State v. Warlick, 956 N.W.2d 269

Background

Warlick was a front-seat passenger in a vehicle stopped after being observed in York County; the vehicle ultimately stopped in Seward County. A search yielded ~4 pounds of marijuana (wrapped with a masking agent) under a spare tire in the cargo area and a handgun inside a bag nearby. Both occupants were arrested.
Warlick waived counsel at arraignment and repeatedly stated he intended to hire private counsel; he did not request court-appointed counsel and remained on bail pretrial.
Trial (a consolidated bench trial with the driver, Clark) began April 24 with Warlick appearing pro se; both defendants left during a noon recess and did not return. The court waited ~35 minutes, found they voluntarily absented themselves, and proceeded with the trial in their absence.
The court admitted certified convictions from Illinois to prove Warlick’s felon status, and found Warlick guilty on seven counts (drug possession with intent to distribute; possession >1 lb marijuana; no drug tax stamp; possession of firearm during felony; possession of deadly weapon by prohibited person; possession of stolen firearm; carrying a concealed weapon). Sentencing aggregated to 4–7 years; count for carrying a concealed weapon later reversed on appeal.
On appeal Warlick challenged venue, the court’s proceeding without appointed counsel/standby counsel, proceeding after his absence, admissibility of prior convictions, and sufficiency of evidence for possession and carrying a concealed weapon.

Issues

Issue	State's Argument (Plaintiff)	Warlick's Argument (Defendant)	Held
Venue	York County proper under §29‑1301.02 because the vehicle passed through York County.	Venue improper because arrest/search occurred in Seward County and officer lacked jurisdiction.	Affirmed: Venue proper; place of arrest not dispositive; §29‑215 is not a venue statute.
Right to counsel / waiver	Warlick knowingly and intelligently waived counsel and elected to proceed pro se; he declined appointment and had been warned trial would proceed.	Trial court erred by not appointing counsel or standby counsel sua sponte and by not conducting a new waiver colloquy on trial day.	Affirmed: Waiver valid; no duty to re‑advise or appoint counsel absent indigency or timely request.
Right to be present (absence after recess)	Defendants voluntarily absented themselves while on bail; court made reasonable effort and could proceed.	Court erred by continuing without determining whether absence was involuntary and without more inquiry.	Affirmed: Absence was voluntary; burden to show involuntariness was on Warlick; court reasonably proceeded.
Sufficiency — possession of drugs and weapons (constructive possession)	Circumstantial evidence (quantity consistent with distribution, masking agent, inconsistent traveler statements, long‑distance travel, accessibility from back seat) and §28‑1212 prima facie rule tie occupants to the firearm.	Items were not on Warlick’s person, were in cargo area under spare tire in a bag (with driver’s hair product), and not within Warlick’s immediate reach.	Affirmed convictions for drug and weapon possession: sufficient circumstantial evidence and §28‑1212 support constructive possession.
Sufficiency — carrying a concealed weapon (§28‑1202)	The firearm’s presence in vehicle and accessibility sufficed.	Weapon was not on Warlick’s person nor within immediate reach; conviction for carrying concealed weapon requires actual/immediate control.	Reversed: §28‑1202 requires the weapon be concealed on or about the person (convenient of access and within immediate physical reach); evidence did not show that.
Admissibility of prior convictions to prove felon status	Certified conviction records are admissible; post‑Gideon convictions carry a presumption of regularity; burden shifts to defendant to prove lack of counsel.	Exhibits do not affirmatively show Warlick had counsel or waived counsel at those prior pleas, so they are insufficient to prove felon status.	Affirmed admission: Post‑Gideon convictions entitled to presumption of regularity (State v. Vann); exhibits adequately showed representation or no indication of lack of counsel.

Key Cases Cited

Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel in criminal prosecutions that may lead to confinement)
Burgett v. Texas, 389 U.S. 109 (1967) (limits on use of prior convictions where Sixth Amendment rights were not recognized at time of conviction)
Parke v. Raley, 506 U.S. 20 (1992) (clarifies Burgett scope and presumption of regularity for post‑Gideon convictions)
State v. Vann, 306 Neb. 91 (2020) (post‑Gideon prior convictions presumed regular; defendant bears burden to prove lack of counsel)
State v. Garza, 256 Neb. 752 (1999) (discusses "carrying" a weapon as actual possession and immediate control)
State v. McGee, 282 Neb. 387 (2011) (factors supporting passenger constructive possession of drugs)
State v. Figeroa, 278 Neb. 98 (2009) (standard for reviewing whether waiver of counsel was voluntary, knowing, and intelligent)