State v. Dixon, 85-475

Citation389 N.W.2d 307,223 Neb. 316
Decision Date27 June 1986
Docket NumberNo. 85-475,85-475
PartiesSTATE of Nebraska, Appellee, v. Lenny Raymond DIXON, also known as Robert C. Moody and Cecil Robert Moody, Appellant.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Pleas: Appeal and Error. The right to withdraw a plea previously entered is not absolute, and in the absence of a clear abuse of discretion exercised by the trial judge, the denial of withdrawal will not be disturbed on appeal.

2. Pleas. This court has adopted ABA Standards for Criminal Justice § 14-2.1(a) and (b) (2d ed.1980).

3. Pleas. After a plea is entered, but before a sentence is imposed, a defendant's motion to withdraw his plea is governed by ABA Standards for Criminal Justice § 14-2.1(a) (2d ed.1980).

4. Courts: Judgments: Appeal and Error. Where the record adequately demonstrates that the decision of a trial court is correct, although such correctness is based on a ground or reason different from that assigned by the trial court, the Supreme Court will affirm.

Donald E. Rowlands, II, of Baskins & Rowlands, North Platte, for appellant.

Robert M. Spire, Atty. Gen., and William L. Howland, Lincoln, for appellee.


GRANT, Justice.

On February 19, 1985, a two-count information was filed against the defendant, Lenny Raymond Dixon, also known as Robert C. Moody and Cecil Robert Moody, in the district court for Lincoln County, Nebraska, charging defendant with robbery and use of a deadly weapon to commit a felony.

Defendant was arrested on February 12, 1985, in connection with the armed robbery of the Ben Franklin store in North Platte, Nebraska. On February 19, 1985, defendant came before the district court for Lincoln County. At that time defendant's counsel informed the court that defendant was "just not able to communicate with" his counsel and orally moved that the defendant be evaluated by order of the court for determination whether defendant was competent to stand trial. The court so ordered, and the evaluation was carried out by Dr. Stan Moore, a qualified psychiatrist, at the Lincoln County jail.

On March 14, 1985, a hearing was held on defendant's competency. The psychiatrist's report was shown to counsel for both defendant and the State and an opportunity was afforded to review it. The conclusion of Dr. Moore was that defendant was "feigning mental illness." This conclusion was supported in detail in the report. The court gave defendant an opportunity to present evidence on this issue. Defendant offered only a handwritten note stating that defendant had stopped eating on March 3, 1985, and had stopped drinking anything on March 9. The court found defendant competent to stand trial. We note that at the hearing on March 26, 1985, discussed below, defendant told the court that he had "played the game" with the psychiatrist.

The court then, on March 14, proceeded with the arraignment of defendant. Defendant immediately told the court, "I quit, I'm through, I quit," and launched into a vulgar tirade, interspersed with singing words from the national anthem. The court ordered defendant handcuffed and, through the ensuing din of defendant's continual singing, fully informed him of his rights as set out in State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981). Defendant made no answer to any questions directed to him by the judge. The court noted that there were on file a motion to suppress and a "Notice of Intent to Enter Plea of Insanity." The court then announced that it took defendant's actions as standing mute and ordered that pleas of not guilty and not guilty by reason of insanity be entered.

On March 26, 1985, a hearing was held on defendant's motion to suppress. Defendant was present with his two court-appointed attorneys. Counsel for the State introduced, and the court received in evidence, seven exhibits including two search warrants for the search of an automobile and defendant's motel room, which had been issued by a judge of the county court, and the returns of those two warrants. Defendant testified that he had been pulled from the trunk of his car on the night of February 12, 1985, and that he did not "remember everything that happened that night." Other evidence showed that just after the robbery defendant's car was being driven by a woman at a high rate of speed in an alley near the Ben Franklin store. The car was stopped and the woman driver taken to the police station. Officers later returned to the car and found defendant in the trunk of the car with a loaded pistol. The court overruled the motion to suppress.

A recess was then taken. Fifteen minutes later, defendant again appeared before the court with his attorneys. His counsel told the court that defendant wished to withdraw his motion to declare Neb.Rev.Stat. § 29-2203 (Reissue 1985) unconstitutional and to enter a plea of nolo contendere pursuant to a plea bargain. Defendant then presented to the court a written "Petition to Enter Plea of Nolo Contendere With Approval of Counsel." The petition was initialed paragraph by paragraph and signed by defendant and both of his attorneys. The paragraph concerning the plea of no contest was initialed "with Question." The petition, in 15 numbered paragraphs, set out fully that he was represented by counsel; that he fully conferred with his attorneys, so that they were fully informed of the facts of the case; and that his attorneys informed him of his constitutional rights, the possible penalties, the defenses, and alternatives available to defendant. The petition also stated that defendant's counsel and the prosecution would request evaluation at the Lincoln Regional Center and that if it were determined that defendant was suffering from a mental disorder which impaired defendant's abilities or competency, defendant could petition the court for withdrawal of his plea of nolo contendere. The petition also set out that the county attorney would not file a habitual criminal charge and would not request more than 25 years' imprisonment. We state again that the use of written plea petitions is not to be encouraged and that "a written petition to plead guilty which itemizes a defendant's constitutional rights is not in and of itself sufficient to establish the voluntariness of the plea." State v. Mindrup, 221 Neb. 773, 776, 380 N.W.2d 637, 638 (1986). In this case, however, the dialogue between the court and defendant fully explained the written petition.

