State v. Honken

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/19/2017 09:11 AM CST
- 352 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352State of Nebraska, appellee, v.
Robert S. Honken, appellant.
___ N.W.2d ___
Filed December 12, 2017. No. A-17-195.
1. Double Jeopardy: Lesser-Included Offenses: Appeal and Error.
Whether two provisions are the same offense for double jeopardy pur-
poses presents a question of law, on which an appellate court reaches a
conclusion independent of the court below.
2. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
5. Judgments: Appeal and Error. When reviewing questions of law,
an appellate court resolves the questions independently of the lower
court’s conclusion.
6. Double Jeopardy. The Double Jeopardy Clauses of the federal and
Nebraska constitutions protect against three distinct abuses: (1) a second
prosecution for the same offense after acquittal, (2) a second prosecution
for the same offense after conviction, and (3) multiple punishments for
the same offense.
7. Constitutional Law: Double Jeopardy. The protection provided by
Nebraska’s double jeopardy clause is coextensive with that provided
under the U.S. Constitution.
8. Criminal Law: Conspiracy: Double Jeopardy. Under the Double
Jeopardy Clause, the subdivision of a single criminal conspiracy into
multiple violations of one conspiracy statute is prohibited.
- 353 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 3529. Double Jeopardy. The traditional test used to determine whether two
charged offenses constitute only one offense is the Blockburger v.
United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), or
“same evidence,” test.
10. ____. Under the Blockburger v. United States, 284 U.S. 299, 52 S. Ct.
180, 76 L. Ed. 306 (1932), or “same evidence,” test, the offenses are
considered identical for double jeopardy purposes where the evidence
required to support conviction on one offense is sufficient to support
conviction on the other offense.
11. ____. A totality of the circumstances test for purposes of double jeop-
ardy considers five factors: (1) time, (2) identity of the alleged cocon-
spirators, (3) the specific offenses charged, (4) the nature and scope of
the activity, and (5) location.
12. Conspiracy. The principal element of a conspiracy is an agreement or
understanding between two or more persons to inflict a wrong against or
injury upon another, although an overt act is also required.
13. ____. A conspiracy is ongoing until the central purposes of the con-
spiracy have either failed or been achieved.
14. Conspiracy: Proof: Presumptions. Upon proof of participation in a
conspiracy, a conspirator’s continuing participation is presumed unless
the conspirator demonstrates affirmative withdrawal from the conspiracy.
15. Conspiracy. Withdrawal from a conspiracy must be effectuated by more
than ceasing, however definitively, to participate in the conspiracy.
16. ____. A coconspirator must make an affirmative action either by making
a clean break to the authorities or by communicating abandonment in a
manner calculated to reach coconspirators and must not resume partici-
pation in the conspiracy.
17. ____. In order to constitute multiple conspiracies, the agreements must
be distinct and independent from each other.
18. ____. There may be a continuing conspiracy with changing coconspira-
tors so long as there are never fewer than two conspirators.
19. ____. A gap wherein there are fewer than two coconspirators breaks the
continuity and the subsequent appearance of a new and different cocon-
spirator creates a new and separate conspiracy.
20. ____. It is necessary for one conspiracy to end before a second distinct
and separate conspiracy can be formed; the question is whether there
was a break, for an appreciable time, in the sequence of events, in order
to categorize the agreements as separate and distinct.
21. ____. As a practical matter, the fact that a conspirator in a two-person
conspiracy seeks a replacement for a departed would-be cohort is a
strong indication of the failure of one conspiracy and the creation
of another.
- 354 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 35222. Sentences. When imposing a sentence, the sentencing court is to
consider factors such as the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) motivation
for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime. However,
the sentencing court is not limited to any mathematically applied set
of factors.
23. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
24. ____. Traditionally, a sentencing court is accorded very wide discretion
in determining an appropriate sentence.
25. 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 issue will be procedurally barred.
26. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
27. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
ineffective assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing.
