Postconviction: Constitutional Law: Appeal and
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
Postconviction: Proof: Appeal and Error.
district court denies postconviction relief without
conducting an evidentiary hearing, an appellate court must
determine whether the petitioner has alleged facts that would
support the claim and, if so, whether the files and records
affirmatively show that he or she is entitled to no relief.
Postconviction: Effectiveness of Counsel: Proof: Appeal and
establish a right to postconviction relief because of
counsel's ineffective assistance, 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. To show prejudice,
the defendant must demonstrate a reasonable probability that
but for counsel's deficient performance, the result of
the proceeding would have been different. A court may address
the two prongs of this test, deficient performance and
prejudice, in either order.
Effectiveness of Counsel: Speedy Trial.
defendant alleges he or she was prejudiced by trial
counsel's failure to properly assert the defendant's
speedy trial rights, the court must consider the merits of
the defendant's speedy trial rights under Strickland
v. Washington, 466 [299 Neb. 161] U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Only if a motion would have
resulted in the defendant's absolute discharge, thus
barring a later trial and conviction, could the failure to
move for discharge be deemed ineffective assistance.
calculate the deadline for trial for speedy trial purposes, a
court must exclude the day the State filed the information,
count forward 6 months, back up 1 day, and then add any time
excluded under Neb. Rev. Stat. § 29-1207(4) (Reissue
Effectiveness of Counsel.
matter of law, counsel cannot be ineffective for failing to
raise a meritless argument.
Postconviction: Justiciable Issues: Right to Counsel: Appeal
the defendant's petition presents a justiciable issue to
the district court for postconviction determination, an
indigent defendant is entitled to the appointment of counsel.
But, where the assigned errors in the postconviction petition
before the district court are either procedur-ally barred or
without merit, establishing that the postconviction petition
contained no justiciable issue of fact or law, it is not an
abuse of discretion to fail to appoint counsel for an
from the District Court for Douglas County: Gregory M.
Schatz, Judge. Affirmed.
Fredrick A. Collins, Jr., pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.
A. Collins, Jr., appeals from an order denying his motion for
postconviction relief. Collins failed to allege sufficient
facts supporting the majority of his claims, and his
remaining claims are without merit. We affirm.
was originally charged with first degree sexual assault of a
child, a Class IB felony, and third degree sexual [299 Neb.
162] assault of a child, a Class IIIA felony. Pursuant to a
plea agreement, Collins pled no contest to a reduced charge
of first degree sexual assault, a Class II felony, and the
State dismissed the third degree sexual assault of a child
charge. The district court sentenced Collins to 10 to 15
years' imprisonment with credit for 396 days of time
direct appeal, Collins assigned that he received an excessive
sentence and that he was denied effective assistance of trial
counsel. He alleged that his trial counsel was ineffective
when counsel (1) failed to inform him of the potential
penalty for a Class II felony, (2) failed to attack the
validity of the information for lack of jurisdiction, (3)
failed to file a motion for DNA testing or investigate why a
sexual assault evidence collection kit was not completed, (4)
failed to file a motion to discharge or dismiss, (5) failed
to move to sever the offenses, (6) failed to file a motion
seeking to exclude testimony from the victim and two
witnesses, (7) failed to conduct depositions of a police
detective and a child advocacy center employee, (8) failed to
show him transcripts of any depositions, (9) failed to object
to or correct the factual basis provided at the plea hearing,
(10) coerced his acceptance of a plea deal, and (11) failed
to attend a presentence investigation interview with him or
review presentence investigation errors with him.
affirmed Collins' sentence and determined that he was not
prejudiced by any failure of trial counsel to inform him of
the potential penalty for a Class II felony. We did not reach
the remaining claims of ineffective assistance of counsel