Hall County, District Court, Judge Andrew C. Butler
Attorney for Appellant: Chad Wythers (Wythers Law Firm)
Attorney for Appellee: P. Christian Adamski (Nebraska Attorney General’s Office)
Criminal Action: Attempted Second Degree Murder, First Degree Assault, Unlawful Discharge of a Firearm, Use of a Deadly Weapon to Commit a Felony
Action Taken by Trial Court: Following a bench trial, the district court found Battles guilty of attempted second degree murder, first degree assault, unlawful discharge of a firearm, and three counts of use of a deadly weapon to commit a felony. Battles received sentences of 15 to 30 years’ imprisonment for his convictions of attempted second degree murder, first degree assault, and unlawful discharge of a firearm. He was sentenced to 5 to 10 years’ imprisonment for each conviction of use of a deadly weapon to commit a felony.
Assignments of Error on Appeal: Appellant assigns that the district court erred by abusing its discretion by failing to advise him that upon conviction for use of a firearm any sentence was required to be served consecutively to the underlying felony, committing plain error in allowing him to enter a plea of not guilty and proceed to trial on an incorrect charge of attempted second degree murder, and abusing its discretion by accepting his waiver of a jury trial when he was not advised of the right to be presumed innocent. Appellant assigns that the incorrect charge for attempted second degree murder combined with the failure to advise him that he would be presumed innocent and the acceptance of the waiver of jury trial cumulatively resulted in a violation of his constitutional right to a fair trial. Appellant assigns that trial counsel was ineffective in advising him to waive his right to a jury trial given the attempted second degree murder charge included the element of malice and any jury instruction including malice would have resulted in reversible error, failing to argue self-defense given the undisputed evidence that Appellant was the person who shot the victim, failing to encourage Appellant to testify in his own defense, and failing to communicate plea offers.