State v. Dubray

Decisions of the Nebraska Court of Appeals
782 21 NEBRASKA APPELLATE REPORTS
this matter to the district court for the purpose of holding a
hearing within 30 days of the mandate for entry of an order in
conformity with this opinion. Furthermore, we order that Jacey
be appointed a guardian ad litem to assist Jacey in the future in
determining matters related to whether or not it is in her best
interests to renew visitation with Darla.
CONCLUSION
For the reasons set forth above, we affirm in part, and in part
reverse the decision of the district court and remand the cause
for further proceedings consistent with this opinion.
Affirmed in part, and in part reversed and
remanded for further proceedings.
State of Nebraska, appellee, v.
Ronnie Dubray, Jr., appellant.
___ N.W.2d ___
Filed February 25, 2014. No. A-13-246.
1. Sentences: Prior Convictions: Habitual Criminals. Anyone who has been
twice convicted of a crime, sentenced, and committed to prison, in Nebraska or
any other state or by the United States, for terms of not less than 1 year each
shall, upon conviction of a felony committed in Nebraska, be deemed to be a
habitual criminal.
2. Habitual Criminals: Indictments and Informations. When punishment of an
accused as a habitual criminal is sought, the facts with reference thereto shall be
charged in the indictment or information which contains the charge of the felony
upon which the accused is prosecuted.
3. Sentences: Prior Convictions: Habitual Criminals. The statutory provisions
concerning habitual criminals do not create a new or separate offense, but provide
merely that the repetition of criminal behavior aggravates guilt and justifies a
greater punishment than would otherwise be considered.
4. Sentences: Prior Convictions: Habitual Criminals: Indictments and
Informations. The essential allegations which an information must contain to
sufficiently set forth a charge that a defendant is a habitual criminal are that the
defendant has been (1) twice previously convicted of a crime, (2) sentenced, and
(3) committed to prison for terms of not less than 1 year each.
Appeal from the District Court for Lancaster County: Steven
D. Burns, Judge. Affirmed.
Decisions of the Nebraska Court of Appeals
STATE v. DUBRAY 783
Cite as 21 Neb. App. 782Dennis R. Keefe, Lancaster County Public Defender, and
Shawn Elliott for appellant.
Jon Bruning, Attorney General, and Carrie A. Thober for
appellee.
Inbody, Chief Judge, and Irwin and Pirtle, Judges.
Irwin, Judge.
I. INTRODUCTION
Ronnie Dubray, Jr., appeals an order of the district court for
Lancaster County, Nebraska, allowing the State to amend the
information related to a habitual criminal charge at the habitual
criminal hearing. On appeal, Dubray asserts that it was error to
allow amendment of the information at that point and that the
court erred in failing to specifically rule on the admissibility of
one of four prior offenses proffered by the State to demonstrate
that Dubray is a habitual criminal. We find that the allowed
amendment concerned only historical facts and not information
necessary to the pleading and that there was sufficient properly
considered evidence to support the habitual criminal finding.
We affirm.
II. BACKGROUND
Dubray was charged by information with possession of
a controlled substance and being a habitual criminal. With
respect to the habitual criminal charge, the State alleged in the
information that Dubray had “been twice convicted of a crime,
sentenced and committed to prison, in this or any other state
or by the United States . . . for terms of not less than one year
each.” The State also made more specific assertions, indicating
particular timeframes, counties of origin, underlying charges,
docket numbers, and particular ranges of sentences for three
alleged prior convictions.
Dubray ultimately entered a plea to possession of a con-
trolled substance. Subsequently, a hearing was held on the
assertion that Dubray is a habitual criminal. At that hearing,
the State moved to file an amended information. The State
specifically requested to amend the particular assertions con-
cerning the first proffered prior conviction to reflect a different
Decisions of the Nebraska Court of Appeals
784 21 NEBRASKA APPELLATE REPORTS
county of origin and docket number and to add a fourth prof-
fered prior conviction.
The State provided exhibits consisting of e-mail exchanges
between Dubray’s counsel and the State indicating that the
State had provided notice to Dubray about the particular prior
offenses it intended to rely upon. The State had notified Dubray
about the specific first three prior offenses asserted in the
original information more than 5 months prior to the habitual
criminal hearing, and had specifically indicated that the wrong
county of origin had been pled more than 2 months prior to the
habitual criminal hearing. The State notified Dubray about the
fourth prior offense, sought to be added in the amended infor-
mation, more than 1 month prior to the habitual criminal hear-
ing. Dubray’s counsel acknowledged that he had no objection
to the sufficiency of notice provided concerning the specific
prior offenses the State was relying on to demonstrate that
Dubray is a habitual criminal.
