State v. Buttercase
| Decision Date | 05 December 2017 |
| Docket Number | No. A-15-987.,A-15-987. |
| Parties | STATE OF NEBRASKA, APPELLEE v. JOSEPH J. BUTTERCASE, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Gage County: PAUL W. KORSLUND, Judge. Affirmed.
Joseph J. Buttercase, pro se.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
Joseph J. Buttercase appeals from the Gage County District Court's denial of his motions to recuse the judge and to amend his postconviction motion. He also appeals from the court's denial of his motion for postconviction relief without an evidentiary hearing. We affirm.
In 2012, Buttercase was convicted of first degree sexual assault, first degree false imprisonment, strangulation, and third degree domestic assault. He received sentences of 20 to 30 years' imprisonment for his sexual assault conviction, 4 to 5 years' imprisonment for his false imprisonment conviction, 20 months to 5 years' imprisonment for his strangulation conviction, and 1 to 1 year imprisonment for his domestic assault conviction. All sentences were ordered to be served consecutively. Buttercase appealed, and in case No. A-12-1167, in an unpublished memorandum opinion dated November 5, 2013, this court affirmed his convictions and sentences.
Buttercase filed the present motion for postconviction relief on February 19, 2015. The motion alleged that his convictions and sentences were in violation of the United States and Nebraska constitutions, "more particularly his right to due process of law and his right to effective assistance of counsel." He claimed his trial counsel was ineffective for failing to: contact or interview a witness, Sondra Aden, before trial, and to "present her evidence at trial"; raise the trial court's denial of his motion to suppress and motion for a Franks hearing on direct appeal; properly investigate the case and present the exhibits for Buttercase's review; object to certain photographic evidence presented by the state; object to testimony by Julie Jurich (a witness called by the State); call a medical expert witness to testify at trial; and file a motion for change of venue. In addition, Buttercase alleged the State disclosed new evidence during trial and that this late disclosure prejudiced his right to a fair trial and effective assistance of counsel.
The State filed a response to Buttercase's motion for postconviction relief, in which it alleged: Buttercase failed to allege facts which, if proved, constituted a denial or violation of any constitutional right; the motion was procedurally barred; the case files and records affirmatively showed Buttercase was not entitled to any relief; and Buttercase's motion alleged only conclusions of law. The State asked the district court to deny the motion without an evidentiary hearing. The district court held a status hearing on April 20, 2015, and requested briefs regarding the State's responsive pleading, but referred to it as a "motion to dismiss."
Buttercase filed a motion to recuse the presiding judge on June 26, 2015. Buttercase argued recusal was appropriate because (1) the judge had previously chastised him in open court, (2) Buttercase had filed a complaint against the judge, and (3) the judge's impartiality might reasonably be questioned. On June 29, Buttercase filed a motion to amend his motion for postconviction relief. A hearing on both motions was held on August 14.
In an order filed on September 15, 2015, the district court denied Buttercase's motion to recuse, finding the court did not demonstrate any bias towards Buttercase and that the complained-of admonishments were necessary for proper conduct at trial.
In an order filed on September 16, 2015, the district court denied Buttercase's motion to amend his motion for postconviction relief. The court noted Buttercase had one year from the filing of his direct appeal mandate (March 5, 2014), to file his motion for postconviction relief. Buttercase filed his postconviction motion on February 19, 2015. However, Buttercase did not seek to amend his motion until June 29 (near the end of the briefing schedule on the State's motion to deny an evidentiary hearing). The court determined Buttercase sought to amend his motion for postconviction relief outside the one-year period of limitations set forth in Neb. Rev. Stat. § 29-3001 (Reissue 2016), and to "avoid the one year statute of limitations under [§] 29-3001, it is necessary to find that the proposed amendment relates back to the pending motion for postconviction relief as provided by Neb. Rev. Stat. 25-201.02(1) [Reissue 2016]." The court noted the statute's language that an amendment "relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." See id. The court stated, "Buttercase argues that the new allegations relate to evidence that could have been used by his trial counsel in support of the theory that the victim consented to Buttercase's sexual conduct." The court concluded Buttercase's motion to amend raised a "distinctly new factual allegation ofthe ineffectiveness assistance of trial counsel," and therefore, the proposed amendment did not relate back to the original motion for postconviction relief as required to circumvent the one-year period of limitation.
The district court denied Buttercase's motion for postconviction relief without an evidentiary hearing on October 2, 2015. Buttercase timely appealed.
Buttercase assigns, summarized and restated, that the district court erred by denying his motions: (1) to recuse the presiding district court judge, (2) to amend his motion for postconviction relief, and (3) for postconviction relief without an evidentiary hearing.
A motion to recuse for bias or partiality is initially entrusted to the discretion of the trial court, and the trial court's ruling will be affirmed absent an abuse of discretion. Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010).
An appellate court reviews a refusal to grant leave to amend an original postconviction for an abuse of discretion. See State v. Edwards, 294 Neb. 1, 880 N.W.2d 642 (2016). A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Id.
In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
Buttercase claims the district court judge should have recused himself for three reasons: (1) the judge had previously chastised Buttercase in open court; (2) Buttercase filed a complaint against the judge; and (3) the judge's impartiality might reasonably be questioned.
A motion requesting a judge to recuse himself or herself on the ground of bias or prejudice is addressed to the discretion of the judge, and an order overruling such a motion will be affirmed on appeal unless the record establishes bias or prejudice as a matter of law. Huber v. Rohrig, supra. As a matter of law, a trial judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown. Id.
Initially, we note the State's argument that the recusal issue is not properly before this court because Buttercase's claim is based upon the judge's actions at trial and Buttercase did not raise the issue on direct appeal, nor did he allege in his postconviction motion that his trial/appellate counsel was ineffective for failing to do so (he was represented by same counsel at trial and on direct appeal). The State supports its argument by citing State v. Thorpe, 290 Neb. 149, 858N.W.2d 880 (2015), for the proposition that a motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased. However, Buttercase is not arguing that the district court judge should have recused himself from the trial proceedings. Rather, he sought to have the judge recuse himself from the postconviction proceedings because of purported bias demonstrated in prior proceedings. Thus, the issue is not waived.
Having reviewed the merits of Buttercase's arguments for recusal, we find the district court correctly denied the motion to recuse. First, Buttercase's motion did not identify where in the record the allegedly problematic chastisement took place. However, in his brief, he directs our attention to page 810, lines 17 to 21, of the bill of exceptions, which reflects the following admonition by the court given during Buttercase's testimony at trial:
THE COURT: All right. I will strike the last portion of the answer after "yes", [sic] and then Mr. Buttercase, I'm going to instruct you, again, to answer the question that you are asked and don't volunteer any information. Do you understand me?
While Buttercase did not mention it in his brief or in his motion to recuse, we note the court later addressed the jury, stating:
THE COURT: All right. Ladies and Gentlemen of the jury, I'm going to instruct you not to draw any negative inference...
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