State v. Spang , 302 Neb. 285 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/01/2019 09:06 AM CST
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    STATE v. SPANG
    Cite as 
    302 Neb. 285
    State of Nebraska, appellee, v.
    Ross W. Spang, appellant.
    ___ N.W.2d ___
    Filed February 15, 2019.   Nos. S-18-450, S-18-451.
    1.	 Effectiveness of Counsel: Appeal and Error. Appellate review of a
    claim of ineffective assistance of counsel is a mixed question of law and
    fact. When reviewing a claim of ineffective assistance of counsel, an
    appellate court reviews the factual findings of the lower court for clear
    error. With regard to the questions of counsel’s performance or prejudice
    to the defendant as part of the two-pronged test articulated in Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984),
    an appellate court reviews such legal determinations independently of
    the lower court’s decision.
    2.	 ____: ____. 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’s performance was deficient and whether the defendant
    was or was not prejudiced by counsel’s alleged deficient performance.
    3.	 Sentences: Appeal and Error. Whether an appellate court is reviewing
    a sentence for its leniency or its excessiveness, a sentence imposed by
    a district court that is within the statutorily prescribed limits will not
    be disturbed on appeal unless there appears to be an abuse of the trial
    court’s discretion.
    4.	 Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
    counsel is different from his or her counsel on direct appeal, the defend­
    ant 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. Once raised, the appellate court
    will determine whether the record on appeal is sufficient to review the
    merits of the ineffective performance claims.
    5.	 Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
    ineffective assistance of counsel claim will not be addressed on direct
    appeal if it requires an evidentiary hearing.
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    6.	 Effectiveness of Counsel: Records: Appeal and Error. The trial
    record reviewed on appeal is devoted to issues of guilt or innocence; as
    such, it does not usually address issues of counsel’s performance and is
    often insufficient to review on direct appeal an ineffective assistance of
    counsel claim.
    7.	 Effectiveness of Counsel: Records: Proof: Appeal and Error. 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 estab-
    lish prejudice.
    8.	 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 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.
    9.	 ____: ____. To show deficient performance, a defendant must show that
    counsel’s performance did not equal that of a lawyer with ordinary train-
    ing and skill in criminal law in the area.
    10.	 ____: ____. To show prejudice, the defendant must demonstrate a rea-
    sonable probability that but for counsel’s deficient performance, the
    result of the proceeding would have been different.
    11.	 Issue Preclusion: Words and Phrases. Issue preclusion means that
    when an issue of ultimate fact has once been determined by a valid and
    final judgment, that issue cannot again be litigated between the same
    parties or their privies in any future lawsuit.
    12.	 Issue Preclusion. There are four conditions that must exist before issue
    preclusion may apply: (1) The identical issue was decided in a prior
    action, (2) there was a judgment on the merits which was final, (3) the
    party against whom the rule is applied was a party or in privy with a
    party to the prior action, and (4) there was an opportunity to fully and
    fairly litigate the issue in the prior action.
    13.	 Issue Preclusion: Prior Convictions. Issue preclusion does not apply to
    determinations of whether prior convictions can be used to enhance the
    classification of or sentence imposed on a subsequent conviction.
    14.	 Judgments: Appeal and Error. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    15.	 Sentences. When imposing a sentence, a sentencing judge should con-
    sider the defendant’s (1) age, (2) mentality, (3) education and experi-
    ence, (4) social and cultural background, (5) past criminal record or
    record of law-abiding conduct, and (6) motivation for the offense, as
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    well as (7) the nature of the offense, and (8) the violence involved in the
    commission of the crime.
    16.	 ____. The appropriateness of a sentence is necessarily a subjective judg-
    ment 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.