The plea bargain and the petition to enter pleas of nolo contendere were explained to the court. The court then inquired if the defendant understood the matters as explained to the court. A dialogue between the court and the defendant covering 28 pages of the record then ensued. Defendant questioned various phrases of the written petition and directed perceptive questions to the court concerning many issues. The primary thrust of defendant's question was directed at defendant's desire to be evaluated at the Lincoln Regional Center, with the right to withdraw his plea of nolo contendere if he were determined to have been then insane. The court informed defendant that "there are certain circumstances [in] which an individual may withdraw a plea of either Guilty or No Contest." The court then asked defendant if he wanted to go ahead, and defendant answered that he did.

The information was then amended to charge that defendant did forcibly, and by violence, or by putting in fear, take property from another with the intent to steal and did possess a firearm with a barrel of less than 18 inches in length after having previously been convicted of a felony. The court again explained defendant's rights to him. Defendant pled no contest to each charge. After a factual basis was stated by the county attorney, the court accepted defendant's pleas and found defendant guilty.

On April 19, 1985, defendant filed a "Motion to Withdraw Plea," alleging that the plea was not entered "voluntarily, knowingly, intelligently, and understandingly." A hearing on the matter was held on May 15, 1985. After the hearing the court held that defendant's plea had been "knowingly, intelligently, and voluntarily" made. It also held that "the Court cannot find that the defendant met his burden of showing that a manifest injustice would occur by clear and convincing evidence."

On June 3, 1985, a sentencing was held. The court sentenced defendant to terms of 8 to 20 years on count I and 1 to 3 years on count II, to run concurrently.

On June 3, 1985, defendant filed a pro se notice of intent to appeal, a motion for court-appointed counsel, and a motion for production of records and transcripts. Defendant's attorneys, on June 7, 1985, perfected an appeal to this court by filing a "Notice of Appeal" and a "Motion to Proceed In Forma Pauperis." The court granted the motion to proceed in forma pauperis on June 10, 1985, and defendant's attorneys then filed a praecipe for a transcript and a bill of exceptions.

The appeal assigns four errors:

1. The Court erred on May 23, 1985 in refusing to allow the Appellant to withdraw his plea of nolo contendere....

2. The Court erred on May 23, 1985 in finding that the Appellant had failed to establish by clear and convincing evidence manifest injustice to allow the withdrawal of his plea.

3. The Court erred on March 26, 1985 in accepting the Appellant's plea of nolo contendere because the plea was conditional and was not made knowingly, voluntarily and intelligently....

4. The Court erred in not finding ... [ineffective] legal representation throughout ... this proceeding....

The first two assignments of error may be treated as one because they challenge the refusal to allow defendant to withdraw his plea of nolo contendere.

With regard to the issue of effective assistance of counsel, we hold that it is not yet properly before the court because it has not been presented, in any form, to the trial court for...

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14 cases
  • State v. Morley, s. 90-689
    • United States
    • Supreme Court of Nebraska
    • September 20, 1991
    ...or for judgments notwithstanding the verdicts constitutes ineffective assistance of counsel. The State, relying on State v. Dixon, 223 Neb. 316, 389 N.W.2d 307 (1986), claims that this issue is not properly before us because it has not been ruled upon by the trial In Dixon, supra, this cour......
  • State v. Cody
    • United States
    • Supreme Court of Nebraska
    • October 27, 1995 appellate court will not address the matter on direct appeal. State v. Dawn, supra; State v. Morley, supra; State v. Dixon, 223 Neb. 316, 389 N.W.2d 307 (1986). (i) Challenge of Search and Objection to As noted earlier, Cody first argues that trial counsel was deficient by not presenting......
  • Whitmore v. Avery, 93-1152
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 11, 1994
    ...the two-part Strickland test generally requires a postconviction hearing to develop an adequate record. See, e.g., State v. Dixon, 223 Neb. 316, 389 N.W.2d 307, 310 (1986). In this regard, one aspect of Whitmore's conflict-of-interest claim closely resembles standard assertions of ineffecti......
  • State v. Gonzalez, S–10–1097.
    • United States
    • Supreme Court of Nebraska
    • January 13, 2012
    ...585 (1987); State v. Molina–Navarrete, 15 Neb.App. 966, 739 N.W.2d 771 (2007). 13. See, Minshall, supra note 12; State v. Dixon, 223 Neb. 316, 389 N.W.2d 307 (1986), disapproved on other grounds, Minshall, supra note 12; State v. Holtan, 216 Neb. 594, 344 N.W.2d 661 (1984); State v. Jipp, 2......
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