State v. Erpelding ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. ERPELDING
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
SHAWN R. ERPELDING, APPELLANT.
Filed August 7, 2018. No. A-17-332.
Appeal from the District Court for Buffalo County: WILLIAM T. WRIGHT, Judge. Affirmed.
Shawn R. Erpelding, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.
MOORE, Chief Judge, and ARTERBURN and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Shawn R. Erpelding (Erpelding) appeals from the denial of his amended verified motion
for postconviction relief without an evidentiary hearing. Finding no merit to the arguments raised
by Erpelding on appeal, we affirm the denial of his motion.
II. STATEMENT OF FACTS
In May 2012, Erpelding filed a complaint to establish paternity, custody, visitation, and
support of his 4-year-old daughter Grace Erpelding (Grace). In August, a temporary child support
order was entered ordering Erpelding to pay $225 per month. In July 2013, the court entered a
final order granting custody of Grace to her mother, Diane Southall, and ordering Erpelding to pay
$379 per month in child support. Erpelding did not appeal from this final order. Southall began to
receive Aid to Dependent Children (ADC) assistance for Grace through the Department of Health
and Human Services (DHHS) in August 2012. By operation of law, child support was assigned to
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DHHS. See Neb. Rev. Stat. § 43-512.07 (Reissue 2016). Erpelding failed to make any payments
on the temporary support order for over a year.
On August 5, 2013, Erpelding was charged with criminal nonsupport based on his failure
to pay the first 4 months of temporary support, which were August through November 2012.
Erpelding was also charged with being a habitual criminal under Neb. Rev. Stat. § 29-2221(Reissue 2016). Erpelding did not make any payments for the entire duration of the temporary
support order which lasted from August 2012 until July 2013. He made his first payment toward
his child support obligation on October 8, 2013, in the amount of $857. Less than a month later, a
DHHS enforcement officer was able to collect another $644.95 toward Erpelding’s child support
obligation.
In 2014, Erpelding was convicted by a jury of four counts of criminal nonsupport for failure
to pay 4 months of child support totaling $900. After his sentences were enhanced by the habitual
criminal statute, he was sentenced to concurrent terms of 10 to 15 years’ imprisonment on each
count.
1. DIRECT APPEAL
On direct appeal, Erpelding was represented by different counsel. He assigned the
following errors: (1) insufficiency of the evidence to support a finding of felony nonsupport; (2)
the district court violated the Sixth Amendment of the federal Constitution when it failed to submit
to the jury the issue of whether Erpelding’s nonsupport violated any court order; (3) the district
court erred for failing to require a jury instruction on a lesser-included offense of misdemeanor
criminal nonsupport and his trial counsel was ineffective for not requesting one; (4) the district
court erred in finding Erpelding was a habitual criminal and enhancing his sentences; and (5) the
sentences imposed were excessive and illegal. The Nebraska Supreme Court affirmed Erpelding’s
convictions and sentences.
2. POSTCONVICTION
Within a year of the conclusion of his direct appeal, Erpelding filed a verified motion for
postconviction relief, which motion was subsequently amended. The amended motion alleged
ineffective assistance of appellate counsel for failing to raise the following six allegations of
ineffective assistance of trial counsel on direct appeal: (1) trial counsel was ineffective for failing
to file a motion to quash challenging the criminal nonsupport statute under the void-for-vagueness
doctrine; (2) trial counsel was ineffective for failing to file a motion to quash challenging whether
a criminal nonsupport charge, when charged as a felony and then enhanced pursuant to the habitual
criminal act, constitutes impermissible double penalty enhancement; (3) trial counsel was
ineffective for failing to investigate, depose, and have Southall served with a subpoena duces
tecum requiring that she produce (i) the marriage license issued for her and Erpelding, (ii) a joint
account statement, (iii) certain receipts, (iv) certain joint debt statements, and (v) verification of
cohabitation as husband and wife; (4) trial counsel was ineffective for failing to investigate,
depose, and have his former attorney, Arron Bishop, testify at trial regarding “evidence of
[Erpelding]’s financial situation and inability to provide more child support”; (5) trial counsel was
ineffective for failing to investigate, depose, and have certain veterans medical experts testify
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regarding Erpelding’s state of mind and “mental instability” indicating “a diminished capacity to
formulate the requisite intention to not provide support” and how his post-traumatic stress disorder
and nervous breakdown “significantly diminished [his] capacity to formulate the requisite intent”
to commit the offense of criminal nonsupport; and (6) trial counsel was ineffective due to the
aggregate effect of the aforementioned claims of trial counsel’s failure to investigate.
