State v. Valdez
| Decision Date | 03 April 2020 |
| Docket Number | No. S-19-475.,S-19-475. |
| Citation | 305 Neb. 441,940 N.W.2d 840 |
| Parties | STATE of Nebraska, appellee, v. Jose A. VALDEZ, appellant. |
| Court | Nebraska Supreme Court |
Matthew A. Headley, Madison County Public Defender, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Funke, J. Jose A. Valdez appeals his conviction and sentence from the district court for Madison County. Valdez pled guilty to enhanced motor vehicle homicide, a Class II felony. The court accepted Valdez’ guilty plea, subject to enhancement, which the parties agreed to address at the time of sentencing. At the sentencing hearing, the issue of enhancement was not addressed and no evidence was adduced on the matter, but the court treated the offense as enhanced and sentenced Valdez to a period of 24 to 25 years’ imprisonment and revoked his driver’s license for 15 years.
Valdez argues that the district court erred in failing to receive evidence of a prior conviction, as required to subject him to enhancement penalties under Neb. Rev. Stat. § 28-306(3)(c) (Reissue 2016). Valdez contends that the sentence should be vacated and the matter remanded to the district court for resentencing as a Class IIA felony. The State agrees that the district court erred in failing to hold an enhancement hearing, but claims that the appropriate remedy is to remand for a new enhancement and sentencing hearing. We remand the cause with direction for a new enhancement and sentencing hearing.
On the evening of December 8, 2017, in Norfolk, Nebraska, Valdez attended a holiday gathering where he consumed alcohol to the point that his ability to operate a vehicle became appreciably diminished. He left the party and drove east on a highway until he attempted to turn left at an intersection. Valdez turned left and crashed into the driver’s side of a vehicle traveling west in the outside lane of the highway.
Upon arrival, officers observed Valdez sitting in the passenger seat of his vehicle, which had extensive front-end damage and sat off the roadway. An officer spoke with Valdez and observed that he was slurring his words, that his eyes were bloodshot and watery, and that he had alcohol on his breath. Valdez admitted to drinking earlier. Another vehicle was located in the intersection which had its driver’s side ripped open. The driver of the second vehicle was unresponsive at the scene. She was taken to a hospital and died from her injuries approximately 1 week later.
Valdez was transported to the emergency room of a Norfolk hospital. A police officer with the Norfolk Police Department had Valdez’ blood drawn pursuant to a search warrant. Valdez had a blood alcohol content of .223 of a gram of alcohol per 100 milliliters of blood.
Valdez was charged with motor vehicle homicide. The State alleged that Valdez was operating the motor vehicle in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010) or Neb. Rev. Stat. § 60-6,197.06 (Cum. Supp. 2016) and that Valdez had a prior conviction of § 60-6,196 or § 60-6,197.06, which would enhance the charge to a Class II felony. Valdez pled guilty to the offense, and in exchange for his plea, the State agreed to recommend a maximum sentence of 25 years’ imprisonment and not pursue additional charges or restitution. The district court accepted Valdez’ plea and found him guilty subject to an enhancement hearing. The parties agreed to take up the issue of enhancement at sentencing, and the court set the matter for a sentencing hearing. During sentencing, the court considered the offense to be enhanced to a Class II felony and sentenced Valdez to a period of 24 to 25 years’ imprisonment, with 1 day of credit for time served, and revoked his driver’s license for 15 years. However, although in its comments the court referred to the fact that Valdez has two prior convictions for driving under the influence (DUI), the court did not receive any evidence regarding the prior convictions and the parties did not address enhancement prior to the court’s pronouncement of sentence.
Valdez assigns that the district court erred in (1) finding him guilty of motor vehicle homicide, a Class II felony, absent proof of enhancement and (2) imposing an excessive sentence. Valdez also argues that his trial counsel was ineffective for failing to (3) file a motion to suppress the blood test results, (4) file a motion for recusal of the trial court, (5) object to evidence introduced by the State at sentencing, and (6) make an effective argument at sentencing.
When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.1
The issue in this case is whether upon remand the trial court may conduct a new enhancement hearing. Valdez argues that his current sentence is invalid, because the court did not receive any evidence on the issue of enhancement, and that based on the State’s failure to present evidence, the court should have found him guilty of a Class IIA felony and sentenced him accordingly. He requests that we remand with instructions for resentencing on the reduced charge. The State agrees that remand is required but claims that pursuant to State v. Oceguera ,2 the appropriate remedy is to remand for a new enhancement and sentencing hearing.
