
    counsel has no merit. During the colloquy at the plea hear-
    ing, Vanness denied that any threats or promises were made
    to induce her to enter her pleas of guilty. The record affirma-
    tively refutes Vanness’ claim that she was promised lenient
    sentencing. See State v. Casares, 
    291 Neb. 150
    , 
    864 N.W.2d 667
    (2015).
    2. Sentencing Errors
    (a) Excessive Sentences
    Vanness generally claims that the sentences imposed were
    excessive and an abuse of discretion. In particular, Vanness
    contends that she should have been sentenced to either lesser
    sentences or concurrent sentences. We find no merit to Vanness’
    claims regarding excessiveness of sentences.
    [11-13] Where a sentence imposed within the statutory
    limits is alleged on appeal to be excessive, the appellate court
    must determine whether the sentencing court abused its discre-
    tion in considering and applying the relevant factors as well
    as any applicable legal principles in determining the sentence
    to be imposed. State v. Hunt, 
    299 Neb. 573
    , 
    909 N.W.2d 363
    (2018). When imposing a sentence, the sentencing court is
    to consider the defendant’s (1) age, (2) mentality, (3) educa-
    tion and experience, (4) social and cultural background, (5)
    past criminal record or record of law-abiding conduct, and
    (6) motivation for the offense, as well as (7) the nature of
    the offense and (8) the amount of violence involved in the
    commission of the crime. 
    Id. Generally, it
    is within a trial
    court’s discretion to direct that sentences imposed for sepa-
    rate crimes be served either concurrently or consecutively. 
    Id. This is
    so even when offenses carry a mandatory minimum
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    sentence, unless the statute requires that consecutive sentences
    be imposed. 
    Id. We have
    reviewed the record which shows that the sentence
    imposed on each of Vanness’ convictions was within the statu-
    tory limits and that the district court considered and applied
    the necessary sentencing factors. The district court expressed
    concern for Vanness’ substance abuse history, relapses, and her
    lack of success in the problem-solving court. The district court
    noted one of “the overriding considerations” was protecting
    the public from Vanness, who had recently been in an acci-
    dent while reportedly driving under the influence of drugs and
    alcohol. Given her relapse in the problem-solving court, the
    district court stated that maintaining Vanness in a “controlled
    environment” such as prison might allow her to become less
    likely to abuse drugs and alcohol and less likely to “harm
    someone else or [her]self.” We do not find an abuse of discre-
    tion in the court’s consideration of sentencing factors.
    (b) Incorrect Advisement
    [14] The State notes that when Vanness pleaded guilty,
    the district court incorrectly advised her that the potential
    maximum penalty for the conviction of a Class IV felony
    was 5 years’ imprisonment. However, because the date of the
    offenses was in September 2015, after 2015 Neb. Laws, L.B.
    605, had become effective on August 30, 2015, the maximum
    sentence of imprisonment for the conviction of a Class IV
    felony was 2 years. Neb. Rev. Stat. § 28-105 (Supp. 2015).
    We have observed that a court’s failure to advise a defend­
    ant of the correct statutory minimum and maximum penal-
    ties does not automatically warrant reversal. State v. Russell,
    
    291 Neb. 33
    , 
    863 N.W.2d 813
    (2015). Here, the district court
    erroneously advised Vanness that the range of penalties for
    the convictions on Counts 2 and 3, possession of metham-
    phetamine and hydrocodone, was 0 to 5 years’ imprison-
    ment. Although incorrect, this advisement did not prejudice
    Vanness. The sentences actually imposed of 12 to 12 months’
    imprisonment with 9 months of postrelease supervision, and
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    10 to 10 months’ imprisonment, with a period of 9 months of
    successive postrelease supervision were both under the statu-
    tory maximum and the maximum articulated by the district
    court. See 
    id. Facing a
    higher, albeit incorrect maximum, it is
    “inconceivable” that Vanness would agree to plead guilty to a
    higher maximum but not the lesser sentence which was actu-
    ally imposed. See 
    id. at 42,
    863 N.W.2d at 820.
    (c) Plain Error in Sentencing
    The State notes a possible error regarding whether
    Vanness’ sentences were “determinate” as required by stat-
    utes. Specifically, the convictions on Counts 1, 2, and 3
    should have been determinate sentences under Neb. Rev. Stat.
    § 29-2204.02(1)(a) (Supp. 2015) (Class IV felonies) and Neb.
    Rev. Stat. § 28-106(2) (Supp. 2015) (misdemeanors).
    No error has been assigned with regard to the periods of
    postrelease supervision imposed, the credit for time served,
    or the consecutive nature of Vanness’ sentencing which we
    have not already addressed. However, when the district court
    pronounced the sentences of 60 to 60 days’ imprisonment for
    the convictions on Count 1, a Class III misdemeanor; 12 to 12
    months’ imprisonment on Count 2, a Class IV felony; and 10
    to 10 months’ imprisonment on Count 3, a Class IV felony,
    such sentences were indeterminate rather than determinate.
