State v. Valentine, A-18-978.

• Decision Date: 30 July 2019
• Docket Number: No. A-18-978.,A-18-978.
• Parties: STATE OF NEBRASKA, APPELLEE, v. BRANDON W. VALENTINE, APPELLANT.
• Court: Nebraska Court of Appeals

STATE OF NEBRASKA, APPELLEE, v. BRANDON W. VALENTINE, APPELLANT.

No. A-18-978.

NEBRASKA COURT OF APPEALS

July 30, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed.

Joe Nigro, Lancaster County Public Defender, and Shawn Elliott for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

PIRTLE, ARTERBURN, and WELCH, Judges.

WELCH, Judge.

I. INTRODUCTION

Brandon W. Valentine appeals his conviction of manslaughter and the sentence imposed thereon. He contends that the sentence imposed was excessive and raises several claims of ineffective assistance of counsel. For the reasons stated below, we affirm the district court and find that his claims of ineffective assistance of counsel fail except for his claim that his trial counsel was ineffective in failing to challenge certain portions of the presentence investigation report because the record on direct appeal is insufficient to review that claim.

II. STATEMENT OF FACTS

In March 2018, Valentine was driving over 70 miles per hour in a 30 mile-per-hour zone when he crashed into another vehicle. The driver of the other vehicle suffered a broken pelvis and his 8-year-old passenger was killed. Valentine's preliminary breath test measured his breath alcohol concentration at .066 grams of alcohol per 210 liters of his breath. Officers searched Valentine's vehicle after obtaining his consent and discovered the vehicle's airbag control module indicated that 5 seconds prior to the crash, Valentine was driving 85 miles per hour and had slowed to 67 miles per hour at the time of impact. Valentine was charged with manslaughter, a Class IIA felony. See Rev. Stat. § 28-305 (Reissue 2016).

Early in the case, the State filed a motion in limine requesting a Daubert/Schafersman hearing governing the admissibility of "FARO scans and measurements obtained from the FARO scan." See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). The motion acknowledged that the State was "unaware of any Nebraska court that has ruled on the admissibility of a 3D scan or other evidence obtained from the scan." Valentine responded by filing a motion to produce evidence related to FARO scan testing and/or analysis noting that the "science is novel and requires a great deal of expertise to understand" and that, "because the State intends to introduce a novel science that has not been found to be admissible by any Court in the State of Nebraska," Valentine needed a large quantity of materials from the State relating to the FARO scan testing and analysis. After the State sought to endorse an additional expert witness on motor vehicle collisions, Valentine filed a motion in limine objecting to the State's use of a "fantastical high tech projected three dimensional reconstruction" at trial on the grounds that it was cumulative, unfairly prejudicial, would waste time, and would create unnecessary expense. Valentine's motion in limine was denied. He later filed another motion in limine requesting that the court enter an order "prohibiting the State from putting on trial testimony about FARO reconstruction technology and from displaying any images created with FARO reconstruction technology." Further, defense counsel successfully objected to a telephonic deposition of one of the State's expert witnesses, which resulted in the deposition being conducted, in person, in Michigan.

Prior to the scheduled date of the Daubert/Schafersman hearing, Valentine pled guilty to the charged offense. As part of the plea agreement, the State agreed not to file further charges including a potential felony motor vehicle homicide charge.

At the time of the preparation of the presentence investigation report (PSR), Valentine was 23 years old, was a high school graduate, and had been consistently employed. Valentine's criminal history is minimal consisting of two convictions of driving without a valid license. The level of service/case management inventory (LS/CMI) assessed Valentine as a very high risk to reoffend. Factors that contributed to this assessment included that Valentine admitted drinking "maybe a 12-pack" two to three times a week at the time of the accident; his lack of family or friends who would support him in law abiding activity; and his attitude including minimization of his crime. An attachment to the PSR included a witness account which set forth that, shortly prior to the collision, Valentine accelerated to the point that his vehicle fishtailed. Valentine told the interviewing probation officer that he did so because the headlights from his friend's vehicle were shining in his eyes. After the crash, Valentine lied to police officers that he had been going about 45 miles per hour. The interviewing officer noted that Valentine did not seem to recognize anything wrong with the way he accelerated dramatically, did not seem to be accepting full responsibility for the offense, and Valentine negated his own responsibility by asserting that the victim's car pulled out in front of him.

At the sentencing hearing, defense counsel argued that the assessment that Valentine was a very high risk to reoffend lacked foundation. He argued that the risk assessments from the various areas that contributed to that conclusion in the LS/CMI were inappropriate pointing specifically as to Valentine's alcohol use. Defense counsel presented evidence of a blood draw taken shortly after Valentine's preliminary breath test which showed that Valentine had a blood alcohol content of .014 of a gram per 100 milliliters of blood. He argued that the PSR unfairly depicted Valentine as an alcoholic and this offense was not caused by, nor was it about, alcohol.

Defense counsel further argued that Valentine took responsibility for his actions. He then argued that the victim's father pulled out into the road in front of Valentine's vehicle without stopping at a stop sign and should also take some responsibility for the victim's death. Defense counsel also explained that, although the PSR indicated that Valentine looked away from the interviewer and would not really answer a question about the victim's death, Valentine looked away because he "couldn't speak anymore . . . couldn't look the investigator in the eye, because it is an emotional situation for Mr. Valentine too. He takes responsibility . . ."

The court stated:

In determining the appropriate sentence, the Court considers a number of factors. You do stand convicted of a Class IIA felony. It carries a penalty of up to 20 years imprisonment. I certainly take into consideration the comments of your attorney, and your comments and all the information provided in the presentence report.

But in determining the appropriate sentence, one of the most important things the Court has to take into consideration is the protection of the public. I cannot ignore the surrounding facts and circumstances of this crime. By your own acknowledgement you were hungover that morning. You were travelling in a 30 mile per hour speed zone, well in excess of two times the speed limit. Some estimates in excess of 80 miles an hour.

. . . As a result of your actions, a young child died. His father was very seriously injured, and in the photographs, the car that they were riding in was just literally destroyed. The evidence of the speed at which you were travelling in a 30 mile per hour zone.

Having regard for the nature and circumstances of the crime, and the history, character, and condition of the Defendant, the Court finds that imprisonment of the Defendant is necessary for the protection of the public, because the risk is substantial that during any period of probation the Defendant would engage in additional criminal conduct, and because a lesser sentence would depreciate the seriousness of the Defendant's crime and promote disrespect for the law.

The district court sentenced Valentine to 16 to 18 years' imprisonment with credit for 175 days served. Valentine has timely appealed to this court. On appeal, he is represented by different counsel than represented him during trial and sentencing.

III. ASSIGNMENTS OF ERROR

On appeal, Valentine's assignments of error, restated and consolidated, are that: (1) the sentence imposed was excessive; and (2) his trial counsel was ineffective in: (a) failing to provide him with discovery and investigative reports and failing to explain the State's evidence and hispossible defenses which prevented him from making an informed decision about whether to proceed to trial; (b) failing to challenge the admissibility of the State's proposed expert witness or retain an expert for the defense; and (c) failing to adequately represent him at sentencing.

IV. STANDARD OF REVIEW

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018).

Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision. Id.

In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the...