State v. Jennings ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. JENNINGS
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 JENNINGS, APPELLANT.
Filed June 20, 2023. No. A-22-806.
Appeal from the District Court for Douglas County: TIMOTHY P. BURNS, Judge. Affirmed.
Ashley L. Albertsen, of Oestmann & Albertsen Law, P.C., L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne for appellee.
RIEDMANN, BISHOP, and WELCH, Judges.
RIEDMANN, Judge.
I. INTRODUCTION
Brandon Jennings appeals his plea-based convictions from the Douglas County District
Court. He assigns that his trial counsel was ineffective regarding his plea, and the district court
erred by not allowing him to withdraw his plea prior to sentencing. Having considered his
arguments and reviewed the record, we affirm.
II. BACKGROUND
On September 27, 2020, Jennings was arrested with his twin brother by the Omaha Police
Department and subsequently brought to Douglas County Corrections (DCC). In transit to DCC,
Jennings became irate, telling officers that he was going to harm himself or harm them and that he
was armed. Jennings’ behavior continued through the booking phase at DCC, until two officers
moved Jennings from the booking area to a changing room.
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In the changing room, Jennings pulled a gun from his waistband and pointed it at the two
officers. He then exited the changing room and pointed the gun at six additional officers. Jennings
ran into another changing room and back out, looking for his brother. Jennings eventually gave
up, ran back into a changing room, and shot himself in the chin.
After officers heard a gunshot, they heard Jennings crying out for help. Jennings complied
when officers ordered him to throw the gun out of the changing room. Jennings was found with a
self-inflicted gunshot wound to the chin and was transported to a hospital for treatment.
Jennings was originally charged with 10 counts of terroristic threats, 10 counts of use of a
deadly weapon (firearm) to commit a felony, possession of a deadly weapon by a prohibited
person, and possession of a stolen firearm. Jennings was found to be indigent and was appointed
counsel. He waived his right to arraignment and entered a not guilty plea.
1. Trial Continued Pending Mental Evaluations
In April 2021, the State amended Jennings’ original charges. Pursuant to the district court’s
order to consolidate, the State amended the information to add count 23, carrying a concealed
weapon, and count 2, intimidation or possession of implements of escape—inmate. On April 16,
Jennings’ counsel motioned to determine whether Jennings was competent to stand trial.
On June 3, 2021, Jennings wrote a letter to the court. He requested to file a motion for
ineffective assistance of counsel and argued that his lawyer was not properly defending him. He
raised multiple grievances in his letter with how his counsel spoke to him and concluded that he
did not feel comfortable with her representation. However, the salutation of the letter named a
judge different than the one presiding over Jennings’ current case.
After a series of continuances, the pretrial conference was held on January 12, 2022.
Jennings’ counsel informed the court that they were withdrawing their motion to determine
competency because Jennings had completed his evaluation. The district court then set the date for
trial. A week later, Jennings’ counsel moved to continue the upcoming trial and filed a notice
informing the court that they would be relying on an insanity defense at the time of trial. The State
exercised its right to evaluate Jennings with its own psychiatrist or psychologist.
2. Plea Agreement
On July 3, 2022, the district court was informed that Jennings and the State had reached a
plea agreement. In return for Jennings’ plea of no contest, the State would reduce Jennings’ charges
to 3 counts of terroristic threats, 3 counts of use of a deadly weapon (firearm) to commit a felony,
and 1 count of possession of a deadly weapon by a prohibited person. Jennings affirmed to the
district court that he understood the plea agreement. The district court asked Jennings if he was
under the influence of any drugs or alcohol, and Jennings responded he was not. Jennings also
confirmed that he understood his rights, and that by accepting a plea agreement, he was waiving
certain constitutional rights.
The district court explained to Jennings the charges and potential penalties he faced.
Jennings confirmed that he understood each charge against him. The district court also explained
that if Jennings accepted the plea agreement, the penalties carry statutorily required minimum
sentences and would have to be served consecutively by law. And in total, Jennings would face a
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minimum of 18 years’ incarceration. Jennings again confirmed that he understood the charges and
potential penalties, and maintained that he wished to plead no contest.
Jennings told the district court that he was not satisfied with his counsel’s representation.
He explained that he felt if he had money, then the outcome of his trial would be different. Also,
he was accepting the plea offer only because he was told he would spend the rest of his life in
prison if he went to trial.
