State v. Allen

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. ALLEN
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
MAXWELL J. ALLEN, APPELLANT.
Filed July 12, 2022. No. A-21-749.
Appeal from the District Court for Frontier County: JAMES E. DOYLE IV, Judge. Affirmed.
Jerad A. Murphy, of Bruner, Frank, Schumacher & Husak, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
MOORE, BISHOP, and ARTERBURN, Judges.
BISHOP, Judge.
I. INTRODUCTION
Maxwell J. Allen pled no contest to two criminal counts of knowingly or intentionally
manufacturing, distributing, delivering, dispensing, or possessing with intent to manufacture,
distribute, deliver, or dispense a controlled substance in violation of Neb. Rev. Stat. § 28-416(1)
(Cum. Supp. 2018). One count involved cocaine and the other fentanyl. The Frontier County
District Court sentenced Allen to 25 to 30 years’ imprisonment (cocaine count) and 30 to 40 years’
imprisonment (fentanyl count); sentences to run concurrently. Allen claims that his sentences were
excessive and that he received ineffective assistance of trial counsel. We affirm.
II. BACKGROUND
On June 16, 2020, a young woman, J.S., was found dead in her bed by a friend, Gabriella
C., who stopped by in the early morning to make sure J.S. was awake for a scheduled class.
Gabriella left J.S.’ residence earlier that morning, at about 1 a.m., because J.S. told her a male
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friend was coming over. Gabriella knew that J.S. had purchased Adderall and cocaine from that
male friend in the past, and that he and J.S. had used cocaine together. J.S. asked Gabriella to call
her in the morning to make sure she was awake because of her class. When Gabriella attempted to
call J.S., starting at about 6:05 a.m., J.S. did not answer, so Gabriella went to J.S.’ residence at
approximately 7 a.m. Upon arrival, she saw J.S. lying in bed next to Allen. Gabriella attempted to
awaken J.S., but after rolling her over, she saw that J.S. was “blue and not breathing,” and she
called 9-1-1. Gabriella also observed a plastic bag with a “single round, green pill” and another
bag with “several round, light green pills” on the bed near J.S. After Gabriella called for help, she
saw Allen grab a brown box that she knew had cocaine in it and she saw him run outside to his
vehicle. When asked about the brown box, Allen told a deputy that it was in the trunk of his vehicle,
and when asked, he consented to a search of the vehicle. The deputy located the box which
contained a watch, a digital scale, a lighter, numerous “small Ziploc bags,” and a “Ziplock bag
containing a white powdery substance” which field and lab tested positive for cocaine. Following
that search, the deputy also searched J.S.’ home and located a phone and laptop. A search warrant
was obtained for Allen’s cell phone, which produced evidence of several discussions Allen had
regarding the distribution of light green pills tabbed with “M 30.” Lab reports showed that the light
green pills marked with “M 30” tested positive for Fentanyl, cocaine, and methylphenidate. An
autopsy of J.S. revealed Fentanyl in her system.
On August 21, 2020, the State filed an information charging Allen with: count I, knowingly
or intentionally manufacture, distribute, deliver, dispense, or possess with intent to manufacture,
distribute, deliver, or dispense a controlled substance, cocaine, a Class IIA felony, pursuant to Neb.
Rev. Stat. § 28-416(1) (Cum. Supp. 2018); count II, possession of cocaine, a Class IV felony,
pursuant to § 28-416(3); count III, possession of oxycodone, a Class IV felony, pursuant to
§ 28-416(3); count IV, possession of hydrocodone, a Class IV felony, pursuant to § 28-416(3);
count V, possession of amphetamine, a Class IV felony, pursuant to § 28-416(3); count VI,
possession of money used or intended to be used to facilitate a violation of § 28-416(1), a Class
IV felony, pursuant to § 28-416(17); and count VII, possession of cocaine without payment of the
tax required by Neb. Rev. Stat. § 77-4303 (Reissue 2016), a Class IV felony, pursuant to Neb. Rev.
Stat. § 77-4302 (Reissue 2016).
