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www.nebraska.gov/apps-courts-epub/
05/19/2023 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. HAMM
Cite as 314 Neb. 311
State of Nebraska, appellee, v.
Calvin James Hamm, appellant.
___ N.W.2d ___
Filed May 19, 2023. Nos. S-22-466, S-22-467.
1. Pleas: Waiver. 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.
2. Pleas. To be valid, a plea must be entered freely, knowingly, and
voluntarily.
3. ____. To support a finding that a plea has been entered freely, knowingly, and voluntarily, a trial court must inform the defendant concerning the nature of the charge, the right to assistance of counsel, the
right to confront witnesses against the defendant, the right to a jury
trial, and the privilege against self-incrimination. The court must also
examine the defendant and determine whether he or she understands
the foregoing.
4. Pleas: Records. A trial court must ensure the record establishes that
there is a factual basis for the plea and that the defendant knows the
range of penalties for the crime with which he or she is charged.
5. Convictions: Sentences: Waiver: Appeal and Error. A criminal
defendant can explicitly waive his or her right to appeal a criminal conviction as part of a sentencing agreement.
6. Waiver: Appeal and Error. To enforce a waiver of appellate rights, an
appellate court must determine that (1) the appeal falls within the scope
of the waiver, (2) the defendant knowingly and voluntarily waived his
or her right to appeal, and (3) enforcing the waiver would not result in a
miscarriage of justice.
7. ____: ____. The validity of an appeal waiver is a question of law on
which an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.
8. Effectiveness of Counsel: Waiver: Appeal and Error. A waiver
of the right to appeal is enforceable against claims of ineffective
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. HAMM
Cite as 314 Neb. 311
assistance of counsel except to the extent the claim challenges the
validity of the waiver itself.
9. ____: ____: ____. An appeal waiver may not be knowing and voluntary
if it is the result of ineffective assistance of counsel.
10. ____: ____: ____. Ineffective assistance of counsel claims do not render an appeal waiver invalid except to the extent deficient representation in negotiating or advising on the waiver rendered it unknowing
or involuntary.
11. Waiver: Appeal and Error. The miscarriage of justice exception is a
narrow one that will not be allowed to swallow the general rule that
waivers of appellate rights are valid.
12. Effectiveness of Counsel: Plea Bargains. Whether there has been a
miscarriage of justice based on ineffective assistance of counsel is intertwined with the analysis for whether the plea bargain agreement was
unknowing and involuntary because of ineffective assistance.
13. Effectiveness of Counsel: Waiver: Appeal and Error. Enforcement
of an appeal waiver against a claim of ineffective assistance of counsel
only results in a miscarriage of justice when the alleged ineffectiveness
rendered the appeal waiver invalid.
14. Waiver: Dismissal and Nonsuit: Appeal and Error. The proper
remedy for an enforceable waiver of appellate rights is to dismiss
the appeal.
Appeals from the District Court for Buffalo County: John
H. Marsh, Judge. Appeals dismissed.
Bergan E. Schumacher, of Bruner, Frank, Schumacher,
Husak & Simpson, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
A jury convicted a defendant of possession of methamphetamine and driving under the influence (DUI). Prior to
the sentencing hearing for those convictions, the defendant
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. HAMM
Cite as 314 Neb. 311
entered into a plea and sentencing agreement in which he
agreed in a second case to plead no contest to a charge of
possession with intent to distribute methamphetamine and to
waive his right to appeal all issues in both cases to the extent
permitted by law. The State agreed not to pursue habitual
criminal enhancements in either case and dismiss a third case
pending against the defendant. The district court accepted the
plea and sentence agreement and sentenced the defendant in
both cases. The defendant appealed, and we consolidated the
appeals. On appeal, the defendant argues that trial counsel
was ineffective for allowing him to testify on his own behalf
and for eliciting incriminating testimony in the first case. The
State responds that the defendant’s appeal should be dismissed
because the defendant’s waiver applies to and is enforceable
against this type of claim of ineffective assistance of counsel.
