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State v. Filholm

Supreme Court of Nebraska

March 28, 2014

STATE OF NEBRASKA, APPELLEE,
v.
MARK S. FILHOLM, APPELLANT

Page 572

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Page 573

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Page 574

Petition for further review from the Court of Appeals, INBODY, Chief Judge, and IRWIN and RIEDMANN, Judges, on appeal thereto from the District Court for Lancaster County, KAREN B. FLOWERS, Judge.

Peter K. Blakeslee for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 575

[287 Neb. 764] Cassel, J.

I. INTRODUCTION

Mark S. Filholm was convicted and sentenced for first degree sexual assault. On direct appeal, Filholm raised seven claims of ineffective assistance of trial counsel. The Nebraska Court of Appeals found three of his claims to be without merit for failure to allege prejudice.[1] We granted further review primarily to address whether, on direct appeal, allegations of prejudice are required to assert claims of ineffective assistance of trial counsel. Because resolution of such claims turns upon [287 Neb. 765] the sufficiency of the record, specific allegations of the deficient conduct are required. But allegations of prejudice are not necessary on direct appeal. In these three instances, the record is not sufficient to review the claim. We modify the Court of Appeals' decision accordingly, and as so modified, we affirm the court's decision.

II. BACKGROUND

The charges against Filholm arose out of the sexual assault of A.B. in her home in the early morning of June 25, 2011. The jury returned a verdict finding Filholm guilty of first degree sexual assault, and he appealed. Although he had been represented by counsel from the Lancaster County public defender's office at trial, Filholm obtained different appellate counsel.

On appeal, Filholm claimed that he received ineffective assistance of counsel at trial in seven respects. He claimed that his trial counsel was ineffective for failing to (1) consult and present the testimony of a DNA expert witness and effectively cross-examine the State's expert witness, (2) obtain video surveillance footage from a bar and interview two witnesses who could establish his presence at that bar on the night of the assault, (3) file a motion for new trial alleging juror misconduct, (4) call witnesses who could explain the presence of A.B.'s DNA on his fingers, (5) object to improper refreshing of a witness' recollection at trial, (6) move for mistrial when two of the State's witnesses used the term " victim," and (7) file a motion in limine to prevent use of the term " rape" and take appropriate measures when the term was used at trial.

The Court of Appeals rejected Filholm's ineffective assistance of counsel claims. In several instances, the court concluded either that his claims were without merit or that the record was insufficient for review. However, as to three of his claims, the court found his allegations " to be insufficient because he fails to allege how he was prejudiced by his counsel's performance." [2]

[287 Neb. 766] Filholm further alleged that his conviction was not supported by sufficient evidence. The Court of Appeals rejected this claim and affirmed his conviction and sentence.

Filholm petitioned for further review, which we granted. We directed the parties to file supplemental briefs on the necessary

Page 576

specificity for allegations of prejudice in ineffective assistance of counsel claims made on direct appeal. After supplemental briefs were filed, we heard oral arguments.

III. ASSIGNMENTS OF ERROR

Filholm assigns, reordered, that the Court of Appeals erred in (1) finding that he was not denied effective assistance of counsel and (2) finding that his ...


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