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State v. Agok

Court of Appleals of Nebraska

November 10, 2014

STATE OF NEBRASKA, APPELLEE,
v.
AGOK AROK AGOK, APPELLANT

Page 73

Appeal from the District Court for Hall County: JAMES D. LIVINGSTON, Judge. Reversed and remanded with directions.

REVERSED AND REMANDED WITH DIRECTIONS.

Agok Arok Agok, Pro se.

Jon Bruning, Attorney General, and George R. Love for appellee.

MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.

OPINION

Page 74

[22 Neb.App. 537] Riedmann, Judge.

INTRODUCTION

Agok Arok Agok appeals from the order of the district court for Hall County dismissing his motion for postconviction relief without an evidentiary hearing. Because we find that Agok was denied his constitutional right to be represented by counsel on direct appeal, we reverse the dismissal of Agok's motion for postconviction relief and remand the matter to the district court with directions to grant Agok a new direct appeal and to appoint new counsel to represent him for such appeal.

BACKGROUND

In April 2013, Agok was convicted by a jury of terroristic threats and use of a weapon to commit a felony. He was sentenced to concurrent prison terms of 1 to 2 years and 5 to 8 years, respectively. After sentencing, Agok's trial counsel, a deputy public defender, informed Agok that she would not be able to represent him on appeal due to his claim that she provided ineffective assistance of counsel. She did, however, assist him in preparing and filing the necessary documents to perfect his appeal.

Agok, appearing pro se, timely filed a notice of appeal, an application to proceed in forma pauperis, and a poverty affidavit, as well as a document titled " Assignment of Errors," listing ineffective assistance of trial counsel as the sole error assigned. [22 Neb.App. 538] The district court granted Agok's application to proceed in forma pauperis, and his appeal was docketed in this court as case No. A-13-578.

After his appeal was perfected, Agok filed a pro se motion for the appointment of new counsel in the district court. The district court entered an order the following day stating that the appellate court obtained exclusive jurisdiction over the case upon the filing of his notice of appeal and that therefore, any motions must be made to the appellate court. Accordingly, Agok filed a subsequent pro se motion for appointment of counsel in this court, which we " [o]verruled without prejudice to filing in the sentencing ...


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