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State v. Huff

Court of Appeals of Nebraska

October 31, 2017

State of Nebraska, appellee,
v.
Herchel Harold Huff, appellant.

         1. 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.

         2. Postconviction: Claims. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law.

         3. Judgments: Appeal and Error. When reviewing a question of law, an appellate court resolves the question independently of the lower court's conclusion.

         4. 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.

         5. 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.

         6. Judgments: Appeal and Error. An appellate court independently resolves questions of law.

         7. 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 defendant.

         8. 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 hearing.

         [25 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.

         10. 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.

         11. 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 case.

         12. 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 outcome.

         13. 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.

         14. 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 the states.

         15. 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.

         16. 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 proceedings.

         17. 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.

         18. Trial: Waiver. If a defendant is to effectively waive his or her presence at trial, that waiver must be knowing and voluntary.

         19. 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.

         20. 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 tactics.

         21. 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.

         22. 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.

         Appeal from the District Court for Furnas County: James E. Doyle IV, Judge. Affirmed.

          Brian J. Davis, of Berreckman & Davis, PC, for appellant.

          Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

          Moore, Chief Judge, and Bishop and Arterburn, Judges.

          Moore, ...


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