State v. Drake

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/06/2022 12:07 AM CDT
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STATE v. DRAKE
Cite as 311 Neb. 219State of Nebraska, appellee, v.
John A. Drake, appellant.
___ N.W.2d ___
Filed March 25, 2022. No. S-21-179.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
3. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. 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.
4. Effectiveness of Counsel: Appeal and Error. 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.
5. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure. The first tier of police-citizen encounters involves no restraint
of the liberty of the citizen involved, but, rather, the voluntary coopera-
tion of the citizen is elicited through noncoercive questioning. This type
of contact does not rise to the level of a seizure and therefore is outside
the realm of Fourth Amendment protection.
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Cite as 311 Neb. 2196. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
Investigative Stops: Search and Seizure: Appeal and Error. The sec-
ond tier of police-citizen encounters, the investigatory stop, as defined
by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968), is limited to brief, nonintrusive detention dur-
ing a frisk for weapons or preliminary questioning. This type of encoun-
ter is considered a seizure sufficient to invoke Fourth Amendment safe-
guards, but because of its less intrusive character requires only that the
stopping officer have specific and articulable facts sufficient to give rise
to reasonable suspicion that a person has committed or is committing
a crime.
7. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
Arrests: Search and Seizure: Probable Cause. The third tier of
police-citizen encounters, arrests, is characterized by highly intrusive
or lengthy search or detention. The Fourth Amendment requires that an
arrest be justified by probable cause to believe that a person has com-
mitted or is committing a crime.
8. Sentences: Prior Convictions: Habitual Criminals: Proof. In a habit-
ual criminal proceeding, the State’s evidence must establish with requi-
site trustworthiness, based upon a preponderance of the evidence, that
(1) the defendant has been twice convicted of a crime, for which he or
she was sentenced and committed to prison for not less than 1 year; (2)
the trial court rendered a judgment of conviction for each crime; and (3)
at the time of the prior conviction and sentencing, the defendant was
represented by counsel or had knowingly and voluntarily waived repre-
sentation for those proceedings.
9. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
10. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant 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 ineffective assistance of trial counsel issue will be
procedurally barred.
11. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an
appellate court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims. 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
as a matter of law, or that trial counsel’s actions could not be justi-
fied as a part of any plausible trial strategy. Conversely, an ineffective
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STATE v. DRAKE
Cite as 311 Neb. 219assistance of counsel claim will not be addressed on direct appeal if it
requires an evidentiary hearing.
12. Postconviction: Effectiveness of Counsel: Appeal and Error. The
necessary specificity of allegations of ineffective assistance of trial
counsel on direct appeal for purposes of avoiding waiver requires, at a
minimum, allegations of deficient performance described with enough
particularity for an appellate court to make a determination of whether
the claim can be decided upon the trial record and also for a district
court later reviewing a potential petition for postconviction relief to
be able to recognize whether the claim was brought before the appel-
late court.
13. Effectiveness of Counsel: Appeal and Error. 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.
Appeal from the District Court for York County: James C.
Stecker, Judge. Affirmed.
Jerry D. Clinch and Steven B. Fillman, of Fillman Law
Offices, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
I. INTRODUCTION
John A. Drake was arrested in December 2018 in York
County, Nebraska, after methamphetamine and drug parapher-
nalia were found in his vehicle and on his person. Drake’s
motion to suppress evidence seized during his arrest was
denied. After a stipulated bench trial, the district court found
Drake guilty of possession of a controlled substance and found
him to be a habitual criminal under Neb. Rev. Stat. § 29-2221(Reissue 2016). Due to his enhanced sentence, the court sen-
tenced Drake to a term of 10 to 12 years’ incarceration. Drake
appealed, challenging the denial of his motion to suppress,
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STATE v. DRAKE
Cite as 311 Neb. 219challenging the enhancement of his sentence, and alleging inef-
fective assistance of trial counsel. We affirm.
II. FACTUAL BACKGROUND
As noted above, Drake was arrested by a York County sher-
iff’s deputy, Korey Goplin, on December 28, 2018, after meth-
amphetamine and drug paraphernalia were found in his vehicle
and on his person. In March 2019, the York County Attorney’s
office charged Drake with possession of a controlled sub-
stance with intent to distribute methamphetamine, possession
of a controlled substance, and being a habitual criminal under
§ 29-2221. The York County public defender was thereafter
appointed as counsel for Drake. Drake waived his right to
speedy trial and the matter was set for a jury trial to commence
on August 20, 2019, in the district court for York County.
On August 14, 2019, Drake moved to suppress evidence
obtained as a result of the traffic stop. Drake’s counsel attached
an affidavit to the motion, stating that he was aware the motion
to suppress was not filed more than 10 days prior to trial as
required by law, unless permitted by the court for good cause
shown. Counsel requested the court find good cause, stating
that he had previously given verbal notice to the court and to
the State on August 6 and that the failure to timely file the
motion to suppress was exclusively counsel’s responsibility due
to an “inability to adjust [to] an unusually heavy workload.”