    Appeals from the District Court for Lancaster County: John
    A. Colborn, Judge. Affirmed.
    Joseph D. Nigro, Lancaster County Public Defender, and
    Robert G. Hays for appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    These consolidated cases present direct appeals by the
    defendant of his convictions for driving under the influence
    (DUI), fifth offense, a Class IIA felony, and aggravated DUI,
    fifth offense, a Class II felony. The defendant’s convictions
    arise out of a no-contest plea agreement involving two sepa-
    rate criminal cases. The central issue raised by the defendant
    on appeal is whether his trial counsel was ineffective by fail-
    ing to offer at the enhancement hearing available evidence that
    allegedly would have established that the State was precluded
    from relitigating a Wisconsin court’s determination that a prior
    conviction was invalid for enhancement purposes. The defend­
    ant also asserts that his sentences are excessive.
    FACTS
    DUI Incidents
    Ross W. Spang’s DUI convictions that are challenged on
    appeal are based on the following facts occurring in May and
    August 2016 respectively.
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    In May 2016, an officer witnessed Spang turn the wrong
    way driving down a one-way street. The officer initiated a traf-
    fic stop and immediately noticed that Spang was intoxicated
    based on his slurred speech; red, watery eyes; and a strong
    odor of alcohol coming from him. The officer ordered Spang to
    exit his vehicle, and Spang fell down while exiting. The officer
    testified that Spang showed signs of impairment during his
    field sobriety test and that he failed his preliminary breath test.
    After being arrested and transported to jail, Spang completed
    a Breathalyzer test with a result of 0.190 grams of alcohol per
    0.210 liters of his breath.
    In August 2016, a state trooper pulled Spang’s vehicle over
    after observing it traveling 82 miles per hour in a 60-mile-per-
    hour zone. The trooper initiated a traffic stop. The vehicle was
    being driven by Spang and had two passengers. When he made
    contact with Spang, the trooper could detect a strong odor
    of alcohol.
    When prompted for his identification, Spang identified him-
    self as “Reid Alan Spang.” The trooper eventually learned that
    Spang had given a false name and that his true identity was
    “Ross Wayne Spang” with an address in Wisconsin.
    The trooper later isolated the alcohol odor to Spang and had
    him submit to a field sobriety test and a preliminary breath test.
    During the field sobriety test, the trooper saw signs of impair-
    ment. In addition, the preliminary breath test showed a result
    of 0.128. Based on these circumstances, the trooper informed
    Spang that he was under arrest. However, when the trooper
    attempted to handcuff Spang, Spang ran from the trooper and
    escaped arrest. The trooper was unable to locate Spang and put
    him into custody at that time.
    Plea Agreement and Verdict
    Spang was charged in two separate cases. In case No.
    S-18-450, Spang was originally charged with aggravated DUI
    (in excess of 0.15) with four or more prior convictions, a
    Class II felony. In case No. S-18-451, Spang was originally
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    charged with DUI with four or more prior convictions, a
    Class IIA felony, and felony escape.
    A plea agreement was eventually reached between Spang
    and the State wherein Spang agreed to plead no contest to the
    DUI charges in exchange for dismissal of the felony escape
    charge. The district court advised Spang of the rights he was
    waiving by entering his pleas, and a factual basis was provided.
    The district court accepted the pleas and found Spang guilty of
    both DUI charges.
    Enhancement Hearing and Sentencing
    An enhancement hearing was held, and the State offered
    certified copies of Spang’s four prior DUI convictions from
    Wisconsin in 2004, 2006, 2007, and 2012. Spang’s trial coun-
    sel did not object to the introduction or receipt of the evi-
    dence of the prior convictions. However, Spang’s trial counsel
    argued that the 2006 conviction was invalid for enhancement
    purposes, because it did not reflect that Spang had effectively
    waived counsel in that case. Spang’s counsel pointed out that
    this deficient waiver led to a subsequent Wisconsin decision in
    2012, for an offense committed in 2011, holding that this prior
    2006 conviction was not valid for enhancement purposes in
    Wisconsin. And counsel asserted that the State was precluded
    from relitigating the Wisconsin court’s determination.
    Spang’s trial counsel offered into evidence, and the court
    received, a copy of the Wisconsin circuit court’s 2012 judg-
    ment of conviction and docket entries for Spang’s 2011 offense.
