State v. Johnson, 859 N.W.2d 877

Tiuana L. Johnson was charged with Class III felony escape and, by amended information, as a habitual criminal; he does not contest the escape conviction on appeal.
The State moved to amend the information to add habitual-criminal enhancement; the amendment was allowed on August 15, 2013; Johnson objected but did not assert untimeliness in his motion to quash.
At trial Johnson waived a jury; the escape conviction was based on stipulated exhibits showing he left custody on a job pass, committed robbery, and later confessed.
For the habitual-criminal hearing, the State introduced records showing multiple prior felony convictions and sentences (including robberies, burglary, receipt of stolen property, and a prior escape conviction). Johnson raised various constitutional challenges in his renewed motion to quash.
Johnson argued on appeal that (1) the amendment was untimely and prejudicial, (2) the habitual-criminal statute violated his right to a jury trial and due process, (3) the enhancement amounted to impermissible double jeopardy/dual use of convictions, and (4) the enhanced sentence was excessive/cruel and unusual.
The Nebraska Supreme Court affirmed the conviction and enhancement, rejecting each of Johnson’s arguments and finding the sentence appropriate given his extensive record.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of amendment to information	Amendment surprised Johnson and prejudiced defense	Trial court acted within discretion; Johnson waived untimeliness by not raising it in motion to quash and never sought continuance	Amendment timely; no abuse of discretion; objection waived
Right to jury trial for prior-conviction findings	Habitual statute requires jury determination of facts underlying prior convictions	Prior convictions are an exception under Apprendi; only the fact of conviction is required and may be found by judge	No jury-right violation; prior-conviction fact may be determined without jury
Double jeopardy / dual use of prior convictions	Same prior conviction used to elevate escape and to enhance under habitual statute constitutes unconstitutional dual use	State proved at least two separate prior convictions not used to elevate escape; no impermissible dual use here	No double jeopardy problem on these facts; enhancement valid
Excessive / disproportionate sentence; Eighth Amendment	Enhanced 10–20 year sentence disproportional to nonviolent escape; ignores rehabilitation	Habitual scheme aims to incapacitate/deter recidivists; defendant’s extensive record supports enhancement	Sentence neither excessive nor cruel and unusual; no abuse of discretion

Apprendi v. New Jersey, 530 U.S. 466 (establishing that, except for prior convictions, facts increasing statutory maximum must be found by jury)
Blakely v. Washington, 542 U.S. 296 (discussing Apprendi principles regarding sentence-enhancing facts)
Ewing v. California, 538 U.S. 11 (upholding habitual offender enhancement against Eighth Amendment challenge)
State v. Hurbenca, 266 Neb. 853 (Nebraska: prior-conviction exception to jury factfinding for sentence enhancement)
State v. Collins, 281 Neb. 927 (procedural waiver: challenge to timeliness of information amendment must be raised by motion to quash)
State v. Walker, 272 Neb. 725 (same: objections to information content or timeliness must be preserved by motion to quash)
State v. Cole, 192 Neb. 466 (amendment to add habitual charge on day of trial not an abuse where defendant had reasonable opportunity to prepare)
State v. Ellis, 214 Neb. 172 (discussing proof required to establish prior convictions for habitual-offender statutes)