State v. Barnes

IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion) STATE V. BARNES NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E). STATE OF NEBRASKA, APPELLEE, V. TAMMY L. BARNES, APPELLANT. Filed January 12, 2021. No. A-20-078. Appeal from the District Court for Douglas County: KIMBERLY MILLER PANKONIN, Judge. Sentences vacated, and cause remanded for further proceedings. Thomas J. Monaghan, of Dornan, Troia, Howard, Breitkreutz & Conway, P.C., L.L.O., for appellant. Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee. MOORE, Chief Judge, and BISHOP and WELCH, Judges. WELCH, Judge. INTRODUCTION Following Tammy L. Barnes’ motion for postconviction relief, the Douglas County District Court granted her motion in the form of a new direct appeal. Pursuant to that order, Barnes has filed this direct appeal of her plea-based convictions of four counts of theft by shoplifting, three or more convictions, $500 or less. On appeal, Barnes contends that the district court erred in finding that she entered her plea understandingly and voluntarily and that her trial counsel was ineffective in failing to object to the factual basis and an exhibit. For the reasons set forth herein, we vacate Barnes’ sentences and remand this cause for another enhancement and sentencing hearing. -1- STATEMENT OF FACTS Barnes was initially charged with eight counts of theft by shoplifting, three or more convictions, $500 or less, all Class IV felonies. Pursuant to a plea agreement, Barnes pled guilty to four counts of theft by shoplifting, 3 or more convictions, $500 or less, Class IV felonies. See Neb. Rev. Stat. § 28-511.01 (Reissue 2016) (theft by shoplifting; penalty); Neb. Rev. Stat. § 28-518(6) (Reissue 2016) (grading of theft offenses). As part of the plea agreement, the State dismissed the remaining four counts and also dismissed charges found under a separate case (CR 17-1531). The district court informed Barnes that she had a right to a jury trial, the right to confront witnesses against her, the presumption of innocence, the privilege against self-incrimination, the right to an attorney, and the immigration consequences of conviction. The district court also advised her of the nature of the charges and the associated penalties. The State provided a factual basis for count 1 which provided that between August 1, 2016, and April 20, 2017, Barnes was videotaped on at least eight occasions at various Target stores taking various items of property including a Garmin GPS system, two Nest thermostat systems, two tablets, Microsoft software system, and “a refill kit.” The value of each of the items individually was under $500, but a compilation of the total of all of the items taken on the eight separate incidents totaled $1,697.89. Law enforcement observed Barnes on video surveillance and observed the license plate on the vehicle in which she was driving away from the scene, which license plate came back registered to Barnes’ daughter. Further, upon being taken into ...

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