State v. Wabashaw, 274 Neb. 394

Summary

The Supreme Court of Nebraska affirmed Elroy L. Wabashaw's convictions for robbery and use of a firearm to commit a felony. The court held that Nebraska had jurisdiction over the offense committed in Indian country under Public Law 280 and that the 1868 Treaty did not require dismissal of the prosecution. The court also upheld use of a South Dakota conviction for habitual-criminal sentencing and rejected the defendant's claims concerning substitute counsel and ineffective assistance.

Holdings

1. Nebraska had criminal jurisdiction over the robbery under Public Law 280 because the offense occurred in Indian country, and jurisdiction existed regardless of whether Wabashaw or the victim was Indian.
2. Nebraska did not lose jurisdiction over the robbery when federal acceptance of retrocession became effective in 2006 because the offense occurred before acceptance.
3. The 1868 Treaty did not divest the district court of jurisdiction. Even assuming the treaty imposed a notice-and-delivery requirement, Congress abrogated that requirement through Public Law 280.
4. The district court did not err by failing to hold an evidentiary hearing on Wabashaw's second motion for substitute counsel because dissatisfaction with appointed counsel did not establish grounds for substitution.
5. The State sufficiently proved that Wabashaw was the person convicted in the 1977 South Dakota robbery case.
6. Nebraska could use Wabashaw's 1977 South Dakota conviction to enhance his sentence, and the Full Faith and Credit Clause did not require Nebraska to adopt South Dakota's limitation on use of the conviction.
7. Wabashaw was not denied effective assistance based on counsel's alleged conflict of interest or failure to request an evidentiary hearing on the motion to quash.
8. The record was insufficient to review on direct appeal the claims concerning failure to object to references to recovered evidence, failure to move to suppress the confession, failure to cross-examine Vance during the State's case, and failure to obtain a handwriting expert.

Questions Presented

1. Whether Nebraska's district court had criminal jurisdiction over the robbery committed in Indian country under Public Law 280 and the 1868 Treaty between the United States and different Tribes of Sioux Indians.
2. Whether the district court erred by failing to hold an evidentiary hearing on Wabashaw's motions to withdraw counsel and appoint substitute counsel.
3. Whether the State sufficiently proved that Wabashaw was the person named in the 1977 South Dakota conviction used for sentence enhancement.
4. Whether Nebraska could use the 1977 South Dakota conviction for habitual-criminal enhancement even though South Dakota law would no longer permit use of that conviction for enhancement.
5. Whether Wabashaw established ineffective assistance of counsel based on an alleged conflict of interest and counsel's failure to request an evidentiary hearing, and whether the remaining ineffective-assistance claims were reviewable on direct appeal.

Disposition

affirmed