State v. Warburton

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/02/2021 08:08 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WARBURTON
Cite as 30 Neb. App. 315State of Nebraska, appellee, v.
Bryan Warburton, appellant.
___ N.W.2d ___
Filed October 26, 2021. No. A-21-035.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error. But whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Constitutional Law: Search and Seizure: Police Officers and
Sheriffs: Evidence: Proof. Both the U.S. and Nebraska Constitutions
guarantee an individual the right to be free from unreasonable searches
and seizures. If the State shows by a preponderance of the evidence
that the police would have obtained the disputed evidence by proper
police investigation entirely independent of the illegal investigative
conduct, then such evidence is admissible under the inevitable discov-
ery doctrine.
3. Probable Cause: Words and Phrases. Probable cause means a fair
probability that contraband or evidence of a crime will be found.
4. Constitutional Law: Arrests: Search and Seizure: Probable Cause. A
valid arrest based on probable cause that a person is engaged in criminal
activity is allowed by the Fourth Amendment, and if an arrest is made
based upon probable cause, a full search of the person may be made
incident to that arrest.
5. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
court, an appellate court will not disturb a sentence imposed within the
statutory limits.
6. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court’s decision is based upon reasons that are untenable or
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STATE v. WARBURTON
Cite as 30 Neb. App. 315unreasonable or if its action is clearly against justice or conscience,
reason, and evidence.
7. Sentences. When imposing a sentence, a sentencing judge should cus-
tomarily 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 amount of
violence involved in the commission of the crime. However, the sentenc-
ing court is not limited to any mathematically applied set of factors.
8. ____. 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.
9. 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.
10. Effectiveness of Counsel: Records: Appeal and Error. 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.
11. Effectiveness of Counsel: Appeal and Error. When an ineffective
assistance of counsel claim is raised in a direct appeal, the appellant is
not required to allege prejudice; however, an appellant must make spe-
cific allegations of the conduct that he or she claims constitutes deficient
performance by trial counsel.
12. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that his or her counsel’s
performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense.
13. Motions for New Trial: Verdicts: Time. A motion for new trial pre-
mised upon Neb. Rev. Stat. § 29-2101(1), (4), and (7) (Reissue 2016)
must be filed within 10 days after the verdict was rendered unless such
filing is unavoidably prevented.
14. ____: ____: ____. The language of Neb. Rev. Stat. § 25-2221 (Reissue
2016) clearly indicates that the day the verdict was rendered should be
excluded from the calculation of the 10-day period to file a motion for
new trial and that instead, the period should begin the day after the ver-
dict was rendered.
Appeal from the District Court for Buffalo County: Ryan C.
Carson, Judge. Affirmed.
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STATE v. WARBURTON
Cite as 30 Neb. App. 315John D. Icenogle, of Bruner, Frank, Schumacher & Husak,
L.L.C., and Jerad Murphy, Buffalo County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Riedmann and Arterburn, Judges.
Arterburn, Judge.
I. INTRODUCTION
After a bench trial, Bryan Warburton was convicted by the
district court for Buffalo County of possession of more than 10
grams but less than 28 grams of methamphetamine, with intent
to distribute, and possession of money used or intended to be
used to facilitate the manufacture, distribution, or delivery
of a controlled substance. The court subsequently sentenced
Warburton to a prison term of 15 to 30 years. Warburton
appeals from his convictions and sentences. On appeal, he
challenges the district court’s failure to suppress the evidence
seized during a traffic stop of his vehicle. He also alleges that
the court imposed excessive sentences and that he received
ineffective assistance of trial counsel. Following our review of
the record, we affirm Warburton’s convictions and sentences.
II. BACKGROUND
On March 2, 2020, the State filed an information charging
Warburton with possession of more than 10 grams but less than
28 grams of methamphetamine, with intent to distribute, in
violation of Neb. Rev. Stat. § 28-416(1) (Cum. Supp. 2020), a
Class ID felony, and with possession of money used or intended
to be used to facilitate the manufacture, distribution, or deliv-
ery of a controlled substance, in violation of § 28-416(17), a
Class IV felony. Both of the charges against Warburton stem
from a traffic stop of his vehicle which occurred on the after-
noon of January 29, 2020.
