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STATE v. JOHNSON 369
Cite as
290 Neb. 369
guests and members to swim, the WCOA should have expected
the public to encounter some of the dangers associated with the
open body of water. The lake is an inviting scene for people to
use for swimming in the summer months. Swimming in itself
is not a highly dangerous activity. And in order to swim, one
must first get into the body of water. A common method of
getting into bodies of water is jumping or diving. Especially
where a person has already jumped and dove into the lake and
assumes to know its depth, that person would not be expected
to realize that there was an undue danger associated with diving into the water another time. Viewing these inferences in the
light most favorable to Cole, we conclude that the district court
erred in finding that the open and obvious doctrine applied,
because the WCOA should have anticipated its guests to come
into contact with the lake.
We reverse the lower court’s finding that the open and obvious doctrine applied to bar the WCOA’s liability and remand
the cause to determine the negligence of the WCOA consistent
with the instructions in this opinion.
VI. CONCLUSION
We affirm the lower court’s ruling as to the Willers, and
reverse, and remand for further proceedings as to the Taylors
and the WCOA.
Affirmed in part, and in part reversed and
remanded for further proceedings.
Stephan, J., not participating.
State of Nebraska, appellee, v.
Tiuana L. Johnson, appellant.
___ N.W.2d ___
Filed March 13, 2015. No. S-14-245.
1. Indictments and Informations. A ruling on whether to allow a criminal information to be amended is made by the trial court in its discretion.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusion.
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3. Sentences: Judgments: Words and Phrases. An appellate court reviews criminal sentences for abuse of discretion, which occurs when a trial court’s decision
is based upon reasons that are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence.
4. Judges: Words and Phrases. A judicial abuse of discretion means that the
reasons or rulings of the trial court are clearly untenable, unfairly depriving
a litigant of a substantial right, and denying a just result in matters submitted
for disposition.
5. Habitual Criminals: Sentences: Convictions: Proof. There are no factual findings that the trial court must make, in order to enhance a defendant’s sentence
under the habitual criminal statutes, that are not a part of proving the fact of a
prior conviction.
Appeal from the District Court for Lancaster County: Jodi
Nelson, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, Paul
E. Cooney, and Mark Carraher, Senior Certified Law Student,
for appellant.
Jon Bruning, Attorney General, George R. Love, and Mary
C. Byrd, Senior Certified Law Student, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
McCormack, J.
NATURE OF CASE
Tiuana L. Johnson was convicted of escape in violation of
Neb. Rev. Stat. § 28-912(5)(a) (Reissue 2008) and sentenced
as a habitual criminal. On appeal, Johnson does not challenge
the underlying conviction for escape. Rather, he challenges the
habitual criminal statute on its face and as applied. Johnson
also asserts that the State’s motion to amend the information
was untimely and that his sentence was excessive.
BACKGROUND
On June 21, 2013, Johnson was charged with Class III
felony escape, under § 28-912(5)(a). In an amended information filed on August 15, 2013, Johnson was also charged with
being a habitual criminal under Neb. Rev. Stat. § 29-2221
(Reissue 2008).
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Johnson objected to the State’s motion to amend the information to add the habitual criminal charge. The hearing on the
State’s motion to amend was held on August 15, 2013. Johnson
argued that the county attorney had had ample time and that
Johnson was ready to plead no contest to the charge in the
original information. The State explained that it had been waiting to receive the record of two prior convictions that it wished
to use in support of the habitual criminal charge. The State also
observed that there was still plenty of time remaining for the
State’s statutory obligation to bring Johnson to trial. The court
allowed the amendment. The amended information was filed
on that same date.
Johnson thereafter filed a motion to quash the amended
information insofar as it charged Johnson with being a habitual criminal. In the motion to quash, Johnson asserted that
the habitual criminal statutory scheme was unconstitutional
because it fails to provide for a jury determination of certain facts pertaining to the prior convictions. Johnson also
asserted that application of the habitual criminal statutes violated double jeopardy because the same conviction that made
the escape charge a Class III felony rather than a Class IV
felony formed the basis of the habitual criminal enhancement.
