State v. Pauly
| Decision Date | 10 May 2022 |
| Docket Number | A-21-713 |
| Parties | State of Nebraska, appellee, v. Brian J. Pauly, appellant. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Lancaster County: Susan I Strong, Judge. Affirmed.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Brian J. Pauly appeals his plea based conviction of possession with intent to deliver methamphetamine. He assigns that his trial counsel was ineffective in certain respects and that he received an excessive sentence. For the reasons explained below, we affirm.
On May 22, 2020, a law enforcement officer with the Lancaster County sheriff's office observed a vehicle with Texas license plates traveling eastbound on Interstate 80. The officer observed that the vehicle was traveling 69 miles per hour in a 65 mile per hour zone and was following a semi at a very close and unsafe distance. He therefore initiated a traffic stop and made contact with the driver, who he later identified as Pauly. Pauly provided his Iowa driver's license and the rental agreement for the vehicle and accompanied the officer to his cruiser.
During the time it took to issue Pauly a warning, the officer became suspicious that Pauly was involved in criminal activity. After the traffic stop was complete and the warning had been issued, Pauly continued to speak with the officer, but he denied consent to search the vehicle. The officer therefore requested a canine unit to come to the scene. The drug detection dog completed an exterior sniff of Pauly's vehicle and alerted and indicated to the odor of narcotics coming from the vehicle. A subsequent search of the vehicle revealed 27.8 grams of methamphetamine and three glass pipes.
The State filed an information charging Pauly with possession with intent to deliver methamphetamine, in a quantity of at least 10 grams but less than 28 grams, which is a Class ID felony. Neb. Rev. Stat. § 28-416(10)(c) (Cum. Supp. 2020). Pursuant to a plea agreement with the State, Pauly pled no contest to an amended charge of possession with intent to deliver methamphetamine, with no quantity specified, which is a Class II felony. § 28-416(2). Pauly was sentenced to 6 to 10 years' imprisonment. He timely appeals.
Pauly assigns, summarized and renumbered, that (1) trial counsel was ineffective in violation of his Sixth Amendment rights, (2) trial counsel was ineffective in instructing him on his plea options, (3) trial counsel was ineffective in advising him to waive his right to a trial by a jury of his peers, (4) trial counsel was ineffective in failing to follow through with the motion to suppress and advising him to plead no contest, (5) trial counsel was ineffective in advising the judge that he was not a good candidate for probation, and (6) he received an excessive sentence.
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision. State v. Chairez, supra.
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.
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. Id.
Ineffective Assistance of Counsel.
Pauly assigns five errors related to the effectiveness of his trial counsel. Out of those five errors, only two have been properly presented for review. The first error alleges that Pauly's trial counsel was ineffective in violation of his Sixth Amendment rights. Assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). Because Pauly does not allege how trial counsel performed deficiently, this assigned error lacks the specificity required on direct appeal.
The next two errors allege that Pauly's trial counsel was ineffective in instructing him on his plea options and in advising him to waive his right to a trial by jury. Although these alleged errors are more specifically assigned, Pauly does not argue them in his brief. An argument that does little more than restate an assignment of error does not support the assignment, and an appellate court will not address it. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). We therefore do not address Pauly's first three assignments of error.
Pauly next assigns that his trial counsel was ineffective in failing to follow through with a motion to suppress he filed prior to Pauly entering his plea and advising him to plead no contest. He argues that the motion to suppress the evidence found pursuant to the search of his vehicle would have been successful, and thus, he was prejudiced by trial counsel's decision not to pursue the motion and advise him to plead to the amended charge. We disagree.
The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee against unreasonable searches and seizures. State v. Ferguson, 301 Neb. 697, 919 N.W.2d 863 (2018). Evidence obtained as the fruit of an illegal search or seizure is inadmissible in a state prosecution and must be excluded Id. The ultimate touchstone of the Fourth Amendment is reasonableness. Id. Reasonableness is determined by balancing the intrusion on the individual's Fourth Amendment interests against the promotion of legitimate governmental interests. Id. A seizure that is lawful at its inception can violate the Fourth Amendment by its manner of execution. Id.
It is a bit unclear whether Pauly challenges the legality of the traffic stop. He notes in his brief that the traffic stop, the detention, and the search of his vehicle were all contrary to law, but his argument focuses on the extension of the duration of the traffic stop. Specifically, Pauly's assigned error is "counsel was ineffective in failing to follow through with the motion to suppress and advising [him] to plead 'No Contest'" and his specific argument is that law enforcement had no reasonable suspicion or probable cause to initiate a traffic stop and no reasonable suspicion to continue to detain him for the canine sniff. As to that specific assigned error and argument, we find that the record is sufficient to reject his claim of ineffective assistance because the probable cause affidavit included in our record affirmatively refutes it. The initial stop was proper because, according to the probable cause affidavit of the officer who conducted the traffic stop, the officer observed Pauly speeding and following another vehicle too closely. A stop of a vehicle is objectively reasonable when the officer has probable cause to believe that a traffic violation has occurred. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008). Traffic violations, no matter how minor, create probable cause to stop the driver of a vehicle. Id. Thus, here, the officer had probable cause to conduct a stop of Pauly's vehicle based on the observed traffic violations. Accordingly, a motion to suppress the initial stop of the vehicle would not have been successful; therefore, trial counsel was not ineffective in failing to pursue a motion to suppress related to the traffic stop. See State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018) ().
Pauly's primary argument is that the officer improperly extended the duration of the traffic stop. In the officer's probable cause affidavit, he admits that the traffic stop was complete before he summoned the canine unit to conduct a dog sniff of Pauly's vehicle. The fact that a dog sniff is conducted after the time reasonably required to complete the initial mission of the traffic stop is not, in and of itself, a Fourth Amendment violation. State v. Ferguson, supra. A Fourth Amendment violation arises only when the dog sniff is conducted after the initial mission of a stop is completed and the officer lacks probable cause or reasonable suspicion to investigate further. Id. Where, on the other hand, the officer has probable cause or reasonable suspicion to continue the detention after the initial mission of the stop is completed, the officer may conduct a drug detection dog sniff while the suspect is properly detained. Id. Thus, the Nebraska Supreme Court has held that seizures that took place in order to facilitate dog sniffs after the completion of traffic infraction investigations did not violate the Fourth Amendment when the officers had reasonable suspicion of criminal activity, developed during the ordinary inquiries incident to the stops. Id. See, also, State v. Rogers, 297...
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