A jury found Sundquist guilty, and the county court again determined that Sundquists conviction was a second offense. Sundquist was again sentenced to 18 months probation.
5. SECOND APPEAL
On May 30, 2017, Sundquist, represented by counsel, appealed his conviction to the district court. Counsel did not file a statement of errors on Sundquists behalf before that court. Despite this, the district court addressed the issue raised at the appeal hearing: that Sundquist was entitled to a reoffer of the earlier plea agreement that the State proposed before the first trial and the States failure to do so was improper. The district court affirmed the county courts judgment and conviction, noting that the court found no error. Sundquist appeals.
III. ASSIGNMENTS OF ERROR
Sundquist assigns, consolidated and restated, that (1) his counsel was ineffective in various ways, (2) both counsel were ineffective and Sundquists due process rights were violated with respect to the States only offered plea agreement, and (3) his constitutional rights were violated by various actions of the State and the trial court.
IV. STANDARD OF REVIEW
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. With regard to the questions of counsels performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington , an appellate court reviews such legal determinations independently of the lower courts decision.
Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. When reviewing a judgment for errors appearing on the record, an appellate courts inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. But an appellate court independently reviews questions of law in appeals from the county court.
V. ANALYSIS
1. INEFFECTIVE ASSISTANCE OF COUNSEL
Sundquist contends that he received ineffective assistance of counsel during the course of his representation. First, he argues that he was, in effect, denied an appeal to the district court because (1) he received ineffective assistance of counsel in that his attorney (a) failed to file a statement of errors, (b) failed to make persuasive arguments, (c) failed to adequately challenge the chemical breath test, and (d) failed to argue that his performance on the field sobriety tests was inconsistent with the level of intoxication as indicated by the chemical breath test, and (2) the court prevented him from arguing in his own behalf. Sundquist next claims his counsel was ineffective by not adequately communicating with Sundquist. Finally, Sundquist argues that the State interfered with his right to effective assistance of counsel in the first trial by not disclosing that Gartner was qualified to operate the chemical breath test machine, which Sundquist argues interfered with his counsels ability to advise him during plea negotiations.
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, the defendant must show that his or her counsels performance was deficient and that this deficient performance actually prejudiced the defendants defense. A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. The determining factor is whether the record is sufficient to adequately review the question. When the claim is raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel. General allegations that trial counsel performed deficiently or that trial counsel was ineffective are insufficient to raise an ineffective assistance claim on direct appeal and thereby preserve the issue for later review.
Appellate courts have generally reached ineffective assistance of counsel claims on direct appeal only in those instances where it was clear from the record that such claims were without merit, or in the rare case where trial counsels error was so egregious and resulted in such a high level of prejudice that no tactic or strategy could overcome the effect of the error, which effect was a fundamentally unfair trial. An ineffective assistance of counsel claim made on direct appeal can be found to be without merit if the record establishes that trial counsels performance was not deficient or that the appellant could not establish prejudice.
As we have previously stated, an appellant is required to specifically assign and argue his or her trial counsels allegedly deficient conduct. This arises from a fundamental rule of appellate practice. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. A generalized and vague assignment of error that does not advise an appellate court of the issue submitted for decision will not be considered. Similarly, an argument that does little more than restate an assignment of error does not support the assignment, and an appellate court will not address it.
It naturally follows that on direct appeal, an appellate court can determine whether the record proves or rebuts the merits of a claim of ineffective assistance of trial counsel only if it has knowledge of the specific conduct alleged to constitute deficient performance. An appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel when raising an ineffective assistance claim on direct appeal.
(a) Failure to File Statement of Errors
Sundquist assigns that his counsel failed to file a statement of errors in his appeal to the district court. The State concedes that counsel did not file a statement of errors, but argues that Sundquist suffered no prejudice, because the district court addressed Sundquists challenges on appeal despite counsels deficient performance. We note that the district court considered the argument advanced by Sundquist in his appeal to that court. The district court found no merit to Sundquists argument as to the filing of a statement of errors. We agree.
The district court considered the argument advanced by Sundquist in his appeal to that court, despite the absence of a statement of errors. At the close of arguments, the district court stated, I dont find any error that occurred at the County Court level. As I just indicated to your plea offer argument, is-I would say its frivolous.... The State is under no obligation to re-offer you any type of plea agreement once you rejected it. The courts statement at the close of argument indicates that the court addressed the argument raised by Sundquist despite the fact that the alleged error-the refusal to require the State to reoffer a previously rejected plea agreement-had not been assigned in a statement of errors to the court. Furthermore, as we conclude below, Sundquist was not entitled to a reoffer of the plea agreement. As such, Sundquist was not prejudiced by his counsels inadequate performance.
