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State v. Vanderpool

Supreme Court of Nebraska

June 21, 2013

State of Nebraska, appellee,
v.
Patrick W.Vanderpool, appellant.

1. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. Determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law that an appellate court reviews independently of the lower court's decision. The court reviews factual findings for clear error.

2. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.

3. __: __. To show deficient performance, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area.

[286 Neb. 112] 4. __: __. To show prejudice, the defendant must demonstrate reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

5. Postconviction: Effectiveness of Counsel: Proof. The defendant has the burden in postconviction proceedings of demonstrating ineffectiveness of counsel, and the record must affirmatively support that claim.

6. Postconviction: Appeal and Error. In a postconviction motion, an appellate court will not consider as an assignment of error a claim that was not presented to the district court.

7. Postconviction: Evidence. Issues of credibility are for the postconviction court.

8. Postconviction: Effectiveness of Counsel: Sentences. Allegations of ineffective assistance which are affirmatively refuted by a defendant's assurances to the sentencing court do not constitute a basis for postconviction relief.

9. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is the result of a guilty plea or a plea of no contest, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the convicted defendant can show a reasonable probability that, but for the errors of counsel, he or she would have insisted on going to trial rather than pleading.

10. Postconviction: Effectiveness of Counsel: Proof. In the context of a claim of ineffectiveness of counsel for failure to investigate, allegations are too speculative to warrant relief if the petitioner fails to allege what exculpatory evidence that the investigation would have procured and how it would have affected the outcome of the case.

11. Licenses and Permits: Attorneys at Law: Effectiveness of Counsel. The failure to meet technical licensing requirements does not render an attorney per se ineffective.

12. __: __: __. Suspension for nonpayment of dues does not render an attorney's representation per se ineffective.

Appeal from the District Court for Douglas County: James T. Gleason, Judge.

Thomas C. Riley, Douglas County Public Defender, and Kelly M. Steenbock for appellant.

Jon Bruning, Attorney General, and Erin E. Tangeman for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ

Cassel, J.

I. INTRODUCTION

A Nebraska attorney was suspended and later disbarred for nonpayment of dues. While suspended, the attorney represented [286 Neb. 113] Patrick W.Vanderpool in a criminal case. When Vanderpool became aware of the suspension, he sought postconviction relief based upon alleged ineffective assistance of counsel. After an evidentiary hearing, the district court denied relief. The court first declined to apply a per se rule—reasoning that the attorney was qualified when admitted and was suspended solely for nonpayment of dues. After considering Vanderpool's specific claims regarding his attorney's performance, the court found that they either were affirmatively disproved ...


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