State v. Blackwell ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. BLACKWELL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
DENOTTA M. BLACKWELL, APPELLANT.
Filed January 31, 2023. No. A-22-421.
Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge, on appeal
thereto from the County Court for Lancaster County: MATTHEW L. ACTON, Judge. Judgment of
District Court affirmed.
Tyler A. Egenes, of Glasz Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
MOORE, RIEDMANN, and BISHOP, Judges.
RIEDMANN, Judge.
INTRODUCTION
Denotta M. Blackwell appeals her plea-based conviction and sentence entered in the county
court for Lancaster County and affirmed by the district court. On appeal, Blackwell challenges
whether her plea was made understandingly and voluntarily. She also claims ineffective assistance
of counsel and that her sentence is excessive. We affirm.
BACKGROUND
On January 3, 2020, Lincoln Police Department officers arrested Blackwell for theft by
shoplifting ($0-$500). The employees of Ash & Ash Co. showed officers security footage of
Blackwell holding up a shirt to conceal her putting another shirt into a green, reusable shopping
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bag. Although Blackwell told officers she had purchased the shirt at JCPenney, employees
confirmed it was from Ash & Ash Co. and valued it at $30.
On January 6, 2020, the State filed a complaint in the county court charging Blackwell with
theft by shoplifting ($0-$500), second offense. After the State confirmed to the county court that
it would be pursuing jail time for Blackwell, the court appointed counsel for Blackwell. It then
accepted Blackwell’s plea of not guilty to the charge, set bond, and continued the case.
A jury docket call hearing was scheduled for June 15, 2020. Blackwell did not appear, so
her counsel requested a continuance since he had not spoken with her since prior to the beginning
of the COVID-19 pandemic. The county court set a hearing for the following week.
Blackwell was not present for the June 23, 2020, hearing. Her counsel chose to remain
silent but did tell the court that he knew Blackwell had been in Illinois the week prior at a shelter
fleeing domestic violence. The county court responded that while it would consider Blackwell’s
situation, she also had a felony warrant for violating post-release supervision by failing to report.
The county court ultimately issued a bench warrant and granted the State leave to add a failure to
appear count to the complaint.
Plea Agreement.
On October 19, 2021, Blackwell appeared and agreed to enter into a plea agreement with
the State. In return for her plea of no contest and stipulating that the theft by shoplifting would be
a second offense enhancement, the State would dismiss the failure to appear charge and, according
to Blackwell’s counsel, would not “consider amending the charge to a felony.” In response, the
county court asked Blackwell if it was her “understanding that if you plead to the second offense,
that [the State is] going to dismiss the failure to appear and they won’t make this a felony.”
Blackwell responded affirmatively.
The county court then explained that by pleading no contest to theft by shoplifting
($0-$500), second offense, Blackwell could face up to 1 year imprisonment, $1,000 fine, or any
combination of the two. It asked if Blackwell understood the possible penalties, and Blackwell
responded affirmatively. The court continued by asking Blackwell if she understood that she was
giving up several rights under both the U.S. and Nebraska Constitutions by pleading no contest,
including her right of presumption of innocence, right to confront and cross-examine witnesses,
the right against incrimination, the right to remain silent, and the right to a jury or bench trial. She
responded affirmatively.
Blackwell confirmed that she had enough time to consult with her attorney, and maintained
she wished to plead no contest. The court then repeated its understanding of the plea agreement,
by stating the “State’s going to dismiss Count 2 and agree not to enhance it to a third offense felony
in exchange for her plea and her stipulation that it’s a valid prior.” It asked Blackwell again if this
was her understanding of the entire plea agreement, which Blackwell affirmed.
The State then provided the factual basis that officers were dispatched to Ash & Ash Co.
on January 3, 2020, to investigate a report of two females concealing items in the store. After
contacting the two women in a different store, the officers found Blackwell with a green, reusable
shopping bag with a tan shirt in it. Despite Blackwell’s claim that she bought the shirt at JCPenney,
officers confirmed with security footage that Blackwell took the shirt from Ash & Ash Co.and it
was valued at $30.
