State v. Jennings , 312 Neb. 1020 ( 2022 )


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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    STATE V. JENNINGS
    Cite as 
    312 Neb. 1020
    State of Nebraska, appellee, v.
    Leandre R. Jennings III, appellant.
    ___ N.W.2d ___
    Filed December 2, 2022.   No. S-22-185.
    1. Postconviction: Proof: Appeal and Error. When a district court denies
    postconviction relief without conducting an evidentiary hearing, an
    appellate court determines de novo 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.
    2. Postconviction: Records: Appeal and Error. The appellate court does
    not conduct an appeal of a postconviction review sua sponte; as with
    all appeals, the alleged errors of the lower court must be both specifi-
    cally assigned and specifically argued in the brief of the party asserting
    the errors to be considered by the appellate court. The appellate court
    will not scour the record on appeal to understand unclear arguments or
    find support for broad conclusions.
    3. Effectiveness of Counsel: Appeal and Error. With regard to the
    questions of counsel’s performance or prejudice to the defendant as
    part of the two-pronged test articulated in Strickland v. Washington,
    
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), an appellate
    court reviews such legal determinations independently of the lower
    court’s decision.
    4. Postconviction: Constitutional Law: Proof. The district court must
    grant an evidentiary hearing to resolve the claims in a postconviction
    motion when the motion contains factual allegations which, if proved,
    constitute an infringement of the defendant’s rights under the state or
    federal Constitution.
    5. Postconviction: Pleadings. The allegations in a motion for postcon-
    viction relief must be sufficiently specific for the district court to
    make a preliminary determination as to whether an evidentiary hearing
    is justified.
    6. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
    not required on a motion for postconviction relief when (1) the motion
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    STATE V. JENNINGS
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    312 Neb. 1020
    does not contain factual allegations which, if proved, constitute an
    infringement of the movant’s constitutional rights rendering the judg-
    ment void or voidable; (2) the motion alleges only conclusions of fact or
    law without supporting facts; or (3) the records and files affirmatively
    show that the defendant is entitled to no relief.
    7.    Jury Instructions: Proof: Appeal and Error. In reviewing a claim of
    prejudice from jury instructions given or refused, the appellant has the
    burden to show that the allegedly improper instruction or the refusal to
    give the requested instruction was prejudicial or otherwise adversely
    affected a substantial right of the appellant.
    8.    Jury Instructions: Appeal and Error. All the jury instructions must
    be read together, and if, taken as a whole, they correctly state the law,
    are not misleading, and adequately cover the issues supported by the
    pleadings and the evidence, there is no prejudicial error necessitat-
    ing reversal.
    9.    Postconviction: Appeal and Error. Upon the filing of a motion seeking
    postconviction relief, an appellate court has the obligation to determine
    whether the prisoner is entitled to no relief, in which case the motion is
    dismissed, or, alternatively, conclude that the defendant is entitled to a
    hearing to determine if he or she is entitled to relief.
    10.    Postconviction: Prosecuting Attorneys: Notice. If a defendant is enti-
    tled to an evidentiary hearing on a postconviction motion, the court shall
    cause notice to be served on the county attorney.
    11.    ____: ____: ____. The State, through its county attorneys, can, and
    often does, participate at earlier points in the postconviction process,
    but is only called upon to take action with respect to a motion once it
    receives notice from the court.
    Appeal from the District Court for Douglas County:
    Kimberly Miller Pankonin, Judge. Affirmed.
    Leandre R. Jennings III, pro se.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Heavican, C.J.
    INTRODUCTION
    The appellant, Leandre R. Jennings III, was convicted of
    first degree murder, use of a weapon to commit a felony, and
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    STATE V. JENNINGS
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    312 Neb. 1020
    possession of a deadly weapon by a prohibited person. He was
    sentenced to life imprisonment, 30 to 40 years’ imprisonment,
    and 40 to 45 years’ imprisonment, respectively. His convictions
    and sentences were affirmed by this court on direct appeal. 1
    Jennings then filed a motion seeking postconviction relief,
    which was denied without an evidentiary hearing. Jennings
    appeals that denial. We affirm.
    BACKGROUND
    Jennings was convicted of murder and associated crimes
    in the shooting death of Michael Brinkman (Brinkman) on
    December 23, 2016. The facts underlying those convictions are
    set forth in greater detail in this court’s opinion on appeal. 2 In
    brief, Brinkman was at his home in Douglas County along with
    his wife, Kim Milius, and his adult son, Seth Brinkman (Seth).
