State v. Sinachack , 31 Neb. Ct. App. 187 ( 2022 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. SINACHACK
Cite as 31 Neb. App. 187State of Nebraska, appellee, v.
Mark Sinachack, appellant.
___ N.W.2d ___
Filed July 19, 2022. No. A-21-569.
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: Judgments: Appeal and Error. Whether a claim raised
in a postconviction proceeding is procedurally barred is a question of
law. When reviewing a question of law, an appellate court reaches a
conclusion independent of the lower court’s ruling.
3. Postconviction: Constitutional Law: Judgments. Postconviction relief
is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or
her constitutional rights such that the judgment was void or voidable.
4. Postconviction: Constitutional Law: Proof. A court must grant an evi-
dentiary 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.
5. Postconviction: Judgments: Proof. In a postconviction proceeding,
an evidentiary hearing is not required 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.
6. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668,
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STATE V. SINACHACK
Cite as 31 Neb. App. 187104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
his or her counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense.
7. Effectiveness of Counsel: Proof: Appeal and Error. To show that
counsel’s performance was deficient under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant
must show counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. To show prejudice under
the prejudice component of the Strickland test, the defendant must
demonstrate a reasonable probability that but for his or her coun-
sel’s deficient performance, the result of the proceeding would have
been different.
8. Postconviction: Effectiveness of Counsel: Appeal and Error. A
motion for postconviction relief asserting ineffective assistance of trial
counsel is procedurally barred when (1) the defendant was represented
by a different attorney on direct appeal than at trial, (2) an ineffective
assistance of trial counsel claim was not brought on direct appeal, and
(3) the alleged deficiencies in trial counsel’s performance were known
to the defendant or apparent from the record.
9. ____: ____: ____. Claims of ineffective assistance of appellate counsel
may be raised for the first time on postconviction review.
10. Effectiveness of Counsel: Appeal and Error. When a claim of inef-
fective assistance of appellate counsel is based on the failure to raise a
claim on appeal of ineffective assistance of trial counsel, an appellate
court will first look at whether trial counsel was ineffective under the
test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
11. Appeal and Error. Absent plain error, an appellate court ordinarily will
not address an issue that was not raised in the trial court.
12. Right to Counsel: Plea Bargains. The plea-bargaining process presents
a critical stage of a criminal prosecution to which the right to coun-
sel applies.
Appeal from the District Court for Buffalo County: John H.
Marsh, Judge. Affirmed.
Thomas S. Stewart for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
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Nebraska Court of Appeals Advance Sheets
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STATE V. SINACHACK
Cite as 31 Neb. App. 187Moore, Riedmann, and Arterburn, Judges.
Arterburn, Judge.
INTRODUCTION
Mark Sinachack appeals from the order of the district court
for Buffalo County, which denied his motion for postconvic-
tion relief without an evidentiary hearing. For the reasons set
forth herein, we affirm.
BACKGROUND
In 2017, the State charged Sinachack in an amended infor-
mation with first degree sexual assault of a child, a Class IB
felony, and enticement by an electronic communication device,
a Class IV felony. Each of these charges related to Sinachack’s
relationship with a 15-year-old girl during the summer of 2016.
Immediately prior to a bench trial on the two criminal charges,
Sinachack indicated to the court that he wished to plead no
contest to the charge of enticement by an electronic communi-
cation device. The district court accepted the plea.
At the close of the bench trial on the charge of first degree
sexual assault of a child, the court found Sinachack guilty,
noting that the evidence against him was “overwhelming.”
The court subsequently sentenced Sinachack to 20 to 30 years’
imprisonment on that conviction and to 3 to 6 months’ impris-
onment on his conviction for enticement by an electronic com-
munication device.
Sinachack attempted to file a pro se notice of appeal from
his convictions and sentences. However, the appeal was dis-
missed because he neither paid the required docket fee nor
requested to proceed in forma pauperis.
Sinachack later filed a motion for postconviction relief.
In the motion, he alleged, among other things, that his trial
counsel had provided ineffective assistance when counsel
failed to perfect his direct appeal. Ultimately, the district court
granted Sinachack’s motion for postconviction relief, in part.
Specifically, the court granted his request for a new direct
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Cite as 31 Neb. App. 187appeal. The court did not reach any of the other allegations in
Sinachack’s motion for postconviction relief.
