State v. Haynes , 299 Neb. 249 ( 2018 )


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    - 249 -
    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. HAYNES
    Cite as 
    299 Neb. 249
    State of Nebraska, appellee, v.
    Dammon T. H aynes, appellant.
    ___ N.W.2d ___
    Filed March 9, 2018.    No. S-17-031.
    1.	 Postconviction: Judgments: Appeal and Error. Whether a claim
    raised in a postconviction proceeding is procedurally barred is a ques-
    tion of law which is reviewed independently of the lower court’s ruling.
    2.	 Postconviction: Constitutional Law. 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 determination, as a matter of law, that the peti-
    tioner has failed to state a claim for postconviction relief.
    3.	 Postconviction: Constitutional Law: Appeal and Error. In appeals
    from postconviction proceedings, an appellate court reviews de novo
    a determination that the defendant failed to allege sufficient facts to
    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.
    4.	 Postconviction: Right to Counsel: Appeal and Error. The failure of
    the district court to provide court-appointed counsel in a postconviction
    proceeding is reviewed for an abuse of discretion.
    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: Sentences: Appeal and Error. The Nebraska
    Postconviction Act is intended to provide relief in those cases where
    a miscarriage of justice may have occurred; it is not intended to be a
    procedure to secure a routine review for any defendant dissatisfied with
    his or her sentence.
    7.	 Postconviction: Pleas: Waiver. The Nebraska Postconviction Act does
    not provide a procedure whereby the defendant can avoid the waiver
    inherent to a voluntary entry of a guilty plea or plea of no contest.
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    STATE v. HAYNES
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    8.	 Pleas: Waiver: Indictments and Informations: Effectiveness of
    Counsel: Jurisdiction. The voluntary entry of a guilty plea or a plea
    of no contest waives every defense to a charge, whether the defense is
    procedural, statutory, or constitutional. The only exceptions are for the
    defenses of insufficiency of the indictment, information, or complaint;
    ineffective assistance of counsel; and lack of jurisdiction.
    9.	 Postconviction: Appeal and Error. On appeal from the denial of
    postconviction relief without an evidentiary hearing, the question is not
    whether the movant was entitled to relief by having made the requisite
    showing. Instead, it must be determined whether the allegations were
    sufficient to grant an evidentiary hearing.
    10.	 Postconviction. The allegations in a motion for postconviction relief
    must be sufficiently specific for the district court to make a preliminary
    determination as to whether an evidentiary hearing is justified.
    11.	 Postconviction: Pleadings: Proof: Constitutional Law. In a proceed-
    ing under the Nebraska Postconviction Act, the application is required
    to allege facts which, if proved, constitute a violation or infringement
    of constitutional rights, and the pleading of mere conclusions of fact
    or of law are not sufficient to require the court to grant an eviden-
    tiary hearing.
    12.	 Postconviction: Proof: Constitutional Law. An evidentiary hearing
    must be granted when the facts alleged, if proved, would justify relief,
    or when a factual dispute arises as to whether a constitutional right is
    being denied.
    13.	 Appeal and Error. An appellate court will not consider an issue on
    appeal that was not presented to or passed upon by the trial court.
    14.	 Postconviction: Effectiveness of Counsel: Proof. In order to establish
    a right to postconviction relief based on a claim of ineffective assistance
    of counsel, the defendant has the burden first to show that counsel’s per-
    formance was deficient; that is, counsel’s performance did not equal that
    of a lawyer with ordinary training and skill in criminal law in the area.
    Next, the defendant must show that counsel’s deficient performance
    prejudiced the defense in his or her case.
    15.	 Effectiveness of Counsel: Pleas. In a plea context, deficiency depends
    on whether counsel’s advice was within the range of competence
    demanded of attorneys in criminal cases.
    16.	 ____: ____. The prejudice requirement in a plea context is satisfied if
    the defendant shows a reasonable probability that but for the errors of
    counsel, the defendant would have insisted on going to trial rather than
    pleading guilty.
    17.	 ____: ____. In determining the prejudice component of alleged inef-
    fective assistance of counsel in a plea context, the likelihood of the
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    STATE v. HAYNES
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    299 Neb. 249
    defense’s success had the defendant gone to trial should be considered
    along with other factors, such as the likely penalties the defendant
    would have faced if convicted at trial, the relative benefit of the plea
    bargain, and the strength of the State’s case.
    18.	   Postconviction: Effectiveness of Counsel. In a motion for postconvic-
    tion relief, self-serving declarations that fail to allege specific facts that
    will be presented in an evidentiary hearing will not be sufficient on their
    own to raise a question of prejudice in an allegation of ineffective assist­
    ance of counsel.
    19.	   Postconviction: Pleas: Effectiveness of Counsel. A motion for post-
    conviction relief seeking to set aside a conviction pursuant to a plea on
    the grounds that it was the result of ineffective assistance of counsel
    must allege objective facts that raise a question of whether a rational
    defendant would have insisted on going to trial.
    20.	   Postconviction: Appeal and Error. When considering whether the dis-
    trict court correctly denied a motion for postconviction relief without an
    evidentiary hearing, an appellate court will not consider factual allega-
    tions made for the first time on appeal.
    21.	   Trial: Pleas: Mental Competency. A person is competent to plead or
    stand trial if he or she has the capacity to understand the nature and
    object of the proceedings against him or her, to comprehend his or her
    own condition in reference to such proceedings, and to make a ratio-
    nal defense.
    22.	   ____: ____: ____. The test of mental capacity to plead is the same as
    that required to stand trial.
    23.	   Postconviction: Witnesses. A significant degree of specificity is
    required in postconviction motions for claims relating to potential
    witnesses.
    24.	   Right to Counsel: Effectiveness of Counsel. A defendant represent-
    ing himself or herself pro se cannot thereafter assert his or her own
    incompetency.
    25.	   Postconviction: Appeal and Error. Plain error cannot be asserted in a
    postconviction proceeding to raise claims of error by the trial court.
    26.	   Effectiveness of Counsel: Appeal and Error. Counsel’s failure to raise
    an issue on appeal could be ineffective assistance only if there is a rea-
    sonable probability that inclusion of the issue would have changed the
    result of the appeal.
    Appeal from the District Court for Douglas County: Shelly
    R. Stratman, Judge. Affirmed.
    Dammon T. Haynes, pro se.
