State v. Fester ( 2013 )

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40 287 NEBRASKA REPORTS
juvenile court that he was Kodi’s custodian. Therefore, we do
not consider that argument on appeal.
In summary, Michael argues that he should be included as
a party on grounds not presented to the juvenile court. Yet,
he fails to challenge the juvenile court’s key decision leading
to his exclusion—the setting aside of the acknowledgment of
paternity as fraudulent. As such, the only question properly
before this court is whether the juvenile court erred in dismiss-
ing Michael from the proceedings after it had set aside the
acknowledgment of paternity.
We find no error in this regard. Once the acknowledg-
ment was set aside, Michael could no longer claim that he
was Kodi’s legal father. And the evidence before the juvenile
court conclusively established that Michael was not Kodi’s
biological father. The acknowledgment was Michael’s sole
basis for claiming that he was Kodi’s father. Therefore, once
the acknowledgment was set aside, he had no interest in the
juvenile proceedings as a father. The juvenile court did not err
in excluding Michael, because he was neither the legal nor the
biological father.
CONCLUSION
For the aforementioned reasons, we affirm the juve-
nile court’s order dismissing Michael from the juvenile
proceedings.
Affirmed.
Heavican, C.J., not participating.
State of Nebraska, appellee, v.
Gregory D. Fester II, appellant.
___ N.W.2d ___
Filed December 13, 2013. No. S-13-401.
1. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel
provided ineffective assistance presents a mixed question of law and fact.
An appellate court reviews the district court’s factual findings for clear error.
Whether defense counsel’s performance was deficient and whether the defendant
was prejudiced by that performance are questions of law that the appellate court
reviews independently of the district court’s decision.
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STATE v. FESTER 41
Cite as 287 Neb. 40
2. Postconviction: Pleas: Waiver: Effectiveness of Counsel. While normally a
voluntary guilty plea waives all defenses to a criminal charge, in a postconviction
proceeding brought by a defendant convicted because of a guilty plea or a plea
of no contest, a court will consider an allegation that the plea was the result of
ineffective assistance of counsel.
3. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order
to establish a right to postconviction relief based on a claim of ineffective assist­
ance of counsel, the defendant has the burden, in accordance with Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show
that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the defense in his or her case.
4. Effectiveness of Counsel: Proof. To show deficient performance, a defendant
must show that counsel’s performance did not equal that of a lawyer with ordi-
nary training and skill in criminal law in the area.
5. Effectiveness of Counsel: Pleas: Proof. To show prejudice when the alleged
ineffective assistance relates to the entry of a plea, the defendant must show that
there is a reasonable probability that, but for counsel’s errors, he or she would not
have entered the plea and would have insisted on going to trial.
6. Effectiveness of Counsel: Proof. The two prongs of the ineffective assistance
test under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), deficient performance and prejudice, may be addressed in
either order.
7. Effectiveness of Counsel: Presumptions: Appeal and Error. The entire ineffec-
tiveness analysis is viewed with a strong presumption that counsel’s actions were
reasonable and that even if found unreasonable, the error justifies setting aside
the judgment only if there was prejudice.
Appeal from the District Court for Cass County: Randall L.
R ehmeier, Judge. Affirmed.
Michael Ziskey, of Fankhauser, Nelsen, Werts, Ziskey &
Merwin, P.C., for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Stephan, J.
Pursuant to a plea agreement, Gregory D. Fester II pled
guilty to two counts of second degree murder and one count
of use of a weapon to commit a felony. He was sentenced to
two terms of life imprisonment on the murder convictions
and to a term of 10 to 20 years in prison on the weapon
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42 287 NEBRASKA REPORTS
conviction, the sentences to be served consecutively. On
direct appeal, we rejected his claim that these sentences were
excessive.1 Fester then filed a motion for postconviction
relief, which the district court denied after conducting an evi-
dentiary hearing. Fester now appeals from that order. Finding
no error, we affirm.
FACTS
Fester was originally charged with two counts of first degree
murder and two counts of use of a weapon to commit a felony.
The charges were based on the deaths of Wayne and Sharmon
Stock in rural Murdock, Nebraska, on or about April 17, 2006.
Counsel was appointed to represent Fester.
The State attempted to amend the original information to
allege aggravating factors and make Fester eligible for the
death penalty,2 but his counsel successfully challenged the
amendment, thus removing death as a possible penalty for
Fester. The attorney’s time records indicate that he or his
firm spent approximately 285 hours preparing for trial. In this
process, counsel learned that there was substantial evidence
against Fester, including Fester’s statements, DNA evidence,
and the statements of Fester’s codefendant, Jessica Reid.
