State v. Harms

1

State of Nebraska, appellee, v. Nathan V. Harms, appellant.

No. A-22-393

Court of Appeals of Nebraska

March 28, 2023

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: KIMBERLY MILLER PANKONIN, Judge.

Robert B. Creager, of Anderson, Creager &Wittstruck, P.C. L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

WELCH Judge.

I. INTRODUCTION

Harms appeals from the Douglas County District Court's order denying his motion for postconviction relief without an evidentiary hearing. On appeal, he asserts that the trial court erred in denying his motion without an evidentiary hearing as to his claims that he was denied due process of law and/or his pleas were involuntary due to a lack of competency and that his appellate counsel was ineffective in failing to preserve on direct appeal certain claims of ineffective assistance of trial counsel. For the reasons stated herein, we affirm.

II. STATEMENT OF FACTS

1. PLEA AND SENTENCING

In January 2019, Harms was charged with ten counts of possession of child pornography, all Class IIA felonies. Pursuant to a plea agreement, Harms pled no contest to three counts of possession of child pornography. In exchange, the State dismissed the remaining counts. Because Harms raises issues of his competency, we quote extensively from the plea hearing and the sentencing hearing.

During the plea hearing, the following colloquy occurred between the court and Harms:

THE COURT: Can I have you state your full name for the record?

MR. HARMS: Nathan Vernon Harms.

THE COURT: And you're the defendant in this case?

MR. HARMS: Yes.

THE COURT: And how old are you?

MR. HARMS: Thirty-six.

THE COURT: And how far did you go in school?

MR. HARMS: Medical school.

THE COURT: Medical school?

MR. HARMS: Yeah.

THE COURT: Did you graduate from medical school?

MR. HARMS: Yeah, I did.

THE COURT: Have you ever been treated for a mental illness or do you now suffer from any type of mental or emotional disability?

MR. HARMS: I'm just treated for depression and anxiety.

THE COURT: And are you currently being treated for that in Douglas County?

MR. HARMS: Yes, I am.

THE COURT: And are you being prescribed medications as a result of these diagnoses?

MR. HARMS: Yes.

THE COURT: What are you taking?

MR. HARMS: Lexapro and -

THE COURT: And that's being monitored and administered by Douglas County medical staff?

MR. HARMS: Yeah, it is.

THE COURT: And you took your appropriate dosage?

MR. HARMS: I mean, I've been without for a month, but they finally got it restarted.

THE COURT: Okay. And are you taking anything else, any alcohol or any other prescriptive or non-prescriptive drugs in [the] last 24 hours?

MR. HARMS: No.

THE COURT: How do you wish to plead to Count 1, possession of child pornography, a Class 2A felony?

MR. HARMS: No contest.

THE COURT: How do you wish to plead to Count 2, possession of child pornography?

MR. HARMS: No contest.

THE COURT: And how do you wish to plead to Count 3, possession of child pornography?

MR. HARMS: No contest.

At the sentencing hearing, in exercising his right to allocution, Harms stated:

Yes. I'm sorry. I'm a bit nervous and I'm trying to get this out. I know you know I had written a lengthy letter to you and I'll try not to belabor or reiterate those same points, but I think it's important that I . stand here in front of the Court and . . . admit things I've taken ownership of . . . and [be] accountable to them.

. . . I know I made some horrible mistakes. And . . . this is not a victimless crime. And . . . to think that in viewing those websites I . . . contributed to . . . a system of victimization . . . [has] left me really disgusted and ashamed and guilty and berated with the nature of myself and my actions. Sorry.