The district court granted such leave and scheduled a hearing
on the motion to suppress to be held on August 22, with a jury
trial to immediately follow.
At the suppression hearing, the State called Goplin, who
testified that on December 28, 2018, he came upon a green
Buick traveling northbound on Road E, south of Interstate 80
between York and Henderson, Nebraska, at very slow speeds.
Goplin followed the Buick for a short time and “ran its license
plate” to check whether the it was stolen. During this time,
the Buick turned southbound down a dead-end road which led
to a residence. Goplin testified that there had recently been
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STATE v. DRAKE
Cite as 311 Neb. 219multiple thefts in the county, so he became suspicious of the
Buick when it stopped in a residential driveway late at night,
yet no one exited the vehicle.
Goplin returned to the intersection of Road E and Road 8,
keeping the Buick in his sight. The Buick left the residence
and returned to the intersection of Road E and Road 8, turning
southbound on Road E. Goplin again followed the Buick for a
short period of time, when suddenly the Buick stopped in the
middle of Road E. Goplin parked his cruiser behind the Buick
to make contact with the driver, Drake.
Upon contact, Goplin asked Drake “what he was doing back
at the residence because [Goplin] didn’t see anybody get out
of the vehicle.” Drake informed Goplin that he “just dropped
off a friend named Candace Powers.” Goplin was familiar with
Candace Powers and knew she did not live at that residence.
During this conversation, Drake stated, seemingly unprompted,
that “it’s been a long time since [I’ve] been in trouble with
law enforcement.” Goplin returned to his cruiser to check the
status of Drake’s driver’s license, which indicated that Drake
had a valid driver’s license and no arrest warrants, but had a
history of drug possession. Goplin then activated his cruiser’s
emergency lights before returning to the Buick, stating that he
did so due to road conditions and the position of the vehicles
in the middle of the roadway.
Upon returning to Drake’s vehicle, Goplin reiterated to
Drake that he was not stopped and that Drake had stopped on
his own. Goplin continued to question Drake about his activi-
ties that night, asking individual questions regarding whether
Drake had any weapons, drugs, or weapons of mass destruc-
tion in the vehicle. According to Goplin, when Drake was
specifically asked about drugs, Drake broke eye contact and
looked down, which indicated to Goplin that Drake may be
engaged in criminal drug activity.
During this time, Drake stated he was lost and trying to
get home. Goplin thought this was suspicious because Drake
had also said he dropped a friend, Powers, off at her home,
whom Goplin knew did not live at the home Drake had just
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STATE v. DRAKE
Cite as 311 Neb. 219visited. Drake also said that he had previously driven from his
home in Aurora, Nebraska, to Powers’ actual house multiple
times, and he even described the directions from Aurora to
Powers’ house. Goplin thought “it was odd that Drake would
be lost if he knew the route.”
Goplin asked Drake to exit the vehicle and come to his
cruiser due to the cold temperature outside. Drake then grabbed
his jacket in a way which appeared to Goplin “as if he was try-
ing not to disturb the contents within it, instead of just jumping
out and picking it up.” Goplin asked if he could search Drake’s
person, which Drake refused.
Drake got into the front passenger seat of Goplin’s cruiser,
at which time Goplin asked Drake about whether drugs were
in the Buick. Drake would not answer directly, and instead,
he stated that the vehicle belonged to his boss. Drake refused
consent to search the vehicle upon that basis. Goplin informed
Drake that because he was in control of the vehicle, he could
give consent to search the vehicle, but Drake refused. Goplin
asked if Drake would be willing to wait for a “drug dog” to do
a “sniff of the vehicle,” and Drake agreed.
While waiting for the drug dog to arrive, Goplin did not
affirmatively tell Drake that he was free to go, but also did
not inform Drake that he could not leave. Goplin recalled that
Drake did not ask whether he was being detained and did not
revoke consent to the search of the vehicle.
Thirty-nine minutes later, another York County sheriff’s
deputy, Robert Penner, arrived with the drug dog, which alerted
that drugs were located in the vehicle. Goplin searched the vehi-
cle and found multiple small baggies consistent with the distri-
bution of controlled substances. Goplin then searched Drake’s
person. Inside Drake’s jacket, Goplin found a sunglasses case
with 5 grams of suspected methamphetamine, a pipe, and a
straw. Goplin arrested Drake. Testing later confirmed that the
substance was methamphetamine.
