State v. Johnson

859 N.W.2d 877

State of Nebraska, appellee

v.Tiuana L. Johnson, appellant.

No. S–14–245

Supreme Court of Nebraska.

Filed March 13, 2015.

Dennis R. Keefe, Lancaster County Public Defender, Paul E. Cooney, Grand Island, and Mark Carraher, Senior Certified Law Student, for appellant.

Jon Bruning, Attorney General, George R. Love, Lincoln, and Mary C. Byrd, Senior Certified Law Student, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman and Cassel, JJ.

Syllabus by the Court

1. Indictments and Informations.A ruling on whether to allow a criminal information to be amended is made by the trial court in its discretion.

2. Judgments: Appeal and Error.When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusion.

3. Sentences: Judgments: Words and Phrases.An appellate court reviews criminal sentences for abuse of discretion, which occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

4. Judges: Words and Phrases.A judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right, and denying a just result in matters submitted for disposition.

5. Habitual Criminals: Sentences: Convictions: Proof.There are no factual findings that the trial court must make, in order to enhance a defendant's sentence under the habitual criminal statutes, that are not a part of proving the fact of a prior conviction.

McCormack, J.

NATURE OF CASE

Tiuana L. Johnson was convicted of escape in violation of Neb.Rev.Stat. § 28–912(5)(a) (Reissue 2008) and sentenced as a habitual criminal. On appeal, Johnson does not challenge the underlying conviction for escape. Rather, he challenges the habitual criminal statute on its face and as applied. Johnson also asserts that the State's motion to amend the information was untimely and that his sentence was excessive.

BACKGROUND

On June 21, 2013, Johnson was charged with Class III felony escape, under § 28–912(5)(a). In an amended information filed on August 15, 2013, Johnson was also charged with being a habitual criminal under Neb.Rev.Stat. § 29–2221 (Reissue 2008).

Johnson objected to the State's motion to amend the information to add the habitual criminal charge. The hearing on the State's motion to amend was held on August 15, 2013. Johnson argued that the county attorney had had ample time and that Johnson was ready to plead no contest to the charge in the original information. The State explained that it had been waiting to receive the record of two prior convictions that it wished to use in support of the habitual criminal charge. The State also observed that there was still plenty of time remaining for the State's statutory obligation to bring Johnson to trial. The court allowed the amendment. The amended information was filed on that same date.

Johnson thereafter filed a motion to quash the amended information insofar as it charged Johnson with being a habitual criminal. In the motion to quash, Johnson asserted that the habitual criminal statutory scheme was unconstitutional because it fails to provide for a jury determination of certain facts pertaining to the prior convictions. Johnson also asserted that application of the habitual criminal statutes violated double jeopardy because the same conviction that made the escape charge a Class III felony rather than a Class IV felony formed the basis of the habitual criminal enhancement. Johnson further asserted that the application of the habitual criminal statutes would violate a state constitutional provision, Neb. Const. art. I, § 15, requiring that penalties be proportionate to the offense. Finally, Johnson asserted that application of the habitual criminal enhancement would be cruel and unusual punishment. Johnson did not assert in the motion to quash that the untimeliness of the amendment to the information prejudiced his substantial rights.

The court overruled the motion to quash. Johnson waived his right to a jury trial and his right to a speedy trial. The underlying charge of escape was tried on November 25, 2013, on three stipulated exhibits, subject to Johnson's renewed motion to quash and the court's guarantee that it would not consider any other crimes, wrongs, or acts for purposes of determining whether Johnson committed the crime of escape. Additionally, Johnson stipulated that he was the person named in the exhibits.

These exhibits generally show that on September 20, 2012, Johnson was incarcerated following a conviction for the commission of an offense. He was out on an approved “Job Seeking pass” in Lincoln, Nebraska, and failed to return. Johnson committed a robbery in Omaha, Nebraska, that same day. Johnson was apprehended on September 28 and confessed to the escape and robbery.

