State v. Buffington

1

State of Nebraska, appellee, v. Melvin R. Buffington, Jr., appellant.

No. A-22-190

Court of Appeals of Nebraska

December 6, 2022

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 Douglas County: J Russell Derr Judge.

Kenneth F. Jacobs, of Hug and Jacobs, L.L.C., for appellant.

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

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

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Pirtle, Chief Judge.

INTRODUCTION

Melvin R. Buffington, Jr., appeals from the order of the district court for Douglas County, which denied his motion for postconviction relief after an evidentiary hearing limited to the issue of whether appellate counsel was ineffective in failing to raise trial counsel's ineffectiveness during the plea negotiation process. Based on the reasons that follow, we affirm.

BACKGROUND

In October 2018, the State filed a third amended information charging Buffington with three counts of first degree sexual assault, each a Class II felony, and 20 counts of third degree sexual assault, each a Class I misdemeanor. The charges arose from Buffington, a massage therapist, sexually assaulting his female clients while giving them professional massages at his place of employment. On March 7, 2019, pursuant to a plea agreement, Buffington pled no contest to two counts of attempted first degree sexual assault, both Class IIA felonies. The district court accepted the pleas and Buffington was found guilty of the two charges.

Prior to sentencing, Buffington filed a motion to withdraw his plea, and he was appointed new counsel. After a hearing on the matter, the district court denied his motion to withdraw. The court later sentenced Buffington to a term of 10 to 12 years' imprisonment on each of the two counts, to be served consecutively.

Buffington filed a direct appeal. He raised claims related to his motion to withdraw plea and excessive sentence, which this court rejected. He also asserted a general ineffective assistance of counsel claim, which we found was not properly before us. His convictions and sentences were affirmed. See State v. Buffington, No. A-19-546, 2020 WL 3251165 (Neb.App. June 16, 2020) (not designated for permanent publication).

Buffington filed a motion for postconviction relief on June 14, 2021, raising two claims of ineffective assistance of appellate counsel. The district court appointed counsel and granted an evidentiary hearing on Buffington's first claim which alleged that appellate counsel was ineffective for not assigning as error on direct appeal that trial counsel was ineffective in failing to relay information and provide reasonable advice in regard to the State's initial plea offer. The court dismissed Buffington's second ineffective assistance of counsel claim without an evidentiary hearing, and Buffington did not appeal from that order.

At a hearing on February 4, 2022, the defense submitted the depositions of Buffington's trial counsel, Mikki Jerabek, and of Buffington, in lieu of live testimony, which were received without objection. At the time this case was pending, Jerabek had been a public defender in Douglas County for nearly 25 years, and she had worked on felony cases for about 20 years, having handled over 50 sexual assault cases. She was assigned to represent Buffington on his felony charges, while another attorney from the Douglas County Public Defender's Office was assigned to handle the misdemeanor charges.

Jerabek testified that on October 2, 2018, the State filed a third amended information against Buffington, charging him with three counts of first degree sexual assault, and 20 counts of third degree sexual assault. She testified that on October 11, which was the day after the three felony victims were deposed, she received the State's first plea offer. The terms of the offer were that Buffington would plead to one count of first degree sexual assault, a Class II felony, and all the remaining counts would be dismissed. The offer also included the conditions that the State would include all three felony victims' names on the sole count, the factual basis would include each of the victims' names, and at sentencing all victims (including the misdemeanor victims) would be allowed to submit victim impact statements or be heard in court. The plea offer was set to expire on November 12, 2018. This initial plea offer was presented to Jerabek in an email sent from the prosecutor, which was offered as part of Jerabek's deposition.

Jerabek testified that, in her professional opinion, the initial plea offer was "ridiculous" in that Buffington would plead to one count but all three felony victims' names would be listed because it would appear as if he was pleading to all three counts of first degree sexual assault. Jerabek testified that the plea offer did not "sit well" with her or cocounsel. She stated that she would have felt differently if the State had offered to let Buffington plead to one count of first degree sexual assault, without all the victims' names being included and all the victims being allowed to submit impact statements.

Jerabek testified that regardless of her personal thoughts about the initial plea offer, she told Buffington about the offer. She testified that because the offer was made the day after the depositions were taken and she knew Buffington wanted to read the depositions, she did not present the offer to him until he had the opportunity to read them. After he did so, she and cocounsel went to see Buffington at the jail on November 9, 2018, and told him that the State had made a plea offer. Jerabek testified that Buffington's initial reaction was that he was not going to take a plea because he was innocent. Jerabek told Buffington she had an obligation to explain the offer to him. She then explained the entirety of the State's initial plea offer to Buffington, including the possible outcomes. She testified he was well aware that the offer was for him to plead to one count of first degree sexual assault, a Class II felony. She told Buffington that the offer was "ridiculous" in that three victims' names would appear on one count and all the victims would be allowed to make statements at sentencing. She denied telling him that he was not going to accept the offer. Rather, she testified that Buffington made it clear to her that he was not going to accept the State's offer.

Jerabek testified that the case moved forward and shortly before trial was to begin, plea negotiations started again in March 2019. Buffington asked Jerabek to make an offer whereby he would plead to one count of attempted first degree assault. The State rejected the offer and made its own counteroffer, which was that Buffington would plead to two counts of attempted first degree sexual assault, the offer Buffington ultimately accepted.

Jerabek testified that if Buffington had accepted the State's initial plea offer, he would have faced a sentencing range of 1 to 50 years' imprisonment, or probation. The State's later offer, which Buffington accepted, subjected him to a lower aggregate possible penalty of 0 to 40 years' imprisonment, or a term of probation. Jerabek testified that the plea offer Buffington accepted was a better offer than the State's initial plea offer.

In Buffington's deposition, he admitted that Jerabek and cocounsel came to the jail and informed him that the State had made an initial plea offer. However, he testified that Jerabek only told him that the offer was for him to plead to one felony count, but she never told him the specific offense to which he would plead. Buffington also asserted Jerabek told him he was not going to accept the offer because it was "ridiculous" because of the deadline the State put on it and because they had just got done with depositions.

Despite claiming to have no understanding of the State's initial plea offer, Buffington testified he would have "definitely" accepted the offer to plead to one felony count, even without knowing what the felony was, rather than plead to two counts of attempted first degree sexual assault because the charge could have been "negotiated."

On cross-examination, Buffington stated that he still did not know what the original plea offer was, other than it required him to plead to one felony. When Buffington was asked why he did not ask Jerabek any details about the initial plea offer, he stated because he was ignorant of the law and trusted Jerabek.

On March 2, 2022, the district court entered an order denying Buffington's motion for postconviction relief, finding that Buffington's recollection of the facts surrounding the State's plea offers was "less than credible," and concluding that his trial counsel did not perform deficiently.

ASSIGNMENT OF ERROR

Buffington assigns that the district court erred in denying his motion for postconviction relief because trial counsel was ineffective during the plea negotiation process.

STANDARD OF REVIEW

A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Hernandez, 22 Neb.App. 62, 847 N.W.2d 111 (2014).

In an evidentiary hearing for postconviction relief, the postconviction trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and the weight to be given a witness' testimony. State v. Russell, 308 Neb. 499, 954 N.W.2d 920 (2021).

Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. State v. Combs, 308 Neb. 587,...