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.
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: Pleadings. A defendant is
required to make specific allegations instead of mere
conclusions of fact or law in order to receive an evidentiary
hearing for postconviction relief.
Postconviction: 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.
Effectiveness of Counsel: Pleas: Waiver.
Generally, a voluntary guilty plea or plea of no contest
waives all defenses to a criminal charge. Thus, when a
defendant pleads guilty or no contest, he or she is limited
to challenging whether the plea was understanding and
voluntarily made and whether it was the result of ineffective
assistance of counsel.
Postconviction: Effectiveness of Counsel:
Pleas. In a postconviction proceeding brought by a
defendant convicted 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.
Neb. 405] 7. Postconviction:
Effectiveness of Counsel: Proof: Appeal and Error.
In order 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; 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
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.
Effectiveness of Counsel: Appeal and Error.
The two prongs of the ineffective assistance of counsel test
under Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), deficient performance and
prejudice, may be addressed in either order.
Effectiveness of Counsel: Proof. In the
context of a claim of ineffectiveness of counsel for failure
to investigate, allegations are too speculative to warrant
relief if the petitioner fails to allege what exculpatory
evidence that the investigation would have procured and how
it would have affected the outcome of the case.
Effectiveness of Counsel: Pleas: Proof.
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.
from the District Court for Knox County: James G. Kube,
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Neb. 406] Cassel, J.
M. Privett appeals from an order denying his motion for
postconviction relief without an evidentiary hearing. He
raises two claims of ineffective assistance of trial counsel.
Although he asserts that counsel failed to investigate and
advise him of a viable defense, his motion failed to allege
sufficient facts. He also claims that in response to his
hearing impairment, counsel failed to request the court to
amplify its voice or employ a telecommunications device. But,
the record affirmatively refutes his claim. We affirm.
State charged Privett with first degree murder and use of a
firearm to commit a felony. Two attorneys were appointed to
represent him. Pursuant to a plea agreement, the State
amended the first count to second degree murder and Privett
pled no contest to both counts. The district court sentenced
him to 30 to 50 years' imprisonment for second degree
murder and not less than or more than 10 years'
imprisonment for use of a firearm to commit a felony.
direct appeal, Privett assigned that he received excessive
sentences. The Nebraska Court of Appeals summarily affirmed
by different counsel, Privett filed an amended motion for
postconviction relief, asserting two claims of ineffective
assistance of trial counsel. First, he claimed that trial
counsel were ineffective when they failed "to adequately
investigate and advise Privett as to 'the available
options and possible consequences' prior to pleading no
contest." Second, he asserted that trial counsel were
ineffective for failing "to request continued
amplification of the words of [the district court] and the
parties at the plea hearing [or] provid[e] a
telecommunications device for the deaf."
district court denied postconviction relief without an
evidentiary hearing, finding that Privett did not allege [303
Neb. 407] sufficient facts and ...