State v. Davis

31 Neb.App. 445

982 N.W.2d 261

STATE of Nebraska, appellee,

v.Durelle J. DAVIS, appellant.

No. A-22-056.

Court of Appeals of Nebraska.

Filed November 8, 2022.

Joe Nigro, Lancaster County Public Defender, and Brittani E. Lewit, for appellant.

Douglas J. Peterson, Attorney General, and George C. Welch, Lincoln, for appellee.

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

Welch, Judge.

I. INTRODUCTION

Durelle J. Davis appeals his plea-based convictions of third degree domestic assault on a pregnant woman and second degree domestic assault. On appeal, Davis contends that the district court erred in overruling his requests for the appointment of new counsel due to the deterioration of the attorney-client relationship; that the sentences imposed were excessive; and that his trial counsel was ineffective for failing to effectively communicate with him, for withholding from the court mitigating information which may have helped secure his release or dismissal of the case, for requesting a continuance over Davis’ objection, and for filing a pretrial motion on Davis’ behalf which delayed his right to a speedy trial. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

In June 2021, Davis was charged with third degree domestic assault on a pregnant woman, second degree assault, use of a deadly weapon to commit a felony, and tampering with a witness or informant. Pursuant to a plea agreement, Davis pled no contest to third degree domestic assault on a pregnant woman and second degree domestic assault, both Class IIIA felonies. Also as part of the plea agreement, the State agreed not to charge Davis as a habitual criminal.

The State provided the following factual basis: On March 19, 2021, police officers responded to a hospital based upon the report of the assault of a female victim. Upon arrival, officers observed significant bruising on the victim's face near both of her eyes. The victim reported she was 27 weeks pregnant and had been staying at a local hotel to hide from Davis, whom she identified as her boyfriend. The victim indicated that on March 18, into the early morning hours of March 19, Davis was staying with her when he became upset and struck her eye and cheek with his fist. The victim reported that Davis then used the handle of a metal baseball bat and hit her in the right forearm, right elbow, right hip, and lower right leg area. Officers observed bruising and swelling consistent with the victim's report. The victim also had an older-appearing bruise on her right eye, which bruise the victim reported occurred during a prior incident, and a large bruise on the left side of her forehead, which bruise she reported occurred during an incident on March 6.

On March 6, 2021, officers had been dispatched after receiving a report that a pregnant woman was being assaulted. The reporting witness stated that he heard the victim screaming, heard Davis making threats to kill the victim, observed Davis stomping on the victim's head while the victim was on the ground, and observed Davis pick up the victim and slam her head into the side of a vehicle. The witness gave officers a description of the victim, who had left the area prior to the officers’ arrival, and the witness reported overhearing the victim and Davis making comments about the victim's being pregnant. Thereafter, when officers contacted Davis regarding the incident, he stated that the victim had been assaulted by another party.

After accepting Davis’ pleas on the facts set out above, the matter was set for sentencing. During the sentencing hearing, following the court's statement that it had reviewed the presentence investigation report and statements by counsel and Davis, the district court stated:

So, you have a lengthy criminal history for somebody your age.

Your [level of service/case management inventory] score is 39, which is probably the highest that I have seen.

The underlying assaults in this case, as they were described, are vicious. It isn't just the victim's statement. The attack was corroborated by at least ... two eye witnesses.

You don't show any remorse at all, sir, for this behavior.

You did receive the benefit of a very favorable plea agreement.

I do think that a period of incarceration is necessary. Probation is not an option.

Having regard for the nature and circumstances of the crime and the history, character and condition of [Davis], imprisonment is necessary for the protection of the public because I think the risk is substantial that during any period of probation ... Davis would engage in additional criminal conduct. A lesser sentence would depreciate the seriousness of the crime and promote disrespect for the law.

The court sentenced Davis to 3 years’ imprisonment and 18 months’ post-release supervision on each conviction, ordered the sentences to run consecutively, and awarded Davis credit for 275 days served. Davis now appeals from his convictions and sentences.

III. ASSIGNMENTS OF ERROR

Davis contends that (1) the district court erred in overruling his requests for new appointed counsel despite the deterioration of the attorney-client relationship; (2) the sentences imposed were excessive; and (3) he received ineffective assistance of counsel when trial counsel (a) did not effectively communicate with him, (b) withheld information from the court that may have helped secure Davis’ release from custody or dismissal of the case, (c) requested a continuance of the jury trial despite Davis’ objection, and (d) filed pretrial motions that Davis did not request and did not want filed, delaying his right to a speedy trial.

IV. STANDARD OF REVIEW

A trial court's decision to sustain or overrule a defendant's motion to dismiss appointed counsel and appoint substitute counsel is reviewed for an abuse of discretion. State v. Weathers , 304 Neb. 402, 935 N.W.2d 185 (2019).

A voluntary guilty plea or plea of no contest generally waives all defenses to a criminal charge; thus, when a defendant pleads guilty or no contest, he or she is limited to challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel. State v. Blake , 310 Neb. 769, 969 N.W.2d 399 (2022).

A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. State v. Morton , 310 Neb. 355, 966 N.W.2d 57 (2021).

Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement. State v. Drake , 311 Neb. 219, 971 N.W.2d 759 (2022). In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance. Id.

V. ANALYSIS

1. FAILURE TO APPOINT REPLACEMENT COUNSEL

First, Davis alleges that he "was denied the right to effective assistance of counsel ... [b]ecause the District Court erred in overruling [his] requests for new court appointed counsel despite the deterioration of the attorney-client relationship." Although Davis frames his argument as an ineffective assistance of counsel claim, given the specific language of the assignment of error, we consider this alleged error as a challenge to the court's denial of Davis’ request to dismiss counsel and appoint replacement counsel.

However, as the Nebraska Supreme Court noted in State v. Thomas , 311 Neb. 989, 996, 977 N.W.2d 258, 266 (2022) :

A voluntary guilty plea or plea of no contest waives all defenses to a criminal charge. State v. Jaeger [, 311 Neb.] 69, 970 N.W.2d 751 (2022). When a defendant pleads guilty or no contest, the defendant is limited to challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel Id. [The defendant's] challenges to the district court's rulings with respect to his motions to discharge his trial counsel do not fall into these limited categories. They have therefore been waived, and we will not address their merits.

Here, Davis entered pleas of no contest, and in doing so, he has waived any challenges to the district court's rulings regarding his requests to dismiss trial counsel and appoint replacement counsel. Accordingly, this assigned error has been waived and we decline to consider it.

2. EXCESSIVE SENTENCES

Davis next contends that the district court abused its discretion in imposing excessive sentences.

Here, Davis was convicted of third degree domestic assault on a pregnant woman and second degree domestic assault, both Class IIIA felonies. See, Neb. Rev. Stat. § 28-115 (Cum. Supp. 2020) (criminal offense against a pregnant woman; enhanced penalty); Neb. Rev. Stat. § 28-323 (Reissue 2016) (domestic assault; penalties). Class IIIA felonies are punish-able by a minimum of no imprisonment and a maximum of 3 years’ imprisonment followed by 9 to 18 months’ post-release supervision and/or a $10,000 fine. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020). Davis was sentenced to 3 years’ imprisonment followed by 18 months’ post-release supervision on each count.

When sentences imposed within statutory limits are alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering well-established factors and any applicable legal principles. State v. Blake , 310 Neb. 769, 969 N.W.2d 399 (2022). 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...