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State v. Feldhacker9/2/2003
(not designated for permanent publication)
I. INTRODUCTION
William J. Feldhacker appeals from the Sarpy County District Court's order denying his motion to set aside guilty plea. Feldhacker contends that his plea is invalid because the court did not inquire whether he was under the influence of alcohol or drugs when he was entering his guilty plea. Feldhacker also contends that he received ineffective assistance of counsel and that he would not have pled guilty had his original counsel investigated the case and advised him more thoroughly. For the reasons stated herein, we affirm.
II. BACKGROUND
On December 1, 1999, Feldhacker was driving in Sarpy County, Nebraska, near the intersection of 84th Street and Highway 370 when sheriff's department officers witnessed Feldhacker drive his vehicle "through a red light." The officers pursued Feldhacker but he would not stop; eventually, Feldhacker drove off the road and hit a barbed wire fence. After the officers approached the vehicle, they noticed an empty bottle of tequila on the driver's side floorboard. Feldhacker also smelled of alcohol.
When Feldhacker got out of his vehicle, he was unsteady and could not maintain his balance. Feldhacker would not perform any field sobriety tests or submit to a chemical test. One of the officers would have testified to his belief that based on Feldhacker's appearance, "he was under the influence of alcohol to a degree to appreciably impair his ability to drive on the date of arrest."
The State filed an information on December 28, 1999, charging Feldhacker with driving under the influence , fourth offense, and refusal to submit to a chemical test. On January 3, 2000, Feldhacker was arraigned at a group arraignment. The record indicates that Feldhacker was advised of the nature of the charges being brought against him, the constitutional rights to which he was entitled, and the potential penalties, including fines and periods of incarceration, if he was found guilty. Feldhacker entered a not guilty plea.
On April 6, 2000, Feldhacker pled guilty to driving under the influence , third offense. His guilty plea was subject to a plea agreement whereby the State agreed to enhance Feldhacker's charge of driving under the influence to third offense rather than fourth offense and to dismiss the other traffic violations with which he had been charged. On January 22, 2002, Feldhacker filed a "Verified Motion to Set Aside Guilty Plea." On February 1, a hearing was held on this motion, and the trial court took it under advisement. At the subsequent hearing on February 15, the court denied Feldhacker's motion and proceeded to sentencing. A presentence report (PSR) had been completed prior to Feldhacker's sentencing and made part of the record on February 1. The PSR indicated that Feldhacker was taking antibiotics when he was tested for drugs on May 9, 2000. After reviewing the PSR, the court found that Feldhacker was not a "suitable candidate for probation." The court ordered Feldhacker, inter alia, to spend 1 year in jail and also revoked his driver's license for 15 years. This appeal followed.
III. ASSIGNMENTS OF ERROR
Feldhacker assigns two errors on appeal. Feldhacker contends that the trial court erred because it did not inquire whether he was under the influence of any drugs or alcohol when he was entering his plea. Feldhacker also contends that he received ineffective assistance of counsel.
IV. ANALYSIS
1. Withdrawal of Plea
(a) Plea Requirement
The Nebraska Supreme Court has established the criteria necessary for determining whether a defendant's plea of guilty or
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