State v. JohnsonState v. Johnson
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court‘s conclusion.
4. Judges: Words and Phrases. A judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right, and denying a just result in matters submitted for disposition.
5. Habitual Criminals: Sentences: Convictions: Proof. There are no factual findings that the trial court must make, in order to enhance a defendant‘s sentence under the habitual criminal statutes, that are not a part of proving the fact of a prior conviction.
MCCORMACK, J.
NATURE OF CASE
Tiuana L. Johnson was convicted of escape in violation of
BACKGROUND
On June 21, 2013, Johnson was charged with Class III felony escape, under
Johnson thereafter filed a motion to quash the amended information insofar as it charged Johnson with being a habitual criminal. In the motion to quash, Johnson asserted that the habitual criminal statutory scheme was unconstitutional because it fails to provide for a jury determination of certain facts pertaining to the prior convictions. Johnson also asserted that application of the habitual criminal statutes violated double jeopardy because the same conviction that made the escape charge a Class III felony rather than a Class IV felony formed the basis of the habitual criminal enhancement. Johnson further asserted that the application of the habitual criminal statutes would violate a state constitutional provision,
The court overruled the motion to quash. Johnson waived his right to a jury trial and his right to a speedy trial. The underlying charge of escape was tried on November 25, 2013, on three stipulated exhibits, subject to Johnson‘s renewed motion to quash and the court‘s guarantee that it would not consider any other crimes, wrongs, or acts for purposes of determining whether Johnson committed the crime of escape. Additionally, Johnson stipulated that he was the person named in the exhibits.
The court found Johnson guilty of escape, in violation of
In support of the habitual criminal charge, the court accepted into evidence five exhibits proffered by the State. Johnson did not make any objection to the exhibits other than those based on his prior motion to quash. The exhibits demonstrated that before his escape on September 20, 2012, Johnson had committed nine crimes for each of which he had been sentenced to a term of imprisonment for not less than 1 year.
The exhibits show that Johnson was convicted on October 24, 1997, of receipt of stolen property, in relation to events on June 19. He was not sentenced until May 11, 1998, at which time he was sentenced to 2 to 4 years’ imprisonment.
On October 2, 1998, Johnson was convicted of robbеry and a related use of a weapon charge in relation to events on March 22 and was sentenced to imprisonment for 2 to 4 years on the robbery conviction and 1 to 3 years on the use of a weapon conviction. Those sentences were ordered to be served consecutively with each other, but concurrently with the May 11 sentence for receipt of stolen property.
On July 31, 2003, Johnson was convicted of four counts of robbery under one docket and one count of burglary under a different docket. The robberies and burglary occurred on different dates between December 15, 2002, and January 6, 2003, and involved different victims. On September 17, 2003, Johnson was sentenced to 2½ to 5 years’ imprisonment for each robbery, each sentence to be served consecutively. On
Finally, on February 8, 2010, Johnson was convicted under
The court also accepted into evidence, without any objection, printouts offered by Johnson of Nebraska inmate details from the Nebraska Department of Correctional Services. The printouts indicate that October 21, 2002, was the mandatory release date for the conviction of receipt of stolen property and the convictions of robbery and the related use of a weapon. Thus, Johnson was no longer serving those sentences at the time of the escaрe underlying this appeal.
At the close of the evidence, Johnson renewed his motion to quash. With regard to the double jeopardy challenge, Johnson argued that the State had failed to show two prior convictions for purposes of the habitual criminal charge that were both convictions under which Johnson was no longer detained at the time of his escape on September 20, 2012. Johnson explained that he believed the October 24, 1997, conviction for receipt of stolen property and the October 2, 1998, convictions for robbery and use of a weapon counted as only one conviction under the habitual criminal statutes, because the sentences for the robbery and use of a weapon convictions were to be served concurrently with the sеntence for the receipt conviction.
ASSIGNMENTS OF ERROR
Johnson assigns that the trial court (1) abused its discretion by improperly permitting the State to amend the information over Johnson‘s objection; (2) erred by improperly overruling Johnson‘s motion to quash, in violation of the 6th, 8th, and 14th Amendments to the U.S. Constitution and article I, §§ 6, 9, 11, and 15, of the Nebraska Constitution; and (3) abused its discretion by imposing an excessive sentence.
[1] A ruling on whether to allow a criminal information to be amended is made by the trial court in its discretion.1
[2] When reviewing questions of law, an appellate court resolves the questions independently of the lower court‘s conclusion.2
[3] An appellate court reviews criminal sentences for abuse of discretion, which occurs when a trial court‘s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.3
ANALYSIS
TIMELINESS OF AMENDMENT
TO INFORMATION
Johnson first argues that the trial court abused its discretion in allowing the State to amend its information to add the habitual criminal charge. He asserts that prior to the hearing on August 15, 2013, he was unaware of the State‘s intention to amend the information. Without providing any further detail, he generally asserts that “[t]he unexpected change of the allegations forced [Johnson] to quickly adjust his defense strategy in a manner that prejudiced [Johnson‘s] ability to exercise his constitutional right to effectively defend himself.”4
[4] A ruling on whether to allow a criminal information to be amended is made by the trial court in its discretion.5 A judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right, and denying a just result in matters submitted for disposition.6
Johnson filed a motion to quash, but the alleged untimeliness of the amendment to the information was not one of the stated bases for the motion. Because Johnson did not raise in his motion to quash the alleged untimeliness of the State‘s amendment to the information, he waived that objection.
