State v. Fiedler

• Decision Date: 15 April 1997
• Docket Number: No. A-96-079,A-96-079
• Citation: 5 Neb.App. 629,562 N.W.2d 380
• Parties: STATE of Nebraska, Appellee, v. Pamela A. FIEDLER, Appellant.
• Court: Nebraska Court of Appeals

Page 380

562 N.W.2d 380

5 Neb.App. 629

STATE of Nebraska, Appellee, v. Pamela A. FIEDLER, Appellant.

No. A-96-079.

Court of Appeals of Nebraska.

April 15, 1997.

Syllabus by the Court

1. Courts: Rules of the Supreme Court: Appeal and Error. Neb.Ct.R. of Cty.Cts. 52(I)(G) (rev.1996) requires an appellant to file a statement of errors with the district court within 10 days of the filing of the bill of exceptions in that court.

2. Judgments: Trial: Evidence: Proof: Appeal and Error. In a bench trial of a law action, including a criminal case tried without a jury, erroneous admission of evidence is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's factual findings necessary for the judgment or decision reviewed; therefore, an appellant must show that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through use of erroneously admitted evidence in a case tried without a jury.

3. Ordinances: Judicial Notice: Appeal and Error. An appellate court will not take judicial notice of an ordinance not in the record, but assumes that a valid ordinance creating the offense charged exists, that the evidence sustains the findings of the trial court, and that the sentence is within the limits set by the ordinance.

4. Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

Robert W. Kortus, of Frank & Gryva Connor L. Reuter, Assistant Lincoln City Attorney, for appellee.

P.C., Lincoln, for appellant.

HANNON, SIEVERS, and MUES, JJ.

STATEMENT OF CASE

MUES, Judge.

On December 6, 1994, Pamela A. Fiedler was charged with driving while under the influence of alcohol or drugs (DUI), second offense, in violation of Lincoln Mun.Code § 10.16.030 and failure to yield the right of way. A bench trial was held on April 4 and May 11, 1995, at which the arresting officer, Donald Kneifl of the Lincoln Police Department, testified as to his observations of Fiedler on the night of her arrest and with regard to various field sobriety tests administered by him and Fiedler's performance thereof. According to Kneifl, Fiedler failed a preliminary breath test and was then placed under arrest. Following her arrest, Fiedler failed a chemical breath test, the results of which were admitted, over foundation and hearsay objections. On May 11, the county court found Fiedler guilty of the underlying DUI offense and failure to yield the right of way, and on June 16, following an enhancement hearing, it found Fiedler guilty of second-offense DUI. On July 13, she was sentenced to 18 months' probation.

Represented by different counsel, Fiedler appealed her DUI conviction to the district court, but failed to file a statement of errors. On December 29, 1995, the district court, noting no plain error, affirmed the judgment and sentence of the county court. Represented by different counsel, Fiedler timely appealed to this court.

ASSIGNMENTS OF ERROR

Fiedler asserts on appeal that (1) the district court erroneously applied a plain error standard of review, (2) she received ineffective assistance of counsel, (3) her advisement form was inadequate, (4) the evidence was insufficient, and (5) her DUI conviction violates double jeopardy.

DISCUSSION

Standard of Review.

In her first assigned error, Fiedler asserts that the district court erred in applying a plain error standard of review. According to Fiedler, her failure to timely file a Fiedler cites State v. Gerstner, 244 Neb. 508, 507 N.W.2d 490 (1993), for the proposition that the 10-day period should be expanded when the bill of exceptions is filed late. Gerstner, of course, was decided under rule 52(I)(G) (rev. 1992), which required the filing of the statement of errors within 10 days of the notice of appeal. Since the bill of exceptions was filed late in that case, the appellant's failure to submit a complete statement of errors within 10 days of filing the notice of appeal was excused. The rationale in Gerstner was that attorneys must be afforded the benefit of reviewing the bill of exceptions in order to submit a complete statement of errors. Obviously, this ration-ale does not benefit Fiedler under the newer version of rule 52(I)(G). Fiedler had 10 days from the date of the filing of the bill of exceptions in which to file a statement of errors. She failed to do so, and the district court properly limited its review to plain error.

