State v. St. CyrState v. St. Cyr
Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. - Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of lаw.
- ____: ____. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only questions of law: Are the undisputed facts contained within the record sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel‘s alleged deficient performance?
- Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate сourt must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.
- Sentences. When imposing a sentence, the sentencing judge should consider the defendant‘s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the violence involved in thе commission 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 the facts and circumstances surrounding the defendant‘s life.
Criminal Law: Restitution: Damages. Neb. Rev. Stat. § 29-2280 (Reissue 2016) vests trial courts with the authority to order restitution for actual damages sustained by the victim of a crime for which a defendant is convicted.- Sentences: Restitution: Damages. After the sentencing court determines that a conviction warrants restitution, it then becomes the sentencing court‘s factfinding responsibility to dеtermine the victim‘s actual damages and the defendant‘s ability to pay.
- Effectiveness of Counsel: Appeal and Error. When a defendant‘s trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel‘s ineffective performance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred.
- Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that counsel‘s performance was deficient and that this deficient performance actually prejudiced his or her defense.
- Effectiveness of Counsel: Pleas: Proof. To show prejudice when the alleged ineffective assistance relates to the entry of a plea, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, he or she would not have entered the plea and would have insisted on going to trial.
- Effectiveness of Counsel: Proof. The two prongs of the ineffective assistance test under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), deficient performance and prejudice, may be addressed in either order.
- Effectiveness of Counsel: Sentences.
Neb. Rev. Stat. §§ 29-2261 and29-2204.03 (Reissue 2016) give the court the discretion to order further evaluations of the defendant prior to sentencing when it dеems such evaluations necessary for determining the sentence to be imposed; neither statute provides that a defendant can or should request the evaluations. Trial counsel cannot be deficient for failing to request evaluations that the court itself could have ordered, but in its discretion deemed unnecessary.
I. INTRODUCTION
Luke A. St. Cyr pled guilty to one count of first degree assault pursuant to
II. BACKGROUND
On December 13, 2016, the State filed an information charging St. Cyr with first degree assault pursuant to
On January 30, 2017, pursuant to a plea agreement, St. Cyr pled guilty to the charge in the information in exchange for the State‘s agreement to not file additional chаrges arising from the incident. The factual basis was derived from statements by St. Cyr, his attorney, and the State. St. Cyr‘s counsel said that after a “brief verbal altercation,” St. Cyr “punched the victim several times, knocked the victim out and then [St. Cyr] proceeded to kick the victim several times in the head and cause serious bodily injury.” St. Cyr told the court that “I punched him and I kicked him and I assaulted him.” The State added that the police responded to a call at a bar in Norfolk, Madison County, Nebraska. They found the victim bleeding, unable to talk, and unable to get up. The victim was taken to a hospital, and
The State said there was a videotape, and the evidence would show that the victim did nothing wrong and that there was nothing that would justify the use of force against the victim.
The district court accepted St. Cyr‘s guilty plea to the information and later sentenced him to 40 to 50 years’ imprisonment, with 111 days’ credit for time served. The court also ordered him to pay restitution in the amount of $100,000. St. Cyr appeals.
III. ASSIGNMENTS OF ERROR
St. Cyr assigns as error that (1) the district court imposed an excessive sentence both in the length of incarceration ordered and by ordering him to pay restitution without considering his ability to pay and (2) he received ineffective assistance of counsel.
IV. STANDARD OF REVIEW
[1] An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Dyer, 298 Neb. 82, 902 N.W.2d 687 (2017). A judicial abuse of discretion exists when the reasons or rulings of a trial judgе are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Id.
[2,3] Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (2017). In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only questions of law: Are the undisputed facts contained within the record sufficient to conclusively determine whether counsel did or did
V. ANALYSIS
1. Excessive Sentence
(a) Length of Incarceration
St. Cyr assigns the district court erred by sentencing him to 40 to 50 years’ imprisonment, instead of a lesser term of incarceration. St. Cyr was convicted of first degree assault pursuant to
[4-6] Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed. State v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017). When imposing a sentence, the sentencing judge should consider the defendant‘s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the violence involved in the commission of the offense. See id. The apрropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge‘s observation of the defendant‘s demeanor and attitude and all the facts and circumstances surrounding the defendant‘s life. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
St. Cyr was 32 years old at the time of sentencing. He was single and had no dependents. He has a high school diploma and reportedly attended one semester of college. St. Cyr‘s employment history is “inconsistent due to being in and out of incarceration.” He reports that both of his parents suffered
St. Cyr‘s criminal history includes convictions for possession of marijuana (community service and 1 year‘s probation); attempted robbery (36 months’ probation revoked and subsequently sentenced to 14 to 18 months’ imprisonment); third degree assault (365 days’ jail time); and burglary and assault with a dangerous weapon resulting in serious injury in “Indian Country” (“6 years Bureau of Prisons [and] 3 years supervised release“; probation revoked and subsequently sentenced to “12 months federal prison“).
