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State v. Determan

Supreme Court of Nebraska

January 29, 2016

STATE OF NEBRASKA, APPELLEE,
v.
AARON L. DETERMAN, APPELLANT

Page 391

Petition for further review from the Court of Appeals, INBODY, RIEDMANN, and BISHOP, Judges, on appeal thereto from the District Court for Saline County, VICKY L. JOHNSON, Judge.

Jeffrey A. Gaertig, of Carlson, Schafer & Davis, P.C., L.L.O., for appellant.

Aaron L. Determan, Pro se.

Douglas J. Peterson and Jon Bruning, Attorneys General, Nathan A. Liss, and Melissa R. Vincent for appellee.

WRIGHT, CONNOLLY, CASSEL, and STACY, JJ. HEAVICAN, C.J., and MILLER-LERMAN, J., participating on briefs.

OPINION

Page 392

[292 Neb. 558] Per Curiam.

INTRODUCTION

Aaron L. Determan's motion for postconviction relief was granted in part, and in part denied. Determan appealed the portion of the district court's order denying relief. The Nebraska Court of Appeals vacated that portion of the district court's order denying relief and remanded the cause for further proceedings. The primary issue presented by this appeal is what procedure the district court should follow when considering a postconviction motion that raises both an allegation that trial counsel was ineffective for failing to file a direct appeal and other ineffective assistance of counsel claims.

Page 393

FACTUAL BACKGROUND

Determan pled guilty to one count of unlawful manufacture or distribution of a controlled substance. He was sentenced to 8 to 10 years' imprisonment. Determan's direct appeal was dismissed on June 28, 2013, in case No. A-13-441, because his poverty affidavit was untimely filed.

On August 16, 2013, Determan filed a motion for postconviction relief alleging that his counsel was ineffective in failing to (1) file a direct appeal, (2) object to the denial of Determan's motion to postpone sentencing, (3) advise Determan of the strength and weakness of the State's evidence, [292 Neb. 559] (4) argue mitigating factors at sentencing, and (5) object when the State violated the terms of the plea agreement by making a statement at sentencing.

The district court granted Determan an evidentiary hearing on the allegation regarding Determan's direct appeal, but denied the remaining allegations. In denying those allegations, the district court concluded that Determan ...


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