State v. Betts ( 2023 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/11/2023 08:04 AM CDT
    - 737 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    State of Nebraska, appellee, v.
    Brian M. Betts, appellant.
    ___ N.W.2d ___
    Filed April 11, 2023.     Nos. A-22-094, A-22-096.
    1. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
    Appeal and Error. 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 requirements.
    2. Effectiveness of Counsel: Appeal and Error. 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.
    3. Effectiveness of Counsel: Proof. 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 per­
    formance actually prejudiced the defendant’s defense.
    4. ____: ____. To show that counsel’s performance was deficient, the
    defendant must show counsel’s performance did not equal that of a law-
    yer with ordinary training and skill in criminal law. To show prejudice
    under the prejudice component of the Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984) test, the defendant
    must demonstrate a reasonable probability that but for his or her coun-
    sel’s deficient performance, the result of the proceeding would have
    been different.
    5. Convictions: Effectiveness of Counsel: Pleas: Proof. When a con-
    viction is based upon a plea of no contest, the prejudice require-
    ment for an ineffective assistance of counsel claim is satisfied if the
    - 738 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    defendant shows a reasonable probability that but for the errors of
    counsel, the defendant would have insisted on going to trial rather than
    pleading no contest.
    6.    Words and Phrases. A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.
    7.    Effectiveness of Counsel: Postconviction: Records: Appeal and
    Error. 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.
    8.    Effectiveness of Counsel: Records: Appeal and Error. The fact that
    an ineffective assistance of counsel claim is raised on direct appeal does
    not necessarily mean that it can be resolved. The determining factor is
    whether the record is sufficient to adequately review the question.
    9.    Effectiveness of Counsel: Appeal and Error. 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.
    10.    Effectiveness of Counsel: Witnesses: Appeal and Error. When the
    claim of ineffective assistance on direct appeal involves uncalled wit-
    nesses, vague assertions that counsel was deficient for failing to call
    “witnesses” are little more than placeholders and do not sufficiently
    preserve the claim. However, the appellate court does not need specific
    factual allegations as to what the person or persons would have said,
    which will not be found in the appellate record.
    Appeals from the District Court for Nemaha County: Julie
    D. Smith, Judge. Affirmed.
    Lindy L. Mahoney, of Nestor & Mercure Attorneys, for
    appellant.
    Douglas J. Peterson, Attorney General, and Jordan Osborne
    for appellee.
    Pirtle, Chief Judge, and Riedmann and Arterburn, Judges.
    Arterburn, Judge.
    INTRODUCTION
    Brian M. Betts was charged in the district court for
    Nemaha County with a total of 29 felony counts distributed
    - 739 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    between two separate criminal cases. Betts resolved the two
    cases through a global plea agreement in which he entered a
    plea of no contest to five counts of first degree sexual assault
    of a child, each a Class IB felony; six counts of visual depic-
    tion of sexually explicit conduct, each a Class ID felony; and
    one count of possession of a deadly weapon by a prohibited
    person, a Class ID felony. In this consolidated appeal, Betts
    asserts that his trial counsel was ineffective for failing to file
    pretrial motions, failing to depose key witnesses, and dem-
    onstrating a general inadvertence that, according to Betts,
    pressured him into accepting the global plea agreement. Upon
    our review, we affirm Betts’ convictions and sentences in
    both cases.
    BACKGROUND
    In case No. A-22-094, on February 4, 2019, Betts was
    originally charged by information with 4 counts of first degree
    sexual assault of a child, each a Class IB felony; 1 count of
    possession of a firearm by a prohibited person, a Class ID
    felony; 10 counts of visual depiction of sexually explicit con-
    duct, each a Class ID felony; and 1 count of possession of a
    controlled substance, a Class IV felony. On April 8, the court
    granted defense counsel’s motion to take depositions of the
    alleged victim in the case, M.C., as well as two other poten-
    tial trial witnesses. The court granted another defense motion
    to take the depositions of two law enforcement officers on
    October 23.
