Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 10-16-2020

Case Style:

STATE OF NEBRASKA V. MICHAEL C. ROBINSON

Case Number: o. A-20-219.

Judge: David Arterburn

Court: IN THE NEBRASKA COURT OF APPEALS

Plaintiff's Attorney: Douglas J. Peterson, Attorney General, and Kimberly A. Klein

Defendant's Attorney:


Free National Lawyer Directory


OR


Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.



Description:

Omaha, NE - Criminal defense lawyer represented defendant Michael C. Robinson charged with domestic assault in the third degree and damage to property in violation of the Omaha Municipal Code.



On September 26, 2018, Robinson was charged in the county court with two offenses
arising out of an incident which occurred on September 23, 2018: domestic assault in the third
degree, a Class I misdemeanor, and criminal mischief, a Class I misdemeanor ($1,500-$4,999).
The State later filed an amended complaint that amended the criminal mischief charge to damage
to property, a violation of the Omaha Municipal Code.
Robinson was arraigned in the county court on September 26, 2018, and his trial was
initially set for March 2019. However, 3 days before the initial trial date, Robinson successfully
moved to continue the trial to follow up on discovery and a new trial date was set for April 24,
2019. At trial, Robinsonís trial counsel orally moved for a continuance. Robinsonís counsel stated
that he ď[j]ust recently had time to go thoroughly through the discovery.Ē Robinsonís counsel
explained that there was a video that showed another man at the residence where the incident
occurred. He wanted to discover who the other man was. He also wanted to review all of the
surveillance video of the house where the incident occurred. Finally, he wanted an opportunity to
obtain the victimís phone records to impeach her credibility.
The State objected to the motion to continue. The prosecutor noted that eight witnesses
were present and ready to testify at trial. The prosecutor contended that the State had provided all
discoverable materials that it possessed and that the police reports were provided to Robinson on
December 5, 2018. The prosecutor also disclosed that the State had no other information about the
man, identified by Robinsonís counsel, other than his name, Kevin, which was disclosed in a police
report. The State provided all the videos it had on January 4, 2019, to Robinson. Finally, the
prosecutor argued that the victim was going to testify, therefore, Robinson could impeach the
victimís credibility at that time.
The court agreed with the State, noting that Robinson could impeach the victim on
cross-examination and that the defense had never filed a formal discovery motion with the court.
The court pointed out that Robinson successfully moved for a continuance in March to follow up
on discovery. The court denied the motion to continue. Immediately, Robinson attempted to fire
his counsel. The court stated that Robinson had every right to fire his attorney but there would be
no continuance of trial. The court then allowed for a short break where Robinson could speak with
counsel in private. Twenty minutes later, Robinson reached a plea agreement with the State. Under
the plea agreement, Robinson would plead guilty to both of the charged offenses in exchange for
the State recommending that a presentence report be prepared. A plea colloquy ensued. The court
explained that if he pleaded guilty, he would give up his right to trial and associated trial rights.
The court notified him that it may be unlawful for him to possess or purchase a firearm. The court
explained that the Stateís charges were for domestic assault in the third degree, punishable by up
to 1 year in jail, a $1,000 fine, or both and damage to property under the Omaha Municipal Code,
punishable by up to 6 months in jail, a $500 fine, or both. The court also asked if anyone was
forcing or threatening him to enter these guilty pleas. Robinson replied that no force or threats had
been made to induce his plea.
- 3 -
The State provided the following factual basis:
The victim in this case, J.A., was house- and dog-sitting for T.C. and P.P. at the address of
. . . in Omaha, Douglas County, Nebraska. She was, at that time, in a dating relationship
with the defendant in this case, Michael Robinson. They had lived together, they were
living together at that time, and were intimate partners at that time . . . [I]n the early morning
hours of the 23rd of September, [Robinson] went to the home . . . [and] gained entry into
the home after pounding on doors and windows and not being let into the home. He was
able to gain access into the home. He went up to the bedroom where the victim and a friend
of hers were at. The victim had closed and locked the bedroom door. [Robinson] then
