State v. Combs , 308 Neb. 587 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/29/2021 08:08 AM CDT
    - 587 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. COMBS
    Cite as 
    308 Neb. 587
    State of Nebraska, appellee, v.
    Patrick J. Combs, appellant.
    ___ N.W.2d ___
    Filed March 5, 2021.    No. S-20-335.
    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. When reviewing a claim of ineffective assistance of counsel, an
    appellate court reviews the factual findings of the lower court for clear
    error. 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 independently of
    the lower court’s decision.
    2. 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.
    3. 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.
    4. 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.
    5. 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.
    - 588 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. COMBS
    Cite as 
    308 Neb. 587
    6. Effectiveness of Counsel: Appeal and Error. Where the defendant
    has provided specific instructions to his or her counsel to file a notice
    of appeal, counsel’s failure to follow those instructions is deficient
    performance. On the other hand, where the defendant has explicitly
    instructed his or her counsel not to file an appeal, the defendant cannot
    later complain that, by following his or her instructions, counsel per-
    formed deficiently.
    7. Effectiveness of Counsel: Intent: Appeal and Error. Where the
    defend­ant has not conveyed his or her intent with respect to an appeal
    either way, it must first be determined whether trial counsel consulted
    with the defendant about the appeal before a determination can be made
    about deficient performance.
    8. Effectiveness of Counsel: Appeal and Error: Words and Phrases. In
    the context of a claim of ineffectiveness of counsel, the term “consult”
    means advising the defendant about the advantages and disadvantages of
    taking an appeal and making a reasonable effort to discover the defend­
    ant’s wishes.
    9. Effectiveness of Counsel: Appeal and Error. If counsel has consulted
    with the defendant, then counsel performed deficiently only by failing to
    follow the defendant’s express instructions regarding an appeal.
    Appeal from the District Court for Lancaster County: Robert
    R. Otte, Judge. Affirmed.
    Candice C. Wooster, of Brennan & Nielsen Law Offices,
    P.C., for appellant.
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
    Funke, JJ.
    Heavican, C.J.
    INTRODUCTION
    Patrick J. Combs appeals from the district court’s denial, fol-
    lowing an evidentiary hearing, of his motion seeking postcon-
    viction relief. In that motion, Combs alleged that his counsel
    was ineffective for failing to file a direct appeal when directed
    to do so. We affirm.
    - 589 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. COMBS
    Cite as 
    308 Neb. 587
    BACKGROUND
    Combs was convicted in March 2018 for one count of theft
    by unlawful taking, one count of attempted theft by unlawful
    taking, and one count of abuse of a vulnerable adult. On May
    14, he was sentenced to 5 years’ probation. No direct appeal
    was filed.
    Combs subsequently filed a motion seeking postconviction
    relief, alleging that his trial counsel was ineffective for failing
    to file an appeal. An evidentiary hearing was held on Combs’
    motion on the question of whether counsel was ineffective
    for failing to file an appeal. At that hearing, depositions
    of both Combs and his trial counsel, Robert Creager, were
    offered into evidence. Those depositions reveal the following
    timeline relevant to the issues raised by Combs’ postconvic-
    tion motion.
    On May 15, 2018, Creager emailed a billing statement to
    Combs. In his email, Creager stated that “[w]ith 20K still in
    trust, the balance due would be around $16k. I would accept
    a $5k discount if we do the appeal for a flat fee of $10k. The
    [$]5k would be payable now, and the $10K would be payable
    when the Appellant’s brief date is set.”
    On May 29, 2018, Combs emailed Creager, indicating that
    he was “inclined to pursue an appeal,” but that his wife had
    reservations. Combs then asked several questions relating to
    the appeal. Combs ended the email by stating that “[w]e are
    sending you $5000 this week. Our schedule is pretty hectic this
    week[,] and we will be out of town next week[,] so coming
    down to your office might be tough, but we can certainly talk
    by phone when you are available.”
    Combs and Creager agree that they spoke on June 8, 2018.
    Combs testified that during the conversation, he told Creager
    that he wanted to appeal. Combs indicated in his deposition
    that after telling Creager to appeal, he and his wife “cele­
    brated” that decision.
    Conversely, Creager testified that he received no direc-
    tion to appeal during that call, but simply answered more
    - 590 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. COMBS
    Cite as 
    308 Neb. 587
    questions regarding the appeal process, including informing
    Combs that he could file the appeal and later withdraw it if
    he no longer wanted to pursue the appeal. Creager alleges that
    he ended the conversation by asking Combs to let him know
    by the following Monday, June 11, 2018, whether he wanted
    to appeal and that he, Creager, checked his email and phone
    messages multiple times on that Monday to ensure he did not
    miss a message from Combs. Receiving none, Creager did not
    file an appeal.
    A check for $5,000 was apparently received by the book-
    keeper at Creager’s law firm on June 11, 2018, though Creager
    testified that he had no personal knowledge of its receipt.
    Neither the check, nor a copy of the canceled check, is part of
    our record.
    Combs contacted Creager on June 14, 2018, the day after the
    appeal deadline had passed, to ask whether the appeal had been
    filed. Combs subsequently filed this postconviction motion.
    Following the hearing, the district court denied the motion
    for postconviction relief. In so doing, it made findings of fact
    that it believed Creager’s testimony over Combs’ testimony,
    both because it found Creager more credible than Combs
    and because Combs’ wife offered no testimony corroborating
    Combs’ assertion that she was aware Creager had been directed
    to file an appeal. The district court further rejected Combs’
    claim that Creager had an obligation to confirm his belief that
    Combs did not want to pursue an appeal. It found that the pay-
    ment of $5,000, particularly on the facts presented, did not
    support an express direction to Creager that an appeal should
    be filed on Combs’ behalf.
    Combs appeals.
    ASSIGNMENT OF ERROR
    On appeal, Combs assigns three assignments of error that
    can be consolidated as one: The district court erred in find-
    ing that counsel was not ineffective by failing to file a direct
    appeal.
    - 591 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. COMBS
    Cite as 
    308 Neb. 587
    STANDARD OF REVIEW
    [1,2] Appellate review of a claim of ineffective assistance of
    counsel is a mixed question of law and fact. 1 When reviewing
    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 preju-
    dice 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 deci-
    sion. 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
    Combs assigns that the district court erred in not finding
    that his counsel was ineffective for failing to file a direct
    appeal. He makes three arguments in support of this conclu-
    sion: (1) that counsel erred in not filing an appeal when he
    was requested to do so, (2) that counsel erred in not following
    up with Combs regarding the filing of an appeal, and (3) that
    counsel erred in failing to appeal even after receiving payment
    for such an appeal.
    [3-5] Postconviction relief is a very narrow category of
    relief, available only to remedy prejudicial constitutional
    violations that render the judgment void or voidable. 6 To
    establish a right to postconviction relief based on a claim of
    ineffective assistance of counsel, the defendant has the bur-
    den, in accordance with Strickland, 7 to show that counsel’s
    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.
    6
    
