Opinion
No. A-11-958
10-30-2012
STATE OF NEBRASKA, APPELLEE, v. WILLIAM WORLEY, JR., APPELLANT.
Jason E. Troia and Mallory N. Garth, of Dornan, Lustgarten & Troia, P.C., L.L.O., for appellant. Jon Bruning, Attorney General, and Carrie A. Thober for apellee.
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 Douglas County: J RUSSELL DERR, Judge. Affirmed.
Jason E. Troia and Mallory N. Garth, of Dornan, Lustgarten & Troia, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Carrie A. Thober for apellee.
IRWIN, PIRTLE, and RIEDMANN, Judges.
IRWIN, Judge.
I. INTRODUCTION
William Worley, Jr., appeals his convictions of four counts of attempted assault on a peace officer, four counts of use of a deadly weapon to commit a felony, criminal mischief, operating a motor vehicle to avoid arrest, and being a habitual criminal. On appeal, Worley challenges the failure of the district court for Douglas County to correctly advise him at the plea hearing, the district court's failure to sustain his plea in abatement, the sufficiency of the evidence to support the convictions for attempted assault on a peace officer and use of a deadly weapon to commit a felony, the district court's failure to grant his motion for new trial, the habitual criminal enhancement, and the effectiveness of his trial counsel. We find no merit to any of Worley's assigned errors, and we affirm.
II. BACKGROUND
Shortly before 10 p.m. on May 11, 2010, Omaha police officers received alerts of a possible robbery at a Kohl's store near 72d and Pacific Streets. The officers were informed that two women had entered the store, taken merchandise, and fired a shot at the door. The women entered a vehicle and fled northbound on 72d Street. Worley was later identified as the driver of the vehicle.
Officers initiated a pursuit of Worley's vehicle, and Worley led them on a chase reaching speeds of 60 to 75 miles per hour. Three police cruisers were involved in the pursuit: Officers Robert Wiley and Doug Johnson in cruiser 395, Officers Jodi Sautter and Ann Marie Doyle in cruiser 290, and Officer Steven F. Williams in cruiser 491.
When Worley began to approach Interstate 80, officers received permission to execute a pursuit intervention technique (PIT) maneuver. In employing a PIT maneuver, officers use their cruiser to hit a point on the suspect's vehicle to either disable it or make it spin out and stop with a minimum amount of damage to either vehicle. Officer Wiley implemented PIT maneuvers on Worley's vehicle on the Interstate 80 eastbound onramp, and on the third attempt, Worley's vehicle spun out and came to a stop just before reaching Interstate 80, with its front end facing due south toward the guardrail.
Officer Wiley parked cruiser 395 to the east of Worley's vehicle, at an angle to block Worley. Officer Sautter parked cruiser 290 to the west of Worley's vehicle, with the front end of the cruiser facing northeast and facing the front end of Worley's vehicle. Officer Williams arrived at the scene moments later and parked cruiser 491 directly behind cruiser 290.
Worley began to maneuver his vehicle between cruisers 290 and 395. During those maneuvers, which we describe below, the area directly north--over the painted median and toward Interstate 80--was unobstructed.
After the PIT maneuver caused Worley to come to a stop on the onramp, Worley reversed his vehicle and struck cruiser 395's rear bumper. Officer Johnson was sitting in the cruiser's front passenger seat at the time and was not injured. Officer Wiley had exited the driver's side immediately before the collision, and the impact pushed the cruiser into his leg. Officer Wiley was not injured, but he did experience pain from the contact, which caused him to fall back several feet.
Worley next accelerated forward and stopped just short of cruiser 290. He reversed again and accelerated backward toward cruiser 395. At this point, Officer Matthew J. McKinney, driving cruiser 899, observed the scene while traveling up the onramp. Officer Johnson was exiting the front passenger seat of cruiser 395 when he saw Worley's taillights coming toward him. Officer Johnson jumped out of the way just before Worley's vehicle made impact with cruiser 395's rear passenger door. Officer Johnson believed that Worley had tried to run him over, and he drew his weapon. Officers Doyle, Wiley, and Williams, who were standing to the west of Worley's vehicle and near the front end of cruiser 290, also drew their weapons. The officers shouted, commanding Worley to stop.
