State v. Brungardt

• Decision Date: 16 May 2017
• Docket Number: No. A-16-564,No. A-16-566.,A-16-564,A-16-566.
• Parties: STATE OF NEBRASKA, APPELLEE, v. MELVIN A. BRUNGARDT, APPELLANT.
• Court: Nebraska Court of Appeals

STATE OF NEBRASKA, APPELLEE, v. MELVIN A. BRUNGARDT, APPELLANT.

No. A-16-564

No. A-16-566.

NEBRASKA COURT OF APPEALS

May 16, 2017

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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).

Appeals from the District Court for Jefferson County: PAUL W. KORSLUND, Judge. Judgment in No. A-16-564 affirmed in part, and in part vacated and cause remanded with directions. Judgment in No. A-16-566 affirmed.

Joseph M. Casson for appellant.

Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.

MOORE, Chief Judge, and INBODY and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

This memorandum opinion involves two appeals, cases Nos. A-16-564 and A-16-566, which have been consolidated for briefing and disposition. In case No. A-16-564, Melvin A. Brungardt pled guilty to: (1) carrying a concealed weapon, a Class I misdemeanor, and (2) failure to appear, a Class IV felony. On Count I, the district court for Jefferson County sentenced him to 12 months' imprisonment followed by 9 months of post-release supervision. On Count II, the district court sentenced Brungardt to 2 years' imprisonment followed by 12 months of post-release supervision. The sentences in Counts I and II were ordered to run concurrently with each other, but consecutively to the sentence in case No. A-16-566.

In case No. A-16-566, Brungardt pled guilty to attempted possession of a controlled substance, a Class I misdemeanor, and was sentenced to 24 months' probation. Five months later the State filed a motion to revoke Brungardt's probation, alleging he violated several conditions of his probation. Brungardt admitted to allegations set forth in the motion to revoke and the district court for Jefferson County subsequently revoked Brungardt's probation. He was then sentenced to 12 to 12 months' imprisonment on his conviction for attempted possession of a controlled substance.

On appeal in both cases, Brungardt argues that the district court improperly advised him of potential sentences, denied his motion to continue sentencing, and sentenced him to incarceration rather than probation. Brungardt also argues that his counsel was ineffective. For the following reasons, we affirm in part, and in part vacate and remand with directions.

II. BACKGROUND

1. CASE NO. A-16-564

On October 23, 2015, the State filed an information charging Brungardt with possession of a deadly weapon by a felon, fugitive, or prohibited person, a Class III felony. See Neb. Rev. Stat. § 28-1206 (Reissue 2016). The State alleged that on September 1, Brungardt "possess[ed] a knife, being a person who had previously been convicted of a felony or who [was] a fugitive from justice or who [was] the subject of a current and validly issued domestic violence protection order and [was] knowingly violating such order[.]" We note that this offense occurred after the August 30, 2015, effective date of 2015 Neb. Laws, L.B. 605.

At his arraignment hearing on November 5, 2015, Brungardt pled not guilty. He failed to appear at a status hearing on February 4, 2016, and a warrant for his arrest was issued the next day. On February 5, the State filed an amended information, adding a charge of failure to appear, a Class IV felony. See Neb. Rev. Stat. § 29-908 (Reissue 2016).

On March 22, 2016, the State and Brungardt entered into a plea agreement, wherein: (1) the State agreed to amend Count I of the information from possession of a deadly weapon by a felon, fugitive, or prohibited person, a Class III felony, to carrying a concealed weapon, a Class I misdemeanor; (2) Brungardt agreed to plead guilty or no contest to the amended charge of carrying a concealed weapon and to the charge of failure to appear; and (3) Brungardt agreed to admit to the allegations set forth in a separate case (A-16-566 below; specifically the motion to revoke probation filed on February 16, 2016). Regarding the separate case, the agreement notes that Brungardt is subject to revocation for a Class I misdemeanor for attempted possession of a controlled substance. There was no agreement as to sentencing. On March 22, the State amended its information and charged Brungardt with (1) first offense carrying a concealed weapon, a Class I misdemeanor, pursuant to Neb. Rev. Stat. § 28-1202 (Reissue 2016), and (2) failure to appear, a Class IV felony.

At a hearing on March 22, 2016, pursuant to the plea agreement, Brungardt pled guilty to Counts I and II of the amended information. According to the factual basis provided by the State:

[O]n or about September 1, 2015, Chad Sprunk of the Fairbury Police Department . . . was behind a white motor vehicle that he observed to be driven by . . . Brungardt . . . . The officer knew Mr. Brungardt from prior law enforcement contacts, and he ran a warrantcheck on Mr. Brungardt and was advised that while he did have a valid license, there was a York County warrant for his arrest.