    Id.
    7
    Strickland v. Washington, 
    supra note 3
    .
    - 592 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. COMBS
    Cite as 
    308 Neb. 587
    perform­ance was deficient; that is, counsel’s performance did
    not equal that of a lawyer with ordinary training and skill in
    criminal law. Next, the defendant must show that counsel’s
    deficient performance prejudiced the defense in his or her
    case. 8 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 pre-
    sumed and counsel will be deemed ineffective, thus entitling
    the defendant to postconviction relief. 9
    [6] Where the defendant has provided specific instructions
    to his or her counsel to file a notice of appeal, counsel’s failure
    to follow those instructions is deficient performance. 10 On the
    other hand, where the defendant has explicitly instructed his
    or her counsel not to file an appeal, the defendant cannot later
    complain that, by following his or her instructions, counsel
    performed deficiently. 11
    [7-9] Where the defendant has not conveyed his or her
    intent with respect to an appeal either way, it must first be
    determined whether trial counsel consulted with the defendant
    about the appeal before a determination can be made about
    deficient performance. 12 In this context, the term “consult”
    means advising the defendant about the advantages and dis­
    advantages of taking an appeal and making a reasonable effort
    to discover the defendant’s wishes. 13 If counsel has consulted
    with the defendant, then counsel performed deficiently only
    by failing to follow the defendant’s “express instructions”
    regarding an appeal. 14
    8
    State v. Dalton, 
    supra note 1
    .
    9
    
    Id.
    10
    See Roe v. Flores-Ortega, 
    528 U.S. 470
    , 
    120 S. Ct. 1029
    , 
    145 L. Ed. 2d 985
     (2000).
    11
    See 
    id.
    12
    See 
    id.
    13
    
    Id.
    14
    See 
    id.,
     
    528 U.S. at 478
    .
    - 593 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. COMBS
    Cite as 
    308 Neb. 587
    Failing to File Appeal Upon
    Request to Do So.
    Combs first asserts that he instructed Creager to file an
    appeal during their telephone conversation on June 8, 2018,
    and that Creager was ineffective for failing to do so.
    In an evidentiary hearing for postconviction relief, the post-
    conviction trial judge, as the trier of fact, resolves conflicts
    in the evidence and questions of fact, including witness cred-
    ibility and the weight to be given a witness’ testimony. 15 And
    when reviewing a claim of ineffective assistance of counsel, an
    appellate court reviews the factual findings of the lower court
    for clear error. 16
    Combs and Creager are in agreement that they spoke about
    a possible appeal on June 8, 2018. Their testimonies differ in
    that Combs testified he told Creager he wanted to appeal, while
    Creager testified that Combs said he still needed to talk with
    his wife about it.
    The record demonstrates there was a conflict between
    Combs’ testimony that he directed Creager to appeal and
    Creager’s testimony that he received no such direction. In this
    instance, the district court explicitly found Creager’s testimony
    to be more credible.
    Having reviewed the record, and given deference to the
    district court’s findings of fact, we find no clear error in the
    court’s findings. Creager was not deficient in failing to file
    an appeal that the district court determined Creager was not
    directed to file. Combs’ argument to the contrary is with-
    out merit.
    Failing to Follow Up Regarding
    Filing of Appeal.
    Combs next argues that Creager was ineffective in failing
    to follow up with him regarding whether he wished to file
    an appeal.
    15
    State v. Dalton, 
    supra note 1
    .
    16
    
