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State v. McDermott4/9/2004
conviction trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and the weight to be given a witness' testimony. See, State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995); State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993). In this case, there was a conflict between the testimony of McDermott and that of his trial counsel concerning their discussions about the presentence report prior to sentencing. The district court expressly found that counsel's testimony was "far more credible" than McDermott's. Therefore, we consider defense counsel's performance as described in his testimony.
McDermott's first assignment of error challenges the adequacy of trial counsel's performance in reviewing the presentence report and in failing to detect the inaccuracy noted above. The criminal history set forth in the presentence report included more than 70 entries. Stutzman testified that she met with McDermott personally to review his prior criminal record in the course of preparing the report. Trial counsel testified that he went over the report with McDermott for approximately 20 minutes prior to the sentencing hearing. During this meeting, no errors in the presentence report were discovered or brought to counsel's attention. Based upon this evidence, trial counsel's failure to detect errors in the presentence report cannot be considered deficient performance under the standard set forth above. In the absence of any indication by McDermott that the recitation of his prior criminal history was inaccurate, it was reasonable for counsel to rely upon the report. To conclude otherwise would impose an undue burden on criminal defense attorneys to independently verify the information presented in a presentence report, as compiled by the probation officer pursuant to Neb. Rev. Stat. § 29-2261 (Reissue 1995). Because we conclude that counsel's performance in this regard was not deficient, we need not reach the second prong of the Strickland test. McDermott's first assigned error is without merit.
We note that McDermott makes no claim that the inclusion of the erroneous information in the presentence report in and of itself deprived him of due process. In addition, the district judge made no specific reference to this information at the time of sentencing, but, rather, agreed with McDermott's position, as set forth in the lengthy written statement which he submitted to the court, that he was a drug addict and would benefit from a sentence which would give him access to "drug e-hab and/or counseling" and medical facilities and services.
With respect to his second assignment of error, McDermott contends that his counsel performed deficiently in not determining whether McDermott's criminal record would support a habitual criminal charge and in advising McDermott to enter into what he claims was an illusory plea agreement dismissing that charge. A habitual criminal is defined by § 29-2221, which provides in relevant part:
(1) Whoever has been twice convicted of a crime, sentenced, and committed to prison, in this or any other state or by the United States or once in this state and once at least in any other state or by the United States, for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to be a habitual criminal and shall be punished by imprisonment in a Department of Correctional Services adult correctional facility for a mandatory minimum term of ten years and a maximum term of not more than sixty years[.]
In State v. Chapman, 205 Neb 368, 370, 287 N.W.2d 697, 698 (1980), this court limited those felonies which could be used under § 29-2221, holding that "of
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