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State v. Haynes

Supreme Court of Nebraska

March 9, 2018

State of Nebraska, appellee,
v.
Dammon T. Haynes, appellant.

          1. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed independently of the lower court's ruling.

         2. Postconviction: Constitutional Law. A trial court's ruling that the petitioner's allegations are refuted by the record or are too conclusory to demonstrate a violation of the petitioner's constitutional rights is not a finding of fact-it is a determination, as a matter of law, that the petitioner has failed to state a claim for postconviction relief.

         3. 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.

         4. Postconviction: Right to Counsel: Appeal and Error. The failure of the district court to provide court-appointed counsel in a postconviction proceeding is reviewed for an abuse of discretion.

         5. Postconviction: Constitutional Law. Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable.

         6. Postconviction: Sentences: Appeal and Error. The Nebraska Postconviction Act is intended to provide relief in those cases where a miscarriage of justice may have occurred; it is not intended to be a procedure to secure a routine review for any defendant dissatisfied with his or her sentence.

         7. Postconviction: Pleas: Waiver. The Nebraska Postconviction Act does not provide a procedure whereby the defendant can avoid the waiver inherent to a voluntary entry of a guilty plea or plea of no contest.

          [299 Neb. 250] 8. Pleas: Waiver: Indictments and Informations: Effectiveness of Counsel: Jurisdiction. The voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge, whether the defense is procedural, statutory, or constitutional. The only exceptions are for the defenses of insufficiency of the indictment, information, or complaint; ineffective assistance of counsel; and lack of jurisdiction.

         9. Postconviction: Appeal and Error. On appeal from the denial of postconviction relief without an evidentiary hearing, the question is not whether the movant was entitled to relief by having made the requisite showing. Instead, it must be determined whether the allegations were sufficient to grant an evidentiary hearing.

         10. Postconviction. The allegations in a motion for postconviction relief must be sufficiently specific for the district court to make a preliminary determination as to whether an evidentiary hearing is justified.

         11. Postconviction: Pleadings: Proof: Constitutional Law. In a proceeding under the Nebraska Postconviction Act, the application is required to allege facts which, if proved, constitute a violation or infringement of constitutional rights, and the pleading of mere conclusions of fact or of law are not sufficient to require the court to grant an evidentiary hearing.

         12. Postconviction: Proof: Constitutional Law. An evidentiary hearing must be granted when the facts alleged, if proved, would justify relief, or when a factual dispute arises as to whether a constitutional right is being denied.

         13. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.

         14. Postconviction: Effectiveness of Counsel: Proof. In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden first 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 in the area. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case.

         15. Effectiveness of Counsel: Pleas. In a plea context, deficiency depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.

         16. __:__. The prejudice requirement in a plea context is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty.

         17. __: __ . In determining the prejudice component of alleged ineffective assistance of counsel in a plea context, the likelihood of the [299 Neb. 251] defense's success had the defendant gone to trial should be considered along with other factors, such as the likely penalties the defendant would have faced if convicted at trial, the relative benefit of the plea bargain, and the strength of the State's case.

         18. Postconviction: Effectiveness of Counsel. In a motion for postconviction relief, self-serving declarations that fail to allege specific facts that will be presented in an evidentiary hearing will not be sufficient on their own to raise a question of prejudice in an allegation of ineffective assistance of counsel.

         19. Postconviction: Pleas: Effectiveness of Counsel. A motion for postconviction relief seeking to set aside a conviction pursuant to a plea on the grounds that it was the result of ineffective assistance of counsel must allege objective facts that raise a question of whether a rational defendant would have insisted on going to trial.

         20. Postconviction: Appeal and Error. When considering whether the district court correctly denied a motion for postconviction relief without an evidentiary hearing, an appellate court will not consider factual allegations made for the first time on appeal.

         21. Trial: Pleas: Mental Competency. A person is competent to plead or stand trial if he or she has the capacity to understand the nature and object of the proceedings against him or her, to comprehend his or her own condition in reference to such proceedings, and to make a rational defense.

         22. __:__:__. The test of mental capacity to plead is the same as that required to stand trial.

         23. Postconviction: Witnesses. A significant degree of specificity is required in postconviction motions for claims relating to potential witnesses.

         24. Right to Counsel: Effectiveness of Counsel. A defendant representing himself or herself pro se cannot thereafter assert his or her own incompetency.

         25. Postconviction: Appeal and Error. Plain error cannot be asserted in a postconviction proceeding to raise claims of error by the trial court.

         26. Effectiveness of Counsel: Appeal and Error. Counsel's failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal.

         Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge. Affirmed.

          Dammon T. Haynes, pro se.

         [299 Neb. 252] Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.

          Heavican, C.J., Wright, Cassel, Stacy, and Funke, JJ.

