State Of Neb. v. Buckley

• Decision Date: 19 April 2011
• Docket Number: No. A-10-910.,A-10-910.
• Parties: State of Nebraska, appellee, v. Jonathon C. Buckley, appellant.
• Court: Nebraska Court of Appeals

State of Nebraska, appellee,

v.Jonathon C. Buckley, appellant.

No. A-10-910.

NEBRASKA COURT OF APPEALS

Filed April 19, 2011.

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 Buffalo County: John P. Icenogle, Judge.Remanded with directions.

Justin R. Herrmann, of Jacobsen, Orr, Nelson, Lindstrom & Holbrook, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and Goerge R. Love for appellee.

Irwin, Sievers, and Cassel, Judges.

Sievers, Judge.

Jonathon C. Buckley was arrested after he entered a Wells Fargo bank in Kearney, Nebraska, and took some 20 bank employees and customers hostage, some of whom were held for over 2 hours.Prior to his arrest, Buckley surrendered to police without any shots being fired or physical injuries.Although he secured $80,000 in cash from a bank teller as part of the negotiations with police, he gave that money to police when he left the bank and surrendered.After being arraigned in the county court for Buffalo County, Buckley was bound over to the Buffalo County District Court and arraigned on an amended information.Pursuant to a plea agreement, Buckley pled no contest to four counts of kidnapping, Class II felonies, and one count of use of a firearm to commit a felony, a Class IC felony, in exchange for which the State dismissed two additional charges.

At the arraignment hearing held in the district court on July 6, 2010, the court advised Buckley of the maximum and mandatory minimum sentences for the kidnapping and use of a firearm charges, and after doing so, asked Buckley if he"had any questions about the statutes orthe penalties," to which Buckley responded, "No, I do not, your honor."The court did not specifically advise Buckley that a use of a firearm conviction carries the proviso by statute that a mandatory consecutive sentence to the sentences for the other crimes is required.SeeNeb. Rev. Stat. § 28-1205(3)(Cum. Supp. 2010).Buckley pled no contest to each of the five charges, and after a factual basis was provided by the State, the court accepted his pleas.

At the sentencing hearing held on August 16, 2010, Buckley's counsel stated:

And we understand that the sentence on the use of a firearm has to be consecutive to any other sentences imposed.And what we would ask the Court to do at this point is to take into account the fact that there are mental illnesses present, that he does not have any prior record and make--fashion a term of commitment on the four kidnapping charges that are concurrent to each other and then the sentence on the use of a weapon statutorily consecutive to that.

After providing Buckley with a chance to be heard, the court asked Buckley's counsel if he or Buckley knew of any legal reason why a sentence should not be imposed and counsel replied, "No, sir, Your Honor, we do not."Buckley was then sentenced to concurrent terms of 30 to 50 years' imprisonment on the first two counts of kidnapping.He received the same concurrent sentences on the remaining two kidnapping counts, which were ordered to be served consecutively to the sentences for the first two kidnapping counts.Buckley was also sentenced to 20 to 30 years' imprisonment on the use of a firearm conviction, to run consecutively to the other sentences.The judge explained that Buckley would be eligible for parole in 40 years and for institutional release in 65 years.Buckley appeals.Pursuant to Neb. Ct. R.App. P. § 2-111(B)(1)(rev. 2008), this case was ordered submitted without oral argument.

ASSIGNMENTS OF ERROR

Buckley assigns four errors in his brief to this court.They are that the district court: (1) erred in finding that his no contest pleas were entered freely, voluntarily, knowingly, and intelligently; (2) abused its discretion by imposing excessive sentences; and (3) abused its discretion in ordering the sentences imposed on counts I and II to run consecutively with counts III and IV.He also alleges seven individual claims of ineffective assistance of trial counsel.

STATE'S SUGGESTION OF REMAND

Rather than file a responsive brief, the State filed a "Suggestion of Remand," which claims that the dispositive issue at this juncture from Buckley's assigned errors is whether his no contest pleas were voluntarily and intelligently entered.The State asserts that his other three assignments of error are thus "not ripe for review."Brief for appelleeat 8.The State analogizes this scenario to State v. Curnyn, 202 Neb. 135, 274 N.W.2d 160(1979), and asks that we remand the cause pursuant to the procedure outlined in that opinion.The State cites to a number of cases in which the Supreme Court either followed the procedure outlined in Curnynor cited favorably to it.See, State v. Williams, 220 Neb. 415, 370 N.W.2d 150(1985);State v. Clark, 217 Neb. 417, 350 N.W.2d 521(1984);State v. Schaeffer, 218 Neb. 786, 359 N.W.2d 106(1984);State v. Fischer, 218 Neb. 678, 357 N.W.2d 477(1984);State v. McMahon, 213 Neb. 897, 331 N.W.2d 818(1983);State v. Lewis, 192 Neb. 518, 222 N.W.2d 815(1974).

