State v. Spencer ( 2024 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. SPENCER
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.
JUSTIN W. SPENCER, APPELLANT.
Filed July 23, 2024. No. A-23-749.
Appeal from the District Court for Custer County: KARIN L. NOAKES, Judge. Affirmed.
Gary G. Peterson, of Peterson Legal Services, P.C., L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Teryn Blessin for appellee.
MOORE, BISHOP, and ARTERBURN, Judges.
BISHOP, Judge.
I. INTRODUCTION
Justin W. Spencer pled no contest to one count of third degree domestic assault. The Custer
County District Court sentenced him to 5 years’ probation, but later revoked his probation and
sentenced him to 3 years’ imprisonment followed by 18 months’ post-release supervision. Spencer
appeals, claiming that his sentence was excessive and that his trial counsel was ineffective. We
affirm.
II. BACKGROUND
On November 16, 2021, the State filed an information charging Spencer with third degree
domestic assault pursuant to Neb. Rev. Stat. § 28-323 (Cum. Supp. 2022), a Class IIIA felony. The
State further alleged that Spencer was a habitual criminal under Neb. Rev. Stat. § 29-2221 (Supp.
2023). On November 18, Spencer entered a plea of not guilty. At a hearing held January 20, 2022,
the State informed the district court that a plea agreement had been reached. In exchange for a plea
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of guilty or no contest to the third degree domestic assault charge, the State would dismiss the
habitual criminal charge. The State also agreed to recommend that Spencer receive a sentence of
probation and to dismiss certain pending cases in county court. Spencer confirmed that this was
his understanding of the plea agreement. He withdrew his plea of not guilty and, after being
informed of the possible penalties, entered a plea of no contest for that charge.
The State provided the following factual basis:
On September 15th, 2021, at approximately 10:22 a.m., the Custer County Sheriff’s
Office was informed by . . . Spencer[‘s] [wife] that she had been physically assaulted by
her husband, . . . earlier that morning around 9:40 in Sargent, Custer County, Nebraska.
[A] [d]eputy . . . took [Spencer’s wife’s] statement and documented her injuries, which
included a substantial bruise to her chin, small scratches to her right arm, and scrape on her
right knee. [Spencer’s wife] had advised that her mouth was sore as well. [Spencer’s wife]
stated that earlier that morning she had taken the dogs up to the room in which [Spencer]
was sleeping. That upset him. As she was taking some of the dogs outside . . . Spencer
grabbed [her], told her she wasn’t going to leave the house. They began to wrestle around.
She was able to free herself and . . . Spencer punched her in the chin resulting in a bruise.
. . . Spencer has been previously convicted of third-degree domestic violence in Custer
County in 2008 . . . and . . . in 2018 . . . . This all occurred in Custer County, Nebraska.
The district court then informed Spencer that this was an “enhanceable offense” and that
he had a right to have a hearing to present mitigating evidence. The court confirmed that, knowing
this information, Spencer did not want to change his plea of no contest. The court then received
into evidence two certified records of Spencer’s prior convictions of domestic assault. Pursuant to
the plea agreement, the State filed an amended information on January 24, 2022, dismissing the
habitual criminal charge but maintaining the third degree domestic assault charge.
Following a hearing, the district court entered an order on August 4, 2022, sentencing
Spencer to 5 years’ probation, the terms of which included that he:
3. Report as directed by the Court or probation officer.
....
7. Obtain suitable employment or regularly attend school/vocation training. . . .
....
13. Submit to random chemical testing of [his] blood, breath, or urine to determine
the presence of alcohol and/or controlled substances as directed by the Court, probation
officer, or a law enforcement officer.
....
19. Attend, successfully complete, follow all rules and regulations, and be
financially responsible for any costs associated with attending Victim Empathy, Anger
Management, DBT, and MRT.