The court found Johnson guilty of escape, in violation of § 28–912(5)(a). Upon the court's inquiry, Johnson's counsel indicated that she was “fine with” taking up the issue of enhancement.

In support of the habitual criminal charge, the court accepted into evidence five exhibits proffered by the State. Johnson did not make any objection to the exhibits other than those based on his prior motion to quash. The exhibits demonstrated that before his escape on September 20, 2012, Johnson had committed nine crimes for each of which he had been sentenced to a term of imprisonment for not less than 1 year.

The exhibits show that Johnson was convicted on October 24, 1997, of receipt of stolen property, in relation to events on June 19. He was not sentenced until May 11, 1998, at which time he was sentenced to 2 to 4 years' imprisonment.

On October 2, 1998, Johnson was convicted of robbery and a related use of a weapon charge in relation to events on March 22 and was sentenced to imprisonment for 2 to 4 years on the robbery conviction and 1 to 3 years on the use of a weapon conviction. Those sentences were ordered to be served consecutively with each other, but concurrently with the May 11 sentence for receipt of stolen property.

On July 31, 2003, Johnson was convicted of four counts of robbery under one docket and one count of burglary under a different docket. The robberies and burglary occurred on different dates between December 15, 2002, and January 6, 2003, and involved different victims. On September 17, 2003, Johnson was sentenced to 2 ½ to 5 years' imprisonment for each robbery, each sentence to be served consecutively. On

that same date, he was sentenced to 2 to 3 years' imprisonment for the burglary, to be served concurrently to the sentences for the robberies.

Finally, on February 8, 2010, Johnson was convicted under § 28–912(1)(5) of escape in relation to events on September 15, 2009. On April 28, 2010, Johnson was sentenced to 2 to 2 years' imprisonment for that crime.

The court also accepted into evidence, without any objection, printouts offered by Johnson of Nebraska inmate details from the Nebraska Department of Correctional Services. The printouts indicate that October 21, 2002, was the mandatory release date for the conviction of receipt of stolen property and the convictions of robbery and the related use of a weapon. Thus, Johnson was no longer serving those sentences at the time of the escape underlying this appeal.

At the close of the evidence, Johnson renewed his motion to quash. With regard to the double jeopardy challenge, Johnson argued that the State had failed to show two prior convictions for purposes of the habitual criminal charge that were both convictions under which Johnson was no longer detained at the time of his escape on September 20, 2012. Johnson explained that he believed the October 24, 1997, conviction for receipt of stolen property and the October 2, 1998, convictions for robbery and use of a weapon counted as only one conviction under the habitual criminal statutes, because the sentences for the robbery and use of a weapon convictions were to be served concurrently with the sentence for the receipt conviction.

ASSIGNMENTS OF ERROR

Johnson assigns that the trial court (1) abused its discretion by improperly permitting the State to amend the information over Johnson's objection; (2) erred by improperly overruling Johnson's motion to quash, in violation of the 6th, 8th, and 14th Amendments to the U.S. Constitution and article I, §§ 6, 9, 11, and 15, of the Nebraska Constitution ; and (3) abused its discretion by imposing an excessive sentence.

STANDARD OF REVIEW

A ruling on whether to allow a criminal information to be amended is made by the trial court in its discretion.¹

When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusion.²

An appellate court reviews criminal sentences for abuse of discretion, which occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.³

ANALYSIS

Timeliness of Amendment to Information

Johnson first argues that the trial court abused its discretion in allowing the State to amend its information to add the habitual criminal charge. He asserts that prior to the hearing on August 15, 2013, he was unaware of the State's intention to amend the information. Without providing any further detail, he generally asserts that “[t]he unexpected change of the allegations forced [Johnson] to quickly adjust his defense strategy in a manner that prejudiced [Johnson's] ability to exercise his constitutional right to effectively defend himself.”⁴

A ruling on whether to allow a criminal information to be amended is made by the trial court in its discretion.⁵ A judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right, and denying a just result in matters submitted for...