Appeal from the District Court for Lancaster County:
KAREN B. FLOWERS, Judge.
Nancy K. Peterson for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
Heavican, C.J., Wright, Conolly, Stephan, McCormack, and, Miller-Lermnan, JJ.
Syllabus by the Court
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court's decision.
2. Postconviction. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law.
3. Effectiveness of Counsel: Appeal and Error. A petitioner's claim that his or her defense counsel provided ineffective assistance presents a mixed question of law and fact. An appellate court reviews factual findings for clear error. Whether the defense counsel's performance was deficient and whether the petitioner was prejudiced by that performance are questions of law that the appellate court reviews independently of the lower court's decision.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.
5. Postconviction: Final Orders. Within a postconviction proceeding, an order granting an evidentiary hearing on some issues and denying a hearing on others is a final order as to the claims denied without a hearing.
6. Postconviction: Final Orders. An order denying an evidentiary hearing on a postconviction claim is a final judgment as to that claim.
7. Postconviction: Time: Appeal and Error. Under Neb.Rev.Stat. § 25-1912 (Reissue 2008), a notice of appeal must be filed on postconviction claims within 30 days.
8. Right to Counsel: Plea Bargains. The plea-bargaining process presents a critical stage of a criminal prosecution to which the right to counsel applies.
9. 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.
10. Effectiveness of Counsel: Proof. 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.
11. Effectiveness of Counsel: Presumptions. In determining whether trial counsel's performance was deficient, courts give counsel's acts a strong presumption of reasonableness.
12. Effectiveness of Counsel: Proof. 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.
[287 Neb. 478] 13. 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.
14. Effectiveness of Counsel: Plea Bargains. As a general rule, defense counsel has the duty to communicate to the defendant all formal offers from the prosecution to accept a plea on terms ...