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State v. Abdullah

Supreme Court of Nebraska

September 26, 2014

STATE OF NEBRASKA, APPELLEE,
v.
ALI J. ABDULLAH, APPELLANT

Page 859

[Copyrighted Material Omitted]

Page 860

Petition for further review from the Court of Appeals, INBODY, Chief Judge, and IRWIN and MOORE, Judges, on appeal thereto from the District Court for Lancaster County, STEVEN D. BURNS, Judge.

Dennis R. Keefe, Lancaster County Public Defender, John C. Jorgensen, and, on brief, Elizabeth D. Elliott, for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

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

OPINION

Page 861

[289 Neb. 124] McCormack, J.

NATURE OF CASE

Ali J. Abdullah was convicted in a bench trial of first degree assault. With counsel different from his trial counsel, Abdullah appealed to the Nebraska Court of Appeals. Abdullah argued that there was insufficient evidence to support the conviction and that the sentence was excessive. Abdullah also raised three points of ineffective assistance of trial counsel, expressly to avoid waiver of those issues for a future postconviction motion. In a memorandum opinion filed July 11, 2013, the Court of Appeals found no merit to the claims of insufficiency of the evidence and excessive sentence. The Court of Appeals also found Abdullah's ineffective assistance of counsel claims lacked " merit," because Abdullah made insufficient allegations of

Page 862

fact that would support findings of prejudice. We granted further review, primarily to address the question of [289 Neb. 125] whether Abdullah sufficiently alleged his ineffective assistance of counsel claims.

BACKGROUND

Abdullah's first degree assault conviction arises from a fight between Abdullah and Adrian Jacob, who had previously been in a relationship with Abdullah's girlfriend. The fight occurred in the parking lot of the girlfriend's apartment complex.

Jacob testified that when he attempted to shake hands with Abdullah, Abdullah tried to punch him in the face. After some wrestling, the girlfriend yelled for them to stop. Jacob testified that he stopped fighting and dropped his hands. At that point, Abdullah head butted him and broke his eye socket.

Abdullah testified that Jacob attacked him first by slapping him in the face. Then, in the course of wrestling with Jacob to defend himself, they found themselves underneath one of the apartment's balconies. According to Abdullah, Jacob accidentally hit his own face against one of the balcony's wooden support beams.

At the sentencing hearing, Abdullah's trial counsel asked the court to " consider running [the assault sentence] consecutive to the federal case . . . but we would ask the Court to consider the totality of the circumstances and a sentence toward the lower end of the statutory scheme." Abdullah was serving a federal sentence of 24 months for a parole violation arising from the same assault. The trial court sentenced Abdullah to 6 to 10 years' imprisonment, to be served consecutively to any other sentence Abdullah was serving. Abdullah has a criminal history, including two prior convictions for assault.

Abdullah had private counsel at trial, but was represented by the public defender on appeal. The public defender argued on appeal that the trial court erred in convicting Abdullah upon insufficient evidence and in imposing an excessive sentence. The public defender also raised three issues of ineffective assistance of trial counsel and asked the Court of Appeals to review the bill of exceptions and transcript to determine whether there was a sufficient record to evaluate those claims on direct appeal or whether an additional evidentiary hearing [289 Neb. 126] was necessary. The public defender indicated that he did not believe the ineffective assistance of counsel issues could be determined upon the trial record, but he raised those issues so that they would not later be deemed waived for purposes of a postconviction motion. The public defender generally asserted as to all three alleged acts of ineffective assistance of trial counsel that " there is a reasonable probability that but for [Abdullah's] counsel's performance, the result of the proceedings would have been different." [1]

The Court of Appeals held that the weight and credibility of the conflicting testimony was a matter for the trial court and that, therefore, the evidence ...


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