Appeal from the District Court for Hamilton County: R achel
A. Daugherty, Judge. Affirmed.
Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom &
Stehlik, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Inbody, Pirtle, and R iedmann, Judges.
R iedmann, Judge.
INTRODUCTION
Following a stipulated bench trial, Robert S. Honken was
found guilty of two counts of conspiracy to commit first degree
- 355 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352murder. The district court for Hamilton County sentenced him
to 45 to 50 years’ imprisonment on each count, to be served
concurrently. Honken now appeals his convictions and sen-
tences. Following our review of the record, we affirm.
BACKGROUND
This case arises out of Honken’s attempt to hire two differ-
ent men to kill his wife. The parties agreed upon the following
stipulated facts, which were submitted at trial:
On January 16, 2016, Honken contacted Derrick Shirley
via text message regarding a construction job. Honken and
Shirley met at Honken’s residence on January 18. After meet-
ing, Honken asked Shirley if he would kill Honken’s wife. The
parties entered into an agreement wherein Shirley would kill
Honken’s wife in exchange for monetary compensation.
Honken and Shirley communicated primarily through text
messages. Following Shirley’s subsequent arrest, law enforce-
ment recovered 659 text messages between the parties from
Shirley’s cell phone. In the messages, Honken provided a
substantial amount of information regarding his wife, her
residence and property, and her daily routine to assist Shirley
in planning her murder. The parties also discussed how the
murder would occur, and Honken requested on several occa-
sions that Shirley make the incident look like a robbery.
Shirley admitted that in the course of his agreement with
Honken, he drove by Honken’s wife’s residence approxi-
mately 20 times.
Honken gave Shirley $400 for the purchase of a firearm to
kill his wife. Shirley asked a friend to purchase the weapon, a
.22-caliber rifle, for him. The rifle was purchased on February
10, 2016, and Shirley took possession of it. Law enforcement
later recovered the rifle from his residence.
The final message between Honken and Shirley was sent
on February 16, 2016. In that message, Honken wrote to
Shirley:
“I was just wanting to say thank you for backing down
when you did. I had a short talk and I think it’s going to
- 356 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352lead to more talks and possibly a [sic] end to all of this?
I have [a] friend that said I have through the duration of
the divorce to prove to her that I want things to work
out. I have deleted the messages on my cloud and phone.
Thank you again for backing down and I don’t want you
to ever reconsider what I requested of you before. I think
it was a God [sic] thing that you stepped back. I would
like the .22 when it works out because I have a friend
down in the Harvard area that said he would keep it so
me and the boys can rabbit hunt around his farm! I can’t
thank you enough for heading [sic] the call and backing
down. This and any other messages will be deleted but
I’ll keep your contact information in the event we’re able
to work things out and de [sic] the remodel work. Thanks
again. . . .”
Shirley later told law enforcement that he did not go through
with the murder of Honken’s wife because he “had prayed
about it and just did not have the heart.” Shirley had no fur-
ther communication with Honken after the final message that
Honken sent on February 16, 2016.
On February 24, 2016, Honken left a voice mail for Mario
Flores regarding remodeling work at his home. In his voice
mail, Honken identified himself as “Sam.” Flores returned
the call the next day, and the parties agreed to meet at a
gas station in Aurora, Nebraska, on February 26. During the
meeting, Honken asked Flores if he knew anyone “who could
help him kill his wife.” Flores responded that he did know
people who could help, but that he would not get involved in
it himself.
That same day, Flores contacted the Aurora Police
Department to report his contact with “Sam.” Flores met with
an investigator from the Nebraska State Patrol, and during
the meeting, Flores made a telephone call to “Sam” that was
recorded by law enforcement. During the call, “Sam” stated
multiple times that he wanted his wife to be killed, discussed
the cost of hiring someone to do so, and discussed how and
- 357 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352when he would like her murder to occur. “Sam” repeatedly
affirmed that he was serious about killing her and identi-
fied himself as “Robert,” the owner of a business in Aurora.