Johnson further asserted that the application of the habitual
criminal statutes would violate a state constitutional provision,
Neb. Const. art. I, § 15, requiring that penalties be proportionate to the offense. Finally, Johnson asserted that application of
the habitual criminal enhancement would be cruel and unusual
punishment. Johnson did not assert in the motion to quash that
the untimeliness of the amendment to the information prejudiced his substantial rights.
The court overruled the motion to quash. Johnson waived
his right to a jury trial and his right to a speedy trial. The
underlying charge of escape was tried on November 25, 2013,
on three stipulated exhibits, subject to Johnson’s renewed
motion to quash and the court’s guarantee that it would not
consider any other crimes, wrongs, or acts for purposes of
determining whether Johnson committed the crime of escape.
Additionally, Johnson stipulated that he was the person named
in the exhibits.
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These exhibits generally show that on September 20, 2012,
Johnson was incarcerated following a conviction for the commission of an offense. He was out on an approved “Job Seeking
pass” in Lincoln, Nebraska, and failed to return. Johnson committed a robbery in Omaha, Nebraska, that same day. Johnson
was apprehended on September 28 and confessed to the escape
and robbery.
The court found Johnson guilty of escape, in violation of
§ 28-912(5)(a). Upon the court’s inquiry, Johnson’s counsel indicated that she was “fine with” taking up the issue of
enhancement.
In support of the habitual criminal charge, the court
accepted into evidence five exhibits proffered by the State.
Johnson did not make any objection to the exhibits other
than those based on his prior motion to quash. The exhibits
demonstrated that before his escape on September 20, 2012,
Johnson had committed nine crimes for each of which he had
been sentenced to a term of imprisonment for not less than
1 year.
The exhibits show that Johnson was convicted on October
24, 1997, of receipt of stolen property, in relation to events on
June 19. He was not sentenced until May 11, 1998, at which
time he was sentenced to 2 to 4 years’ imprisonment.
On October 2, 1998, Johnson was convicted of robbery and
a related use of a weapon charge in relation to events on March
22 and was sentenced to imprisonment for 2 to 4 years on the
robbery conviction and 1 to 3 years on the use of a weapon
conviction. Those sentences were ordered to be served consecutively with each other, but concurrently with the May 11
sentence for receipt of stolen property.
On July 31, 2003, Johnson was convicted of four counts
of robbery under one docket and one count of burglary under
a different docket. The robberies and burglary occurred on
different dates between December 15, 2002, and January 6,
2003, and involved different victims. On September 17, 2003,
Johnson was sentenced to 21⁄2 to 5 years’ imprisonment for
each robbery, each sentence to be served consecutively. On
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that same date, he was sentenced to 2 to 3 years’ imprisonment
for the burglary, to be served concurrently to the sentences for
the robberies.
Finally, on February 8, 2010, Johnson was convicted under
§ 28-912(1)(5) of escape in relation to events on September
15, 2009. On April 28, 2010, Johnson was sentenced to 2 to 2
years’ imprisonment for that crime.
The court also accepted into evidence, without any objection, printouts offered by Johnson of Nebraska inmate details
from the Nebraska Department of Correctional Services. The
printouts indicate that October 21, 2002, was the mandatory
release date for the conviction of receipt of stolen property and
the convictions of robbery and the related use of a weapon.
Thus, Johnson was no longer serving those sentences at the
time of the escape underlying this appeal.
At the close of the evidence, Johnson renewed his motion to
quash. With regard to the double jeopardy challenge, Johnson
argued that the State had failed to show two prior convictions for purposes of the habitual criminal charge that were
both convictions under which Johnson was no longer detained
at the time of his escape on September 20, 2012. Johnson
explained that he believed the October 24, 1997, conviction
for receipt of stolen property and the October 2, 1998, convictions for robbery and use of a weapon counted as only
one conviction under the habitual criminal statutes, because
the sentences for the robbery and use of a weapon convictions were to be served concurrently with the sentence for the
receipt conviction.
ASSIGNMENTS OF ERROR
Johnson assigns that the trial court (1) abused its discretion
by improperly permitting the State to amend the information
over Johnson’s objection; (2) erred by improperly overruling
Johnson’s motion to quash, in violation of the 6th, 8th, and
14th Amendments to the U.S. Constitution and article I, §§ 6,
9, 11, and 15, of the Nebraska Constitution; and (3) abused its
discretion by imposing an excessive sentence.