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After Blackwell affirmed to the court that she still wished to plead no contest, the court
accepted her plea. Following the terms of the plea agreement, the county court then accepted the
parties’ stipulation, found Blackwell guilty of theft by shoplifting, second offense, and the State
dismissed the failure to appear charge.
Sentencing.
At the sentencing hearing, Blackwell’s counsel argued that the county court should
consider her circumstances, including that the offense occurred in 2020, only one item valued at
$30 was taken, and it was recovered. Counsel argued that Blackwell has acknowledged her
previous theft history and she was trying to do better. She has stable housing in Lincoln. She cares
for her grandchildren, and her children live nearby. She does suffer from mental illness, but she is
undergoing medication management and therapy. Blackwell’s counsel ultimately argued that the
county court should sentence Blackwell to a fine or probation.
The State argued that Blackwell should be sentenced to a term of imprisonment. The State
provided that Blackwell had 15 local, state statute theft convictions, and 6 of those were felony
convictions. She also had multiple city theft convictions. The State concluded that Blackwell’s
significant history of theft merited imprisonment.
The county court stated that it considered comments of counsel, Blackwell’s information
from the factual basis, and the statutory and case law factors for sentencing. It noted that
Blackwell’s last conviction was in 2017 and she was given 2 years’ imprisonment followed by
post-release supervision, but she failed to report for that supervision. It explained that a fine would
depreciate the seriousness of the offense and promote further disrespect for the law. Furthermore,
it stated Blackwell cannot be placed on probation again since she failed to report for supervision
on her last conviction. After considering the nature and circumstances of the crime; Blackwell’s
history, character, and condition; and that the risk is substantial that during a period of probation
Blackwell would reoffend, the county court sentenced Blackwell to 9 months’ imprisonment.
District Court Appeal.
Blackwell appealed to the Lancaster County District Court. She argued eight assignments
of error, all of which she now assigns on appeal. The district court summarily found the assigned
errors without merit and affirmed the county court’s judgment. Blackwell now appeals to this
court.
ASSIGNMENTS OF ERROR
Blackwell assigns several errors. She asserts that the county court erred (1) by not properly
advising Blackwell of her constitutional rights as guaranteed by the U.S. and Nebraska
Constitutions; (2) by not properly advising Blackwell before accepting her plea of no contest; (3)
by advising Blackwell that by pleading no contest, the State would not “make this a felony”; (4)
by determining Blackwell made her no contest plea freely, intelligently, voluntarily, and
understandingly; and (5) in imposing an excessive sentence. Blackwell also assigns her counsel
was ineffective (6) in providing effective assistance of counsel; (7) in advising Blackwell of her
Due Process Rights guaranteed under the U.S. and Nebraska Constitutions; and (8) in advising her
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to enter into a no contest plea. Lastly, Blackwell assigns (9) the district court erred by affirming
the county court’s judgment.
STANDARD OF REVIEW
In an appeal of a criminal case from the county court, the district court acts as an
intermediate court of appeals, and its review is limited to an examination of the record for error or
abuse of discretion. State v. Collins, 307 Neb. 581, 950 N.W.2d 89 (2020). Both the district court
and a higher appellate court generally review appeals from the county court for error appearing on
the record. Id. When reviewing a judgment for errors appearing on the record, an appellate court’s
inquiry is whether the decision conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable. Id. When deciding appeals from criminal
convictions in county court, we apply the same standards of review that we apply to decide appeals
from criminal convictions in district court. Id.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. State v. Russell, 291 Neb.
33, 863 N.W.2d 813 (2015).
Whether a claim of ineffective assistance of trial counsel can be determined on direct
appeal presents a question of law, which turns upon the sufficiency of the record to address the
claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a
statute or constitutional requirement. State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). An
appellate court determines as a matter of law whether the record conclusively shows that (1) a
defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a
defense counsel’s alleged deficient performance. Id.A sentence imposed within the statutory limits will not be disturbed on appeal in the
absence of an abuse of discretion by the trial court. State v. Blake, 310 Neb. 769, 969 N.W.2d 399(2022).
