August 13, 2013
State of Nebraska, appellee,
James W. Graves, appellant
NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Richardson County: Daniel E. Bryan, Jr,
Benjamin Beethe, of Morrissey, Morrissey & Dalluge, for appellant.
Jon Bruning, Attorney General, and Carrie A. Thober for appellee.
Pirtle and Riedmann, Judges, and Mullen, District Judge, Retired.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
This is a direct appeal from two plea-based criminal convictions for first degree sexual assault. James W. Graves was originally charged with 12 criminal offenses: four counts of first degree sexual assault, two counts of first degree sexual assault of a child, and one count each of terroristic threats, stalking, third degree domestic assault, attempted strangulation, first degree criminal trespassing, and tampering with a witness.
Pursuant to a plea agreement, Graves pled guilty to two counts of first degree sexual assault and the State dismissed the remaining 10 charges. First degree sexual assault is a Class II felony which carries a possible punishment of 1 to 50 years' imprisonment. Before accepting Graves' plea, the court advised him of his rights and the possible punishments for the offenses, all of which Graves indicated he understood.
Graves was sentenced on count I, first degree sexual assault, to 25 to 30 years' imprisonment with credit for 489 days served. He was sentenced on count II, first degree sexual assault, to 15 to 25 years' imprisonment. This sentence was ordered to be served consecutively to the sentence imposed in count I.
Graves is a 29-year-old single male with one dependent child. He was expelled from high school during his junior year and sent to a school for expelled students in Lincoln, Nebraska. Graves then returned to his high school and completed his requirements for graduation. Graves' employment included summer jobs as a laborer. His criminal history is contained on three pages in the presentence investigation report and includes refusal to submit to a test, driving under the influence, possession of marijuana, possession of drug paraphernalia, possession of a controlled substance, minor in possession, criminal mischief, assault, disturbing the peace, numerous traffic-related offenses, and the present charges.
The State provided the following factual basis:
[R.E.] would testify that she became involved in a dating relationship with Graves in October 2007. [R.E's] date of birth is [in] August . . . 1993. . . . Graves' date of birth is [in] October . . . 1983. . . . On January 1, 2008, Graves had sexual intercourse with [R.E.], which included penile, digital and oral penetration of [R.E.'s] vagina. [R.E.] would testify that she also had penile vaginal intercourse with Graves on August 6, 2008. . . . All of these events took place at Graves' residence in Salem, Richardson County, Nebraska.
Graves has assigned three errors on appeal: (1) that his sentences are excessive, (2) that he had ineffective assistance of counsel, and (3) that the district court judge failed to recuse himself.
Graves' brief states that "the offense [was] one of [a] consensual sexual boyfriend/girlfriend relationship." Brief for appellant at 10. The presentence investigation report reveals Graves subjected R.E. to repeated acts of sexual abuse and violence for over 3 years. Their first sexual encounter occurred in January 2008 when R.E. was just 14 years old and Graves was 24 years old. R.E. estimated that she and Graves had sex approximately 250 times between January 2008 and October 2009. The physical abuse and violence began after R.E.'s 15th birthday. Graves told R.E. that he would kill her if she ever told her mother about their relationship. He also threatened to kill himself if she ever left him. R.E. finally got a protection order against Graves in July 2011 after he broke into her bedroom window at 4 a.m. and violently assaulted her. Graves hit R.E. in her face, put his hands around her neck, and then grabbed her and forced her out of the window. Once outside, Graves slapped R.E., dragged her across the yard into a neighbor's yard, and repeatedly kicked her while she was lying helpless on the ground.
Based on the present law in Nebraska, our power to modify a sentence is very limited. State v. Branch, 277 Neb. 738, 764 N.W.2d 867 (2009); State v. Reid, 274 Neb. 780, 743 N.W.2d 370 (2008); State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001). As stated in State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999), it is not the function of an appellate court to conduct a de novo review of the record to determine whether a sentence is appropriate.
A sentence imposed within the statutory limits will not be disturbed on appeal absent an abuse of discretion. State v. White, 256 Neb. 536, 590 N.W.2d 863 (1999); State v. Harrison, supra; State v. Phillips, 242 Neb. 894, 496 N.W.2d 874 (1993). Based upon our review of the record in this case, we cannot find an abuse of discretion on the part of the trial court. State v. Thurman, 273 Neb. 518, 730 N.W.2d 805 (2007); State v. White, supra; State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988).
