State v. Titus ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. TITUS
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 M. TITUS, APPELLANT.
Filed July 5, 2022. No. A-21-765.
Appeal from the District Court for Sarpy County: GEORGE A. THOMPSON, Judge. Affirmed.
Shawn M. Titus, pro se.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
MOORE, RIEDMANN, and ARTERBURN, Judges.
MOORE, Judge.
INTRODUCTION
Shawn M. Titus appeals from an order of the district court for Sarpy County, which denied
his motion for postconviction relief following an evidentiary hearing. He argues that the district
court erred in violating his due process rights, in denying his request to file an amended motion
for postconviction relief, and in further concluding that his trial counsel did not provide ineffective
assistance and denying postconviction relief. Titus also alleges that his postconviction counsel was
ineffective. For the reasons set forth herein, we affirm.
STATEMENT OF FACTS
In August 2018, Titus entered a no contest plea and was convicted of attempted first degree
sexual assault. He was sentenced to a term of 15 to 20 years’ imprisonment. The background of
this case is summarized in Titus’ direct appeal heard by this court. See State v. Titus, No.
A-18-1032, 2019 WL 3562180 (Neb. Ct. App. Aug. 6, 2019) (selected for posting to court
website).
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On direct appeal and represented by different counsel, Titus argued that the district court
imposed an excessive sentence and that he received ineffective assistance of trial counsel in several
respects. See id. With respect to his claims of ineffective assistance of counsel, Titus alleged that
his trial counsel was ineffective by: failing to obtain or consult with an expert witness; failing to
develop and martial a proper defense strategy; failing to request recusal of the trial judge and
prosecutor because of the pendency of a federal court lawsuit initiated by Titus in which both were
named as defendants; failing to place the entire plea agreement upon the record; advising Titus to
accept the plea offered; and failing to advise Titus that acceptance of the plea negated his ability
to appeal the denial of his plea in abatement. This court found no abuse of discretion concerning
Titus’ sentence, but found that the record on direct appeal was insufficient to address his ineffective
assistance of counsel claims. Id.In September 2019, after this court affirmed his conviction and sentence, Titus filed a pro
se motion for postconviction relief. In that motion, Titus presented thirteen claims for relief: three
of the six allegations of ineffective assistance of trial counsel preserved in his direct appeal (failing
to obtain or consult with an expert witness, failing to request recusal of the trial judge and
prosecutor because of the pendency of Titus’ federal court lawsuit, failing to advise Titus that
acceptance of the plea negated his ability to appeal the denial of his plea in abatement); nine new
allegations of ineffective assistance of appellate counsel; and an allegation that the “[g]overnment
breached the plea agreement” because the “State was supposed to stand silent at sentencing, but
argued at length for a sentence of imprisonment.”
In December 2019, Titus filed a request for leave to amend his motion for postconviction
relief. Titus sought “to remove, restate, and clarify his claims as he has matured in his legal studies
and now perceives his presentation as cluttered and confusing.” He noted that the amendments
would “make his claims more precise and more amenable to efficient resolution.” Titus’ motion
did not specify which of his claims he would amend, or what changes the amendments would
include.
In an order on February 7, 2020, the district court found that Titus was entitled to an
evidentiary hearing related to his allegation that there was an agreement by the State to stand silent
at sentencing, as well as the three allegations of ineffective assistance of trial counsel from Titus’
direct appeal. The court also granted Titus’ request for the appointment of counsel. However, the
court denied the remainder of Titus’ ineffective assistance of appellate counsel claims and his
request for leave to amend. Titus did not appeal this order.
On March 24, 2021, an evidentiary hearing was held. Titus offered four exhibits which
were received in evidence: transcripts of the plea and sentencing hearings; the deposition of Titus’
trial counsel; the deposition of the deputy county attorney from Titus’ trial; and the deposition of
Titus’ appellate counsel. At the continued hearing held on April 20, Titus offered his own affidavit
and a memorandum brief as additional exhibits. The State objected to the relevancy and improper
notice of Titus’ affidavit and the district court took the exhibit under advisement. The court
received Titus’ memorandum brief as an aid to the court and not as substantive evidence.
On July 6, 2020, the district court issued an order nunc pro tunc. The order restated the
allegation about whether the plea agreement contained the term that the State would stand silent
at sentencing. The allegation was corrected to include whether trial counsel was ineffective for
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failing to object to the State’s violation of the plea agreement, and whether appellate counsel was
ineffective for failing to assign such as error.
