State v. Svoboda ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. SVOBODA
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.
CHAD L. SVOBODA, APPELLANT.
Filed January 24, 2023. No. A-22-220.
Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge. Affirmed.
Joe Nigro, Lancaster County Public Defender, and Brittani E. Lewit for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
MOORE, RIEDMANN, and WELCH, Judges.
MOORE, Judge.
INTRODUCTION
Chad L. Svoboda appeals his plea-based convictions and sentences from the Lancaster
County District Court. He assigns that the district court erred by not ordering a drug and alcohol
evaluation and not granting his request to complete residential treatment prior to sentencing and
that his sentences were excessive. He also claims that his trial counsel was ineffective in several
respects. Having considered his arguments and reviewed the record, we affirm his convictions and
sentences.
STATEMENT OF FACTS
On June 10, 2021, the State filed an information in the district court, charging Svoboda
with burglary in violation of Neb. Rev. Stat. § 28-507 (Reissue 2016), a Class IIA felony, and
possession of burglar’s tools in violation of Neb. Rev. Stat. § 28-508 (Reissue 2016), a Class IV
felony.
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At a status hearing before the district court on November 30, 2021, Svoboda’s attorney
informed the court that Svoboda “wants to take the matter to trial.” The court indicated that the
case would be placed near the top of the list of cases to be tried during the next jury term, also
observing that the case had “been on the list before.”
At the same hearing, the district court also addressed a motion filed by the State, requesting
leave to amend the information to add habitual criminal enhancements to the original charges.
Svoboda’s attorney objected, noting that the habitual criminal enhancements were being added in
response to Svoboda’s rejection of a plea offer and his exercising his right to trial. The State
confirmed that Svoboda had rejected a plea offer that would have required him to plead to the
burglary charge of the original information; in return, the State would have dismissed the
possession of burglar’s tools charge in this case as well as a possession of a controlled substance
charge in another case. The State also confirmed its communication of the fact that it would be
adding the habitual criminal enhancements if Svoboda rejected the plea offer. Both Svoboda and
his attorney confirmed that the State’s comments reflected their understanding of the plea
negotiations that had taken place. Svoboda also confirmed that he had rejected the offer of pleading
to a single count of burglary. The court granted the State’s motion, and the State subsequently filed
the amended information. Svoboda was arraigned on the amended information and entered pleas
of not guilty.
A plea hearing was held before the district court on December 13, 2021. The court granted
the State’s request to file a second amended information, adding habitual criminal enhancements
to charges of burglary in violation of § 28-507, a Class IIA felony; possession of burglar’s tools in
violation of § 28-205, a Class IV felony, and possession of a controlled substance
(methamphetamine) in violation of Neb. Rev. Stat. § 28-416 (Reissue 2016), a Class IV felony.
Svoboda was arraigned on the second amended information, indicating his understanding of the
charges and penalties and entering pleas of no contest.
During the rights advisory by and colloquy with the district court that followed, Svoboda
affirmed that he understood his rights, the effect of his pleas on those rights, the effect that habitual
criminal enhancements would have on his sentences, the fact that a habitual criminal finding would
deny him any chance at probation, and the fact that his sentences would be decided solely by the
court. Svoboda denied having received any threats, inducements, or promises other than the plea
agreement to induce him to waive his rights. He also denied having any questions about his rights
as explained to him by the court.
Svoboda then affirmed that he had an opportunity to talk with his trial counsel about his
rights, that he did not need any more time, and that he was freely and voluntarily waiving the rights
explained by the district court. Svoboda’s attorney affirmed that he had discussed Svoboda’s rights
with him. He also affirmed his belief that Svoboda understood his rights; that Svoboda understood
the consequences of waiving them; and that Svoboda was waiving his rights freely, voluntarily,
knowingly, and intelligently. The court accepted Svoboda’s waiver, finding beyond a reasonable
doubt that Svoboda understood his rights and the consequences of waiving them and had waived
them freely, voluntarily, knowingly, and intelligently.
In response to further questioning from the district court, Svoboda affirmed that his
attorney had explained to him the three charges set forth in the second amended information and
that he understood he was charged with burglary, possession of burglar’s tools, and possession of
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a controlled substance. Svoboda also indicated that he told his attorney everything he knew about
the case and that he was not aware of any helpful information which he had not discussed with his
attorney. Svoboda indicated that he was satisfied with his attorney’s work, that he believed his
attorney was competent and knew what he was doing, and that his attorney had not refused or
neglected to do anything Svoboda had asked of him. And, Svoboda indicated he had enough time
to talk about the case with his attorney and did not need any more time to talk to him about
anything.