    These 2011-12 records reflect that the Wisconsin circuit court
    granted Spang’s motion to preclude the use of a 2006 prior
    conviction for enhancement purposes in that case and that
    Spang’s 2012 conviction was amended to a third offense rather
    than a fourth offense based on that preclusion. However, these
    records did not reflect on what basis the prior conviction was
    found invalid for enhancement purposes.
    At the enhancement hearing, the State did not dispute that
    the 2006 conviction was the same conviction found defective
    and invalid for enhancement purposes in Wisconsin. However,
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    the State argued that such fact alone did not render it invalid
    in Nebraska for enhancement purposes. The State noted that
    there were different requirements for effective waiver of
    counsel between the two states and that the 2006 conviction
    document entered into evidence by the State reflected that
    Spang was advised of his rights and affirmatively waived
    his right to counsel in relation to the 2006 conviction. The
    State then argued that any attempt by Spang to challenge the
    validity of the waiver of counsel that occurred in the 2006
    Wisconsin case would be an impermissible collateral attack
    under Nebraska law.
    The district court found that the 2006 conviction, as well
    as the three other prior convictions, were valid prior convic-
    tions for enhancement purposes in Nebraska. The court found
    that the records entered into evidence by the State reflected
    that the defendant had counsel in three of his four convictions
    and that the State had demonstrated a sufficiently clear waiver
    under Nebraska law of his right to counsel in relation to the
    2006 conviction.
    In case No. S-18-451, the district court sentenced Spang to 5
    to 10 years’ imprisonment and a 15-year license revocation for
    DUI, fifth offense. In case No. S-18-450, the aggravated DUI,
    fifth offense conviction, Spang was sentenced 10 to 15 years’
    imprisonment and a 15-year license revocation. The sentences
    were ordered to run consecutively, resulting in an aggregate
    sentence of 15 to 25 years’ imprisonment.
    Postconviction R elief
    Spang’s trial counsel did not file a direct appeal for this mat-
    ter. Following his sentencing, Spang initiated a timely postcon-
    viction action challenging trial counsel as ineffective for failing
    to object to the introduction and receipt of the 2006 conviction,
    offer necessary evidence regarding the 2006 conviction, and
    file a direct appeal.
    The district court concluded that Spang’s trial counsel was
    ineffective for not advising Spang about his right to appeal
    and the 30-day time limit for filing an appeal. The district
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    court found this warranted a reinstatement of Spang’s direct
    appeal right but declined to address the remaining postconvic-
    tion claims.
    ASSIGNMENTS OF ERROR
    Spang assigns that (1) he was denied due process and the
    effective assistance of counsel when his trial counsel failed to
    offer at the enhancement hearing a Wisconsin motion to pre-
    clude the consideration of a prior conviction and (2) the district
    court erred in imposing excessive sentences.
    STANDARD OF REVIEW
    [1] Appellate review of a claim of ineffective assistance of
    counsel is a mixed question of law and fact.1 When review-
    ing a claim of ineffective assistance of counsel, an appellate
    court reviews the factual findings of the lower court for clear
    error.2 With regard to the questions of counsel’s performance
    or prejudice to the defendant as part of the two-pronged test
    articulated in Strickland v. Washington,3 an appellate court
    reviews such legal determinations independently of the lower
    court’s decision.4
    [2] 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’s performance was
    deficient and whether the defendant was or was not prejudiced
    by counsel’s alleged deficient performance.5
    [3] Whether an appellate court is reviewing a sentence for
    its leniency or its excessiveness, a sentence imposed by a
    1
    State v. Filholm, 
    287 Neb. 763
    , 
    848 N.W.2d 571
     (2014).
    2
    
    Id.
    3
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    4
    State v. Filholm, supra note 1.
    5
    See, State v. Mendez-Osorio, 
    297 Neb. 520
    , 
    900 N.W.2d 776
     (2017); State
    v. Casares, 
    291 Neb. 150
    , 
    864 N.W.2d 667
     (2015).