Sinachack, through new counsel, filed a direct appeal of his
convictions and sentences. On appeal, he assigned as error that
his trial counsel was ineffective. The State filed a motion for
summary affirmance, arguing that Sinachack had insufficiently
raised his assertions of ineffective assistance of trial coun-
sel pursuant to State v. Mrza, 302 Neb. 931, 926 N.W.2d 79(2019). This court agreed with the State’s contention and sum-
marily affirmed Sinachack’s convictions and sentences, find-
ing: “Appellant did not specifically assign as error his claims
of ineffective assistance of trial counsel. See State v. Mrza, 302
Neb. 931, 926 N.W.2d 79 (2019).” Our mandate was issued on
August 11, 2020.
Following our order of summary affirmance, Sinachack
obtained a third attorney. Sinachack’s new counsel sought leave
to file an amended motion for postconviction relief in order
to remove some of the claims raised in Sinachack’s original
motion for postconviction relief as to trial counsel, but to also
add claims of ineffective assistance of counsel with regard to
his representation on direct appeal. The district court allowed
Sinachack to file an amended motion for postconviction relief.
That motion is the operative pleading in the current appeal.
In his amended motion for postconviction relief, Sinachack
alleged that his appellate counsel was ineffective for failing to
properly raise on direct appeal the claim that his trial counsel
provided ineffective assistance in the context of plea nego-
tiations. Specifically, Sinachack contended that trial counsel’s
decision to provide the State with the report from his forensic
psychosexual evaluation “torpedoed what had been up to that
point a viable chance for Sinachack to avoid a 15-year manda-
tory minimum sentence by pleading to a lesser offense than the
top count in the Information.” Sinachack alleged that but for
trial counsel’s ineffective assistance, he would have pled guilty
to a lesser offense and received a much lower sentence.
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Cite as 31 Neb. App. 187Sinachack made clear in his amended motion for postcon-
viction relief that he was only contending that trial counsel
was ineffective in terms of plea negotiations: “Sinachack does
not here allege [trial counsel’s] deficient preparation and per-
formance prejudiced Sinachack at trial. Sinachack’s postcon-
viction investigation revealed no sound basis to [assert any
other allegation of ineffective assistance of trial counsel].”
(Emphasis in original.)
The district court ultimately entered an order denying
Sinachack’s amended motion for postconviction relief without
an evidentiary hearing. The court explained its judgment as
follows:
Regarding claims that trial counsel’s trial strategy is
ineffective the analysis is viewed with the strong presump-
tion that counsel’s actions were reasonable and appellate
courts generally do not second-guess reasonable strategic
decisions by counsel. . . . The fact that a calculated trial
tactic or strategy fails to work out as planned will not
establish that counsel was ineffective. . . .
Had appellate counsel properly assigned the error,
the claim depends on the hypothetical and specula-
tive position that but for disclosing the psychosexual
evaluation the prosecutor would have offered a plea
bargain to an offense without the 15 year mandatory
minimum and that [Sinachack] would have accepted that
offer. If a postconviction motion alleges only conclu-
sions of fact or law, or if the records and files in the case
affirm­atively show that the defendant is [entitled to] no
relief, the Court is not required to grant an evidentiary
hearing. . . .
The Court finds that [Sinachack’s] contention regard-
ing disclosure of the psychosexual evaluation is a mere
conclusion of fact. Such conclusion is insufficient to
rebut the presumption of reasonableness of trial coun-
sel strategy. The Court denies [Sinachack’s] request for
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STATE V. SINACHACK
Cite as 31 Neb. App. 187an evidentiary hearing and the Amended Motion for
Postconviction Relief is dismissed.
(Citations omitted.)
Sinachack appeals from the district court’s denial of his
amended motion for postconviction relief here.
ASSIGNMENT OF ERROR
Sinachack, now represented by his fourth attorney, asserts
that the district court erred in overruling his motion for post-
conviction relief without an evidentiary hearing.
STANDARD OF REVIEW
[1] 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. State v. Britt,
310 Neb. 69, 963 N.W.2d 533 (2021).
[2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. State v. Stelly, 308
Neb. 636, 955 N.W.2d 729 (2021). When reviewing a question
of law, an appellate court reaches a conclusion independent of
the lower court’s ruling. Id.ANALYSIS
[3] Postconviction relief is available to a prisoner in custody
under sentence who seeks to be released on the ground that
there was a denial or infringement of his or her constitutional
rights such that the judgment was void or voidable. State v.