Jennings’ counsel explained that they had discussed the likely outcome of a trial, and the
potential sentences that Jennings would face if he went to trial and was convicted on the charges
contained in the original information. Jennings responded that he felt coerced into the plea
agreement, because he believed if he went to trial, then his counsel would not properly represent
him. However, he confirmed with the district court that despite these feelings, it was still his
intention to plead no contest. The court accepted his plea.
3. FIRST MOTION TO WITHDRAW PLEA
After accepting the plea agreement, Jennings wrote another letter to the court, dated August
9, 2022. He again contended that he was unhappy with his representation, and that he felt
“pressured and forced” to accept the plea agreement. He argued that his counsel was not properly
representing him, and he believed they were actively acting against his interests. He believed they
were making decisions without his input, which prevented him from being able to accept an earlier
offered plea agreement that carried a mandatory 8 years’ imprisonment. He concluded by asking
the district court to switch the plea agreement offers from the current agreement to the original one
that proposed lesser charges.
The district court subsequently held a hearing on August 29, 2022, to discuss Jennings’
letter. The district court reminded Jennings that he had previously stated he understood his rights
and wished to plead no contest. It asked him if he wanted to stand by his plea, but Jennings
responded that he was unsure how to answer the question. The district court stated Jennings’
options were to take the plea agreement or go to trial. It explained to him that without the plea
agreement, he faced a mandatory minimum of 53 years’ imprisonment versus a mandatory
minimum of 18 years’ imprisonment under the plea agreement. It further explained to him the
difference between a mandatory minimum sentence and a “flat sentence.”
Jennings again emphasized that he wanted to go to trial, but only if he could have different
counsel than his current representation. The district court explained to Jennings that he would have
to keep his counsel, unless he could provide good cause for why he should have different counsel.
Jennings argued that the point of his letter was that he could not go to trial with his current
representation, but stated he was not sure what the court would consider good cause. After the
discussion, the district court again offered Jennings his options: proceed to trial with his current
counsel or stand by his plea, and Jennings stated he would stand by his plea.
4. SECOND MOTION TO WITHDRAW PLEA
On October 6, 2022, the district court held a hearing on Jennings’ oral motion to withdraw
his plea. It reviewed the chronology of events beginning with the original plea hearing on July 19
and the subsequent August 9 letter, in which Jennings indicated he felt pressured to accept the plea
agreement and that he was not being properly represented. The district court explained that akin
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to the previous hearing on Jennings’ first motion to withdraw, mere distrust or dissatisfaction with
his court-appointed attorney is not enough to merit new counsel.
Jennings affirmed that he was renewing his request to withdraw his plea based on the same
reasons as laid out in his letter. At the hearing, he confirmed he would rather go to trial and
represent himself than “take a plea deal for something I didn’t do.” But the district court advised
him that it had not yet ruled on his motion to withdraw his plea and that if it denied that motion,
the only phase of the proceeding that remained was sentencing. It then proceeded on the motion to
withdraw the plea.
Jennings advised the court that the basis for his motion to withdraw his plea was that at the
prior hearings he was “scared to go to trial with [current counsel] on [his] behalf” but that he would
rather go to trial and represent himself. The State opposed the motion and the court denied
Jennings’ motion to withdraw his plea. It explained to him that the court had already addressed his
willingness to accept the plea agreement on July 19, 2022, and at the subsequent hearing, and that
Jennings had not provided just reason for the court to grant his motion. Jennings then advised the
court that at the time of the previous two hearings, he was under the influence of marijuana and
K2. The district court reminded Jennings that it had inquired during the July hearing whether he
had taken any drugs, legal or otherwise, and Jennings responded no. When asked if he lied at that
time, Jennings responded “I apologize.”
Based upon Jennings’ denial of being under the influence at the original plea hearing, the
court maintained its ruling denying his motion to withdraw his plea. Jennings agreed to proceed to
sentencing with his current counsel.
5. SENTENCING
The sentencing hearing was held on October 20, 2022. Prior to sentencing Jennings, the
court stated that it had received another letter from Jennings, which the court received as an exhibit.
In that letter, Jennings again advised the court that he was “under the influence” at a prior hearing,
despite having told the court that he was not. In the letter, he explained that he was previously
unaware that an option existed for him to represent himself at trial, and that was the reason he
agreed to stand on his plea rather than proceed to trial with his current counsel. He concluded the
letter by stating his “best interest is going to trial on this matter.” The court stated that the letter
contained the same reasons Jennings had relied upon in prior motions and reminded Jennings that
those motions were previously overruled; therefore, the court proceeded to sentencing.