    Two men entered the home, and following an altercation,
    Brinkman was shot and killed. Other evidence was offered at
    trial, but as relevant to this postconviction motion, fast food
    from Raising Cane’s, including french fries, a piece of partially
    eaten Texas toast, and a container and lid of “Cane’s sauce”
    was found at the scene. The sauce container and lid and the
    toast were swabbed for DNA. Following testing of the DNA,
    Jennings could not be excluded as a contributor to these, as
    well as other items, and was arrested and charged.
    Jennings was convicted in 2018. This court affirmed his
    conviction in May 2020, and Jennings thereafter filed a motion
    for postconviction relief on May 6, 2021. He subsequently
    filed two amended motions. The operative pleading in this case
    is the motion for postconviction relief filed on October 6, 2021.
    In that motion, Jennings alleged that he had the same trial and
    appellate counsel and that both were ineffective in (1) failing
    to object to the State’s destruction of evidence; (2) failing to
    object to false statements made in law enforcement’s affidavit
    1
    State v. Jennings, 
    305 Neb. 809
    , 
    942 N.W.2d 753
     (2020).
    2
    See 
    id.
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    in support of a search warrant for his cell phone records; (3)
    failing to interview or call certain witnesses; (4) not object-
    ing to jury instruction No. 4; (5) failing to seek retesting of
    biological material; (6) failing to obtain from law enforcement
    evidence that could have been used to impeach law enforce-
    ment testimony; and (7) failing to object to testimony offered
    by an investigating detective. He further alleged that (8) the
    State engaged in prosecutorial misconduct by not disclosing
    certain evidence, and (9) the trial court committed trial error
    when it admitted Jennings’ cell phone data.
    The district court denied Jennings’ motion without an evi-
    dentiary hearing. In its order, the court first noted that counsel
    could not be found to be ineffective for failing to object to the
    State’s destruction of the toast because the record indicates
    that the destruction was not made in bad faith, but was part of
    a laboratory policy that food could not be stored as evidence.
    The court also rejected Jennings’ claims of false statements
    regarding the ethnicity of the suspects in the affidavit in sup-
    port of the warrant for his cell phone data. The court reasoned
    that the issuing magistrate did not rely on the ethnicity of the
    suspects in determining probable cause. It rationalized that the
    magistrate instead focused on the vehicle reportedly parked
    in front of the home at the time of the home invasion and the
    relationship between the person who rented that vehicle and
    Jennings, who had previously driven the vehicle and whose
    DNA was found at the scene of the home invasion.
    The court then addressed, and found without merit, Jennings’
    claims that his counsel failed to investigate certain witnesses
    and issues prior to trial. As set forth by the court, Jennings
    alleged that counsel failed to seek DNA retesting, did not
    obtain video of Jennings’ time spent in the interrogation room,
    and did not call certain witnesses. The district court found that
    Jennings’ allegations were conclusory and did not establish
    prejudice as required by Strickland v. Washington. 3
    3
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
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    The court next addressed and rejected Jennings’ claim that
    counsel erred in not objecting to jury instruction No. 4. As read
    to the jury, that instruction provided:
    Depending on the evidence you may return one of two
    possible verdicts to Count 1 of the information. You may
    find [Jennings], one, guilty of murder in the first degree
    felony murder or two not guilty.
    Felony murder. The material elements which the State
    must prove by evidence beyond a reasonable doubt in
    order to convict [Jennings] of murder in the first degree
    felony murder as charged in Count 1 of the information
    are, one, that . . . Jennings intended to commit the crime
    of robbery. And two, that on or about December 23rd
    2016, in Douglas County, Nebraska, [Jennings] was in
    the course of committing or attempting to commit that
    robbery. And three, that [Jennings] either alone or by
    aiding and abetting another killed . . . Brinkman dur-
    ing the course of committing or attempting to commit
    that robbery.
    A person commits robbery if, with the intent to steal,
    forcibly and by violence, or by putting in fear, take from
    the person of another any money or personal property of
    any value whatever.
    A person commits attempted robbery if he intended to
    commit a robbery and he intentionally engaged in con-
    duct that under the circumstances as he believed them
    to be was a substantial step towards committing the rob-
    bery and the person[’]s conduct strongly corroborated his
    intent to commit robbery.