On cross-examination, Goplin indicated that detained motor-
ists typically wait an average of 20 minutes for “arrival of
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Cite as 311 Neb. 219[a] drug dog for a sniff search.” Goplin also stated that although
the road conditions were hazardous and there was 1 to 2 inches
of snow on the ground, the road was not completely snow cov-
ered so it was suspicious that Drake was traveling only about
25 miles per hour. Goplin testified that during the 39 minutes
he and Drake waited for the drug dog to arrive, they had short
conversations about Drake’s job, why he was driving his boss’
vehicle, and what had happened to his vehicle. Penner testified
after Goplin, providing a similar account of events.
Drake then took the stand to testify. Drake stated that he was
lost when he turned down the driveway and that there had been
no signs indicating that it was a driveway or a dead end. He
had seen Goplin following him before turning down the dead-
end road, and upon returning to the main road, he saw that
Goplin was following him for a second time, so Drake decided
to stop “to let him know what was going on.” After Drake gave
his driver’s license to Goplin, Goplin turned on his cruiser’s
emergency lights. Drake stated that Goplin returned and told
Drake “everything was fine there and he just wanted to ask
[Drake] some questions.” However, Drake testified that after
Goplin had turned his cruiser’s emergency lights on and asked
Drake to “join him in his vehicle,” Drake believed he was being
detained. Drake stated that he did ask if he was free to go, to
which Goplin “would not reply but changed subjects.”
The court overruled Drake’s motion to suppress after mak-
ing specific findings on the record as follows:
That it was a voluntary stop by [Drake]; that [Drake] then
violated the law by stopping his vehicle in the middle
of the road, impeding traffic, a violation of Nebraska
law. The community caretaker provision with [Drake’s]
stopping late at night in cold weather is also applicable.
[Drake’s] behavior by driving slow late at night, driv-
ing into a dead end and not being a local vehicle was
suspicious. The contact initially was voluntary. [Drake]
when meeting with [the] officer gave suspicious answers.
The [o]fficer knew the residence of Candace Powers,
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STATE v. DRAKE
Cite as 311 Neb. 219knew that it was not Candace Powers’ residence and that
he did know Candace Powers and that [Drake] had said
that he had been to Candace Powers’ many times but yet
that he was lost. Those [are] suspicious answers. [Drake]
indicated that [the Buick] was not his vehicle. There was
no evidence of permission for him to drive the vehicle,
therefore he had no standing to object to the search.
[Drake] agreed to wait for the drug dog. He was never
arrested, not cuffed and never detained. He did consent to
wait for the drug dog. That consent was never withdrawn.
The dog was deployed, did alert and indicate, and at that
point reasonable suspicion existed. . . . During the search
baggies were found. [Drake] had a drug history. [Drake]
acted suspiciously by the way he picked up and held his
jacket. The officer had reasonable suspicion that a crime
was afoot. The officer had probable cause to search.
Following a stipulated bench trial, the court found Drake
not guilty of count I, possession of a controlled substance with
intent to distribute, and guilty of count II, possession of a con-
trolled substance. An enhancement hearing was subsequently
held, after which the court found Drake to be a habitual crimi-
nal pursuant to § 29-2221. Drake was sentenced to a term of 10
to 12 years’ imprisonment.
The record indicates that after sentencing, Drake’s counsel
failed to perfect an appeal. Drake then submitted a petition
for postconviction relief, and the district court found that this
failure had denied Drake an opportunity to appeal the court’s
October 2019 ruling. The district court reinstated Drake’s right
to appeal on February 8, 2021, and Drake thereafter perfected
an appeal. We subsequently moved this case to our docket.
On appeal, Drake challenges the district court’s denial of his
motion to suppress on the basis that the stop was not consen-
sual and that Drake believed he was being detained.
Drake also challenges the court’s enhancement of his sen-
tence, arguing that the State must have presented evidence
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STATE v. DRAKE
Cite as 311 Neb. 219that Drake “was sent to prison for a fixed period of time of
not less than one year and that at least one year was served in
prison,” in order to satisfy § 29-2221. 1 According to § 29-2221,
a defendant must have “been twice convicted of a crime, sen-
tenced, and committed to prison . . . for terms of not less than
one year.”
In addition, Drake’s appellate counsel is different than his
trial counsel, and Drake alleges several instances of ineffective
assistance of trial counsel.
III. ASSIGNMENTS OF ERROR
On appeal, Drake assigns that the district court erred in (1)
denying Drake’s motion to suppress; (2) finding Drake to be a
habitual criminal pursuant to § 29-2221; and (3) finding that
Drake received ineffective assistance of trial counsel because
trial counsel (a) failed to file and schedule a timely motion to
suppress, (b) failed to request certain discovery prior to trial,
(c) failed to subpoena witnesses necessary to provide founda-
tion for exhibits, (d) agreed to a stipulated bench trial with
stipulated facts, and (e) generally lacked the training and expe-
rience for purposes of acting as public defender.
IV. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. 2
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. 3
1
Brief for appellant at 17.
