State v. Sundquist

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/22/2019 01:08 PM CDT
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE v. SUNDQUIST
Cite as 301 Neb. 1006
State of Nebraska, appellee, v.
M arvin D. Sundquist, appellant.
___ N.W.2d ___
Filed January 4, 2019. No. S-17-1297.
1. Effectiveness of Counsel: Appeal and Error. Appellate review of a
claim of ineffective assistance of counsel is a mixed question of law
and fact.
2. ____: ____. When reviewing a claim of ineffective assistance of coun-
sel, an appellate court reviews the factual findings of the lower court for
clear error.
3. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
4. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
5. Appeal and Error. An appellate court independently reviews questions
of law in appeals from the county court.
6. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that his or her counsel’s
performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense.
7. Effectiveness of Counsel: Records: Appeal and Error. A claim of
ineffective assistance of counsel need not be dismissed merely because
it is made on direct appeal. The determining factor is whether the record
is sufficient to adequately review the question.
8. Effectiveness of Counsel: Proof: Appeal and Error. When an ineffec-
tive assistance of counsel claim 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 defi-
cient performance by trial counsel.
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STATE v. SUNDQUIST
Cite as 301 Neb. 1006
9. ____: ____: ____. General allegations that trial counsel performed defi-
ciently or that trial counsel was ineffective are insufficient to raise an
ineffective assistance claim on direct appeal and thereby preserve the
issue for later review.
10. Effectiveness of Counsel: Records: Appeal and Error. An ineffective
assistance of counsel claim made on direct appeal can be found to be
without merit if the record establishes that trial counsel’s performance
was not deficient or that the appellant could not establish prejudice.
11. Actions: Waiver: Appeal and Error. Under the law-of-the-case doc-
trine, a well-recognized waiver rule has emerged: A decision made at
a previous stage of litigation, which could have been challenged in the
ensuing appeal but was not, becomes the law of the case; the parties are
deemed to have waived the right to challenge that decision.
Appeal from the District Court for Dodge County, Geoffrey
C. H all and Timothy P. Burns, Judges, on appeal thereto from
the County Court for Dodge County, K enneth J. Vampola,
Judge. Judgment of District Court affirmed.
Marvin D. Sundquist, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Heavican, C.J.
I. INTRODUCTION
This is an appeal from the district court for Dodge County,
Nebraska. Following a retrial in the county court for Dodge
County, a jury convicted Marvin D. Sundquist of driving under
the influence (DUI), second offense aggravated. Sundquist was
sentenced to 18 months’ probation. The district court affirmed.
Sundquist appeals. We affirm.
II. BACKGROUND
At approximately midnight on November 17, 2014, Officer
Anthony Gartner conducted a traffic stop on a vehicle for
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STATE v. SUNDQUIST
Cite as 301 Neb. 1006
speeding. Sundquist was the driver and only person present
in the vehicle. After making contact with Sundquist, Gartner
smelled the odor of alcoholic beverage coming from inside
the vehicle and noticed that Sundquist’s eyes were watery and
bloodshot. Sundquist also admitted to drinking.
Gartner asked Sundquist to perform certain field sobriety
tests, as well as a preliminary breath test. The results of this
testing indicated that Sundquist was impaired. Sundquist was
arrested and submitted to a chemical breath test performed in
accordance with all relevant regulations. The chemical breath
test was completed using a machine commonly referred to
as a “DataMaster,” a machine that utilizes infrared spectro­
photometry, or an infrared light beam, to measure the alcohol
content in a person’s breath. The result of the chemical breath
test showed Sundquist’s breath alcohol content to be .160 of 1
gram of alcohol per 210 liters of breath.
1. Pretrial Proceedings
The State charged Sundquist with DUI, second offense
aggravated, under Neb. Rev. Stat. §§ 60-6,196 (Reissue 2010)
and 60-6,197.03(5) (Cum. Supp. 2014), a Class I misdemeanor.
