Opinion
No. A-10-1091
08-02-2011
STATE OF NEBRASKA, APPELLEE, v. JACOB R. WISTROM, APPELLANT.
Gregory A. Pivovar for appellant. Jon Burning, Attorney General, and Kimberly A. Klein for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Sarpy County: Max Kelch, Judge. Affirmed.
Gregory A. Pivovar for appellant.
Jon Burning, Attorney General, and Kimberly A. Klein for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Jacob R. Wistrom appeals from his plea-based conviction and sentence in the district court for Sarpy County. On appeal, Wistrom asserts that he received ineffective assistance of trial counsel and that the trial court abused its discretion in connection with the sentence imposed. The record is inadequate to review Wistrom's claim of ineffective assistance on direct appeal. Because we find that Wistrom did not receive an excessive sentence and that the court did not abuse its discretion in sentencing him to a term of imprisonment in lieu of probation, we affirm.
BACKGROUND
On June 4, 2010, the State filed an information in the district court charging Wistrom with two counts of burglary in violation of Neb. Rev. Stat. § 28-507 (Reissue 2008), both Class III felonies. On July 8, Wistrom's attorney filed a motion for a competency evaluation. The motion alleged that Wistrom graduated from high school, but that he was in special education, and that based on Wistrom's history and counsel's conversations with Wistrom's family, Wistrom may not be competent to stand trial.
A hearing was held on August 2, 2010. Wistrom's attorney informed the district court that the motion for competency evaluation was being withdrawn and that a plea agreement had been reached, whereby Wistrom would plead guilty to count II of the information and count I would be dismissed. There was no agreement as to sentencing. Wistrom confirmed that this was his understanding of the entire plea agreement and that he wanted to enter such a plea at the August 2 hearing. The court then asked Wistrom's attorney if she was formally withdrawing her motion for a competency evaluation, to which she replied:
Yes. Your Honor, I'm not an expert. I guess I do want to say for the record I've had many discussions with . . . Wistrom. He does, from my opinion, appear to know the difference between right and wrong, at least have a general understanding of the roles involving the parties, the prosecutors, the Court and myself.The court then proceeded with a plea hearing. The record shows that Wistrom was 20 years old at the time of the hearing.
The district court informed Wistrom of all the rights he would give up if he pled guilty, and he acknowledged that he understood those rights and had no questions. Wistrom pled guilty to count II of the information, and the State offered a factual basis. Wistrom informed the court that he had no disagreement with the factual basis provided, that he was entering his guilty plea freely and voluntarily, and that no promises, other than the stated plea agreement, and no threats had been made to get him to enter his plea. The court then found that there was a factual basis to support Wistrom's plea and that the waiver of rights was knowing, voluntary, and intelligent. The court accepted the plea and found Wistrom guilty of count II of the information. The court also noted on the record:
[A]ll of the answers [Wistrom] gave were appropriate when I would ask him specific questions. He appeared to respond. So the Court is doing that because of the previous motion for competency that was filed, and then later withdrawn. All the answers here today seemed appropriate for the questions asked.
A sentencing hearing was held on October 4, 2010, at which time Wistrom's attorney informed the district court that Wistrom was adopted, had been in foster care prior to being adopted, and had been abused. Wistrom has fetal alcohol syndrome, and his family sought juvenile court services for him while he was growing up because of this and unresolved issues of abuse and neglect. Wistrom had been placed at a treatment facility in Missouri and was sexually abused by a staff member while there. Wistrom's counsel stated, "With fetal alcohol syndrome I think that sometimes it can take longer for things to sink in because it's more difficult for them to understand cause and effect. But [Wistrom] seems to be getting this now." She stated further, "He's truly remorseful every time I've spoken with him." Wistrom's counsel informed the court that Wistrom had the support of his parents and siblings and wanted a chance for probation. Wistrom apologized directly to the court for what he had done, stated that he hoped the families he victimized could "get back on their feet," and stated that he was sorry for what he had done to them.
The district court then reviewed Wistrom's prior charges and convictions and observed that the victim's letter in the presentence investigation report (PSR) indicated how fearful her family was now because of the burglary and how it would continue to affect them in the future. The court found that imprisonment was necessary for the protection of the public and that a lesser sentence would depreciate the seriousness of the crime. The court sentenced Wistrom to 3 to 6 years in prison for the burglary with credit for 166 days of time served. Wistrom subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Wistrom asserts, consolidated and restated, that (1) he received ineffective assistance of trial counsel and (2) the district court abused its discretion in sentencing him.
STANDARD OF REVIEW
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. State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010). If the matter has not been raised or ruled on at the trial court level and requires an evidentiary hearing, an appellate court will not address the matter on direct appeal. Id.
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011). An order denying probation and imposing a sentence within the statutorily prescribed limits will not be disturbed on appeal unless there has been an abuse of discretion. State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009). The term "judicial abuse of discretion" means that the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. Id.
