State v. Thomas
| Citation | 311 Neb. 989 |
| Decision Date | 15 July 2022 |
| Docket Number | S-21-551 |
| Parties | State of Nebraska, Appellee, v. Rubin J. Thomas, Appellant. |
| Court | Supreme Court of Nebraska |
1. Waiver: Appeal and Error. Whether a party waived his or her right to appellate review is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusions.
3. Pleas: Waiver. A voluntary guilty plea or plea of no contest waives all defenses to a criminal charge.
4. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or no contest, the defendant is limited to challenging whether the plea was understanding and voluntarily made and whether it was the result of ineffective assistance of counsel.
5. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.
6. __:__. To show that counsel's performance was deficient a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.
7.__ __. To show prejudice in a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance the result of the proceeding would have been different.
8. Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
9. Convictions: Effectiveness of Counsel: Pleas Proof. When a conviction is based upon a plea of no contest, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading no contest.
10. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record; otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding.
11. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an appellate court will determine whether the record on appeal is sufficient to review the merits of the ineffective performance claims. The record is sufficient if it establishes either that trial counsel's performance was not deficient, that the appellant will not be able to establish prejudice as a matter of law, or that trial counsel's actions could not be justified as a part of any plausible trial strategy. Conversely, an ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing.
12. Right to Counsel: Waiver: Effectiveness of Counsel. Appointed counsel must remain with an indigent accused unless one of the following conditions is met: (1) The accused knowingly, voluntarily, and intelligently waives the right to counsel and chooses to proceed pro se; (2) appointed counsel is incompetent, in which case new counsel is to be appointed; or (3) the accused chooses to retain private counsel.
13. Judgments: Justiciable Issues. Justiciability issues that do not involve a factual dispute present a question of law.
14. Judges: Recusal. In order to demonstrate that a trial judge should have recused himself or herself, the moving party must show that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown.
15. Judges: Recusal: Presumptions. A defendant seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.
16. Judges: Recusal. Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion directed to a trial judge.
17. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges deficient performance with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction relief to recognize whether the claim was brought before the appellate court.
18. Sentences: Appeal and Error. A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.
19.__:__. When sentences imposed within statutory limits are alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering well-established factors and any applicable legal principles.
20. Judges: Words and Phrases. A judicial abuse of discretion exists only when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
21. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime.
22. __. The sentencing court is not limited to any mathematically applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing judge's observations of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.
Appeal from the District Court for Lancaster County: Susan I. Strong, Judge. Affirmed.
Christopher Eickholt, of Eickholt Law, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Rubin J. Thomas appeals the convictions and sentences resulting from his no contest pleas to changes of conspiracy to commit robbery and conspiracy to commit burglary. Thomas argues the district court erred by not discharging his appointed counsel, by revoking his bond, and by not recusing itself prior to sentencing. He also argues that he received ineffective assistance of counsel and that his sentences were excessive. We affirm.
In October 2019, the State filed an information charging Thomas with two counts of first degree murder and one count of use of a firearm to commit a felony. The murder charge was based on a felony murder theory: the State alleged that on July 24, 2019, Audrea S. Craig and Martae Green were killed during Thomas' perpetration or attempted perpetration of a robbery.
The State later filed an amended information, adding an allegation that Thomas committed attempted burglary on July 11, 2019. This amended information also alleged that, based on prior convictions, Thomas should be sentenced as a habitual criminal.
The State and Thomas eventually reached a plea agreement in April 2021. Pursuant to the plea agreement, the State filed a second amended information charging Thomas with conspiracy to commit robbery and conspiracy to commit burglary. The second amended information alleged that Thomas conspired with others to rob Craig on July 24, 2019, and that he conspired with others to commit a burglary on July 11, 2019. As part of the plea agreement, the State agreed not to pursue other charges regarding these incidents and to dismiss an unrelated charge; Thomas agreed to plead no contest to the charges in the second amended information.
At the plea hearing, the district court asked the State to explain what the evidence would show if the State proceeded with the charges at issue. With respect to the conspiracy to commit burglary charge, the prosecutor stated that on July 11, 2019, Thomas and several other individuals met at a location near 27th and South Streets in Lincoln, Nebraska, where they planned to break into a nearby residence and steal money and/or marijuana. Thomas had been in the residence previously and unlocked a window to allow for easy entrance, but when they arrived at the residence, the window was locked. Members of the group tried to pry the window open and attempted to kick in a door, but when they saw children looking out of a window of the residence, they left the area.
With respect to the conspiracy to commit burglary charge, the prosecutor summarized evidence that a group of individuals planned to break into the same residence to commit a robbery. The group included Thomas; Green; Green's brother, Charles Gresham; and two other individuals. The group gathered on the evening of July 23, 2019, and then in the early morning hours of the next day, Thomas led the group to the area. Green and Gresham entered the residence armed with handguns and threatened Craig and her boyfriend. A struggle ensued and multiple gunshots were fired. Green and Gresham quickly departed. Craig died at the scene as a result of multiple gunshot wounds. Thomas and the others transported Green to a local hospital where he was pronounced dead as a result of a gunshot wound a short time later.
The district court accepted Thomas' no contest pleas to the conspiracy to commit robbery and conspiracy to commit burglary charges and convicted him on both counts. The district court...
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