    On November 13, 2019, Betts appeared with counsel and
    waived his right to a jury trial. The court accepted his waiver
    and scheduled a bench trial for February 24, 2020. The State
    planned to have a hearing under 
    Neb. Rev. Stat. § 27-414
    (Reissue 2016) to introduce evidence from another alleged
    victim of Betts, L.M.I., on February 12. However, defense
    counsel moved to continue the proceedings and requested
    leave to depose L.M.I. prior to any evidentiary hearing
    being held.
    - 740 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    On March 11, 2020, the State filed an information in case
    No. A-22-096 charging Betts with six counts of first degree
    sexual assault of a child, each a Class IB felony, and seven
    counts of visual depiction of sexually explicit conduct, each a
    Class ID felony. L.M.I. was the alleged victim in this case.
    During the arraignment in case No. A-22-096, the district
    court addressed Betts’ pro se request that he be appointed with
    new counsel. Defense counsel did not contest Betts’ request.
    In fact, counsel made an oral motion to withdraw due to the
    serious nature of the pending charges and the possible penal-
    ties that Betts was facing. Defense counsel suggested that the
    Nebraska Commission on Public Advocacy be contacted to see
    if it would be willing to accept Betts’ cases. The court took
    the matter under advisement, instructing counsel to check with
    the Nebraska Commission on Public Advocacy about taking
    the cases.
    On April 8, 2020, it was reported to the court that the
    Nebraska Commission on Public Advocacy was unable to
    take Betts’ cases due to a lack of available resources. The
    court determined not to make any changes to Betts’ previously
    appointed defense counsel. Counsel was then granted leave
    to take a deposition of another potential trial witness. At this
    same time, the district court addressed Betts’ pro se motions
    asking that the prosecutor be recused and that he be allowed
    to withdraw his waiver for a jury trial. The court continued the
    cases so Betts could present evidence in support of his recusal
    motion and so that the court could further research the topic
    of rescinding a jury trial waiver before making a decision. The
    cases were continued, and a hearing on Betts’ multiple motions
    was set for June 4.
    On June 4, 2020, the parties reported to the court that a
    plea agreement had been reached involving both cases. In
    case No. A-22-094, Betts agreed to enter a plea of guilty
    or no contest to two counts of first degree sexual assault of
    a child, one count of possession of a firearm by a prohib-
    ited person, and three counts of visual depiction of sexually
    - 741 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    explicit conduct. The State agreed to dismiss two counts of
    first degree sexual assault of a child, seven counts of visual
    depiction of sexually explicit conduct, and one count of pos-
    session of a controlled substance. In case No. A-22-096, Betts
    agreed to enter a plea of guilty or no contest to three counts
    of first degree sexual assault of a child and three counts of
    visual depiction of sexually explicit conduct. The State agreed
    to dismiss the remaining counts. Additionally, as a part of the
    plea agreement, the State agreed to jointly recommend that
    the sentence would allow Betts to be eligible for parole at the
    age of 70 and that the victims in both cases would be allowed
    to speak at sentencing. The court then had the following dis-
    cussion with Betts:
    [THE COURT:] Do you understand that if you plead
    guilty or no contest you would not have a trial in either
    case and you would be giving up the rights that I’ve just
    explained?
    [BETTS:] Yes, I do.
    THE COURT: Is it your intention to give up those
    rights and enter into the plea agreement?
    [BETTS:] Yes.
    THE COURT: You will retain your right to an attorney,
    your right to a reasonable bail, and your right to appeal
    any final decision of this Court.
    If you are not a United States citizen, you are hereby
    advised that conviction of the offenses for which you
    have been charged may have the consequence of removal
    from the United States or denial of naturalization pursuant
    to the laws of the United States.
    If I find that someone has suffered a loss as a result of
    your crime, such as medical bills or something like that,
    and I find that you have the ability to pay, the Court could
    order you to pay restitution to reimburse the victims. Do
    you understand that?
    [BETTS:] Yes, I do.