    Id.
    - 594 -
    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. COMBS
    Cite as 
    308 Neb. 587
    We addressed similar facts in State v. Dalton. 17 There, the
    defendant argued that his counsel was ineffective, not only
    by failing to file a direct appeal, but also by failing to obtain
    an “explicit directive” from defendant regarding an appeal. 18
    We rejected such a burden on trial counsel, noting that “[i]t is
    simply not under defense counsel’s power to force a client to
    provide an explicit response to inquiries regarding the client’s
    right to appeal.” 19
    Here, Combs argues that Creager should have followed up
    with him between June 8 and 13, 2018, to determine whether
    Combs wanted to appeal. The record shows that Combs and
    Creager had multiple conversations, even prior to his sentenc-
    ing, regarding a possible appeal and that Combs kept putting
    off the decision, asking more questions, and indicating that
    his wife needed to be convinced. The district court found as
    credible Creager’s testimony that because the deadline was
    approaching, he told Combs to let him know by June 11 if he
    wanted to file an appeal.
    These facts show the difficulty with placing such a burden
    on defense counsel. As we recognized in Dalton, it is not
    within counsel’s power to force a defendant to give an explicit
    response on the issue of an appeal. 20 U.S. Supreme Court
    case law explains that the failure to file an appeal after one
    is requested is deficient conduct and that the failure to file an
    appeal after being told the defendant did not wish to appeal is
    not deficient conduct. 21 In such instances where no direction is
    given, as is the situation presented here, counsel must con-
    sult with the defendant as to the topic of an appeal, which
    includes “advising the defendant about the advantages and
    17
    
    Id.
    18
    Id. at 472, 949 N.W.2d at 758.
    19
    Id.
    20
    State v. Dalton, 
    supra note 1
    .
    21
    See Roe v. Flores-Ortega, 
    supra note 10
    .
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. COMBS
    Cite as 
    308 Neb. 587
    disadvantages of taking an appeal, and making a reasonable
    effort to discover the defendant’s wishes.” 22
    In this case, there is no dispute that Creager consulted with
    Combs about Combs’ right to appeal and that Combs was to
    contact Creager in order to ensure that an appeal was filed.
    It was Combs’ responsibility to request that Creager file an
    appeal. As we noted above, the district court found that Combs
    made no such request.
    There is no merit to Combs’ argument that Creager was
    deficient in failing to follow up with Combs with respect to the
    filing of an appeal.
    Failing to Appeal After Receipt
    of Payment for Appeal.
    Finally, Combs argues that Creager had notice Combs
    wished to file an appeal, because Combs paid $5,000 for an
    appeal, and that the failure to file the appeal after accepting
    payment was deficient performance.
    As an initial matter, despite Combs’ assertion to the contrary,
    the record is not clear that the $5,000 paid by Combs was for
    payment of an appeal. The emails between Combs and Creager
    regarding payment are not clear in stating that $5,000 was due
    for the filing of a notice of appeal. A copy of the check is not
    part of the record such that it might indicate on its face that the
    check was for an appeal.
    Moreover, Combs indicated in a May 29, 2018, email that
    he would be sending a check for $5,000. But by his own tes-
    timony, Combs did not inform Creager until June 8 that he
    wished to appeal. Given this evidence and our standard of
    review, the trial court’s finding of facts regarding the $5,000
    payment are not clear error.
    The record establishes that Creager consulted with Combs
    about the appeal. In such an instance, only the failure to com-
    ply with the “express instructions” given by Combs would
    22
    
    Id.,
     
    528 U.S. at 478
    .
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    STATE v. COMBS
    Cite as 
    308 Neb. 587
    constitute deficient conduct. 23 The payment of     $5,000, par-
    ticularly under the facts as noted above, did not   qualify as an
    express instruction.
    Creager was not deficient in failing to file a   direct appeal
    based upon the payment of $5,000 by Combs.          Combs’ final
    argument is without merit.
    CONCLUSION
    The order of the district court dismissing Combs’ motion for
    postconviction relief is affirmed.
    Affirmed.
    Papik and Freudenberg, JJ., not participating.
    23
    See 
    id.
                                

Document Info

Docket Number: S-20-335

Citation Numbers: 308 Neb. 587

Filed Date: 3/5/2021

Precedential Status: Precedential

Modified Date: 4/29/2021