State v. Schmidt
| Decision Date | 09 August 2016 |
| Docket Number | No. A–15–584,A–15–584 |
| Citation | 885 N.W.2d 51,24 Neb.App. 239 |
| Parties | State of Nebraska, appellee, v. Roger K. Schmidt, Sr., appellant. |
| Court | Nebraska Court of Appeals |
Lyle J. Koenig, of Koenig Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman, Lincoln, for appellee.
Moore
, Chief Judge.
Roger K. Schmidt, Sr., appeals from an order of the district court for Jefferson County denying his second motion for post-conviction relief. We determine that Schmidt's second motion was barred by the limitation period set forth in the Nebraska Postconviction Act, specifically Neb.Rev.Stat. § 29–3001(4)
(Cum. Supp. 2014), and therefore, we affirm the district court's order denying postconviction relief.
On March 14, 2007, Schmidt was convicted by jury before the district court of Jefferson County on one count of first degree sexual assault on a child in violation of Neb.Rev.Stat. § 28–319(1)(c)
(Reissue 1995), a Class II felony, and four counts of sexual assault of a child in violation of Neb.Rev.Stat. § 28–320.01 (Cum. Supp. 2004), Class IIIA felonies. The jury acquitted Schmidt on one count of first degree sexual assault on a child and one count of sexual assault of a child. On May 18, Schmidt was sentenced to imprisonment for a period of 18 to 25 years for the count of first degree sexual assault and a period of 5 years for each of the four individual counts of sexual assault, with all sentences to run consecutively. Schmidt's convictions and sentences were affirmed on direct appeal. See State v. Schmidt, 16 Neb.App. 741, 750 N.W.2d 390 (2008)
. See, also, State v. Schmidt, 276 Neb. 723, 757 N.W.2d 291 (2008). Schmidt retained the same counsel, Kelly S. Breen, for both the original trial and his direct appeal.
On October 19, 2010, Schmidt, having retained new counsel, filed his first motion for postconviction relief in the district court, alleging in part ineffective assistance of trial counsel. His counsel has remained the same from this first motion through the present appeal. This motion, as supplemented, claimed that Breen failed to investigate and prepare witnesses; to mitigate potentially harmful statements; to adequately challenge various statements, testimony, and the competency of witnesses; to assert available defenses; to make necessary objections and a proper offer of proof; and to employ an expert. This motion did not allege that Breen failed to communicate a formal plea offer.
On October 28, 2011, the district court denied this motion without an evidentiary hearing. This court affirmed the denial on appeal on March 19, 2013. See State v. Schmidt, case No. A–11–981, 2013 WL 1111520 (Neb.App. Mar. 19, 2013)
(). The Nebraska Supreme Court subsequently denied Schmidt's petition for further review.
On March 13, 2014, Schmidt filed a second motion for postconviction relief based upon an alleged newly recognized constitutional right and a new allegation of ineffective assistance of counsel discovered during the pendency of the appeal of the first motion. Specifically, Schmidt asserted that the U.S. Supreme Court, for the first time in Lafler v. Cooper, –––U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012)
, and Missouri v. Frye, –––U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (both decided on March 21, 2012), identified defective performance of counsel during plea negotiations as potential ineffective assistance of counsel in violation of the Sixth Amendment to the Constitution.
Schmidt claimed that such ineffective assistance of trial counsel occurred in his case due to Breen's alleged failure to communicate a formal plea offer proffered by the prosecutor, Linda Bauer, prior to the original trial. Specifically, Schmidt alleged that on March 26, 2012, he discovered that the State had offered a plea agreement to Breen, prior to the original trial. The plea offer would have allowed Schmidt to plead guilty to three counts of sexual contact, Class IIIA felonies, carrying a maximum penalty of 15 years' imprisonment and a $30,000 fine during the period at issue, in exchange for all other charges being dismissed. See Neb.Rev.Stat. § 28–105(1)
(Supp. 2015). Schmidt claims that Breen never communicated this plea offer to him. Schmidt further alleged that it was the U.S. Supreme Court's rulings in Lafler v. Cooper, supra, and Missouri v. Frye, supra, that caused Schmidt's present counsel to inquire from Bauer whether a plea agreement had been offered to Schmidt.
