Opinion
No. A-10-1085.
09-27-2011
STATE OF NEBRASKA, APPELLEE, v. EDDY SEGURA, APPELLANT.
James R. Mowbray and Robert W. Kortus, of Nebraska Commission on Public Advocacy, for appellant. Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Scotts Bluff County: LEO DOBROVOLNY, Judge. Affirmed.
James R. Mowbray and Robert W. Kortus, of Nebraska Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Following an evidentiary hearing on the limited issue of whether counsel was ineffective for not pursuing the insanity defense, the district court entered an order denying Eddy Segura's motion for postconviction relief. Segura appeals. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Because we find no error in the district court's denial of the motion, we affirm.
BACKGROUND
On May 12, 2005, the State filed an information in the Scotts Bluff County District Court charging Segura with five counts: (1) attempted first degree murder, a Class II felony; (2) first degree assault, a Class III felony; (3) use of a deadly weapon to commit a felony, a Class III felony; (4) attempted second degree murder, a Class II felony; and (5) use of a firearm to commit a felony, a Class II felony. The charges arose as a result of Segura's stabbing of his father.
On May 17, 2005, Segura's appointed attorney, Brian Lockwood, filed a motion for a competency evaluation. The district court sustained the motion. On September 9, Lockwood filed a "Notice of Intention to Rely on Insanity Defense" and a motion to withdraw Segura's pleas of not guilty and to enter new pleas of "Not Guilty or, in the alternative, Not Responsible by Reason of Insanity." The district court sustained the motion to change Segura's plea.
At a hearing on October 21, 2005, Lockwood informed the district court that a plea agreement had been reached, whereby Segura would plead guilty to attempted first degree murder and the remaining counts would be dismissed. Segura confirmed this was his understanding of the plea agreement.
The district court then proceeded with a plea hearing and the following exchange took place:
THE COURT: Outside of those terms, the State's agreement to dismiss Counts II, III, Iv and v, has anyone made any other threats, promises, inducements or done anything to get you to enter a plea of no contest to Count I?
[Segura]: No, Your Honor.
THE COURT: If you in fact do enter a plea of no contest to Count I, when I get to that point in the proceedings, will that plea be then of your own free will?
[Segura]: Yes, it will, Your Honor.
The district court reviewed all of the charges and possible penalties Segura would face if he chose to go to trial on all five counts as opposed to pleading to Count I. The district court advised Segura of his various rights. Segura indicated that he understood his rights and that he did not have any question about the charge against him or the possible penalty.
Segura pled no contest to Count I, attempted first degree murder, and the State offered a factual basis. The factual basis showed that on October 29, 2005, Segura entered his parents' home and pulled a long knife from his belt. Segura disabled the telephone. Segura chased his father from his shop in the attached garage to a vacant lot. Segura took out the knife and stabbed his father, causing wounds to his hand and neck. The injuries penetrated the subclavian and jugular veins.
After the stabbing, Segura took off running. Segura was located by police in his backyard. A police officer approached Segura with his gun pulled. Segura said something like "I'm not armed" and raised his hands and indicated he did not have a weapon. When the officer approached Segura to place him under arrest, Segura resisted and a struggle ensued. Segura reached for the officer's gun, the gun fired, and the bullet went through the back pocket of the officer's pants, putting a hole in his pocket and grazing his wallet.
Segura's daughter told law enforcement that Segura had been sharpening a knife for about a month prior to the attack. A week before the incident, Segura told his daughter that he was going to "slit her grandfather's throat." A butcher knife was located near Segura's father's residence which was identified by Segura's daughter as the particular knife Segura had been sharpening. The factual basis further showed that Segura blamed his father for personal problems he was having.
Lockwood offered Dr. David Fisher's psychiatric evaluation into evidence at the plea hearing. The court then asked Segura whether he understood everything that had gone on in court that morning, whether he was able to understand the proceedings throughout the course of the hearing as well as the entire case, and whether he had been able to converse with Lockwood. Segura answered affirmatively to each question.
The district court found beyond a reasonable doubt that Segura was competent to enter a plea, accepted the factual basis, and found he understood the nature of the charge against him and the possible penalties he faced. It also found Segura knowingly, intelligently, and voluntarily waived his rights and knowingly, intelligently, and voluntarily entered the plea of no contest. The district court accepted the plea and found Segura guilty of Count I of the information. Counts II through V were dismissed.
