State v. Workman

Decisions of the Nebraska Court of Appeals
524 21 NEBRASKA APPELLATE REPORTS
contained eight letters of support for Podrazo from family
and friends.
More important in this case, of the factors for consider-
ation, are the nature of the offense and the amount of violence
involved in the crime. The injuries Podrazo inflicted on A.T.,
who was only 19 years old at the time of the assault, are
described above and were characterized by medical person-
nel as “[s]evere.” A.T. testified that when she woke up in the
hospital, she had pain everywhere, including in her vagina and
anus. When she was released from the hospital on Christmas
Day, she was still experiencing pain and had to use her hands
to move her legs to get out of bed. She was sent home from
the hospital with icepacks, wipes for her vaginal area to
help with the pain, and pain medication. A letter written by
A.T. and included in the presentence report describes the
significant emotional, mental, and physical impact Podrazo’s
actions had on her life. Because the sentences are supported
by competent evidence and within the statutory guidelines, we
conclude the district court did not abuse its discretion in the
sentences imposed.
V. CONCLUSION
For the foregoing reasons, we find no merit to Podrazo’s
assigned errors. We therefore affirm his convictions and
sentences.
Affirmed.
State of Nebraska, appellee, v.
Mathew W. Workman, appellant.
___ N.W.2d ___
Filed December 10, 2013. No. A-12-888.
1. Due Process. The determination of whether the procedures afforded an individual
comport with the constitutional requirements for procedural due process presents
a question of law.
2. Probation and Parole: Due Process. The minimal due process to which a
parolee or probationer is entitled also applies to participants in the drug court
program. This minimal due process includes (1) written notice of the time and
place of the hearing; (2) disclosure of evidence; (3) a neutral factfinding body
Decisions of the Nebraska Court of Appeals
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or person, who should not be the officer directly involved in making recom-
mendations; (4) opportunity to be heard in person and to present witnesses and
documentary evidence; (5) the right to cross-examine adverse witnesses, unless
the hearing officer determines that an informant would be subjected to risk of
harm if his or her identity were disclosed or unless the officer otherwise specifi-
cally finds good cause for not allowing confrontation; and (6) a written statement
by the fact finder as to the evidence relied on and the reasons for revoking the
conditional liberty.
3. Probation and Parole. A probation revocation hearing is not part of a criminal
prosecution or adjudication and therefore does not give rise to the full panoply of
rights that are due a defendant at a trial or a juvenile in an adjudication proceed-
ing. The same proposition should apply in a drug court termination hearing.
4. Appeal and Error. An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to be considered by an
appellate court.
5. Proof. The standard of proof for termination from drug court participation is
preponderance of the evidence.
6. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not needed to adjudicate the controversy before it.
7. ____. An appellate court may, at its discretion, discuss issues unnecessary to
the disposition of an appeal where those issues are likely to recur during fur-
ther proceedings.
8. Convictions: Sentences. If a drug court participant is terminated from the pro-
gram or withdraws before successful completion, then the conviction stands and
the case is transferred back to the original court for sentencing.
Appeal from the District Court for Sarpy County: William
B. Zastera, Judge. Judgment reversed, sentence vacated, and
cause remanded for further proceedings.
Patrick J. Boylan, Chief Deputy Sarpy County Public
Defender, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
Inbody, Chief Judge, and Irwin and Moore, Judges.
Moore, Judge.
I. INTRODUCTION
Mathew W. Workman appeals from the orders of the dis-
trict court for Sarpy County that terminated his participation
in a drug court program as a result of several violations of
the conditions of his drug court contract and sentenced him to
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526 21 NEBRASKA APPELLATE REPORTS
concurrent terms of 20 months’ to 5 years’ imprisonment on
his original drug charges. On appeal, Workman asserts that the
district court did not comply with procedural and substantive
due process safeguards in the termination proceeding and that
imposition of a sentence for violation of his drug court con-
tract was not authorized. Because we find that the district court
failed to provide a written statement as to the evidence relied
on and the reasons for terminating Workman’s participation in
the drug court program, we reverse, vacate, and remand for
further proceedings.
II. BACKGROUND
On November 16, 2009, Workman pled guilty to three
amended charges of possession of a controlled substance, all
Class IV felonies. At the plea hearing, Workman was asked if
he understood that if he cannot complete drug court, he could
be found guilty of three Class IV felonies, each punishable by
a fine of up to $10,000 or confinement for a period of up to 5
years, along with other consequences, to which he responded
in the affirmative. Workman’s pleas were accepted, and he was
referred to Sarpy County’s adult drug court.
