State v. Sundquist

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/04/2019 08:06 AM CST

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Nebraska Supreme Court A dvance Sheets

301 Nebraska R eports

STATE v. SUNDQUIST

Cite as 301 Neb. 1006

State of Nebraska, appellee, v.

M arvin D. Sundquist, appellant.

___ N.W.2d ___

Filed January 4, 2019. No. S-17-1297.

1. Effectiveness of Counsel: Appeal and Error. Appellate review of a

claim of ineffective assistance of counsel is a mixed question of law

and fact.

2. ____: ____. When reviewing a claim of ineffective assistance of coun-

sel, an appellate court reviews the factual findings of the lower court for

clear error.

3. Courts: Appeal and Error. Both the district court and a higher appel-

late court generally review appeals from the county court for error

appearing on the record.

4. Judgments: Appeal and Error. When reviewing a judgment for errors

appearing on the record, an appellate court’s inquiry is whether the deci-

sion conforms to the law, is supported by competent evidence, and is

neither arbitrary, capricious, nor unreasonable.

5. Appeal and Error. An appellate court independently reviews questions

of law in appeals from the county court.

6. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective

assistance of counsel, the defendant must show that his or her counsel’s

performance was deficient and that this deficient performance actually

prejudiced the defendant’s defense.

7. Effectiveness of Counsel: Records: Appeal and Error. A claim of

ineffective assistance of counsel need not be dismissed merely because

it is made on direct appeal. The determining factor is whether the record

is sufficient to adequately review the question.

8. Effectiveness of Counsel: Proof: Appeal and Error. When an ineffec-

tive assistance of counsel claim 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 defi-

cient performance by trial counsel.

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9. ____: ____: ____. General allegations that trial counsel performed defi-

ciently or that trial counsel was ineffective are insufficient to raise an

ineffective assistance claim on direct appeal and thereby preserve the

issue for later review.

10. Effectiveness of Counsel: Records: Appeal and Error. An ineffective

assistance of counsel claim made on direct appeal can be found to be

without merit if the record establishes that trial counsel’s performance

was not deficient or that the appellant could not establish prejudice.

11. Actions: Waiver: Appeal and Error. Under the law-of-the-case doc-

trine, a well-recognized waiver rule has emerged: A decision made at

a previous stage of litigation, which could have been challenged in the

ensuing appeal but was not, becomes the law of the case; the parties are

deemed to have waived the right to challenge that decision.

Appeal from the District Court for Dodge County, Geoffrey

C. H all and Timothy P. Burns, Judges, on appeal thereto from

the County Court for Dodge County, K enneth J. Vampola,

Judge. Judgment of District Court affirmed.

Marvin D. Sundquist, pro se.

Douglas J. Peterson, Attorney General, and Austin N. Relph

for appellee.

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

Papik, JJ.

Heavican, C.J.

I. INTRODUCTION

This is an appeal from the district court for Dodge County,

Nebraska. Following a retrial in the county court for Dodge

County, a jury convicted Marvin D. Sundquist of driving under

the influence (DUI), second offense aggravated. Sundquist was

sentenced to 18 months’ probation. The district court affirmed.

Sundquist appeals. We affirm.

II. BACKGROUND

At approximately midnight on November 17, 2014, Officer

Anthony Gartner conducted a traffic stop on a vehicle for

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speeding. Sundquist was the driver and only person present

in the vehicle. After making contact with Sundquist, Gartner

smelled the odor of alcoholic beverage coming from inside

the vehicle and noticed that Sundquist’s eyes were watery and

bloodshot. Sundquist also admitted to drinking.

Gartner asked Sundquist to perform certain field sobriety

tests, as well as a preliminary breath test. The results of this

testing indicated that Sundquist was impaired. Sundquist was

arrested and submitted to a chemical breath test performed in

accordance with all relevant regulations. The chemical breath

test was completed using a machine commonly referred to

as a “DataMaster,” a machine that utilizes infrared spectro­

photometry, or an infrared light beam, to measure the alcohol

content in a person’s breath. The result of the chemical breath

test showed Sundquist’s breath alcohol content to be .160 of 1

gram of alcohol per 210 liters of breath.