In an order entered on July 21, 2021, the district court denied Titus’ request for
postconviction relief. The court first noted that it had sustained the State’s objection to Titus’
affidavit. The court then found that Titus had failed to demonstrate that his trial counsel was
ineffective, because Titus had conceded that his trial counsel did consult with an expert witness;
had told trial counsel that he would be dismissing his federal lawsuit and did so prior to sentencing,
and was informed by trial counsel that entering a plea would constitute a waiver of all defenses.
Regarding Titus’ allegation that there was an agreement by the State to stand silent at sentencing,
the court likewise found that Titus did “not meet his burden showing ineffectiveness of counsel on
this issue,” as the plea agreement had not contained such a term.
On July 26, 2021, the State filed a motion to clarify. In a hearing on the matter, the State
referenced the district court’s July 6 nunc pro tunc order and noted that in the court’s order denying
Titus’ motion for postconviction relief, the court had found that there was no violation of the plea
agreement, “and stopped there.” The State “just wanted to make sure that [the order] followed
through to the end stating that appellate counsel wasn’t ineffective” for failing to assign that trial
counsel did not object to the alleged plea agreement violation. The court took the matter under
advisement.
In an order entered on September 1, 2021, the district court specified, while its order
denying Titus’ motion for postconviction relief found that trial counsel was not ineffective,
implicit in that finding was that “appellate counsel could not be ineffective for failing to assign
error that which is not error.”
Titus, now pro se, appeals the district court’s order denying his motion for postconviction
relief.
ASSIGNMENTS OF ERROR
Titus assigns, restated, that the district court erred by (1) committing various due process
violations; (2) finding that the State had not agreed to stand silent at sentencing and that trial
counsel did not provide ineffective assistance; and (3) refusing to grant leave to amend his original
postconviction motion. Titus also assigns (4) that his postconviction counsel was ineffective.
STANDARD OF REVIEW
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. An appellate court upholds the trial
court’s findings unless they are clearly erroneous. State v. Newman, 310 Neb. 463, 966 N.W.2d
860 (2021).
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law
and fact. Id. When reviewing a claim of ineffective assistance of counsel, an appellate court
reviews the factual findings of the lower court for clear error. Id. 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. State v.
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The decision to grant or deny an amendment to a pleading rests in the discretion of the trial
court. State v. Mata, 280 Neb. 849, 790 N.W.2d 716 (2010).
ANALYSIS
Alleged Due Process Violations.
First, Titus raises a series of issues for plain error review. He asserts that the district court
committed or allowed “[d]ue process violations that are plain error on the record rendering
judgement void. . .” Brief for appellant at 18. Specifically, Titus argues that his plea was not
properly entered; his waiver of the right to remain silent for purpose of the presentence
investigation was not proper; the Confrontation Clause was violated during the plea hearing; the
plea hearing was “fundamentally unfair;” and there was a violation of his Fifth Amendment rights
at the sentencing hearing. Id. at 19.
A party cannot raise an issue in a postconviction motion if he or she could have raised that
same issue on direct appeal. State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017). Additionally,
in a postconviction motion, an appellate court will not consider as an assignment of error a claim
that was not presented to the district court. State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
Because these alleged due process violations could have been raised on direct appeal, and because
these specific claims were not presented to the district court, we decline to consider this assignment
of error.
Alleged Plea Agreement Violation.
Titus assigns that the district court erred in finding that he did not receive ineffective
assistance of counsel related to the plea agreement and thus, in denying his motion for
postconviction relief. He argues the State had agreed to stand silent at his sentencing hearing as a
part of the plea agreement reached by Titus’ trial counsel and the county attorney. Titus contends
that had his trial counsel objected when the State argued for a term of imprisonment at his
sentencing hearing, Titus would have withdrawn his plea based on this violation of the agreement.
Postconviction relief is a very narrow category of relief, available only to remedy
prejudicial constitutional violations that render the judgment void or voidable. State v. Stricklin,
310 Neb. 478, 967 N.W.2d 130 (2021).
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 training and skill in criminal
law. State v. Ely, 306 Neb. 461, 945 N.W.2d 492 (2020). Next, the defendant must show that
counsel’s deficient performance prejudiced the defense in his or her case. Id. To show prejudice,
the defendant must demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different. Id.Our record reflects that Titus’ trial counsel sent the deputy county attorney an email on
August 1, 2018, which included “the State agrees to submit at sentencing” as a term of the plea
agreement. In his deposition, trial counsel stated that the email “memorialized” the terms of the
agreement based on conversations between himself, Titus, and the deputy county attorney. While
trial counsel conceded that the county attorney had not responded to the email, trial counsel
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believed that the deputy county attorney had accepted every term in the email, as shortly after the
email was sent the county attorney scheduled a plea hearing. However, the deputy county attorney
testified in his deposition that after he received the August 2018 email from Titus’ trial counsel,
he called trial counsel and stated that he was “not agreeing to submit for sentencing.” The deputy
county attorney stated that he agreed with all other terms outlined in the email, as they
corresponded to prior plea negotiations in Titus’ case, but he discussed striking the requirement to
stand silent with trial counsel.
