State v. Thomas

311 Neb. 989

977 N.W.2d 258

STATE of Nebraska, appellee,

v.Rubin J. THOMAS, appellant.

No. S-21-551.

Supreme Court of Nebraska.

Filed July 15, 2022

Christopher Eickholt, of Eickholt Law, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman, Lincoln, for appellee.

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

Papik, J. Rubin J. Thomas appeals the convictions and sentences resulting from his no contest pleas to changes of conspiracy to commit robbery and conspiracy to commit burglary. Thomas argues the district court erred by not discharging his appointed counsel, by revoking his bond, and by not recusing itself prior to sentencing. He also argues that he received ineffective assistance of counsel and that his sentences were excessive. We affirm.

I. BACKGROUND

In October 2019, the State filed an information charging Thomas with two counts of first degree murder and one count of use of a firearm to commit a felony. The murder charge was based on a felony murder theory: the State alleged that on July 24, 2019, Audrea S. Craig and Martae Green were killed during Thomas’ perpetration or attempted perpetration of a robbery.

The State later filed an amended information, adding an allegation that Thomas committed attempted burglary on July 11, 2019. This amended information also alleged that, based on prior convictions, Thomas should be sentenced as a habitual criminal.

The State and Thomas eventually reached a plea agreement in April 2021. Pursuant to the plea agreement, the State filed a second amended information charging Thomas with conspiracy to commit robbery and conspiracy to commit burglary. The second amended information alleged that Thomas conspired with others to rob Craig on July 24, 2019, and that he conspired with others to commit a burglary on July 11, 2019. As part of the plea agreement, the State agreed not to pursue other charges regarding these incidents and to dismiss an unrelated charge; Thomas agreed to plead no contest to the charges in the second amended information.

At the plea hearing, the district court asked the State to explain what the evidence would show if the State proceeded with the charges at issue. With respect to the conspiracy to commit burglary charge, the prosecutor stated that on July 11, 2019, Thomas and several other individuals met at a location near 27th and South Streets in Lincoln, Nebraska, where they planned to break into a nearby residence and steal money and/or marijuana. Thomas had been in the residence previously and unlocked a window to allow for easy entrance, but when they arrived at the residence, the window was locked.

Members of the group tried to pry the window open and attempted to kick in a door, but when they saw children looking out of a window of the residence, they left the area.

With respect to the conspiracy to commit burglary charge, the prosecutor summarized evidence that a group of individuals planned to break into the same residence to commit a robbery. The group included Thomas; Green; Green's brother, Charles Gresham; and two other individuals. The group gathered on the evening of July 23, 2019, and then in the early morning hours of the next day, Thomas led the group to the area.

Green and Gresham entered the residence armed with handguns and threatened Craig and her boyfriend. A struggle ensued and multiple gunshots were fired. Green and Gresham quickly departed. Craig died at the scene as a result of multiple gunshot wounds. Thomas and the others transported Green to a local hospital where he was pronounced dead as a result of a gunshot wound a short time later.

The district court accepted Thomas’ no contest pleas to the conspiracy to commit robbery and conspiracy to commit burglary charges and convicted him on both counts. The district court later sentenced Thomas to consecutive terms of imprisonment of 26 to 32 years for conspiracy to commit robbery and 14 to 20 years for conspiracy to commit burglary.

Additional background regarding the issues Thomas raises on appeal are discussed in the analysis section below.

II. ASSIGNMENTS OF ERROR

Thomas assigns a number of errors on appeal. We have condensed, restated, and divided them into several categories for ease of analysis. First, Thomas assigns errors concerning the district court's response to motions he filed to discharge his court-appointed trial counsel. Thomas contends that the district court erred by not discharging trial counsel and by conducting an off-the-record hearing on one of Thomas’ motions to discharge. Thomas also asserts that his counsel was ineffective for failing to withdraw as counsel and for permitting the off-the-record hearing.

Thomas’ second category of assigned errors relates to the district court's revocation of Thomas’ bond. Here, Thomas contends that the district court erred by revoking his bond and by not recusing itself after explaining its decision to revoke the bond. He also asserts that his counsel was ineffective for failing to move for the district court's recusal after the bond revocation.

