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State v. Mesadieu

Court of Appeals of Nebraska

August 27, 2013

State of Nebraska, appellee,
v.
Michael Mesadieu, appellant.

1. Postconviction: Proof: Appeal and Error. A defendant requesting postconviction relief must establish the basis for such relief and the findings of the district court will not be disturbed unless they are clearly erroneous.

2. Effectiveness of Counsel A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

3. Postconviction: Appeal and Error. On appeal from a proceeding for postconviction relief, the trial court's findings of fact will be upheld unless such findings are clearly erroneous.

4. Effectiveness of Counsel: Appeal and Error. Determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law that we review independently of the lower court's decision.

[21 Neb.App. 198] 5. Records: Appeal and Error. It is the responsibility of the party appealing to have included within the bill of exceptions matters from the record which it believes material to the issues presented for review. Absent such a record, as a general rule, the decision of the lower court as to the assigned errors is to be affirmed.

6. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel at trial or on direct appeal, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case.

7. Effectiveness of Counsel: Proof: Appeal and Error. In order to show prejudice due to ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

8. Effectiveness of Counsel: Proof. The two prongs of the ineffective assistance test, deficient performance and prejudice, may be addressed in either order.

9. Pleas: Waiver. Normally, a voluntary guilty plea waives all defenses to a criminal charge.

10. Postconviction: Pleas: Effectiveness of Counsel In a postconviction action brought by a defendant convicted because of a guilty plea or a plea of no contest, a court will consider an allegation that the plea was the result of ineffective assistance of counsel.

11. Effectiveness of Counsel: Pleas: Proof. Within the plea context, in order to satisfy the prejudice requirement to establish an ineffective assistance of counsel claim, the defendant must show that there is a reasonable probability that but for counsel's errors, he or she would not have pleaded guilty and would have insisted on going to trial.

12. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. When a court denies relief without an evidentiary hearing, the appellate court must determine whether the petitioner has alleged facts that would support a claim of ineffective assistance of counsel and, if so, whether the files and records affirmatively show that he is entitled to no relief.

13. Effectiveness of Counsel: Pleas: Proof. Self-serving declarations that a defendant would have gone to trial will not be enough; a defendant must present objective evidence showing a reasonable probability that he or she would have insisted on going to trial.

14. Constitutional Law: Appeal and Error. A constitutional issue not presented to or passed upon by the trial court is generally not appropriate for consideration on appeal.

Appeal from the District Court for Douglas County: W. ...


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