You know, after my first arrest I felt like I'd lost everything and . . . I completely lost my will to live and . . . even though I've never been a drinker or used drugs before, I started to self[-]medicate and just went to the darkest place in my life. And I stopped caring about my decisions. I started doing things that I never thought I would ever do. And for the first time in my life I've visited those websites. And . . . that's something that I have to live with and something that I will regret for the rest of my life. But that was . . . rock bottom for me. And it . . . forced me to look in the mirror and admit to myself that I have issues that I need to deal with.... I started to try and deal with those things even before I got in trouble again.... I started to get treatment for my depression, which improved. I had completely stopped using drugs. I completely stopped visiting those websites. I kept my drinking down from like 40 drinks a day to like six to twelve. And I was . . . still struggling with the drinking. And so . . . I had been checking out AA meetings and talking with my family about getting into treatment. And at the time that I was arrested it had been . . . months since I . . . had done anything illegal I know that doesn't mitigate the facts, I did it. I know I handled things horribly.

But . . . these months in jail have been really tough too, and they've only reinforced the realization that I've already made before getting here . . . that I need help and that I need to change.

You know, it's been hard. I've been assaulted multiple times because of my charges. And I was put in protective custody and I'm alone 23 and a half hours a day with my thoughts and my regrets, which are the horrible things that I've done. And that's not a good place to be. You know, it's just allowed me to do other things, like focus on my sobriety and to reconnect with my faith again. And those have been good, but . . . these months here in jail have been the worst of my life, only second to the time when I was using and making horrible choices and just in that self-created hell that I've made for myself.

But . . . like I said I've come to this realization now that I need help and that I need to change. And you know, I've never had treatment for alcohol or drugs because it was never really a problem, but I know that with treatment I will be successful. I know . . . for a fact that I can do that.

You know, my dad did the same thing. He . . . went to treatment when I was born and he stayed sober until the day he died. And I am my father's son. I can do it, too. I know I will. And my brother here, he had the same thing and he's still here and supporting me with my addiction issues and everything else I've gone through.

And similarly with the pedophilia, . . . it was something I kept in check my entire life and I . . . reached the lowest point that I've ever been and I just let my demons get ahold of me, because it is something I've never been treated for. And I know that with treatment that this is something that doesn't have to be an issue for me.... I've read multiple books since I've been in here on sexual behavior and dysfunction and disorders. And every book I've read is affirming to me that hope is not lost for me. I just need - I just need help. And with help I know that I will not re-offend. I can tell you that with absolute certainty.

I know in the PSI it says that I'm high risk because of . . . the substance abuse and this being my second offense and I acknowledge that. I acknowledge that concern, because I did not handle probation well. I made a huge, huge mistake. And I acknowledge [the probation officer's] professional opinion. And it sounds like he did a good job with my PSI and was thorough.

I can tell you, Your Honor, I know in my heart that I'm not high risk. I know that I have a lot of work to do. I know that I need treatment for drugs and alcohol. And I know I need treatment for my sexual compulsion or disorder. But I know that with that treatment I will be successful. I know it in my heart. I can tell you with absolute certainty.

You can't measure your self-desire to change on a PSI. You can't measure motivation or a willingness to change. I want to change. And I want to get help. And I know that if I'm just given an opportunity to get that help that I will be successful. And I plan to be successful.

You know, . . . like I said in my letter . . . not having insurance . . . and not having a stable income, and not being able to get treatment vouchers and just obstacles to treatment, and . . . I take responsibility for that, too. Because I should have just asked by mom for help, but I didn't want to put that burden on her. But I have plans to get a job. My brother has construction contacts. He's said he can get me a job. That doesn't alleviate the insurance issue, but the financial issues, my mom said that she'll support me if issues arise.

And . . . I have the most amazing family that anyone could ever ask for. And . . . they didn't really understand what I was struggling with, because I was ashamed and embarrassed. But they know now and they still stand beside me and love me and support me. And I know that they're not going to let me fall again. And I'm not going to let them down.

I know I really screwed up. And I know that . . . I'm looking at years and years and years in prison. But - if you just give [me] an opportunity to get treatment I promise you I will not screw this up again. I will follow every letter of my probation. I'll get the help that I need. I will not mess this up. Because I've been a driven and motivated person my entire life. I am motivated to do this.

I know that I have a lot of work ahead of me. It is not

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