State v. Blaha

Nebraska Supreme Court Online Library

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

06/21/2019 09:07 AM CDT

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Nebraska Supreme Court A dvance Sheets

303 Nebraska R eports

STATE v. BLAHA

Cite as 303 Neb. 415

State of Nebraska, appellee, v.

Ryan W. Blaha, appellant.

___ N.W.2d ___

Filed June 21, 2019. No. S-18-912.

1. Sentences: Appeal and Error. An appellate court will not disturb a sen-

tence imposed within the statutory limits absent an abuse of discretion

by the trial court.

2. Judgments: Words and Phrases: Appeal and Error. An abuse of dis-

cretion occurs when a trial court’s decision is based upon reasons that

are untenable or unreasonable or if its action is clearly against justice or

conscience, reason, and evidence.

3. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-

fective assistance of trial counsel may be determined on direct appeal

is a question of law. In reviewing claims of ineffective assistance of

counsel on direct appeal, an appellate court decides only whether the

undisputed facts contained within the record are sufficient to conclu-

sively determine whether counsel did or did not provide effective assist­

ance and whether the defendant was or was not prejudiced by counsel’s

alleged deficient performance.

4. Sentences: Appeal and Error. Where a sentence imposed within the

statutory limits is alleged on appeal to be excessive, the appellate court

must determine whether a sentencing court abused its discretion in con-

sidering and applying the relevant factors as well as any applicable legal

principles in determining the sentence to be imposed.

5. Sentences. In determining a sentence to be imposed, relevant factors

customarily considered and applied are the defendant’s (1) age, (2) men-

tality, (3) education and experience, (4) social and cultural background,

(5) past criminal record or record of law-abiding conduct, and (6) moti-

vation 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.

6. ____. The appropriateness of a sentence is necessarily a subjective judg-

ment and includes the sentencing judge’s observation of the defendant’s

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STATE v. BLAHA

Cite as 303 Neb. 415

demeanor and attitude and all the facts and circumstances surrounding

the defendant’s life.

7. Trial: Judges: Sentences. The law invests a trial judge with a wide

discretion as to the sources and types of information used to assist

him or her in determining the sentence to be imposed within statu-

tory limits.

8. Pleas: Waiver. Generally, a voluntary guilty plea or plea of no contest

waives all defenses to a criminal charge.

9. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or

no contest, he or she is limited to challenging whether the plea was

understandingly and voluntarily made and whether it was the result of

ineffective assistance of counsel.

10. Effectiveness of Counsel: Records: Appeal and Error. When a defend­

ant’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.

11. Effectiveness of Counsel: Proof. Generally, 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 his or her counsel’s performance was deficient and that this

deficient performance actually prejudiced the defendant’s defense.

12. ____: ____. To show that counsel’s performance was deficient, a

defend­ant must show that counsel’s performance did not equal that of a

lawyer with ordinary training and skill in criminal law.

13. Effectiveness of Counsel: Pleas. In a plea context, deficiency depends

on whether counsel’s advice was within the range of competence

demanded of attorneys in criminal cases.

14. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-

tion is based upon a guilty or no contest plea, the prejudice requirement

for an ineffective assistance of counsel claim is satisfied if the defend­

ant shows a reasonable probability that but for the errors of counsel,

the defendant would have insisted on going to trial rather than plead-

ing guilty.

15. Effectiveness of Counsel: Proof. The two prongs of the ineffective

assistance of counsel test under Strickland v. Washington, 466 U.S.

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be addressed in

either order.

16. Effectiveness of Counsel: Proof: Appeal and Error. An appellant must

make specific allegations of the conduct that he or she claims consti-

tutes deficient performance by trial counsel when raising an ineffective

assistance claim on direct appeal. General allegations that trial counsel

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STATE v. BLAHA

Cite as 303 Neb. 415

performed deficiently or that trial counsel was ineffective are insuffi-

cient to raise an ineffective assistance claim on direct appeal.

17. Presentence Reports. A defendant has a qualified right to review his or

her presentence report, and the defendant may, with his or her attorney,

examine the presentence report subject to the court’s supervision.

18. Presentence Reports: Waiver: Notice. A defendant waives his or her

qualified right to review the presentence investigation report by not noti-

fying the trial court that he or she has not personally reviewed the report

and that he or she wishes to do so.

