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State v. Determan

Court of Appeals of Nebraska

January 27, 2015

STATE OF NEBRASKA, APPELLEE,
v.
AARON L. DETERMAN, APPELLANT

Page 900

Appeal from the District Court for Saline County: VICKY L. JOHNSON, Judge.

Jeffrey A. Gaertig, of Carlson, Schafer & Davis, P.C., L.L.O., for appellant.

Aaron L. Determan, Pro se.

Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.

INBODY, RIEDMANN, and BISHOP, Judges.

OPINION

Page 901

[22 Neb.App. 684] Inbody, Judge.

INTRODUCTION

Aaron L. Determan appeals the portion of the decision of the Saline County District Court denying his motion for postconviction relief without an evidentiary hearing on his claims that trial counsel failed to object to the State's breach of a plea agreement, failed to properly effectuate a continuance of the sentencing hearing, failed to advise him of the requirement of corroboration for a plea-based drug conviction, and stipulated to corroboration. The court determined that an evidentiary hearing was required regarding Determan's remaining claim, that his trial counsel was ineffective for failing to timely perfect his direct appeal.

STATEMENT OF FACTS

Previous Case.

Determan was charged with unlawful manufacture or distribution of a controlled substance, a Class III felony. A jury trial was set for February 27 and 28, 2013; however, on February 26, Determan appeared with counsel and waived his right to a jury trial. The following day, Determan entered a plea of guilty to the charged offense. The only plea agreement in this case was that the State would not make a sentencing recommendation other than to submit the matter based on the information contained in the presentence investigation report (PSR). The State provided the following factual basis: On June 14, 2011, Determan made contact with an informant who had been cooperating with the Nebraska State Patrol regarding drug investigative matters.

Page 902

Determan and the informant had been texting back and forth during the afternoon hours of June 14, and an agreement was reached for Determan to deliver 2 grams of hashish to the informant. The informant, in cooperation with the Nebraska State Patrol, was transported by a State Patrol investigator to a location [22 Neb.App. 685] in Wilber, Saline County, Nebraska, at which point he proceeded to the door of a residence and had a brief discussion with Determan. At that point, there was an exchange where Determan provided to the informant a plastic baggie containing a brown substance which looked like hashish. Hashish is a derivative of a Schedule I drug that also has tetrahydrocannabinol (THC) in it. The informant provided $60 to Determan for the transaction. The informant then got back into the State Patrol vehicle and delivered the substance to the State Patrol investigator. The substance was analyzed by the Nebraska State Patrol laboratory, which showed the substance to be THC, a Schedule I drug, which is a controlled substance under Nebraska law.

Upon the reading of the factual basis, the following colloquy occurred among the district court, defense counsel, and Determan:

THE COURT: Anything to add as far as the facts are concerned, [defense counsel]?
[Defense counsel]: No, Your Honor.
THE COURT: Do you stipulate there was sufficient ...

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