State v. Avina-Murillo , 301 Neb. 185 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/02/2018 01:11 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. AVINA-MURILLO
    Cite as 
    301 Neb. 185
    State    of Nebraska, appellee, v. Veronica
    P. Avina-Murillo, appellant.
    ___ N.W.2d ___
    Filed September 28, 2018.   No. S-17-1302.
    1.	 Motions for New Trial: Time. Where there is no factual dispute, the
    timeliness of a motion for new trial presents a question of law.
    2.	 Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
    fective assistance of trial counsel may be determined on direct appeal is
    a question of law.
    3.	 ____: ____. In reviewing claims of ineffective assistance of counsel on
    direct appeal, an appellate court decides only whether the undisputed
    facts contained within the record are sufficient to conclusively deter-
    mine whether counsel did or did not provide effective assistance and
    whether the defendant was or was not prejudiced by counsel’s alleged
    deficient performance.
    4.	 Motions for New Trial: Verdicts: Time. According to Neb. Rev.
    Stat. § 29-2103(3) (Reissue 2016), a motion for new trial based on the
    grounds set forth in Neb. Rev. Stat. § 29-2101(1) through (4) or (7)
    (Reissue 2016) shall be filed within 10 days after the verdict was ren-
    dered unless such filing is unavoidably prevented.
    5.	 Trial: Juries: Verdicts. A jury’s action cannot become a verdict until
    it is finally rendered in open court and received and accepted by the
    trial judge.
    6.	 Motions for New Trial: Verdicts: Time. Unless one of the two statu-
    tory exceptions applies, a motion for new trial filed more than 10 days
    after the verdict has no effect.
    7.	 Motions for New Trial: Words and Phrases. “[U]navoidably pre-
    vented” as used in Neb. Rev. Stat. § 29-2103 (Reissue 2016) refers
    to circumstances beyond the control of the party filing the motion for
    new trial.
    8.	 Motions for New Trial: Time: Appeal and Error. A motion for new
    trial not filed in conformity with the statutory requirements as to time
    may not be considered by an appellate court on review.
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    STATE v. AVINA-MURILLO
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    9.	 Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
    counsel is different from his or her counsel on direct appeal, the defend­
    ant must raise on direct appeal any issue of trial counsel’s ineffective
    performance which is known to the defendant or is apparent from the
    record. Otherwise, the issue will be procedurally barred.
    10.	 Effectiveness of Counsel: Records: Appeal and Error. The fact that
    an ineffective assistance of counsel claim is raised on direct appeal does
    not necessarily mean that it can be resolved. The determining factor is
    whether the record is sufficient to adequately review the question.
    11.	 Effectiveness of Counsel: Conflict of Interest. The right to effective
    assistance of counsel entitles the accused to his or her counsel’s undi-
    vided loyalties, free from conflicting interests.
    12.	 Effectiveness of Counsel: Proof. Generally, 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 his or her counsel’s performance was deficient and that this
    deficient performance actually prejudiced the defendant’s defense.
    13.	 ____: ____. To show that counsel’s performance was deficient, a defend­
    ant must show that counsel’s performance did not equal that of a lawyer
    with ordinary training and skill in criminal law.
    14.	 Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
    dice, the defendant must demonstrate a reasonable probability that but
    for counsel’s deficient performance, the result of the proceeding would
    have been different. A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.
    15.	 Effectiveness of Counsel: Conflict of Interest: Presumptions.
    Prejudice is presumed only if the defendant demonstrates that counsel
    actively represented conflicting interests and that an actual conflict of
    interest adversely affected his lawyer’s performance.
    16.	 Effectiveness of Counsel: Conflict of Interest: Presumptions: Case
    Disapproved. State v. Cotton, 
    299 Neb. 650
    , 
    910 N.W.2d 102
    (2018);
    State v. Armstrong, 
    290 Neb. 991
    , 
    863 N.W.2d 449
    (2015); and State
    v. Edwards, 
    284 Neb. 382
    , 
    821 N.W.2d 680
    (2012), are disapproved
    to the extent they can be read to always require a presumption of
    prejudice where counsel’s conflict of interest does not involve mul-
    tiple representation.
    17.	 Trial: Effectiveness of Counsel: Presumptions. In determining whether
    trial counsel’s performance was deficient, there is a strong presumption
    that counsel acted reasonably.
    Appeal from the District Court for Douglas County: Duane
    C. Dougherty, Judge. Affirmed.
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    STATE v. AVINA-MURILLO
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    Christopher J. Roth, of Forney Roth, L.L.C., for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Freudenberg, JJ.
    Cassel, J.
    INTRODUCTION
    After being convicted by a jury and sentenced in a criminal
    case, Veronica P. Avina-Murillo brings this direct appeal. We
    cannot review the denial of her motion for new trial, because
    the motion was not timely. We review her ineffective assist­
    ance claims, stemming from her initial trial counsel’s alleg-
    edly unethical conduct—which she characterizes as a con-
    flict of interest. A central question is whether the Strickland
    v. Washington1 standard applies or whether prejudice should
    be presumed. On these facts, we conclude that Strickland
    applies and that the record is insufficient to resolve her claims.
    We affirm.
    BACKGROUND
    The State charged Avina-Murillo with negligent child abuse
    resulting in serious bodily injury based on events occurring
    on April 2, 2015. On that day, J.P.’s mother took 6-month-old
    J.P. to Avina-Murillo’s house to be watched. While there, J.P.
    began to act abnormally. A doctor later diagnosed J.P. with
    abusive head trauma.
    The district court conducted a jury trial. Prior to the intro-
    duction of evidence, the court sustained the State’s motion to
    sequester all of the witnesses.
    During opening statements, Avina-Murillo’s counsel advised
    the jury that it would hear from J.P.’s parents. Counsel outlined
    the parents’ testimonies:
    1
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
          (1984).
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    [The parents] are going to testify that their child was not
    fine the morning that she was dropped off. The parents
    are going to tell you that they took their child to the hos-
    pital multiple times and were given different answers by
    different individuals at the hospitals weeks prior to April
    2nd[, 2015].
    ....
    The parents will testify that . . . Avina[-Murillo] was
    not with the child seconds to minutes before. . . . The
    parents will testify that their child was not with . . .
    Avina[-Murillo] during that time.
    The parents will testify contrary to what you just heard,
    actually. The parents will testify that when mother came
    to pick child up, child was sleeping like any other time.
    Mom — Mother spoke to [Avina-Murillo] for some time,
    10, 15 minutes, nothing, child’s sleeping. Mom then
    drives to house. . . . [S]he will tell you 10 to 15 minutes
    more driving. We’re not at 30 minutes.
    She will then testify that when she walked into the
    house, Dad wasn’t there. Dad came in shortly thereafter,
    but some more time passed, ten minutes. They then talked
    about their day and about whatever else. They’ll both tell
    you this. More time passes.
    Approximately — approximately, 45 minutes to an
    hour later, the baby wakes up. They notice baby is not as
    they would expect at that point. They go to — well, to
    see their — wasn’t the ER, but it was to see a physician
    before they were transferred. The evidence you will hear
    is not like the preview you were just given.
    According to the evidence, at approximately 8 a.m. on
    April 2, 2015, J.P.’s mother took J.P. to Avina-Murillo’s house.
    J.P., who is Avina-Murillo’s niece, appeared to be fine. But at
    approximately 10 a.m., Avina-Murillo noticed that J.P. looked
    listless, that “her eyes did not look normal,” and that “[s]he
    was touching her right ear quite a bit.” A detective testified that
    Avina-Murillo told him J.P. “became lethargic, moaning, and