Appeal from the District Court for Douglas County: Peter

C. Bataillon, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and

Katie L. Jadlowski for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne

for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

Through new counsel, Ryan W. Blaha appeals his criminal

convictions and sentences, attacking the sentences imposed

and asserting ineffective assistance of trial counsel. Regarding

his sentences, we (1) again reject the premise that sentences

within statutory limits are never excessive, (2) dispel the

notion that sentencing factors have not been adequately con-

sidered without specific discussion, and (3) reiterate that

a sentencing court may consider a defendant’s conduct

underlying dismissed charges. Although the record does not

allow us to reach one of his four ineffectiveness claims, we

find no merit to the others, which are, respectively, refuted

by the record, not prejudicial, and insufficiently alleged.

We affirm.

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STATE v. BLAHA

Cite as 303 Neb. 415

II. BACKGROUND

In March 2017, the State charged Blaha with eight counts,

including assault in the first degree and use of a deadly weapon

to commit a felony. From that time until the plea hearing in

July 2018, no pretrial motions were filed. At the hearing, the

parties announced a plea agreement, in which Blaha would

plead no contest to those two charges and in exchange the State

would dismiss the remaining charges. After the district court

informed Blaha of his constitutional rights and received his

pleas of no contest, the State set forth a factual basis for the

charges. The district court accepted Blaha’s pleas of no contest,

found him guilty beyond a reasonable doubt, and dismissed the

remaining charges.

When the court asked trial counsel at the sentencing hear-

ing whether he had any additions or corrections to the presen-

tence investigation report, he directed the court to the docu-

ments which already had been shared with the court. Before

the sentences were pronounced, trial counsel and the State

made arguments. Blaha exercised his right to allocution and

expressed remorse and responsibility for his actions. When

pronouncing its sentences, the district court discussed mainly

the nature of the offense and the amount of violence involved,

but also mentioned Blaha’s age and mental illness as mitigat-

ing factors. It sentenced Blaha to consecutive sentences of 30

to 40 years’ imprisonment for assault in the first degree and

15 to 30 years’ imprisonment for use of a deadly weapon to

commit a felony.

Blaha filed a timely appeal, which we moved to our docket.1

III. ASSIGNMENTS OF ERROR

Blaha assigns, restated and reordered, that (1) the district

court abused its discretion by imposing excessive sentences

and (2) he received ineffective assistance of trial counsel

where counsel (a) failed to advise Blaha of the statutory

1

See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

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sentencing ranges, (b) failed to correct the State’s factual basis

for the pleas, (c) failed to engage in pretrial litigation, and

(d) failed to allow Blaha to review the presentence investiga-

tion report.

IV. STANDARD OF REVIEW

[1,2] An appellate court will not disturb a sentence imposed

within the statutory limits absent an abuse of discretion by the

trial court.2 An abuse of discretion occurs when a trial court’s

decision is based upon reasons that are untenable or unreason-

able or if its action is clearly against justice or conscience,

reason, and evidence.3

[3] Whether a claim of ineffective assistance of trial counsel

may be determined on direct appeal is a question of law. In

reviewing claims of ineffective assistance of counsel on direct

appeal, an appellate court decides only whether the undisputed

facts contained within the record are sufficient to conclusively

determine whether counsel did or did not provide effective

assistance and whether the defendant was or was not preju-

diced by counsel’s alleged deficient performance.4

V. ANALYSIS

1. Excessive Sentences

Although Blaha does not dispute that the sentences were

within the statutory limits, he contends that the district court

abused its discretion by imposing excessive sentences. Before

turning to his two arguments, we recall general principles

of law.

[4,5] The law governing review of criminal sentences is

well settled. Where a sentence imposed within the statutory

limits is alleged on appeal to be excessive, the appellate

court must determine whether a sentencing court abused its

2

State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).

3

State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019).

4

Mrza, supra note 2.

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discretion in considering and applying the relevant factors

as well as any applicable legal principles in determining the

sentence to be imposed.5 In determining a sentence to be

imposed, relevant factors customarily considered and applied

are the defendant’s (1) age, (2) mentality, (3) education and

experience, (4) social and cultural background, (5) past crimi-

nal record or record of law-abiding conduct, and (6) motiva-

tion 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.6

[6] We have repeatedly stated that the appropriateness of a

sentence is necessarily a subjective judgment and includes the

sentencing judge’s observation of the defendant’s demeanor

and attitude and all the facts and circumstances surrounding

the defendant’s life.7 With these principles in mind, we turn to

Blaha’s specific arguments.

