State v. Gibbs
| Decision Date | 07 June 1991 |
| Docket Number | Nos. 81-920,82-026 and 82-027,s. 81-920 |
| Citation | 470 N.W.2d 558,238 Neb. 268 |
| Parties | STATE of Nebraska, Appellee, v. Aaron C. GIBBS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, the Supreme Court will uphold the trial court's findings of fact unless those findings are clearly erroneous.
2. Criminal Law: Identification Procedures. Whether identification procedures were unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances surrounding the procedures.
3. Pleas. It is sufficient for a trial court to explain the possible range of penalties for each crime, and it is not necessary to explain that each sentence might run concurrently or consecutively to any other sentence imposed.
4. Speedy Trial: Waiver. Neb.Rev.Stat. § 29-1209 (Reissue 1989) provides: "Failure of the defendant to move for discharge prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to speedy trial."
5. Speedy Trial: Waiver. Under the provisions of Neb.Rev.Stat. § 29-1209 (Reissue 1989), it is incumbent upon defendant and his counsel to file a timely motion for discharge in order to avoid the waiver provided for by that statute.
6. Speedy Trial. An unexplained delay between arrest and arraignment or preliminary hearing does not demonstrate a violation of the right to speedy trial in the absence of prejudice.
7. Constitutional Law: Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. Constitution or article I, § 11, of the Nebraska Constitution, the defendant must show that (1) counsel's performance was deficient 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 proceedings would have been different.
8. Effectiveness of Counsel: Proof. A criminal defendant must demonstrate prejudice was suffered from ineffectiveness of counsel.
9. Effectiveness of Counsel: Proof. Defendant has the burden of demonstrating ineffective assistance of counsel, and the record must affirmatively support the claim.
10. Sentences: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal unless the sentencing court has abused its discretion in the sentence imposed.
Michael J. Lehan of Kelley, Kelley & Lehan, P.C., Omaha, for appellant.
Robert M. Spire, Atty. Gen. and Susan M. Ugai, Lincoln, for appellee.
This is a consolidated appeal of four separate Douglas County felony convictions of defendant, Aaron C. Gibbs, that were reinstated as direct appeals by virtue of the decision from the U.S. Court of Appeals for the Eighth Circuit, based on ineffective assistance of counsel, finding that "Gibbs has never had a full adversarial briefing on all arguable issues before the state court much less a meaningful appellate determination as to whether any exist." Gibbs v. Dahm, No. 88-2319, slip op. at 3 [881 F.2d 1080 (table) ] (8th Cir. May 30, 1989).
Gibbs challenges his 1981 convictions of burglary in case No. 81-920, see Neb.Rev.Stat. § 28-507(1) (Reissue 1989); of escape in case No. 82-027, see Neb.Rev.Stat. § 28-912(1) (Reissue 1989); and of two counts of receiving stolen property in case No. 82-026, see Neb.Rev.Stat. §§ 28-517 (Reissue 1989) and 28-518 (Reissue 1979). Gibbs received an aggregate sentence of 10 to 19 years' imprisonment. We affirm.
In Gibbs' direct appeals of the escape and receiving stolen property convictions, his appointed counsel filed a motion and brief seeking to withdraw, following the procedure in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The motion was granted and Gibbs' sentences were affirmed by this court. See State v. Gibbs, 211 Neb. xxi (case Nos. 82-026, 82-027, May 12, 1982).
In Gibbs' direct appeal of the burglary conviction, his appointed counsel in like manner filed a motion and brief. This court advised Gibbs of his right to respond, to which Gibbs personally replied with a motion to dismiss the appeal without prejudice. Accordingly, Gibbs' appeal was dismissed. See State v. Gibbs, 212 Neb. xxii (case No. 81-920, Sept. 8, 1982).
After the state district court denied Gibbs postconviction relief on all four convictions, Gibbs filed a federal habeas corpus action. The federal district court ordered that the writ of habeas corpus be granted on the basis of Gibbs' ineffective assistance of counsel. The U.S. Court of Appeals for the Eighth Circuit affirmed, and this court has since reinstated each of Gibbs' direct appeals.
