State v. Drinkwalter, A-04-988.

Decision Date22 August 2006
Docket NumberNo. A-04-988.,A-04-988.
Citation720 N.W.2d 415,14 Neb. App. 944
PartiesSTATE of Nebraska, Appellee, v. Randy DRINKWALTER, Appellant.
CourtNebraska Court of Appeals

P. Stephen Potter, P.C., Gothenburg, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

INBODY, Chief Judge, and SIEVERS and CARLSON, Judges.

SIEVERS, Judge.

Randy Drinkwalter appeals from an order of the district court for Cherry County, Nebraska, denying his motion for postconviction relief. Drinkwalter's motion was premised upon the notion that one cannot be convicted of both an unintentional crime—manslaughter—and an intentional crime—use of a weapon to commit a felony. Because Drinkwalter's convictions of such crimes are the result of a plea bargain, we reject his claim and affirm the denial of Drinkwalter's motion for postconviction relief.

FACTUAL AND PROCEDURAL BACKGROUND

Drinkwalter was originally convicted in 1990 of first degree murder and use of a weapon in the commission of a felony for beating his grandmother to death with a hammer and stabbing her in the face with a knife. On March 1, 1991, Drinkwalter was sentenced to death on the murder conviction and 6 to 12 years' imprisonment on the use of a deadly weapon conviction.

Drinkwalter appealed his convictions and sentences to the Nebraska Supreme Court. See State v. Drinkwalter, 242 Neb. 40, 493 N.W.2d 319 (1992). In addition to Drinkwalter's appointed counsel, Leonard P. Vyhnalek, Drinkwalter's family hired another attorney, David C. Huston, to assist in the appeal. The Supreme Court reversed the decision and remanded the cause for a new trial due to evidentiary errors and to comments made by the trial judge to the jury in its preliminary instructions. See id. The Supreme Court noted that "[o]n appeal, the defendant does not challenge the sufficiency of the evidence to sustain his conviction." Id. at 42, 493 N.W.2d at 322.

After the Supreme Court reversed the decision and remanded the cause, Drinkwalter began preparations for the new trial. The trial judge held five hearings from April 29 to July 9, 1993. During the April 29 hearing, the trial judge informed Drinkwalter of his right to a jury trial and the right to appeal. Drinkwalter acknowledged that he understood what the trial judge told him. The trial judge also explained the charges—first degree murder and using a deadly weapon to commit a felony—and the fact that if convicted, the sentences would run consecutively. Next, the trial judge informed Drinkwalter of the pleas available to him, including pleas of not guilty, guilty, or no contest. The trial judge told Drinkwalter that for purposes of sentencing, a plea of no contest "has the same effect as if you plead guilty," which effect included the waiver of all the rights the court had previously explained. Drinkwalter acknowledged that he understood the pleas available to him and that his attorneys advised him to stand mute before the court. The trial judge then entered a plea of not guilty for Drinkwalter.

Before the retrial began, Drinkwalter's counsel and the prosecutors entered into plea negotiations. As a result, a plea agreement was reached on the day that jury selection was to begin. The agreement was that the first degree murder charge would be amended to a manslaughter charge but that the crime of use of a deadly weapon to commit a felony would still be part of the charges. The trial court examined Drinkwalter about the plea agreement and found that he was acting freely, voluntarily, and intelligently. The State amended the information by interlineation. Drinkwalter stated that he remembered and understood his constitutional rights. After a thorough examination, the trial court found Drinkwalter to be sufficiently competent and intelligent. The trial court explained both the charges against him and the maximum penalties available upon convictions of the crimes, including how the sentences would run consecutively. Drinkwalter told the trial court that his attorneys had explained all of his rights to him, that he was satisfied with their services, and that they had done a competent job. Important for this appeal, the trial court informed Drinkwalter that a no contest plea would waive any defect in the proceedings to that point and Drinkwalter acknowledged that he understood. Drinkwalter entered no contest pleas to the charges of manslaughter and use of a deadly weapon to commit a felony, which pleas the court accepted, and the court found him guilty of the two charges.

On July 9, 1993, Drinkwalter was sentenced to 6 years 8 months' to 20 years' imprisonment on the manslaughter conviction and 6 years 8 months' to 20 years' imprisonment on the use of a weapon to commit a felony conviction, with the sentences to be served consecutively. The trial court filed an order on July 16, 1993, correcting the credit for time previously served by Drinkwalter. No direct appeal was filed.

On August 4, 2003, Drinkwalter filed a verified motion for postconviction relief alleging amongst other assertions that had he known that "he could not have been convicted of Use of a Weapon in conjunction with the manslaughter charge, he would not have pled guilty to such charge, and [would have] instead elected to go to trial." An evidentiary hearing was granted, and counsel was appointed for Drinkwalter. Drinkwalter did not attend the postconviction hearing on July 28, 2004, and did not testify in any format, such as by deposition. After the hearing, the trial judge denied the motion for postconviction relief, finding that Drinkwalter entered his plea freely, intelligently, and voluntarily and that Drinkwalter thereby waived every defense to the charges. The trial judge also found that there was neither ineffective assistance of counsel nor prosecutorial misconduct. Drinkwalter timely appeals.