On April 8, 2021, the State filed an amended information charging Allen with: count I,
knowingly or intentionally manufacture, distribute, deliver, dispense, or possess with intent to
manufacture, distribute, deliver, or dispense a controlled substance, cocaine, an exceptionally
hazardous drug, a Class II felony, pursuant to § 28-416(1); count II, knowingly or intentionally
manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute,
deliver, or dispense a controlled substance, fentanyl, an exceptionally hazardous drug, a Class II
felony, pursuant to § 28-416(1); count III, possession of hydrocodone, a Class IV felony, pursuant
to § 28-416(3); count IV, possession of methylphenidate, a Class IV felony, in violation of
§ 28-416(3); count V, possession of money used or intended to be used to facilitate a violation of
§ 28-416(1), pursuant to § 28-416(17); and count VI, possession of cocaine without payment of
the tax required by § 77-4303, a Class IV felony, pursuant to § 77-4302.
A preliminary hearing was held on May 13, 2021, on counts I, II, and IV of the amended
information. After taking the matter under advisement, the district court found the State had shown
probable cause that the crimes alleged were committed by Allen.
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During a hearing held on July 12, 2021, the parties indicated that a plea agreement had
been reached in this case. According to the parties, the State would dismiss counts III through VI
in the amended information if Allen pled guilty or no contest to counts I and II. After the district
court advised him of his constitutional rights and the consequences of entering a plea of guilty or
no contest, Allen pled no contest to counts I and II. According to the factual basis provided by the
State:
On June 16, 2020, at approximately 7:16 a.m., the Frontier County Sheriff’s
Department received a 9-1-1 call from a female identified as [Gabriella].
[Gabriella] told dispatch that an ambulance was needed for an unresponsive
22-year-old female who was not breathing and blue, at [street address] in Curtis, Frontier
County, Nebraska.
A deputy with the Frontier County Sheriff’s department arrived, in uniform, driving
a fully marked patrol vehicle at 7:30 a.m.
Upon the deputy’s arrival, the deputy made contact with several EMTs who stated
that there was a deceased female in the home at [street address].
The deputy observed a male subject sitting on the front porch of the residence. The
EMTs took the deputy to where the female was located, and the female was laying [sic] in
a bed, on her back, in the bedroom located in the southwest corner of the residence.
When the deputy approached the female, the deputy observed obvious signs of
death, that were lividity and rigor mortis, that had been setting in.
The deputy identified the female as [J.S.] form [sic] previous contacts that the
deputy had with [J.S.]
[J.S.] was laying [sic] on the near side of the bed, closest to the door, on her back,
and there had been blood pooling in the lower portions of her arms and on the exposed skin
area of her back and legs.
Laying next to [J.S.] in the bed [were] two small Ziploc bags, and inside of each
bag were pills. In the Ziploc bags, one contained a single round, green pill, and the other
Ziploc bag contained several small, round, blue – light blue or light green pills.
The deputy, then, went outside the residence to speak with [Gabriella] about what
had occurred, as she had found [J.S.]
[Gabriella] stated that she was at [J.S.’] residence the night before and had left at
approximately 1:00 a.m., on June 16, 2020.
[Gabriella] said that the reason she was leaving was due to [J.S.] telling her that her
male friend was coming over, and that [Gabriella] knew that this was the friend that [J.S.]
had purchased Adderall and cocaine from in the past. As well, [J.S.] had used cocaine with
this friend in the past.
[Gabriella] said that prior to her leaving [J.S.’] residence, [J.S.] asked that
[Gabriella] call her in the morning to make sure she was awake because she had class at
7:00 a.m. in the morning.
[Gabriella] said that at approximately 6:05 a.m., she started to call [J.S.] and did
not receive a response, which is why she went to her home at approximately 7:00 a.m. and
found her laying [sic] in her bed, with a male subject laying [sic] next to her.
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[Gabriella] stated that she tried to shake [J.S.], and she was unable to wake up, and
rolled her over and found that she was blue and not breathing.
[Gabriella] stated that when she rolled [J.S.] over, she noticed two plastic bags with
pills in them, and [Gabriella] stated that one bag contained a single round, green pill, and
the other bag contained several round, light green pills.
