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STANDARDS OF REVIEW
AND
PROPOSITIONS OF LAW
POSTCONVICTION
APPEALS:
On appeal from a proceeding for postconviction relief, the trial court's findings will be upheld unless such findings are clearly erroneous. State v. Perry, 268 Neb. 179, – N.W.2d – (2004).
If a defendant is denied his right to appeal because of counsel's failure to timely file notice of appeal, a motion for postconviction relief is the proper means of attacking such denial. Neb. Rev. Stat. § 29-3001 (Reissue 1995); State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997).
An appellate court will not ordinarily entertain a successive motion for postconviction relief unless the motion shows on its face that the basis for relief was not available at the time movant filed the prior motion. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).
One may not pursue postconviction relief while one has direct appeal pending. Neb. Rev. Stat. § 29-3001 (Reissue 1995); State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997).
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APPOINTMENT OF COUNSEL:
Under the Nebraska Postconviction Act it is within the discretion of the district court to determine whether legal counsel shall be appointed to represent a defendant. Neb. Rev. Stat. §29-3001 et seq (Reissue 1995). State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003).
For purposes of reviewing decision on whether to appoint counsel for defendant in postconviction proceedings, "judicial abuse of discretion" means that reasons or rulings of trial court are clearly untenable, unfairly depriving defendant of substantial right and denying just result in matters submitted for disposition. State v. Parmar, 249 Neb. 462, 544 N.W.2d 102 (1996).
Failure to appoint counsel in postconviction proceedings is not an error in the absence of abuse of discretion. State v. Thomas, 262 Neb. 138, 629 N.W.2d 523 (2001); State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000).
State district court may appoint competent and effective counsel in postconviction proceedings, but a defendant is entitled to appointment of counsel if a justiciable issue is presented . Neb. Rev. Stat. § 29-3001 et seq. (Reissue 1995) State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003).
A criminal defendant has the right to represent himself. Const. Art. 1, § 11. State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003).
A prisoner does not have a constitutional right to effective assistance of postconviction counsel. State v. Becerra, 263 Neb. 753, 642 N.W.2d 143 (2002).
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ASSIGNMENTS OF ERROR NOT DISCUSSED:
To be considered by an appellate court, a claimed prejudicial error must not only be assigned, but must be discussed in the brief of the asserting party. State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002). See also State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003).
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BENCH TRIAL:
In an evidentiary hearing, at a bench trial provided by §§ 29-3001 et seq. for postconviction relief, the trial judge, as the "trier of fact," resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony. State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993); State v. Carter, 241 Neb. 645, 489 N.W.2d 846 (1992).
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BRIEFS:
Nebraska Supreme Court rules provide that the brief of an appellant shall contain, among other things, a separate, concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error. Each assignment of error shall be separately numbered and paragraphed, bearing in mind that consideration of the case will be limited to errors assigned and discussed. State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995).
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BURDEN OF PROOF:
A criminal defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless clearly erroneous. State v. McDermott, 267 Neb. 761, 677 N.W.2d 156 (2004); State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003).
A criminal defendant in a postconviction proceeding has the burden of alleging and proving that a claimed error is prejudicial. State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997).
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CUSTODY:
The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 1995), requires that a prisoner seeking relief under the act must be in actual custody in Nebraska under a Nebraska sentence. State v. Eutzy, 242 Neb. 851, 496 N.W.2d 529 (1993); State v. Costanzo, 242 Neb. 478, 495 N.W.2d 904 (1993).
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DEATH PENALTY:
The death penalty by electrocution as punishment for crime is not a cruel and unusual punishment within the meaning of the state and federal Constitutions. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
Whenever a State seeks to impose the death penalty, the discretion of the sentencing body must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. The sentencing authority's discretion must be guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000); State v. Strohl, 255 Neb. 918, 587 N.W.2d 675 (1999).
The first prong of aggravating circumstance (1)(d) of Neb. Rev. Stat. Sec. 29-2523 (Reissue 1995), narrowed by this court's decisions defining the phrase "especially heinous, atrocious, cruel" to mean unnecessarily torturous to the victim, satisfies constitutional requirements. State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995). See also State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000).
For a capital sentencing scheme to comply with the Eighth Amendment to the U.S. Constitution, it must perform a narrowing function with respect to the class of persons eligible for the death penalty and must also ensure that capital sentencing decisions rest upon individualized inquiry. State v. Gales, 265 Neb. 598, 658 N.W.2d (2003).