First, Blaha contends that Neb. Rev. Stat. § 29-2308 (Reissue

2016) has become meaningless. He asserts that effectively,

most appellate courts “hold that almost any sentence that is

within the statutory limits is not an abuse of discretion.”8

Many years ago in State v. Ruisi,9 a divided panel of the

Nebraska Court of Appeals articulated a similar proposition.

But in State v. Decker,10 we rejected that notion. We quoted the

Court of Appeals’ dissent, which stated that this court “‘has

not foreclosed any sentence within statutory limits from being

excessive, but it strongly suggests it is a rare exception.’”11

5

State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).

6

Id.

7

See id.

8

Brief for appellant at 20 (emphasis supplied).

9

State v. Ruisi, 9 Neb. App. 435, 616 N.W.2d 19 (2000), disapproved in

part, State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).

10

Decker, supra note 9.

11

Id. at 398, 622 N.W.2d at 917 (quoting Ruisi, supra note 9 (Buckley,

District Judge, Retired, dissenting)).

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Eighteen years later, this remains true. Blaha’s first argument

lacks merit.

Second, Blaha asserts that “[t]he district court’s failure

to adequately consider and apply the sentencing factors,”12

including his mentality, motivation for the offense, criminal

history, education and work history, and age, “resulted in an

unjust, excessive sentence and the court abused its discretion

in imposing such a sentence.”13 He relies on his mental dete-

rioration in the preceding days to the events, his mental and

behavioral illnesses, his criminal history and profile, his steady

employment, and his immaturity.

At the sentencing hearing, the court stated that it did not

believe the maximum punishment of 100 years’ imprisonment

was appropriate, “considering the youth of [Blaha] and his

mental illness problems that he had at that time.” It discussed

the significant tragedy to the victim’s family, how the victim

did not heal, and how the victim’s life changed forever. The

court discussed the fact that Blaha shot at other people in the

parking lot where the incident occurred and how Blaha did not

express remorse to them when issuing its sentences.

We reject the notion that a court does not adequately con-

sider sentencing factors when it does not discuss each one of

them during the sentencing hearing or in its sentencing order.

The record includes the presentence investigation report and

shows that the court reviewed the entire report, which contains

the information necessary to weigh the sentencing factors. In

essence, Blaha quarrels with the weight accorded to these fac-

tors by the sentencing court. We do not review sentences de

novo, but only for an abuse of discretion.

[7] At oral argument, Blaha offered additional reasoning:

that the court improperly considered the facts surrounding the

dismissed charges. In State v. Janis,14 we rejected a similar

12

Brief for appellant at 13 (emphasis supplied).

13

Id.

14

State v. Janis, 207 Neb. 491, 299 N.W.2d 447 (1980).

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argument. There, we stated that the law invests a trial judge

with a wide discretion as to the sources and types of infor-

mation used to assist him or her in determining the sentence

to be imposed within statutory limits.15 Because the court

considered the facts underlying the dismissed charges, it

did not consider improper sentencing factors. Our review of

the record discloses that the court considered relevant fac-

tors and did not consider improper factors. We conclude that

the district court did not abuse its discretion when imposing

the sentences.

2. Ineffective Assistance

of Counsel

We begin by reciting the general principles of law that will

guide our analysis, then turn to Blaha’s specific claims of inef-

fective assistance of counsel.

[8,9] Generally, a voluntary guilty plea or plea of no con-

test waives all defenses to a criminal charge.16 Thus, when a

defend­ant pleads guilty or no contest, he or she is limited to

challenging whether the plea was understandingly and volun-

tarily made and whether it was the result of ineffective assist­

ance of counsel.17 Here, Blaha asserts only the latter.

[10] Blaha has different counsel on direct appeal. 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.18

[11-15] Generally, to prevail on a claim of ineffective

ance of counsel under Strickland v. Washington,19 the

assist­

15

Id.

16

State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).

17

Id.

18

See Mrza, supra note 2.

19

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

(1984).

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defendant must show that his or her counsel’s performance

was deficient and that this deficient performance actually prej-

udiced the defendant’s defense.20 To show that counsel’s per-

formance was deficient, a defendant must show that counsel’s

performance did not equal that of a lawyer with ordinary train-

ing and skill in criminal law.21 In a plea context, deficiency

depends on whether counsel’s advice was within the range of

competence demanded of attorneys in criminal cases.22 When a

conviction is based upon a guilty or no contest plea, the preju-

dice 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 guilty.23 The

two prongs of the ineffective assistance of counsel test under

Strickland may be addressed in either order.24

Thus, in reviewing Blaha’s claims of ineffective assistance

of counsel on direct appeal, we decide only whether the

undisputed facts contained within the record are sufficient to

conclusively determine whether counsel did or did not provide

effective assistance and whether the defendant was or was not

prejudiced by counsel’s alleged deficient performance.25

(a) Statutory Sentencing Ranges

Blaha claims that trial counsel was ineffective in failing to

advise him of the statutory sentencing ranges and that counsel

guaranteed a sentence of 12 to 20 years’ imprisonment. He

asserts that he was prejudiced by trial counsel’s deficient per-

formance, because he relied on the sentencing representations

20

Mrza, supra note 2.

