State v. Mohammad ( 2014 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
STATE V. MOHAMMAD
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.
SHAHBAZ A. MOHAMMAD, APPELLANT.
Filed January 7, 2014. No. A-13-438.
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge.
Affirmed.
Mark E. Rappl for appellant.
Jon Bruning, Attorney General, and Carrie A. Thober for appellee.
MOORE, PIRTLE, and BISHOP, Judges.
MOORE, Judge.
I. INTRODUCTION
Shahbaz A. Mohammad pled no contest to one count of second degree assault of an
officer and one count of operation of a motor vehicle to avoid arrest. Mohammad asserts on
appeal that the sentences he received were excessive and that his trial attorney was ineffective.
Finding that there was no abuse of discretion in the sentences imposed, that the record is
insufficient to review one of his claims of ineffective assistance of counsel on direct appeal, and
that other claims of ineffective assistance of counsel are without merit, we affirm.
II. BACKGROUND
On November 19, 2012, an information was filed in the Lancaster County District Court
charging Mohammad with two counts of second degree assault on an officer, Class II felonies, in
violation of Neb. Rev. Stat. § 28-930 (Cum. Supp. 2012), and one count of operation of a motor
vehicle to avoid arrest, a Class IV felony, in violation of Neb. Rev. Stat. § 28-905 (Reissue
2008). On March 6, 2013, Mohammad appeared with counsel and entered pleas of no contest to
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an amended information which charged him with one count of second degree assault of an
officer and one count of operation of a motor vehicle to avoid arrest.
The factual basis for the charges shows that on October 14, 2012, a traffic stop was
initiated on a vehicle for violating a stop sign. The driver indicated that he did not have his
license on his person and provided a name, date of birth, and address. Although the name given
by the driver was not located in the officer’s computer system, Mohammad’s name showed at the
address provided, and a photograph viewed by the officer confirmed that the driver was
Mohammad. Another officer appeared at the scene. The officers asked Mohammad to step out of
the vehicle but he began looking in the back seat and digging in the center console. The officers
attempted to remove Mohammad from the vehicle, at which time he placed the vehicle in gear
and accelerated quickly, dragging both officers with the vehicle for some distance. Both officers
received injuries for which they received treatment at a local hospital.
The court then questioned Mohammad and deemed his plea to be voluntarily and
knowingly given and accepted the plea. The court found Mohammad guilty of the amended
charges and ordered a presentence investigation report (PSI). Mohammad was subsequently
sentenced to 10 to 20 years’ imprisonment for the assault on an officer conviction and to 1 to 2
years’ imprisonment for the operation of a motor vehicle to avoid arrest conviction, with the
sentences to be served consecutively.
Mohammad filed this timely appeal.
III. ASSIGNMENTS OF ERROR
Mohammad assigns as error that (1) the sentences imposed were excessive and (2) that he
received ineffective assistance of trial counsel.
IV. 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. Wills, 285 Neb. 260, 826 N.W.2d 581 (2013).
An abuse of discretion occurs when a trial court’s decision is based upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Id.A claim that defense counsel provided ineffective assistance presents a mixed question of
law and fact, and, in particular, determinations regarding whether counsel was deficient and
whether the defendant was prejudiced are questions of law. State v. Morgan, 286 Neb. 556, 837
N.W.2d 543 (2013).
V. ANALYSIS
1. CLAIM OF EXCESSIVE SENTENCES
Mohammad asserts that the sentences imposed upon him were excessive. The offense of
assault of a police officer is a Class II felony, punishable by 1 to 50 years’ imprisonment. Neb.
Rev. Stat. § 28-105 (Cum. Supp. 2012) and § 28-930(2). Operating a motor vehicle to avoid
arrest is a Class IV felony, punishable by a maximum of 5 years’ imprisonment, a $10,000 fine,
or both. §§ 28-905(3) and 28-105. Mohammad was sentenced to terms of imprisonment of 10 to
20 years and 1 to 2 years, respectively, to be served consecutively. These sentences are clearly
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within the statutory limits. Nevertheless, Mohammad argues that the sentences were excessive
given his young age and history of mental health issues. He also argues that other mitigating
circumstances exist such as his showing of remorse and acceptance of responsibility. Finally,
Mohammad argues that it was an abuse of discretion to impose consecutive sentences because
both offenses arose out of one single act.
In imposing a sentence, a sentencing judge should 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) modification 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.
State v. Wills, supra. The appropriateness of a sentence is necessarily a subjective judgment and
includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. Id.
