State v. Russell , 308 Neb. 499 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/12/2021 08:09 AM CST
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. RUSSELL
Cite as 308 Neb. 499State of Nebraska, appellee, v.
Stephen Russell, appellant.
___ N.W.2d ___
Filed February 26, 2021. No. S-20-283.
1. Effectiveness of Counsel: Appeal and Error. Appellate review of a
claim of ineffective assistance of counsel is a mixed question of law
and fact.
2. ____: ____. When reviewing a claim of ineffective assistance of coun-
sel, an appellate court reviews the factual findings of the lower court for
clear error.
3. ____: ____. With regard to the questions of counsel’s performance or
prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), an appellate court reviews such legal determinations inde-
pendently of the lower court’s decision.
4. Postconviction: Evidence. In an evidentiary hearing on a motion for
postconviction relief, the trial judge, as the trier of fact, resolves con-
flicts in the evidence and questions of fact.
5. Postconviction: Constitutional Law. Postconviction relief is a very
narrow category of relief, available only to remedy prejudicial constitu-
tional violations that render the judgment void or voidable.
6. Postconviction: Effectiveness of Counsel: Appeal and Error. To
establish a right to postconviction relief based on a claim of ineffec-
tive assistance of counsel, the defendant has the burden, in accordance
with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), to show that counsel’s performance was deficient;
that is, counsel’s performance did not equal that of a lawyer with ordi-
nary training and skill in criminal law. Next, the defendant must show
that counsel’s deficient performance prejudiced the defense in his or
her case.
7. Effectiveness of Counsel: Presumptions. The two prongs of the test
for ineffective assistance of counsel may be addressed in either order,
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. RUSSELL
Cite as 308 Neb. 499and the entire ineffectiveness analysis should be viewed with a strong
presumption that counsel’s actions were reasonable.
8. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
9. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice, the defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
10. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
In order to obtain a new direct appeal as postconviction relief, the
defend­ant must show, by a preponderance of the evidence, that the
defendant was denied his or her right to appeal due to the negligence or
incompetence of counsel, and through no fault of his or her own.
11. Effectiveness of Counsel: Appeal and Error. A lawyer who disregards
specific instructions from the defendant to file a notice of appeal acts in
a manner that is professionally unreasonable.
12. ____: ____. Counsel is not per se deficient by failing to automati-
cally appeal.
13. ____: ____. For cases where the defendant neither instructs counsel to
file an appeal nor asks that an appeal not be taken, the U.S. Supreme
Court has adopted a reasonableness inquiry for the deficiency prong
that considers whether counsel consulted with the defendant and, if not,
whether that failure to consult was deficient performance.
14. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and
Error. 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 inef-
fective, thus entitling the defendant to postconviction relief.
15. Effectiveness of Counsel: Appeal and Error. It is a critical require-
ment that counsel’s deficient performance must actually cause the for-
feiture of the defendant’s appeal.
16. ____: ____. It is fundamental to a claim of ineffective assistance of
counsel based on failure to appeal that the defendant directed that such
appeal be filed.
17. Evidence: Appeal and Error. Where competent evidence supports the
district court’s findings, the appellate court will not substitute its factual
findings for those of the district court.
18. Postconviction: Evidence: Witnesses. In an evidentiary hearing for
postconviction relief, the postconviction trial judge, as the trier of fact,
resolves conflicts in evidence and questions of fact, including witness
credibility and the weight to be given a witness’ testimony.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. RUSSELL
Cite as 308 Neb. 49919. Testimony: Depositions. The weight to be accorded to testimony
given by deposition, as compared to that given orally in court, must
depend, not upon its form, but upon all the circumstances affecting
its credibility.
20. Testimony: Evidence. While testimony is a kind of evidence, a defend­
ant who relies upon his or her testimony with little or no supporting
documentary evidence does so at the risk of nonpersuasion.
21. Trial: Witnesses: Evidence. Triers of fact have the right to test the
credibility of witnesses by their self-interest and to weigh it against the
evidence, or the lack thereof.
22. Trial: Evidence. Evidence not directly contradicted is not necessarily
binding on the triers of fact, and may be given no weight where it is
inherently improbable, unreasonable, self-contradictory, or inconsistent
with facts or circumstances in evidence.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Affirmed.
Sean M. Conway, of Dornan, Troia, Howard, Breitkreutz &
Conway, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
In an appeal from a motion for postconviction relief, the
defendant challenges the district court’s denial of his motion
for postconviction relief after an evidentiary hearing. The
defendant assigns that the district court erred in finding that
trial counsel was not ineffective when trial counsel failed to
file a direct appeal, allegedly at the direction of the defendant.
We affirm.
