State v. Seeley

1

State of Nebraska, appellee, v. Martin Seeley, appellant.

No. A-22-572.

Court of Appeals of Nebraska

February 14, 2023

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 Box Butte County: Travis P O'Gorman, Judge. Affirmed.

Jerrod Jaeger, of Jaeger Law Office, P.C., L.L.O, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

Pirtle, Chief Judge, and Arterburn and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

WELCH JUDGE

INTRODUCTION

Martin Seeley appeals his plea-based conviction of possession of fentanyl with the intent to distribute. He assigns error relating to his plea and the sentence imposed. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

In August 2021, Seeley was charged in Box Butte County District Court with possession of fentanyl with the intent to distribute while knowingly or intentionally possessing a firearm during the commission of the offense, a Class ID felony; possession of a firearm during the commission of a felony, a Class II felony; possession of methamphetamine, a Class IV felony; possession of money used or intended to be used to facilitate a violation of § 28-416, a Class IV felony; and possession of drug paraphernalia, an infraction.

On April 26, 2022, the State filed an amended information charging Seeley with possession of fentanyl with the intent to distribute, a Class II felony. A plea hearing was held on May 11. During the plea hearing, defense counsel, in outlining the plea agreement, stated that Seeley would "plead no contest - to a Class II felony of attempted possession with intent [to distribute] of a controlled substance." Both the prosecutor and Seeley agreed with defense counsel's statement. However, the amended information filed by the State did not charge Seeley with attempted possession of a controlled substance with the intent to distribute; the amended information charged Seeley with the Class II felony of possession of fentanyl with the intent to distribute.

During the plea hearing, the following colloquy occurred between the district court and Seeley:

THE COURT: . . . You are charged with one count, possession of a controlled substance with intent to distribute, fentanyl. That is a Class II felony. The possible penalty for that is a minimum one-year imprisonment and a maximum of 50 years. Do you understand the charge and the possible penalty?

THE DEFENDANT: I do.

After advising Seeley of the charges, the penalties, and his rights, the court asked Seeley "How do you plead to possession of a controlled substance with intent to distribute, fentanyl, a Class II felony?" to which Seeley responded, "No contest." As part of the plea agreement, the State agreed to stand silent at sentencing.

The State provided a factual basis which set forth that, on July 2, 2021, an officer contacted Seeley at a hotel. During the investigation, the officer discovered 74 fentanyl pills, cash, and other paraphernalia indicative of distribution of fentanyl.

At the sentencing hearing, the court stated that it had listened to defense counsel's remarks and considered the presentence investigation report. The court stated:

In arriving at your sentence, I've considered your age, your mentality, your education, your experience, your social and cultural background, as well as your past criminal record.

I don't see a record in Nebraska. You do have a few thefts and assaults in other jurisdictions.

[As defense counsel] alluded to, this is a serious offense. You know, you were in a motel room in Alliance with 72 fentanyl pills, 2 grams of meth, as well as multiple firearms, and a large amount of cash. The PSI indicates that you're a high risk to reoffend.

. . . I understand you're an addict. . . . [B]ut that's not what you're being punished for today. If that's all you were being punished for . . . I would do everything I can to get you as much help as I can. But you've taken it a step further by dealing.

You know, we've got a real problem here right now, especially with fentanyl. I'm seeing cases where I have defendants come to court; the next thing I know they're overdosed and I don't see them again. I mean, it's getting that bad.

And I think anything less than a period of incarceration would depreciate the seriousness of the offense and promote a disrespect for the law. . . . [Y]our conduct puts the entire community in grave danger.

The district court sentenced Seeley to 8 to 10 years' imprisonment with credit for 363 days previously served. Seeley has timely appealed to this court and is represented by different counsel than represented him during his plea and sentencing.

ASSIGNMENTS OF ERROR

Seeley's assignments of error, restated, are that the district court erred in allowing the State to file an amended information charging him with possession of fentanyl with the intent to distribute, which he contends was not contemplated by the plea agreement, and committed plain error in accepting his plea "to a charge not contained in the charging document." He also contends that trial counsel was ineffective in failing "to correct errors in the proceedings" and failing "to object to the acceptance of [Seeley's] plea" to the offense of possession of fentanyl with the intent to distribute which he contends was "a charge not contemplated by the plea agreement." His final assigned error is that the sentence imposed was excessive.

STANDARD OF REVIEW

When the facts are undisputed, the question of whether there has been a breach of a plea agreement is a question of law. State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017). When issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013).

Consideration of plain error occurs at the discretion of an appellate court. State v. Roth, 311 Neb. 1007, 977 N.W.2d 221 (2022). Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. Id.

The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved on direct appeal; the determining factor is whether the record is sufficient to adequately review the question. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). The record is sufficient to resolve on direct appeal a claim of ineffective assistance of counsel if the record affirmatively proves or rebuts either deficiency or prejudice with respect to the defendant's claims. Id.

A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. State v. Morton, 310 Neb. 355, 966 N.W.2d 57 (2021).

ANALYSIS

Alleged Error Regarding Charged Offense

Seeley first contends that the district court erred in allowing the State to file an amended information charging him with possession of fentanyl with the intent to distribute which he contends was not contemplated by, or in breach of, the plea agreement. He also contends that the district court committed plain error in accepting his plea "to a charge not contained in the charging document."

We first address Seeley's claim that the amended information filed by the State constituted a breach of the parties' plea agreement. He claims that defense counsel stated during the plea hearing that Seeley would plead to an amended charge of attempted possession of a controlled substance with the intent to deliver, a Class II felony. However, the amended information, which was filed weeks prior to the plea hearing actually charged Seeley with possession of fentanyl with the intent to distribute, a Class II felony. Seeley now argues that he should be allowed to withdraw his plea.

However, the Nebraska Supreme Court has held that if the defendant remains silent upon the breach of a plea agreement, he or she can neither move to withdraw the plea nor seek specific performance of the agreement. See State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003). Thus, Seeley has waived his right to assert as error on appeal any purported breach of the plea agreement by the State. See State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020) (where no objection was made to sentencing judge for plea bargain violation, defendant has waived the error and it has not been preserved for appellate review).

Further we reject Seeley's claim that the district court committed plain error in accepting his plea "to a charge not contained in the charging document." The amended information clearly charged Seeley with possession of fentanyl with the intent to distribute. And, during the...