Opinion
No. A-11-384.
03-06-2012
State of Nebraska, appellee, v. Kashaun R. McMorris, appellant.
Matthew K. Kosmicki, of Brennan & Nielsen Law Offices, P.C., for appellant. Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
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).
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed.
Matthew K. Kosmicki, of Brennan & Nielsen Law Offices, P.C., for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
IRWIN, MOORE, and CASSEL, Judges.
CASSEL, Judge.
INTRODUCTION
Kashaun R. McMorris appeals from his sentences in the district court for Lancaster County, Nebraska, for attempted first degree assault and attempted burglary, arguing excessive sentences, violation of the right to a speedy trial, acceptance of a plea that was not knowingly and voluntarily made, and ineffective assistance of counsel. The record is insufficient to address one of his ineffective assistance of counsel claims. Because the district court did not abuse its discretion in sentencing McMorris, continuing his trial, or accepting his plea, and because we find his other ineffective assistance of counsel claims to be without merit, we affirm.
BACKGROUND
McMorris' convictions arose out of two separate incidents that occurred in August 2010. On August 14, K.F. woke up in the early morning to find McMorris lying in bed with her and grabbing her throat. McMorris told her that he was going to rape her, punched her in the face, and began touching her vaginal area. When K.F. began to struggle and yell for help, McMorris fled the apartment. Upon his departure, K.F. and a friend discovered that McMorris had stolen their cellular telephones, some cash, and two rings and had hidden the cordless house telephones. It was later discovered that McMorris had entered the apartment by cutting the screen in a window to K.F.'s bedroom. Two days later, B.W. woke up when McMorris entered his bedroom at 5:25 a.m. and shone a light in his face. When B.W. got out of bed, McMorris fled the house. McMorris had entered the house by cutting the screen in a window near the front door.
McMorris was originally charged with one count of first degree sexual assault and two counts of burglary for the incidents that occurred on August 14 and August 16, 2010. McMorris pled not guilty to these charges and intended to go to trial. Trial was initially scheduled for January 2011, but in a December 23, 2010, hearing, McMorris' attorney advised the court, "I don't think I can do the kind of preparation that I think this case deserves by January 3rd, just because of the amount of evidence that I need to go through." When the court asked McMorris what he wished to do, he said that he did not wish to continue the trial for fear that to do so would waive his speedy trial rights. The court decided to leave the trial scheduled for January 3, 2011. On January 3, however, McMorris' attorney asked for a continuance because he was not ready to go to trial. When questioned by the court, McMorris again stated that he did not want to waive his speedy trial rights. The court sustained the request for a continuance over McMorris' objection, and the trial was continued to March.
By the time of trial, McMorris had reached a plea bargain with the State. As the result of the plea bargain, the charges against him were reduced to one count of attempted first degree assault and one count of attempted burglary. The first degree assault charge was an aggravated offense under Neb. Rev. Stat. § 29-4001.01(1) (Cum. Supp. 2010) because it involved the penetration of and/or direct genital touching of a victim aged 13 years or older without her consent. As part of the plea agreement, McMorris pled no contest.
At a hearing on March 9, 2011, the district court found that McMorris was "offering his plea freely, voluntarily, knowingly, and intelligently" and accepted his plea of no contest. The court subsequently found McMorris guilty on both counts of attempt.
The district court sentenced McMorris to consecutive sentences of imprisonment of 20 to 20 years for attempted first degree assault and 20 months to 5 years for attempted burglary. He was given credit for 249 days of time served. McMorris will also be subject to lifetime community supervision and lifetime registration under Nebraska's Sex Offender Registration Act (SORA), Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2008, Cum. Supp. 2010 & Supp. 2011), because the attempted first degree assault was an aggravated offense.
McMorris timely appeals. Pursuant to Neb. Ct. R. App. P. § 2-111(E)(5)(a) (rev. 2008) and because of McMorris' plea of no contest, this case was submitted without oral argument.
ASSIGNMENTS OF ERROR
McMorris alleges, restated, that the district court erred (1) in imposing sentences that were excessive, (2) in continuing the trial over his objection and consequently violating his right to a speedy trial, and (3) in accepting a plea that was not knowingly and voluntarily made because he did not know he would be subject to lifetime registration. He also alleges ineffective assistance of counsel, claiming his trial counsel was ineffective (1) in failing to investigate alibi witnesses, (2) in failing to adequately prepare the case for trial, (3) in failing to review evidence with McMorris, (4) in stating to McMorris that his wife was not a credible witness based on her deposition, (5) in advising McMorris to plead and thus waive his right to a jury trial, (6) in advising McMorris to plead based on the evidence, (7) in advising McMorris that by pleading he would get a lenient sentence, (8) in advising McMorris that if he pled he would not be subject to lifetime registration or lifetime supervision under SORA, (9) in failing to discuss the contents of the presentence investigation report with McMorris, and (10) in failing to object to the district court's sentencing McMorris to lifetime registration and lifetime supervision because McMorris was not advised by the court at the time of the plea that he was subject to lifetime registration.