3. DISTRICT COURT ORDER DENYING POSTCONVICTION
RELIEF WITHOUT EVIDENTIARY HEARING
The district court appears to have reached beyond Erpelding’s “Grounds for Relief” listed
in his amended verified motion and addressed matters set forth in Erpelding’s statements of fact,
arguments, and legal propositions. The district court’s order includes findings that all of
Erpelding’s claims except those for ineffective assistance of appellate counsel were procedurally
barred because they were, or could have been, raised on direct appeal and/or were pled as mere
conclusions of fact and law without specificity. As such, those claims were dismissed without an
evidentiary hearing. The court did go on to address some claims regarding ineffective assistance
of trial counsel in more detail.
The district court then addressed Erpelding’s claims of ineffective assistance of appellate
counsel. First, the district court rejected Erpelding’s claim that his appellate counsel was
ineffective for failing to raise on appeal trial counsel’s failure to file a motion to quash the criminal
nonsupport statutes under the void-for-vagueness doctrine. The court found that there was nothing
in Erpelding’s allegations which demonstrated how or why the use of the criminal nonsupport
statutes by the State in this case constituted arbitrary enforcement.
Second, the district court rejected Erpelding’s claim that his appellate counsel was
ineffective for failing to raise on direct appeal trial counsel’s failure to file a motion to quash so as
to challenge the State’s use of the habitual criminal statute in these circumstances as impermissible
double penalty. In support of its claim, Erpelding cited to State v. Chapman, 205 Neb. 368, 287
N.W.2d 697 (1980), disapproved, State v. Abejide, 293 Neb. 687, 879 N.W.2d 684 (2016). In
rejecting this contention, the court noted that the Chapman decision was generally disapproved by
State v. Abejide, supra. Moreover, the court distinguished Chapman noting that the charges for
which Erpelding was convicted were felonies, unlike the charges in Chapman which were
misdemeanors and which rose to felony status due to repetitive violation pursuant to statute. The
court also found that Erpelding’s allegations were insufficient to raise a constitutional issue and
trial counsel’s performance could not be challenged as ineffective for failing to raise a meritless
argument.
Third, the district court rejected Erpelding’s claim that his appellate counsel was ineffective
for failing to raise on appeal trial counsel’s failure to fully investigate and depose Southall, failure
to fully investigate attorney Bishop to produce specific evidence of Erpelding’s inability to provide
more child support, and failure to investigate veteran’s administration medical experts to produce
specific evidence of his diminished capacity to formulate the requisite intent to violate his support
obligation. As to each, the district court found all such allegations to be conclusory, speculative,
and conjectural and dismissed Erpelding’s motion without an evidentiary hearing.
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III. ASSIGNMENTS OF ERROR
On appeal, Erpelding generally assigns error to the district court’s refusal to provide an
evidentiary hearing, the court’s refusal to grant relief for his alleged appellate counsel’s errors, and
on the basis of newly assigned “plain errors.” More specifically Erpelding contends that the district
court erred in denying his amended motion for postconviction relief without an evidentiary hearing
in that the district court erred in (1) failing to hold an evidentiary hearing after the court caused
“notice of the postconviction to be served on the State” thereby demonstrating “that it was satisfied
that the motion and the files and records of the case show[ed] that [he]was] entitled to relief”
pursuant to the language of Neb. Rev. Stat. § 29-3001(2) (Reissue 2016); and in (2) failing to point
out “that the State’s own established ‘layered ineffectiveness claims analysis’ is overly complex,
inconsistent, and arbitrary, and, therefore, renders the State’s postconviction act inadequate to
remedy ineffective assistance of trial counsel claims when the defendant was represented by
different counsel on direct appeal than at trial.” Brief for appellant at 7.
