State v. Dicini ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. DICINI
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.
MICHELLE M. DICINI, APPELLANT.
Filed January 17, 2023. No. A-22-446.
Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge. Affirmed as
modified.
Joe Nigro, Lancaster County Public Defender, and Chelsie E. Krell for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Michelle M. Dicini appeals from her plea-based convictions for two counts of unlawful
acts in Department of Corrections (DCS) or conveyance of an article to an inmate and attempting
to deliver, manufacture, or with intent to deliver a controlled substance. Dicini argues that the
district court imposed excessive sentences and that she received ineffective assistance of trial
counsel. For the reasons set forth herein, we affirm as modified.
STATEMENT OF FACTS
In November 2021, the State filed an information charging Dicini with unlawful acts in
DCS or conveyance of an article to an inmate, a Class IV felony, and first degree sexual abuse of
an inmate or parolee, a Class IIA felony. Pursuant to a plea agreement, Dicini pled no contest to
an amended information charging her with: count I, unlawful acts in DCS or conveyance of an
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article to an inmate, E.C., a Class IV felony; count II, unlawful acts in DCS or conveyance of an
article to an inmate, M.C., a Class IV felony; and count III, attempting to deliver, manufacture, or
with intent to deliver controlled substance (a schedule 1, 2, or 3 drug), a Class IIIA felony. See,
Neb. Rev. Stat. § 83-417 (Reissue 2014) (allow committed offender to escape or have unauthorized
visitation or communication; penalty); Neb. Rev. Stat. § 28-201 (Reissue 2016) (criminal attempt);
Neb. Rev. Stat. § 28-416 (Cum. Supp. 2020) (drugs and narcotics; prohibited acts; violations;
penalties).
The State provided a factual basis for the charged offenses. Regarding count I, the State
alleged that an investigation began in May 2021 regarding allegations that Dicini, a DCS corporal,
was involved in a romantic relationship with inmate E.C. DCS located emails sent to E.C. on E.C.’s
JPay account, which is a system that inmates use to send and receive emails. There were also
emails sent from E.C. to a fictitious name that appeared to be related to Dicini. After waiving her
Miranda rights, Dicini admitted that she created a fake account to email inmate E.C. in violation
of DCS without permission. Some of Dicini and E.C.’s communications were intimate in nature
and Dicini admitted to kissing E.C. on three occasions in a closet within the DCS system.
Regarding count II, the State alleged that information obtained from other JPay accounts
and from other inmates indicated that Dicini may also have been involved in a relationship with
inmate M.C. During an interview, M.C. admitted to having intercourse with Dicini. Dicini
admitted having a sexual relationship with inmate M.C. in a religious center within the Lincoln
Correctional Center and to sending and receiving text messages with M.C. She also admitted to
bringing a cellular telephone into DCS for inmate M.C. and that she would communicate with him
on that cellular telephone.
Regarding count III, Dicini admitted to bringing packages containing marijuana into the
DCS system on two occasions.
At the sentencing hearing, the district court stated:
[t]hese are simply too serious of crimes to even consider placing you on probation. Because
to do so would so depreciate the seriousness of these crimes and would absolutely promote
disrespect for the law.
Having considered all of the statutory factors that I must consider, I do find that
imprisonment is necessary. Lesser sentences than I will impose here today would
absolutely . . . depreciate the seriousness of these crimes and promote disrespect for the
law.
The district court sentenced Dicini to 2 years’ imprisonment on count I; 2 years’ imprisonment on
count II, to run consecutively to count I; and 3 years’ imprisonment on count III. Dicini was given
credit for 21 days already served. In its subsequent written sentencing order, the court ordered that
count III was ordered to be served consecutively to counts I and II, followed by 9 months of
post-release supervision. Dicini now appeals from her convictions and sentences.
ASSIGNMENTS OF ERROR
Dicini contends that (1) the sentences imposed were excessive and (2) trial counsel was
ineffective by failing to advise her regarding the possibility of filing a motion to suppress evidence
under Neb. Rev. Stat. § 20-151 (Cum. Supp. 2020) on the grounds that she is hard of hearing.
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STANDARD OF REVIEW
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Abligo, 312 Neb. 74, 978 N.W.2d 42 (2022). Further,
it is within the discretion of the trial court whether to impose probation or incarceration, and an
appellate court will uphold the court’s decision denying probation absent an abuse of discretion.
State v. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013); State v. Montoya, 29 Neb. App. 563, 957
N.W.2d 190 (2021).
Whether a claim of ineffective assistance of trial counsel can be determined on direct
appeal presents a question of law, which turns upon the sufficiency of the record to address the
claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a
statute or constitutional requirement. State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021). 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
EXCESSIVE SENTENCE
Dicini’s first assignment of error is that the sentences imposed were excessive. She argues
that the district court abused its discretion in failing to properly weigh the appropriate factors in
determining her sentence and, if it had done so, the court would have sentenced her to probation.
