State v. Gills ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. GILLS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
DAVID A. GILLS, APPELLANT.
Filed December 8, 2020. No. A-20-162.
Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed
in part, and in part vacated and remanded for further proceedings.
Beau Finley, of Law Offices of Beau Finley, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
BISHOP, ARTERBURN, and WELCH, Judges.
ARTERBURN, Judge.
INTRODUCTION
David A. Gills appeals from an order of the district court for Douglas County denying his
motion for postconviction relief following an evidentiary hearing. For the reasons set forth below,
we affirm in part, and in part vacate and remand for further proceedings.
BACKGROUND
On January 30, 2018, Gills was charged by information with eleven separate counts,
including: six counts of manufacturing, distributing, or possession with intent to distribute a
controlled substance (cocaine), each a Class IC felony; one count of criminal conspiracy, a Class
IB felony; three counts of possession of a deadly weapon by a prohibited person, each a Class ID
felony; and one count of failure to affix a tax stamp, a Class IV felony. Pursuant to a plea agreement
with the State, Gills pled no contest to criminal conspiracy. The remaining charges alleged in the
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information were dismissed by the State. After Gills waived his right to a presentence
investigation, the district court sentenced him immediately following the entry of his plea to a
period of imprisonment of 20 years to 20 years and 1 day. No direct appeal was filed from Gills’
conviction and sentence.
On December 21, 2018, Gills filed a pro se motion requesting postconviction relief. In the
motion, Gills alleged that he had received ineffective assistance of trial counsel in various respects.
Specifically, he alleged that trial counsel provided ineffective assistance when he failed to file a
direct appeal from Gills’ conviction and sentence, despite Gills requesting counsel to do so. He
also alleged that his previous trial counsel had provided ineffective assistance by improperly
advising him to waive his right to a preliminary hearing; by failing to challenge the search warrant,
the credibility of the confidential informant used by law enforcement, or the propriety of the
recordings obtained by law enforcement during their surveillance operation; and by not engaging
in regular communication with him during the pendency of the criminal proceedings.
On March 5, 2019, the district court entered an order granting Gills “an evidentiary hearing
on the sole issue of whether counsel was ineffective in failing to provide assistance in perfecting
a direct appeal in this matter.” The court appointed Gills with counsel to represent him during the
evidentiary hearing. At the evidentiary hearing, Gills offered into evidence his own deposition and
the deposition of his trial counsel who represented him during the plea and sentencing hearing.
In Gills’ deposition, he testified that he had three different attorneys representing him
during the course of the criminal proceedings. His third counsel took over his representation only
a couple of weeks prior to the August 30, 2018, plea hearing. Gills explained that as a result of that
attorney’s discussions with him, he believed that when he pled no contest to the criminal
conspiracy charge, that he would be sentenced to 5 to 7 years’ imprisonment. He denied that the
district court had advised him of the possible penalties during the plea colloquy. In fact, he
specifically denied knowing that by pleading no contest to a Class IB felony, that he was subject
to a minimum sentence of 20 years’ imprisonment.
Gills explained that because he expected to be sentenced to 5 to 7 years’ imprisonment, he
was very surprised when the district court instead sentenced him to a period of imprisonment of
20 years to 20 years and 1 day. Gills testified that during a conversation which took place
immediately after the August 30, 2018 hearing, he asked his trial counsel to file an appeal.
According to Gills, his trial counsel indicated that he did not know how to file an appeal because
he had never before done so. Nevertheless, Gills testified that he walked away from that
conversation with his trial counsel believing that an appeal would be filed. Gills did not have any
contact with counsel during the next 30 days, but he believed that his wife had spoken with counsel.
Gills did not speak with trial counsel again until a telephone call in November 2018. Gills testified
that during this telephone call, trial counsel informed him that he had not filed an appeal on his
behalf because counsel did not know how to do so. Gills explained that after this telephone call,
he began drafting his motion for postconviction relief.
In his deposition, Gills’ trial counsel testified that he began representing Gills in August
2018, after Gills’ family retained him. Trial counsel agreed with the testimony of Gills that he was
the third attorney who represented Gills during the criminal proceedings. However, trial counsel
did not agree with the rest of Gills’ testimony.
