State v. Oliveira-Coutinho , 304 Neb. 147 ( 2019 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/22/2019 01:06 AM CST
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    STATE v. OLIVEIRA-COUTINHO
    Cite as 
    304 Neb. 147
    State of Nebraska, appellee, v. Jose C.
    Oliveira-Coutinho, appellant.
    ___ N.W.2d ___
    Filed October 4, 2019.    No. S-17-1262.
    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: Right to Counsel: Appeal and Error. An appellate
    court reviews the failure of the district court to provide court-appointed
    counsel in a postconviction proceeding for an abuse of discretion.
    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. In a motion for postcon-
    viction relief, the defendant must allege facts which, if proved, consti-
    tute 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.
    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 infringement of the defend­
    ant’s rights under the Nebraska or federal Constitution.
    6. Postconviction: Proof. 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.
    7. Constitutional Law: Effectiveness of Counsel. A proper ineffective
    assistance of counsel claim alleges a violation of the fundamental con-
    stitutional right to a fair trial.
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    8. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and
    Error. 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 counsel’s perform­
    ance was deficient and that this deficient performance actually preju-
    diced the defendant’s defense. To show prejudice under the prejudice
    component of the Strickland test, the defendant must demonstrate a rea-
    sonable probability that but for his or her counsel’s deficient perform­
    ance, the result of the proceeding would have been different. A reason-
    able 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 probability sufficient to undermine confidence in
    the outcome.
    9. Effectiveness of Counsel: Presumptions: Proof. 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), may be addressed
    in either order, and the entire ineffectiveness analysis should be viewed
    with a strong presumption that counsel’s actions were reasonable.
    10. Effectiveness of Counsel. Counsel’s failure to raise novel legal the-
    ories or arguments or to make novel constitutional challenges in
    order to bring a change in existing law does not constitute deficient
    performance.
    11. Aiding and Abetting: Indictments and Informations: Notice. An
    information charging a defendant with a specific crime gives the defend­
    ant adequate notice that he or she may be prosecuted for the crime
    specified or as having aided and abetted the commission of the crime
    specified.
    12. Constitutional Law: Criminal Law: Right to Counsel. A criminal
    defendant’s Sixth Amendment right to the assistance of counsel attaches
    only after the initiation of adversary judicial criminal proceedings—
    whether by way of formal charge, preliminary hearing, indictment,
    information, or arraignment.
    13. Lesser-Included Offenses: Jury Instructions: Evidence. A court must
    instruct on a lesser-included offense if (1) the elements of the lesser
    offense for which an instruction is requested are such that one cannot
    commit the greater offense without simultaneously committing the lesser
    offense and (2) the evidence produces a rational basis for acquitting the
    defendant of the greater offense and convicting the defendant of the
    lesser offense.
    14. Postconviction: Right to Counsel. Under the Nebraska Postconviction
    Act, it is within the discretion of the trial court to decide whether coun-
    sel shall be appointed to represent the defendant.
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    STATE v. OLIVEIRA-COUTINHO
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    15. Postconviction: Justiciable Issues: Right to Counsel: Appeal and
    Error. Where the alleged errors in the postconviction petition before
    the district court are either procedurally barred or without merit, thus
    establishing that the postconviction proceeding contained no justiciable
    issue of law or fact, it is not an abuse of discretion to fail to appoint
    postconviction counsel for an indigent defendant.
    Appeal from the District Court for Douglas County: Thomas
    A. Otepka, Judge. Affirmed.
    Jose C. Oliveira-Coutinho, pro se.
    Douglas J. Peterson, Attorney General, and Stacy M. Foust
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Jose C. Oliveira-Coutinho appeals the order of the district
    court for Douglas County which denied his motion for post-
    conviction relief. Oliveira-Coutinho, who is serving sentences
    of life imprisonment for three first degree murder convictions
    and 20 years’ imprisonment for a theft by deception conviction,
    set forth numerous claims for postconviction relief. The district
    court determined that all of Oliveira-Coutinho’s claims were
    either insufficiently pled, affirmatively refuted by the record,
    or procedurally barred, and the court therefore denied his
    motion for postconviction relief without an evidentiary hearing
    and without appointing counsel. We affirm the order denying
    postconviction relief.
    STATEMENT OF FACTS
    Oliveira-Coutinho was convicted of three counts of first
    degree murder in connection with the 2009 deaths of Vanderlei
    and Jaqueline Szczepanik and their son, Christopher Szczepanik.
    Oliveira-Coutinho lived with the Szczepaniks and worked for
    Vanderlei. He was also convicted of theft by deception based
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    on evidence that after their deaths, he withdrew money from
    the Szczepaniks’ bank account. Oliveira-Coutinho’s convic-
    tions and sentences were affirmed on direct appeal. Further
    details regarding the crimes are provided in our opinion on
    direct appeal. State v. Oliveira-Coutinho, 
    291 Neb. 294
    , 
    865 N.W.2d 740
    (2015).
    On June 27, 2016, Oliveira-Coutinho filed a pro se motion
    for postconviction relief in which he set forth numerous claims
    of ineffective assistance of counsel both at trial and on direct
    appeal. Oliveira-Coutinho had the same counsel at trial and on
    direct appeal, and he alleged that this postconviction action
    was his first opportunity to raise issues of ineffective assistance
    of trial counsel. Oliveira-Coutinho requested an evidentiary
    hearing and appointment of postconviction counsel. Oliveira-
    Coutinho filed an amended motion for postconviction relief on
    June 26, 2017, in which he repeated his original claims and
    set forth several new claims. In the amended motion, Oliveira-
    Coutinho included almost 50 separate claims.
    On November 14, 2017, the district court overruled Oliveira-
    Coutinho’s amended motion for postconviction relief without
    an evidentiary hearing. Generally, the court determined that
    each of Oliveira-Coutinho’s claims was either not pled with
    specificity, refuted by the record, or procedurally barred. In
    its order overruling the motion, the court stated that Oliveira-
    Coutinho’s numerous claims fell into two categories—claims
    of ineffective assistance of counsel and claims of prosecuto-
    rial misconduct prior to the appointment of trial counsel.
    Regarding all the claims of ineffective assistance of counsel,
    the court determined generally that even if counsel’s perform­
    ance was deficient in any of the ways alleged, the record
    refuted any claim that Oliveira-Coutinho suffered prejudice
    as a result of such deficient performance. The court stated, “if
    counsel were deficient in any of the claims alleged, the deci-
    sion in this case would not have been any different in light
    of the evidence adduced at trial, which is thoroughly outlined
    in the direct appeal opinion.” The court further stated that in
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    reviewing Oliveira-Coutinho’s motion, it “was unable to find
    any specific facts relating to prejudice and instead could only
    locate generic statements.”
    Although it determined that the failure to specifically allege
    prejudice was in itself reason to overrule the motion, the court
    addressed Oliveira-Coutinho’s specific claims of ineffective
    assistance of counsel. The court stated the claims were “at
    times confusing and somewhat overlapping,” and it there-
    fore addressed the claims in the following 11 categories: (i)
    failure to challenge the competency of codefendant Valdeir
    Goncalves-Santos to be a witness against Oliveira-Coutinho,
    (ii) failure to object to a jury instruction regarding a potential
    mistrial if jurors violated rules set forth by the court, (iii) fail-
    ure to challenge the court’s suppression ruling on appeal, (iv)
    failure to challenge the court’s refusal to sequester the jury,
    (v) failure to challenge the aiding and abetting instruction, (vi)
    failure to challenge the instruction on first degree murder, (vii)
    failure to file a motion to discharge on speedy trial grounds,
    (viii) failure to object to the testimony of Oliveira-Coutinho’s
    wife on grounds of hearsay and marital privilege, (ix) failure
    to object to portions of the State’s opening statements, (x)
    failure to object to the testimony of various witnesses based
    on hearsay and other bases, and (xi) failure to investigate cer-
    tain witnesses and evidence. The court addressed these claims
    as follows.
    (i) Failure to challenge competency of codefendant. As
    discussed further in our opinion on direct appeal, State v.
    Oliveira-Coutinho, 
    291 Neb. 294
    , 
    865 N.W.2d 740
    (2015),
    Goncalves-Santos testified at Oliveira-Coutinho’s trial, and
    he generally testified that he and another individual helped
    Oliveira-Coutinho kill the Szczepaniks. In his amended motion
    for postconviction relief, Oliveira-Coutinho claimed that coun-
    sel was ineffective for failing to challenge Goncalves-Santos’
    competency to testify and for failing to raise the issue on
    appeal. The district court determined that these claims were
    refuted by the record, which showed that counsel filed a
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    motion challenging Goncalves-Santos’ competency, the trial
    court overruled the motion after a hearing, and counsel asked
    for a reconsideration, which the trial court denied. The court
    also stated that this court had affirmed the trial court’s rulings
    on these matters on direct appeal.