We agree and dismiss.
BACKGROUND
In Buffalo County District Court case No. CR21-119, the
State charged Calvin James Hamm with possession of methamphetamine with a habitual criminal enhancement, 1 second-offense DUI, 2 second-offense refusal to submit to a chemical
test, 3 and driving under suspension. 4 The case proceeded to
trial on the first three charges. The State presented evidence
at trial that a law enforcement officer stopped Hamm after
witnessing a traffic violation and arrested him after he failed
a field sobriety test. A substance found in the vehicle he was
driving was later identified as methamphetamine.
After the State rested its case at trial, Hamm testified
on his own behalf. Hamm admitted to struggling with drug
1
See, Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2020);
Neb. Rev. Stat.
§ 29-2221 (Reissue 2016).
2
See Neb. Rev. Stat. § 60-6,196(1)(a) (Reissue 2021).
3
See Neb. Rev. Stat. § 60-6,197.03 (Reissue 2021).
4
See Neb. Rev. Stat. § 60-4,108(2) (Reissue 2021).
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. HAMM
Cite as 314 Neb. 311
addiction for years and using methamphetamine on the day
of his arrest. Hamm testified that on that day, after smoking
methamphetamine in the morning, he went to a friend’s house
to try to get more drugs. When the friend never showed up
with the drugs, he drove around until he was eventually pulled
over by police for a traffic violation. Hamm testified that the
vehicle he was driving did not belong to him and that he had
no idea there was methamphetamine inside of it.
The jury found Hamm guilty of possession of methamphetamine and DUI but not guilty of refusing to submit to a chemical test.
In Buffalo County District Court case No. CR21-240, the
State charged Hamm with possession with intent to distribute methamphetamine with a habitual criminal enhancement. 5
The State claimed that it would present evidence at trial
that Hamm sold methamphetamine to a person working with
law enforcement.
After his conviction in case No. CR21-119, Hamm and the
State entered into a “Plea and Sentencing Stipulation.” The
stipulation provided that the State would dismiss the habitual
criminal enhancements in both cases and would dismiss a third
case, Buffalo County District Court case No. CR21-135, in
which Hamm was charged with possession of methamphetamine with a habitual criminal enhancement. The State would
also recommend that Hamm be sentenced to 465 days’ imprisonment in case No. CR21-119 and 20 to 22 years’ imprisonment in case No. CR21-240 to be served consecutively. In
exchange, Hamm would plead no contest to possession with
intent to distribute methamphetamine and would “waive his
right to appeal all issues, to the extent a waiver is permissible”
in cases Nos. CR21-119 and CR21-240.
At the plea hearing, counsel for the State summarized the
agreement:
5
See, § 28-416(1)(a) and (10); § 29-2221.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. HAMM
Cite as 314 Neb. 311
[Counsel for the State:] Your Honor, the parties have
reduced the agreement to a stipulation, but in essence for
the Court today, . . . Hamm is going to plea as charged to
a second amended information, which the State has here,
which removes the habitual criminal enhancement.
In exchange, the parties have reached a stipulated sentencing agreement by which . . . Hamm will be — agree
to a stipulated sentence of 20 to 22 years, with 4 days
credit for time served in this matter. And then the parties
have reached an agreement by which if this Court sentences . . . Hamm consistent with the parties’ agreement,
he will enter a waiver to appellate rights in all three of
these cases to the extent those are waivable.
The State will remove the habitual criminal enhancement on CR 21-119, an offense to which he’s already
been convicted by jury, in exchange for the sentencing
agreement in this case; and then the State will dismiss the
additional pending case against [him], CR 21-135.
And the parties have agreed that in CR 21-119, if the
Court should sentence . . . Hamm consistent with our
agreement in CR 21-240, the parties will stipulate to a
sentence of 435 days, which with the credit [he] will have
for time served in that case at the time of the currently
scheduled sentencing would constitute a time served sentence in that case. And that would be consecutive to the
20 to 22 years in this case.