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    district court that is within the statutorily prescribed limits will
    not be disturbed on appeal unless there appears to be an abuse
    of the trial court’s discretion.6
    ANALYSIS
    Ineffective Assistance of Counsel
    On direct appeal, Spang argues that he was denied due
    process and the effective assistance of counsel at trial as a
    result of trial counsel’s failure to offer certain evidence at
    the enhancement hearing. Specifically, Spang argues that his
    trial counsel was ineffective in failing to offer his motion to
    preclude from the 2011-12 Wisconsin case, which allegedly
    would have explained in sufficient detail the grounds for the
    Wisconsin court’s order for purposes of issue preclusion, some-
    times referred to as collateral estoppel.
    [4-7] 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 in order to preserve such claim.7 Once raised, the
    appellate court will determine whether the record on appeal is
    sufficient to review the merits of the ineffective performance
    claims.8 An ineffective assistance of counsel claim will not be
    addressed on direct appeal if it requires an evidentiary hear-
    ing.9 The trial record reviewed on appeal is devoted to issues of
    guilt or innocence; as such, it does not usually address issues
    of counsel’s performance and is often insufficient to review
    on direct appeal an ineffective assistance of counsel claim.10
    6
    State v. Fields, 
    268 Neb. 850
    , 
    688 N.W.2d 878
     (2004).
    7
    See, State v. Abdullah, 
    289 Neb. 123
    , 
    853 N.W.2d 858
     (2014); State
    v. Williams, 
    259 Neb. 234
    , 
    609 N.W.2d 313
     (2000). See, also, State v.
    Filholm, supra note 1.
    8
    State v. Abdullah, supra note 7.
    9
    Id.
    10
    See, id.; State v. Filholm, supra note 1. See, also, State v. Williams, 
    supra note 7
    .
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    However, 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.11
    [8-10] To prevail on a claim of ineffective assistance of
    counsel under Strickland v. Washington,12 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.13 An appellate court may
    address the two prongs of this test, deficient performance and
    prejudice, in either order.14 To show deficient performance, a
    defendant must show that counsel’s performance did not equal
    that of a lawyer with ordinary training and skill in criminal
    law in the area.15 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.16
    The record on appeal does not contain the 2011 motion to
    preclude, which Spang argues would have established for the
    purpose of issue preclusion that the Wisconsin court decided an
    identical issue to the one before the trial court in the enhance-
    ment hearing. Nevertheless, we are able to determine that trial
    counsel’s performance in failing to offer the Wisconsin motion
    to preclude did not prejudice Spang, because issue preclusion
    does not apply in sentence enhancement proceedings.17
    [11,12] Issue preclusion means that when an issue of ulti-
    mate fact has once been determined by a valid and final judg-
    ment, that issue cannot again be litigated between the same
    11
    See State v. Filholm, supra note 1.
    12
    Strickland v. Washington, 
    supra note 3
    .
    13
    See State v. Marks, 
    286 Neb. 166
    , 
    835 N.W.2d 656
     (2013).
    14
    State v. Filholm, supra note 1.
    15
    State v. Vanderpool, 
    286 Neb. 111
    , 
    835 N.W.2d 52
     (2013).
    16
    
    Id.
    17
    See State v. Bruckner, 
    287 Neb. 280
    , 
    842 N.W.2d 597
     (2014).
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    parties or their privies in any future lawsuit.18 There are four
    conditions that must exist before issue preclusion may apply:
    (1) The identical issue was decided in a prior action, (2) there
    was a judgment on the merits which was final, (3) the party
    against whom the rule is applied was a party or in privy with
    a party to the prior action, and (4) there was an opportunity to
    fully and fairly litigate the issue in the prior action.19
    [13] In State v. Bruckner,20 we held that regardless of whether
    these four conditions are met, issue preclusion does not apply
    to determinations of whether prior convictions can be used to
    enhance the classification of or sentence imposed on a subse-
    quent conviction. Indeed, noting prior decisions by our court in
    which we were less than clear as to whether our holding was
    fact dependent, we stated that we were conclusively determin-
    ing the “broader question of whether [issue preclusion] could
    ever apply in a sentence enhancement proceeding.”21
    In the criminal context, issue preclusion is a component of
    the Double Jeopardy Clause, and double jeopardy does not
    bar the use of prior convictions for enhancement purposes.22
    While we said this did not conclusively determine the appli-
    cability of issue preclusion, we were also persuaded by the
    public policy expressed by other jurisdictions similarly hold-
    ing that issue preclusion does not apply to sentence enhance-
    ment proceedings.23
    We were persuaded that concerns of public safety and
    reaching the right result, which are peculiar to the criminal
    process, outweigh the efficiency concerns that might otherwise
    favor application of issue preclusion.24 Further, applying issue
    18
    
    Id.