2
State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021); State v. Briggs,
308 Neb. 84, 953 N.W.2d 41 (2021).
3
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STATE v. DRAKE
Cite as 311 Neb. 219[2] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. 4
[3,4] Whether a claim of ineffective assistance of trial coun-
sel 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. 5 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 defend­
ant was or was not prejudiced by counsel’s alleged deficient
performance. 6
V. ANALYSIS
1. Motion to Suppress
On appeal, Drake argues that the trial court erred in deny-
ing his motion to suppress. Drake asserts that the stop which
occurred on December 28, 2018, was not voluntary and that
thus, the evidence obtained as a result of that stop was obtained
in violation of the Fourth Amendment. Drake claims that
Goplin followed him long enough to “prompt[]” 7 Drake to stop
his vehicle; that Goplin questioned Drake “in earnest,” 8 which
intimidated Drake; that Goplin then turned on his cruiser’s
emergency lights in a manner that led Drake to believe that
he was being detained; and finally, that as they waited for the
4
State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020); Griffith v.
Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934 N.W.2d 169 (2019).
5
State v. Lowman, supra note 2; State v. Theisen, 306 Neb. 591, 946
N.W.2d 677 (2020).
6
State v. Lowman, supra note 2; State v. Lang, 305 Neb. 726, 942 N.W.2d
388 (2020), cert. denied ___ U.S. ___, 141 S. Ct. 415, 208 L. Ed. 2d 119.
7
Brief for appellant at 12.
8
Id. at 13.
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STATE v. DRAKE
Cite as 311 Neb. 219drug dog to arrive, Goplin refused to tell Drake whether he was
free to go.
[5-7] Under Nebraska law and the law regarding seizures in
the context of the Fourth Amendment, there are three tiers of
police-citizen encounters. 9 As we have previously stated:
The first tier of police-citizen encounters involves no
restraint of the liberty of the citizen involved, but, rather,
the voluntary cooperation of the citizen is elicited through
noncoercive questioning. This type of contact does not
rise to the level of a seizure and therefore is outside the
realm of Fourth Amendment protection.
The second tier, the investigatory stop, as defined by
the U.S. Supreme Court in Terry v. Ohio, is limited to
brief, nonintrusive detention during a frisk for weapons
or preliminary questioning. This type of encounter is con-
sidered a seizure sufficient to invoke Fourth Amendment
safeguards, but because of its less intrusive character
requires only that the stopping officer have specific and
articulable facts sufficient to give rise to reasonable sus-
picion that a person has committed or is committing
a crime.
The third type of police-citizen encounters, arrests, is
characterized by highly intrusive or lengthy search or
detention. The Fourth Amendment requires that an arrest
be justified by probable cause to believe that a person has
committed or is committing a crime. 10
(a) First-Tier Police-Citizen Encounter
(i) Voluntary Stop
According to the record, Goplin was on patrol in the area
when he noticed Drake’s vehicle driving at slow speeds, around
25 miles per hour, which was slower than Goplin would expect
given the weather conditions. Goplin followed the vehicle
9
See State v. Lowman, supra note 2.
10
Id. at 491-92, 954 N.W.2d at 916.
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Cite as 311 Neb. 219to check the license plate, which is standard practice. When the
vehicle went down a dead-end road, Goplin kept the vehicle
in his sight but did not follow. Once the vehicle returned to
the main intersection, Goplin again followed, but did not acti-
vate his cruiser’s emergency lights or indicate that the vehicle
needed to stop.
While Drake says that he stopped only because Goplin’s
actions “prompt[ed]” 11 him to do so, Drake still chose to stop
in the middle of the road instead of pulling over or onto the
shoulder. At this point, Goplin made contact with Drake, but
informed him that he had not been stopped and that Drake had
stopped on his own. Goplin questioned Drake about what he
was doing that night but did not detain Drake, and Goplin even
told Drake that “everything was fine” and that he just had a
few questions.
When Goplin later asked Drake if he would consent to a
search of his person or of the vehicle, Drake refused both.
Drake refused consent to the search of the vehicle because he
claimed it was not his own, and he continued to refuse consent
even after Goplin explained that he could give consent even
though it was not his vehicle, if that is what Drake wanted to
do. Drake’s continued refusal to consent to a search supports
the district court’s determination that the contact was voluntary,
and we find that determination to not be clearly erroneous.
(ii) Waiting for Drug Dog
According to the district court, Drake later agreed to wait
for a drug dog, consented to the drug dog’s performing a
search of the vehicle, and never withdrew such consent. The
district court also found that Drake was never detained during
this time.
Goplin testified that Drake was seated in Goplin’s cruiser in
the front seat with an unlocked door and that he asked Drake
to join him in his cruiser because the cold temperatures did not
allow Goplin and Drake to wait outside. Drake also testified
11
Brief for appellant at 12.
