1.
Effectiveness of Counsel: Appeal and Error.
Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact.
2. ___:
___. When reviewing a claim of ineffective assistance of
counsel, an appellate court reviews the factual findings of
the lower court for clear error.
3.
Courts: Appeal and Error. Both the district
court and a higher appellate court generally review appeals
from the county court for error appearing on the record.
4.
Judgments: Appeal and Error. When reviewing
a judgment for errors appearing on the record, an appellate
court's inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither
arbitrary, capricious, nor unreasonable.
5.
Appeal and Error. An appellate court
independently reviews questions of law in appeals from the
county court.
6.
Effectiveness of Counsel: Proof. To prevail
on a claim of ineffective assistance of counsel, the
defendant must show that his or her counsel's performance
was deficient and that this deficient performance actually
prejudiced the defendant's defense.
7.
Effectiveness of Counsel: Records: Appeal and
Error. A claim of ineffective assistance of counsel
need not be dismissed merely because it is made on direct
appeal. The determining factor is whether the record is
sufficient to adequately review the question.
8.
Effectiveness of Counsel: Proof: Appeal and
Error. When an ineffective assistance of counsel
claim is raised in a direct appeal, the appellant is not
required to allege prejudice; however, an appellant must make
specific allegations of the conduct that he or she claims
constitutes deficient performance by trial counsel.
[301
Neb. 1007] 9. ___: ___: ___. 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.
10.
Effectiveness of Counsel: Records: Appeal and
Error. An ineffective assistance of counsel claim
made on direct appeal can be found to be without merit if the
record establishes that trial counsel's performance was
not deficient or that the appellant could not establish
prejudice.
11.
Actions: Waiver: Appeal and Error. Under the
law-of-the-case doctrine, a well-recognized waiver rule has
emerged: A decision made at a previous stage of litigation,
which could have been challenged in the ensuing appeal but
was not, becomes the law of the case; the parties are deemed
to have waived the right to challenge that decision.
Appeal
from the District Court for Dodge County, Geoffrey C. Hall
and Timothy P. Burns, Judges, on appeal thereto from the
County Court for Dodge County, Kenneth J. Vampola, Judge.
Marvin
D. Sundquist, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
HEAVICAN, C.J.
I.
INTRODUCTION
This is
an appeal from the district court for Dodge County, Nebraska.
Following a retrial in the county court for Dodge County, a
jury convicted Marvin D. Sundquist of driving under the
influence (DUI), second offense aggravated. Sundquist was
sentenced to 18 months' probation. The district court
affirmed. Sundquist appeals. We affirm.
II.
BACKGROUND
At
approximately midnight on November 17, 2014, Officer Anthony
Gartner conducted a traffic stop on a vehicle for [301 Neb.
1008] speeding. Sundquist was the driver and only person
present in the vehicle. After making contact with Sundquist,
Gartner smelled the odor of alcoholic beverage coming from
inside the vehicle and noticed that Sundquist's eyes were
watery and bloodshot. Sundquist also admitted to drinking.
Gartner
asked Sundquist to perform certain field sobriety tests, as
well as a preliminary breath test. The results of this
testing indicated that Sundquist was impaired. Sundquist was
arrested and submitted to a chemical breath test performed in
accordance with all relevant regulations. The chemical breath
test was completed using a machine commonly referred to as a
"DataMaster," a machine that utilizes infrared
spectro-photometry, or an infrared light beam, to measure the
alcohol content in a person's breath. The result of the
chemical breath test showed Sundquist's breath alcohol
content to be .160 of 1 gram of alcohol per 210 liters of
breath.
1.
Pretrial Proceedings
The
State charged Sundquist with DUI, second offense aggravated,
under Neb. Rev. Stat. §§ 60-6, 196 (Reissue 2010)
and 60-6, 197.03(5) (Cum. Supp. 2014), a Class I misdemeanor.
At a hearing on January 13, 2015, the State offered to drop
the aggravated portion of the charge as part of a plea
agreement in exchange for Sundquist's pleading guilty or
no contest. Sundquist, acting pro se, rejected the offer and
sought a jury trial. At the insistence of the court,
Sundquist was given the opportunity to reconsider his
decision and to seek counsel. Though the order of events is
not entirely clear from the record, it appears that Sundquist
was eventually appointed counsel, but still rejected the
offered plea agreement.
2.
First Trial
Trial
was held on April 9, 2015. Sundquist, by this time
represented by counsel, objected to Gartner's testimony
regarding the results of Sundquist's breath test.
Sundquist's objection was based on the State's
failure to disclose "the appropriate [301 Neb. 1009]
certification" to establish Gartner as qualified to
operate the DataMaster. Sundquist argued that "his
entire defense was based on the State's failure to
disclose the correct permit and that ... he had prepared no
alternative strategy or defense.'' After hearing from
the parties, the county court overruled Sundquist's
objection. The jury found Sundguist guilty, and the county
court found Sundquist's conviction to be a second
offense.
Several
days later, Sundquist's counsel moved for a new trial.
Sundquist, acting pro se, moved to withdraw the motion and
further asked that new counsel be appointed. In response,
Sundquist's trial counsel withdrew and new counsel was
appointed. Sundquist was subsequently sentenced to 18
months' probation.
3.
First Appeal
On June
16, 2015, Sundquist appealed his conviction to the district
court. In that appeal, Sundquist argued, among other things,
that the county court erred in allowing the arresting officer
"to provide testimony in regard to the results of the
test as his certification to operate the testing device was
not previously provided to [Sundquist] and his counsel."
