State v. Jaeger

311 Neb. 69

970 N.W.2d 751

STATE of Nebraska, appellee,

v.Roger JAEGER, appellant.

No. S-21-386.

Supreme Court of Nebraska.

Filed March 4, 2022

Roger Jaeger, pro se.

Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

In an appeal from a motion for postconviction relief, the appellant challenges the district court's denial of his motion without holding an evidentiary hearing. The appellant had alleged multiple instances of ineffective assistance of counsel and a violation of his Fifth Amendment right against self-incrimination. The appellant assigns that the district court erred in denying his motion without holding an evidentiary hearing and in not considering his reply to the State's response to his motion for postconviction relief. We affirm.

II. BACKGROUND

Roger Jaeger, a middle school teacher, was discovered to possess child pornography after he took his laptop to a local computer shop for repairs. During the course of performing these repairs, the technician observed several hundred, if not thousands, of photographs and videos of pornography, several hundred of which were clearly child pornography. Law enforcement was contacted, and officers identified numerous files containing child pornography.

A police report contained in the presentence investigation report (PSI) reflects that after finding the files, officers obtained a search warrant and went to the school where Jaeger worked to execute it. Jaeger was present at the school, and the officers secured his electronic devices. Jaeger was escorted to a conference room at the school, where the officer read Jaeger his Miranda rights before questioning him.

During the course of the interview, Jaeger admitted to viewing and obtaining child pornography for a long time and possessing thousands of images, with a preference for middle-school-aged and high-school-aged children. The officer confronted Jaeger with the fact that there were student yearbook pictures mixed in with the child pornography and asked why they were there. Jaeger responded, " ‘I do not know.’ " He further responded, " ‘[T]here were just a couple of years, just thought hey, I'll keep track of these ones,’ " and then he laughed. The police report indicates that Jaeger was not arrested until the conclusion of the interview.

Jaeger was charged with six counts of possession of child pornography, each a Class IIA felony, in violation of Neb. Rev. Stat. § 28-813.01 (Reissue 2016).

1. PLEA HEARING

Before trial, the parties informed the district court that a plea agreement had been reached. Pursuant to the agreement, Jaeger was to enter pleas of no contest to four counts of possession of child pornography and the State would dismiss the remaining two counts.

Before accepting the plea agreement, the district court engaged in a colloquy with Jaeger which specifically included questions regarding whether there had been any threats or promises made to induce him to enter his pleas of no contest, to which Jaeger answered, "No." Following the completion of the full colloquy and the State's presentment of a supporting factual basis, the district court found beyond a reasonable doubt that Jaeger understood the nature of the hearing and was alert and competent to plead. Ultimately, the district court accepted Jaeger's no contest pleas to four counts of possession of child pornography.

The district court ordered the PSI, which was to include a psychosexual evaluation. No objection was made. The court did not issue an order specifically compelling Jaeger to make any statements for the purposes of the PSI or psychosexual evaluation. The matter was scheduled for sentencing.

2. SENTENCING

At the sentencing hearing, defense counsel advocated for Jaeger to receive probation. Defense counsel highlighted that this was a nonviolent offense and that other similar offenders in the county had been placed on probation. When discussing the psychosexual evaluation in the PSI, defense counsel noted the doctor who evaluated Jaeger believed he was being truthful and cooperative and found the "Good Life Treatment Model" could be completed under community supervision, because Jaeger was a low risk for sexual assault.

Defense counsel further pointed out that the results of the "Static 99" evaluation found Jaeger was a low to moderate risk and the general criminal risk of recidivism was low to moderate; Jaeger had no criminal history; and the "LS/CMI domains" scored Jaeger very low on criminal history, medium in education and employment "because he can't go back to his old job," very low in the family and leisure and recreation categories, and low in the companions, pro-criminal attitude, and antisocial categories. Finally, counsel noted that the PSI stated it does not appear there would be any significant barriers to Jaeger's participation in any community supervision services and highlighted Jaeger's support in the community based upon the 15 to 20 character letters contained in the PSI. Defense counsel argued that Jaeger was classified as someone the community could supervise in a safe manner with additional terms such as monitoring Jaeger's electronics and vocational rehabilitation.