Worley accelerated forward again, toward Officers Doyle, Sautter, and Williams, who were standing in front of cruiser 290. Either when Worley accelerated forward again toward cruiser 290 or later when he finally came to a stop, Officer McKinney parked cruiser 899 next to cruiser 290. Worley was looking straight ahead and did not appear to turn the steering wheel to avoid the officers. Believing that Worley was going to run them over, Officers Doyle and Wiley fired their weapons. Officers Johnson and Williams also fired their weapons. The officers involved were only authorized to use deadly force in limited situations, including a threat to their own lives, but not including a threat to personal property.
Worley sustained gunshot wounds, and his vehicle slowed down and rolled to a stop, hitting the front driver's side of cruiser 290. Worley made no indications that he was slowing or stopping until officers fired the shots. After the vehicle came to a stop, officers took Worley and the two women into custody. When Worley was taken into custody, he asked why officers had shot him.
None of the cruisers involved were equipped with a functional video camera.
On June 30, 2010, the State charged Worley with criminal mischief, operating a motor vehicle to avoid arrest, four counts of attempted second degree assault on a police officer, and four counts of use of a deadly weapon to commit a felony. The State further charged Worley with being a habitual criminal.
On July 16, 2010, Worley filed a plea in abatement pursuant to Neb. Rev. Stat. § 29-1809 (Reissue 2008). He requested that the district court dismiss the charges on the grounds that insufficient evidence was adduced at the preliminary hearing to support a finding of probable cause to believe that a crime was committed "and/or" that Worley committed it. Following a hearing, the district court overruled Worley's plea in abatement.
On March 7, 2011, the Douglas County Attorney sent Worley's attorney a plea offer, requesting that Worley plead guilty or no contest to two counts of attempted assault on an officer, second degree; criminal mischief; and operating a motor vehicle to avoid arrest, and it advised that the State would seek the habitual criminal enhancement. The plea offer set the deadline for Worley's response at the end of the business day on March 11. On the day Worley's counsel received the offer, he forwarded it to Worley with a note suggesting that Worley accept it. At least a day before the deadline, Worley's counsel spoke to Worley on the telephone and again recommended that Worley accept the plea offer, but Worley was hesitant. Worley's counsel recommended that Worley consider it and call him no later than the morning of March 11. Worley's counsel did not receive a call from Worley, and the plea offer was withdrawn.
Although the aforementioned plea offer was withdrawn, Worley later pled no contest to criminal mischief and operating a motor vehicle to avoid arrest. The details of Worley's deliberations on this point or any additional plea offers are not in the record before us. A plea hearing for the two offenses was held on March 16, 2011. Prior to accepting Worley's pleas, the district court advised him of his constitutional rights, including, inter alia, that he had "the right to be confronted by all witnesses against [him], that is to see, hear, question and cross-examine those witnesses who may be called to testify against [him] at trial." The district court confirmed that Worley understood these rights and further confirmed that Worley understood the nature of the charges and the possible penalties. The State recited the factual basis for the charges. The district court accepted Worley's pleas of no contest and adjudged him guilty of criminal mischief and operating a motor vehicle to avoid arrest.
Following the plea hearing, the district court conducted a habitual criminal enhancement hearing. The State offered a certified, stamped copy of the Nebraska Department of Correctional Services "pen packet" for Worley. The "pen packet" showed that on at least five separate occasions, Worley had been convicted and sentenced to prison terms of 1 year or more. The parties stipulated that during the convictions set forth in the "pen packet," Worley was represented by counsel, and that Worley was the man identified in the "pen packet." The district court found Worley to be a habitual criminal for the purposes of his plea-based convictions for criminal mischief and operating a motor vehicle to avoid arrest.
The district court conducted a bench trial on the remaining charges of four counts of attempted second degree assault on an officer and four counts of using a deadly weapon to commit a felony. We have summarized the evidence in the foregoing paragraphs of this section. The district court found Worley guilty of all eight counts.
Worley filed a motion for new trial on the basis that the evidence at trial was insufficient to support the verdicts, and after a hearing, the district court overruled the motion.
A sentencing hearing was had on October 11, 2011. The State offered certified, stamped copies of Worley's prior convictions which were in the "pen packet" presented at the habitual criminal enhancement hearing. The exhibits, which were received without objection, showed that Worley was represented by counsel for each of the convictions and sentences. The district court iterated its finding that Worley was a habitual criminal.