[Gabriella] said that as soon as she saw [J.S.], she called 9-1-1, and then the deputies
approached.
[Gabriella] stated that after she called 9-1-1, she saw the male subject grab a brown
box, that [Gabriella] stated she knew had cocaine in it, and saw the male individual run
outside to his vehicle.
After speaking with [Gabriella], the deputy made contact with the male subject who
was sitting on the front porch of the residence. The male subject identified himself as the
defendant, Maxwell J. Allen.
The deputy asked Mr. Allen what had occurred, and Mr. Allen stated that he had
gotten to [J.S.’] home at approximately 1:00 a.m.
The deputy asked Mr. Allen about a brown box that might contain cocaine, and Mr.
Allen stated that the brown box was in the trunk of his vehicle.
The deputy asked Mr. Allen if he could search his vehicle, and Mr. Allen did
consent to such search, and the deputy did conduct a search of the 2018 Chrysler 300.
The deputy conducted the search, and within the vehicle the deputy identified a
black billfold that contained approximately $600 in cash.
The deputy searched the trunk of the vehicle [and] found numerous clothing items,
a sleeping bag, and . . . a brown box with the words “Louis Vuitton” on such box.
The deputy opened the box, and inside the box was a red and black watch, a red
and black digital scale, a light blue lighter, numerous small Ziploc bags, and a Ziploc bag
containing a white powdery substance.
The substance did field test positive for cocaine at that time.
After conducting that search, the deputy . . . did search [J.S.’] home, and did locate
a phone and laptop.
As a result of this incident, investigators with the Nebraska State Patrol and the FBI
did get a search warrant for Mr. Allen’s cell phone.
And had the matter gone to trial, the State would have produced evidence that
showed several discussions Mr. Allen had regarding the distribution of light green pills
tabbed with an “M 30.”
The Nebraska State Patrol Crime Lab did test the suspected cocaine, and did
identify the white powdery substance as cocaine, weighing 9.33 grams.
And the Nebraska State Patrol Crime Lab tested these six and a half light green pills
that were marked with a M and a 30, and those pills did test positive for Fentanyl, cocaine,
methylphenidate. Such pills were found in [J.S.’] bed where Mr. Allen and [J.S.] were
found.
In addition to an autopsy being completed on [J.S.], there was also a toxicology test
ordered, and such toxicology did show that [J.S.] did have Fentanyl in her system.
And these events all occurred in Frontier County, Nebraska.
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The district court accepted Allen’s no contest pleas to the charges in the amended
information and found him guilty of the same. The case was set for sentencing.
After a hearing held on August 18, 2021, the district court sentenced Allen to concurrent
sentences of 25 to 30 years’ imprisonment (count I, cocaine) and 30 to 40 years’ imprisonment
(count II, fentanyl). Allen was given 375 days’ credit for time served.
Allen appeals.
III. ASSIGNMENTS OF ERROR
Allen claims, reordered, that his sentences were excessive and that he received ineffective
assistance of counsel when his trial counsel failed to (1) object to the factual basis presented by
the State, (2) file multiple necessary pretrial motions, (3) appropriately advise Allen of the possible
“sentence range,” and (4) allow Allen the opportunity to review the presentence investigation
report.
IV. STANDARD OF REVIEW
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
Abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. In reviewing claims of ineffective assistance of counsel on direct
appeal, an appellate court decides only whether the undisputed facts contained within the record
are sufficient to conclusively determine whether counsel did or did not provide effective assistance
and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance.
State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).
V. ANALYSIS
1. EXCESSIVE SENTENCE
Allen was convicted of two counts, one involving cocaine and the other fentanyl, of
“knowingly or intentionally . . . manufacture, distribute, deliver, dispense, or possess with intent
to manufacture, distribute, deliver, or dispense a controlled substance” in violation of § 28-416(1),
each a Class II felony due to cocaine and fentanyl being classified as exceptionally hazardous
drugs. See § 28-416(2)(a) (violation of § 28-416(1) involving controlled substance classified in
Schedule II of Neb. Rev. Stat. § 28-405 (Cum. Supp. 2020) which is “exceptionally hazardous
drug” constitutes Class II felony). A Class II felony is punishable by 1 to 50 years’ imprisonment.