    - 742 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    THE COURT: A guilty or no contest plea to these
    charges will cause you to be subject to the Nebraska Sex
    Offender Registration Act for the period of the rest of
    your life during which you would have lifetime registra-
    tion and lifetime supervision. It also would subject you
    to the Nebraska Sex Offender Commitment Act. Except
    during any period of incarceration, you would be required
    to register with the county sheriff where you reside within
    three working days of your release from incarceration
    and, again, you would have to report any changes in your
    address for the rest of your life. If you fail to register, you
    could be convicted of another crime.
    At the end of your period of incarceration, if it is deter-
    mined that you qualify as a dangerous sex offender, you
    could be civilly committed for treatment until such time
    as you are determined to be ready for release.
    Do you understand that?
    [BETTS:] Yes, I do.
    THE COURT: . . . Betts, have you had enough time to
    talk to your attorney about these two cases?
    [BETTS:] Yes.
    THE COURT: Have you told your attorney everything
    you know about these cases and discussed all possible
    defenses you might have?
    [BETTS:] Yes.
    THE COURT: Do you want any more time to talk to
    your attorney before you change your pleas?
    [BETTS:] No.
    THE COURT: Are you satisfied with the job that your
    attorney has done for you on these two cases?
    [BETTS:] Yeah. I mean, yes.
    The court found that Betts entered his pleas of no contest
    freely, voluntarily, knowingly, and intelligently. All motions
    filed in April 2019 were withdrawn.
    Factual bases provided for each of the cases explained that
    the Nebraska State Patrol was notified by “Google” about
    - 743 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    an account that had inappropriate conduct on it in November
    2018. The account was found to belong to Betts and contained
    nude photographs of a minor. Investigators interviewed Betts
    in Auburn, Nebraska, about the account. During this interview,
    Betts admitted that he had sexual contact with a minor and had
    taken photographs of that contact. Betts identified his victim
    as M.C., born in 2004, with whom he lived with as a parent-
    ing figure due to his relationship with her mother. After getting
    a search warrant for Betts’ electronic media information and
    residence, investigators found numerous photographs of por-
    nographic material, including pornographic material involving
    minors and, specifically, pornographic photographs of M.C.,
    on a laptop found in his personal shop, on a hard drive, and on
    several cell phones belonging to Betts. Through an investiga-
    tion, law enforcement officers discovered that the photographs
    also featured L.M.I., another minor who had lived in the home
    with Betts. L.M.I., born in 2006, was Betts’ stepdaughter from
    a previous relationship.
    M.C. was interviewed at a child advocacy center. She told
    investigators that Betts had sexually assaulted her multiple
    times when M.C. was 12 and 13 years old and that he took
    photographs of the assaults. L.M.I. was also interviewed at
    the child advocacy center. She reported that she was first
    sexually assaulted by Betts when she was 7 years old in 2013.
    L.M.I. then went to live with another parent until 2018. L.M.I.
    reported that when she returned to Betts’ home in 2018, he
    again sexually assaulted her on several occasions. She also
    stated that Betts took photographs of the sexual assaults.
    A handgun was found during a search of Betts’ home.
    Witnesses informed officers that the gun belonged to Betts.
    Officers discovered that Betts was a convicted felon who was
    prohibited from owning a gun. Through all the events reported,
    Betts was over the age of 19, and all the events occurred in
    Nemaha County, Nebraska. As part of the factual basis, the
    State offered three of the pornographic photographs of M.C.
    and six of the pornographic photographs of L.M.I. found
    - 744 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    in Betts’ possession. Some of these photographs depicted M.C.
    and L.M.I. involved in sexual acts with adult male genitalia.
    The court received all exhibits under seal.
    The court accepted the factual bases, and it found that Betts
    understood the charges, the possible penalties, and his rights
    and that he waived those rights freely, voluntarily, knowingly,
    and intelligently. A presentence investigation, including a sex
    offender specific evaluation and victim impact statements,
    was ordered.
    At the sentencing hearing on August 11, 2020, both M.C.
    and L.M.I. provided remarks to the court. The court reviewed
    and considered the circumstances surrounding the offenses,
    Betts’ criminal record, the sex offender specific evaluation,
    and the risk factors within the “LS/CMI index.” The court
    described the photographic exhibits from the factual bases as
    “sexual torture.” The court noted that Betts seemed to act as if
    he were the victim in this case, instead of taking responsibility.