During the sentencing hearing, Worley remarked that had he known that the sentences for the weapons convictions would run consecutively to the sentences for the other convictions, he would have accepted the plea offer. The prosecutor responded:
Your Honor, I'm a little puzzled, as I sit hear [sic] today, when . . . Worley says he wasn't aware that the Use required a consecutive sentence. It is my recollection that was the reason why he didn't want to -- that we weren't able to reach a plea agreement in this case. I can't imagine he was not aware of that. I think that's exactly why we had a trial, so I'm puzzled by the statements today.Worley's counsel confirmed that he had discussed the consecutive sentences with Worley.
The district court sentenced Worley to 10 years' imprisonment for each of the 10 convictions. The district court ordered that the sentences for the four use of a deadly weapon to commit a felony convictions would run consecutively to each other and to all other sentences. Worley's sentences for the remaining convictions were to run concurrently. The district court granted Worley credit for 424 days served. Worley timely appeals.
III. ASSIGNMENTS OF ERROR
Worley assigns that the district court erred in (1) overruling his plea in abatement; (2) accepting his guilty plea which was not entered freely, voluntarily, knowingly, and intelligently; (3) finding sufficient evidence to convict him of four counts of attempted assault on an officer and four counts of use of a deadly weapon to commit a felony; (4) overruling his motion for new trial; and (5) finding him to be a habitual criminal. Worley further assigns that he received ineffective assistance of counsel during the habitual criminal proceedings and during trial.
IV. ANALYSIS
1. GUILTY PLEAS
Worley asserts that the district court erred in accepting his no contest plea for criminal mischief and operating a motor vehicle while attempting to avoid arrest because he did not enter it freely, voluntarily, knowingly, and intelligently. He supports this contention by pointing out that instead of advising Worley he had the right to confront witnesses against him, the district court informed him he had the right "to be confronted by" the witnesses against him.
We perceive no substantive difference between "the right to be confronted by all witnesses" against him and "the right to confront all witnesses" against him, and we have previously rejected an appellant's attempt to distinguish between the two. See State v. Obst, 12 Neb. App. 189, 669 N.W.2d 688 (2003). We conclude that the district court fully and completely advised Worley of his rights, and this assignment of error has no merit.
2. SUFFICIENCY OF EVIDENCE
Worley asserts that the district court erred in finding sufficient evidence to convict him on the charges of attempted assault on an officer and use of a deadly weapon to commit a felony. Worley claims that he was merely attempting to evade officers and that no witness referred to his vehicle as a weapon, much less a "deadly weapon."
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. And in its review, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Those matters are for the finder of fact. State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
We find that the evidence at trial was sufficient to support the convictions for attempted assault on an officer. A person commits second degree assault on an officer by intentionally or knowingly causing bodily injury with a dangerous instrument to a peace officer engaged in the performance of his or her official duties. Neb. Rev. Stat. § 28-930 (Supp. 2009). A person attempts to commit a crime if he or she:
(a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he or she believes them to be; orNeb. Rev. Stat. § 28-201 (Reissue 2008). As we understand Worley's brief, Worley's intent is the only disputed element, and the district court's finding that he did in fact intend to harm the officers is supported by circumstantial evidence (the relative positions of Worley's vehicle and the officers, Worley's awareness of the officers, alternate routes of escape, and the officers' perceptions that lethal force was necessary).
(b) Intentionally engages in conduct which, under the circumstances as he or she believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his or her commission of the crime.
Moreover, Worley's vehicle under these circumstances can be considered a deadly weapon as it was used in the underlying felonies of attempted second degree assault on an officer. Neb. Rev. Stat. § 28-1205(l)(a) (Cum. Supp. 2010) defines the charge of use of a deadly weapon to commit a felony as the use of "a firearm, a knife, brass or iron knuckles, or any other deadly weapon to commit any felony which may be prosecuted in a court of this state." Pursuant to Neb. Rev. Stat. § 28-109(7) (Reissue 2008), "Deadly weapon shall mean any firearm, knife, bludgeon, or other device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or intended to be used is capable of producing death or serious bodily injury." The Nebraska Supreme Court has held that a vehicle can, under appropriate circumstances, be deemed to be a deadly weapon. See State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989). In the present case, Worley maneuvered his vehicle in close proximity to the officers and their cruisers with the apparent intent to harm them. Under these circumstances, even at low speeds, a vehicle could cause death or serious bodily injury.