A sentencing hearing was held on December 12, 2010. The district court reviewed the presentence investigation report, letters from Segura's family, and Segura's prior criminal history. Segura was sentenced to an indeterminate term of imprisonment of 24 to 40 years with the Nebraska Department of Correctional Services with credit for 227 days served.
On direct appeal, Segura challenged his sentence as excessive and assigned error to the district court's failure to order an evaluation under Neb. Rev. Stat. § 29-2261(5) (Reissue 2008) and by failing to consider Fisher's psychiatric evaluation. This court summarily affirmed the decision of the district court. See State v. Segura, 15 Neb. App. xxxi (No. A-06-035, Feb. 2, 2007).
On November 16, 2007, Segura filed a pro se motion for postconviction relief in the district court. At some point, counsel was appointed for Segura in the postconviction process. On April 29, 2008, the district court entered an order dismissing the following allegations of ineffective assistance of counsel: that Lockwood threatened and coerced Segura to enter a plea by telling him his parents would have to testify in a trial and that Lockwood should have challenged the psychiatrist's report which found Segura competent to stand trial. The allegation that the district court did not allow members of Segura's family to speak at sentencing was also dismissed. The district court found that Segura was entitled to an evidentiary hearing on the limited issue of whether he received ineffective assistance of counsel based on the insanity defense not being pursued.
On May 23, 2008, Segura filed an interlocutory appeal of the district court's limitation of his evidentiary hearing. On March 9, 2009, this court summarily affirmed the decision of the district court in case No. A-08-573.
During the pendency of the postconviction proceedings several motions for psychiatric evaluation were filed by both Segura and his appointed counsel, all of which were denied by the district court. Segura appealed the denial of his motion for psychiatric evaluation on April 6, 2010. This court summarily dismissed Segura's appeal in case No. A-10-359 on June 1 for lack of a final, appealable order.
An evidentiary hearing was held on July 29, 2010. The district court received in evidence the depositions of Lockwood and Segura, as well as a copy of the bill of exceptions in the original case which included Fisher's psychiatric evaluation. In addition, Lockwood testified. We will discuss the evidence as necessary in the analysis below.
On October 5, 2010, the district court denied Segura's motion for postconviction relief on the limited issue of whether Segura was deprived of competent counsel by the fact that the insanity defense was not pursued. In its detailed order, the district court specifically discussed the following related issues: (1) whether Segura's "involuntary" plea deprived him of the insanity defense; (2) whether Lockwood should have obtained further psychiatric opinion on the insanity issue and did not enlist a psychiatrist to give an opinion on insanity; (3) whether Lockwood should have further investigated the viability of the insanity defense; (4) whether Lockwood failed to adequately advise Segura as to the insanity defense, including the standard of proof required; and (5) whether Lockwood failed to advise Segura as to the alternate defense of "temporarily diminished capacity."
The district court found no evidence to support Segura's claim that his plea was involuntary and that he was thereby deprived of the insanity defense. The district court further found that the record did not support the allegations that Lockwood should have requested a second opinion to support the insanity defense, should have further investigated the insanity defense, or did not fully advise Segura regarding the insanity defense. The district court found that the evidence showed Lockwood had several conversations with Segura about the elements of the crimes charged, possible defenses, and possible pleas.
In overruling Segura's motion, the district court stated:
The evidence presented does not show deficient performance by [Lockwood]. The insanity defense was considered, and abandoned in favor [of] a plea agreement which eliminated significant charges in the information.
The evidence of what occurred does not support a probability that the insanity defense could have been proven . . . .
To find that counsel should have continued to pursue insanity as a defense in the light of Dr. Fisher's finding communicated to Lockwood would be contrary to a strong presumption that counsel acted reasonably. It was a reasonable strategic decision to abandon the insanity defense and take the offered plea to lesser charges in light of what the defense counsel had available for defenses, which he testified were none.
Segura subsequently perfected his appeal to this court.
ASSIGNMENT OF ERROR
Segura asserts, consolidated and restated, that the district court erred when it denied him postconviction relief on the claim of ineffective assistance of trial counsel with respect to the pursuit of the insanity defense.
STANDARD OF REVIEW
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011).
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision. State v. Golka, supra.
ANALYSIS
Ineffective Assistance of Counsel.
