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Date: 09-09-2020
Case Style:
STATE OF NEBRASKA V. SCOTT A. HENDRICKSON
Case Number: A-19-1175, A-19-1176.
Judge: Lawrence E. Welch Jr.
Court: IN THE NEBRASKA COURT OF APPEALS
Plaintiff's Attorney: Douglas J. Peterson, Attorney General, and Nathan A. Liss
Defendant's Attorney:
Call 888-853-4800 if you need a Criminal Defense Attorney in NEBRASKA.
Description:
In September 2018, pursuant to a plea agreement, Hendrickson pled no contest to an
amended charge of one count of attempted possession of methamphetamine with intent to
distribute, a Class IIA felony. See Neb. Rev. Stat. §§ 28-416(1)(a) and (2)(a) and 28-201(4)(b)
(Cum. Supp. 2018). As part of the plea agreement, the State dismissed three counts of possession
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of a controlled substance (oxycodone, THC, and amphetamine), Class IV felonies. The factual
basis provided by the State set forth that during the execution of a search warrant of Hendrickson’s
home in April 2018, the Omaha Police officers located 5.6 grams of methamphetamine, a digital
gram scale, and a box of sandwich baggies in his bedroom. After informing Hendrickson of the
rights he was waiving by entering a plea and the possible penalty for the offense, which
Hendrickson acknowledged, the district court accepted his plea. Hendrickson waived his right to
a presentence investigation and the court immediately sentenced him to the recommended sentence
of 2 years’ probation.
In May 2019, the State filed a motion to revoke Hendrickson’s probation on the basis that
he had been arrested and charged with possession of THC. At a June hearing, Hendrickson
admitted to violating his probation and the district court found that this admission was freely,
knowingly, intelligently, and voluntarily made. Thereafter, the district court revoked
Hendrickson’s probation and sentenced him to 4 to 5 years’ imprisonment with credit for 21 days
served. See Neb. Rev. Stat. § 29-2268 (Reissue 2016).
Also in June 2019, Hendrickson pled guilty to possession of THC, a Class IV felony
(offense that served as basis for revocation of his probation). See, § 28-416; Neb. Rev. Stat.
§ 28-405(c)(12) (Cum. Supp. 2018). The factual basis for the new offense included that in March
2019, law enforcement stopped Hendrickson’s vehicle and smelled marijuana emanating from the
vehicle. During a search, THC oil was located inside Hendrickson’s wife’s purse. Hendrickson
claimed ownership of the THC oil, which later tested positive for .228 grams of THC.
The district court sentenced Hendrickson to 1 to 1 years’ imprisonment to be served
consecutively to his sentence imposed upon resentence for his 2018 attempted possession of
methamphetamine with intent to distribute conviction.
Hendrickson appeals and is represented by counsel different from his counsel at his plea
and sentencing.
ASSIGNMENTS OF ERROR
Hendrickson’s assignments of error read as follows: “The Defendant alleges his counsel
was ineffective in advising him to plead to the initial charges, to the probation violation and in the
handling of the sentencing hearing, resulting in a prison sentence.” Brief for appellant at 6.
STANDARD OF REVIEW
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). In reviewing
claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether
the undisputed facts contained within the record are sufficient to conclusively determine whether
counsel did or did not provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. Id.
ANALYSIS
Hendrickson alleges “his counsel was ineffective in advising him to plead to the initial
charges, to the probation violation and in the handling of the sentencing hearing, resulting in a
prison sentence.” Brief for appellant at 6.
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In State v. Mrza, 302 Neb. at 935, 926 N.W.2d at 86, the Nebraska Supreme Court held
that in connection with claims of ineffective assistance of counsel on direct appeal:
We observe that Mrza’s last assignment lacked the specificity we demand on direct
appeal. We have held that when raising an ineffective assistance claim on direct appeal, an
appellant must make specific allegations of the conduct that he or she claims constitutes
deficient performance by trial counsel. And we have long held that an alleged error must
be both specifically assigned and specifically argued in the brief of the party asserting the
error to be considered by an appellate court. It follows that we should not have to scour the
argument section of an appellant’s brief to extract specific allegations of deficient
performance. We now hold that assignments of error on direct appeal regarding ineffective
assistance of trial counsel must specifically allege deficient performance, and an appellate
court will not scour the remainder of the brief in search of such specificity.
Here, in the most general of terms, Hendrickson avers to ineffective assistance of trial counsel in
“advising him to plead to the initial charges, [and] to the probation violation” and “in the handling
of the sentencing hearing.” Neither of these claims provide any specificity as to how or why his
trial counsel was ineffective as to those tasks.
In defining the concept of pleading with specificity, the Nebraska Supreme Court held in
State v. Abdullah, 289 Neb. 123, 132-33, 853 N.W.2d 858, 866-67 (2014):
We did not elaborate, however, on the level of specificity of such allegations
beyond the general principles concerning vague and conclusory assignments of error and
arguments. Given that Abdullah’s arguments are stated more cursorily than those presented
in [State v.] Filholm, [287 Neb. 763, 848 N.W.2d 571 (2014),] we are more squarely
presented with that question here. We hold that in the case of an argument presented for
the purpose of avoiding procedural bar to a future postconviction action, appellate counsel
must present the claim with enough particularity for (1) an appellate court to make a
determination of whether the claim can be decided upon the trial record and (2) a district
court later reviewing a petition for postconviction relief to be able to recognize whether the
claim was brought before the appellate court.
The argument that counsel was deficient for failing to call “at least two witnesses
that [Abdullah] informed would be beneficial to his case” is the closest of the three claims
to a conclusory and general allegation that trial counsel was ineffective. A showing that
the witnesses whom defendant advised counsel would have been “beneficial” to the
defendant’s case at trial raises potential issues of deficient performance and prejudice. But
the vague assertion referring to “at least two” witnesses seems little more than a
placeholder.
More recently, in State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016), the defendant argued
his trial counsel was ineffective for not filing a motion to suppress any of the State’s evidence. In
response, the Nebraska Supreme Court held that the defendant’s failure to articulate the legal basis
for filing such a motion and not identifying the evidence to be suppressed represented express
failures to sufficiently and specifically raise claims for ineffective assistance.
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Applying these propositions of law here, we hold that Hendrickson’s vague reference in
the assignments of error to his counsel’s ineffective advice to plead and in the “handling” of the
sentencing hearing are little more than general placeholders and lack the specificity required for
this court to determine whether this claim can be decided on the record. Because Hendrickson’s
claim lacks in that specificity, we hold his assigned errors were not properly raised on this appeal.
Outcome: Hendrickson’s claims that he received ineffective assistance of counsel were insufficiently pled. Thus, Hendrickson’s convictions and sentences are affirmed.
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