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    STATE v. AVINA-MURILLO
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    . . . the eyes would move in opposite directions.” According
    to the detective, Avina-Murillo indicated to him that she knew
    there was something wrong with J.P. at that point in time. But
    she did not believe it was anything serious or grave.
    According to Avina-Murillo, J.P. had exhibited similar
    behavior “[d]ays before.” In mid-March 2015, J.P. experienced
    vomiting and diarrhea. J.P.’s parents took her to the emergency
    room two or three times, and J.P. was diagnosed with a viral
    illness. But during a followup visit 2 to 3 days prior to April 2,
    J.P. looked well and was no longer vomiting.
    Avina-Murillo called J.P.’s mother to let her know that J.P.
    “was not acting right.” She told J.P.’s mother that she believed
    J.P. was sick like J.P. had been earlier and that J.P. might have
    “gotten some air in her ear.” In response, J.P.’s mother told
    Avina-Murillo to administer Tylenol for ear pain and to put
    cotton in J.P.’s ear with a little bit of “vapor rub.” After Avina-
    Murillo did so, J.P. drank her bottle and fell asleep. After noon,
    J.P.’s mother arrived to take J.P. home.
    At approximately 4:50 p.m., J.P.’s parents took J.P. to a doc-
    tor. At that time, J.P. was lethargic, crying, and inconsolable.
    She had symptoms indicating increased pressure in the brain.
    Intracranial pressure can cause brain damage and is a poten-
    tially life-threatening injury. A CT scan revealed a subdural
    hematoma, i.e., bleeding on the inside of the brain. The CT
    scan showed both newer and older bleeding. Newer bleeding is
    bleeding typically within the past 24 hours, while older bleed-
    ing is generally 48 to 72 hours old or older.
    A child abuse pediatrician believed that J.P. most likely suf-
    fered a rotational or shaking injury. A different doctor testified
    that the injury revealed on the CT scan would have required sig-
    nificant force and that symptoms would have appeared “fairly
    shortly after onset of this type of bleeding.” The defense’s
    expert opined that it was not possible to determine the specific
    time that an acute subdural hematoma occurred.
    During the trial, the district court made a record after an
    issue arose. The court recounted that there was a no contact
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    STATE v. AVINA-MURILLO
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    order prohibiting Avina-Murillo from communicating with J.P.,
    that there was an order of sequestration as to any witnesses,
    and that the State had listed J.P.’s parents as witnesses. The
    prosecutor then stated that over the lunch hour, Avina-Murillo
    and her counsel were observed having lunch together with J.P.
    and J.P.’s parents.
    Avina-Murillo’s counsel offered a different version of
    events. He explained that at some point while he, his assist­
    ant, Avina-Murillo, and Avina-Murillo’s husband were hav-
    ing lunch, J.P.’s parents entered the restaurant. According to
    counsel, “Nothing between them was discussed.” But counsel
    stated that after talking to Avina-Murillo and in order “to
    essentially keep this clean,” the defense would not call either
    parent to testify.
    The court and Avina-Murillo’s counsel then engaged in a
    colloquy regarding the voluntariness of the decision not to call
    the parents as witnesses. Avina-Murillo’s counsel informed the
    court that he had spoken to Avina-Murillo “before Your Honor
    came out” and that the decision not to call J.P.’s parents as wit-
    nesses was Avina-Murillo’s free and voluntary act.
    Later, while the jury was deliberating, the court held another
    hearing at the State’s request regarding the lunch incident.
    Video acquired from the restaurant contradicted what Avina-
    Murillo’s counsel reported to the court. The video showed
    defense counsel, his assistant, Avina-Murillo, J.P., and J.P.’s
    parents all surrounding the same table, having lunch together.
    The State requested that sanctions be ordered against defense
    counsel for encouraging the violation of the no contact order
    and for giving the court false information.
    On Friday, September 29, 2017, the jury returned a guilty
    verdict, and we describe in more detail below the proce-
    dures employed by the court. On that date, the court signed a
    “Judgment on Conviction,” but this document did not impose
    any sentence. It was not filed until October 3.
    On Wednesday, October 11, 2017, Avina-Murillo moved
    for a new trial. The motion alleged that irregularities in the
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    proceedings occurred and that Avina-Murillo was prevented
    from having a fair trial.
    In November 2017, the court imposed a sanction against
    Avina-Murillo’s counsel for intentionally misleading the court
    as to events occurring during the trial. As a sanction, the court
    filed a formal complaint with the Nebraska Supreme Court’s
    Counsel for Discipline.
    On December 14, 2017, Avina-Murillo, through new counsel,
    filed an amended motion for new trial. She alleged an irregu-
    larity in the proceedings, including the lunch incident and the
    decision not to call J.P.’s parents as witnesses. Avina-Murillo
    claimed that her right to due process was violated when she
    was unable to present an adequate defense to the jury.
    The court held a hearing on the motion and received sev-
    eral affidavits. Avina-Murillo stated in an affidavit that after
    her counsel had a meeting with the judge and the prosecutor,
    her counsel told her that J.P.’s parents were “no longer able
    to testify.” She stated that when, back in the courtroom, the
    court asked her counsel about J.P.’s parents’ testifying, it was
    her understanding J.P.’s parents were unable to testify and she
    was unaware she had the choice to call them as witnesses. She
    stated that she would have called the parents as witnesses if
    she had known she had the option, because she believed their
    testimonies would have helped her case.
    The court also received affidavits from J.P.’s parents that
    were nearly identical in substance. J.P.’s parents stated that
    Avina-Murillo’s counsel told them that there would be “prob-
    lems or a big scandal” if they took the witness stand and
    that “the best thing to do would be to not take the witness
    stand.” They stated that their testimonies would have been
    consistent with prior statements to police and the prosecu-
    tor. They would have testified that J.P. was vomiting and
    very sleepy in the 7 days before April 2, 2015. They “would
    have testified about the different statements from the doctors
    regarding the cause of [J.P.’s] conditions and medical issues,
    which includes the fact that two doctors had told [them]
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    that [J.P.’s] issues were not caused by a shaking injury.”
    They would have testified that due to J.P.’s blood condition,
    any shaking of her would have caused bruising where the
    shaker grabbed her. Further, J.P.’s parents would have testified
    that they did not believe Avina-Murillo was responsible for
    J.P.’s condition.
    The court denied Avina-Murillo’s motion for new trial. The
    court stated that it did not see any exculpatory evidence in the
    affidavits and that information in the affidavits “appear[ed]
    to be evidence that was presented . . . at the trial.” The
    court then proceeded to sentencing and imposed a sentence
    of probation.
    Through the same counsel who filed the amended motion
    for new trial, Avina-Murillo timely appealed. We granted her
    petition to bypass review by the Nebraska Court of Appeals.
    ASSIGNMENTS OF ERROR
    Avina-Murillo assigns that for several reasons, the district
    court erred in denying her motion for new trial. She also asserts
    that her trial counsel was ineffective when he (1) decided not
    to call J.P.’s parents as witnesses, (2) failed to move for a
    mistrial, (3) failed to withdraw due to an ethical conflict of
    interest, and (4) failed to consult with Avina-Murillo about
    those decisions.
    STANDARD OF REVIEW
    [1] We have often said that in a criminal case, a motion for
    new trial is addressed to the discretion of the trial court, and
    that unless an abuse of discretion is shown, the trial court’s
    determination will not be disturbed.2 But although we have
    not said so before in so many words, where there is no factual
