                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. HOWARD


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                               V.

                                STUART D. HOWARD, APPELLANT.


                            Filed February 4, 2020.   No. A-19-433.


       Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed.
       Randall Wertz for appellant.
       Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.


       RIEDMANN, BISHOP, and ARTERBURN, Judges.
       BISHOP, Judge.
        Stuart D. Howard pled no contest to Count 1, operating a motor vehicle to avoid arrest;
Count 2, attempted possession of a controlled substance; and Count 3, “DUI-.08 breath-1st
offense.” The Lancaster County District Court subsequently sentenced him on those counts.
Howard now claims his counsel was ineffective. We find the record sufficient to address his claims
and affirm the judgment of the district court.
                                        BACKGROUND
        On June 21, 2018, the State filed an information charging Howard with a total of eight
counts: Count 1, operating a motor vehicle to avoid arrest, a Class IV felony, pursuant to Neb.
Rev. Stat. § 28-905 (Reissue 2016); Count 2, possession of a controlled substance, a Class IV
felony, pursuant to Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2018); Count 3, “DUI-.08 breath-1st
offense,” a Class W misdemeanor, pursuant to Neb. Rev. Stat. §§ 60-6,196 and 60-6,197.03(1)
(Reissue 2010 & Cum. Supp. 2018); Count 4, refusing a chemical test, a Class W misdemeanor,



                                              -1-
pursuant to Neb. Rev. Stat. §§ 60-6,197 and 60-6,197.03(1) (Cum. Supp. 2018); Count 5, resisting
arrest, a Class I misdemeanor, pursuant to Neb. Rev. Stat. § 28-904 (Reissue 2016); Count 6,
obstructing a peace officer, a Class I misdemeanor, pursuant to Neb. Rev. Stat. § 28-906 (Reissue
2016); Count 7, leaving the scene of an accident, a Class II misdemeanor, pursuant to Neb. Rev.
Stat. § 60-696 (Reissue 2010); and Count 8, willful reckless driving, a Class III misdemeanor,
pursuant to Neb. Rev. Stat. §§ 60-6,214 and 60-6,216 (Reissue 2010).
        Pursuant to a plea agreement, the State filed an amended information on January 24, 2019,
charging Howard with three counts: Count 1, operating a motor vehicle to avoid arrest, a Class IV
felony, pursuant to § 28-905; Count 2, attempted possession of a controlled substance, a Class I
misdemeanor, pursuant to Neb. Rev. Stat. §§ 28-201 and 28-416(3) (Reissue 2016 & Cum. Supp.
2018); and Count 3, “DUI-.08 breath-1st offense,” a Class W misdemeanor, pursuant to
§§ 60-6,196 and 60-6,197.03(1). At a hearing that same day, Howard pled no contest to all three
counts in the amended information. The following factual basis was provided by the State:
                On December 10th of 2017 . . . Officer Duffek . . . observed a vehicle without any
        headlights. He followed the vehicle and observed it to violate a red traffic signal and then
        get up to approximately 70 miles per hour on 48th Street.
                He initiated his overhead lights and made a traffic stop on the vehicle. Upon contact
        with the driver, he noted that the driver had bloodshot watery eyes. His eyelids were
        droopy. He asked him about consuming alcohol that evening. The driver didn’t answer,
        quickly accelerated west bound on Leighton. As he began to accelerate, the officer
        exclaimed, “Stop. You don’t want to do that.” The officer was right next to the vehicle
        when it took off.
                The officer went back to his cruiser pursuing the vehicle. The vehicle accelerated
        to approximately 65 miles per hour. It turned north bound onto 41st Street. It was then that
        the vehicle appeared to have drove [sic] through a barrier and struck a backhoe further
        north on 41st Street.
                Officer approached the vehicle, and the driver was still inside the vehicle. The
        officer drew his weapon and gave the driver orders to get on to the ground. The driver
        stumbled from the vehicle, obviously disoriented from the collision. He gave him several
        orders to get on to the ground, however the driver continued to disobey the commands and
        walked westbound. He then began to run north bound on 41st against the officer’s
        commands.
                Officer went and tried to stop him, causing him to fall on the ground and had to
        wrestle his arms in order to get them behind his back. He did identify the driver as . . .
        Howard.
                Upon a search of the vehicle there was a backpack that was discovered that had
        some information for Mr. Howard. There was in the side pocket of the same backpack a
        small folded piece of paper with three Tepentadol pills, which were found to be a Schedule
        II controlled substance.
                Howard was transported to Bryan West due [sic] the head injury suffered from
        either the accident or his fall. After being discharged with a diagnosis of a head injury and
        alcohol intoxication he was transported to the Lancaster County Jail.



