State v. Harris , 294 Neb. 766 ( 2016 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. HARRIS
Cite as 294 Neb. 766
State of Nebraska, appellee, v.
Michael E. H arris, appellant.
___ N.W.2d ___
Filed September 16, 2016. No. S-15-332.
1. Postconviction: Evidence: Appeal and Error. In an evidentiary hear-
ing on a motion for postconviction relief, the trial judge, as the trier of
fact, resolves conflicts in the evidence and questions of fact. An appel-
late court upholds the trial court’s findings unless they are clearly erro-
neous. In contrast, an appellate court independently resolves questions
of law.
2. Effectiveness of Counsel: Appeal and Error. A claim that defense
counsel provided ineffective assistance presents 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.
3. Postconviction: Judgments: Appeal and Error. Whether a claim raised
in a postconviction proceeding is procedurally barred is a question of
law. When reviewing questions of law, an appellate court resolves the
questions independently of the lower court’s conclusion.
4. Effectiveness of Counsel: Proof. 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
counsel’s performance was deficient and that this deficient performance
actually prejudiced his or her defense. To show deficient performance,
a defendant must show that counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law in the area. To
show prejudice, the defendant must demonstrate reasonable probability
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that but for counsel’s deficient performance, the result of the proceeding
would have been different.
5. Postconviction: Evidence. When a court grants an evidentiary hearing
in postconviction proceedings, it is obligated to determine the issues and
make findings of fact and conclusions of law with respect thereto.
6. Judgments: Appeal and Error. The purpose of requiring factual find-
ings and conclusions of law is to facilitate appellate review.
7. Courts: Judgments: Appeal and Error. The sufficiency of a trial
court’s factual findings and legal conclusions will depend to a large
extent on the nature of the case and the assignments of error urged on
appeal. The court’s findings must be sufficient to address and resolve
all issues presented by the pleadings and to permit an appellate court to
reach all errors assigned on appeal.
8. Self-Defense: Statutes. The duty to retreat is spelled out in Neb. Rev.
Stat. § 28-1409(4)(b) (Reissue 2008), and the corollary privilege of non-
retreat is addressed in § 28-1409(4)(b)(i).
9. Self-Defense. Under Neb. Rev. Stat. § 28-1409(4)(b)(i) (Reissue 2008),
the privilege of nonretreat exists only in one’s dwelling or place of work.
10. Self-Defense: Words and Phrases. For purposes of Neb. Rev. Stat.
§ 28-1409 (Reissue 2008), the Legislature has defined “dwelling” as
“any building or structure, though movable or temporary, or a por-
tion thereof, which is for the time being the actor’s home or place
of lodging.”
11. Appeal and Error. An appellate court will not consider error which is
neither assigned nor discussed in an appellant’s initial brief.
12. Effectiveness of Counsel. Defense counsel does not perform in a defi-
cient manner simply by failing to make the State’s job more difficult.
13. Pleas. During a plea hearing, the court’s advisement regarding possible
penalties need not extend beyond reciting the range of possible penalties
for the charge to which a plea is entered.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
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STATE v. HARRIS
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Stacy, J.
I. NATURE OF CASE
Michael E. Harris appeals from the denial of postconviction
relief following an evidentiary hearing. Finding no error in the
district court’s ruling, we affirm.
II. BACKGROUND
1. Trial and Direct A ppeal
After a shooting death in 2004, Harris was charged in a
three-count information with first degree murder, use of a
deadly weapon to commit a felony, and possession of a deadly
weapon by a prohibited person. Harris pled guilty to possession
of a deadly weapon by a prohibited person and proceeded to
trial on the remaining two counts.
At trial, Harris admitted shooting Isice Jones on July 5,
2004, but claimed he did so in self-defense. On direct appeal,
we summarized the competing theories of the case in a memo-
randum opinion1 as follows:
The State’s theory of the case, as summarized, was that
Harris was dating a woman named Valerie Johnson.
Johnson had a daughter from a previous relationship
with a man named Nate Jackson, who was deceased.