At approximately 1 p.m. on January 29, 2020, Pat
McLaughlin, an officer with the Kearney Police Department,
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Cite as 30 Neb. App. 315was on duty and driving a marked police cruiser when he
heard a call over his radio regarding a shoplifting that had just
occurred at a discount store near his location. The call indicated
that a female shoplifter had run out of the store and “got into
a blue Buick LeSabre type vehicle” with a male driver. The
vehicle had fled from the store’s parking lot. From his loca-
tion, McLaughlin observed traffic until he observed a “greenish
four-door vehicle drive by.” The vehicle was being driven by a
male, and McLaughlin could see “some blond hair in the pas-
senger seat.” McLaughlin began following the vehicle until he
confirmed that its license plate matched the license plate of the
vehicle involved in the shoplifting incident.
McLaughlin activated his police cruiser’s emergency lights
and attempted to initiate a traffic stop of the vehicle. However,
the vehicle continued for “at least four or five blocks” before
pulling to the side of the road. During the time that McLaughlin
was attempting to stop the vehicle, he observed both the driver
and the passenger to be moving around inside of the vehicle.
Specifically, McLaughlin observed the driver to be “shifting”
in his seat. McLaughlin was unable to see the driver’s hands on
the steering wheel. The female passenger was bent over, mov-
ing something around on the floorboard of the vehicle.
Once the vehicle pulled over, McLaughlin approached the
passenger side of the vehicle with his gun drawn due to the
“suspicious” movements of the occupants. As McLaughlin
spoke with the passenger, who readily admitted to having shop-
lifted items from the store, a second Kearney police officer,
Jason Garrels, arrived at the scene and approached the driver
of the vehicle, who was identified as Warburton.
Garrels asked Warburton to step out of the vehicle. Once
Warburton was outside of the vehicle, Garrels placed him in
handcuffs and began to pat him down to determine if he had
any weapons on his person. Garrels explained that such a weap-
ons search was his “regular course of practice” prior to placing
a person in his police cruiser or prior to conducting a further
investigation. In particular, Garrels believed that a weapons
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STATE v. WARBURTON
Cite as 30 Neb. App. 315search was necessary because of Warburton’s involvement in
the shoplifting incident and because he had failed to immedi-
ately pull over after McLaughlin initiated a traffic stop.
Garrels observed that Warburton’s shirt “wasn’t sitting
right.” After patting down the area, Garrels felt an item under
Warburton’s shirt which he believed to be a plastic baggie,
tucked inside his waistband. After he lifted Warburton’s shirt,
a baggie was visible. Garrels asked Warburton, “What do you
got in here?” as Garrels pulled out a baggie. Warburton indi-
cated that the baggie contained methamphetamine. Garrels’
observation of the baggie revealed it to be mostly empty with
some possible drug residue. Garrels then asked Warburton if
he had anything else on his person as Garrels continued to
pat him down. Warburton indicated that he had more metham-
phetamine inside of his underwear, hidden under his genitalia.
McLaughlin retrieved that methamphetamine, which was sub-
sequently determined to weigh almost 15 grams. Shortly there-
after, Garrels conducted a search of Warburton’s person, the
passenger’s purse, and the interior of the vehicle. Additional
methamphetamine was located on the driver’s seat of the
vehicle. A combined total of approximately $1,500 in cash was
also recovered. Warburton was arrested for possession of a
controlled substance and transported to jail.
Prior to trial, Warburton filed a motion to suppress all of the
evidence obtained during the January 29, 2020, traffic stop. In
his motion, Warburton alleged that the evidence was discov-
ered as a result of an unlawful search and seizure, in viola-
tion of his rights under the 4th and 14th Amendments to the
U.S. Constitution. The motion also requested that Warburton’s
statements to Garrels during the pat-down search should be
suppressed. At the suppression hearing, Warburton’s counsel
also argued that these statements were elicited as a result of
a custodial interrogation of Warburton that took place prior
to his being informed of his Miranda rights. No mention
of a Miranda violation was mentioned in the motion itself,
however. The motion sought suppression of the statements
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gal due to a lack of reasonable suspicion.