Britt, supra. Thus, in a motion for postconviction relief, the
defendant must allege facts which, if proved, constitute a denial
or violation of his or her rights under the U.S. or Nebraska
Constitution, causing the judgment against the defend­ant to be
void or voidable. Id.[4,5] 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
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STATE V. SINACHACK
Cite as 31 Neb. App. 187infringement of the defendant’s rights under the Nebraska
or federal Constitution. State v. Newman, 310 Neb. 463, 966
N.W.2d 860 (2021). In a postconviction proceeding, an evi-
dentiary hearing is not required 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. State v. Stelly, supra.[6,7] In this case, Sinachack assigns that the district court
erred by overruling his motion for postconviction relief with-
out an evidentiary hearing, arguing that he received ineffec-
tive assistance of trial and appellate counsel. To prevail on
a claim of ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), the defendant must show that his or her coun-
sel’s performance was deficient and that this deficient per-
formance actually prejudiced the defendant’s defense. State
v. Newman, supra. To show that counsel’s performance was
deficient under Strickland v. Washington, supra, the defend­
ant must show counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law. State
v. Newman, supra. To show prejudice under the prejudice
component of the Strickland v. Washington, supra, test, the
defendant must demonstrate a reasonable probability that but
for his or her counsel’s deficient performance, the result of
the proceeding would have been different. State v. Newman,
supra. A reasonable probability does not require that it be
more likely than not that the deficient performance altered the
outcome of the case; rather, the defendant must show a prob-
ability sufficient to undermine confidence in the outcome. Id.A court may examine the two prongs of the ineffective assist­
ance of counsel test, deficient performance and prejudice, in
any order and need not examine both prongs if a defendant
fails to demonstrate either. Id.- 194 -
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STATE V. SINACHACK
Cite as 31 Neb. App. 187In his brief on appeal, Sinachack raises multiple issues of
ineffective assistance of trial counsel, including that trial coun-
sel was ineffective for disclosing the report from his forensic
psychosexual evaluation to the State during plea negotiations,
for failing to disclose to him a plea offer made by the State, for
failing to investigate the allegations that he had sexual contact
with the 15-year-old victim at a certain storage unit, for fail-
ing to file a motion to suppress evidence gained from his and
the victim’s cellular telephones, and for failing to move for a
mistrial due to the State’s acts of prosecutorial misconduct.
Each of Sinachack’s assertions of ineffective assistance of trial
counsel are procedurally barred.
[8] A motion for postconviction relief asserting ineffective
assistance of trial counsel is procedurally barred when (1) the
defendant was represented by a different attorney on direct
appeal than at trial, (2) an ineffective assistance of trial coun-
sel claim was not brought on direct appeal, and (3) the alleged
deficiencies in trial counsel’s performance were known to the
defendant or apparent from the record. State v. Newman, 300
Neb. 770, 916 N.W.2d 393 (2018). Our record is clear that
Sinachack was represented by different counsel during his
direct appeal than at trial. In addition, our record indicates that
the alleged deficiencies in trial counsel’s performance were
known at the time of the direct appeal because Sinachack’s
appellate counsel attempted to raise such issues. However,
appellate counsel failed to properly preserve the issue of
ineffective assistance of trial counsel by providing a gener-
alized assignment of error in contravention of the Nebraska
Supreme Court’s clear directive in State v. Mrza, 302 Neb.
931, 926 N.W.2d 79 (2019). Accordingly, Sinachack is now
precluded from raising any issues of ineffective assistance of
trial counsel.
[9,10] However, claims of ineffective assistance of appel-
late counsel may be raised for the first time on postconvic-
tion review. State v. Newman, 300 Neb. 770, 916 N.W.2d 393(2018). When a claim of ineffective assistance of appellate
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STATE V. SINACHACK
Cite as 31 Neb. App. 187counsel is based on the failure to raise a claim on appeal of
ineffective assistance of trial counsel, an appellate court will
first look at whether trial counsel was ineffective under the test
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). If trial counsel was not ineffective then
the defendant was not prejudiced by appellate counsel’s failure
to raise the issue.
In his brief on appeal, Sinachack asserts that his appellate
counsel was ineffective in failing “to properly or specifically
assign as error and argue each claim of ineffectiveness of
Sinachack’s trial counsel.” Brief for appellant at 20. We read
Sinachack’s argument as incorporating each of the alleged
deficiencies by trial counsel into his argument about appel-
late counsel’s ineffective assistance. However, in Sinachack’s
amended motion for postconviction relief, he alleged only that
appellate counsel was ineffective in failing to raise on direct
appeal trial counsel’s decision to provide the report from his
forensic psychosexual evaluation to the State during plea nego-
tiations: “Sinachack’s formal claim of ineffective assistance of
counsel arises . . . from [trial counsel’s] actions and inactions
in the context of plea negotiations.”
