State v. Dalton , 307 Neb. 465 ( 2020 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/09/2020 02:09 AM CST
    - 465 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. DALTON
    Cite as 
    307 Neb. 465
    State of Nebraska, appellee, v.
    John W. Dalton, Jr., appellant.
    ___ N.W.2d ___
    Filed October 9, 2020.    No. S-19-1192.
    1. Effectiveness of Counsel: Appeal and Error. Appellate review of a
    claim of ineffective assistance of counsel is 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.
    2. Postconviction: Evidence. In an evidentiary hearing on a motion for
    postconviction relief, the trial judge, as the trier of fact, resolves con-
    flicts in the evidence and questions of fact.
    3. 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.
    4. Postconviction: Effectiveness of Counsel: Appeal and Error. 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, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984), to show that counsel’s performance was deficient; that is,
    counsel’s performance did not equal that of a lawyer with ordinary train-
    ing and skill in criminal law. Next, the defendant must show that coun-
    sel’s deficient performance prejudiced the defense in his or her case.
    5. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and
    Error. After a trial, conviction, and sentencing, if counsel deficiently
    fails to file or perfect an appeal after being so directed by the criminal
    defendant, prejudice will be presumed and counsel will be deemed inef-
    fective, thus entitling the defendant to postconviction relief.
    - 466 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. DALTON
    Cite as 
    307 Neb. 465
    6. Effectiveness of Counsel: Appeal and Error. Failing to directly
    appeal when the defendant is silent after being informed of the right
    to appeal and the manner to communicate the desire to appeal is not
    ­analogous to the situation where counsel ignores an express directive by
    the client to file a direct appeal.
    7. Postconviction: Effectiveness of Counsel: New Trial: Appeal and
    Error. When a postconviction motion alleges a claim of ineffective
    assistance based on counsel’s failure to file a direct appeal, which has
    as its relief a new direct appeal, alongside other claims of ineffec-
    tive assist­ance of counsel that request as relief a new trial, the district
    court must first address the claim that counsel was ineffective for fail-
    ing to file a direct appeal, including holding an evidentiary hearing,
    if required.
    8. Effectiveness of Counsel: Final Orders: Appeal and Error. Upon
    reaching its decision on a claim of ineffective assistance based on coun-
    sel’s failure to file a direct appeal, the district court should enter a final
    order on that claim only; only after the resolution of an appeal from the
    order, or, alternatively, the expiration of the defendant’s time to appeal,
    should the district court proceed to consider the remaining claims.
    9. Postconviction: Effectiveness of Counsel: Final Orders: Appeal and
    Error. Addressing and waiting for a final mandate on any claims
    of ineffective assistance of counsel for failing to file a direct appeal
    before addressing other postconviction claims of ineffective assistance
    of counsel serve the interests of judicial economy by preventing the
    district court’s determination of the nondirect appeal claims from being
    rendered meaningless.
    10. Postconviction: Final Orders: Appeal and Error. When a district
    court disposes of other postconviction claims before there has been a
    final mandate on a disposition of the postconviction claim requesting a
    new direct appeal, the proper disposition in an appeal from the district
    court’s order is to vacate the district court’s disposition of the additional
    claims and remand the cause for further proceedings.
    11. Postconviction: Appeal and Error. A motion for postconviction relief
    cannot be used to secure review of issues which were known to the
    defendant and which were or could have been litigated on direct
    appeal.
    Appeal from the District Court for Douglas County: Leigh
    Ann Retelsdorf, Judge. Affirmed in part, and in part vacated
    and remanded for further proceedings.
    Jerry M. Hug for appellant.
    - 467 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. DALTON
    Cite as 
    307 Neb. 465
    Douglas J. Peterson, Attorney General, and Erin E. Tangeman
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    John W. Dalton, Jr., appeals from an order denying his
    motion for postconviction relief following an evidentiary hear-
    ing on his claim that trial counsel was ineffective for failing to
    file a direct appeal. In the same order, the district court denied
    without an evidentiary hearing Dalton’s separate claim of inef-
    fective assistance of trial counsel, challenging the voluntariness
    of his pleas. For the reasons set forth below, we affirm in part,
    and in part vacate and remand for further proceedings.
