State v. Privett , 303 Neb. 404 ( 2019 )


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    Nebraska Supreme Court A dvance Sheets
    303 Nebraska R eports
    STATE v. PRIVETT
    Cite as 
    303 Neb. 404
    State of Nebraska, appellee, v.
    Phillip M. Privett, appellant.
    ___ N.W.2d ___
    Filed June 21, 2019.    No. S-18-775.
    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 dem-
    onstrate a violation of his or her constitutional rights or that the record
    and files affirmatively show that the defendant is entitled to no relief.
    2. Postconviction: Constitutional Law: Proof. A court must grant an
    evidentiary hearing to resolve the claims in a postconviction motion
    when the motion contains factual allegations which, if proved, constitute
    an infringement of the defendant’s rights under the Nebraska or federal
    Constitution.
    3. Postconviction: Pleadings. A defendant is required to make specific
    allegations instead of mere conclusions of fact or law in order to receive
    an evidentiary hearing for postconviction relief.
    4. Postconviction: Appeal and Error. When a district court denies post-
    conviction relief without conducting an evidentiary hearing, an appel-
    late court must determine whether the petitioner has alleged facts that
    would support the claim and, if so, whether the files and records affirm­
    atively show that he or she is entitled to no relief.
    5. Effectiveness of Counsel: Pleas: Waiver. Generally, a voluntary guilty
    plea or plea of no contest waives all defenses to a criminal charge. Thus,
    when a defendant pleads guilty or no contest, he or she is limited to
    challenging whether the plea was understandingly and voluntarily made
    and whether it was the result of ineffective assistance of counsel.
    6. Postconviction: Effectiveness of Counsel: Pleas. In a postconviction
    proceeding brought by a defendant convicted because of a guilty plea
    or a plea of no contest, a court will consider an allegation that the plea
    was the result of ineffective assistance of counsel.
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    STATE v. PRIVETT
    Cite as 
    303 Neb. 404
    7. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
    In order to establish a right to postconviction relief based on a claim
    of ineffective assistance of counsel, the defendant has the burden, in
    accord­ance with Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), to show that counsel’s performance was
    deficient; that is, counsel’s performance did not equal that of a lawyer
    with ordinary training and skill in criminal law. Next, the defendant
    must show that counsel’s deficient performance prejudiced the defense
    in his or her case.
    8. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
    tion is based upon a guilty plea, the prejudice requirement for an inef-
    fective assistance of counsel claim is satisfied if the defendant shows a
    reasonable probability that but for the errors of counsel, the defendant
    would have insisted on going to trial rather than pleading guilty.
    9. Effectiveness of Counsel: Appeal and Error. The two prongs of the
    ineffective assistance of counsel test under Strickland v. Washington,
    
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), deficient per-
    formance and prejudice, may be addressed in either order.
    10. Effectiveness of Counsel: Proof. In the context of a claim of ineffec-
    tiveness of counsel for failure to investigate, allegations are too specula-
    tive to warrant relief if the petitioner fails to allege what exculpatory
    evidence that the investigation would have procured and how it would
    have affected the outcome of the case.
    11. Effectiveness of Counsel: Pleas: Proof. Self-serving declarations that
    a defendant would have gone to trial are not enough to warrant a hear-
    ing; a defendant must present objective evidence showing a reasonable
    probability that he or she would have insisted on going to trial.
    Appeal from the District Court for Knox County: James G.
    Kube, Judge. Affirmed.
    Michael J. Wilson, of Schaefer Shapiro, L.L.P., for
    appellant.
    Douglas J. Peterson, Attorney General, and Siobhan E.
    Duffy for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ.
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    Nebraska Supreme Court A dvance Sheets
    303 Nebraska R eports
    STATE v. PRIVETT
    Cite as 
    303 Neb. 404
    Cassel, J.
    INTRODUCTION
    Phillip M. Privett appeals from an order denying his motion
    for postconviction relief without an evidentiary hearing. He
    raises two claims of ineffective assistance of trial counsel.
    Although he asserts that counsel failed to investigate and
    advise him of a viable defense, his motion failed to allege
    sufficient facts. He also claims that in response to his hearing
    impairment, counsel failed to request the court to amplify its
    voice or employ a telecommunications device. But, the record
    affirmatively refutes his claim. We affirm.
    BACKGROUND
    The State charged Privett with first degree murder and use
    of a firearm to commit a felony. Two attorneys were appointed
    to represent him. Pursuant to a plea agreement, the State
    amended the first count to second degree murder and Privett
    pled no contest to both counts. The district court sentenced
    him to 30 to 50 years’ imprisonment for second degree murder
    and not less than or more than 10 years’ imprisonment for use
    of a firearm to commit a felony.
