State v. Ammons , 31 Neb. Ct. App. 489 ( 2022 )

Nebraska Supreme Court Online Library
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01/03/2023 08:04 AM CST
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. AMMONS
Cite as 31 Neb. App. 489State of Nebraska, appellee, v.
Marvel D. Ammons, appellant.
___ N.W.2d ___
Filed December 27, 2022. No. A‑21‑812.
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.
2. ____: ____. When reviewing a claim of ineffective assistance of coun-
sel, an appellate court reviews the factual findings of the lower court for
clear error.
3. ____: ____. 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 inde-
pendently of the lower court’s decision.
4. 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.
5. 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.
6. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
In order to obtain a new direct appeal as postconviction relief, the
defend­ant must show, by a preponderance of the evidence, that the
defendant was denied his or her right to appeal due to the negligence or
incompetence of counsel, and through no fault of his or her own.
7. Postconviction: Effectiveness of Counsel: Appeal and Error. To
establish a right to postconviction relief based on a claim of ineffec-
tive 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;
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Cite as 31 Neb. App. 489that is, counsel’s performance did not equal that of a lawyer with ordi-
nary 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. Effectiveness of Counsel: Presumptions. The two prongs of the test
for ineffective assistance of counsel may be addressed in either order,
and the entire ineffective assistance analysis should be viewed with the
strong presumption that counsel’s actions were reasonable.
9. Postconviction: Effectiveness of Counsel: Presumptions: Appeal
and Error. A lawyer who disregards specific instructions from the
defendant to file a notice of appeal acts in a manner that is profession-
ally unreasonable. In such circumstances where counsel deficiently fails
to file or perfect an appeal, prejudice will be presumed and counsel
will be deemed ineffective, thus entitling the defendant to postconvic-
tion relief.
10. Effectiveness of Counsel: Appeal and Error. In those cases where the
defendant neither instructs counsel to file an appeal nor asks that an
appeal not be taken, whether counsel has performed deficiently by not
filing a notice of appeal is determined using a reasonableness inquiry
that considers whether counsel consulted with the defendant about
an appeal.
11. Effectiveness of Counsel: Appeal and Error: Words and Phrases. In
the context of a claim of ineffectiveness of counsel, the term “consult”
means advising the defendant about the advantages and disadvantages of
taking an appeal, and making a reasonable effort to discover the defend­
ant’s wishes.
12. Effectiveness of Counsel: Appeal and Error. If counsel has consulted
with the defendant, counsel performs in a professionally unreasonable
manner only by failing to follow the defendant’s express instructions
with respect to an appeal.
13. ____: ____. If counsel has not consulted with the defendant, the court
must in turn ask a second, and subsidiary, question: whether counsel’s
failure to consult with the defendant with respect to an appeal itself
constitutes deficient performance.
14. Constitutional Law: Attorney and Client: Appeal and Error.
Counsel has a constitutionally imposed duty to consult with the defend­
ant about an appeal when there is reason to think either (1) that a ratio-
nal defend­ant would want to appeal (for example, because there are
nonfrivolous grounds for appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he or she was interested in
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Cite as 31 Neb. App. 489appealing. In making this determination, courts must take into account
all the information counsel knew or should have known.
15. Effectiveness of Counsel: Proof: Appeal and Error. To show preju-
dice in the context of trial counsel’s failure to file a direct appeal, a
defendant must demonstrate that there is a reasonable probability that,
but for counsel’s deficient failure to consult with the defendant about an
appeal, he or she would have timely appealed.
16. ____: ____: ____. In the context of trial counsel’s failure to file a direct
appeal, the prejudice inquiry may be satisfied if the defendant shows
nonfrivolous grounds for appeal.
17. 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.
18. Postconviction: Evidence: Witnesses. Triers of fact have the right to
test the credibility of witnesses by their self-interest and to weigh it
against the evidence, or the lack thereof.
Appeal from the District Court for Douglas County: J
Russell Derr, Judge. Reversed and remanded with directions.
Sarah M. Mooney, of Mooney Law Office, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Pirtle, Chief Judge, and Bishop and Arterburn, Judges.
Bishop, Judge.
I. INTRODUCTION
Marvel D. Ammons appeals from the order of the Douglas
County District Court denying his motion for postconviction
relief following an evidentiary hearing. Ammons claims that
he received ineffective assistance of trial counsel when counsel
failed to file a direct appeal after his guilty plea to two counts
of possession of a deadly weapon (firearm) by a prohibited
person. We reverse the denial of Ammons’ motion for postcon-
viction relief and remand the matter to the district court with
directions to grant Ammons a new direct appeal.
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Cite as 31 Neb. App. 489II. BACKGROUND
1. Charges, Plea, and Sentencing
On March 5, 2019, the State filed an information charging
Ammons with two counts of possession of a deadly weapon
(firearm) by a prohibited person, second offense, each a Class
IB felony, pursuant to Neb. Rev. Stat. § 28-1206(3)(b) (Supp.
2017). Both counts were alleged to have occurred “[o]n or
about” January 10. On March 6, the State filed an amended
information charging Ammons with the same two counts, but
this time stated that both counts were alleged to have occurred
“[o]n or about” September 14, 2017.