A hearing was held on Warburton’s motion in June 2020.
At the hearing, McLaughlin and Garrels testified in detail
about their interactions with Warburton during the January
traffic stop. Ultimately, the district court overruled Warburton’s
motion to suppress. In its order, the court rejected both the
Fourth Amendment issue raised in Warburton’s motion and the
Miranda issue raised during the hearing.
In October 2020, a bench trial was held. Prior to the presen-
tation of evidence, Warburton renewed his motion to suppress.
The district court again overruled the motion.
At the trial, McLaughlin and Garrels testified as detailed
above. In addition to his testimony about the discovery of
methamphetamine on Warburton’s person and in his vehicle,
Garrels, who had recently been promoted to the position of
drug investigator within the Kearney Police Department, testi-
fied regarding his familiarity with methamphetamine “quanti-
ties and weights.” Garrels explained that typically, a user of
methamphetamine would consume .1 to .2 of a gram of meth-
amphetamine in order to achieve a “high.” Garrels indicated
that he had spoken with some individuals who had admitted to
using up to 3.5 grams of methamphetamine during a week. This
amount of methamphetamine is also referred to as “an eight-
ball.” Distributors, or dealers, of methamphetamine typically
possess methamphetamine in “eightball quantities.” Garrels tes-
tified that he and McLaughlin retrieved multiple “eightball[s]”
of methamphetamine from Warburton. Based upon his training
and experience, Garrels opined that the 14.99 grams of meth-
amphetamine seized from Warburton is consistent with a quan-
tity for use in distribution of methamphetamine. Garrels indi-
cated that 14.99 grams of methamphetamine is “far in excess of
[a] user quantity of methamphetamine.”
Garrels also provided further testimony about the cash found
on Warburton’s person and in his vehicle. Garrels described
the cash as “not neatly organized. It appeared that he had just
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Cite as 30 Neb. App. 315received different denominations and stuck it in his pocket.”
Garrels believed, based upon his training and experience, that
the cash seized from Warburton was handled in a manner con-
sistent with drug transactions. Garrels further testified to his
belief that Warburton had obtained the cash from individuals
who had purchased methamphetamine from him.
At trial, both McLaughlin and Garrels testified as to state-
ments made by Warburton after he was read his Miranda
rights. Warburton admitted that the methamphetamine found
was his. He told the officers that he was in possession of “a
couple of eightballs” and that he had been a user of meth-
amphetamine for 35 years. Warburton explained that he had
attempted to hide the methamphetamine in his underwear after
McLaughlin initiated the traffic stop of his vehicle. Warburton
indicated that he had been laid off 1 month prior to January
29, 2020, and that the money he had on his person and in his
vehicle was his savings.
The State also called Sgt. Glenn Kemp from the Adams
County sheriff’s office to testify. Kemp is a drug investigator
and a member of a drug task force. In January 2020, Kemp
was investigating Warburton after receiving multiple reports
of “come-and-go traffic late at night [and] early in the morn-
ing” at his rural residence. Kemp indicated that such traffic
patterns were not typical of Warburton’s rural residence, and
as a result, Kemp suspected that Warburton was selling drugs.
After Warburton was arrested on January 29, Kemp obtained
a search warrant for his residence, which he executed on
January 31. During the search, Kemp located a large amount
of small baggies, a digital electronic scale with drug residue,
and a lockbox with drug paraphernalia inside. He testified that
all of these items were commonly utilized in drug distribu-
tion operations.