Erpelding next assigns specific errors regarding each of his 6 ineffective assistance of
appellate counsel claims including his claim of aggregate prejudice.
Erpelding then raises two claims of plain error. He contends that his first criminal
nonsupport conviction related to a payment obligation allegedly due on August 1, 2012, but that
the temporary support order that Erpelding allegedly violated did not issue until August 20, 2012.
He also contends that, prior to trial, he made payments in an amount exceeding the amounts which
were paid in ADC to Southall. He argues that either one of these alleged faults should void his
convictions.
Finally, Erpelding assigns that the district court erred in considering claims included in his
original motion for postconviction relief but which he expressly removed from the court’s
consideration due to his intention to pursue such claims in federal court or for other stated reasons.
He also alleged that the court erred in failing to address each ineffective assistance of trial counsel
claim as an ineffective assistance of appellate counsel claim. As to these final assignments, an
alleged error must be both specifically assigned and specifically argued in the brief of the party
asserting the error to be considered by an appellate court. State v. McGuire, 299 Neb. 762, 910
N.W.2d 144 (2018). Erpelding failed to argue these assignments of error in his brief and, as a
result, these claims are not properly before this court and will not be considered.
IV. STANDARD OF REVIEW
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. State v. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017). The lower court’s
findings of fact will be upheld unless such findings are clearly erroneous. Id.V. ANALYSIS
Before addressing the merits of Erpelding’s appeal, we note that, like the district court, we
take judicial notice of the record from Erpelding’s trial which was affirmed in State v. Erpelding,
292 Neb. 351, 874 N.W.2d 265 (2015). “A reviewing court considering a motion for
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postconviction relief may take judicial notice of the record in the direct appeal.” State v. Smith,
294 Neb. 311, 321, 883 N.W.2d 299, 308 (2016).
1. GENERAL ARGUMENTS COURT FAILED TO
GRANT EVIDENTIARY HEARING
(a) Court’s Notice to State
Erpelding claims that the district court erred in failing to grant an evidentiary hearing in
connection with his motion for postconviction relief as demonstrated by the explicit language of
§ 29-3001(2). This section states, in pertinent part:
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 cause notice thereof to be served on
the county attorney, grant a prompt hearing thereon, and determine the issues and make
findings of fact and conclusions of law with respect thereto.
Erpelding argues that, after he filed his motion, the court served notice on the State.
Accordingly, Erpelding argues “[b]y causing notice of the postconviction to be served on the State
the lower court demonstrated that it was satisfied that the motion and the files and records of the
case show that [Erpelding] is entitled to relief and, therefore, the ‘prompt hearing thereon’ should
have been an evidentiary hearing.” Brief for appellant at 7. Erpelding misconstrues the statute’s
language.
“Nothing in the post-conviction statutes prevents a district court from asking the State to
respond to a postconviction motion prior to deciding whether an evidentiary hearing is warranted.”
State v. Robertson, 294 Neb. 29, 39, 881 N.W.2d 864, 874 (2016). See, State v. McLeod, 274 Neb.
566, 741 N.W.2d 664 (2007) (trial court did not abuse its discretion in ordering State to file written
response to postconviction motion and conducting hearing to determine which files and records it
would examine before determining whether to grant defendant an evidentiary hearing on his
motion for postconviction relief); State v. Dean, 264 Neb. 42, 645 N.W.2d 528 (2002) (Nebraska
Supreme Court rejected claim that district court abused its discretion by allowing State to file
motion to deny defendant evidentiary hearing prior to determining that he was not entitled to
postconviction relief). It is entirely appropriate for a district court to ask the State to respond to a
postconviction motion prior to deciding whether an evidentiary hearing is warranted. Erpelding’s
claim to the contrary is without merit.
(b) Layered Ineffectiveness Claims
Erpelding claims that the district court erred
by failing to point out that the State’s own established “layered ineffectiveness claims
analysis” is overly complex, inconsistent, and arbitrary, and, therefore, renders the State’s
postconviction act inadequate to remedy ineffective assistance of trial counsel claims when
the defendant was represented by different counsel on direct appeal than at trial.
