State v. Trackwell

• Decision Date: 10 May 1996
• Docket Number: No. S-95-278,S-95-278
• Citation: 250 Neb. 46,547 N.W.2d 471
• Parties: STATE of Nebraska, Appellee, v. Lloyd R. TRACKWELL, Jr., Appellant.
• Court: Nebraska Supreme Court

Page 471

547 N.W.2d 471

250 Neb. 46

STATE of Nebraska, Appellee, v. Lloyd R. TRACKWELL, Jr., Appellant.

No. S-95-278.

Supreme Court of Nebraska.

May 10, 1996.

Syllabus by the Court

1. Records: Appeal and Error. It is incumbent upon an appellant to present a record which supports the errors assigned; absent such a record, as a general rule, the decision of the lower court as to those errors is to be affirmed.

2. Records: Appeal and Error. In reviewing the decision of a lower court, an appellate court considers only evidence included within the record.

3. Pleas: Waiver. The voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge, whether the defense is procedural, statutory, or constitutional.

4. Criminal Law: Appeal and Error. A defendant in a criminal case may not take advantage of an alleged error which the defendant invited the trial court to commit.

5. Pleas. Absent some evidence of physical or mental coercion, whatever stress a defendant perceives from litigation alone cannot invalidate his plea.

6. Pleas. A guilty plea is not compelled and invalid when it is motivated by the defendant's desire to accept the probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction.

7. Pleas. Before accepting a plea of guilty, the court must inform the defendant of the nature of the charge, the right to assistance of counsel, the right to confront adverse witnesses, the right to trial by jury, and the privilege against self-incrimination.

8. Criminal Law: Right to Counsel. A criminal defendant who is represented by counsel need not be informed that she or he has a right to be so represented.

9. Right to Counsel: Waiver. Where retained counsel has not withdrawn or moved to withdraw, a defendant's comments that he is running out of money do not, without more, raise an inference that the defendant is about to waive involuntarily his right to counsel.

10. Constitutional Law: Right to Counsel. The presence of a defendant at trial with no representation whatsoever is a red flag to a trial court that some inquiry may be necessary as to why he is unrepresented; the clear response of a defendant that he has no attorney because he cannot afford to hire private counsel is a plain warning that a Sixth Amendment violation may be underway.

11. Constitutional Law: Attorney and Client. While it may be private counsel's professional duty to apprise a defendant of his rights, it is not his constitutional duty; it is, however, the state's constitutional duty to inform a defendant of his rights, and the trial court acts as the representative of the state in discharging that duty.

David L. Kimble, Seward, for appellant.

Lloyd R. Trackwell, Jr., pro se.

Don Stenberg, Attorney General, and Mark D. Starr, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

WHITE, Chief Justice.

Aggrieved by his conviction for attempted second degree sexual assault upon a no contest plea, Lloyd R. Trackwell, Jr., asks this court to find that the trial court accepted his plea despite that it was allegedly neither knowing nor voluntary. We disagree, and affirm.

The conviction from which Trackwell appeals resulted from his third trial for one offense. Trackwell was charged with first degree sexual assault on June 2, 1992. The first trial of this charge ended in a jury verdict finding Trackwell guilty as charged; he was sentenced to not less than 10 nor more than 50 years' imprisonment. This court reversed that verdict, finding that the prosecutor had made improper comments in her closing argument that amounted to prejudicial error. See State v. Trackwell, 244 Neb. 925, 509 N.W.2d 638 (1994). The second trial ended when the trial court declared a mistrial because the jury was unable to reach a verdict.

Trackwell began his third trial maintaining the defense he had proffered at the earlier trials: that he was not guilty because the victim had consented to sexual intercourse, subsequently demanded payment for her services, and then fabricated sexual assault charges when Trackwell refused to pay. The State called the victim as its first witness; after the first day of her testimony, Trackwell decided to plead no contest to the lesser offense of attempted second degree sexual assault. The trial court accepted Trackwell's plea and sentenced him to imprisonment for not less than 20 months nor more than 5 years. Trackwell was to serve this sentence consecutively to his sentence for another, unrelated conviction.