On August 14, 2019, the State filed a second amended
information charging Ammons with five counts: counts 1 and
2, possession of a deadly weapon (firearm) by a prohib-
ited person, second offense, each a Class IB felony, pursu-
ant to § 28-1206(3)(b); count 3, “Delivery[,] Distribution,
or Possession With Intent to Deliver a Schedule I, II, or
III Controlled Substance [(“Methylenedioxymethamphetamine
(MDMA)”)],” a Class IIA felony, pursuant to Neb. Rev.
Stat. § 28-416 (Cum. Supp. 2020); count 4, “Manufacturing,
Distributing, or Possession With Intent to Distribute: Base
Cocaine (Crack),” a Class IB felony, pursuant to § 28-416; and
count 5, being a habitual criminal, pursuant to Neb. Rev. Stat.
§ 29-2221 (Reissue 2016). All five counts were alleged to have
occurred “[o]n or about” September 14, 2017.
On January 30, 2020, the State filed a third amended infor-
mation charging Ammons with two counts of possession
of a deadly weapon (firearm) by a prohibited person, first
offense, each a Class ID felony, pursuant to § 28-1206(3)(b).
Both counts were alleged to have occurred “[o]n or about”
September 14, 2017.
A hearing was held on January 30, 2020. Pursuant to a
plea agreement, Ammons pled guilty to the two counts in the
third amended information. After the district court informed
Ammons of the possible sentence for each of the offenses
and that the court could run the sentences concurrent or
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Cite as 31 Neb. App. 489consecutive to one another, Ammons’ counsel stated that “as
part of the plea agreement, the State is going to have no
objection to the sentences running concurrently.” The court
responded, “Okay. Very good. And I’m not bound by that . . . .
I will take that into strong consideration, but, again, I, alone,
will be the one who decides the sentence. Do you understand
that?” Ammons replied in the affirmative.
According to the factual basis provided by the State,
[T]he facts here occurred September 14, 2017. Omaha
police were in the area of . . . Lothrop Street regarding a
call for shots fired. In that area, they were in a parking lot
for an apartment complex there, and they observed a Jeep
Cherokee with two occupants in the front.
They got out of their vehicle to make contact with
those individuals, and both those individuals exited the
Jeep and ran. The person in the driver’s seat was initially
described as a black male, 5’10”, with a bald head and
black-rimmed glasses.
One of the officers followed him to an alley to the
north, observed that person fall down, drop a few items,
and then keep running. The officer lost sight of him, dis-
continued that chase.
In the alley they located two firearms and two cell
phones. A crime lab collected those items. The cell phone
was dusted for prints, did have one latent fingerprint on it,
and it came back to the left thumb of . . . Ammons.
Additionally, the Jeep that the individuals had been in
was searched. Inside that Jeep was paperwork regarding a
rental agreement indicating that . . . Ammons had rented
that car three days earlier at Eppley Airfield.
Additionally, Your Honor, there was some DNA test-
ing done in this case of the firearms that were found in
the alley. Those two firearms were — there were DNA
profiles located on those firearms. They were compared
to the known DNA profile of . . . Ammons, and they did
come back indicating his DNA profile was consistent with
what was located on the firearms.
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Cite as 31 Neb. App. 489There was also DNA run on two beer bottles inside the
Jeep, and both of those did come back with information
consistent with what . . . Ammons’s DNA was as well,
Judge. This all did occur in Douglas County, Nebraska.
The State also offered into evidence a certified copy of
Ammons’ 2010 conviction for possession of a deadly weapon
by a felon, a Class III felony, “making . . . Ammons prohib-
ited”; the exhibit was received without objection.
The district court accepted Ammons’ guilty pleas to the
two counts in the third amended information—possession
of a deadly weapon (firearm) by a prohibited person, first
offense—and found him guilty of the same. The case was set
for a sentencing date of April 14, 2020, and was later continued
to May 19.
Ammons failed to appear for sentencing on May 19, 2020,
and a bench warrant was issued for his arrest. A sentenc-
ing hearing was subsequently held via videoconference on
September 15. Trial counsel made arguments on Ammons’
behalf to the district court. Trial counsel then said, “[The
State] can correct me if I’m wrong, but I believe that when
we struck this plea agreement, I don’t believe that [the State]
had any objection to concurrent sentences in this matter.” The
State responded:
Yeah. You know . . . I didn’t document that anywhere.
You know, obviously, it wasn’t part of the agreement. I
didn’t document it anywhere on the file, so I can’t say
that — I’m not asking for consecutive, per se. I’ll leave it
up to the Court. That’s all I can say based on my recollec-
tion and my documentation . . . .
In its argument to the district court, the State noted that when
Ammons failed to appear at the May 2020 sentencing hear-
ing, a bench warrant was issued for his arrest. The State said,
“[Ammons], in fact, was arrested on that warrant in the state
of California on board an airplane bound from San Francisco
to Houston” and at the time was traveling under an alias, and
“Douglas County then had to go and retrieve him”; “those
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Cite as 31 Neb. App. 489things are aggravating factors.” The State was “not suggest-
ing a [sentencing] range”; “the Court is aware of [Ammons’]
record and can see what his previous sentences have been, and
I’ll leave it at that.”
