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State v. Hessler

Supreme Court of Nebraska

July 25, 2014

STATE OF NEBRASKA, APPELLEE,
v.
JEFFREY A. HESSLER, APPELLANT

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Page 780

Appeal from the District Court for Scotts Bluff County: RANDALL L. LIPPSTREU, Judge.

Alan G. Stoler and Jerry M. Hug, of Alan G. Stoler, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, James D. Smith, and, on brief, J. Kirk Brown for appellee.

WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ., and INBODY, Chief Judge. HEAVICAN, C.J., not participating.

OPINION

Page 781

[288 Neb. 672] Cassel, J.

I. INTRODUCTION

Jeffrey A. Hessler appeals the order of the district court denying his second action for postconviction relief and a writ of error coram nobis. All of his claims--relating to mental competency, errors or misconduct at trial, and ineffective assistance of counsel--were or could have been litigated on direct appeal or in his first postconviction action. Thus, they were procedurally barred. And his reference to two recent decisions of the U.S. Supreme Court provides no basis to deviate from our procedural rules. Finally, he failed to raise any basis warranting coram nobis relief. We affirm.

II. BACKGROUND

Hessler was convicted of first degree murder, kidnapping, first degree sexual assault on a child, and use of firearm to commit a felony for the sexual assault and killing of 15-year-old Heather Guerrero. He was sentenced to death on the murder conviction and various terms of imprisonment on the other convictions. The circumstances which led to Hessler's convictions and sentences may be found in State v. Hessler. [1]

We affirmed Hessler's convictions and sentences on direct appeal.[2] We summarized the assignments of error raised in his appellate brief, in pertinent part, as follows:

[288 Neb. 673] [T]he district court erred in . . . (3) failing to excuse for cause potential jurors who had formed opinions regarding

Page 782

Hessler's guilt; (4) overruling his motion to change venue; [and] (7) granting his request to waive counsel and appear pro se at sentencing and failing to make a determination regarding his competency to waive counsel.[3]

After we affirmed his convictions and sentences, Hessler filed his first action for postconviction relief. In his first post-conviction motion, Hessler asserted claims related to ineffective assistance of trial and appellate counsel, errors at trial, and prosecutorial misconduct. He claimed that his trial counsel was ineffective for failing to take various actions regarding his mental competency, juror bias, and venue. And he alleged that his appellate counsel was ineffective for failing to raise and argue those issues. Finally, he asserted that the trial court erred by failing to order a competency evaluation and that the State committed prosecutorial misconduct by failing to suggest such an evaluation.

The district court ordered an evidentiary hearing on the sole issue of whether Hessler's trial counsel was ineffective for failing to raise the issue of competency after Hessler's convictions but prior to the determination of any mitigating factors and sentencing. Before the mitigation portion of the sentencing phase began, Hessler moved the court to proceed pro se. He had been represented by counsel up until that point. The court ultimately rejected Hessler's ineffective assistance claim, finding that the record affirmatively showed that he was competent. It therefore denied postconviction relief. We affirmed the denial of postconviction relief on appeal.[4]

Hessler then filed the present, second motion for postconviction relief. As noted above, the claims asserted in the present motion related to mental competency, errors or misconduct at trial, and ineffective assistance of counsel. The district court summarized Hessler's 17 claims as follows:

[288 Neb. 674] 1. Custodial statement made on February 11, 2003, and February 12, 2003[,] violated Hessler's constitutional rights. A mental disease prevented Hessler from knowingly and intelligently waiving his constitutional right to remain silent.
2. Hessler was denied a fair and impartial jury due to pretrial publicity and the trial court's denial of his motion to change venue.
3. Hessler's waiver of counsel violated his constitutional rights. Mental illness rendered Hessler incompetent to waive counsel.
4. Hessler's waiver of his right to be present in court was invalid. Hessler's mental illness rendered him incompetent to waive his ...

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