According to the State, [Jones] was a friend of Jackson
and promised Jackson, before Jackson’s death, that [he]
would look after Jackson’s daughter. According to the
State’s theory, Harris resented the attention [Jones] paid
to Johnson and Jackson’s daughter. The State contended
that when [Jones] tried to visit Jackson’s daughter at
Harris’ residence on July 5, Harris assaulted [Jones], and
then shot and killed him.
The defense offered a theory of self-defense. The
defense contended that Harris was afraid of [Jones], that
[Jones] had made an angry telephone call to Johnson at
Harris’ home, and that Johnson had told Harris that Jones
1
State v. Harris, 269 Neb. xix (No. S-04-665, May 18, 2005).
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was coming to Harris’ house with a gun and a dog. The
defense contended that Harris was going to leave, to
avoid a confrontation, but he put a .22-caliber pistol in
his pocket to protect himself. Before Harris left, how-
ever, [Jones] arrived with a pit bull, and [Jones] behaved
aggressively. According to the defense’s theory, Harris
thought he saw something in [Jones’] hand, and Harris
shot [Jones] in self-defense.
In the instant appeal, Harris raises various claims of inef-
fective assistance of trial counsel. Some additional back-
ground is helpful to understanding these claims.
Harris testified at trial. He said that as he was placing a
bag of trash on the curb in front of his house, Jones came
speeding out of the alley in a van. Jones stopped the van at
the end of Harris’ driveway and jumped out screaming and
cursing. Jones approached Harris aggressively and pushed
his way through the open gate across Harris’ driveway. Jones
shoved Harris into the gate, cutting his hand. Harris testified
he feared for his life, so he pulled his gun and told Jones
to leave. Jones told Harris “‘you just going to have to shoot
me,’” and Jones raised his hand. Harris thought Jones was
holding a gun, so he backed up and shot at Jones several
times. Harris testified that Jones tried to duck, then ran back
through the gate and fell down on the driveway. Harris ran
into the house and shut the door, then came back outside to
see if he could find Jones’ gun to retrieve it for police. Harris
saw Jones on the ground in the driveway, and on the ground
next to him was a cell phone. Harris testified he panicked
and ran back into the house, then out the back door, where he
ditched the gun in an alley.
Johnson, Harris’ girlfriend, also testified at trial. She did
not witness the shooting but testified about events leading
up to it. She testified Jones had telephoned her the day of
the shooting to say he was angry that she and Harris had not
answered their telephone the previous day when Jones tried to
visit. Jones told Johnson he would be coming over to Harris’
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residence with a gun and his pit bull dog. Johnson told Harris
what Jones had said, and she suggested Harris should leave.
Harris agreed and then went to the garage to get a gun. Jones
arrived shortly thereafter.
The shooting was witnessed by several individuals, includ-
ing three women who followed Jones to Harris’ house in a dif-
ferent vehicle. One of the three women was Jones’ girlfriend,
and the other two were sisters of Johnson. Jones’ girlfriend
testified that when she and the other women arrived at Harris’
house, Jones was stepping out of his van. All three women
testified that Jones was calm as he approached Harris and that
they saw Harris motion for Jones to enter the yard. The women
did not see a gun in Jones’ hand and did not observe any sort
of physical altercation between Harris and Jones before Harris
pulled out a gun and shot Jones. Jones fell to the ground in
the driveway. The women did not go to check on Jones imme-
diately but instead drove away to find police officers they
had seen nearby. When they arrived back with police, they
observed Jones lying in the driveway. Jones’ girlfriend noticed
he had a cell phone in his hand.
Two 7-year-old boys were riding bicycles in the area at the
time of the shooting. One of the boys testified he saw Harris
shoot a man three or four times in the driveway. The boy testi-
fied that the man did not have a gun but, after falling to the
ground, pulled out a cell phone and tried to make a call. The
other boy did not see the initial shots fired, but testified that
he saw a man on the ground in the driveway and saw the man
take a cell phone out of his pocket. Both boys testified that
they saw Harris go inside the house while the other man lay in
the driveway and then saw Harris come back outside wiping a
gun with a blue towel. Both boys testified Harris then walked
over to the man and shot him again.