The State recited the details of the parties’ plea agreement for the record, which involved
Svoboda’s pleas of guilty or no contest to charges in the present case as well as to charges in cases
in Otoe and Cass Counties. In this case, Svoboda had agreed to plead to charges of burglary,
possession of burglar’s tools, and possession of a controlled substance. And, he had agreed to plead
to a charge of possession of a controlled substance in both the Cass County and the Otoe County
case. In exchange for “all those pleas of guilty or no contest, the State, Cass County and Otoe
County ha[d] all agreed not to pursue . . . habitual criminal [enhancements], as well as not offer
any evidence of [Svoboda being a] habitual criminal.” The prosecutor noted that “the possession
of controlled substance [charge] that was added in this . . . second amended information [in the
present case] came from a county court case. . . . That case will be dismissed at [Svoboda’s] costs.”
Svoboda’s attorney agreed that the State’s recitation reflected his understanding of the
terms of the parties’ plea agreement. Svoboda, however, sought clarification, and after a brief
private discussion between Svoboda and his attorney, the district court and Svoboda’s attorney
discussed the details of the plea agreement further. During this discussion, the following exchange
between the court and Svoboda occurred:
THE COURT: — as I understand it . . . if you plead to these and you do what you’re
supposed to do in Otoe and Cass County, what will happen is, we will get to sentencing
and we will not have what I’ll call an enhancement hearing at sentencing where they would
offer evidence of prior convictions.
Because without them offering evidence of prior convictions, I can’t find that
you’re a habitual criminal.
[Svoboda:] Yes, ma’am.
THE COURT: So . . . I hear this as, if you do what you’re supposed to do on your
end —
[Svoboda:] Right.
THE COURT: Then they won’t go forward with that, and then these cases — these
charges will be their original . . . sentencing charge, which means that the burglary is a
class — that a Class 2A?
[The State:] Yes, Your Honor.
THE COURT: Yeah. So it would be a Class 2A felony, which would carry with it
a possible penalty of up to 20 years in prison; you understand that?
[Svoboda:] Yes, ma’am.
THE COURT: The possession of burglar[’]s tools is a Class 4 felony and would
carry with it a possible penalty of up to two years in prison, up to a $10,000 fine, any
combination of the fine and the imprisonment; and the possibility of up to 12 months of
post-release supervision. You understand that?
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[Svoboda:] Yes, ma’am.
THE COURT: And the same is true of the charge of possession of a controlled
substance. It would then basically revert back to its original penalty, a Class 4 felony, up
to two years in prison, up to a $10,000 [fine]; any combination of the fine and the
imprisonment. And the possibility of post-release supervision —
[Svoboda:] Yes, ma’am.
THE COURT: — up to 12 months. You understand all of that?
[Svoboda:] Yes, ma’am.
THE COURT: Okay. So is that your understanding of the plea —
[Svoboda:] Yes.
THE COURT: — agreement?
[Svoboda:] Yes, ma’am. Okay.
At that point, the State clarified that “Cass County and Otoe County do not have the
habitual criminal [enhancement] even alleged at this point.” The district court then observed that
“if he doesn’t go forward with this, they’re going to allege it,” and the State confirmed, “They may
pursue it, yes.” In response, Svoboda stated, “Yes. I have no problem. I’m . . . going to take care
of that there, plead guilty to those counts.” And, he agreed that the discussion reflected his
understanding of the plea agreement. Svoboda denied any promises or representations outside of
the plea agreement as to what his sentences would be if the court accepted his pleas; he denied any
threats or inducements other than the stated agreement to secure his plea; and he agreed that he
was entering his pleas freely and voluntarily. He also agreed that his attorney had explained and
that he fully understood what the State would have to prove to convict him of the three charges in
this case.
The State then provided the following factual basis to support Svoboda’s pleas:
As to Count 1 and 2, . . . the regional manager at Jiffy Lube located at [an address]
in Lincoln, Lancaster County, Nebraska, reported to [a police officer] that his business had
been burglarized between 6:30 a.m. and 7 o’clock a.m. on December 13th, 2020.
