State v. Clear

• Decision Date: 30 November 1990
• Docket Number: No. 89-1355,89-1355
• Citation: 463 N.W.2d 581,236 Neb. 648
• Parties: STATE of Nebraska, Appellee, v. William M. CLEAR, Appellant.
• Court: Nebraska Supreme Court

Page 581

463 N.W.2d 581

236 Neb. 648

STATE of Nebraska, Appellee, v. William M. CLEAR, Appellant.

No. 89-1355.

Supreme Court of Nebraska.

Nov. 30, 1990.

Syllabus by the Court

1. Sentences: Due Process. Due process requires that a sentencing judge have relevant information as the basis for a sentence imposed on a convicted defendant.

2. Sentences: Evidence. In a sentence hearing, a court, generally, has broad discretion concerning the source of information and the type of information to be considered.

3. Sentences: Evidence: Presentence Reports. A sentencing judge may consider relevant information contained in a presentence report on the defendant to determine an appropriate sentence within the statutorily authorized penalty, punishment, or disposition applicable to the crime for which the defendant has been convicted.

4. Sentences: Due Process. A convicted defendant, even in a noncapital case, has a due process right to inquire into an incorrect assumption by the sentencing judge, untrue information materially affecting a prospective sentence, or other misinformation which a court may use in determining what sentence will be imposed.

5. Presentence Reports. As a result of the qualified right to review the entire presentence report on the defendant, a convicted defendant, with counsel, may examine the presentence report subject to the court's supervision, which includes the court's redaction of any information deemed confidential or privileged.

6. Waiver: Words and Phrases. A waiver is the voluntary and intentional relinquishment of a known right, privilege, or claim, and may be expressed by word or inferred from, or demonstrated by, a person's conduct.

7. Constitutional Law: Waiver: Records. A voluntary waiver, knowingly and intelligently made, must affirmatively appear from the record, before a court may conclude that a defendant has waived a right constitutionally guaranteed or granted by statute.

Lorin C. Galvin, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

In his motion for postconviction relief pursuant to Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1989), William M. Clear alleged that he was denied the constitutional right to effective assistance of counsel, see U.S. Const. amend. VI and Neb. Const. art. I, § 11, at Clear's hearing for sentencing on his conviction for attempted robbery. Clear claimed that he had ineffective counsel because his lawyer did not supply Clear with the complete presentence report used by the sentencing judge. After an evidential hearing, the district court for Douglas County denied postconviction relief to Clear, who appeals and claims that he was "denied of his due process rights to effective assistance of counsel because [Clear] was denied the opportunity to see and read his pre-sentence report [which] contained a letter which prejudiced [Clear] by containing materially untrue information accusing [Clear] of uncharged crimes." Brief for appellant at 1.

STANDARD OF REVIEW

In an evidentiary hearing, as a bench trial provided by §§ 29-3001 et seq. for postconviction relief, the trial judge, as the "trier of fact," resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony. Cf. State v. Craig, 219 Neb. 70, 80, 361 N.W.2d 206, 214 (1985) ("In a bench trial of a criminal case, the court, as the 'trier of fact,' is the sole judge of the credibility of witnesses and the weight to be given to their testimony"). In an appeal involving a proceeding for postconviction relief, the trial court's findings will be upheld unless such findings are clearly erroneous. State v. Pearson, 220 Neb. 183, 368 N.W.2d 804 (1985).

State v. Williams, 224 Neb. 114, 116, 396 N.W.2d 114, 116 (1986).

BACKGROUND OF CLAIM

Initially, the State charged Clear with attempted robbery of a Ginn Oil food store and use of a firearm in the attempted robbery. Pursuant to a plea agreement, Clear pled guilty to attempted robbery, and the State dismissed the charge that Clear used a firearm in the attempted robbery. Two weeks before the sentence hearing, a probation officer sent a letter to Clear and his lawyer, notifying them that the presentence report on Clear was available for their review. When Clear contacted his lawyer and told him about the letter, the lawyer said that before Clear's sentence hearing, they would review the presentence report, which included a letter from William F. Ginn, president of Ginn Oil Company.