BACKGROUND
Pursuant to a plea agreement, Stephen Russell pled no
contest and was convicted of murder in the second degree,
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STATE v. RUSSELL
Cite as 308 Neb. 499a Class IB felony. Russell was sentenced to 60 to 70 years’
imprisonment. No direct appeal was filed. Russell filed a motion
for postconviction relief. In the operative amended motion,
Russell sought a new direct appeal, alleging that Russell’s trial
counsel had failed to file a direct appeal on Russell’s behalf,
despite Russell’s requests to do so. The district court held an
evidentiary hearing on the amended motion.
Russell’s Deposition
The only evidence presented by Russell at the evidentiary
hearing was his deposition, which was entered and marked as
an exhibit. The deposition was conducted with the intention
that it be in lieu of live testimony at the evidentiary hearing.
Russell testified in his deposition that it was his recollection
that his trial counsel discussed only the likely sentence with
him, but did not discuss his right to appeal. Russell testified
that leading up to Russell’s plea, trial counsel told him that he
would get no more than 70 years’ imprisonment as his maxi-
mum sentence, but that trial counsel would try to get Russell
a term of imprisonment of 20 to 40 years or 30 to 50 years.
Russell testified that he told trial counsel he was not “‘trying to
do 30 years in prison,” and that trial counsel told him, “‘Well,
you’re not going to do 30 years. I promise you you’re not.’”
Russell then decided to enter a plea.
Russell testified that he quickly learned from other inmates
of his right to a direct appeal within 30 days. Russell testified
he immediately began attempts to contact trial counsel in order
to ask him to file an appeal on Russell’s behalf.
Russell testified that he called trial counsel the day after his
sentencing, leaving an “urgent voicemail.” Russell testified that
he also timely sent trial counsel a notarized letter asking trial
counsel to file a direct appeal and to provide Russell with a
copy of the discovery and his bill of exceptions.
Russell did not separately introduce a copy of this letter at
the evidentiary hearing, but a copy of the letter was attached
as an exhibit to the deposition. That attachment did not include
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. RUSSELL
Cite as 308 Neb. 499a photocopy of the envelope the letter was allegedly mailed
in. Russell asserted in his deposition testimony that he had
put the letter in the mailslot at his facility, but he did not spe-
cifically testify that he had placed the letter in an envelope
and properly addressed and stamped it. Russell presented no
other documentary evidence or testimony that the letter was
properly addressed, stamped, and mailed. And there was no
evidence presented of official negligence relating to the prison
mail system.
Russell testified that he again attempted to call trial coun-
sel after the letter was sent and that he was “pretty sure” he
“left two voicemails,” but knew “for sure” he had left one.
Although Russell indicated that inmate calls are documented,
he did not present such records in relation to his alleged calls
to trial counsel.
Russell testified that he had no contact with trial counsel
since his sentencing hearing on January 19, 2016.
Trial Counsel’s Deposition
The State submitted the deposition of trial counsel. The
attorney for the State, inexplicably, was not present at trial
counsel’s deposition, so Russell’s postconviction counsel did
all of the questioning. Trial counsel confirmed Russell’s claim
that he did not discuss the right to appeal with Russell before
Russell entered his plea. Nor did he do so before Russell
was sentenced.
Trial counsel testified that it is not his practice to discuss
the right to appeal prior to the entry of a plea or at the time of
sentencing, unless a client specifically asks, and that he did not
advise Russell of his right to appeal, because the only avenue
available to Russell was an appeal for excessive sentence. Trial
counsel testified that, typically, for clients convicted pursuant
to a plea bargain agreement, only if the client sends a letter or
calls him after sentencing to inquire about an appeal does he
send a form letter explaining the 30-day timeframe to appeal
and also explaining that excessive sentences are routinely
denied by the Nebraska Court of Appeals.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. RUSSELL
Cite as 308 Neb. 499Trial counsel testified that he did not recall receiving any
telephone calls or written correspondence from Russell within
the 30-day window after his sentencing. At one point, Russell’s
postconviction counsel asked, “Is it possible that . . . Russell
had called and left a message to speak with you during the
30-day period between when his sentencing was and when it
expired, or do you know [for] sure?” Trial counsel responded,
“Sure, it’s possible.”
Trial Record
There was not a trial record prepared in this case. A praecipe
for a bill of exceptions was filed in August 2016, but a bill of
exceptions was not prepared or filed. The only bill of excep-
tions requested and prepared in this case is the one this court
presently has that covers the evidentiary hearing held by the
district court on February 5, 2020.
Order Denying Postconviction Relief
The district court denied Russell’s motion for postconvic-
tion relief. The court noted in its order that in the plea dia-
logue between the court and Russell, the court had specifically
advised Russell that he had the right to appeal the conviction,
but the court did not advise Russell that the appeal must be
filed within 30 days of sentencing.