Honken told Flores that he had previously paid someone
else $400 to kill his wife but that person had backed out and
taken his money. While Honken stated he did not recall that
person’s name, he provided sufficient information that law
enforcement was able to identify him as Shirley.
Flores told Honken that he did have the name and telephone
number of someone Honken could hire and that this person
would contact him in the next several days. Later that day,
Honken texted Flores from a different telephone number and
stated that he “would like the hitman” to contact him at that
number because it was a prepaid cell phone and he intended to
dispose of it when he no longer needed it.
On February 29, 2016, an investigator with the Nebraska
State Patrol made a recorded telephone call to the number
Honken provided and posed as a potential hitman. During the
call, Honken identified himself as both “Rob” and “Sam.”
Honken advised the investigator that he was in need of his
serv­ices. The investigator stated that he would call Honken
again with a time and place for them to meet, and Honken
responded that he would be able to do so.
Several hours later, the investigator placed another call to
Honken and instructed Honken to meet him at a truckstop in
Aurora. Honken drove to the specified location and met with
the investigator in the investigator’s vehicle. The investiga-
tor wore a wire during the meeting to record his conversation
with Honken.
Honken told the investigator that he wanted his wife
“‘gone’” and that he would like her to be killed by March
4, 2016. When the investigator requested “$3000 up front,”
Honken said that he would be able to obtain the money within
several days. He provided the investigator with a photo-
graph of his wife, as well as a map of her residence. Honken
showed the investigator his driver’s license, identifying him
- 358 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352as Honken, and stated that the address on his license was his
wife’s current address. Honken provided the investigator with
information as to what type of vehicle his wife drove and
when she was likely to be home alone. He also requested that
the investigator make her death “look like a robbery” and said
that he wanted it to be done “‘quick and easy.’”
The investigator requested $500 for expenses. Honken with-
drew the funds from an automated teller machine inside the
truckstop and gave them to the investigator.
Honken was pulled over shortly after departing the truck-
stop and placed under arrest. He admitted to law enforcement
that he had hired Shirley and the undercover investigator to
kill his wife. Regarding his agreement with Shirley, Honken
stated that Shirley had contacted him approximately 3 weeks
prior because he had gotten “cold feet” and decided not to go
forward with their plan.
In March 2016, the State charged Honken with two counts
of conspiracy to commit first degree murder in the county
court for Hamilton County. Following a preliminary hearing,
the county court found probable cause and bound the case over
to the district court. Honken was charged with the same two
counts, both Class II felonies, in district court. In the infor-
mation, the State charged Honken in count I with conspiracy
that began on or about January 1 through February 26, 2016.
Count II charged Honken with conspiracy that began on or
about February 26 through 29.
Honken filed a plea in abatement, asserting that the evidence
at the preliminary hearing was insufficient to show probable
cause that the alleged offenses had been committed and that
he had committed them. At a hearing on his motion, Honken
argued that he should have been charged with only one count
of conspiracy rather than two. The district court overruled
Honken’s motion, finding that there was probable cause for
two separate offenses.
Following the denial of his plea in abatement, Honken filed
a motion to dismiss either count of the information, claiming
- 359 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352that charging him with both counts violated his right against
double jeopardy. In response, the State filed an amended
information in which it shortened the time period during
which it alleged count I occurred. The amended information
asserted that the first offense occurred between January 16
and February 16, 2016, rather than between January 1 and
February 26.
Honken waived his right to a jury trial, and a hearing on his
motion to dismiss occurred simultaneously with his bench trial
on the stipulated facts set forth above. The district court over-
ruled Honken’s motion to dismiss, finding that Honken had
engaged in two separate conspiracies, and found him guilty
of two counts of conspiracy to commit first degree murder.
Honken was sentenced to 45 to 50 years’ imprisonment on each
conviction, with the sentences to run concurrently. Honken
now appeals from his convictions and sentences.
