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State v. McDermott4/9/2004
the disposition in that case, it is possible that additional information regarding the disposition of the burglary conviction, or any of the other 46 "unknown" dispositions in McDermott's presentence report, would have been discovered if the State had pursued the habitual criminal charge. McDermott conceded in his testimony that his prior misdemeanor convictions in California could have involved a sentence of incarceration for up to 1 year. The record thus reflects at least the possibility that McDermott could have been convicted as a habitual criminal had he not entered into the plea agreement and that his attorney advised him of this possibility. In addition, the plea agreement protected McDermott against the filing of additional charges in Nebraska. Accordingly, we agree with the district court that McDermott did not meet his burden of proving that the plea agreement was illusory or that trial counsel's advice with respect to the plea agreement was constitutionally deficient.
In his final assignment of error, McDermott argues that counsel's deficient performance resulted in his guilty plea not being "entered knowingly, intelligently, and voluntarily because he was not aware, nor was he advised by his attorney, that his prior criminal record would not support habitual criminal charge." A defendant who pleads guilty upon the advice of counsel may attack only the voluntary and intelligent character of the plea by showing that the advice received was not within the range of competence demanded of attorneys in criminal cases. State v. Zarate, 264 Neb. 690, 651 N.W.2d 215 (2002), citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed. 2d 203 (1985), and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed. 2d 235 (1973). Because we conclude that the performance of McDermott's counsel in advising him regarding the guilty plea was not constitutionally deficient, it follows that the plea was made knowingly, intelligently, and voluntarily.
CONCLUSION
Finding no error in the denial of post-conviction relief, we affirm the judgment of the district court for Seward County.
Affirmed.
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