The district court found that Russell failed to establish a
nonfrivolous issue to appeal, because the one potential issue
to appeal would be that the sentence was excessive. The
court noted that Russell was aware the court was not likely
to impose a prison sentence of more than 70 years, that the
sentence he received did not exceed that number, and that the
sentence was well below the statutory maximum sentence of
life imprisonment. The court additionally found that Russell
failed to prove he informed trial counsel that he was interested
in an appeal. The court observed there was no evidence, other
than Russell’s deposition testimony, that a letter directing trial
counsel to file an appeal was actually mailed. It also relied
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. RUSSELL
Cite as 308 Neb. 499on trial counsel’s testimony that he never received any oral or
written communication from Russell.
ASSIGNMENT OF ERROR
Russell assigns that the district court erred in denying
Russell’s amended motion for postconviction relief, because
counsel was ineffective by failing to file a direct appeal at
Russell’s request within the 30-day timeframe of Russell’s
sentencing.
STANDARD OF REVIEW
[1-3] Appellate review of a claim of ineffective assistance
of counsel is a mixed question of law and fact. 1 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. 2 With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington, 3 an appellate court
reviews such legal determinations independently of the lower
court’s decision. 4
[4] In an evidentiary hearing on a motion for postconviction
relief, the trial judge, as the trier of fact, resolves conflicts in
the evidence and questions of fact. 5
ANALYSIS
[5,6] Russell seeks postconviction relief in the form of a
new direct appeal, based on allegations of ineffective assist­
ance of trial counsel. Postconviction relief is a very nar-
row category of relief, available only to remedy prejudicial
1
State v. Dalton, 307 Neb. 465, 949 N.W.2d 752 (2020).
2
Id.3
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
4
State v. Dalton, supra note 1.
5
Id.- 506 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. RUSSELL
Cite as 308 Neb. 499constitutional violations that render the judgment void or void-
able. 6 To establish a right to postconviction relief based on a
claim of ineffective assistance of counsel, the defendant has
the burden, in accordance with Strickland, 7 to show that coun-
sel’s performance was deficient; that is, counsel’s perform­ance
did not equal that of a lawyer with ordinary training and skill
in criminal law. 8 Next, the defendant must show that coun-
sel’s deficient performance prejudiced the defense in his or
her case. 9
[7-9] The two prongs of the test for ineffective assistance of
counsel may be addressed in either order, and the entire inef-
fectiveness analysis should be viewed with a strong presump-
tion that counsel’s actions were reasonable. 10 To show that
counsel’s performance was deficient, a defendant must show
that counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. 11 To show preju-
dice, the defendant must demonstrate a reasonable probability
that but for counsel’s deficient performance, the result of the
proceeding would have been different. 12 A reasonable prob-
ability is a probability sufficient to undermine confidence in
the outcome. 13
[10] In order to obtain a new direct appeal as postconviction
relief, the defendant must show, by a preponderance of the evi-
dence, that the defendant was denied his or her right to appeal
due to the negligence or incompetence of counsel, and through
no fault of his or her own. 14
6
Id.7
Strickland v. Washington, supra note 3.
8
State v. Dalton, supra note 1.
9
Id.10
State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).
11
State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).
12
State v. Weathers, supra note 10.
13
Id.14
State v. Curtright, 262 Neb. 975, 637 N.W.2d 599 (2002).
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STATE v. RUSSELL
Cite as 308 Neb. 499[11-13] On the deficiency prong, the U.S. Supreme Court
has said that a lawyer who disregards specific instructions from
the defendant to file a notice of appeal acts in a manner that
is professionally unreasonable. 15 But the U.S. Supreme Court
has rejected a bright-line rule that counsel is per se deficient
by failing to automatically file a notice of appeal unless the
defendant specifically instructs counsel not to. 16 Instead, for
cases where the defendant neither instructs counsel to file an
appeal nor asks that an appeal not be taken, the Court adopted
in Roe v. Flores-Ortega 17 a reasonableness inquiry for the defi-
ciency prong that considers whether counsel consulted with
the defendant and, if not, whether that failure to consult was
deficient performance.
[14] On the prejudice prong of the ineffective assistance
analysis seeking a new direct appeal, the U.S. Supreme Court
has said that when counsel’s constitutionally deficient perform­
ance deprives a defendant of an appeal that the defendant
otherwise would have taken, such a denial of a critical stage
of the judicial proceedings is one of the extreme failures of
performance that demands a presumption of prejudice. 18 We
have similarly articulated that after a trial, conviction, and sen-
tencing, 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. 19
[15] But the U.S. Supreme Court has explained, with regard
to the prejudice prong in an ineffective assistance claim seek-
ing a new direct appeal, that it is a “critical requirement
that counsel’s deficient performance must actually cause the
15
See Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d
985 (2000).
