State v. Green ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. GREEN
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.
DONALD C. GREEN, APPELLANT.
Filed October 11, 2022. No. A-22-046.
Appeal from the District Court for Lancaster County: RYAN S. POST, Judge. Affirmed.
Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
PIRTLE, Chief Judge, and BISHOP and WELCH, Judges.
PIRTLE, Chief Judge.
INTRODUCTION
Donald C. Green appeals from his plea-based convictions and sentences on one count of
domestic assault and one count of resisting arrest. Green assigns that the district court for Lancaster
County erred in ordering his sentences to be served consecutively, and Green assigns four claims
of ineffective assistance of trial counsel. For the reasons that follow, we affirm.
BACKGROUND
On August 13, 2021, the State filed a criminal complaint in the county court for Lancaster
County, charging Green with one count of domestic assault in the third degree, subsequent offense,
and one count of resisting arrest, subsequent offense. Green faced Class IIIA felony convictions
on both counts. Green appeared for a preliminary hearing on October 22, and the State moved for
a continuance, which was granted over Green’s objection. On November 4, Green waived his right
to a preliminary hearing, and the case was bound over to the district court.
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Thereafter, pursuant to a plea agreement, the State filed an amended information, charging
Green with one count of domestic assault in the third degree, first offense (count 1), and one count
of resisting arrest, first offense (count 2). Green faced Class I misdemeanor convictions on both
counts in the amended information. Green pleaded no contest to the charges in the amended
information, and the district court found him guilty on both counts. The court ordered a presentence
investigation and set the case for sentencing. On December 30, 2021, the district court sentenced
Green to consecutive sentences of 360 days of incarceration on count 1 and 240 days of
incarceration on count 2, and Green was given credit for 139 days served. Green appeals through
new counsel.
ASSIGNMENTS OF ERROR
Green assigns that the district court erred in ordering his sentences to run consecutively.
Green also raises four claims of ineffective assistance of trial counsel.
STANDARD OF REVIEW
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019).
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. Id. 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
Sentencing.
Green assigns that the district court abused its discretion in ordering his sentences to run
consecutively as opposed to concurrently. Green argues that his sentences should have been
concurrent because “his conviction for resisting arrest arises from the same transaction as his
[conviction] of domestic assault because he was being arrested for domestic assault at the time he
resisted.” Brief for appellant at 14. It is within the discretion of the trial court to impose consecutive
rather than concurrent sentences for separate crimes. State v. Artis, 296 Neb. 172, 893 N.W.2d 421(2017). This is true even when the crimes arise out of the same incident. Id. While Green is correct
that his convictions arose out of the same incident, he was nevertheless charged and convicted of
two separate crimes. Thus, the district court had discretion to sentence him concurrently or
consecutively. Upon our review of the record, we cannot say it was an abuse of discretion to order
Green’s sentences to run consecutively.
Ineffective Assistance of Trial Counsel.
Green purports to raise four distinct claims of ineffective assistance of counsel, however,
his first assignment of error simply states “Trial counsel provided ineffective assistance of counsel
to [Green] in violation of his 6th Amendment rights.” Brief for appellant at 4. When raising an
ineffective assistance claim on direct appeal, an appellant must make specific allegations of the
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conduct that he or she claims constitutes deficient performance by trial counsel. State v. Mrza, 302
Neb. 931, 926 N.W.2d 79 (2019). 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. Id. Thus, Green’s first claim
of ineffective assistance was not raised with the requisite specificity, and we decline to address it.
Green’s remaining three claims generally allege that trial counsel was ineffective in
advising Green on the waiver of various rights. First, Green argues that trial counsel was
ineffective in advising him to waive his right to a preliminary hearing before the county court. In
support of this claim, Green states only that he was prepared to proceed with a preliminary hearing,
and that “the matter would have been dismissed” if a preliminary hearing had been held. Brief for
appellant at 9. However, Green fails to explain on what basis the matter would have been dismissed
if such a hearing had taken place, such as how he would have challenged whether a crime had been
committed and whether there was probable cause that he committed the crime. Instead, Green’s
argument is simply conclusory in nature, and we decline to address it. See State v. Blake, 310 Neb.
769, 969 N.W.2d 399 (2022) (where appellant’s brief contains conclusory assertions unsupported
by coherent analytical argument, appellant fails to satisfy requirement that party asserting alleged
error must both specifically assign and specifically argue it in party’s initial brief).
While assigned as two separate claims, Green combines his third and fourth ineffective
assistance claims, arguing that trial counsel “coerc[ed]” Green to waive his right to trial and to
plead no contest without adequately informing Green of the repercussions. Brief for appellant at
8. Green points to an off-the-record conversation with counsel where Green allegedly informed
counsel that he wanted to proceed to trial, and counsel allegedly refused. While the appellate record
does not reveal the nature of this off-the-record discussion, we nevertheless conclude the record
affirmatively rebuts Green’s claim that his plea, and the attendant waiver of rights, was the result
of deficient performance of trial counsel.
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. Blake, supra. 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. To show prejudice, the defendant
must demonstrate a reasonable probability that but for counsel’s deficient performance, the result
of the proceeding would have been different. Id.The off-the-record conversation with counsel to which Green refers occurred in the middle
of a lengthy colloquy between Green and the court regarding Green’s plea and the repercussions
thereof. Throughout this exchange, Green maintained that he understood the rights he would be
giving up by entering a no contest plea, and the court found beyond a reasonable doubt that Green
understood his rights and waived them freely, voluntarily, knowingly, and intelligently. Despite
Green’s assertion on appeal that counsel refused his request to proceed to trial, Green answered in
the negative when the court asked whether counsel had “refused or neglected to do anything you
have asked of him.” Moreover, Green answered in the negative when the court asked whether
anyone had “in any manner whatsoever” induced or coerced him into entering a no contest plea.
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In light of the district court’s detailed advisories, and Green’s statements on the record, we
conclude Green’s third and fourth ineffective assistance claims are refuted by the record.
CONCLUSION
We conclude the district court did not abuse its discretion in ordering Green’s sentences to
run consecutively. Further, Green’s ineffective assistance claims are either insufficiently stated or
otherwise refuted by the record. Accordingly, we affirm Green’s convictions and sentences.
AFFIRMED.
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