State v. Wyrrick ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. WYRRICK
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.
JACOB S. WYRRICK, APPELLANT.
Filed August 6, 2019. Nos. A-18-1078, A-18-1079.
Appeals from the District Court for Lancaster County: DARLA S. IDEUS, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and Matthew Meyerle for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
RIEDMANN, ARTERBURN, and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Jacob S. Wyrrick appeals the sentences imposed on his plea-based convictions for fourth
offense driving under the influence (DUI) and two counts of attempted possession of a controlled
substance (heroin and alprazolam). He also alleges ineffective assistance of counsel. We find the
district court did not abuse its discretion in the sentences imposed and that his claims of ineffective
assistance of counsel fail.
II. STATEMENT OF FACTS
Wyrrick was initially charged, in separate cases, with fourth offense DUI, a Class IIIA
felony, and possession of heroin, a Class IV felony. Pursuant to a plea agreement, Wyrrick pled
no contest to DUI and two counts of attempted possession of a controlled substance (heroin and
alprazolam), Class I misdemeanors.
-1-
At an August 1, 2018 plea hearing, Wyrrick pled no contest to DUI. The State provided a
factual basis stating that, in August 2017, during a traffic stop, Wyrrick appeared drunk, refused
to submit to a preliminary breath test, and was arrested. When tested at the jail, his breath test
result was .152 grams of alcohol per 210 liters of his breath. However, because the particular
machine used to test Wyrrick had a margin of error of 5 percent, the State charged him as having
a breath test result of .08 grams of alcohol per 210 liters of his breath. The court accepted Wyrrick’s
plea. Wyrrick’s counsel told the court that they wanted to schedule a plea for the possession case,
but that he wanted to collect prescription records to show the county attorney’s office first. The
court held an enhancement hearing immediately following Wyrrick’s plea. The State presented
certified copies of Wyrrick’s three prior convictions for DUI. The court reserved ruling on
enhancement until the sentencing hearing and, at that time, found that Wyrrick’s DUI was a fourth
offense as charged.
On August 28, 2018, Wyrrick pled no contest to two counts of attempted possession of
controlled substance, specifically heroin and alprazolam. The factual basis provided by the State
regarding the possession charges set forth that, in July 2017, police officers were dispatched to a
disturbance and found Wyrrick in possession of heroin and alprazolam. Based on the court’s
inquiries, Wyrrick told the court that he understood he was giving up all defenses, that he had
talked about all possible defenses with his counsel, that his counsel had done everything he had
asked, and that he was very satisfied with his counsel. The court found him guilty, accepted his
plea, ordered a presentence investigation report (PSR) be prepared, and set a sentencing hearing.
During the sentencing hearing, Wyrrick’s counsel made brief statements to the court in
which he referenced a letter attached to the PSR. The letter stated, among other things, that Wyrrick
had submitted to a substance abuse evaluation, the evaluation recommended intensive outpatient
treatment (IOP), and Wyrrick had complied with that recommendation.
Before announcing its sentences, the court stated:
[Y]ou do have a lengthy criminal history and most of those offenses have to do with drugs
and alcohol. You are 43 years old and you are still using drugs and you are still driving
under the influence. Fourth offense driving under the influence is very serious. What it tells
me, sir, is that your prior opportunities at probation, prior fines, prior short jail sentences,
that has not affected in deterring your behavior.
The court sentenced Wyrrick to 180 days’ imprisonment on each attempted possession conviction
with the sentences ordered to run concurrently. Further, the court sentenced Wyrrick to 18 months’
imprisonment and 18 months’ postrelease supervision on the fourth offense DUI conviction with
this sentence ordered to run consecutively to the other sentences. Additionally, the court ordered
the suspension of Wyrrick’s driver’s license for 15 years from the date of his release from custody.
Wyrrick timely appeals, represented on appeal by different counsel than represented him at his
plea and sentencing.