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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. HAYNES
    Cite as 
    299 Neb. 249
    Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
    for appellee.
    Heavican, C.J., Cassel, Stacy, and Funke, JJ.
    Heavican, C.J.
    I. NATURE OF CASE
    This is an appeal from the denial of postconviction relief
    without an evidentiary hearing or the appointment of counsel.
    The petitioner makes numerous arguments that his trial coun-
    sel, who also represented him on direct appeal, were ineffec-
    tive. Petitioner also argues that he was sentenced to nonexistent
    crimes of being a habitual criminal, which he asserts resulted
    in void sentences. We affirm the judgment below.
    II. BACKGROUND
    1. Charges
    Dammon T. Haynes was charged with three counts under
    case No. CR14-701. Count I charged him with stalking, sec-
    ond offense, in violation of Neb. Rev. Stat. §§ 28-311.03 and
    28-311.04(2)(a) (Reissue 2008), a Class IV felony. Count II
    charged him with terroristic threats, in violation of Neb. Rev.
    Stat. § 28-311.01(1)(a) (Reissue 2008), a Class IV felony.
    Count III, habitual criminal, described that Haynes has twice
    been convicted of a crime, sentenced, and committed to prison
    for terms of not less than 1 year each and, thus, “is a Habitual
    Criminal as described in Neb. Rev. Stat. §29-2221.”
    At the same time, under case No. CR14-1202, Haynes
    was charged with two counts. Under count I, he was charged
    with tampering with a witness, in violation of Neb. Rev. Stat.
    § 28-919(1) (Reissue 2008), a Class IV felony. Count II, habit-
    ual criminal, described that Haynes has twice been convicted
    of a crime, sentenced, and committed to prison for terms of
    not less than 1 year each and, thus, “is a Habitual Criminal as
    described in Neb. Rev. Stat. §29-2221.”
    Under other case numbers, Haynes was charged with pos-
    session of a controlled substance, witness tampering, and iden-
    tity theft.
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    STATE v. HAYNES
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    299 Neb. 249
    2. Pleas
    Haynes entered into a plea agreement with the State. In case
    No. CR14-701, Haynes pled no contest to the charges of count
    I, stalking, second offense, and count II, terroristic threats. In
    case No. CR14-1202, Haynes pled no contest to count I, tam-
    pering with a witness.
    The pleas were negotiated in exchange for dismissal of the
    other charges, under different case numbers, of possession of
    a controlled substance, witness tampering, and identity theft.
    The State also agreed not to file any further charges based
    on Haynes’ conduct up to the date of the pleas. The State had
    apparently been preparing to charge Haynes with 16 additional
    misdemeanor counts.
    The day Haynes pled to the charges, the State entered into
    evidence a psychiatric report demonstrating that Haynes was
    competent and the court specifically found Haynes competent
    to stand trial.
    The court considered cases Nos. CR14-701 and CR14-1202
    together during the plea colloquy, as well as during the enhance-
    ment and sentencing hearing.
    During the plea colloquy, the court confirmed with Haynes
    that he understood the nature of the charges, the terms of the
    plea agreement, the sentencing range for the crimes, and the
    possible habitual criminal enhancement. The court explained
    that the charges of terroristic threats and tampering with a wit-
    ness were subject to habitual criminal enhancement, while the
    charge of stalking, second offense, was not.
    Haynes affirmed that his pleas were freely and voluntarily
    made. Haynes stated that he had been given enough time to
    discuss the case with his counsel and that he was satisfied with
    their representation.
    As a factual basis for the pleas, the State provided that it
    would have adduced evidence that on or about January 22
    through February 12, 2014, Haynes harassed and threatened
    the victim, his ex-girlfriend, after she broke off their relation-
    ship and moved in with her mother. Haynes continued to call,
    drive by the victim’s house, and send text messages, even after
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    STATE v. HAYNES
    Cite as 
    299 Neb. 249
    a protection order was in place. Some messages were sent to
    the victim’s mother, advising her to keep the victim away from
    the “back windows,” because “he attempted to get his boys to
    chill,” but “the call was already made.” On one occasion, the
    victim and her mother witnessed Haynes drive by and point
    his fingers out the window as if they were a gun. On another
    occasion, the victim and her mother witnessed Haynes drive by
    and yell, “[H]ey bitch, I’m coming back. This house is going
    to get shot up tonight.” During the same time period, Haynes
    filled out change of address forms for the victim without her
    consent, pretended to be the victim in order to have her cable
    turned off, and sent “jitney cabs” to the victim’s house during
    all hours of the night.
    After being jailed on the charges, Haynes made approxi-
    mately 44 calls to the victim, using another inmate’s telephone
    number. During the conversations, Haynes asked the victim not
    to go to court. Haynes also sent letters through other inmates
    to contacts on the outside, asking them to tell the victim to stop
    talking to law enforcement and prosecutors.
    The court found that Haynes’ pleas of no contest were
    entered freely, knowingly, intelligently, and voluntarily. Haynes
    was adjudged guilty of the charges of stalking, terroristic
    threats, and tampering with a witness.
    3. Sentencing
    For purposes of habitual criminal enhancement, the State
    entered into evidence prior convictions, and the court found
    the prior convictions valid and supporting enhancement. The
    presentence investigation report (PSI) indicated an extensive
    criminal history, including convictions for assault, terroristic
    threats, stalking, harassment by telephone, intimidation by tele-
    phone, and violations of protection orders. The victims were
    past girlfriends and an ex-wife. The PSI reflects that Haynes
    has been arrested 23 times for crimes of domestic violence and
    has had 16 protection orders filed against him by 14 different
    people in the last 18 years. Attached to the PSI were several
    victim impact statements related to prior convictions.
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    STATE v. HAYNES
    Cite as 
    299 Neb. 249
    Defense counsel asked the court to order a new PSI on
    the grounds that the officer who prepared the PSI was biased
    against Haynes. Counsel explained that the investigator had
    been Haynes’ probation officer in 1999 and had prepared a
    PSI in another case in 2009. Counsel suggested that someone
    else would be able to “give a more independent evaluation.”
    The court denied the motion, noting that although the report
    demonstrated familiarity with Haynes, it was mostly a factual
    recitation of past and present charges.
    The State argued at the sentencing hearing that the court
    should consider Haynes’ past convictions and the domestic
    abuse and stalking of former girlfriends and his ex-wife.