Ultimately, the district court found Warburton guilty of pos-
session of more than 10 grams but less than 28 grams of meth-
amphetamine with intent to distribute and possession of money
used or intended to be used to facilitate the manufacture,
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STATE v. WARBURTON
Cite as 30 Neb. App. 315distribution, or delivery of a controlled substance. The court
subsequently sentenced Warburton to 15 to 30 years’ imprison-
ment on the first count and 2 to 2 years’ imprisonment on the
second. The sentences were ordered to be served concurrent
with each other.
Warburton appeals his convictions and sentences here.
III. ASSIGNMENTS OF ERROR
On appeal, Warburton asserts that the district court erred in
overruling his motion to suppress evidence seized as a result of
the traffic stop and as a result of statements he made prior to
being read his Miranda rights. He also asserts that the district
court imposed excessive sentences and that he received inef-
fective assistance of trial counsel when counsel failed to timely
file a motion for new trial.
IV. ANALYSIS
1. Motion to Suppress
On appeal, Warburton challenges the district court’s deci-
sion to overrule his motion to suppress. He asserts that Garrels
unlawfully “expanded” his search for weapons on Warburton’s
person by also searching for controlled substances. Brief for
appellant at 14. In addition, Warburton asserts that when
Garrels asked him what was in the baggie in his waistband
and if he had anything else on his person, such questioning
constituted a custodial interrogation which occurred prior to
Warburton’s being advised of his Miranda rights. Warburton
alleges that as a result of the unlawful search and questioning,
the methamphetamine found in the course of the traffic stop
should have been suppressed.
In its brief to this court, the State argues that law enforce-
ment officers acted lawfully in searching Warburton during
the traffic stop. However, the State also asserts that the meth-
amphetamine found on Warburton’s person would have been
inevitably discovered after a lawful search of his vehicle
revealed the presence of methamphetamine on the driver’s
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Cite as 30 Neb. App. 315seat. Upon our review, we agree with the State’s assertion that
the methamphetamine on Warburton’s person would have been
inevitably discovered even if he had not been initially patted
down for weapons or questioned regarding what was on his
person. As such, we need not decide the validity of the search
or questioning challenged by Warburton.
(a) Additional Background
After McLaughlin stopped Warburton’s vehicle, both
Warburton and his female passenger were asked to step outside
of the vehicle. The passenger readily admitted to shoplifting
from the store. And, as we described above, a large amount
of methamphetamine was found on Warburton’s person after
he was patted down. As a result of both the passenger’s
admission to shoplifting and the presence of methamphetamine
on Warburton, Garrels ultimately undertook a search of the
vehicle. Garrels’ search of the vehicle was recorded on his
body camera. It is apparent from the body-camera footage that
Garrels’ initial search of the vehicle was focused on recover-
ing the items that had been shoplifted. Garrels initially focused
his search of the vehicle on the passenger side. He searched
the passenger-side floorboard, the seat, a compartment on the
inside of the door, and the center console. However, while
searching the passenger seat, he saw a substance that appeared
to be methamphetamine in plain view on the driver’s seat. The
video confirms his observation. Garrels did not immediately
collect the methamphetamine, but he did inform the other offi-
cers on the scene of its presence. Eventually, Garrels continued
his search of the vehicle on the driver’s side and instructed
another officer to collect the methamphetamine located on the
driver’s seat.
Before Warburton was transported to jail, he agreed to have
McLaughlin move his vehicle to a nearby residential road,
rather than have the vehicle towed. Before McLaughlin got
in the vehicle to move it, Garrels again reminded him to first
collect the methamphetamine on the driver’s seat. McLaughlin
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rocks and [some] powder.” He collected the “rocks” and then
wiped the residue from the seat before driving the vehicle.
(b) Standard of Review
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trig-
ger or violate Fourth Amendment protections is a question
of law that an appellate court reviews independently of the
trial court’s determination. State v. Nunez, 299 Neb. 340, 907
N.W.2d 913 (2018).
