State v. Lane , 299 Neb. 170 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/02/2018 08:12 AM CST
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. LANE
Cite as 299 Neb. 170State of Nebraska, appellee, v.
Michael E. Lane, appellant.
___ N.W.2d ___
Filed March 2, 2018. No. S-17-150.
1. Pleas: Appeal and Error. A trial court is given discretion as to whether
to accept a guilty plea, and an appellate court will overturn that decision
only where there is an abuse of discretion.
2. Appeal and Error. 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 uncor-
rected, would result in damage to the integrity, reputation, and fairness
of the judicial process.
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.
4. ____: ____. 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 deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
5. Pleas. To support a finding that a defendant has entered a guilty
plea freely, intelligently, voluntarily, and understandingly, a court must
inform a defendant concerning (1) the nature of the charge, (2) the
right to assistance of counsel, (3) the right to confront witnesses against
the defendant, (4) the right to a jury trial, and (5) the privilege against
self-incrimination. The record must also establish a factual basis for
the plea and that the defendant knew the range of penalties for the
crime charged.
6. Convicted Sex Offender: Sentences. A defendant’s duties to register
as a sex offender are a collateral consequence to a defendant’s sen-
tence. Because registration duties under the Sex Offender Registration
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STATE v. LANE
Cite as 299 Neb. 170Act are not punitive, a trial court may inform a defendant of the duties
imposed under the act before accepting pleas of guilty or no contest,
but is not required to do so, and a plea is not rendered involuntary or
unintelligent because a defendant was not aware of his or her registra-
tion duties.
7. Convicted Sex Offender. The notification requirements of Neb. Rev.
Stat. § 29-4007 (Reissue 2016) are mandatory.
8. Sentences: Appeal and Error. An appellate court has the power on
direct appeal to remand a cause for the imposition of a lawful sentence
where an erroneous one has been pronounced.
9. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant 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. Otherwise, the issue will be procedurally barred.
10. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
11. ____: ____: ____. 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.
12. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when allegations of deficient performance are made with enough
particularity for (1) an appellate court to make a determination of
whether the claim can be decided upon the trial record and (2) a
district court later reviewing a petition for postconviction relief to
be able to recognize whether the claim was brought before the appel-
late court.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed in part, and in part vacated and
remanded for resentencing.
Nathan S. Lab, of McGough Law, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
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STATE v. LANE
Cite as 299 Neb. 170Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Michael E. Lane accepted a plea agreement and entered a
no contest plea to incest, a Class III felony, on October 31,
2016. At the sentencing hearing, the district court for Douglas
County pronounced that Lane was sentenced to 4 to 4 years’
imprisonment, with credit for 11 days served, and a term of
2 years’ postrelease supervision. Lane appeals. Lane claims
that he should be able to withdraw his plea, because at the
plea hearing, the State and the district court misinformed
him that he would not need to register as a sex offender. As
explained below, we reject this assignment of error. Lane chal-
lenges his sentence in certain respects. However, because, as
we explain below, we are vacating his sentence due to plain
error, we do not reach these assignments of error. Finally, Lane
alleges ineffectiveness of trial counsel. We do not reach the
merits of Lane’s ineffectiveness of counsel claims. We affirm
Lane’s conviction, but because we find error in the sentenc-
ing, we vacate Lane’s sentence and remand the cause for
resentencing.
II. STATEMENT OF FACTS
Following the denial of Lane’s motion to suppress, pursuant
to a plea agreement in which Lane agreed to enter a no contest
plea, the State filed an amended information charging Lane
with incest, a Class III felony, under Neb. Rev. Stat. § 28-703(Reissue 2016).
At the plea hearing, the State provided a factual basis for the
charge. In sum, the victim, who is Lane’s niece, reported an
incident which occurred on or about November 7, 2015. Lane
had been living with the victim’s family for about a month
when the events giving rise to the conviction occurred. The
crime occurred in Douglas County, Nebraska.
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STATE v. LANE
Cite as 299 Neb. 170At the plea hearing, the district court informed Lane of
his constitutional rights and that by pleading, Lane would be
giving up all of those rights but for the right to appeal and
the right to counsel, and Lane stated that he understood and
still wished to plead. While informing Lane of the penal-
ties associated with the crime charged, the court asked the
State whether the offense required registration under the Sex
Offender Registration Act (SORA), Neb. Rev. Stat. § 29-4001et seq. (Reissue 2016). The State responded that the offense
did not require registration under SORA. The parties agree
that this advisement by the State and by the district court was
incorrect and that an incest conviction requires registration
under SORA. See § 29-4003(1)(b)(i)(A)(XIV). Lane’s counsel
did not object or make a statement regarding this erroneous
statement at the plea hearing.