    dispute, the timeliness of a motion for new trial presents a
    question of law.3
    2
    See, e.g., State v. Hairston, 
    298 Neb. 251
    , 
    904 N.W.2d 1
    (2017).
    3
    See, State v. Thompson, 
    244 Neb. 375
    , 
    507 N.W.2d 253
    (1993); Parker v.
    State, 
    164 Neb. 614
    , 
    83 N.W.2d 347
    (1957).
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    [2,3] Whether a claim of ineffective assistance of trial coun-
    sel may be determined on direct appeal is a question of law.4 In
    reviewing claims of ineffective assistance of counsel on direct
    appeal, an appellate court decides only whether the undisputed
    facts contained within the record are sufficient to conclusively
    determine whether counsel did or did not provide effective
    assistance and whether the defendant was or was not preju-
    diced by counsel’s alleged deficient performance.5
    ANALYSIS
    Motion for New Trial
    Twelve days after the jury returned its verdict, Avina-Murillo
    filed a motion for new trial. Some 2 months after that, she filed
    an amended motion. As the State correctly argues, neither
    motion was timely.
    [4] Statutes set forth the grounds and time limits for filing
    a motion for new trial.6 Avina-Murillo’s original motion for
    new trial alleged grounds under § 29-2101(1) and (4), and her
    amended motion set forth grounds under § 29-2101(1) and (7).
    According to § 29-2103(3), a motion for new trial based on
    the grounds set forth in § 29-2101(1) through (4) or (7) “shall
    be filed within ten days after the verdict was rendered unless
    such filing is unavoidably prevented . . . .” This court has long
    held that § 29-2103 by its terms is mandatory.7
    [5] The time limitation for filing a motion for new trial runs
    from rendition of the verdict. A statute provides that when
    the jury has agreed upon its verdict, the jury must be “con-
    ducted into court” and may be polled at the request of either
    the prosecuting attorney or the defendant before the verdict is
    accepted.8 A jury’s action cannot become a verdict until it is
    4
    State v. Vanness, 
    300 Neb. 159
    , 
    912 N.W.2d 736
    (2018).
    5
    Id.
    6
    See Neb. Rev. Stat. §§ 29-2101 and 29-2103 (Reissue 2016).
    7
    State v. Thompson, supra note 3.
    8
    Neb. Rev. Stat. § 29-2024 (Reissue 2016).
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    finally rendered in open court and received and accepted by
    the trial judge.9
    With that understanding, we summarize what happened. The
    record shows that on September 29, 2017, the jury returned
    to the courtroom and responded “[y]es” to the court’s ques-
    tion whether it had reached a verdict. The court clerk read the
    verdict in open court. After reading the verdict, the clerk asked
    if it was the jury’s “unanimous, final verdict.” The foreper-
    son responded, “Yes.” The court then asked if there was any
    request to poll the jury. There was not. The court sent the jury
    out and stated that it “will accept the verdict of the jury and
    find and enter a judgment of guilty against [Avina-Murillo] in
    this matter.” It added, “The Court will order [Avina-Murillo] to
    appear for a sentencing” and specified the date and time. The
    court announced the revocation of Avina-Murillo’s bond and
    placed her in the sheriff’s custody.
    As this summary demonstrates, the verdict was finally ren-
    dered in open court and received and accepted by the trial
    judge on September 29, 2017. On appeal, Avina-Murillo makes
    two arguments to avoid this conclusion.
    First, she argues that the verdict was not accepted until the
    filing of the “Judgment on Conviction” on October 3, 2017.
    But despite the court’s use of the word “will,” it is clear that
    the jury rendered its verdict and the court accepted the verdict
    in open court on September 29. On that date, the court also
    completed and signed the “Judgment on Conviction.”
    Avina-Murillo’s reliance on the filing date is misplaced.
    Technically, the document was not a “judgment.” We have
    held that the judgment in a criminal case is the sentence.10 The
    document here did not impose a sentence. It merely memo­
    rialized what had already transpired. The delay in filing of the
    document did not affect the legal significance of the events
    that already had occurred in open court.
    9
    State v. Combs, 
    297 Neb. 422
    , 
    900 N.W.2d 473
    (2017).
    10
    See 
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    [6] Consequently, Avina-Murillo did not file her initial
    motion within 10 days after the verdict was rendered. Unless
    one of the two statutory exceptions applies, a motion for new
    trial filed more than 10 days after the verdict has no effect.11
    Second, Avina-Murillo attempts to invoke one of the excep-
    tions. She urges us to find that she was “unavoidably delayed
    in her filing”12 under § 29-2103(3). It does not appear from
    the record that the district court considered the timeliness of
    her motion. We note that neither motion claimed that Avina-
    Murillo was “unavoidably prevented” from filing it within 10
    days after the verdict was rendered.13
    [7] “[U]navoidably prevented” as used in § 29-2103 refers
    to circumstances beyond the control of the party filing the
    motion for new trial.14 The law requires diligence on the part
    of clients and their attorneys, and the mere neglect of either
    will not entitle a party to relief on that ground.15
    Nothing in the record would allow us to find that Avina-
    Murillo was unavoidably prevented from filing her motion on
    time. Thus, her attempt to invoke the statutory exception fails.
    [8] Because both of her arguments fail, we cannot address
    the district court’s ruling on the motion. A motion for new
    trial not filed in conformity with the statutory requirements
    as to time may not be considered by an appellate court on
    review.16 Even where a trial court has considered the merits
    of an untimely motion for new trial, we have stated that such
    a motion was not properly before us.17 Because Avina-Murillo
    11
    See State v. McCormick and Hall, 
    246 Neb. 271
    , 
    518 N.W.2d 133
    (1994),
    abrogated in part on other grounds, State v. Thomas, 
    262 Neb. 985
    , 
    637 N.W.2d 632
    (2002).
    12
    Reply brief for appellant at 2.
    13
    See § 29-2103(3).
    14
    State v. Thompson, 
    246 Neb. 752
    , 
    523 N.W.2d 246
    (1994).
    15
    State v. Hawkman, 
    198 Neb. 578
    , 
    254 N.W.2d 90
    (1977).
    16
    State v. Thompson, supra note 3.
    17
    See 
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    did not file a timely motion for new trial, we do not con-
    sider her assignments of error relating to the overruling of
    the motion.
    Ineffective Assistance of Counsel
    Through different counsel, Avina-Murillo argues that in sev-
    eral respects, her initial trial counsel was ineffective. Her argu-
    ments all relate to the lunch incident and its aftermath.
    [9,10] The law requires her to assert these issues now, but
    we may not be able to decide them on direct appeal. When a
    defendant’s trial counsel is different from his or her counsel
    on direct appeal, the defendant must raise on direct appeal any
    issue of trial counsel’s ineffective performance which is known
    to the defendant or is apparent from the record. Otherwise, the
    issue will be procedurally barred.18 The fact that an ineffec-
    tive assistance of counsel claim is raised on direct appeal does
    not necessarily mean that it can be resolved. The determining
    factor is whether the record is sufficient to adequately review
    the question.19
    [11] Avina-Murillo’s claims are premised on her trial
    counsel’s having a conflict of interest. The right to effec-
    tive assistance of counsel entitles the accused to his or her
    counsel’s undivided loyalties, free from conflicting interests.20
    Specifically, she claims that counsel performed deficiently
    when he (1) decided not to call J.P.’s parents as witnesses after
    informing the jury of those witnesses’ testimonies during open-
    ing statements, (2) failed to move for a mistrial, (3) failed to
    withdraw due to an ethical conflict of interest, and (4) failed
    to consult with Avina-Murillo about those decisions. According
    to Avina-Murillo, her counsel was placed in a situation in
    which he had divided loyalties and had to choose between loy-
    alty to himself and loyalty to his client.
    18
    State v. Vanness, supra note 4.
    19
    