In addition to the above assignments of ineffective assistance of counsel, Thomas also assigns that his trial counsel was ineffective in two other respects. He claims that his counsel was ineffective for failing to investigate an alibi defense and for failing to subpoena or interview a named potential witness.

Finally, Thomas assigns that his sentences were excessive.

III. ANALYSIS

1. ATTEMPTS TO DISCHARGE TRIAL COUNSEL

(a) Additional Background

After charges were filed but before Thomas entered his plea, Thomas filed several pro se motions to discharge his trial counsel. Thomas filed his first such motion in August 2020. At a hearing on the motion, however, Thomas’ trial counsel stated that it was his understanding that Thomas wished to withdraw the motion. The district court then inquired of Thomas whether that was correct. Thomas responded, "Yes, ma'am."

Approximately 2 months later, in October 2020, Thomas filed a second pro se motion to discharge his counsel. In the motion, Thomas expressed frustration that while he did not wish to enter a plea deal, his appointed counsel was encouraging him to do so. He asked that new counsel be appointed to represent him. At a hearing on Thomas’ second motion, his counsel requested that the prosecutors be excused from the courtroom, so that Thomas could discuss his motion with the district court. The district court then asked the prosecutors to leave the courtroom, and the record reflects there was an in camera hearing on the motion. When the prosecutors returned, the district court noted that it overruled Thomas’ motion for new counsel.

On April 6, 2021, Thomas filed a third pro se motion to discharge his counsel. Thomas asserted that his counsel had told him numerous times that he would be found guilty at trial. Thomas claimed that he did not trust his counsel and again asked that new counsel be appointed to represent him.

Just over a week after Thomas filed his third motion to discharge counsel, on April 14, 2021, he entered his no contest pleas. There is no indication in our record that the district court took action with respect to the motion to discharge counsel before accepting Thomas’ pleas.

After the State presented the factual basis for Thomas’ pleas at the plea hearing, the following exchange took place between Thomas and the district court:

THE COURT: Have you told your attorney everything you know about this case?

[Thomas]: Yes, ma'am.

THE COURT: Are you aware of anything that could help you that you've not already discussed with your attorney?

[Thomas]: No, ma'am.

THE COURT: Are you satisfied with the job your attorney has done for you?

[Thomas]: Yes, ma'am.

THE COURT: And, insofar as this case is concerned, do you believe your attorney is competent and knows what he is doing?

[Thomas]: Yes, ma'am.

THE COURT: Have you had enough time to talk with your attorney about this case?

[Thomas]: Yes, I have.

THE COURT: And, before we go any further here today, do you need any more time to talk to him about anything?

[Thomas]: No, ma'am.

(b) Standard of Review

Whether a party waived his or her right to appellate review is a question of law. Becher v. Becher , 299 Neb. 206, 908 N.W.2d 12 (2018). When reviewing questions of law, an appellate court resolves the questions independently of the trial court's conclusions. Id.

(c) Assigned District Court Error Analysis

Thomas argues that the district court erred by not discharging his trial counsel and by holding an off-the-record hearing on Thomas’ second motion to discharge his counsel. But these arguments have been waived by Thomas’ no contest pleas.

A voluntary guilty plea or plea of no contest waives all defenses to a criminal charge. State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022). When a defendant pleads guilty or no contest, the defendant is limited to challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel. Id. Thomas’ challenges to the district court's rulings with respect to his motions to discharge his trial counsel do not fall into these limited categories. They have therefore been waived, and we will not address their merits.

(d) Ineffective Assistance of Counsel Analysis

Thomas also asserts that he received ineffective assistance of counsel with respect to his attempts to discharge his trial counsel. He assigns that his counsel was ineffective for failing to withdraw despite Thomas’ requests that he be discharged and for permitting the off-the-record hearing on his second motion to discharge.

Before turning to Thomas’ ineffective assistance of counsel claims, we briefly review the well-established law governing such claims. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. Id. To show that counsel's...