The court then confirmed that Hamm heard and agreed to
those terms:
THE COURT: All right, then, . . . did you hear the plea
agreement set forth by [counsel for the State]?
....
CALVIN HAMM: Um, I did, sir.
THE COURT: Is that your agreement?
CALVIN HAMM: Um, yes, that’s the agreement I
agreed to.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. HAMM
Cite as 314 Neb. 311
The court also confirmed that Hamm had reviewed, understood, and signed the written “Plea and Sentencing Stipulation”
outlining the course of the plea negotiations and the exact
terms of the agreement:
THE COURT: . . . Okay, so [defense counsel] has a
document. Have you had the opportunity to review that
document . . . ?
....
CALVIN HAMM: Yes, I have.
THE COURT: And have you signed it?
CALVIN HAMM: Yes, I have.
THE COURT: Do you understand the contents of that
document?
CALVIN HAMM: Um, yes, I understand.
The district court informed Hamm of his rights and confirmed that Hamm had reviewed and understood the plea
agreement. The district court accepted Hamm’s plea, finding
that it was entered knowingly, voluntarily, and intelligently.
The district court sentenced Hamm consistent with the plea and
sentencing agreement.
Hamm appeals.
ASSIGNMENTS OF ERROR
Hamm assigns that his trial counsel was ineffective for (1)
failing to advise him against testifying at trial and (2) eliciting
incriminating testimony from him on direct examination.
STANDARD OF REVIEW
The validity of an appeal waiver is a question of law. 6
An appellate court has an obligation to reach an independent
conclusion irrespective of the decision of the court below on
questions of law. 7
6
State v. Dye, 291 Neb. 989,
870 N.W.2d 628 (2015).
7
See id.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. HAMM
Cite as 314 Neb. 311
An appellate court always reserves the right to note plain
error that was not complained of at trial or on appeal. 8
ANALYSIS
Hamm claims that trial counsel was ineffective for allowing
him to testify at trial and eliciting incriminating testimony from
him on direct examination. He argues that the plea and sentencing agreement is void because he would not have entered
into it but for such ineffective assistance of counsel. The State
argues that Hamm’s claim should be dismissed because he
explicitly waived his right to appeal all issues.
[1-4] 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. 9 Such a plea must
be entered freely, knowingly, and voluntarily. 10 To support a
finding that a plea has been entered freely, knowingly, and
voluntarily, the court must inform the defendant concerning
the nature of the charge, the right to assistance of counsel, the
right to confront witnesses against the defendant, the right to
a jury trial, and the privilege against self-incrimination. 11 The
court must also examine the defendant and determine whether
he or she understands the foregoing. 12 Lastly, the court must
ensure the record establishes that there is a factual basis for
the plea and that the defendant knew the range of penalties
for the crime with which he or she is charged. 13
There is evidence in the record that the agreement was
knowing and voluntary. At the plea hearing, the State’s attorney explained the general terms of the agreement, including
the waiver of appellate rights, and Hamm affirmed that he
8
State v. Kantaras, 294 Neb. 960,
885 N.W.2d 558 (2016).
9
State v. Manjikian, 303 Neb. 100,
927 N.W.2d 48 (2019).
10
See Jones v. U.S., 167 F.3d 1142 (7th Cir. 1999).
11
See Manjikian, supra note 9.
12
See id.
13
See id.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. HAMM
Cite as 314 Neb. 311
agreed to them. Hamm also affirmed that he reviewed, understood, and signed the written document outlining the exact
terms of the agreement, which included an explicit waiver of
the right to appeal.