The State argued that probation would promote a disrespect for the law. The State noted that Jaeger's behavior had been ongoing for close to 20 years while employed as a teacher and that there were over 1,500 images found in his possession. It noted the probation interviewer's description of Jaeger as "controlling and aggressive" during the PSI process.

The district court stated it had reviewed the PSI and noted Jaeger's lack of a criminal record. However, it also considered Jaeger's statements to the probation interviewer, reflected in the PSI, indicating he did not feel like anyone had treated him fairly or justly. The district court took particular issue with a statement Jaeger made regarding teachers’ being held to an "impossible standard." The court described as "absurd" Jaeger's apparent belief that expecting teachers to refrain from possessing child pornography was too high of a standard to hold them to. The court observed that Jaeger's statements, reflected in the PSI, contained various rationalizations justifying his behavior as not harmful and blaming others for his addiction and for getting caught. The court also reiterated the State's concern that Jaeger had attempted to control the PSI process and that his behavior was aggressive. Finally, the court was concerned by Jaeger's comment during the police interview about keeping track of the middle-school-aged children whose yearbook pictures were mixed in with his child pornography, which it found "chilling."

The court indicated it had considered all the appropriate sentencing factors, the PSI, and the statements that were received. The court found that Jaeger was not a suitable candidate for probation and that anything less than a statutory sentence would depreciate the seriousness of the offense, promote disrespect for the law, and "would potentially place at jeopardy children in our community."

The court sentenced Jaeger to concurrent terms of 10 to 20 years’ imprisonment on each count and ordered Jaeger to register as a sex offender pursuant to the Sex Offender Commitment Act.

3. DIRECT APPEAL

Jaeger's trial counsel filed a timely notice of appeal alleging Jaeger's sentences were excessive. The appeal was summarily affirmed by the Nebraska Court of Appeals.

4. MOTION FOR POSTCONVICTION RELIEF

Subsequently, Jaeger, pro se, filed a verified motion for postconviction relief. In the motion, Jaeger alleged, first, that counsel was ineffective in failing to " ‘make reasonable investigations’ " as to Jaeger's claim that the interviewing officer did not read him his Miranda rights until after he was interviewed. Jaeger claimed counsel refused to investigate when the Miranda rights were actually read to him as Jaeger suggested; nor would counsel "enter a [m]otion to [s]uppress the interview." Jaeger asserted that the failure to investigate prejudiced him "by accepting the police report as fact when there were doubts about the accuracy" and left him no option other than to enter into the plea agreement.

Second, Jaeger described that defense counsel had advised him to accept the plea agreement because (1) the prosecutor could charge a separate count of possession for each image found and that he was fortunate to only be charged with six counts and (2) the State could turn the matter over to the federal authorities if he did not accept the plea agreement and he "[stood] a better chance" in state court. Jaeger asserted that in the email chain between the prosecutor and defense counsel, which he attached to the motion, there was no mention of turning over the case to federal prosecutors or additional charges. He then cited the proposition that pleas induced by promises or threats are void and concluded that if the prosecution's threats were made, they were not on record; if the threats were not made, he was coerced into a plea agreement by counsel's erroneous advice.

Third, Jaeger alleged counsel was ineffective for not pursuing Jaeger's request to attempt to recuse the trial judge as biased against him. Jaeger supported his assertion of bias by pointing to the court's denial of his bond reduction request, the court's grant of expanded media coverage, and events that occurred in a separate civil matter. Jaeger asserted his counsel told him that the judge would not recuse himself and that he stood a better chance with this judge than another. Jaeger stated, "The [j]udge's behavior showed a pattern of prejudice against [Jaeger] and crossed over to actually acting as the [p]rosecution, but [c]ounsel took no action in these situations."

Fourth, Jaeger alleged multiple instances of ineffective assistance of counsel at the sentencing hearing. Jaeger alleged counsel stated Jaeger...