State v. Cox

S

IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion) STATE V. COX 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. TRAVIS E. COX, APPELLANT. Filed July 13, 2021. No. A-20-851. Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge. Affirmed. Heather S. Colton, of Pollack & Ball, L.L.C., for appellant. Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee. PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges. WELCH, Judge. I. INTRODUCTION Travis E. Cox appeals his termination from the Lancaster County Drug Court Program, contending that he was not afforded procedural and substantive due process and that there was insufficient evidence to terminate him from the program. Cox also contends that his trial counsel was ineffective in failing to object to hearsay testimony and evidence during the termination hearing, failing to make any foundational objections, failing to subpoena or otherwise call certain adverse witnesses with personal knowledge of the evidence, and failing to file a motion to withdraw his plea as requested by Cox. For the reasons set forth herein, we affirm. II. STATEMENT OF FACTS On August 5, 2020, Cox was charged in Lancaster County District Court with burglary, a Class IIA felony, and possession of methamphetamine, a Class IV felony. See, Neb. Rev. Stat. § 28-507 (Reissue 2016); Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2020). On August 20, Cox pled -1- guilty to the charged offenses. The court stated that Cox had been accepted into the Lancaster County Drug Court Program and asked Cox if he understood that if Cox did not successfully complete the drug court program, he would not be able to withdraw his guilty pleas to which Cox responded “Yes.” The court also advised Cox that if he failed to successfully complete the drug court program, Cox would be sentenced according to the sentencing ranges that the court had previously explained, to which Cox again replied “Yes.” Cox bonded into the Lancaster County Drug Court Program that same day. One of the provisions of the Drug Court Bond, which Cox signed, was: I understand and acknowledge that if it is alleged that I have violated any of the above conditions, I can be immediately remanded to the custody of the Lancaster County Department of Corrections by any drug court or law enforcement officer, my bond can be revoked, and/or I can be terminated from drug court and sentenced on the charges to which I entered pleas. As a part of Cox’s program plan, on Thursday, August 27, 2020, he was placed in residential inpatient treatment at Touchstone’s rehabilitation facility in Lincoln, Nebraska. Cox’s treatment went poorly during his short stay at Touchstone. On the following Monday, August 31, Cox’s therapist at Touchstone contacted Andrea McClatchey, Cox’s drug court supervision officer, and described Cox’s “rough weekend” explaining that Cox displayed “disruptive and aggressive” …

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