Although Clear's lawyer never showed Clear the presentence report before the sentence hearing, the lawyer did discuss the "contents" of the presentence report with Clear, including the Ginn letter. Consequently, before the sentence hearing, Clear never saw the letter from Ginn, but did visit with his lawyer regarding the letter and whether the letter's "allegations were true." Without examining Ginn's letter in the presentence report, Clear, nevertheless, denied the events mentioned in the letter.

At the sentence hearing, the court recounted some of the information in the presentence report containing the letter in which Ginn accused Clear of a prior armed robbery of a Ginn Oil food store, the attempted armed robbery involved in the present case, and intimidation of potential witnesses to prevent their testifying against Clear. Regarding the prior armed robbery, Ginn said that Clear "robbed our station on South 13th before [and] used the same gun...." Concerning the present charge, Ginn stated that Clear, wearing a ski mask, entered the robbery site and

was armed with a pellet gun which he aimed at our attendant Jim Allen and then demanded money. When our employee refused to give him any money [Clear] then lifted the hinge counter-top and went behind the counter where our employee was standing. While at gunpoint our employee managed to spray [Clear] in the face with MACE. [Clear] then tried to flee, but was unable to because our employee wrestled him to the ground outside of the building. [Clear] was held down on the ground until the police arrived at the scene of the crime. Sometime during the scuffel [sic], our employee was bitten by [Clear].

In the letter, Ginn also requested that the court sentence Clear to "jail where he needs to be to learn how to be a deserving citizen of our community."

When the court inquired whether there was "[a]nything either party wishes to say as regards the matter of sentencing in this particular case," Clear's lawyer responded:

Yes, Judge.

....

The owner of the station had submitted a letter to the Probation Office concerning their thoughts that Mr. Clear was involved in another robbery at the same station. That is inaccurate, Judge. Mr. Clear was not involved with any robbery of that station.

They expressed some concern about the problems they had with their clerks leaving because of this.

I ask the Court to consider only that Mr. Clear is charged with this one incident, attempted robbery, to which he has pled guilty.

After the statements by Clear's lawyer, the court asked, "Anything you wish to say, Mr. Clear?" Clear answered:

I know I broke the law, sir. I haven't been in trouble for a long time. I would like to have a chance and I'll never see the Court or a traffic ticket again.

I know I broke the law. I'm not saying I didn't break the law. In fact, at the time I didn't know what I was arrested for.

But I would like to have another chance. You won't see me on a traffic ticket, Your Honor.

And I have been going to AA since I've been out and trying to help myself, Your Honor.

After the foregoing comments, Clear's statements to the court related, generally, to Clear's personal history, including his prior convictions, with no reference to or question concerning the circumstances of the attempted robbery or the contents of Ginn's letter which was in the presentence report and had been mentioned by Clear's lawyer during the sentence hearing.

After the court sentenced Clear to imprisonment for a term of 5 to 8 years, this court summarily affirmed the district court's judgment. See State v. Clear, 227 Neb. xxiv (case No. 87-916, Mar. 16, 1988).

SENTENCE HEARING

Due Process Considerations.

Due process requires that a sentencing judge have relevant information as the basis for a sentence imposed on a convicted defendant. State v. Barker, 231 Neb. 430, 436 N.W.2d 520 (1989); State v. Goodpasture, 215 Neb. 341, 338 N.W.2d 446 (1983); State v. Porter, 209 Neb. 722, 310 N.W.2d 926 (1981); State v. Rose, 183 Neb. 809, 164 N.W.2d 646 (1969). In a sentence hearing, a court, generally, has broad discretion concerning the source of information and the type of information to be considered. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).

"A sentencing judge may consider relevant information contained in a presentence report on ...