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State v. Barber

Court of Appeals of Nebraska

September 25, 2018

State of Nebraska, Appellee,
v.
RaySean D. Barber, Appellant.

         1. 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.

         2. Postconviction: Appeal and Error. Whether a claim raised in a post-conviction proceeding is procedurally barred is a question of law.

         3. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

         4. 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.

         5. ___:___. 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.

         6. 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.

         7. 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.

         8. 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.

         9. Postconviction: Pleas: Waiver. Normally, a voluntary guilty plea waives all defenses to a criminal charge.

         10. 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.

         11. Right to Counsel: Plea Bargains. The plea-bargaining process presents a critical stage of a criminal prosecution to which the right to counsel applies.

         12. 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 defendant.

         13. ___: ___. 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 the area.

         14. 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.

         15. 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.

         16. 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 claim.

         17. 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 Constitution.

         18. 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.

         19. Effectiveness of Counsel. Defense counsel is not ineffective for failing to raise an argument that has no merit.

         20. 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 appellate court.

          [26 Neb.App. 341] Appeal from the District Court for Douglas County: J Russell Derr, Judge. Affirmed.

          A. Michael Bianchi for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Pirtle, Riedmann, and Welch, Judges.

          PIRTLE, JUDGE

         I. ...


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