State v. Koch, A-22-084

CourtCourt of Appeals of Nebraska
Writing for the CourtWELCH, JUDGE.
PartiesState of Nebraska, appellee, v. Isaac D. Koch, appellant.
Docket NumberA-22-084
Decision Date13 September 2022

State of Nebraska, appellee,
v.

Isaac D. Koch, appellant.

No. A-22-084

Court of Appeals of Nebraska

September 13, 2022


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 Platte County, Robert R. Steinke, Judge, on appeal thereto from the County Court for Platte County, Frank J. Skorupa, Judge. Judgment of District Court affirmed.

Isaac D. Koch, pro se.

Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.

Pirtle, Chief Judge, and Bishop and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

WELCH, JUDGE.

INTRODUCTION

Isaac D. Koch appeals from Platte County District Court's affirmance of his plea-based conviction in the Platte County Court for attempted violation of a domestic abuse protection order, a Class II misdemeanor. He argues that the district court erred in refusing to grant a waiver or extension of time to file a statement of errors and in not finding plain error by the county court relating to his conviction and sentence. For the reasons stated herein, we affirm.

STATEMENT OF FACTS

In April 2021, Koch was charged in the Platte County Court with violation of a domestic abuse protection order, a Class I misdemeanor. See Neb. Rev. Stat. § 42-924(4) (Cum. Supp. 2020). Pursuant to a plea agreement, Koch pled no contest to a reduced charge of attempted

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violation of a domestic abuse protection order. See Neb. Rev. Stat. § 28-201 (Reissue 2016) (criminal attempt). Additionally, pursuant to the plea agreement, the State dismissed a separate felony charge pending against Koch in the district court and agreed to recommend probation at sentencing. In support of the factual basis to support Koch's plea, the county court took notice of the probable cause affidavit which provided that, on January 12, 2021, officers were dispatched to a specific address located in Platte County in response to a witness report that he "had observed a male . . . in the basement and also secured a shotgun from the residence." Officers contacted the witness who had been invited into the residence by the victim and her two children. The witness stated that, while the victim was giving him a tour of the residence, he received a text from Koch stating that Koch "was being held hostage by [his wife (the victim)] and was tied [downstairs] in the basement." Upon going to the basement, the witness observed Koch sitting in a chair "tied up [with] duct tape around his mouth." The witness instructed the victim and the children to leave the residence, called 911, and secured a shotgun which he found "placed by the side door near the living room." When officers arrived at the residence and announced themselves, they heard "a muffled voice coming from the basement." Upon entering the basement, officers observed Koch "sitting in a chair facing away from the basement stairs" with "a yellow cord wrapped around his knees and left wrist" and duct tape over his mouth, which officers removed. Officers also observed a cell phone resting in Koch's lap. When asked who had tied him up, Koch admitted that "he had done this to himself because he wanted to show [the victim] . . . how he was feeling about the protection order and not [being] able to [see] his children." Koch also admitted that he had been at the residence "all day" and that the shotgun was for the victim "because she need[ed] something to protect herself and the children." The witness and the victim were initially unaware that Koch was in the basement of the residence and did not see Koch's vehicle parked on the property because Koch had parked the vehicle "behind an old barn away from the house." Koch admitted being aware that he was in violation of the protection order in favor of the victim and two children.

After accepting Koch's plea, the court ordered a presentence investigation report and mental health evaluation. Koch did not complete the mental health evaluation prior to sentencing as ordered. Additionally, prior to sentencing, Koch's counsel filed a motion to withdraw at Koch's request. Thereafter, Koch, appearing pro se, filed a motion to withdraw his plea, which motion was denied. At the sentencing on September 29, 2021, the county court stated:

Considering the nature of the charges and considering the absurdity of the way that you violated the protection order by tying yourself up in the basement of your wife's home with a gag and telling at least [the witness], according to the police report --
. . . [A]ccording to the police report contained in the presentence investigation that you had received -- that [the witness] said that he received . . . a text stating that [Koch] was being held hostage by [the victim] and he was tied . . . downstairs in the basement and to come and get [Koch] and the fact that you yourself as indicated that it was an attempt to communicate with [the victim] under the strangest way that I have ever heard of in my life, . . . the fact that there was a gun involved and at least you indicate . . . was provided for -- and I admit that you didn't have the gun with you at the time, that it was left in the house somewhere else, based on those circumstances the court finds that you are sentenced to a term of 60 days in the Platte County Jail
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On October 27, 2021, Koch filed a pro se notice of his intent to proceed with an appeal to the Platte County District Court along with a motion to proceed in forma pauperis. In support of his motion, Koch filed a poverty affidavit wherein he asserted his claims on appeal would include

(a) impossibility of attempting to violate a protection
...

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