State v. Anthony

29 Neb.App. 839

961 N.W.2d 545

STATE of Nebraska, appellee and cross-appellant,

v.Ricky Earl ANTHONY, appellant and cross-appellee.

No. A-20-644.

Court of Appeals of Nebraska.

Filed May 11, 2021.

Julie E. Bear, of Reinsch, Slattery, Bear, Minahan & Prickett, P.C., L.L.O., Plattsmouth, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.

Pirtle, Chief Judge, and Arterburn and Welch, Judges.

Arterburn, Judge.

I. INTRODUCTION

Following Ricky Earl Anthony's motion for postconviction relief, the district court for Otoe County granted his motion in the form of a new direct appeal. Pursuant to that order, Anthony has filed this direct appeal of his plea-based convictions of two counts of motor vehicle homicide. On appeal, Anthony challenges the district court's finding that he is a habitual criminal. He also asserts that the district court erred in imposing excessive sentences and that he received ineffective assistance of trial counsel. We affirm Anthony's convictions and sentences.

II. BACKGROUND

On December 10, 2018, an information was filed in the district court, charging Anthony with five offenses: two counts of motor vehicle homicide, in violation of Neb. Rev. Stat. § 28-306 (Reissue 2016), a Class IIIA felony; one count of leaving the scene of an injury accident causing serious bodily injury or death, in violation of Neb. Rev. Stat. § 60-698 (Cum. Supp. 2020), a Class III felony; one count of willful reckless driving, second offense, in violation of Neb. Rev. Stat. § 60-6,214 (Reissue 2010), a Class II misdemeanor; and one count of driving under revocation, third offense, in violation of Neb. Rev. Stat. § 60-4,108(1) (Cum. Supp. 2020), a Class II misdemeanor. The information also alleged that Anthony was a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 2016).

Subsequently, both Anthony and the State appeared before the district court and indicated that they had reached a plea agreement. The plea agreement required Anthony to plead guilty or no contest to an amended information which charged him with only two counts of motor vehicle homicide. In exchange for Anthony's pleas, the State agreed to dismiss the other charges contained in the original information. In addition, the State agreed to jointly recommend a concurrent sentence for the two counts of motor vehicle homicide. The amended information included an allegation that Anthony was a habitual criminal.

The parties informed the court that because Anthony was not stipulating to his status as a habitual criminal as a part of the plea agreement, a hearing would have to be held wherein the State would have to prove that he was a habitual criminal.

Upon the district court's inquiry, Anthony indicated that the plea agreement described to the court reflected the entirety of the agreement between him and the State. He stated that no one had threatened him or promised him anything other than what was contained in the plea agreement to compel him to change his previously entered not guilty pleas. Anthony also affirmed that he understood the charges contained in the amended information and the possible penalties associated with those charges. He indicated an understanding that the court was not bound by the joint sentencing recommendation made by the State and his counsel. Anthony affirmed that he understood the constitutional rights he was waiving by entering a guilty or no contest plea. He stated that he had told his attorney everything he knew about the case and about any possible defenses he might have. He declined an opportunity to speak further with his counsel.

Anthony indicated his intention to change his not guilty pleas to pleas of no contest. The State then provided a factual basis to support Anthony's no contest pleas. According to that factual basis, during the evening hours of October 21, 2018, law enforcement officers were dispatched to a two-vehicle accident in rural Otoe County, Nebraska. Upon arrival, law enforcement officers observed a gray sport utility vehicle (SUV) and a red pickup truck, both of which appeared to have been involved in the accident. There was no one inside of the gray SUV, but one of the doors was open and there was loud music still playing from it. There were two passengers located inside of the red pickup truck, which had rolled onto its top. The front seat passenger was pronounced dead at the scene. The back seat passenger was transported to a hospital and pronounced dead a short time later. The driver of the red pickup truck sustained serious injuries and was also transported to the hospital, where he was treated and eventually released.