21

Id.

22

State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved on

other grounds, State v. Allen, 301 Neb. 560, 919 N.W.2d 500.

23

See State v. Manjikian, ante p. 100, 927 N.W.2d 48 (2019).

24

See State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).

25

See State v. Munoz, ante p. 69, 927 N.W.2d 25 (2019).

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made to him when deciding whether to accept the State’s plea

offer or go to trial.

But the record shows otherwise. At the plea hearing, the

district court informed Blaha that the maximum possible sen-

tence for each offense was 50 years’ imprisonment. The court

informed Blaha that the sentence for use of a deadly weapon

must run consecutively to the sentence for assault. Blaha

denied that “anyone made any promises to [him] in exchange

for [his] pleas of no contest other than the plea agreement [that

was] already set forth.” Blaha confirmed that he understood

that the court alone would decide his sentences. From these

statements, the record affirmatively refutes Blaha’s claim that

he was not advised of the statutory sentencing ranges and was

promised 12 to 20 years’ imprisonment. We conclude that this

argument is without merit.

(b) Factual Basis

For many years, we have stated that the record necessary

to support a plea of guilty or no contest must establish that

there is a factual basis for the plea.26 “The purpose of requir-

ing arraigning judges to inquire into . . . the factual basis lies

in ensuring that the defendant has, according to the acts the

defendant admits, committed an offense as charged or a lesser

included offense.”27

Before discussing Blaha’s claim regarding his counsel’s

alleged deficiencies in failing to correct a misstatement and

an inaccurate statement, we quote extensively from the State’s

factual basis recited at the plea hearing, emphasizing the por-

tions Blaha challenges.

[On] January 11th, 2017, . . . officers with the Omaha

Police Department were dispatched to the parking lot of

[a furniture store] to investigate a shooting.

26

See State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).

27

Alan G. Gless, Nebraska Plea-Based Convictions Practice: A Primer and

Commentary, 79 Neb. L. Rev. 293, 323 (2000).

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Upon arrival officers located the victim, . . . who was

suffering from multiple gunshot wounds to his back.

The victim . . . indicated that he had been shot by an

unknown white male suspect who was armed with a

shotgun, had demanded his wallet, and fled in a green

Ford Explorer.

....

On [the following day], detectives with the homicide

unit had received a tip that an individual by the name of

James White (sic) had spoken to an individual who was

identified as the defendant, . . . Blaha, and . . . Knight

indicated that . . . Blaha had admitted to shooting the

victim . . . .

Officers with the Omaha Police Department were

granted permission to search [Blaha’s] residence. Inside

of that residence officers located a cell phone belonging

to [Blaha]. A search of that cell phone revealed a video

which showed [Blaha] burning the wallet that was taken

from [the victim], and all of those events occurred here in

Douglas County, Nebraska.

Blaha argues that “[t]he State mistakenly interchanged the

name of two individuals—White and Knight—and the mistake

went uncorrected.”28 Further, he challenges the accuracy of the

statement that a video of a burning wallet was found on his

cell phone.

The record conclusively establishes that Blaha suffered no

prejudice from the prosecutor’s misstatement of the infor-

mant’s name. He challenged the informant’s name, which

was not an element of either offense. At oral argument, the

State correctly pointed out that the informant could have been

identified as “informant number 1” and it would have made

no difference. Moreover, the record makes it clear that the

prosecutor simply misspoke the name in the first instance and

corrected it in the same sentence. Blaha did not challenge

28

Brief for appellant at 11.

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the statement that he admitted to the shooting, which was the

essential substance of the factual basis. Blaha was not preju-

diced by this mistake.

Likewise, the record conclusively establishes that no preju-

dice flowed from the other alleged inaccuracy of the factual

basis. The statement that police found the video was not nec-

essary to establish the factual basis. Blaha did not challenge

how the statement was inaccurate or how it was necessary to

establish an element of either crime. The statement was mere

surplusage. With or without it, the factual basis was sufficient.

