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State v. Beehn

Supreme Court of Nebraska

May 24, 2019

State of Nebraska, appellee,
v.
Jordan L. Beehn, appellant.

         1. Postconviction: Evidence: Witnesses: Appeal and Error. In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. An appellate court upholds the trial court's findings unless they are clearly erroneous.

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

         3. 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 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 conclusion.

         4. 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.

         5. 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.

         6. Postconviction: Effectiveness of Counsel: Appeal and Error. To establish a right to postconviction relief based on a claim of ineffective assistance of counsel, 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; [303 Neb. 173] 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.

         7. Postconviction: Effectiveness of Counsel: Proof. In a postconviction proceeding, a showing of prejudice to the defense requires a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

         8. Trial: Attorneys at Law. Trial counsel is afforded due deference to formulate trial strategy and tactics.

         9. Effectiveness of Counsel: Pleas: Proof. In a claim for ineffective assistance of counsel, the likelihood of the defense's success should be considered with other factors such as the likely penalties the defendant would face if convicted at trial, the relative benefit of the plea bargain, and the strength of the State's case.

         10. __:__:__. Self-serving declarations that a defendant would have gone to trial are not enough to warrant a hearing; a defendant must present objective evidence showing a reasonable probability that he or she would have insisted on going to trial.

         11. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is based upon a guilty plea, the prejudice requirement for an ineffective assistance of counsel claim 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.

          Appeal from the District Court for Madison County: Mark A. Johnson, Judge. Affirmed.

          Jack W. Lafleur, of Moyer & Moyer, for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

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

          HEAVICAN, C.J.

         INTRODUCTION

         Jordan L. Beehn appeals from an order denying his motion for postconviction relief following an evidentiary hearing. [303 Neb. 174] Beehn pled no contest to first degree assault and tampering with a witness and is currently serving 50 to 50 years' imprisonment. We affirm.

         BACKGROUND

         On November 24, 2012, Beehn and his wife were at a bar in Norfolk, Nebraska. They left the bar at the same time as another group of patrons, which consisted of brothers Jose Zepada and Jorge Zepada, accompanied by Jessika Ruroede. As the two groups left the bar, Beehn's wife and Ruroede engaged in an argument that led to a physical altercation between the two women. Jose and Jorge stood over the two women as they were fighting on the ground. According to witness accounts, Jose and Jorge tried to pull Beehn's wife from Ruroede, at which point Beehn retrieved a handgun from his person, hit Jose with the gun, and shot Jorge. The bullet struck Jorge's spinal cord and paralyzed him from the head down, an injury from which he will never recover.

         Beehn was subsequently arrested for the assaults on Jose and Jorge. While Beehn was in jail awaiting trial, he suggested that his wife change her story about being "on top" during the altercation with Ruroede as she had previously told the police and had stated during recorded jail telephone calls to Beehn following the incident. In a letter sent from jail, Beehn further instructed his wife to locate other unidentified witnesses and offer to "pay what ever [sic] they want."

         Beehn was initially charged with five offenses corresponding to the assaults. With regard to Beehn's assault of Jorge, Beehn was charged with first degree assault, a Class II felony, and second degree assault, a Class III felony. With regard to Beehn's assault of Jose, Beehn was charged with second degree assault, a Class III felony. In addition to the assault charges, Beehn was charged with use of a firearm to commit a felony, a Class IC felony, and possession of a firearm during the commission of a felony, a Class II felony. Upon the State's learning of Beehn's letter to his wife from jail, the State added [303 Neb. 175] two additional charges of tampering with a witness, a Class IV felony, and bribery, a Class I misdemeanor.

         Beehn had various attorneys throughout the pretrial proceedings, which lasted from November 2012 to February 2014. From the inception of the case until June 2013, Beehn was represented by private counsel, Charles Balsiger. Beehn discharged Balsiger, and the Madison County public defender, Kyle Melia, was appointed to the case. Melia represented Beehn for approximately 1 month, from June to July 2013. Beehn subsequently discharged Melia and hired private counsel, Craig Martin and Dennis McCarthy. Martin and McCarthy represented Beehn for the remainder of his proceedings at the trial level, from July 2013 until the entry of his pleas and sentencing in February 2014.

         In December 2013, while represented by Martin and McCarthy, Beehn entered into a plea agreement with the State. Beehn pled no contest to one count of first degree assault and one count of tampering with a witness. In exchange for Beehn's pleas, the State dismissed the remaining five charges and agreed to make no specific sentencing recommendation. The district court advised Beehn of the rights he was waiving by entering the pleas, and a factual basis was provided, after which the district court accepted Beehn's pleas. Beehn, still represented by Martin and McCarthy, was sentenced to 50 to 50 years' imprisonment for the first degree assault conviction and 12 to 12 months' imprisonment for the tampering with a witness conviction. The sentences were ordered to run concurrently, resulting in an aggregate sentence of 50 to 50 years' imprisonment.

         Direct Appeal.

         On direct appeal, Beehn was again represented by Melia. On appeal, Beehn's sole assignment of error was a claim of excessive sentences. On August 1, 2014, in case No. A-14-195, the Nebraska Court of Appeals, without opinion, summarily affirmed Beehn's convictions and sentences.

         [303 Neb. 176] Postconviction.