                                                -2-
              Once at jail he was read a post arrest chemical advisement form and ordered to
       complete a breath test. Despite being ordered to complete the . . . breath test, he did not do
       so. He continued to argue with the officers complaining of various pains instead of
       attempting the test. The test did time out as deficient.
              All these events occurred in Lancaster County, Nebraska.

The district court accepted Howard’s no contest pleas to each count and found him guilty of the
same. The case was set for sentencing.
       After a hearing on April 24, 2019, the district court sentenced Howard to consecutive
sentences of 365 days’ jail time and 12 months’ postrelease supervision on Count 1 (additionally
driving privileges and driver’s license suspended and revoked for 2 years), 90 days’ jail time on
Count 2, and 60 days’ jail time on Count 3 (additionally driving privileges and driver’s license
suspended and revoked for 6 months and he was fined $500).
       Howard appeals.
                                  ASSIGNMENTS OF ERROR
        Howard assigns that his trial counsel was ineffective because counsel failed to (1) consult
and present the testimony of a toxicologist, “who may have been able” to accurately calculate
Howard’s intoxication level at the time of the incident, and (2) request a continuance of the
sentencing hearing so that Howard’s mental health records could be included in the presentence
investigation report (PSR).
                                    STANDARD OF REVIEW
       Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). In reviewing
claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether
the undisputed facts contained within the record are 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. Id.
                                            ANALYSIS
        Howard claims his trial counsel was ineffective. His counsel for this direct appeal differs
from his trial counsel. 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 in order to preserve
such claim. State v. Spang, 302 Neb. 285, 923 N.W.2d 59 (2019). Once raised, the appellate court
will determine whether the record on appeal is sufficient to review the merits of the ineffective
performance claims. Id. An ineffective assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing. Id. An ineffective assistance of counsel claim made on
direct appeal can be found to be without merit if the record establishes that trial counsel’s
performance was not deficient or that the appellant could not establish prejudice. Id.




                                                -3-
        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 has the burden to show that
his or her counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense. State v. Spang, supra. In a plea context, deficiency depends
on whether counsel’s advice was within the range of competence demanded of attorneys in
criminal cases. State v. Blaha, supra. When a conviction is based upon a guilty or no contest plea,
the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the defendant
shows a reasonable probability that but for the errors of counsel, the defendant would have insisted
on going to trial rather than pleading guilty. Id.
        In his brief, Howard states that his trial counsel failed to (1) consult and present the
testimony of a toxicologist, “who may have been able” to accurately calculate Howard’s
intoxication level at the time of the incident, and (2) request a continuance of the sentencing
hearing so that Howard’s mental health records could be included in the PSR.
                                            TOXICOLOGIST
         Howard states, “There is nothing in the record reflecting trial counsel requesting the trial
[sic] to appoint an expert witness, specifically a toxicologist, to calculate and testify to the level of
intoxication of [Howard] at the time of the incident.” Brief for appellant at 6. Howard alleges that
“had such an expert been requested, appointed, and questioned, the testimony of the expert could
have been an important factor the Judge/or jury could have considered in determining if [Howard]
had the requisite specific intent to be accountable for the crimes for which he was charged.” Id.
         Before the district court accepted Howard’s no contest pleas, the following colloquy was
had on the record:
                 THE COURT: . . . [I]f I accept your pleas of no contest and find you guilty of these
         charges, there will be no trial of any kind. Do you understand that?
                 [HOWARD]: Yes, sir.
                 ....
                 THE COURT: In a trial you have a right to present witnesses in your own defense.
         You have a right to subpoena witnesses, and you can testify, yourself, in your own defense.
         Do you understand that?
                 [HOWARD]: Yes, sir.
                 THE COURT: However, if I accept your pleas of no contest and find you guilty of
         these charges, you would waive and do without these rights. Do you understand that?
                 [HOWARD]: Yes, sir.
                 ....
                 THE COURT: On a not guilty plea, the burden is on the State to prove you guilty
         beyond a reasonable doubt. Do you understand that?
                 [HOWARD]: Yes, sir.
                 THE COURT: However, if I accept your plea of no contest and find you guilty of
         these charges, the State would not have this burden of proof. In fact the State would not
         have any burden of proof. Do you understand that?
                 [HOWARD]: Yes, sir.