[11] Sinachack did not incorporate into his amended motion
any other allegation of ineffective assistance of appellate coun-
sel. As such, his assertions that appellate counsel was inef-
fective in failing to raise on appeal trial counsel’s failure to
disclose to him a plea offer made by the State, investigate
the allegations that he had sexual contact with the 15-year-
old victim at a certain storage unit, file a motion to suppress
evidence gained from his and the victim’s cellular telephones,
and move for a mistrial due to the State’s acts of prosecutorial
misconduct are raised for the first time in this appeal. Absent
plain error, an appellate court ordinarily will not address an
issue that was not raised in the trial court. See, e.g., State v.
Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013). Accordingly,
the only issue of ineffective assistance of appellate counsel we
address in this appeal is the assertion that appellate counsel
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Cite as 31 Neb. App. 187was ineffective in failing to raise on direct appeal trial coun-
sel’s decision to provide the report from Sinachack’s forensic
psychosexual evaluation to the State during plea negotiations.
In his amended motion for postconviction relief, Sinachack
alleged that his trial counsel provided ineffective assistance
in allowing the State to review the report from his forensic
psychosexual evaluation during plea negotiations. Sinachack
contended that prior to the State reading the report, “the State
was willing to amend the Information to permit Sinachack to
plead to a lesser sex offense requiring registration but without
the 15-year mandatory minimum prison sentence.” Sinachack
further contended that after reviewing the report, the State was
no longer willing to offer him a plea agreement, and that such
decision was directly tied to the information contained in the
report. In support of his claim, Sinachack filed simultaneously
with his amended motion an index of evidence. Such index
included copies of email correspondence between the prosecu-
tor and trial counsel.
The district court considered the email correspondence in its
analysis of Sinachack’s postconviction claim. We also consider
such evidence in our analysis, as prior case law demonstrates
that attaching relevant documents to a postconviction motion
has been an accepted practice. See, e.g., State v. Starks, 294
Neb. 361, 365, 883 N.W.2d 310, 315 (2016) (postconviction
motion denied without evidentiary hearing; defendant claimed
that “‘years after the trial,’” he came into possession of report
wherein police crime laboratory technician’s statement showed
one of State’s witnesses lied; Supreme Court noted that “[t]he
relevant portion of the report was attached to [the defendant’s]
postconviction motion”; and Supreme Court considered report
when concluding district court properly rejected defendant’s
postconviction claim); State v. McHenry, 268 Neb. 219, 226,
682 N.W.2d 212, 220 (2004) (postconviction motion denied
without evidentiary hearing; defendant “attached a copy of
[a private] pathologist’s letter . . . as an exhibit to his post-
conviction motion” and alleged that prior to his trial, his trial
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Cite as 31 Neb. App. 187counsel had received that letter which cast doubt on State’s
expert testimony; and defendant attached letter considered
by Supreme Court in rejecting defendant’s claim that trial
counsel was ineffective for failing to investigate defense of
alcohol poisoning).
We pause in our analysis to note that Sinachack did not
include a copy of the psychosexual report in his index of
evidence filed simultaneously with his amended motion for
postconviction relief. He did, however, file a copy of the report
with the district court at the time he filed his original motion
for postconviction relief. While the district court’s order is
not completely clear, it appears that the district court prob-
ably did not consider the substance of the report in denying
Sinachack’s amended motion without an evidentiary hear-
ing. Assuming without deciding that the content of the report
could be considered in our analysis, we simply note that we
have read the report, but do not reiterate the details included
therein, other than to mention that the content addressed issues
which in some cases strengthened and in some cases weak-
ened Sinachack’s plea-bargaining position. The content of
the report, thus, does not support Sinachack’s contention that
trial counsel’s decision to turn over the report to the State was
entirely prejudicial. Certain aspects of the report supported
trial counsel’s position that Sinachack should be considered
for probation.
Moreover, the email correspondence provided in the evi-
dence index and exchanged between the prosecutor and trial
counsel prior to the prosecutor’s reading the report from
Sinachack’s psychosexual evaluation provides no indication
that the prosecutor offered or considered any sort of plea
agreement as it related to Sinachack’s charges. In fact, none of
the emails refer to any sort of plea negotiations; rather, they
discuss trial preparation. The only email that could be read
to mention plea negotiations was one sent by the prosecutor,
asking trial counsel for a meeting, because there might be a
“resolution” to discuss.
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Cite as 31 Neb. App. 187The email correspondence exchanged between the prosecu-
tor and trial counsel after the prosecutor read the psychosexual
evaluation report indicates that the prosecutor did not believe
that a sentence of probation was appropriate for Sinachack:
“And, I have had an opportunity to talk with the victim as
well as review the file again based upon the information
presented through the evaluation. Long story short, I don’t
see a probation recommendation heading your client’s way.”
