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State v. Schmidt

Court of Appeals of Nebraska

August 9, 2016

State of Nebraska, appellee,
v.
Roger K. Schmidt, Sr., appellant.

         1. Postconviction: Evidence: Witnesses: Appeal and Error. In an evidentiary hearing, as a bench trial provided by Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014) for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in evidence and questions of fact, including witness credibility and weight to be given a witness' testimony. In an appeal involving such a proceeding for postconviction relief, the trial court's findings will be upheld unless such findings are clearly erroneous.

         2. Postconviction: Proof: Appeal and Error. A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous.

         3. Postconviction: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law.

         4. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusion.

         5. Postconviction: Constitutional Law. The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014), is available to a defendant to show that his or her conviction was obtained in violation of his or her constitutional rights.

         6. Evidence: Words and Phrases. Generally, newly discovered evidence is evidence material to the defense that could not with reasonable diligence have been discovered and produced in the prior proceedings.

         7. Effectiveness of Counsel: Proof. The factual predicate for a claim concerns whether the important objective facts could reasonably have been discovered, not when the claimant should have discovered the legal significance of those facts.

          [24 Neb.App. 240]

          8. Effectiveness of Counsel: Plea Bargains. As a general rule, defense counsel has the duty to communicate to the defendant all formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the defendant.

         9. Trial: Attorney and Client: Effectiveness of Counsel: Plea Bargains. A trial counsel's failure to communicate a plea offer to a defendant is deficient performance as a matter of law.

         10. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         Appeal from the District Court for Jefferson County: Paul W. Korslund, Judge.

          Lyle J. Koenig, of Koenig Law Firm, for appellant.

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

          Moore, Chief Judge, and Inbody and Riedmann, Judges.

          MOORE, CHIEF JUDGE.

         INTRODUCTION

         Roger K. Schmidt, Sr., appeals from an order of the district court for Jefferson County denying his second motion for postconviction relief. We determine that Schmidt's second motion was barred by the limitation period set forth in the Nebraska Postconviction Act, specifically Neb. Rev. Stat. § 29-3001(4) (Cum. Supp. 2014), and therefore, we affirm the district court's order denying postconviction relief.

         BACKGROUND

         Conviction and Sentencing

         On March 14, 2007, Schmidt was convicted by jury before the district court of Jefferson County on one count of first degree sexual assault on a child in violation of Neb. Rev. Stat. § 28-319(1)(c) (Reissue 1995), a Class II felony, and four counts of sexual assault of a child in violation of Neb. Rev. Stat. § 28-320.01 (Cum. Supp. 2004), Class IIIA felonies. The [24 Neb.App. 241] jury acquitted Schmidt on one count of first degree sexual assault on a child and one count of sexual assault of a child. On May 18, Schmidt was sentenced to imprisonment for a period of 18 to 25 years for the count of first degree sexual assault and a period of 5 years for each of the four individual counts of sexual assault, with all sentences to run consecutively. Schmidt's convictions and sentences were affirmed on direct appeal. See State v. Schmidt, 16 Neb.App. 741, 750 N.W.2d 390 (2008). See, also, State v. Schmidt, 276 Neb. 723, 757 N.W.2d 291 (2008). Schmidt retained the same counsel, Kelly S. Breen, for both the original trial and his direct appeal.

         First Motion for Postconviction Relief On October 19, 2010, Schmidt, having retained new counsel, filed his first motion for postconviction relief in the district court, alleging in part ineffective assistance of trial counsel. His counsel has remained the same from this first motion through the present appeal. This motion, as supplemented, claimed that Breen failed to investigate and prepare witnesses; to mitigate potentially harmful statements; to adequately challenge various statements, testimony, and the competency of witnesses; to assert available defenses; to make necessary objections and a proper offer of proof; and to employ an expert. This motion did not allege that Breen failed to communicate a formal plea offer.

         On October 28, 2011, the district court denied this motion without an evidentiary hearing. This court affirmed the denial on appeal on March 19, 2013. See State v. Schmidt. case No. A-ll-981, 2013 WL 1111520 (Neb.App. Mar. \9, 2013) (selected for posting to court Web site). The Nebraska Supreme Court subsequently denied Schmidt's petition for further review.

         Second Motion for Postconviction Relief

         On March 13, 2014, Schmidt filed a second motion for postconviction relief based upon an alleged newly recognized [24 Neb.App. 242] constitutional right and a new allegation of ineffective assistance of counsel discovered during the pendency of the appeal of the first motion. Specifically, Schmidt asserted that the U.S. Supreme Court, for the first time in Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (both decided on March 21, 2012), identified defective performance of counsel during plea negotiations as potential ineffective assistance of counsel in violation of the Sixth Amendment to the Constitution.

         Schmidt claimed that such ineffective assistance of trial counsel occurred in his case due to Breen's alleged failure to communicate a formal plea offer proffered by the prosecutor, Linda Bauer, prior to the original trial. Specifically, Schmidt alleged that on March 26, 2012, he discovered that the State had offered a plea agreement to Breen, prior to the original trial. The plea offer would have allowed Schmidt to plead guilty to three counts of sexual contact, Class IIIA felonies, carrying a maximum penalty of 15 years' imprisonment and a $30, 000 fine during the period at issue, in exchange for all other charges being dismissed. See Neb. Rev. Stat. § 28-105(1) (Supp. 2015). Schmidt claims that Breen never communicated this plea offer to him. Schmidt further alleged that it was ...


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