State v. Belk, A-13-466

STATE OF NEBRASKA, APPELLEE, v. JOSHUA E. BELK, APPELLANT.

No. A-13-466

NEBRASKA COURT OF APPEALS

Filed December 24, 2013

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

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 Platte County: ROBERT R. STEINKE, Judge. Affirmed.

James C. Stecker for appellant.

Jon Bruning, Attorney General, and Carrie A. Thober for appellee.

MOORE, PIRTLE, and BISHOP, Judges.

BISHOP, Judge.

The Platte County District Court accepted Joshua E. Belk's no contest pleas to two counts of first degree sexual assault and one count of incest. Prior to sentencing, Belk sought to withdraw his pleas. The district court denied Belk's motion to withdraw his pleas and sentenced him on each count. Belk now appeals, contending that the district court erred in overruling his motion to withdraw his pleas. Belk also asserts that his trial counsel was ineffective. Because we find the trial court did not abuse its discretion in denying Belk's motion to withdraw his pleas, we affirm the order of the district court. We further find the record is insufficient to address Belk's claims for ineffective assistance of counsel on direct appeal.

BACKGROUND

Belk was initially charged on May 11, 2012, with three counts of first degree sexual assault of a child, each a Class IB felony, and one count of incest, a Class III felony. The State later amended the information to three counts of sexual assault of a child, second offense, each a Class IB felony with a mandatory minimum sentence of 25 years in prison, and one count of incest. Belk pled not guilty.

Belk's trial counsel, consisting of a deputy public defender and an attorney from the Nebraska Commission on Public Advocacy, filed several pretrial motions on behalf of Belk. At a hearing on January 2, 2013, Belk requested a continuance to hire new counsel, and the court scheduled a hearing on Belk's pending pretrial motions for February 27, 2013. Belk did not obtain new counsel.

On February 27, 2013, a hearing was held on a plea agreement reached between the State and Belk. Belk appeared with the deputy public defender as his counsel. Pursuant to the plea agreement, Belk agreed to plead to the second amended information filed by the State on February 26, 2013, which charged him with two counts of first degree sexual assault, each a Class II felony, and one count of incest. The State would not make a recommendation as to sentencing. The court asked Belk if the above terms represented the plea agreement as he understood it, to which Belk replied, "Yeah." Belk further responded that there were no other terms of the plea agreement he believed existed and that he was in agreement with the plea.

The court recited to Belk the charges contained in the second amended information, the maximum and minimum penalties for each charge, and the three pleas available to Belk and the consequences or results of each. Belk responded that he understood the above information and had no questions.

The court advised and explained to Belk all of his constitutional and statutory rights, including his right to a jury trial. When the court asked Belk if he understood his rights, he responded, "Yes." The court explained to Belk that if the court accepts a plea of guilty or no contest, he would waive all his constitutional and statutory rights except the right to counsel or appeal. The court asked Belk if he understood, and Belk replied, "Yes."

After the court advised Belk of his rights, Belk pled no contest to each of the three charges contained in the second amended information. The court advised Belk that if the court accepts his pleas of no contest and finds him guilty based on his pleas, he will be deemed to have waived all his constitutional and statutory rights as explained to him, except his right to be represented by counsel and his right to appeal. Belk again indicated that he understood and that it was his desire to waive these rights as explained and to accept the plea agreement.

The State's factual basis for Belk's convictions was as follows:

On or between November 15th, 2011[,] and February 20th, 2012, as well as on or between March 9, 2012[,] and April 2 of 2012, . . . Belk, having a date of birth [April 1973], did subject a victim identified by initials, J.M.P., date of birth [June 2002], to sexual penetration, without her consent, while living at . . . Columbus, Platte County, Nebraska.

Throughout these two time periods, [Belk] was the stepfather of J.M.P. by virtue of being married to J.M.P.'s biological mother. All these events occurred in Columbus, Platte County, Nebraska.

The State's evidence of sexual penetration would satisfy the statutory definition of penile/vaginal penetration.

After the above factual basis was given, the Court again asked Belk if he wished to enter no contest pleas to all three counts of the second amended felony information, and Belk replied, "Yeah." The court asked Belk, "Do you wish the Court to accept your no contest pleas and findyou guilty based on them to all three counts of the second amended felony information?" Belk responded, "Yeah." The court accepted Belk's pleas and found him guilty of two counts of first degree sexual assault and one count of incest.

