State v. Anderson ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. ANDERSON
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
CORY J. ANDERSON, APPELLANT.
Filed April 27, 2021. No. A-20-519.
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed.
Lisa F. Lozano for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
RIEDMANN, BISHOP, and WELCH, Judges.
BISHOP, Judge.
INTRODUCTION
Cory J. Anderson pled no contest to violating the Sex Offender Registration Act (SORA),
with a prior conviction under SORA, for which the Lancaster County District Court sentenced him
to 2 to 4 years’ imprisonment. Anderson claims his trial counsel was ineffective. We affirm.
STATEMENT OF FACTS
PREVIOUS CONVICTIONS
In 2012, Anderson was convicted in Buffalo County District Court case No. CR 12-02 of
attempted first degree sexual assault of a child, a Class II felony. He was sentenced to 4 to 8 years’
imprisonment. As a result of his conviction, he was subject to SORA for a period of 25 years.
In December 2018, Anderson was convicted in Lancaster County District Court case No.
CR 18-596 (case No. CR 18-596) of violating SORA, a Class IIIA felony. He was subsequently
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sentenced in February 2019, to 1 year of incarceration, followed by 18 months’ postrelease
supervision.
CURRENT CASE
On April 21, 2020, the State filed a complaint in the county court for Lancaster County
charging Anderson with one count of “[SORA] Violation - Prior Felony,” a Class IIA felony,
pursuant to Neb. Rev. Stat. § 29-4011(2) (Reissue 2016). The complaint stated that the penalty for
the charged crime was “0-20 Yrs; Mand Min 1 Yr.” The State alleged that between January 1 and
April 20, 2020, Anderson, being subject to SORA, “fail[ed] to inform the sheriff of the county in
which he . . . resides, in person, and complete a form as prescribed by the Nebraska State Patrol
for such purpose, when he . . . had a new address, temporary domicile, or habitual living location,
within three working days before the change.” The State also alleged that Anderson had previously
been convicted of a SORA violation in case No. CR 18-596.
After the case was bound over to the district court, the State filed an information in case
No. CR 20-408 on May 18, 2020, charging Anderson with one count of “[SORA] Violation - Prior
Felony,” a Class IIA felony, pursuant to § 29-4011(2), as it had in county court, the only difference
being that the charged offense was now alleged to have occurred between November 20, 2019,
and April 20, 2020. Like the complaint, the information stated that the penalty for the charged
crime was “0-20 Yrs; Mand Min 1 Yr.”
At a hearing held via Zoom on May 19, 2020, and as relevant to this appeal, Anderson was
arraigned on the information in case No. CR 20-408. During the arraignment, the charge against
Anderson was read by the State, and the State advised him that the penalty for the charged offense
was “up to 20 years[’] incarceration, and a mandatory minimum of one year incarceration.”
Anderson confirmed his understanding of the charge and the penalty. When asked by the district
court how he wished to plead, Anderson stated, “No Contest.” The court then advised Anderson
that he could withdraw his plea up until the time it was accepted by the court.
The district court informed Anderson of his constitutional rights and the nature of the
charge against him. Anderson confirmed his understanding. The court also informed Anderson of
the possible penalty for the charge. Specifically, the court advised Anderson that the penalty for
the charged offense was “up to 20 years[’] imprisonment, with a mandatory minimum of one year
imprisonment.” Anderson once again confirmed his understanding of the possible penalty.
Pursuant to a plea agreement, Anderson then pled no contest to the charge in the
information in case No. CR 20-408, stipulated to having a prior SORA violation conviction in case
No. CR 18-596, and pled no contest in case No. CR 18-596 to violating his postrelease supervision
in that case. In exchange for Anderson’s plea, the State agreed to dismiss a separate criminal case
against him. According to the factual basis provided by the State in case No. CR 20-408,
On December 30th, 2019, Sergeant Armstrong, with the Lincoln Police Department, was
provided information from the Lancaster County probation officer, Kimberly Grant, that
Mr. Anderson was not in compliance with the Nebraska Sex Offender Registry. The officer
confirmed that Mr. Anderson is currently on the Nebraska Sex Offender Registry for 25
years, stemming from a conviction on June 20th, 2012, for attempted first degree sexual
assault of a child, out of Buffalo County District Court, file No. CR12-2.
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According to the Nebraska Sex Offender Registry, Mr. Anderson registered his
address at [an address on] E Street, Lincoln, Lancaster County, Nebraska, on September
3rd, 2019 . . . ; [the address on] E Street is a transitional living house managed by
CenterPointe Out-Patient Services.
The probation office reported to the officer that she currently supervises Mr.