Gibbs' seven assignments of error combine to urge error, (1) in the burglary conviction, in the trial court's not suppressing an identification tainted by unnecessarily suggestive pretrial identification procedures; (2) in the escape and receiving stolen property convictions, in the trial court's accepting guilty pleas that were not intelligently and voluntarily made because Gibbs was not advised at the time that he entered each guilty plea that each sentence could be imposed consecutively; (3) in the burglary and receiving stolen property convictions, in the trial court's not affording Gibbs a speedy preliminary hearing and trial; (4) in all four convictions, in denying Gibbs effective assistance of counsel; and (5) in all four convictions, in the trial court's imposition of excessive sentences.
On the morning of December 15, 1980, the home of Karen Mason and her two sons, Robert, age 13, and John, age 8, was burglarized. At approximately 7 a.m., Robert left home to catch the schoolbus. The bus stop is only two houses away from the Mason residence. At the bus stop, Robert met his friend, Cathy Batter. Cathy told Robert that while she was walking to the bus stop, a car had followed her. She informed Robert that she got scared and ran to the bus stop after the occupants of the car had rolled down their window.
They boarded the schoolbus, and as the bus passed in front of the Mason residence, Cathy pointed out to Robert that the car was parked near his house. Looking out the bus window, Robert noticed that there were three men standing next to the car, who were pointing at his house. Robert testified that the schoolbus came within 5 feet of the three men. He further testified that as the bus passed, he got a 30-second look at their faces and, as a result, would be able to recognize two of them again if he were to see them.
Robert became suspicious. He and Cathy exited the bus at its next stop. While walking toward his house, Robert saw a man, later identified as Gibbs, walking toward the car he had previously observed. Robert testified that he came within 10 or 15 feet of Gibbs and that he had an opportunity to see him for approximately 1 minute. Robert then hid behind a bush that was located across the street from his house. He observed Gibbs walk into his driveway, and he saw someone open the garage door.
Alarmed, Robert hurriedly went to a friend's house, and the police were called. Next, he returned to his hiding place in the bushes, and then, having determined that everyone was gone, Robert entered his house and discovered that it had been burglarized.
The next day, on December 16, 1980, Robert identified Frederick Perkins and Gibbs in a five-man photographic array, prepared by Officer Wolf, as being two of the men seen in front of his house. The array consisted of separate photos of the faces and upper torsos of five individuals, one of whom was Gibbs. As a result of the identification, Gibbs was arrested on December 30, 1980.
At a suppression hearing, Robert again identified Gibbs as the man he had seen outside his house on the morning of December 15, 1980. The trial court then ruled that the "photograph identification by Robert Mason was not unduly suggestive and is admissible at time of trial." On October 29, 1981, at trial, Robert Mason again identified Gibbs as a perpetrator of the burglary.
Following the jury trial, Gibbs was found guilty, and Gibbs was sentenced to 4 to 6 years' imprisonment, with credit for 141 days served.
On September 15, 1981, Gibbs was charged with escape after he ran out of a courtroom on September 3, 1981. Gibbs was arrested in the hall and returned to custody.
On November 24, 1981, Gibbs pled guilty to the escape charge. The court determined that there was a factual basis for the charge and accepted Gibbs' plea. On December 18, 1981, Gibbs was sentenced to 2 to 5 years' imprisonment, with credit for 108 days served. The escape sentence was to run consecutively to the receiving stolen property and burglary sentences.
On October 20, 1981, Gibbs was charged with two counts of receiving stolen property. Count I charges Gibbs with the possession on October 15, 1980, of a 1979 Mercury Cougar stolen from Rosen Novak Chevrolet. Count II charges Gibbs with the possession on October 23, 1980, of a 1980 Buick Century sedan stolen from Barbara Magnuson.
On November 24, 1981, pursuant to a plea bargain, Gibbs entered pleas of guilty to both counts of receiving stolen property. The court determined that there was a factual basis for both counts and accepted Gibbs' guilty pleas. On December 18, 1981, the court sentenced Gibbs to 2 to 4 years' imprisonment on each of the receiving stolen property counts. The sentences for the receiving stolen property...
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