Ammons then personally addressed the district court and
stated, in part, that he “wasn’t running,” he was “just scared”
because he had seen videos and “people seemed like they were
suffering in jail and dying in jail, and I thought I was going to
be sent somewhere to die”; he mentioned having to help with
two “COVID” related funerals in the weeks prior to the May
sentencing hearing, and additionally having two relatives test
positive for “COVID.”
The district court, after taking into account Ammons’ “record
and the seriousness of these charges,” sentenced Ammons to
consecutive terms of 6 to 8 years’ imprisonment on each count,
with credit for 50 days already served on count 1 only. A writ-
ten order setting forth the orally pronounced sentences was
filed September 16, 2020.
Ammons did not timely file a direct appeal of his convic-
tions or sentences.
2. Postconviction
(a) Verified Motion for Postconviction Relief
On March 11, 2021, Ammons, pro se, filed a “Verified
Motion for Postconviction Relief” alleging that he received
ineffective assistance of trial counsel because trial counsel
did not file a notice of appeal after Ammons’ “clear requests.”
Ammons claimed he “urged trial counsel to perfect a notice
of appeal, because [Ammons] was not satisfied with the fact
that he was charged with two weapons found on the same
premises, and he believed that there should have only been
one count.” He argued that had he “known that he could not
be charged with two offenses culminating from one inci-
dent, he would have elected to go to trial instead of pleading
no contest.” Ammons was “convinced that, had counsel per-
fected the notice of appeal, the Appellate Court would have
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Cite as 31 Neb. App. 489reversed and remanded the matter back to the District Court
and instructed them to require that he be charged, convicted,
and sentenced for one count of Possession of a Deadly Weapon
by a Prohibited Person.” Ammons requested that the district
court “reinstate his direct appeal, so that he can adequately
adjudicate his constitutional claims in a timely manner.”
The district court set the matter for an evidentiary hearing
“on the sole issue of whether counsel was ineffective in failing
to file a direct appeal.” The court appointed counsel to repre-
sent Ammons and ordered that all testimony would be done
by deposition.
(b) Evidentiary Hearing
An evidentiary hearing on Ammons’ motion for postcon-
viction relief was held on July 28, 2021. The bill of excep-
tions from both the plea hearing and sentencing hearing were
submitted to the district court. The depositions of Ammons,
Ammons’ wife, and trial counsel were submitted to the court.
We summarize the testimony from those depositions.
(i) Ammons’ Deposition Testimony
In his deposition, Ammons testified that after he was
arrested in 2019, he hired trial counsel to represent him.
During the course of Ammons’ criminal case, he met with trial
counsel to discuss the case; Ammons’ wife came to two of the
meetings, and she was disclosed as an alibi witness to trial
counsel by Ammons. Ammons denied that he and his wife
ever had a falling out during the course of his case. Ammons’
case was set for trial, and additional charges were filed
against him.
“A week before trial,” Ammons met with trial counsel to
discuss a plea offer. The following colloquy was had regarding
the plea offer.
Q. [by postconviction counsel] What was the plea
offer?
A. [by Ammons] Plead to two counts of prohibited
person, 3 to 50.
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Cite as 31 Neb. App. 489Q. Was it your understanding that this would be reduc-
ing it from a second offense to a first offense?
A. Yes.
Q. On both counts?
A. Yes.
Q. And any other charges would be dismissed?
A. Yes.
Q. When you first met with [trial counsel], were you
happy with this plea offer?
A. No.
Q. Were you frustrated?
A. Yes, and upset.
Q. Did you discuss still going to trial and not taking
the plea offer with [trial counsel]?
A. Yes.
Q. At the end of the meeting when you left [trial coun-
sel’s] office, had you accepted the plea offer?
A. No.
Q. What did you tell [trial counsel]?
A. I will be in contact with him within the next day or
two.
Q. Did you need some time to think it over?
A. Yes, and discuss it with my wife.
Q. At some point did you then call [trial counsel] on
the phone to discuss the plea offer further?
A. Yes.
Q. And at that point did you accept the plea offer?
A. Yes, with the understanding that I would receive
concurrent sentences.
Q. And I guess just to follow up, . . . that there would
be request [sic] for concurrent sentences. Is that fair to
say?
A. Yes.
Q. That was not part of the plea agreement?
A. No.
Q. Did you and [trial counsel] have discussions about
wanting to request concurrent sentences?
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Cite as 31 Neb. App. 489A. Yes.
Q. Up until this point, do you recall having any conver-
sations with [trial counsel] about an appeal?
A. Not until I was at court for the plea agreement, I
asked him if my plea would affect an appeal.
....
Q. And was it your understanding that you could still
appeal parts of your case even if you took a plea?
A. Yes.
Ammons failed to appear at his first sentencing hearing
because he “was scared, overwhelmed, upset, worried.” He
was later arrested on a bench warrant, and the case was set for
a new sentencing hearing. Between the time of his arrest on
the warrant until sentencing, Ammons met with trial counsel
“[o]ne time,” “maybe a day or two” before sentencing; no
discussions about an appeal or the appeal process were had at
the meeting.