1. Pretrial Proceedings

The State charged Sundquist with DUI, second offense

aggravated, under Neb. Rev. Stat. §§ 60-6,196 (Reissue 2010)

and 60-6,197.03(5) (Cum. Supp. 2014), a Class I misdemeanor.

At a hearing on January 13, 2015, the State offered to drop

the aggravated portion of the charge as part of a plea agree-

ment in exchange for Sundquist’s pleading guilty or no con-

test. Sundquist, acting pro se, rejected the offer and sought a

jury trial. At the insistence of the court, Sundquist was given

the opportunity to reconsider his decision and to seek coun-

sel. Though the order of events is not entirely clear from the

record, it appears that Sundquist was eventually appointed

counsel, but still rejected the offered plea agreement.

2. First Trial

Trial was held on April 9, 2015. Sundquist, by this time

represented by counsel, objected to Gartner’s testimony regard-

ing the results of Sundquist’s breath test. Sundquist’s objection

was based on the State’s failure to disclose “the appropriate

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certification” to establish Gartner as qualified to operate the

DataMaster. Sundquist argued that “his entire defense was

based on the State’s failure to disclose the correct permit and

that . . . he had prepared no alternative strategy or defense.”

After hearing from the parties, the county court overruled

Sundquist’s objection. The jury found Sundguist guilty, and

the county court found Sundquist’s conviction to be a sec-

ond offense.

Several days later, Sundquist’s counsel moved for a

new trial. Sundquist, acting pro se, moved to withdraw the

motion and further asked that new counsel be appointed. In

response, Sundquist’s trial counsel withdrew and new counsel

was appointed. Sundquist was subsequently sentenced to 18

months’ probation.

3. First A ppeal

On June 16, 2015, Sundquist appealed his conviction to the

district court. In that appeal, Sundquist argued, among other

things, that the county court erred in allowing the arresting

officer “to provide testimony in regard to the results of the

test as his certification to operate the testing device was not

previously provided to [Sundquist] and his counsel.” After

hearing from the parties, the district court agreed that the

county court had erred. The district court further concluded

that the error was not harmless. Accordingly, the district court

reversed the county court’s judgment and remanded the case

for further proceedings.

On February 26, 2016, Sundquist appealed to the Nebraska

Court of Appeals, arguing that the Double Jeopardy Clause for-

bade a retrial. On July 29, in case No. A-16-213, the Court of

Appeals rejected that argument and summarily affirmed.

4. Second Trial

A second trial was held on April 20, 2017. Sundquist filed

multiple pretrial motions. First, Sundquist moved for discharge

on speedy trial grounds, which the county court denied. Second,

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once the State made clear that it would not offer Sundquist a

plea agreement as it had initially done prior to the first trial,

Sundquist moved to dismiss on the grounds of prosecutorial

misconduct and prosecutorial vindictiveness. That motion was

also denied.

At trial, the State again called Gartner to testify. His testi-

mony was consistent with his prior testimony and covered the

traffic stop, the on-the-scene investigation, and the chemical

breath test at the police station. The State also called the main-

tenance officer for the breath test machine to testify. The offi-

cer’s testimony encompassed the chemical breath test machine,

the various maintenance protocols, and the relevant margin of

error. Specifically, he testified that the machine was working

properly on the day in question.

A jury found Sundquist guilty, and the county court again

determined that Sundquist’s conviction was a second offense.

Sundquist was again sentenced to 18 months’ probation.

5. Second A ppeal

On May 30, 2017, Sundquist, represented by counsel,

appealed his conviction to the district court. Counsel did not

file a statement of errors on Sundquist’s behalf before that

court. Despite this, the district court addressed the issue raised

at the appeal hearing: that Sundquist was entitled to a reoffer

of the earlier plea agreement that the State proposed before the

first trial and the State’s failure to do so was improper. The dis-

trict court affirmed the county court’s judgment and conviction,

noting that the court found no error. Sundquist appeals.

III. ASSIGNMENTS OF ERROR

Sundquist assigns, consolidated and restated, that (1) his

counsel was ineffective in various ways, (2) both counsel were

ineffective and Sundquist’s due process rights were violated

with respect to the State’s only offered plea agreement, and (3)

his constitutional rights were violated by various actions of the

State and the trial court.

