State v. Mallory

STATE OF NEBRASKA, APPELLEE, v. LEAH MALLORY, APPELLANT.

No. A-19-1185.

NEBRASKA COURT OF APPEALS

September 1, 2020

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).

Appeal from the District Court for Colfax County: CHRISTINA M. MARROQUIN, Judge. Affirmed.

Erik C. Klutman, of Sipple, Hansen, Emerson, Schumacher, Klutman & Valorz, for appellant.

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

PIRTLE, BISHOP, and WELCH, Judges.

WELCH, Judge.

INTRODUCTION

Leah Mallory appeals her plea-based conviction for driving under a period of revocation. She contends that the district court erred in finding the State presented a sufficient factual basis to support her plea; that the court erred as a matter of law in failing to apply the reasoning and holding of State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012); and that she received ineffective assistance of trial counsel. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

The State initially charged Mallory with driving during a period of revocation, in violation of Neb. Rev. Stat. § 60-6,197.06 (Cum. Supp. 2018), a Class IV felony; careless driving, an infraction; and having an open alcoholic beverage container in a passenger area of her vehicle, aninfraction. Pursuant to a plea agreement, Mallory pled no contest to driving under a period of revocation and the State dismissed the remaining charges.

The State provided a factual basis which set forth that on January 5, 2019, at around 5 p.m., law enforcement responded to a vehicle stuck on railroad tracks. A sheriff's deputy contacted Mallory, who identified herself as the vehicle's driver. She did not have any identification and stated that she was using her cell phone to get directions when she went off the road and her car became stuck on the railroad tracks. Upon checking the status of Mallory's license, the deputy learned that Mallory was driving under a 15-year revocation. Additionally, Mallory stated that she knew she was not supposed to be driving. Exhibit 1, the certified judgment of Mallory's 2009 conviction for third-offense driving under the influence, was received into evidence with no objection. Exhibit 1 established that Mallory was

ordered to apply for and obtain an ignition interlock permit and install an ignition interlock device on each motor vehicle that she owns after she has completed seven (7) years of license revocation from the date of June 1, 2009. Installation of an ignition interlock device shall remain on all vehicles owned by [Mallory] for the balance of the 15 year operator's license revocation period.

At the plea hearing, defense counsel stated "I guess I would represent to the Court that [Mallory] does have the interlock in her car now."

During the sentencing hearing, Mallory stated to the district court: "I know that I made a mistake. And it will not happen again. I had had the intoxilate (sic) in my car for a couple of years, and then there was a twelve-day period where I did not have it. And then as soon as I was bailed from jail I got it back on there. It will not happen again." The court responded:

All right. I have considered the presentence investigation and your age, your criminal history, I know that you're currently employed full time, the nature of the offense and what occurred. Miss Mallory, I think this is - there's a fine line here between whether you're a candidate for probation or not. And that fine line is that you're ordered not to drive. You're ordered to have an ignition interlock in your vehicle. And your record reflects quite a substantial amount of DUIs. Which concerns me that there was alcohol found in your vehicle, that the officer noted an odor of alcohol on your breath. You had a [driving under revocation] charged and reduced to a [driving under suspension] in 2006. So this isn't the first time.

. . . .

It appears that [you] were originally charged with driving under a revoked license out of that case.

And your scores for truthfulness are also concerning.

That being said, I do recognize that you've done probation successfully in the past, and it seems to be that supervision is helpful for you so that you don't continue.

So what I'm going to do in this case is, I do not feel just a term of probation is sufficient. I would impose incarceration at a much greater level, but what I'm going to do is I'm going to give you a short term of jail in addition to a probation order rather than a sentence to an institution.

The court sentenced Mallory to 3 years' probation, ordered her to serve 30 days in jail, and revoked her operator's license for 15 years. She was given credit for 3 days previously served. Mallory has timely appealed to this court and is represented by different counsel than represented her during her plea and sentencing.

ASSIGNMENTS OF ERROR

Mallory assigns as error that (1) the district court erred in finding that the State presented a sufficient factual basis to support her plea of no contest, and her conviction of, driving under a period of revocation; (2) the district court erred in failing to apply the reasoning and holding of State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012); and (3) that her trial counsel was ineffective in (a) advising her to plead no contest, (b) advising her to plead to § 60-6,197.06 when the correct criminal charge should have been based on a violation of Neb. Rev. Stat. § 60-6,211.05(5) (Cum. Supp. 2018), and (c) in failing to object or introduce evidence of Mallory's driving record including the possession of a valid interlock permit.

STANDARD OF REVIEW

A trial court is afforded discretion in deciding whether to accept guilty pleas, and an appellate court will reverse the trial court's determination only in the case of an abuse of discretion. State v. Ettleman, 303 Neb. 581, 930 N.W.2d 538 (2019).

Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance. Id.

ANALYSIS

SUFFICIENCY OF FACTUAL BASIS PROVIDED BY STATE

Mallory first assigns that the State's factual basis was insufficient to support her conviction because the State failed to assert, as a part of its factual basis, that Mallory drove on a revoked license without an ignition interlock permit.

As stated before, Mallory was charged and pled to a violation of § 60-6,197.06(1) which provides in relevant part:

Unless otherwise provided by law pursuant to an ignition interlock permit, any person operating a motor vehicle on the highways or streets of this state while his or her operator's license has been revoked pursuant to section 28-306, section 60-698, subdivision (4), (5), (6), (7), (8), (9), or (10) of section 60-6,197.03, or section 60-6,198, or pursuant to subdivision (2)(c) or (2)(d) of section 60-6,196 or subdivision (4)(c) or (4)(d) of section 60-6,197 as such subdivisions existed prior to July 16, 2004, shall be guilty of a Class IV felony, and the court shall, as part of the judgment of conviction, revoke the operator's license of such person for a period of fifteen years from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01. Such revocation and order shall beadministered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.

Mallory now argues that although her license had been revoked, the presentence investigation report revealed that she "may" have obtained an interlock permit prior to the date of the offense. Specifically, she argues the fact that she had been issued speeding citations following her 15-year revocation without being charged for violating § 60-6,197.06(1) suggests that she had obtained an interlock permit and was utilizing the interlock device on previous occasions and simply failed to have the interlock device installed at the time of the current violation. As such, Mallory argues that pursuant to the Nebraska Supreme Court's holding in State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012), she should have been charged with a violation of § 60-6,211.05(5) for failing to operate a vehicle which is not equipped with an ignition interlock device in violation of court orders and not a violation of § 60-6,197.06(1) for failing to obtain an interlock permit. Mallory also argues that the State's failure to offer evidence in its factual basis that Mallory failed to obtain an ignition interlock permit prior to driving created an insufficiency of the State's factual basis in that the State failed to provide facts supporting that element of the offense and that Mallory's plea should be vacated due to this deficiency.

As it relates to the sufficiency of a factual basis to support a crime, the Nebraska Supreme Court recently stated in State v. Ettleman, 303 Neb. at 589-90, 930 N.W.2d at 544:

We have long stated that a trial court is accorded discretion in deciding to accept a guilty plea. See State v. Clemens, [300 Neb. 601, 915 N.W.2d 550 (2018)]. However, we are aware that we have not spoken on the particular level of probable guilt for the factual basis inquiry. We are further aware that there is a range of "proof" which various courts have required. For example, some courts have held that a court does not need to be convinced beyond a reasonable doubt that the defendant is guilty, e.g., Maes v. State, 114 P.3d 708 (Wyo. 2005), but only that the record demonstrates the facts to support the elements of the offense,

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