See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020). Allen was sentenced to concurrent sentences of
25 to 30 years’ imprisonment (count I, cocaine) and 30 to 40 years’ imprisonment (count II,
fentanyl); his sentences are within the statutory range.
When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense and (8) the violence involved in the commission of the crime. State v.
Lierman, supra. The appropriateness of a sentence is necessarily a subjective judgment and
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includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. Id.Allen was 24 years old at the time of sentencing. He has some juvenile history which we
will not recount here. His prior adult criminal history includes convictions for: “Criminal
Trespass” in 2015 (probation revoked; 180 days in jail); “Theft by Unlawful Taking” in 2015
(probation revoked; 90 days in jail); “Criminal Mischief” in 2015 (probation revoked; 30 days in
jail); “Criminal Mischief” in 2016 ($250 fine and $1,410 restitution); “Minor in Possession” in
2016 (probation revoked; 4 days in jail); “Assault-3rd Degree” in 2017 (60 days in jail);
“Possession of Marijuana” in 2019 ($300 fine); and “Possess or Use Drug Paraphernalia” in 2019
($100 fine). Allen also has convictions for multiple traffic offenses.
The probation officer conducted a “Level of Service/Case Management Inventory” as part
of the presentence investigation report (PSR). Allen was assessed as a “High Risk” to reoffend.
He scored “High Risk” in the criminogenic risk factor domains for criminal history, family/marital,
leisure/recreation, and procriminal attitude/orientation. He scored “Medium Risk” in the domains
for companions and alcohol/drug problem. He scored “Low Risk” in the domain for antisocial
pattern and “Very Low Risk” in the domain for education/employment.
At the sentencing hearing, Allen’s counsel emphasized that J.S.’ death was “something no
one intended.” Counsel acknowledged that Allen “did bring drugs with him that evening” to J.S.’
home, but asserted that it would be “erroneous” to effectively punish Allen for the death of J.S. He
also asked the district court to “take into consideration” Allen’s young age. He requested the court
impose concurrent sentences against Allen due to the charges constituting part of the same act.
Allen did not give an oral statement at the hearing, but instead deferred to his written
statement in the PSR. In his statement, Allen described that he was unaware of any pills in the
home or that J.S. had taken pills that night. He emphasized that he fully complied with police
during the investigation and expressed that the events culminating in J.S.’ death were “tragic.” He
further stated that he accepted the plea deal because his trial counsel “advised [him] that it was in
[his] best interest.”
The district court stated that it had considered the relevant sentencing factors in
determining the appropriate sentence to impose. The court found that Allen was not a fit candidate
for probation, as probation “would depreciate the very serious nature of this crime and promote
disrespect for the law.” The court then sentenced Allen as previously set forth.
In his brief on appeal, Allen claims that the district court abused its discretion by failing to
properly consider the sentencing factors. Allen describes that his young age provides “a significant
amount of time . . . to adjust and change his behaviors to be a more productive member of society.”
Brief for appellant at 13. He further emphasizes his compliance with law enforcement and his
desire to change his circumstances for the better. He also argues that the court misconstrued his
criminal history and failed to properly account for his drug addiction. Allen further contends that
the State “incorrectly and dangerously blamed” J.S.’ death on him during the course of the
sentencing hearing. Id. at 14.
We have reviewed the relevant sentencing factors in this case. While the sentences imposed
in this case were severe, we cannot say the district court abused its discretion. The appropriateness
of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation
of the defendant’s demeanor and attitude and all the facts and circumstances, and the sentencing
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court is accorded very wide discretion in imposing a sentence. See State v. Rogers, 297 Neb. 265,
899 N.W.2d 626 (2017). The controlled substances involved in this case constituted “exceptionally
dangerous” substances as defined by Nebraska law, and we conclude that the district court acted
within its discretion when accounting for the seriousness of the controlled substances found at the
scene. Accordingly, we find that Allen’s sentences were not excessive.