                                                  -4-
              ....
              THE COURT: . . . [I]f I accept your no contest pleas, you would waive any defense
        you may have to the charges. Do you understand that?
              [HOWARD]: Yes, sir.

The following additional colloquy was had on the record:
               THE COURT: Have you had an adequate amount of time to discuss this case with
       your attorney?
               [HOWARD]: Yes, sir.
               THE COURT: Have you gone over all the facts and possible consequence with
       your attorney?
               [HOWARD]: Yes, sir.
               THE COURT: Have you discussed all possible defenses you may have to these
       charges with your attorney?
               [HOWARD]: Yes, sir.
               THE COURT: Have you told your attorney everything you know about these
       matters?
               [HOWARD]: Yes, sir.
               THE COURT: Do you believe your attorney is competently representing you?
               [HOWARD]: Yes, sir.

At no time during the foregoing did Howard express that an expert witness (toxicologist) would
be helpful in exonerating him or mitigating his culpability. In fact, he specifically acknowledged
that by entering a plea he was giving up his right to a trial, his right to call witnesses on his behalf,
and his right to present a defense.
        Furthermore, in his brief, Howard asserts only that an expert witness “may have” been able
to provide information regarding Howard’s intoxication level, brief for appellant at 5, and that the
testimony of such an expert “could have” been an important factor the judge or jury could have
considered in determining whether Howard should be held accountable for the charged crimes, id.
at 6. Howard’s assertions cannot establish prejudice, because he has not shown a reasonable
probability that but for the alleged errors of counsel, he would have insisted on going to trial rather
than pleading guilty. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). Howard’s ineffective
assistance claim regarding a toxicologist fails.
                                            CONTINUANCE
       Howard claims that trial counsel failed to request a continuance of the sentencing hearing
based upon the lack of mental health records, and that Howard was the one who had to ask for a
continuance. This claim is refuted by the record.
       At the sentencing hearing on March 21, 2019, the district court asked if there were any
additions or corrections that needed to be made to the PSR, and Howard’s counsel responded,
“No.” When the court asked the same question of Howard, Howard responded that he was
“shocked” that the “PSI officer” had not received his mental health records from Lutheran Family



                                                  -5-
Services because he had signed releases. At that point, Howard’s counsel did request that
sentencing be continued to get more information from Lutheran Family Services; the continuance
was granted. And at the continued sentencing hearing on April 24, upon the request of Howard’s
counsel, the district court made the documents from Lutheran Family Services part of the PSR.
Although it was Howard who initially raised the issue of his mental health records, his counsel
was the one who requested the continuance and the health records were made part of the PSR.
Therefore, the record refutes Howard’s claim that counsel failed to request a continuance and this
ineffective assistance claim also fails.
                                          CONCLUSION
         For the reasons set for above, we find no merit to Howard’s claims of ineffective assistance
of trial counsel.
                                                                                          AFFIRMED.




                                                -6-