At a hearing on January 13, 2015, the State offered to drop
the aggravated portion of the charge as part of a plea agree-
ment in exchange for Sundquist’s pleading guilty or no con-
test. Sundquist, acting pro se, rejected the offer and sought a
jury trial. At the insistence of the court, Sundquist was given
the opportunity to reconsider his decision and to seek coun-
sel. Though the order of events is not entirely clear from the
record, it appears that Sundquist was eventually appointed
counsel, but still rejected the offered plea agreement.
2. First Trial
Trial was held on April 9, 2015. Sundquist, by this time
represented by counsel, objected to Gartner’s testimony regard-
ing the results of Sundquist’s breath test. Sundquist’s objection
was based on the State’s failure to disclose “the appropriate
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STATE v. SUNDQUIST
Cite as 301 Neb. 1006
certification” to establish Gartner as qualified to operate the
DataMaster. Sundquist argued that “his entire defense was
based on the State’s failure to disclose the correct permit and
that . . . he had prepared no alternative strategy or defense.”
After hearing from the parties, the county court overruled
Sundquist’s objection. The jury found Sundguist guilty, and
the county court found Sundquist’s conviction to be a sec-
ond offense.
Several days later, Sundquist’s counsel moved for a
new trial. Sundquist, acting pro se, moved to withdraw the
motion and further asked that new counsel be appointed. In
response, Sundquist’s trial counsel withdrew and new counsel
was appointed. Sundquist was subsequently sentenced to 18
months’ probation.
3. First A ppeal
On June 16, 2015, Sundquist appealed his conviction to the
district court. In that appeal, Sundquist argued, among other
things, that the county court erred in allowing the arresting
officer “to provide testimony in regard to the results of the
test as his certification to operate the testing device was not
previously provided to [Sundquist] and his counsel.” After
hearing from the parties, the district court agreed that the
county court had erred. The district court further concluded
that the error was not harmless. Accordingly, the district court
reversed the county court’s judgment and remanded the case
for further proceedings.
On February 26, 2016, Sundquist appealed to the Nebraska
Court of Appeals, arguing that the Double Jeopardy Clause for-
bade a retrial. On July 29, in case No. A-16-213, the Court of
Appeals rejected that argument and summarily affirmed.
4. Second Trial
A second trial was held on April 20, 2017. Sundquist filed
multiple pretrial motions. First, Sundquist moved for discharge
on speedy trial grounds, which the county court denied. Second,
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STATE v. SUNDQUIST
Cite as 301 Neb. 1006
once the State made clear that it would not offer Sundquist a
plea agreement as it had initially done prior to the first trial,
Sundquist moved to dismiss on the grounds of prosecutorial
misconduct and prosecutorial vindictiveness. That motion was
also denied.
At trial, the State again called Gartner to testify. His testi-
mony was consistent with his prior testimony and covered the
traffic stop, the on-the-scene investigation, and the chemical
breath test at the police station. The State also called the main-
tenance officer for the breath test machine to testify. The offi-
cer’s testimony encompassed the chemical breath test machine,
the various maintenance protocols, and the relevant margin of
error. Specifically, he testified that the machine was working
properly on the day in question.
A jury found Sundquist guilty, and the county court again
determined that Sundquist’s conviction was a second offense.
Sundquist was again sentenced to 18 months’ probation.
5. Second A ppeal
On May 30, 2017, Sundquist, represented by counsel,
appealed his conviction to the district court. Counsel did not
file a statement of errors on Sundquist’s behalf before that
court. Despite this, the district court addressed the issue raised
at the appeal hearing: that Sundquist was entitled to a reoffer
of the earlier plea agreement that the State proposed before the
first trial and the State’s failure to do so was improper. The dis-
trict court affirmed the county court’s judgment and conviction,
noting that the court found no error. Sundquist appeals.
III. ASSIGNMENTS OF ERROR
Sundquist assigns, consolidated and restated, that (1) his
counsel was ineffective in various ways, (2) both counsel were
ineffective and Sundquist’s due process rights were violated
with respect to the State’s only offered plea agreement, and (3)
his constitutional rights were violated by various actions of the
State and the trial court.
