Opinion
No. A-11-645
02-07-2012
STATE OF NEBRASKA, APPELLEE, v. JAMEY CRAWFORD, APPELLANT.
Mary M. Ellis and, on brief, Francis W. Barron III for appellant. Jon Bruning, Attorney General, and Stacy M. Foust 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 Dodge County: GEOFFREY C. HALL, Judge. Affirmed.
Mary M. Ellis and, on brief, Francis W. Barron III for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
INBODY, Chief Judge, and CASSEL and PIRTLE, Judges.
CASSEL, Judge.
INTRODUCTION
Jamey Crawford appeals from the sentence imposed following a plea-based conviction and habitual criminal enhancement. We reject Crawford's argument that the court erred in finding him to be a habitual criminal, because the term of his four prior felony convictions--all sentencing him to more than 1 year's imprisonment--and not time actually served is the pertinent inquiry. We further reject his assignments of error claiming that the plea agreement was illusory and that his counsel was ineffective in advising him to plead guilty, because admission into drug court was not part of the plea agreement. We affirm.
BACKGROUND
The State filed an information which charged Crawford with possession of a controlled substance, a Class IV felony, and alleged that he was a habitual criminal. Shortly thereafter, Crawford entered a guilty plea pursuant to a plea agreement. The prosecutor described the plea agreement as follows:
[T]here will be an entry of a plea to the possession of methamphetamine in [the instant case], with the State free to enhance on that count. District Court Cases CR11-50 and CR11-49, after that plea is entered today, will be dismissed. Case Number CR10-1588, which is up for sentencing in the County Court, which is the theft case, the State would agree that that case can run concurrent to any sentence in CR11-48.Crawford agreed with the State's recitation of the terms of the plea agreement and stated that he understood the court was not bound by the agreement. The court then asked, "Also, it's my understanding that you wish to make an application to Drug Court; is that correct?" Crawford answered in the affirmative and, upon further questioning, stated that he understood there was no guarantee that he would be admitted to drug court, that the case would continue if he did not get into drug court, and, again, that a habitual criminal violation was "in play" and that there was no guarantee as to drug court. The court ultimately accepted Crawford's plea.
Apparently, Crawford applied to a drug court program and his counsel received a letter stating that Crawford was not eligible for the program. Crawford filed a motion to reconsider drug court, because he became aware that the county attorney who had previously represented him as defense counsel also had a vote in whether Crawford would make a good candidate for drug court, which Crawford asserted was a conflict of interest. During a hearing on the motion, Crawford's counsel stated that the member of the drug court team who had previously represented Crawford had "an extreme amount of information regarding [Crawford]" that "he was able to use in a negative way." The prosecutor stated that Crawford was precluded from the program because of his extensive criminal record. The court denied the motion.
Subsequently, the court held an enhancement hearing, received evidence of Crawford's prior convictions, and found Crawford to be a habitual criminal. The court imposed a sentence of 10 to 15 years' incarceration.
Crawford timely appeals. Pursuant to Neb. Ct. R. App. P. § 2-111(E)(5)(a) (rev. 2008), no oral argument was allowed.
ASSIGNMENTS OF ERROR
Crawford alleges that the district court erred in (1) determining that he was a habitual criminal; (2) finding that his plea was knowingly, voluntarily, and intelligently entered due to counsel's advising Crawford to enter into an illusory plea bargain; (3) failing to appoint a special prosecutor and for permitting Crawford's drug court application to be submitted without removing a member of the drug court team who had a conflict of interest; and (4) imposing an excessive sentence. Crawford also alleges that he was denied the right to effective assistance of counsel when his attorney failed to determine that Crawford was not eligible for the drug court program and advised him to enter into a plea agreement in which he would be subject to a habitual criminal enhancement if he was not accepted into the drug court program.
STANDARD OF REVIEW
A claim of ineffective assistance of counsel presents a mixed question of law and fact. Whether counsel was deficient and whether the defendant was prejudiced are questions of law that an appellate court reviews independently of the lower court's decision, but the appellate court reviews factual findings for clear error. State v. Gonzalez, 283 Neb. 1, ____ N.W.2d ____ (2012).
ANALYSIS
Habitual Criminal.
Crawford first argues that the court erred in determining that he was a habitual criminal. Under Neb. Rev. Stat. § 29-2221(1) (Reissue 2008),
[w]hoever has been twice convicted of a crime, sentenced, and committed to prison . . . for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to be a habitual criminal and shall be punished by imprisonment in a Department of Correctional Services adult correctional facility for a mandatory minimum term of ten years and a maximum term of not more than sixty years.