2. INEFFECTIVE ASSISTANCE OF COUNSEL
Allen alleges four claims of ineffective assistance of trial counsel. Generally, a voluntary
guilty plea or plea of no contest waives all defenses to a criminal charge. State v. Blaha, 303 Neb.
415, 929 N.W.2d 494 (2019). Thus, when a defendant pleads guilty or no contest, he or she is
limited to challenging whether the plea was understandingly and voluntarily made and whether it
was the result of ineffective assistance of counsel.
Allen has different counsel on direct appeal. When a defendant’s trial counsel is different
from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of
trial counsel’s ineffective performance which is known to the defendant or is apparent from the
record. Id. Once raised, the appellate court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims. State v. Lierman, supra. A record is
sufficient if it establishes either that trial counsel’s performance was not deficient, that the
appellant will not be able to establish prejudice, or that trial counsel’s actions could not be justified
as a part of any plausible trial strategy. State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020).
To 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. See, Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020). To show that counsel’s
performance was deficient, a defendant must show that counsel’s performance did not equal that
of a lawyer with ordinary training and skill in criminal law. State v. Blaha, supra. In a plea context,
deficiency depends on whether counsel’s advice was within the range of competence demanded
of attorneys in criminal cases. Id. When a conviction is based upon a guilty or no contest plea, the
prejudice requirement of an ineffective assistance of counsel claim is satisfied if the defendant
shows a reasonable probability that but for the errors of counsel, the defendant would have insisted
on going to trial rather than pleading guilty. Id. The two prongs of the ineffective assistance of
counsel test under Strickland may be addressed in either order. State v. Blaha, supra.With these principles in mind, we proceed to examine Allen’s four ineffective assistance
of trial counsel claims.
(a) Failure to Object to Factual Basis
Allen claims that his trial counsel was ineffective for failing to object to the factual basis
for the plea. He asserts that “the facts given during the factual basis [were] not sufficient to show
that [he] distributed a controlled substance for either count.” Brief for appellant at 9. With respect
to the charge concerning fentanyl, Allen argues that the factual basis must have included facts that
Allen “had possession of those M-30 pills [containing fentanyl], knew they contained fentanyl,
and then gave them to [J.S.]” Id. With respect to the charge pertaining to cocaine, Allen argues
that the factual basis did not allege that “the cocaine . . . in [his] possession . . . on the date of the
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incident[] was ever distributed” to J.S. Id. at 10. He claims that Gabriella’s statement to police that
she knew J.S. had purchased cocaine and Adderall from Allen in the past and the scales, lighter,
Ziploc bags, and money discovered in his vehicle “do not show he distributed any cocaine on the
day indicated in the information.” Id.
Allen’s argument focuses on the lack of evidence relating to him actually distributing the
controlled substances to J.S. However, both counts I and II of the amended information alleged,
pursuant to § 28-416(1), that Allen did “knowingly or intentionally manufacture, distribute,
deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled
substance.” As relevant here, the factual basis needed to establish only that Allen knowingly or
intentionally possessed the controlled substances with the intent to distribute, deliver, or dispense
them. The factual basis, as set forth above, showed that Allen: was found in the same bed as J.S.
and the “M-30” pills; had prior communications regarding “M-30” pills similar to those discovered
in J.S.’ home; had previously sold cocaine and Adderall to J.S.; and had cocaine, $600 in cash,
several Ziploc bags, a lighter, and an electronic scale his vehicle.
Allen claims trial counsel was ineffective for failing to object to the factual basis on the
grounds that Allen must have known that the pills contained fentanyl for the element of possession
to be satisfied. However, it is not required that a defendant know the precise substance in his or
her possession in order to be convicted for possession of a controlled substance; rather, the
defendant must simply know that the substance in his or her possession was a controlled substance.
See, State v. Neujahr, 248 Neb. 965, 973, 540 N.W.2d 566, 572 (1995) (“[T]he State must prove
that [defendant] knew the pills he possessed were a controlled substance, not that he knew the pills
were clorazepate”); State v. Lomack, 4 Neb. App. 465, 486, 545 N.W.2d 455, 469 (1996) (“[I]t
was unnecessary for the State to prove that [defendant] knew the substance in the baggie was
cocaine” and it “was sufficient for the State to prove that [defendant] knowingly possessed the
substance and that he knew of the nature or character of the substance as being a controlled
substance”). A person possesses a controlled substance when he or she knows of the nature or
character of the substance and of its presence and has dominion or control over it. State v. Rocha,
295 Neb. 716, 890 N.W.2d 178 (2017). Possession can be either actual or constructive, and
constructive possession of an illegal substance may be proved by direct or circumstantial evidence.