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STATE v. SUNDQUIST
Cite as 301 Neb. 1006
IV. STANDARD OF REVIEW
[1,2] Appellate review of a claim of ineffective assistance
of counsel is a mixed question of law and fact.1 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.2 With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington,3 an appellate court
reviews such legal determinations independently of the lower
court’s decision.4
[3-5] Both the district court and a higher appellate court gen-
erally review appeals from the county court for error appearing
on the record.5 When reviewing a judgment for errors appear-
ing on the record, an appellate court’s inquiry is whether the
decision conforms to the law, is supported by competent evi-
dence, and is neither arbitrary, capricious, nor unreasonable.6
But an appellate court independently reviews questions of law
in appeals from the county court.7
V. ANALYSIS
1. Ineffective Assistance of Counsel
Sundquist contends that he received ineffective assistance
of counsel during the course of his representation. First, he
argues that he was, in effect, denied an appeal to the dis-
trict court because (1) he received ineffective assistance of
counsel in that his attorney (a) failed to file a statement of
errors, (b) failed to make “persuasive” arguments, (c) failed to
1
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
2
Id.
3
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
4
State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011).
5
State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).
6
Id.
7
Id.
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adequately challenge the chemical breath test, and (d) failed
to argue that his performance on the field sobriety tests was
inconsistent with the level of intoxication as indicated by the
chemical breath test, and (2) the court prevented him from
arguing in his own behalf. Sundquist next claims his coun-
sel was ineffective by not adequately communicating with
Sundquist. Finally, Sundquist argues that the State interfered
with his right to effective assistance of counsel in the first
trial by not disclosing that Gartner was qualified to operate
the chemical breath test machine, which Sundquist argues
interfered with his counsel’s ability to advise him during
plea negotiations.
[6-9] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, the defendant must
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend­
ant’s defense.8 A claim of ineffective assistance of counsel
need not be dismissed merely because it is made on direct
appeal. The determining factor is whether the record is suf-
ficient to adequately review the question.9 When the claim
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.10 General allegations
that trial counsel performed deficiently or that trial counsel
was ineffective are insufficient to raise an ineffective assist­
ance claim on direct appeal and thereby preserve the issue for
later review.11
[10] Appellate courts have generally reached ineffective
assistance of counsel claims on direct appeal only in those
instances where it was clear from the record that such claims
8
State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
9
Id.
10
Id.
11
Id.
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were without merit, or in the rare case where trial counsel’s
error was so egregious and resulted in such a high level of
prejudice that no tactic or strategy could overcome the effect
of the error, which effect was a fundamentally unfair trial. An
ineffective assistance of counsel claim made on direct appeal
can be found to be without merit if the record establishes that
trial counsel’s performance was not deficient or that the appel-
lant could not establish prejudice.12
As we have previously stated, an appellant is required to
specifically assign and argue his or her trial counsel’s alleg-
edly deficient conduct.13 This arises from a fundamental rule of
appellate practice. An alleged error must be both specifically
assigned and specifically argued in the brief of the party assert-
ing the error to be considered by an appellate court.14 A gen-
eralized and vague assignment of error that does not advise an
appellate court of the issue submitted for decision will not be
considered.15 Similarly, an argument that does little more than
restate an assignment of error does not support the assignment,
and an appellate court will not address it.16
It naturally follows that on direct appeal, an appellate court
can determine whether the record proves or rebuts the merits
of a claim of ineffective assistance of trial counsel only if it
has knowledge of the specific conduct alleged to constitute
deficient performance.17 An appellant must make specific alle-
gations of the conduct that he or she claims constitutes defi-
cient performance by trial counsel when raising an ineffective
assistance claim on direct appeal.18
12
Id.
13
State v. Filholm, supra note 1.
14
Id.
15
Id.
16
Id.
17
Id.
18
Id.
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STATE v. SUNDQUIST
Cite as 301 Neb. 1006
(a) Failure to File Statement of Errors
Sundquist assigns that his counsel failed to file a statement
of errors in his appeal to the district court. The State concedes
that counsel did not file a statement of errors, but argues that
Sundquist suffered no prejudice, because the district court
addressed Sundquist’s challenges on appeal despite counsel’s
deficient performance. We note that the district court consid-
ered the argument advanced by Sundquist in his appeal to that
court. The district court found no merit to Sundquist’s argu-
ment as to the filing of a statement of errors. We agree.
