State v. Marks , 286 Neb. 166 ( 2013 )

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plea was taken. Dixon contends that the objections she made
at her enhancement hearing related to her past convictions
demonstrated to the court that certain issues on appeal could
affect the enhancement of her sentence. Dixon argues here that
the court should have waited until those matters were decided
before sentencing her.
[8] The district court confirmed with Dixon, however, that
she wanted to be sentenced on the same day her plea was
taken and that she had discussed this with counsel. “It has long
been the rule in this state that a party cannot complain of error
which he [or she] has invited the court to commit.”11 Dixon’s
final assignment of error is without merit.
CONCLUSION
We affirm Dixon’s conviction and sentence.
Affirmed.
McCormack, J., participating on briefs.
11
Norwest Bank Neb. v. Bowers, 246 Neb. 83, 85, 516 N.W.2d 623, 624
(1994).
State of Nebraska, appellee, v.
Jason L. Marks, appellant.
___ N.W.2d ___
Filed June 28, 2013. No. S-12-931.
1. Postconviction: Appeal and Error. In appeals from postconviction proceedings,
an appellate court independently resolves questions of law.
2. Postconviction: Constitutional Law. A trial court’s ruling that a petitioner’s
allegations are refuted by the record or are too conclusory to demonstrate a
violation of the petitioner’s constitutional rights is not a finding of fact—it is a
determination, as a matter of law, that the petitioner has failed to state a claim for
postconviction relief.
3. Postconviction: Constitutional Law: Appeal and Error. In appeals from post-
conviction proceedings, an appellate court reviews de novo a determination that
the defendant failed to allege sufficient facts to demonstrate a violation of his or
her constitutional rights or that the record and files affirmatively show that the
defendant is entitled to no relief.
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STATE v. MARKS 167
Cite as 286 Neb. 1664. Postconviction. The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et
seq. (Reissue 2008 & Cum. Supp. 2012), provides that 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 constitutional rights such
that the judgment was void or voidable.
5. Postconviction: Constitutional Law: Proof. In a motion for postconviction
relief, the defendant must allege facts which, if proved, constitute a denial or
violation of his or her rights under the U.S. or Nebraska Constitution, causing the
judgment against the defendant to be void or voidable.
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 infringement of the defendant’s rights under the Nebraska
or federal Constitution.
7. Postconviction: Proof. 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 eviden-
tiary hearing.
8. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance
of counsel claim alleges a violation of the fundamental constitutional right to a
fair trial.
9. Effectiveness of Counsel: Proof: 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 performance was deficient and that this deficient performance actu-
ally prejudiced the defendant’s defense. An appellate court may address the two
prongs of this test, deficient performance and prejudice, in either order.
10. Effectiveness of Counsel. In addressing the “prejudice” component of the
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984), test, a court focuses on whether a trial counsel’s deficient performance
renders the result of the trial unreliable or the proceeding fundamentally unfair.
11. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice under
the prejudice component of the Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), test, there must be a reasonable probability
that but for the petitioner’s 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.
12. Effectiveness of Counsel: Appeal and Error. When a case presents lay-
ered claims of ineffective assistance of counsel, an appellate court determines
whether the petitioner was prejudiced by his or her appellate counsel’s failure to
raise issues related to his or her trial counsel’s performance. If the trial counsel
did not provide ineffective assistance, then the petitioner cannot show prejudice
from the appellate counsel’s alleged ineffectiveness in failing to raise the issue
on appeal.
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
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Thomas J. Garvey for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Jason L. Marks was convicted of first degree murder and
use of a firearm to commit a felony. He was sentenced to life
imprisonment for first degree murder and to a consecutive term
of 5 to 10 years’ imprisonment on the firearm conviction. We
affirmed his convictions in State v. Marks, 248 Neb. 592, 537
N.W.2d 339 (1995) (Marks I), but his sentence on the firearm
conviction was twice vacated, and the cause remanded to the
district court to correct the amount of credit for time served.
See, also, State v. Marks, 265 Neb. xxii (No. S-02-1320, Apr.
9, 2003). Marks was represented by the same counsel at trial
and on these appeals. Marks filed an amended motion for post-
conviction relief, which the district court denied without an
evidentiary hearing. Marks appeals. Marks is represented by
new counsel in the current postconviction case. Because Marks
failed to allege facts that show he was entitled to relief and the
record refutes his claims, we affirm.
