State v. Charles ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. CHARLES
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.
BRANDON J. CHARLES, APPELLANT.
Filed November 5, 2019. No. A-19-011.
Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed.
Nathan S. Lab, of McGough Law, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
PIRTLE, Judge.
INTRODUCTION
Brandon J. Charles appeals his plea-based convictions and sentences in the Douglas County
District Court for robbery and use of a deadly weapon to commit a felony. He claims that the
district court erred in failing to advise him a guilty plea would waive his right to appeal an earlier
suppression motion, that his sentences are excessive, and that his trial counsel provided ineffective
assistance. Based on the reasons that follow, we affirm Charles’ convictions and sentences.
BACKGROUND
In December 2017, Charles was charged with two counts of robbery and two counts of use
of a deadly weapon (firearm) to commit a felony. Following the denial of Charles’ motion to
suppress, the State agreed to dismiss one count of robbery and one count of use of a deadly weapon
to commit a felony in exchange for Charles’ pleas to the remaining two charges. Based on the
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pleas, the Sarpy County Attorney’s Office also agreed not to pursue charges related to another
robbery for which Charles was a suspect.
At the plea hearing, the State provided the following factual basis for the charges:
[O]n October 31, 2017, officers received a call for a robbery at Walgreen’s located at 9001
Blondo Street here in Omaha, Douglas County. They were advised at that time that, based
on a prior robbery of October 13 of 2017, pharmacists and store employees at Walgreen’s
put a GPS tracking device inside the items that were taken. The defendant as well as the
co-defendant entered the store, both armed with firearms, demanded cash and Percocet
pills. This defendant went to the cashiers while the co-defendant went to the pharmacy
area. They left with an undisclosed amount of cash as well as Percocet pills. Inside those
was a GPS tracker that led officers to 3445 North 103rd Plaza, where they made contact
with the defendant as well as the co-defendant in a vehicle in that parking lot. Inside the
vehicle were cash as well as the pills that were taken from Walgreen’s. The defendant was
then Mirandized. There was an unsolicited statement where he acknowledged he did the
Walgreen’s robbery. Those events occurred in Omaha, Douglas County.
Prior to accepting Charles’ plea, the trial court informed him of the rights he would be giving up
if his pleas were accepted, and the possible sentences that could be imposed. The trial court found
beyond a reasonable doubt that Charles understood the nature of the charges against him; the
possible sentences that could be imposed; that his pleas were made freely, intelligently,
voluntarily, and understandingly; and that there was a factual basis to support the guilty plea. The
trial court found Charles guilty of one count of robbery and one count of use of a deadly weapon
to commit a felony and ordered a presentence investigation.
A sentencing hearing took place on December 13, 2018, and the court sentenced Charles
to 15 to 25 years’ imprisonment on the charge of robbery and 15 to 20 years’ imprisonment on the
charge of use of a deadly weapon to commit a felony, with the sentences to run consecutively. The
court gave Charles 409 days’ credit for time served.
ASSIGNMENTS OF ERROR
Charles assigns that (1) the trial court erred in failing to advise him that by pleading guilty,
he would waive his right to appeal the court’s denial of his suppression motion; (2) the trial court
abused its discretion in sentencing him to an excessive sentence; and (3) he was prejudiced by the
ineffective assistance of trial counsel.
STANDARD OF REVIEW
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. Lane, 299 Neb. 170,
907 N.W.2d 737 (2018).
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019). A
judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable,
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unfairly depriving a litigant of a substantial right and denying just results in matters submitted for
disposition. Id.
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018). 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
prejudiced by counsel’s alleged deficient performance. Id.
ANALYSIS
WITHDRAWAL OF PLEA
Charles first argues that he should be able to withdraw his prior pleas of guilty and that his
current convictions and sentences should be vacated. Charles contends that the district court was
required, and failed, to “advise [him] that by entering a guilty plea he would give up the right to
challenge the admissibility of the State’s evidence[.]” Brief for appellant at 10. Charles claims that
had he been made aware that a guilty plea would waive his right to challenge the district court’s
ruling on his previous suppression motion, he would have proceeded to trial. In essence, Charles
argues that his plea was not made freely, intelligently, voluntarily, and understandingly. We
disagree.