[5-7] Additionally, a criminal defendant can explicitly waive
his or her right to appeal a criminal conviction as part of a
sentencing agreement. 14 We have held that to enforce such a
waiver, we must determine that (1) the appeal falls within the
scope of the waiver, (2) the defendant knowingly and voluntarily waived his or her right to appeal, and (3) enforcing the
waiver would not result in a miscarriage of justice. 15 The validity of an appeal waiver is a question of law on which we have
an obligation to reach an independent conclusion irrespective
of the decision of the court below. 16
Hamm claims that the plea and sentencing agreement is void
because but for the ineffective assistance of counsel in case
No. CR21-119, he would not have been convicted and would
not have entered into the agreement, and that therefore, he
entered into the agreement unknowingly and involuntarily. He
also claims that because of the same chain of events originating with the alleged ineffective assistance of counsel, enforcing
his appeal waiver would result in a miscarriage of justice. We
hold that Hamm’s claim of ineffective assistance of counsel
does not invalidate the appeal waiver included in his plea and
sentencing agreement because it does not relate directly to the
process by which the waiver agreement was entered into. For
the same reason, we also hold that enforcing Hamm’s appeal
waiver against his claim of ineffective assistance of counsel
would not result in a miscarriage of justice.
[8,9] A waiver of the right to appeal is enforceable against
claims of ineffective assistance of counsel except to the
14
See Dye, supra note 6.
15
See id.
16
See id.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. HAMM
Cite as 314 Neb. 311
extent the claim challenges the validity of the waiver itself. 17
We have recognized that an appeal waiver may not be knowing and voluntary if it is the result of ineffective assistance
of counsel. 18
Other jurisdictions have refused to enforce appeal waivers
against claims of ineffective assistance of counsel only to the
extent the claim challenges the process by which the waiver
agreement was entered into. 19 The Seventh Circuit Court of
Appeals explained in Jones v. U.S. 20 that enforcing an appeal
waiver entered into upon the ineffective assistance of counsel
would “deprive a defendant of an opportunity to assert his
Sixth Amendment right to counsel where he had accepted the
waiver in reliance on delinquent representation.” It stressed,
however, that under this reasoning, the exception is limited to
“those discrete claims which relate directly to the negotiation
of the waiver.” 21 Because the defendant in Jones explicitly
alleged that he received ineffective assistance of counsel in the
negotiation of the waiver, the court proceeded to the merits of
his appeal. 22
17
See Dye, supra note 6. See, also, U.S. v. Ortiz-Vega,
860 F.3d 20 (1st
Cir. 2017); Parisi v. U.S., 529 F.3d 134 (2d Cir. 2008); U.S. v. Williams,
247 Fed. Appx. 423 (4th Cir. 2007); U.S. v. Barnes,
953 F.3d 383 (5th
Cir. 2020); U.S. v. Mullikin, 460 Fed. Appx. 526 (6th Cir. 2012);
Jones,
supra note 10; U.S. v. Andis,
333 F.3d 886 (8th Cir. 2003); Washington v.
Lampert, 422 F.3d 864 (9th Cir. 2005); U.S. v. Hawkins,
390 Fed. Appx.
818 (10th Cir. 2010); Sharpley v. U.S.,
499 F. Supp. 2d 208 (N.D.N.Y.
2007), affirmed 355 Fed. Appx. 488 (2d Cir. 2009); Garafola v. U.S.,
909
F. Supp. 2d 313 (S.D.N.Y. 2012); People v. Petgen,
55 N.Y.2d 529,
435
N.E.2d 669, 450 N.Y.5.2d 299 (1982).
18
Dye, supra note 6.
19
See, Ortiz-Vega, supra note 17;
Parisi, supra note 17;
Williams, supra note
17;
Barnes, supra note 17;
Mullikin, supra note 17;
Jones, supra note 10;
Lampert, supra note 17;
Hawkins, supra note 17;
Garafola, supra note 17;
Petgen, supra note 17.
20
Jones, supra note 10,
167 F.3d at 1145.
21
Id.