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DENIAL OF RIGHTS:
A defendant moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or federal Constitution, causing the judgment against the defendant to be void or voidable. State v. Ray, 266 Neb.659, 668 N.W.2d 52 (2003).
The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 1995), applies only where the prisoner has sustained such a denial or infringement of constitutional rights that the judgment is void or voidable. State v. Parmar, 263 Neb. 313, 639 N.W.2d 105 (2002).
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DISQUALIFICATION OF JUDGE:
Defendant seeking to disqualify judge on basis of bias or prejudice bears heavy burden of overcoming presumption of judicial impartiality. State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997).
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EVIDENTIARY HEARING:
An evidentiary hearing on a motion for postconviction relief is not required if the motion alleges only conclusions of fact or law or if the record and files in the case affirmatively establish that the defendant is not entitled to relief. State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003); State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002). See also State v. Jones, 264 Neb. 671, 650 N.W.2d 798 (2002); State v. Gray, 259 Neb. 897, 512 N.W.2d 507 (2000).
An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. State v. Zarate, 264 Neb. 690, 651 N.W.2d 215 (2002).
In an evidentiary hearing at a bench trial provided by Neb. Rev. Stat. § 29-3001 et seq. (Reissue 1995) for postconviction relief, the postconviction trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony. State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995). See also State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
Evidentiary hearing may be denied on motion for postconviction relief when records and files affirmatively show that defendant is entitled to no relief. State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003).
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EXCESSIVE SENTENCE:
Excessive sentence is not a proper subject for postconviction relief. State v. Russell, 239 Neb. 979, 479 N.W.2d 798 (1992). See also State v. Burnett, 254 Neb. 771, 579 N.W.2d 513 (1998).
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EXPERT WITNESSES:
The right of an indigent defendant to the appointment of an expert witness at State expense generally rests in the discretion of the trial court. State v.Baue, 258 Neb. 968, 607 N.W.2d 191 (2000); State v. Lesiak, 234 Neb. 163, 449 N.W.2d 550 (1989); State v. Gagliano, 231 Neb. 911, 438 N.W.2d 783 (1989).
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INEFFECTIVE ASSISTANCE OF COUNSEL:
When a defendant in a postconviction motion alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. Further, defendant must make a showing of how the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions. State v. McDermott, 267 Neb. 761, 677 N.W.2d 156 (2004).
To sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. Constitution and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. State v. McDermott, 267 Neb. 761, 677 N.W.2d 156 (2004).
The demonstration of reasonable probability is a probability sufficient to undermine confidence in the outcome. State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567 (2004).
Because there is no constitutional right to an attorney in state postconviction proceedings, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. State v. Becerra, 263 Neb. 753, 642 N.W.2d 143 (2002).
The appellate court will not second-guess reasonable strategic decisions made by counsel. An appellate court will give due deference to counsel’s discretion in formulating trial tactics. State v. Kelley, 265 Neb. 563, 658 N.W.2d 279 (2003).
Generally, expert testimony is not admissible as proof that assistance of counsel in a criminal case was ineffective. State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995).
To sustain a claim of ineffective assistance of counsel based on counsel's failure to interview witnesses, the record must establish the identity and testimony of the witnesses counsel failed to interview. State v. Joubert, 235 Neb. 230, 455 N.W.2d 117 (1990), cert. denied, 499 U.S. 931, 111 S.Ct. 1338 (1991).
When a claim of ineffective assistance of counsel has not been raised or ruled on by the trial court and necessitates an evidentiary hearing, the matter will not be addressed on appeal. State v. Victor, 242 Neb. 306, 494 N.W.2d 565 (1993).
In determining whether a trial counsel's performance was deficient, there is a strong presumption that such counsel acted reasonably. State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003); State v. Faust, 265 Neb. 84, 660 N.W.2d 844 (2003).
Counsel was not ineffective in failing to develop and offer evidence showing that he did not kidnap victim, where there was no indication that defendant gave counsel any reason to pursue such a theory of defense, or specified the nature of the exculpatory evidence which could have been presented. State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000).
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ISSUES NOT ADDRESSED AT TRIAL:
A constitutional question not properly raised in the trial court will not be considered on appeal. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).