kicked open that door, damaging the door, gaining access into the bedroom. The victim, at
that point, was in the bathroom, sitting on the closed toilet lid. [Robinson] went into the
bathroom, essentially took his hand and smacked her off of the toilet lid, making her fall
into the shower door in the bathroom and breaking that. At that point, the victim was
already injured and bleeding.
[Robinson] then is seen . . . escorting the male party down the stairs and pointing
out to him where he could exit the residence.
The video then shows [Robinson] going back up into the bedroom, at which point
the victim would testify that [Robinson] repeatedly slapped, hit, struck her, both with a belt
[and] with a fan that had fallen apart. He beat her with that. He used his hands. He used his
feet. Multiple blows. All of this, again, was captured on the audio portion of the Nest Cam.
[Robinson] can be heard saying things like, ďWhy? Why? Why?Ē Saying that she deserved
this. At some point, she is saying that she is bleeding all over the place and that she cannot
see. He tells her to bleed at home and then is trying to admonish her to get up and to leave
the residence. . . .
[T]he video captures this assault, lasting almost an hour. However, [Robinson] does
leave the bedroom at least twice, because he is seen coming down -- on the video, he is
seen coming down the stairs, seemingly looking around at the doors, and then going back
upstairs and continuing the assault. The third time that he comes down, his shirt is covered
in blood, which clearly was not there the first two times that he is seen on the camera
coming down.
Your Honor, the -- at some point, the victim and [Robinson] leave the residence.
The victim would have testified that they, then, went back to the apartment that they shared
at . . . also in Omaha, Douglas County, Nebraska, where [Robinson] then put her in the
shower for approximately five minutes to wash the blood off of her, and then had her lie
down in bed where he had intercourse with her while sheíd laid there with her face bloodied
and bruised and in considerable pain.
Your Honor, the victim would then testify that, at some point, she and Mr. Robinson
had discussions about what they were going to say, both to the homeowners, due to the
damage that was done to the home that included, not only the kicked-in door and the broken
shower door, but also blood splatter all over the bedroom. There was blood splatter on the
ceiling, blood splatter on the doors, blood splatter on the carpet, including some pretty
significant stains that could not be cleaned out -- cleaned off. So, they discussed what they
- 4 -
were going to tell both the homeowners; what J.A. was going to tell her employer; and
then, ultimately, when they decided to go to get medical attention for her, which happened
the next day, they discussed what information they would tell medical personnel there.
They came up with a story that they were going to say she had been mugged earlier in the
evening, which is completely contradicted by the fact that, when -- on the video, when she
is seen coming into the residence, she is not injured, she is not impaired or, seemingly, in
pain in any way. Thereís no notable injuries on her at that time.
Your Honor, the officer at -- who responded to the hospital after being notified by
the emergency medical personnel at UNMC, would testify that Mr. Robinson was in the
room the entire time that she was talking with J.A., that he was seemingly -- from the
corner, seemingly directing her as to what to say and not to say, including shaking his head
at her when the officer asked if she wanted to make a report for this -- the story that they
had come up with about a mugging that had happened prior to the assault.
Your Honor, at the hospital, the victim was diagnosed with numerous facial
fractures, to include two orbital fractures. She had a punctured eardrum. She was dazed
and dizzy. She had a large gash on her head. She also had bruising on her body from the
different blows that [Robinson] inflicted upon her.
We further note that the factual basis revealed that the homeowners needed to make repairs to
items damaged and had to clean up the blood. The estimated cost of repairs was $1,400.
After the factual basis was given, the court accepted Robinsonís pleas, found that there was
a sufficient factual basis, and found Robinson guilty of both charges. Sentencing was initially
scheduled for July 18, 2019. Prior to the close of the plea hearing, the county court ordered
Robinson not to travel more than 10 miles outside of the boundaries of Douglas County without
permission of the court.
Robinson failed to appear at the July sentencing hearing. Robinson, instead, had absconded
to Illinois. Due to his flight and subsequent extradition, sentencing was not held until October 24,