As part of the presentence investigation, the probation officer conducted a “Level of Service/Case Management Inventory.” St. Cyr was assessed at a “very high risk level for recidivism.” The probation officer recommended that St. Cyr be sentenced to a term of incarceration.
At the sentencing heаring, the court noted it had read through the facts and St. Cyr‘s statement and still did not understand what caused the “pretty violent incident.” St. Cyr
The State called the victim‘s brother to testify at the sentencing hearing. The brother testified that the victim was “life-flighted” to a medical center, was given a “30-percent chance of living,” and “was hooked to every machine available, even for breathing, feeding tubes. Numerous IV‘s.” The brother testified that the victim
experienced a very heavy head injury, brain trauma. They were even talking about doing surgery and putting in drains and everything else due to the swelling on his brain. He had a fractured skull across his left side. His nose was broke[n]. It was pretty extensive, where they were so worried about the vertebrae in his neck that they left the collar on for an extended period of time.
They didn‘t even try attempting to back off the breathing machine for approximately ten days. He was in basically a medically-induced coma just to see if he would even breathe on his own again.
The victim “had no vision at that time” and had broken ribs. Because of the brain injury, he has short-term memory loss and did not even recognize his mother. He was in the hospital for “[a]bout a month.” The victim (25 years old at the time of St. Cyr‘s sentencing hearing) was self-employed as a contractor and has no insurance, and his Medicaid was denied, so they could not get him the recovery therapy he needed at any rehabilitation facilities.
The State also played “actual video from behind the bar” from an outside camera (which video does not appear in our record).
The court said, “I don‘t know if I‘ve ever seen anybody beaten this bad before.” The court further said:
[W]atching that video was pretty shocking. . . . I don‘t know if I‘ve ever seen anything like that before and I don‘t think I ever want to. It‘s just a brutal attack. . . . [C]learly this victim was unconscious. When you continued to kick and stomp at his head and, you know, that‘s just something I just don‘t understand. . . .
. . . It seemed to me, at least from what I understand from the police reports and from watching the video and the comments that have been made, that this was pretty much non-prоvoked. . . .
You may not have killed this victim . . . but you definitely have altered his life in a very negative way and who knows whether he will fully recover ever from these injuries.
The court found that St. Cyr was not a qualified candidate for probation and that there was a substantial likelihood of his reoffending in a similar manner. The court determined that “the most effective recourse” was incarceration and sentenced him to 40 to 50 years’ imprisonment.
In his brief, St. Cyr argues that the district court “did not properly consider [his] rehabilitative needs in light of his background, his acknowledgment of responsibility, аnd his willingness to enter a plea of guilty, saving the State the expense of and the victim the trauma of trial.” Brief for appellant at 14. He argued a reduced sentence would have been more appropriate. However, upon our review of the record and consideration of the relevant sentencing factors in this case, we find the district court did not abuse its discretion in the length of the prison sentence ordered.
St. Cyr argues that the district court erred in ordering him to pay restitution in the amount of $100,000, without conducting a meaningful examination of his ability to pay that amount. The State asserts, “While no one objected to the imposition of restitution even when it was imposed, . . . actions which would ordinarily waive the argument on appeal, it is still plain error since the imposition of restitution did not comply with state statutes.” Brief for appellee at 13. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant‘s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fаirness of the judicial process. State v. Kidder, 299 Neb. 232, 908 N.W.2d 1 (2018).
[7] A sentencing court may order the defendant to make restitution for the actual physical injury or property damage or loss sustained by the victim as a direct result of the offense for which the defendant has been convicted.
To determine the amount of restitution, the court may hold a hearing at the time of sentencing. The amount of restitution shall be based on the actual damages sustained by the victim and shall be supported by evidence which shall become a part of the court record. The court shall consider the defendant‘s earning ability, employment status, financial resources, and family or other legal obligations and shall balance such considerations against the obligation to the victim. In considering the earning ability of a defendant who is sentenced to imprisonment, the court may receive evidence of money anticipated to be earned by the defendant during incarceratiоn. . . . The court may order that restitution be made immediately,
in specified installments, or within a specified period of time not to exceed five years after the date of judgment or defendant‘s final release date from imprisonment, whichever is later.
Further, if the offense results in bodily injury, the court may require payment of necessary medical care, including, but not limited to, physical or psychological treatment and therapy, and payment for income lost due to such bodily injury.
