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State v. McDermott4/9/2004
Under the terms of a plea agreement, Robert McDermott entered a guilty plea to possession of a controlled substance with intent to deliver in violation of Neb. Rev. Stat. § 28-416 (Reissue 1995). He appeals from an order denying his motion for post-conviction relief.
FACTS
In 1997, McDermott was charged in Seward County with a single count of possession of a controlled substance with intent to deliver in violation of § 28-416. A Seward County public defender was appointed as his attorney. McDermott was subsequently arraigned in the district court for Seward County on an amended information charging him with one count of possession of a controlled substance with intent to deliver in violation of § 28-416, and with being a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 1995).
McDermott appeared with counsel in district court on July 21, 1998, and, under the terms of a plea agreement, entered a guilty plea to the possession with intent to deliver charge in exchange for dismissal of the habitual criminal charge, as well as an agreement by the State not to file any additional charges. On August 18, a sentencing hearing was held. The court asked trial counsel if he had had an opportunity to review the presentence report and inquired as to whether he had any additions, corrections, or deletions he wished to make. Counsel submitted a handwritten statement from McDermott for inclusion in the presentence report but did not object to the accuracy of any of the information compiled by the probation officer. The district court sentenced McDermott to a term of incarceration of 62/3 to 20 years in an institution under the jurisdiction of the Nebraska Department of Correctional Services. Counsel filed a timely direct appeal on the sole ground that McDermott's sentence was excessive. That appeal was summarily affirmed by the Nebraska Court of Appeals on February 5, 1999. See State v. McDermott, 8 Neb. App. xxix (No. A-98-949, Feb. 5, 1999).
On August 25, 2000, McDermott, represented by new counsel, filed a motion for post-conviction relief alleging ineffective assistance of counsel. McDermott alleged that his presentence report erroneously included four felony convictions from Bakersfield, California, between 1982 and 1992 which were attributed to him but were actually committed by a different person. McDermott contended that his trial counsel performed deficiently by failing to adequately discuss McDermott's criminal history with him prior to sentencing. He alleged that if he had been given the opportunity to review the presentence report, he would have brought the incorrect information to the attention of his trial counsel and the court.
McDermott also alleged that his plea was not "knowingly, intelligently, and voluntarily" entered because he was not informed by his counsel that his prior criminal record would not support a habitual criminal conviction. McDermott alleged that a true report of his felony criminal history at the time of sentencing would have revealed that he had only two prior felony convictions, one of which was a felony solely because of repetition and therefore could not be counted as a felony for the purposes of the habitual criminal statute. McDermott alleged that if he had known that there was no basis for conviction under the habitual criminal statute, he would not have entered a plea and would have insisted upon a jury trial.
On October 3, 2000, the district court denied McDermott's motion without an evidentiary hearing. On appeal, the Court of Appeals determined that McDermott's motion for post-conviction relief contained "factual allegations which, if proved, constitute an infringement of McDermott's right to
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