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State v. McDermott4/9/2004
fenses which are felonies because the defendant has been previously convicted of the same crime do not constitute 'felonies' within the meaning of prior felonies that enhance penalties under the habitual criminal statute." Subsequently, this court stated:
e regard the holding in State v. Chapman . . . as resting upon two general principles: (1) A defendant should not be subjected to double penalty enhancement through application of both a specific subsequent offense statute and a habitual criminal statute and (2) the specific enhancement mechanism contained in Nebraska's [driving under the influence] statutes precludes application of the general enhancement provisions set forth in the habitual criminal statute.
State v. Hittle, 257 Neb. 344, 355, 598 N.W.2d 20, 29 (1999) (holding felony conviction for driving under suspended license may not be used to trigger application of habitual criminal statute because penalty has been enhanced by virtue of defendant's prior violations of other provisions within same statute).
In this case, McDermott's criminal record, as summarized in the presentence report at the time of sentencing, contained at least two felonies in addition to the four which were erroneously included. The first was a 1989 conviction in California for petty theft with priors which resulted in a 16-month jail sentence. The second was a 1994 conviction in California for possession of heroin which also resulted in a 16-month jail sentence.
McDermott argues that under Chapman, he could not have been found to be a habitual criminal because his 1989 conviction was elevated to felony status based solely on his prior petty theft convictions. The State contends that Chapman is distinguishable on several grounds and that thus, it cannot be categorically said that McDermott's record would not have supported a habitual criminal conviction. The State argues first that Chapman is distinguishable in that it "was decided as a matter of state statutory interpretation which is inapplicable to . . . McDermott's California convictions." Brief for appellee at 12. It is undisputed that McDermott's misdemeanor petty theft charge was enhanced to a felony by virtue of his previous offenses of that same nature. The State argues, however, that unlike Hittle and Chapman, McDermott's petty theft charge was not enhanced by virtue of a specific statute with a "specific enhancement mechanism," but, rather, McDermott was convicted under the California general penal code which specifically allows the elevation of misdemeanors to felony offenses through repetition. Brief for appellee at 13.
The State also argues that § 29-2221 does not require two prior "felonies." Rather, it states that the defendant has to have been "twice convicted of a crime, sentenced, and committed to prison . . . for terms of not less than one year each." § 29-2221(1). Based on the plain meaning of the statutory language, the State contends that any conviction-misdemeanor or felony-which results in a sentence of over a year would satisfy the plain meaning of "crime" for the purposes of § 29-2221(1). Accordingly, the State contends that McDermott's 1989 conviction, whether designated as a felony or misdemeanor, arguably satisfies this statutory requirement.
The State has thus demonstrated non-frivolous arguments distinguishing State v. Chapman, 205 Neb. 368, 287 N.W.2d 697 (1980), which could have been made in support of the habitual criminal charge against McDermott, had the charge not been dismissed as a part of the plea agreement. In addition, McDermott's record now contains evidence of a third prior felony conviction for burglary. Despite the fact that there is no indication in the record of
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