    (ii) Failure to object to jury instruction regarding poten-
    tial mistrial. Oliveira-Coutinho claimed that counsel was inef-
    fective for failing to object to “Preliminary Jury Instruction
    No. 1,” which he alleged stated in part:
    “Any juror who violates these restrictions I have explained
    to you jeopardizes the fairness of these proceedings, and
    a mistrial could result that would require the entire trial
    process to start over. As you can imagine, a mistrial is a
    tremendous expense and inconvenience to the parties, to
    the Court and the taxpayers.”
    (Emphasis omitted.) He argued that counsel should have
    objected to this instruction because it was confusing and preju-
    dicial to his case and would discourage jurors from report-
    ing misconduct. The district court determined that the record
    refuted this argument because the first jury instruction “filed
    October 9, 2012,” did not contain the language alleged. The
    court also noted that Oliveira-Coutinho failed to cite any
    authority establishing that an objection to such an instruction
    would have been successful.
    (iii) Failure to challenge suppression ruling on appeal.
    Oliveira-Coutinho claimed that counsel on direct appeal failed
    “to raise and argue a violation of [his] Fifth Amendment right.”
    In this claim, he refers to a motion to “suppress [his] February
    1st, 2010[,] Stop, Search and Detention under both the 4th
    Amendment and the 5th Amendment.” Oliveira-Coutinho stated
    that counsel on appeal failed to assign and argue any Fifth
    Amendment violation, but he asserts that his “illiteracy pre-
    vents him from adequately present[ing] the Fifth Amendment
    claim and argu[ing] how this Claim would have changed the
    direct appeal result.” The district court noted that counsel did
    challenge the suppression ruling on direct appeal but that the
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    challenge was not successful. The court determined that its
    review of the trial court’s suppression ruling, “in combination
    with the lack of law supplied by [Oliveira-Coutinho],” revealed
    no additional challenges to the suppression ruling that would
    have changed the result of the direct appeal.
    (iv) Failure to challenge refusal to sequester jury.
    Oliveira-Coutinho claimed that counsel on direct appeal failed
    to provide an adequate record for this court to review a claim
    that the trial court erred when it overruled a motion to seques-
    ter the jury for the entirety of the trial. He also claimed counsel
    failed to raise an issue on appeal regarding whether the trial
    court should have sequestered the jury at the start of delibera-
    tions. The district court determined that the record refuted these
    claims because (1) counsel raised and argued the denial of the
    motion to sequester for the entire trial, but the assignment
    of error was rejected on appeal, and (2) the record showed
    that “the jury was going to be sequestered at the request of
    [Oliveira-Coutinho] during deliberations.”
    (v) Failure to challenge aiding and abetting instruction.
    Oliveira-Coutinho claimed that trial counsel was deficient for
    failing to object to the felony murder instruction because the
    instruction allowed the jury to find him guilty if it found that
    the killing occurred during the course of a robbery that he
    committed either alone or while aiding and abetting another.
    He argues that the instruction was in error because he was not
    charged under a theory of aiding and abetting and because the
    instruction failed to include an intent element in connection
    with robbery. In separate but related claims, Oliveira-Coutinho
    asserted that counsel was deficient for failing to inform him
    prior to trial that he could be prosecuted under an aiding and
    abetting theory and for failing to challenge the constitutional-
    ity of Neb. Rev. Stat. § 28-206 (Reissue 2016), which provides
    that “[a] person who aids, abets, procures, or causes another
    to commit any offense may be prosecuted and punished as if
    he were the principal offender.” He argued that the statute was
    unconstitutional because it allowed the State to prosecute a
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    defendant under an aiding and abetting theory without giving
    notice to the defendant that it intends to do so. He argued that
    the statute “makes the fatal assumption” that those who are
    subject to it understand they can be prosecuted under an alter-
    native theory, and he asserts that because he does not speak
    English, he was not aware of the possibility of being convicted
    as an aider or abettor.
    The district court stated that “the principle of aiding
    and abetting has been a staple in Nebraska law” and that
    “[Oliveira-Coutinho] fails to provide any authority creating
    a realistic constitutional challenged [sic] to the statute.” The
    court cited case law to the effect that an information charging
    a defendant with a specific crime gives the defendant adequate
    notice that he or she may be prosecuted for having aided or
    abetted the crime. The court determined that a challenge to
    the constitutionality of the statute would have been unsuccess-
    ful and that an objection to the instruction also would have
    been unsuccessful because the instruction was supported by
    the evidence.
    (vi) Failure to challenge instruction on first degree mur-
    der. Oliveira-Coutinho claimed that counsel was deficient for
    failing to object to the first degree murder instruction, which
    he asserted was “faulty, unconstitutional and incomplete.” His
    claim focused on the provision in the instruction that the jury
    had to unanimously agree he was guilty of first degree murder
    but that it did not have to be unanimous as to whether he was
    guilty under a felony murder theory or under a premeditated
    murder theory. He argued that the instruction was confusing
    and misleading and that the evidence in this case did not sup-
    port a premeditated murder theory. Oliveira-Coutinho made
    four additional claims related to this claim: He claimed that
    counsel was deficient for (1) failing on direct appeal to chal-
    lenge “structural error” in the court’s acceptance of a jury
    verdict that was erroneous because it did not require unanimity
    as to the theory of first degree murder, (2) failing to challenge
    on appeal the sufficiency of the evidence as to each theory,
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    (3) failing to propose a jury verdict form that would have
    required unanimity as to the theory of first degree murder, and
    (4) failing to challenge the constitutionality of a jury verdict
    form that did not require unanimity.
    The district court cited case law which, it asserted, had
    rejected Oliveira-Coutinho’s arguments regarding unanimity
    as to alternate theories of first degree murder. The court
    concluded that counsel was not ineffective, because the chal-
    lenges proposed by Oliveira-Coutinho would not have been
    successful.
    (vii) Failure to file motion to discharge on speedy trial
    grounds. Oliveira-Coutinho claimed counsel was deficient for
    failing to move for discharge based on statutory and constitu-
    tional speedy trial grounds and for failing to raise both issues
    on appeal. He alleged that he was charged by information on
    September 1, 2011; that trial did not begin until September
    21, 2012; and that nothing extended the time for trial beyond
    6 months.
    The district court determined that the record showed that
    discharge would not have been granted even if counsel had
    filed the motion. The court agreed that Oliveira-Coutinho was
    charged on September 1, 2011, but it stated that trial began on
    September 17, 2012. The court further stated that three motions
    filed by Oliveira-Coutinho—a plea in abatement filed October
    28, 2011, and ruled on January 5, 2012; a motion to sequester
    and change venue filed December 22, 2011, and ruled on July
    9, 2012; and a motion to suppress filed March 21, 2012, and
    ruled on August 30, 2012—tolled the speedy trial clock to the
    extent that he was timely brought to trial. The court determined
    that counsel was not deficient, because a motion to discharge
    would have been unsuccessful.
    (viii) Failure to object to testimony of Oliveira-Coutinho’s
    wife. Oliveira-Coutinho claimed that counsel was ineffective
    for failing to object to testimony of his wife based on both
    hearsay and marital privilege. He argued that her testimony
    included hearsay because she testified regarding things he had
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    told her. He also argued that she should have been informed
    that she had the right to refuse to testify based on mari-
    tal privilege.
    The postconviction court determined that counsel was not
    deficient, because both objections would have been unsuccess-
    ful. The court first noted that Nebraska’s rules of evidence pro-
    vide a hearsay exception for statements made by the defend­
    ant. With regard to the marital privilege, the court noted that
    Neb. Rev. Stat. § 27-505(3)(a) (Reissue 2016) provides that
    the marital privilege may not be claimed in a criminal case
    where the crime charged is “a crime of violence.”
    (ix) Failure to object to State’s opening statements.
    Oliveira-Coutinho claimed that counsel was deficient for fail-
    ing to object to “[s]everal instances” within the State’s opening
    statement in which the prosecutor was allegedly “vouching
    for the credibility” of Goncalves-Santos’ testimony. Oliveira-
    Coutinho quoted portions of the opening statement in which
    the prosecutor said that Goncalves-Santos would “tell . . . the
    truth” and that he had taken certain actions because “he wanted
    to tell the truth.”
    The district court noted that counsel had raised the issue
    on direct appeal to this court and that the assignment of error
    was rejected. To the extent any of the specific statements cited
    by Oliveira-Coutinho were not included in the assignment of
    error on direct appeal, the court determined that this court’s
    reasoning in rejecting the error showed that inclusion of the
    specific statements would not have changed the result. The
    court quoted a portion of this court’s opinion in which we
    noted that by failing to object at trial, “Oliveira-Coutinho [had]
    likely waived any argument that the State erred in directly
    vouching for Goncalves-Santos”; however, we concluded that
    he had “preserved his argument that the State suggested the
    district court was also vouching for Goncalves-Santos.” State
    v. Oliveira-Coutinho, 
    291 Neb. 294
    , 345, 
    865 N.W.2d 740
    , 777
    (2015). We rejected the assignment of error because whether
    or not the State’s comments amounted to misconduct, “such
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    misconduct was not prejudicial to Oliveira-Coutinho’s right
    to a fair trial.” 