A woman who lived across the street from Harris testified
she was on her front porch when she heard what she thought
were several firecrackers, followed by women screaming.
From across the street, she saw a man on the ground in Harris’
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STATE v. HARRIS
Cite as 294 Neb. 766
driveway. While on the telephone with the 911 emergency dis-
patch service, the woman saw another man come out of Harris’
house and point a gun at the man on the ground. She testified
she saw the man with the gun say something she could not
hear and then walk back into the house.
The autopsy showed Jones was shot three times. Two bul-
lets entered his body from the front, and one entered from the
back. Police located three fired .22-caliber shell casings in
Harris’ driveway. A small blue towel was recovered by police
from Harris’ dining room. The towel tested positive for gun-
shot residue.
The jury found Harris guilty of the lesser-included offense
of second degree murder and of using a deadly weapon to
commit a felony. He was sentenced to consecutive prison
terms of 25 years to life for second degree murder, 25 to 30
years for use of a deadly weapon to commit a felony, and 10
to 15 years for possession of a deadly weapon by a prohib-
ited person.
This court affirmed Harris’ convictions and sentences on
direct appeal.2 Harris was represented by lawyers from the
same law firm at trial and on direct appeal, so his first oppor-
tunity to raise claims of ineffective assistance was in his post-
conviction motion.3
2. Postconviction Proceedings
On August 20, 2012, Harris filed a verified motion for post-
conviction relief. Shortly thereafter, he was granted leave to
file a supplemental verified motion in which he presented more
than 20 claims of ineffective assistance of trial counsel. We
address only those which are necessary to our analysis of the
errors assigned by Harris on appeal.
The district court determined Harris was entitled to an evi-
dentiary hearing on “a few of [the] claims he raises” but did
2
State v. Harris, supra note 1.
3
See State v. Fox, 286 Neb. 956, 840 N.W.2d 479 (2013).
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not specify which. The district court appointed Harris post-
conviction counsel, and eventually an evidentiary hearing was
held. It does not appear from the record that the district court
restricted the evidentiary hearing to any specific claims, but
instead left the presentation of evidence to the attorneys.
At the evidentiary hearing, witnesses were called and depo-
sitions were offered and received. The district court took
judicial notice of the prior court proceedings, the entire
bill of exceptions on direct appeal, and all the postconvic-
tion pleadings.
After posthearing briefing was completed, the district court
entered a written order overruling the motion for postconvic-
tion relief. The court noted that Harris’ postconviction argu-
ments “[p]rimarily” centered on his claim that his trial counsel
was ineffective for failing to interview and subpoena two
witnesses who Harris claims would have supported his claim
of self-defense. The evidence showed that before trial, Harris
gave his attorney a letter listing several witnesses he wanted to
be considered for his defense. Neighbors Betty Woods and Lee
Perry were included on that list. Both Woods and Perry were
deposed, and their depositions were received into evidence at
the postconviction hearing.
Woods testified she was looking out her window and saw
a man drive up to Harris’ house. She saw Harris and the man
“wrestling” or “horse playing” just inside the gate near the
street, but thought it looked like a “play fight,” so she stopped
watching. She did not see anything in either man’s hand and
never saw a gun. When she returned to the window, she saw
the man on the ground. According to Woods, she was never
contacted or interviewed by Harris’ trial counsel or anyone
from the defense team.
Perry testified he saw Jones knock on Harris’ front door
the day before the shooting. No one answered the door, and
Perry saw Jones leave a note on the windshield of Harris’ car.
Perry told Harris later that day about the visit and the note,
but Perry never read the note and did not know its contents.
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According to Perry, he was never contacted or interviewed by
Harris’ trial counsel.