ANALYSIS
As a preliminary matter, Blackwell’s assigned errors do not match the arguments in her
brief. An alleged error must be both specifically assigned and specifically argued in the brief of
the party asserting the error to be considered by the appellate court. State v. Figures, 308 Neb. 801,
957 N.W.2d 161 (2021). Blackwell does not argue assigned error (8) that her counsel was
ineffective by advising her to enter into a no contest plea; thus, we will not consider it.
Additionally, for ineffective assistance of counsel claims made on direct appeal, State v.
Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019), requires that the assignments of error specifically
allege deficient performance, and an appellate court will not scour the remainder of the brief in
search of such specificity. Under Mrza, assigned error (6) is not specifically alleged, as it assigns
“trial counsel was ineffective in providing effective assistance of counsel,” so we will not consider
it either. Brief for appellant at 5.
Adequacy of Plea.
Blackwell’s first four assignments of error can be restated into one: Blackwell’s plea of no
contest was not given freely, intelligently, voluntarily, and understandingly. This iteration mirrors
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Blackwell’s argument in her brief. She argues that the county court improperly advised her of her
rights when it told her that the terms of the plea agreement included that the “charge would not be
‘made’ a felony by the State of Nebraska.” Id. at 10. She claims that the county court’s recitation
of the plea agreement was “fundamentally different” than the terms of the plea agreement, so it
confused her and changed the nature of the agreement. Id.
To support a finding that a defendant entered into a guilty or no contest plea freely,
intelligently, voluntarily, and understandingly, a court must inform the 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. Lane, 299 Neb. 170, 907 N.W.2d 737 (2018). The record must also establish a factual basis
for the plea and that the defendant knew the range of the penalties for the crime charged. Id.The record establishes that the county court informed Blackwell of the nature of the charge
and the range of the penalties for theft by shoplifting, second offense. It appointed counsel to
Blackwell, and when asked by the court, Blackwell stated she was satisfied with her counsel’s
representation. The county court also informed Blackwell that she had the right to confront
witnesses, the privilege against self-incrimination, and the right to a jury or bench trial. Lastly, the
record shows that the State provided a factual basis for the crime charged. Therefore, all elements
are met to find Blackwell entered into her no contest plea freely, intelligently, voluntarily, and
understandingly.
Even after informing Blackwell of her rights, the county court repeated the plea agreement
and asked Blackwell a second time if it matched her understanding. Blackwell answered
affirmatively, which refutes her claims now that the county court’s choice of words confused her.
Although Blackwell argues there is a fundamental difference between defense counsel’s
statement—that the State would not consider making her theft a felony and the county court’s
statement—that the State would not make her theft a felony, we are unable to see a meaningful
distinction. Altogether, the county court’s recitation of the plea agreement did not alter its
meaning; thus, it did not abuse its discretion in accepting Blackwell’s plea of no contest, as she
did so freely, intelligently, voluntarily, and understandingly.
Ineffective Assistance of Counsel.
Blackwell contends that trial counsel was ineffective because her counsel failed to inform
her that if she was charged with a felony, then she would have the right to a preliminary hearing.
And at this preliminary hearing, the State would have to establish probable cause for the felony
charge. Essentially, Blackwell argues without the plea agreement, the State would have charged
her with a felony, so “by not advising [Blackwell] of her right to a preliminary hearing if the charge
was amended to a felony, trial counsel effectively deprived [Blackwell] of that right.” Brief for
appellant at 11. Blackwell’s counsel on appeal is different than her trial counsel.
To prevail on a claim of ineffective assistance of counsel, the defendant must show that
counsel’s performance was deficient, and that this deficient performance prejudiced their defense.