Jennings was sentenced to 0 to 3 years’ incarceration for each of the three convictions of
terroristic threats; 3 to 3 years’ incarceration for the prohibited person in possession of a deadly
weapon conviction; and 5 to 5 years’ incarceration for each of the three convictions of use of a
deadly weapon to commit a felony. The terroristic threat sentences were to run concurrently to one
another. The remaining sentences were to run consecutively to each other and consecutive to the
sentences for the terroristic threats. In all, Jennings was sentenced to a mandatory minimum of 18
years’ imprisonment and a maximum of 21 years’ imprisonment. Jennings appeals.
III. ASSIGNMENTS OF ERROR
Jennings assigns two errors. His first assigned error is that he “received ineffective
assistance of counsel in preparing for trial, taking a plea, and at sentencing. Jennings’ counsel
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advised him to plea despite his mental health and assessments indicating possible insanity
defenses, and pushing Jennings to a plea against his repeated statements.” His second assigned
error is that the district court erred by not allowing him to withdraw his plea.
IV. STANDARD OF REVIEW
Whether a claim of ineffective assistance of counsel may be determined on direct appeal is
a question of law. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021). 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. When the claim is raised on direct
appeal, the appellant is not required to allege prejudice; however, appellants must make specific
allegations of the conduct that they claim constitute deficient performance by trial counsel. Id.A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas
before sentencing. State v. Warner, 312 Neb. 116, 977 N.W.2d 904 (2022). An appellate court will
not disturb the trial court’s ruling on a presentencing motion to withdraw a guilty or no contest
plea absent an abuse of discretion. Id.V. ANALYSIS
1. INEFFECTIVE ASSISTANCE OF COUNSEL
(a) General Principles
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. Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022). To show counsel’s
performance was deficient, a defendant must show that counsel’s performance did not equal that
of a lawyer with ordinary training and skill in criminal law. Id. 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. Id.An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges
deficient performance with enough particularity for (1) an appellate court to determine whether
the claim can be decided upon the trial record and (2) a district court later reviewing a petition for
postconviction relief to be able to recognize whether a claim was brought before the appellate
court. State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). 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.The record is sufficient if it establishes either that trial counsel’s performance was not deficient,
that the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be
justified as a part of any plausible trial strategy. Id.Here, Jennings is represented by counsel different from his trial counsel. When a defendant
is represented by counsel different from his or her trial counsel on direct appeal, the defendant
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must raise 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. Id.Jennings assigns that his counsel was ineffective in “preparing for trial, taking a plea, and
at sentencing.” This statement lacks the specificity we demand on direct appeal. See State v. Mrza,
302 Neb. 931, 926 N.W.2d 79 (2019). It does not contain any specificity as to what component of
the trial preparation, plea hearing, or sentencing counsel was deficient in. See State v. Wood, 310
Neb. 391, 966 N.W.2d 825 (2021). Therefore, we will not address this portion of Jennings’
assigned error.
(b) Advising Jennings to Accept Plea Agreement
Jennings assigned that his “counsel advised him to plea despite his mental health and
assessments indicating possible insanity defenses.” Brief for appellant at 7. However, the only
argument Jennings makes regarding advice from counsel was that counsel told him “if he did not
take a plea he would spend the rest of his life incarcerated.” Id. at 17. References to his competency
are made in conjunction with an argument that counsel failed to discuss trial strategies with him
and withdrew his insanity defense without discussing other possible defenses with him, but failure
to discuss trial strategies and withdrawal of the insanity defense are not assigned as errors.
To obtain appellate review, an error must be specifically assigned and argued. State v.
Edwards, 301 Neb. 579, 919 N.W.2d 530 (2018). Our reading of Jennings’ brief does not disclose
an argument supporting his assigned error that counsel advised him to plea despite his mental
health and assessments indicating possible insanity defenses. And counsel’s statement that he
“would spend the rest of his life incarcerated” if he did not take a plea does not rise to the level of
ineffective assistance of counsel considering the mandatory minimum of 53 years’ imprisonment
he faced under the original information and the video evidence that would be offered at trial.
Therefore, we do not further address Jennings’ assigned error.