On December 29, 2022, the State filed a motion alleging that Spencer violated multiple
terms of his probation and asking the district court to revoke Spencer’s probation. On February 9,
2023, the State filed a motion requesting that the court issue an arrest warrant for Spencer. Attached
was an affidavit authored by Spencer’s probation officer, which alleged that Spencer was “in
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violation of his[] probation [o]rder dated August 4, 2022[,] by absconding supervision” and that
he was “officially considered an absconder since December 1, 2022.” On February 9, 2023, the
court issued an arrest warrant for Spencer.
According to a “Motion to Revoke Admit or Deny Journal Entry and Order Modifying
Bond” entered on July 6, 2023, a hearing “via Zoom technology” was held that day during which
the district court was informed that a plea agreement had been reached. (The bill of exceptions for
the July 6 hearing was not requested by appellant and is therefore not contained in the record before
this court). The July 6 order indicates that in exchange for Spencer’s admission to his violations
of probation, the State would recommend a personal recognizance bond with the condition that
Spencer check in daily with probation by telephone. The order states that Spencer “advises the
Court that he understands and approves the agreement.” Spencer admitted to “violating Condition
#3, Condition #7, Condition #13, and Condition #19 of his Order of Probation.” The order further
states, “The Court questions [Spencer] and finds his admission to be knowing, voluntary, and
intelligently made.” The court further found “by clear and convincing evidence” that Spencer
violated the probation conditions indicated. The court ordered that an updated presentence
investigation be completed. Spencer’s bond was later revoked due to his failure to contact
probation on a daily basis; an arrest warrant was issued on July 19. Following a sentencing hearing
on August 24, the court entered an order that same day revoking Spencer’s probation and
sentencing him to 3 years’ imprisonment followed by 18 months’ post-release supervision, with
202 days’ credit for time already served.
Spencer appeals.
III. ASSIGNMENTS OF ERROR
Spencer assigns that (1) the district court abused its discretion when it “fail[ed] to consider
the statutory and judicially imposed considerations before entering its excessive sentence” and (2)
“trial counsel failed to pursue credible avenues of defense, both in preparation for trial and at
sentencing, and prejudiced the Defendant’s interests preventing him from going to trial.”
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. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. 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.
State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).
V. ANALYSIS
1. EXCESSIVE SENTENCE
Spencer claims that the district court abused its discretion when it “fail[ed] to consider the
statutory and judicially imposed considerations before entering its excessive sentence.” Brief for
appellant at 11.
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When 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) 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.
State v. Lierman, 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.An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. Id.(a) Criminal History and Sentencing
Spencer was convicted of one count of third degree domestic assault, a Class IIIA felony.
A Class IIIA felony is punishable by up to 3 years’ imprisonment and 18 months’ post-release
supervision, a $10,000 fine, or both. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022). A Class
IIIA felony carries no minimum punishment but requires 9 months’ post-release supervision if a
term of imprisonment is imposed. See id. Spencer’s sentence upon revocation of probation was for
3 years’ imprisonment followed by 18 months’ post-release supervision. His sentence was within
the statutory limit.
Spencer was 47 years old at the time of sentencing. According to the presentence
investigation report (PSR), he was separated from his wife and had no dependents. He had received
an education through 7th grade and was unemployed at the time of his incarceration.
Spencer’s criminal history dating back to 1992 includes a few assault-related convictions,
a couple burglary convictions, a few controlled substance or marijuana related convictions,
numerous traffic related convictions, and more. His assault-related convictions included the
following: “Assault by Confined Person-No Weapon” in 1999 (6-7 months’ jail); “Assault” in
2005 (“Community Supervision expired”); “Domestic Assault-3rd Degree” in 2008 (60 days’ jail,
24 months’ probation, and “restitution + C.C.”; unsatisfactory release from probation); and
“Domestic Assault-3rd Degree” in 2018 (31 days’ jail and “C.C.”). A “Level of Service Case
Management Inventory” assessed Spencer as a very high risk to reoffend. A “Domestic Violence
Offender Matrix,” scored Spencer in a “high-risk range” for specialized community supervision.
