Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Robeson

Court of Appeals of Nebraska

October 17, 2017

State of Nebraska, appellee,
v.
Brian P. Robeson, appellant.

         1. Constitutional Law: Waiver: Appeal and Error. In determining whether a defendant's waiver of a statutory or constitutional right was voluntary, knowing, and intelligent, an appellate court applies a clearly erroneous standard of review.

         2. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits unless the trial court abused its discretion.

         3. Sentences: Words and Phrases: Appeal and Error. An appellate court reviews criminal sentences for an abuse of discretion, which occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         4. Effectiveness of Counsel: Constitutional Law: Statutes: Records: Appeal and Error. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the record to address the claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement.

         5. Criminal Law: Presentence Reports. The plain language of Neb. Rev. Stat. § 29-2261(1) (Reissue 2016) provides that a presentence investigation is generally required in felony cases; however, there are exceptions under which such an investigation is unnecessary.

         6. Presentence Reports. A presentence investigation may be impractical where another investigation had just been completed.

         7. Presentence Reports: Waiver. A presentence investigation may be waived.

         8. Attorney and Client: Waiver. A defendant may waive a right by silently acquiescing to the waiver given by his counsel, and by failing to object and raise the issue to a trial court.

         [25 Neb.App. 139] 9. Sentences. In imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.

         10. ___ . Neb. Rev. Stat. § 29-2204 (Reissue 2016) requires a sentence for a Class II felony to have different minimum and maximum terms of imprisonment.

         11. Sentences: Time. Neb. Rev. Stat. § 29-2204 (Reissue 2016) is not effective unless the offense was committed on or after August 30, 2015.

         12. ___: ___. When an element of the charged offense occurred prior to August 30, 2015, Neb. Rev. Stat. § 29-2204 (Reissue 2016) does not apply to the defendant's sentence.

         13. Sentences. A sentence with the same minimum term and maximum term is an indeterminate sentence.

         14. Effectiveness of Counsel: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred.

         15. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.

         16. Effectiveness of Counsel: Proof: Appeal and Error. General allegations that trial counsel performed deficiently or that trial counsel was ineffective are insufficient to raise an ineffective assistance claim on direct appeal and thereby preserve the issue for later review.

         Appeal from the District Court for Douglas County: Kimberly Miller Pankonin, Judge. Affirmed.

          Thomas C. Riley, Douglas County Public Defender, and Mikki C. Jerabek for appellant.

          Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.

          Moore, Chief Judge, and Bishop and Arterburn, Judges.

         [25 Neb.App. 140] Arterburn, Judge.

         I. INTRODUCTION

         Brian P. Robeson appeals from his plea-based conviction for first degree sexual assault. On appeal, Robeson asserts that the district court erred in imposing an excessive sentence and in sentencing him without first obtaining a presentence investigation report. Robeson also asserts that he received ineffective assistance of counsel. For the reasons set forth herein, we affirm.

         II. BACKGROUND

         On January 4, 2016, the State filed an information charging Robeson with two counts of first degree sexual assault of a child, in violation of Neb. Rev. Stat. § 28-319.01(1)(b) (Reissue 2016), each a Class IB felony. On September 22, a hearing was held. At this hearing, defense counsel informed the district court that a plea agreement had been reached. Counsel indicated that as a part of the plea agreement, Robeson would plead guilty to one count of first degree sexual assault, as alleged in the amended information. The State was granted leave to file an amended information charging Robeson with two counts of first degree sexual assault, in violation of Neb. Rev. Stat. § 28-319(1)(c) (Reissue 2016), each a Class II felony. The State agreed to dismiss the second count of first degree sexual assault alleged in the amended information as a part of the plea agreement. Also as a part of the plea agreement, Robeson and the State would jointly recommend a sentence of 40 to 40 years' imprisonment.

         The State provided a factual basis for Robeson's plea to first degree sexual assault. According to that factual basis, Robeson was a teacher who began a romantic relationship with one of his seventh grade students. Robeson was initially the victim's mentor, but the relationship escalated into their kissing and having sexual intercourse on multiple occasions. When the victim was interviewed, she said that she and Robeson were dating and that she planned on marrying him and having children with him. When Robeson was [25 Neb.App. 141] interviewed by law enforcement, he admitted that he loved the victim and was not ashamed of his relationship with her. He described that he began talking to the victim when she was 12 years old but did not begin intimate contact with her until she was 13 years old. He admitted that he engaged in sexual intercourse with the victim at various locations, including her house and his car. Robeson was 34 to 35 years old during this time, and the victim was 13 to 14 years old. The sexual penetration occurred "[o]n or about" September 1, 2014, through December 27, 2015.

         The district court found that Robeson understood the nature of the charge against him and the possible sentence; that his plea was made freely, knowingly, intelligently, and voluntarily; and that the factual basis supported his plea. The court then accepted Robeson's guilty plea to first degree sexual assault.

         After the court accepted Robeson's guilty plea, defense counsel indicated to the court that "in light of the plea agreement we're asking for an expedited sentencing." The court then confirmed with counsel that Robeson was waiving his right to have a presentence investigation report completed.

         A sentencing hearing was held on October 11, 2016. At the start of this hearing, defense counsel asked the court for "a short postponement" of sentencing. The court denied this request. Defense counsel and Robeson then provided statements to the court wherein each asked for leniency and "mercy" from the court. In fact, defense counsel specifically asked the court to consider a minimum sentence that is "slightly less" than the minimum of 40 years' imprisonment the parties had agreed to recommend as part of the plea agreement.

         In response to the statements of defense counsel and Robeson, both the State and the district court questioned whether Robeson wished to withdraw his plea so that he did not have to agree to jointly recommend a sentence of 40 to 40 years' imprisonment. The court indicated to Robeson that it was "not going to consider less than the plea agreement as that [25 Neb.App. 142] was the plea agreement." Robeson briefly spoke with ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.