statement of errors should be excused because the bill of exceptions in her case was filed late. Neb.Ct.R. of Cty.Cts. 52(I)(G) (rev.1996) requires an appellant to file a statement of errors with the district court within 10 days of the filing of the bill of exceptions in that court. The appeal is limited to those errors assigned and discussed; however, the district court may, at its option, notice plain error. Id.; In re Estate of Soule, 248 Neb. 878, 540 N.W.2d 118 (1995).

Absent a statement of errors, our review is likewise limited to a review for plain error. In re Estate of Soule, supra.

Advisory Form and Sufficiency of Evidence.

In her third assigned error, Fiedler asserts that her postarrest advisement form was inadequate. The State concedes that the postarrest advisement form read to Fiedler prior to her submission to a chemical breath test is the same as or substantially similar to the form used in Smith v. State, 248 Neb. 360, 535 N.W.2d 694 (1995), and State v. Hingst, 251 Neb. 535, 557 N.W.2d 681 (1997). See, also, State v. Christner, 251 Neb. 549, 557 N.W.2d 707 (1997); State v. Emrich, 251 Neb. 540, 557 N.W.2d 674 (1997); State v. Connick, 5 Neb.App. 176, 557 N.W.2d 713 (1996). In all of these cases, it was determined that the form was inadequate, as it failed to fully inform the driver of the consequences of submitting to a chemical test. Id. In State v. Hingst, 4 Neb.App. 768, 550 N.W.2d 686 (1996), aff'd 251 Neb. 535, 557 N.W.2d 681 (1997), and State v. Connick, supra, this court determined that the inadequacy of the advisement form constituted plain error. As such, it was error to admit the results of the chemical test obtained subsequent to the inadequate advisement form. See id. The same is true in this case. Thus, it was plain error for the county court to admit the results of Fiedler's chemical test. This, however, does not entitle Fiedler to an automatic reversal.

In a bench trial of a law action, including a criminal case tried without a jury, erroneous admission of evidence is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's factual findings necessary for the judgment or decision reviewed; therefore, an appellant must show that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through use of erroneously admitted evidence in a case tried without a jury. State v. Christner, supra. See, also, State v. Emrich, supra.

Under Christner and Emrich, the next step of our analysis requires an examination of the trial court's findings and the sufficiency of the properly admitted evidence to sustain those findings. However, the State argues that we must presume that the evidence sustains the trial court's judgment of conviction because Fiedler has failed to include in the record the municipal ordinance that she was convicted of violating. The State cites State v. Buescher, 240 Neb. 908, 485 N.W.2d 192 (1992), as precluding an examination of the sufficiency of the evidence and compelling an affirmance of Fiedler's conviction in this case.

The court in Buescher, following a long line of precedent, not all without controversy, stated [A]n analysis of assignments of error claiming that the evidence is insufficient to support a conviction under a municipal ordinance and that the sentence is excessive requires an examination of the specific ordinance involved. It is well established that an appellate court will not take judicial notice of an ordinance not in the record but assumes that a valid ordinance creating the offense charged exists, that the evidence sustains the findings of the trial court, and that the sentence is within the limits set by the ordinance.

(Emphasis supplied.) 240 Neb. at 909, 485 N.W.2d at 193. See, also, State v. Lewis, 240 Neb. 642, 483 N.W.2d 742 (1992) (Shanahan, J., concurring; Grant, J., concurring, joined by Boslaugh J.; and Caporale, J., dissenting); State v. King, 239 Neb. 853, 479 N.W.2d 125 (1992); State v. Topping, 237 Neb. 130, 464 N.W.2d 799 (1991); State v. Brooks, 5 Neb.App. 5, 554 N.W.2d 168 (1996)...