In State v. Manjikian, supra, the defendant argued that the plea agreement he entered into
with the State was not entered into freely, intelligently, voluntarily, and understandingly. Like
Charles, the defendant argued that “the district court failed to advise him that by entering into the
plea agreement, he waived his right to appeal any adverse decisions had he filed pretrial motions
or proceeded to trial.” Id. at 106, 927 N.W.2d at 56. In Manjikian, however, the Nebraska Supreme
Court reiterated that
[u]nder our holding in State v. Lane, to support a finding that a defendant has entered a
guilty plea freely, intelligently, voluntarily, and understandingly, a court must inform a
defendant about (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. The record must also establish a factual basis for the
plea and that the defendant knew the range of penalties for the crime charged.
Id. (citing State v. Lane, 299 Neb. 170, 907 N.W.2d 737 (2018)). Notably, the Supreme Court
specifically declined to extend its ruling and adopt the American Bar Association’s Standard
14-1.4(a)(vi), “requiring the court to advise the defendant that ‘by pleading guilty the defendant
generally waives the right to appeal, except the right to appeal a motion that has been made, ruled
upon and expressly reserved for appeal and the right to appeal an illegal or unauthorized
sentence.’” Id. at 107, 927 N.W.2d at 56 (citing ABA Standards for Criminal Justice, Pleas of
Guilty, Standard 14-1.4(a)(vi) at 36 (3d ed. 1999)).
In this case, Charles does not argue that the trial court failed to inform him about any of
his rights required under State v. Lane, supra, and reaffirmed in State v. Manjikian, 303 Neb. 100,
927 N.W.2d 48 (2019). Regardless, the record clearly establishes that the trial court advised
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Charles of all of the requirements to support a finding that his plea of guilty was entered into freely,
intelligently, voluntarily, and understandingly. Because the court met the requirements established
by the Supreme Court and was not required to inform Charles that his guilty plea waived his right
to appeal the denial of his earlier suppression motion, this argument fails.
EXCESSIVE SENTENCES
Charles next argues that the trial court imposed excessive sentences. We find that that the
trial court did not abuse its discretion in sentencing Charles.
Under Neb. Rev. Stat. § 28-324(2) (Reissue 2016), robbery is classified as a Class II felony.
A Class II felony, under Neb. Rev. Stat. § 28-105(1) (Reissue 2016), is punishable by
imprisonment for a minimum of 1 year and a maximum of 50 years. The trial court sentenced
Charles to 15 to 25 years’ imprisonment on the charge of robbery.
Under Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016), use of a deadly weapon (firearm)
to commit a felony is a Class IC felony. A Class IC felony, under § 28-105(1), is punishable by
imprisonment for a minimum of 5 years and a maximum of 50 years. The trial court sentenced
Charles to 15 to 20 years’ imprisonment on the charge of use of a deadly weapon (firearm) to
commit a felony. Furthermore, under § 28-1205(3), a sentence for the crime of use of a deadly
weapon to commit a felony must run consecutively to any other sentence imposed.
Charles’ sentences clearly were within the statutory limits. Where a sentence imposed
within the statutory limits is alleged on appeal to be excessive, the appellate court must determine
whether a 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. State v. Smith,
302 Neb. 154, 922 N.W.2d 444 (2019) (citing State v. Mueller, 301 Neb. 778, 920 N.W.2d 424
(2018)). In determining a sentence to be imposed, relevant factors customarily considered and
applied 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. The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life. Id.