Ammons was not sitting next to trial counsel at the sentenc-
ing hearing; Ammons was at the jail when the sentencing hear-
ing was conducted. Ammons stated that the sentencing hearing
took place “over a monitor” and that “[a]s soon as I was sen-
tenced, the monitors cut off and that was it.” Ammons said that
at the sentencing hearing, “[t]he State said that they wouldn’t
request consecutive or necessarily be for or against concurrent
sentences,” and he received two consecutive sentences. After
the sentencing hearing, Ammons never saw trial counsel in
person and he did not receive a letter from trial counsel outlin-
ing his appeal options.
Two days after his September 2020 sentencing, Ammons
was transported to a different facility. “Within the first week”
of being at that new facility, Ammons spoke with his wife and
requested that she contact trial counsel because Ammons “was
interested in appealing and to get my paperwork for an appeal.”
Ammons also asked his “god brother, Darrell Granderson,” to
contact trial counsel. And Ammons sent trial counsel a letter
requesting his “paperwork so I can file an appeal.” Eventually,
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Cite as 31 Neb. App. 489Ammons decided to file an appeal on his own because he
could not get in contact with trial counsel; prior to this case,
Ammons had never filed an appeal. At the time, Ammons was
not aware that he needed to file an appeal within 30 days of the
date of his sentencing. Ammons filed his appeal in “December
of 2020,” and again in “February of 2021”; he “had to do
it twice because the first time I did it incorrectly.” Ammons
wanted a direct appeal, and he felt like he did everything he
could to file a direct appeal. He subsequently filed a motion for
postconviction relief.
On cross-examination, Ammons was asked what took him
so long to file his own direct appeal. He responded that he
“had to do the research and learn how to do it myself.” (He
had previously confirmed that, due to the COVID-19 pandemic
and being placed on a 14-day quarantine, his ability to go to
the law library at the correctional facility was restricted.) When
asked what issue he wanted to appeal, he responded, “[t]he
double-jeopardy excessive sentence.” Ammons was asked why
he felt like he received excessive sentences. He responded,
“[B]oth charges stemmed from one incident. They’re not two
separate incidents so it should have only been one charge.”
When asked if he felt the sentences were excessive in light of
his record and in light of all of the charges the State would
have been able to bring against him if he had gone to trial,
Ammons replied, “Yes.”
(ii) Ammons’ Wife’s Deposition Testimony
In her deposition, Ammons’ wife testified that she has been
a booking officer at a county youth center for 16 years. She
further testified that she was present at one of the meetings
between Ammons and his trial counsel and that she also indi-
vidually met trial counsel on one other occasion to discuss
Ammons’ case; during those two meetings, she did not hear
any conversations about an appeal. Ammons’ wife stated that
at some point, she and trial counsel discussed the potential
of her being an alibi witness. She said she stayed involved in
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Cite as 31 Neb. App. 489the case through the plea and denied that she and Ammons
ever had a falling out. During her discussions with Ammons,
she learned that Ammons would be pleading to two charges;
when asked if there were discussions about concurrent sen-
tences, she said, “Yes.” Ammons’ wife did not appear at the
plea hearing or at the sentencing hearing. At some point after
sentencing, Ammons informed his wife about his sentences.
It was her understanding that Ammons wanted to appeal his
case. She said that “within the week” after Ammons was sen-
tenced, she called trial counsel twice, but was not able to get
in contact with trial counsel; both times, she left a message for
trial counsel with his receptionist asking “about [Ammons’]
paperwork, his motions to discovery, I believe, and an appeal
process.” She asked that trial counsel call her back, but she
never spoke with him. When asked when she last spoke with
trial counsel about Ammons’ case, she responded, “[i]t was the
last time me and him had that consultation about the alibi.”
(iii) Trial Counsel’s Deposition Testimony
In his deposition, trial counsel testified that he was pri-
vately retained on January 15, 2019, to represent Ammons
in the underlying criminal matter. Trial counsel said that he
had a “lot of conversations” with Ammons, who had “some
serious charges against him” and that “I was doing whatever
I could to get them reduced, and eventually we were able to
reach a plea agreement that was acceptable to him.” Although
Ammons’ wife had been present at some of the consultations,
trial counsel believed that the consultation regarding the plea
agreement was with Ammons only; “there was some tension
between [Ammons and his wife]” “[b]ecause she was poten-
tially a witness with respect to an alibi and that didn’t come
to fruition.” During trial counsel’s discussion with Ammons,
his “attitude was sometimes to go to trial, other times, you
know, try to get the best deal I can get, and we did get a deal
significantly less than what he was charged with,” so Ammons
accepted the plea.
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Cite as 31 Neb. App. 489Trial counsel was asked, “During these conversations dis-
cussing the plea agreement, did you discuss that at sentenc-
ing you would argue for concurrent sentences?” Trial counsel
responded, “Yes.” When asked if he recalled ever talking to
Ammons about an appeal procedure, trial counsel stated:
It would have been a number of times. Initially on
January the 15th of 2019, he executed a written fee agree-
ment and in that fee agreement it specifically says that my
representation is strictly for the case that was pending. It
does not include any appeal or post-conviction matters.
That would have gone [sic] over with him and he signed
that agreement.
And then every time — my practice is before a client
enters a plea, I advise them of their rights that they waive.
