State v. Anderson , 305 Neb. 978 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    06/19/2020 12:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. ANDERSON
    Cite as 
    305 Neb. 978
    State of Nebraska, appellee, v.
    Melvin Anderson, appellant.
    ___ N.W.2d ___
    Filed May 29, 2020.     No. S-19-1038.
    1. 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.
    2. ____: ____. 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 prejudiced by counsel’s alleged deficient
    performance.
    3. Pleas: Waiver. Generally, a voluntary guilty plea or plea of no contest
    waives all defenses to a criminal charge.
    4. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or
    no contest, he or she is limited to challenging whether the plea was
    understandingly and voluntarily made and whether it was the result of
    ineffective assistance of counsel.
    5. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
    assistance of counsel, the defendant must show that his or her counsel’s
    performance was deficient and that this deficient performance actually
    prejudiced the defendant’s defense.
    6. Effectiveness of Counsel: Appeal and Error. 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 deficient performance and whether the defendant was or was not
    prejudiced by counsel’s alleged deficient performance.
    7. Effectiveness of Counsel: Records: Appeal and Error. The record on
    direct appeal is sufficient to review a claim of ineffective assistance of
    trial counsel if it establishes either that trial counsel’s performance was
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    STATE v. ANDERSON
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    305 Neb. 978
    not deficient, that the appellant will not be able to establish prejudice, or
    that trial counsel’s actions could not be justified as a part of any plau-
    sible trial strategy.
    8.   Effectiveness of Counsel: Proof. 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.
    9.   ____: ____. To show prejudice in a claim of ineffective assistance of
    counsel, the defendant must demonstrate a reasonable probability that
    but for counsel’s deficient performance, the result of the proceeding
    would have been different.
    10.   Words and Phrases. A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.
    11.   Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
    tion is based upon a plea of no contest, 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
    no contest.
    12.   Preliminary Hearings: Probable Cause. The purpose of a preliminary
    hearing is to ascertain whether or not a crime has been committed and
    whether or not there is probable cause to believe the accused commit-
    ted it; it is not a trial of a person accused to determine his or her guilt
    or innocence, but is a procedural safeguard to prevent a person from
    being detained in custody without probable cause existing that the crime
    charged was committed by that person.
    13.   Preliminary Hearings: Plea in Abatement. A plea in abatement is used
    to challenge the sufficiency of the evidence at a preliminary hearing.
    14.   Motions to Dismiss: Plea in Abatement. Generally, a motion in the
    nature to dismiss is permitted in criminal cases in various forms, includ-
    ing a motion to quash and a plea in abatement.
    15.   Plea in Abatement: Evidence: Probable Cause: Verdicts. In order to
    resist a challenge by a plea in abatement, the evidence received by the
    committing magistrate need show only that a crime was committed and
    that there is probable cause to believe that the accused committed it; the
    evidence need not be sufficient to sustain a verdict of guilty beyond a
    reasonable doubt.
    16.   Effectiveness of Counsel. As a matter of law, counsel is not ineffective
    for failing to make a meritless objection.
    17.   Preliminary Hearings: Probable Cause: Witnesses. A full adversarial
    hearing in which witnesses are called is not required for a determina-
    tion of probable cause in a preliminary hearing under Neb. Rev. Stat.
    § 29-1607 (Reissue 2016).
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    305 Nebraska Reports
    STATE v. ANDERSON
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    305 Neb. 978
    18. Constitutional Law: Preliminary Hearings: Probable Cause. In an
    informal preliminary hearing, it does not violate the Confrontation
    Clause to rely on out-of-court statements to determine probable cause
    for purposes of continuing a defendant’s pretrial detention.
    19. Criminal Law: Depositions: Pretrial Procedure. There is no obliga-
    tion for the State to produce the victim or assist in locating the victim
    for purposes of a pretrial deposition by defense counsel.
    Appeal from the District Court for Lancaster County:
    Andrew R. Jacobsen, Judge. Affirmed.
    Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., for
    appellant.
    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    In an appeal from a plea-based conviction, the defendant,
    through new counsel, asserts that his plea was the result of
    ineffective assistance of trial counsel. The majority of the alle-
    gations of deficient conduct revolve around the victim’s failure
    to appear at the preliminary hearing and law enforcement’s
    inability to serve her with subpoenas for her appearance at the
    preliminary hearing and subsequent deposition. The defendant
    also argues that trial counsel was ineffective by failing to move
    to suppress his inculpatory statement to law enforcement in
    relation to the charge of third degree domestic assault to which
    he pleaded.