    19
    
    Id.
    20
    
    Id.
    21
    Id. at 284, 842 N.W.2d at 600 (emphasis supplied).
    22
    See id.
    23
    See id.
    24
    Id.
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    p­ reclusion to prevent retrial of the validity of a prior convic-
    tion would undermine public confidence in the ability of the
    system to apply statutes prescribing increased punishment for
    repeat offenders.25 Finally, allowing retrial of the validity of a
    prior conviction for purposes of enhancement only increases
    the accuracy of the sentencing proceeding for both the State
    and the defendant.26
    In order to show prejudice, the defendant must demon-
    strate a reasonable probability that but for counsel’s deficient
    performance, the result of the proceeding would have been
    different. In light of our broad holding in Bruckner that issue
    preclusion does not apply to sentence enhancement proceed-
    ings, no amount of proof establishing the four conditions of
    issue preclusion would have made a difference. Thus, upon the
    record, we can conclude that Spang was not prejudiced by his
    trial counsel’s failure to offer into evidence at the enhancement
    hearing the Wisconsin motion to preclude.
    Excessive Sentences
    Spang next assigns that the district court erred by imposing
    excessive sentences. When a trial court’s sentence is within the
    statutory guidelines, the sentence will be disturbed by an appel-
    late court only when an abuse of discretion is shown.27
    DUI, fifth offense, is a Class IIA felony punishable by 2
    to 20 years’ imprisonment and a mandatory 15-year license
    revocation.28 Spang was sentenced to 5 to 10 years’ impris-
    onment and a 15-year license revocation for this conviction.
    Aggravated DUI, fifth offense, is a Class II felony punish-
    able by 2 to 50 years’ imprisonment and a mandatory 15-year
    license revocation.29 Spang was sentenced to 10 to 15 years’
    25
    
    Id.
    26
    See 
    id.
    27
    State v. Huff, 
    282 Neb. 78
    , 
    802 N.W.2d 77
     (2011).
    28
    See 
    Neb. Rev. Stat. §§ 60-6
    ,197.03(9) (Cum. Supp. 2018) and 28-105
    (Reissue 2016).
    29
    See §§ 60-6,197.03(10) and 28-105.
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    imprisonment and a 15-year license revocation for this convic-
    tion. Because each of these sentences is within the statutory
    limitations, Spang’s sentences will be disturbed only upon a
    finding of abuse of discretion.
    [14-16] An abuse of discretion occurs when a trial court’s
    decision is based upon reasons that are untenable or unreason-
    able or if its action is clearly against justice or conscience, rea-
    son, and evidence.30 When imposing a sentence, a sentencing
    judge should consider 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 violence involved in the commission of the
    crime.31 The appropriateness of a sentence is necessarily a sub-
    jective judgment and includes the sentencing judge’s observa-
    tion of the defendant’s demeanor and attitude and all the facts
    and circumstances surrounding the defendant’s life.32
    We find that the sentencing court did not consider any
    inappropriate or unreasonable factors in determining Spang’s
    sentences. Further, having reviewed the 2006 conviction and
    the evidence offered at the sentencing hearing, we find that
    the court did not make its decision based upon reasons that are
    untenable or unreasonable, nor was its action clearly against
    justice or conscience, reason, and evidence.
    CONCLUSION
    Based on the findings above, we affirm the district court’s
    decision.
    A ffirmed.
    30
    State v. Collins, 
    292 Neb. 602
    , 
    873 N.W.2d 657
     (2016).
    31
    State v. Huff, supra note 27.
    32
    State v. Custer, 
    292 Neb. 88
    , 
    871 N.W.2d 243
     (2015).