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Cite as 311 Neb. 219that Goplin, after checking Drake’s driver’s license and return-
ing to Drake’s vehicle, “said that everything was fine” and “he
just wanted to ask [Drake] some questions.” Drake stated that
he “had to turn almost at a 45 to talk to [Goplin]” and that
when Drake did so, the front lights of the cruiser reflected off
the Buick’s rearview mirror into his eyes. This is when Goplin
asked Drake if he “would join him in his vehicle.”
Drake asserts that while he was in Goplin’s cruiser waiting
for the drug dog to arrive, he asked Goplin if he was free to
go, and that Goplin “would not reply” or would change sub-
jects. By contrast, counsel for Drake asked Goplin definitively,
“[d]id [Drake] ever ask you whether he was free to leave?” to
which Goplin responded, “No.” Goplin also testified that he
had informed Drake multiple times he had not been stopped
and that he “reiterated [he] had not conducted a traffic stop” on
Drake and “[i]f [Drake] was being detained, I would have told
him he was detained.”
Based on this evidence and testimony, the district court
determined that Drake was never detained, implicitly finding
Goplin to be a more credible witness than Drake. Regarding
historical facts, an appellate court reviews the trial court’s
findings for clear error, but does not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh the
evidence. 12 Because these findings are supported by the record
and testimony, they are not clearly erroneous.
(iii) 39-Minute Wait
Drake further argues that his waiting for at least 39 minutes
for the drug dog to arrive is evidence that he was unreason-
ably detained. The evidence and testimony within the record
show that Drake voluntarily consented to wait; thus, Drake’s
waiting 39 minutes did not transform an otherwise voluntary
inter­action into a detention. But we note that even if Drake had
been detained during the 39-minute wait for the drug dog to
arrive, such period of time would not be unreasonable.
12
See State v. Lowman, supra note 2.
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Cite as 311 Neb. 219We have previously held that an investigatory stop lasting
34 to 45 minutes was not unreasonable for purposes of the
Fourth Amendment. 13 And investigatory stops lasting 50 min-
utes or longer have been upheld in several federal courts. For
example, in U.S. v. Hardy, 14 the court determined that a wait of
50 minutes for the arrival of a drug dog was not unreasonable
for Fourth Amendment purposes. In U.S. v. White, 15 the court
determined that a 1-hour-20-minute wait for the arrival of a
drug dog was not unreasonable for Fourth Amendment pur-
poses, and in U.S. v. Bloomfield, 16 the court held that a 1-hour
wait for arrival of a drug dog was not unreasonable for Fourth
Amendment purposes.
The testimony of both Goplin and Penner indicates that
Penner was awoken in the middle of the night and had to
travel to where Goplin and Drake were located for the drug
dog to perform the search, each a reasonable explanation for
this period of delay. Thus, even if Drake had been detained, a
39-minute wait would not be unreasonable for purposes of the
Fourth Amendment.
Because the vehicle stop was voluntary and Drake was not
detained, the initial interactions between Goplin and Drake
placed no restraint on Drake’s liberty. Drake’s interaction
with Goplin was elicited through noncoercive questioning.
Hence, these early interactions are best defined as a first-tier
police citizen encounter outside the protections of the Fourth
Amendment.
(b) Second-Tier Police-Citizen Encounter
When the drug dog arrived to perform a “free air sniff” of
the vehicle, it indicated and alerted to the presence of drugs.
Drake was detained, and at this time, the interaction evolved
13
See State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344 (1997).
14
See U.S. v. Hardy, 855 F.2d 753 (11th Cir. 1988).
15
See U.S. v. White, 42 F.3d 457 (8th Cir. 1994).
16
See U.S. v. Bloomfield, 40 F.3d 910 (8th Cir. 1994).
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Cite as 311 Neb. 219into a second-tier police-citizen encounter. Goplin had a rea-
sonable suspicion to believe a crime had occurred based on
the totality of the circumstances, as well as probable cause to
believe that contraband or evidence of a crime would be found
in Drake’s vehicle. On that basis, Goplin was permitted to
detain Drake per Terry v. Ohio, 17 and because Drake’s vehicle
was readily mobile, the automobile exception applied to per-
mit a warrantless search of the vehicle. 18 Thus, when Goplin
detained Drake and executed a warrantless search of Drake’s
vehicle, evidence obtained as a result was not obtained in vio-
lation of the Fourth Amendment.
Upon finding contraband and drugs in Drake’s vehicle, a
search of Drake’s person was permitted pursuant to the excep-
tion to the warrant requirement for searches incident to a valid
arrest. 19 Evidence obtained as a result of this search also was
not obtained in violation of the Fourth Amendment.
Based on a review of the record, the initial interactions
between Goplin and Drake were consensual, the “free air sniff”
by the drug dog was consensual, and the evidence obtained as
a result of both a search of Drake’s vehicle and his person was
not obtained in violation of the Fourth Amendment.