    The district court observed that Haynes had an extensive
    criminal history and was “one of the worst” domestic vio-
    lence offenders the court had ever seen. The court stated that
    it had reached this conclusion based on the factual statements
    in the PSI and the victim statements, not on any commentary
    in the PSI reflecting the investigator’s personal familiarity
    with Haynes.
    In case No. CR14-701, the court sentenced Haynes to con-
    current sentences of 12 to 24 years’ imprisonment, with 289
    days’ credit for time served. In case No. CR14-1202, the court
    sentenced Haynes to 12 to 24 years’ imprisonment, to be
    served consecutively to the sentences in case No. CR14-701.
    4. Direct A ppeal
    Haynes filed a direct appeal, represented by the same defense
    counsel as at the trial stage. He asserted on appeal that the sen-
    tences were excessive.
    The Nebraska Court of Appeals, in a memorandum opin-
    ion, found that the sentences were not excessive.1 However,
    it vacated and remanded that portion of the sentence in case
    No. CR14-701 that imposed habitual criminal enhancement
    on the charge of stalking, second offense. The court noted
    1
    State v. Haynes, Nos. A-14-1082, A-14-1083, 
    2015 WL 4626756
    (Neb.
    App. Aug. 4, 2015) (selected for posting to court website).
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    STATE v. HAYNES
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    that because the sentences were concurrent, the error was for
    all practical purposes harmless, but nevertheless needed to
    be corrected.2
    5. Motion for Postconviction R elief
    Thereafter, Haynes, representing himself pro se, filed a
    motion for postconviction relief. Haynes asserted 12 acts of
    ineffective assistance of counsel. He generally alleged that but
    for these acts of ineffective assistance of counsel, he would
    have insisted on going to trial.
    First, Haynes alleged that counsel was deficient for failing
    to discuss, apprise, or review “any of the discovery turned
    over by the state.” Second, Haynes alleged counsel failed to
    investigate, interview, or depose other “witnesses,” who would
    have testified that his relationship with the victim was “whole-
    some” and “not the negative transgression or aggression the
    state and police officials deploy.” Third, Haynes alleged that
    counsel should have driven by the victim’s residence to obtain
    more “detailing descriptive streets.” Fourth, Haynes alleged
    that counsel was deficient in failing to locate, interview, or
    depose the victim, who would have given “a very different ver-
    sion of events that [sic] what the state produced” and “would
    have testified that the charges lodged against [Haynes] were
    unfounded, and concocted by her mother.”
    Fifth, Haynes alleged that there were several questions that
    he asked counsel, which he listed, to “formulate a defense” in
    Haynes’ favor. Sixth, Haynes alleged that counsel was ineffec-
    tive by “failing to apprise [Haynes] of the nature of the charges
    lodged against him; the consequences of the charges [Haynes]
    was said to had [sic] committed; and a reasonable explana-
    tion as to whether or not he should proceed to trial on those
    charges.” Seventh, Haynes asserted that counsel should have
    challenged law enforcement’s warrantless seizure of his outgo-
    ing mail while in jail and use of that mail to contact recipients
    and discourage their continued communication with him.
    2
    
    Id. - 257
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    STATE v. HAYNES
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    299 Neb. 249
    Eighth, Haynes alleged that 7 months of “solitary confine-
    ment,” and its restrictions, particularly telephone restrictions,
    limited his ability to contact counsel and thereby “impeded
    [Haynes’] participation in his case,” allegedly denying him
    due process. The restrictions also limited his access to outside
    sources who could have allegedly helped him “prepare and
    help counsel’s [sic] with a propper [sic] defense” and ren-
    dered it “impossible for [Haynes] to obtain information that
    would have undermined the states [sic] case via the charges.”
    He asserted that counsel was ineffective for failing to chal-
    lenge these restrictions. Haynes also generally asserted that the
    restrictive confinement rendered his plea involuntary.
    Ninth, Haynes alleged under the heading “Failure to
    Investigate and Prepare Defense” that the county attorney
    met with the victim before charges were filed. Tenth, Haynes
    asserted that counsel was deficient in failing to assert on direct
    appeal that the presentence investigator was biased against
    him. Eleventh, Haynes asserted that counsel should have raised
    on appeal the allegation that his plea was not supported by an
    adequate factual basis.
    Twelfth, Haynes alleged counsel was ineffective for fail-
    ing to raise as error on direct appeal the habitual criminal
    count in case No. CR14-701. Haynes theorized, without cita-
    tion to any relevant authority, that all charges under the same
    information must be subject to habitual criminal enhancement
    in order for the habitual criminal statute to legally apply to
    the case.
    Haynes also made several allegations of “plain error” that
    did not appear to relate to an ineffective assistance of coun-
    sel claim.
    The allegations of Haynes’ motion will be set forth in further
    detail in our opinion.
    6. District Court Order
    The district court denied the motion for postconviction
    relief without an evidentiary hearing or the appointment
    of counsel.
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    With respect to the claims of ineffective assistance of coun-
    sel, the court stated that Haynes had failed to set forth specific
    facts relating to prejudice and only generically offered the
    self-serving declaration that but for the deficient performance,
    he would have insisted on going to trial.
    The court elaborated that on all claims relating to a failure
    to investigate, Haynes did “not state what additional evidence
    would have been gathered, or how a different result would
    have been obtained.” The court stated that this was reason
    alone to deny the motion without an evidentiary hearing on
    the allegations.
    Alternatively to the lack of specificity regarding prejudice,
    the court reasoned, regarding the telephone restrictions dur-
    ing administrative confinement, that Haynes failed to set forth
    how defense counsel could have challenged a decision by the
    Department of Correctional Services. The court noted that
    counsel is not ineffective for failing to bring a motion that
    does not have merit.3 Regarding the claim that counsel failed
    to inform Haynes of the nature of the charges, the court alter-
    natively reasoned that the plea colloquy refuted such a claim.4
    As for the allegations of prosecutorial misconduct and the
    presentence investigator’s conflict of interest, the court con-
    cluded Haynes had “failed to set forth any facts or law estab-
    lishing inclusion of such issues would have ‘changed the result
    of the appeal.’”5
    With regard to any claim of “plain error,” separate from
    Haynes’ ineffective assistance of counsel claims, the court
    relied on our statement in State v. Sepulveda 6 that plain error
    cannot be asserted in a postconviction proceeding to raise
    claims of error by the trial court.
