State v. Warren

312 Neb. 991

982 N.W.2d 207

STATE of Nebraska, appellee,

v.Benjamin J. WARREN, appellant.

No. S-21-1003.

Supreme Court of Nebraska.

Filed December 2, 2022

Nicholas R. Glasz, of Glasz Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.

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

Funke, J.

INTRODUCTION

Following a jury trial in the county court for Lancaster County, Nebraska, Benjamin J. Warren was convicted of disturbing the peace. Warren's counsel timely filed an appeal with the district court for Lancaster County and later filed a bill of exceptions. However, counsel did not file a statement of errors within 10 days of filing the bill of exceptions, as is required by Neb. Ct. R. § 6-1518(B). As a result, the district court reviewed Warren's appeal only for plain error. Finding none, it affirmed the county court's judgment. Warren then filed a motion to reconsider, which the district court denied after considering counsels’ arguments and the record as to Warren's beliefs that he is not guilty and would have been found not guilty if his proposed witness had testified at trial. Warren appeals. We affirm.

BACKGROUND

In 2020, Warren was charged with obstructing a peace officer, disturbing the peace, and second degree criminal trespass. After trial in the matter, Warren was found guilty of disturbing the peace, but not guilty of the remaining charges. At sentencing, Warren was ordered to pay a $300 fine and was given credit for time served.

Following sentencing, Warren's trial attorney timely filed a notice of appeal with the district court for Lancaster County. A motion for substitute counsel was then sustained by the county court, and a new attorney was appointed to represent Warren. Counsel caused to be filed a bill of exceptions; however, the attorney failed to file a statement of errors within 10 days of filing the bill of exceptions or at any time thereafter.

Warren's appeal came on for hearing before the district court on August 24, 2021, at which time, counsel orally moved to submit the matter to the court on the parties’ briefs, which included Warren's initial brief, the State's answer brief, and Warren's reply brief. Warren's counsel indicated Warren's agreement to this, and the court verified Warren's consent. Warren said "[y]es" when the court asked him whether submission on the briefs was "okay."

Several days later, the district court affirmed the judgment and sentence of the county court. Because no statement of errors was timely filed, the district court limited its review to plain error per State v. Nielsen .¹ It found none.

Warren subsequently sought reconsideration from the district court, arguing that he was not guilty of disturbing the peace and that he would have been found not guilty if his proposed witness had been called to testify at trial. The motion for reconsideration also stated that although Warren's counsel advised him that testimony by a single witness that his or her peace was disturbed, if believed beyond a reasonable doubt by the jury, would suffice to prove guilt, Warren "believes that this would be considered plain error" under Nielsen .

Simultaneous with the request for reconsideration, the second attorney to appear on Warren's behalf moved to withdraw. This motion was granted, and yet another attorney was appointed to represent Warren in the matter.

At the hearing on the motion to reconsider, Warren argued that, on appeal, he received ineffective assistance of counsel and that he should be allowed to file the statement of errors for the court to reconsider the appeal.

The district court subsequently overruled Warren's motion to reconsider, which it treated as a motion to alter or amend per DeBose v. State² and related cases. The district court specifically mentioned Warren's beliefs regarding his guilt and his proposed witness’ testimony. It indicated that "[o]n each of these points," it "considered the arguments of counsel [and] reviewed the record," but it denied the motion.

Warren appealed to the Nebraska Court of Appeals, and we moved the matter to our docket.

ASSIGNMENTS OF ERROR

Warren assigns, restated, that (1) the district court erred in limiting its review to plain error and (2) counsel was ineffective in failing to file a statement of errors.

STANDARD OF REVIEW

Where no timely statement of errors is filed in an appeal from a county court to a district court, appellate review is limited to plain error.³ In cases where no statement of errors was filed, but the record showed that the district court considered an issue that was also assigned to a higher appellate court, the Nebraska Supreme Court or the Court of Appeals may consider that issue.⁴

Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact.⁵ When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error.⁶ With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington ,⁷ an appellate court reviews such legal determinations independently of the lower court's decision.⁸

ANALYSIS

FAILURE TO FILE STATEMENT OF ERRORS

Warren argues that the district court erred by reviewing his appeal only for plain error, instead of reviewing the errors alleged in his briefs. He maintains that the district court should have considered the errors alleged in the briefs, because the court "had the matter submitted on [the] briefs."⁹ Warren's arguments, however, are inconsistent with the prior decisions of this court and the record on appeal. As such, they are without merit.

Section 6-1518(B) prescribes that in an appeal from the county court to the district court, the appellant shall file a statement of errors with the district court within 10 days of filing the bill of exceptions. Such statement shall consist of a separate, concise statement of each error allegedly made by the trial court, and each assignment of error shall be separately numbered and paragraphed.¹⁰ This rule is a longstanding one, adopted in 1991,¹¹ and we have recognized that it serves an important purpose. The purpose of the rule is to specifically direct the attention of the reviewing court to precisely what error was allegedly committed by the lower court and to advise the nonappealing party of what is specifically at issue in the appeal.¹² We and the Court of Appeals have repeatedly held that where an appellant fails to comply with this rule, appellate review is limited to plain error under the standard previously noted.¹³

Warren would have us disregard these precedents and find that the district court should have considered the errors alleged in his briefs because the matter was submitted on the briefs. We decline to adopt such an approach given the facts and circumstances of this case. The record shows that Warren moved for the matter to be submitted to the court on briefs. His counsel indicated that he agreed to submission on the briefs, and the court expressly sought and received his consent to proceed in this manner. As the party who moved for submission on the briefs, Warren cannot now rely on the court's acceptance of such submission as the basis for asserting that the court should have considered the arguments in the briefs despite the general rule that review is limited to plain error when an appellant fails to file a statement of errors.

Further, the record shows that the district court actually considered Warren's beliefs about his guilt and his proposed witness’ testimony in connection with Warren's motion for reconsideration. The district court limited its review to plain error under the precedents previously cited when it initially affirmed the judgment and sentence of the county court. However, Warren subsequently moved for reconsideration, which the district court treated as a motion to alter or amend.¹⁴ At that point, the district court "considered the arguments of counsel [and] reviewed the record" as to Warren's beliefs that he is not guilty of disturbing the peace and that he would have been found not guilty if his proposed witness testified at trial.

It is not apparent from the record what, if any, other errors Warren's briefs may have assigned as to the county court proceedings. The briefs are not part of the record on appeal. Additionally, he has not provided any indication of other alleged errors as to the county court proceedings beyond his beliefs about his guilt, his proposed witness’ testimony, and his conviction based on the testimony of one witness. The appellant has the duty to present a record supporting the assigned errors.¹⁵ Insofar as Warren alleges that the district court erred in not considering other issues raised in the briefs, he failed to provide a record supporting such error.

INEFFECTIVE ASSISTANCE OF COUNSEL

Warren argues that his "trial counsel" was ineffective in failing to file a statement of errors.¹⁶ He argues that prejudice to his defense should be presumed because he "was effectively denied his due process right to appeal."¹⁷ He maintains that his case is "analogous" to Garza v. Idaho¹⁸ and Roe v. Flores–Ortega ,¹⁹ two decisions in which the U.S. Supreme Court found that prejudice is presumed where counsel fails to file an appeal when requested to do so by the defendant.²⁰ He similarly maintains that he received the same type of cursory review that the concurring opinion in State v. Sundquist²¹ suggested may warrant a presumption of prejudice. We disagree.

Generally, to prevail on a claim of ineffective assistance of counsel under Strickland ,²² the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.²³ In this case, the State concedes that the failure to file a statement of errors was deficient performance. As...