On February 21, 2012, the State filed a motion to terminate
Workman’s participation in the drug court program for viola-
tions of his drug court contract—specifically, conditions 4, 5,
7, 11, and 15. The motion contained specific allegations of
actions or inactions on the part of Workman to support termi-
nation. A hearing on the motion was held on March 6, at which
Workman was present and represented by counsel.
The first phase of the hearing was to determine whether
violations of Workman’s drug court contract had occurred.
Testimony was adduced by Workman’s drug court supervision
officer, Lisa Vetter. Vetter testified that she reviewed the drug
court contract with Workman on November 17, 2009, in her
office, at which time they went over each condition verbally
and she explained how he could fulfill those conditions. The
drug court contract, which was signed by Workman, Vetter,
and the “Drug Court Judge” on November 16, along with
an addendum signed on September 20, 2010, was received
in evidence as an exhibit without objection. Vetter also gave
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Workman Sarpy County’s adult drug court policy and proce-
dure manual, a copy of which was also received in evidence
without objection.
Vetter testified to the conditions of the drug court contract
that she believed Workman had violated. Condition 4 required
Workman to timely pay the drug court fees. Vetter indicated
that condition 4 was violated because Workman had not been
keeping up on making payments toward his drug court fees,
and as of February 22, 2012, he owed $580 in fees. An exhibit
was offered by Workman’s attorney and received in evidence
showing fees of $585 owed by Workman as of February
27. Next, Vetter testified that condition 5 was violated when
Workman failed to appear for an office appointment with her
on September 14, 2011. Condition 5 requires participants to
appear for scheduled appointments. Vetter learned on January
17, 2012, that Workman had been fired from his job approxi-
mately 1 week before. Workman failed to notify Vetter that
he had been terminated from his employment until their next
meeting on February 8. Condition 15 of the drug court contract
required Workman to notify Vetter within 72 hours of losing
his job, which Workman did not do. Finally, on February 4,
Workman was discharged from the three-quarter-way house that
he was required to reside at as a part of his treatment program
and did not immediately notify Vetter. Vetter testified that this
was a violation of both conditions 7 and 11 of the drug court
contract. Condition 7 required Workman to be open and honest
with the drug court team regarding his drug use and lifestyle,
along with any changes in his lifestyle. Condition 11 required
Workman to keep Vetter informed of his current address and
telephone numbers and to report any changes within 2 calendar
days. Workman declined to offer evidence at this phase of the
proceeding. At the conclusion of this portion of the hearing, the
district court made oral findings that Workman was in violation
of conditions 4, 5, 11, and 15.
The court then proceeded to the termination phase of the
hearing to determine whether Workman should be terminated
from the drug court program. Vetter again testified about her
supervision of Workman and to the various levels of treat-
ment that he participated in. While Workman successfully
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528 21 NEBRASKA APPELLATE REPORTS
completed his initial pretreatment program and intensive out-
patient treatment program, he did not graduate successfully
from the continuing care or aftercare treatment program.
Workman was “kicked out” of the three-quarter-way house
where he was living while he was doing continuing care,
because he was behind on rent. He was then told to move
to a particular shelter, but instead, he was staying at his
mother’s house contrary to instructions. Because Workman
had received the maximum benefit available through the con-
tinuing care program, he was discharged from that program
and subsequently referred to a treatment house. Workman
was eventually discharged from this treatment house, having
reached maximum benefit but not having successfully com-
pleted all of the requirements. He was again sent to a three-
quarter-way house from which he was asked to leave due to
noncompliance with the rules and his dishonest behaviors.
Vetter testified to Workman’s continued dishonesty during his
treatment programs. Finally, Vetter testified to three missed
drug testing appointments by Workman.
Additional exhibits were received in evidence detailing sanc-
tions received by Workman throughout his drug court program
for his missing an office appointment, missing drug testing,
continued dishonesty, and being late for an office appointment.
The exhibits show various periods of unemployment and being
fired from jobs. The exhibits also show inconsistent progress
in the various treatment programs. After the State presented
its evidence at the termination phase of the hearing, Workman
was again given the opportunity to present evidence, which
he declined. The district court verbally reviewed the evidence,
noted the particular concern about Workman’s dishonest behav-
ior, and concluded that termination from the drug court pro-
gram was appropriate.