The deposition of Harris’ trial counsel was also received
into evidence at the postconviction hearing. Trial counsel
acknowledged that Harris had given him a letter with the
names of several potential witnesses, and counsel testified
that he assigned a law clerk to interview both Woods and
Perry. Harris’ trial counsel testified that he decided not to
call Woods as a witness because, based on what his law clerk
told him, Woods did not see the incident and did not see the
gun. He added that Woods did not relay to his law clerk the
same information Woods provided later. Harris’ trial attorney
had no memory of Perry but, when he was told the substance
of Perry’s deposition testimony, he was uncertain whether he
would have called Perry to testify at trial.
The law clerk, who testified at the evidentiary hearing, did
not corroborate trial counsel’s testimony. The law clerk had no
recollection of interviewing either Woods or Perry and testi-
fied that because this was his first murder case as a law clerk,
it “[p]robably” would stand out in his mind if he had talked
with either witness.
In its order denying postconviction relief, the district court
made a specific factual finding that no one from Harris’
defense team interviewed either Woods or Perry. The court
concluded that trial counsel performed deficiently by failing
to conduct a reasonable investigation, but found that Harris
was not prejudiced by counsel’s deficient performance. The
court reasoned that even though the testimony of Woods and
Perry would have “aided [Harris’] claim of self-defense,” it
would not have done so “to the extent that it was reasonably
probable that the jury would have acquitted him if it had heard
the testimony.”
As it regarded the myriad of other postconviction claims
asserted by Harris, the district court made the following con-
solidated findings and conclusions:
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The evidence and record establishes [sic] that [Harris]
has not met his burden as to the numerous other claims
of ineffective assistance of counsel made in his amended
motion for postconviction relief. The Court finds trial
counsel’s testimony adduced at the evidentiary hearing
by deposition refutes, or satisfactorily explains, [Harris’]
other claims raised in [Harris’] deposition that was also
received at the evidentiary hearing. These other issues do
not require any further discussion except as to the issue
of the trial court not properly instructing on the issue of
self-defense. As to this issue, this Court notes that the
trial court did not instruct the jury that [Harris] had a duty
to retreat before using deadly force. Nor can it be argued
that deadly force can be used for the protection of prop-
erty. [Citations omitted.] Therefore, there was no error in
regards to this claim.
The district court denied the motion for postconviction
relief. Harris timely appealed, and we moved the appeal to our
docket pursuant to our statutory authority to regulate the case-
loads of the appellate courts of this state.4
III. ASSIGNMENTS OF ERROR
Harris assigns, rephrased and consolidated, that the district
court erred in denying postconviction relief (1) on the ground
trial counsel was ineffective in failing to interview Woods and
Perry and offer their testimony at trial, (2) without making
specific factual findings and conclusions of law as required
by Neb. Rev. Stat. § 29-3001 (Cum. Supp. 2014), (3) on the
ground trial counsel was ineffective for failing to request a jury
instruction on the privilege of nonretreat, and (4) on the ground
trial counsel was ineffective for failing to adequately advise
Harris of the consequences of his guilty plea to possession of
a deadly weapon by a prohibited person. Harris also assigns
4
Neb. Rev. Stat. § 24-1106(3) (Supp. 2015).
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that it was plain error for the trial court to accept his guilty
plea, because the State did not establish he was represented
by or waived counsel on the prior felony and because the trial
court failed to advise Harris of the sentencing consequences of
entering his plea.
IV. STANDARD OF REVIEW
[1] 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 An appellate court upholds
the trial court’s findings unless they are clearly erroneous.6 In
contrast, an appellate court independently resolves questions
of law.7
[2] A claim that defense counsel provided ineffective assist­
ance presents a mixed question of law and fact.8 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.9 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,10 an appellate court
reviews such legal determinations independently of the lower
court’s decision.11
[3] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law.12 When ­reviewing
5
State v. Poe, 292 Neb. 60, 870 N.W.2d 779 (2015).
6
See id.
7
Id.
8
State v. DeJong, 292 Neb. 305, 872 N.W.2d 275 (2015); State v. Thorpe,
290 Neb. 149, 858 N.W.2d 880 (2015).
9
Id.
10
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
11
DeJong, supra note 8; Thorpe, supra note 8.