So he made contact with Mr. Brungardt at Casey's gas station . . . asked him to step back to his vehicle and advised him that there was a warrant for [his] arrest out of York County. He was taken into custody, and while conducting a patdown search, the officer located a concealed knife in [Brungardt's] right pocket. The officer took the knife and observed that it had a blade over three and a half inches. The officer knew that Mr. Brungardt was a convicted felon previously and was not supposed to be in possession of a deadly weapon.

All of those events with regard to Count I, as amended, to the offense of carrying a concealed weapon occurred here in Jefferson County, Nebraska.

With regard to Count II, at the time of the allegation, February 4th of 2016, [Brungardt] was still charged with the offense of possession of a deadly weapon by a felon, that being a felony offense. [Brungardt] did not appear in this court for a court appearance . . . in this particular case.

. . . [Brungardt] did not turn himself into the local sheriff within three days hereafter, and so the Information was amended and filed with the additional charge for failure to appear.

And all these events occurred with regard to Count II here in Jefferson County, Nebraska.

The district court accepted Brungardt's guilty pleas to Counts I and II.

The sentencing hearing was held on May 5, 2016. On Count I, the district court sentenced Brungardt to 12 months' imprisonment, with 9 days' credit for time served, followed by 9 months of post-release supervision. On Count II, the district court sentenced Brungardt to 2 years' imprisonment, with 9 days' credit for time served, followed by 12 months of post-release supervision. The sentences in Counts I and II were ordered to run concurrently; however, the sentences were to run consecutively to Brungardt's sentence in his separate case (A-16-566). An order memorializing the court's sentence was filed that same day. Brungardt now appeals.

2. CASE NO. A-16-566

On April 22, 2015, the State filed an information charging Brungardt with possession of a controlled substance, a Class IV felony, pursuant to Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2014). The State alleged that on March 22, Brungardt "did knowingly or intentionally possess a controlled substance other than marijuana, to wit: methamphetamine[.]" We note that this offense occurred before the August 30, 2015, effective date of L.B. 605.

In July 2015, the State and Brungardt entered into a plea agreement wherein (1) the State agreed to amend the information from possession of methamphetamine, a Class IV felony, to attempted possession of methamphetamine, a Class I misdemeanor; (2) Brungardt agreed to plead guilty or no contest to the amended charge; and (3) the State would not object to a request for probation. On July 2, the State amended its charge against Brungardt to attempted possession ofmethamphetamine, a Class I misdemeanor. See § 28-416(3); Neb. Rev. Stat. § 28-201 (Cum. Supp. 2014).

At a hearing on July 2, 2015, pursuant to the plea agreement, Brungardt pled guilty to the amended information. According to the factual basis provided by the State:

On March 22nd, 2015, Dispatch advised [Nick Georgie of the Fairbury Police Department] that . . . there had been a call about a male identified as Melvin Brungardt, who was suicidal. The reporting party was a sister-in-law . . . and that Mr. Brungardt was headed for the railroad tracks and was going to kill himself. So various officers went to search for him. They finally were referred to a house near 14th and Maple Streets . . . here in Fairbury and went to that location to look for [Brungardt].

. . . .

He was located . . . outside the residence several blocks from the railroad tracks. When asked, [Brungardt] denied being suicidal. Officer Joshua Jacobi brought over a backpack and a plastic bag full [of] clothes and stated they were [Brungardt's] property. He verified that to the officers. Officer Jacobi also turned over a pocket knife to Nick Georgie that was found in [Brungardt's] pocket during a patdown.

. . . The officer was, then, advised that he had located a suspected methamphetamine pipe in the backpack while inventorying the backpack in [sic] a plastic bag in an attempt to locate any more knives. It was located in the zipper part of the backpack.

. . . The pipe was field tested and tested positive for methamphetamine residue . . . .

All these events have occurred in Jefferson County, Nebraska . . . .

The district court accepted Brungardt's guilty plea. On September 3, the district court sentenced him to 24 months' probation, subject to various conditions.

On February 16, 2016, the State filed an affidavit and motion to revoke probation, alleging that Brungardt violated various terms of his probation. Brungardt failed to appear at the March 17 hearing on the State's motion, and a warrant for his arrest was issued.

On March 22, 2016, the State and Brungardt entered into a plea...