22
See Jones, supra note 10.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. HAMM
Cite as 314 Neb. 311
The Second Circuit Court of Appeals applied similar reasoning to an appeal waiver entered as part of a plea agreement
in Parisi v. U.S. 23 In that case, a defendant claimed on appeal
that his trial counsel should have moved to dismiss the indictment for a violation of the Speedy Trial Act. 24 He argued
that his claim should survive his appeal waiver because “‘if
counsel had been effective, the indictment would have been
dismissed with prejudice, and therefore there would have
been no plea agreement.’” 25 The court rejected this argument,
holding a claim of ineffective assistance of counsel only survives an appeal waiver when it challenges “‘the process by
which the waiver ha[d] been procured.’” 26 It explained that
“[e]verything that occurs prior to . . . entry into a plea agreement informs the defendant’s decision to accept or reject the
agreement.” 27 “[C]hallenging the attorney’s role in shaping
the defendant’s bargaining position cannot avoid the waiver,”
but “challenging the attorney’s advice about that bargaining
position, by connecting the knowing and voluntary nature
of the defendant’s plea decision with the attorney’s conduct, does.” 28
[10] We agree with these decisions and hold that ineffective assistance of counsel claims do not render an appeal
waiver invalid except to the extent deficient representation in
negotiating or advising on the waiver rendered it unknowing
or involuntary. Thus, Hamm’s appeal waiver is valid because
he did not allege trial counsel’s performance in negotiating
the plea and sentencing agreement or advising him to accept
it was deficient. Trial counsel’s decision to allow Hamm to
23
Parisi, supra note 17.
24
Id.
25
Parisi, supra note 17,
529 F.3d at 138.
26
Id. (emphasis omitted).
27
Parisi, supra note 17,
529 F.3d at 138.
28
Id. at 138-39.
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314 Nebraska Reports
STATE V. HAMM
Cite as 314 Neb. 311
testify at trial and his performance at trial occurred prior to
the plea and sentencing negotiations and counsel’s advising
Hamm to accept the agreement. Hamm did not allege that he
was unaware of trial counsel’s performance at trial when he
entered into the agreement. Similar to the attorney’s failure
to pursue a motion to dismiss in Parisi, 29 the performance of
Hamm’s counsel at trial and Hamm’s subsequent conviction in
case No. CR21-119 formed Hamm’s bargaining position but
did not directly affect the waiver process. Hamm’s allegations
of ineffective assistance in relation to Hamm’s testifying in
his own defense in the first trial did not render the plea and
sentencing agreement here at issue unknowing or involuntary.
Thus, the appeal waiver is valid.
[11] And enforcing the waiver against Hamm’s claim of
ineffective assistance of counsel would not result in a miscarriage of justice. In State v. Dye, 30 we adopted the miscarriage
of justice exception to the general enforceability of appeal
waivers, following the Eighth Circuit Court of Appeals’ decision in U.S. v. Andis. 31 Although we did not elaborate on what
constitutes a “miscarriage of justice,” we noted the exception “is a narrow one and will not be allowed to swallow the
general rule that waivers of appellate rights are valid.” 32 We
recognized that the Andis court included within the miscarriage of justice exception appeals alleging an illegal sentence
or ineffective assistance of counsel, but we did not address
those circumstances in Dye because they were not present
on appeal. 33
[12] Other courts have applied the miscarriage of justice exception to appeals of illegal sentences and claims of
29
Id.
30
Dye, supra note 6.
31
Andis, supra note 17.
32
Dye, supra note 6,
291 Neb. at 1000, 870 N.W.2d at 635.
33
See id.
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314 Nebraska Reports
STATE V. HAMM
Cite as 314 Neb. 311
ineffective assistance of counsel. 34 The majority of these
courts hold that for ineffective assistance of counsel to support a plea agreement being a miscarriage of justice, the
alleged ineffectiveness must relate directly to the plea or
waiver itself. 35 Thus, whether there has been a miscarriage
of justice based on ineffective assistance of counsel is intertwined with the analysis for whether the plea bargain agreement was unknowing and involuntary because of ineffective assistance.
The First Circuit Court of Appeals held in U.S. v. Teeter 36
that “waivers of the right to appeal from imposed sentences
are presumptively valid” if “knowing and voluntary,” subject
only to the court’s “inherent power to relieve the defendant
of the waiver . . . where a miscarriage of justice occurs.”