Lane pled no contest. The district court found that the plea
was made freely, knowingly, and voluntarily and accepted
the plea. The district court found Lane guilty of the charge
and sentenced him to 4 to 4 years’ imprisonment, with
credit for 11 days served, and a term of 2 years’ postrelease
supervision.
This appeal followed. On appeal, Lane seeks to withdraw
his plea, challenges his sentence, and alleges ineffectiveness
of trial counsel.
III. ASSIGNMENTS OF ERROR
Lane claims that (1) because the district court and the State
misinformed him that he would not be subject to sex offender
registration, he should be permitted to withdraw his plea, and
(2) the district erred in the sentence it imposed. Lane fur-
ther claims that (3) he was prejudiced by ineffectiveness of
trial counsel.
IV. STANDARDS OF REVIEW
[1] A trial court is given discretion as to whether to
accept a guilty plea, and an appellate court will overturn that
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299 Nebraska R eports
STATE v. LANE
Cite as 299 Neb. 170decision only where there is an abuse of discretion. State v.
Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).
[2] Plain error may be found on appeal when an error unas-
serted 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, reputa-
tion, and fairness of the judicial process. State v. Ramirez, 287
Neb. 356, 842 N.W.2d 694 (2014).
[3,4] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question of
law. State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017). 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. Id.V. ANALYSIS
As we explain below, we affirm Lane’s conviction. However,
we find plain error in connection with sentencing, because
on the record before us, the district court failed to complete
SORA notification obligations. See § 29-4007. Accordingly,
we affirm Lane’s conviction but vacate his sentence and
remand the cause for resentencing. Further, we are unable
to reach the merits of Lane’s claims of ineffectiveness of
trial counsel.
1. Withdrawal of Plea
On appeal, Lane contends that he should be allowed by
this court to withdraw his plea on the basis that his plea was
the product of being wrongly advised by the district court and
the State that he was not subject to SORA and its registration
duties. We reject this assignment of error. For completeness,
we note that our rejection of Lane’s claim regarding the pro-
priety of his plea considers only this basis asserted by Lane.
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STATE v. LANE
Cite as 299 Neb. 170[5] To support a finding that a defendant has entered a
guilty plea freely, intelligently, voluntarily, and understand-
ingly, a court must inform a defendant concerning (1) the
nature of the charge, (2) the right to assistance of counsel,
(3) the right to confront witnesses against the defendant, (4)
the right to a jury trial, and (5) the privilege against self-­
incrimination. State v. Bol, 294 Neb. 248, 882 N.W.2d 674(2016). The record must also establish a factual basis for the
plea and that the defendant knew the range of penalties for the
crime charged. Id.[6] In State v. Schneider, 263 Neb. 318, 640 N.W.2d 8(2002), we held that a defendant’s duties to register as a sex
offender are a collateral consequence to a defendant’s sen-
tence. Because the SORA registration duties at issue are not
punitive, a trial court may inform a defendant of the duties
imposed under SORA before accepting pleas of guilty or
no contest, but is not required to do so, and a plea is not
rendered involuntary or unintelligent because a defendant
was not aware of his or her registration duties. See id. See,
also, State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009).
Compare Doe v. Nebraska, 734 F. Supp. 2d 882 (D. Neb.
2010) (noting difference between civil duties and punitive
consequences). Thus, under Schneider, the district court’s
incorrect advisement regarding the collateral SORA conse-
quence of Lane’s plea does not invalidate his plea or warrant
the relief of withdrawal.
2. Sentencing Errors
We have reviewed the record, and on the record before
us, we determine that the district court failed to complete the
SORA notification requirements of § 29-4007, which the court
is mandated to do in a conviction for an offense triggering
SORA duties. As a result, we find plain error in sentencing and
we vacate the sentence and remand for resentencing.
Lane was convicted of incest pursuant to § 28-703, which
is a registrable offense under § 29-4003(1)(b)(i)(A)(XIV). The
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STATE v. LANE
Cite as 299 Neb. 170State suggests that we vacate the sentence and remand this
cause for additional sentencing proceedings, because the record
does not show that the district court complied with its duty
to inform Lane, in writing, about his duty to register under
SORA. See § 29-4007. We agree with the State.
Section 29-4007 provides, in relevant part:
(1) When sentencing a person convicted of a regis-
trable offense under section 29-4003, the court shall:
....
(b) Require the defendant to read and sign a form
stating that the duty of the defendant to register under
[SORA] has been explained;
(c) Retain a copy of the written notification signed by
the defendant; and
(d) Provide a copy of the signed, written notification,
the judgment and sentence, the information or amended
information, and the journal entry of the court to the
county attorney, the defendant, the sex offender registra-
tion and community notification division of the Nebraska
State Patrol, and the county sheriff of the county in
which the defendant resides, has a temporary domicile,
or has a habitual living location.
....