    On direct appeal, Privett assigned that he received excessive
    sentences. The Nebraska Court of Appeals summarily affirmed
    his sentences.
    Represented by different counsel, Privett filed an amended
    motion for postconviction relief, asserting two claims of inef-
    fective assistance of trial counsel. First, he claimed that trial
    counsel were ineffective when they failed “to adequately inves-
    tigate and advise Privett as to ‘the available options and pos-
    sible consequences’ prior to pleading no contest.” Second,
    he asserted that trial counsel were ineffective for failing “to
    request continued amplification of the words of [the district
    court] and the parties at the plea hearing [or] provid[e] a tele-
    communications device for the deaf.”
    The district court denied postconviction relief without
    an evidentiary hearing, finding that Privett did not allege
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    STATE v. PRIVETT
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    303 Neb. 404
    sufficient facts and that the record affirmatively disproved
    the claims.
    Privett filed a timely appeal, which we moved to our docket.1
    ASSIGNMENTS OF ERROR
    Privett assigns that the district court erred in denying an
    evidentiary hearing on his claims for ineffective assistance of
    trial counsel where counsel (1) failed to advise Privett concern-
    ing a viable defense that he lacked capacity to form the intent
    required to commit murder and (2) failed to request additional
    amplification or a telecommunications device for the deaf dur-
    ing the proceedings.
    We note that in Privett’s amended motion for postconvic-
    tion relief, he claimed counsel were ineffective for failing to
    advise on a defense of sudden quarrel manslaughter. On appeal,
    Privett does not assign error to or argue that claim. Therefore,
    we do not address it.2
    STANDARD OF REVIEW
    [1] In appeals from postconviction proceedings, an appel-
    late 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 affirma-
    tively show that the defendant is entitled to no relief.3
    ANALYSIS
    Privett contends that the district court erred in dismissing his
    claims for ineffective assistance of counsel without an eviden-
    tiary hearing. Generally, he argues that his claims did not allege
    mere conclusions of fact and that the record did not affirma-
    tively disprove his claims. We first recite the general principles
    1
    See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018); Neb. Rev. Stat.
    § 29-3002 (Reissue 2016).
    2
    See State v. Munoz, ante p. 69, 
    927 N.W.2d 25
     (2019).
    3
    State v. Martinez, 
    302 Neb. 526
    , 
    924 N.W.2d 295
     (2019).
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    of law regarding postconviction motions and ineffective assist­
    ance of counsel; we then turn to Privett’s specific claims.
    General Principles of Law
    [2-4] A court must grant an evidentiary hearing to resolve
    the claims in a postconviction motion when the motion contains
    factual allegations which, if proved, constitute an infringe-
    ment of the defendant’s rights under the Nebraska or federal
    Constitution.4 A defendant is required to make specific allega-
    tions instead of mere conclusions of fact or law in order to
    receive an evidentiary hearing for postconviction relief.5 When
    a district court denies postconviction relief without conduct-
    ing 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.6
    [5,6] Generally, a voluntary guilty plea or plea of no con-
    test waives all defenses to a criminal charge.7 Thus, when a
    defendant pleads guilty or no contest, he or she is limited to
    challenging whether the plea was understandingly and volun-
    tarily made and whether it was the result of ineffective assist­
    ance of counsel.8 In a postconviction proceeding brought by a
    defendant convicted because of a guilty plea or a plea of no
    contest, a court will consider an allegation that the plea was
    the result of ineffective assistance of counsel.9 Because Privett
    pled no contest to the charges, we will consider his allega-
    tions that the plea was the result of ineffective assistance of
    trial counsel.
    4
    Id.
    5
    State v. Fox, 
    286 Neb. 956
    , 
    840 N.W.2d 479
     (2013).
    6
    State v. Collins, 
    299 Neb. 160
    , 
    907 N.W.2d 721
     (2018).
    7
    State v. Payne, 
    298 Neb. 373
    , 
    904 N.W.2d 275
     (2017).
    8
    Id.
    9
    Id.
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    STATE v. PRIVETT
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    [7-9] In order to establish a right to postconviction relief
    based on a claim of ineffective assistance of counsel, the
    defendant has the burden, in accordance with Strickland v.