16
See id.17
Id.18
See id. See, also, State v. Assad, supra note 11.
19
State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000).
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STATE v. RUSSELL
Cite as 308 Neb. 499forfeiture of the defendant’s appeal.” 20 Thus, in Peguero v.
United States, 21 the Court held that the defendant did not
sustain his burden to demonstrate he was prejudiced by trial
counsel’s deficient failure to inform him of his right to appeal,
when the defendant had actual knowledge of the right to appeal
and did not request that trial counsel file an appeal. Discussing
Peguero in Flores-Ortega, the Court indicated that in such cir-
cumstances, an inquiry into whether counsel was deficient for
failing to consult with the defendant as to the right to appeal
is unnecessary. 22
To the extent Russell’s motion attempted to allege that trial
counsel’s performance was deficient by failing to advise him
of the right to appeal, he was not prejudiced by this failure,
because he admitted he had actual knowledge from other
sources of the right to appeal within 30 days. Russell’s post-
conviction claim correctly focused instead on trial counsel’s
alleged failure to timely file an appeal despite Russell’s alleged
request that trial counsel do so.
[16,17] It is fundamental to a claim of ineffective assist­
ance of counsel based on failure to appeal that the defendant
directed that such appeal be filed. 23 Here, the court found
that Russell did not direct trial counsel to file a direct appeal.
Regardless of the form of the evidence presented on that
question of fact, 24 we review the district court’s findings for
clear error. 25 Where competent evidence supports the district
court’s findings, the appellate court will not substitute its
factual findings for those of the district court. 26 The district
20
Roe v. Flores-Ortega, supra note 15, 528 U.S. at 484.
21
Peguero v. United States, 526 U.S. 23, 119 S. Ct. 961, 143 L. Ed. 2d 18(1999).
22
Roe v. Flores-Ortega, supra note 15.
23
See State v. Trotter, supra note 19.
24
See Quarles v. Fuqua Industries, Inc., 504 F.2d 1358 (10th Cir. 1974).
25
State v. Dalton, supra note 1.
26
Fitzke v. City of Hastings, 255 Neb. 46, 582 N.W.2d 301 (1998).
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. RUSSELL
Cite as 308 Neb. 499court’s finding that Russell did not direct trial counsel to file
a direct appeal is supported by competent evidence and is not
clearly wrong.
[18,19] In an evidentiary hearing for postconviction relief,
the postconviction trial judge, as the trier of fact, resolves
conflicts in evidence and questions of fact, including witness
credibility and the weight to be given a witness’ testimony. 27
The weight to be accorded to testimony given by deposi-
tion, as compared to that given orally in court, must depend,
not upon its form, but upon all the circumstances affecting
its credibility. 28
[20-22] While testimony is a kind of evidence, a defendant
who relies upon his or her testimony with little or no supporting
documentary evidence does so at the risk of nonpersuasion. 29
Triers of fact have the right to test the credibility of witnesses
by their self-interest and to weigh it against the evidence, or
the lack thereof. 30 Evidence not directly contradicted is not
necessarily binding on the triers of fact, and may be given
no weight where it is inherently improbable, unreasonable,
self-contradictory, or inconsistent with facts or circumstances
in evidence. 31
The district court, in evaluating Russell’s deposition tes-
timony in lieu of live testimony, found Russell not credible
in his claims of having left voicemails and sending a let-
ter to trial counsel requesting that trial counsel file a direct
appeal. The court weighed Russell’s self-interest in mak-
ing these assertions against the lack of evidence supporting
them and the surrounding circumstances suggesting that no
such communications were actually made. While trial counsel
27
State v. Dalton, supra note 1.
28
Daniel A. Morris, Nebraska Trials § 21:21 (2020).
29
See Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019). See,
also, State v. Dalton, supra note 1.
30
Burgardt v. Burgardt, supra note 29.
31
Id.- 510 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. RUSSELL
Cite as 308 Neb. 499acknowledged that it was “possible” Russell left a voicemail
requesting he file an appeal, trial counsel generally did not
recall such a request, via voicemail or letter, and trial counsel
did not indicate a reason why he would have no memory of
such a request had it in fact been made. At the same time,
Russell failed to produce any record of the alleged telephone
call, despite the availability of call logs. Russell also failed to
produce testimony or documentation that the letter attached
to his deposition had been properly addressed, stamped, and
mailed, and he gave no explanation for this failure.
Based on the record before us, we conclude that the district
court did not clearly err in finding that Russell did not direct
trial counsel to file a direct appeal. Because the court correctly
found trial counsel was not asked to file an appeal, trial coun-
sel was not deficient in allegedly not doing so. In view of this
disposition, we need not consider prejudice.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.