State v. Cutaia

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 Sarpy County: Michael A. Smith, Judge.

Douglas J. Amen, of Douglas J. Amen Law, L.L.C., for appellant.

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

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

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH, JUDGE.

I. INTRODUCTION

Brandon J. Cutaia appeals his plea-based convictions for stalking and third degree domestic assault. On appeal, he contends that the Sarpy County District Court erred in (1) denying his motion to withdraw his pleas, (2) finding that the factual basis provided by the State established venue in Sarpy County, and (3) in granting the State's motion to consolidate. His fourth assignment of error is that his trial counsel was ineffective in failing to (a) obtain discovery from the public defender's office, (b) investigate Cutaia's cell phone, (c) interview and obtain statements from defense witnesses, (d) object to the factual basis for stalking, and (e) properly calculate time served. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

Charges, Consolidation of Cases, and Plea Hearing

In 2019, Cutaia was charged in Sarpy County District Court with the strangulation of his girlfriend. As a result of this incident, the victim obtained a protection order against Cutaia which was served in November. Although the Sarpy County Public Defender's Office was initially appointed to represent Cutaia, he eventually hired replacement counsel who entered his appearance in the case in March 2020. The same day, he filed stipulations for reciprocal discovery.

In May 2020, in a separate case but involving the same victim, the State charged Cutaia with stalking, a Class IIIA felony, and violation of a domestic violence protection order, a Class I misdemeanor. Following a motion to consolidate filed by the State, the district court consolidated the two cases, over Cutaia's objection, on the basis that the alleged offenses were "of a similar character and may be viewed as part of a common scheme" and that consolidation would not prejudice Cutaia.

Pursuant to a plea agreement, on August 25, 2020, Cutaia pled guilty to stalking, a Class IIIA felony, and pled no contest to an amended charge of third degree domestic assault, a Class I misdemeanor. The strangulation charge in the separate case was dismissed by the State.

In relation to the third degree domestic assault charge, the State's factual basis and presentence investigation report (PSR) indicated that on October 30, 2019, in Sarpy County, Nebraska, the victim, Cutaia's girlfriend, reported to law enforcement that she was awakened from sleep by Cutaia "forcibly shoving a slice of pizza in her face." He called her names and "then forcibly applied his hand to her mouth and nose restricting her breathing. She stated that Cutaia then put his other hand over her mouth and nose causing her to be unable to breathe." The victim stated this lasted for "at least a minute" while she thrashed and kicked in an attempt to break free. As a result of this incident, the victim obtained a protection order which was served on Cutaia on November 7, 2019. The protection order prohibited Cutaia from threatening, assaulting, molesting, attacking, or otherwise disturbing the victim's peace. The protection order also restricted Cutaia from telephoning, contacting, or otherwise communicating with the victim and excluded him from the victim's residence.

Regarding the stalking charge, the State's factual basis indicated that, on February 6, 2020, the victim, Cutaia's girlfriend, reported to law enforcement that Cutaia had been attempting to contact her "several times" despite an active protection order being in place restricting him from "threatening, assaulting, molesting, attacking, or otherwise disturbing the peace" of the victim. The victim also advised that, while she was at a bar, "an individual came up to her and stated that she was paid by a man named Brandon to take pictures of [the victim] at a bar." The victim further advised that she found two tracking devices on her vehicle, one of which was in a car seat, and that "numerous times around the city she would see [Cutaia] following her in an area where she was located." When asked about the tracking devices, Cutaia responded that "he was tracking his son and not [the victim]." The State further set forth that, in February 2020, Cutaia called the child abuse hotline reporting that the victim had been drinking at a bar and that the children's babysitter was noticing signs of intoxication of the victim when she picked up her children. Officers also listened to jail calls where Cutaia called his son and asked him "to pick a fight with [the victim]

so she would get angry enough to hit him so [she would] be arrested for child abuse." At another point, Cutaia called his mother and asked her to call the victim at her work because the victim's "place of employment is not a violation of the Protection Order because it was not mentioned in the Protection Order." Officers were able to determine that Cutaia used a "spoofing application" on his phone to contact the victim's place of employment to find out her work hours. Officers also located numerous messages on Cutaia's phone talking about where the victim was located during January and February 2020 and, at one point, Cutaia sent a message to his mother that he was parked down the block from the victim's house. The State asserted that all the events occurred in Sarpy County, Nebraska.

Following the recitation of the factual bases by the State, the district court asked defense counsel "Any comment regarding the factual basis?" to which counsel responded "No objection for the purposes of factual basis, Your Honor." The State accepted Cutaia's pleas finding that they had been knowingly, intelligently, and voluntarily entered.

2. Motion to Withdraw Pleas

Prior to the sentencing hearing, Cutaia filed a motion to withdraw his plea for the reasons that (1) "the State misspoke during the entry of plea when it stated that all events occurred in Sarpy County, which was incorrect. [Cutaia] is being held accountable for events which took place and/or originated outside of and/or had no connection to Sarpy County" and (2) "the State withheld exculpatory evidence from the defense [by] not furnishing defense counsel [with videos] which had been provided to the Public Defender's office. Hired counsel for [Cutaia] had not received the videos before the plea hearing."

During the 2-day hearing on the motion to withdraw, Cutaia offered into evidence an affidavit by replacement counsel with attachments that included a photocopy of a DVD that he alleged was not initially provided to him by the State, but which was later provided after Cutaia had entered pleas in this case. A viewable copy of the DVD was not included in the exhibit, only a photocopy of the DVD itself was attached to the affidavit. Cutaia made three arguments to the district court. First, he argued that the factual basis provided by the State was insufficient to establish venue in Sarpy County for the stalking charge. Second, he argued that the stalking conviction was barred by double jeopardy because some of the events referred to in the State's factual basis were the same events forming the basis for a Douglas County conviction for violation of a protection order. Finally, Cutaia argued that his current defense counsel had not been provided material evidence by the State prior to the entry of Cutaia's pleas.

In response, the State asserted that the State had turned over all required evidence to Cutaia's prior defense counsel, the Sarpy County Public Defender's Office. Regarding venue, the prosecutor noted that he could have "been more eloquent" in setting forth the factual basis for stalking by explaining which events occurred in which county, but that Neb. Rev. Stat. § 29-1301.01 (Reissue 2016) allowed for jurisdiction "based upon [Cutaia's] actions." Finally, the prosecutor argued that he could use the same facts that supported Cutaia's Douglas County conviction for violation of a protection order because those facts were part of the course of conduct supporting the Sarpy County stalking charge.

At the close of the hearing, the district court denied Cutaia's motion to withdraw his plea for the reasons that the double jeopardy claim failed because "[t]he dates and times and locations listed in the two Informations and the matters are just different. There's really no showing that they are, in fact, the same conduct that's being punished," the State had fulfilled its statutory obligation to provide discovery, and the fact that former defense counsel may not have turned over certain discovery to current defense counsel was not a good and just reason to allow withdrawal of Cutaia's pleas.

3. Sentencing

At the sentencing hearing the district court stated:

The Court has considered the nature and circumstances of the crime, the history, character, and condition of [Cutaia], the statements in the presentence investigation, and finds there are substantial and compelling reasons why [Cutaia] cannot effectively and safely be supervised on probation, and a lesser sentence would depreciate the seriousness of the crime, would promote disrespect for the law. Incarceration is necessary to protect the security of the public. The risk is substantial that during a period of probation [Cutaia] will likely engage in additional criminal conduct. The court cannot find the circumstance[s] . . . of this crime are unlikely to [recur], and the Court cannot find that the