State v. Plant
| Decision Date | 19 May 1995 |
| Docket Number | No. S-94-888,S-94-888 |
| Citation | 532 N.W.2d 619,248 Neb. 52 |
| Parties | STATE of Nebraska, Appellee, v. Thomas M. PLANT, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Postconviction: Proof: Appeal and Error. A criminal defendant seeking postconviction relief has the burden of alleging and proving that a claimed error is prejudicial.
2. Postconviction: Proof. A defendant in a postconviction proceeding must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution.
3. Postconviction: Waiver: Appeal and Error. To use a procedural default or waiver as a means of ignoring a plain error that results in an unconstitutional incarceration would place form over substance; would damage the integrity, reputation, and fairness of the judicial process; and would render the plain error doctrine and postconviction relief remedies meaningless.
4. Postconviction: Jury Instructions: Homicide: Intent. When the material element of malice is omitted from the second degree murder jury instruction, a defendant's conviction for second degree murder is constitutionally invalid, and postconviction relief is proper to rectify a constitutionally invalid conviction.
5. Appeal and Error. An appellate court always reserves the right to note plain error of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, or fairness of the judicial process.
6. Jurisdiction: Sentences: Appeal and Error. An appellate court is compelled to accept jurisdiction when the sentence entered by the trial court is invalid due to plain error in the proceedings.
7. Jury Instructions: Homicide: Intent: Appeal and Error. The failure to include the element of malice in the jury instruction on second degree murder constitutes prejudicial error.
8. Criminal Law: Trial: Judges: Jury Instructions. It is the duty of the trial court in a criminal case to instruct the jury on the pertinent law of the case, whether requested to do so or not.
9. Jury Instructions: Appeal and Error. An instruction or instructions which by omission have the effect of withdrawing from the jury an essential issue or element in the case are prejudicially erroneous.
10. Criminal Law: Trial: Effectiveness of Counsel: Jury Instructions. The 11. Criminal Law: Homicide: Intent. Requiring malice as an element of second degree murder is not a new rule of law; malice has remained a material element since the adoption of the current criminal code.
failure of defense counsel in a criminal trial to object to an instruction which omits a material element of the crime charged cannot be considered to be within the range of professionally competent assistance and prejudices the proceeding on the crime charged.
12. Indictments and Informations: Homicide: Intent. For an information to be sufficient to charge a defendant with second degree murder, the information must allege that the accused caused the death of another purposely and maliciously.
13. Presentence Reports: Waiver. While a defendant has a qualified right to personally review his presentence investigation report with his counsel, subject to the district court's supervision, a defendant waives that right by failing to notify the district court that he has not personally reviewed the report and wishes to do so.
14. Postconviction. An evidentiary hearing may be denied on a motion for postconviction relief when the records and files affirmatively show that the defendant is entitled to no relief.
Edward F. Fogarty, of Fogarty, Lund & Gross, Omaha, for appellant.
Don Stenberg, Atty. Gen., and Kimberly A. Klein, Lincoln, for appellee.
Thomas M. Plant, through a pro se postconviction relief motion, asked the district court to set aside his second degree murder conviction because of prejudicial error in regard to a jury instruction and because his trial counsel provided ineffective assistance by not objecting to the jury instruction.
The district court for Douglas County overruled Plant's postconviction relief motion, and Plant appealed. We reverse the district court's postconviction relief judgment and remand the second degree murder cause to the district court for a new trial.
On appeal of the district court's postconviction judgment, Plant assigned four errors. We need consider only three of those assigned errors to dispose of Plant's appeal: (1) whether the original trial court erred when it failed to include in its instructions to the jury that malice is a material element of the crime of second degree murder; (2) whether Plant was denied effective assistance of counsel when his counsel, at trial and on appeal, did not object to the original trial court's omission in its jury instructions of malice as a material element of second degree murder; and (3) whether Plant was denied effective assistance of counsel when he allegedly was not given an opportunity to review his presentence investigation report before he was sentenced.
The State charged Plant with second degree murder for the May 25, 1988, death of his 18-month-old stepson. He was also charged with first degree assault and child abuse of his 4-year-old stepson.
The jury found Plant guilty on all counts with which he was charged. Plant received a life sentence for second degree murder, 6 to 20 years' imprisonment for first degree assault, and 1 to 3 years' imprisonment for child abuse. The assault and child abuse sentences were to run concurrently with each other and consecutive to the second degree murder sentence.