Therefore, Blaha was not prejudiced by counsel’s allegedly

deficient conduct.

Accordingly, this claim also lacks merit.

(c) Pretrial Litigation

[16] Blaha contends that trial counsel was ineffective for

failing to engage in any pretrial litigation in the intervening 16

months between filing the information and the plea hearing.

Without more, this allegation would not be sufficiently specific

to allege deficient performance. An appellant must make spe-

cific allegations of the conduct that he or she claims constitutes

deficient performance by trial counsel when raising an ineffec-

tive assistance claim on direct appeal. General allegations that

trial counsel performed deficiently or that trial counsel was

ineffective are insufficient to raise an ineffective assistance

claim on direct appeal.29

In State v. Mrza,30 we clarified that the allegations of coun-

sel’s deficient performance must be specifically alleged in the

assignments of error section of the appellant’s brief. Because

Blaha’s brief was filed before our opinion in Mrza was released,

we examine his argument for the necessary specificity. Doing

so reveals two aspects of his broad allegation.

29

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

30

Mrza, supra note 2.

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In Blaha’s brief, he first argues that trial counsel did not

attempt to suppress any evidence found during the search of

his home or cell phone. But this allegation is also not suf-

ficiently specific. He does not assert any facts to support the

existence of a basis upon which counsel could have filed a

motion to suppress.

Second, he argues that trial counsel did not attempt to depose

two witnesses, whom he identified by name, to “clarif[y] their

initial statements to police” that they had been shot at by

Blaha, which, he claims, could have put trial counsel in a bet-

ter position during plea negotiations.31 But he does not allege

what these witnesses would have said that would have differed

from their original statements. Once again, it lacks the neces-

sary specificity.

After utilizing Blaha’s arguments to expand his assignment,

neither matter specifically states how counsel performed defi-

ciently. This assignment lacks merit.

(d) Presentence Investigation Report

Finally, Blaha claims that trial counsel was ineffective in not

allowing him to review the presentence investigation report.

Specifically, Blaha quarrels with a statement in the report

regarding self-gratification and another statement about inflict-

ing maximum harm. Blaha argues that because the record

shows that trial counsel received and reviewed the presentence

investigation report, counsel should have shared and reviewed

the contents of the report with Blaha. He argues that as a result,

he was unable to communicate to trial counsel the misrepre-

sentations and erroneous characterizations that the probation

officer made in the report.

[17,18] A defendant has a qualified right to review his or

her presentence report, and the defendant may, with his or her

attorney, examine the presentence report subject to the court’s

31

Brief for appellant at 11.

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supervision.32 A defendant waives his or her qualified right to

review the presentence investigation report by not notifying

the trial court that he or she has not personally reviewed the

report and that he or she wishes to do so.33

In State v. Moyer,34 the defendant asserted that trial counsel

was ineffective when counsel failed to disclose to the defend­

ant the contents of the presentence investigation report. We

noted that the record contained an affirmation from the sen-

tencing hearing that the defendant had the opportunity to dis-

cuss with counsel the contents of the presentence investigation

report. Although the defendant’s failure to object at sentencing

effectively waived his right to challenge it on appeal, the ques-

tion before us was whether the defendant’s trial counsel was

deficient for failing to disclose the contents of the presentence

investigation report to the defendant prior to sentencing. Our

decision in Moyer relied on State v. McDermott,35 where the

district court did conduct an evidentiary hearing and had the

benefit of the testimony from the probation officer and trial

counsel that they both reviewed the contents of the presentence

investigation report with the defendant. In Moyer, because we

did not have the benefit of a record containing evidence of

any conversations between the defendant and trial counsel, we

held that the record was insufficient to address the claim on

direct appeal.

Here, the record is void of any statement by Blaha or trial

counsel that Blaha either reviewed the presentence investigation

report or wished to review the report. Nor is there any state-

ment by Blaha that he had the opportunity to review the pre-

sentence investigation report. Similar to Moyer, we do not have

the benefit of a record that contains any conversation about the

32

State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).

33

State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

34

Moyer, supra note 32.

35

State v. McDermott, 267 Neb. 761, 677 N.W.2d 156 (2004).

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contents of the presentence investigation report between Blaha

and trial counsel or the probation officer. Therefore, we con-

clude that the record is insufficient to address the claim on

direct review.

VI. CONCLUSION

We conclude that there is no merit to the assignments of

error we can reach on direct appeal. Accordingly, we affirm

Blaha’s convictions and sentences.

A ffirmed.