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IV. STANDARD OF REVIEW

[1,2] Appellate review of a claim of ineffective assistance

of counsel is a mixed question of law and fact.1 When review-

ing a claim of ineffective assistance of counsel, an appellate

court reviews the factual findings of the lower court for clear

error.2 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,3 an appellate court

reviews such legal determinations independently of the lower

court’s decision.4

[3-5] Both the district court and a higher appellate court gen-

erally review appeals from the county court for error appearing

on the record.5 When reviewing a judgment for errors appear-

ing on the record, an appellate court’s inquiry is whether the

decision conforms to the law, is supported by competent evi-

dence, and is neither arbitrary, capricious, nor unreasonable.6

But an appellate court independently reviews questions of law

in appeals from the county court.7

V. ANALYSIS

1. Ineffective Assistance of Counsel

Sundquist contends that he received ineffective assistance

of counsel during the course of his representation. First, he

argues that he was, in effect, denied an appeal to the dis-

trict court because (1) he received ineffective assistance of

counsel in that his attorney (a) failed to file a statement of

errors, (b) failed to make “persuasive” arguments, (c) failed to

1

State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

2

Id.

3

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).

4

State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011).

5

State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).

6

Id.

7

Id.

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adequately challenge the chemical breath test, and (d) failed

to argue that his performance on the field sobriety tests was

inconsistent with the level of intoxication as indicated by the

chemical breath test, and (2) the court prevented him from

arguing in his own behalf. Sundquist next claims his coun-

sel was ineffective by not adequately communicating with

Sundquist. Finally, Sundquist argues that the State interfered

with his right to effective assistance of counsel in the first

trial by not disclosing that Gartner was qualified to operate

the chemical breath test machine, which Sundquist argues

interfered with his counsel’s ability to advise him during

plea negotiations.

[6-9] To prevail on a claim of ineffective assistance of

counsel under Strickland v. Washington, the defendant must

show that his or her counsel’s performance was deficient and

that this deficient performance actually prejudiced the defend­

ant’s defense.8 A claim of ineffective assistance of counsel

need not be dismissed merely because it is made on direct

appeal. The determining factor is whether the record is suf-

ficient to adequately review the question.9 When the claim

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.10 General allegations

that trial counsel performed deficiently or that trial counsel

was ineffective are insufficient to raise an ineffective assist­

ance claim on direct appeal and thereby preserve the issue for

later review.11

[10] Appellate courts have generally reached ineffective

assistance of counsel claims on direct appeal only in those

instances where it was clear from the record that such claims

8

State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).

9

Id.

10

Id.

11

Id.

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were without merit, or in the rare case where trial counsel’s

error was so egregious and resulted in such a high level of

prejudice that no tactic or strategy could overcome the effect

of the error, which effect was a fundamentally unfair trial. An

ineffective assistance of counsel claim made on direct appeal

can be found to be without merit if the record establishes that

trial counsel’s performance was not deficient or that the appel-

lant could not establish prejudice.12

As we have previously stated, an appellant is required to

specifically assign and argue his or her trial counsel’s alleg-

edly deficient conduct.13 This arises from a fundamental rule of

appellate practice. An alleged error must be both specifically

assigned and specifically argued in the brief of the party assert-

ing the error to be considered by an appellate court.14 A gen-

eralized and vague assignment of error that does not advise an

appellate court of the issue submitted for decision will not be

considered.15 Similarly, an argument that does little more than

restate an assignment of error does not support the assignment,

and an appellate court will not address it.16

It naturally follows that on direct appeal, an appellate court

can determine whether the record proves or rebuts the merits

of a claim of ineffective assistance of trial counsel only if it

has knowledge of the specific conduct alleged to constitute

deficient performance.17 An appellant must make specific alle-

gations of the conduct that he or she claims constitutes defi-

cient performance by trial counsel when raising an ineffective

assistance claim on direct appeal.18

12

Id.

13

State v. Filholm, supra note 1.

14

Id.

15

Id.

16

Id.

17

Id.

18

Id.