ASSIGNMENTS OF ERROR
Honken assigns, restated, that the district court erred in (1)
violating his right against double jeopardy by convicting and
sentencing him to multiple punishments for the same offense
and (2) imposing excessive sentences. Honken also argues that
he received ineffective assistance of his trial counsel.
STANDARD OF REVIEW
[1] Whether two provisions are the same offense for double
jeopardy purposes presents a question of law, on which an
appellate court reaches a conclusion independent of the court
below. State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
[2,3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. State v. Loding, 296 Neb. 670, 895 N.W.2d 669(2017). An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. Id.- 360 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352[4,5] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question of
law. Id. When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s con-
clusion. State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d
706 (2017).
ANALYSIS
Double Jeopardy.
Honken argues that the district court erred in overruling his
plea in abatement and his motion to dismiss and subsequently
finding him guilty of two counts of conspiracy to commit
first degree murder. He claims that his actions constituted one
continuous conspiracy and that his convictions for two sepa-
rate counts therefore violate his right against double jeopardy.
Honken asserts that he had the same objective throughout the
course of his agreements with both men he hired to kill his
wife and that the addition of a new coconspirator did not mean
that his original conspiracy with Shirley had ended.
[6-8] The Double Jeopardy Clauses of the federal and
Nebraska constitutions protect against three distinct abuses:
(1) a second prosecution for the same offense after acquit-
tal, (2) a second prosecution for the same offense after con-
viction, and (3) multiple punishments for the same offense.
State v. Kleckner, 291 Neb. 539, 867 N.W.2d 273 (2015). The
protection provided by Nebraska’s double jeopardy clause is
coextensive with that provided under the U.S. Constitution. Id.Under the Double Jeopardy Clause, the subdivision of a single
criminal conspiracy into multiple violations of one conspiracy
statute is prohibited. See United States v. Thomas, 759 F.2d
659 (8th Cir. 1985).
[9-11] “The traditional test used to determine whether [two
charged offenses constitute only one] offense is the Blockburger
‘same evidence’ test.” See United States v. Thomas, 759 F.2d at
661. See, also, Blockburger v. United States, 284 U.S. 299, 52
S. Ct. 180, 76 L. Ed. 306 (1932). Under this test, the offenses
- 361 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352are considered identical for double jeopardy purposes where the
evidence required to support conviction on one offense is suf-
ficient to support conviction on the other offense. See United
States v. Thomas, supra. However, the “‘same evidence’” test
has been found to be of questionable value in cases involving
issues of conspiracy and double jeopardy due to the possibil-
ity that prosecutors could rely on the use of such test to draw
up two sets of charges that include different overt acts. See id.
at 662. Instead, other courts have adopted a “‘totality of the
circumstances’” test that considers five factors: (1) time, (2)
identity of the alleged coconspirators, (3) the specific offenses
charged, (4) the nature and scope of the activity, and (5) loca-
tion. See id.[12-16] Neb. Rev. Stat. § 28-202(1) (Reissue 2008) provides:
A person shall be guilty of criminal conspiracy if, with
intent to promote or facilitate the commission of a
felony:
(a) He agrees with one or more persons that they or
one or more of them shall engage in or solicit the conduct
or shall cause or solicit the result specified by the defini-
tion of the offense; and
(b) He or another person with whom he conspired
commits an overt act in pursuance of the conspiracy.
The Nebraska Supreme Court has held that the principal ele-
ment of a conspiracy is an agreement or understanding between
two or more persons to inflict a wrong against or injury upon
another, although an overt act is also required. See State
v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016). Section
28-202(3) states that “[i]f a person conspires to commit a num-
ber of crimes, he is guilty of only one conspiracy so long as
such multiple crimes are the object of the same agreement or
continuous conspiratorial relationship.” A conspiracy is ongo-
ing until the central purposes of the conspiracy have either
failed or been achieved. Id. Indeed, upon proof of participa-
tion in a conspiracy, a conspirator’s continuing participation
is presumed unless the conspirator demonstrates affirmative
- 362 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352withdrawal from the conspiracy. Id. Such withdrawal must be
effectuated by more than ceasing, however definitively, to par-
ticipate in the conspiracy. See id. Rather, a coconspirator must
make an affirmative action either by making a clean break to
the authorities or by communicating abandonment in a manner
calculated to reach coconspirators and must not resume partici-
pation in the conspiracy. See id.Honken argues that the district court violated his right
against double jeopardy because his actions constituted one
continuous conspiracy with both men he hired to kill his wife.