On the east side of the business, [the] officer observed one of the window panes on
the sliding overhead garage to be shattered. The window pane was large enough for
someone to gain entry.
On the security camera footage [the] officer observed a white Dodge Caravan with
no plates or papers and four bumper stickers on the back arrive to the west parking lot of
Laundry-land. The vehicle also had black trim, no rear passenger window and a
dark-colored plastic bag that was used as a makeshift window.
. . . [I]n viewing footage after the suspect entered the business, he went straight for
the business office and immediately located the safe, which is kept under the desk. The
suspect retrieved several pry bars from a small pouch he brought with him and used them
to pry open the safe.
The suspect then retrieved the coins and dollars bills from the safe, as well as a TPS
re-programmer and a Samsung Tab A tablet. The total value of the items was $550. The
suspect then returned to the white Dodge Caravan he arrived in and left the area.
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A rusty piece of metal with a flathead was left next to the safe. [The manager] stated
that did not belong to the business. On December 31st, 2020, [a police officer] sent [the
investigating officer] an e-mail identifying the images of the suspect . . . that were placed
on the Crimestoppers website.
[The officer who sent the email] identified the suspect as . . . Svoboda based on
prior contact she had with him where he was observed operating the same . . . vehicle. [The
investigating officer] also observed a . . . prior jail mugshot of . . . Svoboda and identified
him as the suspect seen in the Jiffy Lube video.
During follow-up investigation [the investigating officer] observed that [police]
had contact with Chad Svoboda on January 6, 2021, regarding an unrelated case. . . .
[Body camera footage showed the contact in that case occurred] while [Svoboda]
was operating the same white vehicle used in the Jiffy Lube burglary on December 13th,
2020, based on the distinguishing features.
All of those events . . . occurred in Lancaster County, Nebraska.
As to Count 3, on June 1st, 2021, investigators with the Lancaster County narcotics
task force were in an unmarked vehicle and were behind a black, 1995, Chevrolet K1500.
Officers observed a male party later identified [other than Svoboda] to be seated in the bed
of the pick[]up while moving on a public street.
Investigators called for a marked police cruiser to [come to] the area to perform a
traffic stop. However, prior to the stop[,] the vehicle pulled into a parking lot and parked
on the northwest corner of [a particular intersection].
Investigators exited their vehicle with badges of office displayed and identified
themselves as police officers. . . . Svoboda was the front-seat passenger and was found to
have an active warrant for his arrest.
Upon a search incident to arrest, investigators located a glass bulbous pipe with
burnt residue, which had a positive pre-test for the presence of amphetamines and
methamphetamines in the – a Schedule II controlled substance in his right front . . . pants
pocket.
Also located in the vehicle was a hard sunglasses case that . . . Svoboda claimed
ownership of that contained an additional glass bulbous pipe and multiple baggies
contain[ing] . . . suspected methamphetamine.
All of these events occurred in Lancaster County, Nebraska.
After the State’s recitation of the factual basis, Svoboda informed the district court that he
still wished to enter pleas of no contest to the three charges in the second amended information.
His attorney expressed his belief that Svoboda’s pleas were consistent with the law and the facts
of the case. Accordingly, the court found that Svoboda’s pleas and waiver of rights were made
knowingly, intelligently, and voluntarily and that there was a sufficient factual basis to support
Svoboda’s pleas. The court then accepted Svoboda’s pleas and found him guilty of all three counts
charged in the second amended information.
Before the plea hearing concluded, Svoboda’s attorney inquired whether if as part of the
presentence investigation (PSI), the court could also order a drug and alcohol evaluation of
Svoboda. In response, the court stated, “I don’t order any such . . . thing. That’s . . . not . . . part of
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. . . what I do. He may be voucher eligible. I don’t know. That’s up to the probation office and
their resources.”
A sentencing hearing was held before the district court on February 28, 2022. The district
court noted that the PSI had been completed and asked Svoboda and his attorney whether they
were ready to proceed with sentencing. Svoboda’s attorney asked the court to consider a
continuance of sentencing for 60 days because Svoboda had been admitted to another in-patient
treatment program on February 24, after having been discharged from a previous program earlier
in February for violating rules. The court denied Svoboda’s request, stating that sentencing had
been pending since December 13 and that “it is time to finish this case out.” After that, Svoboda
and his attorney agreed they were ready to proceed with sentencing.
