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State v. Honken

Court of Appeals of Nebraska

December 12, 2017

State of Nebraska, appellee,
v.
Robert S. Honken, appellant.

          1. Double Jeopardy: Lesser-Included Offenses: Appeal and Error. Whether two provisions are the same offense for double jeopardy purposes presents a question of law, on which an appellate court reaches a conclusion independent of the court below.

         2. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         3. Judgments: Words and Phrases. An abuse of discretion 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: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law.

         5. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusion.

         6. Double Jeopardy. The Double Jeopardy Clauses of the federal and Nebraska constitutions protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

         7. Constitutional Law: Double Jeopardy. The protection provided by Nebraska's double jeopardy clause is coextensive with that provided under the U.S. Constitution.

         8. Criminal Law: Conspiracy: Double Jeopardy. Under the Double Jeopardy Clause, the subdivision of a single criminal conspiracy into multiple violations of one conspiracy statute is prohibited.

          [25 Neb.App. 353]

          9. Double Jeopardy. The traditional test used to determine whether two charged offenses constitute only one offense is the Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), or "same evidence, " test.

         10. _. Under the Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), or "same evidence, " test, the offenses are considered identical for double jeopardy purposes where the evidence required to support conviction on one offense is sufficient to support conviction on the other offense.

         11. _ .A totality of the circumstances test for purposes of double jeopardy considers five factors: (1) time, (2) identity of the alleged coconspirators, (3) the specific offenses charged, (4) the nature and scope of the activity, and (5) location.

         12. Conspiracy. The principal element of a conspiracy is an agreement or understanding between two or more persons to inflict a wrong against or injury upon another, although an overt act is also required.

         13. _ .A conspiracy is ongoing until the central purposes of the conspiracy have either failed or been achieved.

         14. Conspiracy: Proof: Presumptions. Upon proof of participation in a conspiracy, a conspirator's continuing participation is presumed unless the conspirator demonstrates affirmative withdrawal from the conspiracy.

         15. Conspiracy. Withdrawal from a conspiracy must be effectuated by more than ceasing, however definitively, to participate in the conspiracy.

         16. _ . A coconspirator must make an affirmative action either by making a clean break to the authorities or by communicating abandonment in a manner calculated to reach coconspirators and must not resume participation in the conspiracy.

         17. _ . In order to constitute multiple conspiracies, the agreements must be distinct and independent from each other.

         18. _ . There may be a continuing conspiracy with changing coconspirators so long as there are never fewer than two conspirators.

         19. _ . A gap wherein there are fewer than two coconspirators breaks the continuity and the subsequent appearance of a new and different coconspirator creates a new and separate conspiracy.

         20. _ . It is necessary for one conspiracy to end before a second distinct and separate conspiracy can be formed; the question is whether there was a break, for an appreciable time, in the sequence of events, in order to categorize the agreements as separate and distinct.

         21. _ . As a practical matter, the fact that a conspirator in a two-person conspiracy seeks a replacement for a departed would-be cohort is a strong indication of the failure of one conspiracy and the creation of another.

         [25 Neb.App. 354] 22. Sentences. When imposing a sentence, the sentencing court is to consider factors such as 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. However, the sentencing court is not limited to any mathematically applied set of factors.

         23. _ . The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

         24_ . Traditionally, a sentencing court is accorded very wide discretion in determining an appropriate sentence.

         25. 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.

         26. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question.

         27. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing.

         Appeal from the District Court for Hamilton County: Rachel A. Daugherty, Judge. Affirmed.

          Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom & Stehlik, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Melissa R. ...


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