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STATE v. SUNDQUIST

Cite as 301 Neb. 1006

(a) Failure to File Statement of Errors

Sundquist assigns that his counsel failed to file a statement

of errors in his appeal to the district court. The State concedes

that counsel did not file a statement of errors, but argues that

Sundquist suffered no prejudice, because the district court

addressed Sundquist’s challenges on appeal despite counsel’s

deficient performance. We note that the district court consid-

ered the argument advanced by Sundquist in his appeal to that

court. The district court found no merit to Sundquist’s argu-

ment as to the filing of a statement of errors. We agree.

The district court considered the argument advanced by

Sundquist in his appeal to that court, despite the absence of a

statement of errors. At the close of arguments, the district court

stated, “I don’t find any error that occurred at the County Court

level. As I just indicated to your plea offer argument, is — I

would say it’s frivolous. . . . The State is under no obligation to

re-offer you any type of plea agreement once you rejected it.”

The court’s statement at the close of argument indicates that

the court addressed the argument raised by Sundquist despite

the fact that the alleged error—the refusal to require the State

to reoffer a previously rejected plea agreement—had not been

assigned in a statement of errors to the court. Furthermore, as

we conclude below, Sundquist was not entitled to a reoffer of

the plea agreement. As such, Sundquist was not prejudiced by

his counsel’s inadequate performance.

This case is reminiscent of State v. Stubbendick,19 a case

heard by the Court of Appeals. In Stubbendick, the defend­

ant’s attorney likewise failed to file a statement of errors,

leaving the district court to limit its review to plain error.

The defendant argued that had counsel properly filed a state-

ment of errors which challenged the probable cause findings

regarding his operation of a vehicle on a public roadway and

the sufficiency of the evidence, the district court may have

19

State v. Stubbendick, No. A-14-232, 2014 WL 4825375 (Neb. App. Sept.

30, 2014) (selected for posting to court website).

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found in his favor on these issues. The Court of Appeals

applied Strickland, finding that the defendant’s arguments

did not demonstrate a reasonable probability that but for his

counsel’s allegedly deficient performance, the result of the

proceeding would have been different. The result is the same

in this case.

As such, there is no merit to Sundquist’s argument as to the

filing of a statement of errors.

(b) Failure to Make

“Persuasive” Arguments

Sundquist argues that he suffered ineffective assistance of

counsel at his second trial on April 20, 2017, where he claims

his counsel failed to make “persuasive” arguments to both the

county court and the district court on appeal concerning the

margin of error of the DataMaster.

First, Sundquist argues that his trial counsel should have

attacked either the admissibility or the accuracy of the

DataMaster results, or vigorously attacked the margin of error

of the DataMaster. Sundquist contends that at trial, his coun-

sel “made a half-hearted attempt at questioning the margin

of error.”20 Sundquist claims that his attorney should have

questioned the accuracy of the DataMaster and the difference

between a 5-percent margin of error allowed in a controlled

environment, as compared to the margin of error in an uncon-

trolled environment. We observe, however, that counsel raised

the issue of the DataMaster’s accuracy and the margin of error.

As such, counsel’s conduct was not deficient.

Sundquist next argues that on appeal to the district court, his

attorney failed to effectively argue in support of his position

that the State was required to reoffer the original plea agree-

ment. Again, we note the record demonstrates that counsel

raised the issue. Despite lacking legal authority for the posi-

tion, counsel nevertheless argued that the State should have

20

Brief for appellant at 8.

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been required to reoffer the rejected plea agreement, because

the State failed to provide Gartner’s DataMaster certification at

the time the plea agreement was offered.

It is important to note that the district court properly observed

that under State v. Obermier,21 the State is not required to enter

the certification into evidence. Despite counsel’s effort, the dis-

trict court denied the appeal, further noting that it was, in the

opinion of the court, “frivolous.” Counsel cannot be deficient

in raising the very issue Sundquist now complains about, and

as such, there is no merit to Sundquist’s allegation.

