State v. Morton
| Decision Date | 23 March 2021 |
| Docket Number | No. A-19-1168.,A-19-1168. |
| Citation | 29 Neb.App. 624,957 N.W.2d 522 |
| Parties | STATE of Nebraska, appellee, v. Natavian Q. MORTON, appellant. |
| Court | Nebraska Court of Appeals |
Jonathan M. Braaten, of Anderson, Creager & Wittstruck, P.C., L.L.O., Lincoln, for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis, for appellee.
Natavian Q. Morton appeals from his plea-based convictions and sentences in the district court for Lancaster County for one count of manslaughter and one count of possession of a firearm during the commission of a felony. He claims there was not a sufficient factual basis to support his no contest plea and conviction for the weapon charge, that the district court imposed excessive sentences, and that his trial counsel provided ineffective assistance. For the reasons that follow, we affirm Morton's convictions, but determine that Morton's sentence on count II, possession of a firearm during the commission of a felony, was an abuse of discretion. Accordingly, we reduce the sentence on count II.
On May 31, 2018, the State charged Morton with second degree murder, a Class IB felony; unlawful discharge of a firearm, a Class ID felony; and two counts of use of a firearm to commit a felony, both Class IC felonies.
On July 22, 2019, pursuant to a plea agreement, the State amended the count of second degree murder to manslaughter and amended one of the counts of use of a firearm to commit a felony to possession of a firearm during the commission of a felony. The State dismissed the remaining counts. Morton agreed to plead no contest to the amended charges.
At the plea hearing, before accepting Morton's no contest pleas, the district court advised him that he was giving up certain constitutional rights by entering a plea, which included the right to confront witnesses against him, the right to a jury trial, and the right against self-incrimination. The court advised him of the charges against him and the range of penalties. The court advised Morton of the civil consequences of a felony conviction. Morton stated that he understood the rights he was giving up, as well as the charges against him. Morton indicated to the court that he had sufficient time to discuss the case with his attorney prior to the hearing, that they had spoken about all possible defenses, and that he was satisfied with his attorney and felt his counsel had properly represented him.
The State provided a factual basis to support Morton's no contest pleas. In summary, the State would have provided evidence at trial that on March 26, 2018, Morton and several friends drove to a house in Lincoln, Nebraska, intending to continue a fight that had begun earlier that day. After they arrived, Morton and his friends exited their vehicles and stood in the front yard of the residence. At some point, someone handed Morton a gun. A verbal fight broke out between Morton's friends and individuals standing on the front porch. When a female from the residence got into a vehicle and began to drive around the yard in an attempt to run people over, Morton pulled the gun out of his pocket. He fired in the direction of the front porch where people were standing, and the victim was shot and subsequently died from his injuries. Morton was 16 years old at the time of the offense.
The district court found beyond a reasonable doubt that Morton understood the nature of the amended charges against him; that Morton's pleas were made freely, knowingly, intelligently, and voluntarily; and that there was a sufficient factual basis to support the pleas. The court accepted Morton's no contest pleas and found him guilty on both counts. The court ordered that a presentence investigation report (PSR) be prepared and scheduled sentencing.
On November 18, 2019, a sentencing hearing was held. Prior to imposing its sentence, the court stated it had reviewed the PSR, as well as letters written by counsel. In deciding upon the sentence, the court took into consideration Morton's young age at the time of the offense, Morton's lack of criminal history, the "extreme benefit" he received as part of the plea agreement, and the fact that someone had lost his life as a result of Morton's actions. The court sentenced Morton to 15 to 20 years’ imprisonment on the conviction of manslaughter and 30 to 40 years’ imprisonment on the conviction of possession of a firearm during the commission of a felony, and it ordered the sentences to be served consecutively. Morton was given 570 days’ credit for time served.
Morton assigns, restated and consolidated, that there was insufficient evidence to sustain his conviction of possession of a firearm during the commission of a felony; that the district court imposed excessive sentences; and that his trial counsel was ineffective.
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 the case of an abuse of discretion. State v. Ettleman , 303 Neb. 581, 930 N.W.2d 538 (2019). A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Id.
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Manjikian , 303 Neb. 100, 927 N.W.2d 48 (2019).
Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. State v. Vanness , 300 Neb. 159, 912 N.W.2d 736 (2018). 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.
Morton first argues that the State's factual basis was insufficient to support his conviction of possession of a firearm during the commission of a felony. Specifically, he claims that there was no indication from the factual basis that the underlying felony involved was an intentional crime, because the court did not clarify during the plea hearing whether the predicate offense was "sudden quarrel" manslaughter or unintentional manslaughter. Brief for appellant at 8. In support, Morton cites to State v. Pruett , 263 Neb. 99, 638 N.W.2d 809 (2002), which held that when a felony which serves as the basis of the weapon charge is an unintentional crime, the accused cannot be convicted of the weapon charge.
In contrast, the State argues that the Nebraska Supreme Court's holding in State v. Burkhardt , 258 Neb. 1050, 607 N.W.2d 512 (2000), applies to this case. In Burkhardt , the defendant pled guilty to one count of manslaughter and one count of use of a firearm to commit a felony. On appeal, the defendant argued that his conviction for the weapon charge should be vacated because the predicate crime of manslaughter was unintentional. However, the court in Burkhardt concluded that by knowingly, intelligently, and voluntarily entering pleas of guilty, the defendant had waived any arguments related to the alleged defect. Therefore, the State in this case argues that even if the factual basis was insufficient to sustain Morton's conviction for possession of a firearm during the commission of a felony, he has waived the argument by failing to object to the factual basis at the plea hearing and entering his plea of no contest.
It has been held that the voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge, whether the defense is procedural, statutory, or constitutional. State v. Manjikian, supra . However, a sufficient factual basis is a requirement for finding that a plea was entered into understandingly and voluntarily. State v. Ettleman , 303 Neb. 581, 930 N.W.2d 538 (2019) ; State v. Wilkinson , 293 Neb. 876, 881 N.W.2d 850 (2016). The court in Wilkinson made it clear that a defendant does not waive a challenge to the factual basis by entering a plea, because a sufficient factual basis is a prerequisite for a judicial finding that the plea was entered into understandingly and voluntarily. See, also, State v. Clemens , 300 Neb. 601, 915 N.W.2d 550 (2018) ; State v. Schiesser , 24 Neb. App. 407, 888 N.W.2d 736 (2016). Additionally, even though Morton did not object to the factual basis at the plea hearing, the issue was clearly before the district court, because the court was required to determine whether a sufficient factual basis existed prior to accepting Morton's pleas. See State v. Workman , 22 Neb. App. 223, 857 N.W.2d 349 (2014) (). Therefore, we determine that Morton has not waived the right to challenge the sufficiency of the State's factual basis on direct appeal. We next analyze whether the factual basis was sufficient.
Morton was convicted of possession of a deadly weapon (firearm) during the commission of a felony in violation of Neb. Rev. Stat. § 28-1205(2)(a) (Reissue 2016), which states: "Any person who possesses a firearm, a knife, brass or iron knuckles, or a destructive device during the commission of any felony which may be prosecuted in a court of this state commits the offense of possession of a deadly weapon during the commission of a felony." Possession of a deadly weapon, which is a firearm, during the commission of a felony is a Class II felony. § 28-1205(2)(c).
On appeal, Morton does not contest that he was in possession of a firearm, nor that he has been...
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