In response to the district court’s inquiries, Svoboda’s attorney stated that he had an
opportunity to review the contents of the PSI report and that he was not aware of any additions,
corrections, or deletions that needed to be made to it. And, Svoboda affirmed that he had an
opportunity to speak with his attorney about the contents of the report and that he was unaware of
any necessary additions, corrections, or deletions. The court then heard arguments from the parties,
as well as comments from Svoboda. During Svoboda’s comments, he thanked his attorney and
stated, “He’s been a really good lawyer to me. Really good.”
Prior to pronouncing sentence, the district court noted that it had carefully reviewed the
PSI report, and it noted various details of Svoboda’s “long” and “unwavering” prior criminal
history. The court also acknowledged that Svoboda had “terrible problems with addiction,
substance abuse,” observing, however, that “there are lots of people in the world who do who don’t
go out and burglarize and steal and that get help,” and who do not “wait until literally the day
before . . . sentencing, to do something about it.” Having regard for the nature and circumstances
of the crimes of which Svoboda had been convicted in this case, as well as his history, character
and condition, the court found that imprisonment was necessary for the protection of the public.
The court further found that any lesser sentences than it was imposing would depreciate the
seriousness of Svoboda’s crimes and promote disrespect for the law. The court sentenced Svoboda
to serve 5 to 10 years’ imprisonment for burglary, 1 to 2 years’ imprisonment for possession of
burglar’s tools, and 1 to 2 years’ imprisonment for possession of a controlled substance. The court
ordered that the sentence for possession of burglar’s tools be served concurrent with the burglary
sentence and the sentence for possession of a controlled substance be served consecutive to the
other two sentences. The court gave Svoboda 15 days of credit for time served.
ASSIGNMENTS OF ERROR
Svoboda assigns, reordered, that the district court erred in (1) not ordering a drug and
alcohol evaluation to be completed as part of the PSI, (2) not granting his request for a continuance
to enable completion of residential treatment prior to sentencing, and (3) imposing excessive
sentences. Svoboda also assigns that his counsel was ineffective for failing to ensure that he
understood the plea agreement, for failing to clarify the plea agreement on the record based on
Svoboda’s understanding of the agreement, for not reviewing the PSI report with him prior to
sentencing, for not providing the court with documentation of his efforts at treatment, and for not
clarifying his criminal history and convictions that had been set aside.
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STANDARD OF REVIEW
A decision whether to grant a continuance in a criminal case is within the discretion of the
trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Abligo, 312
Neb. 74, 978 N.W.2d 42 (2022).
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. Greer, 312 Neb. 351, 979 N.W.2d 101(2022). A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are
clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in
matters submitted for disposition. Id.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. Warner, 312 Neb. 116, 977 N.W.2d 904 (2022). In
reviewing a claim of ineffective assistance of trial counsel on direct appeal, 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.ANALYSIS
Drug and Alcohol Evaluation.
Svoboda assigns that the district court erred in not ordering a drug and alcohol evaluation
to be completed as part of the PSI. At the end of the plea hearing, the court declined Svoboda’s
request, stating that ordering such evaluations was not part of what the court does. The court also
observed that Svoboda “may be voucher eligible” but that was “up to the probation office and their
resources.” Svoboda asserts that he was not able to pay for an evaluation immediately following
his December 2021 plea hearing and was not able to get into treatment right away. He argues that
if the court had directed the probation office to “help him receive a substance evaluation” he would
have been able to get into treatment in a more timely manner and would have been better able to
demonstrate to the court his “willingness to work toward rehabilitation and address his addiction.”
Brief for appellant at 28. Svoboda does not cite any legal authority showing that he was entitled to
receive a substance abuse evaluation prior to sentencing. We find no error in the court’s decision
to deny his request.
