State v. Clark

22 Neb.App. 124

849 N.W.2d 151

State of Nebraska, appellee,

v.Kenneth W. Clark, appellant.

No. A-13-545

Court of Appeals of Nebraska.

Filed July 8, 2014

Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed.

Lisa F. Lozano for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Inbody, Chief Judge, and Moore and Pirtle, Judges.

Syllabus by the Court

1. Jury Instructions. Whether jury instructions given by a trial court are correct is a question of law.

2. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

3. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

4. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

5. Judges: Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.

6. Effectiveness of Counsel: Records: Trial: Evidence: Appeal and Error. A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. Rather, the determining factor is whether the record is sufficient to adequately review the question.

7. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing.

8. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

9. Words and Phrases. The word “or,” when used properly, is disjunctive.

10. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime.

11. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

12. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense. An appellate court may address the two prongs of this test, deficient performance and prejudice, in either order.

13. Effectiveness of Counsel: Proof. To show deficient performance, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area.

14. Effectiveness of Counsel: Proof. To show prejudice on a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance,the result of the proceeding would have been different.

15. Proof: Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

16. Right to Counsel: Waiver: Effectiveness of Counsel. Appointed counsel must remain with an indigent accused unless one of the following conditions is met: (1) The accused knowingly, voluntarily, and intelligently waives the right to counsel and chooses to proceed pro se; (2) appointed counsel is incompetent, in which case new counsel is to be appointed; or (3) the accused chooses to retain private counsel.

17. Attorneys at Law: Conflict of Interest. Appointed counsel may be removed because of a potential conflict of interest, and such a conflict could, in effect, render a defendant's counsel incompetent to represent the defendant and warrant appointment of new counsel.

18. Attorney and Client: Conflict of Interest: Words and Phrases. The phrase “conflict of interest” denotes a situation in which regard for one duty tends to lead to disregard of another or where a lawyer's representation of one client is rendered less effective by reason of his or her representation of another client.

19. Effectiveness of Counsel: Proof: Appeal and Error. An appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel when raising an ineffective assistance claim on direct appeal.

Moore, Judge.

INTRODUCTION

Kenneth W. Clark appeals from his conviction and sentence following a jury trial in the district court for Lancaster County of a violation of the Sex Offender Registration Act (SORA). The court sentenced Clark to 90 days in jail with credit for time served. Clark assigns error to the court's failure to give a requested jury instruction, the overruling of his motion for directed verdict, and the sufficiency of the evidence to convict him. He also asserts that the court imposed an excessive sentence and that he was denied effective assistance of counsel. Finding no merit to the assignments of error, we affirm.

BACKGROUND

In 2008, Clark pled no contest to and was convicted of third degree sexual assault, a Class I misdemeanor. He was sentenced to 360 days in jail. His conviction and sentence were affirmed on appeal. See State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (2009). As a result of the conviction, Clark was subject to the registration requirements of SORA. See, Neb.Rev.Stat. § 28–320 (Reissue 2008); Neb.Rev.Stat. § 29–4003 (Cum.Supp.2012) (SORA applies to persons who, on or after January 1, 1997, plead to or are found guilty of certain listed crimes, including sexual assault). The present appeal arises out of Clark's conviction for failure to follow those registration requirements in 2012.

On October 5, 2012, the State filed an information in the district court, charging Clark with a SORA violation, pursuant to Neb.Rev.Stat. § 29–4011(l) (Cum.Supp.2012), a Class IV felony.

On November 27, 2012, Clark's attorney filed a motion for competency evaluation. A hearing on the motion was held on November 28. During the course of the hearing, Clark objected to his attorney's motion and explained the nature of his objection to the district court. On November 28, the court ordered that a competency evaluation be conducted. On January 2, 2013, a hearing was held to determine Clark's competency following the evaluation, and an order was entered on January 3 finding that Clark was not competent to stand trial. This order committed Clark to the Lincoln Regional Center for treatment until such time as the disability may be removed. On February 1, the court found Clark competent to stand trial and ordered him to be released from the Lincoln Regional Center.

A jury trial was held on April 1 through 3, 2013. Testimony was presented from the civilian supervisor for the Nebraska State Patrol (NSP) Sex Offender Registry, a Lancaster County Department of Corrections officer, the records system supervisor for the Lancaster County sheriff's office, and a Lincoln Police Department officer. In addition, certain documentary evidence with respect to Clark's SORA registration and subsequent verifications was admitted.

The record shows that Clark completed his original registration under SORA in May 2008. Clark's original registration forms list his mother as another occupant at the same address. Clark completed a verification form in May 2009, showing no changes in his address. In December 2009, Timothy Kennett, a Lincoln Police Department sergeant whose duties include the investigation of SORA violations, contacted Clark as a part of his compliance checks on registered sex offenders. This contact was made in an effort to update registrants' information prior to an upcoming change in SORA verification requirements in January 2010. Kennett assisted Clark at that time in making sure his information was up to date.

Reporting requirements for verification by registrants changed in 2010. As of January 1, 2010, offenders were required to report to a sheriff's office for verification annually, biannually, or quarterly, depending on their registration duration. Offenders convicted of misdemeanors are required to register for 15 years, and as of January 2010, 15–year registrants were required to verify their information annually in their birth month. At the end of October 2009, the NSP sent a mass mailing to all actively registered offenders, advising them of their registration duration and...