This case is reminiscent of State v. Stubbendick , a case heard by the Court of Appeals. In Stubbendick, the defendants attorney likewise failed to file a statement of errors, leaving the district court to limit its review to plain error. The defendant argued that had counsel properly filed a statement of errors which challenged the probable cause findings regarding his operation of a vehicle on a public roadway and the sufficiency of the evidence, the district court may have found in his favor on these issues. The Court of Appeals applied Strickland, finding that the defendants arguments did not demonstrate a reasonable probability that but for his counsels allegedly deficient performance, the result of the proceeding would have been different. The result is the same in this case.
As such, there is no merit to Sundquists argument as to the filing of a statement of errors.
(b) Failure to Make Persuasive Arguments
Sundquist argues that he suffered ineffective assistance of counsel at his second trial on April 20, 2017, where he claims his counsel failed to make persuasive arguments to both the county court and the district court on appeal concerning the margin of error of the DataMaster.
First, Sundquist argues that his trial counsel should have attacked either the admissibility or the accuracy of the DataMaster results, or vigorously attacked the margin of error of the DataMaster. Sundquist contends that at trial, his counsel made a half-hearted attempt at questioning the margin of error. Sundquist claims that his attorney should have questioned the accuracy of the DataMaster and the difference between a 5-percent margin of error allowed in a controlled environment, as compared to the margin of error in an uncontrolled environment. We observe, however, that counsel raised the issue of the DataMasters accuracy and the margin of error. As such, counsels conduct was not deficient.
Sundquist next argues that on appeal to the district court, his attorney failed to effectively argue in support of his position that the State was required to reoffer the original plea agreement. Again, we note the record demonstrates that counsel raised the issue. Despite lacking legal authority for the position, counsel nevertheless argued that the State should have been required to reoffer the rejected plea agreement, because the State failed to provide Gartners DataMaster certification at the time the plea agreement was offered.
It is important to note that the district court properly observed that under State v. Obermier the State is not required to enter the certification into evidence. Despite counsels effort, the district court denied the appeal, further noting that it was, in the opinion of the court, frivolous. Counsel cannot be deficient in raising the very issue Sundquist now complains about, and as such, there is no merit to Sundquists allegation.
As for the argument that the State was required to reoffer the previously rejected plea agreement, the record shows that despite being aware that case law did not support the position that the State must reoffer the prior plea agreement, Sundquists counsel argued that the State was required to reoffer the previously rejected plea agreement. Counsel based that request on the States action in failing to disclose the officers chemical test machine certification. Because Sundquist does not explain precisely what counsel should have argued in an effort to prevail on this point, and because counsel clearly raised the issue of the prior plea agreement, counsels conduct was not deficient.
Sundquist also argues that the court erred and caused him to have ineffective assistance of counsel when it declined to allow Sundquist to be heard following the courts ruling on the reoffer of the plea agreement. The court observed that Sundquist was represented by counsel and not entitled to address the court at that time due to the presence of counsel on his behalf. We find no error in the courts ruling. We have noted that a defendant does not have a right to any type of hybrid representation, and it is within the trial courts discretion whether to allow such representation. The trial court did not err in refusing to allow Sundquist to be heard at a time when he was represented by counsel.
There is no merit to these allegations.
(a) Failure to Argue Sundquists Performance on Field Sobriety Tests Was Inconsistent With Level of Intoxication Indicated by Chemical Breath Test
Sundquist assigns that counsel was inadequate for failing to challenge that Sundquists performance on the field sobriety tests was inconsistent with the results of the chemical breath test indicating the level of intoxication. We have combined these assignments as they are indistinguishable. The record demonstrates that Sundquists counsel had no grounds to argue that Sundquists performance on the field sobriety tests and lack of video evidence were inconsistent with the level of intoxication shown by the chemical breath test results. Gartners testimony indicated that Sundquist showed signs of impairment on the field sobriety tests in that Sundquist was unable to complete maneuvers, could not maintain his balance, and failed to follow directions, all of which are consistent with intoxication and none of which can be used to establish that Sundquist was below a .150 breath alcohol content level.
(b) Failure to Adequately Communicate With Sundquist
Sundquist next alleges that counsel failed to adequately communicate with him. Sundquist alleges that prior to his second trial, he requested that counsel hire an expert witness to determine the margin of error for the chemical breath test machine. Sundquist claims he was unaware that counsel had failed to obtain an expert until a week prior to trial. Further, Sundquist alleges that he never discussed trial strategy with his attorney. However, Sundquist fails to demonstrate how an expert would have meaningfully contributed to his margin of error claim beyond the cross-examination of the States witnesses concerning the particular DataMaster units margin of error. Further, as to Sundquists claim that counsel failed to communicate trial strategy, the record contradicts Sundquists claims.