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STANDARD OF REVIEW
[1] A ruling on whether to allow a criminal information to be
amended is made by the trial court in its discretion.1
[2] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s
conclusion.2
[3] An appellate court reviews criminal sentences for abuse
of discretion, which occurs when a trial court’s decision is
based upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason,
and evidence.3
ANALYSIS
Timeliness of Amendment
to I nformation
Johnson first argues that the trial court abused its discretion in allowing the State to amend its information to add the
habitual criminal charge. He asserts that prior to the hearing
on August 15, 2013, he was unaware of the State’s intention to
amend the information. Without providing any further detail,
he generally asserts that “[t]he unexpected change of the allegations forced [Johnson] to quickly adjust his defense strategy
in a manner that prejudiced [Johnson’s] ability to exercise his
constitutional right to effectively defend himself.”4
[4] A ruling on whether to allow a criminal information to
be amended is made by the trial court in its discretion.5 A judicial abuse of discretion means that the reasons or rulings of the
trial court are clearly untenable, unfairly depriving a litigant of
a substantial right, and denying a just result in matters submitted for disposition.6
1
State v. Clark, 8 Neb. App. 936,
605 N.W.2d 145 (2000).
2
State v. Payne, 289 Neb. 467,
855 N.W.2d 783 (2014).
3
State v. Rieger, 286 Neb. 788,
839 N.W.2d 282 (2013).
4
Brief for appellant at 15.
5
State v. Clark, supra note 1.
6
State v. Carlson, 260 Neb. 815,
619 N.W.2d 832 (2000).
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In State v. Collins7 and State v. Walker,8 we said that the
defendant waived his objection with regard to the alleged
untimeliness of the State’s amendment of the information when
the defendant failed to file a motion to quash. We explained
that objections to the form or content of an information should
be raised by a motion to quash.9
Johnson filed a motion to quash, but the alleged untimeliness of the amendment to the information was not one of the
stated bases for the motion. Because Johnson did not raise in
his motion to quash the alleged untimeliness of the State’s
amendment to the information, he waived that objection.
Furthermore, Johnson’s bald assertion of prejudice fails
to demonstrate that the trial court abused its discretion in
allowing the amendment. In State v. Cole,10 we held that the
trial court did not abuse its discretion in allowing amendment
of an information to add a habitual criminal charge on the
day of trial. We explained that the habitual criminal charge
was not heard until a week after the trial on the underlying
charge had commenced. We said this was a reasonable time
for the defendant to prepare his defense to the habitual criminal charge.11
Here, both the underlying trial and the hearing on the
habitual criminal charge occurred more than 3 months after
the State filed its amended information. And Johnson’s counsel
stated she was “fine with” continuing with the habitual criminal hearing on that date. Johnson, in fact, never moved for a
continuance on the basis that he needed more time to prepare
a defense to the habitual criminal charge. We will not conclude
that Johnson was prejudiced by the timing of the amendment
when he did not ask for a continuance, but, to the contrary,
7
State v. Collins, 281 Neb. 927,
799 N.W.2d 693 (2011).
8
State v. Walker, 272 Neb. 725,
724 N.W.2d 552 (2006).
9
State v. Collins, supra note 7; State v. Walker, supra note 8.
10
State v. Cole, 192 Neb. 466,
222 N.W.2d 560 (1974).
11
Id.
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indicated he was prepared to address the habitual criminal
charge at the hearing on August 15, 2013.12
Right to Jury Trial
Next, Johnson argues that the habitual criminal statutes
violate the right to a jury trial under the 6th Amendment and
the Due Process Clause contained in the 14th Amendment
to the U.S. Constitution and article I, §§ 6 and 11, of the
Nebraska Constitution. It is not entirely unclear whether this
is an as-applied or facial challenge to the statutory scheme.
Regardless, we find it has no merit.