The PSI shows that Mohammad was 18 years old at the time of the present offenses and
has a history of mental health issues, including depression, mood disorders, and conduct
disorders, for which he has received medication and therapy. He struggles with impulse control
and has difficulty recognizing the consequences of his behavior. Mohammad’s criminal history
shows that he had been charged in juvenile court in 2007 with theft by unlawful taking, burglary,
possession of marijuana, and assault. Under the disposition column for these offenses, the PSI
indicates that in April 2008, Mohammad had “moved back to Pakistan with no intention of
coming back.” Additional juvenile court charges of theft by receiving stolen property, truancy,
unauthorized use of a motor vehicle, discharge of a weapon, trespass, false reporting, and
reckless driving were dismissed. Mohammad was later adjudicated for carrying a concealed
weapon, damage to property, and receiving stolen property. As an adult, in 2011, Mohammad
was convicted of third-degree assault on an officer and theft by receiving. He was sentenced to
60 months’ probation on each of these counts and committed to a work ethic camp. Mohammad
was subsequently terminated from the work ethic camp for repeatedly breaking rules and
thereafter sentenced to 16 months to 16 months’ imprisonment with credit for 504 days served.
The circumstances of the assault on an officer conviction in 2011 are quite similar to the case at
hand in that Mohammad drove off in a vehicle striking a police officer. In 2012, Mohammad was
convicted of minor in possession, giving a false statement, disturbing the peace, second degree
criminal trespass, and possession of marijuana. Following the instant offenses, Mohammad has
been charged with possession of marijuana, minor in possession, and open alcohol container,
which charges were pending at the time of preparation of the PSI. Mohammad did not finish high
school but did obtain his diploma through the GED program while at the work ethic camp.
Mohammad scored in the very high risk range on the overall “LS/CMI” assessment.
At sentencing, the district judge indicated that he had reviewed the sentencing factors
noted above and that he took into consideration the information provided in the PSI as well as
Mohammad and his attorney’s comments at sentencing. The judge indicated, however, that he
could not ignore the “very serious nature of this crime.” As to the consecutive nature of the
offenses and sentences, the court noted that after the officer was able to let go of the vehicle,
Mohammad continued to flee and left the scene.
Upon our review of the record, we cannot say that the district court abused its discretion
in the sentences imposed or in ordering that they be served consecutively.
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2. CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL
Because Mohammad has different counsel on appeal than during the proceedings below,
he must assert in this direct appeal any known or apparent claims of ineffective assistance of
counsel. Under Nebraska law, in order to raise the issue of ineffective assistance of trial counsel
where appellate counsel is different from trial counsel, a defendant must raise on direct appeal
any issue of ineffective assistance of trial counsel which is known to the defendant or is apparent
from the record, or the issue will be procedurally barred on postconviction review. State v. Watt,
285 Neb. 647, 832 N.W.2d 459 (2013). Mohammad raises four instances of alleged ineffective
assistance of counsel, which we discuss below.
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. Id. An ineffective assistance of counsel claim will
not be addressed on direct appeal if it requires an evidentiary hearing. 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. Watt, supra. To show deficient performance, a defendant must show that
counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal
law in the area. Id. To show prejudice, the defendant must demonstrate reasonable probability
that but for counsel’s deficient performance, the result of the proceeding would have been
different. Id. The entire ineffectiveness analysis is viewed with a strong presumption that
counsel’s actions were reasonable and that even if found unreasonable, the error justifies setting
aside the judgment only if there was prejudice. Id. Deficient performance and prejudice can be
addressed in either order. If it is more appropriate to dispose of an ineffectiveness claim due to
the lack of sufficient prejudice, that course should be followed. Id.Within the plea context, in order to satisfy the prejudice requirement to establish an
ineffective assistance of counsel claim, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he or she would not have pleaded guilty and would have
insisted on going to trial. State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012).
(a) Advice That Bond Would Be Forfeited
if Plea Offer Not Accepted
While the case was first pending in county court, Mohammad’s bond was set at
$150,000, with a requirement that he post 10 percent as recognizance. Mohammad made three
unsuccessful attempts to get his bond lowered and finally posted the $15,000 recognizance.
Various conditions of the bond were imposed upon Mohammad. On February 22, 2013, the State
filed a motion to revoke Mohammad’s bond and a hearing was set for February 26. Mohammad
asserts that prior to the motion to revoke the bond hearing, trial counsel advised Mohammad that
not only would his bond be revoked for violating certain provisions of the bond, but that the
$15,000 recognizance would also be forfeited. Mohammad asserts that in order to avoid this
forfeiture, he “reluctantly” decided to accept the plea offer rather than proceed to trial. Rather
than hearing the motion to revoke bond on February 26, the matter was set for a plea hearing on
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March 6. As a part of the plea agreement, the State agreed not to pursue the motion to revoke
bond.
