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State v. Spang

Supreme Court of Nebraska

February 15, 2019

State of Nebraska, appellee,
Ross W. Spang, 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. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. 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, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision.

         2. __:__. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel's performance was deficient and whether the defendant was or was not prejudiced by counsel's alleged deficient performance.

         3. Sentences: Appeal and Error. Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court's discretion.

         4. 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 in order to preserve such claim. Once raised, the appellate court will determine whether the record on appeal is sufficient to review the merits of the ineffective performance claims.

         5. 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.

         [302 Neb. 286] 6. Effectiveness of Counsel: Records: Appeal and Error. The trial record reviewed on appeal is devoted to issues of guilt or innocence; as such, it does not usually address issues of counsel's performance and is often insufficient to review on direct appeal an ineffective assistance of counsel claim.

         7. Effectiveness of Counsel: Records: Proof: 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.

         8. 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 has the burden to show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.

         9. __:__. To show deficient performance, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area.

         10. __:__. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

         11. Issue Preclusion: Words and Phrases. Issue preclusion means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties or their privies in any future lawsuit.

         12. Issue Preclusion. There are four conditions that must exist before issue preclusion may apply: (1) The identical issue was decided in a prior action, (2) there was a judgment on the merits which was final, (3) the party against whom the rule is applied was a party or in privy with a party to the prior action, and (4) there was an opportunity to fully and fairly litigate the issue in the prior action.

         13. Issue Preclusion: Prior Convictions. Issue preclusion does not apply to determinations of whether prior convictions can be used to enhance the classification of or sentence imposed on a subsequent conviction.

         14. Judgments: Appeal and Error. 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.

         15. Sentences. When 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 [302 Neb. 287] well as (7) the nature of the offense, and (8) the violence involved in the commission of the crime.

         16. __ . 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.

          Appeals from the District Court for Lancaster County: John A. Colborn, Judge. Affirmed.

          Joseph D. Nigro, Lancaster County Public Defender, and Robert G. Hays for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          FREUDENBERG, J.


         These consolidated cases present direct appeals by the defendant of his convictions for driving under the influence (DUI), fifth offense, a Class IIA felony, and aggravated DUI, fifth offense, a Class II felony. The defendant's convictions arise out of a no-contest plea agreement involving two separate criminal cases. The central issue raised by the defendant on appeal is whether his trial counsel was ineffective by failing to offer at the enhancement hearing available evidence that allegedly would have established that the State was precluded from relitigating a Wisconsin court's determination that a prior conviction was invalid for enhancement purposes. The defendant also asserts that his sentences are excessive.


         DUI Incidents

         Ross W. Spang's DUI convictions that are challenged on appeal are based on the following facts occurring in May and August 2016 respectively.

         [302 Neb. 288] In May 2016, an officer witnessed Spang turn the wrong way driving down a one-way street. The officer initiated a traffic stop and immediately noticed that Spang was intoxicated based on his slurred speech; red, watery eyes; and a strong odor of alcohol coming from him. The officer ordered Spang to exit his vehicle, and Spang fell down while exiting. The officer testified that Spang showed signs of impairment during his field sobriety test and that he failed his preliminary breath test. After being arrested and transported to jail, Spang completed a Breathalyzer test with a result of 0.190 grams of alcohol per 0.210 liters of his breath.

         In August 2016, a state trooper pulled Spang's vehicle over after observing it traveling 82 miles per hour in a 60-mile-per-hour zone. The trooper initiated a traffic stop. The vehicle was being driven by Spang and had two passengers. When he made contact with Spang, the trooper could detect a strong odor of alcohol.

         When prompted for his identification, Spang identified himself as "Reid Alan Spang." The trooper eventually learned that Spang had given a false name and that his true identity was "Ross Wayne Spang" with an address in Wisconsin.

         The trooper later isolated the alcohol odor to Spang and had him submit to a field sobriety test and a preliminary breath test. During the field sobriety test, the trooper saw signs of impairment. In addition, the preliminary breath test showed a result of 0.128. Based on these circumstances, the trooper informed Spang that he was under arrest. However, when the trooper attempted to handcuff Spang, Spang ran ...

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