(c) Intimidating Jennings to Accept Plea Agreement
Jennings contends that if his counsel had not told him that it would “piss the judge off” to
not take the plea agreement, then he would have insisted on going to trial. Brief for appellant at
19.
The record refutes Jennings’ contention. Jennings originally told the district court he
wished to withdraw his plea because he was not satisfied with how his counsel represented him.
He explained at the plea hearing that he felt coerced into taking his plea, yet when given the
opportunity at the plea hearing to accept the plea or not, Jennings pled no contest. Jennings raised
multiple grievances about his counsel in both letters to the court, such as his belief that his counsel
was lying to him and misleading him; that his counsel would hang up on him and not communicate
with him; and that his counsel told him he could expect “a few hundred years” if he went to trial.
All of these were reasons upon which he based his request to withdraw his plea and refute his
contention that if counsel had not told him rejecting the plea would “piss the judge off,” he would
not have taken a plea.
It is clear that Jennings was unhappy with his trial counsel. However, he failed to establish
that he would have insisted on going to trial if his trial counsel had not told him that it would “piss
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the judge off” if he did not take the plea agreement. Jennings made his dissatisfaction with his trial
counsel known at the plea hearing and two subsequent motions to withdraw hearings. And he
informed the judge that counsel told him he “was going to piss you off” if he proceeded to trial.
At each hearing, the district court asked Jennings whether he wanted to proceed to trial with
counsel or stand on his plea, and each time Jennings stood on his plea because he could not provide
good cause for appointing new counsel. Even in Jennings’ first letter to the court, he asked that he
be allowed to take the lesser plea agreement previously offered, which again negates his contention
that he would have gone to trial but for counsel’s statement. Altogether, the record refutes
Jennings’ claim of ineffective assistance of counsel.
(d) Jennings’ Remaining Arguments Were Not Assigned
Jennings raises three additional arguments in his brief to support his claim that his trial
counsel was ineffective. He argues that his trial counsel was ineffective for: (1) failing to work
with Jennings on trial strategy and by withdrawing his notice of intent to rely on insanity defense,
(2) failing to perform basic due diligence, and (3) failing to file a motion to withdraw the plea.
None of these arguments are assigned, and we will not consider an error that is not specifically
assigned and argued. State v. Edwards, 301 Neb. 579, 919 N.W.2d 530 (2018).
2. MOTION TO WITHDRAW PLEA
(a) Jennings Did Not Show Just or Fair Cause
Jennings argues he made two statements that merited good cause for the district court to
allow him to withdraw his plea. First, he had confessed to being under the influence of marijuana
and K2 at the time his plea was entered. Second, Jennings stated he felt forced to take the plea to
avoid angering the district court because his counsel had told him that she had known the judge
for over 25 years.
The right to withdraw a plea previously entered is not absolute. State v. Warner, 312 Neb.
116, 977 N.W.2d 904 (2022). When a defendant moves to withdraw his plea before sentencing, a
court, in its discretion, may sustain the motion for any fair and just reason, provided that such
withdrawal would not substantially prejudice the prosecution. Id. The defendant has the burden of
showing the grounds for withdrawal by clear and convincing evidence. Id.Our review of the record fails to contain clear and convincing evidence that Jennings was
under the influence of these drugs or that they in any way impacted his state of mind when his plea
was entered. First, Jennings told the district court that he was not under the influence of any drugs
or alcohol when he accepted his plea agreement. He was able to respond properly to all of the
questions posed to him by the court regarding the charges and his waiver of rights. Furthermore,
he engaged in a lengthy discussion with the court in which he voiced dissatisfaction with his
counsel and that he felt coerced into taking the plea because he was told if he did not, he would
spend the rest of his life in prison. Jennings’ counsel also affirmed to the court that Jennings
appeared to understand the plea agreement and the circumstances surrounding it. Jennings did not
advise the court that he was under the influence of drugs until the October 6, 2022, hearing. He
only raised his apparent intoxication after the district court overruled his second motion to
withdraw.
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There is nothing in the record which indicates that Jennings was, in fact, under the influence
of any drugs when he appeared before the court and entered his plea. Similarly, there is absolutely
nothing in the record which indicates that the drugs in any way impacted his ability to rationally
consider his alternatives and enter an intelligent plea. Because Jennings failed to provide clear and
convincing evidence to support this basis for withdrawing his plea, we cannot say that the district
court abused its discretion in denying the motion. See State v. James, 6 Neb. App. 444, 573 N.W.2d
816 (1998), disapproved on other grounds, State v. Carlson, 260 Neb. 815, 619 N.W.2d 832(2000).
