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State v. Horner

Court of Appeals of Nebraska

October 22, 2013

State of Nebraska, appellee,
v.
Brendan C. Horner, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Lancaster County: John A. Colborn, Judge.

Dennis R. Keefe, Lancaster County Public Defender, and Timothy M. Eppler for appellant.

Jon Bruning, Attorney General, George R. Love, and Joel R. Rische, Senior Certified Law Student, for appellee.

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

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Inbody, Chief Judge.

INTRODUCTION

Brendan C. Horner appeals his plea-based convictions of first degree assault and attempted possession of cocaine with the intent to deliver. We find that the record is insufficient on direct appeal to review his claim that he received ineffective assistance of trial counsel. We review and reject his claim that the sentences imposed upon him were excessive.

STATEMENT OF FACTS

Around 1 a.m. on June 23, 2012, Horner asked Jeffery Holka to give him a ride to 44th and L Streets in Lincoln, Nebraska. During the trip, Holka needed gas for his car, so they stopped at a convenience store located at 4400 O Street. Holka went inside to pay for gas, and upon returning to his car, he heard Horner yelling at a woman, Natasha Keyser, in a nearby car. As Holka was pulling away from the convenience store onto O Street, Horner was still yelling at Keyser. When they reached the intersection at 44th and O Streets, Holka stopped for a red light. The car in which Keyser was a passenger pulled up either adjacent to or behind Holka's car; this car was being driven by Lawrence Corter.

As Corter's car approached, Horner got out of Holka's car and pulled a handgun from his waist. Horner yelled at Keyser while he was approaching the driver's door of Corter's car. Horner then stepped up to Corter's car and fired one shot at Corter. The bullet entered the left side of Corter's neck, exited, and continued into his right forearm, severing the radial nerve. Corter was transported to a hospital where he underwent surgery, during which a nerve from another area of his body was removed and transplanted to replace the radial nerve. After 8 months of physical therapy, Corter was able to move his right thumb, index finger, and middle finger, but he did not have full mobility or strength, and continued to suffer pain in his arm and hand.

After shooting Corter, Horner ran back to Holka's car, got in, and ordered Holka to drive away. When Holka refused, Horner held the gun to Holka's head and demanded that he drive. Holka did drive for several blocks, but then stopped and pleaded with Horner to consider Holka's wife and children. Horner then held the gun to his own head, and Holka kicked Horner to keep him from shooting himself. Horner then ran out of Holka's car, leaving behind a backpack. Holka contacted the police, relayed the events, and told officers that Horner had left a backpack in his car and asked them to remove it. Horner's backpack was seized by officers, who then searched it, finding a "DMV temporary license issued to . . . Horner, and a purple Crown Royal bag." Inside that bag were two baggies containing a white powder which was tested and determined to be 19.84 grams of cocaine, without packaging.

Horner was charged with first degree assault, use of a firearm to commit a felony, and possession of cocaine with the intent to deliver. Horner filed a motion to suppress evidence discovered during the warrantless search of his backpack, but the motion was denied by the district court after an evidentiary hearing on the matter. Thereafter, pursuant to a plea agreement, Horner pled no contest to first degree assault and to an amended charge of attempted possession of cocaine with the intent to deliver, both Class II felonies. Pursuant to the plea agreement, the charge of use of a firearm to commit a felony was dismissed.

Following the preparation of a presentence investigation report, the court sentenced Horner to 24 to 35 years' imprisonment on the first degree assault conviction and 5 to 10 years' imprisonment on the attempted possession of cocaine with the intent to deliver conviction. These sentences were ordered to be served consecutively, and Horner was given credit for 285 days served. Horner has appealed ...


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