    BACKGROUND
    Melvin Anderson was originally charged in county court with
    strangulation, in violation of Neb. Rev. Stat. § 28-310.01(2)
    (Reissue 2016), in relation to events occurring on March 14,
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    STATE v. ANDERSON
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    305 Neb. 978
    2019. Following a hearing on March 15, the court issued an
    order of probable cause and further detention.
    The probable cause affidavit described that law enforce-
    ment had responded to a call of domestic assault on March
    14, 2019. Law enforcement observed red marks on both sides
    of the victim’s neck consistent with being choked. The victim
    described that while she was at her and Anderson’s apartment,
    Anderson grabbed her around the neck with one hand and
    held her against the wall for several minutes while threaten-
    ing to kill her. She said there were moments when she could
    not breathe. The victim’s cousin witnessed the assault and was
    able to eventually assist the victim and accompany her out
    of the apartment. Law enforcement later contacted Anderson,
    who admitted only to grabbing the victim by her coat so that
    he could get his wallet and telephone from her. Anderson
    described that he grabbed the front of the victim’s coat near
    her neck and that it was possible he could have grabbed her
    neck with the coat.
    On April 25, 2019, trial counsel filed a praecipe for a
    subpoena to be served upon the victim, commanding her
    appearance at the preliminary hearing scheduled for May
    22. The journal entry for the preliminary hearing on May
    22 reflects that the court found probable cause and that the
    case was bound over to the district court for trial. It does not
    describe the court’s reasoning in finding probable cause. The
    only witness at the hearing was a law enforcement officer.
    The journal entry does not reflect that the victim appeared at
    the hearing.
    On June 26, 2019, an amended information was filed in
    district court charging Anderson with the original count of
    strangulation in violation of § 28-310.01(2) and new counts of
    tampering with a witness or informant in violation of Neb. Rev.
    Stat. § 28-919 (Reissue 2016) and violating a protection order
    in violation of Neb. Rev. Stat § 42-924(4) (Cum. Supp. 2018).
    The new counts related to events occurring between June 1
    and 12. Anderson waived appearance at the arraignment of the
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    STATE v. ANDERSON
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    305 Neb. 978
    amended information. There is no record that a preliminary
    hearing was held on the amended charges.
    A reciprocal discovery order was entered on June 25, 2019,
    with depositions to be taken by Anderson within 30 days. A
    praecipe for a subpoena was filed on June 25, commanding
    the victim to appear as a witness before the district court on
    July 16. Records show that the sheriff attempted to serve the
    subpoena on July 1, 9, and 12. On July 16, at the request of the
    county attorney, the subpoena was returned unserved.
    Another subpoena was issued on July 16, 2019, command-
    ing the victim to appear as a witness before the district court
    on July 22. Records show that the sheriff attempted to serve
    the subpoena on July 18, 19, and 22, and it was returned as not
    served on July 23.
    On August 23, 2019, Anderson entered pleas of no contest
    to the State’s second amended information, which then charged
    Anderson with one count of third degree domestic assault
    in violation of Neb. Rev. Stat. § 28-323(1) and (4) (Reissue
    2016), one count of attempted tampering with a witness or
    informant in violation of Neb. Rev. Stat. §§ 28-201(4)(e) and
    28-919 (Reissue 2016), and one count of violating a protection
    order under § 42-924(4).
    The factual basis provided by the State asserted that on
    March 14, 2019, law enforcement responded to a report of
    domestic assault. A protection order had been granted for the
    victim against Anderson earlier that day, but had not yet been
    served. Anderson went to the victim’s apartment, there was an
    argument, and Anderson grabbed the victim by the neck, apply-
    ing so much pressure to her neck that there were moments she
    was unable to breathe and telling her that he would kill her.
    The victim’s cousin was a witness to the assault and was able
    to assist the victim in leaving the apartment. Anderson later
    indicated to law enforcement that he had an argument with
    the victim and admitted to grabbing her coat, but denied stran-
    gling her.
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    STATE v. ANDERSON
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    305 Neb. 978
    While Anderson was in custody for this offense, the victim
    received a letter addressed to her from an inmate at the jail
    who identified himself as “Lucky Luciano.” The victim did not
    open the letter. She knew that “Lucky” was Anderson’s nick-
    name. Law enforcement opened the letter, which informed the
    victim she should tell the courts that there was no fight and no
    choking, that she feels protected and safe around “Lucky,” and
    that it was a mistake putting him in jail. The letter directed the
    victim to report that she was off her medication and did not
    know what she was doing when she made the report. Enclosed
    with the letter was a piece of a dreadlock that the victim
    believed was from Anderson. There was a protection order in
    place when this letter was delivered to the victim.
