Postconviction: Constitutional Law: Appeal and
Error. In appeals from postconviction proceedings,
an appellate court reviews de novo a determination that the
defendant failed to allege sufficient facts to demonstrate a
violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is
entitled to no relief.
Postconviction: Claims. Whether a claim
raised in a postconviction proceeding is procedurally barred
is a question of law.
Judgments: Appeal and Error. When reviewing
a question of law, an appellate court resolves the question
independently of the lower court's conclusion.
Postconviction: Evidence. In an evidentiary
hearing on a motion for postconviction relief, the trial
judge, as the trier of fact, resolves conflicts in the
evidence and questions of fact.
Postconviction: Evidence: Appeal and Error.
An appellate court upholds the trial court's findings in
an evidentiary hearing on a motion for postconviction relief
unless the findings are clearly erroneous.
Judgments: Appeal and Error. An appellate
court independently resolves questions of law.
Effectiveness of Counsel: Appeal and Error.
When a claim of ineffective assistance of counsel presents a
mixed question of law and fact, an appellate court reviews
the lower court's factual findings for clear error but
independently determines whether those facts show
counsel's performance was deficient and prejudiced the
Postconviction: Final Orders. Within a
postconviction proceeding, an order granting an evidentiary
hearing on some issues and denying a hearing on others is a
final, appealable order as to the claims denied without a
Neb.App. 220] 9. Postconviction: Time: Appeal and
Error. Pursuant to Neb. Rev. Stat. § 25-1912
(Reissue 2016), a defendant has just 30 days to appeal from
the denial of an evidentiary hearing; the failure to do so
results in the defendant's losing the right to pursue
those allegations further.
Postconviction: Appeal and Error. A motion
for postconviction relief cannot be used to secure review of
issues which were known to the defendant and could have been
litigated on direct appeal.
Postconviction: Effectiveness of Counsel: Appeal and
Error. To establish a right to postconviction relief
based on a claim of ineffective assistance of counsel, the
defendant has the burden, in accordance with Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984), to show that counsel's performance was
deficient; that is, counsel's performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. Next, the defendant must show that counsel's
deficient performance prejudiced the defense in his or her
Effectiveness of Counsel: Proof: Words and
Phrases. To show prejudice under the prejudice
component of the test in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the
defendant must demonstrate a reasonable probability that but
for his or her counsel's deficient performance, the
result of the proceeding would have been different. A
reasonable probability does not require that it be more
likely than not that the deficient performance altered the
outcome of the case; rather, the defendant must show a
probability sufficient to undermine confidence in the
Effectiveness of Counsel. The two prongs of
the test in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), deficient performance
and prejudice, may be addressed in either order.
Constitutional Law: Criminal Law: Trial:
Witnesses. The Confrontation Clause of the Sixth
Amendment to the U.S. Constitution provides that in all
criminal prosecutions, the accused shall enjoy the right to
be confronted with the witnesses against him or her. The 14th
Amendment makes the guarantees of this clause obligatory upon
Constitutional Law: Trial: Witnesses. The
Confrontation Clause guarantees the accused's right to be
present in the courtroom at every stage of his or her trial.
Trial: Due Process. The general rule is that
an accused has a right to be present at all stages of the
trial where his absence might frustrate the fairness of the
Trial: Due Process: Waiver. A defendant has
a right to be present at all times when any proceeding is
taken during the trial, from impaneling of [25 Neb.App. 221]
the jury to the rendition of the verdict, inclusive, unless
he has waived such right.
Trial: Waiver. If a defendant is to
effectively waive his or her presence at trial, that waiver
must be knowing and voluntary.
Constitutional Law: Juror Qualifications.
Voir dire plays a critical function in assuring a criminal
defendant that his or her constitutional right to an
impartial jury will be honored.
Trial: Attorneys at Law: Effectiveness of Counsel:
Appeal and Error. When reviewing claims of alleged
ineffective assistance of counsel, an appellate court affords
trial counsel due deference to formulate trial strategy and
Effectiveness of Counsel: Presumptions: Appeal and
Error. There is a strong presumption that counsel
acted reasonably, and an appellate court will not
second-guess reasonable strategic decisions.
Effectiveness of Counsel: Judgments: Appeal and
Error. Even if found unreasonable, error owing to
ineffective assistance of counsel justifies setting aside the
judgment only if there was prejudice.
from the District Court for Furnas County: James E. Doyle IV,
J. Davis, of Berreckman & Davis, PC, for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
Chief Judge, and Bishop and Arterburn, Judges.