Approximately 1 month prior to the date set for trial,
Fester’s attorney negotiated a plea agreement for him. Pursuant
to the agreement, the charges were reduced to two counts of
second degree murder and one count of use of a weapon to
commit a felony. Counsel was prepared to try the case, but he
thought the plea agreement was advantageous to Fester because
second degree murder is punishable by 20 years to life in
prison,3 while the only possible sentence Fester could receive
for first degree murder was life in prison.4 Counsel hoped that
by reaching the plea agreement, Fester, who was 19 years old
when the crimes were committed, would be sentenced to a term
of years, rather than life. In Nebraska, an offender sentenced to
1
State v. Fester, 274 Neb. 786, 743 N.W.2d 380 (2008).
2
See Neb. Rev. Stat. § 29-1603 (Reissue 2008).
3
See Neb. Rev. Stat. §§ 28-105 and 28-304 (Reissue 2008).
4
See § 28-105 and Neb. Rev. Stat. § 28-303 (Reissue 2008).
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STATE v. FESTER 43
Cite as 287 Neb. 40
a term of years is eligible for parole, but an offender subject to
a life sentence is not unless the sentence is commuted to a term
of years by the Nebraska Board of Pardons.5
The written plea agreement expressly states that the statutory
penalty for second degree murder is a minimum of 20 years in
prison and a maximum of life imprisonment. It further states:
“The Court can impose any sentence within the statutory range
and both parties are free to argue at [the] time of sentencing
as to what sentence should be imposed. There is no agreement
as to the sentence to be imposed.” The plea agreement further
states that Fester had adequate time to discuss his defenses
and options with his counsel and that Fester understood the
provisions of the agreement. It also contains a clause noting
that the agreement “contains all of the promises, agreements,
and understandings between the parties.” Fester read the plea
agreement, entered his initials at the bottom of each page of the
agreement, and signed the agreement.
Prior to accepting Fester’s pleas, the district court engaged
in a lengthy colloquy with him which included an advisement
of the possible statutory penalties for second degree murder.
Fester informed the court that he understood the possible
penalties. Fester further acknowledged that he had had ample
opportunity to review the case with his attorney and that he
agreed to the plea agreement and wanted to enter it. He further
stated that he was satisfied with his attorney’s services.
After accepting the guilty pleas, the district court sentenced
Fester to life imprisonment on both convictions of second
degree murder and to 10 to 20 years in prison on the weapon
conviction, the sentences to run consecutively. The same attor-
ney represented Fester on direct appeal, in which we affirmed
his sentences.6
Fester then filed this postconviction action. His original
motion asserted eight grounds. The district court granted him
an evidentiary hearing on two grounds alleging ineffective
assistance of counsel, and it denied relief with respect to the
5
See, Neb. Const. art. IV, § 13; Neb. Rev. Stat. § 83-1,110 (Reissue 2008);
Poindexter v. Houston, 275 Neb. 863, 750 N.W.2d 688 (2008).
6
State v. Fester, supra note 1.
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44 287 NEBRASKA REPORTS
remaining allegations. Fester did not appeal from that order,
and that decision is therefore final and not the subject of
this appeal.7
The district court then conducted an evidentiary hearing
on Fester’s allegations of ineffective assistance of counsel.
Evidence received at the hearing included the plea agreement,
the transcript of the hearing during which Fester’s pleas were
accepted, and the depositions of Fester and the attorney who
represented him in the criminal prosecution and on direct
appeal. After reviewing this evidence, the district court deter-
mined that Fester had failed to meet his burden of proving
his pleas were the result of ineffective assistance of counsel,
and therefore denied postconviction relief. Fester filed this
timely appeal.
ASSIGNMENT OF ERROR
Fester’s sole assignment of error is that the district court
erred in finding that his guilty pleas were not the result of inef-
fective assistance of counsel.
STANDARD OF REVIEW
[1] A claim that defense counsel provided ineffective assist­
ance presents a mixed question of law and fact.8 We review
the district court’s factual findings for clear error.9 However,
whether defense counsel’s performance was deficient and
whether the defendant was prejudiced by that performance are
questions of law that we review independently of the district
court’s decision.10
ANALYSIS
[2] For the sake of completeness, we note that Fester’s
ineffective assistance of counsel claims are properly before
us. His guilty pleas did not waive the claim; while normally
a voluntary guilty plea waives all defenses to a criminal
7
See State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011).
8
See State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
9
See id.
10
Id.