The district court considered the argument advanced by
Sundquist in his appeal to that court, despite the absence of a
statement of errors. At the close of arguments, the district court
stated, “I don’t find any error that occurred at the County Court
level. As I just indicated to your plea offer argument, is — I
would say it’s frivolous. . . . The State is under no obligation to
re-offer you any type of plea agreement once you rejected it.”
The court’s statement at the close of argument indicates that
the court addressed the argument raised by Sundquist despite
the fact that the alleged error—the refusal to require the State
to reoffer a previously rejected plea agreement—had not been
assigned in a statement of errors to the court. Furthermore, as
we conclude below, Sundquist was not entitled to a reoffer of
the plea agreement. As such, Sundquist was not prejudiced by
his counsel’s inadequate performance.
This case is reminiscent of State v. Stubbendick,19 a case
heard by the Court of Appeals. In Stubbendick, the defend­
ant’s attorney likewise failed to file a statement of errors,
leaving the district court to limit its review to plain error.
The defendant argued that had counsel properly filed a state-
ment of errors which challenged the probable cause findings
regarding his operation of a vehicle on a public roadway and
the sufficiency of the evidence, the district court may have
19
State v. Stubbendick, No. A-14-232, 2014 WL 4825375 (Neb. App. Sept.
30, 2014) (selected for posting to court website).
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found in his favor on these issues. The Court of Appeals
applied Strickland, finding that the defendant’s arguments
did not demonstrate a reasonable probability that but for his
counsel’s allegedly deficient performance, the result of the
proceeding would have been different. The result is the same
in this case.
As such, there is no merit to Sundquist’s argument as to the
filing of a statement of errors.
(b) Failure to Make
“Persuasive” Arguments
Sundquist argues that he suffered ineffective assistance of
counsel at his second trial on April 20, 2017, where he claims
his counsel failed to make “persuasive” arguments to both the
county court and the district court on appeal concerning the
margin of error of the DataMaster.
First, Sundquist argues that his trial counsel should have
attacked either the admissibility or the accuracy of the
DataMaster results, or vigorously attacked the margin of error
of the DataMaster. Sundquist contends that at trial, his coun-
sel “made a half-hearted attempt at questioning the margin
of error.”20 Sundquist claims that his attorney should have
questioned the accuracy of the DataMaster and the difference
between a 5-percent margin of error allowed in a controlled
environment, as compared to the margin of error in an uncon-
trolled environment. We observe, however, that counsel raised
the issue of the DataMaster’s accuracy and the margin of error.
As such, counsel’s conduct was not deficient.
Sundquist next argues that on appeal to the district court, his
attorney failed to effectively argue in support of his position
that the State was required to reoffer the original plea agree-
ment. Again, we note the record demonstrates that counsel
raised the issue. Despite lacking legal authority for the posi-
tion, counsel nevertheless argued that the State should have
20
Brief for appellant at 8.
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Cite as 301 Neb. 1006
been required to reoffer the rejected plea agreement, because
the State failed to provide Gartner’s DataMaster certification at
the time the plea agreement was offered.
It is important to note that the district court properly observed
that under State v. Obermier,21 the State is not required to enter
the certification into evidence. Despite counsel’s effort, the dis-
trict court denied the appeal, further noting that it was, in the
opinion of the court, “frivolous.” Counsel cannot be deficient
in raising the very issue Sundquist now complains about, and
as such, there is no merit to Sundquist’s allegation.
As for the argument that the State was required to r­eoffer
the previously rejected plea agreement, the record shows that
despite being aware that case law did not support the posi-
tion that the State must reoffer the prior plea agreement,
Sundquist’s counsel argued that the State was required to
­reoffer the previously rejected plea agreement. Counsel based
that request on the State’s action in failing to disclose the offi-
cer’s chemical test machine certification. Because Sundquist
does not explain precisely what counsel should have argued in
an effort to prevail on this point, and because counsel clearly
raised the issue of the prior plea agreement, counsel’s conduct
was not deficient.