At the district court appeal, counsel is on record stating, Ive communicated all pleas to my client since I was appointed. No pleas were ever offered, Judge, at the lower case in County Court. Further, Sundquists counsel followed the trial strategy of highlighting the margin of error of the breath test machine, a strategy that Sundquist was clearly aware of as, by his own admission, he sought to hire an expert to lend credibility to the argument regarding the margin of error. Additionally, counsel clearly argued that Sundquist wish[ed] that he had the opportunity to plead to the lower charge, a statement that is accurate and was effectively communicated to both Sundquists counsel and the court. Ultimately, however, Sundquist failed to sufficiently allege facts that demonstrate deficient performance. Further, the evidence against Sundquist was overwhelming and better communication would not have changed the weight of the evidence.
There is no merit to this allegation.
(c) Sundquist Claims State Interfered With Right to Effective Assistance of Counsel in First Trial by Not Disclosing Gartners Certification
Sundquist also argues that the State interfered with his counsels communication by withholding information about Gartners chemical breath test machine certification at the time of the plea offer. Additionally, Sundquist contends that his due process rights were violated when he was denied the opportunity to make a knowing and voluntary decision regarding the initial plea offer.
We turn first to whether Sundquist waived his right to appeal the issue regarding the plea agreement. The State correctly asserts that Sundquists claim regarding the prosecutions failure to disclose information during a plea offer is not properly before the court. The State, relying on Pennfield Oil Co. v. Winstrom , grounds its argument on the fact that in the first appeal, Sundquist had the opportunity and the incentive to raise the claim regarding the plea agreement, noting that Sundquist waived the issue by failing to raise the claim on his first appeal.
In Pennfield Oil Co., we noted that under the law-of-the-case doctrine, a well-recognized waiver rule has emerged: A decision made at a previous stage of litigation, which could have been challenged in the ensuing appeal but was not, becomes the law of the case; the parties are deemed to have waived the right to challenge that decision, for it would be absurd that a party who has chosen not to argue a point on a first appeal should stand better with regard to the law of the case than one who had argued and lost.
The State also relies on U.S. v. Henry , in support of its argument. In Henry, the U.S. Court of Appeals for the District of Columbia Circuit stated, It is well-settled that where an argument could have been raised on an initial appeal, it is inappropriate to consider that argument on a second appeal following remand.
Here, Sundquist had the opportunity and the incentive to raise the claim regarding the plea agreement during his original appeal following his first trial and conviction. Sundquist failed to do so and is therefore bound by the law-of-the-case doctrine.
Sundquist waived this claim by failing to appeal it during the initial appeal that followed his first trial and conviction.
2. CLAIMS OF CONSTITUTIONAL VIOLATIONS
Sundquist next contends that his constitutional rights were violated in various ways. First, Sundquist argues that the States refusal to reoffer the same plea agreement at his second trial, which he had rejected at his first trial, amounted to vindictive prosecution, a due process violation. Sundquist also assigns that he is being punished for something other than the crime he was charged with. Next, Sundquist argues that his second conviction and sentence violated the Double Jeopardy Clause. Lastly, Sundquist argues that his right to a speedy trial was violated.
(a) Vindictive Prosecution
Sundquist alleges that the State engaged in vindictive prosecution by refusing to reoffer the previously rejected plea agreement once the case had been remanded for a new trial. Specifically, Sundquist points to a statement made by the State during the second trial, noting that [a]s an office policy, after a jury trial, we dont make plea offers. Sundquist relies on Blackledge v. Perry to support this claim.
We begin by observing that Sundquist is, of course, correct that punishing a person because he has done what the law plainly allows him to do-in this case appeal his conviction-is a due process violation of the most basic sort. The U.S. Supreme Court has noted that while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.
But the Court went on to note that the imposition of punishment is the very purpose of criminal proceedings. Therefore, the presence of a punitive motivation does not provide an adequate basis for distinguishing governmental action that is justified as a legitimate response to criminal conduct from governmental action that is an impermissible response to a protected activity. The Court, in establishing the presumption of a vindictive motive, specifically noted that it had done so only in cases in which a reasonable likelihood of vindictiveness exists .
Moreover, Sundquist misunderstands Blackledge and its implications on his case. In Blackledge, the U.S. Supreme Court affirmed the issuance of a writ of habeas corpus because the State charged a greater offense for the same conduct for which the defendant had sought a de novo retrial of a lower court conviction, finding that the States higher charge had a potential vindictive nature.
In this case, Sundquist was not charged with a greater offense than what he had previously appealed, nor was his resulting sentence greater than that of his first trial. Sundquist argues that because he was not reoffered a plea agreement, his due process rights were violated. We disagree.
In United States v. Osif, the U.S. Court of Appeals for the Ninth Circuit noted that a defendant does not have a constitutional right to a plea bargain ... nor, when he rejects a plea, can he later object to the governments decision to proceed to trial on the counts originally charged. Further, the Ninth Circuit indicated that the vindictive prosecution doctrine does not apply when neither the charges severity nor the sentence is increased.