Anderson’s probation, stemming from the 2019 conviction of [a SORA] violation. . . . [H]e
was subject to electronic monitoring. She reported to the officer that she was notified that
the battery on [Anderson’s] electronic device went dead on November 26th, 2019; and she
reported on November 27th, 2019, she followed up with staff at [the address on] E Street,
which was the following day of the battery dying, and learned that [Anderson] was no
longer residing at that street.
On January 7th, Sergeant Kennett of the Lincoln Police Department conducted
follow-up . . . in reference to [Anderson’s] residency. He contacted Lindsey Butcher, a case
manager with CenterPointe, and residential manager of transitional living. Butcher
reported that [Anderson] had moved out and had not resided [there] since November 27th,
2019. He had failed to make any notification in person, of his move, to the Lancaster
County Sheriff’s Department within three working days before that change, and had not
provided a new address to the Nebraska Sex Offender Registry.
Additionally, Your Honor, on April 20th, 2020, . . . deputies with the Lancaster
County Sheriff’s Office were dispatched to [an address on] Northwest 27th Street,
reference [sic] [Anderson] residing at the residence and having multiple, confirmed
warrants.
[Anderson] was identified by an Angela Miller, who works at the bed and breakfast
on the property . . . . She reported that [Anderson] had been living at the residence since
late January 2020. Ashley Neukirch, [Anderson’s girlfriend], was interviewed and stated
she has been living with [Anderson] [at the address on] Northwest 27th Street since
mid-January of 2020.
[Anderson] had previously been convicted of the charge of Sex Offender
Registration violation . . . on February 27th, 2019, in the District Court of Lancaster
County, at file No. CR18-596 . . . .
All of these events occurred in Lancaster County, Nebraska.
As relevant to this appeal, the district court accepted Anderson’s no contest plea to the
charge in the information in case No. CR 20-408 and found him guilty of the same; based on
Anderson’s stipulation, the court also found beyond a reasonable doubt that this was a second
offense as alleged in the information. The court ordered a presentence investigation and the
sentencing hearing was set for June 24, 2020.
On June 24, 2020, the district court sentenced Anderson to 2 to 4 years’ imprisonment in
case No. CR 20-408. The sentence was to run concurrent to Anderson’s sentence in case No.
CR 18-596, and consecutive to any other sentence previously imposed on Anderson. The court’s
order stated that Anderson “must serve 1 year, minus credit for any time previously served, towards
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parole eligibility and 2 years, minus credit for any time previous[ly] served, towards mandatory
discharge.” Anderson was given credit for 36 days already served.
Anderson appeals.
ASSIGNMENT OF ERROR
Anderson assigns that he “received ineffective assistance of trial counsel when trial counsel
failed to advise [him] of the mandatory minimum sentence of one year of incarceration, which led
[him] to enter a plea that was not freely, intelligently, voluntarily, and understandingly made.”
STANDARD OF REVIEW
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). 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
prejudiced by counsel’s alleged deficient performance. Id.
ANALYSIS
Generally, a voluntary guilty plea or plea of no contest waives all defenses to a criminal
charge. Id. Thus, 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. Id.
Anderson claims his trial counsel was ineffective. He is represented on direct appeal by
different counsel than trial counsel. 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.
Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). Once raised, the appellate court will determine
whether the record on appeal is sufficient to review the merits of the ineffective performance
claims. Id. A record is sufficient if it establishes either that trial counsel’s performance was not
deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions
could not be justified as a part of any plausible trial strategy. State v. Theisen, 306 Neb. 591, 946
N.W.2d 677 (2020).
In order to know whether the record is insufficient to address assertions on direct appeal
that trial counsel was ineffective, appellate counsel must assign and argue deficiency with enough
particularity (1) for an appellate court to make a determination of whether the claim can be decided
upon the trial record and (2) for a district court later reviewing a petition for postconviction relief
to be able to recognize whether the claim was brought before the appellate court. State v. Lierman,
supra. When a claim of ineffective assistance of trial counsel 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. Id. In State
v. Mrza, 302 Neb. 931, 935, 926 N.W.2d 79, 86 (2019), the Nebraska Supreme Court stated, “We
now hold that assignments of error on direct appeal regarding ineffective assistance of trial counsel
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must specifically allege deficient performance, and an appellate court will not scour the remainder
of the brief in search of such specificity.”
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. State v. Blaha, supra. 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. Id. In a plea context, deficiency depends on whether
counsel’s advice was within the range of competence demanded of attorneys in criminal cases. Id.
When a conviction is based upon a guilty or no contest plea, the prejudice 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. Id. The two prongs of the ineffective assistance of counsel test under Strickland
may be addressed in either order. State v. Blaha, supra.