(3)(a) The Department of Correctional Services or a
city or county correctional or jail facility shall provide
written notification of the duty to register pursuant to
[SORA] to any person committed to its custody for a
registrable offense under section 29-4003 prior to the per-
son’s release from incarceration.
[7] We have stated that the notification requirements of
§ 29-4007 are mandatory. State v. Pathod, 269 Neb. 155,
690 N.W.2d 784 (2005). In Pathod, we noted that the plain
language of § 29-4007 states that when sentencing a person,
the court “shall” provide written notification and copies of
the notification and corresponding journal entry to vari-
ous parties.
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STATE v. LANE
Cite as 299 Neb. 170In Pathod, the sentencing court failed to enter a journal
entry or notify the defendant at sentencing, but the notice
signed by the defendant was filed the day after sentencing and
was included in the record. Given all the facts in Pathod, we
concluded that the court’s error in SORA compliance did not
invalidate the sentence.
Although the facts we have before us differ, we apply
an analysis similar to Pathod in the instant case. Here, the
State notes that on this record, the court failed to provide
written notification to Lane at sentencing or provide copies
of the notification and journal entry to the various parties,
as required by § 29-4007. Unlike Pathod, the record in the
instant case does not show whether Lane ultimately received
proper advisements regarding his SORA duties, and we do not
assume that he did. We agree with the State that the district
court plainly erred by failing to comply with SORA notifica-
tion requirements.
[8] An appellate court has the power on direct appeal to
remand a cause for the imposition of a lawful sentence where
an erroneous one has been pronounced. State v. Ramirez, 287
Neb. 356, 842 N.W.2d 694 (2014); State v. Gunther, 271 Neb.
874, 716 N.W.2d 691 (2006). Accordingly, we vacate Lane’s
sentence and remand the cause for resentencing compliant with
§ 29-4007.
3. Ineffective Assistance
of Counsel
We have reviewed Lane’s allegations concerning claims of
ineffective assistance of trial counsel, and we determine that
the record on direct appeal is not sufficient to address them.
[9,10] Lane is represented on direct appeal by counsel dif-
ferent from the counsel who represented him at trial. 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. State v.
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STATE v. LANE
Cite as 299 Neb. 170Mora, 298 Neb. 185, 903 N.W.2d 244 (2017). Otherwise, the
issue will be procedurally barred. Id. The fact that an ineffec-
tive assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. Id. The determin-
ing factor is whether the record is sufficient to adequately
review the question. Id.[11,12] 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 con-
duct alleged to constitute deficient performance. Id. An inef-
fective assistance of counsel claim is raised on direct appeal
when allegations of deficient performance are made with
enough particularity for (1) an appellate court to make a deter-
mination of whether the claim can be decided upon the trial
record and (2) a district court later reviewing a petition for
postconviction relief to be able to recognize whether the claim
was brought before the appellate court. Id.(a) Failing to Notify Lane
of SORA Duties
Lane has brought to our attention alleged deficiencies
regarding his trial counsel’s advice regarding his SORA duties.
Lane contends the alleged deficiencies justify withdrawal of
his plea. Although the record shows Lane’s trial counsel did
not comment on the question of SORA’s applicability at his
sentencing hearing, the record is silent regarding whether Lane
otherwise received advisements from his trial counsel, includ-
ing compliance features of § 29-4007, at any other time. In this
direct appeal, the record is incomplete on the matter, and we
are unable to determine whether Lane’s trial counsel performed
deficiently regarding advice pertaining to Lane’s SORA duties
in connection with counsel’s advice to enter the plea.
(b) Waiver of Right to Appeal
Because of Plea
As noted above, Lane asserts that his plea of no contest
was the result of ineffective assistance of trial counsel. As
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STATE v. LANE
Cite as 299 Neb. 170an additional reason, Lane contends that he was not correctly
advised that by entering a plea of no contest, he would give up
his right to appeal the denial of his motion to suppress. See,
e.g., State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).
Lane argues this is prejudicial because he is now unable to
challenge the denial of his motion to suppress his confession to
incest, in which motion he claims that he relied on statements
by a law enforcement officer implying that to acknowledge the
facts of the incident was not to confess to a crime.
Upon our review, we determine that the record is insuf-
ficient to review Lane’s allegation regarding counsel’s advice
relative to the plea. The nature of Lane’s claim that it was defi-
cient performance for trial counsel to advise him to waive his
right to appeal is entwined with his acceptance of a plea deal,
and on this record, we cannot review the conduct of Lane’s
trial counsel.
VI. CONCLUSION
We affirm Lane’s conviction for incest. However, because
the district court failed to comply with its obligation to notify
Lane of his SORA registration duties, we vacate the sentence
and remand the cause for resentencing. Finally, in this direct
appeal, the record is insufficient to resolve Lane’s claims of
ineffectiveness of trial counsel.
A ffirmed in part, and in part vacated
and remanded for resentencing.
Wright, J., not participating.