State v. Janousek

STATE OF NEBRASKA, APPELLEE, v. JONATHAN L. JANOUSEK, APPELLANT.

No. A-17-875

No. A-17-876.

NEBRASKA COURT OF APPEALS

August 7, 2018

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: 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).

Appeals from the District Court for Sarpy County: GEORGE A. THOMPSON, Judge. Affirmed in part, and in part vacated and remanded with directions.

Donald L. Schense, of Law Office of Donald L. Schense, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

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

MOORE, Chief Judge.

I. INTRODUCTION

Jonathan L. Janousek appeals from his plea-based convictions and sentences in the district court for Sarpy County for attempted possession of a stolen firearm and attempted possession of a firearm by a prohibited person in case No. A-17-875 (the firearm case), and burglary in case No. A-17-876 (the burglary case). He contends that he was denied effective assistance of counsel, that the court erred by not ordering a competency hearing, and that his sentences were excessive. Upon our review, we find the record inadequate on direct appeal to address one of Janousek's assertions regarding ineffective assistance of counsel; his other assertions of ineffective assistance of counsel are without merit. With respect to the alleged trial court error, we find no violation of Janousek's due process rights. Additionally, we find that Janousek's sentences for his convictions for attempted possession of a firearm by a prohibited person and for burglary were not excessive.However, we find that the court made a sentencing error when sentencing Janousek on his conviction for attempted possession of a stolen firearm. Accordingly, we remand for resentencing as to that conviction only.

II. BACKGROUND

On July 12, 2016, the State filed an information in the firearm case, charging Janousek with possession of a stolen firearm in violation of Neb. Rev. Stat. § 28-1212.03 (Reissue 2016), a Class IIA felony, and possession of a firearm by a prohibited person in violation of Neb. Rev. Stat. § 28-1206 (Reissue 2016), a Class ID felony. The State filed an information in the burglary case on August 9, charging Janousek with burglary in violation of Neb. Rev. Stat. § 28-507 (Reissue 2016), a Class IIA felony.

On March 14, 2017, a plea hearing was held in the district court. The State asked the court for leave to amend by interlineation the first count in the firearm case to attempted possession of a stolen firearm, a Class IIIA felony, and to amend the second count to attempted possession of a firearm by a prohibited person, a Class II felony. The State informed the court that in return for the amendments, Janousek had agreed to plead to the charges in both the firearm case and the burglary case. The State also asked that the sentences in the firearm case run concurrent to each other. The parties also stipulated that Janousek was a convicted felon, making him a prohibited person for purposes of the second count in the firearm case, and that the State would offer his prior convictions at the time of sentencing. After Janousek affirmed that he would be pleading guilty pursuant to the plea agreement, the court granted leave to amend the information in the firearm case by interlineation.

After Janousek waived 24-hour notice and reading of the amended information, the district court informed him that the court had to ask him certain questions before accepting his pleas. The court then asked several preliminary questions, to which Janousek responded appropriately, before asking him whether he suffered from any mental illness or mental or emotional defect. Janousek responded affirmatively and told the court that he suffered from posttraumatic stress disorder (PTSD) and "some bipolar"; that he had been treated by and was currently under the care of a physician for those conditions; that a physician had prescribed him medications, including Wellbutrin, Cymbalta, BuSpar, Neurontin, and "another one for nightmares"; that he was currently taking the prescribed medication; that with the aid of that medication, he was able to think clearly and coherently; and that he understood the proceedings that were occurring that day.

Janousek's attorney noted for the court an incident at the jail approximately 2 weeks earlier, which "they classified as a suicide attempt" by Janousek. Janousek was taken to the hospital and then "transferred to a cell by himself." Janousek's attorney further informed the court that she and Janousek had discussed the incident and that Janousek had been seeing a mental health professional while in jail to address that issue. The attorney also informed the court that Janousek had entered pleas in Douglas County to two felonies, that Douglas County had already ordered a presentence investigation (PSI) in that case, and that she wanted the court to order a psychological evaluation as part of the PSI in this case.

The district court then stated:

Okay. And, Mr. Janousek, the reason the Court asks those questions or brings those ideas or those topics up is I have to make sure that you understand what you're doing today.

And it's clear to the Court that you're in a better condition than you were now [sic], and you're answering the questions appropriately and everything else like that, but some of the --

Although you are competent to enter a plea, one of the things that your attorney is requesting is that insofar as sentencing is considered, that further testing be done, not so far as your competency but to aid and assist the Court in determining the ultimate punishment. Do you understand this?

Janousek responded affirmatively, and he indicated that, other than his prescribed medications, he had not taken any other drugs or alcohol, legal or otherwise, in the previous 72 hours.

After Janousek again informed the district court that he was pleading guilty to the amended charges in the firearm case and the charge in the burglary case, the court explained and Janousek indicated his understanding of his constitutional rights, the consequences of pleading guilty, the nature of the charges, and the possible penalties. Janousek also affirmed his understanding of the plea agreement; that he would plead guilty to the amended firearms charges and to the burglary charge. Janousek himself then advised the court that part of the plea agreement was that the sentences "run concurrent" on the firearms case. The court informed Janousek that it was not bound by any recommendations or agreements regarding sentencing, which Janousek indicated he understood.

The State then provided a detailed factual basis for the charges to which Janousek was pleading in both cases, which we summarize below.

The factual basis provided for the firearm case showed that on June 2, 2016, after law enforcement officers encountered Janousek near his vehicle outside of a motel room in Sarpy County, a county records search revealed that he was a convicted felon with an active warrant for absconding from his parole. Janousek, who initially gave officers a false name, was "read his rights" and agreed to speak with police. During an inventory search of Janousek's vehicle, police discovered a pistol grip and a loaded shotgun; the shotgun was later found to have been stolen from an individual in Lincoln, Nebraska. Officers also located a pistol in the motel room outside of which Janousek's vehicle was parked. Officers had initially gone to the motel after receiving information that a room there "contained a large amount of items believed to be related to illegal activity." Janousek's six previous convictions, all in 2003 for which he served more than 1 year in jail, were recited as part of the factual basis for the firearm case.

The factual basis provided for the burglary case shows that on May 26, 2016, police officers responded to a residential address after receiving a burglary report. The victim told officers that unknown suspects had broken into her house while she was sleeping and had stolen her purse, tools, and vehicle. Officers determined that the suspects entered the residence by breaking out a garage window. Officers later determined that the victim's credit cards were being used in the Omaha area. On May 27, officers found a phone belonging to Janousek in a different stolen vehicle. On June 2, officers made contact with Janousek at a motel as noted above. Janousek toldthe officers that two other individuals, one of which was staying at another motel, might have stolen merchandise belonging to the burglary victim at the other motel. At the other motel, officers located "information and documents belonging to [the burglary victim] including checks, credit cards and an address book." On June 13, officers received back from the crime lab a piece of glass taken from the victim's garage that contained a latent fingerprint. The fingerprint on the glass was positively identified as Janousek's.

After the State provided the factual bases for Janousek's pleas, the district court made several inquiries of Janousek and his attorney. In response, Janousek's attorney indicated that she did not have anything to add to the factual bases and that she had had full access to the files of the county attorney's office. She also expressed her belief that the plea bargain was in Janousek's best interests. Janousek agreed that the State could present evidence that would support convictions for the crimes to which he had pled guilty. Janousek also affirmed that he was satisfied with the work his attorney had performed in the case and indicated that he did not have any questions for the court.

The district court then found beyond a reasonable doubt that Janousek understood the nature of the charges and possible sentences; that his plea was made freely, knowingly, intelligently, and voluntarily; that the plea was "...