(c) Analysis
In his brief on appeal, Warburton details why he believes
the search of his person and the questions asked of him by
Garrels during that search were unlawful. However, Warburton
does not challenge the search of his vehicle. Instead, he merely
asserts that “[h]ad the officers not found the narcotics discov-
ered on [Warburton’s] person, they would not have requested
to move [his] vehicle and would not have found the narcotics
inside the vehicle.” Brief for appellant at 14. We disagree with
Warburton’s claim that law enforcement officers discovered
the methamphetamine on the driver’s seat of the vehicle only
because of the search of Warburton’s person. Instead, we find
that the officers at the scene of the traffic stop had probable
cause to search Warburton’s vehicle after his passenger admit-
ted to shoplifting. Because the search of the vehicle was lawful
and the methamphetamine was found in plain sight on the seat
where Warburton was sitting, we find that the methamphet-
amine found on Warburton’s person would have been inevita-
bly discovered. As such, we need not decide whether the search
of Warburton’s person or the questions asked of him during
that search were lawful.
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Cite as 30 Neb. App. 315[2] Both the U.S. and Nebraska Constitutions guarantee an
individual the right to be free from unreasonable searches and
seizures. See, U.S. Const. amend. IV; Neb. Const. art. I, § 7.
But if the State shows by a preponderance of the evidence
that the police would have obtained the disputed evidence by
proper police investigation entirely independent of any illegal
investigative conduct, then such evidence is admissible under
the inevitable discovery doctrine. See State v. Ball, 271 Neb.
140, 710 N.W.2d 592 (2006). To overcome its burden, the State
must demonstrate that some lawful means of discovery would
have produced the evidence in question; that is, such evidence
inevitably would have been discovered without any police mis-
conduct. Id.[3] At the suppression hearing, the State presented evidence
which demonstrated that apart from finding methamphetamine
on Warburton’s person after removing him from the vehicle,
officers had probable cause to search his vehicle. Probable
cause means a fair probability that contraband or evidence of
a crime will be found. State v. Sanders, 15 Neb. App. 554, 733
N.W.2d 197 (2007). Here, officers had probable cause to search
Warburton’s vehicle. The license plate of the vehicle matched
the license plate of the vehicle involved in a shoplifting at
the store. When police contacted Warburton’s passenger, she
readily admitted to the theft. In addition, the passenger was
observed moving around in the vehicle while McLaughlin was
attempting to initiate a traffic stop. Such movement included
bending down over the floorboard of the vehicle, presumably to
conceal the stolen items. Given these facts, officers had prob-
able cause to search the vehicle for evidence of Warburton’s
passenger’s theft.
[4] Once officers searched the vehicle and observed the
methamphetamine on the driver’s seat, where Warburton had
just been sitting, and given the amount of methamphetamine
found, they had probable cause to arrest Warburton for pos-
session of a controlled substance. We further note that after
Warburton was read his Miranda rights, he acknowledged
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Incident to Warburton’s arrest, officers could then have law-
fully searched Warburton’s person. See State v. Perry, 292 Neb.
708, 874 N.W.2d 36 (2016) (valid arrest based on probable
cause that person is engaged in criminal activity is allowed
by Fourth Amendment, and if arrest is made based upon
probable cause, full search of person may be made incident
to that arrest). At that time, they would have discovered the
additional methamphetamine in Warburton’s waistband and in
his underwear.
Because law enforcement would have inevitably discov-
ered the methamphetamine on Warburton’s person after they
executed a valid search of his vehicle, we need not decide the
propriety of Garrels’ initial search of Warburton for weapons,
nor of the questions asked of Warburton during this initial
search. We affirm the decision of the district court to overrule
Warburton’s motion to suppress.
2. Excessive Sentence
Warburton alleges that the district court imposed excessive
sentences when it sentenced him to a total of 15 to 30 years’
imprisonment. Specifically, he asserts that when imposing the
sentences, the district court failed to consider such mitigating
factors as his advanced age, his obvious addiction to metham-
phetamine, and his complete cooperation with law enforcement
during the January 29, 2020, traffic stop. Upon our review, we
find no abuse of discretion in the district court’s sentencing
determinations.