ANALYSIS
Ineffective Assistance.
Wistrom asserts that he received ineffective assistance of trial counsel because he was not competent to enter a knowing, voluntary, and intelligent plea.
To establish a claim of ineffective assistance of counsel, the defendant has the burden to show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defendant. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). See, also, Strickland v. Washington, 466 U.S. 558, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 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. State v. McGhee, supra. When a conviction is the result of a guilty plea or a plea of no contest, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the convicted defendant can show a reasonable probability that, but for the errors of counsel, he or she would have insisted on going to trial rather than pleading. State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011).
Wistrom argues that he received ineffective assistance of counsel in that it was not clear that he was competent to plead and thus his plea was not knowing, voluntary, and intelligent. The record on direct appeal is not sufficient to review this claim. The motion for a competency evaluation states that Wistrom had been in special education and references "the history of the minor child" and conversations with his family, but there is nothing in the motion that clarifies the exact nature of the alleged problem. Nor does the PSR contain sufficient information regarding Wistrom's competency to determine whether counsel was deficient for withdrawing the competency motion or in advising Wistrom to enter a plea. The PSR shows that Wistrom attended high school through the 11th grade and obtained his diploma through the GED program. The PSR also shows that Wistrom was diagnosed with attention deficit hyperactivity disorder but had not taken medication for 3 years and was diagnosed with fetal alcohol syndrome, but the PSR does not explain the impact of these diagnoses on his competency.
The test for competency to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. See State v. Lewis, 280 Neb. 246, 785 N.W.2d 834 (2010), quoting Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). In withdrawing the competency motion, Wistrom's counsel stated that in her opinion, Wistrom appeared to know the difference between right and wrong and to have a general understanding of the roles of the parties, the attorneys, and the court. But without some further explanation on the record as to why the motion for a competency evaluation was brought initially and why the decision to dismiss the motion was made, it is impossible to determine whether Wistrom received ineffective assistance of counsel in connection with the withdrawal of the competency motion and entry of a plea. Because the record is insufficient, we do not address the claim of ineffective assistance of counsel in this direct appeal.
Sentencing.
Wistrom asserts that the district court abused its discretion in imposing an excessive sentence and in failing to order probation. Burglary is a Class III felony. § 28-507. The sentencing statute allows a sentence of 1 to 20 years and/or a $25,000 fine for a Class III felony. Neb. Rev. Stat. § 28-105 (Reissue 2008). The district court imposed a sentence of 3 to 6 years' imprisonment.
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011). 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 well as (7) the nature of the offense, and (8) the violence involved in the commission of the crime. Id. In imposing a sentence, the sentencing court is not limited to any mathematically applied set of factors. Id. 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. Id. Both the nature of the offense for which a defendant is being sentenced and the defendant's past criminal record are appropriate considerations in sentencing. Id. In considering a sentence of probation in lieu of incarceration, the court should not withhold incarceration if a lesser sentence would depreciate the seriousness of the offender's crime or promote disrespect for the law. State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009).
Wistrom's sentence is within the statutory limits. Wistrom argues that the sentence is nevertheless excessive due to his unfortunate upbringing and because he was taken advantage of by other individuals whom he was trying to assist. He has also expressed his remorse for his actions. However, Wistrom has a criminal history including possession of marijuana in 2008; theft, shoplifting, criminal possession of a forged instrument, and domestic assault in 2009; and theft by shoplifting in 2010. Wistrom was unsatisfactorily released from probation for the domestic assault conviction. The PSR also shows an active warrant from Douglas County for burglary and jail time in Missouri for possession of marijuana, both from 2010. An LS-CMI assessment was conducted on Wistrom, which assessed him at a medium-high risk to reoffend. The substance abuse questionnaire showed Wistrom in the problem-risk range for truthfulness and the medium-risk range for alcohol, drugs, violence, antisocial, and aggressiveness scales. The probation officer who completed the PSR made no recommendations in regard to sentencing but offered certain conditions, in the event the court chose to place Wistrom on probation, to reduce his risk of recidivism.
Wistrom's sentence in the present case is not excessive. The district court stated that it had considered the nature and circumstance of the crime; the history, character, and condition of Wistrom; the presentence investigation; and the statements received. It found that imprisonment was necessary for the protection of the public because the risk was substantial Wistrom would engage in additional conduct if placed on probation and that a lesser sentence would depreciate the seriousness of the offense or promote disrespect for the law. The court did not abuse its discretion in sentencing Wistrom to a sentence of imprisonment in lieu of probation.
CONCLUSION
We decline to address Wistrom's claim of ineffective assistance of trial counsel on direct appeal. The sentence imposed was not excessive, and the district court did not abuse its discretion in sentencing Wistrom to a term of imprisonment in lieu of probation.
AFFIRMED.