State v. Cox

• Decision Date: 13 July 2021
• Docket Number: No. A-20-851.,A-20-851.
• Parties: STATE OF NEBRASKA, APPELLEE, v. TRAVIS E. COX, APPELLANT.
• Court: Nebraska Court of Appeals

STATE OF NEBRASKA, APPELLEE, v. TRAVIS E. COX, APPELLANT.

No. A-20-851.

NEBRASKA COURT OF APPEALS

July 13, 2021

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).

Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge. Affirmed.

Heather S. Colton, of Pollack & Ball, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Travis E. Cox appeals his termination from the Lancaster County Drug Court Program, contending that he was not afforded procedural and substantive due process and that there was insufficient evidence to terminate him from the program. Cox also contends that his trial counsel was ineffective in failing to object to hearsay testimony and evidence during the termination hearing, failing to make any foundational objections, failing to subpoena or otherwise call certain adverse witnesses with personal knowledge of the evidence, and failing to file a motion to withdraw his plea as requested by Cox. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

On August 5, 2020, Cox was charged in Lancaster County District Court with burglary, a Class IIA felony, and possession of methamphetamine, a Class IV felony. See, Neb. Rev. Stat. § 28-507 (Reissue 2016); Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2020). On August 20, Cox pledguilty to the charged offenses. The court stated that Cox had been accepted into the Lancaster County Drug Court Program and asked Cox if he understood that if Cox did not successfully complete the drug court program, he would not be able to withdraw his guilty pleas to which Cox responded "Yes." The court also advised Cox that if he failed to successfully complete the drug court program, Cox would be sentenced according to the sentencing ranges that the court had previously explained, to which Cox again replied "Yes." Cox bonded into the Lancaster County Drug Court Program that same day. One of the provisions of the Drug Court Bond, which Cox signed, was:

I understand and acknowledge that if it is alleged that I have violated any of the above conditions, I can be immediately remanded to the custody of the Lancaster County Department of Corrections by any drug court or law enforcement officer, my bond can be revoked, and/or I can be terminated from drug court and sentenced on the charges to which I entered pleas.

As a part of Cox's program plan, on Thursday, August 27, 2020, he was placed in residential inpatient treatment at Touchstone's rehabilitation facility in Lincoln, Nebraska. Cox's treatment went poorly during his short stay at Touchstone. On the following Monday, August 31, Cox's therapist at Touchstone contacted Andrea McClatchey, Cox's drug court supervision officer, and described Cox's "rough weekend" explaining that Cox displayed "disruptive and aggressive" behaviors, "calling people names, [and] not following rules." The therapist held a meeting between herself, Cox, and McClatchey so that McClatchey could "talk to [Cox], to go over the rules with him again, [to] allow [McClatchey] to see some of the behaviors that [Cox] was exhibiting and just make sure that [Cox knew what was] expected of him while he was [at Touchstone]." The therapist stated that if Cox's behaviors continued, he would be terminated from the residential inpatient treatment program. During the meeting, Cox was agitated, and following the meeting, Cox continued his negative behavior including failing to follow rules, being argumentative, failing to take responsibility, and leaving designated areas. Cox was terminated from treatment at Touchstone on Friday, September 4.

On September 17, 2020, the State filed a drug court violation alleging that after starting residential treatment at Touchstone on August 27, he was terminated therefrom on September 4.

A hearing was held on September 28, 2020, concerning whether Cox should be terminated from drug court. The sole witness for the State was McClatchey who testified about Cox's behavior while at Touchstone. She also testified that she and the drug court coordinator recently filed a drug court violation in Cox's case alleging that Cox violated bond condition number 19, which provided that Cox would satisfactorily attend and complete any alcohol or drug treatment as directed by the drug court. McClatchey stated that once Cox was terminated from treatment, Cox indicated that he had not been on medication for his mental health while he was in treatment; however, McClatchey testified that Cox had been given the opportunity to see the medication provider for a medication assessment while at Touchstone, but declined.

Cox testified that in 2013, he was diagnosed with anxiety, depression, post-traumatic stress disorder, and antisocial personality disorder. He explained that he felt anxious while he was in treatment and stated "I can't say that it was anybody's fault but my own, but I definitely think thathad I been taking my medications, things would've went a lot differently." Cox explained that he wanted to remain in drug court

because . . . [i]t's my only chance at ever getting out of this cycle of . . . getting arrested, and getting out, and using drugs, and ending up getting arrested again, and I just keep doing that . . . this program is the only opportunity I may ever have at being able to get back into my family's life or ever, you know, being able to have a normal life again.

Although Cox testified that drug court provided an opportunity for him to change his life, he admitted that this was also true when he entered Touchstone on August 27, 2020; when he met with McClatchey and his therapist on August 31; and when he was terminated from Touchstone on September 4.

During the hearing, the court received into evidence the following 7 exhibits: exhibit 1, Cox's discharge summary from Touchstone; exhibit 2, email correspondence between McClatchey and Cox's therapist at Touchstone; exhibit 3, drug court case notes; exhibit 4, Cox's drug court sanction sheet; exhibits 5 and 6, letters written by Cox to judges, Touchstone staff, and drug court staff; and exhibit 7, the Lancaster County Drug Court termination policy.

On September 30, 2020, the district court entered an order in which the court determined that Cox had "violated the terms and conditions of the Drug Court bond when he was terminated from [inpatient] treatment" and that the decision to terminate Cox from drug court was supported by clear and convincing evidence. The court ordered the preparation of a new presentence investigation report prior to the sentencing hearing. At the November 3 sentencing hearing, the court stated:

I have reviewed the [presentence report], all the statutory factors that I am to consider and . . . having done so, and having regard for the nature and circumstances of these crimes and your history, character and condition, I do find that imprisonment is necessary for the protection of the public.

I find the risk is substantial during any period of probation that you would engage in additional criminal conduct. And I find that lesser sentences than I will impose here today would, in fact, depreciate the seriousness of these crimes and promote disrespect for the law.

The district court resentenced Cox to 3 to 4 years' imprisonment on the burglary conviction and 1 to 2 years' imprisonment on the possession of methamphetamine conviction, with the sentences ordered to be served consecutively. Cox was given credit for 124 days served. Cox has timely appealed to this court.

III. ASSIGNMENTS OF ERROR

Cox contends that the district court erred in terminating him from the Lancaster County Drug Court Program without affording him procedural and substantive due process and in finding that there was sufficient evidence to do so. Cox also contends that his trial counsel was ineffective in failing to object to hearsay testimony and evidence; in failing to make any foundational objections; in "fail[ing] to subpoena or otherwise call to testify adverse witnesses with personal knowledge of the evidence, upon which the termination was based, in order for them to becross-examined thereby denying [him] the right to confront and cross-examine witnesses against him"; and in failing to file a motion to withdraw plea as requested by Cox. Brief for appellant at 4.

IV. STANDARD OF REVIEW

Termination from a drug court program is a matter entrusted to the discretion of the trial court. State v. Seaman, 28 Neb. App. 667, 947 N.W.2d 589 (2020). 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. State v. Ettleman, 303 Neb. 581, 930 N.W.2d 538 (2019); State v. Seaman, supra.

The determination of whether procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law. State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017); State v. Seaman, supra. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Valdez, 305 Neb. 441, 940 N.W.2d 840 (2020); State v. Seaman, supra.

Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. State v. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019). In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's...