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State v. McDermott4/9/2004
effective assistance of counsel under the federal Constitution, and the records and files do not affirmatively show that McDermott is entitled to no relief." State v. McDermott, No. A-00-1126, 2002 WL 452189 at *3 (Neb. App. Mar. 26, 2002) (not designated for permanent publication). The Court of Appeals therefore remanded the matter for an evidentiary hearing.
Trial counsel, McDermott, and Shane Stutzman, the probation officer responsible for compiling McDermott's presentence report, each testified at an evidentiary hearing conducted on August 26, 2002. Trial counsel testified that he had a specific recollection of discussing the presentence report with McDermott for approximately 20 minutes prior to the sentencing hearing. Trial counsel testified that during that meeting, he "would have told [McDermott] what needed to be proven to make a habitual criminal charge effective and - and whether or not those types of offenses would have been on his record." He stated that he was not aware of any errors in the presentence report prior to sentencing. Trial counsel testified that the State's agreement not to file additional charges as part of the plea bargain conferred a benefit on McDermott because there was "at least some potential" that other charges could have been filed.
McDermott testified that it had been his intention to go to trial but that he had accepted the plea agreement because his trial counsel told him that if convicted on the charge of possession with intent to deliver, his record "would support an habitual criminal finding and it would add an additional 10 to 60 years on top of whatever got for the drug charge." McDermott testified that the State's offer not to file any additional charges did not affect his decision to accept the plea agreement because he was not worried about other charges. McDermott confirmed that he met with his trial counsel for 10 to 15 minutes prior to his sentencing, but stated that he was not shown a copy of the presentence report.
Stutzman testified that she met personally with McDermott to review his prior criminal record, and McDermott's testimony confirms that this meeting occurred. Stutzman admitted that in compiling McDermott's presentence report, she erroneously included four felony convictions involving another person. Stutzman also testified, however, that even without these convictions, her sentencing recommendation to the court would have been the same because of McDermott's extensive criminal record and history of substance abuse.
On September 16, 2002, the State filed a motion to supplement the record with newly discovered evidence. The evidence consisted of a copy of a December 1989 conviction for felony burglary that had not appeared in McDermott's original presentence report. On October 8, over the objection of McDermott's counsel, the newly discovered evidence was received as exhibit 23. Exhibit 23 does not indicate what sentence McDermott received as a result of this conviction.
On December 9, 2002, the district court filed a judgment denying and dismissing with prejudice McDermott's amended motion for post-conviction relief. The district court concluded that McDermott had failed to show that he was prejudiced by the erroneous inclusion of the four felony convictions because he failed to prove how the result would have been different had they not been included. Regarding McDermott's plea agreement, the court found that McDermott had received a benefit by "avoiding the risk and uncertainty of a habitual criminal enhancement hearing" and the "potential for filing other felony charges" and that therefore, the plea agreement was not illusory. McDermott filed this timely appeal, and we moved the case to our
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