State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020). 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 deficient performance and whether the defendant was or was not prejudiced by counsel’s
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alleged performance. Id. For a conviction based on a plea of no contest, the prejudice requirement
is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, they
would have insisted on going to trial instead of pleading no contest. Id.An ineffective assistance of counsel claim that is raised on direct appeal may not be
resolvable, as the determining factor is whether the record is sufficient to adequately review the
question. State v. Warner, 312 Neb. 116, 977 N.W.2d 904 (2022). The record on direct appeal is
sufficient to review a claim of ineffective assistance of trial counsel if it establishes either that trial
counsel’s performance was not deficient, that the appellant will not be able to establish prejudice,
or that trial counsel’s actions could not be justified as a part of any plausible trial strategy. State v.
Anderson, supra.Here, trial counsel was not deficient for failing to inform Blackwell of rights she did not
have under the charges as filed. The right to a preliminary hearing only attaches if the defendant
is charged with a felony. Neb. Rev. Stat. § 29-504 (Reissue 2016). Since Blackwell was charged
with a misdemeanor, her counsel had no duty to inform her of rights she did not have yet but may
attain under different circumstances. Unlike Blackwell’s contention, there is nothing in the record
to show that it was a foregone conclusion the State would amend the charges if she rejected the
plea agreement. And if the State amended her charge to a felony, then the right to a preliminary
hearing would have attached. But Blackwell did not have the right to a preliminary hearing when
she entered into her plea agreement. Therefore, trial counsel was not ineffective for failing to
inform Blackwell she had a right to a preliminary hearing if she was charged with a felony.
Additionally, Blackwell’s ineffective assistance of counsel claim for trial counsel not
requesting a presentence investigation report was not specifically assigned, so we will not consider
it. See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
Excessive Sentence.
Blackwell argues that her sentence was excessive. She contends that the county court
abused its discretion because it did not adequately consider her mental health diagnoses, treatment
progress, or support system in its sentence.
Blackwell was convicted of theft by shoplifting ($0-$500), second offense, a Class I
misdemeanor. Neb. Rev. Stat. § 28-511.01 (Reissue 2016); Neb. Rev. Stat. § 28-518 (Reissue
2016). A Class I misdemeanor carries a maximum sentence of 1 year imprisonment, $1,000 fine,
or any combination of the two. Neb. Rev. Stat. § 28-106 (Reissue 2016). The county court
sentenced Blackwell to 9 months’ imprisonment; thus, her sentence is within the statutory limits,
so we review for an abuse of discretion.
An abuse of discretion in imposing a sentence occurs when a sentencing court’s reasons or
rulings are clearly untenable and unfairly deprive the litigant of a substantial right and just result.
State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).
When imposing a sentence, a sentencing judge should customarily consider the defendant’s
(1) age, (2) mentality, (3) education 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.
State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). The sentencing court is not limited to any
mathematically applied set of factors, but the appropriateness of the sentence is necessarily a
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subjective judgment that includes the sentencing judge’s observations of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding the defendant’s life. Id.Here, the county court stated it considered the comments of counsel, Blackwell’s
information from the factual basis, and the statutory and case law factors for sentencing. Each
factor could be surmised from the arguments made at the sentencing hearing and the factual basis
surrounding Blackwell’s conviction. There is no requirement the sentencing court apply the factors
mathematically or explain its reasoning for each factor on the record. See State v. Greer, 309 Neb.
667, 962 N.W.2d 217 (2021).
The record establishes that Blackwell was 51 years old at sentencing. She had 15 prior state
statute theft violations and multiple city theft convictions. She was placed on post-release
supervision in Sarpy County, but never reported to her probation officer. She is currently
unemployed and her only source of income is through disability payments. She cares for her
grandchildren and has stable housing. Blackwell stole a shirt worth $30, and when confronted by
police, she lied and told them she bought it at JCPenney. It was stipulated by both parties that this
charge would be treated as a second offense. Accordingly, the county court did not abuse its
discretion in sentencing Blackwell to 9 months’ imprisonment. And since the county court did not
abuse its discretion, the district court did not err in affirming the county court’s sentence.
CONCLUSION
For the aforementioned reasons, we affirm Blackwell’s conviction and sentence.
AFFIRMED.
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