    BACKGROUND
    On January 31, 2018, Dalton was charged with seven felo-
    nies relating to the deaths of three people. On December 10,
    Dalton accepted a plea agreement whereby in exchange for the
    State’s agreeing to not seek the death penalty, he pled guilty
    to three counts of first degree murder; three counts of using a
    firearm to commit a felony; and one count of possession of a
    ­firearm by a prohibited person, second offense. Dalton entered
    his pleas of guilty. He then waived his right to a presentence
    investigation and requested immediate sentencing. The court
    granted Dalton’s request and sentenced him to three life sen-
    tences for the three counts of first degree murder; three terms
    of 49 to 50 years’ imprisonment for the three counts of an
    illegal use of a firearm; and a term of 50 to 80 years’ impris-
    onment for one count of possession of a firearm by a prohib-
    ited person, second offense. Each sentence was ordered to be
    served consecutively. No direct appeal was filed.
    On April 8, 2019, Dalton filed a timely verified motion
    for postconviction relief in the district court. In his motion,
    Dalton alleged that counsel was ineffective for failing to file a
    - 468 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. DALTON
    Cite as 
    307 Neb. 465
    direct appeal when Dalton requested that counsel do so follow-
    ing the imposition of his sentences. Dalton also made a claim
    of ineffective assistance of counsel based on trial counsel’s
    failure to investigate the case. Dalton asserts that he would
    not have entered into the plea agreement if his attorney would
    have properly investigated his case. Dalton claimed that coun-
    sel failed to depose the lone eyewitness and failed to secure
    a mental health evaluation for the purposes of establishing
    a defense or mitigating evidence to be used in plea negotia-
    tions. In addition to the ineffective assistance of counsel claim,
    Dalton claimed in his postconviction motion that his sentences
    were excessive and constituted cruel and unusual punishment
    under the Eighth Amendment to the U.S. Constitution.
    The court ordered an evidentiary hearing on the first claim,
    regarding the failure to file a direct appeal. The court ordered
    that all other postconviction claims were to remain pending
    until after the evidentiary hearing. Depositions from Dalton
    and Cindy Tate, Dalton’s trial counsel who was employed by
    the Douglas County public defender’s office, were admitted
    into evidence at the evidentiary hearing.
    Tate indicated in her deposition that during the 11 months
    between when Dalton was charged and his plea hearing, Dalton
    was very interested in the case and made multiple requests to
    pursue a plea agreement with the State. Tate testified that after
    the plea agreement was reached and Dalton was convicted and
    sentenced, she verbally advised Dalton of the opportunity to
    appeal. Tate testified that after the sentencing on December 10,
    2018, Dalton did not request that a direct appeal be filed. She
    also sent him a standard form letter, which advised him of his
    right to appeal and how to contact her. This letter was admitted
    at the postconviction evidentiary hearing.
    Tate testified that she did not receive any written com-
    munication from Dalton indicating a desire to appeal. Tate
    also testified that Dalton did not request a direct appeal dur-
    ing any of the conversations she had with him. Tate testified
    that 2 days after the sentencing, Dalton left a voicemail at the
    - 469 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. DALTON
    Cite as 
    307 Neb. 465
    public defender’s office. In the voicemail, Dalton complained
    about what the prosecutor’s office had said when talking pub-
    licly about his convictions, but he did not indicate a desire
    to appeal.
    Dalton testified in his deposition that he wrote a letter to Tate
    requesting a direct appeal. Dalton claims this letter was given
    to a guard to be placed in the mail at the Douglas County jail
    on the evening of December 12, 2018. Dalton did not proffer
    the alleged letter or the guard’s testimony. Dalton indicated in
    his deposition that Tate had made him aware that if he entered
    pleas of guilty, he would be giving up many of the issues that
    could be raised on appeal. He also admitted that when verbally
    discussing the plea agreement with Tate, he did not indicate to
    her that he wanted to appeal.
    Following the hearing, the district court entered an order
    denying Dalton’s motion as to the direct appeal claim. In the
    same order, the court denied without an evidentiary hear-
    ing “any remaining issues in the postconviction.” The court
    explained in this regard that “the motion fails to state suf-
    ficient facts regarding counsel being deficient or showing
    prejudice, which would require facts showing [Dalton] would
    have insisted on going to trial and not accept the plea offer.”
    Dalton appeals.
