State v. Agok ( 2014 )

Decisions of the Nebraska Court of Appeals
536 22 NEBRASKA APPELLATE REPORTS
statute of limitations, in granting Southfork’s motion for sum-
mary judgment, and in dismissing the Adamses’ complaint.
Therefore, we reverse the order of the district court granting
Southfork’s motion for summary judgment and remand the
matter as to the Adamses’ complaint against Southfork back
to the district court for further proceedings consistent with
this opinion.
Affirmed in part, and in part reversed and
remanded for further proceedings.
State of Nebraska, appellee, v.
Agok Arok Agok, appellant.
___ N.W.2d ___
Filed November 10, 2014. No. A-14-141.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the factual findings of the
district court will not be disturbed unless they are clearly erroneous.
2. Postconviction: Constitutional Law: Proof. A defendant moving for postcon-
viction relief must allege facts which, if proved, constitute a denial or violation
of his or her rights under the state or federal Constitutions.
3. Attorneys at Law: Appeal and Error. Attorneys of record of the respective par-
ties in the court below shall be deemed the attorneys of the same parties in the
appellate court, until a withdrawal of appearance has been filed.
4. Criminal Law: Attorneys at Law: Appeal and Error. Counsel in any criminal
case pending in an appellate court may withdraw only after obtaining permission
of the appellate court.
5. Criminal Law: Attorneys at Law: Notice: Appeal and Error. Counsel
appointed in the district court to represent a defendant in a criminal case other
than a postconviction action shall, upon request by the defendant after judgment,
file a notice of appeal and continue to represent the defendant unless permitted to
withdraw by the appellate court.
6. Effectiveness of Counsel: Appeal and Error. A defendant’s desire to argue that
trial counsel was ineffective gives rise to a potential conflict of interest, preclud-
ing trial counsel from continued representation of the defendant on appeal.
7. Right to Counsel: Courts: Appeal and Error. When trial counsel files a motion
to withdraw in the appellate court due to a conflict of interest, the appellate court
shall issue an order to the district court directing it to appoint counsel if the
defendant requests counsel be appointed and shows by affidavit to the district
court that he is indigent.
Decisions of the Nebraska Court of Appeals
STATE v. AGOK 537
Cite as 22 Neb. Ct. App. 536
8. Right to Counsel: Appeal and Error. When an indigent defendant is deprived
of his constitutional right to counsel by not being furnished an attorney to pre­
sent his direct appeal to an appellate court, the defendant is not afforded an
effective appeal, and the decision thereon is deemed a nullity.
Appeal from the District Court for Hall County: James D.
Livingston, Judge. Reversed and remanded with directions.
Agok Arok Agok, pro se.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Moore, Chief Judge, and Riedmann and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
Agok Arok Agok appeals from the order of the district
court for Hall County dismissing his motion for postconvic-
tion relief without an evidentiary hearing. Because we find
that Agok was denied his constitutional right to be represented
by counsel on direct appeal, we reverse the dismissal of
Agok’s motion for postconviction relief and remand the mat-
ter to the district court with directions to grant Agok a new
direct appeal and to appoint new counsel to represent him for
such appeal.
BACKGROUND
In April 2013, Agok was convicted by a jury of terroris-
tic threats and use of a weapon to commit a felony. He was
sentenced to concurrent prison terms of 1 to 2 years and 5 to
8 years, respectively. After sentencing, Agok’s trial counsel,
a deputy public defender, informed Agok that she would not
be able to represent him on appeal due to his claim that she
provided ineffective assistance of counsel. She did, however,
assist him in preparing and filing the necessary documents to
perfect his appeal.
Agok, appearing pro se, timely filed a notice of appeal, an
application to proceed in forma pauperis, and a poverty affida-
vit, as well as a document titled “Assignment of Errors,” listing
ineffective assistance of trial counsel as the sole error assigned.
Decisions of the Nebraska Court of Appeals
538 22 NEBRASKA APPELLATE REPORTS
The district court granted Agok’s application to proceed in
forma pauperis, and his appeal was docketed in this court as
case No. A-13-578.
After his appeal was perfected, Agok filed a pro se motion
for the appointment of new counsel in the district court. The
district court entered an order the following day stating that
the appellate court obtained exclusive jurisdiction over the
case upon the filing of his notice of appeal and that therefore,
any motions must be made to the appellate court. Accordingly,
Agok filed a subsequent pro se motion for appointment of
counsel in this court, which we “[o]verruled without prejudice
to filing in the sentencing court.” We subsequently dismissed
Agok’s appeal in case No. A-13-578 on October 18, 2013, due
to his failure to file a brief.