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Counsel testified that there was “no doubt” that Gills understood that part of the plea
agreement with the State was a joint recommendation for a sentence of 20 to 20 years’
imprisonment. In fact, Gills asked counsel if he would propose a lesser sentence to the State, but
counsel indicated that the State would not agree to any lesser sentence. Counsel denied that Gills
appeared in any way surprised by the sentence imposed by the district court.
Counsel also denied that Gills asked him to appeal during a conversation immediately after
the August 30, 2018, hearing. Counsel denied telling Gills that he did not know how to file an
appeal. Counsel explained that he had been a licensed attorney since 2011 and, by August 2018,
had filed approximately 50 criminal appeals.
However, counsel indicated that he orally advised Gills of his right to appeal directly after
the August 30, 2018, hearing. Counsel indicated that he spoke with Gills about the time limitations
for an appeal and indicated to Gills that he did not believe there were any issues which would be
successful on appeal particularly because Gills’ sentence was a part of the plea agreement. Counsel
advised Gills that if he wished to appeal, he should contact counsel soon. Counsel followed up this
conversation with a letter to Gills dated September 12, 2018. In the letter, counsel explained to
Gills:
You do have the right to an appeal in this case, as does everyone after sentencing, however,
since your sentence was within the plea agreement and maximum sentence, I do not believe
you have any issues to appeal. If you feel you do have an issue with the sentence, please
contact me immediately so your rights to appeal are not waived.
Counsel denied having any further communication with Gills. He did not recall speaking with Gills
during a telephone call in November 2018. In fact, counsel testified that the first he had heard
about Gills wanting a direct appeal was as a result of the postconviction proceedings.
On February 6, 2020, the district court entered an order denying Gills’ motion for
postconviction relief. The court found that trial counsel’s testimony was more credible than Gills’
testimony, stating:
The evidence supports a finding that trial counsel adequately consulted with [Gills] about
an appeal in light of a plea and [Gills] did not expressly instruct trial counsel to file one
within the statutorily required timeframe. Additionally, the Court finds that the plea
agreement, including an agreed upon sentence[,] would make a request for appeal unlikely.
Thus, counsel acted in a professionally reasonable manner and [Gills] is not entitled to
postconviction relief in the form of a direct appeal.
The court went on to find that the remaining issues raised in Gills’ motion for postconviction relief
failed to state sufficient facts demonstrating counsel’s deficient performance or any prejudice
suffered. As such, the court denied the remaining claims.
Gills appeals from the order denying his motion for postconviction relief.
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ASSIGNMENTS OF ERROR
Gills’ sole assignment of error is that the district court erred in denying his motion for
postconviction relief based upon his claim that he received ineffective assistance of trial counsel
when counsel failed to file a direct appeal after being requested to do so.
STANDARD OF REVIEW
In an evidentiary hearing provided by Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016) for
postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and
questions of fact, including witness credibility and weight to be given a witness’ testimony. State
v. Kolbjornsen, 24 Neb. App. 851, 900 N.W.2d 206 (2017). In an appeal involving such a
proceeding for postconviction relief, the trial court’s findings will be upheld unless such findings
are clearly erroneous. Id.In appeals from postconviction proceedings, we independently resolve questions of law.