I tell them that they waive all of those rights except the
right to appeal from any sentence that’s imposed.
Trial counsel was asked whether he met with Ammons in
preparation for sentencing. Trial counsel responded, “I believe
so. After the plea, he went on the lam and did not appear for
initial sentencing. I think he was picked up in either Nevada
or Texas. And as far as I can remember, I would have met
with him again prior to the sentencing.” Trial counsel argued
for concurrent sentences, but Ammons received consecutive
sentences.
After sentencing, trial counsel “would have sent [Ammons]
the judgment and sentence,” but did not file a notice of appeal.
However, trial counsel did not have any more in-person con-
versations with Ammons and did not recall whether Ammons
contacted his office regarding an appeal. Trial counsel said
“[i]t’s possible” that Ammons could have contacted counsel’s
office, but “our receptionist takes phone messages and I don’t
have any recollection of any contact”; “[i]t’s possible, but I
don’t believe so.” Trial counsel did receive a request from
Ammons for copies of the discovery, but counsel did not
remember any correspondence with a request for an appeal.
Trial counsel was asked if he recalled receiving any phone
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Cite as 31 Neb. App. 489calls from Ammons’ wife or Darrell Granderson regarding an
appeal; trial counsel responded, “No.”
On cross-examination, trial counsel stated that he does not
have voicemail and that messages left for him are handwrit-
ten on a message pad. Trial counsel was asked if in the last 3
years, he noticed that there were a lot of client messages he
did not receive. Trial counsel responded, “No.” Additionally
on cross-examination, trial counsel stated that “if somebody
told me that they wanted to appeal, the first thing I’d do would
be to file a notice of appeal.” If the client could not afford to
hire trial counsel for appeal, “then the question would become
whether the Court would appoint me on it or appoint somebody
else”; but in any situation, trial counsel would move forward
with filing that appeal.
(c) District Court’s Order
In an order entered on September 14, 2021, the district
court found that Ammons’ wife’s testimony “shed little light
on the issue presented” because she did not recall any con-
versations in meetings with Ammons and trial counsel where
the issue of an appeal was discussed; she “recalls calling [trial
counsel’s] office twice within a week and a half of [Ammons’]
sentencing but she was unable to contact him,” and “[s]he
states that she left a message with [trial counsel’s] receptionist
about an appeal.”
The district court found that Ammons “also had little to add
on this issue.” The court said:
The first time [Ammons] discussed an appeal was “at
court for the plea agreement” and that he asked [trial
counsel] if this would “affect an appeal” and he was
told that he could still appeal. [Ammons] never spoke
with [trial counsel] again after the sentencing. [Ammons]
recalls speaking with [his wife] after he was sentenced
and he recalls asking her to contact [trial counsel] to dis-
cuss an appeal. [Ammons] states he filed an appeal with
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Cite as 31 Neb. App. 489the Douglas County Court himself in December, 2020 and
February, 2021.
The district court said trial counsel “does not recall any
personal contact by [Ammons] after his sentencing regarding
[Ammons] wanting to appeal,” nor does he recall any con-
tact with Ammons’ wife or anyone else regarding an appeal
for Ammons. Trial counsel “does recall that he received a
request from [Ammons] for some of the discovery and he did
send [Ammons] copies of the discovery.” Trial counsel “stated
that if [Ammons] had notified him that he wanted to appeal
he would have filed the notice of appeal then he would have
determined whether the court would appoint him.”
The district court found:
[Ammons] produced no documentary evidence to sup-
port his deposition testimony that he tried to have [trial
counsel] file an appeal on his behalf. [Ammons] is not
a stranger to the judicial system having previously been
convicted of Possession of a Deadly Weapon by a Felon,
which by definition, indicates that he had a previous
felony conviction to that. [Ammons] was probably moti-
vated to take the plea agreement as the State was going to
seek a habitual criminal charge which carries a mandatory
sentence by itself of at least 10 years without any “good
time.” By pleading to the two charges the State dismissed
three other charges.
On the other hand, [trial counsel] stated that even
though he was not retained by [Ammons] to represent
him in an appeal, had [Ammons] asked him to do so he
would have timely filed the notice of appeal anyway.
The Court finds [trial counsel’s] testimony to be cred-
ible and [Ammons’] testimony to be less than credible.
Weighing [Ammons’] self-interest in making these alle-
gations with the lack of corroborating evidence that he
did direct [trial counsel] to file an appeal against the
credibility of [trial counsel’s] testimony, the Court finds
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Cite as 31 Neb. App. 489that [Ammons] did not direct [trial counsel] to file an
appeal. Therefore, the Court finds that [trial counsel’s]
performance was not deficient.
The court overruled Ammons’ motion for postconviction
relief.
Ammons appeals.
III. ASSIGNMENT OF ERROR
Ammons claims that the district court erred when it denied
his motion for postconviction relief and found that his trial
counsel was not ineffective in failing to file a direct appeal.
IV. STANDARD OF REVIEW
[1-3] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. State v. Russell,
308 Neb. 499, 954 N.W.2d 920 (2021). 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. Russell, supra.[4] 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. Id.V. ANALYSIS
1. Legal Principles
[5,6] Ammons seeks postconviction relief in the form of a
new direct appeal based on allegations of ineffective assist­
ance of trial counsel. Postconviction relief is a very narrow
category of relief, available only to remedy prejudicial consti-
tutional violations that render the judgment void or voidable.