Spencer’s wife did not submit a victim impact statement to be included in the PSR but
informed the probation officer that Spencer’s actions had “greatly affected her life” in a “physical,
emotional, and financial” manner. She reported having “night terrors where she finds herself
screaming herself awake” and “will wake up sweating and crying.” She stated that “[t]he right side
of her face is not working properly as a result of this incident” and that she had been diagnosed
with PTSD and suffered from chronic anxiety. She was fearful Spencer would violate the
protection order upon his release since he had already twice violated it. She further reported that
she did “not feel safe being alone or around town with fear of running into [Spencer].”
The probation officer indicated that Spencer was uncooperative during the “updated
presentence investigation interview.” The officer further noted that Spencer had “struggled while
on probation” and had absconded from the probation office. Spencer also failed to maintain daily
contact with his probation officer, provide verification of a chemical dependency evaluation,
complete his “victim empathy, anger management, DBT, or MRT classes,” complete the
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“Domestic Violence Program,” and provide verification of community service hours completed
when not employed. The probation officer concluded that Spencer was not “an appropriate
candidate for probation due to safety concerns for the victim and the lack of accountability [he]
had shown [for] this offense.” The probation officer recommended that a term of incarceration be
imposed.
At the August 24, 2023, resentencing hearing, the State highlighted that Spencer had failed
to complete his probation. The State noted that Spencer was released on a personal recognizance
bond on certain conditions, but he contacted the probation office and notified them that “he had
no intention of following through with those conditions.” The State then recommended that the
district court impose a maximum term of incarceration.
Spencer’s trial counsel acknowledged that Spencer had not succeeded on probation but
stated that Spencer had partially complied with the terms of his probation. Trial counsel also
highlighted that Spencer had already been incarcerated for 202 days. Trial counsel requested that
the district court order a sentence of time served so Spencer could return to work and begin fixing
his house. When given the opportunity to provide an allocution to the court, Spencer stated “I just
wish it would have went better.”
The district court stated that it had reviewed the PSR and considered the relevant
sentencing factors in determining an appropriate sentence to impose. The court noted that Spencer
had “a history of violence against women,” that there was “a lot of violence involved in the
commission of this crime,” and that Spencer’s actions had lasting effects on the victim. The court
further noted that Spencer had not complied with the terms of his probation and determined that
“[t]he risk [was] substantial that during a period of probation [Spencer would] engage in additional
criminal conduct.” The court thus determined that a term of incarceration was necessary for the
protection of the public and that a lesser sentence would depreciate the seriousness of the crime
and promote disrespect for the law. The court then sentenced Spencer as previously set forth.
(b) Argument Related to Plea
Spencer initially argues that the “revocation of traditional probation was upon the
erroneous finding of a competent entry of plea” and therefore he is “entitled to a vacation and
remand on the revocation of probation.” Id. at 17. Spencer’s argument related to the entry of his
plea on revocation of probation has nothing to do with the factors considered by a court before
imposing sentence, and no error was assigned specific to the entry of Spencer’s plea on revocation.
We therefore decline to address arguments made by Spencer related to his plea. 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. Jenkins, 303 Neb. 676, 931 N.W.2d 851(2019). An appellate court does not consider errors which are argued but not assigned. State v.
Dill, 300 Neb. 344, 913 N.W.2d 470 (2018).
Also, no bill of exceptions for the July 6, 2023, hearing was produced for this court’s
review, and it was during that hearing that the district court was informed that a plea agreement
had been reached and Spencer admitted to violating certain probation conditions. The court’s order
entered that same day indicated that the court questioned Spencer and found his admission to be
“knowing, voluntary, and intelligently made.” Absent a bill of exceptions, it is presumed on appeal
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that the evidence supports the trial court’s orders. See Rosberg v. Rosberg, 25 Neb. App. 856, 916
N.W.2d 62 (2018).
Finally, to the extent Spencer is referring to his original plea, he may not attack an aspect
of his underlying conviction when appealing an order revoking probation. See State v. Roberts,
304 Neb. 395, 934 N.W.2d 845 (2019) (party wishing to challenge some aspect of his or her
underlying conviction must do so in timely appeal of conviction).
