State v. Kellogg
| Decision Date | 18 September 2001 |
| Docket Number | No. A-00-1204.,A-00-1204. |
| Citation | 633 N.W.2d 916,10 Neb. App. 557 |
| Parties | STATE of Nebraska, Appellee, v. Luke KELLOGG, Appellant. |
| Court | Nebraska Court of Appeals |
Timothy M. Schulz, of Yost, Schafersman, Lamme, Hillis, Mitchell, Schulz & Twidwell, P.C., Fremont, for appellant.
Don Stenberg, Attorney General, and Scott G. Gunem, for appellee.
This appeal addresses whether a convicted felon can be properly sentenced when a presentence investigation has not been performed.
Luke Kellogg was charged in the district court for Dodge County with one count of burglary, a Class III felony, and multiple counts of forgery, Class IV felonies. Kellogg could have been charged as a habitual criminal. As a result of a plea bargain, Kellogg entered a plea of no contest to the burglary charge and guilty to two counts of forgery, with the State forgoing the habitual criminal charge and dismissing two other forgery charges, in a hearing on July 10, 2000. After the trial court accepted the pleas, the following exchange occurred:
The trial court indicated that an order would be prepared for the evaluation, which would be no longer than 90 days, and that when it was concluded, or close to being concluded, a sentencing date would be set. That concluded the plea hearing with no one ever mentioning "presentence report" or "presentence investigation."
There was no presentence investigation concerning Kellogg. Neb.Rev.Stat. § 29-2261(1) (Cum.Supp.2000) provides: "Unless it is impractical to do so, when an offender has been convicted of a felony, the court shall not impose sentence without first ordering a presentence investigation of the offender and according due consideration to a written report of such investigation."
Additionally, Neb.Rev.Stat. § 83-1,105.01 (Reissue 1999), which requires the court to fix the minimum and maximum limits of indeterminate sentences, contains the following provision which forms the basis for the "evaluation" referred to in the quoted exchange between the court and counsel:
(3)(a) When the court is of the opinion that imprisonment may be appropriate but desires more detailed information as a basis for determining the sentence to be imposed than has been provided by the presentence report required by section 29-2261, the court shall commit an offender to the Department of Correctional Services for a period not exceeding ninety days. The department shall conduct a complete study of the offender during that time, inquiring into such matters as his or her previous delinquency or criminal experience, social background, capabilities, and mental, emotional, and physical health and the rehabilitative resources or programs which may be available to suit his or her needs.
(Emphasis supplied.) Section 83-1,105.01(3)(a) then provides that after the evaluation, the offender shall be returned to court for sentencing. The statute also specifies that the court shall be provided with a written report of the results of the study, including recommendations of the Nebraska Department of Correctional Services, and that after receiving the report and recommendations, the court shall proceed to sentence the offender with the term of the sentence running from the date of the original commitment for evaluation.
With these statutes in mind, we return to the record in the instant case which contains another hearing on September 25, 2000, with the judge, the prosecutor, Kellogg, and defense counsel present. The court indicated that it had received the evaluation of the Department of Correctional Services on September 8 and had received on September 22 a motion for continuance from defense counsel. After the court ascertained that defense counsel had reviewed the report of the evaluation, the court heard argument on the motion for continuance. Defense counsel asserted that while doctors in Lincoln had given Kellogg a physical examination during the 90-day evaluation and found multiple sclerosis, they did not look at any of his other medical records or psychological records. Defense counsel suggested Kellogg had bipolar disorder and argued that the evaluation did not address the contents of his previous medical records. The trial judge quite clearly expressed the opinion that there was little concerning Kellogg's psychiatric or physical condition which would impact sentencing, given Kellogg's long history of crime. However, the court ultimately agreed to a continuance of the sentencing for 1 month, although observing that Kellogg was "without question" going to the penal complex.
Sentencing occurred on October 23, 2000, and again there was never any mention by anyone of a presentence report. The "sentencing materials" contain a 6 page "Nebraska Department of Correctional Services Adult Division Classification Study." This has one page of background information, including his prior crimes and a list of chemicals that he does or does not use. Additionally, the evaluation includes the case manager's comment and summary and the psychologist's comment and summary, but no recommendation on sentencing. There are also a few letters to the judge from friends and relatives arguing that Kellogg should not go to prison. Finally, there is a letter of argument from defense counsel.
The court sentenced Kellogg to 20 months' to 5 years' imprisonment on each of the two counts of forgery. The forgery counts are not involved in this appeal. The court then sentenced Kellogg to 10 to 15 years' imprisonment on the burglary count "at hard labor, Sundays and holidays excepted as to hard labor." The two sentences on the forgeries were to be served concurrently, but consecutive to the burglary sentence. Kellogg appeals.
Kellogg contends that his defense counsel was ineffective because (1) counsel did not heed Kellogg's requests to decline the plea offer and proceed to a jury trial and (2) counsel did not request a presentence investigation. Kellogg also contends that the trial court erred in ordering a 90-day evaluation in lieu of a presentence investigation and in imposing an excessive sentence for the burglary.
Ineffective Assistance of Counsel.
Kellogg claims that his defense counsel was ineffective in failing to heed Kellogg's requests to decline the plea bargain and proceed to trial. From our review of Kellogg's brief, it is questionable whether the assignment is both assigned and argued, as Nebraska appellate courts require. See State v. Baue, 258 Neb. 968, 607 N.W.2d 191 (2000). In any event, Kellogg's brief concedes that the record does not recount any communication between defense counsel and Kellogg about the decision to accept the plea bargain on the burglary charge. Kellogg acknowledges that we may, therefore, conclude that this claim can only be considered in a postconviction action.
While claims of ineffective assistance of counsel raised for the first time on direct appeal, as this is, do not require dismissal ipso facto, the determining factor is whether the record is sufficient to adequately review the question. State v. Toof, 9 Neb.App. 535, 616 N.W.2d 32 (2000). All we have here is an assertion in Kellogg's brief that his counsel failed to heed his requests to try the case. The conclusion that the record is inadequate to review this claim is obvious. At a minimum, an adequate record would include testimony from counsel and Kellogg about their communications concerning the merits of trial versus acceptance of the plea agreement. Without such evidence, the record is wholly inadequate for appellate review at this time, and thus, the assigned error is without merit in this appeal.
Under this heading of "ineffective assistance of counsel," we also include the second assignment of error that defense counsel did not demand or request that a presentence investigation be completed prior to sentencing. Admittedly, the record does not show any such request or demand by counsel. However, given that Kellogg has a substantial prior record of some consequence, one can readily envision a strategy of choosing a Department of Correctional Services' evaluation and eschewing a presentence report, as a way of obscuring his history from the sentencing judge. Thus, it may be that a strategic decision of counsel was involved in forgoing a presentence investigation, but the record is silent on any such strategy. Accordingly, the record is likewise inadequate to address this claim on the basis of ineffective assistance of counsel. See State v. Williams, 259 Neb. 234, 609 N.W.2d 313 (2000) (). However, our conclusion on this assignment of error does not resolve the question of the lack of a presentence investigation.
The third assignment of error is that the trial court erred in ordering the 90-day evaluation at the Diagnostic and Evaluation Center of the Department of Correctional Services in lieu of first ordering a presentence investigation. We have previously quoted the seminal statute, § 29-2261(1...
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