    The district court plainly erred by failing to pronounce deter-
    minate sentences, and such error requires that we modify these
    sentences on direct appeal.
    [15-17] We recently clarified the distinction between deter-
    minate and indeterminate sentences. See State v. Artis, 
    296 Neb. 172
    , 
    893 N.W.2d 421
    (2017), modified on denial of
    rehearing 
    296 Neb. 606
    , 
    894 N.W.2d 349
    . In Artis, we said:
    A determinate sentence is imposed when the defendant
    is sentenced to a single term of years, such as a sentence
    of 2 years’ imprisonment. See State v. White, 
    256 Neb. 536
    , 
    590 N.W.2d 863
    (1999). In contrast, when imposing
    an indeterminate sentence, a sentencing court ordinarily
    articulates either a minimum term and maximum term or
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    a range of time for which a defendant is to be incarcer-
    ated. Neb. Rev. Stat. § 28-105 (Reissue 2016); State v.
    
    White, supra
    . In Nebraska, the fact that the minimum
    term and maximum term of a sentence are the same
    does not affect the sentence’s status as an indeterminate
    sentence. See State v. Marrs, 
    272 Neb. 573
    , 
    723 N.W.2d 499
    (2006); State v. Urbano, 
    256 Neb. 194
    , 
    589 N.W.2d 144
    (1999).
    296 Neb. at 607
    , 894 N.W.2d at 349-50.
    In its brief, the State refers to 
    Artis, supra
    , and maintains
    that Vanness’ sentences are “determinate” for the reasons the
    sentences are for an identifiable and definite term of years and
    the inclusion of postrelease supervision on the sentences for
    Vanness’ Class IV felonies shows the district court intended
    to impose determinate sentences. See § 29-2204.02(1). The
    State’s characterization of the sentences in question is not con-
    sistent with our historical or recent jurisprudence.
    Although Vanness’ sentences have the same minimum and
    maximum term of years and can be definitely ascertained,
    these features do not convert them into determinate sentences.
    They were not pronounced as a “single term of years” and
    thus are not determinate, and the district court plainly erred.
    See 
    Artis, 296 Neb. at 607
    , 894 N.W.2d at 350. For complete-
    ness, we note that to the extent any of our prior cases have
    been perceived as characterizing sentences where the mini-
    mum and maximum terms were the same number as determi-
    nate, these articulations were not a complete statement of the
    laws and are disapproved. See, e.g., Johnson v. Clarke, 
    258 Neb. 316
    , 
    603 N.W.2d 373
    (1999) (discussing calculation of
    credit concerning parole dates). We reaffirm the rule in Artis
    that a determinate sentence is a single term of years and an
    indeterminate sentence is a minimum term and maximum
    term or a range of time for which a defendant is to be incar-
    cerated, even if the minimum and maximum number are the
    same. See, also, State v. Marrs, 
    272 Neb. 573
    , 
    723 N.W.2d 499
    (2006); State v. Urbano, 
    256 Neb. 194
    , 
    589 N.W.2d 144
    (1999).
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    Because the court’s intended sentences are apparent from
    the record, and because we find no other error in sentencing,
    as indicated below, we modify each of Vanness’ sentences of
    imprisonment for the convictions on Counts 1, 2, and 3 to a
    single term of years, in accordance with §§ 29-2204.02(1)(a)
    and 28-106(2). We find no error and therefore affirm the sen-
    tence for the conviction on Count 4.
    VI. CONCLUSION
    The record is insufficient to resolve Vanness’ claim that
    trial counsel was ineffective due to an actual conflict of inter-
    est. Vanness’ claims that she was denied effective assistance
    of trial counsel based on potential defenses or promises of
    leniency are affirmatively refuted by the record. We affirm
    Vanness’ convictions.
    With regard to sentencing, we determine that Vanness’
    sentences did not exceed the statutory range and that there
    was no error regarding the sentence for the conviction on
    Count 4. However, because the district court pronounced
    indeterminate sentences instead of determinate sentences
    for the convictions on Counts 1, 2, and 3, as required by
    §§ 29-2204.02(1)(a) and 28-106(2), we modify Vanness’ sen-
    tences as follows: for the conviction on Count 1, 60 days’
    imprisonment to run concurrently with all sentences imposed.
    For the conviction on Count 2, 12 months’ imprisonment
    with 9 months of postrelease supervision, with credit for 26
    days served, to run consecutively to other sentences. For the
    conviction on Count 3, 10 months’ imprisonment, to run con-
    secutively to other sentences, with a period of 9 months of
    successive and additional postrelease supervision. We find no
    error and therefore affirm the sentence for the conviction on
    Count 4.
    A ffirmed as modified.