2019. Robinson retained new counsel for purposes of sentencing. Counsel noted that as of that
time, Robinson was 42 and had obtained a masterís degree. Counsel stated that Robinson had no
criminal record other than a DUI charge. Robinson asked for credit for time served of 58 days.
Robinsonís counsel at sentencing conceded that the nature of Robinsonís crimes made imposition
of probation impossible in that a sentence to probation would depreciate the seriousness of the
offenses and promote disrespect for the law. However, counsel argued that the sentences should
be served concurrently rather than consecutively and that a maximum sentence need not be
imposed.
The prosecutor argued that Robinson was minimizing his responsibility in the assault when
he described the assault as a ďbad nightĒ and ďnot a positive nightĒ in the PSI interview. The State
also detailed other portions of the PSI including reports of prior assault incidents between
Robinson and J.A. The PSI detailed a prior assault that occurred in 2012, where Robinson hit J.A.
in her face and the back of her head. Robinson had an active misdemeanor warrant in Kansas for
an incident involving J.A. that occurred in 2014. According to the PSI, Robinson grabbed J.A.ís
neck and head, then ripped her earring out of her ear. In her victim impact questionnaire, J.A.
- 5 -
detailed another incident where Robinson tied her hands behind her back and then Robinson
repeatedly beat her abdomen. Robinson also referred to himself as a victim in the PSI. The State
further argued that Robinson demonstrated dishonesty in his PSI. The State concluded its argument
by stating that Robinsonís violence was shocking and because Robinson showed no remorse, the
court should show no mercy.
The court stated that it reviewed Robinsonís PSI and considered all factors that the law
requires it to consider when imposing a sentence. The PSI detailed the prior assaults of J.A.
Robinson also had two prior driving under the influence convictions. While Robinson scored low
on the Simple Screening Instrument for drug and alcohol abuse, he scored in the maximum
problem risk range for truthfulness. The PSI also noted that Robinson was minimizing the assault
of the victim and his role. The court also reviewed the video and the audio provided by the State.
The court found that the assault was shocking and that any sentence less than the maximum
sentences would depreciate the seriousness of these offenses and promote disrespect for the law.
The court further explained that because he entered a plea agreement, normally, it would consider
giving Robinson a break in length of sentences. But because he failed to appear for sentencing, the
court would impose the maximum sentence. The court then stated that the sentences would be
served consecutively. Robinson, at this point represented by a third attorney, timely appealed to
the district court which affirmed the conviction and sentences. The district court rejected all errors
assigned by Robinson in his statement of errors. Robinson now appeals to this court.
ASSIGNMENTS OF ERROR
Robinson alleges that the county court abused its discretion by denying his motion for
continuance on April 24, 2019, and by accepting his plea. He alleges his plea was not entered
knowingly, voluntarily, intelligently, and understandingly. Robinson alleges that the county court
abused its discretion by rendering an excessive sentence. Robinson also alleges that he received
ineffective assistance of counsel when his counsel failed to prepare for trial and when his counsel
advised him he could withdraw his plea at a later date.
STANDARD OF REVIEW
In an appeal of a criminal case from the county court, both the district court and a higher
appellate court generally review appeals for error appearing on the record. State v. Stanko, 304
Neb. 675, 936 N.W.2d 353 (2019). When reviewing a judgment for errors appearing on the record,
an appellate courtís inquiry is whether the decision conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor unreasonable; we independently review
questions of law. Id.
A trial court is afforded discretion in deciding whether to accept guilty pleas, and an
appellate court will reverse the trial courtís determination only in case of an abuse of discretion.
State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019).
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. State v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018). The judicial
- 6 -
discretion of the trial court in its decision to grant or not grant probation should be accorded great
weight. State v. McCurry, 198 Neb. 673, 254 N.W.2d 698 (1977). The trial court has discretion to
impose probation or incarceration and we will uphold the courtís decision denying probation