    Id. We concluded
    that “[t]he comments of the
    prosecutor during his opening statements were isolated in the
    overall context of the trial, [that] the jury was instructed spe-
    cifically on Goncalves-Santos’ testimony as well as on issues
    relating to arguments of counsel versus evidence presented,”
    and that “the strength of the evidence overall was such that
    any alleged misconduct in opening statements was not prejudi-
    cial to Oliveira-Coutinho’s right to a fair trial.” 
    Id. at 346,
    865
    N.W.2d at 778.
    (x) Failure to make objections. The postconviction court’s
    analysis included a section titled “Failure to make objections”
    in which it stated that Oliveira-Coutinho had made “a variety
    of arguments relating to trial counsel’s failure to object to the
    testimony of different State witnesses based on hearsay and
    other arguments.” By citing to pages of Oliveira-Coutinho’s
    amended motion for postconviction relief, the court appears
    to include in this section several claims in which Oliveira-
    Coutinho claimed that counsel was deficient for (1) failing to
    object based on hearsay to testimony by three witnesses; (2)
    failing to challenge on direct appeal “prosecutorial miscon-
    duct by commenting on [Oliveira-Coutinho’s] right to remain
    silent”; (3) failing to challenge on direct appeal prosecuto-
    rial misconduct based on the State’s “withholding” notes and
    reports that a witness referred to in his testimony; (4) failing
    to move for a mistrial after the trial court noted on the record
    that during Goncalves-Santos’ testimony, an unidentified per-
    son in the courtroom would nod or shake his head in a manner
    Oliveira-Coutinho characterized as “live co[a]ching” of the
    witness; (5) failure to either move for a mistrial or propose and
    request a limiting instruction after a witness “had an outburst”
    and “scream[ed], ‘Why . . . did you kill my family?’”; (6)
    failing to raise on direct appeal the trial court’s overruling an
    objection to evidence of his prior dismissed criminal charge;
    (7) failing to raise on direct appeal the trial court’s overruling
    his hearsay objection to Goncalves-Santos’ testimony regarding
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    a statement made by a victim; (8) failing to request a limiting
    instruction as to certain exhibits and failing to raise on direct
    appeal the court’s failure to provide its own limiting instruc-
    tion; (9) failing to raise on direct appeal the court’s refusal
    to give a requested instruction regarding the credibility of the
    testimony of an accomplice; and (10) failing to raise on direct
    appeal the trial court’s failure to instruct the jury that Oliveira-
    Coutinho’s “‘mere presence, acquies[c]ence or silence is not
    enough to sustain the State’s burden of proving [Oliveira-
    Coutinho] guilty.’”
    The district court stated that it was unnecessary to discuss
    each argument separately and that instead the claims could be
    “dealt with summarily due to the lack of prejudice asserted.”
    (xi) Failure to investigate. Oliveira-Coutinho made several
    claims that counsel was deficient for failing to investigate
    aspects of his case, including potential alibi defenses and wit-
    nesses. The district court concluded that Oliveira-Coutinho
    was not entitled to an evidentiary hearing on these claims.
    The court cited authority to the effect that postconviction
    claims of failure to investigate were insufficient when the
    defendant failed to allege how undertaking such investigative
    activities would have produced a different outcome at trial
    and that therefore, the allegations were insufficient to estab-
    lish prejudice.
    Finally, although Oliveira-Coutinho characterized all his
    claims as claims of ineffective assistance of counsel, the dis-
    trict court stated that one claim involved purported constitu-
    tional violations by the State prior to the appointment of the
    counsel who represented him at trial and on direct appeal. The
    court characterized the claim as “somewhat confusing” but
    stated that Oliveira-Coutinho appeared to claim that “the State
    violated his constitutional rights by assisting in obtaining [an
    attorney’s] help in representing [Oliveira-Coutinho] and also
    by somehow obtaining [his] ‘trial strategy’ during the time
    frame that [the attorney] was appointed.” The court noted that
    this attorney assisted Oliveira-Coutinho only in “determining
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    whether he wanted to provide a statement” to law enforcement
    and that the attorney “was not appointed to represent [him]
    any further in the proceeding.” The court stated that it was
    “hard to see how [the attorney] could have even obtained the
    ‘trial strategy’ to reveal to the State,” but that in any event,
    the claim could have been brought on direct appeal and was
    therefore procedurally barred in this postconviction action. The
    court stated that it could not identify a claim of ineffective
    assistance of counsel on direct appeal related to this claim, but
    it determined that any such claim that might have been raised
    on direct appeal was refuted by the record because the trial
    court overruled Oliveira-Coutinho’s motion to suppress chal-
    lenging, inter alia, the statement he provided to investigators
    after meeting with the attorney. The court stated that in its
    order overruling the motion to suppress, the trial court “found
    there was no error in any of the actions by the State or [the
    attorney] at the time [Oliveira-Coutinho] provided his state-
    ment to law enforcement.” The court further noted that the
    State did not offer Oliveira-Coutinho’s statement into evidence
    at his trial, and the court determined that he therefore suffered
    no prejudice.
    Oliveira-Coutinho appeals the overruling of his motion for
    postconviction relief.
    ASSIGNMENTS OF ERROR
    Oliveira-Coutinho claims that the district court erred when it
    denied his claims without an evidentiary hearing. In his assign-
    ments of error and in his arguments, he includes most but not
    all of the claims he set forth in his amended motion. Oliveira-
    Coutinho also claims that the court erred when it failed to
    appoint postconviction counsel.
    STANDARDS 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
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    show that the defendant is entitled to no relief. State v. Privett,
    
    303 Neb. 404
    , 
    929 N.W.2d 505
    (2019).
    [2] We review the failure of the district court to provide
    court-appointed counsel in a postconviction proceeding for an
    abuse of discretion. State v. Taylor, 
    300 Neb. 629
    , 
    915 N.W.2d 568
    (2018).
    ANALYSIS
    As noted above, Oliveira-Coutinho in his amended motion
    for postconviction relief set forth almost 50 separately stated
    claims. The district court analyzed those claims in groupings
    and denied an evidentiary hearing on all claims. On appeal,
    Oliveira-Coutinho makes a general claim that the district court
    erred when it denied his claims without an evidentiary hear-
    ing. Oliveira-Coutinho then argues that the court erred when
    it found most but not all of his specific claims to be without
    merit; he argues the claims with varying degrees of depth.
    We begin our analysis herein by setting forth standards that
    are applicable to our review of each postconviction claim. We
    then review all the claims Oliveira-Coutinho argues on appeal
    pursuant to those standards, and as discussed below, we deter-
    mine that the claims were properly denied without an eviden-
    tiary hearing. Although we have reviewed each specific claim
    that Oliveira-Coutinho raises on appeal, our analysis below
    discusses in depth only certain claims that warrant such discus-
    sion, and we address the remaining claims in a more general
    fashion. Finally, we note that because the district court did not
    err when it denied Oliveira-Coutinho’s claims without an evi-
    dentiary hearing, it also did not err when it denied his motion
    for appointment of postconviction counsel.
    Postconviction Standards.
    [3,4] Postconviction relief is available to a prisoner in cus-
    tody under sentence who seeks to be released on the ground
    that there was a denial or infringement of his or her constitu-
    tional rights such that the judgment was void or voidable. State
    v. Martinez, 
    302 Neb. 526
    , 
    924 N.W.2d 295
    (2019). Thus, in
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    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. State v.
    
    Martinez, supra
    .
    [5,6] 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. State v. 
    Martinez, supra
    . If a postconviction
    motion alleges only conclusions 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 evi-
    dentiary hearing. 
    Id. Oliveira-Coutinho’s claims
    for postconviction relief assert
    that he received ineffective assistance of counsel. Because
    Oliveira-Coutinho was represented both at trial and on direct
    appeal by the same lawyers, this motion for postconviction
    relief was his first opportunity to assert ineffective assistance
    of counsel. See 
    id. [7-9] A
    proper ineffective assistance of counsel claim alleges
    a violation of the fundamental constitutional right to a fair
    trial. State v. Taylor, 
    300 Neb. 629
    , 
    915 N.W.2d 568
    (2018).
    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
    counsel’s performance was deficient and that this deficient
    performance actually prejudiced the defendant’s defense. State
    v. 
    Taylor, supra
    . To show prejudice under the prejudice com-
    ponent of the Strickland test, the defendant must demonstrate
    a reasonable probability that but for his or her counsel’s defi-
    cient performance, the result of the proceeding would have
    been different. State v. 
    Taylor, supra
    . A reasonable probability
    does not require that it be more likely than not that the defi-
    cient per­formance altered the outcome of the case; rather, the
    defendant must show a probability sufficient to undermine
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    confidence in the outcome. 