Segura asserts he received ineffective assistance of trial counsel because he was not properly advised regarding the viability and use of the insanity defense before he entered a plea. We note that Segura was represented by the same lawyer at the time of his plea and on direct appeal, and this postconviction proceeding is his first opportunity to assert the claims of ineffective assistance of counsel. See State v. McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010).
To establish a claim of ineffective assistance of counsel, the defendant has the burden to show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defendant. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). See, also, Strickland v. Washington, supra. The two prongs of the ineffective assistance of counsel test, deficient performance and prejudice, may be addressed in either order. State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011). To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. McGhee, supra. To demonstrate deficient performance by counsel, a defendant must show counsel did not perform at least as well as a criminal lawyer with ordinary training and skill in the area. State v. Sidzyik, supra. When considering whether trial counsel's performance was deficient, there is a strong presumption that counsel acted reasonably. State v. Jim, 278 Neb. 238, 768 N.W.2d 464 (2009). Trial counsel is afforded due deference to formulate trial strategy and tactics. Id. When reviewing a claim of ineffective assistance of counsel, an appellate court will not second-guess reasonable strategic decisions by counsel. Id.
When a conviction is the result of a guilty plea or a plea of no contest, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the convicted defendant can show a reasonable probability that, but for the errors of counsel, he or she would have insisted on going to trial rather than pleading. State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011).
Segura claims that trial counsel failed to properly advise him of the availability and viability of the insanity defense. The U.S. Supreme Court has stated: "[W]here the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the 'prejudice' inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). See, also, State v. Golka, supra.
In order to evaluate Segura's claim regarding the insanity defense, we first analyze whether the defense likely would have succeeded at trial. Nebraska follows the M'Naghten rule as to the defense of insanity. Under Nebraska's current common-law definition of insanity, the two requirements for the defense are (1) the defendant had a mental disease or defect at the time of the crime and (2) the defendant did not know or understand the nature and consequences of his or her actions or he or she did not know the difference between right and wrong. State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011). A defendant who pleads not responsible by reason of insanity has the burden to prove the defense by a preponderance of the evidence. State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009). In the context of an insanity defense, the fact that a defendant has some form of mental illness or defect does not by itself establish insanity. State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
In his psychiatric evaluation, Fisher diagnosed Segura with amphetamine and psychostimulant dependence, in remission; alcohol and cocaine dependence, in remission; personality disorder, not otherwise specified; mood disorder, not otherwise specified; and delusional disorder, persecuting type. In Fisher's medical opinion, Segura understood "clearly the nature and object of the charges and proceedings against him and all of the potential consequences." Segura was able to describe the events before and subsequent to his arrest and incarceration. Fisher indicated that Segura had a "basic or adequate awareness of right and wrong, and therefore the wrongness of a person's criminal actions, including his, although he [denied] guilt."
Fisher verbally told Lockwood that his opinion was that Segura understood the wrongful nature of his actions at the time of the offense and did not meet the requirements of the insanity defense. Fisher noted Segura's actions immediately after the incident demonstrated "a desire to avoid being caught or apprehended." At that time, Lockwood asked Fisher not to provide a written report regarding the possible use of the insanity defense because there was an order of reciprocal discovery. Lockwood did not want Fisher to become a State's witness if a second opinion was later obtained. Lockwood testified that he would have asked Fisher for a written report had the results of the evaluation been favorable for an insanity defense.
Lockwood testified that he discussed the insanity defense and the relative merits of it with Segura. They discussed what would need to be demonstrated and what responsive evidence would likely be presented by the State at trial to overcome the insanity defense. During these discussions, Lockwood also communicated to Segura the verbal recommendation by Fisher that Segura did not meet the requirements of the insanity defense. Lockwood outlined possible pleas and possible penalties to Segura "from day one." Further, Lockwood testified in his deposition that he would have pursued the insanity defense had Segura insisted on going to trial. Lockwood told Segura that the plea offer seemed like a "fair and reasonable deal" but left the final decision up to Segura. Lockwood testified that Segura was not hesitant to plea and that it was his decision to accept the offer by the State. Lockwood indicated that Segura was "very interested" in avoiding having his parents and child "drug through a public court hearing." As found by the district court, the evidence from the plea hearing indicated that Segura entered his plea of his own free will and understood his rights.
