State v. Williams ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. WILLIAMS
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.
JAVONTE L. WILLIAMS, APPELLANT.
Filed July 9, 2019. No. A-18-349.
Appeal from the District Court for Douglas County: HORACIO J. WHEELOCK, Judge.
Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Lori A. Hoetger for appellant.
Douglas J. Peterson, Attorney General, and, on brief, Sarah E. Marfisi for appellee.
MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.
BISHOP, Judge.
I. INTRODUCTION
The Douglas County District Court accepted Javonte L. Williams’ pleas of no contest to
one count of robbery and one count of attempted use of a deadly weapon (firearm) to commit a
felony. Williams was sentenced to 15 to 20 years’ imprisonment on each count, with the sentences
to run concurrently. On appeal, Williams challenges the entry of his pleas, the denial of his motion
to continue sentencing, the excessiveness of his sentences, and the effectiveness of his trial
counsel. We affirm.
II. BACKGROUND
In April 2016, the State filed an information charging Williams with one count of robbery
and one count of use of a deadly weapon (firearm) to commit a felony. Following several
continuances, the district court scheduled the jury trial to begin on January 8, 2018. At a hearing
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on January 5, the State sought leave to file an amended information, charging Williams with one
count of robbery and one count of attempted use of a deadly weapon to commit a felony. Williams
waived his rights to have the amended information read to him in its entirety and to have it served
upon him with due notice; leave was granted to file the amended information. Williams entered
pleas of no contest to each count of the amended information. The State offered the following
factual basis for events it alleged occurred on or about January 19, 2016:
[A] lone black male walked into [a pharmacy store] at 90th and Dodge Street,
unzipped his Carhartt coat, and pulled out an AR-15 style long rifle and pointed it directly
at the employee’s chest demanding money. The suspect was given $158 and fled the scene.
Witnesses saw the suspect running. A witness observed a male fitting the
description run across Dodge Street and fall in the snow. He saw the weapon at that time
as well. Another witness saw the suspect run nearby [a bank] through the parking lot.
Video surveillance captured the suspect walking towards Dodge Street and running
away from Dodge Street back towards the apartment at precise times in question.
A Crime Stopper’s tip was received directing law enforcement’s attention towards
[Williams]. Through investigation, information was gained substantiating the Crime
Stopper’s tip. A search warrant was signed.
When law enforcement executed the search warrant, law enforcement found the
scarf in question [a witness described a dark or gray scarf over the suspect’s face] along
with . . . a live round in the drawer with [Williams’] ID and other items of venue. And in
the vehicle known to be driven by [Williams] in the trunk was located the brown Carhartt
jacket in question, an AR-15 style rifle . . . with 14 live rounds in the magazine.
DNA testing was done, and [Williams] was not excluded as a contributor.
Probability of a random individual matching a partial DNA profile found within the major
fraction of the mixture given that [Williams] expresses such a profile is 1 in 2600 . . .
African Americans.
The district court found there was a factual basis for the pleas and that Williams understood
the charges and possible penalties as well as his “trial rights,” which rights the district court found
Williams knowingly, intelligently, and voluntarily waived. The district court found Williams
entered his pleas knowingly, intelligently, and voluntarily. Accordingly, the district court accepted
Williams’ pleas of no contest to each count and found Williams guilty of both counts. The district
court ordered a presentence investigation report (PSR) and set the sentencing hearing for March
13, 2018.
At the outset of the sentencing hearing, Williams’ counsel moved to continue the
sentencing so that Williams could be interviewed for the PSR since Williams had failed to appear
for his scheduled interview; relevant portions of the argument on this motion are set forth below.
The district court denied the motion, and the sentencing hearing proceeded. The district court
sentenced Williams to 15 to 20 years’ imprisonment on each count, to run concurrently, with credit
for 107 days served.
Williams appeals.
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III. ASSIGNMENTS OF ERROR
Williams claims, restated and reordered, that (1) his pleas were not entered in a knowing,
voluntary, and intelligent manner; (2) the district court abused its discretion when it denied his
motion to continue sentencing because the presentence investigation was incomplete; (3) the
district court abused its discretion by imposing excessive sentences; and (4) Williams received
ineffective assistance of trial counsel in several ways.