Sundquist also argues that the court erred and caused him to
have ineffective assistance of counsel when it declined to allow
Sundquist to be heard following the court’s ruling on the ­reoffer
of the plea agreement. The court observed that Sundquist was
represented by counsel and not entitled to address the court at
that time due to the presence of counsel on his behalf. We find
no error in the court’s ruling. We have noted that a defendant
does not have a right to any type of “hybrid representation,”
and it is within the trial court’s discretion whether to allow
such representation.22 The trial court did not err in refusing to
21
State v. Obermier, 241 Neb. 802, 490 N.W.2d 693 (1992).
22
State v. Wilson, 252 Neb. 637, 652, 564 N.W.2d 241, 253 (1997).
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allow Sundquist to be heard at a time when he was represented
by counsel.
There is no merit to these allegations.
(c) Failure to Argue Sundquist’s Performance
on Field Sobriety Tests Was Inconsistent
With Level of Intoxication Indicated
by Chemical Breath Test
Sundquist assigns that counsel was inadequate for failing to
challenge that Sundquist’s performance on the field sobriety
tests was inconsistent with the results of the chemical breath
test indicating the level of intoxication. We have combined
these assignments as they are indistinguishable. The record
demonstrates that Sundquist’s counsel had no grounds to
argue that Sundquist’s performance on the field sobriety tests
and lack of video evidence were inconsistent with the level
of intoxication shown by the chemical breath test results.
Gartner’s testimony indicated that Sundquist showed signs
of impairment on the field sobriety tests in that Sundquist
was unable to complete maneuvers, could not maintain his
balance, and failed to follow directions, all of which are
consistent with intoxication and none of which can be used
to establish that Sundquist was below a .150 breath alcohol
content level.
(d) Failure to Adequately Communicate
With Sundquist
Sundquist next alleges that counsel failed to adequately com-
municate with him. Sundquist alleges that prior to his second
trial, he requested that counsel hire an expert witness to deter-
mine the margin of error for the chemical breath test machine.
Sundquist claims he was unaware that counsel had failed to
obtain an expert until a week prior to trial. Further, Sundquist
alleges that he never discussed trial strategy with his attorney.
However, Sundquist fails to demonstrate how an expert would
have meaningfully contributed to his margin of error claim
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beyond the cross-examination of the State’s witnesses concern-
ing the particular DataMaster unit’s margin of error. Further, as
to Sundquist’s claim that counsel failed to communicate trial
strategy, the record contradicts Sundquist’s claims.
At the district court appeal, counsel is on record stat-
ing, “I’ve communicated all pleas to my client since I was
appointed. No pleas were ever offered, Judge, at the lower case
in County Court.” Further, Sundquist’s counsel followed the
trial strategy of highlighting the margin of error of the breath
test machine, a strategy that Sundquist was clearly aware of
as, by his own admission, he sought to hire an expert to lend
credibility to the argument regarding the margin of error.
Additionally, counsel clearly argued that Sundquist “wish[ed]
that he had the opportunity to plead to the lower charge,” a
statement that is accurate and was effectively communicated to
both Sundquist’s counsel and the court. Ultimately, however,
Sundquist failed to sufficiently allege facts that demonstrate
deficient performance. Further, the evidence against Sundquist
was overwhelming and better communication would not have
changed the weight of the evidence.
There is no merit to this allegation.
(e) Sundquist Claims State Interfered With Right to
Effective Assistance of Counsel in First Trial
by Not Disclosing Gartner’s Certification
Sundquist also argues that the State interfered with his
counsel’s communication by withholding information about
Gartner’s chemical breath test machine certification at the time
of the plea offer. Additionally, Sundquist contends that his due
process rights were violated when he was denied the opportu-
nity to make a knowing and voluntary decision regarding the
initial plea offer.