    Id. 20 State
    v. Cotton, 
    299 Neb. 650
    , 
    910 N.W.2d 102
    (2018).
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    [12-14] Generally, to prevail on a claim of ineffective assist­
    ance of counsel under Strickland,21 the defendant must show
    that his or her counsel’s performance was deficient and that
    this deficient performance actually prejudiced the defendant’s
    defense.22 To show that counsel’s performance was deficient, a
    defendant must show that counsel’s performance did not equal
    that of a lawyer with ordinary training and skill in criminal
    law.23 To show prejudice, the defendant must demonstrate a
    reasonable probability that but for counsel’s deficient perform­
    ance, the result of the proceeding would have been different. A
    reasonable probability is a probability sufficient to undermine
    confidence in the outcome.24 The two prongs of this test may
    be addressed in either order, and the entire ineffectiveness anal-
    ysis should be viewed with a strong presumption that counsel’s
    actions were reasonable.25
    [15] But the Strickland Court recognized that prejudice is
    presumed in some situations. “Actual or constructive denial
    of the assistance of counsel altogether is legally presumed to
    result in prejudice. So are various kinds of state interference
    with counsel’s assistance.”26 In such situations, prejudice “is
    so likely that case-by-case inquiry into prejudice is not worth
    the cost” and the impairments to the right to counsel “are easy
    to identify.”27 The Strickland Court then cited to Cuyler v.
    Sullivan 28 and stated that “a similar, though more limited, pre-
    sumption of prejudice” applies “when counsel is burdened by
    21
    Strickland v. Washington, supra note 1.
    22
    State v. Cotton, supra note 20.
    23
    