As for the argument that the State was required to r­eoffer

the previously rejected plea agreement, the record shows that

despite being aware that case law did not support the posi-

tion that the State must reoffer the prior plea agreement,

Sundquist’s counsel argued that the State was required to

­reoffer the previously rejected plea agreement. Counsel based

that request on the State’s action in failing to disclose the offi-

cer’s chemical test machine certification. Because Sundquist

does not explain precisely what counsel should have argued in

an effort to prevail on this point, and because counsel clearly

raised the issue of the prior plea agreement, counsel’s conduct

was not deficient.

Sundquist also argues that the court erred and caused him to

have ineffective assistance of counsel when it declined to allow

Sundquist to be heard following the court’s ruling on the ­reoffer

of the plea agreement. The court observed that Sundquist was

represented by counsel and not entitled to address the court at

that time due to the presence of counsel on his behalf. We find

no error in the court’s ruling. We have noted that a defendant

does not have a right to any type of “hybrid representation,”

and it is within the trial court’s discretion whether to allow

such representation.22 The trial court did not err in refusing to

21

State v. Obermier, 241 Neb. 802, 490 N.W.2d 693 (1992).

22

State v. Wilson, 252 Neb. 637, 652, 564 N.W.2d 241, 253 (1997).

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allow Sundquist to be heard at a time when he was represented

by counsel.

There is no merit to these allegations.

(c) Failure to Argue Sundquist’s Performance

on Field Sobriety Tests Was Inconsistent

With Level of Intoxication Indicated

by Chemical Breath Test

Sundquist assigns that counsel was inadequate for failing to

challenge that Sundquist’s performance on the field sobriety

tests was inconsistent with the results of the chemical breath

test indicating the level of intoxication. We have combined

these assignments as they are indistinguishable. The record

demonstrates that Sundquist’s counsel had no grounds to

argue that Sundquist’s performance on the field sobriety tests

and lack of video evidence were inconsistent with the level

of intoxication shown by the chemical breath test results.

Gartner’s testimony indicated that Sundquist showed signs

of impairment on the field sobriety tests in that Sundquist

was unable to complete maneuvers, could not maintain his

balance, and failed to follow directions, all of which are

consistent with intoxication and none of which can be used

to establish that Sundquist was below a .150 breath alcohol

content level.

(d) Failure to Adequately Communicate

With Sundquist

Sundquist next alleges that counsel failed to adequately com-

municate with him. Sundquist alleges that prior to his second

trial, he requested that counsel hire an expert witness to deter-

mine the margin of error for the chemical breath test machine.

Sundquist claims he was unaware that counsel had failed to

obtain an expert until a week prior to trial. Further, Sundquist

alleges that he never discussed trial strategy with his attorney.

However, Sundquist fails to demonstrate how an expert would

have meaningfully contributed to his margin of error claim

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beyond the cross-examination of the State’s witnesses concern-

ing the particular DataMaster unit’s margin of error. Further, as

to Sundquist’s claim that counsel failed to communicate trial

strategy, the record contradicts Sundquist’s claims.

At the district court appeal, counsel is on record stat-

ing, “I’ve communicated all pleas to my client since I was

appointed. No pleas were ever offered, Judge, at the lower case

in County Court.” Further, Sundquist’s counsel followed the

trial strategy of highlighting the margin of error of the breath

test machine, a strategy that Sundquist was clearly aware of

as, by his own admission, he sought to hire an expert to lend

credibility to the argument regarding the margin of error.

Additionally, counsel clearly argued that Sundquist “wish[ed]

that he had the opportunity to plead to the lower charge,” a

statement that is accurate and was effectively communicated to

both Sundquist’s counsel and the court. Ultimately, however,

Sundquist failed to sufficiently allege facts that demonstrate

deficient performance. Further, the evidence against Sundquist

was overwhelming and better communication would not have

changed the weight of the evidence.

There is no merit to this allegation.

(e) Sundquist Claims State Interfered With Right to

Effective Assistance of Counsel in First Trial

by Not Disclosing Gartner’s Certification

Sundquist also argues that the State interfered with his

counsel’s communication by withholding information about

Gartner’s chemical breath test machine certification at the time

of the plea offer. Additionally, Sundquist contends that his due

process rights were violated when he was denied the opportu-

nity to make a knowing and voluntary decision regarding the

initial plea offer.