12
Id.
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questions of law, an appellate court resolves the questions
independently of the lower court’s conclusion.13
V. ANALYSIS
1. Ineffective Assistance of Counsel
[4] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington,14 the defendant must show
that counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defense.15 To show
deficient performance, a defendant must show that counsel’s
performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law in the area.16 To show prejudice,
the defendant must demonstrate reasonable probability that but
for counsel’s deficient performance, the result of the proceed-
ing would have been different.17
Harris’ primary argument, both before the district court and
on appeal, is that his trial counsel was ineffective for failing to
interview Woods and Perry and call them to testify at trial. The
district court made a factual finding that no one from Harris’
defense team interviewed Woods and Perry as potential wit-
nesses. We review this factual finding for clear error, and we
find none.
The district court also concluded that counsel’s failure to
contact these witnesses constituted deficient performance, but
that Harris had not proved he was prejudiced, because even if
Woods and Perry had testified, there was no reasonable prob-
ability that the result of the proceeding would have been dif-
ferent. Having reviewed the record, we agree.
13
Id.
14
Strickland, supra note 10.
15
State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).
16
Id.
17
Id.
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Perry’s testimony that he saw Jones leave a note on Harris’
car the day before the shooting is consistent with the testi-
mony of others at trial who testified that Jones went to Harris’
house the day before the shooting and left when Harris did
not answer the door. Harris argues that in addition to placing
Jones at Harris’ house the day before the shooting, Perry’s
testimony would have provided evidence that Jones left a
threatening note. But Perry could not have testified to the
contents of the note, because he admits he never read it. And
the fact that Harris was aware of the note (and presumably its
contents) at the time of trial, but neither offered it nor testified
to its contents, belies his argument now that the note contained
a threat.
Woods’ testimony that she saw Harris and another man
“wrestling” or “play fight[ing]” would have supported Harris’
claim that an altercation of some sort occurred between
Harris and Jones, but her testimony would not have changed
the outcome of the trial. Woods did not see anything sug-
gesting that Jones was the initial aggressor or that Jones had
a gun. And importantly, Woods’ testimony would not have
refuted the strongest evidence that Harris was not acting in
self-defense: The two boys who testified that after Jones had
been shot and while he lay on the ground in the driveway,
Harris walked down the driveway, stood over Jones, and shot
him again.
Even if Harris’ trial counsel had interviewed Woods and
Perry and called them to testify at trial, there is no reasonable
probability that the result of the proceeding would have been
different. These assignments of error are without merit.
2. District Court’s Order Denying
Postconviction R elief
Harris argues that the district court’s order denying post-
conviction relief did not contain adequate factual findings,
and he asks that the cause be remanded with directions to
make specific findings on each of the more than 20 claims of
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ineffective assistance which he presented in his supplemental
verified motion. We conclude remand is unnecessary because
the court’s factual findings were sufficient.
[5,6] When a court grants an evidentiary hearing in post-
conviction proceedings, it is obligated to “determine the issues
and make findings of fact and conclusions of law with respect
thereto.”18 We have explained that without factual findings
and conclusions of law, we are unable to reach the merits of
claims that a district court erred in ruling on a postconviction
motion after an evidentiary hearing.19 As such, the purpose of
requiring factual findings and conclusions of law is to facili-
tate appellate review. With that purpose in mind, we find the
district court’s order in this case contained sufficient factual
findings and conclusions of law to permit us to reach all
assigned errors.
The court’s 11-page order summarized the trial record and
recited the evidence adduced during the evidentiary hear-
ing. The court noted that Harris “[p]rimarily” focused his
evidence and argument at the hearing on claims that his trial
counsel was ineffective for failing to interview and subpoena
Woods and Perry to testify at trial. It is not surprising, then,
that the court likewise focused much of its analysis on those
same claims, detailing the evidence adduced and making spe-
cific factual findings and conclusions of law with respect to
those claims.
