State v. Ramirez
| Decision Date | 25 January 2008 |
| Docket Number | No. S-06-920.,S-06-920. |
| Citation | 274 Neb. 873,745 N.W.2d 214 |
| Parties | STATE of Nebraska, Appellee, v. Michael J. RAMIREZ, Appellant. |
| Court | Nebraska Supreme Court |
James R. Mowbray and Robert W. Kortus, of Nebraska Commission on Public" Advocacy, Lincoln, for appellant.
Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.
Michael J. Ramirez was convicted by the district court in 2004 with use of a firearm to commit a felony,1 being a felon in possession of a firearm,2 and terroristic threats.3 Ramirez was also found to be a habitual criminal.4 Ramirez was acquitted by a jury of a count of possession of methamphetamine. Ramirez was sentenced, collectively, to terms of imprisonment totaling not less than 25 nor more than 50 years. His trial counsel also served as counsel on direct appeal, and the only issue raised in his brief was whether his sentences were excessive. The Nebraska Court of Appeals summarily affirmed.5
Ramirez filed a motion for postconviction relief in the district court on November 23, 2005, alleging ineffective assistance of counsel in several respects. The court, after an evidentiary hearing, denied. Ramirez' motion, and he appeals. The evidence pertinent to the issues Ramirez raises on appeal will be set forth below, in conjunction with our analysis of each issue.
Ramirez assigns, consolidated and restated, that the district court erred in failing to conclude that (1) his rights to double jeopardy and due process were violated when the same felony conviction was used as a predicate for (a) being a felon in possession of a firearm and (b) the habitual criminal enhancement of his sentence for being a felon in possession of a firearm;
(2) he was deprived of effective assistance of counsel when counsel failed to adequately seek the suppression of evidence obtained from the search of his residence; and
(3) he was deprived of effective assistance of counsel when his counsel failed to (a) object to inadmissible evidence, (b) introduce favorable evidence, and (c) impeach witnesses at trial with inconsistent evidence from the affidavit used to obtain the search warrant.
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. 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,6 an appellate court reviews such legal determinations independently of the lower court's decision.7
Ramirez' arguments are each framed by whether he was denied effective assistance of counsel at trial. In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel at trial or on direct appeal, the defendant has the burden, in accordance with Strickland,8 to first show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case. In order to show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. The two prongs of this test, deficient performance and prejudice, may be addressed in either order.9
Before addressing the specific arguments Ramirez makes on appeal, we note that the issues raised are not procedurally barred. Although a motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal,10 when a defendant was represented both at trial and on direct appeal by the same lawyer, the defendant's first opportunity to assert ineffective assistance of trial counsel is in a motion for postconviction relief.11
Ramirez argues that his rights under the Double Jeopardy Clause were violated when the same felony conviction was used to prove his status as a felon for the charge of being a felon in possession of a firearm, then prove he was a habitual criminal for the purpose of enhancing his sentence on that charge. Ramirez claims that his right to effective assistance of counsel was violated because trial counsel did not object to the sentencing enhancement on double jeopardy grounds. The postconviction court rejected this argument, concluding that Ramirez was not prejudiced by counsel's failure to object because the Double Jeopardy Clause does not preclude the use of the same felony to establish felon status and then enhance a sentence.
The information charging Ramirez with being a habitual criminal alleged three predicates: (1) a 1991 conviction for possession of marijuana with intent to deliver, (2) a 1999 conviction for theft, and (3) a 2000 conviction for manufacturing or distributing marijuana. But at sentencing, the State only presented evidence of the 1991 and 2000 convictions to support sentencing as a habitual criminal. And, as, previously noted, Ramirez was convicted pursuant to jury verdict of being a felon in possession of a firearm. The only evidence adduced at trial to establish Ramirez' status as a felon was evidence of the 2000 marijuana conviction. The habitual, criminal finding was used to enhance Ramirez' sentence for being a felon in possession of a firearm.
Trial counsel testified in his deposition, on postconviction, that he "briefly" considered the double jeopardy implications of the charges, but did not pursue the issue "[w]hen [he] noticed there were three prior felonies as opposed to two." Counsel later admitted that he did not specifically consider the double jeopardy implications of using the same felony conviction for the offense of felon in possession and then for the habitual criminal enhancement.
The Double Jeopardy Clauses of both the federal Constitution and the Nebraska Constitution protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.12 Ramirez' argument here seems to be that he is being subjected to multiple punishments for the same offense, although his argument also implicates statutory interpretation. However, in this context, the two inquiries are related. As the U.S. Supreme Court has explained with respect to the prohibition on multiple punishments, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended."13 The question of what punishments are constitutionally permissible is no different from the question of what punishment the legislative branch intended to be imposed.14 Where the Legislature intends to impose multiple punishments, "imposition of such sentences does not violate the Constitution."15 With those principles in mind, we turn to the statutes at issue in this case.
Section 28-1206(1) provides that "[a]ny person who possesses any Firearm ... and who has previously been convicted of a felony ... commits the offense of possession of a deadly weapon by a felon...." Possession of a firearm by a felon is a Class III felony.16 And § 29-2221(1) provides, subject to certain exceptions not relevant here, that
[w]hoever has been twice convicted of a crime, sentenced, and committed to prison ... for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to be a habitual criminal and shall be punished by imprisonment ... for a mandatory minimum term of ten years and a maximum term of not more than sixty years....
It is clear that standing alone, neither. § 28-1206 nor § 29-2221 implicates double jeopardy.17 Ramirez does not contend other-wise. Instead, he relies on our decisions in State v. Chapman18 and State v. Hittle,19 which he claims are applicable.
In Chapman, the defendant was charged with third-offense driving under the influence of alcoholic liquor (DUI) and being a habitual criminal. Evidence was received of three prior convictions for DUI, and the trial court found that the offense with which the defendant was charged was a third offense. The defendant had previously been convicted of two felonies: third-offense DUI and malicious destruction of property. Based upon those two felonies, the court sentenced the defendant as a habitual criminal under § 29-2221.20
On appeal, we rejected the defendant's constitutional claims.21 But we concluded that the trial court had erred in its interpretation of the relevant statutes. We explained:
For the first time, this court faces the question of whether a previous conviction of an offense made a felony solely by reason of a previous conviction may be utilized as a basis for an adjudication of habitual criminality under the habitual criminal statute. We hold that offenses which are felonies because the defendant has been previously convicted of the same crime do not constitute "felonies" within the meaning of prior felonies that enhance penalties under the habitual criminal statute.
The weight of authority is against double penalty enhancement through application of both a specific subsequent offense statute and a habitual criminal statute.... [T]hese decisions do not rest on federal constitutional grounds. The issue of whether, upon conviction of a misdemeanor, sentence could be imposed on a felony charge under a habitual criminal statute rests on an interpretation of state law.22
We noted that "[s]everal states have held that penalty enhancement provisions set...
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