State v. Shaw, 42198

• Decision Date: 27 March 1979
• Docket Number: No. 42198,42198
• Citation: 202 Neb. 766,277 N.W.2d 106
• Parties: STATE of Nebraska, Appellee, v. David A. SHAW, Sr., Appellant.
• Court: Nebraska Supreme Court

Page 106

277 N.W.2d 106

202 Neb. 766

STATE of Nebraska, Appellee, v. David A. SHAW, Sr., Appellant.

No. 42198.

Supreme Court of Nebraska.

March 27, 1979.

Syllabus by the Court

1. Before a criminal matter may be appealed to the Supreme Court, it must be a final judgment, and no judgment will be regarded as final unless the sentence is pronounced.

2. Pursuant to section 29-2902, R.R.S.1943, criminal proceedings in a case in which there is probable cause to believe that the defendant is a sexual sociopath may be adjourned and the sentence suspended until proceedings pursuant to the sexual sociopath law have been completed. Upon completion of those proceedings, at the earliest possible time thereafter, the defendant is to be returned to the District Court wherein he was convicted. At that time an appropriate sentence on the criminal charges is to be imposed. Such sentence shall be deemed to commence from such time as the defendant is committed to either the Nebraska Regional Center or the Nebraska Penal and Correctional Complex, less any credit for time already spent in incarceration. No defendant shall be required to remain in custody for a period of time longer than the sentence imposed for the criminal charge or until such time as defendant is determined to be a subject fit for release pursuant to the provisions of the sexual sociopath law, whichever later occurs.

Michael D. Gooch, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., Marilyn B. Hutchinson, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

KRIVOSHA, Chief Justice.

This appeal is from an order of the District Court for Sarpy County, Nebraska, denying defendant's motion for post conviction relief. Defendant assigns as error: (1) That the trial court erred in finding that post conviction relief was not the proper remedy for defendant; and (2) that the trial court erred in failing to find that defendant had been denied his constitutional right to effective assistance of counsel as guaranteed by the Sixth Amendment, made applicable to the states by the Fourteenth Amendment to the United States Constitution. We have carefully examined the record in this matter and find the decision reached by the trial court was basically correct and should be affirmed. Nevertheless, we believe this case displays some of the painful ambiguities found in the Nebraska sexual sociopath law (sections 29-2901 to 29-2910, R.R.S.1943), which therefore require us to make a detailed examination of this case. The uncertainty caused by the law requires us to declare certain principles which will resolve both the instant case and subsequent cases brought pursuant to the sexual sociopath law.

The evidence discloses the defendant was charged with the commission of a sexual assault in violation of section 28-408.04, R.R.S.1943. On June 8, 1977, defendant appeared at arraignment with his court-appointed counsel and entered a plea of guilty to the charge. The record discloses that by reason of entering such a plea of guilty the county attorney agreed to dismiss two other charges then pending against defendant, and agreed further not to file an additional charge against defendant.

After receiving the plea of guilty, the court made inquiry of defendant as to whether he had ever been involved in any prior sexual offenses and was advised that defendant had so been involved. The court announced all further proceedings on the sexual assault charge would then be suspended, and that the matter would proceed pursuant to the provisions of the sexual sociopath law. It would appear this came as no surprise to defendant or his counsel. The record specifically disclosed that, prior to the hearing on June 8, 1977, the court and counsel had discussed the possibility of determining whether defendant was a sexual sociopath.

On July 13, 1977, defendant again appeared before the trial judge with his court-appointed counsel. At that time, defendant waived his right to postpone for 10 days a hearing on the probability of his being a sexual sociopath and asked the court to proceed at once on the matter. The court received two medical evaluations and by reason thereof found defendant to be a sexual sociopath. On July 13, 1977, the court further ordered defendant committed to the Nebraska Regional Center for observation and diagnosis pursuant to the provisions of section 29-2903, R.R.S.1943, for a period not to exceed 90 days.

On September 7, 1977, defendant appeared before the District Court with his court-appointed counsel and waived his right to a jury trial on the issues of whether defendant was a sexual sociopath and if so, whether defendant was treatable.

On October 27, 1977, defendant appeared in the District Court with his court-appointed counsel and was found by the District Court to be a sexual sociopath. The court further found defendant would not benefit from treatment at the Nebraska Regional Center. Defendant was therefore committed to the Nebraska Penal and Correctional Complex for an indefinite period, pursuant to the provisions of section 29-2903(3), R.R.S.1943. No appeal was taken from either the plea of guilty to the sexual assault charge entered by defendant on June 8, 1977, or from the finding and order as to his sexual sociopath status which the District Court entered on October 27, 1977.

Sometime in April of 1978, defendant filed a motion for post conviction relief, maintaining he received ineffective assistance of counsel, thereby denying him his constitutional rights. An evidentiary hearing on the motion was held before the District Court for Sarpy County, Nebraska, on June 1, 1978, with defendant present in court. At this time the defendant was represented by Mr. Michael Gooch who subsequently was appointed by the court to represent defendant in the post conviction matter.

Defendant maintained that he had requested his initial court-appointed counsel to appeal from the order of the court entered on October 27, 1977.

His initial court-appointed attorney testified that he had in fact discussed with defendant the matter of appealing both the plea entered on June 8, 1977, as well as the order entered on October 27, 1977, but had advised defendant that, in counsel's opinion, appeal would be unsuccessful in either case. He further testified the defendant did not indicate any desire to appeal either from his plea of guilty entered on June 8, 1977, or from the order of the court entered on October 27, 1977.

The record is somewhat unclear as to whether the trial court denied defendant relief by reason of the court's determination that post conviction relief was not proper or because defendant had not been denied the assistance of effective counsel in fact. While the trial judge indicated he was not certain whether post conviction relief was applicable in this case, he nevertheless made positive findings to the same extent as would have been made had post conviction relief been available. Confusion occurred in the trial court's mind by reason of the fact that defendant had never been sentenced on the sexual assault charge. Since the provisions of the Post Conviction Act apply to prisoners in custody Under sentence, the availability of this remedy was questioned by the trial court. § 29-3001, R.R.S.1943.

Failure to impose a sentence on the...