The evidence offered at the enhancement hearing established four prior felony convictions. In 1997, Crawford pled guilty to aiding consummation of a felony, a Class IV felony. He was sentenced to 1 year 1 day of imprisonment, committed to the Nebraska Department of Correctional Services (Department) on February 3, and released on September 9. In 2005, Crawford pled guilty to attempted burglary, a Class IV felony. He was sentenced to 17 months' to 3 years' imprisonment, committed to the Department on December 29, and released due to subsequent sentences on June 28, 2010. In 2006, Crawford pled no contest to theft by receiving stolen property, a Class III felony. He was sentenced to 3 to 6 years' imprisonment, to be served consecutive to the 2005 sentence. Crawford was committed to the Department on May 2, 2006, and released on June 28, 2010. In 2009, Crawford pled guilty to two counts of theft, one of which was a misdemeanor and the other of which was a Class IV felony. For the felony conviction, he was sentenced to 20 months' to 4 years' imprisonment, said sentence to be served concurrent to the misdemeanor sentence of 1 year's imprisonment and to the other sentence being served. Crawford was committed to the Department on June 1, 2009, and released on June 28, 2010.
Crawford admits that the State offered proof that he was convicted of four prior felonies and sentenced to more than 1 year on all the felonies, but he claims that the State failed to show that he was committed to prison for a term not less than 1 year. His argument equates the term "committed" with "time served." Crawford points out that under the good time law, a defendant can expect to serve approximately half of his or her original sentence. But the requirement in § 29-2221 that a defendant be committed to prison for a prior conviction necessitates a showing that the defendant was delivered into the custody and control of the Department for incarceration according to the rules and regulations of the agency. See State v. Jackson, 225 Neb. 843, 408 N.W.2d 720 (1987), overruled on other grounds, State v. Garza, 236 Neb. 202, 459 N.W.2d 739 (1990). The State's evidence established such commitments.
The amount of time actually served is not considered in determining whether the terms of the habitual criminal statute have been met. Section 29-2221 sets forth no requirement respecting time served. State v. Wyatt, 234 Neb. 349, 451 N.W.2d 84 (1990). It is the term of a defendant's prior sentences and not the time actually served which controls the applicability of the habitual criminal penalty. Id. See, also, State v. Jackson, supra. The State's evidence established that Crawford had been previously convicted of four crimes for which he was sentenced to at least 1 year's incarceration and that he was committed to prison for each of those felony convictions. Accordingly, the district court properly found Crawford to be a habitual criminal.
Ineffective Assistance of Counsel.
Crawford claims that he was denied his right to the effective assistance of counsel. A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011). The determining factor is whether the record is sufficient to adequately review the question. Id. An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing. Id. We conclude that the record is sufficient to address Crawford's claim of ineffective assistance of counsel.
Because Crawford's argument relates to his not being accepted into drug court, we digress to provide some background information about the program. Drug court is "a postplea or postadjudicatory drug and alcohol intensive supervision treatment program for eligible offenders." Neb. Ct. R. § 6-1206.
A drug court program participant pleads guilty and agrees to the terms and conditions of the program in exchange for the possibility of avoiding sentencing and, oftentimes, being allowed to withdraw the plea upon successful completion of the program. If the participant is terminated from the program or withdraws before successful completion, then the conviction stands and the case is transferred back to the district court for sentencing.State v. Shambley, 281 Neb. 317, 319, 795 N.W.2d 884, 888 (2011). Here, Crawford pled guilty, but he was never accepted into the drug court program.
Crawford argues that his counsel performed deficiently by allowing him to enter into a plea agreement and face a habitual criminal enhancement if not accepted into the drug court program when Crawford was never eligible for drug court. As the State points out, the record does not reflect whether Crawford was eligible for drug court. Even if Crawford clearly was not eligible for drug court, he knew that there was a possibility he would not be admitted to the program. Further, Crawford's application to drug court was not a part of the State's plea agreement. Under the plea agreement as recited by the prosecutor and confirmed by Crawford and his counsel, the State agreed to dismiss two other cases against Crawford and to make a sentencing recommendation in another case; there was no mention of drug court.
Crawford has failed to show that he would have insisted on going to trial but for counsel's deficient performance. 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 counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Gonzalez, 283 Neb. 1, ____ N.W.2d ____ (2012). The two prongs of this test, deficient performance and prejudice, may be addressed in either order. State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011). In the context of a plea of guilty or no contest, to prevail on a claim of ineffective assistance of counsel, a defendant must allege facts showing a reasonable probability that he or she would have insisted on going to trial but for counsel's errors. State v. Gonzalez, supra.