(a) Additional Background
After finding Warburton guilty of the charged crimes, the
court ordered him to participate in a presentence investi-
gation. The presentence investigation report revealed that
Warburton was 55 years old at the time of sentencing. He had
obtained his diploma through the GED program after having
dropped out of high school in the 11th grade. While Warburton
reported he had recently been employed doing asphalt work,
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Warburton has never been married, but was in a yearlong rela-
tionship with the 25-year-old woman in the vehicle with him
during the January 29, 2020, traffic stop. He had a son who
died in a car accident at the age of 17.
Warburton has a lengthy criminal history dating back to
1984. Most significantly, in 1998, he was convicted in federal
court of conspiracy to distribute a controlled substance. He
was sentenced to 9 years 7 months’ imprisonment followed
by 5 years of supervised release. After beginning his term of
supervised release in 2006, he violated the terms of his release
and was ultimately sent back to prison for an additional 45
months. He was finally released from federal prison in May
2015. Warburton’s other convictions include possession of a
controlled substance with intent to deliver, trespassing (three
times), criminal mischief, disturbing the peace (two times), and
driving under the influence (three times). Warburton also has a
pending case stemming from the search warrant executed at his
home in Adams County in January 2020.
Warburton admitted to being a longtime user of methamphet-
amine. He indicated that he had used methamphetamine regu-
larly since 1984. He estimated he used between 1 and 2 grams
of the drug per day. He indicated a desire to stop using meth-
amphetamine, but he also failed to complete a substance abuse
evaluation despite being provided with a voucher. Warburton
also admitted to previously using marijuana, cocaine, LSD, and
alcohol. Warburton denied that he had been involved in selling
methamphetamine at the time of his arrest. However, he did
admit to selling methamphetamine in the past.
During the presentence interview, Warburton declined to
take any responsibility for his actions. Instead, he indicated
that he was “‘railroaded’” by law enforcement during the traf-
fic stop. His overall score of 33 on the “Level of Service/Case
Management Inventory” placed him in the “very high risk”
range for reoffense.
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Cite as 30 Neb. App. 315At the sentencing hearing, Warburton’s counsel argued in
favor of a minimal prison sentence, citing Warburton’s cooper-
ation with police during the traffic stop and his obvious addic-
tion to methamphetamine. Counsel stated, “I think he would
most benefit from . . . services that will directly be related to
his addiction. And that can generally be done through post-
release process, rather than in the facility . . . .” Contrary to
defense counsel, the State argued in favor of a lengthy prison
sentence in order to prohibit Warburton from continuing to
provide dangerous controlled substances to other people in
the community.
Prior to imposing its sentences, the district court explic-
itly indicated that it had thoroughly reviewed the presen-
tence investigation report and had considered such factors as
Warburton’s age, his mentality, his significant criminal history,
his background, and the circumstances of the current offenses.
The district court noted that it was clear that Warburton was
addicted to methamphetamine and had incurred struggles as a
result of that addiction. However, the court also noted the large
amount of methamphetamine found on Warburton and indi-
cated its belief that this was not a “user amount[].” The court
then sentenced Warburton to 15 to 30 years’ imprisonment on
his conviction for possession of more than 10 but less than
28 grams of methamphetamine with intent to distribute and
to 2 to 2 years’ imprisonment for possession of money used
or intended to be used to facilitate the manufacture, distribu-
tion, or delivery of a controlled substance. The sentences were
ordered to be served concurrent with each other.
(b) Standard of Review
[5,6] Absent an abuse of discretion by the trial court, an
appellate court will not disturb a sentence imposed within the
statutory limits. State v. Senteney, 307 Neb. 702, 950 N.W.2d
585 (2020). An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. Id.- 329 -
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Cite as 30 Neb. App. 315(c) Analysis
[7,8] When imposing a sentence, a sentencing judge should
customarily 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 amount of violence involved in the com-
mission of the crime. State v. Mora, 298 Neb. 185, 903 N.W.2d
244 (2017). However, the sentencing court is not limited to any
mathematically applied set of factors. Id. 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 surrounding the
defendant’s life. Id.In asserting that his sentences are excessive, Warburton
does not and cannot dispute that his sentences were within the
pertinent statutory limits. As charged by the State, possession
with intent to distribute not less than 10 grams but not more
than 28 grams of methamphetamine is a Class ID felony. See
§ 28-416(1) and (10)(c). A Class ID is punishable by a manda-
tory minimum 3 years’ imprisonment and a maximum of 50
years’ imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp.