We turn first to whether Sundquist waived his right to
appeal the issue regarding the plea agreement. The State cor-
rectly asserts that Sundquist’s claim regarding the prosecu-
tion’s failure to disclose information during a plea offer is not
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properly before the court. The State, relying on Pennfield Oil
Co. v. Winstrom,23 grounds its argument on the fact that in the
first appeal, Sundquist had the opportunity and the incentive
to raise the claim regarding the plea agreement, noting that
Sundquist waived the issue by failing to raise the claim on his
first appeal.
[11] In Pennfield Oil Co., we noted that under the law-of-
the-case doctrine, a well-recognized waiver rule has emerged:
A decision made at a previous stage of litigation, which could
have been challenged in the ensuing appeal but was not,
becomes the law of the case; the parties are deemed to have
waived the right to challenge that decision, for it would be
absurd that a party who has chosen not to argue a point on a
first appeal should stand better with regard to the law of the
case than one who had argued and lost.
The State also relies on U.S. v. Henry,24 in support of its
argument. In Henry, the U.S. Court of Appeals for the District
of Columbia Circuit stated, “It is well-settled that ‘where an
argument could have been raised on an initial appeal, it is inap-
propriate to consider that argument on a second appeal follow-
ing remand.’”25
Here, Sundquist had the opportunity and the incentive to
raise the claim regarding the plea agreement during his origi-
nal appeal following his first trial and conviction. Sundquist
failed to do so and is therefore bound by the law-of-the-case
doctrine.
Sundquist waived this claim by failing to appeal it during
the initial appeal that followed his first trial and conviction.
2. Claims of Constitutional Violations
Sundquist next contends that his constitutional rights were
violated in various ways. First, Sundquist argues that the
23
Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).
24
U.S. v. Henry, 472 F.3d 910 (D.C. Cir. 2007).
25
Id. at 913.
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State’s refusal to reoffer the same plea agreement at his sec-
ond trial, which he had rejected at his first trial, amounted to
vindictive prosecution, a due process violation. Sundquist also
assigns that he is being punished for “something other than the
crime he was charged with.” Next, Sundquist argues that his
second conviction and sentence violated the Double Jeopardy
Clause. Lastly, Sundquist argues that his right to a speedy trial
was violated.
(a) Vindictive Prosecution
Sundquist alleges that the State engaged in vindictive pros-
ecution by refusing to reoffer the previously rejected plea
agreement once the case had been remanded for a new trial.
Specifically, Sundquist points to a statement made by the State
during the second trial, noting that “‘[a]s an office policy, after
a jury trial, we don’t make plea offers.’”26 Sundquist relies on
Blackledge v. Perry 27 to support this claim.
We begin by observing that Sundquist is, of course, cor-
rect that punishing a person because he has done what the law
plainly allows him to do—in this case appeal his conviction—
is a due process violation “of the most basic sort.”28 The U.S.
Supreme Court has noted that while an individual certainly
may be penalized for violating the law, he just as certainly may
not be punished for exercising a protected statutory or consti-
tutional right.
But the Court went on to note that the imposition of punish-
ment is the very purpose of criminal proceedings. Therefore,
the presence of a punitive motivation does not provide an
adequate basis for distinguishing governmental action that is
justified as a legitimate response to criminal conduct from
governmental action that is an impermissible response to a
protected activity. The Court, in establishing the presumption
26
Brief for appellant at 13.
27
Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974).
28
Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d
604 (1978).
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of a vindictive motive, specifically noted that it had done so
only in cases in which a “reasonable likelihood of vindictive-
ness exists.”29
Moreover, Sundquist misunderstands Blackledge and its
implications on his case. In Blackledge, the U.S. Supreme
Court affirmed the issuance of a writ of habeas corpus because
the State charged a greater offense for the same conduct for
which the defendant had sought a de novo retrial of a lower
court conviction, finding that the State’s higher charge had a
potential vindictive nature.
In this case, Sundquist was not charged with a greater
offense than what he had previously appealed, nor was his
resulting sentence greater than that of his first trial. Sundquist
argues that because he was not reoffered a plea agreement, his
due process rights were violated. We disagree.
