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
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.
Postconviction: Appeal and Error. Whether a claim raised in a
postconviction proceeding is procedurally barred is a
question of law.
Judgments: Appeal and Error. When reviewing questions of law,
an appellate court resolves the questions independently of
the lower court's conclusion.
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.
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.
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.
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.
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
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.
from the District Court for Jefferson County: Paul W.
J. Koenig, of Koenig Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
Chief Judge, and Inbody and Riedmann, Judges.
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.
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.
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.
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.
Motion for Postconviction Relief
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.
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 ...