Graves' brief states his counsel was ineffective in five ways. His first claim is that his counsel improperly advised him that he would receive a maximum sentence of 12 years' imprisonment if he pled guilty to two counts of first degree sexual assault. Graves was advised by the court of the possible punishments he faced before entering his plea:
THE COURT: Now, both of these counts are Class II felonies. Under Nebraska law, if you're convicted of either one of them, state statutes say the court shall sentence no less than one, no more than fifty years['] incarceration in the Department of Corrections. Do you understand that?
[Graves]: Yes, sir.
THE COURT: You understand the penalties you're subjecting yourself to, is that also correct?
[Graves]: Yes, sir.
By acknowledging he knew and understood the possible sentences he could receive for each count and by accepting the plea agreement rather than going to trial on all counts, Graves failed to show prejudice resulting from his counsel's alleged error. This claim has no merit.
Graves' second claim of ineffective assistance of counsel is that his attorney did not conduct a proper pretrial investigation. Graves alleges that his counsel neither asked if he had any witnesses nor talked to any of his family members, both of which may have resulted in the discovery of exculpatory evidence. Graves failed to allege what witnesses he may have had, what the testimony would have been from those witnesses or members of his family, and what exculpatory evidence would have been discovered. Graves failed to show he was prejudiced by his counsel's performance. This claim has no merit.
Graves' third claim of ineffective assistance of counsel states his counsel failed to present information at sentencing that he and R.E. were engaged when she was 16 years old; that he and R.E. were happy together and enjoyed hunting and fishing together, not just sex; and that he has a 7-year-old daughter he visits regularly. Graves' brief points out that all this information was contained in the presentence investigation report which the court had reviewed prior to sentencing. Considering the court was aware of the information in the presentence investigation report prior to sentencing, reasonable probability existed that Graves' sentences would not have been different if his counsel had presented this information at the sentencing hearing. No prejudice has been shown; this claim has no merit.
Graves' fourth claim of ineffective assistance of counsel is that his counsel had a conflict of interest in representing him. His brief states that R.E.'s grandfather was a Richardson County commissioner who was responsible for hiring and setting the salary of the Richardson County public defender. Graves was briefly represented by an attorney of the public defender's office, and the record reveals that such attorney moved to withdraw as counsel prior to Graves' arraignment. An attorney from a law firm was appointed and represented Graves at his arraignment, motion for separate trials, discovery hearing, plea hearing, and sentencing. Thus, there was no conflict of interest, and this claim has no merit.
Graves' fifth and final complaint of ineffective assistance of counsel is that his attorney did not seek recusal of the district court judge. Graves argued that the judge's impartiality was in question because R.E.'s grandfather was a Richardson County commissioner who had the power to control the district court's budget.
Under the Nebraska Revised Code of Judicial Conduct, a judge must recuse himself or herself from a case if the judge is actually biased against a party or if the judge's impartiality could reasonably be questioned. State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012). A defendant seeking to disqualify a judge because of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality. Id. Absent a showing of actual bias or prejudice, a litigant must demonstrate that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness. Id.
Because the record is insufficient to decide this last ineffective assistance of counsel claim, we are unable to review and decide it at this time. When the issue of ineffective assistance of counsel has not been raised or ruled on at the trial court level, and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. State v. Jones, 274 Neb. 271, 739 N.W.2d 193 (2007). For this reason, we decline to address this last claim of ineffective assistance of counsel at this time.
Graves did not seek recusal of the district court judge. His argument is that the district court judge should have recused himself sua sponte due to R.E.'s grandfather's being a Richardson County commissioner. There is no evidence that the district court judge knew that R.E.'s grandfather was a county commissioner or that the judge was biased by it. By failing to request the judge's recusal, Graves waived this issue.
In the absence of plain error, when an issue is raised for the first time in an appellate court, the issue will be disregarded inasmuch as the trial court cannot commit error regarding an issue never presented and submitted for disposition in the trial court. State v. Albrecht, 18 Neb.App. 402, 790 N.W.2d 1 (2010). This assignment of error has no merit.
For the above and foregoing reasons, the judgment of the district court is affirmed.