Keeping those governing principles of law in mind, we turn to address Anderson’s claim
that his trial counsel was ineffective because counsel failed to advise him of the mandatory
minimum sentence of 1 year of incarceration, which led Anderson to enter a plea that was not
freely, intelligently, voluntarily, and understandingly made. The State agrees with Anderson that
the record is insufficient to address this claim. We conclude otherwise.
Under SORA, § 29-4011(2) states:
Any person required to register under the act who violates the act and who has previously
been convicted of a violation of the act is guilty of a Class IIA felony and shall be sentenced
to a mandatory minimum term of at least one year in prison unless the violation which
caused the person to be placed on the registry was a misdemeanor, in which case the
violation of the act shall be a Class IIIA felony.
Anderson’s current conviction constituted a Class IIA felony under § 29-4011(2). Normally, a
Class IIA felony is punishable by up to 20 years’ imprisonment, with no minimum term of
imprisonment. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020). However, given that Anderson
was charged under § 29-4011(2), the possible penalty for his offense was a mandatory minimum
of 1 year imprisonment, and up to a maximum of 20 years’ imprisonment. See §§ 28-105 and
29-4011(2). In order to support a finding that a plea of guilty or no contest has been entered freely,
intelligently, voluntarily, and understandingly, among other requirements the record must establish
that the defendant knew the range of penalties for the crime with which he or she is charged. State
v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015). Anderson does not challenge the possible penalty
range for his charged offense, only that he was not advised of the mandatory minimum sentence
by his trial counsel.
Anderson argues that “during his meetings with trial [c]ounsel, he was told that for his plea
he could receive a possible sentence of up to 20 years[’] incarceration,” but “was not instructed by
his trial counsel that the charges . . . contained a mandatory minimum sentence of one year of
incarceration.” Brief for appellant at 13. Our record does not reveal any conversations between
Anderson and his counsel, including whether or not counsel advised Anderson of the mandatory
minimum sentence of 1 year of incarceration. However, the record reflects that Anderson was
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otherwise advised of the mandatory minimum sentence. First, the mandatory minimum sentence
was set forth in the complaint and information filed against him, both of which stated that the
penalty for the charged crime was “0-20 Yrs; Mand Min 1 Yr.” Second, Anderson was personally
advised of the mandatory minimum sentence by both the State and the district court at the
arraignment/plea hearing on May 19, 2020. Specifically, and dispositive of this appeal, is the fact
that the court advised Anderson that the penalty for the charged offense was “up to 20 years
imprisonment, with a mandatory minimum of one year imprisonment.” (Emphasis supplied.) And
Anderson confirmed his understanding of the possible penalty on the record at the May 19 hearing.
Thus, even if Anderson’s counsel failed to advise him of the mandatory minimum sentence of 1
year of incarceration, Anderson cannot show prejudice because he received such advisement by
the court and confirmed his understanding thereof. Accordingly, this claim of ineffective
assistance of trial counsel fails.
Anderson also argues, but does not assign as error, that his trial counsel failed to explain
that he would not receive credit for good time during his first year of incarceration and that the
district court’s truth in sentencing advisement somehow contributed to Anderson not being capable
of understanding the possible sentence he faced. However, an alleged error must be both
specifically assigned and specifically argued in the brief of the party asserting the error to be
considered by an appellate court. State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021). And as
previously noted, the Nebraska Supreme Court has made it clear that “assignments of error on
direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient
performance, and an appellate court will not scour the remainder of the brief in search of such
specificity.” See State v. Mrza, 302 Neb. at 935, 926 N.W.2d at 86. Anderson only assigned error
related to his trial counsel being ineffective for failing to advise him of the mandatory 1-year
minimum sentence. Therefore, this claim was not properly raised on appeal and does not require
us to engage in further discussion.
That said, we nevertheless conclude that Anderson cannot establish prejudice related to a
6-month difference in parole eligibility when he was still willing to plead after his trial counsel
advised him he could receive up to 20 years’ imprisonment and he had been informed of the
mandatory 1-year minimum sentence. Also, any alleged error in the district court’s truth in
sentencing advisement has no bearing on Anderson’s claim of ineffective assistance of trial
counsel, and any such error has no impact on the sentence ordered. A conflict between a court’s
sentence and its truth in sentencing advisement is of no consequence for the offender’s term of
imprisonment. See State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved on other
grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
CONCLUSION
For the reasons stated above, we find that Anderson’s assigned claim of ineffective
assistance of trial counsel fails. We therefore affirm his conviction and sentence.
AFFIRMED.
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