State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011). Accordingly, Allen could not have been
prejudiced by trial counsel’s failure to object to the factual basis on this ground, as it was not
necessary for the factual basis to demonstrate that he knew the “M-30” pills contained fentanyl. It
was apparent from Allen’s communications as described in the factual basis that he understood the
“M-30” pills to be a controlled substance.
Allen also argues that “[a]t most the State showed that [Allen] may have been in possession
of cocaine but did not present any evidence that it was distributed to [J.S.] or anyone else.” Brief
for appellant at 9. Circumstantial evidence may also support a finding that a defendant intended to
distribute, deliver, or dispense a controlled substance in the defendant’s possession. State v.
Howard, supra. Circumstantial evidence sufficient to establish possession of a controlled
substance with intent to deliver may consist of evidence of the quantity of the substance, equipment
and supplies found with the substance, the place where the substance was found, the manner of
packaging, and the testimony of witnesses experienced and knowledgeable in the field. Id. The
factual basis set forth Allen’s communications with J.S. the night prior to her death; J.S.’ use of
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drugs with Allen, including cocaine, on prior occasions; pills marked “M 30” were found near J.S.’
body; Allen’s phone revealed discussions about selling “M 30” pills to others; Allen was seen
taking a box to his car that contained several grams of cocaine; and baggies, a digital scale, and a
large sum of money were found in Allen’s car. Such evidence supports an intent to distribute,
deliver, or dispense a controlled substance.
We conclude that the factual basis was sufficient to prove all the essential elements for
possession of cocaine and fentanyl with intent to distribute, deliver, or dispense in violation of
§ 28-416(1). Accordingly, Allen could not have been prejudiced by his trial counsel’s failure to
object to the factual basis on the grounds he alleges on appeal.
(b) Failure to File Pretrial Motions
Allen assigns as error that his trial counsel was ineffective for “failing to file multiple
necessary pretrial motions.” He argues that the case was pending for 15 months and the “only
pretrial motion filed by [trial] counsel was a motion to take depositions, and a motion for
discovery.” Brief for appellant at 10. Allen claims that “a motion to suppress his statements given
at the time that the police arrived at the scene, and a motion to suppress the evidence found in
[Allen’s] car should have been filed.” Id. Allen contends that when he “made the incriminating
statements to police and consented to search his vehicle, [Allen’s] state of mind was such that he
was not able to voluntarily make statements to the police nor could he knowingly and voluntarily
consent to the search.” Id. He asserts that “the statements obtained by the police at that time were
also taken under duress.”
Allen does not specify which of his statements were incriminating, how they were taken
under duress, nor how any such statements or his consent to search his vehicle could have been
successfully challenged with a motion to suppress. He points only to Deputy John Bauer’s
testimony at the preliminary hearing where he claims Deputy Bauer admitted that Allen “seemed
like he had just woke up, confused and admitted to have THC in his system.” Brief for appellant
at 11. Allen claims that at that point, Deputy Bauer “should have realized that [Allen] was not in
any condition to be able to waive any of his constitutional rights and ceased questioning [Allen].”
Id. However, Allen does not specify what constitutional rights were waived or otherwise violated.
The record demonstrates that Deputy Bauer’s initial questioning of Allen did not occur while Allen
was in police custody, nor does Allen claim that he was subjected to any threats or coercion from
law enforcement at any point in time.