A docket entry was made March 6, 2012, by the district
court, finding that Workman was in violation of conditions 4,
5, 11, and 15 and that his participation in the drug court pro-
gram should be terminated. The entry then set the matter for a
later sentencing hearing. In case No. A-12-214, Workman filed
an appeal from the March 6 docket entry, which appeal we
dismissed on April 13 for lack of jurisdiction. After entry of
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Cite as 21 Neb. Ct. App. 524
our mandate, Workman was sentenced on August 27, as recited
above. Workman again appealed.
III. ASSIGNMENTS OF ERROR
On appeal, Workman assigns as error that (1) the district
court did not comply with the procedural and substantive due
process safeguards required by State v. Shambley, 281 Neb.
317, 795 N.W.2d 884 (2011), thereby rendering erroneous
the termination of Workman’s participation in the drug court
program, and (2) even if the Shambley due process protections
were honored, any violations by Workman of his drug court
contract did not authorize imposition of a sentence, because he
had agreed to the terms of a quasi-contract and not a sentence
of probation.
IV. STANDARD OF REVIEW
[1] The determination of whether the procedures afforded
an individual comport with the constitutional requirements
for procedural due process presents a question of law. State v.
Shambley, supra.
V. ANALYSIS
1. Was Workman Afforded Adequate
Due P rocess in Drug Court
Termination P roceeding?
In State v. Shambley, supra, the Nebraska Supreme Court
considered for the first time what process is due in drug court
termination proceedings. In that case, following several pro-
ceedings involving alleged violations of the defendant’s drug
court contract, the drug court team recommended that she be
terminated from the program. A hearing on termination was
held, and the court advised the defendant that it was her burden
to go forward with showing why she should not be terminated
from the program. The court received in evidence a letter,
with attachments, from the drug court coordinator recommend-
ing the defendant’s termination from the drug court program.
No other evidence or testimony was presented by the State.
Defense counsel objected to the court’s consideration of the
letter and attachments on the grounds of hearsay and lack of
Decisions of the Nebraska Court of Appeals
530 21 NEBRASKA APPELLATE REPORTS
foundation, and also argued that the manner in which the pro-
ceedings were conducted violated the defendant’s rights to due
process and confrontation. These objections were overruled.
After the defendant offered testimony, the district court agreed
with the recommendation to discharge her from the program,
and thereafter sentenced her.
[2] On appeal, the Supreme Court in State v. Shambley,
supra, concluded that the termination hearing did not com-
port with the minimal due process to which a drug court
participant is entitled. In reaching this conclusion, the court
reasoned that the minimal due process to which a parolee or
probationer is entitled also applies to participants in the drug
court program. This minimal due process includes (1) writ-
ten notice of the time and place of the hearing; (2) disclosure
of evidence; (3) a neutral factfinding body or person, who
should not be the officer directly involved in making recom-
mendations; (4) opportunity to be heard in person and to
present witnesses and documentary evidence; (5) the right to
cross-examine adverse witnesses, unless the hearing officer
determines that an informant would be subjected to risk of
harm if his or her identity were disclosed or unless the offi-
cer otherwise specifically finds good cause for not allowing
confrontation; and (6) a written statement by the fact finder
as to the evidence relied on and the reasons for revoking the
conditional liberty. See id.
[3] We are also mindful that a probation revocation hearing
is not part of a criminal prosecution or adjudication and there-
fore does not give rise to the full panoply of rights that are due
a defendant at a trial or a juvenile in an adjudication proceed-
ing. In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d
783 (2010); State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742
(2008); State v. Schuetz, 18 Neb. Ct. App. 658, 790 N.W.2d 726
(2010). We find the same proposition should apply in a drug
court termination hearing.
In the present case, Workman claims in his first assign-
ment of error that he was not afforded adequate due process
in two ways, corresponding to requirements (1) and (6) above.
Workman concedes that minimum due process was complied
with by the State with regard to disclosure of the evidence,
Decisions of the Nebraska Court of Appeals
STATE v. WORKMAN 531
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a neutral factfinding body, an opportunity to be heard and to
present witnesses and documentary evidence, and the right to
cross-examine adverse witnesses.
(a) Written Notice of Time
and Place of Hearing
Workman first argues that there was no indication that he
was served with the motion to terminate his participation in
the drug court program or that he was arraigned on the motion.