    After an extensive colloquy with Anderson, the court
    accepted Anderson’s pleas as voluntarily, freely, knowingly,
    and intelligently made, and it found that there was a factual
    basis for the pleas. Despite trial counsel’s request to sentence
    Anderson immediately, the court ordered a presentence investi-
    gation be completed. The State noted that it was trying to reach
    the victim in order to obtain a victim impact statement, but that
    its last contact with her had been in May 2019.
    Once the presentence investigation was completed, the court
    proceeded to sentencing. The State noted at the sentencing
    hearing that the probation office was able to obtain a victim
    impact statement, which was somewhat surprising because the
    State had been having difficulty locating her. The State noted
    that Anderson “had the benefit of a very generous plea agree-
    ment from the State simply because we were having difficulty
    finding [the victim] after we tried to subpoena her several
    times for a deposition and trying to locate her by mail and
    by phone.”
    The court sentenced Anderson to imprisonment for 180 days
    on count 1, 360 days on count 2, and 360 days on count 3. The
    sentences on counts 2 and 3 were ordered to be served concur-
    rently to each other and consecutively to count 1.
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    STATE v. ANDERSON
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    305 Neb. 978
    Anderson appeals, seeking to set aside his pleas and the
    resulting convictions and sentences, as the result of ineffec-
    tive assistance of trial counsel. He obtained new counsel for
    his appeal.
    ASSIGNMENTS OF ERROR
    Anderson assigns that trial counsel provided ineffective
    assistance by (1) failing to move to continue the plea in abate-
    ment, when the subpoena issued by Anderson was not served
    on the alleged victim; (2) failing to file a plea in abatement,
    because there was insufficient evidence to support a probable
    cause finding that Anderson strangled the alleged victim; (3)
    failing to move the trial court to require the State to produce
    the alleged victim for deposition and exclude the alleged vic-
    tim as a witness; (4) failing to move to suppress Anderson’s
    statement; and (5) counseling Anderson to enter a plea. We
    disregard Anderson’s broad assignment of error that trial coun-
    sel provided ineffective assistance of counsel to Anderson in
    violation of his Sixth Amendment rights, because assignments
    of error on direct appeal regarding ineffective assistance of
    trial counsel must specifically allege deficient performance,
    and an appellate court will not scour the remainder of the brief
    in search of such specificity. 1
    STANDARD OF REVIEW
    [1] Whether a claim of ineffective assistance of trial counsel
    may be determined on direct appeal is a question of law. 2
    [2] 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
    prejudiced by counsel’s alleged deficient performance. 3
    1
    State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
    (2019).
    2
    Id. 3 Id.
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. ANDERSON
    Cite as 
    305 Neb. 978
    ANALYSIS
    [3,4] Generally, a voluntary guilty plea or plea of no con-
    test waives all defenses to a criminal charge. 4 Thus, when a
    defend­ant pleads guilty or no contest, he or she is limited to
    challenging whether the plea was understandingly and vol-
    untarily made and whether it was the result of ineffective
    assistance of counsel. 5 For this direct appeal, Anderson has
    obtained counsel different from trial counsel, and he asserts
    that his pleas were the result of ineffective assistance of trial
    counsel. He does not challenge whether his pleas were other-
    wise understandingly and voluntarily made.
    [5-7] To prevail on a claim of ineffective assistance of
    counsel, the defendant must show that his or her counsel’s
    performance was deficient and that this deficient performance
    actually prejudiced the defendant’s defense. 6 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 deficient
    performance and whether the defendant was or was not preju-
    diced by counsel’s alleged deficient performance. 7 The record
    on direct appeal is sufficient to review a claim of ineffective
    assistance of trial counsel if it establishes either that trial
    counsel’s performance was not deficient, that the appellant
    will not be able to establish prejudice, or that trial coun-
    sel’s actions could not be justified as a part of any plausible
    trial strategy. 8
    [8-11] To show that counsel’s performance was deficient, a
    defendant must show that counsel’s performance did not equal
    4
    State v. Privett, 
    303 Neb. 404
    , 
    929 N.W.2d 505
    (2019).
