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State v. Collins

Supreme Court of Nebraska

March 2, 2018

State of Nebraska, appellee,
v.
Fredrick A. Collins, Jr., 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: Proof: Appeal and Error.

         When a 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.

         3. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.

         To 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.

         4. Effectiveness of Counsel: Speedy Trial.

         When a 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.

         5. Speedy Trial.

         To 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 2016).

         6. Effectiveness of Counsel.

         As a matter of law, counsel cannot be ineffective for failing to raise a meritless argument.

         7. Postconviction: Justiciable Issues: Right to Counsel: Appeal and Error.

         When 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 indigent defendant.

         Appeal 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 for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.

          Cassel, J.

         I. INTRODUCTION

         Fredrick 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.

         II. BACKGROUND

         Collins 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 served.

         On 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.

         We 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.[1] We did not reach the remaining claims of ineffective assistance of counsel ...


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