In Curnyn, supra, the defendant was charged with burglary and entered a plea of not guilty at his arraignment.Thereafter, he was allowed to withdraw his plea and, pursuant to a plea agreement, pled guilty to burglary.The district court apparently failed to inform the defendant of the statutory penalties applicable to the offense of burglary.The defendant perfected an appeal to the Supreme Court alleging that the district court accepted his plea without properly advising him of the applicable penalties.However, the Supreme Court did not reach the merits of that issue on appeal because it sustained the State's motion for summary affirmance on procedural grounds.Approximately 1 year later, the defendant filed a postconviction motion to vacate and set aside judgment in the district court, asserting the same basis as he did in his direct appeal.The district court concluded that the defendant was entitled to no relief.He then perfected an appeal to the Nebraska Supreme Court, and the court remanded the matter to the district court with directions.The Supreme Court stated:

We believe this case should be governed by the principles announced in State v. Lewis, 192 Neb. 518, 222 N. W. 2d 815(1974).In that casewe stated: "The practice of advising a defendant who is about to enter a plea to a felony of the possible penalties on conviction, although not made mandatory by any statute in this state, is one of long standing in this jurisdiction and antedates the adoption of the standards in State v. Turner, [186 Neb. 424, 183 N.W.2d 763(1971), disapproved on other grounds, State v. Irish, 223 Neb. 814, 394 N.W.2d 879(1986)].No doubt the failure in this case is the result of oversight and failure to use a check list.In Boykin v. Alabama, 395 U. S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274, upon which the defendant relies, the Supreme Court of the United States vacated the judgment of conviction and ordered that the defendant be permitted to plead again.We do not interpret that case as holding that under a record such as we have in this case any such procedure is constitutionally required.The constitutional requirement is that the plea be voluntary and intelligent and the determination of that fact be reliably determined....The record here supports at least by implication a conclusion that the defendant in fact knew the consequences of her plea.This implication arises from the fact that she was represented by counsel throughout and had adequate consultation with him, and that when she was advised of the penalties just before sentencing she expressed no surprise, and when asked if she had any reason to give why sentence should not be imposed, she gave no relevant response.Further, at that time her counsel did, in her presence, say that no legal reason existed why sentence should not be imposed."

State v. Curnyn, 202 Neb. 135, 139-40, 274 N.W.2d 157, 160(1979), quotingState v. Lewis, 192 Neb. 518, 222 N.W.2d 815(1974).The Curnyncourt found that most of the elements from Lewis--justifying an implication that the defendant knew the consequences of the plea--were present.Nonetheless, the Curnynopinion held:

Since, in this case, the extent of the defendant's knowledge of the applicable penalties is a matter in dispute and cannot be clearly determined from the record of this case without indulging in inferences, we deem it advisable, without vacating and setting aside defendant's conviction and sentence, to remand this matter to the trial court with leave to the defendant to apply to the trial court to withdraw his plea.Should defendantfail to do so within 10 days of the issuance of the mandate in this case, then the sentence shall be carried into execution.If the defendant elects to withdraw his plea, the trial court shall hold an evidentiary hearing to determine whether the defendant was, in fact, aware of the possible penalties for the offense of burglary at the time he entered his plea.If the court finds he was not aware of the penal consequences of the plea, the judgment of conviction shall be deemed vacated and he shall be permitted to plead again.If it determines the defendant was aware of the penalties and consequences of the plea, the judgment and sentence shall stand.

202 Neb. at 140-41, 274 N.W.2d at 161.We note that there was a motion to vacate in Curnyn, but that such is not a prerequisite for what we shall reference as a "Curnynremand."See, State v. Jackson, 220 Neb. 656, 371 N.W.2d 679(1985);State v. Williams, 220 Neb. 415, 370 N.W.2d 150(1985);State v. Fischer, 218 Neb. 678, 357 N.W.2d 477(1984);State v. McMahon, 213 Neb. 897, 331 N.W.2d 818(1983);State v. Lewis, 192 Neb. 518, 222 N.W.2d 816(1974).

The State argues that, similar to Curnyn, it can be implied from the record that Buckley knew...