(c) Presumption of Probation
Spencer argues that the district court abused its discretion “in overcoming the presumption
of probation.” Brief for appellant at 26. Citing to Neb. Rev. Stat. § 29-2204.02(2) (Reissue 2016),
he states, “Class IV felonies require a sentence of probation unless ‘there are substantial and
compelling reasons why the defendant cannot be effectively and safely be supervised in the
community,’ commonly understood to be the presumption of probation.” Brief for appellant at 26.
He argues that the “method of analysis employed by the trial court clearly does not overcome the
presumption of probation” and the court failed to “make actual findings of ‘substantial and
compelling reasons,’ and therefore inappropriately overcame the presumption of probation.” Id. at
27.
Section 29-2204.02(2) only provides a presumption of probation for a conviction of a Class
IV felony. Spencer was convicted of a Class IIIA felony. However, pursuant to § 29-2204.02(3),
sentences for Class III, IIIA, and IV felonies do require that “[i]f a sentence of probation is not
imposed, the court shall state its reasoning on the record.” A court may fulfill this statutory
requirement to state its reasoning on the record “by a combination of the sentencing hearing and
sentencing order.” State v. Baxter, 295 Neb. 496, 507, 888 N.W.2d 726, 735 (2017). As indicated
above, the district court stated its reasoning at the sentencing hearing, as well as listed numerous
reasons in the sentencing order as to why it found Spencer could not “effectively and safely be
supervised in the community on probation.”
(d) Consideration of Sentencing Factors
Spencer also argues that, although the district court indicated it had considered the relevant
sentencing factors, it focused its discussion at sentencing on “its perception of the crime and . . .
Spencer’s criminal history.” Brief for appellant at 19. He argues the court only considered those
two factors and failed to adequately consider Spencer’s mentality, education level, and social and
cultural background. Spencer specifically points out that he was “substantially compliant with the
terms of probation” but “had vehicle trouble and barriers to accessing telecommunication.” Id. at
22-23. He also argues that his “low level of education and learning disability were not given
practical consideration and reflect a need for community-based supervision through probation.”
Id. at 23. He contends that the court did not consider “his ability to comprehend the legal process
or what impact it may have had on his violation of probation.” Id. at 24. Spencer argues that the
PSR “reflects a man with little education and no supports and no social standing, a significant
experience with trauma and loss, articulated psychological and cognitive deficits which are caused
by or exacerbated by his mental health diagnoses, abuse, and head trauma.” Id.
Upon our review of the relevant sentencing factors in this case, it is evident that the district
court appropriately considered the seriousness of Spencer’s offense and his individual
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circumstances. Because 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, a sentencing court is accorded very wide
discretion in imposing a sentence. See State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017). To
the extent Spencer argues that the court did not adequately consider certain mitigating factors, it
is evident the court had before it all the information Spencer suggests should have resulted in a
lesser sentence. To the extent he claims the court gave too much consideration to certain sentencing
factors and not others, we note that it was within the sentencing court’s discretion to weigh more
heavily the factors supporting a lengthier sentence, such as the seriousness of the offense, the
lasting effects on the victim, Spencer’s high risk to recidivate, and Spencer’s history of
assault-related convictions.
(e) Cruel and Unusual Punishment
Spencer further argues that his sentence was “grossly disproportionate compared to the
crime” and thus his sentence violated his Eighth Amendment right to be free of cruel and unusual
punishment. Brief for appellant at 27. He “acknowledges his sentence is within statutory
guidelines,” but argues that this “is not a carte blanche license for any trial court to impose a
sentence grossly exceeding the crime.” Id.The Eighth Amendment prohibits not only barbaric punishments, but also sentences that
are disproportionate to the crime committed. State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017).
The U.S. Supreme Court has characterized this as a “narrow proportionality principle” which does
not require strict proportionality between crime and sentence, but, rather, forbids only extreme
sentences that are grossly disproportionate to the crime. Id. See Ewing v. California, 538 U.S. 11,
123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003) (citing Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct.