    Id. The two
    prongs of this test
    may be addressed in either order, and the entire ineffective-
    ness analysis should be viewed with a strong presumption that
    counsel’s actions were reasonable. 
    Id. With these
    principles in mind, we review Oliveira-Coutinho’s
    claims of ineffective assistance of counsel.
    Competency of Goncalves-Santos.
    Oliveira-Coutinho claims that the district court erred when
    it refused an evidentiary hearing on his claims that counsel
    failed to properly challenge, both at trial and on appeal, the
    competency of Goncalves-Santos as a witness. The district
    court generally found that these claims were refuted by the
    record. We conclude that the record shows that Oliveira-
    Coutinho’s proposed challenges to Goncalves-Santos’ compe-
    tency would not have been successful and that therefore, the
    district court did not err when it refused an evidentiary hearing
    on the claims.
    In three separately stated claims in his amended motion,
    Oliveira-Coutinho generally claimed that counsel failed to
    (1) challenge Goncalves-Santos’ competency at trial, (2) raise
    on direct appeal the trial court’s error in allowing Goncalves-
    Santos to testify, and (3) “bring to the attention” of the trial
    court the mental competency of Goncalves-Santos. In these
    claims, Oliveira-Coutinho generally alleged that Goncalves-
    Santos had exhibited behaviors that indicated violent and
    antisocial tendencies that called his mental competency
    into question.
    The district court determined that these postconviction
    claims were refuted by the record, which showed that counsel
    filed a motion challenging Goncalves-Santos’ competency, that
    the trial court overruled the motion after a hearing, that coun-
    sel asked for a reconsideration, and that the trial court denied
    reconsideration. The court also stated that this court affirmed
    the trial court’s ruling on these matters on direct appeal.
    Oliveira-Coutinho argues on appeal that the district court’s
    description of the record is inaccurate because counsel
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    requested an advance ruling only on what questions he might
    ask Goncalves-Santos regarding his competency and that
    counsel did not file a motion to determine Goncalves-Santos’
    competency. Oliveira-Coutinho claimed in his amended
    motion that counsel should have gone further than seeking
    to cross-­examine Goncalves-Santos regarding his behavior
    and that instead, counsel should have asked the court to
    order a competency evaluation of Goncalves-Santos so that
    the court could determine whether he was competent to be
    a witness.
    We agree with Oliveira-Coutinho that the district court in its
    postconviction order improperly focused on the motion regard-
    ing cross-examination rather than the actual focus of Oliveira-
    Coutinho’s claim, which was that counsel should have moved
    the trial court to order a mental competency evaluation and
    determine whether Goncalves-Santos was mentally competent
    to be a witness. In our opinion in Oliveira-Coutinho’s direct
    appeal, we stated that prior to trial:
    Oliveira-Coutinho filed a motion for advance ruling seek-
    ing to cross-examine Goncalves-Santos about his sexual
    relations with animals, his killing or harming of animals,
    his threats to kill his wife, and any other violent or anti-
    social tendencies or behaviors. . . . Oliveira-Coutinho
    argued that this evidence was relevant and went to the
    competency of Goncalves-Santos as a witness under
    rule 601.
    State v. Oliveira-Coutinho, 
    291 Neb. 294
    , 308-09, 
    865 N.W.2d 740
    , 756 (2015). See Neb. Rev. Stat. § 27-601 (Reissue 2016).
    The trial court determined that Oliveira-Coutinho could not
    pursue the line of questioning because the matters “had no
    bearing on Goncalves-Santos’ competency as a witness.” State
    v. 
    Oliveira-Coutinho, 291 Neb. at 309
    , 865 N.W.2d at 756.
    On direct appeal, Oliveira-Coutinho assigned error to this
    ruling. We affirmed the ruling on appeal on the basis that
    the competency of a witness was an issue to be determined
    by the court and not by the jury. We noted, however, that
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    “Oliveira-Coutinho did not assign that the district court erred
    in finding that Goncalves-Santos was competent to testify.” 
    Id. at 332,
    865 N.W.2d at 770.
    The issue decided by the trial court and affirmed by us on
    direct appeal was whether Oliveira-Coutinho would be allowed
    to cross-examine Goncalves-Santos on matters that alleg-
    edly went to his mental competency. But Oliveira-Coutinho’s
    claim for postconvicton relief was that counsel should have
    sought a competency evaluation and should have sought to
    bar Goncalves-Santos’ testimony because he was not men-
    tally competent. It appears that trial counsel did not file such
    a motion, and we specifically stated in our opinion on direct
    appeal that Oliveira-Coutinho did not assign error to the trial
    court’s finding that Goncalves-Santos was competent to testify.
    We therefore think the district court erred when it stated that
    the issue raised in these claims had been presented to the trial
    court and this court on direct appeal.
    Nevertheless, we determine that for other reasons, the dis-
    trict court did not err when it refused an evidentiary hearing on
    these claims. In ruling that Oliveira-Coutinho could not cross-
    examine Goncalves-Santos regarding the matters he alleged
    had a bearing on mental competency, the trial court reasoned
    that such matters had no bearing on Goncalves-Santos’ compe-
    tency to testify. In its February 10, 2012, order overruling the
    motion, the trial court stated:
    Under Nebraska law, every person is competent to be
    a witness except as otherwise provided in the Rules of
    Evidence. Neb.Rev.Stat. § 27-601. Even insanity or men-
    tal illness does not automatically render a witness incom-
    petent to testify; only when the witness is unable to com-
    prehend the obligation of an oath, or to understand and
    intelligently answer questions is the witness incompetent.
    Garcia v. State, 
    159 Neb. 571
    , 592, 
    68 N.W.2d 151
    , 165
    (1955). There is no evidence that [Goncalves-Santos] is
    unable to comprehend the obligation of the oath or unable
    to answer questions asked of him.
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    The State argues that the trial court’s reasoning indicates that
    even if counsel had requested a competency evaluation of
    Goncalves-Santos, the trial court would not have ordered such
    an evaluation and would not have determined that Goncalves-
    Santos was not competent to testify.
    Oliveira-Coutinho’s claims regarding Goncalves-Santos
    indicate that he is confusing concepts of competency of wit-
    nesses with issues of competency of a defendant to stand trial
    or to represent himself or herself. Oliveira-Coutinho claims
    counsel should have sought a competency evaluation and hear-
    ing for Goncalves-Santos, which evaluation and hearing seem
    similar to the type of evaluation and hearing that might be
    required to determine a defendant’s competency. However,
    Oliveira-Coutinho cites no statute, case, or other law that
    would authorize the court to require a witness to submit to a
    psychiatric evaluation to determine his or her mental compe-
    tency to testify.
    Instead, as the trial court indicated, our rules of evidence
    provide, “Every person is competent to be a witness except
    as otherwise provided in these rules.” § 27-601. Oliveira-
    Coutinho asserts no rule of evidence pursuant to which his
    allegations regarding Goncalves-Santos would render him not
    competent to be a witness. Furthermore, the trial court found
    no evidence that Goncalves-Santos was “unable to compre-
    hend the obligation of the oath or unable to answer questions
    asked of him,” and Oliveira-Coutinho points to nothing in
    Goncalves-Santos’ extensive testimony at trial that would indi-
    cate otherwise.
    The district court erroneously reasoned that the claims
    asserted by Oliveira-Coutinho in this postconviction action
    with regard to Goncalves-Santos’ competency as a witness
    were addressed on direct appeal. Nevertheless, we determine
    that such claims did not allege a valid basis for relief and
    that the record refutes the merits of the claims. We therefore
    conclude that the district court did not err when it refused an
    evidentiary hearing on these claims.
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    Jury Instruction Regarding Potential Mistrial.
    Oliveira-Coutinho claimed that counsel was ineffective for
    failing to object to “Preliminary Jury Instruction No. 1,” which
    he alleged stated in part,
    “Any juror who violates these restrictions I have explained
    to you jeopardizes the fairness of these proceedings, and
    a mistrial could result that would require the entire trial
    process to start over. As you can imagine, a mistrial is a
    tremendous expense and inconvenience to the parties, to
    the Court and the taxpayers.”
    (Emphasis omitted.) He argued that counsel should have
    objected to this instruction because it was confusing and
    prejudicial to his case and would discourage jurors from
    reporting misconduct. The district court determined that the
    record refuted this argument because the first jury instruction
    “filed October 9, 2012,” did not contain the language alleged.
    The court also noted that Oliveira-Coutinho failed to cite any
    authority establishing that an objection to such an instruc-
    tion would have been successful. Although our reasoning
    differs, we conclude that the court did not err when it denied
    this claim.
    The district court referred to the instructions “filed October
    9, 2012,” and stated that they did not contain the language
    alleged by Oliveira-Coutinho. The record indicates that the
    instructions filed on October 9 were the instructions given
    at the close of evidence. Oliveira-Coutinho alleged that the
    instruction at issue was a preliminary jury instruction, and
    the record confirms that the language quoted in his amended
    motion was given as a preliminary jury instruction. The district
    court therefore erred when it indicated that the alleged instruc-
    tion was not given.