We turn first to whether Sundquist waived his right to

appeal the issue regarding the plea agreement. The State cor-

rectly asserts that Sundquist’s claim regarding the prosecu-

tion’s failure to disclose information during a plea offer is not

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properly before the court. The State, relying on Pennfield Oil

Co. v. Winstrom,23 grounds its argument on the fact that in the

first appeal, Sundquist had the opportunity and the incentive

to raise the claim regarding the plea agreement, noting that

Sundquist waived the issue by failing to raise the claim on his

first appeal.

[11] In Pennfield Oil Co., we noted that under the law-of-

the-case doctrine, a well-recognized waiver rule has emerged:

A decision made at a previous stage of litigation, which could

have been challenged in the ensuing appeal but was not,

becomes the law of the case; the parties are deemed to have

waived the right to challenge that decision, for it would be

absurd that a party who has chosen not to argue a point on a

first appeal should stand better with regard to the law of the

case than one who had argued and lost.

The State also relies on U.S. v. Henry,24 in support of its

argument. In Henry, the U.S. Court of Appeals for the District

of Columbia Circuit stated, “It is well-settled that ‘where an

argument could have been raised on an initial appeal, it is inap-

propriate to consider that argument on a second appeal follow-

ing remand.’”25

Here, Sundquist had the opportunity and the incentive to

raise the claim regarding the plea agreement during his origi-

nal appeal following his first trial and conviction. Sundquist

failed to do so and is therefore bound by the law-of-the-case

doctrine.

Sundquist waived this claim by failing to appeal it during

the initial appeal that followed his first trial and conviction.

2. Claims of Constitutional Violations

Sundquist next contends that his constitutional rights were

violated in various ways. First, Sundquist argues that the

23

Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).

24

U.S. v. Henry, 472 F.3d 910 (D.C. Cir. 2007).

25

Id. at 913.

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State’s refusal to reoffer the same plea agreement at his sec-

ond trial, which he had rejected at his first trial, amounted to

vindictive prosecution, a due process violation. Sundquist also

assigns that he is being punished for “something other than the

crime he was charged with.” Next, Sundquist argues that his

second conviction and sentence violated the Double Jeopardy

Clause. Lastly, Sundquist argues that his right to a speedy trial

was violated.

(a) Vindictive Prosecution

Sundquist alleges that the State engaged in vindictive pros-

ecution by refusing to reoffer the previously rejected plea

agreement once the case had been remanded for a new trial.

Specifically, Sundquist points to a statement made by the State

during the second trial, noting that “‘[a]s an office policy, after

a jury trial, we don’t make plea offers.’”26 Sundquist relies on

Blackledge v. Perry 27 to support this claim.

We begin by observing that Sundquist is, of course, cor-

rect that punishing a person because he has done what the law

plainly allows him to do—in this case appeal his conviction—

is a due process violation “of the most basic sort.”28 The U.S.

Supreme Court has noted that while an individual certainly

may be penalized for violating the law, he just as certainly may

not be punished for exercising a protected statutory or consti-

tutional right.

But the Court went on to note that the imposition of punish-

ment is the very purpose of criminal proceedings. Therefore,

the presence of a punitive motivation does not provide an

adequate basis for distinguishing governmental action that is

justified as a legitimate response to criminal conduct from

governmental action that is an impermissible response to a

protected activity. The Court, in establishing the presumption

26

Brief for appellant at 13.

27

Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974).

28

Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d

604 (1978).

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of a vindictive motive, specifically noted that it had done so

only in cases in which a “reasonable likelihood of vindictive-

ness exists.”29

Moreover, Sundquist misunderstands Blackledge and its

implications on his case. In Blackledge, the U.S. Supreme

Court affirmed the issuance of a writ of habeas corpus because

the State charged a greater offense for the same conduct for

which the defendant had sought a de novo retrial of a lower

court conviction, finding that the State’s higher charge had a

potential vindictive nature.

In this case, Sundquist was not charged with a greater

offense than what he had previously appealed, nor was his

resulting sentence greater than that of his first trial. Sundquist

argues that because he was not reoffered a plea agreement, his

due process rights were violated. We disagree.