    The State has the burden of proving beyond a reason-
    able doubt each and every one of the foregoing material
    elements of the crime of murder in the first degree felony.
    If you find from the evidence beyond a reasonable doubt
    that each of the foregoing material elements is true, it is
    your duty to find [Jennings] guilty of murder in the first
    degree felony murder as charged in Count 1.
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    On the other hand, if you find the State has failed to
    prove beyond a reasonable doubt any one or more of
    the foregoing material elements, it is your duty to find
    [Jennings] not guilty.
    The burden of proof is always on the State to prove
    beyond a reasonable doubt all of the material[] elements
    of the crime charge[d] and this burden never shifts.
    Jennings takes issue with the language at the end of the
    opening paragraph that he “either alone or by aiding and
    abetting another killed . . . Brinkman during the course of
    committing or attempting to commit that robbery.” The dis-
    trict court noted that the instruction was a correct statement
    of the law and that Jennings offered no argument or authority
    to show otherwise.
    The district court then addressed and found without merit
    Jennings’ contention that one of the investigating officers
    falsely testified with respect to alleged inconsistent statements
    made by a witness. The district court noted that Jennings did
    not identify where these statements were made in the record,
    and it further noted that trial counsel’s decisions about making
    certain objections were generally considered to be trial strat-
    egy, for which counsel is afforded due deference.
    Finally, the district court rejected Jennings’ claims of pros-
    ecutorial misconduct and trial court error, concluding those
    issues were procedurally barred.
    ASSIGNMENTS OF ERROR
    On appeal, Jennings assigns, restated, that the district court
    erred (1) in denying his motion for postconviction relief
    without an evidentiary hearing because his trial counsel was
    ineffective in failing to (a) object to the destruction of the
    toast found at the scene, (b) object to false statements made
    in the affidavit and warrant seeking his cell phone records, (c)
    investigate certain witnesses, (d) object to jury instruction No.
    4, and (e) object to the testimony of Det. Larry Cahill, and (2)
    by denying his motion without first giving him an opportunity
    to respond to the State’s reply.
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    STATE V. JENNINGS
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    STANDARD OF REVIEW
    [1,2] When a district court denies postconviction relief
    without conducting an evidentiary hearing, an appellate court
    determines de novo 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 The appellate court does not conduct this review sua
    sponte, however; as with all appeals, the alleged errors of the
    lower court must be both specifically assigned and specifi-
    cally argued in the brief of the party asserting the errors to be
    considered by the appellate court. 5 The appellate court will not
    scour the record on appeal to understand unclear arguments or
    find support for broad conclusions. 6
    [3] With regard to the questions of counsel’s performance
    or prejudice to the defendant as part of the two-pronged test
    articulated in Strickland, an appellate court reviews such legal
    determinations independently of the lower court’s decision. 7
    ANALYSIS
    Postconviction Propositions of Law.
    [4-6] The district court must grant an evidentiary hearing
    to resolve the claims in a postconviction motion when the
    motion contains factual allegations which, if proved, con-
    stitute an infringement of the defendant’s rights under the
    state or federal Constitution. 8 However, the allegations in a
    motion for postconviction relief must be sufficiently specific
    for the district court to make a preliminary determination as
    to whether an evidentiary hearing is justified. 9 An evidentiary
    hearing is not required on a motion for postconviction relief
    4
    State v. Lessley, ante p. 316, 
    978 N.W.2d 620
     (2022).
    5
    
    Id.
    6
    
    Id.
    7
    State v. Ellis, 
    311 Neb. 862
    , 
    975 N.W.2d 530
     (2022). See Strickland v.
    Washington, 
    supra note 3
    .
    8
    State v. Jaeger, 
    311 Neb. 69
    , 
    970 N.W.2d 751
     (2022).
    9
    
    Id.
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    when (1) the motion does not contain factual allegations
    which, if proved, constitute an infringement of the movant’s
    constitutional rights rendering the judgment void or voidable;
    (2) the motion alleges only conclusions of fact or law without
    supporting facts; or (3) the records and files affirmatively
    show that the defendant is entitled to no relief. 10
    Disposal of Texas Toast.
