Saturday, June 17, 2006
Defendant convicted of stealing an ATM loses appeal challenging constitutionality of restitution order; loses ineffective counsel claim in Nebraska Supreme Court in another wasteful pointless appeal the Defendant claims he told his lawyer to file.State v. Moyer, S-05-079, 271 Neb. 776 HTML Defendant and two others broke into a Bennett convenience store and stole the ATM. They opened the machine with a blowtorch and stole $10000. Defendant plead guilty and was sentence to prison and ordered to pay full restitution. Defendant's counsel did not appeal the sentence and later the District Court ordered a new direct appeal, assuming the Defendant had asked for an appeal. Defendant's new counsel claimed Neb. Rev. Stat. §§ 29-2280 to 29-2289 (Reissue 1995) were unconstitutional because violate Neb. Const. art. VII, § 5(1). the Nebraska criminal restitution statutes challenged by Moyer do not violate Neb. Const. art. VII, § 5. Section 29-2280 states, in part: "A sentencing court may order the defendant to make restitution for the actual physical injury or property damage or loss sustained by the victim as a direct result of the offense for which the defendant has been convicted." "Although an order to make restitution is punitive as to the wrongdoer, it is limited to the actual loss sustained by the victim and is thus compensatory or remedial in nature. Accordingly, we hold that restitution, ordered in an amount not exceeding the actual damage sustained by the victim, pursuant to §29-2280 , is not a penalty within the meaning of Neb. Const. art. VII, § 5, and is constitutional." Post conviction relief denied.The volume of these post conviction motions seeking direct appeals from guilty pleas quite annoys me. This District Judge seems to have not read Roe v Flores-Ortega, the Scotus decision that restricts the free appeal hindsight favoring judges were giving defendants. The better practice is for counsel routinely to consult with the defendant about an appeal. Counsel has a constitutionally imposed duty to consult, however, only when there is reason to think either (1) that a rational defendant would want to appeal, or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. One highly relevant factor will be whether the conviction follows a trial or a guilty plea, because a plea both reduces the scope of potentially appealable issues and may indicate that the defendant seeks an end to judicial proceedings. Even then, a court must consider such factors as whether the defendant received the sentence bargained for and whether the plea expressly reserved or waived some or all appeal rights.
Posted by stan_sipple at 7:24 AM