Judgments: Jurisdiction: Appeal and Error. A
jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion
independent from the lower court's decision.
Postconviction: Appeal and Error. Whether a
claim raised in a post-conviction proceeding is procedurally
barred is a question of law.
Effectiveness of Counsel. A claim that
defense counsel provided ineffective assistance presents a
mixed question of law and fact.
Effectiveness of Counsel: Appeal and Error.
When reviewing a claim of ineffective assistance of counsel,
an appellate court reviews the factual findings of the lower
court for clear error.
___:___. With regard to the questions of counsel's
performance or prejudice to the defendant as part of the
two-pronged test articulated in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), an appellate court reviews such legal determinations
independently of the lower court's decision.
Jurisdiction: Appeal and Error. Before
reaching the legal issues presented for review, it is the
duty of an appellate court to determine whether it has
jurisdiction over the matter before it.
Final Orders: Appeal and Error. The three
types of final orders which may be reviewed on appeal under
the provisions of Neb. Rev. Stat. § 25-1902 (Reissue
2016) are (1) an order which affects a substantial right in
an action and which in effect determines the action and
prevents a judgment, (2) an order affecting a substantial
right made during a special proceeding, and (3) an order
affecting a substantial right made on summary application in
an action after a judgment is rendered.
Postconviction: Appeal and Error. A motion
for postconviction relief cannot be used to secure review of
issues which were or could have [26 Neb.App. 340] been
litigated on direct appeal, no matter how those issues may be
phrased or rephrased.
Postconviction: Pleas: Waiver. Normally, a
voluntary guilty plea waives all defenses to a criminal
Postconviction: Pleas: Effectiveness of
Counsel. In a postconviction proceeding brought by a
defendant because of a guilty plea or a plea of no contest, a
court will consider an allegation that the plea was the
result of ineffective assistance of counsel.
Right to Counsel: Plea Bargains. The
plea-bargaining process presents a critical stage of a
criminal prosecution to which the right to counsel applies.
Effectiveness of Counsel: Proof. To prevail
on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), the defendant must show that
counsel's performance was deficient and that this
deficient performance actually prejudiced his or her
___: ___. To show deficient performance, a defendant must
show that counsel's performance did not equal that of a
lawyer with ordinary training and skill in criminal law in
Trial: Effectiveness of Counsel: Presumptions: Appeal
and Error. In determining whether trial
counsel's performance was deficient, there is a strong
presumption that counsel acted reasonably.
Effectiveness of Counsel: Proof. To show
prejudice, the defendant must demonstrate reasonable
probability that but for counsel's deficient performance,
the result of the proceeding would have been different.
Postconviction: Effectiveness of Counsel:
Proof. The defendant has the burden in
postconviction proceedings of demonstrating ineffectiveness
of counsel, and the record must affirmatively support that
Postconviction: Constitutional Law: Proof. A
court must grant an evidentiary hearing to resolve the claims
in a postconviction motion when the motion contains factual
allegations which, if proved, constitute an infringement of
the defendant's rights under the Nebraska or federal
Postconviction: Proof. If a postconviction
motion alleges only conclusions of fact or law, or if the
records and files in the case affirmatively show that the
defendant is entitled to no relief, the court is not required
to grant an evidentiary hearing.
Effectiveness of Counsel. Defense counsel is
not ineffective for failing to raise an argument that has no
Appeal and Error. An alleged error must be
both specifically assigned and specifically argued in the
brief of the party asserting the error to be considered by an
Neb.App. 341] Appeal from the District Court for Douglas
County: J Russell Derr, Judge. Affirmed.
Michael Bianchi for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
Pirtle, Riedmann, and Welch, Judges.