State v. Klein

• Decision Date: 30 October 2018
• Docket Number: No. A-17-1292.,A-17-1292.
• Parties: STATE OF NEBRASKA, APPELLEE, v. MICHAEL H. KLEIN, APPELLANT.
• Court: Nebraska Court of Appeals

STATE OF NEBRASKA, APPELLEE, v. MICHAEL H. KLEIN, APPELLANT.

No. A-17-1292.

NEBRASKA COURT OF APPEALS

October 30, 2018

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Scotts Bluff County: LEO P. DOBROVOLNY, Judge. Affirmed.

Robert M. Williams and Jocelyn J. Brasher, of Larson, Kuper & Wenninghoff, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and, on brief, Sarah E. Marfisi for appellee.

MOORE, Chief Judge, and ARTERBURN and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Michael H. Klein appeals his plea-based convictions for two counts of first degree sexual assault on a minor and two counts of first degree sexual assault on an incompetent, all Class II felonies. He contends that the sentences imposed on these convictions were excessive and that he received ineffective assistance of trial counsel. We find that the record is insufficient to address Klein's claim that trial counsel should have filed a motion to recuse the trial judge. The remainder of Klein's assignments of error are without merit. Therefore, we affirm his convictions and sentences.

II. STATEMENT OF FACTS

Klein was originally charged with five counts of second degree sexual assault causing injury, Class III felonies; five counts of first degree sexual assault on a minor, Class II felonies; five counts of third degree sexual assault without consent or on an incompetent person, Class I misdemeanors; and five counts of first degree sexual assault on an incompetent person, Class II felonies. Pursuant to a plea agreement, Klein pled no contest to an amended information charging him with two counts of first degree sexual assault on a minor (counts 6 and 7 of the amended information) and two counts of first degree sexual assault on an incompetent (counts 16 and 17 of the amended information), all Class II felonies.

In its factual basis in support of the pleas, the State established that, during the relevant time period, Klein digitally penetrated 15-year-old K.K.'s vagina and performed cunnilingus on her. Additionally, the State established that, between October 2015 and July 2016, Klein digitally penetrated 16-year-old S.P. on at least 20 occasions.

At the sentencing hearing, the court noted that it had reviewed the presentence investigation report (PSR). The court acknowledged that Klein was 62 years old, had no mental health issues which would affect the sentencing proceeding, had no prior record, and had more than 12 years of education. The court further stated:

The general nature and circumstances of these offenses were first degree sexual assault victimizing two students. [Klein] was responsible for coaching in a golf program, both in[side] and outside of the high school setting.

There was no provocation to get [Klein] to commit these offenses. The offenses did not involve violence in the normal sense; however; for some purposes, sexual assault is considered violence.

These offenses did cause serious harm, significant serious harm to both victims, that's clear from reading the [presentence] report, and it should be clear simply from the facts of the case to any reasonable person what the affect [sic] of this conduct would have on a young victim.

There is no excuse or justification for [Klein]'s conduct. The victims did nothing to induce or facilitate the crime. In these cases, [Klein] used his influence, his position of power over these victims, and position of trust, or what should have been trust in the victims to trust him to take care of them. He used those factors, he used that position to lure these young women into situations where he could sexually abuse them.

The attitude of the defendant is largely unknown. As [defense counsel] has indicated, one attitude that I do think comes through in the [presentence] report is he is probably not motivated to change. I didn't see a lot of indication of that, notwithstanding, perhaps, not saying anything about the facts of the case, I didn't see much motivation to make any changes.

Restitution has not been made an issue in this case. It's unknown to the Court whether or not the circumstances are likely to recur. While it is true that one factor in determining that or trying to make a finding about that by a Court is whether there is a priorrecord, and there is no prior record, but as we all know every record starts with it's [sic] first offense.

The court noted that although probation may have had some success, "it was definitely not appropriate in these cases." Further, the court did consider that Klein was married and perhaps that person was a dependent, but did not find excessive hardship would occur that should cause the court to withhold imprisonment. Klein scored as a medium high risk to reoffend on the level of service/case management inventory (LS/CMI) and moderate to low on the Vermont Assessment for Sex Offender Risk (VASOR) testing. The court found that a lesser sentence than imprisonment would depreciate the seriousness of the offenses or promote disrespect for the law. The court further found that treatment to be provided to Klein would best be administered in a correctional facility. Additionally, the court found that Klein could not be effectively and safely supervised in a community setting and substantial compelling reasons existed to deny probation. The district court sentenced Klein to 6 to 8 years' imprisonment on each of his convictions with the sentences ordered to run consecutively. He was granted a credit of 19 days served on count 6 of the amended information. Klein has timely appealed to this court and is represented by different counsel than represented him during his pleas and sentencing.

III. ASSIGNMENTS OF ERROR

Klein contends (1) that the district court erred in imposing an excessive sentence and (2) that his trial counsel was ineffective for (a) failing to file a motion to recuse, (b) failing to recommend that Klein obtain a psycho-sexual offender evaluation prior to sentencing, (c) failing to object to alleged inflammatory comments made by the State during the sentencing hearing, and (d) representing him despite having a conflict of interest.

IV. STANDARD OF REVIEW

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Russell, 299 Neb. 483, 908 N.W.2d 669 (2018). Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. Id.

When a defendant's trial counsel is different from his or her appellate counsel, all issues of ineffective assistance of trial counsel that are known to the defendant or are apparent from the record must be raised on direct appeal. State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018). If the issues are not raised, they are procedurally barred. Id.

Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018), disapproved on other grounds, State v. Avina-Murillo, 301 Neb. 185, ___ N.W.2d ___ (2018). An appellate court determines as a matter of law whether the record conclusively shows that (1) adefense counsel's performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel's alleged deficient performance. Id.

V. ANALYSIS

1. EXCESSIVE SENTENCE

Klein contends the sentences imposed are excessive. He was convicted of two counts of first degree sexual assault on a minor and two counts of first degree sexual assault on an incompetent, all Class II felonies. See Neb. Rev. Stat. § 28-319(1)(b) and (c) (Reissue 2016). At all relevant time periods, Class II felonies are punishable by 1 to 50 years' imprisonment. See Neb. Rev. Stat. § 28-105 (Reissue 2008, Supp. 2015 & Reissue 2016). Klein's sentences of 6 to 8 years' imprisonment are on the low end of the statutory sentencing range. Additionally, Klein received a substantial benefit from the plea agreement in which six Class II felonies, five Class III felonies, and five Class I misdemeanors were dismissed.

Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, an appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016). In imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. Id.

Klein specifically contends the district court failed to give sufficient weight to the fact that he has no prior criminal history, the circumstances which led to the charges are unlikely to recur, his attitude and character indicated he had a low likelihood for recidivism, and due to his age, he was effectively given a life sentence. Brief for appellant at 13-16. Klein also contends that the district court unfairly used the fact that his attorney advised him against making a statement due to pending civil litigation against him. Brief for appellant at 11 and 16-18. Klein also argues that the court abused its...