    It was calculated that Betts had 632 days’ credit in case No.
    A-22-094 and 183 days’ credit in case No. A-22-096 for time
    served. Both cases involved a combination of Class IB and
    Class ID felonies. For each Class IB felony conviction, Betts
    was sentenced to 23 to 100 years’ imprisonment with a manda-
    tory minimum of 15 years’ imprisonment. For each Class ID
    felony conviction, Betts was sentenced to a mandatory mini-
    mum 3 years to 10 years’ imprisonment. All sentences were
    ordered to run concurrently.
    Betts filed these appeals following an order entitling him to
    postconviction relief in the form of a new direct appeal after
    trial counsel failed to perfect the appeals within 30 days of the
    imposition of his sentences.
    ASSIGNMENTS OF ERROR
    Betts assigns that his trial counsel was ineffective for (1)
    failing to file pretrial motions, (2) failing to depose key wit-
    nesses, and (3) exhibiting a general inadvertence that pressured
    Betts to enter into a plea agreement to resolve his cases.
    - 745 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    STANDARD OF REVIEW
    [1,2] Whether a claim of ineffective assistance of trial coun-
    sel 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
    requirements. State v. Warner, 
    312 Neb. 116
    , 
    977 N.W.2d 904
     (2022). An appellate court determines as a matter of law
    whether the record conclusively shows that (1) a defense coun-
    sel’s performance was deficient or (2) a defendant was or was
    not prejudiced by a defense counsel’s alleged deficient per­
    formance. 
    Id.
    ANALYSIS
    [3-6] 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. Lessley, 
    312 Neb. 316
    , 
    978 N.W.2d 620
    (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. 
    Id.
     To show prejudice under the prejudice component
    of the Strickland test, the defendant must demonstrate a
    reasonable probability that but for his or her counsel’s defi-
    cient performance, the result of the proceeding would have
    been different. State v. Lessley, 
    supra.
     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 the
    errors of counsel, the defendant would have insisted on going
    to trial rather than pleading no contest. State v. Anderson, 
    305 Neb. 978
    , 
    943 N.W.2d 690
     (2020). A reasonable probability
    is a probability sufficient to undermine confidence in the out-
    come. 
    Id.
    - 746 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    [7-9] 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 perform­
    ance 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, 
    supra.
    The fact that an ineffective assistance of counsel claim is
    raised on direct appeal does not necessarily mean that it can
    be resolved. 
    Id.
     The determining factor is whether the record
    is sufficient to adequately review the question. 
    Id.
     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. State v. Blake, 
    310 Neb. 769
    , 
    969 N.W.2d 399
     (2022).
    Failure to File Pretrial Motions
    and General Inadvertence.
    Betts’ first assignment of error claims his trial counsel
    was ineffective “by failing to adequately prepare for trial
    by utilizing pre-trial motions.” His third assignment of error
    alleges trial counsel was ineffective by “demonstrating overall
    inadvertence that caused legitimate concerns about . . . Betts’
    likelihood of success at trial.” The Nebraska Supreme Court
    has 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 per-
    formance by trial counsel. State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
     (2019). An appellate court should not have to
    scour the argument section of an appellant’s brief to extract
    specific allegations of deficient performance. 
    Id.
     Assignments
    of error on direct appeal regarding ineffective assistance of
    trial counsel must specifically allege deficient performance.
    
    Id.
     Betts’ first and third assignments of error both fail to meet
    this requirement.
    - 747 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    Betts broadly asserts that his trial counsel was ineffective
    for failing to file pretrial motions. In his assignments of error,
    Betts fails to specify which pretrial motions his trial counsel
    should have filed. We will not scour the argument section of
    Betts’ brief in search of the answer. As a result, Betts’ first
    assignment of error is insufficiently stated to allow appel-
    late review.
    Similarly, Betts’ assignment that his trial counsel demon-
    strated “overall inadvertence” is little more than an alternative
    method of generally stating that trial counsel was ineffective.