The First Circuit has only applied the miscarriage of justice
exception to ineffective assistance of counsel claims that
alleged “‘the plea proceedings were tainted by ineffective
assistance of counsel.’” 37 Similarly, the 10th Circuit Court of
Appeals has held that ineffective assistance of counsel may
result in a miscarriage of justice only where ineffective assist
ance of counsel in connection with the negotiation of the
waiver renders the waiver invalid.” 38 In U.S. v. Hawkins, 39
the court recognized that where a defendant argues that
34
See, Ortiz-Vega, supra note 17; U.S. v. Torres-Oliveras,
583 F.3d 37 (1st
Cir. 2009); U.S. v. Shedrick, 493 F.3d 292 (3d Cir. 2007); U.S. v. Griffin,
668 F.3d 987 (8th Cir. 2012);
Andis, supra note 17;
Hawkins, supra note
17; U.S. v. Arevalo-Jimenez,
372 F.3d 1204 (10th Cir. 2004); U.S. v. Hahn,
359 F.3d 1315 (10th Cir. 2004).
35
See, Ortiz-Vega, supra note 17;
Torres-Oliveras, supra note 34; U.S. v.
Jordan, 438 Fed. Appx. 180 (4th Cir. 2011);
Arevalo-Jimenez, supra note
34;
Hahn, supra note 34.
36
United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001).
37
See Ortiz-Vega, supra note 17,
860 F.3d at 28. See, also, U.S. v. Rodriguez-Monserrate,
22 F.4th 35 (1st Cir. 2021);
Torres-Oliveras, supra note 34.
38
Hawkins, supra note 17;
Hahn, supra note 34.
39
Hawkins, supra note 17.
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STATE V. HAMM
Cite as 314 Neb. 311
because of ineffective assistance of counsel an appeal waiver
was unknowing and involuntary and enforcement would result
in a miscarriage of justice, its analysis on both questions
is intertwined.
[13] We agree with these decisions and hold that enforcement of an appeal waiver against a claim of ineffective assist
ance of counsel only results in a miscarriage of justice when
the alleged ineffectiveness rendered the appeal waiver invalid.
We have already discussed that Hamm’s claim of ineffective
assistance did not render his appeal waiver invalid because it
did not directly relate to the negotiation of the waiver or the
advice he received concerning the plea agreement. Therefore,
the miscarriage of justice exception does not apply and we will
enforce Hamm’s appeal waiver.
[14] The proper remedy for an enforceable waiver is to
dismiss the appeal. 40 In Dye, we dismissed a defendant’s
appeal after determining that his appeal waiver was enforceable against his claim. 41 We discussed the decisions of other
jurisdictions and noted that the majority of those jurisdictions
held that dismissal was the proper remedy when an enforceable appeal waiver applied to the defendant’s claim. 42 We
noted that the Supreme Court of New Jersey held that such
appeals could continue, but the State would be released from
its obligations under the waiver agreement. 43 However, we
agreed with the majority of jurisdictions that dismissal was the
proper remedy. 44
Having determined that Hamm’s appeal waiver is enforceable, we dismiss his appeals. As such, we decline the State’s
40
Dye, supra note 6.
41
See id.
42
Id. See, U.S. v. Walters,
732 F.3d 489 (5th Cir. 2013); U.S. v. Smith,
759
F.3d 702 (7th Cir. 2014); U.S. v. Rollings,
751 F.3d 1183 (10th Cir. 2014);
Cubbage v. State, 304 Md. 237,
498 A.2d 632 (1985).
43
Dye, supra note 6. See State v. Gibson,
68 N.J. 499,
348 A.2d 769 (1975).
44
Dye, supra note 6.
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STATE V. HAMM
Cite as 314 Neb. 311
invitation to exercise our discretion to review the district
court’s sentencing order in case No. CR21-119 for plain
error. 45
CONCLUSION
Hamm’s appeals must be dismissed because he validly
waived the right to raise his claim of ineffective assistance of
trial counsel on appeal.
Appeals dismissed.
45
See State v. Roth, 311 Neb. 1007,
977 N.W.2d 221 (2022).