At the preliminary hearing, Deputy Bauer stated that he arrived “on the scene” at
approximately 7:35 a.m. on June 16, 2020. He initially observed “a white male subject sitting out
on the porch, in a chair.” Inside the residence, he observed the “EMTs” just inside the door and
then “a female that appeared to have been deceased and had obvious signs of death, that was lying
in a bed.” He also saw “two baggies of pills, Ziploc baggies of pills laying in the bed with the
deceased.” He noted that one baggie contained multiple pills that “were greenish or light blue in
color” and the other contained “one round green pill.” He secured the scene and then spoke with
witnesses. He first spoke with Gabriella who conveyed the information previously set forth,
including her belief that Allen and J.S. “were both sleeping” when Gabriella first arrived, and that
Allen subsequently grabbed a brown box that she knew to contain cocaine, left the residence, and
went to his vehicle. Deputy Bauer then went to the front porch and asked Allen “what had
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happened or occurred.” Allen told Deputy Bauer that he and J.S. had been “drinking whiskey
straight from the bottle when he arrived” at approximately 1 a.m. that morning, and “they just hung
out for a while and fell asleep in the bed.” Deputy Bauer then asked about the brown box that
might contain cocaine, and Allen told him that it was in his car. Allen consented to a search of his
vehicle. Allen denied knowing anything about the pills that were found in the bed with J.S. and
denied having knowledge of J.S. “doing any illicit drugs or pills that night.” According to Deputy
Bauer, when Allen was sitting on the front porch, “he just seemed like he didn’t know – you know,
he had just woke up in the bed – got woken up in bed next to a deceased female, and was – I
wouldn’t say – distraught would not be the word I would use, but confused as to what was going
on, and he admitted to me that he did have – would have THC in his system that day[.]”
We find Allen’s claim related to trial counsel allegedly being deficient because a motion
to suppress statements or evidence seized from the search of the vehicle would have been
successful is merely conclusory and without legal support and analysis. He provides only general
legal propositions related to consent being given voluntarily, and not as the result of duress or
coercion, citing to State v. Prahin, 235 Neb. 409, 455 N.W.2d 554 (1990), and that the prosecution
has the burden to prove by a preponderance of the evidence that incriminating statements by the
accused were voluntarily given and not the product of coercion, citing to State v. Hernandez, 299
Neb. 896, 911 N.W.2d 524 (2018). Prahin involved a traffic stop where the request to search the
defendant’s vehicle was made while the defendant was in trooper’s vehicle and after the trooper
had issued a speeding citation, which was the basis for the traffic stop. Although the defendant in
Prahin was in police custody when the search was requested and consent was given, the Nebraska
Supreme Court affirmed the trial court’s determination that the defendant’s consent to search the
vehicle was voluntarily given, as there was no evidence that the trooper coerced or threatened the
defendant to induce him to consent to the search. In Hernandez, the defendant claimed that while
in police custody, his confession was not voluntarily made because he was still under the influence
of methamphetamine. The Nebraska Supreme Court affirmed the trial court’s decision to overrule
a motion to suppress statements he made in a video interview because there was no evidence of
coercion on the part of law enforcement and “‘intoxication does not automatically render a
confession involuntary.’” State v. Hernandez, 299 Neb. at 913, 911 N.W.2d at 540 (quoting U.S.
v. Jones, 842 F.3d 1077, 1083 (8th Cir. 2016)).
In Allen’s case, there was no evidence that Allen was in police custody, much less under
any coercion or threats from Deputy Bauer, when Allen spoke with him and gave consent to search
his vehicle. As the State points out, “Allen has not provided any argument or support as to why
the evidence seized from his vehicle could or should have been suppressed,” nor has Allen
“mapped out a legal pathway to success had his trial counsel filed that motion.” Brief for appellee
at 22. As also observed by the State, merely claiming that any statements were made under duress
because Allen had just awakened, was confused, and under the influence, is merely a conclusion
of fact or law that is not sufficient in demonstrating ineffective assistance of counsel on direct
appeal. See State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
We agree that Allen’s claim is conclusory in nature and lacks a coherent analytical
argument, and therefore, is insufficiently stated. See State v. Blake, supra. “Where an appellant’s
brief contains conclusory assertions unsupported by a coherent analytical argument, the appellant
fails to satisfy the requirement that the party asserting the alleged error must both specifically
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assign and specifically argue it in the party’s initial brief.” Id. at 800, 969 N.W.2d at 422. “A claim
insufficiently stated is no different than a claim not stated at all.” Id. “[A]bsent is what statements
and evidence would have been suppressed had the motion been made, and on what grounds.” Id.