    Jennings first assigns that the district court erred in not
    granting him an evidentiary hearing on his assertion that coun-
    sel was ineffective in its handling of the Texas toast found at
    the crime scene. In his brief, Jennings argues that his counsel
    was ineffective because he failed “to suppress the intentional
    destruction of any biological material evidence.” 11 He also
    argues that counsel was ineffective in failing to seek indepen-
    dent DNA testing because retesting of the material “would
    have likely exonerated or exculpated [him]” 12 and “could have
    implicated other suspects.” 13 Finally, Jennings argues that law
    enforcement “acted in bad faith when they did not assess
    the evidentiary value nor did they consult [Jennings] before
    destroying any evidence.” 14
    Jennings’ assertion is without merit. Even assuming we
    could conclude that Jennings’ trial counsel was deficient in
    failing to object to the destruction of evidence, which occurred
    prior to counsel’s representation of Jennings and in fact prior
    to Jennings’ identification as a suspect and subsequent arrest,
    Jennings cannot show that he was prejudiced by the destruc-
    tion of the toast.
    As we understand Jennings’ allegations, he asserts that
    retesting or further testing of the DNA evidence from the toast
    10
    
    Id.
    11
    Brief for appellant at 34.
    12
    Id. at 35.
    13
    Id. at 36.
    14
    Id. at 35.
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    would prove exculpatory. But destruction of the toast is dis-
    tinct from the sample of DNA swabbed from that toast. The
    record shows that a swab was taken and that not all of the
    sample was consumed. Thus, the potential for further testing
    exists, given the appropriate circumstances and utilization of
    the correct procedure.
    Moreover, even if the DNA from the toast would have been
    excluded as a result of the allegedly improper destruction of
    the toast, that DNA was not the only DNA found at the scene.
    Just as Jennings could not be excluded from the toast sample,
    he was also not excluded from the DNA found on the sauce
    container and lid, or from a shower rod which Seth testified
    he used to fend off the home invaders. Given this other DNA
    evidence, Jennings cannot show that he was prejudiced by the
    admission of the DNA found on the toast.
    We turn next to Jennings’ allegation that his counsel was
    ineffective in failing to seek DNA retesting. It is not clear
    whether Jennings asserts that all DNA should have been
    retested or that only the DNA on the toast should have been
    retested. But in either case, Jennings has failed to allege any
    circumstances which would have supported retesting at this
    stage. For example, Jennings does not allege that there are
    questions about the trustworthiness of the testing procedure
    or that improved testing methods were available and should
    have been employed over the methods utilized. Given the
    lack of such allegations, we cannot find that counsel was
    deficient in failing to seek retesting.
    There is no merit to Jennings’ assignment of error.
    Warrant for Cell Phone Data.
    Jennings also assigns that his counsel was ineffective in
    ­failing to object to false statements in the affidavit in sup-
    port of the State’s application for a search warrant to obtain
    Jennings’ cell phone records. Specifically, Jennings con-
    tends that when Milius called the 911 emergency dispatch
    serv­ice following the home invasion, she reported that the
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    perpetrators had ­been white, but that the affidavit averred
    that Milius indicated the perpetrators were Black. Jennings
    contends that at the least, the magistrate was misled, and that
    at the most, the magistrate “abandoned his or her detached
    and neutral judicial role” by not denying the warrants. 15
    A review of the record demonstrates there is no merit to this
    assertion. While Milius did initially indicate that she thought
    at least one of the perpetrators was white, the victim’s son,
    Seth, indicated that both were Black. It is evident from the
    record that Milius was uncertain initially, while Seth was more
    certain. Thus, the indication in the affidavit that the perpetra-
    tors were Black was not wholly incorrect.
    Moreover, as the district court, and to a lesser extent the
    State, indicated, the crux of the affidavit in support was the
    “nexus between [Carnell Neal] Watt, the newer model
    white SUV parked in front of [Michael’s home] during
    the time of the home invasion, the 2016 Dodge Durango
    SU[V] rented by Watt during that time, [and] Watt’s
    statements that she allowed [Jennings] to use the Dodge
    Durango, and [Jennings’] DNA at the crime[] scene.”
    There is no indication from the warrant or the affidavit
    that the ethnicity of the perpetrators had an impact on the
    magistrate’s decisionmaking process in authorizing the cell
    phone warrant.
    The district court did not err in denying Jennings’ postcon-
    viction relief with respect to this allegation, and there is no
    merit to this assignment of error.
    Failure to Investigate Witnesses.
    Jennings next assigns that his counsel was ineffective in
    failing to investigate and call as witnesses three individuals:
    Dominique Davis, the 911 operator, and Wally Poderys. In
    addition, at oral argument in this case, Jennings indicated that
    counsel failed to properly investigate Carnell Neal Watt and
    15
    Id. at 40.