Dubray objected to the State’s motion to amend the infor-
mation. Although Dubray acknowledged having notice of the
specific prior convictions the State was alleging, he none-
theless objected to the State’s being allowed to change the
county of origin for one of the proffered prior convictions
and to its being allowed to add an additional prior convic-
tion. Dubray also objected to the court’s use of one of the
other proffered prior offenses because the State’s evidence
indicated a sentence of “one year” without specifying a mini-
mum sentence.
The district court ultimately overruled Dubray’s objections
to the State’s request to amend the information. The court
specifically found that the State was not required to plead the
specific details related to alleged prior offenses and that the
subject of the State’s amendment to the information was not
related to information required to be pled. The court noted
that Dubray had notice of the specific proffered prior convic-
tions well in advance of the hearing and that there was no due
process issue. The court declined to specifically rule on the
admissibility of the one prior offense for which the evidence
indicated a sentence of “one year” and to which Dubray had
objected, but the court found that the evidence related to the
Decisions of the Nebraska Court of Appeals
STATE v. DUBRAY 785
Cite as 21 Neb. App. 782other three proffered prior convictions was sufficient to estab-
lish that Dubray is a habitual criminal. The court sentenced
Dubray, and this appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Dubray has assigned two errors. First, he asserts
that the district court erred in permitting the State to amend
the information at the habitual criminal hearing. Second, he
asserts that the court erred in failing to rule on the admissibil-
ity of the prior offense for which he had received a sentence
of “one year.”
IV. ANALYSIS
There is little dispute about the appropriate authority to
guide our resolution of this case. In the district court and in
briefs on appeal to this court, the parties have cited to and
urged use of State v. Harig, 192 Neb. 49, 218 N.W.2d 884(1974), as being dispositive. The parties differ on the outcome
suggested by that case. We agree that the case sets forth the
appropriate analysis and resolution, and we conclude that there
is no merit to Dubray’s assertion on appeal that it was error to
allow the State to amend the information.
[1,2] Neb. Rev. Stat. § 29-2221(1) (Reissue 2008) pro-
vides that anyone who “has been twice convicted of a crime,
sentenced, and committed to prison, in this or 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.” Section
29-2221(2) provides that “[w]hen punishment of an accused as
a habitual criminal is sought, the facts with reference thereto
shall be charged in the indictment or information which con-
tains the charge of the felony upon which the accused is pros-
ecuted . . . .”
In State v. Harig, supra, the Nebraska Supreme Court
addressed a substantially similar factual situation. In that case,
the State charged the defendant with being a habitual criminal.
The State alleged the basic language of § 29-2221(1), alleg-
ing that the defendant had been convicted of two prior crimes
and sentenced and committed to prison to terms of not less
Decisions of the Nebraska Court of Appeals
786 21 NEBRASKA APPELLATE REPORTS
than 1 year on each. The State also alleged more particular
information about the prior offenses, including the specific
dates of the prior convictions. The State, however, misstated
the date of one prior offense. Based on the evidence adduced
at the habitual criminal hearing, the State sought to amend the
information to correct the mistaken date of the proffered prior
offense, and the court allowed the amendment over the defend­
ant’s objection.
[3] The Nebraska Supreme Court iterated that the statu-
tory provisions concerning habitual criminals do not create a
new or separate offense, but provide merely that the repetition
of criminal behavior aggravates guilt and justifies a greater
punishment than would otherwise be considered. See State v.
Harig, supra. The court recognized that any mistake concern-
ing details of an alleged prior offense would have no impact
on the allegation of the underlying current felony or felonies.
See id.[4] The court recognized that “the time of a prior conviction
is only a historical fact.” Id. at 55, 218 N.W.2d at 889. The
court iterated that under Nebraska law, the essential allega-
tions which an information must contain to sufficiently set
forth a charge that a defendant is a habitual criminal are that
the defendant “has been (1) twice previously convicted of a
crime, (2) sentenced, and (3) committed to prison for terms
[of] not less than 1 year each.” Id. The court specifically held
that “[t]hese are ‘the facts with reference thereto’ referred to
in [§] 29-2221.” Id. (emphasis supplied). The court continued
and recognized that although “it is undoubtedly desirable and
helpful to have the dates of the prior felonies alleged in the”
charging document, the absence of such allegations would not
render the pleading insufficient. State v. Harig, 192 Neb. 49,
55, 218 N.W.2d 884, 889 (1974).