          Heavican, C.J.

         I. NATURE OF CASE

         This is an appeal from the denial of postconviction relief without an evidentiary hearing or the appointment of counsel. The petitioner makes numerous arguments that his trial counsel, who also represented him on direct appeal, were ineffective. Petitioner also argues that he was sentenced to nonexistent crimes of being a habitual criminal, which he asserts resulted in void sentences. We affirm the judgment below.

         II. BACKGROUND

         1. Charges

         Dammon T. Haynes was charged with three counts under case No. CR14-701. Count I charged him with stalking, second offense, in violation of Neb. Rev. Stat. §§ 28-311.03 and 28-311.04(2)(a) (Reissue 2008), a Class IV felony. Count II charged him with terroristic threats, in violation of Neb. Rev. Stat. § 28-311.01(1)(a) (Reissue 2008), a Class IV felony. Count III, habitual criminal, described that Haynes has twice been convicted of a crime, sentenced, and committed to prison for terms of not less than 1 year each and, thus, "is a Habitual Criminal as described in Neb. Rev. Stat. §29-2221."

         At the same time, under case No. CR14-1202, Haynes was charged with two counts. Under count I, he was charged with tampering with a witness, in violation of Neb. Rev. Stat. § 28-919(1) (Reissue 2008), a Class IV felony. Count II, habitual criminal, described that Haynes has twice been convicted of a crime, sentenced, and committed to prison for terms of not less than 1 year each and, thus, "is a Habitual Criminal as described in Neb. Rev. Stat. §29-2221."

         Under other case numbers, Haynes was charged with possession of a controlled substance, witness tampering, and identity theft.

          [299 Neb. 253] 2. Pleas

         Haynes entered into a plea agreement with the State. In case No. CR14-701, Haynes pled no contest to the charges of count I, stalking, second offense, and count II, terroristic threats. In case No. CR14-1202, Haynes pled no contest to count I, tampering with a witness.

         The pleas were negotiated in exchange for dismissal of the other charges, under different case numbers, of possession of a controlled substance, witness tampering, and identity theft. The State also agreed not to file any further charges based on Haynes' conduct up to the date of the pleas. The State had apparently been preparing to charge Haynes with 16 additional misdemeanor counts.

         The day Haynes pled to the charges, the State entered into evidence a psychiatric report demonstrating that Haynes was competent and the court specifically found Haynes competent to stand trial.

         The court considered cases Nos. CR14-701 and CR14-1202 together during the plea colloquy, as well as during the enhancement and sentencing hearing.

         During the plea colloquy, the court confirmed with Haynes that he understood the nature of the charges, the terms of the plea agreement, the sentencing range for the crimes, and the possible habitual criminal enhancement. The court explained that the charges of terroristic threats and tampering with a witness were subject to habitual criminal enhancement, while the charge of stalking, second offense, was not.

         Haynes affirmed that his pleas were freely and voluntarily made. Haynes stated that he had been given enough time to discuss the case with his counsel and that he was satisfied with their representation.

         As a factual basis for the pleas, the State provided that it would have adduced evidence that on or about January 22 through February 12, 2014, Haynes harassed and threatened the victim, his ex-girlfriend, after she broke off their relationship and moved in with her mother. Haynes continued to call, drive by the victim's house, and send text messages, even after [299 Neb. 254] a protection order was in place. Some messages were sent to the victim's mother, advising her to keep the victim away from the "back windows, " because "he attempted to get his boys to chill, " but "the call was already made." On one occasion, the victim and her mother witnessed Haynes drive by and point his fingers out the window as if they were a gun. On another occasion, the victim and her mother witnessed Haynes drive by and yell, "[H]ey bitch, I'm coming back. This house is going to get shot up tonight." During the same time period, Haynes filled out change of address forms for the victim without her consent, pretended to be the victim in order to have her cable turned off, and sent "jitney cabs" to the victim's house during all hours of the night.

         After being jailed on the charges, Haynes made approximately 44 calls to the victim, using another inmate's telephone number. During the conversations, Haynes asked the victim not to go to court. Haynes also sent letters through other inmates to contacts on the outside, asking them to tell the victim to stop talking to law enforcement and prosecutors.

         The court found that Haynes' pleas of no contest were entered freely, knowingly, intelligently, and voluntarily. Haynes was adjudged guilty of the charges of stalking, terroristic threats, and tampering with a witness.

         3. Sentencing

         For purposes of habitual criminal enhancement, the State entered into evidence prior convictions, and the court found the prior convictions valid and supporting enhancement. The presentence investigation report (PSI) indicated an extensive criminal history, including convictions for assault, terroristic threats, stalking, harassment by telephone, intimidation by telephone, and violations of protection orders. The victims were past girlfriends and an ex-wife. The PSI reflects that Haynes has been arrested 23 times for crimes of domestic violence and has had 16 protection orders filed against him by 14 different people in the last 18 years. Attached to the PSI were several victim impact statements related to prior convictions.

