State v. Seeley ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. SEELEY
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.
MARTIN SEELEY, APPELLANT.
Filed February 14, 2023. No. A-22-572.
Appeal from the District Court for Box Butte County: TRAVIS P. O’GORMAN, Judge.
Affirmed.
Jerrod Jaeger, of Jaeger Law Office, P.C., L.L.O, for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Martin Seeley appeals his plea-based conviction of possession of fentanyl with the intent
to distribute. He assigns error relating to his plea and the sentence imposed. For the reasons set
forth herein, we affirm.
STATEMENT OF FACTS
In August 2021, Seeley was charged in Box Butte County District Court with possession
of fentanyl with the intent to distribute while knowingly or intentionally possessing a firearm
during the commission of the offense, a Class ID felony; possession of a firearm during the
commission of a felony, a Class II felony; possession of methamphetamine, a Class IV felony;
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possession of money used or intended to be used to facilitate a violation of § 28-416, a Class IV
felony; and possession of drug paraphernalia, an infraction.
On April 26, 2022, the State filed an amended information charging Seeley with possession
of fentanyl with the intent to distribute, a Class II felony. A plea hearing was held on May 11.
During the plea hearing, defense counsel, in outlining the plea agreement, stated that Seeley would
“plead no contest – to a Class II felony of attempted possession with intent [to distribute] of a
controlled substance.” Both the prosecutor and Seeley agreed with defense counsel’s statement.
However, the amended information filed by the State did not charge Seeley with attempted
possession of a controlled substance with the intent to distribute; the amended information charged
Seeley with the Class II felony of possession of fentanyl with the intent to distribute.
During the plea hearing, the following colloquy occurred between the district court and
Seeley:
THE COURT: . . . You are charged with one count, possession of a controlled
substance with intent to distribute, fentanyl. That is a Class II felony. The possible penalty
for that is a minimum one-year imprisonment and a maximum of 50 years. Do you
understand the charge and the possible penalty?
THE DEFENDANT: I do.
After advising Seeley of the charges, the penalties, and his rights, the court asked Seeley
“How do you plead to possession of a controlled substance with intent to distribute, fentanyl, a
Class II felony?” to which Seeley responded, “No contest.” As part of the plea agreement, the State
agreed to stand silent at sentencing.
The State provided a factual basis which set forth that, on July 2, 2021, an officer contacted
Seeley at a hotel. During the investigation, the officer discovered 74 fentanyl pills, cash, and other
paraphernalia indicative of distribution of fentanyl.
At the sentencing hearing, the court stated that it had listened to defense counsel’s remarks
and considered the presentence investigation report. The court stated:
In arriving at your sentence, I’ve considered your age, your mentality, your
education, your experience, your social and cultural background, as well as your past
criminal record.
I don’t see a record in Nebraska. You do have a few thefts and assaults in other
jurisdictions.
[As defense counsel] alluded to, this is a serious offense. You know, you were in a
motel room in Alliance with 72 fentanyl pills, 2 grams of meth, as well as multiple firearms,
and a large amount of cash. The PSI indicates that you’re a high risk to reoffend.
. . . I understand you’re an addict. . . . [B]ut that’s not what you’re being punished
for today. If that’s all you were being punished for . . . I would do everything I can to get
you as much help as I can. But you’ve taken it a step further by dealing.
You know, we’ve got a real problem here right now, especially with fentanyl. I’m
seeing cases where I have defendants come to court; the next thing I know they’re
overdosed and I don’t see them again. I mean, it’s getting that bad.
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And I think anything less than a period of incarceration would depreciate the
seriousness of the offense and promote a disrespect for the law. . . . [Y]our conduct puts
the entire community in grave danger.
The district court sentenced Seeley to 8 to 10 years’ imprisonment with credit for 363 days
previously served. Seeley has timely appealed to this court and is represented by different counsel
than represented him during his plea and sentencing.
ASSIGNMENTS OF ERROR
Seeley’s assignments of error, restated, are that the district court erred in allowing the State
to file an amended information charging him with possession of fentanyl with the intent to
distribute, which he contends was not contemplated by the plea agreement, and committed plain
error in accepting his plea “to a charge not contained in the charging document.” He also contends
that trial counsel was ineffective in failing “to correct errors in the proceedings” and failing “to
object to the acceptance of [Seeley’s] plea” to the offense of possession of fentanyl with the intent
to distribute which he contends was “a charge not contemplated by the plea agreement.” His final
assigned error is that the sentence imposed was excessive.
STANDARD OF REVIEW
When the facts are undisputed, the question of whether there has been a breach of a plea
agreement is a question of law. State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017). When issues
on appeal present questions of law, an appellate court has an obligation to reach an independent
conclusion irrespective of the decision of the court below. State v. Landera, 285 Neb. 243, 826
N.W.2d 570 (2013).
Consideration of plain error occurs at the discretion of an appellate court. State v. Roth,
311 Neb. 1007, 977 N.W.2d 221 (2022). 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 uncorrected, would result in damage to the integrity, reputation,
and fairness of the judicial process. Id.The fact that an ineffective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved on direct appeal; the determining factor is whether the
record is sufficient to adequately review the question. State v. Blake, 310 Neb. 769, 969 N.W.2d
399 (2022). The record is sufficient to resolve on direct appeal a claim of ineffective assistance of
counsel if the record affirmatively proves or rebuts either deficiency or prejudice with respect to
the defendant’s claims. 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. Morton, 310 Neb. 355, 966 N.W.2d 57(2021).
ANALYSIS
ALLEGED ERROR REGARDING CHARGED OFFENSE
Seeley first contends that the district court erred in allowing the State to file an amended
information charging him with possession of fentanyl with the intent to distribute which he
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contends was not contemplated by, or in breach of, the plea agreement. He also contends that the
district court committed plain error in accepting his plea “to a charge not contained in the charging
document.”
