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State v. Collins

Supreme Court of Nebraska

January 29, 2016

STATE OF NEBRASKA, APPELLEE,
v.
FREDRICK A. COLLINS, JR., APPELLANT

Page 658

Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge.

Thomas C. Riley, Douglas County Public Defender, and Mary Mullin Dvorak for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, CASSEL, and STACY, JJ.

OPINION

Page 659

[292 Neb. 603] Heavican, J.

I. INTRODUCTION

Fredrick A. Collins, Jr., was convicted of first degree sexual assault of a person at least 12 but less than 16 years of age, pursuant to Neb. Rev. Stat. § 28-319(1)(c) (Reissue 2008). His direct appeal was dismissed due to the untimely payment of his docket fee. Collins then filed a motion for postconviction relief, alleging that his trial counsel was ineffective for failing to timely file a direct appeal, and also alleging that trial counsel was ineffective in other ways. The district court denied most of his motion without a hearing, but, following an evidentiary hearing, awarded Collins a new direct appeal. This is that appeal.

[292 Neb. 604] II. FACTUAL BACKGROUND

Collins was originally charged with first degree sexual assault of a child and third degree sexual assault of a child. Pursuant to a plea agreement, Collins pled no contest

Page 660

to first degree sexual assault, pursuant to § 28-319(1)(c). On June 26, 2013, he was sentenced to 10 to 15 years' imprisonment, with credit for 396 days' time served. The child in question was Collins' 12-year-old stepdaughter. The record shows that various incidents of sexual abuse--including walking around naked, masturbating in front of the victim, inappropriately touching the victim, and, eventually, digitally penetrating the victim--took place for over a year.

Collins filed a notice of appeal with the Nebraska Court of Appeals, but it was dismissed due to the lack of payment of a docket fee or the granting of in forma pauperis status.

On June 20, 2014, Collins filed a motion seeking postconviction relief. In that motion, Collins alleged that his trial counsel was ineffective (1) for failing to file a direct appeal and (2) for various actions made or not made at trial. On September 16, the district court granted Collins' request for an evidentiary hearing on his allegation regarding his direct appeal, and denied a hearing with respect to the remainder of Collins' allegations. In so denying, the district court concluded that either Collins' allegations were insufficiently pled because he did not allege how he was prejudiced or the allegations were not supported by the record.

Following an evidentiary hearing, on January 7, 2015, the district court granted Collins a new direct appeal. That appeal was filed on February 3. In the appeal, Collins assigns that his sentence was excessive and that his trial counsel was ineffective in various ways, all of which were raised in Collins' original postconviction motion. At no point did Collins appeal from the ...


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