Mohammad claims that trial counsel’s advice was improper, citing Neb. Rev. Stat.
§ 29-901(3)(a) (Reissue 2008), which provides that 90 percent of an appearance bond is to be
returned to the defendant upon the performance of the appearance or appearances. Mohammad
recognizes that additional statutory provisions allow for forfeiture of a recognizance when there
is a breach of a condition of recognizance; however, he notes that provisions exist to set aside the
forfeiture. See Neb. Rev. Stat. §§ 29-1105 through 29-1110 (Reissue 2008). Mohammad argues
that had trial counsel not erroneously led him to believe that his recognizance would have been
forfeited as the result of the alleged bond violations, he would have insisted on going to trial
rather than pleading no contest.
Assuming that Mohammad’s allegation about counsel’s advice concerning forfeiture of
the recognizance bond is true, it cannot be said that such advice was erroneous. The
recognizance bond set forth several terms and conditions beyond Mohammad’s appearance in
court, and the State alleged in its motion to revoke bond that Mohammad had violated four of
those conditions. Section 29-1106 clearly states that “[w]hen there is a breach of condition of a
recognizance, the court shall declare a forfeiture of the bail.” Counsel could not be ineffective for
advising Mohammad consistent with Nebraska law, and such cannot form the basis for
Mohammad’s claim that he would have insisted on going to trial but for this advice. This
allegation of ineffective assistance of counsel is without merit.
(b) Failure to Obtain Psychological Evaluation
Mohammad next claims that his trial attorney failed to obtain a full psychological
evaluation of him prior to sentencing in this matter. Mohammad asserts that a full psychological
evaluation could have provided the sentencing court with additional evidence regarding his
mentality, experience, social and cultural background, and motivation for the commission of the
present offenses. Mohammad claims that this information “may have” affected the sentences to
be imposed.
The PSI includes a psychological evaluation that was conducted on Mohammad in
February 2012. This evaluation discussed Mohammad’s mental health issues and was considered
by the court in imposing the sentences. Mohammad does not allege what additional evidence
would have been produced by another evaluation. Mohammad does not assert that his mental
health status has changed since the evaluation in February 2012 or that if it has changed, how it
has changed. Mohammad does not claim that a second psychological evaluation would have
resulted in more favorable, or lenient, sentences. Mohammad has failed to demonstrate a
reasonable probability that the sentences imposed would have been different if counsel had
obtained a second psychological evaluation. This allegation is without merit.
(c) Failure to Supplement PSI
Mohammad contends that counsel was ineffective in failing to properly supplement the
PSI with current counseling records since February 2012. Again, Mohammad complains that
such failure deprived the sentencing court of information. However, at the sentencing hearing,
Mohammad affirmatively indicated that he had an opportunity to go over the PSI with his
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attorney and that he was not aware of any additions or corrections that needed to be made. As
with the previous allegation of ineffective assistance of counsel, Mohammad does not indicate
what information any additional counseling records would contain and he does not allege that
such information would have resulted in more lenient sentences. This allegation is without merit.
(d) Failure to Advise State of Mohammad’s Desire
to Provide Assistance and Cooperation
Mohammad claims that he requested trial counsel to advise the State of his desire to
provide cooperation to the State in the hopes of obtaining a more favorable plea agreement.
Mohammad indicates that he advised trial counsel that he had information and knowledge that
could have been valuable to the State in regard to a number of unsolved crimes. Mohammad
asserts that trial counsel was ineffective in failing to make sufficient efforts to secure a
cooperation agreement with the State. Mohammad claims that even if his cooperation efforts
would not have resulted in a more favorable plea agreement, such cooperation could have
provided mitigation evidence for the trial court to consider during sentencing.
The parties suggest that the record is insufficient to review this claim. We agree. We
make no comment whether Mohammad’s allegations regarding this claim would be sufficient to
require an evidentiary hearing in the context of a motion for postconviction relief. We simply
decline to reach this claim on direct appeal, because the record is insufficient to do so.
VI. CONCLUSION
We find no abuse of discretion in the sentences imposed upon Mohammad, and the
sentences are affirmed. Mohammad’s claims that his trial counsel was ineffective in advising
him concerning the forfeiture of his recognizance bond, and for failing to obtain a second
psychological evaluation and supplement the PSI with current counseling records, are without
merit. The record is insufficient to review Mohammad’s claim regarding counsel’s failure to
secure a cooperation agreement.
AFFIRMED.
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