Agok filed a motion for postconviction relief in the district
court, alleging that trial counsel was ineffective for failing to
file an appeal. The district court dismissed the motion without
an evidentiary hearing. It noted that counsel was not ineffec-
tive for failing to file an appeal, because Agok’s appeal had
been perfected.
Agok timely appeals the district court’s judgment.
ASSIGNMENTS OF ERROR
Agok assigns that the district court erred in dismissing his
motion for postconviction relief, because his counsel was inef-
fective for failing to file an appellate brief, and that he was
denied counsel at a critical stage of the proceedings.
STANDARD OF REVIEW
[1,2] A defendant requesting postconviction relief must
establish the basis for such relief, and the factual findings of
the district court will not be disturbed unless they are clearly
erroneous. State v. Trotter, 259 Neb. 212, 609 N.W.2d 33
(2000). A defendant moving for postconviction relief must
allege facts which, if proved, constitute a denial or violation
of his or her rights under the state or federal Constitutions. Id.
ANALYSIS
[3-5] The Nebraska court rules of appellate practice provide
that the attorneys of record of the respective parties in the
Decisions of the Nebraska Court of Appeals
STATE v. AGOK 539
Cite as 22 Neb. Ct. App. 536
court below shall be deemed the attorneys of the same parties
in the appellate court, until a withdrawal of appearance has
been filed. See Neb. Ct. R. App. P. § 2-101(F)(1) (rev. 2010).
Counsel in any criminal case pending in an appellate court
may withdraw only after obtaining permission of the appellate
court. Id. Counsel appointed in the district court to represent a
defendant in a criminal case other than a postconviction action
shall, upon request by the defendant after judgment, file a
notice of appeal and continue to represent the defendant unless
permitted to withdraw by the appellate court. Neb. Ct. R. App.
P. § 2-103(A).
[6] The record before us reflects that trial counsel is a
deputy public defender that was appointed to represent Agok
at the trial court level. Although counsel assisted Agok in pre-
paring and filing a notice of appeal, she violated the forego-
ing rules by ceasing to represent him without filing a motion
to withdraw in this court after his appeal had been perfected.
We recognize that trial counsel could not continue to represent
Agok on appeal due to his claim that she provided ineffec-
tive assistance of counsel. See State v. Molina, 271 Neb. 488,
713 N.W.2d 412 (2006) (defendant’s desire to argue that trial
counsel was ineffective gave rise to potential conflict of inter-
est, because it placed trial counsel in position of having to
argue his or her own ineffectiveness). However, Agok’s trial
counsel was required to file a motion in this court requesting
permission to withdraw and stating the reason for the request.
See § 2-103(B).
[7] We note that Agok filed a motion for appointment
of counsel in this court in August 2013, and we denied the
motion without prejudice to filing in the trial court. See
Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588
(2008) (stating that in interwoven and interdependent cases,
appellate court may examine its own records and take judicial
notice of proceedings and judgment in former action involving
party). At that time, although Agok had filed pro se pleadings
in this court, the transcript revealed that he was represented
by the Hall County public defender’s office through trial
and sentencing and that there was no indication of counsel’s
withdrawal. Had the public defender properly filed a motion
Decisions of the Nebraska Court of Appeals
540 22 NEBRASKA APPELLATE REPORTS
to withdraw as counsel in our court, we would have issued an
order directing the district court to appoint counsel to repre-
sent Agok on direct appeal, provided he asked that counsel be
appointed and satisfactorily showed by affidavit to the district
court that he was indigent. See State v. Dawn, 246 Neb. 384,
519 N.W.2d 249 (1994).
[8] Because this procedure was not followed in this case,
Agok was forced to proceed with his direct appeal without
counsel. When an indigent defendant is deprived of his con-
stitutional right to counsel by not being furnished an attorney
to present his direct appeal to an appellate court, the defendant
is not afforded an effective appeal, and the decision thereon
is deemed a nullity. State v. Dawn, supra. Agok’s indigence
was established when the district court granted his applica-
tion to proceed in forma pauperis on appeal. Thus, he had a
right to appointed counsel for his direct appeal. See, Evitts v.
Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985);
Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed.
2d 811 (1963).
Because Agok was deprived of his right to be represented by
counsel on appeal, we reverse the dismissal of Agok’s motion
for postconviction relief and remand the matter to the district
court with directions to grant Agok a new direct appeal and to
appoint new counsel to represent him for such appeal.
CONCLUSION
For the foregoing reasons, we reverse the dismissal of
Agok’s motion for postconviction relief and remand the matter
to the district court with directions to grant Agok a new direct
appeal and to appoint new counsel to represent him.
R eversed and remanded with directions.