STATEMENT OF FACTS
On May 9, 1994, Marks was charged by information with
first degree murder and use of a firearm to commit a felony
in connection with the shooting death of Arthur Godbolt.
The facts of Marks’ underlying case are set forth in detail in
Marks I.
On the night of the shooting, Marks, Wade Stewart, and
Shawn King were driving a vehicle owned by Stewart’s mother.
Stewart was driving, King was in the front passenger seat, and
Marks was in the back seat. In Marks I, we stated that Marks
testified that while they were driving,
he saw the victim’s car and saw people standing by it.
As they started driving toward the victim’s car, King
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Cite as 286 Neb. 166started firing, so Marks . . . opened fire. Marks said that
after he saw the victim’s car, he figured that his group
would be shot at. He claimed that it was dark and that he
did not see anyone in the area where he was aiming. He
stated that after King started firing, he saw people by the
car run back toward the sidewalk and the house, and he
claimed that he was not thinking, but was just shooting at
the car. As they drove away, Marks looked back and said,
“Somebody fell.” He thought he might have accidentally
hit someone.
248 Neb. at 596, 537 N.W.2d at 343.
After a jury trial, Marks was found guilty on both counts.
On November 30, 1994, he was sentenced to life imprison-
ment for first degree murder and to a consecutive term of 5
to 10 years’ imprisonment on the firearm conviction. Marks’
convictions were affirmed in Marks I, but we twice vacated
the sentence for the use of a firearm conviction and remanded
the cause to the district court to correct the amount of credit
for time served. Marks was represented by the same counsel at
trial and on these appeals.
Marks filed an amended motion for postconviction relief
by new counsel on February 22, 2012. This postconviction
proceeding gives rise to the instant appeal. In his amended
motion, Marks alleged that he was entitled to postconviction
relief based on what he styled as “judicial misconduct,” pri-
marily because the district court excused a juror and replaced
him with an alternate juror when Marks was not present. Marks
styled additional claims as “prosecutorial misconduct,” primar-
ily alleging that the prosecution failed to advise defense coun-
sel of the existence of evidence regarding a bullet hole in the
vehicle in which Marks was riding on the night of the shooting.
Marks alleged various other claims based on purported denial
of effective assistance of counsel, including that trial counsel
failed to investigate aspects of the case, failed to call certain
witnesses, failed to file motions in limine and to suppress,
failed to request an intoxication defense instruction, and failed
to object to proposed jury instructions. Marks alleged that his
appellate counsel was ineffective because he failed to raise the
foregoing issues on direct appeal.
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In its September 14, 2012, order, the district court denied
Marks’ motion for postconviction relief without an evidentiary
hearing. The district court reasoned that Marks’ claims of inef-
fective assistance of trial and appellate counsel were without
merit generally because Marks failed to allege sufficient facts
to show prejudice or the record refuted his claims.
Marks appeals.
ASSIGNMENT OF ERROR
Marks claims, restated, that the district court erred when it
denied his motion for postconviction relief without an eviden-
tiary hearing.
STANDARD OF REVIEW
[1-3] In appeals from postconviction proceedings, we inde-
pendently resolve questions of law. State v. Edwards, 284
Neb. 382, 821 N.W.2d 680 (2012). A trial court’s ruling that
the petitioner’s allegations are refuted by the record or are
too conclusory to demonstrate a violation of the petitioner’s
constitutional rights is not a finding of fact—it is a determina-
tion, as a matter of law, that the petitioner has failed to state a
claim for postconviction relief. Id. Thus, in appeals from post-
conviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts
to demonstrate a violation of his or her constitutional rights or
that the record and files affirmatively show that the defendant
is entitled to no relief. State v. Watkins, 284 Neb. 742, 825
N.W.2d 403 (2012); State v. Edwards, supra.
ANALYSIS
Marks claims on appeal that the district court erred when it
denied postconviction relief without conducting an evidentiary
hearing. We find no merit to Marks’ assignment of error.
[4,5] The Nebraska Postconviction Act, Neb. Rev. Stat.
§ 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2012), provides
that 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 constitutional rights
such that the judgment was void or voidable. State v. Molina,
279 Neb. 405, 778 N.W.2d 713 (2010); State v. York, 278 Neb.
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Cite as 286 Neb. 166306, 770 N.W.2d 614 (2009). Thus, in a motion for postconvic-
tion 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. Gunther, 278
Neb. 173, 768 N.W.2d 453 (2009); State v. Jim, 275 Neb. 481,
747 N.W.2d 410 (2008).
[6,7] 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 fed-
eral Constitution. State v. Watkins, 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.