IV. STANDARD OF REVIEW
A trial court is afforded discretion in deciding whether to accept guilty pleas, and an
appellate court will reverse the trial court’s determination only in case of an abuse of discretion.
State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).
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. Baxter, 295
Neb. 496, 888 N.W.2d 726 (2017).
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (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.
V. ANALYSIS
1. ENTRY OF PLEAS
Williams claims his no contest pleas were not entered knowingly, intelligently, or
voluntarily. A plea of no contest is equivalent to a plea of guilty. State v. Wilkinson, supra. To
support a finding that a defendant has entered a guilty plea freely, intelligently, voluntarily, and
understandingly, a court must inform a 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 penalties for the crime charged. Id.
Williams argues that he did not “fully understand” the nature of the charges and his
constitutional rights or the questions of the court to him because he “actually was under the
influence of marijuana.” Brief for appellant at 9. He claims he only entered his pleas because his
trial counsel “urged” him to do so due to his financial situation and told him that Williams “could
not afford the expense of a jury trial.” Id. at 9-10.
Nothing in the record of the hearing in January 2018 suggests Williams was under the
influence of marijuana. There is no evidence of the same, nor is there evidence of what advice his
trial counsel may have given him. To the contrary, the record of the hearing shows Williams
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provided responses to the district court’s questioning in an appropriate manner. Notably, the
district court asked Williams whether he was “currently under the influence of any kind of alcohol,
medicine, or drug” that was “in the least way interfering with [his] ability to think clearly and
understand exactly what [he was] doing in answering [the court’s questions].” Williams responded,
“No, sir.” Further, Williams indicated that he understood he was waiving, as phrased by the court,
his “right to an attorney at all stages of the proceedings, and if [he could not] afford to pay an
attorney, one would be appointed to represent [him].” Williams answered that he had enough time
to speak with his counsel about his case, had told him everything he knew about his case, and was
satisfied with the work his counsel had done for him. When asked, Williams did not report being
threatened to plead no contest.
As Williams concedes, the “district court properly advised [him] of the nature of the
charges and of his constitutional rights and questioned [him] regarding the voluntary nature of his
pleas.” Brief for appellant at 9. The district court told Williams each count charged against him
under the amended information, along with the range of penalties for each count. Williams
indicated he understood. The district court asked whether Williams believed he understood the
charges. Williams answered, “Yes, sir.” The district court informed Williams of the evidence that
the State would have to prove beyond a reasonable doubt to find him guilty of each count; Williams
indicated he understood. Williams understood that he had the right to plead not guilty to every
charge filed against him. Williams indicated he understood his constitutional right to assistance of
counsel, to confront witnesses against him, and to a public jury trial, and indicated he understood
his privilege against self-incrimination, all of which the court explained to Williams sufficiently.
Williams answered he understood, as stated by the court, that if he pled no contest, he would be
found guilty of the offense without a trial and would have given up all the rights “except the right
to have an attorney with [him].” The court also advised Williams of his right to file a motion to
suppress, asking whether he understood that by pleading no contest he would waive the right to
have a motion to suppress be heard before the court regarding the case. Williams responded
affirmatively.
The State’s factual basis was undisputed, and Williams does not take issue with the factual
basis on appeal for this claim. The record shows that Williams entered his pleas of no contest
freely, intelligently, voluntarily, and understandingly. The district court did not abuse its discretion
in accepting them.
2. MOTION TO CONTINUE SENTENCING
Williams claims the district court abused its discretion in denying his motion to continue
sentencing “to allow sufficient time” for the probation office to “complete” the PSR. Brief for
appellant at 11. It is not disputed that Williams failed to appear for his scheduled interview with
the probation office on February 23, 2018. During the sentencing hearing, Williams’ trial counsel
asserted that Williams was sick on February 23 and that Williams “called [the probation office] on
a Monday” and asked to reschedule for that reason. He alleged Williams was told, in part, to have
his counsel file a motion to continue sentencing so the probation office could interview him.
Williams’ trial counsel complained the PSR was “nothing more than a recitation of [Williams’]
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criminal record.” He said Williams had been in custody for 107 days, and then was “out” for “over
a year or so,” and had made “every single court appearance.”
