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State v. Johnson

Supreme Court of Nebraska

March 13, 2015

STATE OF NEBRASKA, APPELLEE,
v.
TIUANA L. JOHNSON, APPELLANT

Page 878

[Copyrighted Material Omitted]

Page 879

Appeal from the District Court for Lancaster County: JODI NELSON, Judge.

AFFIRMED.

Dennis R. Keefe, Lancaster County Public Defender, Paul E. Cooney, and Mark Carraher, Senior Certified Law Student, for appellant.

Jon Bruning, Attorney General, George R. Love, and Mary C. Byrd, Senior Certified Law Student, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 880

[290 Neb. 370] McCormack, J.

NATURE OF CASE

Tiuana L. Johnson was convicted of escape in violation of Neb. Rev. Stat. § 28-912(5)(a) (Reissue 2008) and sentenced as a habitual criminal. On appeal, Johnson does not challenge the underlying conviction for escape. Rather, he challenges the habitual criminal statute on its face and as applied. Johnson also asserts that the State's motion to amend the information was untimely and that his sentence was excessive.

BACKGROUND

On June 21, 2013, Johnson was charged with Class III felony escape, under § 28-912(5)(a). In an amended information filed on August 15, 2013, Johnson was also charged with being a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 2008).

[290 Neb. 371] Johnson objected to the State's motion to amend the information to add the habitual criminal charge. The hearing on the State's motion to amend was held on August 15, 2013. Johnson argued that the county attorney had had ample time and that Johnson was ready to plead no contest to the charge in the original information. The State explained that it had been waiting to receive the record of two prior convictions that it wished to use in support of the habitual criminal charge. The State also observed that there was still plenty of time remaining for the State's statutory obligation to bring Johnson to trial. The court allowed the amendment. The amended information was filed on that same date.

Johnson thereafter filed a motion to quash the amended information insofar as it charged Johnson with being a habitual criminal. In the motion to quash, Johnson asserted that the habitual criminal statutory scheme was unconstitutional because it fails to provide for a jury determination of certain facts pertaining to the prior convictions. Johnson also asserted that application of the habitual criminal statutes violated double jeopardy because the same conviction that made the escape charge a Class III felony rather than a Class IV felony formed the basis of the habitual criminal enhancement. Johnson further asserted that the application of the habitual criminal statutes would violate a state constitutional provision, Neb. Const. art. I, § 15, requiring that penalties be proportionate to the offense. Finally, Johnson asserted that application of the habitual criminal enhancement would be cruel and unusual punishment. Johnson did not assert in the motion to quash that the untimeliness of the amendment to the information prejudiced his substantial rights.

The court overruled the motion to quash. Johnson waived his right to a jury trial and his right to a speedy trial. The underlying charge of escape was tried on November 25, 2013, on three stipulated exhibits, subject to Johnson's renewed motion to quash and the court's guarantee that it would not consider any other crimes, wrongs, or acts for purposes of determining whether Johnson committed the crime of escape. Additionally, Johnson stipulated that he was the person named in the exhibits.

[290 Neb. 372] These exhibits generally show that on September 20, 2012, Johnson was incarcerated following a conviction for the commission of an offense. He was out on an

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approved " Job Seeking pass" in Lincoln, Nebraska, and failed to return. Johnson committed a robbery in Omaha, Nebraska, that same day. Johnson was apprehended on September 28 and confessed to the escape and robbery.

The court found Johnson guilty of escape, in violation of § 28-912(5)(a). Upon the court's inquiry, Johnson's counsel indicated that she was " fine with" taking up the issue of enhancement.

In support of the habitual criminal charge, the court accepted into evidence five exhibits proffered by the State. Johnson did not make any objection to the exhibits other than those based on his prior motion to quash. The exhibits demonstrated that before his escape on September 20, 2012, Johnson had committed nine crimes for ...


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