Additionally, trial counsel and the deputy county attorney testified that they both had a
practice of correcting the record if a plea agreement is recited incorrectly. During Titus’ plea
hearing, the district court recited its understanding of the plea agreement, which did not include a
term that the State stand silent at sentencing, and neither counsel offered an objection. Further,
Titus affirmed his understanding of the plea agreement as recited by the court which omitted any
agreement of the State to stand silent at sentencing.
The district court found that the plea agreement did not include the term that the State stand
silent at Titus’ sentencing hearing. We defer to the district court’s factual finding based on its
assessment of Titus’ trial counsel’s and the deputy county attorney’s conflicting understandings of
the plea agreement terms. We conclude that the district court’s finding was not clearly erroneous.
See State v. Newman, 310 Neb. 463, 966 N.W.2d 860 (2021). Accordingly, Titus did not
demonstrate that his trial counsel’s performance was deficient, as trial counsel could not have
objected to a violation of a term which was not included in the plea agreement. See State v.
Williams, 295 Neb. 575, 889 N.W.2d 99 (2017) (as a matter of law, counsel cannot be ineffective
for failing to raise a meritless argument). This assignment of error fails.
Request for Leave to Amend.
Titus next assigns that the district court abused its discretion in overruling his request for
leave to amend his motion for postconviction relief. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial
right and denying just results in matters submitted for disposition. State v. Madren, 308 Neb. 443,
954 N.W.2d 881 (2021).
Titus requested leave to amend in order “to remove, restate, and clarify his claims as he
has matured in his legal studies and now perceives his presentation as cluttered and confusing.”
Titus did not specify which claims in his motion for postconviction relief he would amend or how
he would do so. In its February 2020 order, the district court denied Titus’ request to amend
without further elaboration.
Titus alleges on appeal that the district court “infringed upon [his] due process right to be
heard by depriving him of the ability to raise or amend meritorious claims that he was unaware of
or unable to articulate properly in his original action.” Brief for appellant 40-41. Titus argues that
his amended motion for postconviction relief would have restated and combined claims of
ineffective assistance of appellate counsel, as well as asserted new claims of ineffective assistance
of appellate counsel.
We find the district court did not abuse its discretion in denying Titus’ request for leave to
amend his motion for postconviction relief. Titus’ request was vague and did not allege
circumstances necessitating a leave to amend. Regarding Titus’ contention that he sought leave to
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restate and combine specific claims of ineffective assistance of appellate counsel, we note that the
district court denied all nine of Titus’ asserted claims of ineffective assistance of appellate counsel
in its February 2020 order. Titus did not appeal this order and may not collaterally attack the court’s
denial of these claims now. Thus, this assignment of error fails.
Ineffective Assistance of Postconviction Counsel.
Finally, Titus assigns that his appointed postconviction counsel did not provide effective
assistance as required by Neb. Rev. Stat. § 29-3004 (Reissue 2016). Titus argues that his
postconviction counsel was ineffective for failing to: (1) request leave to amend his motion for
postconviction relief; (2) impeach the county attorney during his deposition; and (3) notify Titus
of the denial of postconviction relief in a timely manner.
There is no constitutional guarantee of effective assistance of counsel in a postconviction
action and therefore no claim for ineffective assistance of postconviction counsel. State v.
McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018). However, Titus cites to § 29-3004, which states
that “[t]he district court may appoint not to exceed two attorneys to represent the prisoners in all
[postconviction] proceedings” and that “[t]he attorney or attorneys shall be competent and shall
provide effective counsel.” The Supreme Court has not explicitly decided whether this section
provides for a statutory right to competent and effective postconviction counsel that may be
enforced on appeal from a postconviction proceeding. See State v. McGuire, supra.Assuming without deciding that there is such an enforceable statutory right to effective
postconviction counsel, we determine that Titus has failed to prove that he is entitled to relief.
CONCLUSION
We conclude that the district court did not abuse its discretion in denying Titus’ request to
file an amended motion for postconviction relief and did not err in overruling his motion for
postconviction relief. We further conclude that Titus’ arguments related to the effectiveness of his
postconviction counsel fail. Therefore, the order of the district court is affirmed.
AFFIRMED.
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