State v. Miller

1

315 Neb. 951

State of Nebraska, appellee, v. Jordon J. Miller, appellant.

No. S-23-124

Supreme Court of Nebraska

February 16, 2024

1. Pleas: Courts. A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas before sentencing.

2. Pleas: Appeal and Error. An appellate court will not disturb the trial court's ruling on a presentencing motion to withdraw a guilty or no contest plea absent an abuse of discretion.

3. Effectiveness of Counsel: Constitutional Law Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement.

4. Effectiveness of Counsel: Appeal and Error. In reviewing a claim of ineffective assistance of trial counsel on direct appeal, an appellate court determines as a matter of law whether the record conclusively shows that (1) a defense counsel's performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel's alleged deficient performance.

5. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.

6. ___ ___. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result.

7. Pleas. When a defendant moves to withdraw his or her plea before sentencing, a court, in its discretion, may sustain the motion for any fair and just reason, provided that such withdrawal would not substantially prejudice the prosecution.

8. Pleas: Proof. A defendant moving to withdraw his or her plea before sentencing has the burden to show the grounds for withdrawal by clear and convincing evidence.

9. Pleas. A defendant's change of mind alone is not a fair and just reason to withdraw a guilty or no contest plea.

10. Effectiveness of Counsel: Postconviction: Records Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record; otherwise the issue will be procedurally barred in a subsequent postconviction proceeding.

11. ___: ___: ___: ___. An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges deficient performance with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction relief to recognize whether the claim was brought before the appellate court.

12. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of ineffective assistance of counsel is raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel.

13. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an appellate court will determine whether the record on appeal is sufficient to review the merits of the ineffective performance claims. The record is sufficient if it establishes either that trial counsel's performance was not deficient, that the appellant will not be able to establish prejudice as a matter of law, or that trial counsel's actions could not be justified as a part of any plausible trial strategy.

14. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.

15. ___: ___. To show that counsel's performance was deficient, the defendant must show counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.

16. ___: ___. To show prejudice from counsel's deficient performance, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

17. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is based upon a plea of no contest, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading no contest.

18. Effectiveness of Counsel. The viability of any defense goes to the likelihood of whether a rational defendant would have insisted on going to trial.

19. Double Jeopardy: Speedy Trial: Indictments and Informations. When an amended information is filed, the relevant question for statutory speedy trial purposes under Neb. Rev. Stat. § 29-1207 (Reissue 2016) is whether any count charged in the amended information is the same "offense" charged in the original information (and therefore whether the speedy trial clock should run from the filing of the original information) or whether it is a new "offense" charged for the first time in the amended information (and therefore whether the speedy trial clock should run from the filing of the amended information). The question whether a count in an amended information is a new "offense" should be determined based on principles applied to determine whether it would violate double jeopardy if a new prosecution on the count were commenced after completion of the prosecution for a count charged in the original information.

20. Double Jeopardy. The Double Jeopardy Clauses of the U.S. and Nebraska Constitutions are coextensive and protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

21. Double Jeopardy: Statutes: Proof. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether, for double jeopardy purposes, there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

22. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime.

23. ___. The sentencing court is not limited to any mathematically applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that includes the sentencing judge's observations of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed.

Gregory A. Pivovar for appellant.

Michael T. Hilgers, Attorney General, and Teryn Blessin for appellee.

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

Miller-Lerman, J.

NATURE OF CASE

Jordon J. Miller appeals his plea-based conviction and sentence in the district court for Douglas County for second degree murder. Miller generally claims that the district court erred when it overruled his motion to withdraw his plea, that his statutory right to a speedy trial was violated, and that the court imposed an excessive sentence. He also contends that he was provided ineffective assistance of trial counsel in various respects. We affirm Miller's conviction and sentence.

STATEMENT OF FACTS

On May 6, 2020, the State filed an information charging Miller with one count of criminal conspiracy to promote or facilitate the commission of the felony of discharging a firearm at an occupied motor vehicle. The charge against Miller arose from an incident that occurred on March 9 after a codefendant fired shots from an address in Omaha, Nebraska, at a passing black Dodge Dart occupied by Jade Lea. Miller and other codefendants entered a black Jeep that had just pulled up to the address in a hurried fashion. The Jeep took off in pursuit of the Dart. After the Jeep caught up to the Dart shots were fired from the Jeep toward the Dart. Lea suffered a gunshot wound, and he later died from the injury.

On May 20, 2020, Miller filed a plea in abatement requesting dismissal of the information on the basis that the State adduced insufficient evidence at the preliminary hearing to show probable cause to support the charge. After a hearing, on September 24, the court overruled Miller's plea in abatement. On November 30, Miller filed a motion for a bill of particulars, and the court overruled the motion on December 17.

The district court held a status hearing on January 29, 2021, to set the matter for a jury trial. At the hearing, the State's attorney stated that he had taken "a look at our speedy trial clock" and noted "a number of motions by the defense," specifically, the plea in abatement and the motion for a bill of particulars. The State's attorney asserted that his calculations showed that "we have about two and a half months left of speedy trial." The State's attorney stated that he had not "looked at that number...