In United States v. Osif, 30 the U.S. Court of Appeals for the
Ninth Circuit noted that “a defendant does not have a consti-
tutional right to a plea bargain . . . nor, when he rejects a plea,
can he later object to the government’s decision to proceed
to trial on the counts originally charged.” Further, the Ninth
Circuit indicated that the vindictive prosecution doctrine does
not apply when neither the charge’s severity nor the sentence
is increased.
The factual background of Osif is on point in this case. The
defendant appealed from his conviction for second degree mur-
der pursuant to a plea agreement that provided for a 15-year
sentence. Before entering the plea, the defendant was tried
and convicted of first degree murder, but that conviction was
reversed on appeal. Prior to the initial trial, the government
offered a plea agreement with a 10-year sentence for second
degree murder, which the defendant rejected. On appeal, he
argued that the government’s refusal to reoffer the earlier, more
beneficial, plea agreement on remand amounted to vindictive
29
United States v. Goodwin, 457 U.S. 368, 373, 102 S. Ct. 2485, 73 L. Ed.
2d 74 (1982) (emphasis supplied).
30
United States v. Osif, 789 F.2d 1404, 1405 (9th Cir. 1986).
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prosecution. The Ninth Circuit disagreed, noting that not only
is there no constitutional right to a plea bargain, but that “vin-
dictiveness is not present if there are independent reasons or
intervening circumstances to justify the prosecutor’s action.”31
Here, neither Sundquist’s charge nor his sentence was
increased; rather, the State merely refused to reoffer, after an
intervening conviction on the original charge, the same plea
offer that was previously rejected by Sundquist before the
initial trial. Additionally, the State had already xpended the
resources to prepare and try the case. Further, the State had
obtained a conviction, giving it confidence that a second con-
viction was likely.
There is no merit to the allegation.
(b) Sundquist’s Claim That He Is Being Punished
for Something Other Than Crime With
Which He Was Charged
Assigned separately, but inextricably intertwined with
Sundquist’s prosecutorial vindictiveness claim, is Sundquist’s
claim that he is being punished for something other than the
crime for which he was charged. Sundquist attempts to ground
this argument in the fact that the State originally believed it
appropriate to allow him to plead to nonaggravated DUI, a plea
he rejected. He further argues that because his breath alcohol
content was less than 10 percent over a .150 breath alcohol
content, there was no reason to believe the trial court would
not have accepted the plea.
Sundquist can provide no legal or factual authority on which
he can ground this assignment of error. Further, his sentence
was within limits established for the crime for which he was
convicted. Therefore, this argument is without merit.
(c) Double Jeopardy Clause
Next, Sundquist argues that his conviction and sentence
violate the Double Jeopardy Clause. The State contends that
31
Id.
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Sundquist did not properly present the argument to the district
court and that the district court did not consider it; thus, the
argument was not preserved on appeal. The State cites to State
v. Lavalleur 32 to support its contention that on Sundquist’s
first appeal, the issue of double jeopardy was decided by
the Court of Appeals, and that the issue may not now be
relitigated on a subsequent appeal as it is now the law of
the case.
We agree and find that the Court of Appeals’ decision is the
law of the case. Therefore, Sundquist’s assignment of error is
without merit.
(d) Speedy Trial
Finally, Sundquist argues that the State violated his right to a
speedy trial. The State again argues that while Sundquist raised
the issue in the county court following remand, he did not pre­
sent the issue to the district court on appeal, thus preventing
the district court from considering the issue and allowing only
a review for plain error.
Sundquist maintains that had the State provided him with the
information concerning Gartner’s certification, he would have
agreed to the original plea agreement offered and pled guilty
to nonaggravated DUI. Sundquist argues that the State’s failure
required him to proceed through two trials. But the State was
not required to present the officer’s permit, nor was the State
required, at initial plea negotiations, to share the status of the
officer’s certification. Sundquist freely chose to take on a risky
defense strategy, and the State does not bear the responsibility
for that failed strategy.
Sundquist’s final assignment of error is without merit.
VI. CONCLUSION
The district court, sitting as an appellate court, did not err
in denying Sundquist’s appeal and affirming his conviction for
32
State v. Lavalleur, 298 Neb. 237, 903 N.W.2d 464 (2017).
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DUI, second offense aggravated, as well as his sentence of 18
months’ probation. We affirm.