Where the criminal defendant’s motion for continuance is based upon the occurrence or
nonoccurrence of events within the defendant’s own control, denial of such a motion is not an
abuse of discretion. See State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017) (denial of motion
to continue sentencing upheld; delay in completion of substance abuse evaluation for inclusion in
presentence investigation report was due to events in defendant’s own control when she failed to
appear for three scheduled appointments and, about 3 weeks before sentencing, finally appeared
for appointment and was referred for evaluation).
In this case, the PSR included a copy of a letter addressed to Williams giving him notice
of the date and time of his PSR interview: Friday, February 23, 2018, at 2 p.m. The letter advised
that it was “very important that you keep this appointment and that you are not late for the
appointment.” It warned, “If you fail to keep this appointment or are late in arriving, it will not be
possible to schedule another appointment for you prior to your [c]ourt sentencing date.” The PSR
shows that the letter was mailed to Williams on February 6. Williams does not dispute that he was
so notified. The PSR indicates that Williams “did not call” on February 23 (Friday) to explain his
absence after failing to report for his PSR interview scheduled that day. Rather, on February 26
(Monday), Williams called the probation officer and explained he was aware he missed his
appointment, “stating that he was ill with sinusitis and slept all day,” and indicating that while
aware that the letter said the appointment could not be rescheduled “he was hopeful that [the
probation officer] could meet with him.” The probation officer told Williams his interview could
not be rescheduled because of other report due dates and interviews scheduled.
The PSR also shows that Williams had an active warrant issued on February 28, 2018, in
Sarpy County for failing to appear; this was related to other charges filed in that county for driving
under suspension, no proof of insurance, and possession of marijuana less than one ounce. In his
argument on the motion to continue sentencing, Williams’ trial counsel mentioned learning about
“marijuana charges” and “this warrant” the day before the sentencing hearing. He indicated the
warrant was still active at that time. The State submitted to the court on the matter of the
continuance.
Williams was aware of the importance of appearing for his interview on February 23, 2018,
and was advised that if he failed to keep the appointment, it would not be possible to schedule
another appointment prior to his scheduled sentencing date. Despite being told this, Williams failed
to show. He also failed to contact the probation office until after the fact, waiting until the
following Monday to make contact. Although Williams claimed to have been sick with “sinusitis
and slept all day,” there is no reasonable explanation for why he could not have contacted the
probation office on February 23. Casting more doubt on Williams’ excuse for missing the February
23 appointment is the fact that he also failed to make an appearance in Sarpy County on February
28 on other pending charges against him, resulting in the issuance of a bench warrant for his arrest.
We conclude the district court did not abuse its discretion in denying Williams’ motion to continue
sentencing when the record shows the nonoccurrence of his PSR interview stemmed from events
within Williams’ own control. See State v. Baxter, supra.
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3. EXCESSIVE SENTENCES
Williams claims his sentences are excessive. He was convicted of robbery under Neb. Rev.
Stat. § 28-324(1) (Reissue 2008) and of attempted use of a deadly weapon to commit a felony
under Neb. Rev. Stat. § 28-1205(1)(a) (Cum. Supp. 2014) and Neb. Rev. Stat. § 28-201(1) (Supp.
2015). Both convictions are Class II felonies. See §§ 28-324(2), 28-1205(1)(c), and 28-201(4)(a).
A Class II felony is punishable by 1 to 50 years’ imprisonment. See Neb. Rev. Stat. § 28-105(1)
(Supp. 2015). Williams was sentenced to 15 to 20 years’ imprisonment for each of his convictions,
with the sentences to run concurrently. He was given credit for 107 days served. His sentences are
within the statutory range.
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. Leahy, 301 Neb. 228, 917 N.W.2d 895 (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.
The PSR shows that Williams was 24 years old at the time of his sentencing. He had never
married, had two dependents, had completed high school in 2012, was employed, and had a
religious affiliation. The PSR describes the circumstances of the offenses and includes abundant
information related to law enforcement’s investigation of the incident. The PSR shows that
Williams had juvenile convictions for shoplifting (two counts), disorderly conduct, and possession
of marijuana. His criminal convictions as an adult include failure to appear (five counts) and theft
by unlawful taking. After the offenses underlying the present case, Williams was charged with the
three offenses mentioned previously (disposition unknown), including possession of marijuana.