    [10] However, the district court also stated that Oliveira-
    Coutinho failed to cite authority showing that a challenge to
    the instruction would have been successful. We agree with
    the district court that Oliveira-Coutinho alleged no such
    authority. In his amended motion and in his brief on appeal,
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    Oliveira-Coutinho argues that the instruction was inappropri-
    ate because it was confusing and could discourage jurors from
    reporting misconduct. But he cites no authority to support his
    contention that it was error for the court to give the instruction,
    and therefore, the argument appears to be a novel legal theory.
    We have held that “counsel’s failure to raise novel legal theo-
    ries or arguments or to make novel constitutional challenges
    in order to bring a change in existing law does not constitute
    deficient performance.” State v. Sanders, 
    289 Neb. 335
    , 343,
    
    855 N.W.2d 350
    , 357 (2014). Furthermore, Oliveira-Coutinho
    did not assert any actual prejudice that resulted from the
    instruction, such as juror misconduct that went unreported; he
    only alleged what might have occurred. We therefore conclude
    that the district court did not err when it denied this claim
    without an evidentiary hearing.
    Aiding and Abetting.
    Oliveira-Coutinho claims that the district court erred when
    it refused an evidentiary hearing on three claims related to the
    felony murder instruction, which allowed the jury to find him
    guilty based on a theory of aiding and abetting. In his amended
    motion, Oliveira-Coutinho claimed that trial counsel was defi-
    cient for (1) failing to object to the instruction, on the basis
    that he was not charged under a theory of aiding and abetting;
    (2) failing to challenge the constitutionality of § 28-206, which
    provides that “[a] person who aids, abets, procures, or causes
    another to commit any offense may be prosecuted and pun-
    ished as if he were the principal offender”; and (3) failing to
    inform him prior to trial that he could be prosecuted under an
    aiding and abetting theory. We conclude that the district court
    addressed the first two of these claims and properly found that
    they did not warrant an evidentiary hearing. We further con-
    clude that while the district court did not appear to explicitly
    address the third claim, the court did not err when it denied an
    evidentiary hearing on the claim, because Oliveira-Coutinho
    failed to adequately allege prejudice.
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    Regarding the first claim, Oliveira-Coutinho claimed in
    the amended motion that counsel was deficient for failing to
    object to the felony murder instruction because the instruction
    allowed the jury to find him guilty on an aiding and abetting
    theory when he was not arraigned on an aiding and abetting
    theory. On appeal, Oliveira-Coutinho asserts that the district
    court did not decide the merits of this claim. Without further
    argument regarding the merits of the claim, he contends that
    we should remand the cause for an evidentiary hearing on
    the claim.
    [11] However, we find that the district court addressed this
    claim. The district court cited State v. Stark, 
    272 Neb. 89
    , 
    718 N.W.2d 509
    (2006), for the proposition that an information
    charging a defendant with a specific crime gives the defendant
    adequate notice that he or she may be prosecuted for the crime
    specified or as having aided and abetted the commission of the
    crime specified. The district court concluded that because of
    this precedent, a challenge by counsel to the instruction would
    have been unsuccessful and therefore, counsel’s failure to make
    the challenge was not ineffective assistance.
    We agree with the district court’s reasoning. In addition to
    State v. 
    Stark, supra
    , in State v. Contreras, 
    268 Neb. 797
    , 803,
    
    688 N.W.2d 580
    , 585 (2004), we held that “notwithstanding
    the fact that the information charging the defendant does not
    contain specific aiding and abetting language, an aiding and
    abetting instruction is proper where warranted by the evi-
    dence.” We therefore agree with the district court’s conclusion
    that a challenge to the aiding and abetting instruction based on
    the failure to charge the offense under an aiding and abetting
    theory would not have been successful.
    We note that as part of this claim, Oliveira-Coutinho also
    asserted that the felony murder instruction omitted elements
    necessary to prove the crime under an aiding and abetting
    theory—specifically that he intended to commit the underlying
    felony or knew that the person he aided or abetted intended to
    commit the crime. He also appeared to assert as part of this
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    claim that the evidence did not support an aiding and abetting
    theory. The State argues on appeal that the trial court instructed
    on the allegedly missing elements in a separate instruction
    relating to aiding and abetting and that there was sufficient
    evidence that Oliveira-Coutinho aided and abetted in the com-
    mission of a felony. We agree with the State’s arguments and
    agree that a challenge to the instruction on these bases would
    have been unsuccessful. We conclude that the district court did
    not err when it refused an evidentiary hearing on the claim
    that counsel was ineffective for failing to object to the felony
    murder instruction.
    Regarding the second claim, Oliveira-Coutinho alleged in
    the amended motion that counsel was deficient for failing to
    challenge the constitutionality of § 28-206. He asserted that
    the statute was unconstitutionally overbroad, and he argued
    that the statute was unconstitutional because it allowed the
    State to prosecute a defendant under an aiding and abetting
    theory without giving notice to the defendant. He argued
    that the statute “makes the fatal assumption” that those who
    are subject to it understand they can be prosecuted under an
    alternative theory, and he asserted that because he does not
    speak English, he was not aware of the possibility of being
    convicted as an aider or abettor. The district court rejected this
    claim, reasoning that Oliveira-Coutinho “fail[ed] to provide
    any authority creating a realistic constitutional challenged [sic]
    to the statute.”
    We agree with the district court that Oliveira-Coutinho pro-
    vided no authority indicating that a constitutional challenge
    to § 28-206 would have been successful. Oliveira-Coutinho
    referred in his amended motion to an accused’s right to be
    informed of the nature of the charges against him; however,
    as discussed above, an information charging a defendant with
    a crime gives the defendant notice that he or she may be pros-
    ecuted for having aided or abetted the crime. In any event,
    the lack of notice argument is better understood as a due
    process challenge to the procedure by which the statute was
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    implemented rather than a challenge to the constitutionality
    of the aiding and abetting statute itself. Similarly, Oliveira-
    Coutinho’s argument that he did not understand the charges
    against him because of a language barrier would not undermine
    the constitutionality of § 28-206; instead, the argument relates
    to whether he received ineffective assistance of counsel in vio-
    lation of the Sixth Amendment because counsel failed to ensure
    he was aware of the charges against him. That is the subject of
    the third claim discussed below. Because Oliveira-Coutinho did
    not adequately allege how § 28-206 was unconstitutional, we
    conclude that the district court did not err when it refused an
    evidentiary hearing on the claim of ineffective assistance for
    failing to challenge the constitutionality of the statute.
    Finally, regarding the third claim, Oliveira-Coutinho claimed
    in the amended motion that counsel was deficient for failing to
    inform him prior to trial that he could be prosecuted under an
    aiding and abetting theory. He asserted that had he known he
    could have been convicted as an aider and abettor, “he would
    have weight [sic] his options prior to proceed [sic] with the
    trial” and “could have insisted to enter into further plea negoti-
    ations or he would have opted to plea [sic] guilty to the State’s
    second plea offer.” Oliveira-Coutinho argues on appeal that the
    district court did not address this claim.
    We agree with Oliveira-Coutinho that the district court did
    not specifically address the claim that counsel was ineffective
    for failing to advise him that he could be convicted as an aider
    or abettor. Instead, this claim appears among the claims the
    court generally disposed of by stating that Oliveira-Coutinho
    failed to allege prejudice. We conclude that the court did not
    err when it refused an evidentiary hearing on this claim because
    Oliveira-Coutinho failed to adequately allege prejudice.
    The State argues on appeal that whether or not counsel’s
    performance was deficient in this respect, Oliveira-Coutinho
    failed to allege a claim of ineffective assistance of counsel,
    because he failed to allege how he was prejudiced by such
    deficient performance. The State argues that he did not allege
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    that if counsel had properly advised him that he could be
    convicted on a theory of aiding and abetting, he would have
    entered pleas to the charges instead of going to trial.
    We agree with the State that Oliveira-Coutinho failed to
    adequately allege how he was prejudiced and that to the extent
    he did allege prejudice, the record refutes his allegations of
    prejudice. As quoted above, Oliveira-Coutinho alleged merely
    that if he had been properly advised, he would have weighed
    his options, “could have” insisted on further plea negotiations,
    or would have accepted “the State’s second plea offer.” The
    allegation that he would have weighed his options is too vague
    to establish that he was prejudiced, because it does not allege
    a specific course of action that he would have taken if he had
    been properly advised.