Thus, viewing the evidence in the light most favorable to the State, we conclude that it was sufficient to convict Worley of four counts of attempted second degree assault on a police officer and four counts of use of a deadly weapon to commit a felony.
3. PLEA IN ABATEMENT
Worley asserts that the district court erred in overruling his plea in abatement. He argues that there was insufficient evidence adduced at the preliminary hearing that he intended to harm the officers or that he used his vehicle in a way that would make it a deadly weapon. According to Worley, the evidence at the hearing showed that he was only attempting to evade the officers.
Any error in ruling on a plea in abatement is cured by a subsequent finding at trial of guilt beyond a reasonable doubt which is supported by sufficient evidence. State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011). Therefore, having found in the "Sufficiency of Evidence" section that the evidence at trial was sufficient to support Worley's convictions, we conclude that this assigned error lacks merit.
4. MOTION FOR NEW TRIAL
Worley claims that the district court erred in overruling his motion for new trial on the basis that the evidence at trial was insufficient to support the verdicts. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Collins, 283 Neb. 854, 812 N.W.2d 285 (2012). We have already concluded in the "Sufficiency of Evidence" section that the evidence at trial was sufficient to support Worley's convictions, and thus, we find that the district court did not abuse its discretion in overruling Worley's motion for new trial.
5. HABITUAL CRIMINAL ENHANCEMENT
Worley asserts that the district court erred in finding him to be a habitual criminal. First, he contends that the district court did not provide him with 3 days' notice of the hearing on his habitual criminal status, as required by Neb. Rev. Stat. § 29-2221(2) (Reissue 2008). Worley participated in the enhancement proceedings without objection, and such participation is a waiver of the notice required by § 29-2221(2). See, State v. Graham, 192 Neb. 196, 219 N.W.2d 723 (1974); State v. Huffman, 185 Neb. 417, 176 N.W.2d 506 (1970).
Further, Worley argues that the State failed to present sufficient evidence that at the time of the prior convictions and sentences, Worley had been represented by counsel or had knowingly and voluntarily waived representation for those proceedings. In a habitual criminal proceeding, the State's evidence must establish with requisite trustworthiness, based upon a preponderance of the evidence, that (1) the defendant has been twice convicted of a crime, for which he or she was sentenced and committed to prison for not less than 1 year; (2) the trial court rendered a judgment of conviction for each crime; and (3) at the time of the prior conviction and sentencing, the defendant was represented by counsel or had knowingly and voluntarily waived representation for those proceedings. State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012).
Evidence in support of the habitual criminal enhancement included Worley's "pen packet," which showed that on at least five separate occasions, Worley had been convicted and sentenced to prison terms of 1 year or more. The parties stipulated at Worley's enhancement hearing that Worley was represented by counsel for the convictions. The further evidence received at Worley's sentencing hearing also included certified, stamped copies of the aforementioned prior convictions, showing that Worley was represented by counsel for each conviction and sentence. We conclude that there was sufficient evidence that Worley was represented by counsel during the prior proceedings, and we reject his contention to the contrary.
6. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, Worley asserts that he received ineffective assistance of counsel during the habitual criminal proceedings and during trial. To establish a right to relief because of a claim of ineffective counsel at trial or on direct appeal, the defendant has the burden first to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. The defendant must also show that counsel's deficient performance prejudiced the defense in his or her case. State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003). To prove prejudice, the defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. When a defendant challenges a conviction, the question is whether there is a reasonable probability that absent the errors, the fact finder would have had a reasonable doubt concerning guilt. Id. We address each of Worley's allegations of ineffective assistance of counsel in turn, and we conclude that this assigned error lacks merit.
