State v. Orduna
| Decision Date | 12 July 1996 |
| Docket Number | No. S-95-284,S-95-284 |
| Citation | 550 N.W.2d 356,250 Neb. 602 |
| Parties | STATE of Nebraska, Appellee, v. Eric L. ORDUNA, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Appeal and Error. Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.
2. Sentences: Prior Convictions: Appeal and Error. A sentencing court's determination concerning the constitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court's determination is clearly erroneous.
3. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.
4. Sentences. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.
5. Sentences: Prior Convictions: Records: Right to Counsel: Waiver. Challenges to prior plea-based convictions for enhancement proceedings may be made only for the failure of the face of the transcript to disclose whether the defendant had counsel or knowingly, understandingly, intelligently, and voluntarily waived counsel at the time the pleas were entered.
6. Sentences: Prior Convictions: Records: Right to Counsel: Waiver: Proof. In a proceeding for an enhanced penalty, the state has the burden to show that the record of a defendant's prior conviction, based on a plea of guilty, affirmatively demonstrates that the defendant was represented by counsel, or that the defendant, having been informed of the right to counsel, voluntarily, intelligently, and knowingly waived that right.
7. Records: Waiver. A checklist docket entry is sufficient to establish that a defendant has been advised of his rights and has waived them.
8. Records. A checklist or other such docket entry which is made by one authorized to make it imports verity, and unless contradicted, it stands as a true record of the event.
9. Right to Counsel: Records: Presumptions: Appeal and Error. Where a record is silent as to a defendant's opportunity for counsel, an appellate court may not presume that such rights were respected.
10. Trial: Judges: Presumptions. It is presumed in a bench trial that the judge was familiar with and applied the proper rules of law unless it clearly appears otherwise.
11. Records. A checklist which is used as a substitute for a formal, written journal entry must be prepared with as much care and certainty as any record of a court in order to import absolute verity.
12. Sentences. In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law- Thomas M. Kenney, Douglas County Public Defender, and Stephen P. Kraft, Omaha, for appellant.
abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.
In State v. Orduna, 95 NCA No. 50, case No. A-95-284, 1995 WL 749705 (1995) (), the Nebraska Court of Appeals affirmed the conviction of appellant, Eric L. Orduna, for third-offense shoplifting, a Class IV felony. Neb.Rev.Stat. §§ 28-511.01 and 28-518(4) and (6) (Reissue 1995). Orduna was sentenced to 4 to 5 years' imprisonment, with credit for time served.
Orduna was arrested for shoplifting two sets of headphones from a Target Store in Omaha. The total value of the headphones was $64.98. Orduna had been convicted of shoplifting on at least two prior occasions. Consequently, the information filed alleged third-offense theft by shoplifting pursuant to §§ 28-511.01 and 28-518(6).
At a stipulated bench trial and enhancement hearing, the trial court admitted into evidence exhibits 2, 3, and 4, which are certified copies of Orduna's prior convictions for shoplifting from November 27, 1985; September 24, 1993; and October 5, 1993. Orduna objected to the use of exhibits 2 and 3, the certified copies of his November 27, 1985, and September 24, 1993, convictions. The basis of the objection was that neither exhibit affirmatively showed that Orduna made a knowing, voluntary, and intelligent waiver of his right to counsel. Orduna initially objected to exhibit 4, the conviction from October 5, 1993, but later withdrew this objection.
Exhibits 2 and 3 are standard form checklists used by judges of the Douglas County Court. In exhibit 2, concerning Orduna's November 27, 1985, court appearance, under the heading of "APPEARANCES," checkmarks appear next to the words "Defendant" and "Prosecutor," with the prosecutor's name written in the space provided. No checkmark appears next to the words "Defense Counsel," nor is there a name written in the space provided.