    ASSIGNMENTS OF ERROR
    Dalton assigns that the district court erred in (1) determin-
    ing that Dalton was not entitled to reinstatement of his direct
    appeal due to trial counsel’s ineffective assistance and (2) fail-
    ing to grant an evidentiary hearing on Dalton’s claim that his
    pleas were not knowingly and voluntarily made where counsel
    was ineffective for failing to fully investigate the case prior to
    advising him to enter pleas of guilty.
    STANDARD OF REVIEW
    [1] Appellate review of a claim of ineffective assistance of
    counsel is a mixed question of law and fact. When review-
    ing a claim of ineffective assistance of counsel, an appellate
    - 470 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. DALTON
    Cite as 
    307 Neb. 465
    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, 1 an appellate court
    reviews such legal determinations independently of the lower
    court’s decision. 2
    [2] 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. 3
    ANALYSIS
    The district court determined that Dalton was entitled to an
    evidentiary hearing on his posconviction claim that counsel
    was ineffective for failing to file a direct appeal. 4 The court
    ultimately found that trial counsel was not deficient in failing
    to file a direct appeal that was not requested, and we hold that
    those findings were not clearly erroneous. However, the district
    court in the same order also addressed and disposed of the
    remaining postconviction claims on the ground that the motion
    alleged insufficient facts. In State v. Determan, 5 we held that
    there must be a final mandate on the court’s disposition of a
    postconviction claim of ineffective assistance for failing to file
    a direct appeal before the court addresses other postconviction
    ineffective assistance of counsel claims. In accordance with
    Determan, we vacate the part of the order denying Dalton’s
    second ineffective assistance claim and remand the cause for
    further proceedings. We affirm the court’s ruling as to Dalton’s
    claim of excessive sentences for the reason that such claim,
    which was stated apart from any claim of ineffective assist­
    ance, is procedurally barred.
    1
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
        (1984).
    2
    State v. Sierra, 
    305 Neb. 249
    , 
    939 N.W.2d 808
    (2020).
    3
    State v. Beehn, 
    303 Neb. 172
    , 
    927 N.W.2d 793
    (2019).
    4
    See Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016).
    5
    State v. Determan, 
    292 Neb. 557
    , 
    873 N.W.2d 390
    (2016).
    - 471 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. DALTON
    Cite as 
    307 Neb. 465
    [3-5] Postconviction relief is a very narrow category of
    relief, available only to remedy prejudicial constitutional viola-
    tions that render the judgment void or voidable. 6 To establish
    a right to postconviction relief based on a claim of ineffective
    assistance of counsel, the defendant has the burden, in accord­
    ance with Strickland, 7 to show that counsel’s performance
    was deficient; that is, counsel’s performance did not equal
    that of a lawyer with ordinary training and skill in criminal
    law. Next, the defendant must show that counsel’s deficient
    performance prejudiced the defense in his or her case. 8 After a
    trial, conviction, and sentencing, if counsel deficiently fails to
    file or perfect an appeal after being so directed by the crimi-
    nal defendant, prejudice will be presumed and counsel will be
    deemed ineffective, thus entitling the defendant to postconvic-
    tion relief. 9
    The evidentiary hearing provided Dalton with the opportu-
    nity to present evidence that he directed Tate to file an appeal.
    The court found that Dalton was informed of his right to appeal
    and had not directed Tate to file an appeal. Upon review of the
    record, we cannot say that the district court clearly erred in
    these findings.
    Dalton testified in his deposition that he wrote a letter
    approximately 2 days after his sentencing and left it with a
    guard to be mailed to Tate. But Dalton was unable to provide
    any details or other evidence to corroborate that a letter was
    sent to Tate. Tate testified that no one at the public defender’s
    office received a letter from Dalton.
    Tate testified further that she was never instructed by Dalton
    to file an appeal, despite the fact that she clearly explained
    his opportunity to appeal and sent him a formal letter explain-
    ing that right and how to contact her. The letter was entered
    6
    State v. Beehn, supra note 3.
    7
    Strickland v. Washington, supra note 1.
    8
    State v. Beehn, supra note 3.
    9
    State v. Hessler, 
    295 Neb. 70
    , 
    886 N.W.2d 280
    (2016); State v. Dunkin,
    
    283 Neb. 30
    , 
    807 N.W.2d 744
    (2012).