Harris does not suggest the trial court’s factual findings and
legal conclusions were insufficient regarding the ineffective
assistance claims involving Woods and Perry, but he argues the
court made insufficient findings regarding Harris’ many other
claims of ineffective assistance. Specifically, Harris takes issue
with the court’s consolidated findings and conclusions that he
had “not met his burden as to the numerous other claims of
18
§ 29-3001(2). See, also, State v. Costanzo, 235 Neb. 126, 454 N.W.2d 283
(1990).
19
State v. Costanzo, supra note 18.
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ineffective assistance of counsel made in his amended motion
for postconviction relief” and with the court’s general finding
that “trial counsel’s testimony adduced at the evidentiary hear-
ing by deposition refutes, or satisfactorily explains, [Harris’]
other claims.”
Importantly, Harris does not assign error to the court’s find-
ing that he failed to meet his burden of proof regarding these
other claims. Rather, he argues on appeal that the court’s order
did not make separate findings and conclusions regarding each
of his claims and asks that the cause be remanded with instruc-
tions to do so.
[7] We see nothing to be gained by remanding this cause for
more detailed factual findings concerning claims which Harris
does not contend were incorrectly decided and on which he
submitted little or no evidence. While the sufficiency of a trial
court’s factual findings and legal conclusions will depend to a
large extent on the nature of the case and the assignments of
error urged on appeal, here we find the district court’s order
contained sufficient factual findings and conclusions of law to
address and resolve all issues presented by the pleadings and
to permit us to reach all errors assigned on appeal. There is no
merit to this assignment of error.
3. Jury Instruction on Privilege
of Nonretreat
Harris argues his trial counsel was ineffective for failing to
request a jury instruction on the privilege of nonretreat. He
argues that because the jury was instructed on self-defense,
his attorney should also have requested an instruction on the
privilege of nonretreat, to avoid the possibility that the jury
might make “the erroneous finding that Harris, by refusing
to retreat from the front yard of his home, provoked Jones’
use of force against him with the intent of shooting Jones
in response.”20
20
Brief for appellant at 34.
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Under Neb. Rev. Stat. § 28-1409(4) (Reissue 2008), the use
of deadly force is not justified unless
the actor believes that such force is necessary to protect
himself against death, serious bodily harm, kidnapping or
sexual intercourse compelled by force or threat, nor is it
justifiable if:
(a) The actor, with the purpose of causing death or
serious bodily harm, provoked the use of force against
himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of
using such force with complete safety by retreating . . .
except that:
(i) The actor shall not be obligated to retreat from
his dwelling or place of work, unless he was the initial
aggressor[.]
[8-10] As such, the duty to retreat is spelled out in
§ 28-1409(4)(b) and the corollary privilege of nonretreat is
addressed in § 28-1409(4)(b)(i). The privilege of nonretreat
exists only in one’s “dwelling or place of work.”21 For purposes
of § 28-1409, the Legislature has defined “dwelling” as “any
building or structure, though movable or temporary, or a por-
tion thereof, which is for the time being the actor’s home or
place of lodging.”22
Here, the evidence did not support the giving of an instruc-
tion regarding the privilege of nonretreat, because there was
no evidence suggesting Harris and Jones were inside Harris’
dwelling at any point during their encounter. Absent such evi-
dence, an instruction informing the jury that Harris had a privi-
lege of nonretreat was not warranted, and Harris’ trial counsel
was not ineffective for failing to request such an instruction.
This assignment of error is without merit.
[11] For the sake of completeness, we note that Harris’ reply
brief also discusses his trial counsel’s failure to request a jury
21
§ 28-1409(4)(b)(i).
22
Neb. Rev. Stat. § 28-1406(5) (Reissue 2008).
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instruction on sudden quarrel manslaughter. Because this was
neither assigned as error nor discussed in Harris’ initial brief,
we do not consider it further.23
4. H arris’ Guilty plea
Prior to trial, Harris entered a guilty plea to count III of the
information, which charged him with possession of a deadly
weapon by a prohibited person. During the plea colloquy,
Harris admitted that on or about July 5, 2003, in Douglas
County, he was in possession of an operable firearm, and
further admitted that prior to July 5th, he had been convicted
of a felony and the time for appeal had passed. After Harris
admitted the prior conviction, his attorney stipulated on the
record that Harris had previously been convicted of first degree
assault and been sentenced to 24 months in prison. The district
court accepted Harris’ plea and found him guilty of possession
of a deadly weapon by a prohibited person.