Crawford argues that "it is unreasonable to assume that [he] or any defendant would plead guilty to a [C]lass IV felony with a maximum prison sentence of [5] years if it meant that his sentence was going to be enhanced under the habitual criminal statute to a mandatory minimum [10] years" and that "[i]t defies logic to assume that [he] would not have insisted on going to trial if he thought he was facing a mandatory minimum [10] years." Brief for appellant at 21. We disagree. Under the plea agreement, Crawford obtained the benefit of the dismissal of two cases--either of which could have carried with it a habitual criminal enhancement--and a recommendation of a concurrent sentence in another case. And the record shows that upon the district court's inquiry, Crawford confirmed that he was aware that there was no guarantee that he would be accepted into the drug court program. As the Nebraska Supreme Court stated in State v. Gonzalez, 283 Neb. at 11, ____ N.W.2d at ____, "nothing in the record persuades us that 'a decision to reject the plea bargain would have been rational under the circumstances.'" Crawford has failed to show that he received ineffective assistance of counsel.
Plea Agreement.
Crawford next argues that the plea bargain was illusory and that his plea was not knowingly, voluntarily, and intelligently entered. The record does not support his argument.
Generally, the law does not require that a plea bargain have a specifically stated value to a defendant. See State v. Scholl, 227 Neb. 572, 419 N.W.2d 137 (1988). In Scholl, the defendant alleged that he was denied the right to effective assistance of counsel because he entered a plea after being informed by his counsel that he was likely to face an enhanced sentence by virtue of the habitual criminal act and that the county attorney agreed not to charge him as a habitual criminal as part of the plea bargain. However, the defendant did not have the required prior convictions to permit such a charge. The Nebraska Supreme Court quoted a Michigan case for the following proposition:
"We find nothing in the law that requires a plea bargain to have a specifically stated value to a defendant. The only requirement is that if there is a value it must be clearly and accurately stated to the defendant and be placed on the record. A defendant may wish to plead guilty merely because he is guilty and wants to avoid the hardship of trial. As long as the defendant knows in advance that the plea bargain has no value or knows that the value is questionable or minimal, the plea bargain is not illusory."State v. Scholl, 227 Neb. at 577, 419 N.W.2d at 141, quoting People v Peter Williams, 153 Mich. App. 346, 395 N.W.2d 316 (1986).
Under the terms of the plea agreement in this case, the State was free to enhance the felony charged and drug court was not mentioned. Upon the court's questioning, Crawford stated more than once that he understood there was no guarantee of admission into drug court. He also stated that he understood he would be subject to the habitual criminal terms, which would be part of his sentence. He was not misinformed about the plea agreement--he knew that he might not get into drug court. Even so, Crawford chose to plead guilty. The plea bargain was not illusory because Crawford received the benefit of two dismissed cases and a concurrent sentence recommendation in another case. We further observe that even after being informed that he was not eligible for drug court, Crawford did not move to withdraw his plea. The record demonstrates that his plea was made knowingly, intelligently, and voluntarily. This assignment of error is without merit.
Special Prosecutor and Removal of Team Member.
Crawford argues that the district court erred in not appointing a special prosecutor and for permitting Crawford to apply for the drug court program when a member of the drug court team had a conflict of interest. Crawford's argument is based on his previously being represented by an attorney who was, at the relevant times, the Dodge County Attorney and a member of the drug court team. However, Crawford did not ask the court to appoint a special prosecutor. And although Crawford filed a motion asking the court to "reconsider allowing him into [d]rug [c]ourt," he did not ask the court to remove the attorney from the drug court team. An issue not presented to or decided on by the trial court is not an appropriate issue for consideration on appeal. State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011). We decline to consider this assignment of error.
Excessive Sentence.
Crawford concedes that the sentence imposed is valid if he was a habitual criminal. As set forth above, the evidence supports the habitual criminal enhancement. Accordingly, this assignment of error lacks merit.
CONCLUSION
We conclude that the district court did not err in finding Crawford to be a habitual criminal because the State adduced evidence showing that Crawford was sentenced to incarceration for more than 1 year on each of his four prior felony convictions and that Crawford was committed to the Department. We reject Crawford's claim of ineffective assistance of counsel because he failed to show that he would have insisted on going to trial if counsel had told him that he was not eligible for drug court. We further conclude that Crawford's plea was knowingly, voluntarily, and intelligently entered and that under the plea bargain, he received the benefit of two dismissed cases and a recommendation of a concurrent sentence in a different case. We decline to consider Crawford's assignment of error regarding the appointment of a special prosecutor and removal of a drug court team member, because Crawford did not raise those issues before the district court. Finally, because the court properly found Crawford to be a habitual criminal, the sentence imposed was not excessive.
AFFIRMED.