He claims that he had the same objective throughout and
that the only element that changed was the addition of a new
coconspirator. Honken asserts that the district court’s finding
that his original agreement with Shirley had ended was in error
because the central purposes of that conspiracy had neither
failed nor been achieved, and therefore was ongoing.
We find little Nebraska case law that is pertinent to the
determination of when one conspiracy ends for purposes of
double jeopardy. However, looking beyond Nebraska, we find
the analysis contained in Savage v. State, 212 Md. App. 1, 66
A.3d 1049 (2013) instructive. In Savage v. State, the defend­
ant was sentenced on two counts of conspiracy to commit
first-degree burglary. On appeal, he argued that the con-
victions violated double jeopardy principles because he was
involved in only one conspiracy. The State argued, however,
that his agreements with two separate individuals constituted
two conspiracies.
[17-21] The court in Savage v. State, supra, found that
in order to constitute multiple conspiracies, the agreements
must be distinct and independent from each other. See id. It
held that there may be a continuing conspiracy with chang-
ing coconspirators so long as there are never less than two
conspirators. See id. Such a gap breaks the continuity and
the subsequent appearance of a new and different coconspira-
tor creates a new and separate conspiracy. See id. The court
summarized:
- 363 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352[I]t is necessary for one conspiracy to end before a sec-
ond distinct and separate conspiracy can be formed. .
. . The question is whether there was a “break,” for an
“appreciable time, in the sequence of events,” in order to
“categorize” the agreements as “separate and distinct.”
Purnell v. State, 375 Md. 678, 698, 827 A.2d 68 (2003).
As a practical matter, the fact that a conspirator in a two-
person conspiracy seeks a replacement for a departed
would-be cohort is a strong indication of the failure of
one conspiracy and the creation of another.
Savage v. State, 212 Md. App. at 25-26, 66 A.3d at 1063.
In the present case, while the statutory offenses that Honken
was charged with in both counts were identical, the counts
alleged that the offenses occurred over different and distinct
time periods. The amended information charged Honken, in
count I, with conspiracy to commit first degree murder on or
about January 16 through February 16, 2016. Count II charged
Honken with the same statutory offense, but alleged that it
occurred on or about February 26 through 29. As charged by
the State, a 10-day break separates the first conspiracy from
the second.
The stipulated facts presented at trial further support this
break in the timeline. The district court received into evidence
copies of the 659 text messages that Honken exchanged with
Shirley. The text messages began on or about January 16,
2016, and the last message was sent to Shirley from Honken
on February 16. The content of the final message that Honken
sent to Shirley repeatedly thanked Shirley for “backing out
of the plot” and “‘backing down.’” It further indicated that
Honken had spoken with his wife and believed an end to
“‘all of this’” may be forthcoming. He stated that he did not
want Shirley to ever reconsider what he had previously asked
Shirley to do. The stipulated facts also state that, while being
questioned following his arrest, Honken told law enforcement
that Shirley had contacted him approximately 3 weeks before
and “said he was getting cold feet and decided to not go
- 364 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352forward with killing [Honken’s wife].” Honken then attempted
to contact Flores on February 24, and the pair met on February
26. It was during this meeting that Honken asked if Flores
knew anyone who would kill his wife.
It is apparent from the February 16, 2016, text that Shirley
had advised Honken by that date that he no longer wanted to
participate in the murder conspiracy. Ten days later, Honken
asked Flores if he knew anyone who would kill his wife. This
time period constitutes a break in the sequence of events suf-
ficient to categorize the agreements as separate and distinct.