absent an abuse of discretion. State v. Willis, 285 Neb. 260, 826 N.W.2d 581 (2013).
An abuse of discretion occurs when a trial courtís decision is based upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and the
evidence. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017). 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 counselís alleged deficient performance. Id.
ANALYSIS
Denial of Motion for Continuance.
The district court found that when Robinson pled guilty to the offenses, he waived his right
to appeal the denial of his motion to continue. We agree. Once a voluntary plea of guilty has been
entered, the defendant may not obtain relief from a later imposed sentence, where relief is sought
on the basis of alleged errors at the trial. State v. Edwards, 236 Neb. 445, 462 N.W.2d 93 (1990).
The voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge,
whether the defense is procedural, statutory, or constitutional. State v. Start, 239 Neb. 571, 477
N.W.2d 20 (1991). The only exceptions are for the defense of insufficiency of the indictment,
information, or complaint; ineffective assistance of counsel; and lack of jurisdiction. Id. See, also,
State v. Manjikian, supra.
On the day of trial, Robinson moved for a continuance to have more time to review the
evidence. This motion was denied by the court. After a short break, Robinson pleaded guilty. On
appeal, Robinson asserts that the court erred in denying his motion to continue. He waived this
assignment of error when he entered his guilty plea.
Acceptance of Plea.
Robinson argues in his brief on appeal that his plea was not entered knowingly,
intelligently, voluntarily, and understandingly because he was not informed that the sentences
could be run consecutively to one another. However, it has long been the law of this state that the
court is not required to explain that sentences imposed for each separate crime can be ordered to
be served consecutively to any other sentence. State v. Irish, 223 Neb. 814, 394 N.W.2d 879
(1986). It is generally sufficient for the trial court to explain the possible range of penalties for
each crime rather than explaining that each sentence may run concurrently or consecutively. Id.
Here, the county court explained the possible range of sentences that could be imposed on
Robinson at his initial arraignment and then again at the time he entered his plea. Prior to accepting
Robinsonís pleas, the county court ascertained whether Robinson understood the possible penalties
- 7 -
that could be imposed on each charge. Robinson affirmed his understanding. Therefore, on this
record, we agree with the district court that the county court did not err in accepting his plea.
Excessive Sentences.
Robinson argues in his brief on appeal that the court abused its discretion when it sentenced
Robinson to the maximum sentences on both counts and ordered them to run consecutively to one
another. He now argues that instead of sentencing Robinson to incarceration on the damage to
property charge, he should have received probation.
In determining a sentence to be imposed, relevant factors customarily considered and
applied are the defendantís (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation
for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in
the commission of the crime. State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020). When a sentence
imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion in considering and applying the relevant
factors as well as any applicable legal principles in determining the sentence to be imposed. Id.
The appropriateness of a sentence is necessarily a subjective judgment and includes the
sentencing judgeís observation of the defendantís demeanor and attitude and all the facts and
circumstances surrounding the defendantís life. State v. Riley, 242 Neb. 887, 497 N.W.2d 23
(1993). The court, in passing judgment of either probation or sentence to a penal institution, must
determine whether the proposed disposition of the case would depreciate the seriousness of the
crime; if the court determines that it would, then a sentence of probation would not be appropriate.
State v. Rice, 198 Neb. 758, 255 N.W.2d 282 (1977).
In his brief on appeal, Robinson argues that the property damage was only incidental to the
commission of the assault and as such he should have received probation for the charge of damage
to the property. In reviewing the factors to be considered and the appropriate weight given to the
sentencing court, we do not find that the sentencing court abused its discretion.
Robinsonís sentences were within the statutory limits. Robinson was convicted of third
degree domestic assault, a Class I misdemeanor. Neb. Rev. Stat. ß 28-323(4) (Reissue 2016). A