At the State’s request, we have taken judicial notice of the records in the Otoe and Cass
County cases, both of which were part of the multi-case plea agreement discussed on the record in
this case. The State provided us with the case number of the appeals from Svoboda’s plea in both
cases (A-22-245, the Otoe County case is currently pending before this court; A-22-302, the Cass
County case, was previously decided by memorandum opinion). See Neb. Rev. Stat. § 27-201(Reissue 2016) (court shall take judicial notice if requested by party and supplied with necessary
information; judicial notice may be taken at any stage of proceeding). See, also, Gottsch v. Bank
of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990) (court may judicially notice existence of its
records and records of another court but judicial notice of facts reflected in court’s records is
subject to doctrine of collateral estoppel or of res judicata; judicial notice may take place at any
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stage, including appeal); State v. McMillion, 23 Neb. App. 687, 875 N.W.2d 877 (2016)
(proceeding under § 27-201(6) includes judicial activity which occurs after commencement of
action and includes judicial action in appeal).
At a December 20, 2021, plea hearing, the Otoe County District Court ordered a PSI to
include a substance abuse evaluation in that case. The court informed Svoboda that “if [he had]
already completed a substance abuse evaluation within the past four months, you won’t need to do
a new one. Instead, you would just need to sign a release.” The plea hearing in the Cass County
case also occurred on December 20. There, the Cass County District Court also ordered a chemical
dependency evaluation as part of the PSI. See State v. Svoboda, No. A-22-302, 2022 WL 16632962(Neb. App. Oct. 24, 2022) (selected for posting to court website).
Here, the State argues that the district court’s comments in the Otoe County case imply that
a new substance evaluation does not need to be completed in each case if an evaluation has been
completed recently in another case. It notes that the courts in the Cass and Otoe cases ordered
those evaluations more than 6 weeks before Svoboda initiated the treatment program referenced
at sentencing in the present case and that he was subsequently kicked out of the first program for
violating program rules prior to enrolling in another program.
We agree with the State’s assertion that the records in the three cases involved in the global
plea agreement do not support Svoboda’s contention that but for the court’s refusal to order a
substance abuse evaluation in this case, Svoboda would have entered treatment sooner. And, as
discussed below, the court did not abuse its discretion in sentencing. Svoboda has not shown that
the court erred in not ordering a substance abuse evaluation prior to sentencing in this case. This
assignment of error fails.
Request for Continuance.
Svoboda assigns that the district court erred in not granting his request for a continuance
to enable completion of residential treatment prior to sentencing. Svoboda argues that “[t]he goal
of rehabilitation can be accomplished by [him] learning the tools he needs to address his substance
use” and that by denying him the opportunity to complete treatment prior to sentencing, the court
“denied him the opportunity to learn those skills.” Brief for appellant at 28. He argues further that
due to the court’s decision not to continue the sentencing hearing to allow him to complete
rehabilitative programming, he was “not able to demonstrate that he could fully engage in
rehabilitative services, which would have been mitigating” at sentencing. Id. The court did not
abuse its discretion in denying Svoboda’s motion for a continuance.
A court does not abuse its discretion in denying a continuance unless it clearly appears that
the party seeking the continuance suffered prejudice because of that denial. State v. Baxter, 295
Neb. 496, 888 N.W.2d 726 (2017). The PSI report in this case includes Svoboda’s history of
alcohol and drug use he reported to the probation officer, including the fact that he completed an
evaluation in January 2022 and had previously done residential treatment and “IOP” while on
probation and completed treatment while previously incarcerated. On the Level of Service/Case
Management Inventory, Svoboda’s risk with respect to alcohol and drug problems was high, and
his score on the Simple Screening Instrument indicated a moderate to high risk level for substance
misuse and the need for further evaluation. The probation officer reported that Svoboda’s
substance abuse “appears to have negatively impacted all areas of his life” and noted that Svoboda
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would benefit from a co-occurring evaluation. The district court was well informed at the time of
sentencing about Svoboda’s issues with substance abuse. As discussed below, the court considered
the appropriate factors and did not abuse its discretion in sentencing. Svoboda cannot show that
he was prejudiced by the denial of his motion for continuance.
Further, as noted by the State, Svoboda’s request for continuance to complete treatment
was due, at least in part, to the fact that he was terminated from one treatment program in early
February 2022 due to not following the rules, and entering a second treatment program just a few
days prior to sentencing. That circumstance was due to events within Svoboda’s control. See State
v. Baxter, supra (where criminal defendant’s motion for continuance is based upon occurrence or
nonoccurrence of events within defendant’s own control, denial of such motion is no abuse of
discretion). This assignment of error fails.
Excessive Sentence.