However, this does not appear to be a marked departure from
the prosecutor’s previous position. The prosecutor indicated
at one point in the emails that he had previously offered to
drop the charge of enticement by an electronic communication
device in exchange for Sinachack’s plea to first degree sexual
assault of a child. Such a plea agreement would still include a
mandatory minimum prison sentence. Trial counsel appeared
intent on obtaining a plea agreement wherein Sinachack would
not face a mandatory minimum sentence and would therefore
be eligible for probation. The prosecutor explained, “I am not
inclined to amend the charge as I have concerns on him being
placed on a term of probation.” Although trial counsel sug-
gested that the prosecution amend the most serious charge to
first degree sexual assault, a Class II felony, at one point, the
prosecutor said: “I guess the question is, what is your client
willing to serve? For example, I don’t think he would enter a
plea to a class 2 if the stipulated sentencing recommendation
was 7-15 years (btw I am NOT offering that, just throwing
out an example) . . . am I correct?” Trial counsel’s response
is to again reference the psychosexual evaluation report and
highlight reasons why Sinachack would be a good candidate
for probation.
In its review of Sinachack’s postconviction claim, the dis-
trict court found that the email correspondence did not support
his claim of ineffective assistance of trial counsel, and thus, his
claim of ineffective assistance of appellate counsel. The court
stated: “A fair reading of the prosecutor’s email at best, shows
that the evaluation is but one of a number of considerations
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Cite as 31 Neb. App. 187in the prosecutor’s disinclination to amend the charge.” The
court went on to find that allowing the prosecutor to review
the report from Sinachack’s psychosexual evaluation was a
reasonable trial strategy and that Sinachack’s postconviction
assertion to the contrary was hypothetical and speculative.
[12] Upon our review, we affirm the decision of the district
court to deny Sinachack’s postconviction claim without an
evidentiary hearing. Before addressing the present case, we
review pertinent case law. The plea-bargaining process presents
a critical stage of a criminal prosecution to which the right
to counsel applies. As in any other ineffective assistance of
counsel claim, we begin by reviewing Sinachack’s allegations
under the two-part framework of Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See
State v. Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014). Trial
counsel’s failure to communicate a plea offer to a defendant is
deficient performance as a matter of law. Missouri v. Frye, 566
U.S. 134, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012). See, also,
State v. Alfredson, supra. In Alfredson, the Nebraska Supreme
Court addressed the question of whether a purported offer of a
plea agreement constituted a formal offer. The Supreme Court
held that defense counsel has a duty to inform the defendant of
any formal offer of a plea agreement, but agreed with the trial
court that under the facts of that case, no formal offer had been
made. Therefore, since there was no offer, trial counsel could
not be found to be deficient in failing to communicate the pur-
ported offer to the defendant.
Here, Sinachack does not contend that there was any offer
of a plea agreement. Rather, he argues that but for the provi-
sion of the psychosexual evaluation report, the prosecutor
would have made an offer that he would have found accept-
able. Sinachack’s claim that trial counsel’s decision to allow
the State to read the evaluation prejudiced him during the
plea negotiations is a mere conclusion of fact. Neither the
email correspondence between trial counsel and the prosecu-
tor nor Sinachack’s claims in his amended motion directly tie
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Cite as 31 Neb. App. 187trial counsel’s decision to any change in the State’s posi-
tion on a plea agreement. Instead, the information provided
by Sinachack indicates that the State was always hesitant to
amend the charge of first degree sexual assault of a child and
never considered any sentence other than one requiring a long
period of incarceration. Sinachack’s claims to the contrary are
wholly grounded in speculation.
As such, Sinachack’s claim that appellate counsel provided
ineffective assistance in failing to raise this issue on appeal
must fail. Because Sinachack has failed to allege sufficient
facts to support his assertion that trial counsel provided inef-
fective assistance during plea negotiations, he cannot demon-
strate that appellate counsel provided ineffective assistance in
failing to raise this issue in the direct appeal.
In his brief on appeal, Sinachack also asserts that the cumu-
lative effect of the deficiencies of both his trial counsel and
appellate counsel deprived him of his right to due process of
law. We find no support for Sinachack’s assertion. We have
found a majority of Sinachack’s assertions of ineffective assist­
ance of counsel to be procedurally barred, either because he
did not raise them in his direct appeal or because he raised
them for the first time in this appeal. We have concluded that
the one postconviction claim that was not procedurally barred
is without merit because it amounted to a mere conclusion
of fact without any support. As such, Sinachack’s cumulative
error argument is without merit.
CONCLUSION
For the reasons set forth herein, we affirm the decision of
the district court to deny Sinachack’s amended motion for post-
conviction relief without an evidentiary hearing.
Affirmed.