State v. Brunsen
| Decision Date | 15 April 2022 |
| Docket Number | S-21-354. |
| Parties | STATE of Nebraska, appellee, v. Mark A. BRUNSEN, appellant. |
| Court | Nebraska Supreme Court |
Kevin Ruser, Lincoln, and Ryan P. Sullivan, of University of Nebraska Civil Clinical Law Program, and Jayden Barth and Rachel T. Dick, Senior Certified Law Students, for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis, for appellee.
This case presents an appeal from the denial of a petition to set aside a conviction pursuant to Neb. Rev. Stat. § 29-2264 (Cum. Supp. 2020). The petitioner, with the assistance of a publicly funded pro bono program at the University of Nebraska College of Law, has been pursuing set asides of several eligible convictions. All preceding petitions had been successful, and the State supported the present set aside request.
The district court expressed concern at the hearing regarding a recent weapons conviction. It also voiced certain misunderstandings, corrected by the State, about the effects of setting aside convictions and whether other judges had fully reviewed the petitioner's criminal record. The court hypothesized that as a result of the petitioner's crimes being set aside, he could, ultimately, commit a future act of domestic terrorism and the media would direct blame upon the courts for having simply "signed off" on the process. The court also questioned whether the petitioner's representation by a publicly funded educational program was a good use of taxpayer money. The petitioner asserts the court's ruling was based upon untenable and unreasonable reasoning and impermissible bias and, thus, was an abuse of discretion.
Mark A. Brunsen appeals from the denial of his motion to set aside, pursuant to § 29-2264, his 1988 conviction of the Class I misdemeanor of theft by receiving a stolen item, $100 to $300. He was sentenced to 4 months in jail, which he served.
At the hearing, Brunsen's attorney, from the civil clinic at the University of Nebraska College of Law, pointed out that Brunsen, who was then 51 years of age, has, since a conviction in 2017, committed no crimes other than minor traffic offenses. Brunsen had "turned [his] life around," is gainfully employed, and is involved with the local community through volunteering.
Brunsen works as a truckdriver and has, for the past 2 years, been employed as an owner/operator leased to a transportation company. He was trying to set aside all eligible prior convictions in order to obtain a transportation worker card, or "TWIC card," issued by the "TSA and Homeland Security," which would allow him to take shipping containers in and out of railyards. He also wished to obtain a "HazMat Safety Permit [which] would allow him to haul for local co-ops."
Brunsen testified that the conviction he was seeking to set aside arose from him being "one of the individuals in a stolen car." Brunsen felt "[a]shamed, terrible" about that conviction and was "hanging with the wrong people." He acknowledged a number of "run-ins with the law" from his "teen years through [his] 30s." He regretted doing "any of those things back then" and wished he "would have got straightened out sooner."
Brunsen explained that he was seeking to set aside the 1988 conviction "to continue on the successful path that I've gotten on now and be judged on my character and my merits instead of my past criminal history and offenses." He said, "I'm not trying to erase my prior mistakes, but I'm — I don't want to be defined by them."
Brunsen's criminal history, entered into evidence at the hearing, shows numerous prior convictions, beginning when he was a teenager. These generally involved nonviolent misdemeanor crimes of dishonesty and continued largely unabated until Brunsen approached his forties. In addition to the 1988 conviction, Brunsen's record contains the following convictions in Nebraska, excluding minor traffic infractions. Brunsen's criminal record reflects that several of these convictions were set aside in 2020.
In 1986, Brunsen was found guilty of backing against traffic and leaving the scene of a property damage accident. In 1987, he was found guilty of being a minor in possession of liquor and of stealing money or goods less than $300. In 1988, he was found guilty of two counts of stealing money or goods less than $300. He was also found guilty of making a false statement, liquor consumption in a prohibited place, and minor in possession of liquor. In 1989, Brunsen was convicted of felony forgery in the second degree, misdemeanor theft by unlawful taking, failure to appear on a citation, and three counts of stealing money or goods less than $300.
In 1990, Brunsen was convicted of making a false statement. In 1991, he was found guilty of unlawful possession or consumption of alcohol by a minor and making a false statement. He was also convicted of making a false statement to a police officer and of possessing, selling, or discharging an unlawful firearm. In 1992, Brunsen was convicted of two counts of theft by unlawful taking. In 1993, Brunsen had misdemeanor convictions of insufficient funds check under $100, stealing money or goods less than $500, and failing to appear in court. In 1994, he was convicted of attempting a Class III or IIIA felony, failure to appear, and of an insufficient funds check under $100. In 1995, Brunsen was convicted of issuing a bad check of less than $100, driving during suspension, possessing stolen property, possessing drug paraphernalia, and failure to appear in court.