    Oliveira-Coutinho’s allegations that he “could have insisted
    to enter into further plea negotiations” and that he would have
    accepted “the State’s second plea offer” are more concrete
    allegations of specific actions he could or would have taken if
    properly advised. However, the record refutes that the alleged
    courses of action were viable. When he alleged in his amended
    motion that he “would have opted to plea [sic] guilty to the
    State’s second plea offer,” Oliveira-Coutinho referenced an
    exhibit attached to the amended motion. That exhibit, how-
    ever, contradicts his allegation that he would have accepted
    “the State’s second plea offer.” The exhibit includes a letter
    from Oliveira-Coutinho’s trial counsel in which counsel actu-
    ally stated that “[t]he State never made such an offer” and
    instead that counsel had made an offer that the State rejected.
    Counsel further stated that the State had previously made an
    offer for Oliveira-Coutinho to plead to “multiple counts of
    second degree murder with no sentencing agreement,” but that
    Oliveira-Coutinho had rejected that offer. Oliveira-Coutinho’s
    allegation that he would have accepted “the State’s second
    plea offer” is refuted by his own evidence which shows that
    no “second plea offer” had been made by the State. The
    exhibit further undermines his allegation that he “could have”
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    insisted on further plea negotiations, because it shows that
    prior plea negotiations had resulted in an offer from the State
    that Oliveira-Coutinho did not find acceptable and because the
    State’s rejection of counsel’s counter-offer indicated that the
    State was not open to further plea negotiations that would have
    yielded a better plea deal than that already offered.
    This claim of ineffective assistance of counsel failed because
    Oliveira-Coutinho did not sufficiently allege prejudice and
    because his own exhibit undermined the allegations of preju-
    dice that he did make. We therefore conclude that the district
    court did not err when it refused an evidentiary hearing on
    the claim that counsel was ineffective for failing to advise
    Oliveira-Coutinho he could be convicted under an aiding and
    abetting theory.
    State Vouching for Goncalves-Santos’ Credibility.
    Oliveira-Coutinho claims that the district court erred when
    it refused an evidentiary hearing on his claim that counsel
    was deficient for failing to raise on appeal “[s]everal instances
    throughout the State’s case in chief” in which the prosecutor
    was allegedly “vouching for the credibility” of Goncalves-
    Santos’ testimony. The district court found that the claim was
    without merit because counsel had raised the issue on direct
    appeal and that the assignment of error had been rejected
    because the error was not properly preserved. On appeal,
    Oliveira-Coutinho attempts to change his claim from counsel’s
    failure to raise the issue on direct appeal to counsel’s failure
    to preserve the issue for appeal by objecting at trial. We agree
    with the district court that the claim alleged in the amended
    motion was refuted by the record.
    In his amended motion, Oliveira-Coutinho claimed,
    “Appellate counsel provided deficient performance by fail-
    ing to assign, raise, and argue during the direct appeal stage
    that the [p]rosecutor committed misconduct by vouching for
    the credibility of Goncalves-Santos.” He then quoted por-
    tions of the opening statement in which the prosecutor said
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    that Goncalves-Santos would “tell . . . the truth” and that
    Goncalves-Santos had taken certain actions because “he wanted
    to tell the truth.” Oliveira-Coutinho also cited to portions of
    the trial record in which two homicide investigators who had
    interviewed Goncalves-Santos testified that when they inter-
    viewed him, they let him know they expected him to tell the
    truth. Oliveira-Coutinho further cited to portions of the State’s
    closing statement in which the prosecutor made comments
    similar to the quoted comments from the opening statement.
    Oliveira-Coutinho claimed that a competent attorney would
    have “noted, assigned and argued prosecutorial misconduct by
    and when [the] prosecutor vouched for the credibility of [the
    State’s] star witness.”
    In its order denying postconviction relief, the district court
    noted that counsel had raised the issue on direct appeal to this
    court and that we rejected this assignment of error, in part
    because counsel failed to object at trial. To the extent any of
    the specific statements cited by Oliveira-Coutinho were not
    included in the assignment of error on direct appeal, the court
    determined that this court’s reasoning in rejecting the assigned
    error showed that inclusion of the specific statements would
    not have changed the result.
    The district court quoted a portion of our opinion in which
    we noted that by failing to object at trial, “Oliveira-Coutinho
    [had] likely waived any argument that the State erred in
    directly vouching for Goncalves-Santos.” State v. Oliveira-
    Coutinho, 
    291 Neb. 294
    , 345, 
    865 N.W.2d 740
    , 777 (2015).
    However, we concluded that he had “preserved his argument
    that the State suggested the district court was also vouching
    for Goncalves-Santos.” 
    Id. We rejected
    the assignment of error
    because whether or not the State’s comments amounted to
    misconduct, “such misconduct was not prejudicial to Oliveira-
    Coutinho’s right to a fair trial.” 
    Id. We concluded
    that “[t]he
    comments of the prosecutor during his opening statements
    were isolated in the overall context of the trial, [that] the jury
    was instructed specifically on Goncalves-Santos’ testimony as
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    well as on issues relating to arguments of counsel versus evi-
    dence presented,” and that “the strength of the evidence overall
    was such that any alleged misconduct in opening statements
    was not prejudicial to Oliveira-Coutinho’s right to a fair trial.”
    
    Id. at 346,
    865 N.W.2d at 778.
    The claim Oliveira-Coutinho set forth in his amended motion
    was that counsel failed to raise the issue on direct appeal.
    In fact, counsel raised the issue on appeal, but this court
    determined that the error had been waived because Oliveira-
    Coutinho failed to object at trial. On appeal, Oliveira-Coutinho
    attempts to recast his claim as a claim that trial counsel was
    ineffective for failing to object and preserve the claim for
    direct appeal. But that is not the claim he made in his amended
    motion, and we will not consider an issue on appeal that was
    not presented to or passed upon by the trial court. See State
    v. Haynes, 
    299 Neb. 249
    , 
    908 N.W.2d 40
    (2018), disapproved
    on other grounds, State v. Allen, 
    301 Neb. 560
    , 
    919 N.W.2d 500
    (2018).
    The claim presented to the district court in this postconvic-
    tion action was limited to the performance of counsel on direct
    appeal, and the district court did not err when it refused an
    evidentiary hearing on the basis that the record showed that
    counsel had in fact raised the issue on direct appeal.
    Issues Related to Attorney’s Representation
    of Oliveira-Coutinho.
    Oliveira-Coutinho claims that the district court erred when
    it refused an evidentiary hearing on claims he made related
    to his representation by an attorney, Matthew Kahler, when
    Oliveira-Coutinho was deciding whether to make a statement
    to law enforcement. The court found that the claims were pro-
    cedurally barred because they were not raised on direct appeal,
    but it further found that the claims were refuted by the record.
    Assuming that the claims were not procedurally barred because
    they were fashioned as claims of failure to raise the issues on
    direct appeal, we conclude the district court did not err when
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    it found that the claims were refuted by the record and that
    Oliveira-Coutinho could not show prejudice.
    In two separately stated claims in the amended motion,
    Oliveira-Coutinho alleged that (1) his counsel on direct appeal
    failed to assign and argue “violations of [his] Constitutional
    rights” and (2) “the State violated his Fifth, Sixth and
    Fourteenth Amendment rights in light of the fact that the pros-
    ecution had knowledge and possession of [Oliveira-Coutinho’s]
    trial strategy before he was charged and tried.” In the first of
    these two claims, Oliveira-Coutinho simply asserted, without
    further specifying the nature of the alleged constitutional viola-
    tions, that appellate counsel provided deficient representation.
    In the second of the two claims, Oliveira-Coutinho began with
    the general allegation that the State had violated his constitu-
    tional rights, and then over several pages, he set forth how he
    thought the State violated his rights based on its role in finding
    an attorney to advise him at a time when he was considering
    making a statement to law enforcement. He generally alleged
    that after he invoked his right to counsel, the county attorney
    “was informed and personally appointed [Kahler] to represent”
    him, and that thereafter, Kahler disclosed “confidential com-
    munications” and “his trial strategy” to prosecutors.
    The district court in its postconviction order found that the
    claims related to Kahler were procedurally barred because
    they could have been raised on direct appeal. Apparently, the
    court read the second of the above-described claims in isola-
    tion from the preceding claim when it stated that it “could not
    identify an ineffective assistance of counsel argument within
    the claim[]” and therefore determined that the claim was pro-
    cedurally barred. Although it was not made entirely clear in
    the amended motion that the two claims were meant to be read
    together, we will assume for purposes of review that the two
    claims were intended to be read together and that together, they
    set forth claims of ineffective assistance of counsel for failing
    to raise issues on direct appeal and are therefore not procedur-
    ally barred in this postconviction action. However, the district
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    court found that even if the claims were not procedurally
    barred, they were refuted by the record. We agree.
    The district court in this postconviction action determined
    that Oliveira-Coutinho’s claim related to Kahler was refuted
    by the record because the trial court overruled Oliveira-
    Coutinho’s suppression motion challenging, inter alia, the
    statement he provided to law enforcement while being repre-
    sented by Kahler. The court stated in the postconviction order
    that in the order denying the motion to suppress, the trial court
    had specifically “found there was no error in any of the actions
    by the State or . . . Kahler at the time [Oliveira-Coutinho]
    provided his statement to law enforcement.” The court further
    determined that because Oliveira-Coutinho’s statement was not
    offered into evidence at his trial, he suffered no prejudice.