In United States v. Osif, 30 the U.S. Court of Appeals for the

Ninth Circuit noted that “a defendant does not have a consti-

tutional right to a plea bargain . . . nor, when he rejects a plea,

can he later object to the government’s decision to proceed

to trial on the counts originally charged.” Further, the Ninth

Circuit indicated that the vindictive prosecution doctrine does

not apply when neither the charge’s severity nor the sentence

is increased.

The factual background of Osif is on point in this case. The

defendant appealed from his conviction for second degree mur-

der pursuant to a plea agreement that provided for a 15-year

sentence. Before entering the plea, the defendant was tried

and convicted of first degree murder, but that conviction was

reversed on appeal. Prior to the initial trial, the government

offered a plea agreement with a 10-year sentence for second

degree murder, which the defendant rejected. On appeal, he

argued that the government’s refusal to reoffer the earlier, more

beneficial, plea agreement on remand amounted to vindictive

29

United States v. Goodwin, 457 U.S. 368, 373, 102 S. Ct. 2485, 73 L. Ed.

2d 74 (1982) (emphasis supplied).

30

United States v. Osif, 789 F.2d 1404, 1405 (9th Cir. 1986).

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prosecution. The Ninth Circuit disagreed, noting that not only

is there no constitutional right to a plea bargain, but that “vin-

dictiveness is not present if there are independent reasons or

intervening circumstances to justify the prosecutor’s action.”31

Here, neither Sundquist’s charge nor his sentence was

increased; rather, the State merely refused to reoffer, after an

intervening conviction on the original charge, the same plea

offer that was previously rejected by Sundquist before the

initial trial. Additionally, the State had already xpended the

resources to prepare and try the case. Further, the State had

obtained a conviction, giving it confidence that a second con-

viction was likely.

There is no merit to the allegation.

(b) Sundquist’s Claim That He Is Being Punished

for Something Other Than Crime With

Which He Was Charged

Assigned separately, but inextricably intertwined with

Sundquist’s prosecutorial vindictiveness claim, is Sundquist’s

claim that he is being punished for something other than the

crime for which he was charged. Sundquist attempts to ground

this argument in the fact that the State originally believed it

appropriate to allow him to plead to nonaggravated DUI, a plea

he rejected. He further argues that because his breath alcohol

content was less than 10 percent over a .150 breath alcohol

content, there was no reason to believe the trial court would

not have accepted the plea.

Sundquist can provide no legal or factual authority on which

he can ground this assignment of error. Further, his sentence

was within limits established for the crime for which he was

convicted. Therefore, this argument is without merit.

(c) Double Jeopardy Clause

Next, Sundquist argues that his conviction and sentence

violate the Double Jeopardy Clause. The State contends that

31

Id.

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Sundquist did not properly present the argument to the district

court and that the district court did not consider it; thus, the

argument was not preserved on appeal. The State cites to State

v. Lavalleur 32 to support its contention that on Sundquist’s

first appeal, the issue of double jeopardy was decided by

the Court of Appeals, and that the issue may not now be

relitigated on a subsequent appeal as it is now the law of

the case.

We agree and find that the Court of Appeals’ decision is the

law of the case. Therefore, Sundquist’s assignment of error is

without merit.

(d) Speedy Trial

Finally, Sundquist argues that the State violated his right to a

speedy trial. The State again argues that while Sundquist raised

the issue in the county court following remand, he did not pre­

sent the issue to the district court on appeal, thus preventing

the district court from considering the issue and allowing only

a review for plain error.

Sundquist maintains that had the State provided him with the

information concerning Gartner’s certification, he would have

agreed to the original plea agreement offered and pled guilty

to nonaggravated DUI. Sundquist argues that the State’s failure

required him to proceed through two trials. But the State was

not required to present the officer’s permit, nor was the State

required, at initial plea negotiations, to share the status of the

officer’s certification. Sundquist freely chose to take on a risky

defense strategy, and the State does not bear the responsibility

for that failed strategy.

Sundquist’s final assignment of error is without merit.

VI. CONCLUSION

The district court, sitting as an appellate court, did not err

in denying Sundquist’s appeal and affirming his conviction for

32

State v. Lavalleur, 298 Neb. 237, 903 N.W.2d 464 (2017).