III. ASSIGNMENTS OF ERROR
Wyrrick contends that the district court abused its discretion in imposing excessive
sentences and that trial counsel provided ineffective assistance. In April 2019, the Nebraska
-2-
Supreme Court held that assignments of error on direct appeal regarding ineffective assistance of
counsel must specifically allege deficient performance, and an appellate court will not scour the
remainder of the brief in search of such specificity. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79(2019). In Mrza, the court scoured the brief and inferred specific assignments of error, but stated
it would not do so in the future. Following the Supreme Court’s lead, we scour the brief for
specificity because the brief was filed before Mrza was released.
Wyrrick alleges his trial counsel was ineffective in: (a) failing to prepare a defense to the
possession of alprazolam; (b) failing to adequately prepare for sentencing; and (c) failing to advise
him of his right to object to the terms of postrelease supervision.
IV. STANDARD OF REVIEW
Appellate courts do not disturb sentences imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Meduna, 18 Neb. App. 818, 794 N.W.2d 160 (2011).
An abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying just results in matters submitted for
disposition. State v. Russell, 299 Neb. 483, 908 N.W.2d 669 (2018).
When a defendant’s appellate counsel is different from his trial counsel, all issues of
ineffective assistance of counsel that are known to defendant or are apparent from the record
should be raised on direct appeal, or they will be procedurally barred. State v. McGuire, 299 Neb.
762, 910 N.W.2d 144 (2018).
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Sinkey, 303 Neb. 345, 929 N.W.2d 35 (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. If an evidentiary hearing is required,
then the claim will not be addressed on appeal. State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018).
V. ANALYSIS
1. EXCESSIVE SENTENCE
Wyrrick argues that the district court abused its discretion by imposing excessive
sentences.
Fourth offense DUI is a class IIIA felony punishable by 0 to 3 years’ imprisonment with 9
to 18 months’ postrelease supervision if imprisonment is imposed, and/or a $10,000 fine. See, Neb
Rev. Stat. § 28-105 (Reissue 2016); Neb. Rev. Stat. § 60-6,197.03(7) (Cum. Supp. 2018).
However, fourth offense DUI also carries a minimum of 180 days’ imprisonment as well as other
mandatory penalties which Wyrrick does not contest. See § 60-6,197.03(7). Wyrrick was
sentenced to 18 months’ imprisonment and 18 months’ postrelease supervision, in addition to the
other mandatory penalties which sentence is within the statutory sentencing range.
Wyrrick was also convicted of two counts of attempted possession of a controlled
substance. Neb. Rev. Stat. § 28-201 (Reissue 2016) (attempt); Neb. Rev. Stat. § 28-416(3) (Reissue
2016). Wyrrick was sentenced to 180 days’ imprisonment on each count of attempted possession
-3-
of a controlled substance which is within the statutory sentencing range for Class I misdemeanors
which are punishable by 0 to 1 year of imprisonment and/or a $1,000 fine. See Neb. Rev. Stat.
§ 28-106 (Reissue 2016).
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable legal principles in
determining the sentence to be imposed. State v. Wofford, 298 Neb. 412, 904 N.W.2d 649 (2017).
When imposing a sentence, the sentencing court is to consider 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 appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing
judge’s observations of the defendant’s demeanor and attitude and all of the facts and
circumstances surrounding the defendant’s life. Id.At the time that the PSR was prepared, Wyrrick was 43 years old, had not completed high
school, but had a steady employment history. His criminal history included convictions for
possession of marijuana (six convictions), driving under the influence, careless driving, unlawful
possession of explosive materials, attempted possession of a controlled substance, and numerous
other traffic violations. He had been sentenced to probation twice and had that probation revoked
both times. The level of service/case management inventory (LS/CMI) placed Wyrrick at a high
risk to reoffend. Wyrrick admitted to having issues with alcohol and to using several illegal drugs.
