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State v. Wizinsky

Court of Appeals of Nebraska

December 31, 2013

State of Nebraska, Appellee,
v.
John M. Wizinsky, Appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Hall County: WILLIAM T. WRIGHT, Judge.

Michael P. Kneale, of Bradley, Elsbernd, Andersen, Kneale & Mues Jankovitz, P.C., for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

Moore, Pirtle, and Bishop, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Pirtle, Judge.

I. INTRODUCTION

John M. Wizinsky pled no contest to one count of felony theft by unlawful taking and one count of felony criminal mischief. On appeal, he contends that his counsel was ineffective in several respects, that the trial court erred in accepting his plea, and that the trial court erred in overruling his motion for discharge. Based on the reasons that follow, we affirm.

II. BACKGROUND

Wizinsky was originally charged with theft by unlawful taking, criminal mischief, and possession of burglar tools. Pursuant to a plea agreement, Wizinsky entered no contest pleas to theft by unlawful taking and criminal mischief. In exchange for the plea, the State agreed to dismiss the charge of possession of burglar tools and a burglary charge in a separate and unrelated case. The State also agreed to recommend a sentence of 4 to 6 years' imprisonment to run concurrent with the sentence Wizinsky was then serving, to waive the presentence investigation, and to sentence Wizinsky that same day the plea was entered. There was also an agreement to restitution in the amount of $1, 360, to be joint and several with any other codefendants convicted in the matter.

The State set forth a factual basis for the plea as follows: Ed Stoltenberg of Cairo, Hall County, Nebraska, has irrigation pivots with copper wire located on his property. He has an alarm system set up to notify him on his telephone if any of the wires are cut. On June 15, 2012, at approximately 4 a.m., Stoltenberg received an alarm. He drove to the place where the pivots are located and saw a vehicle sitting on the side of the road; the headlights were off but the dome light was on. Suspecting the occupants were stealing the copper wire, Stoltenberg called the 911 emergency dispatch service.

The dome light in the vehicle was turned off, and the vehicle started moving down the road. While Stoltenberg was still on the telephone calling 911, he followed the vehicle described as a black pickup truck. Deputy sheriffs pulled over the vehicle, and Wizinsky was identified as the passenger. The sheriffs noticed there was approximately 200 to 240 feet of cut copper wire in the back of the vehicle. The copper wire was identified by Stoltenberg as belonging to him by "painting 'Ed' with white-out on the copper wire."

Stoltenberg and the sheriff inspected the pivot. The copper wire had been cut off the top of the pivot and the other half of the copper wire was missing. The damage to the pivot was over $1, 500. Stoltenberg was able to salvage approximately $240, which left a loss to him of $1, 360.

After listening to the factual basis, the court accepted Wizinsky's pleas and found him guilty of the two charges. The court then sentenced him to 4 to 6 years' imprisonment for theft by unlawful taking and 20 to 60 months' imprisonment for criminal mischief. The sentences were ordered to be served concurrently to each other and concurrently to the sentence he was then serving. Wizinsky was also ordered to pay restitution in the amount of $1, 360.

Two days after Wizinsky pled no contest and was sentenced, he filed a pro se motion for absolute discharge, asserting that his statutory speedy trial rights had been violated.

A hearing was held on the motion several days later. Wizinsky's counsel informed the court that he had visited with Wizinsky a few days before he entered his plea and that Wizinsky told his counsel he had filed the motion for discharge. Wizinsky's counsel told the court that he and Wizinsky discussed the matter, that Wizinsky understood their conversation, that Wizinsky entered his plea with the intention of concluding his cases, and that Wizinsky wanted the court to disregard his motion for absolute discharge.

The trial court overruled Wizinsky's motion for absolute discharge, finding that he waived his right to a speedy trial when he pled no contest to the charges.

III. ASSIGNMENTS OF ERROR

Wizinsky assigns that his trial counsel was ineffective in (1) motioning for continuances despite Wizinsky's clear request that hearings not be continued, (2) failing to properly investigate the State's evidence to be used at trial, and (3) allowing him to plead when he was not competent to enter a plea. Wizinsky also assigns that the trial court erred in (1) accepting his no contest plea after inquiring about ...


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