In State v. Hurbenca,13 we held that under the U.S. Supreme
Court’s holding in Apprendi v. New Jersey,14 the determination
of whether a defendant has prior convictions that may increase
the penalty for a crime beyond the prescribed statutory maximum is not a determination that must be made by a jury. We
noted that, as stated in Apprendi, the fact of a prior conviction
is not a fact that relates to “‘“the commission of the offense”
itself . . . .’”15 Therefore, such fact is a “narrow exception
to the general rule that it is unconstitutional for a legislature
to remove from a jury the assessment of facts that increase
the prescribed range of penalties to which a criminal defend
ant is exposed.”16 We noted that the Court in Apprendi had
said, “‘Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt. . . .’”17
Johnson asks us to reconsider our decision in Hurbenca
in light of the subsequent decision by the U.S. Supreme
12
See, e.g., State v. Collins, supra note 7; State v. Mills, 199 Neb. 295,
258
N.W.2d 628 (1977).
13
State v. Hurbenca, 266 Neb. 853,
669 N.W.2d 668 (2003).
14
Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348,
147 L. Ed. 2d 435
(2000).
15
State v. Hurbenca, supra note 13,
266 Neb. at 858,
669 N.W.2d at 672.
16
Id.
17
Id. at 857-58,
669 N.W.2d at 672.
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Court in Blakely v. Washington.18 Johnson fails to explain how
the Blakely decision changed the U.S. Supreme Court precedent that we relied upon in Hurbenca. Instead, in his brief,
Johnson points only to the Apprendi proposition we applied
in Hurbenca.
Regardless, Johnson’s argument is based on a false dichotomy. Johnson attempts to parse the mere fact of a prior conviction from facts Johnson claims are necessary to prove that
prior conviction for purposes of enhancement. Citing State v.
Johnson,19 Johnson characterizes such independent facts as
(1) the nature of the prior convictions, (2) whether the prior
convictions were based upon charges separately brought and
tried, (3) whether the prior convictions arose out of separate
and distinct criminal episodes, and (4) whether the defendant
was the person named in each prior conviction.
[5] We have repeatedly held that under our habitual criminal
statutes, there is no required showing by the State beyond “the
question of determining whether a [valid] conviction [for purposes of § 29-2221] has or has not been had.”20 In other words,
there are no factual findings that the trial court must make,
in order to enhance a defendant’s sentence under the habitual
criminal statutes, that are not a part of proving the fact of a
prior conviction.
The four facts listed by Johnson have never been set forth
in our case law as a list of separate and necessary findings in a habitual criminal proceeding. But to the extent that
Johnson correctly identifies factual elements of the State’s
burden in establishing two valid prior convictions for purposes
of § 29-2221, those factual elements are not separate and apart
from the fact of a prior conviction. Those facts are the means
by which the State proves the fact of the prior convictions.21
18
Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531,
159 L. Ed. 2d 403
(2004).
19
State v. Johnson, 7 Neb. App. 723,
585 N.W.2d 486 (1998).
20
Danielson v. State, 155 Neb. 890, 894,
54 N.W.2d 56, 58 (1952).
21
See, State v. Ellis, 214 Neb. 172,
333 N.W.2d 391 (1983); State v. Roan
Eagle, 182 Neb. 535,
156 N.W.2d 131 (1968); Danielson v. State, supra
note 20. See, also, State v. Johnson, supra note 19.
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We find no merit to Johnson’s argument that such aspects of
proving a valid prior conviction under the habitual criminal
statutes must be determined by a jury.
Double Jeopardy
Johnson alternatively argues that the habitual criminal statutes as applied violated constitutional principles prohibiting
double jeopardy.
Section 28-912(5)(a) provides that escape while detained
following a conviction is a Class III felony, while § 28-912(4)
provides that escape from detention under other circumstances specified in § 28-912(1) is a Class IV felony. Section
29-2221(1) states that “[w]hoever has been twice convicted of
a crime, sentenced, and committed to prison, . . . for terms of
not less than one year each shall, upon conviction of a felony
committed in this state, be deemed to be a habitual criminal”
and have his felony sentence enhanced accordingly. Johnson
asserts that the “dual use”22 of the same conviction to support
escape under § 28-912(5)(a) and enhancement of his sentence
under § 29-2221 is unconstitutional.
In support of his argument, Johnson relies on cases in which
we have rejected habitual criminal enhancement of sentences
imposed for third-offense driving while intoxicated or third-offense driving with a suspended license, where at least one
of the two prior convictions supporting the habitual criminal
charge was also the basis for the third-offense conviction and
its accompanying enhanced sentence for that recidivist conduct.23 He argues that these cases stand for the proposition
that such dual use of the same prior conviction for purposes of
enhancing a sentence is unconstitutional.