In his amended motion for postconviction relief, Marks
styled his allegations as “judicial misconduct,” “prosecutorial
misconduct,” and ineffective assistance of trial and appellate
counsel. However, upon closer reading of the motion, all of
his allegations are more accurately characterized as claims of
ineffective assistance of counsel. Accordingly, our analysis is
limited to the principles applicable to ineffective assistance of
counsel claims. In particular, we examine the allegations in the
motion to see if there is an alleged factual basis on which a
court could conclude that the judgment was void or voidable.
We also examine the record to determine whether the district
court was correct when it determined that Marks was entitled
to no relief.
[8,9] A proper ineffective assistance of counsel claim
alleges a violation of the fundamental constitutional right to
a fair trial. See State v. Robinson, 285 Neb. 394, 827 N.W.2d
292 (2013). 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. Robinson, supra. An appellate court may
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address the two prongs of this test, deficient performance and
prejudice, in either order. Id.
[10,11] In addressing the “prejudice” component of the
Strickland test, a court focuses on whether a trial counsel’s
deficient performance renders the result of the trial unreliable
or the proceeding fundamentally unfair. Id. To show prejudice
under the prejudice component of the Strickland test, there
must be a reasonable probability that but for the petitioner’s
counsel’s deficient performance, the result of the proceeding
would have been different. State v. Robinson, supra. A reason-
able probability is a probability sufficient to undermine confi-
dence in the outcome. Id.
[12] Because Marks’ trial counsel was also his appellate
counsel, this is his first opportunity to assert claims that
his trial counsel provided ineffective assistance. See State v.
Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). These claims
are layered ineffectiveness claims—i.e., a claim that his appel-
late counsel was ineffective for failing to raise claims of his
trial counsel’s ineffective assistance. When a case presents
layered claims of ineffective assistance of counsel, we deter-
mine whether the petitioner was prejudiced by his or her appel-
late counsel’s failure to raise issues related to his or her trial
counsel’s performance. Id. See, also, State v. Iromuanya, 282
Neb. 798, 806 N.W.2d 404 (2011). If the trial counsel did not
provide ineffective assistance, then the petitioner cannot show
prejudice from the appellate counsel’s alleged ineffectiveness
in failing to raise the issue on appeal. See id.As noted, we treat Marks’ numerous allegations in his
motion as being in the nature of ineffective assistance of coun-
sel. So treated, Marks claims in excess of 30 trial and appel-
late counsel errors. We have reviewed the entirety of Marks’
motion and the record and find no claim merits relief and
therefore conclude that the district court did not err when it
denied Marks’ motion for postconviction relief without an evi-
dentiary hearing. In the remainder of this opinion, we confine
our remarks to several claims by way of illustration.
Marks alleged in his amended motion that he is entitled
to postconviction relief because the district court excused a
sitting juror and replaced him with an alternate juror when
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Cite as 286 Neb. 166Marks was not present. In substance, Marks claims that his trial
counsel failed to object and to insist that Marks be present for
this development.
Although a defendant has a right to be present at all critical
stages of a trial, Rushen v. Spain, 464 U.S. 114, 104 S. Ct. 453,
78 L. Ed. 2d 267 (1983), the U.S. Supreme Court has stated
that a defendant does not have a right to be present when his or
her “presence would be useless,” Snyder v. Massachusetts, 291
U.S. 97, 106, 54 S. Ct. 330, 78 L. Ed. 674 (1934), overruled
in part on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.
Ct. 1489, 12 L. Ed. 2d 653 (1964). A due process right to be
present is not absolute; rather, “the presence of a defendant is a
condition of due process to the extent that a fair and just hear-
ing would be thwarted by his absence.” 291 U.S. at 107-08.
See, also, State v. Irby, 170 Wash. 2d 874, 246 P.3d 796 (2011)
(cases collected regarding presence of defendant).
In this case, a circumstance developed whereby a juror
would have suffered a harm had he continued to serve. The dis-
trict court assembled counsel and explained the situation. All
counsel agreed to excuse the juror prior to deliberations and
replace him with an alternate juror who had been duly selected.
The alternate was legally capable of serving in the place of the
excused juror. See Neb. Rev. Stat. § 29-2004 (Reissue 2008).
A just hearing was not thwarted by Marks’ absence, and his
presence was not required; therefore, trial counsel was not
deficient when he did not insist on Marks’ presence.