    Haynes appeals.
    3
    See State v. McLeod, 
    274 Neb. 566
    , 
    741 N.W.2d 664
    (2007).
    4
    See, State v. Dragon, 
    287 Neb. 519
    , 
    843 N.W.2d 618
    (2014); State v. Vo,
    
    279 Neb. 964
    , 
    783 N.W.2d 416
    (2010).
    5
    See State v. Jim, 
    278 Neb. 238
    , 
    768 N.W.2d 464
    (2009).
    6
    State v. Sepulveda, 
    278 Neb. 972
    , 
    775 N.W.2d 40
    (2009).
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    STATE v. HAYNES
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    299 Neb. 249
    III. ASSIGNMENTS OF ERROR
    Largely verbatim, Haynes asserts that (1) his claims of inef-
    fective assistance of counsel are “meritable,” warranting the
    need of an evidentiary hearing to show cause; (2) the grounds
    and claims submitted for postconviction relief exhibit “color-
    able claims” worthy of the relief sought; (3) the district court
    erred in denying Haynes’ motion for postconviction relief; (4)
    the district court erred in denying Haynes’ motion to appoint
    counsel; (5) the district court erred in allowing the State to
    use false and highly prejudicial claims that Haynes sexually
    assaulted women in the past; (6) the district court erred when
    overruling Haynes’ request to remove the presentence investi-
    gator due to bias; and (7) the district court erred in allowing the
    State to place Haynes in “[s]olitary [c]onfinement” during the
    pretrial stages, prohibiting him from contacting his attorneys
    by telephone.
    IV. STANDARD OF REVIEW
    [1] Whether a claim raised in a postconviction proceeding
    is procedurally barred is a question of law which is reviewed
    independently of the lower court’s ruling.7
    [2,3] 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 determination, as a matter of law, that
    the petitioner has failed to state a claim for postconviction
    relief.8 Thus, in appeals from postconviction proceedings,
    an appellate court reviews de novo a determination that the
    defendant failed to allege sufficient facts to demonstrate a
    violation of his or her constitutional rights or that the record
    and files affirmatively show that the defendant is entitled to
    no relief.9
    7
    State v. Harris, 
    267 Neb. 771
    , 
    677 N.W.2d 147
    (2004).
    8
    State v. Determan, 
    292 Neb. 557
    , 
    873 N.W.2d 390
    (2016).
    9
    
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    [4] We review the failure of the district court to provide
    court-appointed counsel in a postconviction proceeding for an
    abuse of discretion.10
    V. ANALYSIS
    Haynes appeals from the denial of postconviction relief
    without an evidentiary hearing or the appointment of counsel.
    He sought to set aside his convictions, which were entered
    pursuant to pleas of no contest. He also alleged errors in sen-
    tencing. The district court concluded that Haynes had failed to
    allege sufficient facts that, even if proved true at an evidentiary
    hearing, would render his judgment void or voidable. As to
    certain allegations, the court also found them to be affirma-
    tively refuted by the record.
    [5,6] Postconviction relief is a very narrow category of
    relief, available only to remedy prejudicial constitutional viola-
    tions that render the judgment void or voidable.11 The Nebraska
    Postconviction Act is intended to provide relief in those cases
    where a miscarriage of justice may have occurred; it is not
    intended to be a procedure to secure a routine review for any
    defendant dissatisfied with his or her sentence.12
    [7,8] The Nebraska Postconviction Act likewise does not
    provide a procedure whereby the defendant can avoid the
    waiver inherent to a voluntary entry of a guilty plea or plea of
    no contest. The voluntary entry of a guilty plea or a plea of no
    contest waives every defense to a charge, whether the defense
    is procedural, statutory, or constitutional.13 “The only excep-
    tions are for the defenses of insufficiency of the indictment,
    10
    See State v. Rehbein, 
    235 Neb. 536
    , 
    455 N.W.2d 821
    (1990).
    11
    See, State v. Barnes, 
    272 Neb. 749
    , 
    724 N.W.2d 807
    (2006); State v. Lytle,
    
    224 Neb. 486
    , 
    398 N.W.2d 705
    (1987); Neb. Rev. Stat. § 29-3001 (Reissue
    2016).
    12
    See State v. Robertson, 
    294 Neb. 29
    , 
    881 N.W.2d 864
    (2016).
    13
    State v. Trackwell, 
    250 Neb. 46
    , 
    547 N.W.2d 471
    (1996); State v.
    Dreimanis, 
    8 Neb. Ct. App. 362
    , 
    593 N.W.2d 750
    (1999).
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    information, or complaint; ineffective assistance of counsel;
    and lack of jurisdiction.”14
    [9] On appeal from the denial of postconviction relief with-
    out an evidentiary hearing, the question is not whether the
    movant was entitled to relief by having made the requisite
    showing.15 Instead, we must determine whether the allega-
    tions were sufficient to grant an evidentiary hearing.16 Section
    29-3001(2) states:
    Unless the motion and the files and records of the case
    show to the satisfaction of the court that the prisoner is
    entitled to no relief, the court shall . . . grant a prompt
    hearing thereon, and determine the issues and make
    findings of fact and conclusions of law with respect
    thereto.
    [10-12] But the allegations in the motion for postconviction
    relief must be sufficiently specific for the district court to make
    such a preliminary determination as to whether an evidentiary
    hearing is justified.17 In a proceeding under the Nebraska
    Postconviction Act, the application is required to allege facts
    which, if proved, constitute a violation or infringement of
    constitutional rights, and the pleading of mere conclusions of
    fact or of law are not sufficient to require the court to grant an
    evidentiary hearing.18 An evidentiary hearing must be granted
    when the facts alleged, if proved, would justify relief, or when
    a factual dispute arises as to whether a constitutional right
    is being denied.19 In the absence of alleged facts that would
    render the judgment void or voidable, the proper course is to
    14
    State v. Start, 
    239 Neb. 571
    , 574, 
    477 N.W.2d 20
    , 22-23 (1991). See, also,
    State v. Russell, 
    239 Neb. 979
    , 
    479 N.W.2d 798
    (1992); State v. Wiemer, 
    3 Neb. Ct. App. 821
    , 
    533 N.W.2d 122
    (1995).
    15
    See State v. Yos-Chiguil, 
    281 Neb. 618
    , 
    798 N.W.2d 832
    (2011).
