Summary
In State v. Plant, 248 Neb. 52, 532 N.W.2d 619 (1995), overruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), the defendant filed a postconviction motion alleging he received ineffective assistance of counsel because he was not given the opportunity to review the presentence investigation report prior to sentencing.
Summary of this case from State v. NesbittOpinion
No. S-94-888.
Filed May 19, 1995.
1. Postconviction: Proof: Appeal and Error. A criminal defendant seeking postconviction relief has the burden of alleging and proving that a claimed error is prejudicial.
2. Postconviction: Proof. A defendant in a postconviction proceeding must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution.
3. Postconviction: Waiver: Appeal and Error. To use a procedural default or waiver as a means of ignoring a plain error that results in an unconstitutional incarceration would place form over substance; would damage the integrity, reputation, and fairness of the judicial process; and would render the plain error doctrine and postconviction relief remedies meaningless.
4. Postconviction: Jury Instructions: Homicide: Intent. When the material element of malice is omitted from the second degree murder jury instruction, a defendant's conviction for second degree murder is constitutionally invalid, and postconviction relief is proper to rectify a constitutionally invalid conviction.
5. Appeal and Error. An appellate court always reserves the right to note plain error of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, or fairness of the judicial process.
6. Jurisdiction: Sentences: Appeal and Error. An appellate court is compelled to accept jurisdiction when the sentence entered by the trial court is invalid due to plain error in the proceedings.
7. Jury Instructions: Homicide: Intent: Appeal and Error. The failure to include the element of malice in the jury instruction on second degree murder constitutes prejudicial error.
8. Criminal Law: Trial: Judges: Jury Instructions. It is the duty of the trial court in a criminal case to instruct the jury on the pertinent law of the case, whether requested to do so or not.
9. Jury Instructions: Appeal and Error. An instruction or instructions which by omission have the effect of withdrawing from the jury an essential issue or element in the case are prejudicially erroneous.
10. Criminal Law: Trial: Effectiveness of Counsel: Jury Instructions. The failure of defense counsel in a criminal trial to object to an instruction which omits a material element of the crime charged cannot be considered to be within the range of professionally competent assistance and prejudices the proceeding on the crime charged.
11. Criminal Law: Homicide: Intent. Requiring malice as an element of second degree murder is not a new rule of law; malice has remained a material element since the adoption of the current criminal code.
12. Indictments and Informations: Homicide: Intent. For an information to be sufficient to charge a defendant with second degree murder, the information must allege that the accused caused the death of another purposely and maliciously.
13. Presentence Reports: Waiver. While a defendant has a qualified right to personally review his presentence investigation report with his counsel, subject to the district court's supervision, a defendant waives that right by failing to notify the district court that he has not personally reviewed the report and wishes to do so.
14. Postconviction. An evidentiary hearing may be denied on a motion for postconviction relief when the records and files affirmatively show that the defendant is entitled to no relief.
Appeal from the District Court for Douglas County: Robert V. Burkhard, Judge. Reversed and remanded with direction.
Edward F. Fogarty, of Fogarty, Lund Gross, for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein for appellee.
White, C.J., Caporale, Fahrnbruch, Lanphier, Wright, and Connolly, JJ., and Ronin, D.J., Retired.
Thomas M. Plant, through a pro se postconviction relief motion, asked the district court to set aside his second degree murder conviction because of prejudicial error in regard to a jury instruction and because his trial counsel provided ineffective assistance by not objecting to the jury instruction.
The district court for Douglas County overruled Plant's postconviction relief motion, and Plant appealed. We reverse the district court's postconviction relief judgment and remand the second degree murder cause to the district court for a new trial.
ASSIGNMENTS OF ERROR
On appeal of the district court's postconviction judgment, Plant assigned four errors. We need consider only three of those assigned errors to dispose of Plant's appeal: (1) whether the original trial court erred when it failed to include in its instructions to the jury that malice is a material element of the crime of second degree murder; (2) whether Plant was denied effective assistance of counsel when his counsel, at trial and on appeal, did not object to the original trial court's omission in its jury instructions of malice as a material element of second degree murder; and (3) whether Plant was denied effective assistance of counsel when he allegedly was not given an opportunity to review his presentence investigation report before he was sentenced.
FACTS
The State charged Plant with second degree murder for the May 25, 1988, death of his 18-month-old stepson. He was also charged with first degree assault and child abuse of his 4-year-old stepson.
The jury found Plant guilty on all counts with which he was charged. Plant received a life sentence for second degree murder, 6[FRA/2/3] to 20 years' imprisonment for first degree assault, and 1 to 3 years' imprisonment for child abuse. The assault and child abuse sentences were to run concurrently with each other and consecutive to the second degree murder sentence.
In his direct appeal, Plant assigned that the trial court erred in failing to suppress evidence and in receiving allegedly inadmissible hearsay evidence. We affirmed the judgment of the district court. See State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).
On July 12, 1994, Plant, acting pro se, filed a motion in the district court to set aside his conviction for second degree murder. He alleged, inter alia, that the trial court committed error by omitting malice as a material element of second degree murder in its jury instructions. The record, without refutation, reflects that the material element of malice was omitted from the trial court's instruction on second degree murder.
Plant also alleged that he received ineffective assistance of counsel because his trial counsel failed to object to the prejudicial jury instruction. Plant further claimed that the same attorney represented him in his direct appeal and provided ineffective assistance on appeal by not assigning as error the prejudicial jury instruction. Plant also complained that he did not receive effective assistance of counsel because he was not given the opportunity to review, with the assistance of counsel, his presentence investigation report before he was sentenced.