Furthermore, Johnson‘s bald assertion of prejudice fails to demonstrate that the trial court abused its discretion in allowing the amendment. In State v. Cole,10 we held that the trial court did not abuse its discretion in allowing amendment of an information to add a habitual criminal charge on the day of trial. We explained that the habitual criminal charge was not heard until a week after the trial on the underlying charge had commenced. We said this was a reasonable time for the defendant to prepare his defense to thе habitual criminal charge.11
Here, both the underlying trial and the hearing on the habitual criminal charge occurred more than 3 months after the State filed its amended information. And Johnson‘s counsel stated she was “fine with” continuing with the habitual criminal hearing on that date. Johnson, in fact, never moved for a continuance on the basis that he needed more time to prepare a defense to thе habitual criminal charge. We will not conclude that Johnson was prejudiced by the timing of the amendment when he did not ask for a continuance, but, to the contrary,
RIGHT TO JURY TRIAL
Next, Johnson argues that the habitual criminal statutes violate the right to a jury trial under the 6th Amendment and the Due Process Clause contained in the 14th Amеndment to the U.S. Constitution and article I, §§ 6 and 11, of the Nebraska Constitution. It is not entirely unclear whether this is an as-applied or facial challenge to the statutory scheme. Regardless, we find it has no merit.
In State v. Hurbenca,13 we held that under the U.S. Supreme Court‘s holding in Apprendi v. New Jersey,14 the determination of whether a defendant has prior convictions that may increase the penalty for a crime beyond the prescribed statutory maximum is not a determination that must be made by а jury. We noted that, as stated in Apprendi, the fact of a prior conviction is not a fact that relates to “`“the commission of the offense” itself . . . .‘”15 Therefore, such fact is a “narrow exception to the general rule that it is unconstitutional for a legislature to remove from a jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is еxposed.”16 We noted that the Court in Apprendi had said, “`Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. . . .‘”17
Johnson asks us to reconsider our decision in Hurbenca in light of the subsequent decision by the U.S. Supreme
Regardless, Johnson‘s argument is based on a false dichotomy. Johnson attempts to pаrse the mere fact of a prior conviction from facts Johnson claims are necessary to prove that prior conviction for purposes of enhancement. Citing State v. Johnson,19 Johnson characterizes such independent facts as (1) the nature of the prior convictions, (2) whether the prior convictions were based upon charges separately brought and tried, (3) whether the priоr convictions arose out of separate and distinct criminal episodes, and (4) whether the defendant was the person named in each prior conviction.
[5] We have repeatedly held that under our habitual criminal statutes, there is no required showing by the State beyond “the question of determining whether a [valid] conviction [for purposes of
The four facts listed by Johnson have never been set forth in our case law as a list of separate and necessary findings in a habitual criminal proceeding. But to the extent that Johnson correctly identifies faсtual elements of the State‘s burden in establishing two valid prior convictions for purposes of
DOUBLE JEOPARDY
Johnson alternatively argues that the habitual criminal statutes as applied violated constitutional principles prohibiting double jeopardy.
In support of his argument, Johnson relies on cases in which we have rejected habitual criminal enhancement of sentences imposed for third-offense driving while intoxicated or third-offense driving with a suspended license, where at least one of the two prior convictions supporting the habitual criminal charge was also the basis for the third-offense conviction and its accompanying enhanced sentence for that recidivist cоnduct.23 He argues that these cases stand for the proposition that such dual use of the same prior conviction for purposes of enhancing a sentence is unconstitutional.
But the double jeopardy question Johnson raises is not before us on the facts presented. Without needing to decide, in accordance with State v. Ellis24 and its progeny, the exact number of prior convictions proved by the State under
We do not decide whether, under different facts, it would be unconstitutional or otherwise erroneous to utilize the same prior сonviction both under a statutory enhancement that is not based on recidivism and under the habitual criminal statutes. In this case, because the State proved at least two prior convictions that were not necessary to support the conviction of escape under
EXCESSIVE AND DISPROPORTIONATE
SENTENCING AND CRUEL AND
UNUSUAL PUNISHMENT
Finally, Johnson argues that application of the habitual criminal charges resulted in a penalty dispropоrtionate to the nature of the offense, in violation of
In Ewing v. California,25 the U.S. Supreme Court rejected the argument that a habitual criminal statute resulted in cruel and unusual punishment. The Court explained:
[T]he State‘s interest is not merely punishing the offense of conviction, or the “triggering” offense: “[I]t is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that
they are simply incapable of conforming to the norms of society as established by its criminal law.”26
The enhanced sentence, the Court reasoned, “is justified by the State‘s public-safety interest in incapacitating and deterring recidivist felons.”27 In State v. Chapman,28 we similarly rejected the general contention that the habitual criminal statutes impose penalties in disproportion to the nature of the offense.
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 of the facts and circumstances surrounding a defendant‘s life.29 An appellate court reviews criminal sentences for abuse of discretion, which occurs when a trial court‘s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.30
Johnson points out that his escape did not involve the use or threat of force, nor any “dangerous instrumentality to effectuate the escape.”31 He also claims, without explanation, that the court abused its discretion in considering violations other than the relevant escape conviction for which Johnson was being sentenced. Finally, he argues that the current sentence ignores certain unspecified “rehabilitative needs.”32
Although Johnson‘s escape was not violent, we find the application of the habitual criminal enhancement and the resulting sentence of 10 to 20 years’ imprisonment to be neither excessive, disproportionate, nor cruel and unusual. The punishment was appropriate given Johnson‘s extensive criminal record. We note that in addition to the felonies evidenced in support of the
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
AFFIRMED.