The transcript before us does not contain a certificate of serv­
ice of the motion or an indication that Workman was served
with the motion. However, Workman appeared at the hearing
on the motion to terminate and was represented by counsel
who participated in the hearing.
The State argues that Workman did not object at the hearing
that he was not being provided adequate due process and that
as such, he has waived the right to assert prejudicial error on
appeal. Our careful review of the record confirms that at no
point did Workman raise any issue with regard to the adequacy
of the notice of the hearing. The Nebraska Supreme Court has
noted numerous circumstances in which a defendant has been
found to have waived both statutory and constitutional rights
by failing to make a timely objection. See, State v. Nadeem,
284 Neb. 513, 822 N.W.2d 372 (2012); State v. Collins, 281
Neb. 927, 799 N.W.2d 693 (2011) (noting waiver in failure
to raise unconstitutionality of statute, failure to object to
confrontation issue, right of defendant to be present at trial,
consideration of lesser-included offenses, voir dire procedure,
jury selection, procedure for handling jury questions, and
trial management).
We agree with the State that Workman has waived his right
to assert a lack of written notice of the hearing on the motion
to terminate his participation in the drug court program. At no
time did Workman assert that he did not have written notice
of the hearing. Clearly, Workman and his attorney had notice
of the hearing as they appeared for the hearing, and it is clear
from the record that Workman’s attorney participated in the
hearing through cross-examination of the State’s witness and
argument to the court.
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As a part of his argument on lack of notice, Workman asserts
that he was not aware of the termination policy or procedure.
The minimum due process requirement of written notice of the
time and place of hearing does not encompass such an expla-
nation. We note that in State v. Shambley, 281 Neb. 317, 795
N.W.2d 884 (2011), the Supreme Court did not adopt the pro-
cedural requirements contained in Neb. Rev. Stat. § 29-2267
(Reissue 2008) for probation revocation cases, which includes
the right of the probationer to receive, prior to the hearing, a
copy of the information or written notice of the grounds on
which the information is based. Rather, the court in Shambley
adopted the minimal due process requirements noted above.
We also note that the due process rights contained in Shambley
do not require an arraignment prior to the hearing on the
motion to terminate from drug court.
Finally, to the extent that Workman’s argument is that he
was not aware that termination from the drug court program
was a possibility, the record refutes this assertion, and the
argument is without merit. Workman was previously given a
copy of Sarpy County’s adult drug court policy and procedure
manual, which contains a provision for termination. Workman
was also provided a copy of his drug court contract, and the
terms and conditions were previously reviewed with him by
Vetter, his drug court supervision officer. The contract, imme-
diately above Workman’s signature, states that the participant’s
violation of any of the conditions contained in the contract may
subject him to sanctions or to terminate his participation in the
drug court program.
We conclude that Workman’s argument that he was not pro-
vided with written notice of the hearing on the State’s motion
to terminate his participation in the drug court program is
without merit.
(b) Written Statement
by Fact Finder
Workman next argues that the district court failed to provide
him with a written statement as to the evidence relied on and
reasons for revoking the conditional liberty of participation
in the drug court program and, as such, violated his right to
Decisions of the Nebraska Court of Appeals
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Cite as 21 Neb. Ct. App. 524
due process. The written journal entry from the district court
merely sets forth the conditions of the drug court contract that
it found were violated by Workman and the finding that his
participation in the drug court program should be terminated.
The journal entry did not contain a statement of the evidence
relied on by the court or the reasons for revoking the condi-
tional liberty of drug court participation. Although the bill of
exceptions contains the oral findings by the trial court as to
which provisions of the contract were violated by Workman
and the reasons that the court found his termination from the
drug court program to be appropriate, such does not satisfy
the minimal due process requirement of a written statement
by the fact finder. Further, Workman could not have waived
this requirement by failure to object as the written journal
entry was made after the hearing. Accordingly, we reverse the
court’s order of termination and remand the cause with instruc-
tions to the district court to enter an order which contains a
written statement as to the evidence relied on and the reasons
for revoking the conditional liberty of Workman’s participation
in the drug court program, based upon the record made at the
previous hearing.
[4,5] Although Workman also included an argument that the
State did not prove by clear and convincing evidence that his
participation in the drug court program should be terminated
for violations of his contract, the State correctly points out that
Workman did not assign this as an error in his brief. An alleged
error must be both specifically assigned and specifically argued
in the brief of the party asserting the error to be considered
by an appellate court. State v. Eagle Bull, 285 Neb. 369, 827
N.W.2d 466 (2013). We further note that the standard of proof
for termination from drug court participation is preponderance
of the evidence. See State v. Shambley, 281 Neb. 317, 795
N.W.2d 884 (2011).