Witnesses to the accident reported that the gray SUV had been traveling northbound on the two-lane highway when the driver had suddenly veered into the southbound lane in front of the red pickup truck. The red pickup truck apparently attempted to avoid colliding with the gray SUV, but the evasive attempt was unsuccessful and the vehicles collided head on. A subsequent accident reconstruction investigation revealed that the northbound gray SUV was traveling partially on the southbound shoulder of the highway just prior to the accident. The red pickup truck attempted to move to the left to avoid the accident, just as the gray SUV attempted to return to the northbound lane. The vehicles collided "nearly in the middle of the roadway."

Law enforcement officers were unable to locate the driver of the gray SUV at the accident scene. Officers searched a cornfield which was adjacent to the highway and employed a helicopter in an attempt to find the driver. Officers then utilized the name listed upon the registration of the gray SUV to identify its owner. From that investigation, officers learned that Anthony had been driving the gray SUV at the time of the accident. Anthony was located a little while later at a motel in Falls City, Nebraska. He attempted to hide from law enforcement officers, but was ultimately arrested and confessed to being the driver of the gray SUV.

The district court found that Anthony understood the nature of the charges against him and the possible penalties; that his no contest pleas were made freely, voluntarily, knowingly, and intelligently; and that the factual basis supported his pleas. The court then accepted Anthony's no contest pleas to two counts of motor vehicle homicide. The court ordered that a presentence report be completed.

The presentence report revealed that Anthony was 55 years old and obtained his diploma through the GED program during a previous period of incarceration. At the time of his arrest for the current offense, he was briefly employed at a motel. Before that, he was employed as a seasonal construction worker.

Anthony has a lengthy criminal history, which includes numerous traffic-related offenses. His history includes convictions for second degree forgery, theft by receiving stolen property, shoplifting, theft by unlawful taking (3 times), driving during a period of suspension (13 times), driving during a period of revocation, driving under the influence (3 times), leaving the scene of an accident, possession of drug paraphernalia (3 times), reckless driving (2 times), no proof of insurance (2 times), carrying a concealed weapon, trespassing, failure to appear (2 times), and damage to property. As a result of his convictions, Anthony has been sentenced to prison on two occasions, to jail on numerous occasions, and to a period of probation on three occasions. His probation was revoked two out of his three probationary periods.

In addition to his prior convictions, 3 months prior to the current offense, Anthony was charged with driving under the influence (second offense), possession of an open alcohol container, and failure to appear. The disposition of these offenses is not clear from our record.

During his interview for the presentence report, Anthony initially denied responsibility for the accident which gave rise to his current charges. He stated, " ‘I didn't cause the accident in my opinion. It wouldn't have happened if [the driver of the red pickup truck] would have stayed in his lane.’ " Anthony denied that he was under the influence of either drugs or alcohol at the time of the accident. Later during the interview, Anthony stated, " ‘I feel I'm at fault because I chose to pass the vehicle. I am so sorry for them losing their loved ones.’ "

Testing conducted by the probation office as a part of the presentence report revealed that Anthony posed a "high risk" of reoffense.

Immediately prior to the sentencing hearing, the district court conducted a hearing to consider the State's charge that Anthony was a habitual criminal. Based on evidence presented by the State, the court found that Anthony had two prior convictions, each of which involved a sentence of not less than 1 year: a conviction in 1992 for theft by receiving stolen property, for which he was sentenced to 1 year's imprisonment, and a conviction in 1995 for theft, for which he was sentenced to 3 to 5 years’ imprisonment. The court further found that Anthony was represented by counsel in each prior conviction. The court found that Anthony was a habitual criminal. The court there-after sentenced Anthony to 20 to 40 years’ imprisonment on each conviction, to be served concurrently. As a part of the sentence, Anthony was required to serve a mandatory minimum of 10 years in prison.

Anthony, acting pro se, filed a notice of appeal from his convictions and sentences. However, the notice of appeal in case No. A-19-1160 was filed more than 30 days after entry of the district court's sentencing order and was, as a result, summarily dismissed on December 27, 2019, by this court as having been untimely filed.

Anthony then filed a verified motion to vacate and set aside his convictions, alleging, among other things, that his trial counsel failed to file a direct appeal from his convictions and sentences despite Anthony's explicit request for...