    16
    See 
    id. 17 See
    State v. Lytle, supra note 11.
    18
    State v. Turner, 
    194 Neb. 252
    , 
    231 N.W.2d 345
    (1975).
    19
    See State v. Silvers, 
    255 Neb. 702
    , 
    587 N.W.2d 325
    (1998).
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    dismiss the motion for postconviction relief for failure to state
    a claim.20
    [13] With these principles in mind, we turn to Haynes’ argu-
    ments on appeal. We consider only those arguments that were
    both adequately assigned and argued in his appellate brief.
    This court will not consider an issue on appeal that was not
    presented to or passed upon by the trial court.21
    1. A lleged Ineffective Assistance of
    Counsel Leading to Pleas
    of No Contest
    Haynes principally asserts ineffective assistance of counsel.
    He argues that but for these acts of ineffective assistance of
    counsel, there was a “great probability,” sufficient to under-
    mine confidence in the outcome, that Haynes would have
    insisted on going to trial.22 Because Haynes was represented
    both at trial and on direct appeal by the same lawyer or law-
    yers from the same office, this motion for postconviction
    relief is his first opportunity to assert ineffective assistance
    of counsel.
    [14] In order to establish a right to postconviction relief
    based on a claim of ineffective assistance of counsel, the
    defendant has the burden first to show that counsel’s per-
    formance was deficient; that is, counsel’s performance did
    not equal that of a lawyer with ordinary training and skill in
    criminal law in the area.23 Next, the defendant must show that
    counsel’s deficient performance prejudiced the defense in his
    or her case. The two prongs of this test, deficient performance
    and prejudice, may be addressed in either order.24
    [15,16] In a plea context, deficiency depends on whether
    counsel’s advice was within the range of competence demanded
    20
    See State v. Ryan, 
    287 Neb. 938
    , 
    845 N.W.2d 287
    (2014).
    21
    Walters v. Sporer, 
    298 Neb. 536
    , 
    905 N.W.2d 70
    (2017).
    22
    Brief for appellant at 14.
    23
    State v. McLeod, supra note 3.
    24
    
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    of attorneys in criminal cases.25 The prejudice requirement in
    a plea context is satisfied if the defendant shows a “reasonable
    probability” that but for the errors of counsel, the defend­
    ant would have insisted on going to trial rather than plead-
    ing guilty.26
    [17] The likelihood of the defense’s success had Haynes
    insisted on going to trial is relevant to this prejudice analy-
    sis.27 It is relevant to the consideration of whether “‘a rational
    defendant [would have] insist[ed] on going to trial.’”28 The
    likelihood of the defense’s success had the defendant gone to
    trial should be considered along with other factors, such as the
    likely penalties the defendant would have faced if convicted at
    trial, the relative benefit of the plea bargain, and the strength
    of the State’s case.29
    [18] At an evidentiary hearing, “[s]elf-serving declarations
    that [the claimant] would have gone to trial will not be enough;
    he must present objective evidence showing a reasonable prob-
    ability that he would have insisted on going to trial.”30 Neither
    will such self-serving declarations be sufficient on their own to
    state a claim requiring an evidentiary hearing.31
    [19] The district court was correct that a motion for post-
    conviction relief seeking to set aside a conviction pursuant
    to a plea on the grounds that it was the result of ineffective
    25
    See State v. Zarate, 
    264 Neb. 690
    , 
    651 N.W.2d 215
    (2002).
    26
    State v. Lee, 
    290 Neb. 601
    , 602, 
    861 N.W.2d 393
    , 395 (2015). See, also,
    e.g., State v. Armendariz, 
    289 Neb. 896
    , 
    857 N.W.2d 775
    (2015); State v.
    Yos-Chiguil, supra note 15; State v. Glover, 
    278 Neb. 795
    , 
    774 N.W.2d 248
    (2009); State v. McLeod, supra note 3; State v. Barnes, supra note 11;
    State v. Deckard, 
    272 Neb. 410
    , 
    722 N.W.2d 55
    (2006); State v. Silvers,
    supra note 19.
    27
    See State v. Yos-Chiguil, supra note 15.
    28
    
    Id. at 631,
    798 N.W.2d at 844, quoting Roe v. Flores-Ortega, 
    528 U.S. 470
    , 
    120 S. Ct. 1029
    , 
    145 L. Ed. 2d 985
    (2000).
    29
    See State v. Yos-Chiguil, supra note 15.
    30
    
    Id. at 632,
    798 N.W.2d at 844.
    31
    See State v. Barrera-Garrido, 
    296 Neb. 647
    , 
    895 N.W.2d 661
    (2017).
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    assistance of counsel must allege objective facts that raise a
    question of whether a rational defendant would have insisted
    on going to trial. And we agree with the district court that
    most of Haynes’ claims failed to allege facts raising a ques-
    tion of whether a rational defendant would have insisted on
    going to trial. Other allegations are affirmatively refuted by
    the trial record. None of the allegations warranted an eviden-
    tiary hearing.
    We address each of the allegations in turn.
    (a) Meeting Between Victim
    and County Attorney
    Haynes first argues that counsel was ineffective for failing
    to challenge the county attorney’s meeting with the victim
    before charges were filed. In his motion for postconvic-
    tion relief, Haynes alleged under the heading “Failure to
    Investigate and Prepare Defense” that the county attorney met
    with the victim before charges were filed. He asserted this
    violated due process, because it gave the county attorney first-
    hand information and gave the county attorney time to “plant
    fear” in the victim.
    Haynes did not make factual allegations as to how this
    “fear” affected the truthfulness of the victim’s account to law
    enforcement or how it otherwise impacted his defense. In
    other words, Haynes failed to allege facts raising a dispute as
    to whether a rational defendant would have insisted on going
    to trial.
    Haynes’ attempt to focus on counsel’s failure to raise this
    issue on direct appeal does not change our analysis. As stated,
    in an appeal seeking to reverse a conviction pursuant to a plea
    of no contest, the appellate court will consider only claims
    of insufficiency of the indictment, information, or complaint;
    ineffective assistance of counsel; and lack of jurisdiction.32
    Haynes’ motion failed to raise the prospect that had the
    32
    State v. Start, supra note 14. See, also, State v. Russell, supra note 14;
    State v. Wiemer, supra note 14.