    Id. 24 Id.
    25
    
    Id. 26 Strickland
    v. Washington, supra note 
    1, 466 U.S. at 692
    .
    27
    
    Id. 28 Cuyler
    v. Sullivan, 
    446 U.S. 335
    , 
    100 S. Ct. 1708
    , 
    64 L. Ed. 2d 333
          (1980).
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    an actual conflict of interest.”29 In that situation, “it is difficult
    to measure the precise effect on the defense of representa-
    tion corrupted by conflicting interests.”30 The Strickland Court
    specified that “[p]rejudice is presumed only if the defend­
    ant demonstrates that counsel ‘actively represented conflict-
    ing interests’ and that ‘an actual conflict of interest adversely
    affected his lawyer’s performance.’”31
    At this juncture, it is necessary to recognize that there
    are several types of conflicts of interest that could arise. An
    attorney may concurrently represent clients with conflicting
    interests (multiple representation). An attorney could succes-
    sively represent clients with conflicting interests (successive
    representation). Or the interests of the client may conflict with
    the attorney’s personal interests (personal interest conflict).
    “Not all conflicts of interest that affect the attorney’s ‘duty
    of loyalty’ have the same consequences, and they are not all
    suited to Cuyler’s stringent rule.”32 Multiple representation
    conflicts tend to present the most problems, because whatever
    path the attorney takes will likely harm the interests of at least
    one client. On the other hand, when the attorney has a personal
    conflict, the attorney can still fulfill his or her duty of loyalty
    to the client, although doing so may be to the detriment of the
    attorney’s personal interest.
    Where a conflict of interest involves multiple representa-
    tion, the U.S. Supreme Court has provided clear guidance.
    Automatic reversal is appropriate where defense counsel is
    improperly forced to represent codefendants over counsel’s
    timely objection.33 The Court held in Cuyler that where there
    is no timely objection, “a defendant who shows that a conflict
    29
    Strickland v. Washington, supra note 
    1, 466 U.S. at 692
    .
    30
    
    Id. 31 Id.
    32
    Beets v. Scott, 
    65 F.3d 1258
    , 1269 (5th Cir. 1995).
    33
    See Holloway v. Arkansas, 
    435 U.S. 475
    , 
    98 S. Ct. 1173
    , 
    55 L. Ed. 2d 426
          (1978).
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    of interest actually affected the adequacy of his representation
    need not demonstrate prejudice in order to obtain relief.”34 The
    Court later explained that the purpose of the Cuyler exception
    is “to apply needed prophylaxis in situations where Strickland
    itself is evidently inadequate to assure vindication of the
    defend­ant’s Sixth Amendment right to counsel.”35
    But the law has evolved regarding whether the presumed
    prejudice standard should apply to other conflict of interest
    situations. The Fifth Circuit concluded that the presumed preju-
    dice standard applied only to multiple representation conflicts
    and that a court should apply the Strickland standard when
    the conflict involves counsel’s self-interest.36 Subsequently, in
    dicta contained in Mickens v. Taylor,37 the U.S. Supreme Court
    observed that federal courts of appeals had applied Cuyler
    “‘unblinkingly’ to ‘all kinds of alleged attorney ethical con-
    flicts.’” But the Mickens Court cautioned that “the language
    of [Cuyler] itself does not clearly establish, or indeed even
    support, such expansive application.”38 In Mickens, the Court
    explicitly left open whether Cuyler should be extended to cases
    of successive representation.
    Our own case law post-Mickens does not reveal a clear
    standard for ineffective assistance of counsel claims involv-
    ing conflicts of interest. In 2006, we discussed Mickens and
    stated that “prejudice will be presumed only if the conflict has
    significantly affected counsel’s performance, thereby rendering
    the verdict unreliable, even though Strickland prejudice cannot
    be shown.”39 In the 2006 case, the alleged conflict involved
    34
    Cuyler v. Sullivan, supra note 
    28, 446 U.S. at 349-50
    .
    35
    Mickens v. Taylor, 
    535 U.S. 162
    , 176, 
    122 S. Ct. 1237
    , 
    152 L. Ed. 2d 291
          (2002). See Strickland v. Washington, supra note 1.
    36
    See Beets v. Scott, supra note 32.
    37
    Mickens v. Taylor, supra note 
    35, 535 U.S. at 174
    , quoting Beets v. Scott,
    supra note 32.
    38
    Mickens v. Taylor, supra note 
    35, 535 U.S. at 175
    .
    39
    State v. Aldaco, 
    271 Neb. 160
    , 167-68, 
    710 N.W.2d 101
    , 108 (2006).
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    defense counsel’s prior representation of the victim’s brother
    (a successive representation) and we determined on direct
    appeal that there was no actual conflict nor any basis for a
    presumption of prejudice. Two years later, in a postconviction
    appeal, we were confronted with a claim that appellate counsel
    had a conflict due to a close personal relationship with trial
    counsel and consequently failed to argue that trial counsel
    provided ineffective assistance.40 We stated: “Ordinarily, such
    a conflict arises when an attorney is representing multiple
    defendants. This court, however, has previously defined ‘actual
    conflict’ broadly. The term therefore encompasses any situation
    in which a defense attorney faces divided loyalties such that
    regard for one duty tends to lead to disregard of another.” 41 We
    resolved the issue by determining that the defendant failed to
    show the trial court erred in concluding that the two attorneys
    had no personal relationship.
    Two of our decisions, both involving postconviction proceed-
    ings, warrant more indepth discussion. In State v. Edwards,42
    Christopher A. Edwards alleged, among other things, that his
    counsel failed to provide a meaningful defense due to his
    friendship with a material prosecution witness. After Edwards’
    trial, his counsel represented this witness in a criminal prosecu-
    tion. We stated the following with respect to Mickens:
    [T]he U.S. Supreme Court stated that the “actual con-
    flict” inquiry is not separate from a performance inquiry:
    “An ‘actual conflict,’ for Sixth Amendment purposes,
    is a conflict of interest that adversely affects counsel’s
    per­formance.” Thus, we have stated that when an actual
    conflict exists, there is no need to show that the conflict
    resulted in actual prejudice to the defendant (meaning
    no need to show the outcome of the proceeding was
    affected). But the substantive analysis is the same. If the
    40
    See State v. Jackson, 
    275 Neb. 434
    , 
    747 N.W.2d 418
    (2008).
    41
    
    Id. at 442,
    747 N.W.2d at 429.
    42
    State v. Edwards, 
    284 Neb. 382
    , 
    821 N.W.2d 680
    (2012).
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    defendant shows that his or her defense counsel faced a
    situation in which conflicting loyalties pointed in opposite
    directions and that his or her counsel acted for the other
    client’s interests and against the defendant’s interests,
    prejudice is presumed.43
    We proceeded to discuss conflicts of interest resulting from
    successive representation. Ultimately, we reversed the decision
    and remanded the cause for an evidentiary hearing on the issue.
    Upon our remand in Edwards, the trial court held an eviden-
    tiary hearing.44 During the hearing, counsel denied a friendship
    with the witness. Counsel testified that before he agreed to
    represent the witness, he researched whether the representation
    would cause a conflict of interest. He was advised that such
    representation would not affect Edwards’ case, even though
    there were still briefs to be written for Edwards’ direct appeal.
    The trial court determined that counsel did not have an actual
    conflict of interest. Upon Edwards’ appeal, we stated that
    “[t]he record simply does not support a finding that [counsel]
    had such a loyalty to [the witness] that would have tempted
    him at trial to act against Edwards’ interests.” 45 We agreed that
    counsel did not have an actual conflict of interest at the time he
    served as Edwards’ trial counsel.
    We addressed a personal interest conflict in State v.
    Armstrong.46 We began by stating that counsel performed defi-
    ciently and that “[d]efense counsel’s interest in avoiding crimi-
    nal or ethical sanctions was in conflict with [the defendant’s]
    interest in presenting the strongest defense possible.” 47 With
    regard to the prejudice component, we first set forth the
    Strickland standard of “a reasonable probability that but for
    counsel’s deficient performance, the result of the proceeding
    43
    
    Id. at 406-07,
    821 N.W.2d at 701.
    44
    See State v. Edwards, 
    294 Neb. 1
    , 
    880 N.W.2d 642
    (2016).
    45
    
    Id. at 22,
    880 N.W.2d at 655.
    46
    State v. Armstrong, 
    290 Neb. 991
    , 
    863 N.W.2d 449
    (2015).
    47
    
    Id. at 1015,
    863 N.W.2d at 467.
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    would have been different.” 48 Next, we stated that prejudice is
    presumed if the defendant shows conflicting loyalties pointed
    in opposite directions and counsel acted against the defend­
    ant’s interests. We then stated, “[E]ven if we do not apply
    such presumption, we easily conclude that actual prejudice
    resulted from counsel’s deficient performance.” 49 Ultimately,
    we applied Strickland to resolve the prejudice component,
    stating: “Under the totality of the circumstances presented at
    trial, the decision would reasonably likely have been different
    but for counsel’s error leading to the absence of the testimony
    of [the defendant’s] wife and son-in-law.”50 In the conclusion
    portion of our opinion, we stated that the defendant “met both
    prongs of his burden under Strickland.”51
    Two of our recent cases presented alleged conflicts of inter-
    est raised on direct appeal. In the context of a multiple rep-
    resentation, we determined that the record was insufficient
    to review the claim.52 In a case involving a personal interest
    conflict, we stated that “[i]f the defendant shows that his or her
    defense counsel faced a situation in which conflicting loyal-
    ties pointed in opposite directions and that his or her counsel
    acted for the other client’s interests or the counsel’s own per-
    sonal interests and against the defendant’s interests, prejudice
    is presumed.”53 But in that case, we found that the defendant
    validly waived the conflict of interest.
    [16] The State seeks guidance as to the applicable stan-
    dard, but we decline to adopt a bright-line rule as to whether
    Cuyler or Strickland applies to personal interest conflicts.54
    48
    
    Id. at 1016,
    863 N.W.2d at 467.
    49
    
    Id. at 1016,
    863 N.W.2d at 468.
    50
    
    Id. at 1020,
    863 N.W.2d at 470.
    51
    
    Id. 52 See
    State v. Vanness, supra note 4.
    53
    State v. Cotton, supra note 
    20, 299 Neb. at 674-75
    , 910 N.W.2d at 128.
    54
    See, Strickland v. Washington, supra note 1; Cuyler v. Sullivan, supra
    note 28.
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    In most such cases, the more burdensome Strickland standard
    should apply. The Fifth Circuit explained that “[b]ecause the
    scope of the duty of loyalty with respect to attorney self-
    interest is inherently vague and overlaps with professional
    effectiveness, Strickland ought to set the constitutional norm
    of adequate representation.”55 But we can envision a situation
    in which the conflict is so serious that the defendant should
    be relieved of the obligation to show a reasonable probability
    that the outcome of the trial would have been different. Thus,
    we think the better approach is to determine the appropriate
    standard on a case-by-case basis. We disapprove of State v.
    Cotton,56 State v. Armstrong,57 and State v. Edwards 58 to the
    extent they can be read to always require a presumption of
    prejudice where counsel’s conflict of interest does not involve
    multiple representation.
    Because the alleged personal interest conflict here does
    not rise to the level of demanding a presumption of preju­
    dice, we apply the Strickland standard. As we recited above,
    in order to prevail under Strickland, Avina-Murillo must show
    that her counsel’s performance did not equal that of a law-
    yer with ordinary training and skill in criminal law and a
    reasonable probability that but for counsel’s deficient per-
    formance, the result of the proceeding would have been
    different.59
    Both parties contend, for different reasons, that the record
    on direct appeal is sufficient to resolve Avina-Murillo’s inef-
    fective assistance of counsel claims. They direct us to affida-
    vits received during the hearing on the motion for new trial.
    During oral arguments, the State conceded that such evidence
    can and should be considered for purposes of the ineffective
    55
    Beets v. Scott, supra note 
    32, 65 F.3d at 1271
    .
    56
    State v. Cotton, supra note 20.
    57
    State v. Armstrong, supra note 46.
    58
    State v. Edwards, supra note 42.
    59
    See State v. Cotton, supra note 20.
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    assistance of counsel claims, regardless of the timeliness of the
    motion for new trial.
    But in considering this evidence, we are mindful that it
    was not tested in an adversarial way. Although the court
    received the affidavits, it did not conduct an evidentiary hear-
    ing. Thus, the State did not have a chance to cross-examine
    the affiants about their statements. And the affidavits merely
    presented Avina-Murillo’s and the parents’ unchallenged ver-
    sion of events. Conspicuously absent is counsel’s side of
    the story. Thus, we cannot say that the undisputed facts are
    sufficient to conclusively determine whether Avina-Murillo’s
    initial trial counsel did or did not provide effective assistance.
    Too much depends on speculation, assumptions, inferences, or
    untested affidavits. We will not presume prejudice based on
    mere speculation.60
    [17] Rarely do we find on direct appeal that a defendant
    established a claim of ineffective assistance of trial counsel. In
    determining whether trial counsel’s performance was deficient,
    there is a strong presumption that counsel acted reasonably.61
    On only two occasions have we, on direct appeal, found that
    trial counsel’s actions could not be justified as a part of any
    plausible trial strategy.62 In State v. Rocha,63 where counsel
    failed to move to sever a sexual assault charge from child
    abuse charges, we stated that we could conceive of no stra-
    tegic reason for counsel’s failure to act and that such failure
    undermined our confidence in the outcome of the trial. In
    State v. Faust,64 we concluded that counsel provided ineffec-
    tive assistance “by failing to object to a significant amount
    60
    State v. Sandoval, 
    280 Neb. 309
    , 
    788 N.W.2d 172
    (2010).
    61
    State v. Williams, 
    295 Neb. 575
    , 
    889 N.W.2d 99
    (2017).
    62
    See, State v. Rocha, 
    286 Neb. 256
    , 
    836 N.W.2d 774
    (2013); State v. Faust,
    
    265 Neb. 845
    , 
    660 N.W.2d 844
    (2003), disapproved on other grounds,
    State v. McCulloch, 
    274 Neb. 636
    , 
    742 N.W.2d 727
    (2007).
    63
    State v. Rocha, supra note 62.
    64
    State v. Faust, supra note 
    62, 265 Neb. at 870
    , 660 N.W.2d at 868.
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    of improper negative character evidence.” Because the jury
    was presented with inadmissible evidence that was inflam-
    matory and had an increased potential for jury confusion, we
    could not ascertain “whether the defendant was convicted for
    committing the elements of the crime charged or whether the
    jury determined guilt because the defendant was a generally
    aggressive or violent person and, thus, more likely to commit
    the crime.”65 But finding ineffective assistance on direct appeal
    is the exceptional case, and for good reason. Failing to call a
    witness promised during opening statement simply does not
    reach that level. There are many legitimate reasons why this
    could occur. Although the record suggests that a personal inter-
    est conflict may have been involved, it does not conclusively
    establish cause and effect.
    Based on the record before us, we cannot conclusively
    determine as a matter of law that counsel’s alleged deficient
    performance did or did not cause Avina-Murillo prejudice. As
    noted, there is a strong presumption that counsel acted rea-
    sonably, and we decline to speculate as to the trial strategy, if
    any, behind counsel’s decisions.
    Further, we disagree with the State that evidence of guilt was
    overwhelming. We recognize that because this case involved a
    negligent child abuse charge, the State needed to prove beyond
    a reasonable doubt only that Avina-Murillo negligently caused
    or permitted J.P. to be (1) placed in a situation that endangered
    her life or physical or mental health, (2) cruelly punished, or
    (3) deprived of necessary care.66 But we cannot say conclu-
    sively that the outcome would have been the same had the
    jury heard from J.P.’s parents, as it had been told it would.
    Avina-Murillo’s other allegations of ineffectiveness—counsel’s
    failure to move for a mistrial, move to withdraw, or consult
    with Avina-Murillo regarding the actions about which she
    complains—are all premised on the same alleged conflict as
    65
    
    Id. at 871,
    660 N.W.2d at 868-69.
    66
    See Neb. Rev. Stat. § 28-707(1) (Cum. Supp. 2014).
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    the decision not to call the parents as witnesses. The claims
    rise or fall together.
    Ultimately, we are missing necessary facts to conclusively
    determine whether counsel performed deficiently and whether
    there is a reasonable probability that absent such deficient
    performance, the result of the proceeding would have been
    different. We conclude that the record is insufficient on direct
    appeal to resolve Avina-Murillo’s claims of ineffective assist­
    ance of counsel.
    ­
    CONCLUSION
    We do not consider Avina-Murillo’s arguments regarding
    the overruling of her motion for new trial, because the motion
    was untimely. Applying the Strickland standard, we determine
    that the record is insufficient to resolve Avina-Murillo’s claims
    that she received ineffective assistance of counsel due to her
    initial trial counsel’s personal interest conflict. We therefore
    affirm Avina-Murillo’s conviction and sentence.
    A ffirmed.
    Papik, J., not participating.