The factual background of Osif is on point in this case. The defendant appealed from his conviction for second degree murder pursuant to a plea agreement that provided for a 15-year sentence. Before entering the plea, the defendant was tried and convicted of first degree murder, but that conviction was reversed on appeal.
Prior to the initial trial, the government offered a plea agreement with a 10-year sentence for second degree murder, which the defendant rejected. On appeal, he argued that the governments refusal to reoffer the earlier, more beneficial, plea agreement on remand amounted to vindictive prosecution. The Ninth Circuit disagreed, noting that not only is there no constitutional right to a plea bargain, but that vindictiveness is not present if there are independent reasons or intervening circumstances to justify the prosecutors action.
Here, neither Sundquists charge nor his sentence was increased; rather, the State merely refused to reoffer, after an intervening conviction on the original charge, the same plea offer that was previously rejected by Sundquist before the initial trial. Additionally, the State had already expended the resources to prepare and try the case. Further, the State had obtained a conviction, giving it confidence that a second conviction was likely.
There is no merit to the allegation.
(b) Sundquists Claim That He Is Being Punished for Something Other Than Crime With Which He Was Charged
Assigned separately, but inextricably intertwined with Sundquists prosecutorial vindictiveness claim, is Sundquists claim that he is being punished for something other than the crime for which he was charged. Sundquist attempts to ground this argument in the fact that the State originally believed it appropriate to allow him to plead to nonaggravated DUI, a plea he rejected. He further argues that because his breath alcohol content was less than 10 percent over a .150 breath alcohol content, there was no reason to believe the trial court would not have accepted the plea.
Sundquist can provide no legal or factual authority on which he can ground this assignment of error. Further, his sentence was within limits established for the crime for which he was convicted. Therefore, this argument is without merit.
(c) Double Jeopardy Clause
Next, Sundquist argues that his conviction and sentence violate the Double Jeopardy Clause. The State contends that Sundquist did not properly present the argument to the district court and that the district court did not consider it; thus, the argument was not preserved on appeal. The State cites to State v. Lavalleur to support its contention that on Sundquists first appeal, the issue of double jeopardy was decided by the Court of Appeals, and that the issue may not now be relitigated on a subsequent appeal as it is now the law of the case.
We agree and find that the Court of Appeals decision is the law of the case. Therefore, Sundquists assignment of error is without merit.
(d) Speedy Trial
Finally, Sundquist argues that the State violated his right to a speedy trial. The State again argues that while Sundquist raised the issue in the county court following remand, he did not present the issue to the district court on appeal, thus preventing the district court from considering the issue and allowing only a review for plain error.
Sundquist maintains that had the State provided him with the information concerning Gartners certification, he would have agreed to the original plea agreement offered and pled guilty to nonaggravated DUI. Sundquist argues that the States failure required him to proceed through two trials. But the State was not required to present the officers permit, nor was the State required, at initial plea negotiations, to share the status of the officers certification. Sundquist freely chose to take on a risky defense strategy, and the State does not bear the responsibility for that failed strategy.
Sundquists final assignment of error is without merit.
VI. CONCLUSION
The district court, sitting as an appellate court, did not err in denying Sundquists appeal and affirming his conviction for DUI, second offense aggravated, as well as his sentence of 18 months probation. We affirm.
AFFIRMED.
Freudenberg, J., not participating.
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
Id.
Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
State v. Timmens , 282 Neb. 787, 805 N.W.2d 704 (2011).
State v. Avey , 288 Neb. 233, 846 N.W.2d 662 (2014).
Id.
Id.
State v. Casares , 291 Neb. 150, 864 N.W.2d 667 (2015).
Id.
Id.
Id.
Id.
State v. Filholm , supra note 1.
Id.
Id.
Id.
Id.
Id.
State v. Stubbendick , No. A-14-232, 2014 WL 4825375 (Neb. App. Sept. 30, 2014) (selected for posting to court website).
Brief for appellant at 8.
State v. Obermier, 241 Neb. 802, 490 N.W.2d 693 (1992).
State v. Wilson , 252 Neb. 637, 652, 564 N.W.2d 241, 253 (1997).
Pennfield Oil Co. v. Winstrom , 276 Neb. 123, 752 N.W.2d 588 (2008).
U.S. v. Henry , 472 F.3d 910 (D.C. Cir. 2007).
Id. at 913.
Brief for appellant at 13.
Blackledge v. Perry , 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).
Bordenkircher v. Hayes , 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).
United States v. Goodwin , 457 U.S. 368, 373, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (emphasis supplied).
United States v. Osif , 789 F.2d 1404, 1405 (9th Cir. 1986).
Id.
State v. Lavalleur , 298 Neb. 237, 903 N.W.2d 464 (2017).