We first address Seeley’s claim that the amended information filed by the State constituted
a breach of the parties’ plea agreement. He claims that defense counsel stated during the plea
hearing that Seeley would plead to an amended charge of attempted possession of a controlled
substance with the intent to deliver, a Class II felony. However, the amended information, which
was filed weeks prior to the plea hearing, actually charged Seeley with possession of fentanyl with
the intent to distribute, a Class II felony. Seeley now argues that he should be allowed to withdraw
his plea.
However, the Nebraska Supreme Court has held that if the defendant remains silent upon
the breach of a plea agreement, he or she can neither move to withdraw the plea nor seek specific
performance of the agreement. See State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581(2003). Thus, Seeley has waived his right to assert as error on appeal any purported breach of the
plea agreement by the State. See State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020) (where
no objection was made to sentencing judge for plea bargain violation, defendant has waived the
error and it has not been preserved for appellate review).
Further, we reject Seeley’s claim that the district court committed plain error in accepting
his plea “to a charge not contained in the charging document.” The amended information clearly
charged Seeley with possession of fentanyl with the intent to distribute. And, during the plea
hearing, the district court advised Seeley that he was charged with possession of fentanyl with the
intent to distribute which Seeley indicated that he understood. The court further asked Seeley how
he wanted to plead to the offense of possession fentanyl with the intent to distribute to which
Seeley responded, “No contest.” Because a written plea agreement is not part of the record, it is
unclear whether the plea agreement differed from the charge in the amended information to which
Seeley pled. In order to constitute plain error, the alleged error must be plainly evident from the
record. State v. Roth, 311 Neb. 1007, 977 N.W.2d 221 (2022). Because Seeley pled to the charge
contained in the amended complaint and it is unclear whether defense counsel simply misspoke in
reciting the terms of the plea, we find no plain error on this record.
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Seeley’s next assignment of error that his trial counsel was ineffective in failing “to correct
errors in the proceedings” and failing “to object to the acceptance of [Seeley’s] plea” to the offense
of possession of fentanyl with the intent to distribute which he contends was “a charge not
contemplated by the plea agreement.”
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. John, 310 Neb. 958, 969 N.W.2d 894 (2022). To show that counsel’s
performance was deficient, the defendant must show counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law in the area. Id. To show prejudice under
the prejudice component of the Strickland test, the defendant must demonstrate a reasonable
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probability that but for his or her counsel’s deficient performance, the result of the proceeding
would have been different. Id.Here, the record affirmatively establishes that Seeley pled to the offense charged in the
amended information after having confirmed to the district court that he understood that he was
charged with, and was pleading no contest to, possession of fentanyl with the intent to distribute.
Accordingly, Seeley cannot establish prejudice from counsel’s alleged deficient performance and
this assigned error fails.
EXCESSIVE SENTENCE
Seeley’s final assignment of error is that the sentence imposed was excessive. Specifically,
he contends that the district court failed to appropriately balance the relevant sentencing factors.
He also claims that “because of the discrepancy in charges, the sentencing court treated [Seeley]
as having committed the crime, instead of attempting to commit the crime, which prejudiced
[Seeley] at sentencing.” Brief for appellant at 15.
Having found, earlier in this opinion, that Seeley was properly charged with possession of
possession of fentanyl with the intent to distribute and pled no contest to that charge, we reject
Seeley’s claim that he should have been sentenced for the lesser charge of attempted possession
of fentanyl with the intent to distribute.
Seeley was convicted of a Class II felony. His sentence of 8 to 10 years’ imprisonment is
within the statutory sentencing range for Class II felonies which are punishable by a minimum of
1 year and a maximum of 50 years’ imprisonment. See Neb. Rev. Stat. § 28-105 (Cum. Supp.
2020). Further, Seeley received a substantial benefit from his plea agreement in which three
felonies and an infraction were dismissed.
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. Morton, 310 Neb. 355, 966
N.W.2d 57 (2021). The relevant factors for a sentencing judge to consider when imposing a
sentence are 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.According to the presentence investigation report, Seeley was 32 years old, single, had one
dependent, and had earned his GED. Seeley’s criminal history included convictions for disorderly
conduct and third degree assault. The level of service/case management inventory assessed Seeley
as a high risk to reoffend. Seeley’s self-report to the probation officer indicated that, as a child, he
experienced physical assaults, emotional abuse, and neglect. Seeley also reported that he had
anxiety, depression, and mood swings. Seeley’s mother reported, in a letter to the court, that Seeley
had been diagnosed with AD/HD and bipolar disorder. Further, Seeley admitted to having a drug
problem including past use of marijuana, alcohol, THC wax, mushrooms, ecstasy, molly, cocaine,
LSD, K-2, heroin, and fentanyl and admitted that he currently uses methamphetamine on a daily
basis. Seeley acknowledged that his substance abuse had caused him legal issues, issues with his
relationships and family members, issues with work, and mental health concerns. Seeley also
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acknowledged, in his written statement to the court, that he desired a second chance in order to
turn his life around and be the father that his “little girl deserves.”
Despite Seeley’s acknowledgement of his mistakes, his mental health and addiction
challenges, and his limited criminal history, we find that, based on factors including that the
sentence imposed is at the low end of the statutory sentencing range, the benefit from the plea
agreement, and Seeley’s high risk to reoffend, the sentence imposed was not an abuse of discretion.
This assignment of error fails.
CONCLUSION
Having considered and rejected Seeley’s assigned errors, we affirm his conviction and
sentence.
AFFIRMED.
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