ASSIGNMENTS OF ERROR

Drinkwalter assigns seven errors and advances three arguments that, regardless of how stated, are all premised upon the proposition that a criminal defendant cannot be convicted of the intentional crime of use of a weapon to commit a felony when the underlying felony is an unintentional crime, such as manslaughter. The assignments of error raise this issue in the context of "plain error" by the court which accepted his plea, as well as in the context of ineffective assistance of counsel.

STANDARD OF REVIEW

A criminal defendant requesting postconviction relief must establish the basis for such relief, and the factual findings of the district court will not be disturbed unless they are clearly erroneous. State v. Hunt, 262 Neb. 648, 634 N.W.2d 475 (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. Id.

ANALYSIS

We begin by recalling that a criminal defendant seeking postconviction relief has the burden of establishing a basis for such relief, State v. Harton, 230 Neb. 167, 430 N.W.2d 313 (1988), and that such relief is available only when a constitutional right has been infringed or violated, Kerns v. Grammer, 227 Neb. 165, 416 N.W.2d 253 (1987). The Nebraska Supreme Court has adopted the two-prong test set forth by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for proving a claim of ineffective assistance of counsel. See State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993), disapproved on other grounds, State v. Canbaz, 270 Neb. 559, 705 N.W.2d 221 (2005). To sustain a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient, meaning that counsel did not perform at least as well as a criminal lawyer with ordinary training and skill in the area, and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. See, Strickland, supra; Nielsen, supra. Additionally, errors which were known to the defendant at trial and which were not raised on direct appeal are waived in subsequent postconviction proceedings. See, State v. Curtright, 262 Neb. 975, 637 N.W.2d 599 (2002); State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000); State v. Smith, 256 Neb. 705, 592 N.W.2d 143 (1999); State v. Malcom, 12 Neb.App. 432, 675 N.W.2d 728 (2004).

Here, Drinkwalter alleges in his verified motion that had he known that "he could not have been convicted of Use of a Weapon [an intentional crime] in conjunction with the manslaughter charge [an unintentional crime], he would not have pled guilty to such charge, and [would have] instead elected to go to trial." When attacking plea-based convictions, in order to satisfy the prejudice requirement in the context of a plea, the defendant must show that there is a reasonable probability that, but for counsel's errors, the defendant would not have pled and would have insisted upon going to trial. State v. Wakeman, 231 Neb. 66, 434 N.W.2d 549 (1989).

In attempting to meet the burden of establishing a basis for postconviction relief, Drinkwalter's appointed counsel offered into evidence the deposition of Huston, Drinkwalter's attorney during the direct appeal of the first trial as well as during the second trial and the plea agreement, and the deposition of one of two prosecuting attorneys during both the first trial and the plea agreement. In addition to the depositions, Drinkwalter's counsel offered a copy of the information; the journal entries for the plea agreement and the sentencing; the commitment; the order correcting and modifying the sentence; the affidavit of Vyhnalek, his other attorney; a transcription of the plea and sentencing proceedings; and 20 exhibits from such proceedings. The district court received such evidence, and ...

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7 cases
  • State v. Davenport, A-06-1331.
    • United States
    • Court of Appeals of Nebraska
    • August 26, 2008
    ...court can assess the prongs in either order. See id. We rejected a postconviction claim similar to Davenport's in State v. Drinkwalter, 14 Neb.App. 944, 720 N.W.2d 415 (2006). But there is a key distinction. The convictions in Drinkwalter were the result of a plea bargain, which we recogniz......
  • Akins v. Kenney, No. 4:01CV3013.
    • United States
    • U.S. District Court — District of Nebraska
    • February 6, 2008
    ...2). 36. Id. at CM/ECF pp. 7-8. The Court of Appeals cited State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004), and State v. Drinkwalter, 14 Neb.App. 944, 720 N.W.2d 415 (2006), for these 37. Id. at CM/ECF pp. 8-12. 38. Id. at CM/ECF pp. 12-17. 39. Filing 82, Attach. 2. 40. Akins repeatedly a......
  • State Of Neb. v. Helmstadter
    • United States
    • Court of Appeals of Nebraska
    • October 26, 2010
    ...whether the defense is procedural, statutory, or constitutional." Id. at 1053, 607 N.W.2d at 515. Similarly, in State v. Drinkwalter, 14 Neb. App. 944, 720 N.W.2d 415 (2006), we determined that the defendant waived any claim that he could not be convicted via a plea agreement of both an uni......
  • State v. Martinez, A-16-606.
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    • September 5, 2017
    ...defendant at trial and which were not raised on direct appeal are waived in subsequent postconviction proceedings. State v. Drinkwalter, 14 Neb. App. 944, 720 N.W.2d 415 (2006). See State v. Curtright, 262 Neb. 975, 637 N.W.2d 599 (2002) (motion for postconviction relief cannot be used to s......
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