Marks also alleged that his trial counsel was unaware prior
to trial of evidence regarding a bullet hole in the hood of the
vehicle in which Marks was a passenger. It appears that Marks
believes that this evidence would establish a self-defense claim
and that his trial counsel was ineffective for not objecting to
the introduction of this evidence at trial or for not request-
ing a recess or moving for a continuance or a mistrial based
on the introduction of this evidence. The record shows that
during trial, witnesses were questioned regarding the bullet
hole found in the vehicle, as well as other ballistic evidence.
Questioning was done by both the prosecutor and defense
counsel. Thus, even if Marks’ trial counsel was not aware
of this evidence prior to trial, trial counsel was aware of the
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evidence at some point during trial, and Marks was not preju-
diced by its introduction. See State v. Lotter, 255 Neb. 456,
586 N.W.2d 591 (1998), modified 255 Neb. 889, 587 N.W.2d
673 (1999) (stating that no violation under Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), exists
when material evidence is disclosed prior to end of trial).
Indeed, the introduction of this particular evidence arguably
was favorable to Marks. The record refutes a claim of preju-
dice alleged by Marks.
Marks further alleged in his amended motion that his trial
counsel was ineffective for failing to investigate various
aspects of the case. However, he did not allege any specific
facts showing what such an investigation would have revealed,
what exculpatory evidence would have been discovered, or
how such an investigation would have changed the outcome
of the trial. Marks is not entitled to postconviction relief on
this allegation.
Marks alleged that his trial counsel was ineffective for
failing to call certain individuals as witnesses. In assessing
postconviction claims that trial counsel was ineffective for
failing to call a particular witness, we have upheld the dis-
missal without an evidentiary hearing where the motion did
not include specific allegations regarding the testimony which
the witness would have given if called. See, State v. McGhee,
280 Neb. 558, 787 N.W.2d 700 (2010); State v. Davlin, 277
Neb. 972, 766 N.W.2d 370 (2009). In his amended motion,
Marks did not specifically allege what the testimony of these
witnesses would have been if they had been called. Marks’
allegations in connection with this claim are conclusory, and
he failed to allege sufficient facts which, if proved, would
establish a reasonable probability that the outcome of his case
would have been different if his trial counsel had called or
interviewed the witnesses he mentions. Marks did not satisfy
his burden to allege facts amounting to prejudice with respect
to this allegation.
Marks also alleged that trial counsel was ineffective when
he failed to file a motion to suppress a statement Marks had
made to the authorities. The record refutes this allegation,
because a Miranda rights advisory form was received into
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Cite as 286 Neb. 166evidence and reflects that Marks voluntarily waived his right
to counsel.
Marks also alleged that his trial counsel was ineffective
when he failed to request an intoxication defense instruction.
The record refutes this allegation, because there was no evi-
dence at trial, including Marks’ own testimony, to indicate that
Marks was intoxicated on the night of the shooting.
Finally, Marks alleged that his trial counsel was ineffective
when he failed to object to proposed jury instructions. This
allegation is conclusory; Marks did not specify which jury
instructions his trial counsel should have objected to or how
such an objection would have resulted in a different outcome
of his case. Marks failed to allege facts amounting to prejudice
with respect to this allegation.
As explained above, Marks’ allegations of ineffective
assist­ nce of trial counsel are conclusory, are refuted by the
a
record, and are not pleaded in enough detail to warrant an
evidentiary hearing. We therefore conclude that Marks did
not allege sufficient facts which, if proved, would establish
a reasonable probability that the outcome of his case would
have been different but for his trial counsel’s alleged defi-
cient performance.
As stated above, Marks’ trial counsel was also his appellate
counsel, and therefore, we must determine whether Marks was
prejudiced by his appellate counsel’s alleged failure to raise on
appeal issues related to his trial counsel’s effectiveness at trial.
Based on our conclusion that Marks’ trial counsel was not inef-
fective, we conclude that Marks cannot show prejudice from
his appellate counsel’s alleged ineffectiveness in failing to raise
these issues on direct appeal. See State v. Edwards, 284 Neb.
382, 821 N.W.2d 680 (2012).
CONCLUSION
Marks’ motion for postconviction relief does not allege facts
which constitute a denial of his constitutional rights, and as
to certain allegations, the record refutes his claims. Therefore,
the district court did not err when it denied Marks’ motion for
postconviction relief without an evidentiary hearing.
Affirmed.