Brief for appellant at 7. We are uncertain what Erpelding means by this argument. That said, this
claim was not raised in Erpelding’s amended motion for postconviction relief or presented to the
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district court and we will not consider it for the first time on appeal. See State v. Harris, 294 Neb.
766, 884 N.W.2d 710 (2016).
2. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CLAIMS
Erpelding assigns specific errors regarding each of his six ineffective assistance of
appellate counsel claims. When a claim of ineffective assistance of appellate counsel is based on
the failure to raise a claim on appeal of ineffective assistance of trial counsel (a layered claim of
ineffective assistance of counsel), an appellate court will look at whether trial counsel was
ineffective under the test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). State v. McGuire, supra. If trial counsel was not ineffective, then the defendant was
not prejudiced by appellate counsel’s failure to raise the issue. Id. Much like claims of ineffective
assistance of trial counsel, the defendant must show that but for counsel’s failure to raise the claim,
there is a reasonable probability that the outcome would have been different. Id. Counsel’s failure
to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability
that inclusion of the issue would have changed the result of the appeal. State v. Johnson, 298 Neb.
491, 904 N.W.2d 714 (2017).
(a) Void for Vagueness
Erpelding claims that the district court erred in failing to find that his appellate counsel was
ineffective for failing to raise on appeal trial counsel’s failure to file a motion to quash challenging
the nonsupport statute under the void-for-vagueness doctrine. The State contends that this
argument is not properly before this court because Erpelding did not challenge the constitutionality
of the criminal nonsupport statutes in the lower courts. We disagree. Erpelding is raising, at his
first available opportunity, that he received ineffective assistance of appellate counsel due to
appellate counsel’s failure to raise, on appeal, trial counsel’s failure to file a motion to quash
challenging the criminal nonsupport statute on void-for-vagueness grounds. Erpelding’s
ineffective assistance of appellate counsel claim is properly before us.
As mentioned, to establish a right to postconviction relief due to counsel’s ineffective
assistance, the defendant has the burden, in accordance with Strickland v. Washington, supra, 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. State v. Collins, 299 Neb. 160, 907
N.W.2d 721 (2018). Next, the defendant must show that counsel’s deficient performance
prejudiced the defense of his or her case. Id. Under the Strickland v. Washington framework, a
court may address the two elements, deficient performance and prejudice, in either order. State v.
Torres, 295 Neb. 830, 894 N.W.2d 191 (2017).
Here, we focus on whether Erpelding’s appellate counsel was deficient for failing to appeal
Erpelding’s trial counsel’s failure to challenge the criminal nonsupport statute for which he was
convicted as being unconstitutionally void for vagueness. The Nebraska Supreme Court addressed
a counsel’s alleged failure to raise novel legal constitutional challenges--as it relates to claims of
ineffective assistance--in State v. Ross, 296 Neb. 923, 899 N.W.2d 209 (2017), and State v.
Sanders, 289 Neb. 335, 855 N.W.2d 350 (2014). In both cases, the Nebraska Supreme Court held
that trial counsel did not perform in a deficient manner by failing to raise a constitutional challenge
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to Neb. Rev. Stat. § 28-1212.04 (Reissue 2016). “‘[C]ounsel’s failure to raise novel legal theories
or arguments or to make novel constitutional challenges in order to bring a change in existing law
does not constitute deficient performance.’” State v. Ross, 296 Neb. at 930, 899 N.W.2d at 215,
quoting State v. Sanders, supra. Accord Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 71 L.
Ed. 2d 783 (1982).
The same rationale applies here. We cannot say that Erpelding’s trial counsel was deficient
in having failed to raise the novel legal argument that Neb. Rev. Stat. § 28-706 (Reissue 2016) is
unconstitutionally void for vagueness, or that his appellate counsel was deficient for having not
assigned that claim on direct appeal. As the Supreme Court stated in Ross: “‘“The Constitution
guarantees criminal defendants only a fair trial and a competent attorney. It does not [e]nsure that
defense counsel will recognize and raise every conceivable constitutional claim.”’” 296 Neb. at
930-31, 899 N.W.2d at 215, quoting State v. Sanders, supra. Erpelding’s postconviction motion
on this subject did not contain factual allegations which would constitute deficient performance
under this claim.