STANDARD OF REVIEW
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005). An abuse of discretion in imposing a sentence occurs when a sentencing court's reasons or rulings are clearly untenable and unfairly deprive the litigant of a substantial right and a just result. Id.
A motion for a continuance is addressed to the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. Gilroy v. Ryberg, 266 Neb. 617, 667 N.W.2d 544 (2003).
A trial court is given discretion as to whether to accept a guilty plea; an appellate court will overturn that decision only where there is an abuse of discretion. State v. Williams, 276 Neb. 716, 757 N.W.2d 187 (2008). Because "[a] plea of no contest is equivalent to a plea of guilty," State v. Amaya, 276 Neb. 818, 822, 758 N.W.2d 22, 27 (2008), the same standard applies when reviewing the acceptance of a plea of no contest.
ANALYSIS
Excessive Sentences.
As stated in State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999), it is not the function of an appellate court to conduct a de novo review of the record to determine whether a sentence is appropriate. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Sanders, supra. Based on the record in this case, we do not believe that the district court abused its discretion.
Both the nature of the offense for which a defendant is being sentenced and the defendant's past criminal record are appropriate considerations in sentencing. State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011). In the instant case, both considerations weigh in favor of a longer sentence.
Although McMorris was found guilty of two counts of attempt, the underlying offenses he was trying to commit are quite serious--first degree sexual assault and burglary. Both incidents involved not only entering private residences, but bedrooms, in the middle of the night. One of these bedrooms was occupied by a single woman in her midtwenties, who McMorris proceeded to sexually assault. The evidence also suggested that McMorris may have entered B.W.'s bedroom looking for B.W.'s 20-year-old daughter, who often stayed at the house. Considering McMorris escaped a charge of first degree sexual assault only as a result of the plea agreement, his sentences were not an abuse of discretion.
McMorris' criminal record also supports the sentences imposed upon him. In addition to a significant number of traffic-related offenses, McMorris has been convicted of assault and battery (twice); assault in the third degree, terroristic threats, theft (three times); theft by receiving (twice); theft by shoplifting (twice); theft by unlawful taking (four times); theft by deception, injure or destroy property of another (twice); possession of stolen property (twice); pawn property of convicted person (twice); forgery (twice); forgery in the second degree, disturbing the peace (three times); obstructing peace officer (twice); making false statements to police officer (five times); refusal to comply with order of police (twice); failure to appear (four times); attempted criminal mischief, propel projectile with explosive device (twice); carrying a concealed weapon (twice); possession of marijuana (five times); and possession of drug paraphernalia (three times). In addition, at the time of the presentence investigation, there was an active warrant for McMorris' arrest in Douglas County, Nebraska, for burglary.
McMorris argues that his sentences are excessive because he does not have a violent past history, apologized for his actions, took responsibility for his actions by pleading no contest, and spared the victims and the State the expense of going to trial. He also claims that probation, lifetime supervision, and lifetime registration would have provided him the opportunity for rehabilitation, deterred him from committing other crimes, and provided adequate protection for society. Because of McMorris' long list of past convictions—including two previous assaults and batteries and indicating a tendency for recidivism--and because of the particularly serious nature of the present offenses, we find no merit to McMorris' arguments. The district court did not abuse its discretion in sentencing McMorris.
Speedy Trial.
McMorris next contends that the district court abused its discretion in continuing the trial over his objection and that he was deprived of his speedy trial rights as a consequence. While we agree with the State that the argument in McMorris' brief on this issue is severely deficient, we nonetheless choose to address this assignment of error and conclude that it lacks merit.
The district court did not abuse its discretion in granting the continuance over McMorris' objection because the court did so for a sufficient reason—to avoid the violation of his right to the effective assistance of counsel. The court explained its decision to continue the trial as follows:
I'm going to sustain the motion by [McMorris' attorney] to continue this trial to the March 7th, 2011[,] [j]ury [t]erm. If I force him to go to trial at this point with him telling me he's not prepared and there's more work he needs to do, I fear that that would violate [McMorris'] constitutional rights . . . to have effective assistance of counsel.Given that McMorris' attorney had advised the court two times that he was unprepared for trial, the district court's concerns were not unfounded and its decision to continue the trial to enable counsel to perform effectively was not an abuse of discretion.
