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State v. Iddings

Supreme Court of Nebraska

January 3, 2020

State of Nebraska, appellee,
Matthew P. Iddings, appellant.

         1. Judgments: Appeal and Error. When issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

         2. 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.

         3. 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.

         4. Plea Bargains: Waiver: Appeal and Error. Where no objection was made to the sentencing judge for a plea bargain violation, the defendant has waived the error and it has not been preserved for appellate review.

         5. 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 his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.

         6. Courts: Plea Bargains. Courts enforce only those terms and conditions actually agreed upon by the parties to a plea agreement.

         7. Plea Bargains. A party breaches a plea agreement either by (1) violating an express term of the agreement or (2) acting in a manner not specifically prohibited by the agreement but still incompatible with explicit promises made therein.

         8. Plea Bargains: Sentences. A sentencing recommendation need not be enthusiastic in order to fulfill a promise made in a plea agreement.

         9. Appeal and Error. It is a fundamental rule of appellate practice that an alleged error must be both specifically assigned and specifically argued [304 Neb. 760] in the brief of the party asserting the error to be considered by an appellate court.

         10. __. A generalized and vague assignment of error that does not advise an appellate court of the issue submitted for decision will not be considered.

         11. Presentence Reports: Waiver. The statutory right to have a presentence investigation completed prior to being sentenced may be waived so long as that waiver was knowingly and intelligently made.

         12. Waiver. No formalistic litany of warnings is required to show that a waiver was knowingly and intelligently made.

         13. Presentence Reports: Waiver: Appeal and Error. The appropriate standard to apply in the case of a waiver of the right to a presentence investigation under Neb. Rev. Stat. § 29-2261 (Cum. Supp. 2014) is whether it is apparent from the totality of the circumstances reflected in the record that the defendant, when waiving the right, was sufficiently aware of his or her right to a presentence investigation and the possible consequences of his or her decision to forgo that right.

         14. Criminal Law: Waiver. A knowing and intelligent waiver may be demonstrated by or inferred from the defendant's conduct.

         15. Courts: Presentence Reports: Waiver. It is the better practice for a sentencing court to issue a more direct advisement of the statutory right to a presentence investigation, conduct an explicit inquiry into the voluntariness of a defendant's waiver of that right, and make explicit findings with respect to a waiver.

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

         17. 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.

         18. Sentences. 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.

         19. Plea Bargains: Judges: Sentences. A judge is in no manner bound to give a defendant the sentence recommended by the prosecutor under a plea agreement.

         20. 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 [304 Neb. 761] without an evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement.

         21. Effectiveness of Counsel: Records: Appeal and Error. When 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 did or did not provide effective assistance, and whether the defendant was or was not prejudiced by counsel's alleged deficient performance.

          Appeal from the District Court for Hall County: John H. Marsh, Judge. Affirmed.

          Jonathan M. Hendricks, of Dowding, Dowding, Dowding & Urbom Law Offices, for appellant.

          Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

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

          Freudenberg, J.


         This case presents an appeal from a sentence imposed after the defendant pled guilty pursuant to a plea agreement. The State and the defendant had jointly agreed to recommend an 18-month period of incarceration. The district court ultimately sentenced the defendant to an indeterminate term of 18 months' to 5 years' incarceration, and the defendant appeals. The defendant asserts that the State breached its agreement to recommend a sentence of 18 months' incarceration by remarking that it "struggled" concerning the sentencing recommendation. Further, the defendant argues that the court erred by failing to order a presentence investigation when, although defense counsel below stated that the defendant was waiving the presentence investigation, the court only articulated that it had found such an investigation to be impractical. The defendant argues that the court abused its discretion in finding a [304 Neb. 762] presentence investigation impractical. The defendant generally asserts that the sentence was excessive and was a result of the court's abuse of discretion in failing to consider all of the sentencing factors, such as mentality, education and experience, or social and cultural background, in part as a result of failing to conduct a presentence investigation. Finally, the defendant argues that defense counsel below was ineffective for failing to request the proper amount of jail time credit pertaining to alleged time spent in jail in another county under arrest warrants for both the present case and the charges filed in that other county.