In his direct appeal, Plant assigned that the trial court erred in failing to suppress evidence and in receiving allegedly inadmissible hearsay evidence. We affirmed the judgment of the district court. See State v. Plant, 236 Neb. 317, 461 N.W.2d 253 (1990).
On July 12, 1994, Plant, acting pro se, filed a motion in the district court to set aside his conviction for second degree murder. He Plant also alleged that he received ineffective assistance of counsel because his trial counsel failed to object to the prejudicial jury instruction. Plant further claimed that the same attorney represented him in his direct appeal and provided ineffective assistance on appeal by not assigning as error the prejudicial jury instruction. Plant also complained that he did not receive effective assistance of counsel because he was not given the opportunity to review, with the assistance of counsel, his presentence investigation report before he was sentenced.
alleged, inter alia, that the trial court committed error by omitting malice as a material element of second degree murder in its jury instructions. The record, without refutation, [248 Neb. 55] reflects that the material element of malice was omitted from the trial court's instruction on second degree murder.
The record before us fails to reflect that Plant had counsel in the district court on his postconviction relief motion. Following its submission, Plant's postconviction relief motion was overruled by the district court. In doing so, the district court held that State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994) (), should not be applied retroactively. On appeal of his postconviction relief motion, Plant was represented by counsel who prepared and filed briefs and orally presented Plant's arguments to this court.
A criminal defendant seeking postconviction relief has the burden of alleging and proving that a claimed error is prejudicial. State v. Jones, 246 Neb. 673, 522 N.W.2d 414 (1994). A defendant in a postconviction proceeding must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or U.S. Constitution. State v. Sims, 244 Neb. 771, 509 N.W.2d 6 (1993).
Plant's trial counsel, who also represented Plant in his direct appeal, never claimed that the original trial court committed error in regard to the omission of malice in its instruction on second degree murder. The issue of ineffective assistance of counsel was not raised at the trial level or on direct appeal.
The State has argued that because the issue of the erroneous jury instruction was not raised at trial or on direct appeal, Plant waived his right to raise it in postconviction proceedings. To use a procedural default or waiver as a means of ignoring a plain error that results in an unconstitutional incarceration would place form over substance; would damage the integrity, reputation, and fairness of the judicial process; and would render the plain error doctrine and postconviction relief remedies meaningless. When the material element of malice is omitted from the second degree murder instruction, a defendant's conviction for second degree murder is constitutionally invalid, and postconviction relief is proper to rectify a constitutionally invalid conviction. See Neb.Rev.Stat. § 29-3001 (Reissue 1989).
An appellate court always reserves the right to note plain error of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, or fairness of the judicial process. State v. Secret, 246 Neb. 1002, 524 N.W.2d 551 (1994). Moreover, an appellate court is compelled to accept jurisdiction when the sentence entered by the trial court is invalid due to plain error in the proceedings. State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995).
In State v. Williams, supra, this court addressed whether a defendant was entitled to postconviction relief from a second degree murder conviction when the trial court omitted the material element of malice from its jury instruction on second degree murder. We held that the failure to...
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State v. Johnson
...of the judicial process; and would render the plain error doctrine and postconviction relief remedies meaningless. State v. Plant, supra [248 Neb. 52, 532 N.W.2d 619 (1995)]. We hold that the trial court's failure to hold a full, fair, and adequate hearing, affording Johnson procedural due ......
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State v. Ryan
...is proper to rectify the constitutionally invalid conviction. See, State v. Lowe, 248 Neb. 215, 533 N.W.2d 99 (1995); State v. Plant, 248 Neb. 52, 532 N.W.2d 619 (1995); State v. Eggers, 247 Neb. 989, 531 N.W.2d 231 PROCEDURAL DEFAULT The State contends that Ryan's motion must be overruled ......
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State v. Nesbitt
...not complain at that time that he had not been given an opportunity to review the presentence investigation report. In State v. Plant, 248 Neb. 52, 532 N.W.2d 619 (1995), overruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998), the defendant filed a postconviction ......
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State v. Burlison
...462 (1996); State v. Barfoot, 248 Neb. 335, 534 N.W.2d 572 (1995); State v.. Lowe, 248 Neb. 215, 533 N.W.2d 99 (1995); State v. Plant, 248 Neb. 52, 532 N.W.2d 619 (1995); State v. Eggers, 247 Neb. 989, 531 N.W.2d 231 (1995); State v. Wilson, 247 Neb. 948, 530 N.W.2d 925 (1995); State v. Wil......