A person commits motor vehicle homicide when he or she causes the death of another unintentionally while engaged in the operation of a motor vehicle in violation of the law of the State of Nebraska or in violation of any city or village ordinance.3 Pursuant to § 28-306(3)(b), if the proximate cause of the death of another is the operation of a motor vehicle in violation of § 60-6,196 (DUI) or § 60-6,197.06 (), motor vehicle homicide is a Class IIA felony. Pursuant to § 28-306(3)(c), if the proximate cause of the death of another is the operation of a motor vehicle in violation of § 60-6,196 or § 60-6,197.06 and the defendant has a prior conviction for a violation of § 60-6,196 or § 60-6,197.06, motor vehicle homicide is a Class II felony.
In a proceeding to enhance a punishment because of prior convictions, the State has the burden to prove such prior convictions.4 Usually, the State will prove a defendant’s prior convictions by introducing certified copies of the prior convictions or transcripts of the prior judgments.5 The existence of a prior conviction and the identity of the accused as the person convicted may be shown by any competent evidence, including the oral testimony of the accused and duly authenticated records maintained by the courts or penal and custodial authorities.6
We find that enhancement of a motor vehicle homicide sentence is analogous to habitual criminal enhancement and enhancement of a DUI sentence. In each of these contexts, the Legislature has provided for the use of prior convictions to enhance a sentence.7 Under § 60-6,197.02(2), the prosecutor is required to present as evidence for purposes of sentence enhancement a court-certified or authenticated copy of the defendant’s prior conviction, which shall be prima facie evidence of such prior conviction. Under § 60-6,197.02(3), the court shall, as part of the judgment of conviction, make a finding on the record as to the number of the convicted person’s prior convictions. The convicted person shall be given the opportunity to review the record of his or her prior convictions, bring mitigating facts to the attention of the court prior to sentencing, and make objections on the record regarding the validity of such prior convictions.8 We conclude that just as in the context of habitual criminal and DUI sentence enhancements, evidence of a prior conviction must be introduced in order to enhance a sentence for motor vehicle homicide.9
The State charged Valdez with motor vehicle homicide, a Class II felony under § 28-306(3)(c). A Class II felony is punishable by 1 to 50 years’ imprisonment.10 Valdez claims that his offense was improperly enhanced to a Class II felony, because the State introduced no evidence of a prior conviction under § 60-6,196 or 60-6,197.06. He claims that without such evidence, the court could have found him guilty only of a Class IIA felony under § 28-306(3)(b). A Class IIA felony is punishable by 0 to 20 years’ imprisonment.11 A sentence is illegal when it is not authorized by the judgment of conviction or when it is greater or less than the permissible statutory penalty for the crime.12 It is undisputed that the trial court did not receive evidence necessary to subject Valdez to the enhanced penalties under § 28-306(3)(c) and that Valdez’ sentence to a period of 24 to 25 years’ imprisonment exceeds the statutory limits for a Class IIA felony. Therefore, Valdez’ sentence is illegal and must be vacated.
The only question that remains is the appropriate remedy for the State’s failure to adduce evidence of a prior conviction. Under our precedent, we have consistently remanded for a new enhancement hearing when the State has failed to produce sufficient evidence of the requisite prior convictions for enhancement purposes.13 While we have not previously addressed this issue in the context of motor vehicle homicide, we have found in the context of habitual criminal enhancement and enhancement of a DUI sentence that the appropriate remedy is to remand for another enhancement hearing.14
In Oceguera , the State failed to present sufficient evidence of three valid prior DUI convictions to support a conviction for a fourth offense and we remanded for a new enhancement hearing.15 In doing so, we recognized that neither our prior case law nor any federal constitutional law prohibits a new enhancement hearing.16 An enhanced sentence imposed on a persistent offender is not viewed as either a new jeopardy or an additional penalty...
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...id. , § 002.01.99 Id. , § 006.05D2.100 Brief for appellant at 31.101 See, Neb. Rev. Stat. § 28-306(1) (Reissue 2016); State v. Valdez , 305 Neb. 441, 940 N.W.2d 840 (2020).102 Brief for appellant at 32.103 See Webb v. Nebraska Dept. of Health & Human Servs. , 301 Neb. 810, 920 N.W.2d 268 (2......
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...appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Valdez, 305 Neb. 441, 940 N.W.2d 840 (2020). An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the......
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...appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Valdez, 305 Neb. 441, 940 N.W.2d 840 (2020); State v. Seaman, supra. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal i......
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...Neb. 606, 894 N.W.2d 349 (2017) ).26 See, Galvan , supra note 10; Guzman , supra note 8.27 Guzman , supra note 8. See State v. Valdez , 305 Neb. 441, 940 N.W.2d 840 (2020).1 See State v. Guzman , 305 Neb. 376, 940 N.W.2d 552 (2020). See, also, State v. Dill , 300 Neb. 344, 913 N.W.2d 470 ...