The record before us fails to reflect that Plant had counsel in the district court on his postconviction relief motion. Following its submission, Plant's postconviction relief motion was overruled by the district court. In doing so, the district court held that State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994) (holding that it is plain error for the jury instruction on second degree murder to omit malice as a material element), should not be applied retroactively. On appeal of his postconviction relief motion, Plant was represented by counsel who prepared and filed briefs and orally presented Plant's arguments to this court.
ANALYSIS
A criminal defendant seeking postconviction relief has the burden of alleging and proving that a claimed error is prejudicial. State v. Jones, 246 Neb. 673, 522 N.W.2d 414 (1994). A defendant in a postconviction proceeding must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution. State v. Sims, 244 Neb. 771, 509 N.W.2d 6 (1993).
Plant's trial counsel, who also represented Plant in his direct appeal, never claimed that the original trial court committed error in regard to the omission of malice in its instruction on second degree murder. The issue of ineffective assistance of counsel was not raised at the trial level or on direct appeal.
The State has argued that because the issue of the erroneous jury instruction was not raised at trial or on direct appeal, Plant waived his right to raise it in postconviction proceedings. To use a procedural default or waiver as a means of ignoring a plain error that results in an unconstitutional incarceration would place form over substance; would damage the integrity, reputation, and fairness of the judicial process; and would render the plain error doctrine and postconviction relief remedies meaningless. When the material element of malice is omitted from the second degree murder instruction, a defendant's conviction for second degree murder is constitutionally invalid, and postconviction relief is proper to rectify a constitutionally invalid conviction. See Neb. Rev. Stat. § 29-3001 (Reissue 1989).
An appellate court always reserves the right to note plain error of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, or fairness of the judicial process. State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994). Moreover, an appellate court is compelled to accept jurisdiction when the sentence entered by the trial court is invalid due to plain error in the proceedings. State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995).
In State v. Williams, supra, this court addressed whether a defendant was entitled to postconviction relief from a second degree murder conviction when the trial court omitted the material element of malice from its jury instruction on second degree murder. We held that the failure to include the element of malice in the jury instruction on second degree murder constitutes prejudicial error. In State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994), this court held that it is the duty of the trial court in a criminal case to instruct the jury on the pertinent law of the case, whether requested to do so or not. In State v. Williams, supra, we held in effect that an instruction or instructions which by omission have the effect of withdrawing from the jury an essential issue or element in the case are prejudicially erroneous.
We also held in Williams that the failure of defense counsel in a criminal trial to object to an instruction which omits a material element of the crime charged cannot be considered to be within the range of professionally competent assistance and prejudices the proceeding on the crime charged.
In Plant's case, the postconviction court erred in determining the issue of retroactivity. Requiring malice as an element of second degree murder is not a new rule of law; malice has remained a material element since the adoption of the current criminal code. See, id.; State v. Myers, supra.
As a result of the prejudicial jury instruction and ineffective assistance of counsel, Plant's second degree murder conviction must be overturned, and he must be granted a new trial.
We further note that for an information to be sufficient to charge a defendant with second degree murder, the information must allege that the accused caused the death of another purposely and maliciously. See State v. Ladig, 246 Neb. 542, 519 N.W.2d 561 (1994). Upon retrial, the information, as well as the jury instruction, must state all material elements of the crime charged. See, State v. Manzer, 246 Neb. 536, 519 N.W.2d 558 (1994); State v. Grimes, supra.
Plant's third assignment of error claims that the postconviction court failed to hold a hearing to determine whether he had an opportunity to review his presentence investigation report before he was sentenced on all charges.
At the sentencing hearing, Plant's attorney addressed his concerns with the probation officer's characterization of Plant's lack of remorse and the foster parents' summation in Plant's presentence investigation report. Immediately after his attorney's comments, the court asked Plant if he had "anything else" to say. Plant referred to his record as being nonviolent and told the court that the court has "seen everything." Plant never mentioned that he had not personally reviewed the presentence investigation report.
While a defendant has a qualified right to personally review his presentence investigation report with his counsel, subject to the district court's supervision, a defendant waives that right by failing to notify the district court that he has not personally reviewed the report and wishes to do so. State v. Barrientos, 245 Neb. 226, 512 N.W.2d 144 (1994). An evidentiary hearing may be denied on a motion for postconviction relief when the records and files affirmatively show that the defendant is entitled to no relief. Id.
As affirmatively shown by the record, Plant waived any complaint that he had not personally reviewed the presentence investigation report by failing to inform the court when given the opportunity to do so. See, id.; State v. Clear, 236 Neb. 648, 463 N.W.2d 581 (1990). Therefore, the postconviction court did not err in denying Plant an evidentiary hearing on this issue.
If upon retrial Plant is again convicted of causing the death of his 18-month-old stepson, the trial court should make certain that Plant is given the opportunity to review his presentence investigation report before he is resentenced. See State v. True, 236 Neb. 274, 460 N.W.2d 668 (1990).
CONCLUSION
We reverse the postconviction judgment of the district court by setting aside Plant's conviction of second degree murder, and grant him a new trial on that charge. Plant's convictions for first degree assault and child abuse shall remain undisturbed. This cause is remanded to the district court with direction to grant Plant a new trial on the charge of second degree murder.
Reversed and remanded with direction.