State v. Blaha
| Decision Date | 21 June 2019 |
| Docket Number | No. S-18-912.,S-18-912. |
| Citation | 929 N.W.2d 494,303 Neb. 415 |
| Parties | STATE of Nebraska, appellee, v. Ryan W. BLAHA, appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, and Katie L. Jadlowski for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Through new counsel, Ryan W. Blaha appeals his criminal convictions and sentences, attacking the sentences imposed and asserting ineffective assistance of trial counsel. Regarding his sentences, we (1) again reject the premise that sentences within statutory limits are never excessive, (2) dispel the notion that sentencing factors have not been adequately considered without specific discussion, and (3) reiterate that a sentencing court may consider a defendant’s conduct underlying dismissed charges. Although the record does not allow us to reach one of his four ineffectiveness claims, we find no merit to the others, which are, respectively, refuted by the record, not prejudicial, and insufficiently alleged. We affirm.
In March 2017, the State charged Blaha with eight counts, including assault in the first degree and use of a deadly weapon to commit a felony. From that time until the plea hearing in July 2018, no pretrial motions were filed. At the hearing, the parties announced a plea agreement, in which Blaha would plead no contest to those two charges and in exchange the State would dismiss the remaining charges. After the district court informed Blaha of his constitutional rights and received his pleas of no contest, the State set forth a factual basis for the charges. The district court accepted Blaha’s pleas of no contest, found him guilty beyond a reasonable doubt, and dismissed the remaining charges.
When the court asked trial counsel at the sentencing hearing whether he had any additions or corrections to the presentence investigation report, he directed the court to the documents which already had been shared with the court. Before the sentences were pronounced, trial counsel and the State made arguments. Blaha exercised his right to allocution and expressed remorse and responsibility for his actions. When pronouncing its sentences, the district court discussed mainly the nature of the offense and the amount of violence involved, but also mentioned Blaha’s age and mental illness as mitigating factors. It sentenced Blaha to consecutive sentences of 30 to 40 years' imprisonment for assault in the first degree and 15 to 30 years' imprisonment for use of a deadly weapon to commit a felony.
Blaha filed a timely appeal, which we moved to our docket.1
Blaha assigns, restated and reordered, that (1) the district court abused its discretion by imposing excessive sentences and (2) he received ineffective assistance of trial counsel where counsel (a) failed to advise Blaha of the statutory sentencing ranges, (b) failed to correct the State’s factual basis for the pleas, (c) failed to engage in pretrial litigation, and (d) failed to allow Blaha to review the presentence investigation report.
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.2 An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.3
Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance.4
Although Blaha does not dispute that the sentences were within the statutory limits, he contends that the district court abused its discretion by imposing excessive sentences. Before turning to his two arguments, we recall general principles of law.
The law governing review of criminal sentences is well settled. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.5 In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.6
We have repeatedly stated that the appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.7 With these principles in mind, we turn to Blaha’s specific arguments.
First, Blaha contends that Neb. Rev. Stat. § 29-2308 (Reissue 2016) has become meaningless. He asserts that effectively, most appellate courts "hold that almost any sentence that is within the statutory limits is not an abuse of discretion."8 Many years ago in State v. Ruisi ,9 a divided panel of the Nebraska Court of Appeals articulated a similar proposition. But in State v. Decker ,10 we rejected that notion. We quoted the Court of Appeals' dissent, which stated that this court " ‘has not foreclosed any sentence within statutory limits from being excessive, but it strongly suggests it is a rare exception.’ "11
Eighteen years later, this remains true. Blaha’s first argument lacks merit.
Second, Blaha asserts that "[t]he district court’s failure to adequately consider and apply the sentencing factors,"12 including his mentality, motivation for the offense, criminal history, education and work history, and age, "resulted in an unjust, excessive sentence and the court abused its discretion in imposing such a sentence."13 He relies on his mental deterioration in the preceding days to the events, his mental and behavioral illnesses, his criminal history and profile, his steady employment, and his immaturity.
At the sentencing hearing, the court stated that it did not believe the maximum punishment of 100 years' imprisonment was appropriate, "considering the youth of [Blaha] and his mental illness problems that he had at that time." It discussed the significant tragedy to the victim’s family, how the victim did not heal, and how the victim’s life changed forever. The court discussed the fact that Blaha shot at other people in the parking lot where the incident occurred and how Blaha did not express remorse to them when issuing its sentences.
We reject the notion that a court does not adequately consider sentencing factors when it does not discuss each one of them during the sentencing hearing or in its sentencing order. The record includes the presentence investigation report and shows that the court reviewed the entire report, which contains the information necessary to weigh the sentencing factors. In essence, Blaha quarrels with the weight accorded to these factors by the sentencing court. We do not review sentences de novo, but only for an abuse of discretion.
At oral argument, Blaha offered additional reasoning: that the court improperly considered the facts surrounding the dismissed charges. In State v. Janis ,14 we rejected a similar argument. There, we stated that the law invests a trial judge with a wide discretion as to the sources and types of information used to assist him or her in determining the sentence to be imposed within statutory limits.15 Because the court considered the facts underlying the dismissed charges, it did not consider improper sentencing factors. Our review of the record discloses that the court considered relevant factors and did not consider improper factors. We conclude that the district court did not abuse its discretion when imposing the sentences.
We begin by reciting the general principles of law that will guide our analysis, then turn to Blaha’s specific claims of ineffective assistance of counsel.
Generally, a voluntary guilty plea or plea of no contest waives all defenses to a criminal charge.16 Thus, when a defendant pleads guilty or no contest, he or she is limited to challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel.17 Here, Blaha asserts only the latter.
Blaha has different counsel on direct appeal. When a defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the record.18
Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington ,19 the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense.20 To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law.21 In a plea context, deficiency depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.22 When a conviction is based upon a guilty or no contest plea, the prejudice requirement for an...
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...... . . Brief. for appellant at 67. Galindo characterizes such a plea as a. "viable strategy to save his life." Id . at. 68. . . Certainly,. the right to effective assistance of counsel extends to the. plea context, see, e.g., State v. Blaha , 303 Neb. 415, 929 N.W.2d 494 (2019), but the facts alleged in. Galindo's motion for postconviction relief do not. demonstrate a violation of this right. 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. ......
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State v. Ewinger, A-18-470.
...Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the und......
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...assistance. Generally, a voluntary guilty plea or plea of no contest waives all defenses to a criminal charge. State v. Blaha , 303 Neb. 415, 929 N.W.2d 494 (2019). Thus, when a defendant pleads guilty or no contest, he or she is limited to challenging whether the plea was understandingly a......
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