State v. Mark
| Decision Date | 19 October 2021 |
| Docket Number | A-21-126,A-21-125 |
| Parties | State of Nebraska, Appellee, v. Joseph J. Mark, Appellant. |
| Court | Nebraska Court of Appeals |
Appeals from the District Court for Douglas County: James M Masteller, Judge.
Caitlin R. Lovell, of Johnson & Mock, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Joseph J. Mark appeals from his plea-based convictions and sentences in two separate cases which have been consolidated on appeal. In case No. A-21-125, Mark asserts his plea of no contest was not entered freely, intelligently, voluntarily, and understandingly. In both cases, A-21-125 and A-21-126, Mark challenges his sentences as excessive and asserts his trial counsel was ineffective in four respects. For the reasons that follow, we affirm Mark's convictions and sentences.
On August 26, 2019, Mark's then 15-year-old biological daughter (Victim 1) reported numerous incidents of sexual abuse perpetrated by Mark. The ensuing investigation revealed 367 photographs and 127 videos portraying at least 37 separate incidents of sexual abuse committed against Victim 1 from February 2016 to August 2019. The investigation also revealed 13 photographs and 1 video portraying at least one incident of sexual abuse committed against Mark's then 11-year-old biological daughter (Victim 2), one video portraying at least one incident of sexual abuse committed against Mark's then 13-year-old biological son (Victim 3), and multiple videos portraying sexual contact between Victim 1 and her then 15-year-old boyfriend recorded without consent.
In connection with the above incidents of abuse, the State filed two criminal cases against Mark, alleging a total of 15 counts. The cases were consolidated and the parties reached a global plea agreement according to which Mark pleaded no contest to six counts and the State dismissed the remaining nine counts. In case No. A-21-125, Mark pleaded no contest to one count of sexual assault on a child in the first degree, a Class IB felony, in violation of Neb. Rev. Stat. § 28-319.01 (Reissue 2016). In case No. A-21-126, Mark pleaded no contest to three counts of visual depiction of sexually explicit conduct, Class ID felonies, in violation of Neb. Rev. Stat. §§ 28-1463.03 and 28-1463.04(2) (Reissue 2016); one count of attempted sexual assault on a child in the first degree, a Class II felony, in violation of Neb. Rev. Stat. §§ 28-319.01(1) and 28-201(4)(a) (Reissue 2016); and one count of first degree sexual assault, a Class II felony, in violation of Neb. Rev. Stat. § 28-319(1)(c) (Reissue 2016).
In March 2020, Mark appeared before the district court for Douglas County to enter his pleas as above. The district court examined Mark, ensuring he understood his constitutional rights, and advised him of the possible sentences for each charge. With respect to the charge of first degree sexual assault on a child, the district court asked Mark, "[d]o you understand that the maximum possible sentence for Count 2 in Case No. CR 19-3203, which is a Class IB felony, is a mandatory minimum of 15 years and a maximum of life imprisonment?" Mark replied, "Yes."
The court found beyond a reasonable doubt that Mark understood the nature of the charges and possible sentences, that Mark's no contest pleas were made freely, intelligently, voluntarily, and understandingly, and that there was a factual basis for Mark's pleas. Accordingly, the court found Mark guilty of the above six counts and set the case for sentencing.
The court convened for sentencing in July 2020. The court stated it had received and reviewed the presentence investigation report (PSI) along with several letters attached thereto. The court heard argument from both parties, as well as statements from Mark himself, Victim 1, and the mother of Mark's victims. Upon review of all the above, and in express consideration of the statutory factors, the court sentenced Mark to a total of 80 to 110 years of incarceration.
Mark assigns that the district court erroneously advised him of the minimum penalty for sexual assault of a child in the first degree, such that his plea on that count was not entered freely, intelligently, voluntarily, and understandingly.
Mark also assigns that the district court imposed excessive sentences on all six counts and that his trial counsel was ineffective in four respects.
A trial court is afforded discretion in deciding whether to accept guilty pleas, and an appellate court will reverse the trial court's determination only in a case of an abuse of discretion. State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).
An appellate court will not disturb a sentence imposed within the statutory limits unless the trial court abused its discretion. 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. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021). In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance. Id.
Mark first assigns that the district court erroneously advised him of the minimum penalty for sexual assault of a child in the first degree, such that his plea on that charge was not entered freely, intelligently, voluntarily, and understandingly. To support a finding that a plea of guilty or no contest has been entered freely, intelligently voluntarily, and understandingly, the record must establish that the defendant knew the range of penalties for the crimes charged. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015). A trial court is afforded discretion in deciding whether to accept guilty pleas, and an appellate court will reverse the trial court's determination only in a case of an abuse of discretion. State v. Wilkinson, supra.
Under § 28-319.01(2), "[s]exual assault of a child in the first degree is a Class IB felony with a mandatory minimum sentence of fifteen years in prison for the first offense." In contrast, Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2018) provides that the range of penalties for a Class IB felony is a minimum of 20 years and a maximum of life imprisonment. In State v. Lantz, 21 Neb.App. 679, 842 N.W.2d 216 (2014), this court addressed the apparent conflict between § 28-319.01(2) and § 28-105(1). In Lantz, the State proposed we construe the statutes to impose a 20-year minimum term of imprisonment, the first 15 of which are "mandatory" and thus not subject to good time credit. Rejecting the State's interpretation, we reasoned as follows:
When there is a conflict between statutes, we are guided by the principle that to the extent there is a conflict between two statutes, the specific statute controls over the general. . . . In this circumstance, the Legislature has made a specific provision that the offense of first-offense first degree sexual assault of a child, even though classified as a Class IB felony, carries a mandatory minimum sentence of 15 years' imprisonment. This specific statute controls over the general statute regarding sentences providing for a 20-year minimum term of imprisonment.
State v. Lantz, 21 Neb.App. at 704, 842 N.W.2d at 236-37 (internal citations omitted).
In State v. Russell, supra, the Nebraska Supreme Court addressed a nearly identical dispute as to the proper interpretation of the "mandatory minimum" penalty under § 28-319.01(2). Consistent with our decision in Lantz, the State argued that § 28-319.01 imposes a minimum sentence of 15 years, the entirety of which is mandatory and thus not subject to good time credit. The defendant, on the other hand, adopted the State's prior position from Lantz that the minimum term of imprisonment is 20 years, the first 15 of which are mandatory. Citing our decision in Lantz, the Supreme Court also rejected this interpretation and explicitly held "that the range of penalties for sexual assault of a child in the first degree, first offense, under § 28-319.01(2), is 15 years' to life imprisonment." State v. Russell, 291 Neb. at 41, 863 N.W.2d at 820.
In this case, the district court correctly advised Mark that the charge of first degree sexual assault of a child, first offense, carried a mandatory minimum penalty of 15 years' imprisonment and a maximum penalty of life imprisonment. Mark argues the present case is distinguishable from Russell as follows:
In Russell, the district court advised the defendant the potential penalty for sexual assault of a child in the first degree was a "a minimum of twenty years' incarceration and a maximum of life," but did not mention a fifteen-year mandatory minimum. . . . Here, the district court did mention the fifteen-year mandatory minimum, but failed to advise the defendant of the general twenty-year minimum. The district court's error amounts to an additional five years in minimum penalties of which Defendant was not aware at the time of entering his plea or sentencing. . . . Because the record is void of any mention of a twenty-year...
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