When sentences imposed within statutory limits are alleged on appeal to be excessive, the
appellate court must determine whether the sentencing court abused its discretion in considering
well-established factors and any applicable legal principles. State v. Morton, 310 Neb. 355, 966
N.W.2d 57 (2021). The relevant factors for a sentencing judge to consider when imposing a
sentence are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation
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. Id. The sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that
includes the sentencing judge’s observations of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. Id.Here, Dicini’s sentences of 2 years’ imprisonment each on counts I and II, both Class IV
felonies, were within the statutory sentencing range for Class IV felonies, which are punishable by
no minimum and a maximum of 2 years’ imprisonment and 12 months of post-release supervision
and/or a $10,000 fine. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020). Further, the district court
found that Dicini was not a suitable candidate for probation due to the serious nature of the offenses
and because to do so would depreciate the seriousness of these crimes and would promote
disrespect for the law. See Neb. Rev. Stat. § 29-2204.02 (Reissue 2016) (Sentence for Class III,
IIIA, or IV felony). Although the district court did not specifically set forth the weight it placed on
each of the statutory factors, the court stated that it had considered all of the statutory factors and
determined that a sentence of imprisonment was necessary. Section 29-2260 does not require the
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trial court to articulate on the record that it has considered each sentencing factor, and it does not
require the court to make specific findings as to the factors and the weight given them, and the
absence of specific findings concerning the factors set forth in § 29-2260 cannot in itself be error
or grounds for reversal. State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 (2020).
On count III, a Class IIIA felony, Dicini was sentenced to 3 years’ imprisonment followed
by 9 months of post-release supervision, which is within the statutory sentencing range for Class
IIIA felonies, which are punishable by a minimum of no imprisonment and a maximum of 3 years’
imprisonment followed by 9 to 18 months of post-release supervision and/or a $10,000 fine.
§ 28-105. Accordingly, Dicini’s sentence is within the statutory sentencing range.
At the time of the presentence investigation report, Dicini was 39 years old, married, with
two dependents. Dicini had obtained a high school diploma and had some college education. She
had no prior criminal history and the level of service/case management inventory assessed her in
the low-risk range to reoffend. However, we note that Dicini received a benefit from her plea
agreement in which a Class IIA felony was dismissed.
Based upon factors including that the sentence imposed was within the statutory sentencing
range, that the district court properly considered the appropriate sentencing factors, and the need
for sentences that will not depreciate the seriousness of these crimes and promote disrespect for
the law, the sentences imposed were not an abuse of discretion.
We note, in the oral pronouncement of the sentence, the district court did not indicate that
count III was to run consecutively to counts I and II. However, the court’s subsequent written order
provided that the sentence on count III was ordered to run consecutively to counts I and II. Dicini
did not separately assign this as error. Nevertheless, an appellate court may, at its option, notice
plain error. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020). A sentence that is contrary
to the court’s statutory authority is an appropriate matter for plain error review. Id.Generally, it is within a trial court’s discretion to direct that sentences imposed for separate
crimes be served either concurrently or consecutively. State v. Lantz, 290 Neb. 757, 861 N.W.2d
728 (2015). In Nebraska, unless prohibited by statute or unless the sentencing court states
otherwise when it pronounces the sentences, multiple sentences imposed at the same time run
concurrently with each other. Id. Additionally, when a sentence orally pronounced at the
sentencing hearing differs from a later written sentence, the former prevails. State v. Olbricht, 294
Neb. 974, 885 N.W.2d 699 (2016).
Because the district court did not indicate in its oral pronouncement that the sentence on
count III was to run consecutively to the sentences imposed on counts I and II, we find that the
district court committed plain error in its written order. Therefore, we modify count III of the
sentence in that count III is to run concurrently to counts I and II.
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Dicini next argues that her trial counsel was ineffective for failing to advise her regarding
a motion to suppress her statements obtained during her interrogation on the grounds that she is
hard of hearing.
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In State v. Lowman, 308 Neb. 482, 496-97, 954 N.W.2d 905, 919 (2021), the Nebraska
Supreme Court stated:
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. Otherwise,
the issue will be procedurally barred. But the fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean that it can be resolved on direct
appeal. The determining factor is whether the record is sufficient to adequately review the
question. The 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.
Further, as stated by the Nebraska Supreme Court in State v. Blaha, 303 Neb. 415, 422-23,
929 N.W.2d 494, 502 (2019):
Generally, 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 defendant’s
defense. 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. In a plea context, deficiency depends on whether counsel’s advice was within
the range of competence demanded of attorneys in criminal cases. 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. The two prongs of the ineffective assistance of counsel test under
Strickland may be addressed in either order.