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    an unidentified law enforcement officer. But he did not other­
    wise raise either of those individuals in his brief or in his
    underlying motion, so we do not address either on appeal.
    We turn first to Davis. Jennings alleged in his motion that
    Davis “may provide relevant information pertaining to [his]
    alibi” and that Davis was “willing to testify about her numer-
    ous encounters with . . . Jennings including information about
    . . . Jennings’ frequent visits to her home unannounced and his
    attempts to conceal their relationship from . . . Watt.” Jennings
    alleged that Davis’ “testimony could have been used to impeach
    the testimony of other witnesses as to . . . Jennings[’] where-
    abouts, demeanor and actions at or around [the] time of [the]
    incident” and that if “Davis [was] interviewed or called as a
    witness the testimony could have cleared [Jennings] or impli-
    cated other suspects or provided alternative theories of defense
    and the failure to do so prejudiced . . . Jennings.”
    The district court found, and we agree, that the allegations
    regarding Davis’ testimony were conclusory. Jennings alleges
    that Davis could have cleared him, implicated others, or pro-
    vided alternative theories of the defense. But Jennings does
    not explain precisely to what Davis would testify that would
    provide him an alibi or explain who, if not Jennings, murdered
    Brinkman. Nor does Jennings provide an alternative theory of
    defense to the one Jennings employed, which was apparently
    that he did not kill Brinkman and was not present. Jennings has
    not adequately pled this assertion, and accordingly, we find it
    to be without merit.
    Jennings also argues that counsel was ineffective in failing
    to interview or call the 911 operator that answered Milius’ call
    to emergency services. Jennings claims that the 911 operator
    “changed the racial description of the suspects after hanging
    up the original call from Milius.” Jennings alleges that the
    operator’s testimony could have been used “to impeach the tes-
    timony of [the] others about the reported information.”
    The record demonstrates that Milius was initially uncertain
    about the ethnicity of the perpetrators, while Seth was certain
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    that they were Black males. As noted above, the crux of the
    warrant was not the fact that one of the perpetrators was ini-
    tially identified as white. The crux was that a vehicle matching
    the description of a vehicle that Jennings had access to was
    parked at the scene of the home invasion, that Jennings’ DNA
    was found at the scene of the home invasion, and that these
    items provided probable cause for the warrant. Interviewing or
    further investigating the 911 operator would not have changed
    this result. There is no merit to this assertion.
    Jennings next contends that his counsel was ineffective for
    failing to call Poderys. Jennings alleges that testimony from
    Poderys—who by the time of trial was deceased—could have
    “provided a motive to commit the underlying felony and pro-
    vide some exculpatory evidence,” because of Poderys’ “toxic
    relationship with Brinkman and the recent threat[en]ing text
    messages Brinkman received about an old debt.” The district
    court rejected this claim, addressing Jennings’ failure to inves-
    tigate allegations globally and reasoning that the allegations
    in Jennings’ motion were “generic and most importantly, do
    not state what exculpatory evidence would have been gathered
    or how such evidence would have changed the outcome of
    the trial.”
    We agree these allegations were conclusory in nature. In his
    motion, Jennings does not explain what motive Poderys had or
    explain the nature of the toxic relationship between Poderys
    and Brinkman, except to explain it involved an “old debt.”
    Jennings does not explain what Poderys would testify to that
    would have led to a different result in Jennings’ trial. For these
    reasons, there is no merit to this assignment of error.
    Jury Instruction No. 4.
    Jennings also contends that the district court erred in giving
    jury instruction No. 4. The full instruction is set forth above.
    In short, Jennings contends that the portion of the instruction
    that stated Jennings could be found guilty “either alone or
    by aiding and abetting another” was an incorrect statement
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    of the law and “shifts [the] burden of ‘beyond a reasonable
    doubt’ to [Jennings].”
    [7,8] In reviewing a claim of prejudice from jury instruc-
    tions given or refused, the appellant has the burden to show
    that the allegedly improper instruction or the refusal to give
    the requested instruction was prejudicial or otherwise adversely
    affected a substantial right of the appellant. 16 All the jury
    instructions must be read together, and if, taken as a whole,
    they correctly state the law, are not misleading, and adequately
    cover the issues supported by the pleadings and the evidence,
    there is no prejudicial error necessitating reversal. 17
    We first observe that Jennings directs us to no authority
    suggesting that the challenged language from jury instruc-
    tion No. 4 was an incorrect statement of the law. In fact, this
    court implicitly approved of this very same instruction in State
    v. Pope. 18
    We agree that the language highlighted by Jennings is not
    part of the usual pattern jury instruction for felony murder.
