State v. Branch , 286 Neb. 83 ( 2013 )

Nebraska Advance Sheets
STATE v. BRANCH 83
Cite as 286 Neb. 83district court will not be disturbed unless they are clearly
erroneous. State v. Robinson, 285 Neb. 394, 827 N.W.2d 292(2013). “The entry of filing by the clerk is the best evidence
of the date of filing and is presumed to be correct until the
contrary is shown.” State v. Hess, 261 Neb. 368, 377-78,
622 N.W.2d 891, 901 (2001). The district court’s finding
that Smith filed his motion outside the 1-year period was not
clearly erroneous.
VI. CONCLUSION
The district court did not err in denying postconviction
relief without an evidentiary hearing. We affirm the judgment
of the district court.
Affirmed.
State of Nebraska, appellee, v. James L. Branch, appellant.
___ N.W.2d ___
Filed June 14, 2013. No. S-12-1010.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals from post­
conviction proceedings, an appellate court reviews de novo a determination that
the defendant failed to allege sufficient facts to demonstrate a violation of his or
her constitutional rights or that the record and files affirmatively show that the
defendant is entitled to no relief.
2. Postconviction: Constitutional Law: Judgments: Proof. An evidentiary hear­
ing on a motion for postconviction relief is required on an appropriate motion
containing factual allegations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution, causing the judgment
against the defendant to be void or voidable.
3. Postconviction. An evidentiary hearing is not required when a motion for post­
conviction relief alleges only conclusions of fact or law.
4. Postconviction: Constitutional Law: Judgments: Proof. If a defendant makes
sufficient allegations of a constitutional violation which would render a judg­
ment void or voidable, an evidentiary hearing on a motion for postconviction
relief may be denied only when the records and files affirmatively show that the
defend­ nt is entitled to no relief.
a
Appeal from the District Court for Douglas County: W.
Mark Ashford, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
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84 286 NEBRASKA REPORTS
Sean M. Conway, of Dornan, Lustgarten & Troia, P.C.,
L.L.O., for appellant.
Jon Bruning, Attorney General, and George R. Love
for appellee.
Heavican, C.J., Wright, Stephan, McCormack, and
Cassel, JJ.
Heavican, C.J.
INTRODUCTION
James L. Branch’s motion for postconviction relief was
denied without an evidentiary hearing. He appeals. We con­
clude that Branch is entitled to an evidentiary hearing on
his allegation regarding potential alibi evidence and accord­
ingly reverse the district court’s denial of a hearing. As to
Branch’s other allegations, however, we affirm the district
court’s judgment.
BACKGROUND
In March 2008, Branch was charged by amended informa­
tion with robbery, first degree false imprisonment, and kid­
napping. At his jury trial, Branch testified in his own behalf
that he was not present during the alleged crimes. Following
the conclusion of his trial, Branch was convicted of rob­
bery and kidnapping, and the false imprisonment charge was
dismissed. He was sentenced to 40 to 50 years’ imprison­
ment for robbery and life imprisonment for kidnapping; this
court affirmed.1
In April 2011, Branch filed a pro se motion for postconvic­
tion relief. He was appointed counsel, and an amended motion
for postconviction relief was filed. That motion alleged that
trial and appellate counsel were the same and that this counsel
was ineffective as follows:
a. Trial counsel was aware [Branch] claimed not to be
present during the incident and did not commit the crimes
charged but failed to call witnesses on [Branch’s] behalf,
such as Laqu[e]sha Martin, who would testify [Branch]
1
State v. Branch, 277 Neb. 738, 764 N.W.2d 867 (2009).
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STATE v. BRANCH 85
Cite as 286 Neb. 83was not present during the incident and did not commit
the crimes charged;
b. Trial counsel failed to use an investigator to dis­
cover additional witnesses and/or evidence that tended
to establish that [Branch] was not present during the
incident and did not commit the crimes charged even
though [Branch] provided trial counsel with information
in this regard;
c. Trial counsel knew there were latent fingerprints
from the crime scene, but did not request for indepen­
dent scientific evaluation of any and all lifts of latent
fingerprints;
d. Trial counsel knew there was blood or suspected
blood samples, but did not request for independent scien­
tific evaluation of any and all blood or suspected blood
samples; and
e. Trial counsel failed to consult with [Branch] regard­
ing critical aspects of the case, e.g., calling or not calling
witnesses vital to the defense, theory of the defense, and
final argument.
Branch further alleged that he was prejudiced by this deficient
performance because:
a. The lack of additional defense witnesses and expert
testimony regarding the physical evidence unfairly preju­
diced the jury against [Branch] and his theory of defense;
b. Consultation with [Branch] regarding potential
defense witnesses, expert testimony, and trial strategy
would have resulted in a stronger defense at trial and
would have produced a different result at trial; and
c. There is a reasonable probability that but for trial
counsel’s deficient performance the results of the trial
would have been different.
The district court denied Branch’s motion without an evi­
dentiary hearing. Branch appeals.