Id. In order to obtain a new direct appeal as postconviction
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Cite as 31 Neb. App. 489relief, the defendant must show, by a preponderance of the
­evidence, that the defendant was denied his or her right to
appeal due to the negligence or incompetence of counsel, and
through no fault of his or her own. Id.[7,8] 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, supra, to
show that counsel’s performance was deficient; that is, coun-
sel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. State v. Russell, supra. Next,
the defendant must show that counsel’s deficient performance
prejudiced the defense in his or her case. Id. The two prongs of
the test for ineffective assistance of counsel may be addressed
in either order, and the entire ineffective assistance analysis
should be viewed with the strong presumption that counsel’s
actions were reasonable.
[9-13] On the deficiency prong, the U.S. Supreme Court
has said that a lawyer who disregards specific instructions
from the defendant to file a notice of appeal acts in a manner
that is professionally unreasonable. State v. Russell, supra.See, also, Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct.
1029, 145 L. Ed. 2d 985 (2000). In such circumstances where
counsel deficiently fails to file or perfect an appeal, prejudice
will be presumed and counsel will be deemed ineffective, thus
entitling the defendant to postconviction relief. See State v.
Russell, supra. However, a different inquiry is necessary when
a determination is made that the defendant did not specifically
instruct counsel to file an appeal.
[T]he U.S. Supreme Court has rejected a bright-line rule
that counsel is per se deficient by failing to automatically
file a notice of appeal unless the defendant specifically
instructs counsel not to. Instead, for cases where the
defendant neither instructs counsel to file an appeal nor
asks that an appeal not be taken, the Court adopted in Roe
v. Flores-Ortega a reasonableness inquiry for the defi-
ciency prong that considers whether counsel consulted
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Cite as 31 Neb. App. 489with the defendant and, if not, whether that failure to
consult was deficient performance.
State v. Russell, 308 Neb. 499, 507, 954 N.W.2d 920, 927-
28 (2021). Regarding an attorney’s consultation with a client
about filing an appeal, the U.S. Supreme Court has stated:
In those cases where the defendant neither instructs
counsel to file an appeal nor asks that an appeal not be
taken, we believe the question whether counsel has per-
formed deficiently by not filing a notice of appeal is best
answered by first asking a separate, but antecedent, ques-
tion: whether counsel in fact consulted with the defendant
about an appeal. We employ the term “consult” to convey
a specific meaning—advising the defendant about the
advantages and disadvantages of taking an appeal, and
making a reasonable effort to discover the defendant’s
wishes. If counsel has consulted with the defendant, the
question of deficient performance is easily answered:
Counsel performs in a professionally unreasonable man-
ner only by failing to follow the defendant’s express
instructions with respect to an appeal. . . . If counsel has
not consulted with the defendant, the court must in turn
ask a second, and subsidiary, question: whether counsel’s
failure to consult with the defendant itself constitutes
deficient performance. That question lies at the heart
of this case: Under what circumstances does counsel
have an obligation to consult with the defendant about
an appeal?
Roe v. Flores-Ortega, 528 U.S. at 478. The U.S. Supreme
Court stated that it could not say, “as a constitutional mat-
ter, that in every case counsel’s failure to consult with the
defendant about an appeal is necessarily unreasonable, and
therefore deficient. Such a holding would be inconsistent with
both our decision in Strickland and common sense.” Roe v.
Flores-Ortega, 528 U.S. at 479 (emphasis in original). As
one example, the Court explained that if a sentencing court’s
instructions to a defend­ant about his appeal rights are “so
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consult,” then counsel might “reasonably decide that he need
not repeat that information.” Id., 528 U.S. at 480.
[14] In rejecting “a bright-line rule that counsel must always
consult with the defendant regarding an appeal,” the U.S.
Supreme Court instead held:
[C]ounsel has a constitutionally imposed duty to consult
with the defendant about an appeal when there is reason
to think either (1) that a rational defendant would want
to appeal (for example, because there are nonfrivolous
grounds for appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he was interested
in appealing. In making this determination, courts must
take into account all the information counsel knew or
should have known.
Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S. Ct. 1029, 145
L. Ed. 2d 985 (2000). The Court pointed out that “a highly rel-
evant factor in this inquiry will be whether the conviction fol-
lows a trial or a guilty plea, both because a guilty plea reduces
the scope of potentially appealable issues and because such a
plea may indicate that the defendant seeks an end to judicial
proceedings.” Id. However, the Court added that even in cases
where a defendant pleads guilty,
the court must consider such factors as whether the
defend­ant received the sentence bargained for as part
of the plea and whether the plea expressly reserved or
waived some or all appeal rights. Only by considering
all relevant factors in a given case can a court prop-
erly determine whether a rational defendant would have
desired an appeal or that the particular defendant suffi-
ciently demonstrated to counsel an interest in an appeal.