In 1996, Brunsen was convicted of operating a motor vehicle without a license, negligent driving, and failure to appear in court. In 1997, he was convicted of injuring or destroying property of another and negligent driving. In 1998, Brunsen was convicted of false reporting, selling alcohol to a minor, shoplifting, fraudulently obtaining property under $100, and failure to appear. He was convicted in 1999 of violating probation, having fictitious plates/unlawful display, and no valid registration.
Brunsen had misdemeanor convictions in 2000 of shoplifting, fraudulently obtaining property under $100, issuing a bad check for less than $100, stealing money or goods less than $300, failure to appear, and attempt of a Class IV felony. He had misdemeanor convictions in 2001 of issuing a bad check for less than $100, possessing drug paraphernalia, and operating a motor vehicle with a suspended license. In 2002, Brunsen was convicted of driving during revocation, stealing money or goods less than $300, and no proof of insurance. In 2003, Brunsen was convicted of stealing money or goods less than $500 and failure to appear in court. In 2004, he was convicted of having fictitious plates/unlawful display. In 2008, he was found guilty of driving under the influence, first offense, and failing to appear in court. In Colorado, Brunsen was convicted in 2012 of theft under $500.
The most recent conviction, in 2017, was for attempted possession of a deadly weapon by a prohibited person. Brunsen was sentenced to 12 months’ probation.
Brunsen testified at the hearing that the plea-based 2017 conviction stemmed from his staying in a bedroom at his father's house in 2016. Brunsen's brother owned a decorative knife that the brother had hung on the wall of the bedroom. Brunsen was using another knife, his own, to secure the bedroom door that could not have a lock mounted in it. The weapons were discovered during a drug raid served on the house.
Brunsen asserted that he did not know the knives were considered deadly weapons and prohibited. His counsel explained that when Brunsen was convicted of the underlying felony conviction, they were not. Brunsen described that "[i]t was ignorant on my part," he "should have been smarter and known about that," and he regretted it.
The State supported setting aside the 1988 conviction, explaining:
Judge, in consideration of the statutory factors, the testimony of ... Brunsen, the passage of the period of time between the subject offense and today's date, as well as the passage of time of law abiding conduct, the State believes that the set aside should be granted and that ... Brunsen should be granted the relief sought. State has no objection to the Court ordering that relief.
Brunsen's counsel argued Brunsen was a good candidate for set aside because he was "owning up" to his mistakes. But the court responded, "Do you not agree that accepting responsibility would also be accepting the consequences of the life you've led to this point?"
When Brunsen's counsel suggested that the most recent 2017 conviction was a "blip" of being "caught in a house that had a couple knives," the court responded that Brunsen was caught in a "house that was being raided for drugs."
The court expressed concern that if it granted the set aside, Brunsen's record would be "wiped clean," and that employers checking his criminal history would no longer see the crime. The court then summarized its apprehensions about whether Brunsen was "a good person to take a risk on," in light of Brunsen's ambitions as a truckdriver and the court's perception that other judges had "just signed off" on setting aside Brunsen's other convictions:
To continue reading
Request your trial
-
Buttercase v. Davis
...Neb. 296, 979 N.W.2d 81 (2022).69 Brown v. Jacobsen Land & Cattle Co., supra note 63.70 Brief for appellant at 33.71 State v. Brunsen , 311 Neb. 368, 972 N.W.2d 405 (2022).72 State v. Jaeger , 311 Neb. 69, 970 N.W.2d 751 (2022).73 State v. Lierman , 305 Neb. 289, 940 N.W.2d 529 (2020).74 Se......
-
Buttercase v. Davis
... ... § ... 1465 (2018), and was sentenced to 36 months' ... imprisonment, to run concurrently with the state sentence he ... was then serving. Buttercase's ex-wife and alleged victim ... testified at the sentencing hearing that she and Buttercase ... [ 69 ] Brown v. Jacobsen Land & ... Cattle Co., supra note 63 ... [ 70 ] Brief for appellant at 33 ... [ 71 ] State v. Brunsen, 311 Neb ... 368, 972 N.W.2d 405 (2022) ... [ 72 ] State v. Jaeger, 311 Neb ... 69, 970 N.W.2d 751 (2022) ... [ 73 ] State v. Herman, ... ...