    This assignment does not specify how trial counsel was inad-
    vertent or what alleged inadvertent acts or omissions were
    deficient. Again, we will not scour the argument section to
    search for the specific acts that are claimed to be deficient.
    Betts’ third assignment of error is insufficiently stated to allow
    appellate review.
    Failure to Depose Witnesses.
    [10] Betts also claims that his trial counsel was ineffective
    for failing to take depositions of key witnesses. This claim is
    sufficiently pled, but cannot be resolved on the record before
    us. When the claim of ineffective assistance on direct appeal
    involves uncalled witnesses, vague assertions that counsel was
    deficient for failing to call “witnesses” are little more than
    placeholders and do not sufficiently preserve the claim. State v.
    Blake, 
    supra.
     However, the appellate court does not need spe-
    cific factual allegations as to what the person or persons would
    have said, which will not be found in the appellate record. 
    Id.
    It is sufficient that appellate counsel give on direct appeal the
    names or descriptions of any uncalled witnesses forming the
    basis of a claim of ineffective assistance of trial counsel. 
    Id.
    Such specificity is necessary so that the postconviction court
    may later identify whether a particular claim of failing to
    investigate a witness is the same one that was raised on direct
    appeal. 
    Id.
    - 748 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    In State v. Blake, 
    310 Neb. 769
    , 799, 
    969 N.W.2d 399
    ,
    421-22 (2022), the Supreme Court noted that the defendant’s
    “assignment of error and supporting argument specified the
    names of the witnesses he claims that, if investigated, would
    have supported his innocence.” This statement, coupled with
    the court’s prior statement that “[i]t is sufficient that appel-
    late counsel give on direct appeal the names or descriptions
    of any uncalled witnesses forming the basis of a claim of
    ineffective assistance of trial counsel,” 
    id. at 798-99
    , 969
    N.W.2d at 421, leads us to conclude that in the scenario of
    failure to investigate, depose, or call witnesses, it is not critical
    that the uncalled witnesses be named or specifically identi-
    fied in the assignment of error. We recognize that in Blake,
    the uncalled witnesses were named in the assignment of error
    and in the argument. Here, the undeposed witnesses were not
    named in an assignment of error. However, they were specifi-
    cally named “on direct appeal” in the corresponding argument
    section. This argument section is clearly limited to this issue,
    and it readily identifies the witnesses that trial counsel did not
    depose. Therefore, we find that in this scenario, we are not in
    the position of scouring the record to try to define the nature of
    the ineffectiveness claim. Unlike the other two claims of inef-
    fective assistance stated in appellant’s brief herein, this claim
    is readily discernible. See, also, State v. Roebuck, 
    31 Neb. App. 67
    , 
    976 N.W.2d 218
     (2022).
    Betts asserts that trial counsel took the depositions of M.C.
    and M.C.’s mother but failed to take the depositions of any
    law enforcement officer, investigator, or forensic analyst who
    worked on the case. Betts then lists the names of 10 indi-
    viduals that were named as witnesses and subpoenaed by the
    State but were not deposed by trial counsel. Trial counsel
    was granted leave by the court to depose these witnesses, but
    did not conduct the depositions prior to Betts’ entering into
    the plea agreement. Though Betts does not articulate what the
    depositions of these individuals would have produced, he has
    - 749 -
    Nebraska Court of Appeals Advance Sheets
    31 Nebraska Appellate Reports
    STATE V. BETTS
    Cite as 
    31 Neb. App. 737
    identified the witnesses he asserts trial counsel should have
    deposed with enough specificity to preserve his claim for
    postconviction relief. Because trial counsel’s decision not to
    depose these individuals is a matter of trial strategy, we cannot
    resolve this issue with the record before us.
    CONCLUSION
    For the reasons stated above, we affirm Betts’ convictions
    and sentences.
    Affirmed.
    

Document Info

Docket Number: A-22-094, A-22-096

Filed Date: 4/11/2023

Precedential Status: Precedential

Modified Date: 4/11/2023