State v. Davis, No. A-08-323 (Neb. App. 10/7/2008)

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STATE OF NEBRASKA, APPELLEE, v. DANIEL L. DAVIS, APPELLANT.

No. A-08-323.

No. A-08-324.

Court of Appeals of Nebraska.

Filed October 7, 2008.

Appeal from the District Court for Douglas County: MARLON A. POLK, Judge. Affirmed.

Daniel L. Davis, pro se.

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

INBODY, Chief Judge, and MOORE and CASSEL, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE, Judge.

INTRODUCTION

Following the entry of no contest pleas, Daniel L. Davis was convicted of two counts of Sex Offender Registration Act violation, second offense. Davis was sentenced to 1 to 2 years' imprisonment on each count, to run consecutively. Davis appeals, asserting that his pleas were not entered knowingly, voluntarily, and intelligently, as he was not advised of the mandatory minimum penalty prior to the entry of such pleas. Davis also claims that his trial counsel was ineffective in failing to advise Davis of the mandatory minimum term or request leave to withdraw the pleas following the trial court's miscalculation of Davis' good time credit on his sentence. Because we find that there was no abuse of discretion in the district court's acceptance of Davis' pleas and that the record is insufficient to review Davis' claim of ineffective assistance of counsel, we affirm.

BACKGROUND

On February 25, 2008, Davis pled no contest to two charges of Sex Offender Registration Act violation, second offense. Before accepting Davis' pleas, the court advised Davis of the rights he would be forfeiting by pleading no contest. Upon the court's inquiry, Davis stated that he understood that the charges were Class III felonies, for which the maximum penalty is up to 20 years in prison, a $25,000 fine, or both. The court also asked whether Davis understood that the minimum penalty for a Class III felony is 1 year in prison, to which Davis responded, "Yes, sir." Understanding these penalties, Davis indicated that he wanted to proceed with his no contest pleas. After recitation of the factual basis and receipt of exhibits showing the prior offenses, the court found that Davis understood the charges and penalties and that his no contest pleas were entered freely, knowingly, intelligently, and voluntarily. Davis waived his right to a presentence investigation, and the court immediately sentenced Davis to 1 to 2 years' imprisonment on each count, to be served consecutively. The court went on to inform Davis that his parole eligibility date will be after serving 1 year and that his mandatory discharge date, assuming no loss of good time, will be after serving 2 years.

Davis timely appeals. This case was submitted without oral argument pursuant to Neb. Ct. R. App. P. § 2-111(E)(5)(a).

ASSIGNMENTS OF ERROR

Davis asserts that (1) his pleas were not entered knowingly, voluntarily and intelligently, as he was not advised of the mandatory minimum penalty associated with his pleas of no contest prior to the entry of such pleas, and (2) trial counsel was ineffective in failing to either advise Davis of the mandatory minimum term associated with his pleas or to request leave for Davis to withdraw his pleas following the trial court's miscalculation of Davis' sentences with good time credit on a mandatory minimum term.

STANDARD OF REVIEW

A plea of no contest is equivalent to a plea of guilty. State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006). A trial court is given discretion as to whether to accept a guilty plea; an appellate court will overturn that decision only where there is an abuse of discretion. State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007).

Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. State v. Jones, 274 Neb. 271, 739 N.W.2d 193 (2007). When the issue has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. Id.

ANALYSIS

The issue underlying both of Davis' assigned errors relates to the minimum portion of his sentence. While the district court correctly advised Davis of the range of penalties for a Class III felony, the court did not separately advise Davis of the mandatory minimum sentence provided under Neb. Rev. Stat. § 29-4011(2) (Cum. Supp. 2006), which requires that a person convicted of failure to register, second offense, be subject to a "mandatory minimum term of at least one year in prison."

Voluntariness of Plea.

Davis argues that the district court's failure to advise him of the mandatory minimum penalty under § 29-4011(2) prior to accepting his pleas rendered his pleas involuntary. For a plea to be voluntarily and intelligently entered, the record must establish, among other things, that the defendant knew the range of penalties for the crime with which he or she is charged. State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).

Davis relies upon the cases of State v. Lewis, 192 Neb. 518, 222 N.W.2d 815 (1974), and State v. Curnyn, 202 Neb. 135, 274 N.W.2d 157 (1979), in support of his argument. However, in each of those cases, it was not clear from the record that the defendants were advised of the possible penalties when entering their pleas. In the present case, it is clear from the record that Davis was advised of the penalties associated with his pleas to Class III offenses; namely, the minimum of 1 year's imprisonment and the maximum of 20 years' imprisonment. It is also clear from the record that Davis understood the possible penalties.

Although the district court did advise Davis that the minimum portion of his sentence was 1 year's imprisonment, the court did not indicate that the minimum 1 year was mandatory, as required by the statute in question. The State recognizes that State v. Stastny, 223 Neb. 903, 395 N.W.2d 492 (1986), requires that a defendant be advised of any mandatory minimum sentence in order for the plea to be deemed voluntary and intelligent. However, the State argues that the "technical failure" in the plea process did not prejudice Davis. The State relies upon State v. Jipp, 214 Neb. 577, 334 N.W.2d 805 (1983). In that case, the court mistakenly informed the defendant that the maximum penalty for which he was charged was 20 years' imprisonment, when in fact, the potential maximum was 50 years' imprisonment. The defendant was ultimately sentenced to 1 year's imprisonment. The Supreme Court referred to the "technical failure" of the trial court to comply with the minimum standards for the acceptance of guilty pleas. However, the court went on to state that the defendant "must allege and prove that such omission has resulted in prejudice to him, constituting a manifest injustice that would require this court to give him the opportunity to withdraw the plea." 214 Neb. at 579, 334 N.W.2d at 806. Because the defendant in Jipp was advised that the minimum penalty was 1 year's imprisonment and he was sentenced to 1 year's imprisonment, the court found that the defendant had not shown prejudice.

In the present case, Davis was advised that the minimum portion of the penalty was 1 year's imprisonment, and he was sentenced to 1 to 2 years' imprisonment on each count. Davis does not argue, nor can he show, that he was prejudiced by not being told that the minimum term of 1 year's imprisonment is mandatory, since the statutory minimum for a Class III felony and the mandatory minimum under § 29-4011(2) are the same.

Davis also argues that the district court failed to advise him that he would not be eligible for parole because of the existence of a mandatory minimum penalty. Neb. Rev. Stat. § 83-1,110(1) (Cum. Supp. 2006) provides that "[e]very committed...