2020). The district court’s sentence of 15 to 30 years’ imprison-
ment is clearly within the statutory limits. Similarly, the district
court’s sentence of 2 to 2 years’ imprisonment for Warburton’s
conviction of possession of money used or intended to be used
to facilitate the manufacture, distribution, or delivery of a con-
trolled substance is also within the statutory limits. Possession
of money used or intended to be used to facilitate the manu-
facture, distribution, or delivery of a controlled substance is
a Class IV felony. See § 28-416(17). A Class IV felony is
punishable by a maximum of 2 years’ imprisonment and 12
months’ post-release supervision. § 28-105. However in this
case, imposition of post-release supervision is inapplicable,
since the sentence was imposed in conjunction with a sentence
for a Class ID felony.
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STATE v. WARBURTON
Cite as 30 Neb. App. 315Rather than challenging whether his sentences are within the
statutory limits, Warburton alleges that the district court failed
to explicitly consider such mitigating factors as his advanced
age, his addiction to methamphetamine, his level of coopera-
tion with law enforcement during the traffic stop, and the lack
of violence involved in his offenses.
At the sentencing hearing in this case, the district court
indicated that it had reviewed the presentence investigation
report and had considered all of the pertinent factors, includ-
ing Warburton’s age, his addiction, and the circumstances
surrounding his offense. Such statement by the court directly
refutes Warburton’s claim on direct appeal that the court failed
to consider these mitigating factors. The district court found
that the seriousness of Warburton’s offenses, coupled with
his criminal history, which included a lengthy federal prison
sentence for a similar charge, warranted a significant period of
imprisonment. Given our review of the record in this case, we
find no abuse of discretion by the district court in its sentenc-
ing determination.
3. Ineffective Assistance of Trial Counsel
In his brief on appeal, Warburton assigns as error that he
was “denied effective assistance of trial counsel by counsel’s
failure to file a timely motion for new trial.” In the argument
section of his brief, Warburton asserts that he was prejudiced
by counsel’s failure to timely file the motion for new trial
because the verdict of the district court “was not sustained
by sufficient evidence” when the State failed to prove beyond
a reasonable doubt that Warburton possessed methamphet-
amine with the intent to distribute it. Brief for appellant at 15.
Warburton contends that the evidence presented merely demon-
strated his possession of the controlled substance for his own
use. He asserts that had counsel filed a timely motion for new
trial, the district court would have changed its previously ren-
dered verdict. Warburton’s assertion of ineffective assistance
of counsel is without merit, because counsel did, in fact, timely
file a motion for new trial.
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STATE v. WARBURTON
Cite as 30 Neb. App. 315(a) Additional Background
The district court found Warburton guilty of the charged
offenses immediately following the presentation of evidence
at the bench trial on October 28, 2020. On November 9,
Warburton, through his trial counsel, filed a motion for new
trial. In the motion, he alleged that a new trial was warranted
pursuant to Neb. Rev. Stat. § 29-2101(1), (4), and (7) (Reissue
2016). These subsections of § 29-2101 provide that a new trial
may be granted due to irregularity in the court proceedings
which resulted in an unfair trial, the verdict not being sustained
by sufficient evidence, and error of law occurring at the trial,
respectively.
Prior to a hearing being held on the motion for new trial, the
State filed a motion to quash. The State’s motion alleged that
the court should quash the motion for new trial because it had
been filed more than 10 days after the verdict was rendered
and was, as a result, not timely filed. On the day of the hearing
on the motion for new trial, Warburton’s trial counsel filed a
motion to withdraw the motion for new trial. Warburton’s sen-
tencing hearing proceeded approximately 1 month later.