(b) Double Penalty Enhancement
Next, he claims that the district court erred in failing to find that his appellate counsel was
ineffective for not raising on appeal trial counsel’s failure to file a motion to quash so as to
challenge the State’s use of the criminal enhancement statutes as impermissible double penalty.
Erpelding equates his case to the Nebraska Supreme Court’s holding in State v. Chapman, 205
Neb. 368, 287 N.W.2d 697 (1980), disapproved, State v. Abejide, 293 Neb. 687, 879 N.W.2d 684(2016). In Chapman, the court held that “offenses which are felonies because the defendant has
been previously convicted of the same crime do not constitute ‘felonies’ within the meaning of
prior felonies that enhance penalties under the habitual criminal statute.” 205 Neb. at 370, 287
N.W.2d at 698. The court disapproved of the use of such prior convictions under the criminal
statute because such use resulted in impermissible “double penalty enhancement through
application of both a specific subsequent offense statute and a habitual criminal statute.” 205 Neb.
at 370, 287 N.W.2d at 699. Erpelding contends that, if trial counsel had filed a motion to quash,
the motion would have been sustained and his sentences would not have been enhanced under the
habitual criminal statutes.
Erpelding’s argument is flawed. We note that in Abejide, which disapproved Chapman, the
Supreme Court clarified its holding in Chapman by distinguishing between the “triggering crime,”
which must be a felony and which can trigger the application of § 29-2221, and prior convictions
for which the triggering crime can be enhanced so long as those prior convictions resulted in
imprisonment for not less than 1 year--regardless of whether they were the result of enhancement.
Fatal to Erpelding’s argument is the fact that his criminal nonsupport convictions under § 28-706
were felony offenses, not offenses which became felonies as the result of statutory enhancement.
Because his violation was a felony by statute, it was a triggering crime which supported the
application of criminal enhancement based upon Erpelding’s prior convictions. A motion to quash
on this issue would have been denied and appellate counsel was not ineffective for failing to raise
the matter on direct appeal. “[A]s a matter of law, counsel cannot be ineffective for failing to raise
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a meritless argument.” State v. Ely, 295 Neb. 607, 623, 889 N.W.2d 377, 392 (2017). Therefore,
the files and records affirmatively show that Erpelding was not entitled to relief on this claim.
(c) Alleged Failure to Investigate Southall
Erpelding claims that the district court erred in finding appellate counsel deficient for
failing to appeal his trial counsel’s ineffectiveness in failing to fully investigate and depose
Southall and failing to present an affidavit from Southall to the jury. Erpelding apparently claims
that, had his trial counsel sufficiently pursued Southall, she could have produced (i) a marriage
license application, (ii) a joint account statement, (iii) certain receipts, (iv) certain joint debt
statements, or (v) testimony verifying their cohabitation as husband and wife. In sum, he argues
his counsel’s lack of investigation of Southall prejudiced him in that such evidence would have
exonerated him at trial.
Erpelding’s claims of prejudice are flawed for three reasons. First, if Erpelding was
cohabitating with Southall, he does not explain why he could not simply obtain these materials
himself. Because he could have provided the evidence directly, trial counsel’s alleged failure to
require Southall to bring specific documentation fails to show prejudice. Second, Southall was
called as a defense witness at trial and testified inconsistently regarding whether Erpelding had
ever provided support for their daughter. Additionally, Erpelding’s counsel attempted to offer
Southall’s affidavit which Erpelding claims would have further supported the proposition that
Erpelding paid her support directly, but the court sustained an objection to its receipt. Although
Erpelding may have been disappointed in the result of Southall’s testimony, she addressed the
possibility of him having paid support directly to her or directly through other avenues of support.
Third, whether or not the parties were cohabitating or contemplating marriage did not change the
fact that Erpelding was court-ordered to pay temporary child support on behalf of Grace. The court
ordered payment of temporary support to Southall by Erpelding, and the missed payments at issue
in this case were assigned to DHHS due to prior ADC assistance provided by DHHS to Southall.
