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State v. Kolbjornsen

Court of Appeals of Nebraska

July 3, 2017

State of Nebraska, appellee,
v.
Frantz G. Kolbjornsen, 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 2016) for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the 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: Appeal and Error. In appeals from postconviction proceedings, an appellate court independently resolves questions of law.

         3. Effectiveness of Counsel: Appeal and Error. Determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law that an appellate court reviews independently of the lower court's decision.

         4. Postconviction: Judgments: Constitutional Law. The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016), provides that postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable.

         5. Postconviction: Effectiveness of Counsel: Appeal and Error. In a postconviction proceeding, the district court should first address the claim that counsel was ineffective for failing to file a direct appeal, including holding an evidentiary hearing, if required. Upon reaching its decision, the district court should enter a final order on that claim only. If the claim for a new direct appeal is denied, a defendant should be permitted to appeal that denial. Only after the resolution of [24 Neb.App. 852] that appeal, or, alternatively, the expiration of the defendant's time to appeal, should the district court proceed to consider the remaining claims.

         6. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

         7. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant.

         8. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and Error. After a trial, conviction, and sentencing, if counsel deficiently fails to file or perfect an appeal after being so directed by the criminal defendant, prejudice will be presumed and counsel will be deemed ineffective, thus entitling the defendant to postconviction relief.

         9. Fees: Appeal and Error. Neb. Rev. Stat. § 25-1912 (Reissue 2016), applicable to civil and criminal appeals, generally provides that an appeal may be taken by filing a notice of appeal and depositing the required docket fee with the clerk of the district court.

         10. Jurisdiction: Affidavits: Fees: Appeal and Error. A poverty affidavit serves as a substitute for the docket fee otherwise required upon appeal, and an in forma pauperis appeal is perfected when the appellant timely files a notice of appeal and a proper affidavit of poverty.

         11. Affidavits: Appeal and Error. The impoverished appellant, not her or his attorney, must execute the affidavit which substitutes for the payment of fees and costs and the posting of security.

         12. Effectiveness of Counsel: Proof. To show deficient performance, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.

         13. Effectiveness of Counsel: Presumptions: Appeal and Error. The entire effectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable and that even if found unreasonable, the error justifies setting aside the judgment only if there was prejudice.

         Appeal from the District Court for Hall County: Teresa K. Luther, Judge. Affirmed in part, and in part vacated and remanded for further proceedings.

          Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom & Stehlik, PC, L.L.O., for appellant.

         [24 Neb.App. 853] Douglas J. Peterson, Attorney General, Kimberly A. Klein, and, on brief, George R. Love, for appellee.

          Moore, Chief Judge, and Pirtle ...


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