Svoboda assigns that the district court imposed excessive sentences. He argues that the
court abused its discretion by failing to meaningfully consider his “likelihood of success” on
probation, need for substance abuse treatment, the circumstances of his offense, his general life
circumstances, and his willingness to enter a plea. Brief for appellant at 17. He also argues that a
sentence of probation would be better suited to his rehabilitative needs and that the court gave
undue weight to his prior criminal history, which included a conviction for two counts of burglary
in 1988 that was vacated and set aside on postconviction (following remand for new trial, Svoboda
pled to misdemeanor charge of theft by unlawful taking).
In this case, Svoboda was convicted of one count of burglary, a Class IIA felony, one count
of possession of burglar’s tools, a Class IV felony, and one count of possession of a controlled
substance, a Class IV felony. § 28-507, § 28-508, and § 28-416. A Class IIA felony is punishable
by up to 20 years’ imprisonment. Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2022). A Class IV
felony is punishable by up to 2 years’ imprisonment and 12 months’ post-release supervision, a
fine of $10,000, or both. § 28-105(1). See, also, Neb. Rev. Stat. § 28-2204.02(4) (Reissue 2016);
§ 28-105(6) (where person sentenced to imprisonment for Class IIA felony is also sentenced
concurrently or consecutively to imprisonment for Class IV felony, person is not subject to
post-release supervision).
The district court sentenced Svoboda to 5 to 10 years’ imprisonment for burglary, 1 to 2
years’ imprisonment for possession of burglar’s tools, and 1 to 2 years’ imprisonment for
possession of a controlled substance, with the burglary and possession of burglar’s tools sentences
running concurrently with one another and the possession of a controlled substance sentence
running consecutive to the other two sentences. The court gave him credit for 15 days of time
served.
Svoboda’s sentences were within the statutory ranges, but he argues that the district court
should have imposed sentences of probation. With respect to probation, Neb. Rev. Stat.
§ 29-2260(2) (Reissue 2016) provides:
Whenever a court considers sentence for an offender convicted of either a
misdemeanor or a felony for which mandatory or mandatory minimum imprisonment is
not specifically required, the court may withhold sentence of imprisonment unless, having
regard to the nature and circumstances of the crime and the history, character, and condition
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of the offender, the court finds that imprisonment of the offender is necessary for protection
of the public because:
(a) The risk is substantial that during the period of probation the offender will
engage in additional criminal conduct;
(b) The offender is in need of correctional treatment that can be provided most
effectively by commitment to a correctional facility; or
(c) A lesser sentence will depreciate the seriousness of the offender’s crime or
promote disrespect for law.
Whether probation or incarceration is ordered is a choice within the discretion of the trial court,
whose judgment denying probation will be upheld in the absence of an abuse of discretion. State
v. Senteney, 307 Neb. 702, 950 N.W.2d 585 (2020).
During the sentencing hearing, the district court spoke directly to the exclusionary factors
found in § 29-2260(2). The court noted Svoboda’s lengthy prior criminal history. The court also
noted that Svoboda had been given probation for a prior burglary and “[s]quandered it.” The court
found that there was a likelihood that Svoboda would reoffend if placed on probation and that
placing him on probation would depreciate the seriousness of his crimes and promote a disrespect
for the law. The court properly applied the statutory guidelines in denying probation and did not
abuse its discretion in that regard.
Svoboda also argues that the district court abused its discretion by failing to adequately
consider mitigating factors that would have supported more lenient sentences, failing to consider
his rehabilitative needs, and giving improper weight to his prior criminal history. When sentences
imposed within statutory limits are alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion in considering well-established
factors and any applicable legal principles. State v. Greer, 312 Neb. 351, 979 N.W.2d 101 (2022).
When imposing a sentence, a sentencing judge should 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. Id.The sentencing court is not limited to any mathematically applied set of factors, but the
appropriateness of the sentence is necessarily a 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.According to the PSI report, Svoboda, age 52 at the time of his interview with probation,
has a GED. He was unemployed at the time of the interview. He has a lengthy prior criminal
history, including multiple convictions for burglary (two of which were later set aside, resulting in
a plea to a misdemeanor charge), as well as convictions for theft, possession of a controlled
substance, habitual criminal findings, terroristic threats, and other crimes. He has been placed on
probation before, with his most recent probation (for a burglary in 2013) being revoked. Svoboda’s
score on the Level of Service/Case Management Inventory placed him in the overall very high risk
range, and the Simple Screening Instrument indicated a moderate to high risk level for substance
misuse and the need for further evaluation. The Standardized Risk Assessment Report Form for
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substance abuse offenders he completed reflected a high risk for recidivism. He completed a
Mental Health Screen indicating a need for further intervention and mental health support.