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STATE v. FESTER 45
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charge, in a postconviction proceeding brought by a defendant
convicted because of a guilty plea or a plea of no contest, a
court will consider an allegation that the plea was the result of
ineffective assistance of counsel.11 And Fester’s claims are not
procedurally barred because he was represented by the same
counsel at trial and on appeal, and thus postconviction is the
proper forum to raise his ineffective assistance of trial coun-
sel claims.12
[3-7] Certain general principles govern our consideration of
Fester’s claims. In order to establish a right to postconviction
relief based on a claim of ineffective assistance of counsel,
the defendant has the burden, in accordance with Strickland
v. Washington,13 to show that counsel’s performance was defi-
cient and that counsel’s deficient performance prejudiced the
defense in his or her case.14 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.15 To show prejudice when the alleged inef-
fective assistance relates to the entry of a plea, the defend­
ant must show that there is a reasonable probability that,
but for counsel’s errors, he or she would not have entered
the plea and would have insisted on going to trial.16 The
two prongs of this test, deficient performance and prejudice,
may be addressed in either order.17 The entire ineffectiveness
analysis is viewed with a strong presumption that counsel’s
actions were reasonable and that even if found unreasonable,
11
State v. Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009).
12
See, State v. Robinson, 285 Neb. 394, 827 N.W.2d 292 (2013); State v.
McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010).
13
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
14
State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012); State v. Golka, 281
Neb. 360, 796 N.W.2d 198 (2011).
15
State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
16
See State v. Dunkin, supra note 14.
17
See, id.; State v. Golka, supra note 14; State v. Vo, 279 Neb. 964, 783
N.W.2d 416 (2010).
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the error justifies setting aside the judgment only if there
was prejudice.18
In Fester’s brief to this court, he asserts that his counsel
was ineffective in three respects. We examine each of them
in turn.
Investigation and R eview
by Counsel
Fester alleges that his counsel provided ineffective assist­
ance because he did not directly review any discovery mate-
rials with Fester and did not adequately investigate the case.
Fester alleges that because of these alleged shortcomings, he
was forced to enter his guilty pleas.
The district court examined this claim in light of all the
evidence presented and found that Fester failed to establish
that counsel provided ineffective assistance. The court largely
limited its analysis to whether counsel’s performance was
deficient. In doing so, it found that Fester’s claims were sub-
stantially negated by the statements he made on the record at
the time he entered his pleas—specifically, that he was satis-
fied with counsel’s representation and that he had had ample
time to discuss the case with him. Further, the court relied
upon counsel’s testimony that although he did not give dis-
covery reports directly to Fester, he kept Fester informed on
an “‘ongoing’” basis of what he was reviewing and met with
Fester 10 times outside of the courtroom. The court also found
that Fester’s counsel spent approximately 285 hours preparing
for trial and that he continued to prepare until the plea agree-
ment was reached. None of these factual findings are clearly
erroneous, and we agree that on these facts, counsel did not
perform deficiently. We affirm the district court’s finding that
counsel was not ineffective in this regard.
P romise
of 21- to 35-Year
Sentences
Fester claims that his attorney told him he would be sen-
tenced to 21 to 35 years in prison on the second degree murder
18
State v. Dunkin, supra note 14.
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STATE v. FESTER 47
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convictions and that but for this assurance, he would not have
entered into the plea agreement. But the district court found
the evidence refuted this claim and that counsel did not per-
form deficiently. Specifically, the court found that prior to
accepting the plea, Fester was advised that the possible penalty
for second degree murder was 20 years to life in prison. The
court also credited his attorney’s testimony that he did not
tell Fester he would be sentenced to 20 to 35 years in prison
on the murder convictions and 1 to 5 years in prison on the
weapon conviction. In addition, the record demonstrates that
the plea agreement itself set forth the possible penalties for
second degree murder and that Fester read and signed the plea
agreement. We agree with the district court that the evidence
establishes that Fester’s counsel did not perform deficiently
in this respect and therefore did not provide Fester ineffective
assistance of counsel.
Trial P reparation
Fester alleges that although trial was set for February 26,
2007, by January 19, his attorney had not taken any deposi-
tions, subpoenaed any witnesses, or discussed Fester’s right
to testify in his own defense at trial. He implies that due to
this lack of preparation, he was coerced into entering into the
plea agreement.
But Fester testified that at the time he entered his pleas,
he understood his attorney was prepared to try the case. He
also informed the court during the plea colloquy that he was
satisfied with his attorney’s services and had had ample time
to review the case and the plea agreement with him. This evi-
dence directly negates his claim that he was forced to enter the
pleas because he thought his attorney was unprepared for trial.
We further note the record demonstrates that counsel engaged
in substantial pretrial preparation and that in the course of
doing so, he was confronted with significant evidence against
Fester. Under the circumstances, it was a reasonable strategy
to enter into the plea agreement which reduced the charges
to second degree murder.19 We agree with the district court
19
See, generally, State v. Edwards, supra note 8.
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that Fester’s counsel did not provide ineffective assistance in
this regard.
CONCLUSION
For all of the foregoing reasons, we affirm the decision of
the district court denying postconviction relief.
Affirmed.