Under the heading "ARRAIGNMENT AND ADVISEMENT," checkmarks appear which indicate Orduna was arraigned on a charge of shoplifting and advised of this charge and the associated penalties. The form indicates Orduna was advised of his privilege against self-incrimination, right to confront his accusers, and right to a trial, including a jury trial. The form indicates Orduna waived each right. Checkmarks appear next to the statements "Defendant advised of his right to counsel" and "Defendant waives his right to counsel." Checkmarks appear in the appropriate spaces to indicate that Orduna entered a plea of guilty, that this guilty plea was knowingly, understandingly, intelligently, and voluntarily entered, and that a factual basis exists for the plea. Checkmarks do not appear next to the statements on the checklist indicating that the court in fact accepted Orduna's guilty plea. However, the remainder of the checklist was completed and indicated that Orduna, on this occasion, was ordered to pay a fine of $35 and costs.
Exhibit 3, concerning Orduna's September 24, 1993, court appearance, is a different standard form checklist than the one used in exhibit 2. But, like exhibit 2, the checklist begins by reciting that Orduna was charged with shoplifting and indicating the appearances of Orduna and the prosecution and that Orduna was not represented by counsel. Under the heading "ARRAIGNMENT AND ADVISEMENT," a checkmark appears in the box next to the statement "Defendant advised of the nature of the above charges, all possible penalties, and each of the following rights: Counsel; Trial; Jury Trial; Confront Accusers; Subpoena Witnesses; Remain Silent; Request Transfer to Juvenile Below this statement, a checkmark appears in the box next to the statement "Defendant waived each of the above and foregoing rights." Immediately below this, a checkmark appears in the box next to the statement "Plea(s) entered knowingly, understandingly, intelligently, voluntarily, and a factual basis for plea(s) found; defendant advised of right to appeal conviction and sentence." Checkmarks appear in the appropriate boxes indicating defendant entered a plea of guilty and was found guilty. For this conviction, Orduna was sentenced to 120 days in jail.
Court; Defendant's Presumption of Innocence; State's Burden of Proof Beyond Reasonable Doubt."
The trial court found exhibits 2 and 3 could be used for enhancement purposes, as a "careful examination of these exhibits affirmatively show[s] that the waiver of counsel was done 'knowingly, intelligently and voluntarily.' " After noting for the record Orduna's lengthy criminal record and prior imprisonment, the trial court sentenced him to 4 to 5 years' incarceration. Section 28-518(6) provides that for any third or subsequent conviction of theft under $200, a person shall be guilty of a Class IV felony. The penalty for a Class IV felony is a maximum incarceration of 5 years, a $10,000 fine, or both. Neb.Rev.Stat. § 28-105 (Reissue 1989).
The Court of Appeals did not reach the issue of whether the trial court erred in finding that the certified copies of Orduna's prior shoplifting convictions evinced a competent waiver of his right to counsel. Instead, the Court of Appeals found that Nichols v. U.S., 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), controlled. In Nichols, the U.S. Supreme Court held that an uncounseled misdemeanor conviction, which was constitutionally valid because no term of imprisonment was imposed, is also valid for enhancement of a subsequent conviction.
Applying Nichols, the Court of Appeals found that even if Orduna's November 27, 1985, conviction was uncounseled, because he was not sentenced to prison, it was a valid conviction for the purposes of enhancement. Accordingly, Orduna's November 27, 1985, conviction and his counseled October 5, 1993, conviction may be used to bring Orduna within § 28-518(6).
In addition, the Court of Appeals found that Orduna's sentence was not excessive, because it was within the statutory maximum for a Class IV felony and was warranted by Orduna's lengthy criminal record.
Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996); State v. Sinsel, 249 Neb. 369, 543 N.W.2d 457 (1996). See State v. LeGrand, 249 Neb. 1, 541 N.W.2d 380 (1995).
A sentencing court's determination concerning the constitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court's determination is clearly erroneous. State v. Reimers, 242 Neb. 704, 496 N.W.2d 518 (1993...
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State Louthan
...in a sentence of imprisonment. See, Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994); State v. Orduna, 250 Neb. 602, 550 N.W.2d 356 (1996). To the extent that State v. LeGrand, 249 Neb. 1, 541 N.W.2d 380 (1995); State v. Wiltshire, 241 Neb. 817, 491 N.W.2d 324 ......
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