An issue not presented to or passed upon by the trial court is not an appropriate issue for consideration upon appeal. State v. Thomas, 262 Neb. 138, 629 N.W.2d 503 (2001).
Appellate court cannot speculate as to how trial court would have ruled on objections not made to questions not asked. State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997). When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition. State v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003).
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MALICE:
"Malice" element of first degree murder denotes condition of mind which is manifested by intentionally doing wrongful act without just cause or excuse. State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).
"Malice" element of first and second-degree murder denotes condition of mind which is manifested by intentionally doing wrongful act without just cause or excuse. State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996).
Second-degree murder is distinguishable from first-degree murder only in absence of requirement of deliberation and premeditation. State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996).
Information which alleged that defendant committed second-degree murder but did not allege that act was committed with malice failed to allege essential element of crime, and thus constituted plain error entitling defendant to new trial because error resulted in defendant pleading guilty to information that did not sufficiently charge him with crime. State v. Hall, 249 Neb. 376, 543 N.W.2d 462 (1996).
Malice is an element of second-degree murder. Omission of malice as an element of second-degree murder in an information constitutes plain error. State v. Randall, 249 Neb. 718, 545 N.W.2d 94 (1996).
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PLAIN ERROR:
An appellate court always reserves the right to note plain error of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, or fairness of the judicial process. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003), State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003), State v. Davlin, 263 Neb. 283, 639 N.W.2d 631 (2002).
To use a procedural default or waiver as a means of ignoring a plain error that results in an unconstitutional incarceration would place form over substance; would damage the integrity, reputation, and fairness of the judicial process; and would render the plain error doctrine and postconviction relief remedies meaningless. State v. Burlinson, 255 Neb. 190, 583 NW.2d 31 (1998), State v. Hall, 249 Neb. 376, 543 N.W.2d 462 (1996) (rev’d on other grounds); State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996).
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PLEA:
Where the record discloses that a plea of guilty was understandingly and voluntarily entered, it is not subject to postconviction relief. State v. Gagliano, 231 Neb. 911, 438 N.W.2d 783 (1989).
A guilty plea must be knowingly and voluntarily entered because the plea involves the waiver of certain constitutional rights. State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002).
A guilty plea must represent the informed, self-determined choice of the defendant among practicable alternatives; a guilty plea cannot be a conscious, informed choice is the accused relies upon counsel who performs ineffectively in advising the defendant regarding the consequences of entering a guilty plea and the feasible options. U.S. Cont. Amend. 6, Neb. Const. art. 1, § 11. State v. Zarate, 264 Neb. 690, 651 N.W.2d 215 (2002). The record must establish a factual basis for a guilty plea and that the defendant knew the range of penalties for the crime charge. State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
When a conviction involves a guilty plea, the prejudice requirement is satisfied if the defendant shows a reasonable probability that, but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty. State v. Escamilla, 245 Neb. 13, 511 N.W.2d 58 (1994); State v. Johnson, 243 Neb. 758, 502 N.W.2d 477 (1993). See also State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995).
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RIGHT TO COUNSEL:
The assistance of counsel provision in the federal Constitution only applies to direct appeals. State v. Beccera, 263 Neb. 753, 642 N.W.2d 143 (2002).
A defendant has no federal constitutional right to counsel when attacking a conviction that has long since become final upon exhaustion of the appellate process. State v. Stewart, 242 Neb. 712, 496 N.W.2d 524 (1993) (overruling State v. Harper, 214 Neb. 911, 336 N.W.2d 597 (1983), to extent it implies that Anders procedures must be followed in postconviction proceedings in which counsel files a motion to withdraw on the grounds that an appeal is wholly frivolous.)
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SUBSTITUTE FOR APPEAL:
A motion for postconviction relief cannot be secure review of issues that were or should have been raised on direct appeal. State v. Lotter, 266 Neb. 245, 664 N.W.2d 892(2002), State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002).
A motion for post-conviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased. State v. Jones, 264 Neb. 271, 650 N.W.2d 798 (2002), State v. Nesbitt, 264 Neb. 612, 650 NW.2d 766 (2002).
A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and which were or could have been litigated on direct appeal. State v. Ortiz, 266 Neb. 959, 670 N.W.2d 788 (2003), State v. Nesbitt, 264 Neb. 612, 650 NW.2d 766 (2002).
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