Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Privett

Supreme Court of Nebraska

June 21, 2019

State of Nebraska, appellee,
v.
Phillip M. Privett, appellant.

         1. 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.

         2. 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.

         3. 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.

         4. 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.

         5. 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.

         6. 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.

          [303 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 case.

         8. 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.

         9. 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.

         10. 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.

         11. 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.

          Appeal from the District Court for Knox County: James G. Kube, Judge. Affirmed.

          Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

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

         [303 Neb. 406] Cassel, J.

         INTRODUCTION

         Phillip 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.

         BACKGROUND

         The 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.

         On direct appeal, Privett assigned that he received excessive sentences. The Nebraska Court of Appeals summarily affirmed his sentences.

         Represented 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."

         The district court denied postconviction relief without an evidentiary hearing, finding that Privett did not allege [303 Neb. 407] sufficient facts and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.