State v. Caddy
| Citation | 628 N.W.2d 251,262 Neb. 38 |
| Decision Date | 22 June 2001 |
| Docket Number | No. S-00-291.,S-00-291. |
| Parties | STATE of Nebraska, Appellee, v. Michael T. CADDY, Appellant. |
| Court | Nebraska Supreme Court |
Michael T. Caddy, pro se.
Don Stenberg, Attorney General, and Susan J. Gustafson for appellee.
Michael T. Caddy, the appellant, seeks postconviction relief relating to his convictions for the June 10, 1992, murder of Charles Burns. The primary issue presented in this appeal is whether Caddy is entitled to an evidentiary hearing on his claim that he was deprived of a direct appeal from his 1998 resentencing by ineffective assistance of counsel.
The following facts are established by the record in the instant case and the transcripts from Caddy's prior appeals: Where cases are interwoven and interdependent and the controversy involved has already been considered and decided by the court in a former proceeding involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action. State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001); State v. Suggs, 259 Neb. 733, 613 N.W.2d 8 (2000).
Caddy was first charged in connection with Burns' murder on July 9, 1992. On July 29, Caddy entered pleas of no contest to murder in the second degree and use of a firearm to commit a felony. Caddy was convicted and sentenced to 25 to 40 years' imprisonment on the murder charge and 5 to 15 years' imprisonment on the weapons charge, to be served consecutively. Caddy's sole assignment of error on direct appeal was that the sentences were excessive, and the Nebraska Court of Appeals summarily affirmed the judgment of the district court. See State v. Caddy, 1 Neb. App. xlix (case No. S-92-878, March 18, 1993). In 1995, Caddy filed a motion for postconviction relief, arguing, inter alia, that he was entitled to a new trial because the information filed against him had omitted the element of malice from the crime of murder in the second degree. See State v. Barfoot, 248 Neb. 335, 534 N.W.2d 572 (1995),overruled, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). On July 20, 1995, based on State v. Barfoot, the district court set aside both of Caddy's convictions and granted Caddy a new trial. On the same day, the Buffalo County Attorney filed a new information charging Caddy with murder in the first degree and use of a firearm in the commission of a felony. Pursuant to a plea bargain, Caddy pled guilty to murder in the second degree and use of a firearm to commit a felony. Caddy was convicted of those charges, and the sentences imposed were identical to those resulting from his first conviction.
Caddy appealed to the Court of Appeals. Caddy's counsel on appeal was different from his counsel at his pleas, convictions, and sentencing. The Court of Appeals, in a memorandum opinion, affirmed Caddy's convictions, but vacated the sentences and remanded the cause to the district court for resentencing. See State v. Caddy, 5 Neb.App. xviii (case No. A-96-077, April 3, 1997). This court overruled Caddy's petition for further review. See State v. Caddy, 252 Neb. xxiii (case No. A-96-077, July 23, 1997).
After remand, on November 17, 1997, the district court sentenced Caddy to imprisonment for a period of 40 years on the charge of murder in the second degree and a period of 5 to 15 years on the weapons charge. Caddy appealed, but his appeal was dismissed by this court for failure to file the poverty affidavit required for an in forma pauperis appeal. See State v. Caddy, 256 Neb. xxi (case No. S-98-335, Jan. 27, 1999).
On January 20, 2000, Caddy filed the postconviction motion that is the subject of the instant case, raising several claimed constitutional errors. The district court determined that Caddy's postconviction motion was without merit and denied the motion without an evidentiary hearing. Caddy timely appealed. We moved the appeal to our docket after Caddy filed a notice of a constitutional question, pursuant to Neb. Ct. R. of Prac. 9E (rev.2000).
Caddy has assigned several errors. Those errors have been consolidated and restated and are organized based upon whether they relate to Caddy's convictions, sentences, or direct appeal.
Conviction errors: Caddy assigns that the district court erred in failing to find that (1) it lacked subject matter jurisdiction due to defective informations; (2) Neb.Rev.Stat. § 28-304 (Reissue 1995), the statute defining murder in the second degree, is unconstitutionally vague; (3) there had been prosecutorial misconduct; (4) there had been judicial misconduct; (5) there was a statewide conspiracy against Caddy's rights; (6) Caddy's 1995 pleas were coerced; and (7) Caddy's right to be protected against double jeopardy was violated.
Sentencing error: Caddy assigns that the district court erred in not finding that Caddy had illegal and unauthorized sentences imposed in 1997, in violation of his due process and equal protection rights.
Direct appeal error: Caddy assigns that the district court erred in failing to find that Caddy was denied effective assistance of counsel on direct appeal after Caddy's counsel failed to file a required poverty affidavit, resulting in the dismissal of the direct appeal from Caddy's 1997 resentencing.
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Becerra, 261 Neb. 596, 624 N.W.2d 21 (2001); State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001). Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000).
In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. State v. Becerra, supra; State v. Narcisse,
260 Neb. 55, 615 N.W.2d 110 (2000). The appellant in a postconviction proceeding has the burden of alleging and proving that the claimed error is prejudicial. State v. Hess, supra.
An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. Where such an allegation is made, an evidentiary hearing may be denied only when the records and files affirmatively show that the defendant is entitled to no relief. State v. McCroy, 259 Neb. 709, 613 N.W.2d 1 (2000).
Caddy presents three arguments to support his claim that the district court was without subject matter jurisdiction to originally convict and sentence him. One of these arguments is that § 28-304, the statute defining murder in the second degree, is unconstitutionally vague. This argument will be addressed below in our analysis of Caddy's more specific assignment of error on that issue.
Caddy's second argument supporting this assignment of error is that the information charging him with murder in the second degree was defective and void because it included the element of malice, which is not contained in the statutory definition of the offense. Caddy did not raise this argument in his motion for postconviction relief. Because we do not consider as an assignment of error a question not presented to the district court for disposition through a defendant's motion for postconviction relief, this argument fails. See State v. Becerra, supra.
Moreover, Caddy raised the foregoing argument and it was rejected by the Court of Appeals in Caddy's 1996 appeal from his second convictions. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal. State v. Hess, supra.
Caddy's third argument is that the information against him was void because after his successful postconviction proceeding, the State initially charged him with murder in the first degree, thus it unlawfully "upped the charge" against him. Brief for appellant at 33. This argument was also raised in and rejected by the Court of Appeals in Caddy's 1996 appeal and cannot be reviewed in Caddy's motion for postconviction relief. See State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001).
Caddy argues that his convictions are void because the statute pursuant to which he was convicted, § 28-304, is unconstitutionally vague. We initially note that this argument is barred by virtue of the fact that Caddy could have raised it in his 1996 direct appeal. See, State v. Hess, supra; State v. Suggs,
259 Neb. 733, 613 N.W.2d 8 (2000). Moreover, normally, a voluntary guilty plea waives all defenses to a criminal charge. See State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998). Finally, as the State argues, Caddy has waived his facial challenges to the validity of the statute by not filing a timely motion to quash in the district court. See, State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430 (1999); State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996).
Caddy argues, however, that because the statute is void, his convictions are void ab initio, and that this presents a jurisdictional issue that may be raised at any time in any proceeding. See State v. LeGrand, 249 Neb. 1, 541 N.W.2d 380 (1995), overruled on other grounds, State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999)
. Assuming for the sake of discussion that Caddy's convictions would be void and...
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