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    purported due process issue been raised on direct appeal, it
    would have changed the result.33 But, in fact, Haynes’ allega-
    tion amounts simply to an allegation of ineffective assistance
    of counsel at trial, because trial counsel representing the
    defendant on appeal cannot be expected to raise his or her
    own ineffectiveness in failing to present an issue at trial.34
    And Haynes’ counsel did not bring this alleged due process
    issue to the attention of the district court before Haynes
    entered his plea.
    (b) Failure to Discuss
    State’s Discovery
    Haynes next asserts on appeal that counsel “failed to dis-
    cuss, apprise, or review any of the discovery turned over by
    the [S]tate”35 and that had counsel done so, counsel would have
    known the police reports were filed by the victim’s mother.
    Haynes did not assert in his motion for postconviction
    relief, however, that counsel would have discovered that the
    police reports were filed by the victim’s mother. We note that
    Haynes fails to explain how the fact that the victim’s mother
    filed the police reports would have undermined the State’s
    case against Haynes and thereby created a reasonable prob-
    ability that he would have insisted on going to trial. But,
    regardless, we will not consider arguments made for the first
    time on appeal.36
    Haynes’ assertion in his motion that counsel failed to discuss
    with him “any of the discovery” turned over by the State was
    insufficiently specific. Without an allegation as to what the
    State’s discovery evidence was, Haynes failed to allege suf-
    ficient facts pertaining to whether a rational defendant would
    have insisted on going to trial.
    33
    See State v. Jim, supra note 5.
    34
    See, e.g., State v. Payne, 
    289 Neb. 467
    , 
    855 N.W.2d 783
    (2014).
    35
    Brief for appellant at 13.
    36
    See State v. Thomas, 
    262 Neb. 138
    , 
    629 N.W.2d 503
    (2001).
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    (c) Questions Presented to
    Defense Counsel
    Next, Haynes states in his brief that there were “many ques-
    tions asked to counsel.”37 He lists these questions as including:
    (1) “Why are all of the imposed restrictions being placed on
    me given the fact that the alleged victim refuses to help pros-
    ecution?” (2) “Why is the Habitual Criminal tag being sought
    agains [sic] me even with my charges being the low end class
    4 felonies?” (3) With no physical voilence [sic] associated
    with this case why is the County Attorney not allowing the
    alleged victim and myself communicate [sic] for the well
    being of our young daughter?” and (4) “What are my chance
    [sic] if I proceed to trial given the fact that the alleged victim
    has shown no interest in helping build a case?”38
    This list of questions asked is less an argument than a
    statement of purported historical fact. The fact that this list
    was presented somewhere under the heading of “Failure to
    Investigate and Prepare Defense” does not make it an argu-
    ment. We find this an insufficient argument for this court to be
    able to address it.39
    However, we note that this same insufficiency clearly sup-
    ported the district court’s conclusion that Haynes had failed
    to state a claim warranting an evidentiary hearing.
    (d) Administrative Confinement
    and Outgoing Mail
    Haynes asserts that counsel was ineffective for failing to
    challenge his administrative confinement. He focuses pri-
    marily on restrictions on his ability to make telephone calls.
    Haynes argues that he was prejudiced by telephone restric-
    tions, because they impeded his ability to call counsel and
    prevented him from calling unidentified persons who might
    37
    Brief for appellant at 13.
    38
    
    Id. 39 See
    State v. Wagner, 
    295 Neb. 132
    , 
    888 N.W.2d 357
    (2016).
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    have helped him procure evidence of an alibi. This alibi evi-
    dence supposedly would have entailed train tickets and time-
    cards for his job, demonstrating that he was working or out of
    town “during times that several Police reports were filed.”40
    Somewhat relatedly, Haynes asserts that counsel should have
    challenged law enforcement officers’ warrantless confiscation
    of his outgoing mail while in jail and their contact with the
    recipients, encouraging them not to have further contact with
    Haynes. Again, Haynes believes this hindered his ability to
    procure evidence for his defense.
    As the district court noted, Haynes failed to assert by what
    motion or action his counsel could have challenged such a
    decision of the Department of Correctional Services. While
    Haynes seems to classify these acts as prosecutorial miscon-
    duct, he fails to cite to any authority for that characterization.
    [20] Haynes likewise failed to raise sufficiently specific
    facts demonstrating that a reasonable person would have
    insisted on going to trial, had counsel successfully challenged
    his administrative confinement. As with other assertions of
    ineffective assistance of counsel, Haynes has attempted to
    add more specific factual allegations for the first time in his
    appellate brief. When considering whether the district court
    correctly denied the motion without an evidentiary hear-
    ing, we will not consider factual allegations made for the
    first time on appeal.41 Haynes did not allege in his motion
    that train tickets and timecards would have presented an
    alibi. Rather, he generically alleged that he was hindered in
    his defense.
    In any event, Haynes failed to raise a question of prejudice
    from his telephone restrictions or law enforcement’s discourag-
    ing mail recipients from further contact with Haynes, because
    he did not allege that counsel was unable to contact him, that
    he was unable to contact counsel through other means, or that
    40
    Brief for appellant at 15.
    41
    See Walters v. Sporer, supra note 21.
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    counsel was unable to conduct an adequate discovery without
    Haynes’ direct communication with these unidentified outside
    sources. Finally, whatever train tickets and timecards could
    have been procured, Haynes does not assert that these would
    have demonstrated he was nowhere in the vicinity of the
    crimes at any point from January 22 to February 12, 2014, as
    alleged in the information.
    In other words, the allegations relating to counsel’s failure to
    challenge administrative confinement, confiscation of his mail,
    and contact with mail recipients, failed to sufficiently raise a
    triable issue warranting an evidentiary hearing.
    Haynes seems to generally argue that counsel failed to
    protect his mental health, noting that “[t]hose surroundings
    with no outside communication can cause serious issues men­
    tally.”42 But Haynes does not assert that he actually suffered
    from such serious mental issues. He merely broadly states that
    “[t]he plea . . . was not done knowingly, willingly, or volun-
    tarily, due to the restrictions placed on [Haynes], along with
    [Haynes’] being placed in solitary confinement for over seven
    months . . . .”43
    [21,22] Even if we generously read these arguments as
    asserting that Haynes was incompetent—and that counsel was
    ineffective for failing to seek a competency hearing or moving
    to withdraw Haynes’ plea—Haynes’ motion failed to allege
    facts that would have raised doubts as to his competency. A
    person is competent to plead or stand trial if he or she has the
    capacity to understand the nature and object of the proceed-
    ings against him or her, to comprehend his or her own condi-
    tion in reference to such proceedings, and to make a rational
    defense.44 The test of mental capacity to plead is the same as
    that required to stand trial.45
    42
    Brief for appellant at 6.
