State v. Honken
25 Neb. Ct. App. 352
| Neb. Ct. App. | 2017Background
- Honken solicited two different men, ~1 month apart, to kill his wife: first Derrick Shirley (texts and $400 for a rifle; last text 2/16/16), then via Mario Flores an undercover investigator (met 2/26–2/29/16; paid $500 down).
- State charged two counts of conspiracy to commit first-degree murder: Count I (Jan 16–Feb 16, 2016) and Count II (Feb 26–29, 2016).
- Honken moved to dismiss one count asserting double jeopardy (single continuous conspiracy); the court denied the motion and held a stipulated bench trial on the facts.
- The district court found two separate conspiracies, convicted Honken on both counts, and sentenced him to concurrent 45–50 year terms (within statutory limits).
- Honken appealed, arguing (1) double jeopardy violation (multiple punishments for same offense), (2) excessive sentences, and (3) ineffective assistance of trial counsel for not raising mental-health-based defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy (multiple conspiracy convictions) | Honken: single continuous conspiracy; new co-conspirator doesn’t create new offense | State: two distinct conspiracies separated by a 10-day break, withdrawal by Shirley, different actors and overt acts | Court held two separate conspiracies — no double jeopardy violation |
| Excessive sentence | Honken: court failed to weigh mitigating factors (substance use, mental health, no physical violence) | State: sentences within statutory range; court considered statutory factors, PSI, texts, victim impact | Court found sentences within limits and not an abuse of discretion |
| Ineffective assistance of counsel | Honken: counsel failed to raise mental-health defenses earlier | State: record insufficient to resolve ineffectiveness on direct appeal; may require evidentiary hearing | Court held record inadequate to decide ineffective-assistance claim on direct appeal |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (traditional "same evidence" double jeopardy test)
- United States v. Thomas, 759 F.2d 659 (8th Cir.) (totality-of-circumstances test for multiple conspiracies)
- State v. Henry, 292 Neb. 834 (Neb. 2016) (elements of conspiracy; withdrawal rules)
- Savage v. State, 212 Md. App. 1 (Md. Ct. Spec. App.) (agreements must be distinct; gap/break indicates new conspiracy)
- State v. Kleckner, 291 Neb. 539 (Neb. 2015) (Nebraska double jeopardy principles)
- State v. Loding, 296 Neb. 670 (Neb. 2017) (standard for reviewing sentences and ineffective-assistance claims on direct appeal)
- State v. Dehning, 296 Neb. 537 (Neb. 2017) (sentencing factors and discretion)
- State v. Abdullah, 289 Neb. 123 (Neb. 2014) (ineffective-assistance claims requiring evidentiary hearing not resolved on direct appeal)