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State v. Sanders

Supreme Court of Nebraska

October 24, 2014

STATE OF NEBRASKA, APPELLEE,
v.
RICKY J. SANDERS, APPELLANT

Page 351

[Copyrighted Material Omitted]

Page 352

Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge.

Jerry L. Soucie for appellant.

Ricky J. Sanders, Pro se.

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

HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ., and BISHOP, Judge.

OPINION

Page 353

[289 Neb. 337] Miller-Lerman, J.

NATURE OF CASE

Ricky J. Sanders appeals the order of the district court for Douglas County denying his motion for postconviction relief without an evidentiary hearing. Sanders had been convicted of discharging a firearm at a dwelling while in or near a motor vehicle, in violation of Neb. Rev. Stat. § 28-1212.04 (Cum. Supp. 2012), and using a firearm to commit a felony. He contends tat an evidentiary hearing should have been held on his ineffective assistance of counsel claims in which he asserted that trial counsel was deficient for failing to challenge the constitutionality of § 28-1212.04 and for failing to move to suppress evidence obtained from the stop and search of his vehicle.

Because counsel could not have been deficient for failing to raise a novel constitutional challenge to § 28-1212.04, the court did not err when it rejected Sanders' claim of ineffective counsel on this basis. We further conclude that the court did not err when it determined that the record showed that Sanders was not entitled to relief on his claim that counsel was deficient for failing to move to suppress evidence obtained from the stop and search of his vehicle. We therefore affirm the denial of Sanders' postconviction motion.

STATEMENT OF FACTS

Sanders was convicted of discharging a firearm, in violation of § 28-1212.04, and a related charge of use of a firearm to commit a felony. The evidence at trial indicated that Sanders was the driver and one of two persons inside a vehicle from which gunshots were fired at a house in Omaha on May 21, 2011. The evidence included bullets and a shell casing that were found in a search of Sanders' vehicle. The jury was given an aiding and abetting instruction.

The evidence shows that police officers who responded to 911 emergency dispatch calls of shots being fired from a vehicle followed Sanders' vehicle because it met the description of the suspect vehicle. At one point, Sanders' vehicle violated traffic laws, but police awaited backup before stopping [289 Neb. 338] the vehicle. The officers coordinated with other officers to block Sanders' vehicle. Following the stop, Sanders and his passenger were taken into custody. Officers standing near the vehicle saw numerous bullets inside the vehicle in plain view. An officer searched the vehicle and found over 30 bullets and a spent casing.

Sanders appealed his convictions to the Nebraska Court of Appeals, claiming that there was not sufficient evidence to support his convictions and that the district court had imposed excessive sentences. Sanders was represented by attorneys

Page 354

from the Douglas County public defender's office both at trial and on appeal. In case No. A-12-050, the Court of Appeals overruled Sanders' motions to remove counsel and appoint new counsel, and on July 9, 2012, the Court of Appeals summarily affirmed Sanders' convictions and sentences.

Sanders filed a pro se motion for postconviction relief. He asserted several layered claims of ineffective assistance of trial counsel and appellate counsel. Among the claims Sanders asserted in his 59-page motion were claims that counsel was ineffective for failing to challenge the constitutionality of ยง 28-1212.04 and that counsel was ineffective ...


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