    Washington,10 to show that counsel’s performance was defi-
    cient; 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.11 When a convic-
    tion is based upon a guilty plea, the prejudice requirement
    for an ineffective assistance of counsel claim is satisfied if
    the defendant shows a reasonable probability that but for
    the errors of counsel, the defendant would have insisted on
    going to trial rather than pleading guilty.12 The two prongs
    of the ineffective assistance of counsel test under Strickland,
    deficient performance and prejudice, may be addressed in
    either order.13
    Defense
    Responding to the district court’s reasoning, Privett’s brief
    on appeal argues that the district court erred in dismissing
    his claim without an evidentiary hearing, “because trial coun-
    sel’s comments during sentencing demonstrate that they knew
    Privett had no ability to form the necessary intent to commit
    murder, and that effective assistance required additional inves-
    tigation from experts other than the State’s forensic [psychia-
    trist, Dr.] Y. Scott Moore.”14
    Privett argues that trial counsel were deficient for failing to
    investigate into his “unique personal circumstances.”15 But, as
    10
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    11
    State v. Armendariz, 
    289 Neb. 896
    , 
    857 N.W.2d 775
     (2015).
    12
    Id.
    13
    Id.
    14
    Brief for appellant at 7.
    15
    Id. at 11.
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    STATE v. PRIVETT
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    the district court correctly determined, trial counsel did con-
    duct a diligent investigation when they filed a notice of intent
    to rely on the insanity defense and a motion for a psychologi-
    cal examination of Privett. The court granted the motion for a
    psychological evaluation, which was performed by Dr. Y. Scott
    Moore. The record shows that Moore is a forensic psychiatrist
    with the Lincoln Regional Center.
    Candidly, Privett’s remaining arguments that trial coun-
    sel were ineffective for failing to investigate a defense of an
    inability to form intent, to advise Privett about that defense,
    and to obtain an evaluation from someone other than Moore
    are intertwined. We separate them for discussion.
    Privett argues that counsel were ineffective for failing to
    investigate, premising this argument upon counsel’s purported
    knowledge that he could not have formed the requisite intent.
    To establish counsel’s knowledge, Privett relies on two state-
    ments made by trial counsel at the sentencing hearing. First,
    counsel stated, “I think that the post-traumatic stress disorder
    may have played a role in that as might have the medications
    he’s on.” Second, counsel stated, “[W]e won’t know exactly
    what happened and we won’t know why it happened.” Privett
    argues that these statements alone dictated that it was neces-
    sary for trial counsel to investigate further and, specifically, to
    hire an independent forensic psychologist.
    [10] In the context of a claim of ineffectiveness of counsel
    for failure to investigate, allegations are too speculative to
    warrant relief if the petitioner fails to allege what exculpa-
    tory evidence that the investigation would have procured and
    how it would have affected the outcome of the case.16 Privett
    broadly alleged that further investigation required an indepen-
    dent forensic psychologist, but he did not allege what excul-
    patory evidence would have been discovered by the forensic
    psychologist or how that evidence would have affected the
    outcome of the case. We agree with the district court that the
    16
    State v. Vanderpool, 
    286 Neb. 111
    , 
    835 N.W.2d 52
     (2013).
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    STATE v. PRIVETT
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    facts alleged were insufficient to show deficient conduct by
    trial counsel.
    Privett argues that trial counsel were ineffective for failing
    to advise him on a defense where his post-traumatic stress dis-
    order (PTSD) and medications caused him to enter a dissocia-
    tive state and prevented him from forming the requisite intent.
    Trial counsel appropriately relied on Moore’s evaluations when
    advising Privett on viable defenses. In Moore’s evaluation of
    Privett’s competency for trial, Moore remarked:
    When I talk to [Privett] about the symptoms of PTSD,
    he tells me that it is mostly a matter of being a little bit
    “jumpy” and he tells me that if he hears a loud noise, he
    still has a tendency to “hit the dirt” until he knows what
    it is.
    In the evaluation regarding sanity, Moore stated that Privett
    confessed to a history of alcohol usage and that with “his new
    history . . . of having a great many times of no memory of
    what he had been doing, there is the possibility that . . . Privett
    was in a state of alcohol blackout at the time of the alleged
    murder.” Further, he opined that “[o]ther than some symp-
    toms of sleep difficulties and some startle reactions described
    to me . . . , I cannot find any marked symptoms of PTSD in
    this gentleman.”
    Moore’s evaluations refute the allegation that Privett’s PTSD
    and medications caused him to enter into a dissociative state.
    And Privett’s motion fails to allege facts showing that a dif-
    ferent forensic psychologist likely would have concluded oth-
    erwise. Without facts to show why trial counsel should not
    have relied on Moore’s evaluations, there was no factual basis
    for the existence of such defense. With no basis to support the
    defense’s existence, trial counsel had no obligation to advise
    him of it.17 Therefore, the district court did not err in finding
    that the record affirmatively refuted Privett’s claim.
