State v. Smith ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. SMITH
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.
WILLIAM R. SMITH, APPELLANT.
Filed March 28, 2023. No. A-22-697.
Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
Douglas L. Kerns for appellant.
Michael T. Hilgers, Attorney General, and Melissa R. Vincent for appellee.
PIRTLE, Chief Judge, and RIEDMANN and ARTERBURN, Judges.
RIEDMANN, Judge.
INTRODUCTION
William R. Smith appeals his plea-based convictions and sentences entered by the
Lancaster County District Court. He assigns that his sentences were excessive and that his trial
counsel was ineffective. Having reviewed his claims and the record, we affirm his convictions and
sentences.
BACKGROUND
On February 24, 2022, Dashana Baker, who was dating Smith and shared a child with him,
was out for the night and returned home in the early morning hours of February 25. Smith became
angry and accused Baker of “cheating.” Smith physically assaulted her, causing injury to her nose
and shoulder. Smith then pinned her down with both of his hands on her neck and applied pressure
until she lost consciousness. When Baker regained consciousness, she was still in the same position
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with Smith on top of her, and Smith grabbed her by her hair, pulled her off the bed, and threw her
down the stairs.
Baker went back upstairs because her children were standing across the hall and crying
while watching the assault. Smith continued the assault and held a pocketknife with an
approximately three inch blade against her throat. When one of her children verbally intervened,
he told the child to shut up or he would kill Baker. Smith again threw Baker down the stairs.
Smith took the child he shared with Baker and instructed the other children to go to their
rooms. He forced Baker and the child into a vehicle and started driving to the residence of Javen
Fisher. Smith told Baker she should call her children’s father because she would never see the
children again. When they arrived at Fisher’s residence, Smith slashed a hole in the passenger tire
of Fisher’s vehicle. While Smith and Fisher engaged in a physical altercation, Baker was able to
drive away. After arriving home, she collected her belongings and her other children, and contacted
law enforcement.
In addition to the injuries to Baker’s face and shoulder described above, she had redness,
abrasions, and cuts on the front, sides, and back of her neck. After contacting Fisher, officers
observed that his vehicle had a flat rear passenger tire caused by a one-and-a-half-inch laceration
on the tire. Fisher reported that Smith had come to his residence in the early morning hours to
confront him about issues, that the two argued, and Smith punched him. Fisher had swelling on
the side of his face.
The State charged Smith with nine counts, including three felonies, but as the result of a
plea agreement, the charges were reduced to three counts: third degree domestic assault, a Class I
misdemeanor; child abuse, a Class I misdemeanor; and third degree assault, a Class I misdemeanor.
Smith pled no contest to the charges. The district court accepted Smith’s pleas and found him
guilty of the charges. A presentence investigation report was ordered. For his conviction of third
degree domestic assault, Smith received a sentence of 360 days’ imprisonment; for his conviction
of child abuse, Smith received a sentence of 90 days’ imprisonment; and for his conviction of third
degree assault, Smith received a sentence of 30 days’ imprisonment. The sentences were ordered
to be served consecutively and Smith received credit for 185 days’ time served. Smith appeals.
ASSIGNMENTS OF ERROR
Smith assigns that the district court abused its discretion in imposing an excessive sentence,
and that he received ineffective assistance of trial counsel because trial counsel overstated the
favorability of the plea agreement and failed to contact defense witnesses and procure exculpatory
evidence.
STANDARD OF REVIEW
A sentence imposed within the statutory limits will not be disturbed on appeal in the
absence of an abuse of discretion by the trial court. State v. Blake, 310 Neb. 769, 969 N.W.2d 399(2022).
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. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). An
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appellate court determines as a matter of law whether the record conclusively shows that (1)
defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a
defense counsel’s alleged deficient performance. Id.ANALYSIS
Excessive Sentences.
Smith argues the district court abused its discretion by imposing excessive sentences.
However, in light of the length of sentences imposed and credit for time served, we issued a show
cause order directing the parties to advise this court whether Smith remained incarcerated. We
cautioned that failure to respond would be cause for this court to consider the issue moot. See State
v. Campbell, 24 Neb. App. 861, 900 N.W.2d 556 (2017) (holding excessive sentence claim moot
where appellant has served sentence). Neither party filed a response.
While it is not a constitutional prerequisite for jurisdiction, the existence of an actual case
or controversy is necessary for the exercise of judicial power. Johnston v. Nebraska Dept. of Corr.
Servs., 270 Neb. 987, 709 N.W.2d 321 (2006). A case becomes moot when the issues initially
presented in the litigation cease to exist, when the litigants lack a cognizable interest in the outcome
of litigation, or when the litigants seek to determine a question which does not rest upon existing
facts or rights, in which the issues presented are no longer alive. Id.Smith was sentenced on August 29, 2022, to consecutive sentences totaling 480 days. With
good time reduction pursuant to Neb. Rev. Stat. § 47-502 (Reissue 2021) and credit for time served,
Smith was required to serve 63 days. Based on our calculations and the parties’ failure to respond
to the order to show cause, we conclude that Smith has been released; thus, his assigned error
relating to the length of his sentences is moot.
Ineffective Assistance of Counsel.
Smith argues he received ineffective assistance of trial counsel when counsel overstated
the favorability of the plea agreement and failed to contact defense witnesses and procure
exculpatory evidence as requested. To prevail on a claim of ineffective assistance of counsel, the
defendant must show that counsel’s performance was deficient, and that this deficient performance
prejudiced their defense. State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020).
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 deficient performance and whether the defendant
was or was not prejudiced by counsel’s alleged performance. Id. The record on direct appeal is
sufficient to review a claim of ineffective assistance of trial counsel 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. Id.Smith’s claim that trial counsel was ineffective in overstating the favorability of the plea
agreement involves discussions that occurred between Smith and trial counsel. No information on
these discussions appears in the record. As such, the record on direct appeal is insufficient to
address this claim. Because Smith is no longer in custody, we make no comment regarding his
ability to further pursue this claim.
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Smith also alleges trial counsel was ineffective in failing to contact defense witnesses.
When the claim of ineffective assistance on direct appeal involves uncalled witnesses, vague
assertions that counsel was deficient for failing to call “witnesses” are little more than placeholders
and do not sufficiently preserve the claim. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
However, the appellate court does not need specific factual allegations as to what the person or
persons would have said, which will not be found in the appellate record. Id. It is sufficient that
appellate counsel give on direct appeal the names or descriptions of any uncalled witnesses
forming the basis of a claim of ineffective assistance of trial counsel. Id. Such specificity is
necessary so that the postconviction court may later identify whether a particular claim of failing
to investigate a witness is the same one that was raised on direct appeal. Id.Smith has failed to provide either the names or descriptions of the witnesses he claims trial
counsel failed to contact; therefore, he has failed to state this claim with the specificity required
and it is not preserved for any subsequent action, if one is available. See State v. Lee, 304 Neb.
252, 934 N.W.2d 145 (2019).
Smith also alleges trial counsel was ineffective in failing to procure exculpatory evidence.
However, he provides no details as to what this evidence would consist of or what it would show.
This claim has not been stated with the specificity required and is not preserved. See id.CONCLUSION
Because Smith has already served his sentences in this case, his assignment of error related
to the excessiveness of his sentences is moot. Having reviewed his claims of ineffective assistance
of trial counsel, we find that they either cannot be addressed on the record before this court or are
insufficiently stated. We affirm the judgment of the district court.
AFFIRMED.
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