Wyrrick’s counsel provided a letter to the court setting forth that Wyrrick had obtained a substance
abuse evaluation, which was provided for the court’s review, and informed the court that Wyrrick
was attending intensive outpatient treatment.
At the sentencing hearing, the district court specifically noted that Wyrrick had “a lengthy
criminal history and most of those offenses have to do with drugs and alcohol.” The court further
stated that it found that short jail sentences and other punishments had not deterred Wyrrick, noting
that this was his fourth DUI conviction.
Based upon the fact that the sentences imposed were within the relevant statutory
sentencing ranges, the benefit Wyrrick received from his plea agreement, his high risk to reoffend,
his criminal history, and his prior unsuccessful attempts at probation, the sentences imposed were
not an abuse of discretion.
2. INEFFECTIVE ASSISTANCE OF COUNSEL
Wyrrick also claims his trial counsel was ineffective in (a) failing to prepare a defense to
the possession of the alprazolam, (b) failing to adequately prepare for sentencing, and (c) failing
to advise him of his right to object to the terms of postrelease supervision.
A claim of ineffective assistance of counsel need not be dismissed merely because it is
made on direct appeal. State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015). The determining
factor is whether the record is sufficient to adequately review the question. Id. When the claim is
raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant
-4-
must make specific allegations of the conduct that he or she claims constitutes deficient
performance by trial counsel. Id.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 counsel’s
performance was deficient and that this deficient performance actually prejudiced his or her
defense. State v. Casares, supra. To show prejudice under the prejudice component of the
Strickland test, there must be a reasonable probability that but for the deficient performance, the
result of the proceeding would have been different. State v. Robinson, 287 Neb. 606, 843 N.W.2d
672 (2014).
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 are 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. Id. 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. Id.(a) Failure to Prepare Defense
Wyrrick first alleges his trial counsel was ineffective for failing to prepare a defense to
attempted possession of alprazolam. He claims he had a prescription for alprazolam, he notified
trial counsel of the prescription, and trial counsel failed to properly investigate and obtain the
prescription. Here, the charge of attempted possession of alprazolam was added to the amended
information as part of the plea agreement.
At the plea hearing for DUI, trial counsel informed the court on the record that he needed
some time prior to the next plea hearing “to collect prescription records and show those to the
County Attorney’s Office.” At the plea hearing for the attempted possession of heroin and
attempted possession of alprazolam, Wyrrick acknowledged that he understood he would give up
the right to make any defense to the charges. The court asked and he answered the following
questions:
THE COURT: Have you discussed these charges and all possible defenses with
[your attorney]?
THE DEFENDANT: I think so, Your Honor, yes.
THE COURT: Has he explained to you what the State of Nebraska would need to
prove beyond a reasonable doubt in order to convict you of attempted possession of [a]
controlled substance?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you told him everything you know about this case?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Is there anything that could help your case that you have not shared
with him?
THE DEFENDANT: No, Your Honor.
THE COURT: Are you satisfied with the job that he was done?
-5-
THE DEFENDANT: Very much.
THE COURT: Is there anything you asked him to do that he failed or refused to
do?
THE DEFENDANT: No.
At the time Wyrrick pled guilty to attempted possession of alprazolam, which was part of
a negotiated plea deal in his case, he was clearly aware of any defense that he had to the charged
offense. Further, the record affirmatively refutes Wyrrick’s claim that counsel was ineffective for
failing to prepare a defense to the alprazolam charge by failing to obtain possession of a
prescription. Based on Wyrrick’s own on-the-record statements, Wyrrick acknowledged he had
discussed all possible defenses with his counsel, his counsel did everything that he asked, and he
was satisfied with his counsel’s representation. Arguing now that his counsel failed to collect
prescription records as a defense to the attempted possession of alprazolam charge stands in stark
contrast to Wyrrick’s specific representations to the trial court. Accordingly, the record
affirmatively refutes this claim of ineffective assistance of counsel.