    - 472 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. DALTON
    Cite as 
    307 Neb. 465
    as an exhibit at the evidentiary hearing. Dalton claims that he
    had limited access to communicate with Tate, but he does not
    contest that he sent a voicemail to Tate approximately 2 days
    after sentencing and did not therein request a direct appeal.
    Dalton did not deny he had been informed by Tate of his right
    to appeal.
    The district court indicated in its order that it found Tate
    to be the more credible witness. In an evidentiary hearing for
    postconviction relief, the postconviction trial judge, as the trier
    of fact, resolves conflicts in evidence and questions of fact,
    including witness credibility and the weight to be given a wit-
    ness’ testimony. 10
    We agree with the district court that Tate was not inef-
    fective for failing to file an appeal that was not requested.
    Dalton argues that it is deficient conduct for trial counsel to
    fail to obtain from the client an explicit directive as to the
    desire to pursue or not pursue a direct appeal and that under
    such circumstances, prejudice should be presumed and a new
    direct appeal ordered. According to Dalton, such a rule is
    appropriate in light of the often limited access of defendants to
    their counsel.
    [6] We decline to place such a burden on counsel. It is
    simply not under defense counsel’s power to force a client
    to provide an explicit response to inquiries regarding the cli-
    ent’s right to appeal. Furthermore, we disagree that prejudice
    should be presumed in the same manner that it is presumed
    when counsel has been directed to file an appeal. 11 Failing
    to directly appeal when the defendant is silent after being
    informed of the right to appeal and the manner to communi-
    cate the desire to appeal is not analogous to the situation where
    counsel ignores an express directive by the client to file a
    direct appeal. 12
    10
    State v. Benzel, 
    269 Neb. 1
    , 
    689 N.W.2d 852
    (2004).
    11
    See State v. Hessler, supra note 9.
    12
    See, id; State v. Wagner, 
    271 Neb. 253
    , 
    710 N.W.2d 627
    (2006).
    - 473 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. DALTON
    Cite as 
    307 Neb. 465
    The Sixth Amendment to the U.S. Constitution provides
    that in all criminal proceedings, the accused shall have the
    right to the assistance of counsel in his or her defense. 13 The
    U.S. Supreme Court has also determined that a defendant has
    a fundamental due process right to access the courts and to
    communicate with his or her legal counsel. 14 But Dalton did
    not make a postconviction claim based on an alleged depriva-
    tion of his right to access the court or to communicate with
    counsel. As found by the district court, Dalton had several
    opportunities after sentencing to communicate to Tate that
    he wanted an appeal, including a telephone call to the public
    defender’s office.
    We agree with the district court that Tate’s failure to elicit
    an explicit directive from Dalton one way or the other was not
    ineffective assistance of counsel. We are unwilling to place an
    increased burden on trial counsel to go beyond informing a
    defendant of the right to appeal and how counsel may be con-
    tacted to request that an appeal be filed. The responsibility for
    requesting an appeal remains with the defendant. On Dalton’s
    claim of ineffective assistance of counsel for failure to file a
    direct appeal, we affirm the district court’s denial of postcon-
    viction relief.
    [7,8] However, precedent requires we vacate that part of
    the district court’s order disposing of Dalton’s postconvic-
    tion ineffective assistance claim that Tate provided ineffective
    assistance of counsel by failing to depose the lone eyewit-
    ness or secure a mental health evaluation for the purposes
    of establishing a defense or mitigating evidence to be used
    in plea negotiations. When a postconviction motion alleges a
    claim of ineffective assistance based on counsel’s failure to
    file a direct appeal, which has as its relief a new direct appeal,
    alongside other claims of ineffective assistance of counsel
    13
    See State v. Bjorklund, 
    258 Neb. 432
    , 
    604 N.W.2d 169
    (2000), abrogated
    on other grounds, State v. Mata, 
    275 Neb. 1
    , 
    745 N.W.2d 229
    (2008).
    14
    See, Lewis v. Casey, 
    518 U.S. 343
    , 
    116 S. Ct. 2174
    , 
    135 L. Ed. 2d 606
         (1996); Ex parte Hull, 
    312 U.S. 546
    , 
    61 S. Ct. 640
    , 
    85 L. Ed. 1034
    (1941).
