State v. Vanness
| Decision Date | 08 June 2018 |
| Docket Number | No. S-17-687.,S-17-687. |
| Citation | 300 Neb. 159,912 N.W.2d 736 |
| Parties | STATE of Nebraska, appellee, v. Kelly A. VANNESS, appellant. |
| Court | Nebraska Supreme Court |
Martin V. Klein, Omaha, of Carney Law, P.C., for appellant.
Douglas J. Peterson, Attorney General, Joe Meyer, and Nathan A. Liss, Lincoln, for appellee.
Kelly A. Vanness accepted a plea agreement and entered pleas to four charges in the district court for Holt County, for which she was convicted and sentenced to a combined 22 to 22 months’ imprisonment with periods of postrelease supervision. Vanness claims that trial counsel was ineffective in various respects. She also appeals her sentences, claiming they are excessive and an abuse of discretion. The State notes two possible points of plain error in connection with the sentencing. The State notes that (1) the district court incorrectly advised Vanness that conviction of a Class IV felony carries a maximum of 5 years in prison, whereas the actual sentence maximum was 2 years, and (2) the district court "may" have imposed an indeterminate sentence, whereas the applicable statutes for the convictions on three of the counts require determinate sentences. We affirm Vanness’ convictions and modify certain sentences, as we explain below.
In an information filed December 22, 2015, in the district court for Holt County, Vanness was charged with four counts consisting of the following: operating a motor vehicle during a time of suspension, Neb. Rev. Stat. § 60-4,108 (Cum. Supp. 2016), a Class III misdemeanor (Count 1); possession of a controlled substance (methamphetamine), Neb. Rev. Stat. § 28-416(3) (Supp. 2015), a Class IV felony (Count 2); possession of a controlled substance (hydrocodone), § 28-416(3), a Class IV felony (Count 3); and possession of drug paraphernalia, Neb. Rev. Stat. § 28-441 (Reissue 2016), an infraction (Count 4).
On February 8, 2016, Vanness pled guilty to all counts alleged in the information. At the plea hearing, Vanness stated that she was present in Holt County on September 13, 2015, operating a motor vehicle with a driver’s license which had been suspended for the reason that the insurance had expired. She stated that she was in possession of methamphetamine and hydrocodone which was not prescribed to her, and a pipe recognized as drug paraphernalia. The district court found that a factual basis existed for the pleas of guilty.
At the plea hearing, the district court informed Vanness of her constitutional rights and that by pleading, she would be giving up these enumerated rights; Vanness stated that she understood and still wished to plead. The district court also inquired about Vanness’ satisfaction with her trial counsel, which we recite in greater detail below. The district court found that Vanness understood her constitutional and statutory rights and that her pleas were made freely, voluntarily, knowingly, and intelligently. The court accepted the pleas of guilty and found Vanness guilty of all charges.
The district court postponed sentencing pending Vanness’ participation in the "North Central Problem Solving Court." However, her participation in the problem-solving court was terminated on April 10, 2017.
On June 6, 2017, following preparation of a presentence investigation report, the district court pronounced the sentence of 60 to 60 days’ imprisonment for the conviction on Count 1, to run concurrently with all sentences imposed. For the conviction on Count 2, she was sentenced to 12 to 12 months’ imprisonment with 9 months of postrelease supervision, with credit for 26 days served, to run consecutively to other sentences.
For the conviction on Count 3, the district court sentenced Vanness to 10 to 10 months’ imprisonment, to run consecutively to other sentences, with a period of 9 months of successive and additional postrelease supervision. Vanness was fined $100 for the conviction on Count 4.
This appeal followed.
Vanness claims that her trial counsel was ineffective in various respects and that the district court erred by imposing excessive sentences.
Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. State v. Mora , 298 Neb. 185, 903 N.W.2d 244 (2017). In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance. Id .
Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. State v. Ramirez , 287 Neb. 356, 842 N.W.2d 694 (2014).
As we explain below, with regard to Vanness’ claims of ineffectiveness of trial counsel, we are unable to reach the merits of her claim that trial counsel had a conflict of interest, but we determine that her other claims of ineffectiveness are refuted by the record. We determine that the sentences imposed on Vanness’ convictions did not exceed the statutory limits, and we find no abuse of discretion in connection with the district court’s rationale in sentencing. However, we find plain error in the sentences imposed for the convictions on Counts 1, 2, and 3, because the district court pronounced indeterminate sentences where determinate sentences were required by statutes. Accordingly, we affirm Vanness’ convictions and modify her sentences for the convictions on Counts 1, 2, and 3.
Vanness is represented on direct appeal by counsel different from the counsel who represented her at trial. 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. State v. Lane , 299 Neb. 170, 907 N.W.2d 737 (2018). Otherwise, the issue will be procedurally barred. Id. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. Id. The determining factor is whether the record is sufficient to adequately review the question. Id.
An appellate court can determine whether the record proves or rebuts the merits of a claim of ineffective assistance of trial counsel only if it has knowledge of the specific conduct alleged to constitute deficient performance. Id. An ineffective assistance of counsel claim is raised on direct appeal when allegations of deficient performance are made 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 be able to recognize whether the claim was brought before the appellate court. Id.
Vanness asserts that she was denied effective assistance of trial counsel because of an actual conflict of interest arising out of counsel’s representation of another individual. Vanness specifically notes that her trial counsel also represented another person who was arrested with Vanness and that their cases were consolidated for purposes of their plea hearings. Vanness contends that because the other defendant sold the drugs involved in this case and the drugs belonged to the other defendant, an actual conflict existed.
The fact of multiple representation alone is not a per se violation of the Sixth Amendment. State v. Narcisse , 260 Neb. 55, 615 N.W.2d 110 (2000). A defendant who raised no objection at trial must show that an actual conflict of interest existed. State v. Cotton , 299 Neb. 650, 910 N.W.2d 102 (2018). When an actual conflict exists, there is no need to show that the conflict resulted in actual prejudice to the defendant. Id . If the defendant shows that his or her defense counsel faced a situation in which conflicting loyalties pointed in opposite directions and that his or her counsel acted for the other client’s interests or the counsel’s own personal interests and against the defendant’s interests, prejudice is presumed. Id . A conflict of interest must be actual, rather than speculative or hypothetical, before a court can overturn a conviction because of ineffective assistance of counsel. Id .
Although Vanness’ allegation regarding an alleged conflict of interest of her trial counsel due to multiple representation is sufficiently stated, the record is insufficient to review it in this direct appeal.
On appeal, Vanness claims that drugs found at the scene of the arrest belonged to another individual and that her trial counsel failed to investigate a possible defense of innocence. The files and records of the case affirmatively show that this allegation of ineffectiveness of counsel has no merit. At the plea hearing, the trial judge specifically asked whether Vanness explained to her trial counsel all theories of defense that she might have or could think of, and whether her trial counsel investigated the defenses which she thought she might have to her satisfaction. Vanness responded "[y]es" to both inquiries.
Vanness further claims that her trial counsel advised her to plead guilty because she would receive "a lenient sentence." Brief for appellant at 10. This allegation of ineffectiveness of counsel has no merit. During the colloquy at the plea hearing, Vanness denied that...
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