2. Did Court Err in Imposing
Criminal Sentence?
[6-8] Workman’s second assignment of error, although dif-
ficult to understand, seems to be that it was error to impose
a criminal sentence as it was not authorized by the drug
Decisions of the Nebraska Court of Appeals
534 21 NEBRASKA APPELLATE REPORTS
court contract. Because we are reversing the order terminat-
ing Workman’s participation in the drug court program and
remanding the cause for entry of a new order which comports
with due process, we also vacate the sentence imposed by the
district court. An appellate court is not obligated to engage in
an analysis that is not needed to adjudicate the controversy
before it. State v. Merchant, 285 Neb. 456, 827 N.W.2d 473
(2013). However, an appellate court may, at its discretion,
discuss issues unnecessary to the disposition of an appeal
where those issues are likely to recur during further proceed-
ings. State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007),
disapproved on other grounds, State v. McCulloch, 274 Neb.
636, 742 N.W.2d 727 (2007). We find it prudent to discuss
this argument to the extent that it suggests the district court
is without authority to impose a criminal sentence, because
that issue is likely to resurface on remand. As noted in State
v. Shambley, supra, if a drug court participant is terminated
from the program or withdraws before successful completion,
then the conviction stands and the case is transferred back to
the original court for sentencing. That is what occurred in this
case, and the district court clearly had authority to do so. This
assigned error is without merit.
VI. CONCLUSION
Workman’s claim that he was not afforded adequate due
process in the termination of his participation in the drug
court program due to lack of written notice of the hearing
is without merit. However, the failure of the district court to
provide a written statement as to the evidence relied on and
reasons for revoking the conditional liberty of participation
in the drug court program violated the minimum require-
ments of due process. Workman’s argument that the district
court did not have authority to impose sentence after termi-
nation of Workman’s participation in the drug court program
is without merit. We reverse the order of the district court
which terminated Workman’s participation in the drug court
program, and we remand the cause with instructions to the
district court to enter an order which contains a written state-
ment as to the evidence relied on and the reasons for revoking
Decisions of the Nebraska Court of Appeals
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Cite as 21 Neb. Ct. App. 535
the conditional liberty of Workman’s participation in the drug
court program, based upon the record made at the previous
hearing. The sentence imposed is vacated, and the cause is
remanded to the district court for resentencing following the
entry of the new order.
Judgment reversed, sentence vacated, and
cause remanded for further proceedings.
Coleen McDonald, appellee, and State
of Nebraska, intervenor-appellee, v.
Del McDonald, appellant.
___ N.W.2d ___
Filed December 10, 2013. No. A-12-1058.
1. Modification of Decree: Visitation: Child Support: Appeal and Error. Issues
involving the modification of a divorce decree, parenting time, and the amount of
child support are initially entrusted to the discretion of the district court, whose
determinations in these matters are reviewed de novo on the record for an abuse
of discretion.
2. Child Support. The trial court’s discretion to award child support extends to its
determination that the child support award should be retroactive.
3. Attorney Fees: Appeal and Error. An appellate court reviews a trial court’s
award of attorney fees for an abuse of discretion.
4. Courts: Words and Phrases. An abuse of discretion occurs when a trial court
acts or refrains from acting, and the selected option results in a decision which is
untenable and unfairly deprives the litigant of a substantial right or just result.
5. Modification of Decree: Child Custody. Ordinarily, custody of a minor child
will not be modified unless there has been a material change in circumstances
showing that the custodial parent is unfit or that the best interests of the child
require such action.
6. Modification of Decree: Words and Phrases. A material change in circum-
stances means the occurrence of something which, had it been known to the dis-
solution court at the time of the initial decree, would have persuaded the court to
decree differently.
7. Modification of Decree. Changes in circumstances which were within the con-
templation of the parties at the time of the decree are not material changes in
circumstances for purposes of modifying a divorce decree.
8. Modification of Decree: Child Custody: Proof. Prior to the modification of a
child custody order, two steps of proof must be taken by the moving party. First,
the moving party must show a material change in circumstances that affects the
best interests of the child. Second, the moving party must prove that changing the
child’s custody is in the child’s best interests.