But the double jeopardy question Johnson raises is not
before us on the facts presented. Without needing to decide,
in accordance with State v. Ellis24 and its progeny, the exact
number of prior convictions proved by the State under
22
Brief for appellant at 21.
23
See, State v. Hittle, 257 Neb. 344,
598 N.W.2d 20 (1999); State v.
Chapman, 205 Neb. 368,
287 N.W.2d 697 (1980).
24
State v. Ellis, supra note 21.
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§ 29-2221, we reject Johnson’s general assumption that all
convictions under which the inmate is serving a sentence at
the time of his or her escape must be considered as bases
for enhancement under § 28-912(5) for purposes of a double
jeopardy analysis. Johnson does not otherwise deny that there
are at least three separate prior convictions proved by the
State under § 29-2221, and we see no legal basis for him to
have done so. Accordingly, we conclude that the same conviction did not constitute the basis for both the Class III felony
escape enhancement and enhancement under the habitual criminal statutes.
We do not decide whether, under different facts, it would
be unconstitutional or otherwise erroneous to utilize the same
prior conviction both under a statutory enhancement that is not
based on recidivism and under the habitual criminal statutes.
In this case, because the State proved at least two prior convictions that were not necessary to support the conviction of
escape under § 28-912(5), there is no “dual use” of the same
prior conviction.
Excessive and Disproportionate
Sentencing and Cruel and
Unusual Punishment
Finally, Johnson argues that application of the habitual
criminal charges resulted in a penalty disproportionate to the
nature of the offense, in violation of article I, § 15, of the
Nebraska Constitution; that his sentence was excessive; and
that his punishment was cruel and unusual in violation of the
Eighth Amendment to the U.S. Constitution.
In Ewing v. California,25 the U.S. Supreme Court rejected
the argument that a habitual criminal statute resulted in cruel
and unusual punishment. The Court explained:
[T]he State’s interest is not merely punishing the offense
of conviction, or the “triggering” offense: “[I]t is in addition the interest . . . in dealing in a harsher manner with
those who by repeated criminal acts have shown that
25
Ewing v. California, 538 U.S. 11,
123 S. Ct. 1179,
155 L. Ed. 2d 108
(2003).
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they are simply incapable of conforming to the norms of
society as established by its criminal law.”26
The enhanced sentence, the Court reasoned, “is justified by
the State’s public-safety interest in incapacitating and deterring recidivist felons.”27 In State v. Chapman,28 we similarly
rejected the general contention that the habitual criminal statutes impose penalties in disproportion to the nature of the
offense.
The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of
the defendant’s demeanor and attitude and all of the facts and
circumstances surrounding a defendant’s life.29 An appellate
court reviews criminal sentences for abuse of discretion, which
occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence.30
Johnson points out that his escape did not involve the use or
threat of force, nor any “dangerous instrumentality to effectuate the escape.”31 He also claims, without explanation, that the
court abused its discretion in considering violations other than
the relevant escape conviction for which Johnson was being
sentenced. Finally, he argues that the current sentence ignores
certain unspecified “rehabilitative needs.”32
Although Johnson’s escape was not violent, we find the application of the habitual criminal enhancement and the resulting
sentence of 10 to 20 years’ imprisonment to be neither excessive, disproportionate, nor cruel and unusual. The punishment
was appropriate given Johnson’s extensive criminal record. We
note that in addition to the felonies evidenced in support of the
26
Id. at 29 (quoting Rummel v. Estelle,
445 U.S. 263,
100 S. Ct. 1133,
63 L.
Ed. 2d 382 (1980)).
27
Id.
28
State v. Chapman, supra note 23.
29
State v. Nelson, 276 Neb. 997,
759 N.W.2d 260 (2009).
30
State v. Rieger, supra note 3.
31
Brief for appellant at 27.
32
Id. at 30.
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habitual criminal charge, the presentence investigation report
reveals more than two dozen misdemeanors. We also find it
pertinent that this is not his first conviction for escape.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
trial court.
Affirmed.