Charles argues that the “entirety of the District Court’s reasoning for the sentence imposed
consists of one paragraph[.]” Brief for appellant at 12. We disagree. After accepting his pleas of
guilty, the trial court ordered a presentence investigation and scheduled the sentencing hearing for
several weeks later. At the sentencing hearing, Charles’ trial counsel was given the opportunity to
speak, at length, to Charles’ young age; his history of drug abuse, need for treatment, and how it
relates to the charges; the trauma experienced from witnessing his cousin be shot in the head at a
young age; his ongoing mental health issues; his statement in the presentence investigation
indicating his remorse and desire to seek treatment; and his desire to have the opportunity to be
involved in his two children’s lives and be a productive member of society. The court also provided
Charles the opportunity to speak on his own behalf, during which he apologized for the crimes and
argued that he received ineffective counsel throughout the case. After hearing from Charles, his
attorney, and the State, the court noted:
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Well, Mr. Charles, in preparing for this sentencing, of course, I reviewed the Presentence
Investigation and I considered your law-abiding conduct in the past, as well as your record.
And your record, unfortunately, is extensive. You scored a 29 on the LSCMI, which is
virtually the highest score possible. Because the crimes that you were convicted of, you’re
not eligible for probation. And, in fact, there were two robberies on two different occasions
and two uses of a deadly weapon. Now, that is not what the conviction is and that’s not
what you’re getting sentenced on. But those were the charges the State brought against
you, and that’s what all occurred in a very short period of time right around August -- or,
I’m sorry, October of 2017. I don’t find you to be an appropriate candidate for probation.
I’m going to find on the charge of robbery, I’m going to sentence you to 15 to 25 years in
the Nebraska Department of Correctional Services. And on use of a deadly weapon to
commit a felony, I’m sentencing you to 15 to 20 years.
In addition to providing the opportunity for all the parties to speak at the sentencing hearing,
including Charles himself, the court indicated it had considered the presentence investigation,
particularly Charles’ extensive record and high score on the Level of Service/Case Management
Inventory (LS/CMI), which is used “to determine the degree of risk that the offender presents to
the community and the risk to recidivate.” The court also considered the fact that two separate
robberies had occurred within a short timeframe and both involved use of a deadly weapon, while
acknowledging that was not what Charles ultimately was being sentenced on pursuant to the plea
agreement.
We note that the court sentenced Charles near the middle of the statutory range on both
charges. The record does not indicate that the court considered any improper factors, and we find
that the trial court did not abuse its discretion in imposing a sentence of 15 to 25 years’
imprisonment for the charge of robbery and 15 to 20 years’ imprisonment on the charge of use of
a deadly weapon to commit a felony.
INEFFECTIVE ASSISTANCE OF COUNSEL
Charles also contends that he received ineffective assistance of trial counsel. However, the
State argues, and we agree, that Charles’ assigned error did not allege deficient performance with
sufficient specificity to be considered on appeal. Earlier this year, the Supreme Court held in State
v. Mrza, 302 Neb. 931, 935, 926 N.W.2d 79, 86 (2019):
We have held that when raising an ineffective assistance claim on direct appeal, an
appellant must make specific allegations of the conduct that he or she claims constitutes
deficient performance by trial counsel. And we have long held that an alleged error must
be both specifically assigned and specifically argued in the brief of the party asserting the
error to be considered by an appellate court. It follows that we should not have to scour the
argument section of an appellant’s brief to extract specific allegations of deficient
performance. We now hold that assignments of error on direct appeal regarding ineffective
assistance of trial counsel must specifically allege deficient performance, and an appellate
court will not scour the remainder of the brief in search of such specificity.
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Charles, in his brief, generally assigned that he “was prejudiced by the ineffective assistance of
counsel.” Brief for appellant at 4. Nowhere in this assignment of error does Charles allege with
specificity the conduct of trial counsel alleged to be deficient. Notably, State v. Mrza, supra, was
released on April 19, 2019. Charles filed his brief on May 17, 2019, nearly a month after the
Supreme Court released its opinion in Mrza. Therefore, we find that Charles has not properly
assigned his ineffective assistance of trial counsel claim, and we do not consider its merits on this
appeal.
CONCLUSION
We find that Charles’ plea of guilty was entered into freely, intelligently, voluntarily, and
understandingly and with a sufficient factual basis, and that his sentences were not excessive. We
also find that Charles has not sufficiently assigned as error his claim of ineffective assistance of
trial counsel. Accordingly, Charles’ convictions and sentences are affirmed.
AFFIRMED.
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