State Of Neb. v. Helmstadter
| Decision Date | 26 October 2010 |
| Docket Number | No. A-10-294.,A-10-294. |
| Parties | State of Nebraska, appellee, v. Carlos J. Helmstadter, appellant. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Lancaster County: Paul D. Merritt, Jr., Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, Webb Bancroft, and Matthew F. Meyerle, Senior Certified Law Student, for appellant.
Carlos J. Helmstadter, pro se.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
Pursuant to a plea agreement, Carlos J. Helmstadter pled guilty to being a felon in possession of a deadly weapon and using a weapon to commit a felony. On appeal, he claims that there was an insufficient factual basis to support the use of a weapon conviction, that his trial counsel provided ineffective assistance, and that his sentences were excessive. We conclude that his guilty plea waived his challenge to the plea's factual basis, that he failed to show he would have insisted on going to trial but for the claimed deficiencies of counsel, and that his sentences—which were within statutory limits—did not constitute an abuse of discretion. Accordingly, we affirm.
Shortly after midnight on November 13, 2008, police officers were dispatched upon report of a fight occurring in the parking lot of a grocery store in Lincoln, Nebraska. They were alerted that an individual had been shot. After speaking with witnesses at the scene, the police learned that Helmstadter and the passenger in his vehicle, William Smith, were responsible. According to witnesses, while Smith was fighting with the victim, Helmstadter removed a handgun from the interior of his vehicle and fired at least two shots into the air. Smith took the gun from Helmstadter and began shooting at the victim and others.
The State initially charged Helmstadter with three crimes: attempted murder in the second degree, assault in the first degree, and use of a weapon to commit a felony. At the arraignment, Helmstadter pled not guilty to each charge. As a result of plea negotiations, the State agreed to amend the information to charge Helmstadter with being a felon in possession of a deadly weapon and use of a weapon to commit a felony in return for Helmstadter's truthful testimony and cooperation in the prosecution of Smith. With respect to the latter charge, the amended information states that on or about November 13, 2008, Helmstadter "contrary to the form of the statutes in such cases made and provided then and there being, did use a firearm to commit any felony which may be prosecuted in a court of this state."
Helmstadter pled guilty to each charge in the amended information, and the court found beyond a reasonable doubt that Helmstadter understood his rights and waived them freely, voluntarily, knowingly, and intelligently. The district court ascertained from Helmstadter that he was convicted of a felony in 1996, that he was sentenced to imprisonment of 1 to 2 years, and that he was in possession of a firearm on November 13, 2008. Helmstadter confirmed that he grabbed the firearm from underneath the vehicle's seat, that he discharged it into the air, and that the same firearm was related to the use of a weapon crime. When the court asked what felony Helmstadter committed, Helmstadter did not respond. The court then prompted, "Being a felon in possession?" and Helmstadter replied, "Yes." The court asked, and Helmstadter answered in the affirmative.
The district court asked the State to provide a factual basis for the crimes. The prosecutor stated in part that Helmstadter fired a handgun into the air while Smith was fighting with the victim and that when Helmstadter "went to help Smith off the ground, [Smith] grabbed the gun from his hands and then began shooting at [the victim] and others." The court inquired of the prosecutor what felony Helmstadter used the firearm to commit, and the prosecutor answered:
[A] jury could reasonably find that a number of felonies including being a felon in possession of a firearm, terroristic threats in firing the firearm into the weapon [sic]. There is conflicting evidence... that... witnesses would say... Helmstadter delivered the gun to... Smith and that... Smith used that gun to commit the crimes. So I think that there are a number of underlying felonies supporting that charge.
Helmstadter stated that he still wished to enter pleas of guilty, and his counsel stated that he believed the pleas were consistent with the law and the facts as recounted by the prosecutor. The court found Helmstadter guilty of both charges after finding that Helmstadter made each plea freely, voluntarily, knowingly, and intelligently. The court subsequently sentenced Helmstadter to 5 to 10 years' imprisonment for the possession conviction and a consecutive sentence of 10 to 15 years' imprisonment for the use conviction.
Helmstadter timely appeals. Pursuant to Neb. Ct. R. App. P. § 2-111(E)(5)(a) (rev. 2008), no oral argument was allowed in this case.
Helmstadter assigns three errors, which we have reordered for discussion. First, he alleges that the district court erred in finding that there was a sufficient factual basis to accept his plea of guilty to the use of a weapon to commit a felony charge. Second, Helmstadter claims that he received ineffective assistance of counsel. Third, he contends that the district court abused its discretion by imposing excessive sentences.
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).
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. 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. State v. Sellers, supra.
A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. State v. Dinslage, 280 Neb. 659, ____N.W.2d _____(2010).
Sufficiency of Factual Basis.
Helmstadter claims that the district court erred in finding a sufficient factual basis for his plea of guilty to use of a weapon to commit a felony. Specifically, he relies on State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989), and claims that "the fact that he possessed a firearm... does not show that he 'used' a weapon to commit any felony... where 'to commit any felony' is synonymous with 'for the purpose of committing any felony' rather than simply with the result of committing any felony." Brief for appellant at 18-19.
When a defendant pleads guilty, he is limited to challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel. State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008). A plea of guilty will be found to be freely and voluntarily entered upon the advice of counsel if that advice is within the range of competence demanded of attorneys in criminal cases. Id. Generally, in order to support a finding that a plea of guilty has been entered freely, voluntarily, and intelligently, the court must, inter alia, inform the defendant concerning (1) the nature of the charge, (2) the right to assistance of counsel, (3) the right to confront witnesses against the defendant, (4) the right to a jury trial, and (5) the privilege against self-incrimination. State v. Watkins, 277 Neb. 428, 762 N.W.2d 589 (2009). The record must also establish a factual basis for the plea and that the defendant knew the range of penalties for the crime charged. State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006). A factual basis for a plea of guilty may be established by inquiry of the prosecutor, interrogation of the defendant, or examination of the presentence report. State v. Dodson, 250 Neb. 584, 550 N.W.2d 347 (1996), overruled on other grounds, State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999).
The record shows that Helmstadter was assisted by counsel at the time he entered his pleas. Before the district court accepted the pleas, Helmstadter was informed of the nature of the charges, the right to a jury trial, the right to confront his accusers, and the right not to incriminate himself. He was informed that being a felon in possession of a deadly weapon, a Class III felony, was punishable by 1 to 20 years' imprisonment, a $25,000 fine, or any combination of the two. Helmstadter was further informed that use of a weapon to commit a felony, a Class II felony, was punishable by 1 to 50 years' imprisonment and that "it requires a mandatory consecutive" sentence. The court ascertained that on November 13, 2008, Helmstadter had previously been convicted of a felony, was in possession of a firearm, and discharged the firearm into the air. Upon the court's prompting, Helmstadter stated that it was his understanding that the felony he used a weapon to commit was being a felon in possession. The record shows that Helmstadter made his pleas intelligently and that he was fully aware of the rights waived by entering the guilty pleas.
We do not reach Helmstadter's argument regarding the factual basis for the use of a weapon conviction because the appellate courts of...
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