The district court’s comments at the sentencing hearing reflected that it had carefully
reviewed the PSI report and considered all of the relevant factors with respect to Svoboda and the
particular circumstances of this case. Based upon this record, we can find no abuse of discretion
by the court in the sentences imposed.
Ineffective Assistance of Counsel.
Svoboda assigns that his counsel was ineffective for failing to ensure that he understood
the plea agreement, failing to clarify the plea agreement on the record based on Svoboda’s
understanding of the agreement, not reviewing the PSI report with him prior to sentencing, not
providing the court with documentation of his efforts at treatment, and not clarifying his criminal
history and convictions that had been set aside. He is represented on direct appeal by different
counsel than trial counsel. 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; otherwise, the issue
will be procedurally barred in a subsequent postconviction proceeding. State v. Warner, 312 Neb.
116, 977 N.W.2d 904 (2022). Once raised, an appellate court will determine whether the record
on appeal is sufficient to review the merits of the ineffective performance claims. State v. Thomas,
311 Neb. 989, 977 N.W.2d 258 (2022).
When a claim of ineffective assistance of counsel is raised in a direct appeal, the appellant
is not required to allege prejudice; however, an appellant must make specific allegations of the
conduct that he or she claims constitutes deficient performance by trial counsel. State v. Figures,
308 Neb. 801, 957 N.W.2d 161 (2021). General allegations that trial counsel performed deficiently
or that trial counsel was ineffective are insufficient to raise an ineffective assistance claim on direct
appeal. State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019). In order to know whether the
record is insufficient to address assertions on direct appeal that trial counsel was ineffective,
appellate counsel must assign and argue deficiency with enough particularity (1) for an appellate
court to make a determination of whether the claim can be decided upon the trial record and (2)
for a district court later reviewing a petition for postconviction relief to be able to recognize
whether the claim was brought before the appellate court. State v. Devers, 306 Neb. 429, 945
N.W.2d 470 (2020). An ineffective assistance of counsel claim made on direct appeal can be found
to be without merit if the record establishes that trial counsel’s performance was not deficient or
that the appellant could not establish prejudice. State v. Kipple, 310 Neb. 654, 968 N.W.2d 613(2022).
Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show
that his or her counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense. State v. Warren, 312 Neb. 991, 982 N.W.2d 207 (2022). In a
plea context, deficiency depends on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).
When a conviction is based upon a plea of no contest, the prejudice requirement for an ineffective
assistance of counsel claim is satisfied if the defendant shows a reasonable probability that but for
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the errors of counsel, the defendant would have insisted on going to trial rather than pleading no
contest. State v. Thomas, supra. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id.First, Svoboda asserts that his trial counsel was ineffective for failing to ensure that he
understood the plea agreement and for failing to clarify the plea agreement on the record based on
Svoboda’s understanding of the agreement. He claims he understood that, in addition to the terms
discussed during the plea hearing, the plea agreement provided for the dismissal of the possession
of a controlled substance charge of the second amended information once he entered pleas to the
charges in the Otoe and Cass County cases. He notes the off-the-record discussion he had with his
trial counsel during the plea hearing, after which his counsel clarified the details of the agreement
with respect to the habitual criminal enhancements. Svoboda argues that he was prejudiced
because his attorney did not clarify on the record Svoboda’s understanding of the agreement with
respect to the possession of a controlled substance charge. He does not state that he told his attorney
of his alleged understanding of the plea agreement with respect to the possession of a controlled
substance charge.
The details of the plea agreement were discussed at length on the record during the plea
hearing. Svoboda was given time to speak privately with his attorney. The terms discussed on the
record do not suggest in any way that dismissal of the possession of a controlled substance charge
in this case was part of the plea agreement. The record reflects that in exchange for Svoboda’s
pleas of no contest to burglary, possession of burglar’s tools, and possession of a controlled
substance in this case, as well as his pleas to possession of a controlled substance charges in Otoe
and Cass Counties, the habitual criminal enhancements would be dropped in this case,
enhancement would not be pursued in the Otoe and Cass County cases, and the State would also
dismiss a county court case from which the possession of a controlled substance charge in this case
originated.
