[Copyrighted Material Omitted]
Appeal from the District Court for Dodge County: GEOFFREY C. HALL, Judge.
Nicholas E. Wurth, of Law Offices of Nicholas E. Wurth, P.C., for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ. CASSEL, J., not participating.
[291 Neb. 363] Miller-Lerman, J.
NATURE OF CASE
Jamey M. Crawford appeals the order of the district court for Dodge County which denied his motion for postconviction [291 Neb. 364] relief on the merits after an evidentiary hearing. As an initial matter, the State argues on appeal that although the issue was not raised in the district court, Crawford's motion should have been dismissed as untimely pursuant to the 1-year period of limitation set forth in Neb. Rev. Stat. § 29-3001(4) (Cum. Supp. 2014) of the postconviction act. We conclude that the 1-year period of limitation is an affirmative defense and that the State waived the defense when it failed to raise it in the district court. With respect to the merits, we affirm the district court's denial of Crawford's motion for postconviction relief.
STATEMENT OF FACTS
In 2011, Crawford pled guilty to possession of a controlled substance and was found to be a habitual criminal. The district court for Dodge County sentenced Crawford to imprisonment for 10 to 15 years. The Nebraska Court of Appeals affirmed Crawford's conviction and sentence. State v. Crawford, No. A-11-645, 2011 WL 399888 (Neb.App. Feb. 7, 2012) (selected for posting to court Web site). Crawford did not petition this court for further review, and therefore, the Court of Appeals filed its mandate on March 14, 2012.
On March 27, 2013, Crawford filed a pro se motion for postconviction relief in which he raised various claims. The State responded to Crawford's pro se motion by arguing the merits of Crawford's claims. In its response, the State did not raise the issue whether Crawford's motion was timely under § 29-3001(4).
The district court thereafter appointed postconviction counsel, who filed an amended motion. In the amended motion, Crawford stated that his counsel on direct appeal was different from his trial counsel and that he received ineffective assistance of appellate counsel in various respects.
Among Crawford's claims of ineffective assistance of appellate counsel was an assertion that " appellate counsel failed to assign as error, trial counsel's failure to file a motion [291 Neb. 365] to withdraw [Crawford's] guilty plea after it was made obvious that [Crawford] wished to do so." Crawford asserted that he entered the guilty plea because he was led to believe that he would be eligible to participate in a drug court program. However, Crawford alleged, trial counsel failed to advise him that he would not be eligible for drug court if he was found to be a habitual criminal. He further claimed that he likely would have been allowed to withdraw his plea prior to sentencing, because the misunderstanding regarding eligibility for drug court would have been a fair and just basis to allow withdrawal.
Crawford also claimed that in December 2011, during the pendency of his direct appeal, appellate counsel informed him that counsel would be unable to continue representing him. Crawford claimed that counsel never filed a motion to withdraw as counsel and that, as a result, Crawford " was uncertain of whether he was represented by counsel or not" when the Court of Appeals affirmed his conviction on February 7, 2012, and he was without an attorney to petition this court for further review. Crawford claimed that he would have sought further review but that the time for filing a petition for further review
had expired before he learned no substitute appellate counsel had been appointed.
After an evidentiary hearing on Crawford's motion for postconviction relief, the district court denied Crawford's claims on their merits. With regard to the claim regarding withdrawal of the plea on the basis that Crawford was not informed he was not eligible for drug court, the court stated that it was apparent on the record Crawford knew before entering his plea there was a possibility that he would not be admitted into drug court and that Crawford confirmed to the trial court he understood admission into drug court was not part of the plea agreement. The court further stated that the record showed that Crawford was aware of the potential sentence if he was found to be a habitual criminal.
[291 Neb. 366] With regard to appellate counsel's withdrawal during the pendency of the direct appeal, the court found that Crawford was not prejudiced by counsel's withdrawal. The court noted that although Crawford was informed of appellate counsel's withdrawal in December 2011, Crawford did not file a request for appointment of appellate counsel until August 2012, at which time, the request was denied because there was no appeal pending.
The district court did not on its own motion raise an issue whether Crawford's postconviction motion was timely under § 29-3001(4), nor did the court address the issue in its order denying relief.
Crawford appeals the denial of his postconviction motion.
ASSIGNMENTS OF ERROR
Crawford claims, restated, that the district court erred in denying his claims that he received ineffective assistance of counsel when (1) appellate counsel failed to assign error to trial counsel's failure to move to withdraw the plea and (2) appellate counsel failed to ensure that Crawford received substitute appellate counsel. Crawford also claims that he should be granted postconviction relief " due to the plain error that permeates the record." The State asserts that denial of ...