    - 474 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. DALTON
    Cite as 
    307 Neb. 465
    that request as relief a new trial, the district court must first
    address the claim that counsel was ineffective for failing to
    file a direct appeal, including holding an evidentiary hearing,
    if required. 15 Upon reaching its decision, the district court
    should enter a final order on that claim only. 16 If the claim for
    a new direct appeal is denied, a defendant should be permit-
    ted to appeal that denial. 17 Only after the resolution of that
    appeal, or, alternatively, the expiration of the defendant’s time
    to appeal, should the district court proceed to consider the
    remaining claims. 18
    [9] As we explained in Determan, addressing and waiting
    for a final mandate on any claims of ineffective assistance of
    counsel for failing to file a direct appeal before addressing
    other postconviction claims of ineffective assistance of coun-
    sel serve the interests of judicial economy by preventing the
    district court’s determination of the nondirect appeal claims
    from being rendered meaningless. 19 For, if a new direct appeal
    were ultimately granted on the postconviction claims related to
    counsel’s failure to timely file a direct appeal, then any other
    claims of ineffective assistance of counsel could be raised
    in the new direct appeal rather than through a postconvic-
    tion procedure. 20
    [10] We held in Determan that when a district court fails
    to follow this directive and disposes of other postconviction
    claims before there has been a final mandate on a disposition
    of the postconviction claim requesting a new direct appeal, the
    proper disposition in an appeal from the district court’s order
    is to vacate the district court’s disposition of the additional
    15
    See State v. Determan, supra note 5.
    16
    Id. 17
         Id.
    18
    
         Id.
    19
    
         See
    id. 20
         See
    id. - 475 -
                 Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. DALTON
    Cite as 
    307 Neb. 465
    claims and remand the cause for further proceedings. 21 Thus
    we do so here. Dalton’s assignment of error regarding his sec-
    ond postconviction claim is thereby rendered moot. We do not
    address whether the trial court correctly found that Dalton had
    failed to allege sufficient facts to warrant an evidentiary hear-
    ing on this second claim.
    Dalton does not assign as error the court’s denial of his post-
    conviction claim based on an alleged violation of the Eighth
    Amendment prohibition against cruel and unusual punishment,
    but we note for the sake of completeness that the court’s order
    disposing of this claim does not fall under Determan. Thus, we
    do not vacate the court’s order insofar as it denied the Eighth
    Amendment claim without an evidentiary hearing.
    Dalton did not make such a claim as part of an allegation
    of ineffective assistance of counsel. Determan addresses only
    claims of ineffective assistance of counsel. Such claims, by
    virtue of the absence of a direct appeal with new counsel,
    are not procedurally barred. In such circumstances, it serves
    judicial economy to require that these claims be addressed
    in a new direct appeal if such a direct appeal is ultimately
    ordered. Vacating the order and remanding the cause for fur-
    ther proceedings on such ineffective assistance claims, to be
    held only if a final mandate denies a new direct appeal, serve
    judicial economy.
    [11] A postconviction claim that the sentence was uncon-
    stitutionally excessive, however, is procedurally barred by the
    failure to directly appeal. A motion for postconviction relief
    cannot be used to secure review of issues which were known
    to the defendant and which were or could have been litigated
    on direct appeal. 22 And while an excessive sentence claim
    could be raised in any new direct appeal ordered on an inef-
    fective assistance claim based on a failure to appeal, this does
    not change the fact that as a stand-alone postconviction claim
    21
    See
    id. 22
         State v. Moore, 
    272 Neb. 71
    , 
    718 N.W.2d 537
    (2006).
    - 476 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. DALTON
    Cite as 
    307 Neb. 465
    where there has been no original direct appeal, an excessive
    sentence claim is procedurally barred. It would therefore not
    serve the interests of judicial economy to vacate the court’s
    denial of such excessive sentence claim and remand the cause
    for further proceedings.
    CONCLUSION
    We affirm the district court’s denial of Dalton’s ineffective
    assistance claim concerning his direct appeal. The portion of
    the district court’s order denying Dalton’s claim of ineffec-
    tive assistance of counsel related to ineffective assistance for
    failure to investigate is vacated and the cause is remanded for
    further proceedings.
    Affirmed in part, and in part vacated and
    remanded for further proceedings.