After hearing from the parties, the district court agreed
that the county court had erred. The district court further
concluded that the error was not harmless. Accordingly, the
district court reversed the county court's judgment and
remanded the case for further proceedings.
On
February 26, 2016, Sundquist appealed to the Nebraska Court
of Appeals, arguing that the Double Jeopardy Clause forbade a
retrial. On July 29, in case No. A-16-213, the Court of
Appeals rejected that argument and summarily affirmed.
4.
Second Trial
A
second trial was held on April 20, 2017. Sundquist filed
multiple pretrial motions. First, Sundquist moved for
discharge on speedy trial grounds, which the county court
denied. Second, [301 Neb. 1010] once the State made clear
that it would not offer Sundquist a plea agreement as it had
initially done prior to the first trial. Sundquist moved to
dismiss on the grounds of prosecutorial misconduct and
prosecutorial vindictiveness. That motion was also denied.
At
trial, the State again called Gartner to testify. His
testimony was consistent with his prior testimony and covered
the traffic stop, the on-the-scene investigation, and the
chemical breath test at the police station. The State also
called the maintenance officer for the breath test machine to
testify. The officer's testimony encompassed the chemical
breath test machine, the various maintenance protocols, and
the relevant margin of error. Specifically, he testified that
the machine was working properly on the day in question.
A jury
found Sundquist guilty, and the county court again determined
that Sundquist's conviction was a second offense.
Sundquist was again sentenced to 18 months' probation.
5.
Second Appeal
On May
30, 2017, Sundquist, represented by counsel, appealed his
conviction to the district court. Counsel did not file a
statement of errors on Sundquist's behalf before that
court. Despite this, the district court addressed the issue
raised at the appeal hearing: that Sundquist was entitled to
a reoffer of the earlier plea agreement that the State
proposed before the first trial and the State's failure
to do so was improper. The district court affirmed the county
court's judgment and conviction, noting that the court
found no error. Sundquist appeals.
III.
ASSIGNMENTS OF ERROR
Sundquist
assigns, consolidated and restated, that (1) his counsel was
ineffective in various ways, (2) both counsel were
ineffective and Sundquist's due process rights were
violated with respect to the State's only offered plea
agreement, and (3) his constitutional rights were violated by
various actions of the State and the trial court.
[301
Neb. 1011] IV. STANDARD OF REVIEW
Appellate
review of a claim of ineffective assistance of counsel is a
mixed question of law and fact.[1] When reviewing a claim of
ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear
error.[2] With regard to the questions of
counsel's performance or prejudice to the defendant as
part of the two-pronged test articulated in Strickland v.
Washington, [3] an appellate court reviews such legal
determinations independently of the lower court's
decision.[4]
Both
the district court and a higher appellate court generally
review appeals from the county court for error appearing on
the record.[5] When reviewing a judgment for errors
appearing on the record, an appellate court's inquiry is
whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable.[6]But an appellate court independently
reviews questions of law in appeals from the county
court.[7]
V
ANALYSIS
1.
Ineffective Assistance of Counsel
Sundquist
contends that he received ineffective assistance of counsel
during the course of his representation. First, he argues
that he was, in effect, denied an appeal to the district
court because (1) he received ineffective assistance of
counsel in that his attorney (a) failed to file a statement
of errors, (b) failed to make "persuasive"
arguments, (c) failed to [301 Neb. 1012] adequately challenge
the chemical breath test, and (d) failed to argue that his
performance on the field sobriety tests was inconsistent with
the level of intoxication as indicated by the chemical breath
test, and (2) the court prevented him from arguing in his own
behalf. Sundquist next claims his counsel was ineffective by
not adequately communicating with Sundquist. Finally,
Sundquist argues that the State interfered with his right to
effective assistance of counsel in the first trial by not
disclosing that Gartner was qualified to operate the chemical
breath test machine, which Sundquist argues interfered with
his counsel's ability to advise him during plea
negotiations.
To
prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, the defendant must show
that his or her counsel's performance was deficient and
that this deficient performance actually prejudiced the
defendant's defense.[8] A claim of ineffective assistance of
counsel need not be dismissed merely because it is made on
direct appeal. The determining factor is whether the record
is sufficient to adequately review the
question.[9] When the claim is raised in a direct
appeal, the appellant is not required to allege prejudice;
however, an appellant must make specific allegations of the
conduct that he or she claims constitutes deficient
performance by trial counsel.[10] 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.[11]
Appellate
courts have generally reached ineffective assistance of
counsel claims on direct appeal only in those instances where
it was clear from the record that such claims [301 Neb. 1013]
were without merit, or in the rare case where trial
counsel's error was so egregious and resulted in such a
high level of prejudice that no tactic or strategy could
overcome the effect of the error, which effect was a
fundamentally unfair trial. An ineffective assistance of
counsel claim made on direct appeal can be found to be
without merit if the record establishes that trial
counsel's performance was not deficient or that the
appellant could not establish prejudice.[12]
As we
have previously stated, an appellant is required to
specifically assign and argue his or her trial counsel's
allegedly deficient conduct.[13] This arises from a fundamental
rule of appellate practice. An alleged error must be both
specifically assigned and specifically argued in the brief of
the party asserting the error to be considered by an
appellate court.[14] A generalized and vague assignment of
error that does not advise an appellate court of the issue
submitted for decision will not be considered.[15] Similarly, an
...