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State v. Washington

Court of Appeals of Nebraska

May 28, 2013

State of Nebraska, Appellee,
v.
Rashad Washington, Appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge.

Daniel R. Stockmann, of Dunn & Stockmann, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Inbody, Chief Judge.

INTRODUCTION

Following a remand for proper advisement of good time calculations, Rashad Washington now appeals his convictions and sentences, arguing that there was insufficient evidence to support his convictions, that the sentences imposed were excessive, and that he received ineffective assistance of counsel at his original sentencing hearing.

PROCEDURAL BACKGROUND

In 2011, a jury found Washington guilty of first degree assault, three counts of use of a deadly weapon to commit a felony, second degree assault, possession of a deadly weapon by a prohibited person, and discharging a firearm in certain cities, villages, and counties. Washington attempted to appeal, and the appeal was docketed in our court at case No. A-11-299; however, Washington had appealed before his sentences were imposed and moved to dismiss his appeal, which request was granted. On April 18, 2011, the district court sentenced Washington to a total sentence of 70 to 110 years' imprisonment with credit for 387 days served; however, several days later, the court attempted to modify the sentences.

Washington filed a direct appeal of his convictions and sentences, which was docketed in our court at case No. A-11-402. Washington's direct appeal was dismissed by this court for lack of jurisdiction, because he failed to file a proper poverty affidavit. The State also appealed, filing an application to docket error proceedings on the basis that the district court's attempted modification of Washington's sentences was of no effect because a valid sentence had been imposed on April 18, 2011. The State's application to docket error proceedings was granted, and the case was docketed in this court at case No. A-11-416. Washington filed an appellee's brief in case No. A-11-416, but did not file a cross-appeal. This court entered an order to show cause why the appeal should not be summarily reversed and remanded. The State filed a reply to the show cause order, and thereafter, an order was entered by this court summarily reversing the judgment and remanding the cause. This court found that the district court's attempt at resentencing on April 20 was null and void and the sentence imposed on April 18 remained in effect; however, the cause was remanded for proper advisement of good time calculations. In each of the three aforementioned appeals, cases Nos. A-11-299, A-11-402, and A-11-416, Washington was represented by the same counsel that represented him at trial and sentencing.

Upon remand, a hearing was held on May 1, 2012, at which the district court advised Washington that the original sentences imposed on April 18, 2011, were the sentences which he would be serving, which are as follows:

Count

Offense

Felony

Sentence

Count I

First Degree Assault

Class II

30-50 years

Count II

Use of a Weapon

Class IC

30-50 years

Count III

Second Degree Assault

Class III

3-5 years

Count IV

Use of a Weapon

Class IC

5-5 years

Count VII

Possession by a Felon

Class ID

5-5 years

Count VIII

Discharging Firearm

Class IC

5-5 years

Count IX

Use of a Weapon

Class IC

5-5 years

Counts II, IV, and IX were ordered to run consecutively to all counts and to each other, and all other counts were ordered to run concurrently. The district court informed Washington that assuming no loss of good time, he would be eligible for parole in 45 years and eligible for discharge in 55 years. Washington has timely ...


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