Furthermore, the district court did not violate McMorris' statutory speedy trial rights because he had already waived those rights through his attorney's motion for a continuance. Defense counsel's request for a continuance in order to prepare for trial waives a defendant's statutory right to a speedy trial despite the defendant's objections to the continuance. State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004). Even if McMorris had not waived his statutory speedy trial rights when his attorney moved for a continuance, he effectively waived those rights a second time when he entered a plea of no contest. See Neb. Rev. Stat. § 29-1209 (Reissue 2008). And even if McMorris had not waived his statutory speedy trial rights two separate times, he was brought to trial within the 6-month statutory requirement. To calculate the time for speedy trial purposes, a court must exclude the day the information was filed, count forward 6 months, back up 1 day, and then add any time excluded under Neb. Rev. Stat. § 29-1207(4) (Cum. Supp. 2010) to determine the last day the defendant can be tried. State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010). The original information was filed on September 24, 2010. Even without considering any time excluded due to intervening motions, the earliest McMorris needed to be brought to trial was March 24, 2011. He pled on March 9, well within the statutory limit.
As for McMorris' constitutional speedy trial rights, he waived those rights by failing to raise a speedy trial objection in the district court before entering his plea. An appellate court does not review questions concerning a defendant's constitutional right to a speedy trial when those questions are not raised in both the trial court and the appellate court. State v. Karch, 263 Neb. 230, 639 N.W.2d 118 (2002). For the sake of completeness, we also note that the circumstances surrounding McMorris' case do not indicate that his rights would have been violated had they not been waived. Determining whether a defendant's constitutional right to a speedy trial has been violated requires a balancing test in which the courts must approach each case on an ad hoc basis. State v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005). This balancing test involves four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant. Id. In McMorris' case, the delay resulting from the continuance was not insignificant, but was justified based on the district court's concern that his right to the effective assistance of counsel might otherwise be violated. Given the alternative to the delay—going to trial with an unprepared attorney—the prejudice to McMorris was minimal. Considering McMorris did not even assert his right, the court did not violate his constitutional speedy trial rights by granting the continuance.
For all of these reasons, McMorris' assignment of error based on a violation of his right to a speedy trial is without merit.
Plea Was Knowingly and Voluntarily Made.
McMorris' argument that the district court abused its discretion in accepting his plea of no contest is without merit. He argues that his plea was not knowingly and voluntarily made because he was not advised that his plea would subject him to lifetime registration under SORA. However, the district court was not required to inform McMorris of the registration requirement in order for his plea to be considered valid. We have held that "being subject to lifetime registration is not part of the potential penalties about which a criminal defendant must be advised . . . in order for the plea to be deemed voluntary and valid." State v. Simnick, 17 Neb. App. 766, 774, 771 N.W.2d 196, 205 (2009), reversed in part 279 Neb. 499, 779 N.W.2d 335 (2010). Similarly, the Nebraska Supreme Court held in State v. Schneider, 263 Neb. 318, 324, 640 N.W.2d 8, 13 (2002), that a district court is "not required to inform [a defendant] of the collateral consequence of the duties imposed under [SORA] before accepting his pleas of no contest and that his pleas were not rendered involuntary or unintelligent because he was not aware of this requirement." Therefore, the district court did not abuse its discretion either in failing to inform McMorris of the lifetime registration requirement or in accepting his plea as knowingly and voluntarily made.
Ineffective Assistance of Counsel.
A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010). The determining factor is whether the record is sufficient to adequately review the question. Id.
We have generally reached ineffective assistance of counsel claims on direct appeal only in those instances where it was clear from the record that such claims were without merit or in the rare case where trial counsel's error was "'so egregious and resulted in such a high level of prejudice [that] no tactic or strategy can overcome the effect of the error, which effect was a fundamentally unfair trial.'"State v. Sidzyik, 281 Neb. 305, 311, 795 N.W.2d 281, 287 (2011) (quoting State v. Young, supra).
McMorris alleges 10 particular ways in which his trial counsel was ineffective and argues that the record is not sufficient to review any of these allegations. In regard to 7 of the 10 allegations of ineffective assistance of counsel, the State agrees that the record is not sufficient for review on direct appeal. We do not agree. For reasons that will be explained below, we find that nine of McMorris' claims of ineffective assistance of counsel can be addressed on the existing record and are without merit. However, the record is insufficient to address his fourth claim. We are not barred from considering the merits of the remaining allegations on direct appeal despite the parties' assertions that the record is generally insufficient, and, indeed, ample precedent supports our decision to do so. See, State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010); State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003), disapproved on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007); State v. Fletcher, 8 Neb. App. 498, 596 N.W.2d 717 (1999).