Harris now argues his counsel was ineffective in two
respects. First, he argues counsel was ineffective for stipulat-
ing to the prior felony during the hearing. Next, Harris argues
counsel was ineffective for failing to advise him that if the
jury ultimately found him guilty on the separate charge of
using a deadly weapon to commit a felony, then any sentences
imposed for the two firearm-related counts could not run con-
currently. We address each argument below.
(a) Stipulating to Prior Felony
[12] Harris does not explain how his counsel rendered inef-
fective assistance by stipulating to the prior felony during the
plea hearing. We have explained that defense counsel does
not perform in a deficient manner simply by failing to make
the State’s job more difficult,24 and Harris offers no other
23
See Keithley v. Black, 239 Neb. 685, 477 N.W.2d 806 (1991). See, also,
De Lair v. De Lair, 146 Neb. 771, 21 N.W.2d 498 (1946).
24
State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
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argument as to why his counsel’s performance regarding the
stipulation was deficient. Most notably, there was no evidence
offered suggesting the State would have been unable to prove
the prior felony in the absence of counsel’s stipulation. The
assignment that counsel was ineffective for stipulating to a
prior felony conviction during the plea hearing is meritless.
Harris also asks us to find it was plain error for the trial
court to accept the stipulation, and ultimately Harris’ plea,
because the stipulation did not establish that Harris was rep-
resented by counsel or that he waived counsel in connection
with the prior felony conviction.25 This claim was not raised in
Harris’ supplemental verified motion for postconviction relief
or presented to the district court, and we will not consider it for
the first time on appeal.26
(b) Advising on Sentencing
Consequences of Plea
Harris entered a guilty plea to the charge of possession of a
deadly weapon by a prohibited person and proceeded to trial
on the remaining charges. He now argues his trial counsel was
ineffective for failing to advise him, at the time he entered his
plea, that if the jury found him guilty of using a firearm to
commit a felony, then the sentence imposed on that convic-
tion would be ordered to be served consecutively to any other
sentence imposed.27 Harris also asks that we find it was plain
error for the trial court not to advise him, when accepting his
plea to possession of a deadly weapon by a prohibited per-
son, of the possible penalties for using a firearm to commit
a felony.
25
See State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013) (before prior
felony conviction can be used to prove defendant is prohibited person,
State must prove that prior felony conviction was counseled or that
counsel was waived).
26
See State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
27
See Neb. Rev. Stat. § 28-1205(3) (Cum. Supp. 2014).
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In State v. Golden,28 the defendant entered a guilty plea
to two counts: (1) assaulting an officer, third degree, and (2)
using a firearm to commit a felony. On direct appeal, we found
his pleas had not been entered voluntarily, because he had not
been advised that using a firearm to commit a felony carried
a mandatory consecutive sentence. We reasoned that although
the court had correctly described the sentencing ranges for
both felonies, it had failed to inform the defendant that the
statutory penalty for using a firearm to commit a felony man-
dated that such sentence be served consecutively to any other
sentence imposed.
[13] Here, the evidence in the record shows trial counsel
advised Harris that using a firearm to commit a felony carried a
mandatory consecutive sentence. Moreover, the rule announced
in Golden has no meaningful application to a case such as this.
The record confirms Harris was correctly advised regarding
the range of possible penalties for the charge to which he was
pleading. The advisement regarding possible penalties need not
extend beyond reciting the range of possible penalties for the
charge to which a plea is entered.29 This assignment of error
is meritless.
VI. CONCLUSION
Based on the foregoing, we affirm the judgment of the dis-
trict court.
A ffirmed.
28
State v. Golden, 226 Neb. 863, 415 N.W.2d 469 (1987).
29
See State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).