State v. Erpelding
| Decision Date | 07 August 2018 |
| Docket Number | No. A-17-332.,A-17-332. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. SHAWN R. ERPELDING, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Buffalo County: WILLIAM T. WRIGHT, Judge. Affirmed.
Shawn R. Erpelding, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
Shawn R. Erpelding (Erpelding) appeals from the denial of his amended verified motion for postconviction relief without an evidentiary hearing. Finding no merit to the arguments raised by Erpelding on appeal, we affirm the denial of his motion.
In May 2012, Erpelding filed a complaint to establish paternity, custody, visitation, and support of his 4-year-old daughter Grace Erpelding (Grace). In August, a temporary child support order was entered ordering Erpelding to pay $225 per month. In July 2013, the court entered a final order granting custody of Grace to her mother, Diane Southall, and ordering Erpelding to pay $379 per month in child support. Erpelding did not appeal from this final order. Southall began to receive Aid to Dependent Children (ADC) assistance for Grace through the Department of Health and Human Services (DHHS) in August 2012. By operation of law, child support was assigned toDHHS. See Neb. Rev. Stat. § 43-512.07 (Reissue 2016). Erpelding failed to make any payments on the temporary support order for over a year.
On August 5, 2013, Erpelding was charged with criminal nonsupport based on his failure to pay the first 4 months of temporary support, which were August through November 2012. Erpelding was also charged with being a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 2016). Erpelding did not make any payments for the entire duration of the temporary support order which lasted from August 2012 until July 2013. He made his first payment toward his child support obligation on October 8, 2013, in the amount of $857. Less than a month later, a DHHS enforcement officer was able to collect another $644.95 toward Erpelding's child support obligation.
In 2014, Erpelding was convicted by a jury of four counts of criminal nonsupport for failure to pay 4 months of child support totaling $900. After his sentences were enhanced by the habitual criminal statute, he was sentenced to concurrent terms of 10 to 15 years' imprisonment on each count.
On direct appeal, Erpelding was represented by different counsel. He assigned the following errors: (1) insufficiency of the evidence to support a finding of felony nonsupport; (2) the district court violated the Sixth Amendment of the federal Constitution when it failed to submit to the jury the issue of whether Erpelding's nonsupport violated any court order; (3) the district court erred for failing to require a jury instruction on a lesser-included offense of misdemeanor criminal nonsupport and his trial counsel was ineffective for not requesting one; (4) the district court erred in finding Erpelding was a habitual criminal and enhancing his sentences; and (5) the sentences imposed were excessive and illegal. The Nebraska Supreme Court affirmed Erpelding's convictions and sentences.
Within a year of the conclusion of his direct appeal, Erpelding filed a verified motion for postconviction relief, which motion was subsequently amended. The amended motion alleged ineffective assistance of appellate counsel for failing to raise the following six allegations of ineffective assistance of trial counsel on direct appeal: (1) trial counsel was ineffective for failing to file a motion to quash challenging the criminal nonsupport statute under the void-for-vagueness doctrine; (2) trial counsel was ineffective for failing to file a motion to quash challenging whether a criminal nonsupport charge, when charged as a felony and then enhanced pursuant to the habitual criminal act, constitutes impermissible double penalty enhancement; (3) trial counsel was ineffective for failing to investigate, depose, and have Southall served with a subpoena duces tecum requiring that she produce (i) the marriage license issued for her and Erpelding, (ii) a joint account statement, (iii) certain receipts, (iv) certain joint debt statements, and (v) verification of cohabitation as husband and wife; (4) trial counsel was ineffective for failing to investigate, depose, and have his former attorney, Arron Bishop, testify at trial regarding "evidence of [Erpelding]'s financial situation and inability to provide more child support"; (5) trial counsel was ineffective for failing to investigate, depose, and have certain veterans medical experts testifyregarding Erpelding's state of mind and "mental instability" indicating "a diminished capacity to formulate the requisite intention to not provide support" and how his post-traumatic stress disorder and nervous breakdown "significantly diminished [his] capacity to formulate the requisite intent" to commit the offense of criminal nonsupport; and (6) trial counsel was ineffective due to the aggregate effect of the aforementioned claims of trial counsel's failure to investigate.
