State v. Sanders
| Decision Date | 24 October 2014 |
| Docket Number | No. S–13–901,S–13–901 |
| Citation | 855 N.W.2d 350 |
| Parties | State of Nebraska, appellee, v. Ricky J. Sanders, appellant. |
| Court | Nebraska Supreme Court |
Jerry L. Soucie, Lincoln, for appellant.
Ricky J. Sanders, pro se.
Jon Bruning, Attorney General, George R. Love, and James D. Smith, Lincoln, for appellee.
1. Postconviction: Constitutional Law: Appeal and Error.In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief.
2. Postconviction: Constitutional Law: Proof.The Nebraska Postconviction Act, Neb.Rev.Stat. § 29–3001 et seq. (Reissue 2008 & Cum. Supp. 2012), provides that postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his constitutional rights such that the judgment was void or voidable. Thus, in a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.
3. Postconviction: Constitutional Law: Proof.A court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant's rights under the Nebraska or federal Constitution. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively show that the
defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.
4. Constitutional Law: Effectiveness of Counsel.A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.
5. Effectiveness of Counsel: Proof: Appeal and Error.To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense. A court may address the two prongs of this test, deficient performance and prejudice, in either order.
6. Constitutional Law: Criminal Law: Effectiveness of Counsel.The federal Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not ensure that defense counsel will recognize and raise every conceivable constitutional claim.
7. Effectiveness of Counsel.The failure to anticipate a change in existing law does not constitute deficient performance.
8. Effectiveness of Counsel.Counsel's failure to raise novel legal theories or arguments or to make novel constitutional challenges in order to bring a change in existing law does not constitute deficient performance.
9. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable Cause.A traffic violation, no matter how minor, creates probable cause for an officer to stop the driver of a vehicle.
10. Investigative Stops: Police Officers and Sheriffs: Probable Cause.If an officer has probable cause to stop a violator, the stop is objectively reasonable and any ulterior motivation is irrelevant.
11. Search and Seizure: Motor Vehicles: Police Officers and Sheriffs: Arrests: Evidence.Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.
Ricky J. Sanders appeals the order of the district court for Douglas County denying his motion for postconviction relief without an evidentiary hearing. Sanders had been convicted of discharging a firearm at a dwelling while in or near a motor vehicle, in violation of Neb.Rev.Stat. § 28–1212.04 (Cum.Supp.2012), and using a firearm to commit a felony. He contends that an evidentiary hearing should have been held on his ineffective assistance of counsel claims in which he asserted that trial counsel was deficient for failing to challenge the constitutionality of § 28–1212.04 and for failing to move to suppress evidence obtained from the stop and search of his vehicle.
Because counsel could not have been deficient for failing to raise a novel constitutional challenge to § 28–1212.04, the court did not err when it rejected Sanders' claim of ineffective counsel on this basis. We further conclude that the court did not err when it determined that the record showed that Sanders was not entitled to relief on his claim that counsel was deficient for failing to move to suppress evidence obtained from the stop and search of his vehicle. We therefore affirm the denial of Sanders' postconviction motion.
Sanders was convicted of discharging a firearm, in violation of § 28–1212.04, and a related charge of use of a firearm to commit a felony. The evidence at trial indicated that Sanders was the driver and one of two persons inside a vehicle from which gunshots were fired at a house in Omaha on May 21, 2011. The evidence included bullets and a shell casing that were found in a search of Sanders' vehicle. The jury was given an aiding and abetting instruction.
The evidence shows that police officers who responded to 911 emergency dispatch calls of shots being fired from a vehicle followed Sanders' vehicle because it met the description of the suspect vehicle. At one point, Sanders' vehicle violated traffic laws, but police awaited backup before stopping
the vehicle. The officers coordinated with other officers to block Sanders' vehicle. Following the stop, Sanders and his passenger were taken into custody. Officers standing near the vehicle saw numerous bullets inside the vehicle in plain view. An officer searched the vehicle and found over 30 bullets and a spent casing.
Sanders appealed his convictions to the Nebraska Court of Appeals, claiming that there was not sufficient evidence to support his convictions and that the district court had imposed excessive sentences. Sanders was represented by attorneys from the Douglas County public defender's office both at trial and on appeal. In case No. A–12–050, the Court of Appeals overruled Sanders' motions to remove counsel and appoint new counsel, and on July 9, 2012, the Court of Appeals summarily affirmed Sanders' convictions and sentences.
Sanders filed a pro se motion for postconviction relief. He asserted several layered claims of ineffective assistance of trial counsel and appellate counsel. Among the claims Sanders asserted in his 59–page motion were claims that counsel was ineffective for failing to challenge the constitutionality of § 28–1212.04 and that counsel was ineffective for failing to move to suppress evidence obtained from the warrantless search of his vehicle.
Section 28–1212.04, to which Sanders' constitutional argument is directed, was enacted in 2009 and amended in 2010. The statute is titled “Discharge of firearm in certain cities and counties; prohibited acts; penalty” and provides as follows:
Any person, within the territorial boundaries of any city of the first class or county containing a city of the metropolitan class or primary class, who unlawfully, knowingly, and intentionally or recklessly discharges a firearm, while in any motor vehicle or in the proximity of any motor vehicle that such person has just exited, at or in the general direction of any person, dwelling, building, structure, occupied motor vehicle, occupied aircraft, inhabited motor home as defined in section 71–4603, or inhabited camper unit as defined in section 60–1801, is guilty of a Class IC felony.
With regard to the constitutional challenge, Sanders asserted in his postconviction motion that § 28–1212.04 violates Neb. Const. art. III, § 18, which prohibits the enactment of “local or special laws.” He argued that the statute was facially unconstitutional as a local law because it applies only in certain cities and counties in the State and it therefore targets only the citizens of those cities and counties. He also argued that, as applied, the statute violated constitutional guarantees of equal protection because it targeted those areas that contain 95 percent of the State's African–American population.
With regard to the motion to suppress, Sanders asserted in his postconviction motion that the stop of his vehicle was not proper and that under the Fourth Amendment, the subsequent warrantless search of his vehicle was an illegal search. He argued that trial counsel should have moved to suppress evidence obtained from the search of the vehicle.
The district court denied Sanders' motion for postconviction relief without an evidentiary hearing and without appointing counsel. In the order denying postconviction relief, the court stated that Sanders “failed to show how he was prejudiced by his attorney's failure to [challenge the constitutionality of § 28–1212.04 ], or how the statute in question is somehow unconstitutional.” The court further stated that Sanders' other claims of ineffective assistance were “conclusory, ... refuted by the record, and ... not pleaded in enough detail to warrant an evidentiary hearing.” The court concluded that Sanders had “not alleged sufficient facts ... which, if proved, would establish a reasonable probability that the outcome of his case would have been different but for his trial counsel's alleged deficient performance.” The court therefore denied postconviction relief without an evidentiary hearing and without appointing counsel.
Sanders appeals the denial of his postconviction...
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