(b) Failure to Prepare for Sentencing
Wyrrick also contends that his trial counsel was ineffective “for failing to adequately
prepare his cases for sentencing, and failing to include all relevant information in the [PSR] for
purposes of sentencing.” Brief for appellant at 16. Specifically, Wyrrick contends that his trial
counsel failed to inform the court that he was participating in IOP and had only 2 weeks left to
complete the program.
A similar argument was raised in State v. St. Cyr, 26 Neb. App. 61, 916 N.W.2d 753 (2018),
in which the appellant claimed that his trial counsel was ineffective because counsel “failed to
utilize all means available to place mitigating evidence before the sentencing court, prior to
sentencing” and that “[i]t is conceivable that had trial counsel done so,” then “a more appropriate
sentence would have been imposed.” Id. at 73, 916 N.W.2d at 763. This court found, in that case,
that trial counsel was not deficient:
But even if trial counsel was deficient, St. Cyr cannot establish prejudice based on his
counsel’s failure to offer mitigating factors. The court read the presentence investigation
report which, as set forth previously in this opinion, went into great detail about St. Cyr’s
background and the struggles he had encountered. Even in light of this information, the
sentence imposed was not excessive, as we have concluded. The result of the proceeding
would not have been different had counsel offered additional information regarding St.
Cyr’s social background, capabilities, rehabilitative needs, and mental, emotional, and
physical health. Considering the circumstances of the offense, St. Cyr’s criminal history,
and his history of alcohol abuse, argument from counsel or other information reiterating
the same background factors that St. Cyr himself provided would not have resulted in a
lesser sentence. Because St. Cyr cannot show prejudice, his claim of ineffective assistance
of counsel fails.
Id. at 75, 916 N.W.2d at 764.
-6-
Similarly, in the instant case, Wyrrick’s PSR set forth Wyrrick’s struggles with alcohol and
controlled substances, his substance abuse evaluation, and his attendance participating in IOP. The
district court noted that it had reviewed the PSR, the letter from Wyrrick’s trial counsel, and
Wyrrick’s substance abuse evaluation. As we previously set forth in this opinion, the sentence
imposed by the district court was not an abuse of discretion and, even if Wyrrick’s trial counsel
had informed the district court that Wyrrick had 2 weeks remaining in IOP, the result of the
proceeding would not have been different. The district court had already considered Wyrrick’s
participation in IOP and his substance abuse evaluation, in determination of Wyrrick’s sentences,
as well as his “lengthy criminal history” of which most offenses involved drugs and alcohol.
Further the court noted that, at 43 years old, Wyrrick was still using drugs, still driving under the
influence, and that prior opportunities at probation and short jail sentences had not succeeded in
deterring his behavior. Because the information that Wyrrick had 2 weeks left to complete his IOP,
even if provided to the district court, would not have resulted in a lesser sentence, Wyrrick cannot
show prejudice and thus, his claim of ineffective assistance of counsel on this basis fails.
(c) Terms of Postrelease Supervision
Third, Wyrrick claims that his trial counsel was ineffective for failing to advise him of his
right to object to the terms of his postrelease supervision. However, Wyrrick does not specify
which terms of his postrelease supervision that were objectionable. There is no good reason why
Wyrrick would not be able to identify and allege on direct appeal which postrelease supervision
conditions he would have objected to if trial counsel had advised him of his right to do so. Because
Wyrrick has not stated with particularity which postrelease conditions he would have objected to
and the basis for those objections, he has failed to state with sufficient particularity the basis of his
claim. See State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014) (holding, by definition, claim
insufficiently stated is no different than claim not stated at all). Having failed to state this claim
with sufficient particularity, Wyrrick’s claim fails.
VI. CONCLUSION
In sum, we affirm Wyrrick’s convictions and sentences. We further find that Wyrrick’s
ineffective assistance of counsel claims fail.
AFFIRMED.
-7-