Throughout the plea hearing, Svoboda expressed his intent to enter pleas to all three
charges in this case. He confirmed his understanding of the plea agreement as expressed on the
record, as well as his understanding of the possible penalties for the three charges absent the
habitual criminal enhancements. Following the lengthy discussion of the details of the plea
agreement, Svoboda expressed his intent to enter pleas of no contest to all three charges of the
second amended information; he did so again following the State’s recitation of the factual basis,
after which, the district court accepted his pleas and found him guilty of all three charges. At no
point did Svoboda attempt to withdraw his pleas based on his alleged understanding that the
possession of a controlled substance charge would be dismissed.
Svoboda argues that other than the standard plea colloquy, the district court did not “delve
into the attorney-client relationship.” Brief for appellant at 24. He also notes that he did not
“complain to the Court about his counsel,” and he argues that an evidentiary hearing is required to
resolve this claim of ineffective assistance of counsel. Id. However, the record shows that the
district court discussed Svoboda’s satisfaction with his attorney with him twice during the plea
hearing, and during sentencing, Svoboda expressed that his attorney had been “a really good
lawyer to [him].” The State again asks us to take judicial notice of the record of the plea hearing
in the Otoe County case, which occurred about a week after the plea hearing in this case. We
judicially notice that while Svoboda had a different attorney representing him in Otoe County, at
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the plea hearing in that case he expressed satisfaction with the “global plea agreement, meaning
the plea agreement among the other counties as well” and the work of his attorneys in connection
with it. The record refutes Svoboda’s arguments with respect to the plea agreement. See State v.
Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018) (finding ineffective assistance of counsel claim
refuted by defendant’s statements to court during plea colloquy).
Svoboda also assigns that his trial counsel was ineffective in not reviewing the PSI report
with him prior to sentencing and not providing the court with documentation of his efforts at
treatment. His arguments with respect to these assigned errors are also refuted by the record. At
the sentencing hearing, the district court asked Svoboda and his attorney about the PSI report. In
response, Svoboda’s attorney confirmed he had an opportunity to review the report, and Svoboda
indicated he had an opportunity to speak with his attorney about the contents of the report. Svoboda
and his attorney both denied being aware of any additions, corrections, or deletions that needed to
be made to the report. The fact that Svoboda had been in and needed further treatment for substance
abuse issues was brought to the court’s attention during the sentencing hearing. And, Svoboda’s
need for further evaluation in this area was also reflected in the PSI report. These assignments of
error fail.
Finally, Svoboda assigns that his trial counsel was ineffective in not clarifying his criminal
history and convictions that had been set aside. The PSI report included the fact that Svoboda’s
1988 burglary convictions in Hamilton County were set aside in 2003. At the November 2021
status hearing in this case, the district court was presented with information showing that following
postconviction relief granting a new trial in the 1988 burglary case, Svoboda pled to a
misdemeanor of theft by unlawful taking. At sentencing in this case, the court stated that it had
reviewed the PSI report. Even if the court did not consider the fact of the set aside of the 1988
burglary convictions and subsequent misdemeanor plea, the law invests a trial judge with a wide
discretion as to the sources and types of information used to assist him or her in determining the
sentence to be imposed within statutory limits. See State v. Blaha, 303 Neb. 415, 929 N.W.2d 494(2019) (finding court did not consider improper sentencing factors when it considered facts
underlying certain dismissed charges). We have already determined that the court did not abuse its
discretion in sentencing Svoboda in this case. He has not shown that he was prejudiced by his trial
counsel’s failure to “highlight” in his arguments at sentencing the fact that Svoboda’s 1988
burglary convictions were set aside on postconviction and eventually resolved with a plea to a
lesser charge. This assignment of error fails.
CONCLUSION
The district court did not err in not ordering a drug and alcohol evaluation to be completed
as part of the PSI or in not granting his request for a continuance to enable completion of residential
treatment prior to sentencing. The court did not abuse its discretion in sentencing Svoboda.
Svoboda’s claims of ineffective assistance of trial counsel are refuted by the record. Accordingly,
we affirm Svoboda’s convictions and sentences.
AFFIRMED.
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