In the case of 4 of the 10 allegations, the real issue is not the sufficiency of the record, but the sufficiency of the allegations. In order to prevail on a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that he or she was prejudiced by such deficiency. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011). When an appellant does not allege both prongs of ineffective assistance of counsel, "resolution of his assertions of ineffective assistance of counsel hinge[s] not on the adequacy of the record before us, but on his failure to provide this court with sufficient allegations of ineffective assistance of counsel." State v. Derr, 19 Neb. App. 326, 329, ___ N.W.2d ___ , ___ (2011). In the case of McMorris' first, second, third, and sixth allegations, we find the allegations to be insufficient because he either fails to allege prejudice or deficient performance.
McMorris first alleges that his attorney was ineffective by failing to investigate alibi witnesses. He claims that he was prejudiced by this failure because the alibi testimony "would have supported [his] defense that he could not have possibly committed these offenses." Brief for appellant at 30. However, he does not allege the identity of any purported alibi witnesses. Based upon the reasoning of State v. Derr, supra, this does not amount to a sufficient allegation of prejudice. In Derr, we held that the defendant failed to allege prejudice in each of three allegations of ineffective assistance of counsel. For purposes of the case before us, we specifically note the defendant's third allegation, in which he alleged that his counsel was ineffective for failing to inform him that the sentencing hearing could be continued in order to obtain further evidence and expert witnesses. Because the defendant did not specifically allege what other evidence or testimony he would have presented at the sentencing hearing, we held that he failed to show it would have altered the outcome and that he did not demonstrate prejudice. This builds upon the basic principle that "[t]o prove prejudice, the defendant must show there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Nelson, 274 Neb. 304, 311, 739 N.W.2d 199, 205 (2007).
In the case before us, like the situation in Derr, McMorris fails to show that the outcome would have been altered by the alibi witnesses. Without more information about his alleged alibi defense, there is no way to assess whether there is a reasonable probability that the alibi defense would have changed the outcome of the proceeding. Therefore, McMorris does not sufficiently allege prejudice. Given this deficiency in his allegation, we find his first allegation of ineffective assistance of counsel to be without merit.
McMorris' third allegation—that his attorney failed to review the State's evidence with him--similarly fails to allege prejudice. He claims that he "was prejudiced by trial counsel's defective performance because he entered a plea instead of pursuing a trial." Brief for appellant at 32. Again, without knowing what McMorris believed the State's evidence was, we cannot determine whether there is a reasonable probability that reviewing the evidence would have resulted in McMorris' choosing to go to trial instead of pleading. Because McMorris does not sufficiently allege prejudice, the third allegation of ineffective assistance of counsel is without merit.
Where McMorris' first and third allegations are lacking in the details necessary to sufficiently allege prejudice, his second and sixth allegations are lacking in the details of his attorney's deficient performance. To demonstrate that his or her counsel's performance was deficient, a defendant must show that counsel did not perform at least as well as a criminal lawyer with ordinary training and skill in the area. State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011). Yet, the entirety of McMorris' second allegation is that his attorney "failed to adequately prepare his case for trial." Brief for appellant at 31. In his sixth allegation, McMorris merely states that he "was prejudiced by counsel's defective performance." Brief for appellant at 34. Without providing a more detailed account of his attorney's performance, McMorris cannot demonstrate that his attorney performed deficiently. Because he does not sufficiently allege deficient performance, the second and sixth allegations of ineffective assistance of counsel lack merit.
Of the remaining six allegations of ineffective assistance of counsel, five are without merit for various reasons that we outline below.
In his fifth allegation, McMorris argues that his counsel was ineffective in advising him to plead and waive his right to a jury trial. The decision to waive a jury trial is ultimately and solely the defendant's, and, therefore, the defendant must bear the responsibility for that decision. State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011). Counsel's advice to waive a jury trial can be the source of a valid claim of ineffective assistance only when (1) counsel interferes with his or her client's freedom to decide to waive a jury trial or (2) the appellant can point to specific advice of counsel so unreasonable as to vitiate the knowing and intelligent waiver of the right. Id. McMorris neither alleges that his counsel interfered with his freedom to decide nor points to specific, unreasonable advice of his counsel. Therefore, this fifth allegation is without merit as an ineffective assistance of counsel claim.