    Oliveira-Coutinho argues on appeal that appellate counsel
    deficiently failed to raise on direct appeal that “the State” vio-
    lated his rights by “appointing” Kahler to represent him and
    that by “appointing” Kahler, brief for appellant at 18, the State
    “[i]nterfered [w]ith [Oliveira-Coutinho’s] [t]rial [s]trategy and
    . . . [o]btained [i]ncriminating [e]vidence,” 
    id. at 22.
    Oliveira-
    Coutinho asserts that after he invoked his right to counsel,
    officers who were questioning him contacted the county attor-
    ney and the county attorney “appointed” Kahler to represent
    him. 
    Id. at 19.
    He further asserts that after advising Oliveira-
    Coutinho “to confess everything he knew about the triple-
    homicide,” Kahler then “debrief[ed]” the prosecutors about
    what Oliveira-Coutinho told him during their conversation. 
    Id. Oliveira-Coutinho argues
    he would not have made a statement
    to police if he knew that the attorney was not court appointed
    and that the attorney was acting as an agent for the State with
    the purpose of advising him to confess and then revealing his
    trial strategy to prosecutors.
    The district court determined that the record relating to
    Oliveira-Coutinho’s motion to suppress the statement refuted
    these claims. We therefore review the information disclosed in
    the trial record related to the motion to suppress the statement.
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    Oliveira-Coutinho was questioned by investigators in this
    case “on February 1 and into February 2, 2010, and again later
    in February and March.” State v. Oliveira-Coutinho, 
    291 Neb. 294
    , 302, 
    865 N.W.2d 740
    , 752 (2015). “Oliveira-Coutinho
    was first questioned on February 1 . . . and was placed on
    a U.S. Immigration and Customs Enforcement (ICE) hold
    within 24 hours after the interview.” 
    Id. at 312,
    865 N.W.2d
    at 758. Oliveira-Coutinho “was not initially held by the State
    on any charges related to the Szczepanik family’s disappear-
    ance, but instead was placed on an ICE hold by the federal
    government.” 
    Id. at 327,
    865 N.W.2d at 767. “Between March
    6 and 11, Oliveira-Coutinho contacted an investigator in this
    case and spoke to him, against his attorney’s advice, regard-
    ing Goncalves-Santos’ involvement on March 11.” 
    Id. It is
    the March 11 statement that is relevant to Oliveira-Coutinho’s
    claims related to his representation by Kahler.
    Prior to trial, Oliveira-Coutinho moved to suppress, inter
    alia, the statement he made to investigators on March 11, 2010.
    With specific regard to the March 11 statement, he alleged
    that he had been interrogated in the presence of Kahler and
    that Kahler was neither appointed by a judge nor retained
    by Oliveira-Coutinho. After an evidentiary hearing, the trial
    court overruled Oliveira-Coutinho’s motion to suppress in an
    order filed August 30, 2012. In the order, the trial court noted
    the following facts relevant to the March 11, 2010, state-
    ment: Oliveira-Coutinho had been interviewed by Christopher
    Spencer, an Omaha police detective, a few times between
    February 1 and March 5. On March 11, based on telephone
    calls Oliveira-Coutinho had placed to him, Spencer arranged
    to have Oliveira-Coutinho brought to an interview room.
    Oliveira-Coutinho indicated that he wanted to continue talk-
    ing with Spencer, but he inquired as to whether he could speak
    with an attorney first. Spencer told Oliveira-Coutinho he could
    retain an attorney, but Oliveira-Coutinho said he could not pay
    for an attorney. Spencer relayed Oliveira-Coutinho’s request
    for an attorney to Teresa Negron, the lead sergeant in charge of
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    the case. Negron first attempted to contact one of the attorneys
    who would eventually become Oliveira-Coutinho’s trial coun-
    sel; however, after failing to reach that attorney, she contacted
    the county attorney, who in turn contacted Kahler. Kahler,
    who had previously been employed in the county attorney’s
    office but was now in private practice specializing in criminal
    defense, agreed to help.
    Kahler testified at the hearing on Oliveira-Coutinho’s motion
    to suppress. He testified that on the evening of March 11,
    2010, he received two calls—one from Negron and one from
    the county attorney. The two asked him whether he would
    be willing to come to police headquarters to advise a suspect
    who had made statements to the police on whether or not he
    should make any further statements. Kahler’s understanding at
    the time was that a court would appoint him to represent the
    suspect if and when charges were filed. Kahler went to police
    headquarters, where, at his request, police officers briefed
    him about the investigation and previous statements Oliveira-
    Coutinho had made. Kahler then met Oliveira-Coutinho and
    spoke with him through an interpreter. Kahler spoke with
    Oliveira-Coutinho with only the interpreter present for close to
    2 hours. At the suppression hearing, Kahler replied “No” when
    the State’s attorney asked whether there was “anything about
    the answering of the questions or the advice that [he] gave to
    [Oliveira-Coutinho] that was impacted by any other person or
    any agency, whether it be law enforcement, County Attorney’s
    Office, or any other type of agency.” Kahler testified that he
    told Oliveira-Coutinho, inter alia, that Oliveira-Coutinho was
    “obviously considered a suspect by the police” and that there-
    fore, Kahler had “concern about him giving a statement . . .
    about knowing information about what other people had done.”
    After Kahler had so advised him, Oliveira-Coutinho decided to
    continue speaking with officers. Kahler testified that Oliveira-
    Coutinho made the decision on his own and gave the ensuing
    statement voluntarily. Spencer thereafter interviewed Oliveira-
    Coutinho with Kahler and an interpreter present.
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    After the interview, Kahler asked the officers whether
    Oliveira-Coutinho was being charged based on admissions
    he had made related to accessing the victims’ bank accounts;
    although officers were not certain, Kahler’s understanding was
    that he would be charged sometime soon. Kahler also spoke
    with the county attorney about being appointed by the court,
    and he assumed he would be formally appointed the next day.
    However, Kahler learned the next morning that no charges had
    been filed against Oliveira-Coutinho. Kahler did not thereaf-
    ter pursue appointment, and he did not meet with Oliveira-
    Coutinho again. The record shows that the State did not file
    any charge against Oliveira-Coutinho in connection with this
    case until approximately May 24, 2010, and that the court
    appointed different counsel at that time.
    In its order overruling Oliveira-Coutinho’s motion to sup-
    press, the trial court stated with regard to the March 11, 2010,
    interview and Kahler’s representation as follows:
    [Oliveira-Coutinho’s] contention that . . . Kahler was not
    his attorney “at the time” of his interrogation on March
    11th and in fact was “an agent of law enforcement and
    [the county attorney] and their attempt to get [Oliveira-
    Coutinho] to speak to them” is unfounded. [Oliveira-
    Coutinho] requested an attorney and before he made any
    further statements, a very well-qualified criminal defense
    attorney answered the call and provided him the help and
    legal advice he requested.
    After spending almost two hours privately with
    [Oliveira-Coutinho], Kahler then remained with him dur-
    ing the interview conducted by Spencer, whom [Oliveira-
    Coutinho] agreed to speak to, Kahler’s professional advice
    notwithstanding.
    [12] With regard to these issues, Oliveira-Coutinho generally
    alleged violations of 5th-, 6th-, and 14th-Amendment rights. A
    criminal defendant’s Sixth Amendment right to the assistance
    of counsel attaches only after the initiation of adversary judi-
    cial criminal proceedings—whether by way of formal charge,
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    preliminary hearing, indictment, information, or arraignment.
    State v. Scheffert, 
    279 Neb. 479
    , 
    778 N.W.2d 733
    (2010).
    Oliveira-Coutinho was not charged by the State until May
    2010, and therefore, the Sixth Amendment right to counsel was
    not implicated at the time of the March 11 interview. Oliveira-
    Coutinho’s references to the Fifth Amendment are not clear
    as to whether he is alleging a violation of his right to remain
    silent or a violation of his right to due process.
    But the crux of his allegation is that Kahler was somehow
    acting as an agent of the prosecution, including the county
    attorney and investigators, and that in that role, Kahler both
    encouraged Oliveira-Coutinho to confess and later disclosed
    Oliveira-Coutinho’s confidential trial strategy to the prosecu-
    tors. These allegations, however, are contradicted by the testi-
    mony of Kahler at the suppression hearing. Kahler testified that
    he expressed concerns about Oliveira-Coutinho’s providing a
    statement when he was considered a suspect and testified that
    despite such advice, Oliveira-Coutinho made his own decision
    to give a voluntary statement. Furthermore, testimony by Kahler
    and others at the suppression hearing refuted that Kahler shared
    any sort of confidential communications with the prosecution;
    instead, testimony at the suppression hearing indicated that
    Kahler and Oliveira-Coutinho were able to speak outside the
    presence of the investigators, and there is nothing to indicate
    that Kahler shared any confidential communications, much less
    trial strategy, with the prosecutors. Kahler testified to commu-
    nications with the investigators that were limited to the investi-
    gators’ briefing him on what had occurred in the investigation
    of Oliveira-Coutinho. He also testified to communications with
    the county attorney but that such communications were limited
    to discussing how Kahler might be appointed by a court to
    represent Oliveira-Coutinho. Kahler testified that his advice to
    Oliveira-Coutinho was not influenced by law enforcement or
    the county attorney’s office.
