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).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IRWIN, Judge.
I. INTRODUCTION
Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Sonny Balvin appeals from an amended sentencing order. In the order, the district court sentenced Balvin to 24 to 36 years' imprisonment for his conviction for first degree sexual assault and found him to be subject to lifetime sex offender registration pursuant to the Nebraska Sex Offender Registration Act (SORA). See Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2008, Cum. Supp. 2010 & Supp. 2011). For the reasons set forth below, we affirm the amended sentencing order in all respects.
II. BACKGROUND
In October 2010, Balvin was convicted of first degree sexual assault and sentenced to 24 to 36 years' imprisonment. As a part of the original sentencing order, the trial court made a finding that the sexual assault conviction constituted an "aggravated offense" as defined by SORA and that, as a result, Balvin was subject to the lifetime registration requirement of SORA and to lifetime community supervision following his release from prison, see Neb. Rev. Stat. § 83-174.03 (Cum. Supp. 2010).
Balvin filed a direct appeal from his conviction and sentence. Included in Balvin's assigned errors in his direct appeal was the assertion that the trial court erred in finding that he committed an aggravated offense making him subject to lifetime community supervision. Balvin contended that because lifetime community supervision is punitive in nature, the finding that he committed an aggravated offense making him subject to lifetime community supervision must be made by a jury, rather than by the court.
In State v. Balvin, 18 Neb.App. 690, 791 N.W.2d 352 (2010) (State v. Balvin I), we determined that Balvin's assertion had merit and we remanded the case with directions to the trial court to conduct an evidentiary hearing for a jury to determine whether Balvin's offense was aggravated and, thus, whether he was subject to lifetime community supervision.
On remand, the State declined to pursue the issue of whether Balvin committed an aggravated offense making him subject to lifetime community supervision. As a result of the State's decision, the trial court entered an amended sentencing order which removed the provision indicating that Balvin was subject to lifetime community supervision. The sentencing order remained the same in all other respects. Balvin was sentenced to 24 to 36 years' imprisonment and was subject to lifetime sex offender registration upon his release from prison.
Balvin appeals from the amended sentencing order.
III. ASSIGNMENTS OF ERROR
On appeal, Balvin argues that the trial court erred in failing to conduct an evidentiary hearing as instructed by this court in State v. Balvin I and in making lifetime sex offender registration a part of the amended sentencing order. In addition, Balvin argues that he received ineffective assistance of counsel.
IV. ANALYSIS
1. EVIDENTIARY HEARING
Balvin alleges that the trial court erred in failing to conduct an evidentiary hearing for a jury to determine whether his offense was aggravated and, thus, whether he was subject to lifetime community supervision after his release from prison, as instructed by this court in our opinion in State v. Balvin I. Balvin argues that our opinion should be read to require that such a hearing be held and alleges that the trial court should have compelled the State to go forward with such a hearing.
Balvin's assertion has no merit. A prosecutor has the discretion to choose to charge any crime that probable cause will support or, if the prosecutor chooses, not to charge the accused at all. See Polikov v. Neth, 270 Neb. 29, 699 N.W.2d 802 (2005). Because the prosecutor has the ultimate choice about whether to charge an individual with a specific offense, the prosecutor must also have the ultimate choice about whether to argue that a sexual assault offense is "aggravated" pursuant to SORA. Although our opinion in State v. Balvin I instructed the trial court to hold an evidentiary hearing, that opinion was predicated on the understanding that the State had decided to argue that Balvin committed an aggravated sexual assault. The State was within its authority to decide not to pursue the issue of whether Balvin committed an aggravated offense making him subject to lifetime community supervision. The trial court did not err in failing to compel the State to go forward with the evidentiary hearing.
2. LIFETIME SEX OFFENDER REGISTRATION
Balvin alleges that the trial court erred in determining that he is subject to lifetime registration under SORA. His arguments focus on the court's failure to specifically explain the basis for its decision.
The original sentencing order entered by the trial court included the provision that Balvin was subject to lifetime registration pursuant to SORA. In State v. Balvin I, Balvin did not challenge this aspect of the original sentencing order. Because Balvin did not raise this issue in his direct appeal, he is procedurally barred from raising this issue now.
The need for finality in the criminal process requires that a defendant bring all claims for relief at the first opportunity. See State v. Marshall, 272 Neb. 924, 725 N.W.2d 834 (2007). It is clear from the record that the issue of whether Balvin is subject to lifetime registration could, and should, have been litigated on direct appeal. Balvin lost his right to appeal whether he was subject to lifetime registration because he did not include that issue in his appeal from the original sentencing order.
In addition, contrary to Balvin's assertion that the trial court did not explain the basis for its determination that Balvin is subject to lifetime registration, the trial court did indicate that it found Balvin's offense to be aggravated. The trial court is permitted to make such a finding for the purposes of the lifetime registration requirement because such requirement is not punitive. See State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004). In fact, in State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009), the Supreme Court found that it was entirely proper for a trial judge to determine that a defendant committed an aggravated offense for the purposes of the lifetime registration requirement provisions of SORA, because those provisions are civil in nature. The evidence presented at the trial and in the presentence report supports the trial court's finding that Balvin committed an aggravated offense which subjected him to the lifetime registration requirement.
3. INEFFECTIVE ASSISTANCE OF COUNSEL
Balvin alleges that he received ineffective assistance of counsel after we remanded the case back to the trial court. Specifically, Balvin alleges that his counsel was ineffective because (1) counsel failed to object to the trial court's determination that Balvin was subject to lifetime registration under SORA, (2) counsel failed to argue that the trial court had to compel the State to go forward with the evidentiary hearing to have a jury determine whether he committed an aggravated offense and was subject to lifetime community supervision, and (3) counsel failed to convincingly argue these issues in this appeal.
Balvin has the same counsel on appeal as he had after our remand. As such, counsel is arguing about his own ineffective assistance, presumably at Balvin's request. However, claims of ineffective assistance of counsel raised on direct appeal by the same counsel who represented the defendant at trial are premature and will not be addressed on direct appeal. State v. Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009). Because Balvin's claims of ineffective assistance of counsel are premature, we decline to address these assertions further.
V. CONCLUSION
Upon our review, we find that the trial court did not err in failing to compel the State to participate in an evidentiary hearing to determine whether Balvin committed an aggravated offense making him subject to lifetime community supervision. In addition, we find that Balvin is precluded from raising the issue of whether he is subject to lifetime sex offender registration because he did not raise that issue in his direct appeal. Finally, we find that Balvin's claims of ineffective assistance of counsel are premature because he has the same counsel on appeal as he had during the sentencing hearing held after our remand. We affirm the trial court's amended sentencing order in all respects.
AFFIRMED.