During the sentencing hearing, Williams personally said he was “really sorry for everything
that happened” and planned to use the time in prison to “better” himself. Once he got “back out,”
he could do “better” in terms of “chasing” his career and “goal.” His counsel asked for a sentence
of “one to three or one to four” on Williams’ conviction of robbery and for a sentence of “five and
five” on Williams’ conviction of attempted use of a deadly weapon to commit a felony. The State
reiterated that Williams “entered a business armed with a rifle, ultimately . . . he only obtained
$158, but the cost could have been more significant,” and said it believed a period of incarceration
was warranted.
The district court then addressed Williams, speaking about the incidents underlying
Williams’ convictions. It noted that Williams walked into the pharmacy store and while the
employee was at the counter, Williams “decided to pull out the firearm, your AR-15 style firearm
and you put it in [the employee’s] face and then you proceeded to rob [the employee].” The district
court said the employee “never expected” that would happen that day and would never forget. The
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district court pointed out that in imposing the sentence, it considered Williams’ age, mentality,
education and experience, social and cultural background, past criminal record, motivation for the
offense, nature of the offense, and level of violence involved in the offense. The district court
found that Williams was not an appropriate candidate for probation.
On appeal, Williams claims the district court focused solely on the offense itself and the
impact on the store’s employee. He argues that the district court failed to consider his age (alleging
lack of maturity at time of offense), experiences (asserting employment and apprenticeship
obtained following incident, and his support of his two children), and “very minimal” criminal
record. Brief for appellant at 20. He says the court could not consider those circumstances as the
PSR did not include a full discussion of his life and history.
The PSR was less developed than it could have been due to Williams’ own inaction, as
discussed previously. At sentencing, the district court asked if Williams’ trial counsel had anything
to add or edit to the PSR other than allocution. Williams’ trial counsel had no additions or edits to
provide. Williams’ trial counsel and Williams each spoke to the court during sentencing, but
neither talked about the matters of Williams’ life that Williams now claims should have been
considered. But the PSR shows the court was informed of his age and criminal record. The PSR
also indicates that Williams had some education and was employed at the time of sentencing.
Further, there is nothing in the record to suggest the court considered anything inappropriate. The
court emphasized the nature of the offenses and amount of violence involved in the commission
of the offenses, but also specifically stated it considered other relevant factors to determine the
sentences. The district court did not abuse its discretion in imposing Williams’ sentences.
4. INEFFECTIVE ASSISTANCE OF COUNSEL
Williams claims his trial counsel was ineffective. He has different counsel for this direct
appeal. 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 in order to preserve such claim. State v.
Spang, 302 Neb. 285, 923 N.W.2d 59 (2019). Once raised, the appellate court will determine
whether the record on appeal is sufficient to review the merits of the ineffective performance
claims. Id. 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. See id.
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 has the burden to show that
his or her counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense. State v. Spang, supra. 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. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018). The prejudice requirement
in a plea context is satisfied if the defendant shows a “reasonable probability” that but for the errors
of counsel, the defendant would have insisted on going to trial rather than pleading guilty. Id.
General allegations that trial counsel performed deficiently or that trial counsel was
ineffective are insufficient to raise an ineffective assistance claim on direct appeal and thereby
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preserve the issue for later review. State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015). By
definition, a claim insufficiently stated is no different than a claim not stated at all. State v.
Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014). Therefore, if insufficiently stated, an assignment
of error and accompanying argument will not prevent the procedural bar accompanying the failure
to raise all known or apparent claims of ineffective assistance of trial counsel. Id.
With those governing principles in mind, we turn to each of Williams’ allegations of
ineffective assistance of trial counsel.
(a) Notice of Alibi Witness
Williams asserts his trial counsel was ineffective for failing to investigate, seek a deposition
of, or provide the State notice of an alibi witness as required by Neb. Rev. Stat. § 29-1927 (Reissue
2016). He allegedly informed his trial counsel that his “girlfriend at the time could provide an alibi
for his location at the time of the incident.” Brief for appellant at 14.