When Warburton appeared at the sentencing hearing, he
appeared with new counsel. His new counsel offered into evi-
dence Warburton’s affidavit, in which Warburton stated that he
had hired new counsel because his previous counsel had with-
drawn the motion for new trial without his consent.
On appeal, Warburton is represented by the same counsel
who represented him at his sentencing hearing. Warburton
asserts that his original trial counsel provided ineffective assist­
ance when counsel failed to file a timely motion for new trial.
(b) Standard of Review
[9-11] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question of
law. State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020).
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
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STATE v. WARBURTON
Cite as 30 Neb. App. 315to conclusively determine whether counsel did or did not pro-
vide effective assistance and whether the defendant was or was
not prejudiced by counsel’s alleged deficient performance. Id.When the claim is raised in a direct appeal, the appellant is not
required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims consti-
tutes deficient performance by trial counsel. State v. Sundquist,
301 Neb. 1006, 921 N.W.2d 131 (2019).
(c) Analysis
[12] 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). The record on direct appeal is sufficient to review a
claim of ineffective assistance of trial counsel 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. Id.To show that counsel’s performance was deficient, a defend­
ant must show that counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law. Id.To show prejudice, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different. Id. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id.Warburton asserts that trial counsel provided ineffective
assistance by failing to file a timely motion for new trial.
However, upon our review, we conclude that the motion for
new trial filed by Warburton’s trial counsel was timely filed
and that as a result, Warburton cannot demonstrate deficient
performance.
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STATE v. WARBURTON
Cite as 30 Neb. App. 315[13] Warburton’s motion for new trial was premised upon
§ 29-2101(1), (4), and (7). A motion for new trial premised
upon these subsections must be filed within 10 days after the
verdict was rendered unless such filing is unavoidably pre-
vented. Neb. Rev. Stat. § 29-2103 (Reissue 2016). Neb. Rev.
Stat. § 25-2221 (Reissue 2016) details how to calculate the
10-day period:
Except as may be otherwise more specifically pro-
vided, the period of time within which an act is to be
done in any action or proceeding shall be computed by
excluding the day of the act, event, or default after which
the designated period of time begins to run. The last day
of the period so computed shall be included unless it is a
Saturday, a Sunday, or a day during which the offices of
courts of record may be legally closed as provided in this
section, in which event the period shall run until the end
of the next day on which the office will be open.
Here, the district court rendered its guilty verdicts on
October 28, 2020. Pursuant to the language of § 25-2221, the
10-day period for filing a motion for new trial began to run on
October 29 and ended on November 7. However, November 7
was a Saturday, so, pursuant to § 25-2221, the period to file the
motion for new trial was extended through Monday, November
9. The motion for new trial was timely filed on November 9.
[14] We note that in the State’s motion to quash the motion
for new trial, it incorrectly calculated the 10-day period to file
the motion for new trial. The State based its calculation on its
erroneous belief that the day the verdict was rendered must
be included in the 10-day period. The language of § 25-2221
clearly indicates that the day the verdict was rendered should
be excluded from the calculation and that instead, the period
should begin the day after the verdict was rendered.
Because trial counsel timely filed the motion for new trial,
Warburton cannot show deficient performance in this regard.
In his brief on appeal, Warburton does not allege or argue that
his counsel was also ineffective in withdrawing the motion for
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STATE v. WARBURTON
Cite as 30 Neb. App. 315new trial without his consent. In addition, he does not assign as
error that the evidence was insufficient to support his convic-
tions. As such, we do not address these issues further.
V. CONCLUSION
The district court did not err in overruling Warburton’s
motion to suppress or in sentencing him to 15 to 30 years’
imprisonment. In addition, Warburton was not denied effective
assistance of trial counsel because contrary to his assertion,
counsel did, in fact, timely file a motion for new trial after the
district court rendered its verdict.
Affirmed.
Bishop, Judge, participating on briefs.