The facts do not indicate that Honken was in contact with any-
one regarding his plan to kill his wife during that time nor did
he have an agreement with anyone to do so. In fact, his final
message to Shirley on February 16 indicated that he no longer
wished to pursue his plan to kill her and Honken specifically
asked Shirley to never reconsider his previous request to kill
his wife. While Honken later entered into an agreement with
the same objective, this gap of 10 days between such agree-
ments and the addition of a new and different coconspirator
suggests that the later agreement was a new and separate
conspiracy. See Savage v. State, 212 Md. App. 1, 66 A.3d
1049 (2013).
Furthermore, under Nebraska law, a conspirator may with-
draw from a conspiracy through an affirmative action. One
such manner of withdrawal is through communication of
abandonment in a manner that is calculated to reach cocon-
spirators and subsequent nonparticipation in the conspiracy.
See State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
Here, it is clear that Shirley effectively communicated his
abandonment of the conspiracy to Honken, his only cocon-
spirator, and that Honken in fact received such communica-
tion, as he acknowledged in his final message to Shirley. It
is undisputed that following February 16, 2016, Shirley had
no additional communication with Honken nor did he later
resume his participation in the conspiracy. These actions
constitute Shirley’s withdrawal from the conspiracy, effective
- 365 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352February 16. As a conspiracy necessarily requires an agree-
ment between two or more persons, the affirmative with-
drawal of one coconspirator from a two-person conspiracy
terminates that conspiracy.
We also look to the totality of the circumstances test out-
lined in United States v. Thomas, 759 F.2d 659 (8th Cir. 1985),
and the five factors used there in determining whether Honken
had engaged in multiple conspiracies or one continuous con-
spiracy. The first factor to consider is time. As discussed
above, the two counts of conspiracy cover two separate and
distinct time periods: the first count occurred from January
16 to February 16, 2016, and the second count occurred from
February 26 to 29. The stipulated facts do not allege any over-
lap between the two time periods, which are separated by a
period of 10 days.
The second factor to consider is the identity of the cocon-
spirators. Here, Honken’s coconspirator in count I was Shirley.
The evidence indicates that he withdrew from the conspiracy
on or about February 16, 2016, and did not resume participa-
tion. The second count of conspiracy involved Honken con-
tacting Flores, who then connected him with the undercover
investigator that Honken believed he had hired to kill his wife.
There is no overlap of identity between the coconspirators
involved in counts I and II.
The third factor is the specific offenses charged. Both counts
were brought under the same statute, § 28-202(4), as conspir-
acy to commit first degree murder.
The fourth factor is the nature and scope of the activ-
ity. While the objectives in both counts are the same, to kill
Honken’s wife, the overt acts taken in furtherance of this
objective differ. In count I, Honken’s agreement with Shirley,
it is alleged that in pursuance of the objective, one or both of
the parties exchanged $400, purchased a .22-caliber rifle, and
drove around the residence of Honken’s wife. Furthermore, it
is clear from the text messages between Honken and Shirley
that Honken provided substantial information regarding the
- 366 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352residence and his wife’s routine to Shirley and that Shirley
used that information to surveil Honken’s wife and her prop-
erty and even make contact with her. Shirley admitted that he
had driven by her property approximately 20 times during the
course of his agreement with Honken.
In count II, Honken’s contact with Flores and subsequent
agreement with the undercover investigator, it is alleged that
in pursuance of the objective, one or both parties met at a
previously specified location to discuss a murder for hire, paid
$500 as a downpayment for the murder of Honken’s wife, and
provided the undercover officer posing as a hitman with a pho-
tograph of Honken’s wife, as well as her address. While there
are similarities between some of the overt acts taken in both
counts and all of the acts were taken in pursuance of the same
objective, there is no overlap between specific acts, and the
actors, other than Honken, are entirely different.