On May 26, 2017, Williams’ trial counsel filed a “Notice of Alibi Witness,” providing that
pursuant to § 29-1927 he would “present evidence of an alibi through the testimony” of a named
witness. An attachment to the PSR of a law enforcement investigation report from March 9, 2016,
suggests the witness named in the notice of alibi filing was Williams’ girlfriend at that time. The
record supports that, at least initially, Williams’ former girlfriend was expected to testify as an
alibi witness for the scheduled jury trial. There is nothing in the record to indicate whether any
further investigation was conducted with regard to the girlfriend’s alibi, or whether a strategic
decision was made not to call her. We note that Williams does not specify what his girlfriend
would claim with regard to his whereabouts at the time of the robbery, and this falls close to being
insufficiently pled to preserve a claim of ineffective assistance of trial counsel. Nevertheless, given
the State’s assertion in its brief that the record on direct appeal in insufficient to review this claim,
we conclude the same in this instance.
(b) Motion to Suppress
Williams asserts that his trial counsel was ineffective for failing to file a motion to suppress
the evidence, namely “a tan Carhartt-type jacket and an AR-15, both of the type witnesses
described from the robbery,” obtained as a result of the search warrant ordered February 16, 2016.
Brief for appellant at 14. He asserts that the affidavit for the search warrant “largely relied” on an
anonymous Crime Stoppers’ tip. Brief for appellant at 15. Williams alleges that the affidavit “only
asserted that investigators discovered [he] lived in an apartment complex located in the general
direction the suspect was seen fleeing after the robbery and they believed from listening to
recorded jail phone calls that Williams was in possession of a gun.” Id. He argues that it was
unclear whether law enforcement’s independent investigation corroborated the tip. We conclude
the record fully refutes this assertion.
The Fourth Amendment to the U.S. Constitution guarantees “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and seizures
. . .” and further provides that “no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the persons or things
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to be seized.” The Nebraska Constitution provides similar protection. State v. Hidalgo, 296 Neb.
912, 896 N.W.2d 148 (2017).
A search warrant, to be valid, must be supported by an affidavit which establishes probable
cause. See id. Probable cause sufficient to justify issuance of a search warrant means a fair
probability that contraband or evidence of a crime will be found. State v. Hidalgo, supra. In
reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a
search warrant, an appellate court applies a “totality of the circumstances” test. Id. at 917, 896
N.W.2d at 153. The question is whether, under the totality of the circumstances illustrated by the
affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established
probable cause. State v. Hidalgo, supra. In evaluating the sufficiency of an affidavit used to obtain
a search warrant, an appellate court is restricted to consideration of the information and
circumstances contained within the four corners of the affidavit, and evidence which emerges after
the warrant is issued has no bearing on whether the warrant was validly issued. Id.
When a search warrant is obtained on the strength of an informant’s information, the
affidavit in support of the issuance of the warrant must (1) set forth facts demonstrating the basis
of the informant’s knowledge of criminal activity and (2) establish the informant’s credibility, or
the informant’s credibility must be established in the affidavit through a police officer’s
independent investigation. Id. These two prongs are not accorded “independent status,” but, rather,
are better understood as relevant considerations in the totality-of-the-circumstances analysis that
traditionally has guided probable-cause determinations: a deficiency in one may be compensated
for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some
other indicia of reliability. Id. at 918, 896 N.W.2d at 153.
Among the ways in which the reliability of an informant may be established are by showing
in the affidavit to obtain a search warrant that (1) the informant has given reliable information to
police officers in the past, (2) the informant is a citizen informant, (3) the informant has made a
statement that is against his or her penal interest, and (4) a police officer’s independent
investigation establishes the informant’s reliability or the reliability of the information the
informant has given. State v. Hidalgo, supra. An affidavit in support of the issuance of a search
warrant must affirmatively set forth the circumstances from which the status of the informant can
reasonably be inferred. Id.