2680, 115 L. Ed. 2d 836 (1991)). See, also, Lockyer v. Andrade, 538 U.S. 63, 77, 123 S. Ct. 1166,
155 L. Ed. 2d 144 (2003) (“[t]he gross disproportionality principle reserves a constitutional
violation for only the extraordinary case”).
As we previously noted, Spencer’s sentence was within the statutory limits for a Class IIIA
felony. See § 28-105 (maximum 3 years’ imprisonment and 18 months’ post-release supervision
for Class IIIA felony). An Eighth Amendment analysis generally respects legislative
determinations of statutory sentencing limits. See State v. Loschen, 221 Neb. 315, 376 N.W.2d
792 (1985) (sentence of imprisonment within limits of valid statute ordinarily not cruel and
unusual punishment in constitutional sense). Considering that third degree domestic assault is a
serious crime and that Spencer had prior convictions for domestic assault, the sentence imposed
on Spencer was not grossly disproportionate to the crime in violation of the Eighth Amendment.
We therefore conclude that Spencer’s sentence does not violate his Eighth Amendment right to be
free from cruel and unusual punishment.
(f) Summary
Spencer was sentenced within the statutory range for a Class IIIA felony. Notably, he
received the benefit of probation when he was initially sentenced for this offense, but he failed to
comply with the terms of his probation. Only then did the district court impose a term of
imprisonment. We cannot say the court abused its discretion in determining the sentence imposed.
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2. INEFFECTIVE ASSISTANCE OF COUNSEL
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.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).
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. State
v. Blaha, supra. 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.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. Theisen,
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
must specifically allege deficient performance, and an appellate court will not scour the remainder
of the brief in search of such specificity.”
Spencer’s appellate counsel is different from his trial counsel. He assigns as error that “trial
counsel failed to pursue credible avenues of defense, both in preparation for trial and at
sentencing.” Brief for appellant at 11.
(a) Preparation for Trial
Spencer argues that while trial counsel “exerted efforts to negotiate and plea bargain,”
counsel failed to prepare “other reasonable defenses.” Id. at 28. However, Spencer fails to argue
this claim with sufficient particularity for this court to determine whether this claim can be decided
on the record before us. See State v. Theisen, supra. He does not specify what defenses trial counsel
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could have pursued. He generally asserts that he had “evidence that would have cast serious doubt
on the State’s witnesses should his initial case and charges have gone to trial,” but that trial counsel
failed to “use the subpoena power of the District Court to obtain this evidence.” Brief for appellant
at 29. However, Spencer does not even generally identify what that evidence would have been. As
such, we find Spencer failed to allege this portion of his ineffective assistance of counsel claim
with sufficient particularity to preserve it.
(b) Sentencing
Spencer also argues that trial counsel “made arguments at the sentencing hearings but did
not address the reasons for the Office of Probation’s recommendations in the Presentence Report
and its addendum . . . specifically, trial counsel should have argued that . . . Spencer was gainfully
employed and the circumstances for his non-compliance were beyond his control.” Id. at 29. We
fail to see how this alleged deficiency could have prejudiced Spencer. The district court had
received and reviewed the PSR and its August 19, 2023, update, and those documents contained
information related to Spencer’s employment, among many other matters as previously addressed.
Further, trial counsel asked the court to “order a sentence of time served.” Trial counsel informed
the court that Spencer wanted to continue working and that he “more or less apologized for
probation and his failure to provide some verifications.” Counsel pointed out that Spencer “was in
classes” and “was doing at least some community service” and that it was not alleged that he was
using controlled substances. Counsel contended it was not a matter of “not complying at all,” but
just not “fully complying.” Trial counsel’s arguments at sentencing were within the range of
competence demanded of attorneys in criminal cases. As such, we find that this portion of
Spencer’s claim of ineffective assistance of counsel also fails.
VI. CONCLUSION
For the reasons set forth above, we affirm Spencer’s sentence. We further find that
Spencer’s claims of ineffective assistance of counsel fail.
AFFIRMED.
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