Because the district court’s findings of historical fact
were not clearly erroneous and because we find no Fourth
Amendment violation, we conclude the court properly over-
ruled Drake’s motion to suppress.
2. Habitual Criminal
In his second assignment of error, Drake asserts that the dis-
trict court erred in finding Drake to be a habitual criminal for
purposes of enhancing his sentence. Drake argues that the plain
language of the habitual criminal statute, § 29-2221, requires
that the State’s evidence in a habitual criminal proceeding
17
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
18
See State v. Lowman, supra note 2.
19
See id.- 234 -
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STATE v. DRAKE
Cite as 311 Neb. 219must establish by a preponderance of the evidence that Drake
“was sent to prison for a fixed period of time of not less than
one year and that at least one year was served in prison.” 20
According to § 29-2221:
(1) Whoever has been twice convicted of a crime, sen-
tenced, and committed to prison, in this or any other state
or by the United States or once in this state and once at
least in any other state or by the United States, for terms
of not less than one year each shall, upon conviction of a
felony committed in this state, be deemed to be a habitual
criminal and shall be punished by imprisonment in a
Department of Correctional Services adult correctional
facility for a mandatory minimum term of ten years and a
maximum term of not more than sixty years[.]
[8] We have further noted:
In a habitual criminal proceeding, the State’s evidence
must establish with requisite trustworthiness, based upon
a preponderance of the evidence, that (1) the defendant
has been twice convicted of a crime, for which he or she
was sentenced and committed to prison for not less than 1
year; (2) the trial court rendered a judgment of conviction
for each crime; and (3) at the time of the prior conviction
and sentencing, the defendant was represented by counsel
or had knowingly and voluntarily waived representation
for those proceedings. 21
In construing § 29-2221, Drake relies on the Black’s Law
Dictionary definitions of the word “commit”—“[t]o send (a
person) to prison or to a mental health facility, esp. by court
order” 22; the word “commitment”—the “act of confining a
person in a prison, mental hospital, or other institution” 23; and
20
Brief for appellant at 17.
21
State v. Dixon, 286 Neb. 334, 350, 837 N.W.2d 496, 508 (2013).
22
Black’s Law Dictionary 340 (11th ed. 2019).
23
Id.- 235 -
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Cite as 311 Neb. 219the word “term”—a “fixed period of time; esp., the period for
which an estate is granted.” 24 Accordingly, Drake understands
these words as used in § 29-2221 to mean that the State is
required to prove that Drake “was sent to prison for a fixed
period of time of not less than one year and that at least one
year was served in prison” by Drake. 25
Because the State failed to show that Drake actually served
at least 1 year on each of those sentences and the trial court
accordingly made no such finding, Drake asserts that this
court must vacate the district court’s determination that Drake
was a habitual criminal, vacate the sentence it imposed, and
remand the matter for resentencing without a habitual criminal
enhancement. Drake cites no other authority for his reading of
the statute, and we are not aware of any such authority.
[9] Hence, we disagree with Drake’s interpretation of
§ 29-2221 and observe that the term “commitment,” as defined
by Black’s Law Dictionary, has multiple meanings. Another
definition for “commitment” is the “order directing an officer
to take a person to a penal . . . institution.” 26 It is not within the
province of the courts to read a meaning into a statute that is
not there or to read anything direct and plain out of a statute. 27
This alternative definition is consistent with the plain language
of § 29-2221, and thus, we will apply it here.
Pursuant to our reading of § 29-2221, for purposes of the
words “committed to prison,” the State needs to show only that
the defendant has twice been ordered by the court to be com-
mitted for at least 1 year to a penal institution. The State is not
required to produce evidence that Drake actually served a full
year in prison.
24
Id. at 1773.
25
Brief for appellant at 17.
26
Black’s Law Dictionary at 340.
27
Hauptman, O’Brien v. Auto-Owners Ins. Co., 310 Neb. 147, 964 N.W.2d
264 (2021).
- 236 -
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Cite as 311 Neb. 219As evidence of prior convictions, the State presented exhibits
4 and 5. Exhibit 4 contains a journal entry from November 1,
1989, which states that Drake was “sentenced to the Department
of Correction[s] on Count I, theft, a Class III felony, for a term
of 1-3 years with credit for 30 days served.” Drake was also
sentenced on a second conviction, to run concurrently. Exhibit
5 contains a judgment and sentence from June 29, 2004, which
states that Drake “shall be incarcerated in an institution under
the jurisdiction of the Nebraska Department of Correctional
Services for a period of not less than fifteen (15) months and
not more than thirty-six (36) months.”
The language within both orders shows that the sentencing
courts in those prior convictions ordered Drake to be taken to a
penal institution within the control of the Nebraska Department
of Correctional Services for a period of not less than 1 year on
both November 1, 1989, and June 29, 2004. In other words,
these exhibits together show that Drake has twice been com-
mitted to prison for not less than 1 year.