(a) Failure to Pursue Worley's
Trial Strategy
Worley argues that his trial counsel was ineffective in failing to pursue the trial strategy that Worley maneuvered his vehicle in an attempt to escape via the unobstructed area to the north of the cruisers. Instead, Worley says, his counsel attempted to show that Worley was trying to escape between cruisers 290 and 899. Worley contends that his counsel failed to consult with him on the matter until after trial had begun and was not properly prepared for trial. A defendant claiming ineffective assistance of counsel must show that counsel's representation fell below an objective standard of reasonableness. State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009). There is a strong presumption that counsel acted reasonably, and an appellate court will not second-guess reasonable strategic decisions. Id.
Worley was not prejudiced by his counsel's alleged ineffectiveness because there was sufficient circumstantial evidence at trial to support a conviction based on his intent to harm the officers. There was no reasonable possibility that the outcome of the trial would have been different had Worley's counsel consulted with him prior to trial and adopted his strategy, and we conclude that his trial counsel was not ineffective in this regard.
(b) Failure to Relay Acceptance
of Plea Agreement
Worley asserts that his counsel was ineffective in allowing the deadline for a plea agreement to lapse. He claims in his brief that he called his counsel on the day of the deadline, but his counsel was unavailable. In his brief, Worley avers that he left a message with his counsel's receptionist, saying that he wanted to accept the plea offer. However, a party's brief may not expand the evidentiary record. State v. Rust, 247 Neb. 503, 528 N.W.2d 320 (1995). The record shows that Worley's counsel made every effort to aid him in responding to the offer in a timely manner and that Worley essentially admitted at the sentencing hearing that he chose not to accept the plea deal. We conclude that Worley failed to show that his counsel was ineffective in managing the plea deal.
(c) Failure to Accurately Advise
Worley Regarding Penalties
Worley asserts that trial counsel was ineffective in incorrectly advising him that sentences for use of a deadly weapon were not required to run consecutive to all other sentences. In his brief, Worley claims that during a telephone call, his counsel told him that the sentences for the weapon convictions would not run consecutive to sentences for the other convictions because the alleged weapon involved was a vehicle rather than a firearm. Again, we note that a party's brief may not expand the evidentiary record. State v. Rust, supra. Moreover, statements on the record by Worley's counsel and the prosecutor show that Worley was advised and was aware the sentences would run consecutively. Therefore, Worley's assertion that his counsel was ineffective in advising him in this matter of sentencing lacks merit.
(d) Failure to Conduct Adequate Discovery
Worley claims that his trial counsel was ineffective in failing to depose the two women who were in the vehicle with him and in failing to depose the officers, who offered inconsistent testimony at trial. Specifically, he notes that there was inconsistent testimony concerning the timing of the arrival of cruiser 899. He argues that had his trial counsel deposed the women and the officers, he would have been more prepared to represent Worley at trial, and that "[h]ad trial counsel learned the versions of all of the witnesses, [Worley] would not have been convicted of the eight counts . . . ." Brief for appellant at 35. Worley's argument on this point is conclusory and makes no showing that but for his trial counsel's performance, the result at trial would have been different.
(e) Failure to Object to Habitual
Criminal Enhancement
Worley makes three arguments concerning his counsel's performance during the habitual criminal proceedings, which occurred following the entry of his pleas and at the sentencing hearing. First, Worley asserts that his counsel was ineffective in failing to object at the initial hearing because Worley did not receive 3 days' notice of the hearing as required by § 29-2221(2). Next, Worley claims that his counsel was ineffective for failing to object at the initial enhancement hearing on grounds that the State had not shown that Worley was represented by counsel during the prior criminal proceedings forming the basis for the enhancement. Finally, Worley argues that his counsel was again ineffective in failing to object on grounds of insufficient notice when the State supplemented the record for the enhancement at the sentencing hearing.
In order to establish a right to relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense in his or her case. State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011). Worley has failed to show how his counsel's inaction at the enhancement hearings prejudiced him, and therefore, we conclude that he did not satisfy his burden of proof.
V. CONCLUSION
We find no merit to Worley's assertions. The district court correctly advised Worley at the plea hearing; the district court did not err in overruling Worley's plea in abatement and motion for new trial; the evidence was sufficient to support the convictions for attempted assault on a peace officer and use of a deadly weapon to commit a felony; Worley waived notice of the hearing on the habitual criminal enhancement, which was supported by sufficient evidence; and Worley failed to show his trial counsel was ineffective. We affirm.
AFFIRMED.