State v. Determan, 292 Neb. 557, 873 N.W.2d 390 (2016). Determinations regarding whether
counsel was deficient and whether the defendant was prejudiced are questions of law that we
review independently of the lower court’s decision. Id.ANALYSIS
The district court determined that Gills was entitled to an evidentiary hearing on his
postconviction claim that counsel was ineffective for failing to file a direct appeal. The court
ultimately found that trial counsel was not deficient in failing to file a direct appeal because such
an appeal was not requested by Gills and, as we explain more fully below, we conclude that the
district court’s finding in this regard was not clearly erroneous. However, the district court in the
same order also addressed and disposed of Gills’ remaining postconviction claims on the ground
that the motion alleged insufficient facts. The Nebraska Supreme Court has previously held that
there must be a final mandate on the court’s disposition of a postconviction claim of ineffective
assistance for failing to file a direct appeal before the trial court addresses other postconviction
ineffective assistance of counsel claims. State v. Dalton, 307 Neb. 465, 949 N.W.2d 752 (2020);
State v. Determan, supra. In Dalton, the Supreme Court explained:
When a postconviction motion alleges a claim of ineffective assistance based on counsel’s
failure to file a direct appeal, which has as its relief a new direct appeal, alongside other
claims of ineffective assistance of counsel that request as relief a new trial, the district court
must first address the claim that counsel was ineffective for failing to file a direct appeal,
including holding an evidentiary hearing, if required. Upon reaching its decision, the
district court should enter a final order on that claim only. If the claim for a new direct
appeal is denied, a defendant should be permitted to appeal that denial. Only after the
resolution of that appeal, or, alternatively, the expiration of the defendant’s time to appeal,
should the district court proceed to consider the remaining claims.
As we explained in Determan, addressing and waiting for a final mandate on any
claims of ineffective assistance of counsel for failing to file a direct appeal before
addressing other postconviction claims of ineffective assistance of counsel serve the
interests of judicial economy by preventing the district court’s determination of the
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nondirect appeal claims from being rendered meaningless. For, if a new direct appeal were
ultimately granted on the postconviction claims related to counsel’s failure to timely file a
direct appeal, then any other claims of ineffective assistance of counsel could be raised in
the new direct appeal rather than through a postconviction procedure.
307 Neb. at 473-74, 949 N.W.2d at 759-60. In both State v. Dalton, supra, and State v. Determan,
supra, the Supreme Court held that when a district court fails to follow this directive and disposes
of other postconviction claims before there has been a final mandate on a disposition of the
postconviction claim requesting a new direct appeal, the proper disposition in an appeal from the
district court’s order is to vacate the district court’s disposition of the additional claims and remand
for further proceedings. As such, we must vacate that part of the district court’s order which denied
Gills’ remaining postconviction claims and remand the cause for further proceedings.
We now address the district court’s decision that trial counsel did not provide deficient
performance in failing to file a direct appeal. After a trial, conviction, and sentencing, if counsel
deficiently fails to file or perfect an appeal after being so directed by the criminal defendant,
prejudice will be presumed and counsel will be deemed ineffective, thus entitling the defendant to
postconviction relief. State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (2006); State v. Caddy, 262
Neb. 38, 628 N.W.2d 251 (2001). In Gills’ deposition which was offered at the evidentiary hearing,
he testified that he asked his trial counsel to file an appeal immediately after the August 30, 2018,
plea and sentencing hearing. His trial counsel, however, testified that Gills never requested that he
file an appeal. Counsel indicated that after the hearing, he orally advised Gills of his right to appeal,
but also advised him that he did not believe there were any issues which would be successful on
appeal particularly because Gills’ sentence was a part of the plea agreement and was within the
statutory limits. Counsel followed up this discussion on September 12 with a letter which again
advised Gills of his right to appeal. The district court found that the testimony of trial counsel was
credible and that the evidence presented at the evidentiary hearing did not support Gills’ claim of
ineffective assistance of counsel. We find no clear error in this finding and affirm that there was
no ineffective assistance of counsel in this regard.
CONCLUSION
Because there was credible evidence to demonstrate that trial counsel advised Gills of his
right to appeal and that Gills did not then make a request to appeal, we affirm the judgment of the
district court which found that trial counsel did not provide ineffective assistance when he did not
file a direct appeal. However, the portion of the district court’s order denying Gills’ claims of
ineffective assistance of counsel related to counsel’s failure to properly advise him to waive his
right to a preliminary hearing; to challenge the search warrant, the credibility of the confidential
informant used by law enforcement, or the propriety of the recordings obtained by law enforcement
during their surveillance operation; and to engage in regular communication with him during the
pendency of the criminal proceedings is vacated and the cause is remanded for further proceedings.
AFFIRMED IN PART, AND IN PART VACATED AND
REMANDED FOR FURTHER PROCEEDINGS.
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