Issues of credibility are for the postconviction court. State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009). The district court found Lockwood's testimony credible. Contrary to Segura's argument, Lockwood did pursue the insanity defense by withdrawing the not guilty plea and entering a not guilty by reason of insanity plea. Lockwood discussed the possible insanity defense with Fisher, who advised Lockwood that the psychiatric evaluation did not support the defense. Lockwood discussed the viability of the insanity defense with Segura and left the decision to Segura whether to proceed to trial using the insanity defense or plead to one charge. It is clear from the record that Segura knowingly made the decision to accept the favorable plea rather than pursue the insanity defense. Segura did not show that if he had been further advised regarding the insanity defense there was a reasonable probability he would have insisted on going to trial. Self-serving declarations that he would have gone to trial are not enough; a defendant must present objective evidence showing a reasonable probability that he would have insisted on going to trial. State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
Segura also alleges that Lockwood failed to explain the burden of proof in insanity cases. A defendant who pleads not responsible by reason of insanity has the burden to prove the defense by a preponderance of the evidence. State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009).
The district court found that the record did not reveal whether the standard of proof was specifically discussed with Segura. However, the court went on to find that there was no deficient performance in any event because "there was no evidence of insanity, by any standard of proof." Segura argues that without an explanation of the burden of proof, his plea was not knowing and intelligent. Although Segura asserts that the purpose of his postconviction action is to "obtain the right to undo the plea decision and proceed to trial," he has failed to adduce evidence to show that he would have insisted on going to trial rather than accept the plea if he had known the standard of proof at the time. See State v. Yos-Chiguil, supra. Rather, the record shows that Segura was adequately advised about the viability of the insanity defense and that he entered a knowing and voluntary plea.
Segura further argues that trial counsel was ineffective in failing to provide Fisher with sufficient information to form an opinion regarding the insanity defense and in failing to seek additional expert advice. Segura did not adduce evidence to support this allegation. Segura admits that the record is inadequate to assess what prejudice exists as a result of this alleged deficient performance and suggests that the matter should be remanded to further develop this evidence. However, it is Segura's burden to demonstrate deficient performance on the part of trial counsel to support his allegations of prejudice, and he has failed to do so. As noted by the district court, there was nothing in the record to suggest the need for additional evaluation to determine if Segura did not understand the nature or consequences of his actions or if Segura did not know the difference between right and wrong. The district court also found evidence in the record that Segura understood the nature and consequences of what he was doing at the time of the assault on his father. These factual findings are not clearly erroneous.
Finally, Segura alleges he was deprived of effective assistance of counsel because he was not adequately advised as to "all of his possible defenses." The only issue before the district court was whether or not the defendant was prejudiced because the insanity defense was not pursued by his attorney. However, the district court's order did discuss temporarily diminished capacity as it related to the insanity defense.
"Separate and apart from an insanity defense," a defendant may claim temporarily diminished capacity "by proving that at the time the offense occurred, the defendant lacked the ability to intend the voluntary and probable consequences of his or her act." State v. Urbano, 256 Neb. 194, 204, 589 N.W.2d 144, 152 (1999). It is not likely that diminished capacity would have succeeded at trial based on the evidence already outlined. As the district court indicated, temporarily diminished capacity is not an affirmative defense. There is no evidence in the record to support an allegation that the elements of the crimes charged against Segura and other defenses to them were not explained to him.
We note that there are other relevant factors at play when evaluating prejudice in a claim of ineffective assistance of counsel regarding the entry of a guilty plea, including the benefit of the offered plea bargain and the potential penalties the defendant faced. State v. Yos-Chiguil, supra. Segura received a significant benefit from the plea agreement. Segura entered a no contest plea to attempted first degree murder in exchange for the State's dismissing the other four counts in the information. Had Segura been convicted of all five charges, he faced a possible 140 years' imprisonment. By accepting the plea agreement, Segura's charges were reduced from five to one and the possible penalty was reduced to a maximum of 50 years' imprisonment.
Given the favorable plea agreement and the facts against the use of the insanity defense, Segura has not shown that a rational defendant would have insisted on going to trial. Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000). See, also, State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011). Therefore, the district court did not err when it denied his postconviction claim.
CONCLUSION
We have reviewed the district court's factual findings for clear error and found none. We conclude Segura failed to show he was prejudiced by the deficient performance of his trial counsel; therefore, the district court did not err in denying Segura's motion for postconviction relief on the limited issue of pursuit of the insanity defense. Accordingly, we affirm.
AFFIRMED.