The search warrant affidavit (copy contained in the PSR) alleged a list of specific property
(including a “[t]an colored Carhart[t] style coat with hood” and any and all firearms) believed to
be concealed or kept in, on, or about a specific apartment within a complex located at 89th and
Underwood Avenue, a certain vehicle registered to Williams’ grandmother, or a certain vehicle
registered to Williams. The affidavit alleged receipt of a “Crime Stopper tip” stating that Williams
“was involved in the robbery at [the pharmacy store] on 90th Street and the caller was almost
positive that [Williams] was the suspect in [the] robbery.” Further, the tipster provided Williams’
phone number. After learning that information, a police officer began listening to jail telephone
calls made by Williams, as he had been arrested in November 2015 (before the incident in
question). The officer heard Williams advise a female party that he lived on “90th and Dodge.” The
officer called “OPPD and MUD” to see if Williams lived near the pharmacy store at 90th and
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Dodge. Both “MUD and OPPD” told the officer that Williams was the subscriber for a specific
apartment address at 89th and Underwood Avenue.
The search warrant affidavit asserted substantially the same facts about how the offenses
were carried out that the State later provided as a factual basis during the hearing in January 2018.
Among those assertions, was that the “black male suspect” was wearing a “tan colored Carhart[t]
style jacket” and “pulled out an AR-15 style rifle” during the commission of the offenses.
The affidavit also provided the following additional grounds for issuance of a warrant: the
description of the suspect (i.e., physical attributes, clothing, weapon) described by employees of
the pharmacy store; review of the pharmacy store’s video footage of the suspect fleeing “out the
front doors in a northeasterly direction;” review of video surveillance from a bank located “on the
corner of 90th and Dodge” where the suspect is seen fleeing by running between that bank and
another business and “continues northbound . . . until you cannot see him any further;” patrol
officers having traced footprints in fresh snow on the day (of the incident) and seeing they went
up to the apartment complex at 89th and Underwood Avenue; social media search on “Facebook”
using Williams’ alleged telephone number returning result of three public photographs of “a black
male party wearing a tan colored Carhart[t] style coat” which were compared, positively, to a
mugshot of Williams in police records; and certain information heard on Williams’ jail telephone
calls. The affidavit stated that in November 2015, Williams told a female during a jail telephone
call “to have his grandmother get the car from her because his ‘gun’ is in there.” And that later in
November, Williams told the female that “he had to pay child support” and that he had to “do
something to get some fucking bread.” (Emphasis omitted.) The affidavit alleged that in searching
“NCJIS wage information,” Williams’ last earned wage income was in the “third quarter of 2015”;
three total wage amounts he made at “different locations” were listed.
The affidavit alleges substantially more information than Williams suggests in his appellate
brief and refutes his claim regarding the clarity of law enforcement’s corroboration of the tip. The
tip identified Williams by name as a suspect and provided Williams’ telephone number, later used
in a social media search showing public photographs of a male, comparable to Williams’ mugshot,
wearing the style of coat worn by the suspect during commission of the offenses. Identification of
Williams as a suspect led to an investigation of his jail telephone calls, in which he said he left a
gun in his grandmother’s vehicle. Other information learned from the jail telephone calls suggested
Williams’ motivation to commit the offenses, and law enforcement also independently learned that
Williams resided at an apartment in the complex where the suspect ran toward after fleeing the
pharmacy store.
While the affidavit lacks recitation of the basis of the informant’s knowledge, law
enforcement’s independent investigation via several different sources strongly corroborated the
anonymous tip and established that the informant’s credibility was trustworthy and that the
information given was reliable. A warrant properly issued because, considering the totality of
circumstances illustrated in the affidavit for a search warrant in this case, there was a substantial
basis for finding that the affidavit established probable cause and the affidavit also particularly
described the places to be searched and things to be seized. See State v. Hidalgo, supra.
Accordingly, Williams’ trial counsel was not ineffective for not moving to suppress evidence
obtained as a result of the issued search warrant. See State v. Schwaderer, 296 Neb. 932, 898
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N.W.2d 318 (2017) (as matter of law, counsel cannot be ineffective for failing to raise meritless
argument).
(c) Reliability of Anonymous Tip
Williams claims his trial counsel was ineffective for not investigating the reliability of the
Crime Stoppers’ tip (including information corroborating the tip) identifying him as the perpetrator
of the robbery. He argues he informed his trial counsel that he knew who left the tip and that “that
individual had motive to attempt to get Williams in trouble.” Brief for appellant at 14. Williams
does not explain what kind of motive the informant allegedly had to give the tip. The State argues
that Williams cannot establish prejudice on this claim, because even if circumstances were as
Williams claims, that evidence “would not mean that the informant’s information was untrue.”