A ffirmed.
Freudenberg, J., not participating.
Cassel, J., concurring.
I write separately to emphasize the duty of effective appel-
late counsel to file a statement of errors in an appeal of a
county court criminal case to the district court.
Sundquist was entitled to effective appellate counsel on his
appeal from county court to district court. A criminal defendant
has the right to the effective assistance of appellate counsel in
his or her first appeal as of right.1 In a Nebraska criminal case
tried in the county court, that first appeal runs to the district
court.2 Thus, Sundquist’s appeal to the district court was his
only appeal subject to the Sixth Amendment right to counsel.
To prevail on a claim of ineffective assistance of counsel
under the Strickland v. Washington 3 analysis, the defendant
must show that his or her counsel’s performance was deficient
and that this deficient performance actually prejudiced the
defendant’s defense.4 Here, the State conceded that Sundquist’s
appellate counsel’s failure to file a statement of errors was
deficient performance (that is, counsel’s performance did not
equal that of a lawyer with ordinary training and skill in crimi-
nal law 5). This court agrees, and I agree with the court.
1
See, Halbert v. Michigan, 545 U.S. 605, 125 S. Ct. 2582, 162 L. Ed. 2d
552 (2005); Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L.
Ed. 2d 539 (1987); Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed.
2d 821 (1985); Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d
341 (1974); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed.
2d 811 (1963).
2
See State v. Hughan, 13 Neb. Ct. App. 862, 703 N.W.2d 263 (2005).
3
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
4
State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).
5
State v. Allen, ante p. 560, 919 N.W.2d 500 (2018).
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This court’s opinion concludes that there was no prejudice
shown here. Again, I agree. Two reasons persuade me. First, at
the appeal hearing before the district court, Sundquist’s appel-
late counsel advanced the very argument that Sundquist, now
without counsel, urged to this court. Second, the record, which
the court’s opinion quotes, demonstrates that despite the failure
to file the statement of errors, the district court considered the
merits of Sundquist’s argument. In other words, the district
court did not apply the rule permitting it to review only for
plain error.6
But as I see this appeal, those two facts were the only rea-
sons not to apply a presumption of prejudice. United States v.
Cronic 7 provides narrow exceptions to the Strickland analy-
sis, where the reliability of the adversarial process is in such
doubt that prejudice to the defendant will be presumed, result-
ing in a conclusion of ineffective assistance of counsel.8 Two
of the three Cronic exceptions are (1) where the accused is
completely denied counsel at a critical stage of the proceed-
ings and (2) where counsel entirely fails to subject the pros-
ecution’s case to meaningful adversarial testing.9 Obviously,
Sundquist’s one and only counseled appeal as of right is
a critical stage of the proceedings against him. Although
Sundquist’s appellate counsel failed to file the required state-
ment of errors, at least he advanced the proposition Sundquist
urges to this court. And the district court considered whether
it constituted prejudicial error, which presents a much lower
threshold than plain error.10
6
See State v. Nielsen, ante p. 88, 917 N.W.2d 159 (2018).
7
United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657
(1984).
8
State v. Jedlicka, supra note 4.
9
See id.
10
See State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018) (plain error is
error, plainly evident from record, which prejudicially affects litigant’s
substantial right and, if uncorrected, would result in damage to integrity,
reputation, and fairness of judicial process).
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But it seems to me that it is only a short distance from the
situation here to the equivalent of a complete denial of counsel
on appeal. If appellate counsel files no statement of errors and
advances no arguments for reversal, which results in a cursory
review by the district court for plain error, it would be difficult
to avoid having to apply one or both of the Cronic exceptions
recited above.
This in turn could easily result in a reversal of the district
court’s decision on appeal and a remand for a new direct
appeal with new counsel. And it also implicates very basic eth-
ical duties of Nebraska lawyers.11 These potential consequences
dictate that defendants’ counsel in criminal case appeals from
county court to district court should always file a timely state-
ment of errors.
Miller-Lerman, J., joins in this concurrence.
11
See Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (rev. 2017) (competence) and
3-501.3 (diligence).