State v. Leadinghorse, 39434

• Decision Date: 24 October 1974
• Docket Number: No. 39434,39434
• Citation: 222 N.W.2d 573,192 Neb. 485
• Parties: STATE of Nebraska, Appellee, v. Victor LEADINGHORSE, Appellant.
• Court: Nebraska Supreme Court

Page 573

222 N.W.2d 573

192 Neb. 485

STATE of Nebraska, Appellee, v. Victor LEADINGHORSE, Appellant.

No. 39434.

Supreme Court of Nebraska.

Oct. 24, 1974.

Syllabus by the Court

1. An evidentiary hearing is not always necessary in order to dismiss a post conviction motion, however, such a hearing is usually advisable to avoid protracted litigation.

2. The Post Conviction Act specifically authorizes the trial court to examine the files and records and to determine whether or not a prisoner may be entitled to the relief he seeks. If the trial court finds from such examination that the proceeding is without foundation, an evidentiary hearing may be properly denied.

3. The presentence report could be relevant only to the sentence imposed upon the defendant. Sentences imposed within statutory limits furnish no basis for post conviction relief.

4. To meet the test of effectiveness trial counsel should perform at least as well as a lawyer with ordinary training and skill in the criminal law in his area, and he should conscientiously protect the interests of his client.

Alan Saltzman, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

SPENCER, Justice.

This is an appeal from the refusal of the District Court to grant a post conviction motion to vacate defendant's judgment and sentence. Defendant was convicted on a plea of guilty to sodomy and was sentenced to 15 years imprisonment in the Nebraska Penal and Correctional Complex. Judgment was affirmed on direct appeal. State v. Leadinghorse (1971), 187 Neb. 386, 191 N.W.2d 440. The trial court, after a hearing for that purpose, determined that no evidentiary hearing was required and denied defendant's motion to vacate. We affirm.

The sole issue herein is the refusal of the trial court to grant an evidentiary hearing. An examination of defendant's motion indicates that it is premised on the following allegations: (1) His sentence to 15 years imprisonment is cruel and unusual punishment and in violation of the United States and Nebraska Constitutions; (2) his sentence is unconstitutional since its basis is predicated on a presentence psychiatric report; (3) he was denied effective assistance of counsel; (4) his plea of guilty was involuntary and unintelligent; and (5) he was in effect sentenced for charges which were dropped pursuant to a plea bargain.

An evidentiary hearing is not always necessary in order to dismiss a post conviction motion, however, such a hearing is usually advisable to avoid protracted litigation. We said in State v. Reyes (1974), 192 Neb. 153, 219 N.W.2d 238: 'The Post Conviction Act specifically authorizes the trial court to examine the files and records and to determine whether or not a prisoner may be entitled to the relief he seeks. If the trial court finds from such examination that the proceeding is without foundation, an evidentiary hearing may be properly denied.' Accordingly, we consider defendant's motion in the light of the files and records herein.

Defendant alleges that his sentence to 15 years imprisonment constitutes cruel and unusual punishment. The maximum penalty for the offense for which he was committed is 20 years. Section 28--919, R.R.S.1943. The severity of defendant's sentence was specifically raised in his direct appeal. It was held not to be excessive under the circumstances and in light of defendant's previous record (State v. Leadinghorse (1971), 187 Neb. 386, 191 N.W.2d 440). Defendant seeks to avoid our rule that a defendant who has appealed a conviction cannot secure a second review of the identical proposition examined in that appeal by resorting to a post conviction procedure, by framing the question in a constitutional context.

He bases his present claim on the premise that the act of sodomy was consensual. The opinion on the direct appeal states: 'The record would indicate that the offense was forcefully perpetrated on a teen-age boy while both parties were confined in the Buffalo County jail. Appellant at the time was waiting trial on two separate felony offenses, one of which involved assault on a 12-year-old boy.'

Regardless of its severity, a sentence of imprisonment which is within the limits of a valid statute ordinarily is not a cruel and unusual punishment in the constitutional sense. This rule is universal and well established, as attested by the collection of state and federal cases in 33 A.L.R.3d, s. 5, p. 359. We are not constrained to hold that a sentence within the limits of the sodomy statute constitutes cruel and unusual punishment.

Defendant's second attack is directed to the presentence hearing and particularly to a psychiatric evaluation furnished a short time prior to the commission of the act for which defendant was convicted and sentenced. The evaluation was made on September 22, 1970, at a time when defendant was in custody on two other felony charges. On January 4, 1971, defendant was charged with two counts of sodomy. The guilty plea was to one of those counts. We have examined the report of the psychiatrist. While he viewed the defendant as having an anti-social personality disorder with alcoholism, and emphasized that he considered him homicidal, we consider the report well within the range specified in Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, for consideration at a sentencing hearing.

Defendant implies that he was entitled to a presentence report in writing prepared after conviction. This is now required by section 29--2261, R.S.Supp., 1972. However, this statute did not become effective until August 27, 1971. Defendant's sentence was imposed on January 12, 1971, or before the adoption of the statute in question. Actually, the court had an F.B.I. report and files of defendant's past offenses before him. These were given to the defendant to read to see if there were any mistakes or exceptions or corrections to be called to the court's attention. The psychiatric reports were also marked as exhibits at the presentence hearing, and the court was told by defendant's counsel that he had read both reports.

In State v. Birdwell (1972), 188 Neb. 116, 195 N.W.2d 502, we stated: 'The presentence reports could be relevant only to the sentences imposed upon the defendants. Sentences imposed within statutory limits furnish no basis for post conviction relief.'

Defendant's next claim, ineffective assistance of counsel, presents a much closer question. This is premised on defendant's allegation that his counsel failed to establish at the hearing that the act of sodomy was consensual; that he failed to ask the court to take judicial notice of the high incidence of homosexual activity in jails; that he failed to challenge the psychiatric reports or to request the court to order additional psychological testing and interviewing before determining the sentence; that he failed to advise defendant he was likely to receive a sentence near the statutory maximum; that he failed to insure the plea was voluntary and intelligent; that he failed to make a motion for reduction of sentence; and that he misrepresented his conversation with defendant's mother.

Defendant cites State v. Reyes (1974), 192 Neb. 153, 219 N.W.2d 238, in support of his contention...