[8] After the sentencing court determines that a conviction warrants restitution, it thеn becomes the sentencing court‘s factfinding responsibility to determine the victim‘s actual damages and the defendant‘s ability to pay. State v. Ramirez, supra. An evidentiary hearing is required to support a restitution order under
The victim‘s brother testified at the sentencing hearing. He testified about the extent of the victim‘s injuries and some of the medical costs, saying it was “well over a hundred thousand.” And the presentence investigation report contains copies of the victim‘s medical bills that total well over $100,000—his medical center bill alone was over $100,000, his “life-flight” bill was $59,999, and there were numerous other medical bills totaling several thousands of dollars.
However, as noted by the State, there was no consideration by the court of St. Cyr‘s ability to pay. In fact, at the sentencing hearing, the State indicated St. Cyr “has been incarcerated . . . and has no financial means. We‘re not officially seeking restitution, but the restitution . . . is clearly in the [presentence investigation report] as to what medical bills are still owed.” The court asked St. Cyr if he had any money to pay for the medical bills; his response was no. The court then
The district court stated: “I will also order restitution, even though I‘m sure you won‘t ever be able to pay it, but I‘m going to order it, in the amount of $100,000. Clearly the medical bills that I‘ve rеviewed add up to more than that.” The court did not state how restitution of $100,000 would be paid by St. Cyr, especially given his lengthy term of incarceration.
Although the district court considered St. Cyr‘s ability to pay the restitution from the standpoint that the court concluded St. Cyr “won‘t ever be able to pay it,” the court did not state when and how the restitution was to be paid or whether it was to be paid immediately, in installments, or within a specified period of time. In light of the applicable law, we find plain error and must vacate the restitution portion of St. Cyr‘s sentence, remanding thе cause back to the trial court for proceedings that are consistent with this opinion and the statutory factors set forth in
2. Effectiveness of Counsel
[9] When a defendant‘s trial counsel is different from his or her counsel on direct appeal, the defendant must rаise on direct appeal any issue of trial counsel‘s ineffective performance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred. State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can
[10-12] To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that counsel‘s performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010). To show prejudice when the alleged ineffective assistance relates to the entry of a plea, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, he or she would not have entered the plea and would have insisted on going to trial. State v. Fester, 287 Neb. 40, 840 N.W.2d 543 (2013). The two prongs of this test, deficient performance and prejudice, may be addressed in either order. Id.
St. Cyr contends that his trial counsel was ineffective because counsel “failed to utilize all means available to place mitigating evidence before the sentencing court, prior to sentencing.” Brief for appellant at 22. More specifically, he argues counsel could have offered letters of support for St. Cyr as mitigating evidence. He also argues that counsel could have motioned the court to utilize “the evaluations authorized in §§29-2261 or 29-2204.03.” Brief for appellant at 25. St. Cyr claims, “It is conceivable that had trial counsel done so,” then “a more appropriate sentence would have been imposed.” Brief for appellant at 25 and 26.
When the court is of the opinion that imprisonment may be appropriate but desires more detailed information as a basis for determining the sentence to be imposed thаn
has been provided by the presentence report required by section 29-2261, the court shall commit an offender to the Department of Correctional Services for a period not exceeding ninety days. The department shall conduct a complete study of the offender during that time, inquiring into such matters as his or her previous delinquency or criminal experience, social background, capabilities, and mental, emotional, and physical health and the rehabilitative resources or programs which may be available to suit his or her needs.
[13] Both
Furthermore, St. Cyr does not say who would have provided letters of support (or what information those letters would have contained). See, generally, State v. Abdullah, 289 Neb. 123, 133, 853 N.W.2d 858, 867 (2014) (showing witnesses whom defendant advised counsel would have been “‘beneficial‘” to defendant‘s case at trial raises potential issues of deficient performance and prejudice; but vague assertion referring to “‘at least two‘” witnesses seems little more than placeholder; “[w]ithout such specific allegations, the postconviction court would effectively be asked to ‘\“conduct a discovery hearing to determine if anywhere in this wide world there is some evidence favorable to defendant‘s position\“‘“).
St. Cyr does not say what other information his attorney should have presented to provide “a more complete picture” of St. Cyr. Brief for appellant at 25. In his brief, he mentions that he was the product of dysfunction and violence, that he had post-traumatic stress disorder, and that alcohol contributed to the events. However, St. Cyr himself provided all of this
VI. CONCLUSION
We affirm the district court‘s sentencing order imposing 40 to 50 years’ imprisonment; however, the restitution portion of the sentence is vacated, and the cause is remanded for proceedings consistent with this opinion.
AFFIRMED IN PART, SENTENCE OF RESTITUTION VACATED, AND CAUSE REMANDED WITH DIRECTIONS.