The district court appears to have reached beyond Erpelding's "Grounds for Relief" listed in his amended verified motion and addressed matters set forth in Erpelding's statements of fact, arguments, and legal propositions. The district court's order includes findings that all of Erpelding's claims except those for ineffective assistance of appellate counsel were procedurally barred because they were, or could have been, raised on direct appeal and/or were pled as mere conclusions of fact and law without specificity. As such, those claims were dismissed without an evidentiary hearing. The court did go on to address some claims regarding ineffective assistance of trial counsel in more detail.
The district court then addressed Erpelding's claims of ineffective assistance of appellate counsel. First, the district court rejected Erpelding's claim that his appellate counsel was ineffective for failing to raise on appeal trial counsel's failure to file a motion to quash the criminal nonsupport statutes under the void-for-vagueness doctrine. The court found that there was nothing in Erpelding's allegations which demonstrated how or why the use of the criminal nonsupport statutes by the State in this case constituted arbitrary enforcement.
Second, the district court rejected Erpelding's claim that his appellate counsel was ineffective for failing to raise on direct appeal trial counsel's failure to file a motion to quash so as to challenge the State's use of the habitual criminal statute in these circumstances as impermissible double penalty. In support of its claim, Erpelding cited to State v. Chapman, 205 Neb. 368, 287 N.W.2d 697 (1980), disapproved, State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016). In rejecting this contention, the court noted that the Chapman decision was generally disapproved by State v. Abejide, supra. Moreover, the court distinguished Chapman noting that the charges for which Erpelding was convicted were felonies, unlike the charges in Chapman which were misdemeanors and which rose to felony status due to repetitive violation pursuant to statute. The court also found that Erpelding's allegations were insufficient to raise a constitutional issue and trial counsel's performance could not be challenged as ineffective for failing to raise a meritless argument.
Third, the district court rejected Erpelding's claim that his appellate counsel was ineffective for failing to raise on appeal trial counsel's failure to fully investigate and depose Southall, failure to fully investigate attorney Bishop to produce specific evidence of Erpelding's inability to provide more child support, and failure to investigate veteran's administration medical experts to produce specific evidence of his diminished capacity to formulate the requisite intent to violate his support obligation. As to each, the district court found all such allegations to be conclusory, speculative, and conjectural and dismissed Erpelding's motion without an evidentiary hearing.
On appeal, Erpelding generally assigns error to the district court's refusal to provide an evidentiary hearing, the court's refusal to grant relief for his alleged appellate counsel's errors, and on the basis of newly assigned "plain errors." More specifically Erpelding contends that the district court erred in denying his amended motion for postconviction relief without an evidentiary hearing in that the district court erred in (1) failing to hold an evidentiary hearing after the court caused "notice of the postconviction to be served on the State" thereby demonstrating "that it was satisfied that the motion and the files and records of the case show[ed] that [he]was] entitled to relief" pursuant to the language of Neb. Rev. Stat. § 29-3001(2) (Reissue 2016); and in (2) failing to point out "that the State's own established 'layered ineffectiveness claims analysis' is overly complex, inconsistent, and arbitrary, and, therefore, renders the State's postconviction act inadequate to remedy ineffective assistance of trial counsel claims when the defendant was represented by different counsel on direct appeal than at trial." Brief for appellant at 7.
Erpelding next assigns specific errors regarding each of his 6 ineffective assistance of appellate counsel claims including his claim of aggregate prejudice.
Erpelding then raises two claims of plain error. He contends that his first criminal nonsupport conviction related to a payment obligation allegedly due on August 1, 2012, but that the...
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