Based on a plain language reading of § 29-2221, the evi-
dence presented by the State as proof of Drake’s prior convic-
tions was sufficient for purposes of habitual criminal enhance-
ment. Accordingly, the district court did not err in finding
Drake to be a habitual criminal.
3. Ineffective Assistance of Trial Counsel
In his third through seventh assignments of error, Drake
asserts that he received ineffective assistance of trial counsel.
Drake argues that trial counsel failed to schedule a timely
motion to suppress, to request discovery, and to subpoena wit-
nesses for the presentation of exhibits at trial; that trial counsel
was ineffective when he agreed to a stipulated bench trial; and
that trial counsel generally lacked the training and experience
needed to act as a public defender.
[10] 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 perform­
ance which is known to the defendant or is apparent from the
- 237 -
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Cite as 311 Neb. 219record; otherwise, the ineffective assistance of trial counsel
issue will be procedurally barred. 28
[11] Once raised, an appellate court will determine whether
the record on appeal is sufficient to review the merits of the
ineffective performance claims. 29 The record is sufficient if it
establishes either that trial counsel’s performance was not defi-
cient, that the appellant will not be able to establish prejudice
as a matter of law, or that trial counsel’s actions could not be
justified as a part of any plausible trial strategy. 30 Conversely,
an ineffective assistance of counsel claim will not be addressed
on direct appeal if it requires an evidentiary hearing. 31
[12,13] The necessary specificity of allegations of ineffec-
tive assistance of trial counsel on direct appeal for purposes of
avoiding waiver requires, at a minimum, allegations of defi-
cient performance described with enough particularity for an
appellate court to make a determination of whether the claim
can be decided upon the trial record and also for a district
court later reviewing a potential petition for post­conviction
relief to be able to recognize whether the claim was brought
before an appellate court. 32 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. 33
(a) Failure to Timely Schedule
Motion to Suppress
Drake first claims that trial counsel provided ineffec-
tive assistance by failing to schedule a timely hearing for
28
State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
29
Id.30
State v. Lowman, supra note 2.
31
State v. Abdullah, supra note 28.
32
State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). See State v. Lee,
304 Neb. 252, 934 N.W.2d 145 (2019).
33
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
- 238 -
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STATE v. DRAKE
Cite as 311 Neb. 219Drake’s motion to suppress. Assuming, without deciding, that
trial counsel’s performance was deficient, we find that Drake
cannot establish prejudice. The district court found that trial
counsel had established good cause for filing the motion past
the 10-day deadline, and the motion to suppress was thereafter
set for a hearing and considered on the merits by the court.
Drake asserts that prejudice arose when the jury trial was
scheduled to begin immediately after the motion to suppress
hearing, as this “did not leave any room for any potential
negotiation with the State . . . depending on the outcome of
the Motion to Suppress.” 34 Drake contends that if counsel had
filed a timely hearing, and if the motion to suppress had been
denied, Drake would have had more opportunity either to bet-
ter prepare for trial or to work with the prosecutor toward a
plea deal such that the proceedings at the trial level would have
gone differently.
However, the record indicates that Drake was already in
receipt of a plea offer from the State and chose to proceed with
trial instead. Even if his motion had been timely filed, a lack of
success at the suppression hearing does not suggest new lever-
age by which Drake would be able to secure a different or bet-
ter deal from the State than was already offered. And the State
would have little incentive to agree to any offer if it knew that
Drake was unsuccessful in his motion, regardless of whether
the trial proceeded immediately after the suppression hearing
or days later. Accordingly, this assertion is without merit.
(b) Failure to Request Discovery Information
Drake also assigns that trial counsel was ineffective in fail-
ing to request discovery prior to trial in the form of footage
from the dashboard camera of Goplin’s cruiser or of Goplin’s
body camera.
The record on appeal indicates that such performance was
not deficient. Goplin testified that there was a dashboard
34
Brief for appellant at 21.
- 239 -
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STATE v. DRAKE
Cite as 311 Neb. 219camera on his cruiser, but that there was no footage available
because that camera had malfunctioned. Goplin also testified
that he was not wearing a body camera that night. In addition,
there was a discovery stipulation in place well before trial
wherein the parties agreed to provide discovery and recipro-
cal discovery prior to trial and wherein the State additionally
acknowledged its duty to disclose certain evidence.
Trial counsel was not deficient for failing to make a spe-
cific request for discovery that did not exist, and therefore,
Drake’s allegation of ineffective assistance of counsel is with-
out merit.
(c) Failure to Subpoena Witnesses Necessary
to Provide Foundation for Exhibits
Drake next asserts that trial counsel’s performance was
deficient when he failed to subpoena witnesses who could
offer foundation for the presentation of additional exhibits.