When reviewing claims of alleged ineffective assistance of counsel, trial counsel is
afforded due deference to formulate trial strategy and tactics. State v. Huston, 285 Neb. 11, 824
N.W.2d 724 (2013). There is a strong presumption that counsel acted reasonably, and an appellate
court will not second-guess reasonable strategic decisions. Id.Here, Dicini argues that counsel was deficient for failing to advise her regarding the
possibility of filing a motion to suppress her statements made during the investigation on the
grounds that she is hard of hearing. A “deaf or hard of hearing person” is defined in Neb. Rev.
Stat. § 20-151(3) (Cum. Supp. 2020) as
a person whose hearing impairment, with or without amplification, is so severe that he or
she may have difficulty in auditorily processing spoken language without the use of an
interpreter or a person with a fluctuating or permanent hearing loss which may adversely
affect the ability to understand spoken language without the use of an interpreter or other
auxiliary aid[.]
Pursuant to Neb. Rev. Stat. § 20-152 (Reissue 2012):
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Whenever a deaf or hard of hearing person is arrested and taken into custody for an
alleged violation of state law or local ordinance, the appointing authority shall procure a
licensed interpreter for any interrogation, warning, notification of rights, or taking of a
statement, unless otherwise waived. No arrested deaf or hard of hearing person otherwise
eligible for release shall be held in custody solely to await the arrival of a licensed
interpreter. A licensed interpreter shall be provided as soon as possible. No written or oral
answer, statement, or admission made by a deaf or hard of hearing person in reply to a
question of any law enforcement officer or any other person having a prosecutorial function
may be used against the deaf or hard of hearing person in any criminal proceeding unless
(1) the statement was made or elicited through a licensed interpreter and was made
knowingly, voluntarily, and intelligently or (2) the deaf or hard of hearing person waives
his or her right to an interpreter and the waiver and statement were made knowingly,
voluntarily, and intelligently. The right of a deaf or hard of hearing person to an interpreter
may be waived only in writing. The failure to provide a licensed interpreter pursuant to this
section shall not be a defense to prosecution for the violation for which the deaf or hard of
hearing person was arrested.
We note that the record reflects that Dicini did not request an interpreter during her plea
hearing or sentencing hearing, did not inform the court that she was unable to hear the proceedings,
and answered questions appropriately. Further, the following colloquy took place between the
court and Dicini during the plea hearing:
THE COURT: Are you satisfied with the job [trial counsel] has done for you?
THE DEFENDANT: Yes.
THE COURT: Do you believe he is a competent lawyer and knows what he’s
doing?
THE DEFENDANT: Yes.
THE COURT: Has he refused or neglected to do anything that you have asked of
him?
THE DEFENDANT: No.
THE COURT: Have you had enough time to talk with him about this case?
THE DEFENDANT: Yes.
THE COURT: Before we go any further, do you need any more time to talk with
him about anything?
THE DEFENDANT: No.
Additionally, during the plea hearing the district court instructed Dicini regarding her
ability to seek a separate hearing to determine admissibility of statements or other evidence and
understood she would be waiving that right as a result of her plea:
THE COURT: If you have made any statements, admissions or confessions to law
enforcement or any other public official about this case, you are entitled to a separate
hearing to have me determine whether such statement, admission or confession was made
by you freely, voluntarily, knowingly and intelligently. If at that hearing I found that any
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one or more of those items was missing, then that statement, admission or confession could
not be used against you at the time of a trial. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: But if I accept your pleas of no contest, you’ll be waiving and giving
up your right to have this type of hearing; do you understand that?
THE DEFENDANT: Yes.
In this case, based on our review of the record, we find that Dicini’s allegation of ineffective
assistance of trial counsel for failing to advise her regarding a motion to suppress her statements
obtained during her interrogation on the grounds that she is hard of hearing is refuted by the record.
Dicini was made aware of her right to a separate hearing on the admissibility of any statements or
confessions made to law enforcement, and she agreed that she would be waiving that right by
taking the plea. Additionally, when asked whether she felt her counsel failed to address anything
that she requested of him, Dicini said no. When considered together with the fact that Dicini never
indicated during any stage of the proceeding that she suffered from a hearing impairment as
defined in § 20-151(3) and she clearly responded to the district court’s questions without any
indication whatsoever of a lack of ability to understand or hear the spoken language without an
interpreter or auxiliary aid, we find the record affirmatively refutes Dicini’s claim and that she was
not prejudiced by her counsel’s alleged defective performance. As a result, this assignment of error
fails.
CONCLUSION
Having considered and rejected Dicini’s assigned errors, we affirm Dicini’s convictions
and sentences; however, we modify Dicini’s sentence on count III to provide that the sentence on
count III is to be served concurrently with counts I and II.
AFFIRMED AS MODIFIED.
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