Belk filed a motion to withdraw his pleas of no contest on March 13, 2013. At a hearing on April 4, the deputy public defender appeared as counsel for Belk and requested that defense counsel be permitted to withdraw from further representation because Belk sought to withdraw his pleas due to alleged pressure from the deputy public defender and the attorney from the Nebraska Commission on Public Advocacy. On April 5, the court entered an order permitting those two attorneys leave to withdraw as counsel and appointed new legal counsel to represent Belk on his motion to withdraw his pleas.

A hearing on Belk's motion to withdraw his pleas was held May 2, 2013. At the hearing, Belk proclaimed his innocence and testified he accepted the plea deal due to pressure from his trial counsel. The State offered no evidence.

On May 10, 2013, the district court overruled Belk's motion to withdraw his pleas, finding he did not meet his burden of establishing a fair and just reason in support of his request to withdraw his no contest pleas.

On May 17, 2013, the district court sentenced Belk to 35 to 40 years' imprisonment for each first degree sexual assault conviction, and to 5 to 10 years' imprisonment for the incest conviction, all sentences to be served concurrently, with credit for 384 days for time served. Belk now appeals.

ASSIGNMENTS OF ERROR

Belk assigns two errors on appeal: (1) The district court erred in not permitting him to withdraw his pleas of no contest prior to sentencing and (2) his trial counsel was ineffective.

STANDARD OF REVIEW

Prior to sentencing, the withdrawal of a plea forming the basis of a conviction is addressed to the discretion of the trial court, and its ruling will not be disturbed on appeal absent an abuse of discretion. State v. Williams, 276 Neb. 716, 757 N.W.2d 187 (2008).

ANALYSIS

Withdrawal of Pleas.

Belk argues that pressure by his trial counsel and his profession of innocence at the hearing to withdraw his pleas are fair and just reasons to withdraw his pleas of no contest to two counts of first degree sexual assault and one count of incest. Upon our review of the record, we cannot say the trial court abused its discretion in denying Belk's motion to withdraw his pleas.

After the entry of a plea of guilty or no contest, but before sentencing, a court, in its discretion, may allow a defendant to withdraw his plea for any fair and just reason, provided that the prosecution has not been or would not be substantially prejudiced by its reliance on the plea entered. State v. Williams, 276 Neb. 716, 757 N.W.2d 187 (2008). The burden is on the defendant to establish by clear and convincing evidence the grounds for withdrawal of a plea. Id. The right to withdraw a plea previously entered is not absolute. State v. Schanaman, 286 Neb. 125, 835 N.W.2d 66 (2013).

We first address Belk's argument that he was pressured into accepting the plea agreement by his trial counsel. At the hearing on Belk's motion to withdraw his pleas, Belk testified that he felt pressured, threatened, and abandoned by his trial counsel and that he felt his only options, according to his counsel, were to plead or "lose miserably" at trial.

While the record in the present case does reflect that Belk was unhappy with his trial counsel and that they had disagreements about whether certain defenses were legally valid, Belk's statements to the trial court at the plea hearing belies his assertion that he was pressured to plead no contest. The trial court thoroughly probed Belk about his complaints with his trial counsel prior to accepting Belk's pleas. After Belk responded he was "[n]ot really" satisfied with the legal services of both the deputy public defender and the attorney from the Nebraska Commission on Public Advocacy, the court asked Belk if he needed more time to discuss the matter with his attorney. Belk responded, "No." The court asked Belk what his complaints were, and Belk responded, "I've already made my complaints to him . . . . I don't want to bother the Court with them. I'm satisfied as far as the Court is concerned." The court asked, "You are satisfied with your legal representation as far as you are concerned today in this [plea] hearing, is that fair to say?" Belk replied, "Sure." The court again asked Belk if he needed any other additional time to discuss the matter with his attorneys before proceeding, and Belk replied, "No."

The court also had the following exchange with Belk concerning whether Belk freely, knowingly, voluntarily, and understandingly was making his pleas:

THE COURT: Are you thinking clearly today?

[Belk]: Yeah.

THE COURT: Do you understand these proceedings?

[Belk]:

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