State v. Vanness, 300 Neb. 159

Background

Kelly A. Vanness pled guilty to four counts arising from a September 13, 2015 stop: driving while suspended (Class III misdemeanor), possession of methamphetamine (Class IV felony), possession of hydrocodone (Class IV felony), and possession of drug paraphernalia (infraction).
At the plea colloquy Vanness acknowledged the factual basis, waived constitutional rights, said counsel had investigated defenses to her satisfaction, and denied promises or threats induced the plea.
Sentencing was postponed for problem-solving court participation, which later terminated; a PSI was prepared and sentencing occurred June 6, 2017.
District court pronounced sentences of 60–60 days (Count 1), 12–12 months + 9 months postrelease supervision (Count 2) with 26 days credit, and 10–10 months + 9 months successive postrelease supervision (Count 3); $100 fine on Count 4; some sentences to run consecutively.
Vanness appealed, alleging ineffective assistance of trial counsel (including a conflict of interest and failure to investigate/promises of leniency) and that sentences were excessive or otherwise erroneous.

Issues

Issue	Plaintiff's Argument (Vanness)	Defendant's Argument (State)	Held
Whether trial counsel had an actual conflict of interest from representing co-defendant	Counsel also represented another arrestee who allegedly owned the drugs; conflict impaired representation	Multiple representation alone is not per se violation; record must show actual conflict and cannot be purely speculative	Record insufficient on direct appeal to resolve conflict claim; claim preserved for postconviction review
Whether counsel failed to investigate an innocence defense	Counsel did not investigate that the drugs belonged to another person	Plea colloquy shows Vanness told counsel all defenses and was satisfied with counsel’s investigation	Claim refuted by the record; no ineffective assistance on this ground
Whether counsel promised lenient sentence inducing plea	Counsel advised that Vanness would receive leniency, undermining voluntariness	Vanness denied any promises at plea; record contains no coercive promises	Record affirmatively refutes promise-of-leniency claim; plea voluntary
Whether sentences were excessive or otherwise erroneous (including determinate/indeterminate form and incorrect advisement of max penalty)	Sentences excessive and should be concurrent or lower; court misadvised maximum for Class IV felonies as 5 years	Sentences within statutory limits; court considered appropriate factors; mistake on advisement did not prejudice defendant; but court erred in pronouncing indeterminate sentences where statutes required determinate sentences	Convictions affirmed; sentences substantively within statutory ranges and not excessive, but modified on plain error to convert indeterminate pronunciations into required determinate terms; incorrect advisement of max penalty did not require reversal

Key Cases Cited

State v. Mora, 298 Neb. 185 (Neb. 2017) (standards for deciding ineffective-assistance claims on direct appeal)
State v. Lane, 299 Neb. 170 (Neb. 2018) (requirements for raising ineffective-assistance claims on direct appeal; record sufficiency)
State v. Cotton, 299 Neb. 650 (Neb. 2018) (actual conflict standard when no trial objection is made)
State v. Casares, 291 Neb. 150 (Neb. 2015) (plea voluntariness and refusal to overturn plea where record refutes promises)
State v. Artis, 296 Neb. 172 (Neb. 2017) (distinction between determinate and indeterminate sentences)