Id.[15,16] The “second part of the Strickland test requires
the defendant to show prejudice from counsel’s deficient
performance.” Roe v. Flores-Ortega, 528 U.S. at 481. On the
prejudice prong of the ineffective assistance analysis seeking
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when counsel’s constitutionally deficient performance deprives
a defendant of an appeal that the defendant otherwise would
have taken, such a denial of a critical stage of the judicial
proceedings is one of the extreme failures of performance
that demands a presumption of prejudice. State v. Russell, 308
Neb. 499, 954 N.W.2d 920 (2021). See, also, Roe v. Flores-
Ortega, supra. “But the U.S. Supreme Court has explained,
with regard to the prejudice prong in an ineffective assist­
ance claim seeking a new direct appeal, that it is a ‘critical
requirement that counsel’s deficient performance must actu-
ally cause the forfeiture of the defendant’s appeal.’” State v.
Russell, 308 Neb. at 507-08, 954 N.W.2d at 928 (quoting Roe
v. Flores-Ortega, supra). To show prejudice in the context of
trial counsel’s failure to file a direct appeal, a defendant must
demonstrate that there is a reasonable probability that, but for
counsel’s deficient failure to consult with the defendant about
an appeal, he or she would have timely appealed. State v.
Wagner, 271 Neb. 253, 710 N.W.2d 627 (2006). See, also, Roe
v. Flores-Ortega, supra. The prejudice inquiry may be satis-
fied if the defendant shows nonfrivolous grounds for appeal.
See Roe v. Flores-Ortega, supra.[17,18] In an evidentiary hearing on a motion for post-
conviction relief, the trial judge, as the trier of fact, resolves
conflicts in the evidence and questions of fact. State v. Russell,
supra. The role of trier of fact necessarily requires the trial
judge to evaluate witness credibility and the weight to be
given to witnesses’ testimonies. See id. Triers of fact have the
right to test the credibility of witnesses by their self-interest
and to weigh it against the evidence, or the lack thereof. Id.Evidence not directly contradicted is not necessarily binding
on the trier of fact. See id.In summary, the legal principles set forth above direct that
when a defendant claims trial counsel was ineffective by fail-
ing to file a direct appeal following a final judgment in a crim­
inal case, consideration should first be given to whether the
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Cite as 31 Neb. App. 489defendant specifically instructed counsel to file an appeal or
not to file an appeal, and if no such instruction was given, then
whether counsel consulted with the defendant about an appeal.
If there was no such consultation, then a court must con-
sider whether counsel’s failure to consult with the defendant
itself constitutes deficient performance. Additionally, assuming
deficient performance is established, consideration must be
given to whether counsel’s deficient performance prejudiced
the defendant. In addressing deficiency, we will first consider
whether specific instructions were given by Ammons to file
an appeal, and if not, we will consider whether trial counsel
engaged in the necessary consultation with Ammons about an
appeal. As a final matter, we will address prejudice.
2. No Specific Instructions
to File Appeal
Although Ammons and his wife testified that they reached
out to trial counsel about an appeal, neither was able to person-
ally contact trial counsel. Trial counsel denied receiving any
communication from Ammons, Ammons’ wife, or Granderson
following sentencing, aside from Ammons’ letter requesting
discovery. Although trial counsel acknowledged receiving a
request from Ammons for copies of the discovery after sen-
tencing and acknowledged it was possible that Ammons could
have contacted his office, we cannot say that the district court,
having weighed the credibility of the witnesses, erred in find-
ing that Ammons did not direct trial counsel to file an appeal.
Because trial counsel did not disregard specific instructions
to file a notice of appeal, prejudice will not be presumed. See
State v. Russell, supra. See, also, State v. Amaya, 276 Neb. 818,
758 N.W.2d 22 (2008).
3. Failure to Consult About Appeal
Was Deficient Performance
There is no dispute in this case that trial counsel did not
consult with Ammons about an appeal following sentencing.
The record also reflects that the district court did not instruct
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Cite as 31 Neb. App. 489Ammons about his right to appeal at the time of sentencing.
However, when trial counsel was asked during his deposition
if he recalled ever talking to Ammons about an appeal proce-
dure, trial counsel responded, “It would have been a number
of times.” Additionally, Ammons stated in his deposition that
when he was “at court for the plea agreement,” he asked trial
counsel if his plea would affect an appeal, thus indicating his
awareness of an appeal process. When Ammons was asked if he
understood that he could “still appeal parts of [his] case even if
[he] took a plea,” he responded, “Yes.” Also at the plea hear-
ing, the court asked Ammons, “Do you understand, if you were
to have a trial in this case, and if you were convicted of one or
both charges, you would have the right to appeal that convic-
tion or convictions to the Nebraska Court of Appeals and/or the
Nebraska Supreme Court? Do you understand that?” Ammons
responded, “Yes, Your Honor.” The court also discussed, and
Ammons confirmed his understanding of, Ammons’ right to be
represented by an attorney at all stages of the criminal proceed-
ing, “including trial and appeal.”
Ammons contends that because he asked trial counsel if
a plea would impact his ability to appeal, that this conversa-
tion should have put trial counsel on notice that Ammons was
interested in an appeal. He also points out that “the plan” was
to “pursue concurrent sentences,” brief for appellant at 10,
but that at the sentencing hearing, when trial counsel said the
State would not be objecting to concurrent sentences, the State
denied that was the agreement. Ammons ultimately received
consecutive sentences, which was contrary to “the plan,” and
consequently, there was reason to think Ammons might want to
discuss the advantages and disadvantages of an appeal.