Class I misdemeanor is punishable by up to 1 yearís imprisonment, a $1,000 fine, or both. Neb.
Rev. Stat. ß 28-106 (Reissue 2016). The county court sentenced Robinson to 1 yearís incarceration
for this crime, within the statutory limits.
Robinson was also convicted of damage to property in violation of the Omaha Municipal
Code. We will not take judicial notice of an ordinance not in the record. City of Beatrice v. Meints,
20 Neb. App. 776, 830 N.W.2d 524 (2013). If the ordinance is not properly before us, we assume
that a valid ordinance creating the offense charged exists, that the evidence sustains the findings
of the trial court, and that the sentence is within the limits set by the ordinance. Id. It is the
responsibility of the appellant to include the ordinance in the record which is transmitted to the
appellate court. State v. Bush, 254 Neb. 260, 576 N.W.2d 177 (1998). In an assignment of error
that the evidence is insufficient to support a criminal conviction of a municipal ordinance or that
the sentence imposed upon such conviction is excessive, we will only take judicial notice of a
municipal ordinance if the ordinance creating the offense and specifying the penalties for violation
- 8 -
is included in the certified transcript prepared by the clerk of the county court. Id. Robinson failed
to offer the ordinance at the trial court level nor did he seek to have the ordinance made part of the
record upon appeal to the district court and this court. The court noted that the maximum penalty
for this crime was up to 6 months in jail, $500 fine, or both. The court sentenced Robinson to 6
monthsí imprisonment. Because we do not have the municipal ordinance and the court sentenced
Robinson to 6 months, we assume that Robinsonís sentence is within the limitsset by the ordinance
noted by the court prior to sentencing.
We find that the county court considered all factors that it was required by law to consider.
The court found that any lesser sentence than jail time would depreciate the seriousness of these
offenses and promote disrespect for the law. Robinson was 41 years old when he assaulted the
victim. The amount of violence involved in the commission of the crime was staggering. The
property damage was not incidental, but rather, intertwined with the assault of the victim. When
Robinson gained access to the house where the victim was, he kicked open a bedroom door. He
hit the victim making her fall into the shower door and breaking the shower door. He then
repeatedly slapped, hit, struck her, both with a belt and with a fan stand that had fallen apart causing
blood to splatter on the walls, the ceiling, and the floors. Carpets had to be replaced. The wall and
ceiling needed to be cleaned to remove the blood. In addition, after entering his plea, the court
advised Robinson not to go 10 miles outside of the boundaries of Douglas County without
permission of the court. Instead, Robinson absconded from the state. At sentencing, Robinsonís
counsel acknowledged that these crimes were not the type of crimes where Robinson could receive
probation. Rather, counsel asked only that the sentences be run concurrently and not consecutively.
The court reviewed the PSI to review Robinsonís history. Robinson had an active warrant
stemming from an incident in Kansas where he grabbed J.A.ís head and neck and ripped the earring
from J.A.ís ear. In another incident, Robinson hit J.A. multiple times with his fists. There was an
additional incident where he tied J.A.ís hands and then proceeded to hit J.A. in her abdomen,
severely bruising her. The court considered Robinsonís statement in the PSI that this was a bad
night and determined that it was more than just a bad night. Ultimately, the court determined that
any other sentence would depreciate the seriousness of the crime.
We find no abuse of discretion by the court in applying all of the relevant factors in
sentencing Robinson to the sentences imposed and requiring that the sentences be served
consecutively. The offense conduct in this case was egregious and part of an extended pattern of
abuse perpetrated by Robinson on the victim. While the sentences imposed were at the maximum
limits of the sentencing range, they did not constitute an abuse of discretion.
Ineffective Assistance of Counsel.
Where, as here, a defendantís trial counsel is different from his or her counsel on direct
appeal, the defendant must raise on direct appeal any issue of trial counselís ineffective
performance which is known to the defendant or is apparent from the record; otherwise, the issue
will be procedurally barred. State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015). The fact that
an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that
it can be resolved. State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017). The