    5
    Id. 6 See,
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984); State v. Avina-Murillo, 
    301 Neb. 185
    , 
    917 N.W.2d 865
    (2018).
    7
    See State v. Lee, 
    304 Neb. 252
    , 
    934 N.W.2d 145
    (2019).
    8
    State v. Iddings, 
    304 Neb. 759
    , 
    936 N.W.2d 747
    (2020).
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    that of a lawyer with ordinary training and skill in criminal
    law. 9 To show prejudice, the defendant must demonstrate a
    reasonable probability that but for counsel’s deficient per-
    formance, the result of the proceeding would have been dif-
    ferent. 10 A reasonable probability is a probability sufficient to
    undermine confidence in the outcome. 11 When a conviction
    is based upon a plea of no contest, 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 no contest. 12
    Anderson asserts that but for trial counsel’s failure to pur-
    sue various pretrial motions pertaining to the victim’s lack
    of appearance at the preliminary hearing and the inability to
    serve a subpoena upon her, the charges against him would
    have been dismissed; therefore, he would not have pleaded no
    contest. He also asserts that counsel was deficient by failing to
    move in limine to suppress his statements to law enforcement.
    Anderson’s assignment of error that counsel was ineffective
    in advising him to plead no contest is intertwined with these
    assertions because, he argues, it was deficient conduct for
    trial counsel to advise him to plead before pursuing the pre-
    trial motions.
    Preliminary Hearing
    Anderson first argues that but for trial counsel’s ineffective
    assistance in failing to file a plea in abatement or a motion
    to continue at the preliminary hearing, the charges against
    him would have been dismissed before he decided to plead
    no contest. The undisputed facts contained within the record
    are sufficient to conclusively determine that trial counsel was
    9
    Mrza, supra note 1.
    10
    Id. 11 Id.
    12
    See Privett, supra note 4.
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    not deficient by failing to file a plea in abatement. Further,
    we are able to conclusively determine upon the record that
    Anderson will be unable to demonstrate that but for trial coun-
    sel’s failure to file another motion to continue the preliminary
    hearing, the charges would have been dismissed—the premise
    upon which he asserts he would have declined to enter into a
    plea bargain agreement with the State. Accordingly, the record
    conclusively demonstrates that the allegedly deficient act of
    failing to move to continue the preliminary hearing did not
    prejudice Anderson.
    [12] The purpose of a preliminary hearing is to ascertain
    whether or not a crime has been committed and whether or not
    there is probable cause to believe the accused committed it. 13 It
    is not a trial of a person accused to determine his or her guilt
    or innocence, but is a procedural safeguard to prevent a person
    from being detained in custody without probable cause existing
    that the crime charged was committed by that person. 14
    Anderson asserts that the court stated during the preliminary
    hearing that it was binding the matter over because Anderson
    had admitted he strangled the victim, and he argues that
    because the probable cause affidavit did not contain such an
    admission, the case would have been dismissed had counsel
    filed a plea in abatement on the grounds of lack of probable
    cause. With this reasoning, Anderson concludes that trial coun-
    sel was ineffective for failing to file a plea in abatement.
    [13-15] A plea in abatement is used to challenge the suf-
    ficiency of the evidence at a preliminary hearing. 15 It has been
    observed that, generally, a motion in the nature to dismiss
    is permitted in criminal cases in various forms, including a
    motion to quash and a plea in abatement. 16 In order to resist
    a challenge by a plea in abatement, the evidence received by
    13
    State v. Hill, 
    255 Neb. 173
    , 
    583 N.W.2d 20
    (1998).
    14
    Id. 15 State
    v. Lasu, 
    278 Neb. 180
    , 
    768 N.W.2d 447
    (2009).
    16
    See State v. Chauncey, 
    295 Neb. 453
    , 
    890 N.W.2d 453
    (2017).
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    the committing magistrate need show only that a crime was
    committed and that there is probable cause to believe that the
    accused committed it. 17 The evidence need not be sufficient to
    sustain a verdict of guilty beyond a reasonable doubt. 18
    Anderson acknowledges that the county court’s alleged state-
    ment as to its reasoning in concluding there was probable cause
    is not in the record, because the preliminary hearing was not
    preserved. He does not assert that trial counsel was ineffective
    in failing to insist that the preliminary hearing be part of the
    record. In any event, whatever was said by the county court
    at the preliminary hearing, the undisputed facts of the record
    affirmatively demonstrate there was probable cause to show
    that a crime was committed and that Anderson com­mitted it.