See, State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015) (finding that support payments in
issue were assigned to DHHS to be paid by Erpelding); Neb. Rev. Stat. § 43-512.07 (providing for
assignments of child support to DHHS when party is provided ADC). Erpelding was given notice
that the support payments were owed to DHHS. See State v. Erpelding, supra (finding Erpelding
was given monthly notice that support payments were owed to DHHS and he was also provided
notice by DHHS of intent to suspend his operator’s and recreational licenses due to his
nonpayment). Erpelding’s failure to timely pay DHHS was the subject of his charges, and his
living status with Southall was of no consequence or relevance to the charges. See Neb. Rev. Stat.
§ 43-1404 (Reissue 2016) (stating that “liability of the father or mother of a child for its support
shall be discharged by compliance with the terms of a judicial decree for support”). See, also,
Eliker v. Eliker, 206 Neb. 764, 295 N.W.2d 268 (1980) (explaining that when a court orders the
payment of child support, it means to have such order followed); Jafari v. Jafari, 204 Neb. 622,
284 N.W.2d 554 (1979) (providing that issue of provision for support and maintenance of minor
child is not controllable by agreement of parties, but, rather, by court upon facts and circumstances
as disclosed to it). Thus, Erpelding has failed to allege how the evidence concerning his
cohabitation with Southall, which Erpelding claims his trial court was ineffective in failing to
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uncover and provide to the jury, prejudiced his convictions. In light of all of the above, we find
this assignment is without merit.
(d) Alleged Failure to Investigate, Depose,
and Call Attorney Bishop
Erpelding next argues the district court erred in failing to find Erpelding’s appellate counsel
was deficient in failing to appeal his trial counsel’s deficient failure to investigate, depose, and call
his former attorney as a witness at trial. In support thereof, Erpelding argues that his former
attorney, who had represented Erpelding in several criminal and civil matters, could have testified
to Erpelding’s financial situation and inability to provide support.
We quickly dispense with this argument. A defendant may present evidence to establish an
“‘inability to pay’” in order to disprove intent in a criminal nonsupport support case charged under
§ 28-706. State v. Erpelding, 292 Neb. at 364, 874 N.W.2d at 277. Erpelding did put on evidence
of his lack of ability to pay in connection with the charges of criminal nonsupport and to suggest
that calling his previous attorney to testify about Erpelding’s financial situation would change the
result of his trial is purely speculative and lacking in any substance. The Nebraska Supreme Court
has previously observed that a petitioner’s postconviction claims that his or her trial counsel was
ineffective in failing to investigate possible defenses are too speculative to warrant relief if the
petitioner fails to allege what exculpatory evidence that the investigation would have procured and
how it would have affected the outcome of the case. State v. Sellers, 290 Neb. 18, 858 N.W.2d 577(2015); State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
Accordingly, Erpelding’s claim is insufficient to show a reasonable probability that the
outcome of the trial would have been different but for the failure to call an attorney, that
represented Erpelding in other matters, to share what he knew, if anything, about Erpelding’s
financial situation. That allegation is speculative, nonspecific, and conclusory and the district court
did not err in rejecting it without an evidentiary hearing.
(e) Alleged Failure to Investigate, Depose,
and Call Medical Witnesses
Erpelding argues the district court erred in failing to find Erpelding’s appellate counsel was
deficient in failing to appeal his trial counsel’s deficient failure to investigate, depose, and call
former treating doctors at the Grand Island/Western Iowa Veteran’s Hospital. He argues that from
2012 to 2014, he was demonstrating some mental instability “being indicatory of a diminished
capacity to formulate the requisite intention to not provide support.” Brief for appellant at 47. In
that regard, Erpelding argues that his trial counsel “should at the very least have investigated [Drs.
Sullivan and Duke] in the due course of remaining appraised of the Appellant’s progress.” Id.Erpelding does not plead that Drs. Sullivan and Duke, if called, would have testified that
Erpelding lacked the mental capacity to commit a crime. Instead, his claim is postured as one
where trial counsel had an obligation to investigate whether Erpelding’s doctors would have
testified to his lack of capacity. In State v. Thorpe, 290 Neb. 149, 162, 858 N.W.2d 880, 890
(2015), the Nebraska Supreme Court held that “[i]n assessing postconviction claims that trial
counsel was ineffective for failing to call a particular witness, we have upheld the dismissal without
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an evidentiary hearing where the motion did not include specific allegations regarding the
testimony which the witness would have given if called.” Here, Erpelding does not allege that Drs.