    But that pattern instruction does not, itself, encompass an
    aider and abettor situation; rather, it envisions a single defend­
    ant. However, there is also a pattern instruction that covers
    the situation where there is potential aider and abettor culpa-
    bility. 19 That instruction was also given. When all the instruc-
    tions are given together, it is clear that the additional language
    in jury instruction No. 4 was to cover the gap between the
    felony murder and the aider and abettor instructions and make
    them consistent.
    Moreover, Jennings claims that the challenged language
    shifted the burden of proof. He does not explain how the lan-
    guage does this, nor does he cite to any authority in support
    of his argument. In any event, the jury was instructed that
    16
    State v. Pope, 
    305 Neb. 912
    , 
    943 N.W.2d 294
     (2020).
    17
    
    Id.
    18
    
    Id.
    19
    See NJI2d Crim. 3.8 (aider is same crime as principal).
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    the State always had the burden of proof and that the burden
    never shifted to Jennings. We find no merit to this assignment
    of error.
    Failure to Object to Cahill’s Testimony.
    Jennings assigns that his counsel erred in failing to object
    to testimony from Cahill, a detective with the Omaha Police
    Department. Jennings argues that Cahill should not have been
    permitted to testify to the contents of a statement made by
    Watt regarding Jennings’ use of a vehicle rented by Watt. In his
    motion, Jennings alleged that Cahill “changed” Watt’s state-
    ment from one indicating that she was not sure whether she
    loaned that vehicle to Jennings, to a statement indicating that
    she had loaned the vehicle, and that such “change” violated
    Jennings’ right to due process. In his brief on appeal, Jennings
    argues that Cahill should not have been permitted to testify
    to the substance of Watt’s remarks because she pled the Fifth
    Amendment and did not testify.
    This allegation is not supported by the record. The record
    affirmatively demonstrates that neither Cahill nor any other
    law enforcement witness testified at trial as to the content of
    any conversation had with Watt regarding Jennings’ use of
    a vehicle rented by Watt. As such, we find no merit to this
    assignment of error.
    Opportunity to Respond to State’s Reply.
    Finally, Jennings assigns that the district court erred in deny-
    ing his postconviction motion without giving him the opportu-
    nity to respond to the State’s reply to his motion.
    [9-11] We recently set out the postconviction procedure in
    State v. Burries, 20 in which we noted that the only required
    pleading in a postconviction action was the motion seeking
    relief. “Upon the filing of that motion, the court has the obliga-
    tion to determine whether the prisoner is entitled to no relief,
    20
    State v. Burries, 
    310 Neb. 688
    , 
    969 N.W.2d 96
     (2022).
    - 1034 -
    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    STATE V. JENNINGS
    Cite as 
    312 Neb. 1020
    in which case the motion is dismissed, or, alternatively, con-
    clude that the defendant is entitled to a hearing to determine if
    he or she is entitled to relief.” 21 If a defendant is entitled to a
    hearing, then the court shall cause notice to be served on the
    county attorney. While “the State, through its county attorneys,
    can, and often does, participate at earlier points in the process,
    the State is only called upon to take action with respect to a
    motion once it receives notice from the court.” 22
    There is nothing in the language of the Nebraska
    Postconviction Act that allows any type of response from a
    defendant prior to the dismissal of his motion. Thus, the court
    did not err insofar as it did not specifically request or order
    such a filing. Nor is there any indication from this record
    that Jennings was prohibited from filing such a response.
    The State’s response was served on Jennings on October 12,
    2021, and not dismissed by the district court until February
    24, 2022, suggesting that Jennings would have had ample
    opportunity to, at a minimum, seek to file a response. Jennings
    does not argue that any attempt to do so was denied by the
    court, and there is no other suggestion in the record that such
    a denial took place.
    There is no merit to Jennings’ final assignment of error.
    CONCLUSION
    The judgment of the district court denying Jennings’ motion
    for postconviction relief without an evidentiary hearing is
    affirmed.
    Affirmed.
    21
    Id. at 693, 969 N.W.2d at 100.
    22
    Id.