    17
    See Armendariz, supra note 11.
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    Finally, Privett asserts that trial counsel were ineffective for
    failing to obtain an independent forensic psychological evalu-
    ation. In a postconviction motion, an allegation that defense
    counsel was ineffective in failing to procure witnesses favor-
    able to the defendant was properly dismissed without an evi-
    dentiary hearing where the motion did not specifically identify
    the witnesses or the nature of their testimony.18 Privett failed
    to sufficiently allege whom trial counsel should have obtained
    to perform an independent forensic psychological evaluation
    and what the forensic psychologist would have opined as the
    explanation for his failure to remember the events surround-
    ing the victim’s death. We agree with the district court that
    the facts alleged are insufficient to show deficient conduct by
    trial counsel.
    Hearing Impairment
    Privett contends that trial counsel were ineffective when
    they failed to inform the court that he could not hear or failed
    to provide him with a telecommunications device. He alleged
    that after the court amplified its voice during the sentenc-
    ing hearing, it then decreased the volume of its voice to a
    point where he could not hear. He argues that this left him
    unable to understand the nature of the proceedings against him,
    which deprived him of his right to due process under the 14th
    Amendment to the U.S. Constitution.
    Nebraska courts have yet to discuss whether counsel is inef-
    fective for failing to inform the court when its hard-of-hearing
    client cannot hear. But, an Ohio court discussed the issue in an
    almost identical factual scenario.
    In State v. Thomas,19 the defendant claimed that trial coun-
    sel was ineffective for failing to request a hearing device
    for his hearing-impaired client. During the plea hearing, the
    18
    See State v. McGhee, 
    280 Neb. 558
    , 
    787 N.W.2d 700
     (2010).
    19
    State v. Thomas, Nos. 25331, 25332, 
    2014 WL 1339070
     (Ohio App. Mar.
    21, 2014) (unpublished opinion).
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    court moved the defendant closer to the bench. The defendant
    affirmed his ability to hear the court and counsel. The court
    informed the defendant that if he could not hear clearly, to let it
    know so it could repeat itself. The court inquired several times
    throughout the plea whether the defendant could hear, and in
    each instance, the defendant affirmed that he could. The Ohio
    appellate court determined that the record clearly refuted the
    claim. Thus, the appellate court concluded that trial counsel’s
    performance was not deficient.
    Here, the record shows that Privett heard, understood, and
    appropriately responded during the proceedings. At the hear-
    ing during which Privett entered his pleas, he did not express
    that he was having any difficulty hearing anything. All of
    his answers to the court’s questions responded directly and
    appropriately. And contrary to Privett’s argument on appeal,
    the only hearing at which Privett expressed any difficulty in
    hearing was the sentencing proceeding. During that event, one
    of Privett’s counsel advised the court that Privett did not have
    any working hearing aids and had told his attorney that he
    was having difficulty hearing. In response, the court instructed
    Privett that if he could not hear, he should inform his attorney
    or raise his hand. Later, Privett did inform the court that he
    could not hear. At that time, the court stated, “All right. Then
    what we’ll do is postpone this and come back when he has a
    hearing aid.” Privett responded, “No, sir, please don’t.” The
    court then asked Privett whether he could tell the court what it
    was trying to do. Privett responded, “Try to decide what [its]
    going to do with me, I guess.” He then stated that he could suf-
    ficiently hear the court and answered all the court’s remaining
    questions without issue.
    [11] Self-serving declarations that a defendant would have
    gone to trial are not enough to warrant a hearing; a defendant
    must present objective evidence showing a reasonable prob-
    ability that he or she would have insisted on going to trial.20
    20
    State v. Barrera-Garrido, 
    296 Neb. 647
    , 
    895 N.W.2d 661
     (2017).
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    Privett’s self-serving declaration that the court lowered its
    voice during the proceeding and that he could not hear is
    clearly refuted by the record. The record shows that the dis-
    trict court made every effort to ensure that Privett could hear
    and understand the proceedings, including repeatedly offering
    to continue the hearing to a later date. Privett declined each
    invitation to postpone the sentencing. Accordingly, the district
    court did not err in finding that the record affirmatively dis-
    proved Privett’s allegation of not being able to hear.
    CONCLUSION
    For the reasons set forth above, we affirm the final order of
    the district court.
    A ffirmed.
    Freudenberg, J., not participating.