The final factor to consider is location. Everything alleged
in both counts took place in Hamilton County, Nebraska.
However, in count I, the initial meeting between Honken
and Shirley took place at Honken’s residence in Aurora and
Shirley’s subsequent surveillance of Honken’s wife took place
in and around rural Hamilton County. In count II, the initial
meeting between Honken and Flores took place at a gas station
in Aurora and his meeting with the undercover officer took
place at a truckstop in Aurora. The locations involved in each
of the two counts are in relative proximity to one another but
they do not overlap as to any specific locations.
After taking all five factors into consideration, we find that
Honken engaged in two separate and distinct conspiracies.
While there are some similarities between several of the fac-
tors, the only one in which there was overlap was the offenses
charged. We do not find this factor dispositive. The remaining
factors and surrounding facts indicate that Honken participated
in two conspiracies that were separate in time, involved dif-
ferent coconspirators, and involved distinct locations and acts
taken in furtherance of the conspiracies.
- 367 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352Honken’s reliance on the proposition of law that a con-
spiracy is ongoing until its purpose has either failed or been
achieved is misplaced. He ignores the fact that a conspirator
may withdraw from a conspiracy through an affirmative act.
We find that Shirley did withdraw from the conspiracy on or
before February 16, 2016, which terminated the conspiracy
with Honken. Honken did not engage in a new agreement
with anyone to kill his wife until 10 days later, at his meeting
with Flores. Shirley’s withdrawal and the 10-day break in time
between the two agreements indicate that Honken’s subsequent
conspiracy was separate and distinct from the first. This is fur-
ther supported by the differences between the parties involved
in each agreement, the specific locations involved, and the
overt acts taken in furtherance of the agreements.
Because we determine that the district court correctly found
that Honken engaged in two separate and distinct conspira-
cies, we find no double jeopardy violation and no merit to this
assignment of error.
Excessive Sentences.
Honken argues that the district court erred in imposing
excessive sentences. He claims that the court did not ade-
quately consider mitigating factors such as his mental health
issues and the lack of violence in the commission of the
offenses. Honken also argues that the district court appeared to
sentence him for each conviction as if the underlying offense,
the murder of his wife, had taken place, rather than sentencing
him for the conspiracy to commit such offense.
[22-24] When imposing a sentence, the sentencing court is
to consider factors such as the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense and (8) the amount of violence involved
in the commission of the crime. However, the sentencing court
is not limited to any mathematically applied set of factors.
- 368 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352State v. Dehning, 296 Neb. 537, 894 N.W.2d 331 (2017). The
appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life. Id. Traditionally, a
sentencing court is accorded very wide discretion in determin-
ing an appropriate sentence. State v. Loding, 296 Neb. 670, 895
N.W.2d 669 (2017).
Honken was found guilty of two counts of conspiracy to
commit first degree murder, a Class II felony, and was sen-
tenced to 45 to 50 years’ imprisonment on each count, to be
served concurrently. He was also given credit for 327 days
served. Class II felonies are punishable by a minimum of 1
year’s imprisonment and a maximum of 50 years’ imprison-
ment. Neb. Rev. Stat. § 28-105 (Reissue 2016). Honken’s sen-
tences are both within the statutory limits.
Honken argues that the district court did not give adequate
consideration to mitigating factors, such as his use of alcohol,
sleeping pills, and OxyContin around the time of the offenses,
as well as his prior suicidal thoughts. Honken claims that he
had previously been a “law-abiding citizen” with only two traf-
fic offenses on his record. Brief for appellant at 28. He argues
that he was diagnosed as having bipolar disorder subsequent
to his incarceration and believes his mental health issues had
affected his actions in this case. Honken claims that the district
court should have considered the fact that there was no physi-
cal violence involved in the commission of the offenses and
that no one was physically harmed.
The evidence shows that Honken sought out two different
men to kill his wife over a month apart and then planned how
the murder was to occur in a deliberate and calculated manner.