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DUI, second offense aggravated, as well as his sentence of 18

months’ probation. We affirm.

A ffirmed.

Freudenberg, J., not participating.

Cassel, J., concurring.

I write separately to emphasize the duty of effective appel-

late counsel to file a statement of errors in an appeal of a

county court criminal case to the district court.

Sundquist was entitled to effective appellate counsel on his

appeal from county court to district court. A criminal defendant

has the right to the effective assistance of appellate counsel in

his or her first appeal as of right.1 In a Nebraska criminal case

tried in the county court, that first appeal runs to the district

court.2 Thus, Sundquist’s appeal to the district court was his

only appeal subject to the Sixth Amendment right to counsel.

To prevail on a claim of ineffective assistance of counsel

under the Strickland v. Washington 3 analysis, the defendant

must show that his or her counsel’s performance was deficient

and that this deficient performance actually prejudiced the

defendant’s defense.4 Here, the State conceded that Sundquist’s

appellate counsel’s failure to file a statement of errors was

deficient performance (that is, counsel’s performance did not

equal that of a lawyer with ordinary training and skill in crimi-

nal law 5). This court agrees, and I agree with the court.

1

See, Halbert v. Michigan, 545 U.S. 605, 125 S. Ct. 2582, 162 L. Ed. 2d

552 (2005); Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L.

Ed. 2d 539 (1987); Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed.

2d 821 (1985); Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d

341 (1974); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed.

2d 811 (1963).

2

See State v. Hughan, 13 Neb. App. 862, 703 N.W.2d 263 (2005).

3

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).

4

State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).

5

State v. Allen, ante p. 560, 919 N.W.2d 500 (2018).

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This court’s opinion concludes that there was no prejudice

shown here. Again, I agree. Two reasons persuade me. First, at

the appeal hearing before the district court, Sundquist’s appel-

late counsel advanced the very argument that Sundquist, now

without counsel, urged to this court. Second, the record, which

the court’s opinion quotes, demonstrates that despite the failure

to file the statement of errors, the district court considered the

merits of Sundquist’s argument. In other words, the district

court did not apply the rule permitting it to review only for

plain error.6

But as I see this appeal, those two facts were the only rea-

sons not to apply a presumption of prejudice. United States v.

Cronic 7 provides narrow exceptions to the Strickland analy-

sis, where the reliability of the adversarial process is in such

doubt that prejudice to the defendant will be presumed, result-

ing in a conclusion of ineffective assistance of counsel.8 Two

of the three Cronic exceptions are (1) where the accused is

completely denied counsel at a critical stage of the proceed-

ings and (2) where counsel entirely fails to subject the pros-

ecution’s case to meaningful adversarial testing.9 Obviously,

Sundquist’s one and only counseled appeal as of right is

a critical stage of the proceedings against him. Although

Sundquist’s appellate counsel failed to file the required state-

ment of errors, at least he advanced the proposition Sundquist

urges to this court. And the district court considered whether

it constituted prejudicial error, which presents a much lower

threshold than plain error.10

6

See State v. Nielsen, ante p. 88, 917 N.W.2d 159 (2018).

7

United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657

(1984).

8

State v. Jedlicka, supra note 4.

9

See id.

10

See State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018) (plain error is

error, plainly evident from record, which prejudicially affects litigant’s

substantial right and, if uncorrected, would result in damage to integrity,

reputation, and fairness of judicial process).

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But it seems to me that it is only a short distance from the

situation here to the equivalent of a complete denial of counsel

on appeal. If appellate counsel files no statement of errors and

advances no arguments for reversal, which results in a cursory

review by the district court for plain error, it would be difficult

to avoid having to apply one or both of the Cronic exceptions

recited above.

This in turn could easily result in a reversal of the district

court’s decision on appeal and a remand for a new direct

appeal with new counsel. And it also implicates very basic eth-

ical duties of Nebraska lawyers.11 These potential consequences

dictate that defendants’ counsel in criminal case appeals from

county court to district court should always file a timely state-

ment of errors.

Miller-Lerman, J., joins in this concurrence.

11

See Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (rev. 2017) (competence) and

3-501.3 (diligence).