         Following the denial of his direct appeal, Beehn initiated this postconviction proceeding. Beehn alleges, for the first time, that he received ineffective assistance of counsel at both the trial and appellate levels. With the assistance of new counsel, Beehn alleged a number of errors that can be consolidated as follows: (1) Trial counsel was ineffective for failing to advise Beehn about the defenses of self-defense and defense of others under Neb. Rev. Stat. §§ 28-1409 and 28-1410 (Reissue 2016); (2) trial counsel was ineffective for failing to advise Beehn that by entering his pleas, he would be waiving his right to appeal from pretrial rulings; (3) trial counsel was ineffective for failing to interview and depose witnesses and for failing to investigate the prospect of additional witnesses beyond those listed in the police reports; (4) trial counsel was ineffective for incorrectly advising Beehn that all communications between Beehn and his wife were privileged and could not be used against Beehn in the prosecution of his criminal charges; and (5) appellate counsel was ineffective for not raising claims (1) through (4) on direct appeal.

         Despite the potential procedural bar, the district court conducted an evidentiary hearing of Beehn's claims. The evidence adduced at the hearing consisted of the bill of exceptions from Beehn's pretrial, plea, and sentencing proceedings; depositions of Beehn and each of his prior attorneys; transcripts of Beehn's telephone calls from jail; and a copy of the court file for all of the proceedings at the trial level.

         Beehn testified that all of his attorneys told him that his only option was to enter into a plea agreement. Beehn claims that each of his attorneys told him that there were no available defenses for his charges. Specifically, Beehn claims that Balsiger, as well as Martin and McCarthy, told him that the defense of self-defense was not available in Nebraska. Beehn further claims that Balsiger erroneously advised him that any communications between Beehn and his wife were privileged and could not be used against him. Beehn contends that he, [303 Neb. 177] Beehn, maintained this belief throughout his case until October 2013, when the court entered an order denying Beehn's assertion of spousal privilege.

         Additionally, Beehn contends that his trial attorneys deposed only two witnesses and failed to investigate the existence of other witnesses that may have been beneficial to his case. Beehn further contends that counsel never advised him that by entering a plea agreement, he waived his right to appeal from adverse pretrial rulings. Lastly, Beehn contends that Melia never met with him to discuss his appeal, but that one of Melia's assistants advised him that an excessive sentence claim was the only claim available on appeal.

         Beehn's initial trial counsel, Balsiger, disagreed with Beehn's allegations. Balsiger, who had been practicing criminal law since 1973, explained that he first met with Beehn on December 3, 2012, within a few days of the charges being filed. Balsiger testified that he and Beehn specifically discussed the possibility of asserting a defense such as justification of the use of force, which Balsiger thought would at least be a possible defense based on the limited information he had at that time. Balsiger further explained that during their first meeting, he also spoke with Beehn about the possibility of asserting a privilege for communications between Beehn and his wife, but told Beehn that "it may not be valid" based on the circumstances. Balsiger testified that he specifically advised Beehn "not to discuss the facts of this case with his wife or anyone else." Balsiger's testimony is corroborated by a December 6 recorded jail telephone conversation between Beehn and his wife in which the following exchange occurred:

[Beehn]: The lawyer say anything?
[Beehn's wife]: I talked to him after the deal, he questioned me on what I know and what happened. And then he told me that we need to not talk amongst ourselves about the whole case or something of that sort.
[Beehn]: Yeah, he told me that too.

[303 Neb. 178] Balsiger explained that he deposed at least two witnesses in the case: Ruroede, the female involved in the fight with Beehn's wife, and one of the officers involved in the investigation. Balsiger did not recall that Beehn had given him the names of any other witnesses to contact.

         Melia, who represented Beehn for approximately 1 month after Balsiger's representation, also disagreed with Beehn's allegations. Melia explained that during his time as Beehn's trial counsel, he met with Beehn twice and also spoke with him on the telephone to discuss the case.

         Melia testified that he discussed possible defenses with Beehn, including self-defense and defense of others. Melia noted that there were obvious obstacles to pursuing either defense, because it appeared that Beehn's wife was the aggressor in the fight. Melia also noted that a self-defense claim was further complicated by the fact that on at least one occasion, Beehn said the gun discharged accidentally, which would negate the defense altogether. Melia also explained that he told Beehn not to discuss his case over the telephone with anyone else and that he never gave Beehn the impression that Beehn's communications with his wife were privileged and could not be used against him. Melia also testified that he did not recall any witnesses that may have been available to contact other than Beehn, his wife, Ruroede, and the two victims.

         McCarthy, who represented Beehn at the time of his pleas, also disagreed with Beehn's claims. McCarthy, who had been practicing law since 1989 with extensive experience in conducting jury trials, testified that he and Beehn discussed the issue of spousal privilege. McCarthy testified that he repeatedly told Beehn that his communications with his wife were not privileged. McCarthy contended that Beehn's assertion to the contrary is not true. He explained that the letter Beehn sent to his wife, which served as the basis for the tampering charge, was sent after Martin and McCarthy specifically advised Beehn that such communications were not privileged.

         [303 Neb. 179] McCarthy further testified that he and Martin, McCarthy's cocounsel, also looked into available defenses, including self-defense and defense of others. McCarthy explained that they considered defense of others based on the theory that Beehn was protecting his wife, but their attempt to pursue this option was complicated by the fact that Beehn kept changing his story and, at one point, said the gun discharged accidentally. McCarthy also believed that such defense would have had credibility problems with Beehn.

         McCarthy explained that because Beehn was intoxicated on the night in question, he kept changing his story. Additionally troubling was the fact that Beehn continued to try to persuade his wife to change her story. McCarthy testified that in light of these issues, he believed defense of others might not be successful. McCarthy testified that he explained these concerns to Beehn but never advised Beehn that the defense was unavailable.

         Martin testified that Beehn agreed to the plea agreement and that Beehn knew what the pleas were and knew the rights he was giving up by taking the plea agreement. This was explained to Beehn by counsel, as was counsel's opinion that self-defense and defense of others would not be successful defenses. Martin testified that after he advised Beehn that his ...


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