    43
    
    Id. at 14.
    44
    State v. Vo, supra note 4.
    45
    
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    Haynes’ allegations, even if true, would not establish a
    “threshold level of doubt”46 concerning his competency that
    would make counsel’s inaction deficient. Haynes failed to
    allege what facts would have brought to counsel’s attention an
    incapacity to understand the nature and object of the proceed-
    ings against him, to comprehend his own condition in reference
    to such proceedings, and to make a rational defense.47 Haynes’
    allegation that he was in “solitary confinement,” standing
    alone, is not a fact that would cause a criminal lawyer with
    ordinary training and skill in the area to question a defend­
    ant’s competency.
    Finally, the record refutes any allegation that Haynes was
    incompetent. A medical evaluation established Haynes’ com-
    petency, and the district court specifically found Haynes com-
    petent before hearing his plea. Haynes’ responses to questions
    from the court during the plea colloquy were appropriate and
    reflected his knowledge that he was appearing in court for the
    purpose of entering a no contest plea and that he understood
    the consequences of such action as they were explained to him
    by the judge.
    The district court was correct in denying an evidentiary
    hearing on the claims relating to his administrative confine-
    ment and confiscation of his outgoing mail while in jail.
    (e) Failure to Visit Apartment Complex
    Haynes asserts that counsel was somehow ineffective for
    failing to visit the apartment complex where he, the victim,
    and the victim’s mother all allegedly lived. He asserts that
    counsel should have been able to detail the “descriptive streets
    or locate where [Haynes] was said to venture driving by [the
    victim’s] home.”48 These allegations do not bring into question
    either counsel’s deficiency or any possible prejudice.
    46
    State v. Griffin, 
    20 Neb. Ct. App. 348
    , 355, 
    823 N.W.2d 471
    , 477 (2012).
    47
    See, State v. Vo, supra note 4; State v. Johnson, 
    4 Neb. Ct. App. 776
    , 
    551 N.W.2d 742
    (1996).
    48
    Brief for appellant at 13.
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    (f) Failure to Interview
    Character Witnesses
    Haynes argues that counsel failed to interview “witnesses”
    he informed counsel of, who would have stated that he was
    the sole provider for the household and that “ill feelings” of
    the victim’s mother “caused these issues to happen.”49 His
    allegations in the motion for postconviction relief stated some-
    what similarly that “witnesses” would have said Haynes and
    the victim had “a relationship in which [Haynes] was the sole
    provider for the household in wholesome relations and not the
    negative transgression or aggression the state and police offi-
    cials deploy.”
    [23] We require a significant degree of specificity in post-
    conviction motions for claims relating to potential witnesses.50
    And, because this case involves a plea, any claim based on
    potential witnesses is all the more hypothetical and subject to
    scrutiny. We have explained:
    “The plea process brings to the criminal justice system
    a stability and a certainty that must not be undermined
    by the prospect of collateral challenges in cases not only
    where witnesses and evidence have disappeared, but also
    in cases where witnesses and evidence were not presented
    in the first place.”51
    Haynes did not provide the names or descriptions of the
    uncalled witnesses. Haynes describes the general nature of the
    testimony the witnesses would have provided, but this poten-
    tial testimony generally vouching for the wholesome and non-
    aggressive nature of Haynes’ relationship with the victim only
    marginally impacts the likelihood of the defense’s success had
    Haynes insisted on going to trial.
    49
    
    Id. at 12.
    50
    See, State v. Mora, 
    298 Neb. 185
    , 
    903 N.W.2d 244
    (2017); State v.
    Abdullah, 
    289 Neb. 123
    , 
    853 N.W.2d 858
    (2014).
    51
    State v. Yos-Chiguil, supra note 
    15, 281 Neb. at 634
    , 798 N.W.2d at 845
    (Heavican, C.J., concurring), quoting Premo v. Moore, 
    562 U.S. 115
    , 
    131 S. Ct. 733
    , 
    178 L. Ed. 2d 649
    (2011).
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    More to the point, Haynes apparently discussed these poten-
    tial witnesses with counsel and was able to consider with
    counsel the hypothetical effect of their potential testimony
    before deciding to plead. Thus, counsel determined as a matter
    of strategy that it was unnecessary to depose these witnesses to
    confirm Haynes’ assertion as to what they would say regard-
    ing their perception of Haynes’ relationship with the victim.
    The allegation in the motion that counsel had not “call[ed],
    locate[d] and acquire[d] witnesses,” before Haynes decided to
    accept the State’s plea bargain offer, fails to call into question
    whether a reasonable person would have instead insisted on
    going to trial.
    (g) Failure to Interview
    and Depose Victim
    Lastly, Haynes asserts that had counsel interviewed and
    deposed the victim, she would have said the allegations were
    “unfounded” and revealed that her mother made all the police
    reports. In the motion for postconviction relief, Haynes simi-
    larly alleged that counsel was ineffective for failing to “locate,
    interview or depose the said victim” and that “[h]ad she been
    located, interviewed, or deposed, she would have testified
    that the charges lodged against [Haynes] were unfounded, and
    concocted by her mother . . . [w]hich all led to . . . a coerced
    and minipulated [sic] plea . . . at the ill advice and ineffective
    representation of counsel’s.” Haynes concluded that but for
    defense counsel’s ineffectiveness, there was a “great probabil-
    ity” and a “high probability,” “sufficient to undermine confi-
    dence in the outcome,” that Haynes would not have pled and
    would have gone to trial.
    [24] Haynes had moved, pro se, to depose the victim. But at
    the hearing to accept his plea, Haynes affirmed to the court that
    he wished to withdraw his motion to depose the victim. The
    record is as follows:
    [Defense counsel]: . . . At this time we move to with-
    draw the Notice and Motion to Take Deposition that
    was filed by my client on August 4th. We’ve had an
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    opportunity to talk to my client. It was a pro se motion,
    and he understands what is going on here and shares in
    our wish to withdraw that motion.
