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State v. Sundquist

Supreme Court of Nebraska

January 4, 2019

State of Nebraska, appellee,
v.
Marvin D. Sundquist, appellant.

         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 ...


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