State v. Bartlett, 44530

• Decision Date: 19 March 1982
• Docket Number: No. 44530,44530
• Citation: 317 N.W.2d 102,210 Neb. 886
• Parties: STATE of Nebraska, Appellant, v. George BARTLETT, Appellee.
• Court: Nebraska Supreme Court

Page 102

317 N.W.2d 102

210 Neb. 886

STATE of Nebraska, Appellant, v. George BARTLETT, Appellee.

No. 44530.

Supreme Court of Nebraska.

March 19, 1982.

Syllabus by the Court

1. Prosecuting Attorneys: Constitutional Law: Discrimination. Abuse of prosecutorial discretion, as a violation of constitutional rights, requires proof of intentional and purposeful discrimination based on impermissible considerations such as race, religion, or the desire to prevent the prisoner from exercising his constitutional rights.

2. Prosecuting Attorneys: Discrimination. So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.

3. Prosecuting Attorneys: Constitutional Law: Discrimination. Within the limits set by the Legislature's constitutionally valid definition of chargeable offenses, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation so long as the selection was not deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.

4. Effectiveness of Counsel. Effectiveness of counsel is not to be judged by hindsight.

Donald L. Knowles, Douglas County Atty., and Robert C. Sigler, Omaha, for appellant.

J. William Gallup, Omaha, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

PER CURIAM.

This is the third appearance of this case in this court.

In 1975 the defendant, George Bartlett, was convicted of possession of heroin with intent to deliver and sentenced to imprisonment for 20 to 30 years as an habitual criminal. That judgment was affirmed in State v. Bartlett, 194 Neb. 502, 233 N.W.2d 904 (1975).

In 1976, after a codefendant, John Davis, had been sentenced, the defendant sought post conviction relief on the ground that he had been denied effective assistance of counsel. The judgment denying post conviction relief was affirmed in State v. Bartlett, 199 Neb. 471, 259 N.W.2d 917 (1977).

In 1978 the defendant filed a petition in the U.S. District Court, alleging that he had been denied effective assistance of counsel and seeking relief under the federal habeas corpus act, 28 U.S.C. § 2254 (1976). The petition alleged eight separate instances in which omissions of trial counsel allegedly violated the defendant's rights under the sixth amendment to the Constitution of the United States. The U.S. District Court found that the defendant had exhausted his state court remedies as to six of the alleged omissions and the State had waived the exhaustion requirement as to the other two.

At the trial on the information in the District Court of Douglas County, there was testimony which on several occasions associated the defendant with Larry Glouser. During the evidentiary hearing on the habeas corpus petition in the federal District Court, testimony was elicited concerning a juror, Ted Moscrey, who knew of the reputation of Larry Glouser as a drug pusher. Only a small portion of the record in the federal court relating to this issue is included in the record before us. The federal District Court held there had been no exhaustion of state court remedies as to the failure of trial counsel to strike the informed juror on voir dire. The petition was then dismissed without prejudice.

On September 6, 1979, the defendant again filed a motion for post conviction relief in the District Court of Douglas County, Nebraska. The motion set out the eight grounds alleged in the federal habeas corpus petition plus the failure to strike the juror Moscrey on voir dire. On September 3, 1980, the motion was amended to allege selective prosecution resulting in a denial of due process and equal protection because the codefendant, John Davis, had not been prosecuted and sentenced as an habitual criminal.

On July 29, 1981, the trial court held that the failure to charge the codefendant Davis as an habitual criminal, when both defendants were similarly situated so far as the evidence, culpability, and past records were concerned, was an abuse of prosecutorial discretion which entitled the defendant to post conviction relief. The trial court then vacated the defendant's sentence and resentenced him to 10 years' imprisonment with credit for time already served. From that judgment the State has appealed.

On September 4, 1981, the defendant moved to dismiss the appeal on the ground the notice of appeal had been filed out of time. The motion was based on the theory that an order dated March 13, 1981, was the final order from which the State should have appealed. In that order the trial court found that the defendant "should be granted post conviction relief" and ordered that he be returned to Douglas County for a hearing on March 20, 1981. The March 13 order granted no relief and was not a final order. The order which vacated the sentence was made on July 29, 1981, and was the final order from which an appeal could be taken. The motion to dismiss is overruled.

The record shows that the codefendant Davis had a lengthy criminal record. Both the defendant and Davis had been charged as habitual criminals, and the cases had been consolidated for trial. Davis escaped during the second day of the trial, and the trial continued only as to Bartlett.

After Davis was apprehended he entered a plea of guilty, and the habitual criminal charge was dismissed. On May 12, 1975, Davis was sentenced to imprisonment for 10 years.

If we assume that Davis and the defendant were equally culpable and had similar criminal records, the fact that Davis was not charged and sentenced as an habitual criminal does not entitle the defendant to post conviction relief. Abuse of prosecutorial discretion, as a violation of constitutional rights, requires proof of intentional and purposeful discrimination based on impermissible considerations such as race, religion, or the desire to prevent the prisoner from exercising his constitutional rights. See, United States v. Berrios, 501 F.2d 1207 (2nd Cir. 1974); United States v. Crow Dog, 532 F.2d 1182 (8th Cir. 1976); United States v. Ojala, 544 F.2d 940 (8th Cir. 1976); United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). There is no evidence of selective prosecution for such impermissible considerations in this case.

In State v. White, 209 Neb. 218, 228-29, 306 N.W.2d 906, 913 (1981), we said: "The defendant's last assignment urges that the habitual criminal statute, Neb.Rev.Stat. § 29-2221 (Reissue 1979), is unconstitutional as applied and violates the due process clause of the U.S. Constitution because the prosecutor's discretion as to whether or not to file the habitual criminal count in a particular case is not subject to statutory standards or judicial review. The full scope of the defendant's argument is set forth in Note, A Closer Look at Habitual Criminal Statutes, 16 Am.Crim.L.Rev. 275 (1979). Neither the defendant nor the author of the article cites any case authority to support the proposition. We have rejected similar arguments. State v. Martin, 190 Neb. 212, 206 N.W.2d 856 (1973). The Supreme Court of the United States, in Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663 , 54 L.Ed.2d 604 (19...