With regard to McMorris' seventh and eighth allegations, the precedent of State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007), and State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010), indicates that these allegations are insufficient to raise an ineffective assistance of counsel claim because they directly contradict statements made by McMorris during the plea hearing. In State v. McLeod, supra, the defendant alleged ineffective assistance of counsel, stating that his counsel induced him to plead by making assurances about sentencing. The defendant had previously denied at the plea hearing that any promises had been made to him. The Nebraska Supreme Court ruled that, given his prior responses at the plea hearing, "[t]he statements which [the defendant] now attributes to his lawyer do not constitute a basis for postconviction relief." Id. at 574, 741 N.W.2d at 672. State v. Vo, supra, was based on similar facts. In that case, the court held that "[h]aving unequivocally represented to the court on the record that no promises were made by anyone regarding his sentence, [the defendant] is not entitled to an evidentiary hearing on his postconviction claim to the contrary." Id. at 973, 783 N.W.2d at 423.
Like with the defendants in McLeod and Vo, McMorris' seventh and eighth allegations directly contradict his responses during the plea hearing. In the seventh allegation, McMorris argues that his counsel was ineffective for advising him that by pleading he would receive a lenient sentence. And in the eighth allegation, he argues that his counsel was ineffective for advising him that he would not be subject to lifetime registration. In both instances, McMorris argues that his counsel's advice improperly influenced his decision to plead. Yet, when asked by the district court, McMorris denied having received any promises regarding sentencing. During the plea hearing, the court specifically asked McMorris the following series of questions:
THE COURT: Other than the promises that the attorneys have just disclosed to me, has there been any promise of any nature made to you by anyone?These responses directly contradict McMorris' seventh and eighth allegations on appeal. Therefore, these allegations are without merit.
[McMorris]: No.
THE COURT: Has there been any promise made to you with regard to sentencing?
[McMorris]: No.
THE COURT: Has there been any threat, use of force, or other inducement made in order to get you to offer the plea that you're offering?
[McMorris]: No.
THE COURT: Are you offering your plea freely and voluntarily?
[McMorris]: Yes.
Although the circumstances surrounding McMorris' ninth allegation are slightly different, we also regard this allegation as lacking merit because it is based upon facts contrary to McMorris' previous response in court. In his ninth allegation, McMorris argues that his attorney was ineffective by failing to discuss the presentence investigation report with him. However, in the sentencing hearing, the district court specifically asked McMorris whether he had the opportunity to review the presentence report with his counsel. McMorris responded, "Yes, I did." Because the ninth allegation contradicts a previous statement made by McMorris on the record before the district court, it is akin to the situations in State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007), and State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010), and is without merit. Furthermore, even if one believes McMorris' later contention that he did not have a chance to review the presentence investigation report, it is clear that he waived his right to review the report by failing to inform the court that he had not had the opportunity to do so. See State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002). Because of this waiver of his right to view the presentence investigation report, the claim that his attorney was ineffective by failing to review the report with him is without merit. See id.
McMorris' 10th ineffective assistance of counsel claim is that his counsel erred by failing to object to the district court's sentencing because it included lifetime registration and lifetime supervision, of which McMorris claims he was not completely advised prior to sentencing. As we explained above, the district court was not required to inform McMorris that he would be subject to lifetime registration because it is considered a collateral consequence of sentencing. And the court did in fact inform McMorris that he would be subject to lifetime supervision. Any objection to the district court's sentencing on these grounds would, therefore, have been without merit. Defense counsel is not ineffective for failing to raise an argument that has no merit. State v. Vo, supra. Consequently, McMorris' 10th allegation of ineffective assistance of counsel lacks merit.
We finally turn to McMorris' fourth claim of ineffective assistance of counsel, which alleges that his counsel inaccurately told him that his wife's testimony was not credible. Because the record includes no information as to McMorris' counsel's reasons for concluding that McMorris' wife was not credible, we agree with the parties that this allegation cannot be decided on the current record.
In summary, we find the record sufficient to address nine of McMorris' ineffective assistance of counsel claims and determine that all lack merit. Because the record is not sufficient as to the remaining claim, alleging that his counsel was ineffective in telling him that his wife was not a credible witness, we decline to address it.
CONCLUSION
Because of the violent nature of the crimes McMorris committed and his past criminal record, the district court did not impose excessive sentences. Neither did the court abuse its discretion in granting a continuance over McMorris' objection, where the continuance was necessary to protect McMorris' right to the effective assistance of counsel. And because lifetime registration is a collateral consequence, the district court did not abuse its discretion either in failing to inform McMorris of that requirement or in accepting his plea as knowingly and voluntarily made. Finally, we hold that all of McMorris' claims of ineffective assistance of counsel except for the one related to his wife's credibility can be addressed on direct appeal and are without merit. Accordingly, we affirm.
AFFIRMED.