Sullivan and Duke would have testified that he lacked the requisite mental capacity to commit the
crime for which he was charged. Instead, he argues that trial counsel had an obligation to further
explore the possibility.
Without the requirement of such specific allegations, the postconviction court would
effectively be asked to conduct a discovery hearing to determine if there exists anywhere in the
world some evidence favorable to defendant’s position. State v. Hill, 298 Neb. 675, 905 N.W.2d
668 (2018). Here, Erpelding has not pled sufficient specific allegations to demonstrate any
prejudice and the district court properly dismissed this assignment.
(f) Failure to Address Claim of Aggregate Prejudice
Erpelding also contends that the district court erred in failing to specifically address his
claim regarding the aggregate prejudice resulting from his appellate counsel’s failure to raise
claims of ineffectiveness of his trial counsel. He claims that the aggregate prejudice resulting from
trial counsel’s failures to subject the State’s case to meaningful adversarial testing rendered the
trial result unreliable.
We agree that the district court’s order does not explicitly rule on this claim; however, the
court’s order denied each of Erpelding’s claims of ineffectiveness of appellate counsel. As a result,
it follows that the court implicitly denied Erpelding’s aggregate claim regarding the ineffectiveness
of appellate counsel. Having considered and rejected Erpelding’s claims of error regarding
ineffectiveness of appellate counsel to raise trial counsel’s failure to investigate, depose, and call
witnesses at trial, it follows that Erpelding’s claim concerning the aggregate prejudice from these
claims must also fail.
3. PLAIN ERROR
Erpelding also raises two claims of plain error. First, he contends that his first criminal
nonsupport conviction related to a child support obligation from August 1, 2012, but that the
temporary support order relating to that change did not issue until August 20. We interpret
Erpelding’s claim to assert that his conviction, based upon the August child support order, is void
because the order requiring payment of child support was not entered until August 20. We consider
this claim because of the rule that a void judgment may be attacked at any time in any proceeding.
State v. Ewer, 194 Neb. 203, 230 N.W.2d 609 (1975).
We have reviewed that Buffalo County District Court order filed August 20, 2012, which
was received into evidence at Erpelding’s trial as exhibit 13. The order, which obligated Erpelding
to pay temporary child support in the amount of $225 per month, provides, on its face, that the
support was to retroactively commence on August 1. At the time that the district court entered the
final resolution of custody and support on July 15, 2013, Erpelding could have appealed the court’s
decision to make his August 2012 child support obligation retroactive to August 1, but he chose
not to do so. See State v. Erpelding, supra. See, also, Freeman v. Groskopf, 286 Neb. 713, 838
N.W.2d 300 (2013) (whether child support order should be retroactive is entrusted to trial court’s
discretion and appellate court will affirm its decision absent abuse of discretion). We note that
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Erpelding did not make any payments on the temporary order until October 2013. See State v.
Erpelding, supra. His claim of plain error regarding the August 20, 2012, temporary child support
order is without merit.
Next, Erpelding contends that plain error occurred in that his criminal nonsupport
convictions are void because, prior to trial, he paid more than the amounts which were paid in
ADC to Southall. Pursuant to § 28-706(1), “[a]ny person who intentionally fails, refuses, or
neglects to provide proper support which he or she knows or reasonably should know he or she is
legally obliged to provide to a spouse, minor child, minor stepchild, or other dependent commits
criminal nonsupport.” In Erpelding’s direct appeal, the Nebraska Supreme Court considered the
impact of Erpelding’s child support payments during the 1-month period from October 8 to
November 8, 2013, stating that his payments of over 5 months’ worth of child support payments
during that 1-month period, in order to have his license reinstated, suggested that “Erpelding had
the ability to pay before that time, but simply chose not to.” State v. Erpedling, 292 Neb. at 365,
874 N.W.2d at 278. The Supreme Court considered the timeliness of Erpelding’s payment and
rejected that it was a defense.
VI. CONCLUSION
We affirm the district court’s denial of Erpelding’s amended motion for postconviction
relief.
AFFIRMED.
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