ASSIGNMENT OF ERROR
Branch assigns that the district court erred in failing to
grant an evidentiary hearing on his motion for postconvic­
tion relief.
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86 286 NEBRASKA REPORTS
STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel­
late 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 affirma­
tively show that the defendant is entitled to no relief.2
ANALYSIS
[2-4] In his sole assignment of error, Branch asserts that
the district court erred in failing to grant him an evidentiary
hearing. An evidentiary hearing on a motion for postconvic­
tion relief is required on an appropriate motion containing
factual allegations which, if proved, constitute an infringe­
ment of the movant’s rights under the Nebraska or federal
Constitution, causing the judgment against the defendant to
be void or voidable.3 An evidentiary hearing is not required
when the motion alleges only conclusions of fact or law.4 If
the defendant makes sufficient allegations of a constitutional
violation which would render the judgment void or voidable,
an evidentiary hearing may be denied only when the records
and files affirmatively show that the defendant is entitled to
no relief.5
Alibi Testimony.
We turn first to Branch’s argument that the district court
erred in failing to grant an evidentiary hearing on his allegation
that his trial counsel was ineffective for failing to present alibi
evidence in the form of Laquesha Martin’s testimony.
As is set forth above, Branch alleged that trial counsel was
aware of Branch’s alibi defense and further alleged that Martin
would testify that Branch was not present during the inci­
dent and did not commit the crimes charged. Standing alone,
these allegations are insufficient to support the granting of an
2
State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
3
State v. Poe, 284 Neb. 750, 822 N.W.2d 831 (2012).
4
Id.5
Id.Nebraska Advance Sheets
STATE v. BRANCH 87
Cite as 286 Neb. 83evidentiary hearing, because they do not specifically allege that
Martin would provide an alibi for Branch.
Given the restrictions of the Nebraska Postconviction Act,6
those seeking postconviction relief ought to plead any and all
allegations with as much detail as possible in order to avoid the
dismissal of their motion without an evidentiary hearing. But
in this case, an otherwise vague allegation is made sufficiently
clear upon review of the record.
At trial, Branch testified in his own behalf. In that testi­
mony, Branch stated that on the date of the robbery, he was
asleep until just prior to either 11 a.m. or 2 p.m., at which
time he picked up Martin from work. Branch explained that
he was uncertain about the time because Martin had been
working a lot of overtime and he was unsure about whether
she worked overtime on that day. In any event, Branch testi­
fied that after he picked Martin up, he and Martin drove to
the home of a friend of Branch’s who was keeping Branch’s
dog. Branch estimated that they were gone about 11⁄2 hours
before returning to the apartment they shared. Upon returning
to their apartment, the two met with Paul Miller. Miller had in
his possession a credit card, and he asked Branch if he would
go around town with Miller and fill up gas tanks. We note that
this timeline, while vague, is not obviously inconsistent with
the victim’s testimony regarding the robbery, which is also
somewhat vague.
When the allegations regarding Martin’s proposed testimony
are considered in conjunction with Branch’s trial testimony,
they are sufficient to warrant the granting of an evidentiary
hearing. The allegations in Branch’s motion state that Martin
would testify that Branch was not present during the incident
and did not commit the crimes charged. And Branch testi­
fied that he was with Martin. A logical reading of both sug­
gests that Martin would testify that Branch was not present
and did not commit the crimes charged because he was with
Martin. As such, Branch is entitled to an evidentiary hearing
on this allegation.
6
Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2012).
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88 286 NEBRASKA REPORTS
Remaining Allegations.
Branch also alleges that his counsel was ineffective for fail­
ing to use an investigator to discover additional witnesses, for
failing to consult with Branch on critical aspects of the case,
and for failing to order independent testing of fingerprint and
blood evidence.
While Branch is entitled to an evidentiary hearing on the
question of the ineffectiveness of his trial counsel with regard
to a potential alibi witness, the remainder of his allegations
are merely conclusory and insufficient to warrant postconvic­
tion relief. Branch fails to allege what other witnesses might
be called or what their testimony might be. In addition, he
fails to allege what specifically would have been different
about these “critical aspects of the case” if only he had been
consulted by trial counsel. And Branch fails to set forth any
prejudice that would result from independent analyses of fin­
gerprint and blood evidence when nothing at trial suggested
that this evidence in any way implicated Branch, and where
there were other perpetrators of the crimes in addition to
Branch. Thus, Branch is not entitled to an evidentiary hearing
on these allegations.
CONCLUSION
We reverse the district court’s denial of Branch’s request for
an evidentiary hearing regarding trial counsel’s alleged inef­
fectiveness in failing to present Martin’s alibi testimony. We
otherwise affirm the denial of Branch’s request. The judgment
of the district court is affirmed in part and in part reversed, and
the cause remanded for further proceedings.
Affirmed in part, and in part reversed and
remanded for further proceedings.
Connolly and Miller-Lerman, JJ., participating on briefs.