Schmidt alleged that his request for postconviction relief was not barred by the Nebraska Postconviction Act's 1–year statute of limitations for filing such motions. See § 29–3001(4)
.
First, Schmidt asserted that the second motion for postconviction relief was timely filed under § 29–3001(4)(d)
due to the presence of the newly recognized constitutional right set forth above. This section provides that the 1–year statute of limitations for postconviction relief runs from “[t]he date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court, if the newly recognized right has been made applicable retroactively to cases on postconviction collateral review[.]” § 29–3001(4)(d)
.
Next, Schmidt alleged that his motion for postconviction relief was timely filed under § 29–3001(4)(b)
, which states that the 1–year statute of limitations for postconviction relief runs from “[t]he date on which the factual predicate of the constitutional claim or claims alleged could have been discovered through the exercise of due diligence.” § 29–3001(4)(b).
Although Schmidt claims to have first received information regarding the plea offer on March 26, 2012, he asserted that because the appeal of the denial of his first motion for post-conviction relief was pending before this court at that time, the 1–year statute of limitations in § 29–3001
did not begin to run until our opinion was released on March 19, 2013, thus making his second motion filed on March 13, 2014, timely. He similarly alleged that the U.S. Supreme Court cases of Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), were released during the pendency of the prior appeal which in turn tolled the running of the statute of limitations until the release of this court's opinion on March 19, 2013.
On April 22, 2014, the State filed a motion to dismiss Schmidt's second postconviction motion. On September 12, the court entered an order denying the State's motion to dismiss and determining that Schmidt was entitled to an evidentiary hearing on his claims. However, the State filed a motion to reconsider on September 25, and a hearing was held on this motion on October 14.
On January 14, 2015, the district court entered its order in response to the State's motion to reconsider. The court first found that Schmidt's claim based upon a “newly recognized right” was time barred under § 29–3001(4)(d)
, relying upon Williams v. U.S., 705 F.3d 293 (8th Cir.2013), which concluded that neither Lafler v. Cooper, supra, nor Missouri v. Frye, supra, announced a new rule of constitutional law.
However, the court held that questions remained surrounding whether and when the factual predicate for Schmidt's claim of ineffective assistance of counsel (the failure to communicate the plea offer) could reasonably have been discovered. Therefore, the court ordered an evidentiary hearing on that issue to determine whether the second motion was timely under § 29–3001(4)(b)
.
On March 19, 2015, an evidentiary hearing was held on Schmidt's second motion for postconviction relief. The State called Breen and Schmidt as witnesses. Schmidt called his wife and his daughter as witnesses. An affidavit of Bauer, the former Jefferson County Attorney who prosecuted the original action against Schmidt for sexual assault, was received in evidence. Attached to the affidavit was the plea letter sent by Bauer to Breen dated November 15, 2006.
In the plea letter, Bauer stated that “[m]y offer of three counts of Sexual Contact (Class IIIA Felonies) still stands.” Breen testified that this plea offer was initially an oral offer, made by Bauer after Breen approached her and asked if the State would be making any plea offers. Specifically, the oral offer provided that if Schmidt pled guilty to three counts of sexual contact with a child, each a Class IIIA felony, the State would dismiss the four remaining counts.
Breen testified further regarding the plea offer and discussions with Schmidt concerning the offer. Breen stated that the oral plea offer was made early in the case and that he discussed the offer with Schmidt while he was incarcerated at the Jefferson County jail. Breen believes that this first discussion occurred before September 7, 2006. He remembered this date because it was when Schmidt's bond was reduced at a bond review hearing, and Schmidt subsequently bonded out of jail on September 11.
During this discussion with Schmidt at the jail, Breen explained that Schmidt would have to plead either guilty or no contest to the Class IIIA felonies. He also explained the elements of the crime of sexual contact with a child. Breen informed Schmidt of the maximum penalty of 5 years and a $10,000 fine per count and that the sentences could run concurrently or consecutively. Breen advised Schmidt that the plea offer was a good deal and recommended accepting it. Schmidt responded that he would have to speak with his wife before agreeing to a deal.
Breen visited Schmidt in jail a second time. Schmidt then informed Breen of his decision not to accept the offer. Schmidt had discussed the offer...
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