         In relation to a traffic stop that occurred in July 2015, the defendant, Matthew P. Iddings, was originally charged under "60-6, 196.15" with driving under the influence (DUI), fourth offense aggravated, a Class III felony. Defense counsel and the State reached a plea agreement pursuant to which the State filed an amended information charging Iddings with a nonag-gravated DUI, fourth offense, under Neb. Rev. Stat. § 60-6, 196 (Reissue 2010), a Class IIIA felony.

         The amended information described that on July 2, 2015, Iddings operated a motor vehicle and had a concentration of .08 of 1 gram or more by weight of alcohol per 100 milliliters of his blood or .08 of 1 gram or more by weight of alcohol per 210 liters of his breath. The amended complaint further alleged that this was the fourth DUI offense committed by Iddings, who had been previously convicted of DUI in Nebraska on or about May 26, 2005, and March 15 and December 12, 2007.

         At the plea and sentencing hearing held on March 6, 2019, defense counsel and the State explained to the court that they had reached a plea agreement under which the State amended the information from aggravated DUI, fourth offense, to non-aggravated DUI, fourth offense, and agreed to recommend jointly with defense counsel that Iddings be sentenced to 18 months' incarceration.

         [304 Neb. 763] As the factual basis for the crime, the State recited that on July 2, 2015, the "Nebraska State Patrol Help Line" received multiple telephone calls about a potential drunk driver on Interstate 80. An officer was able to locate the vehicle and observed both passenger-side tires drive off the shoulder of the roadway two different times. The officer conducted a traffic stop and, upon contact with the driver, Iddings, noticed a smell of alcoholic beverage. A blood draw was eventually conducted on Iddings, which demonstrated .307 grams of alcohol per 100 milliliters of blood.

         Defense counsel agreed with the factual basis. Defense counsel also stated the defense was willing to stipulate to the prior DUI offenses alleged in the information and that Iddings had been represented by an attorney in each of the three prior offenses.

         The court found the factual basis adequate to support the plea. After a standard plea colloquy, the court accepted Iddings' no contest plea. The court found that the plea was not a result of any promise or threat; that the plea was entered knowingly, voluntarily, and intelligently; and that Iddings knowingly, voluntarily, and intelligently waived his constitutional rights.

         Defense counsel advised the court that Iddings' preference was to proceed immediately to sentencing, noting that he had calculated the jail time credit. The court did so.

         When the court asked about a presentence investigation, defense counsel stated, "Your honor, . . . Iddings will waive his right to a presentence investigation." When asked by the court for its comments, the State expressed that it had no objection to Iddings' waiver of the presentence investigation. However, Iddings was not personally addressed by the court regarding such waiver.

         The State noted with regard to Iddings' criminal history that other than the three prior convictions listed on the information, Iddings also had a prior DUI in 1997. Further, he had committed a more recent DUI in Sarpy County around the same time as the charge he had just pled to and for which in October 2018 [304 Neb. 764] he had been sentenced to 18 months' incarceration. Lastly. Iddings had a pending DUI charge in Grant County.

         Defense counsel did not contest this history other than clarifying that Iddings had just finished serving his sentence on the Sarpy County conviction in October 2018, as opposed to being sentenced in October 2018. Further, defense counsel described that Iddings had already pled guilty to the charge of nonaggravated DUI, fourth offense, in Grant County and was awaiting sentencing.

         After being so informed of the pending charges in Grant County, the district court for Hall County confirmed that Iddings was "likely to be transported to another county when [Hall County authorities were] done with him." The court found "under those circumstances that a presentence investigation is impractical." Defense counsel did not object to this conclusion. The court did not make an express finding that the presentence investigation had been waived.

         Defense counsel asked the court to adopt the plea agreement and sentence Iddings to 18 months' incarceration with 136 days' credit. Defense counsel informed the court that Iddings had been in jail from October 23, 2017, to the date of the hearing, March 6, 2019, and that he had been in jail for 2 additional days in 2015.

         Defense counsel asked the court to consider in sentencing that Iddings had not been out of jail since 2017 and had thus experienced a long period of sobriety. According to defense counsel, Iddings fully intended to "walk out of the Department of Corrections a better man than when he ...

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