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
Postconviction: Appeal and Error. In appeals from
postconviction proceedings, an appellate court independently
resolves questions of law.
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
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.
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
Constitutional Law: Effectiveness of Counsel. A proper
ineffective assistance of counsel claim alleges a violation
of the fundamental constitutional right to a fair trial.
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.
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.
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.
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.
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
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.
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.
from the District Court for Hall County: Teresa K. Luther,
Judge. Affirmed in part, and in part vacated and remanded for
Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom &
Stehlik, PC, L.L.O., for appellant.
Neb.App. 853] Douglas J. Peterson, Attorney General, Kimberly
A. Klein, and, on brief, George R. Love, for appellee.
Chief Judge, and Pirtle ...