Jennings asserts he should have been allowed to withdraw his plea because he told the court
he felt forced to take the plea. Jennings told the district court on three separate occasions that he
was unhappy with his trial counsel and that they intimidated him or coerced him into taking the
plea agreement. At the plea hearing and two subsequent motions to withdraw hearings, the district
court asked Jennings to provide good cause as to why he should be able to withdraw his plea or
good cause as to why new counsel should be appointed. Jennings failed to describe good cause for
either at each hearing. Furthermore, each time the district court asked whether Jennings wished to
go to trial with his current counsel or stand on his plea, Jennings opted to stand on his plea. Thus,
the district court did not abuse its discretion in not allowing Jennings to withdraw from his plea
agreement.
(b) Jennings Entered Into His Plea Agreement
Knowingly, Intelligently, and Voluntarily
Alternatively, Jennings argues that because he was under the influence of marijuana and
K2 at the time he entered into his plea agreement, he could not have knowingly, intelligently, and
voluntarily entered into his plea agreement. Jennings relies on State v. Schurman, 17 Neb. App.
431, 762 N.W.2d 337 (2009) to support his contention.
To support a finding that a plea of guilty has been entered knowingly, intelligently, and
voluntarily, 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. Ortega, 290 Neb. 172, 859
N.W.2d 305 (2015). The record must also establish a factual basis for the plea and the defendant
knew the range of penalties for the crime charged. Id.The district court complied with each requirement. Jennings confirmed his understanding
of the charges, the right to assistance of counsel, the effect of a guilty plea on his constitutional
rights, and the possible penalties. Jennings affirmed to the district court that he was not under the
influence of any narcotics. Jennings was able to explain why he wanted new counsel and the
consequences of his choices, yet after his explanation he still told the district court it was his
intention to plead no contest. Overall, Jennings’ claim that his plea was not entered into knowingly,
voluntarily, and intelligently is refuted by the record.
Furthermore, Jennings’ reliance on State v. Schurman, supra, is misplaced. In Schurman,
the defendant entered into a no contest plea without counsel for two Class I misdemeanors. At the
plea hearing, the defendant told the court he did not understand what was going on, asked how he
could get his belongings back, and asked the court to just put him in jail multiple times. After
accepting the plea agreement, the State agreed with the county court that the defendant should
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have counsel going forward and that counsel could always withdraw from the plea later. Yet, when
the defendant’s subsequently appointed counsel moved to withdraw the plea, the county court
denied the motion. We held this was an abuse of discretion because the record exhibited the
defendant’s confusion, the defendant testified that he was diagnosed with bipolar disorder and had
not slept the night before, and the defendant’s confusion was acknowledged by the county court
when it suggested that an attorney should be appointed for him.
Jennings’ case is distinguishable from Schurman for two reasons. First, Jennings had
counsel when he entered into the plea agreement, whereas the defendant in Schurman, did not.
Second, although Jennings was unhappy with his counsel, he was an able participant in the
proceedings and tried to make his case for why he felt coerced into taking the plea agreement at
the plea hearing. The record here shows that Jennings was not confused. Rather, it shows that
Jennings was aware of his rights and had the ability to weigh his decisions. When the district court
asked him during the hearing on the first motion to withdraw if he wished to go to trial with his
current counsel or stand by his plea agreement, Jennings decided to stand by his plea. In contrast,
the defendant in Schurman did not appear cognizant of the proceedings against him, which is
highlighted by him telling the county court on multiple occasions he was lost and did not know
how to get his vehicle, clothes, and other personal belongings.
Jennings’ reliance on Schurman is misplaced; thus, the district court did not abuse its
discretion in denying Jennings’ motions to withdraw his plea.
3. JENNINGS’ MOTION TO WITHDRAW COUNSEL
Finally, Jennings argues that the district court erred by denying his motion to withdraw
counsel. Specifically, Jennings argues that he should have been able to represent himself, and the
district court erred by not allowing him to do so. However, Jennings failed to assign this as an
error, so we will not address it. See State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021) (alleged
error must be both specifically assigned and specifically argued).
VI. CONCLUSION
For the foregoing reasons, we affirm Jennings’ convictions and sentences.
AFFIRMED.
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