Specifically, Drake argues that trial counsel made multiple
attempts to enter exhibits 1 and 2 into evidence without first
calling foundational witnesses, resulting in the exclusion of
both exhibits from evidence.
However, the evidence included in exhibits 1 and 2 is cumu-
lative of other admissible testimony and evidence. These exhib-
its included an incident narrative written by Goplin regarding
the events that took place on December 28, 2018, and a York
County sheriff’s office incident log. The incident narrative
reflects the testimony given by Goplin at the suppression hear-
ing, as does the incident log. Drake has failed to establish that
counsel was ineffective. Accordingly, his argument is with-
out merit.
(d) Stipulated Bench Trial
Drake also assigns that his trial counsel performed defi-
ciently by agreeing to a stipulated bench trial. Drake contends
that his trial counsel, by stipulating to the facts as set forth
- 240 -
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STATE v. DRAKE
Cite as 311 Neb. 219in exhibit 3, stipulated that 5 grams of methamphetamine
were found on Drake’s person, as well as some paraphernalia;
that said items were consistent with the distribution of con-
trolled substances; and that the suspected methamphetamine
was tested in a laboratory and confirmed to be methamphet-
amine. Drake argues that these stipulated facts were guaran-
teed to secure a conviction against him and would support a
habitual criminal enhancement of any sentence imposed.
However, the facts as stipulated for purposes of the bench
trial merely reflect the evidence already presented at the motion
to suppress hearing, as well as the prior findings by the district
court when it denied Drake’s motion to suppress. The facts
within exhibit 3 did not stipulate to Drake’s express knowledge
or intent, key elements necessary to obtain a conviction under
Neb. Rev. Stat. § 28-416 (Cum. Supp. 2020), regardless of the
facts. Contrary to Drake’s assertions, these stipulated facts did
not “guarantee[]” his conviction, 35 but, rather, they allowed the
parties to proceed after the suppression hearing had concluded
without a need to resubmit evidence or testimony which either
party had already presented to the court. Consequently, Drake’s
counsel did not act deficiently.
Further, the stipulation of facts included a statement that
the contraband found in Drake’s vehicle was “consistent with
a ‘small-time’ or ‘local’ drug dealer, used in the distribution
of controlled substances.” Despite this stipulation, and despite
the amended information charging Drake at count I with pos-
session of a controlled substance with intent to distribute, the
district court found Drake guilty of only count II, possession
of a controlled substance. That the district court found Drake
not guilty of count I is evidence that even if Drake’s counsel
had acted deficiently, Drake will not be able to prove that such
performance prejudiced Drake. This claim of ineffective assist­
ance of trial counsel is without merit.
35
Id. at 24.
- 241 -
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STATE v. DRAKE
Cite as 311 Neb. 219(e) Lack of Training and Experience
Finally, Drake asserts that he received ineffective assistance
of counsel because his trial counsel lacked proper training and
experience for purposes of acting as a public defender.
Drake reasserts, broadly, the above-described errors and
claims that the culmination of these errors indicates that his
trial counsel did not perform as well as a lawyer with ordinary
training and skill in the area of criminal law. In addition, Drake
more specifically argues that Drake’s own comments at trial
and sentencing prove a lack of proper counseling and advice
from trial counsel. Drake claims that he was not adequately
informed of the consequences of the habitual criminal sen-
tencing and that trial counsel was not fully aware of the con-
sequences of habitual criminal sentencing himself, asking the
court whether it was going to sentence Drake “on the other
charge.” Drake contends that counsel’s lack of understanding
here prejudiced Drake because Drake did not understand the
nature of what he was agreeing to when he turned down the
plea deal offered by the State and continued to trial.
Here, Drake has not sufficiently alleged deficient perform­
ance. A generalized complaint regarding a lack of proper
experience, skills, or training might be the standard by which
this court will review the performance of counsel to determine
whether their performance was deficient, but it is not specific
enough, especially as stated here, to be a stand-alone claim.
Drake does not explain his basis for moving forward with
trial, nor does he provide insight into how counsel’s advice
or explanation of the risks or consequences of proceeding to
trial were either incorrect or deficient. Instead, Drake claims
that counsel “could not have adequately advised” Drake of the
consequences because counsel “was out of his depth.” 36 We
conclude that Drake has failed to allege this claim of defi-
cient performance with sufficient particularity. A claim of
36
Id. at 27.
- 242 -
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STATE v. DRAKE
Cite as 311 Neb. 219ineffective assistance that is insufficiently stated is no different
than a claim not stated at all. 37
VI. CONCLUSION
We affirm the decision of the district court, which denied
Drake’s motion to suppress and found him to be a habitual
criminal for purposes of sentencing.
We find that Drake’s claims of ineffective assistance of
trial counsel are either without merit or not alleged with suf-
ficient particularity.
Affirmed.
37
State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).