    THE COURT: Is that correct . . . ?
    [Haynes]: Yes, ma’am.
    A defendant representing himself or herself pro se cannot
    thereafter assert his or her own incompetency.52 Though he had
    counsel, Haynes acted pro se in moving to depose the victim
    and in withdrawing that motion. Haynes spoke for himself at
    the hearing. He cannot now claim in his motion for postcon-
    viction relief that his decision not to depose the victim was
    in error.
    2. Sentencing
    We turn now to several arguments Haynes makes concern-
    ing his sentencing.
    (a) Habitual Criminal Enhancement
    Must Apply to All or None
    First, Haynes asserts that counsel was ineffective for failing
    to challenge habitual criminal enhancement on the grounds
    that there can be no enhancement unless all the charges in
    the information are amendable to habitual criminal enhance-
    ment. He concludes that because, under case No. CR14-701,
    the stalking charge was not amendable to habitual criminal
    enhancement, neither was count II, terroristic threats. The
    only law cited by Haynes in support of this conclusion is that
    cited by the Court of Appeals in holding that second-offense
    stalking could not be doubly enhanced through the habitual
    criminal statute.
    There is simply no merit to Haynes’ legal assertion that
    all charges in an information must be amendable to habitual
    criminal enhancement in order for any charge to be subject to
    enhancement under the habitual criminal statute. We therefore
    52
    See State v. Dunster, 
    278 Neb. 268
    , 
    769 N.W.2d 401
    (2009).
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    agree with the district court that this allegation fails to raise
    any issue of deficient performance or prejudice.
    (b) Void Sentence for “Crime” of
    Being Habitual Criminal
    Haynes further argues, for the first time on appeal, that his
    sentences were void, suffering the same infirmities as found in
    Meyer v. Frakes.53 Because a void judgment can be attacked
    at any time in any proceeding,54 we will address this argument
    despite Haynes’ failure to raise it below.
    The habitual criminal statute states that “the facts with
    reference thereto shall be charged in the indictment or infor-
    mation which contains the charge of the felony upon which
    the accused is prosecuted.”55 Thus, there is no error in setting
    forth habitual criminal status as a count in the information. But
    Haynes asserts that, as in Meyer v. Frakes,56 he was convicted
    of the crime of being a habitual criminal and was separately
    sentenced for such crime. In Meyer, we said that “a separate
    sentence for the nonexistent crime of being a habitual crimi-
    nal is void,” because “[t]here is no such offense as being a
    habitual criminal.”57
    The record demonstrates that unlike the defendant in Meyer,
    Haynes was not, in fact, convicted and sentenced of being a
    habitual criminal. He did not plead no contest to being a habit-
    ual criminal. The court did not convict him of being a habitual
    criminal. And the court did not issue a separate sentence for
    the “crime” of being a habitual criminal. Instead, as is proper,
    the court enhanced Haynes’ sentences for the crimes of ter-
    roristic threats and tampering with a witness. We find no merit
    to Haynes’ argument that pursuant to Meyer, his sentences
    were void.
    53
    Meyer v. Frakes, 
    294 Neb. 668
    , 
    884 N.W.2d 131
    (2016).
    54
    Johnson v. Johnson, 
    282 Neb. 42
    , 
    803 N.W.2d 420
    (2011).
    55
    Neb. Rev. Stat. § 29-2221(2) (Reissue 2016).
    56
    Meyer v. Frakes, supra note 53.
    57
    
    Id. at 673-74,
    884 N.W.2d at 136-37.
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    (c) Prosecutorial Misconduct and
    Other Alleged Sentencing Errors
    Lastly, Haynes argues several points of alleged prosecuto-
    rial misconduct or trial error during the sentencing hearing,
    unattached to any claim of ineffective assistance of counsel
    or any claim that his plea was involuntary. He presented these
    below as “plain error.” The allegations relate to the court’s
    consideration of his relationship with past girlfriends, alleg-
    edly false letters from past girlfriends, allegedly false accusa-
    tions by the State of past sexual assaults, and a letter written
    from jail to an adult son. In sum, Haynes argues that the State
    improperly presented and the court improperly considered
    false “prior bad acts.” He also argues that a letter to his son
    should not have been considered, because it had been seized
    without a warrant.
    [25] As the district court correctly noted, plain error cannot
    be asserted in a postconviction proceeding to raise claims of
    error by the trial court.58 Haynes cannot avoid the strictures
    of an ineffective assistance of counsel claim by reframing the
    allegation as plain error. Consideration of plain error occurs
    only at the discretion of an appellate court.59
    [26] The only allegation of ineffective assistance of coun-
    sel raised in terms of sentencing is counsel’s failure to pur-
    sue on appeal the objection to the PSI investigator’s alleged
    bias. Counsel’s failure to raise an issue on appeal could be
    ineffective assistance of counsel only if there is a reasonable
    probability that inclusion of the issue would have changed the
    result of the appeal.60 We agree with the district court that a
    claim based on the alleged bias of the PSI investigator would
    not have been successful on appeal. This is especially true
    because the district court stated that it was not considering
    any statement in the PSI report that could have derived from
    58
    State v. Sepulveda, supra note 6.
    59
    See 
    id. 60 State
    v. Sellers, 
    290 Neb. 18
    , 
    858 N.W.2d 577
    (2015).
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    the investigator’s prior contact with Haynes. Therefore, this
    allegation, like the others, does not raise a claim warranting an
    evidentiary hearing.
    3. Appointment of Counsel
    Under the Nebraska Postconviction Act, it is within the
    discretion of the trial court as to whether counsel shall be
    appointed to represent the defendant.61 When the assigned
    errors in a postconviction petition before the district court con-
    tain no justiciable issues of law or fact, it is not an abuse of
    discretion to fail to appoint counsel for an indigent defendant.62
    Based upon our conclusion that Haynes’ postconviction motion
    presented no justiciable issues for postconviction relief, we
    conclude that the district court did not abuse its discretion in
    denying his motion for appointment of counsel.
    VI. CONCLUSION
    For the foregoing reasons, we affirm the order of the district
    court denying Haynes’ motion for postconviction relief with-
    out an evidentiary hearing or the appointment of counsel.
    A ffirmed.
    K elch, J., participating on briefs.
    Wright and Miller-Lerman, JJ., not participating.
    61
    State v. McLeod, supra note 3.
    62
    Id.