Honken’s actions included frequent contacts with these men,
often on a daily or near-daily basis. While Honken alleges
that he was using various substances around the time of the
offenses, nothing in the record suggests that he was under
the influence of any such substances during the commission
- 369 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352of the offenses, which took place during a period of greater
than 1 month. Similarly, there is nothing to suggest that
his mental health was impaired either by his past suicidal
thoughts or by any bipolar-related disorder when he commit-
ted these offenses.
Honken argues that no one was physically harmed in the
commission of these offenses. However, as the district court
pointed out at sentencing, that was due only to intervening
actors. It is clear from the content of Honken’s messages to
the hitmen and the desperation of his tone that Honken’s wife
would have been dead if it had been up to him. While Honken
argues that the district court improperly sentenced him as if
the murder had actually occurred, such argument is not sup-
ported by the record. The sentences imposed were properly
within the statutory limits for conspiracy to commit first
degree murder.
We note that in imposing its sentences, the district court
stated that it had considered the factors in Neb. Rev. Stat.
§ 29-2260 (Supp. 2015), the presentence investigation report,
the hundreds of text messages between Honken and Shirley,
Honken’s statements to probation and during allocution, the
victim impact statement and accompanying letters from the
victim’s friends and family, Honken’s diagnosis of unspeci-
fied bipolar disorder and unspecified personality disorder,
his history of anger issues, the fact that on several occasions
Honken sought to have the underlying crime committed in
front of his children, the eight sentencing factors specified
above, and Honken’s lack of acceptance of responsibility for
his actions.
The crimes for which Honken was convicted were extremely
serious and put his wife at great risk of bodily harm or death.
Honken’s persistence in seeking out someone to kill his wife
is alarming, as are the lengths he went to in order to plan
her death, such as providing her photograph, a map of her
residence, details about her daily routine, and suggestions for
how her death could occur. Honken made a lengthy statement
- 370 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352both in the presentence investigation report and during allocu-
tion, but he shifted blame for his actions onto Shirley, onto a
friend who allegedly came up with the idea, and even onto his
wife, whom he continued to blame for her shortcomings as a
spouse. We do not believe that Honken truly understands the
very serious nature of these offenses nor does he understand
the consequences that his actions have had on others, including
his three children. Because the sentences that were imposed
are properly within the statutory limits, we find no abuse of
discretion by the district court.
Ineffective Assistance of Counsel.
Honken claims that his trial counsel was ineffective for fail-
ing to raise potential defenses arising out of his mental health
issues. He argues that the presentence investigation report
indicated that around the time of the offenses, he had been
drinking, as well as using sleeping pills and OxyContin; that he
had previous suicidal thoughts; and that he had been later diag-
nosed with bipolar disorder. Although trial counsel raised these
issues at sentencing, Honken claims that they should have been
raised earlier as potential affirmative defenses.
[25-27] 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 per­
formance which is known to the defendant or is apparent
from the record. Otherwise, the issue will be procedurally
barred. State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017).
However, the fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean that
it can be resolved. The determining factor is whether the record
is sufficient to adequately review the question. Id. An ineffec-
tive assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing. State v. Abdullah,
289 Neb. 123, 853 N.W.2d 858 (2014).
Honken contends that his trial counsel was ineffective for
failing to raise his mental health issues as potential affirmative
- 371 -
Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. HONKEN
Cite as 25 Neb. App. 352defenses. However, we find that the record before us on direct
appeal is insufficient to resolve this claim. We have nothing
before us indicating whether Honken’s trial counsel contem-
plated raising such issues as potential defenses, whether his
failure to do so was strategic, when Honken’s psychological
evaluation took place, or what the results were of such an
evaluation. Accordingly, we cannot determine based on the
record before us whether Honken’s trial counsel rendered inef-
fective assistance.
CONCLUSION
Following our review of the record, we find Honken’s
assignments of error to be without merit or without a sufficient
record to resolve on direct appeal and therefore affirm.
A ffirmed.