    At the time of the preliminary hearing, Anderson had not yet
    sent the letter from “Lucky,” and his allegations of ineffective
    assistance of trial counsel at the preliminary hearing appear
    limited to count 1, strangulation, which was reduced to third
    degree domestic assault pursuant to the plea bargain agreement.
    The affidavit of probable cause described that law enforce-
    ment had observed red marks on both sides of the victim’s
    neck consistent with being choked and that the victim reported
    Anderson had grabbed her around the neck with one hand and
    held her against the wall for several minutes while threatening
    to kill her. She told law enforcement there were moments when
    she could not breathe.
    [16] The affidavit provided sufficient evidence to support
    the court’s finding of probable cause. A plea in abatement, had
    it been made, would have lacked merit. And, as a matter of
    law, counsel is not ineffective for failing to make a meritless
    objection. 19
    Anderson also asserts that trial counsel was ineffective for
    failing to move to continue the preliminary hearing, because
    17
    Id. 18 See
    id.
    19
    See 
    State v. Schwaderer, 
    296 Neb. 932
    , 
    898 N.W.2d 318
    (2017).
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    the victim did not appear at the hearing despite the issuance of
    a subpoena. We observe that trial counsel moved to continue
    the preliminary hearing, albeit not before issuing a summons
    for the victim’s appearance. Anderson articulates his argument
    as follows:
    Rather than moving to continue the hearing in order to
    obtain [the victim’s] presence and testimony, Anderson’s
    counsel allowed the matter to proceed through the pre-
    liminary hearing denying Anderson the right to confront
    [the victim] at the first opportunity which could have
    produced the first opportunity to have the case dismissed
    by the Court. 20
    In his summary of the arguments, Anderson also argues that
    trial counsel’s failure to move to continue the preliminary hear-
    ing “theoretically waived Anderson’s ability to use the Court’s
    power to enforce the subpoena regarding [the victim’s] refusal
    to appear if she had been served.” 21
    [17,18] Anderson’s reliance on the right to confrontation
    under these facts is misplaced. A full adversarial hearing in
    which witnesses are called is not required for a determination
    of probable cause in a preliminary hearing under Neb. Rev.
    Stat. § 29-1607 (Reissue 2016). 22 In an informal preliminary
    hearing, it does not violate the Confrontation Clause to rely on
    out-of-court statements to determine probable cause for pur-
    poses of continuing a defendant’s pretrial detention. 23
    Nor is it clear how trial counsel’s inability to cross-examine
    the victim at the preliminary hearing could have resulted in
    the dismissal of the strangulation charge. Even if trial counsel
    could have obtained another continuance and the victim would
    20
    Brief for appellant at 20.
    21
    Id. at 15.
    22
    See, Neb. Rev. Stat. § 27-1101 (Reissue 2016); State v. Wilkinson, 
    219 Neb. 685
    , 
    365 N.W.2d 478
    (1985); Daniel A. Morris, Nebraska Trials
    § 4:11 (2019).
    23
    See Gerstein v. Pugh, 
    420 U.S. 103
    , 
    95 S. Ct. 854
    , 
    43 L. Ed. 2d 54
    (1975).
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    have eventually appeared and been cross-examined at the pre-
    liminary hearing, Anderson does not argue that she would have
    recanted her report to law enforcement. Nor would it follow
    that the court would have dismissed the case if she had. There
    was a witness to the strangulation, and law enforcement had
    observed the victim’s injuries.
    As already stated, with or without the victim’s testimony,
    there was probable cause to conclude that a crime was com-
    mitted. The record, accordingly, conclusively demonstrates that
    Anderson would be unable, in an evidentiary hearing, to prove
    the strangulation charge would have been dismissed if trial
    counsel had moved to continue the preliminary hearing. The
    undisputed facts in the record demonstrate that Anderson was
    not prejudiced by an alleged failure to obtain dismissal because
    of trial counsel’s failure to move to continue the prelimi-
    nary hearing.
    As for any argument that the failure to move to continue the
    preliminary hearing prejudiced Anderson because he thereby
    waived his ability to move for an order compelling the State
    to produce the victim for a pretrial deposition, as explained in
    the next section, a motion for an order compelling the State to
    produce the victim would have lacked merit. Trial counsel’s
    alleged waiver of a nonexistent right could not have preju-
    diced Anderson.