After Trackwell began serving his sentence for the other conviction, he requested and received appointed counsel to appeal his conviction in this case. His attorney, the Seward County public defender, filed a brief assigning two errors: that Trackwell's sentence was excessive and that the trial court erred in accepting Trackwell's plea without informing Trackwell of his right to counsel and without examining Trackwell to ensure that he understood that right. Dissatisfied with the public defender's effort, Trackwell fired him, complaining that due to Trackwell's present difficulties, he did not trust any attorney from Seward County. In particular, Trackwell criticized the refusal to assign certain errors that Trackwell considered meritorious.

Trackwell, acting pro se, then submitted a series of revised briefs in lieu of his former attorney's brief, which were stricken. The most recent brief assigns eight errors. Three errors concern the decision of the trial court to allow the reading of prior sworn testimony of an unavailable witness during Trackwell's second trial, and one error concerns the trial court's decision to limit cross-examination of a defense witness during the second trial. Given that the second trial resulted in a mistrial and given that Trackwell decided to plead no contest early in the third trial before either of those particular witnesses was called, whatever error might have inhered in those decisions has no bearing on the trial that resulted in Trackwell's conviction. Those assigned errors are without merit.

Trackwell also assigns a host of errors that allege misconduct on the part of the trial judge and prosecutor. Specifically, Trackwell claims that "[t]he Seward County Attorney violated Disciplinary Rules by intentionally ignoring ongoing criminal activity on the part of the district court judge ... thereby prejudicing the appellant's rights to a fair impartial trial." In support of this error, Trackwell includes in the transcript a number of newspaper articles reporting allegations of misconduct against the trial judge. Trackwell does not offer evidence of how such allegations affected the outcome of his case, other than to argue in his brief that the allegations against the trial judge "create[d] a question of viability of his view of the wrongful actions of someone else in a case involving sexual misconduct." Pro se supplemental brief for appellant at 26.

This falls far short of a sufficient basis for this court to find that the trial judge deliberately "threw" the outcome of Trackwell's case. It is incumbent upon an appellant to present a record which supports the errors assigned; absent such a record, as a general rule, the decision of the lower court as to those errors is to be affirmed. State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994). As the record does not support Trackwell's theories of the judge's motives for ruling as he did, we dismiss this assignment of error.

Trackwell alleges that the county attorney knew of the allegations against the trial judge and failed to either request him to recuse himself or "investigate and inform opposing counsel of the situation." Pro se supplemental brief for appellant at 25. Trackwell further alleges that the county attorney deviously used her knowledge of the allegations against the trial judge to extort rulings in her favor throughout the litigation of Trackwell's case. In particular, Trackwell argues that

[i]n light of some of the questionable decisions the court made in the prosecution's favor there is created the impression that perhaps the county attorney had informed the judge of the complaints against him and utilized such information to her advantage by persuading the court to rule in the State's favor.

Id.

In reviewing the decision of a lower court, this court considers only evidence included within the record. State v. Covarrubias, 244 Neb. 366, 507 N.W.2d 248 (1993). We find absolutely no evidence in the record, other than Trackwell's bare allegations in his third revised pro se supplemental brief, to support this allegation. The assignments of error alleging misconduct by the trial judge and the county attorney are dismissed.

Trackwell has also assigned as error the quality of appointed counsel's representation on appeal. Trackwell argues that in refusing to include the above-listed assignments of error alleging misconduct by the trial judge and the county attorney, appointed counsel erred; Trackwell is wrong. He further argues that the public defender hired another party to compose his brief; this is unsupported by the record and, even if true, is irrelevant.

We are left, then, with one assignment of error worthy of discussion: whether the trial court erred in accepting Trackwell's no contest plea. This court has held that the voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge, whether the defense is procedural, statutory, or constitutional. State v. Biernacki, 237 Neb. 215, 465 N.W.2d 732 (1991). Trackwell alleges that his defenses remain viable, because his plea was not knowingly and voluntarily entered. This argument seems to include three allegations, the first of which derives from the presence of the jury during Trackwell's plea hearing. Trackwell argues that the jury would have been irredeemably tainted and unable to continue its impartial receipt...