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State v. Hessler

Supreme Court of Nebraska

October 28, 2016

State of Nebraska, appellee,
v.
Jeffrey Hessler, appellant.

         Appeal from the District Court for Scotts Bluff County: Randall L. Lippstreu, Judge. Affirmed.

          Alan G. Stoler and Jerry M. Hug, of Alan G. Stoler, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and James D. Smith for appellee.

          Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Miller-Lerman, J.

         NATURE OF CASE

         Jeffrey Hessler appeals the order of the district court for Scotts Bluff County which overruled his motion for postconviction relief and denied his petition for a writ of error coram nobis. Hessler claimed that he had received ineffective assistance of trial counsel and was not competent to enter the plea on which his conviction for first degree sexual assault on a child was based. We affirm.

         II. STATEMENT OF FACTS

         In 2003, Hessler pled no contest to a charge of first degree sexual assault on a child. Hessler had been charged with sexually assaulting J.B., a girl under 16 years of age, on August 20, 2002. The district court accepted Hessler's plea and sentenced him to imprisonment for 30 to 42 years. No direct appeal was taken from the conviction and sentence.

         While Hessler was facing the charge in that first case, he was also facing charges in a second case: first degree murder, kidnapping, first degree sexual assault on a child, and use of a firearm in connection with the assault and death of another girl under 16 years of age, Heather Guerrero. Hessler pled no contest in the first case before the jury trial was held in the second case. Following the jury trial in the second case, Hessler was convicted and sentenced to death for Guerrero's murder. Hessler's convictions and sentences for the charges relating to Guerrero were affirmed on direct appeal to this court. State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007). This court also affirmed the overruling of Hessler's subsequent motions for postconvction relief relating to such convictions. State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011) (first postconviction motion); State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014) (second postconviction motion and motion for writ of error coram nobis).

         On August 24, 2012, Hessler filed a pleading he titled as "Verified Motion for Postconviction Relief and Petition for Writ of Error Coram Nobis" in the instant case involving the sexual assault of J.B. That filing gives rise to the present appeal. Hessler alleged that the claims set forth in the filing entitled him to postconviction relief or, in the alternative, a writ of error coram nobis.

         The district court determined that Hessler was entitled to an evidentiary hearing on claims which the court characterized as follows:

         (1) a claim that Hessler was not competent to enter a plea of no contest, because at the time of the plea "he was suffering from bipolar disorder, severe, with psychotic features"; and

         (2) claims that trial counsel was ineffective in

         (a) "[f]ailing to investigate, raise, and prove" a claim that Hessler was not competent to enter a plea of no contest;

         (b) "[a]dvising Hessler to plead 'no contest'";

         (c) "[a]dvising Hessler that a plea of 'no contest' [in this case] would benefit him" by providing him with a double jeopardy defense to the pending charges involving the assault and death of Guerrero;

         (d) "[f]ailing to investigate, discover, and present mitigating evidence at the sentencing hearing"; and

         (e) "[f]ailing to advise Hessler to file a direct appeal" or to advise him that he "had a right to appeal and a right to counsel to pursue his appeal."

         At the evidentiary hearing, the court received evidence including, inter alia, depositions of the two attorneys who had represented Hessler in the original conviction, depositions of a psychologist and a psychiatric nurse who had worked with Hessler in 2003, and the deposition of a psychiatrist who had reviewed Hessler's records and had met with Hessler in 2012 and 2013. Hessler did not testify. Following the evidentiary hearing, the court rejected all of Hessler's claims, overruled his motion for postconviction relief, and denied his petition for a writ of error coram nobis.

         With regard to the claim that Hessler was not competent to enter a plea of no contest, the court noted that both attorneys who had represented Hessler in the original conviction were experienced criminal defense attorneys and that both had determined there was nothing indicating that Hessler was not competent to stand trial or that a mental health defense would be successful. The court noted trial counsel had stated that Hessler "was able to provide counsel with background information" and that he "appeared reasonably intelligent and appeared to understand the evidence and strategy of the case."

         The court further noted that the psychologist who treated Hessler at the time of the conviction stated that although Hessler "suffered from a bi-polar mood disorder, depression, and paranoid delusional disorder, " Hessler still "understood the release he signed, understood the potential consequences of his charges, " "understood he was charged with sexual assault[, ] and knew he was going to plead and would go to the penitentiary." The court noted the psychologist also stated that at the time of the plea, Hessler "was well aware of who [trial counsel] was and understood [trial counsel's] role in the case." The court further noted that the psychiatric nurse who treated Hessler stated that the medications he was given to treat his bipolar depression would clear his thinking such that he would be '"more in reality'" and that Hessler "appeared to understand her questions and his responses were appropriate.''

         In connection with the issue pertaining to Hessler's competence to enter a plea, the court noted that Hessler presented the deposition of a psychiatrist who had been hired in connection with this postconviction action to review Hessler's records from the original conviction in 2003. Although the psychiatrist opined that in 2003, Hessler was "depressed" and had "paranoid thinking, " the court noted that the psychiatrist stated he did not have adequate information to form a definitive opinion on "what [e]ffect [such conditions] would have on Hessler's ability for rational choices about entering a plea of no contest."

         Considering the evidence presented, the court concluded that "Hessler's evidence failed to demonstrate a reasonable probability that he was, in fact, incompetent to enter a plea of no-contest to sexually assaulting J.B., or that the trial court would have found him incompetent had a competency hearing been conducted." The court further determined that because the record showed Hessler to be competent, "his counsel could not have been ineffective in not raising an issue of competency."

         The court then considered Hessler's other claims directed at ineffective assistance of counsel. Regarding Hessler's claim that counsel was ineffective for advising him to plead no contest, the court noted that prior to trial in this case, counsel knew "(1) that Hessler had confessed to the sexual assault of J.B., (2) efforts to suppress Hessler's confession had not been successful, and (3) DNA testing had scientifically confirmed his confession." The court also noted that "Hessler had advised [counsel] early on that he did not want a trial in the J.B. sexual assault case." The court further noted that the same counsel who represented Hessler in this case represented him in connection with the charges related to the assault and killing of Guerrero. Counsel knew that Hessler would be at risk of a death sentence for the murder of Guerrero and that the State would attempt to use the sexual assault of J.B. to prove an aggravating circumstance in the murder trial. The postconviction court found that "counsel embarked on a global strategy encompassing both cases with the ultimate goal of saving [Hessler's] life." Because counsel had determined that there was "no viable defense to the J.B. sexual assault case, " counsel attempted to "preclude use of the sexual assault of J.B. as an aggravating circumstance in the [Guerrero] homicide case."

         Counsel's strategy was to have "a final conviction and sentence in the sexual assault case [involving J.B.] prior to trial in the homicide case [involving Guerrero]" and then "to later present a double jeopardy / plea in bar argument against its use as an aggravating circumstance in the homicide trial." The court noted that counsel had explained this strategy to Hessler and had advised him that the double jeopardy or plea in bar "theory was ...


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