State v. Sanders, S-91-338
| Decision Date | 09 October 1992 |
| Docket Number | No. S-91-338,S-91-338 |
| Citation | 490 N.W.2d 211,241 Neb. 687 |
| Parties | STATE of Nebraska, Appellee, v. Aubrey W. SANDERS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Postconviction: Constitutional Law. An evidentiary hearing on a postconviction motion is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or Federal Constitution.
2. Aiding and Abetting: Words and Phrases. Aiding and abetting involves some participation in the criminal act and must be evidenced by some word, act, or deed. No particular acts are necessary; nor is it necessary that any physical part in the commission of the crime is taken, or 3. Pleas: Sentences: Restitution. Failure to inform a defendant of the possibility of restitution as a sentence renders the entry of a plea of guilty involuntary and unintelligent in that regard and consequently prevents the imposition of an order of restitution.
that there was an express agreement therefor. Mere encouragement or assistance is sufficient.
4. Postconviction: Effectiveness of Counsel: Proof. The appellant, in order to maintain a successful ineffective assistance of counsel argument, must make a showing of how he was prejudiced in the defense of his case as a result of his attorney's actions or inactions and that, but for the ineffective assistance of counsel, there is a reasonable probability that the result would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. When one is unable to make such a showing, denial of the requested relief is required.
5. Postconviction. Unless the motion for postconviction relief and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto.
6. Postconviction: Right to Counsel: Appeal and Error. In the absence of a showing of an abuse of discretion, the failure to appoint an attorney in postconviction proceedings is not error.
Aubrey W. Sanders, pro se.
Don Stenberg, Atty. Gen., and Marilyn B. Hutchinson, Lincoln, for appellee.
Appellant, Aubrey W. Sanders, and a codefendant were arrested in November 1987 in connection with three burglaries involving three tire stores. Since no evidence linked the recovered tires and the third burglarized tire store, appellant was charged with only two counts of burglary, in violation of Neb.Rev.Stat. § 28-507(1) (Reissue 1989). Appellant pled guilty and was sentenced to 2 years' probation, 180 days in the Douglas County jail, court costs, and restitution in the amount of $333.21, or one-half the total damages arising out of the burglaries.
While on probation, appellant was charged with shoplifting in the State of Iowa on January 24, 1990, thereby violating the terms of his probation. Appellant pled guilty to violation of probation on February 8 and was sentenced to 3 to 10 years' imprisonment on each of the burglary counts, to be served consecutively. Credit was granted for 212 days served. Appellant's attorney delayed his filing of a direct appeal and instead filed a motion for sentence reduction, which was not ruled upon until more than 30 days after the sentencing date, thereby barring appellant's direct appeal. Sanders appeals from the district court's order denying his motions for postconviction relief, appointment of counsel, and an evidentiary hearing.
Appellant alleges, in summary, that the district court erred by denying his constitutional right to due process under the 14th Amendment by nature of the following: accepting a guilty plea which had not been entered into knowingly or intelligently, imposing sentences for burglary and probation which did not comply with the statutory provisions, denying appellant his right of appeal, denying appellant his right to inspect his presentence investigation report and refute erroneous information contained therein, and denying appellant the effective assistance of counsel. Appellant further generally alleges that the court erred by denying an evidentiary hearing on the matter, not appointing counsel to represent appellant in the postconviction proceedings, and failing to provide appellant the opportunity to amend the postconviction motion prior to dismissal.
An evidentiary hearing on a postconviction motion is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. See, State v. Schneckloth, 235 Neb. 853, 458 N.W.2d 185 (1990); State v. Start, 229 Neb. 575, 427 N.W.2d 800 (1988); State v. Jackson, 226 Neb. 857, 415 N.W.2d 465 (1987); State v. Malek, 219 Neb. 680, 365 N.W.2d 475 (1985). In an appeal involving a proceeding for postconviction relief, the lower court's findings will be upheld unless clearly erroneous. State v. Rubek, 225 Neb. 477, 406 N.W.2d 130 (1987).
DUE PROCESS VIOLATIONS:
INEFFECTIVE ASSISTANCE OF COUNSEL
Within appellant's ineffective assistance of counsel argument, he complains that he has been deprived of a fair sentence, his right of direct appeal, his right to inspect the presentence investigation report, and a voluntary and intelligent guilty plea. Appellant alleged that his attorney did review the presentence investigation, but did not afford appellant the opportunity to personally review the report and rebut allegations contained therein.
Appellant further alleges that his court-appointed counsel failed to inform him that forcible breaking and entering was a necessary element for the charge of burglary and that appellant's failure to do so constituted a viable defense to the charge; hence, he contends that his guilty plea was not knowingly or intelligently made.
The evidence was uncontested that appellant had been approached by the codefendant 2 weeks prior to the burglaries and was asked for his assistance in the endeavor. The codefendant offered to award appellant $1,000 for his participation in the burglaries, to be paid out of the proceeds from the sale of the stolen merchandise. Two weeks later, appellant agreed to participate, and he did so on the night of the burglaries. He consistently testified that he had merely driven the vehicle, had not entered or carried the stolen goods, and had not so much as trespassed, as he claimed he had parked the getaway truck on the public streets.
Appellant's contention that, due to these facts, he could not be charged with or convicted of burglary, clearly is contrary to Nebraska law. Neb.Rev.Stat. § 28-206 (Reissue 1989) specifically states that any person "who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender." Aiding and abetting involves some participation in the criminal act and must be evidenced by some word, act, or deed. No particular acts are necessary; nor is it necessary that any physical part in the commission of the crime is taken, or that there was an express agreement therefor. Mere encouragement or assistance is sufficient. State v. Bennett, 219 Neb. 601, 365 N.W.2d 423 (1985); State v. True, 210 Neb. 701, 316 N.W.2d 623 (1982). The assignment is without merit.
As to appellant's complaint that he was not afforded an opportunity to inspect the presentence investigation report and rebut the manner in which his restitution was calculated, the contention is without merit. The presentence investigation does contain certain information about the existence of and losses resulting from the third tire store's burglary; however, the fact remains that appellant was not charged with the third burglary, and no evidence suggests that this evidence was considered by the court in its acceptance of the guilty plea or at the...
To continue reading
Request your trial
-
State v. McGurk
...if handled in another manner, would have produced a different result. His claims at best are mere assertions." See State v. Sanders, 241 Neb. 687, 490 N.W.2d 211 (1992) (denying postconviction relief where defendant failed to prove he was prejudiced by counsel's failure to file direct appea......
-
State v. Zarate
...in providing a defendant with the information necessary to render the plea voluntary and intelligent. Id. Cf. State v. Sanders, 241 Neb. 687, 490 N.W.2d 211 (1992) (guilty plea not involuntary where counsel failed to advise defendant of possibility of restitution, because restitution is con......
-
State v. Nielsen
...of his case as a result of his attorney's actions or inactions. State v. Lyman, supra; State v. Carter, supra; State v. Sanders, 241 Neb. 687, 490 N.W.2d 211 (1992). To sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and th......
-
State v. Nissen
...on the existence of all the elements of any one of the several underlying felonies alleged. N.W.2d 296 (1995); State v. Sanders, 241 Neb. 687, 490 N.W.2d 211 (1992). However, this premise was rejected in State v. Buckman, 237 Neb. 936, 468 N.W.2d 589 (1991). We reasoned therein that as unde......