    Kahler’s testimony and other testimony at the suppression
    hearing refute the claim that Kahler acted as an agent for the
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    prosecution. Furthermore, Oliveira-Coutinho makes only gen-
    eral allegations of “trial strategy” that was disclosed by Kahler
    to the prosecution; he does not allege any specific information
    relevant to his trial strategy that Kahler learned and provided to
    the prosecution. Brief for appellant at 25. As the postconviction
    court noted, the limited involvement of Kahler at a time well
    before trial and before charges had been filed made it highly
    unlikely that he would have become privy to any significant
    trial strategy, which would have later been decided upon by
    Oliveira-Coutinho and his trial counsel, who were appointed
    months after Kahler’s limited involvement in this case.
    While we determine that these claims are not sufficiently
    stated and are materially refuted by the record, we take this
    opportunity to disapprove the process by which Kahler was
    apparently brought in to advise Oliveira-Coutinho. The testi-
    mony of both Spencer and Negron at the suppression hearing
    indicated that the process by which Kahler was brought in to
    advise Oliveira-Coutinho was not a typical occurrence. We
    think it should not be. The county attorney’s office should
    not be involved in finding an attorney to advise persons
    being questioned by investigators; the county attorney should
    remain independent and impartial in fact and in appearance,
    and any involvement of the county attorney in obtaining
    counsel to advise a suspect damages at least the appearance
    of impartiality.
    That having been said, the record refutes Oliveira-Coutinho’s
    claim that Kahler acted as an agent for the prosecution and pro-
    vided confidential trial strategy to the prosecution. We there-
    fore conclude that the district court did not err when it deter-
    mined that Oliveira-Coutinho’s postconviction claims related to
    Kahler did not warrant an evidentiary hearing.
    Claims Not Addressed by District Court.
    In his brief on appeal, Oliveira-Coutinho asserts arguments
    with regard to various claims that he contends the district court
    did not address in its order denying postconviction relief. We
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    find that several of those claims were addressed in connection
    with other related claims in one of the sections we discussed in
    our statement of facts above. However, there are some claims
    we do not think the court specifically addressed in one of
    these sections.
    We note that the court stated in its order, prior to addressing
    specific claims, that all of Oliveira-Coutinho’s claims of inef-
    fective assistance of counsel were without merit because he
    failed to adequately plead prejudice or the record refuted any
    allegations of prejudice. Therefore, to the extent the district
    court did not appear to specifically analyze a particular claim,
    we have reviewed that claim on the basis that the district court
    found that the claim failed based on the prejudice prong of an
    ineffective assistance of counsel claim.
    There are a few claims set forth in Oliveira-Coutinho’s
    amended motion that we do not think were addressed in one
    of the sections in which the court discussed specific claims
    and instead were addressed only by the court’s general find-
    ing regarding prejudice. One of those claims was Oliveira-
    Coutinho’s claim that counsel was deficient for failing to
    inform him he could be convicted under an aiding and abet-
    ting theory; we considered that claim in connection with other
    claims related to the aiding and abetting issue in an earlier
    section of our analysis, and we determined that the court prop-
    erly denied the claim without an evidentiary hearing because
    Oliveira-Coutinho failed to adequately plead prejudice.
    Two other claims we do not think were specifically addressed
    by the district court were Oliveira-Coutinho’s claims that coun-
    sel was deficient (1) for failing to request a lesser-included
    offense instruction on the charge of accessory to a felony after
    the fact and (2) for failing to raise on appeal an issue related to
    the court’s “[u]nconstitutional interpretation of Neb. Rev. Stat.
    §27-1101.” We determine that the district court properly denied
    each of these claims without an evidentiary hearing.
    [13] With regard to the first of these two claims, Oliveira-
    Coutinho claimed that counsel was deficient for failing to
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    request instruction on “a lesser included offense of accessory
    to a felony after the fact pursuant to Neb. Rev. Stat. §28-204.”
    In the amended motion, this claim focused on the charge as
    being a lesser-included offense of first degree murder. But
    Oliveira-Coutinho’s arguments in his brief on appeal focus
    on its being a lesser-included offense of theft by deception.
    In any event, accessory to a felony is not a lesser-included
    offense of either greater offense. A court must instruct on a
    lesser-included offense if (1) the elements of the lesser offense
    for which an instruction is requested are such that one cannot
    commit the greater offense without simultaneously committing
    the lesser offense and (2) the evidence produces a rational basis
    for acquitting the defendant of the greater offense and convict-
    ing the defendant of the lesser offense. State v. Rocha, 
    295 Neb. 716
    , 
    890 N.W.2d 178
    (2017). Neb. Rev. Stat. § 28-204(1)
    (Reissue 2008) sets forth various ways in which one could
    “interfere with, hinder, delay, or prevent the discovery, appre-
    hension, prosecution, conviction, or punishment of another for
    an offense” and therefore be guilty of being an accessory to
    a felony. The elements of accessory to a felony are not such
    that one could not commit either first degree murder or theft
    by deception without simultaneously committing accessory to
    a felony. Therefore, Oliveira-Coutinho would not have been
    entitled to a lesser-included offense instruction on accessory
    to a felony and he could not establish prejudice from counsel’s
    failure to request such an instruction. We conclude the district
    court did not err when it denied this claim without an eviden-
    tiary hearing.
    With regard to the second of these claims, in his amended
    motion, Oliveira-Coutinho claimed counsel on direct appeal
    was ineffective for failing to raise on appeal an issue related to
    the court’s “[u]nconstitutional interpretation of Neb. Rev. Stat.
    §27-1101.” He did not further explain the claim in the amended
    motion, but he cited to a portion of a pretrial hearing on his
    motion to dismiss due to loss of testimonial evidence. The trial
    court sustained the State’s hearsay objection to his question
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    to an investigator which would have required the investigator
    to testify to statements made by Oliveira-Coutinho during the
    investigation. In his brief on appeal, Oliveira-Coutinho does
    not argue this claim beyond the allegations in his amended
    motion. Oliveira-Coutinho failed to allege how the trial court’s
    interpretation of the statute was “unconstitutional” or how
    counsel’s failure to raise the issue on appeal affected the out-
    come of the direct appeal. Therefore, Oliveira-Coutinho did not
    adequately allege a claim of ineffective assistance of counsel
    and the district court did not err when it denied this claim with-
    out an evidentiary hearing.
    Remaining Claims.
    With regard to the remaining claims that we have not spe-
    cifically addressed above, we have reviewed such claims and
    the district court’s disposition of those claims. In our statement
    of facts, we described how the district court resolved each of
    these claims. We determine that the district court adequately
    addressed such claims and that its conclusions regarding such
    claims were proper. We conclude that the district court properly
    found that the claims should be denied without an evidentiary
    hearing, and we do not believe such claims warrant further
    discussion herein.
    In sum, we conclude that the district court did not err when
    it determined that the claims argued by Oliveira-Coutinho in
    this appeal did not warrant an evidentiary hearing. We there-
    fore reject Oliveira-Coutinho’s assignment of error asserting
    that the district court erred when it determined that the claims
    should be denied without an evidentiary hearing.
    Appointment of Postconviction Counsel.
    [14,15] Oliveira-Coutinho also claims that the district court
    erred when it denied his motion for appointment of counsel.
    Under the Nebraska Postconviction Act, it is within the dis-
    cretion of the trial court to decide whether counsel shall be
    appointed to represent the defendant. See State v. Taylor, 300
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    Neb. 629, 
    915 N.W.2d 568
    (2018). Where the alleged errors in
    the postconviction petition before the district court are either
    procedurally barred or without merit, thus establishing that
    the postconviction proceeding contained no justiciable issue of
    law or fact, it is not an abuse of discretion to fail to appoint
    postconviction counsel for an indigent defendant. See 
    id. We therefore
    conclude the district court did not abuse its discretion
    when it denied Oliveira-Coutinho’s motion to appoint postcon-
    viction counsel.
    CONCLUSION
    We conclude that the district court did not err when it denied
    Oliveira-Coutinho’s postconviction claims without an eviden-
    tiary hearing, and we further conclude that the court did not err
    when it denied his request to appoint postconviction counsel.
    We reject Oliveira-Coutinho’s assignments of error, and we
    affirm the district court’s order.
    A ffirmed.
    Freudenberg, J., not participating.