    Alleged Unavailability
    of Victim
    Anderson asserts trial counsel was ineffective by failing to
    move for a court order that the State produce the victim or
    otherwise assist in making the victim available for the deposi-
    tion ordered by the court pursuant to Neb. Rev. Stat. § 29-1917
    (Reissue 2016) and for which a subpoena under Neb. Rev. Stat.
    § 25-1223 (Cum. Supp. 2018) had been issued at trial counsel’s
    request. In conjunction with this allegation, Anderson asserts
    that his trial counsel was ineffective by failing to move to sup-
    press the victim’s testimony.
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    According to Anderson, if trial counsel had made a request
    that the State produce the victim or assist in locating her and
    the request had been granted, and if the State had thereafter
    acted in bad faith by failing to comply with the order, then
    trial counsel could have requested that the victim’s testimony
    be excluded as a sanction against the State. Anderson asserts
    that if this had been done, the court would have granted such
    a motion and he would have insisted on going to trial. Again,
    these allegations appear limited to the charge of strangulation
    that was reduced to third degree domestic assault under the
    plea bargain agreement.
    [19] The long chain of hypothetical variables in this allega-
    tion of ineffective assistance of counsel is not amenable to
    evidentiary proof. Most notably, it fails at its first premise. As
    Anderson admits, there is no obligation for the State to pro-
    duce the victim or assist in locating the victim for purposes
    of a pretrial deposition by defense counsel. There would have
    been no merit to a motion for a court order compelling the
    State to produce the victim or otherwise assist in making the
    victim available for the court-ordered deposition. As a matter
    of law, counsel is not ineffective for failing to make a meritless
    objection. 24 Because there is no merit to Anderson’s assertion
    that trial counsel was ineffective for failing to move to compel
    the State in this manner, it follows that there is no merit to his
    assertion that trial counsel was ineffective for failing to move
    to suppress the victim’s testimony, under the hypothetical that
    had such motion been made and granted, the State would have
    acted in bad faith.
    We also note that while there generally are remedies for
    the State’s fault or bad faith, Anderson does not assert that the
    State was concealing access to exculpatory evidence in any
    sort of a violation of Brady v. Maryland. 25 He does not assert
    that the victim’s testimony would be exculpatory. Nor does he
    24
    See State v. Schwaderer, supra note 19.
    25
    Brady v. Maryland, 
    373 U.S. 83
    , 
    83 S. Ct. 1194
    , 
    10 L. Ed. 2d 215
    (1963).
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    STATE v. ANDERSON
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    assert that the State was concealing the victim’s whereabouts.
    Indeed, the record indicates that the State had been unable to
    contact her despite its attempts to do so. The allegation that
    the State somehow would have acted in bad faith if there had
    been an order to supply the victim for the deposition is entirely
    too speculative to be susceptible to proof at an evidentiary
    hearing. Prejudice for purposes of ineffective assistance of
    counsel cannot be founded on hypothetical bad acts that did
    not occur but allegedly would have occurred had counsel not
    acted deficiently.
    We are able to conclusively determine on the record that
    counsel was not ineffective for failing to move the court to
    compel the State to produce the victim or assist in locating her
    so that she could be deposed by trial counsel.
    Anderson’s Statement to
    Law Enforcement
    Lastly, Anderson argues that trial counsel was ineffective for
    failing to move to suppress his statement to law enforcement
    as involuntarily made. Anderson asserts that he was heav-
    ily medicated and therefore unable to understandably waive
    his Miranda rights when he made the statement. Anderson
    does not assert that any statements are at issue other than
    those described in the affidavit in support of probable cause.
    According to that report, Anderson specifically denied that he
    had strangled the victim. Anderson admitted only that he “did
    grab the victim by her coat” so that he could get his wallet and
    telephone from her.
    Anderson describes this as a “confession.” 26 It clearly was
    not a confession to the original charge of strangulation, but
    perhaps could be described as such in relation to the charge of
    third degree domestic assault to which he pleaded. It cannot
    be determined on the appellate record whether this “confes-
    sion” was voluntarily made, and thus, we cannot determine on
    26
    Brief for appellant at 20.
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    this record whether a motion to suppress the statement would
    have had any merit. Neither does the record affirmatively dis-
    prove Anderson’s assertion that if the statement would have
    been suppressed, he would not have pleaded no contest to the
    charge of third degree domestic assault. Therefore, we do not
    resolve on direct appeal the merits of this allegation of ineffec-
    tive assistance.
    CONCLUSION
    For the foregoing reasons, we affirm the judgment below.
    Affirmed.