In State v. Harig, supra, the Supreme Court found that the
State’s mistake regarding the date of one of the proffered prior
offenses set forth in the information was not a violation of
the requirement in § 29-2221(2) that the facts with reference
to the alleged prior offenses needed to be set forth. The court
also found that there would be no constitutional deficiency
from failing to make such an assertion in the information
Decisions of the Nebraska Court of Appeals
STATE v. DUBRAY 787
Cite as 21 Neb. App. 782“so long as means are and were provided for the defendant
to obtain the information relative to the specific dates of the
offenses relied upon as prior felonies” to support the habitual
criminal charge. State v. Harig, 192 Neb. at 57, 218 N.W.2d at
890. In State v. Harig, supra, the fact that the defendant had
been “aware for at least 2 weeks prior to the [habitual crimi-
nal] hearing that the State was going to ask leave to amend
the information” and the trial court’s willingness to offer a
continuance if needed by the defendant demonstrated that
the defendant was not prejudiced by the motion to amend the
information. Id.The present case is substantially similar, and the outcome
should be the same. As in State v. Harig, supra, the State in
the present case specifically pled the language of § 29-2221(1)
to allege that Dubray had twice previously been convicted,
sentenced, and committed to prison for terms of not less than
1 year each. As the Supreme Court specifically held, those
are the facts that are required to be pled. Also, as in State v.
Harig, supra, the State in the present case elected to provide
more specific information to Dubray by alleging details about
the prior offenses it intended to use to support the habitual
criminal charge. Those allegations, however, were unnecessary
and amounted to historical facts, not essential items that were
required to be pled.
As in State v. Harig, supra, Dubray was well aware, for a
substantial time before the habitual criminal hearing, of pre-
cisely which prior offense the State was intending to use to
support the habitual criminal charge and was aware for several
weeks prior to the hearing that the State would seek to amend
the information to remedy the mistaken details it had pled. As
in State v. Harig, supra, there is no showing or assertion that
Dubray was in any way prejudiced by the mistake or by the
State’s motion to amend the information.
As such, as the Supreme Court held in State v. Harig, supra,we conclude that there was no error by the district court in
allowing the State to amend the information. Dubray’s asser-
tions to the contrary are meritless.
In light of our conclusion that the district court did not err
in allowing the State to amend the information, the evidence
Decisions of the Nebraska Court of Appeals
788 21 NEBRASKA APPELLATE REPORTS
adduced concerned four specific prior convictions. One of
those is a prior conviction to which Dubray has raised no
challenge whatsoever. The remaining three alleged prior con-
victions include the one prior conviction for which the State
amended and changed the county of origin, the new prior
conviction for which the State amended and added to the
information, and the one prior conviction for which the evi-
dence indicates that Dubray was sentenced to a term of “one
year.” Other than his assertions that the court should not have
allowed the State to amend the information, Dubray has raised
no challenge to the sufficiency of the evidence concerning the
prior conviction for which the State amended and changed
the county of origin or the new prior conviction for which the
State amended and added to the information. In light of our
conclusions above, having found no error in the court’s allow-
ing the amendment, the evidence thus demonstrates that the
State adduced evidence of three prior convictions for which
Dubray was sentenced and committed to terms of not less than
1 year.
Like the district court, we decline to further address
Dubray’s assertions concerning the remaining proffered prior
offense for which the evidence indicates he was sentenced to
a term of “one year.” Section 29-2221 provides that the State
is required to demonstrate two prior convictions, and regard-
less of the admissibility of the prior conviction for which he
was sentenced to “one year,” the State has adduced sufficient
evidence of three prior offenses. Thus, there is no need to con-
sider the fourth prior offense or whether it could appropriately
be considered.
V. CONCLUSION
We find no merit to Dubray’s assertions on appeal. The dis-
trict court did not err in allowing the State to amend the infor-
mation at the habitual criminal hearing, and the State adduced
sufficient evidence to demonstrate that Dubray is a habitual
criminal. We affirm.
Affirmed.