          [299 Neb. 255] Defense counsel asked the court to order a new PSI on the grounds that the officer who prepared the PSI was biased against Haynes. Counsel explained that the investigator had been Haynes' probation officer in 1999 and had prepared a PSI in another case in 2009. Counsel suggested that someone else would be able to "give a more independent evaluation.'' The court denied the motion, noting that although the report demonstrated familiarity with Haynes, it was mostly a factual recitation of past and present charges.

         The State argued at the sentencing hearing that the court should consider Haynes' past convictions and the domestic abuse and stalking of former girlfriends and his ex-wife.

         The district court observed that Haynes had an extensive criminal history and was "one of the worst" domestic violence offenders the court had ever seen. The court stated that it had reached this conclusion based on the factual statements in the PSI and the victim statements, not on any commentary in the PSI reflecting the investigator's personal familiarity with Haynes.

         In case No. CR14-701, the court sentenced Haynes to concurrent sentences of 12 to 24 years' imprisonment, with 289 days' credit for time served. In case No. CR14-1202, the court sentenced Haynes to 12 to 24 years' imprisonment, to be served consecutively to the sentences in case No. CR14-701.

         4. Direct Appeal

         Haynes filed a direct appeal, represented by the same defense counsel as at the trial stage. He asserted on appeal that the sentences were excessive.

         The Nebraska Court of Appeals, in a memorandum opinion, found that the sentences were not excessive.[1] However, it vacated and remanded that portion of the sentence in case No. CR14-701 that imposed habitual criminal enhancement on the charge of stalking, second offense. The court noted [299 Neb. 256] that because the sentences were concurrent, the error was for all practical purposes harmless, but nevertheless needed to be corrected.[2]

         5. Motion for Postconviction Relief

         Thereafter, Haynes, representing himself pro se, filed a motion for postconviction relief. Haynes asserted 12 acts of ineffective assistance of counsel. He generally alleged that but for these acts of ineffective assistance of counsel, he would have insisted on going to trial.

         First, Haynes alleged that counsel was deficient for failing to discuss, apprise, or review "any of the discovery turned over by the state." Second, Haynes alleged counsel failed to investigate, interview, or depose other "witnesses, " who would have testified that his relationship with the victim was "wholesome" and "not the negative transgression or aggression the state and police officials deploy." Third, Haynes alleged that counsel should have driven by the victim's residence to obtain more "detailing descriptive streets." Fourth, Haynes alleged that counsel was deficient in failing to locate, interview, or depose the victim, who would have given "a very different version of events that [sic] what the state produced" and "would have testified that the charges lodged against [Haynes] were unfounded, and concocted by her mother."

         Fifth, Haynes alleged that there were several questions that he asked counsel, which he listed, to "formulate a defense" in Haynes' favor. Sixth, Haynes alleged that counsel was ineffective by "failing to apprise [Haynes] of the nature of the charges lodged against him; the consequences of the charges [Haynes] was said to had [sic] committed; and a reasonable explanation as to whether or not he should proceed to trial on those charges." Seventh, Haynes asserted that counsel should have challenged law enforcement's warrantless seizure of his outgoing mail while in jail and use of that mail to contact recipients and discourage their continued communication with him.

          [299 Neb. 257] Eighth, Haynes alleged that 7 months of "solitary confinement, " and its restrictions, particularly telephone restrictions, limited his ability to contact counsel and thereby "impeded [Haynes'] participation in his case, " allegedly denying him due process. The restrictions also limited his access to outside sources who could have allegedly helped him "prepare and help counsel's [sic] with a propper [sic] defense" and rendered it "impossible for [Haynes] to obtain information that would have undermined the states [sic] case via the charges." He asserted that counsel was ineffective for failing to challenge these restrictions. Haynes also generally asserted that the restrictive confinement rendered his plea involuntary.

         Ninth, Haynes alleged under the heading "Failure to Investigate and Prepare Defense" that the county attorney met with the victim before charges were filed. Tenth, Haynes asserted that counsel was deficient in failing to assert on direct appeal that the presentence investigator was biased against him. Eleventh, Haynes asserted that counsel should have raised on appeal the allegation that his plea was not supported by an adequate factual basis.

         Twelfth, Haynes alleged counsel was ineffective for failing to raise as error on direct appeal the habitual criminal count in case No. CR14-701. Haynes theorized, without citation to any relevant authority, that all charges under the same information must be subject to habitual criminal enhancement in order for the habitual criminal statute to legally apply to the case.

         Haynes also made several allegations of "plain error" that did not appear to relate to an ineffective ...


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