“Counsel is not deficient for failing to file a meritless motion, and we will not search the record to
determine the possible grounds for pretrial motions a defendant on direct appeal asserts trial
counsel was deficient to make.” Id.
Allen has failed to allege what incriminating statements were made and what legal
authority would support excluding those statements merely because he had just awakened and may
have had THC in his system at the time he was initially questioned by Deputy Bauer while sitting
on the front porch. Further, at the time Deputy Bauer spoke with Allen, Allen was not yet in police
custody, nor was there any evidence whatsoever of any coercion or threats by Deputy Bauer or
any other law enforcement officers. Allen also fails to provide any analytical argument as applied
to the facts here that would support his claim that his consent to search his vehicle was not given
voluntarily. For consent to search to be voluntarily given, it must be a free and unconstrained
choice, not the product of a will overborn, and it cannot be given as the result of duress or coercion,
whether express, implied, physical, or psychological. See State v. Bray, 297 Neb. 916, 902 N.W.2d
98 (2017). Allen does not claim, nor was there any evidence, that law enforcement coerced or in
any way threatened Allen to induce him to consent to the search of his vehicle. This claim of
ineffective assistance of trial counsel fails.
(c) Failure to Advise Allen of Possible Sentencing Range
Allen claims that trial counsel was ineffective in failing to “appropriately advise [him] of
the possible sentence range.” Brief for appellant at 11. He claims that counsel “indicated to him
that he would likely only receive time for the 357 days that he had already served,” and he would
not have entered a plea if counsel had “given him more of an appropriate forecast[] or explained
. . . the significant possibility of a lengthy criminal sentence.” Id.We find that the record affirmatively refutes Allen’s claim. At the plea hearing, the district
court expressly informed Allen that counts I and II, both Class II felonies, were each punishable
by a maximum of 50 years’ imprisonment with a minimum sentence of 1 year’s imprisonment and
that each sentence could be imposed consecutively. Further, Allen affirmed that other than the plea
arrangement reached with the State, no one, including his attorney, had “made any promises to
[him] to get [him] to enter” his pleas of no contest. The record affirmatively refutes Allen’s claim
on appeal, and, accordingly, this claim of ineffective assistance of trial counsel fails.
(d) Failure to Provide PSR for Allen’s Review
Allen further contends that “trial counsel did not allow him to review the [PSR] prior to
sentencing.” Brief for appellant at 12. He argues that “there were comments in the presentence
investigation [that] were misunderstood and misinterpreted,” directing this court’s attention to
statements in the PSR indicating that Allen expressed he did not want probation. Id. Allen asserts
that he told the probation officer that he “wanted probation and realized probation was something
that could help him,” and trial counsel’s failure to review the PSR with him allowed these incorrect
statements to be considered by the district court without correction. Id.- 11 -
Allen’s counsel indicated at the sentencing hearing that he had reviewed the PSR and “went
over the bases of the report and the recommendations with” Allen. The district court did not
directly ask Allen whether he had also reviewed the PSR, but the court did expressly find that
Allen was not a “fit candidate for probation.” The court stated that in finding Allen to not be a fit
candidate, it had considered Allen’s “age,” “mentality,” “social and cultural background,”
“experiences,” “law abiding conduct,” and extensive “criminal record.” The court also described
that it considered the “nature of the offense,” the “motivation of the offense,” and the “seriousness
of the offense.” There is nothing in the record indicating that the court relied upon the probation
officer’s alleged misunderstanding of Allen’s statements; rather, the court evaluated the
circumstances surrounding Allen’s history and background and the circumstances of his present
offenses. Accordingly, we find that the record affirmatively refutes Allen’s claim on appeal, and
this claim of ineffective assistance of trial counsel therefore fails.
VI. CONCLUSION
For the reasons stated above, we find that Allen’s concurrent sentences were not excessive.
Accordingly, we affirm Allen’s sentences. We further conclude that all of Allen’s claims of
ineffective assistance of trial counsel fail.
AFFIRMED.
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