determining factor is whether the record is sufficient to adequately review the question. Id.
- 9 -
Appellate courts have generally reached ineffective assistance of counsel claims on direct
appeal only in those instances where it was clear from the record that such claims were without
merit or in the rare case where trial counselís error was so egregious and resulted in such a high
level of prejudice that no tactic or strategy could overcome the effect of the error. Id. An ineffective
assistance of counsel claim made on direct appeal can be found to be without merit if the record
establishes that trial counselís performance was not deficient or that the appellant could not
establish prejudice. Id. See, also, State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
Within the plea context, in order to satisfy the prejudice requirement, the defendant must
show that there is a reasonable probability that, but for counselís errors, he or she would not have
pleaded guilty and would have insisted on going to trial. State v. Dunkin, 283 Neb. 30, 807 N.W.2d
744 (2012). However, allegations of how the defendant was prejudiced by trial counselís allegedly
deficient conduct are unnecessary to the specific determination of whether a claim of ineffective
assistance of counsel can be determined based on the record on direct appeal. State v.
Mendez-Osorio, supra.
Robinson raises two specific allegations that his trial counsel was ineffective: (1) failing to
prepare for trial and (2) advising him to plead guilty and then advising him he could withdraw his
plea at a later date.
First, Robinson alleges that his trial counsel was ineffective because counsel failed to
prepare for trial. Robinson argues that his counsel was unprepared for trial and Robinson was put
in a position to proceed to trial with incompetent counsel, represent himself, or take a plea offer
that amounted to pleading as charged. He further argues had he been represented by competent
counsel, he would have had documents to impeach the victim and a witness.
We agree with the district court that the record is insufficient to reach this claim on direct
appeal. During his argument for a motion for continuance, Robinsonís counsel explained that he
had just thoroughly reviewed the discovery with Robinson. He wanted additional time to follow
up on discovery, to subpoena phone records, and locate the other man on the video. He also was
requesting additional videos through the surveillance camera of the homeowners. While the record
does reveal several items that trial counsel wanted to accomplish, it does not reveal what he had
accomplished and whether he would have been capable of proceeding based on the preparation
that had been done. When the court denied the motion, Robinson attempted to fire defense counsel.
Immediately following this exchange, the court asked for a short break where Robinson could
speak to defense counsel in private. During these 20 minutes, an agreement was reached between
Robinson and the State. When returning on the record, defense counsel stated that an agreement
had been reached and Robinson did not want to drag the victim through a trial on that day.
Robinson agreed to plead guilty to both counts. There was no record as to the communication
between Robinson and counsel during this break. From this record, we cannot tell whether trial
counsel was prepared to proceed to trial. We do not know the content of any conversations during
the break that may have affected Robinsonís decision to accept a plea agreement. There is not
sufficient evidence as to trial counselís preparation or lack thereof, on the record to consider this
claim.
Second, Robinson alleges that his trial counsel was ineffective because his counsel advised
him to plead guilty but then indicated he could withdraw his plea at a later date. The State again
- 10 -
contends that there is not a sufficient record to reach this claim. We agree. Our record is devoid of
any evidence relating to Robinsonís allegation. We, therefore, find that the record is insufficient
for us to consider this claim.

Outcome: We find that Robinson waived any alleged error regarding the denial of his motion to
continue trial by pleading guilty to the offenses charged. We agree with the district court that the county court did not abuse its discretion in accepting the pleas without having advised Robinson of whether he could be sentenced to consecutive terms of incarceration. We find no abuse of discretion in the sentences imposed. Upon our review, we do not consider Robinsonís contentions that trial counsel provided ineffective assistance based on the insufficiency of the record.

AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments:



Find a Lawyer

Subject:
City:
State:
 

Find a Case

Subject:
County:
State: