State v. Collins , 299 Neb. 160 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    03/23/2018 08:13 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. COLLINS
    Cite as 
    299 Neb. 160
    State of Nebraska, appellee, v.
    Fredrick A. Collins, Jr., appellant.
    ___ N.W.2d ___
    Filed March 2, 2018.    No. S-17-147.
    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: Proof: 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.
    3.	 Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
    To establish a right to postconviction relief because of counsel’s inef-
    fective assistance, 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. To show prejudice, the defendant must demonstrate a reasonable
    probability that but for counsel’s deficient performance, the result
    of the proceeding would have been different. A court may address
    the two prongs of this test, deficient performance and prejudice, in
    either order.
    4.	 Effectiveness of Counsel: Speedy Trial. When a defendant alleges he
    or she was prejudiced by trial counsel’s failure to properly assert the
    defendant’s speedy trial rights, the court must consider the merits of
    the defendant’s speedy trial rights under Strickland v. Washington, 466
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. COLLINS
    Cite as 
    299 Neb. 160
    U.S. 668, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d
    674 (1984). Only if a motion
    would have resulted in the defendant’s absolute discharge, thus barring
    a later trial and conviction, could the failure to move for discharge be
    deemed ineffective assistance.
    5.	 Speedy Trial. To calculate the deadline for trial for speedy trial pur-
    poses, a court must exclude the day the State filed the information,
    count forward 6 months, back up 1 day, and then add any time excluded
    under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).
    6.	 Effectiveness of Counsel. As a matter of law, counsel cannot be ineffec-
    tive for failing to raise a meritless argument.
    7.	 Postconviction: Justiciable Issues: Right to Counsel: Appeal and
    Error. When the defendant’s petition presents a justiciable issue to the
    district court for postconviction determination, an indigent defendant is
    entitled to the appointment of counsel. But, where the assigned errors in
    the postconviction petition before the district court are either procedur-
    ally barred or without merit, establishing that the postconviction petition
    contained no justiciable issue of fact or law, it is not an abuse of discre-
    tion to fail to appoint counsel for an indigent defendant.
    Appeal from the District Court for Douglas County: Gregory
    M. Schatz, Judge. Affirmed.
    Fredrick A. Collins, Jr., pro se.
    Douglas J. Peterson, Attorney General, and Erin E. Tangeman
    for appellee.
    Heavican,        C.J.,    Miller-Lerman,           Cassel,     Stacy,     and
    Funke, JJ.
    Cassel, J.
    I. INTRODUCTION
    Fredrick A. Collins, Jr., appeals from an order denying his
    motion for postconviction relief. Collins failed to allege suf-
    ficient facts supporting the majority of his claims, and his
    remaining claims are without merit. We affirm.
    II. BACKGROUND
    Collins was originally charged with first degree sexual
    assault of a child, a Class IB felony, and third degree sexual
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. COLLINS
    Cite as 
    299 Neb. 160
    assault of a child, a Class IIIA felony. Pursuant to a plea
    agreement, Collins pled no contest to a reduced charge of first
    degree sexual assault, a Class II felony, and the State dismissed
    the third degree sexual assault of a child charge. The district
    court sentenced Collins to 10 to 15 years’ imprisonment with
    credit for 396 days of time served.
    On direct appeal, Collins assigned that he received an exces-
    sive sentence and that he was denied effective assistance of
    trial counsel. He alleged that his trial counsel was ineffective
    when counsel (1) failed to inform him of the potential penalty
    for a Class II felony, (2) failed to attack the validity of the
    information for lack of jurisdiction, (3) failed to file a motion
    for DNA testing or investigate why a sexual assault evidence
    collection kit was not completed, (4) failed to file a motion to
    discharge or dismiss, (5) failed to move to sever the offenses,
    (6) failed to file a motion seeking to exclude testimony from
    the victim and two witnesses, (7) failed to conduct depositions
    of a police detective and a child advocacy center employee, (8)
    failed to show him transcripts of any depositions, (9) failed to
    object to or correct the factual basis provided at the plea hear-
    ing, (10) coerced his acceptance of a plea deal, and (11) failed
    to attend a presentence investigation interview with him or
    review presentence investigation errors with him.
    We affirmed Collins’ sentence and determined that he was
    not prejudiced by any failure of trial counsel to inform him of
    the potential penalty for a Class II felony.1 We did not reach
    the remaining claims of ineffective assistance of counsel after
    determining that the record was not sufficient for review of
    those claims.
    Collins has now filed a motion for postconviction relief
    reasserting his 2d through 8th and 10th claims of ineffec-
    tive assistance of counsel which were not reviewed on direct
    appeal. He additionally filed a motion to appoint postconvic-
    tion counsel.
    1
    State v. Collins, 
    292 Neb. 602
    , 
    873 N.W.2d 657
    (2016).
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    Nebraska Supreme Court A dvance Sheets
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    STATE v. COLLINS
    Cite as 
    299 Neb. 160
    The district court denied postconviction relief without an
    evidentiary hearing after finding Collins’ claims were either
    insufficiently pled or without merit. The court also denied
    Collins’ request for appointment of postconviction counsel.
    Collins appealed, and we moved the case to our docket.2
    III. ASSIGNMENTS OF ERROR
    Collins assigns, restated, that the district court erred in
    failing to (1) conduct an evidentiary hearing on his claims of
    ineffective assistance of counsel and (2) assign counsel for the
    postconviction proceeding.
    IV. STANDARD OF REVIEW
    [1] In appeals from postconviction proceedings, an appel-
    late court reviews de novo a determination that the defend­
    ant failed to allege sufficient facts to demonstrate a viola-
    tion of his or her constitutional rights or that the record
    and files affirm­atively show that the defendant is entitled to
    no relief.3
    ­
    V. ANALYSIS
    1. Motion for Postconviction R elief
    [2] When a district court denies postconviction relief with-
    out 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.4 If
    none of Collins’ allegations were sufficiently alleged, no evi-
    dentiary hearing was required. Likewise, no evidentiary hear-
    ing would be necessary even if some claims were sufficiently
    alleged, so long as the files and records affirmatively showed
    that he was entitled to no relief.
    2
    See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
    3
    State v. Johnson, 
    298 Neb. 491
    , 
    904 N.W.2d 714
    (2017).
    4
    See 
    id. - 164
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. COLLINS
    Cite as 
    299 Neb. 160
    All of Collins’ allegations are grounded in claims of inef-
    fective assistance of counsel. The standard governing such
    claims is well settled.
    [3] To establish a right to postconviction relief because of
    counsel’s ineffective assistance, the defendant has the bur-
    den, in accordance with Strickland v. Washington,5 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.6 Next, the defendant must
    show that counsel’s deficient performance prejudiced the
    defense in his or her case.7 To show prejudice, the defend­
    ant must demonstrate a reasonable probability that but for
    counsel’s deficient performance, the result of the proceed-
    ing would have been different.8 A court may address the two
    prongs of this test, deficient performance and prejudice, in
    either order.9
    With these standards in mind, we turn to Collins’ spe-
    cific claims. As explained below, none required an eviden-
    tiary hearing.
    (a) Failure to Attack Validity
    of Information
    Collins alleged that he received ineffective assistance of
    counsel when trial counsel failed to attack the validity of
    the original information filed, because “the dates alleged
    concerning the offenses clearly posed a jurisdictional issue.”
    However, he did not specify how the dates constituted a juris-
    dictional issue or how he was prejudiced when the dates were
    modified in the amended information.
    5
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d
    674
    (1984).
    6
    State v. Schwaderer, 
    296 Neb. 932
    , 
    898 N.W.2d 318
    (2017).
    7
    Id.
    8
    Id.
    9
    
    Id. - 165
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    Nebraska Supreme Court A dvance Sheets
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    STATE v. COLLINS
    Cite as 
    299 Neb. 160
    Collins argues in his brief on appeal that the court lacked
    jurisdiction, because some of the alleged actions took place in
    a different county and the victim lived in a different county
    from January 1, 2009, to June 30, 2010. But, the amended
    information alleged that Collins committed first degree sexual
    assault between June 25, 2011, and June 12, 2012, in Douglas
    County, Nebraska. Therefore, his allegations and conclusions
    concerning the time between January 1, 2009, and June 30,
    2010, are irrelevant. Collins failed to identify any jurisdic-
    tional issue with the operative information and thus cannot
    show either deficient performance or prejudice.
    (b) Failure to Move for DNA Testing and
    Investigate Lack of Sexual Assault
    Evidence Collection Kit
    Collins alleged that trial counsel was ineffective in failing
    to move for DNA testing and in failing to investigate why a
    sexual assault evidence collection kit was not completed. He
    argues that if such actions had been taken, evidence against
    him would have been suppressed or evidence exonerating him
    would have been admitted.
    However, Collins did not allege what evidence a DNA test
    or collection kit would have discovered. Because this case
    involved various incidents of sexual abuse which recurred
    over a long period of time and included digital—but not
    penile—penetration,10 his failure may well have resulted from
    an absence of evidence to test or collect. Accordingly, counsel
    could not be ineffective for failing to request such testing or
    investigate the lack of an evidence collection kit.
    (c) Failure to Move to Discharge
    on Speedy Trial Grounds
    Collins alleged that trial counsel failed to move to discharge
    the information on speedy trial grounds. He maintains that the
    speedy trial clock had expired before entry of his plea.
    10
    See State v. Collins, supra note 1.
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    STATE v. COLLINS
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    299 Neb. 160
    [4] When a defendant alleges he or she was prejudiced
    by trial counsel’s failure to properly assert the defendant’s
    speedy trial rights, the court must consider the merits of
    the defend­ ant’s speedy trial rights under Strickland.11 Only
    if a motion would have resulted in the defendant’s absolute
    discharge, thus barring a later trial and conviction, could
    the failure to move for discharge be deemed ineffective
    assistance.12
    [5] To calculate the deadline for trial for speedy trial pur-
    poses, a court must exclude the day the State filed the infor-
    mation, count forward 6 months, back up 1 day, and then
    add any time excluded under Neb. Rev. Stat. § 29-1207(4)
    (Reissue 2016).13 The original information was filed July 30,
    2012. Therefore, the speedy trial deadline before adding any
    excluded time was January 30, 2013.
    The State argues that there were two periods of exclud-
    able time pursuant to § 29-1207(4). First, it argues that the
    time between Collins’ pretrial motion to produce certain evi-
    dence, filed November 1, 2012, and the district court’s order
    sustaining the motion on November 28, 2012 (27 days),
    was excludable. Second, it suggests that Collins’ motion to
    continue the scheduled trial, filed January 16, 2013, was
    one of indefinite duration. Therefore, it argues that the time
    between the filing of the motion and the trial rescheduled
    for March 18, 2013 (61 days), was excludable. We agree on
    both counts.
    [6] After adding the excluded time, the deadline for trial
    was April 28, 2013. Collins entered his plea of no contest on
    March 20. Because the deadline for speedy trial purposes had
    not run, defense counsel could not have been ineffective for
    failing to file a motion to discharge on speedy trial grounds.
    11
    Strickland v. Washington, supra note 5; State v. Betancourt-Garcia, 
    295 Neb. 170
    , 
    887 N.W.2d 296
    (2016).
    12
    See State v. Betancourt-Garcia, supra note 11.
    13
    See 
    id. - 167
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    Nebraska Supreme Court A dvance Sheets
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    STATE v. COLLINS
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    299 Neb. 160
    As a matter of law, counsel cannot be ineffective for failing to
    raise a meritless argument.14
    (d) Failure to Move for Severance
    Collins alleged that trial counsel was ineffective for fail-
    ing to sever the charges against him. He argued that “[h]ad
    [he] had separate trials, he would not have agreed to the plea
    agreement reached in this case.”15 However, Collins did not
    allege how he was prejudiced given that the third degree
    sexual assault of a child charge was dismissed pursuant to the
    plea agreement. In fact, it is impossible to see how two trials
    would have benefited Collins more than the plea agreement
    when he had previously admitted his wrongdoing to two wit-
    nesses for the State. Consequently, Collins has failed to allege
    prejudice on this claim.
    (e) Failure to Move to Exclude Testimony
    Collins alleged that counsel was ineffective for failing to
    move to exclude testimony of the victim and two adult wit-
    nesses. He claimed, “Trial Counsel was aware or should have
    been aware that portions of the alleged victim’s statements
    were perjurious when she lied and fabricated in her deposition
    . . . .”16 However, Collins did not specify which statements
    were fabricated or provide any detail of the deposition. He
    also failed to identify the legal basis on which trial counsel
    could have excluded any of the testimony. Without more
    specificity, Collins failed to adequately allege this claim.
    Thus, the district court was correct in denying it without an
    evidentiary hearing.
    (f) Allegations Concerning Discovery
    Collins alleged that trial counsel failed to conduct depo-
    sitions of two State witnesses and review other deposition
    14
    State v. Schwaderer, supra note 6.
    15
    Brief for appellant at 14.
    16
    
    Id. - 168
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    STATE v. COLLINS
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    transcripts with him. He generally claimed that, had counsel
    deposed the witnesses and shared all deposition transcripts
    with him, he “would not have agreed to the plea agreement in
    this matter.”17 But, without more, these are merely conclusory
    statements. Collins has not alleged any facts that the deposi-
    tions may have revealed that would have prevented his accept­
    ance of the plea deal. Because these claims were insufficiently
    pled, the district court was correct in denying the claims with-
    out an evidentiary hearing.
    (g) Coerced Acceptance
    of Plea Agreement
    Collins alleged that trial counsel coerced his acceptance of
    the plea agreement by withholding discovery; admitting that
    counsel had never tried a case like his; failing to inform him
    of the rights he would waive by pleading guilty and how the
    proceedings would go; prompting him to answer the court’s
    questions at the plea hearing; and suggesting that he would be
    imprisoned for at least 35 years if he did not plead guilty, but
    would likely get probation or a light sentence if he accepted
    the plea deal. However, these allegations are directly refuted
    by the record.
    The district court informed Collins of the rights he would
    retain and the rights he would waive by entering his plea,
    which Collins stated he understood. The court also explained
    the range of penalties which Collins would be subject to as a
    result of his plea, which Collins again stated he understood.
    Collins asserted that “[t]here’s been no promises” on whether
    he would receive a particular sentence or be placed on proba-
    tion and affirmed that he had enough time to talk to his attor-
    ney before the hearing. This record affirmatively shows that
    Collins is entitled to no relief on this claim, because he freely,
    knowingly, intelligently, and voluntarily entered his plea pursu-
    ant to the plea agreement.
    17
    
    Id. - 169
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    STATE v. COLLINS
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    299 Neb. 160
    2. Motion to A ppoint Counsel
    [7] Collins assigns and argues that the district court erred
    when it denied his motion for appointment of postconviction
    counsel. When the defendant’s petition presents a justiciable
    issue to the district court for postconviction determination, an
    indigent defendant is entitled to the appointment of counsel.18
    But, where the assigned errors in the postconviction peti-
    tion before the district court are either procedurally barred
    or without merit, establishing that the postconviction peti-
    tion contained no justiciable issue of fact or law, it is not
    an abuse of discretion to fail to appoint counsel for an indi-
    gent defendant.19
    As we have noted, Collins has not alleged facts sufficient
    to entitle him to an evidentiary hearing on his postconviction
    claim, and thus has raised no justiciable issue of fact or law.
    Therefore, the district court did not abuse its discretion in
    declining to appoint counsel.
    VI. CONCLUSION
    For the reasons set forth above, we affirm the final order of
    the district court.
    A ffirmed.
    K elch, J., participating on briefs.
    Wright, J., not participating.
    18
    State v. Ely, 
    295 Neb. 607
    , 
    889 N.W.2d 377
    (2017).
    19
    See, State v. Rice, 
    295 Neb. 241
    , 
    888 N.W.2d 159
    (2016); State v. Phelps,
    
    286 Neb. 89
    , 
    834 N.W.2d 786
    (2013).