Brief for appellee at 15. We agree. As discussed, while the tip formed the basis of part of the
affidavit for the search warrant, it was corroborated with law enforcement’s own investigation of
the case through other sources. This claim has no merit.
(d) Duty to Advocate
Williams claims that his trial counsel failed to abide by his duty to advocate for his client,
because his trial counsel “urged” him to plead not based on the strength of the State’s evidence but
because Williams was unable to afford paying trial counsel through a trial. Brief for appellant at
15. However, as stated previously, at the hearing in January 2018, the district court asked Williams
whether he understood that he had “the right to an attorney at all stages of the proceedings, and if
[he could not] afford to pay an attorney, one would be appointed to represent [him].” Williams
answered, “Yes, sir.” Any motivation to plead based on alleged advice that it was necessary due
to whatever financial state Williams was in at the time would have been eliminated with the
foregoing exchange between the court and Williams. Thus, the record refutes this claim of
ineffective assistance of trial counsel.
(e) Advisement of Possible Sentences
Williams asserts his trial counsel was ineffective for improperly advising him on the
possible sentences he could receive if he pled no contest. He claims he expected around 5 years
for his sentences and that his trial counsel improperly advised him that was likely, which
“convinced” him to enter his pleas. Id. at 16. During sentencing, his trial counsel had asked for
“five and five” on Williams’ conviction for attempted use of a deadly weapon to commit a felony.
The district court clarified that that count had been “reduced to attempted” so that it was punishable
by “a minimum of 1 year to 50 years.” Williams’ trial counsel agreed but told the court, “I think
we were still talking about a bottom number around five, and so that’s what [Williams], I think,
expected.”
No matter what Williams may have expected as a sentence for either conviction, the record
before he entered his pleas shows he understood the statutory penalty range for a Class II felony
and understood there was no guarantee of what sentences he would receive from the court. He
acknowledged that each count against him was punishable by a minimum of 1 year and a maximum
of 50 years of imprisonment. When asked, Williams did not say that anyone made promises that
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caused him to plead no contest (other than what he heard when the State recited the plea
agreement). The court asked if he understood that the sentence he would receive was “solely” a
matter for the court to decide “regardless of any plea agreement” he may have made with the State.
Williams answered affirmatively. Williams answered with understanding when the court informed
him that “there is no guarantee as to what [his] sentence will be.” This claim of ineffective
assistance is refuted by the record.
(f) Claim of Being Under Influence of Marijuana
Williams claims his trial counsel was ineffective for allowing him to enter his pleas of no
contest despite Williams being under the influence of marijuana. He claims his trial counsel
“should have noticed the signs.” Brief for appellant at 16. However, Williams does not elaborate
on what signs he personally was exhibiting from his alleged drug use that should have been
noticeable to his trial counsel (yet, based on the record, were apparently not obvious or noticeable
to the State or the district court). Williams does not allege that he told his trial counsel he was
under the influence of marijuana before, during, or even immediately after the plea hearing in
January 2018. As previously mentioned, the record does not support that Williams was under the
influence of marijuana. The district court specifically asked Williams at the plea hearing if he was
“currently under the influence of any kind of alcohol, medicine, or drug” that was “in the least way
interfering with [his] ability to think clearly and understand exactly what [he was] doing in
answering [the court’s questions].” Williams responded, “No, sir.” The record refutes this claim
of ineffective assistance of trial counsel.
(g) Cumulative Effect
Williams argues that, disregarding the merit of his above-stated individual claims of
ineffective assistance of trial counsel, considering them together shows his trial counsel’s overall
performance was deficient. Because we concluded, with one exception that could not be resolved
on this record, that each individual claim had no merit, this claim also fails.
VI. CONCLUSION
We affirm Williams’ convictions and sentences. The record was sufficient to refute all but
one claim of ineffective assistance of trial counsel; the record is insufficient to resolve the claim
related to the alleged alibi witness.
AFFIRMED.
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