Although the record in this case indicates that trial counsel
testified that he spoke with Ammons “a number of times” about
an appeal procedure, such conversations would have occurred
before Ammons was sentenced to consecutive sentences
because trial counsel did not speak with Ammons after sentenc-
ing. We are unable to determine whether such presentencing
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Cite as 31 Neb. App. 489conversations rose to the level of consulting with Ammons
about an appeal, meaning, “advising the defendant about the
advantages and disadvantages of taking an appeal, and making
a reasonable effort to discover the defendant’s wishes.” Roe v.
Flores-Ortega, 528 U.S. 470, 478, 120 S. Ct. 1029, 145 L. Ed.
2d 985 (2000). It is also important to note in this case that the
sentencing hearing took place via videoconference. Ammons
was not sitting next to trial counsel at the sentencing hearing;
Ammons was at the jail when the sentencing hearing was con-
ducted. Ammons stated that the sentencing hearing took place
“over a monitor” and that “[a]s soon as I was sentenced, the
monitors cut off and that was it.” Thus, immediately following
sentencing, Ammons had no ability to confer with trial coun-
sel about an appeal—he could neither direct counsel to file an
appeal or to consult about the advantages and disadvantages of
an appeal—as he would have been able to do if he had been
sitting next to counsel at sentencing.
Accordingly, we agree with Ammons that trial counsel’s
failure to consult with him about an appeal following the
imposition of consecutive, rather than concurrent, sentences
constituted deficient performance. As set forth previously,
“[c]ounsel has a constitutionally imposed duty to consult with
the defend­ant about an appeal when there is reason to think
either (1) that a rational defendant would want to appeal . . .
or (2) that this particular defendant reasonably demonstrated
to counsel that he was interested in appealing.” Roe v. Flores-
Ortega, 528 U.S. at 480. To consult with a defendant about an
appeal means “advising the defendant about the advantages
and disadvantages of taking an appeal, and making a reason-
able effort to discover the defendant’s wishes.” Roe v. Flores-
Ortega, 528 U.S. at 478. Also, simply giving notice that “‘an
appeal is available’” or that “‘an appeal may be unavailing’”
is not sufficient. See Rojas-Medina v. U.S., 924 F.3d 9, 18 (1st
Cir. 2019) (at minimum, trial counsel was required to advise
client about pros and cons of taking appeal, and then make
reasonable effort to ascertain client’s wishes; such failure to
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Cite as 31 Neb. App. 489consult deprived petitioner of appeal he would have other-
wise taken and thus constituted prejudice). See, also, U.S. v.
Herring, 935 F.3d 1102, 1110 (10th Cir. 2019) (explaining
advantages and disadvantages of filing appeal need not impose
great burden on counsel; “[h]owever, that conversation, at the
very least, must explain what claims—if any—the defendant
is entitled to appeal and the strength and weaknesses of those
arguments”); Frazer v. South Carolina, 430 F.3d 696, 711
(4th Cir. 2005) (“[s]imply demonstrating that the defendant
was actually or constructively aware of his right to appeal is
insufficient to relieve defense counsel of his obligations under
Flores-Ortega”).
4. Deficient Performance
Resulted in Prejudice
Having determined there was deficient performance, we now
consider whether there was prejudice to Ammons as a result of
trial counsel’s failure to file a direct appeal. To show prejudice
in the context of trial counsel’s failure to file a direct appeal,
a defendant must demonstrate that there is a reasonable prob-
ability that, but for counsel’s deficient failure to consult with
the defendant about an appeal, he or she would have timely
appealed. State v. Wagner, 271 Neb. 253, 710 N.W.2d 627(2006). See, also, Roe v. Flores-Ortega, supra.In State v. Russell, 308 Neb. 499, 507-08, 954 N.W.2d 920,
928 (2021), the Nebraska Supreme Court stated:
[T]he U.S. Supreme Court has explained, with regard
to the prejudice prong in an ineffective assistance claim
seeking a new direct appeal, that it is a “critical require-
ment that counsel’s deficient performance must actually
cause the forfeiture of the defendant’s appeal.” Thus,
in Peguero v. United States, [526 U.S. 23, 119 S. Ct.
961, 143 L. Ed. 2d 18 (1999),] the Court held that the
defend­ant did not sustain his burden to demonstrate he
was prejudiced by trial counsel’s deficient failure to
inform him of his right to appeal, when the defendant had
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Cite as 31 Neb. App. 489actual knowledge of the right to appeal and did not
request that trial counsel file an appeal. Discussing
Peguero in Flores-Ortega, the Court indicated that in
such circumstances, an inquiry into whether counsel was
deficient for failing to consult with the defendant as to
the right to appeal is unnecessary.
To the extent [the defendant’s] motion attempted to
allege that trial counsel’s performance was deficient by
failing to advise him of the right to appeal, he was not
prejudiced by this failure, because he admitted he had
actual knowledge from other sources of the right to
appeal within 30 days. [The defendant’s] postconviction
claim correctly focused instead on trial counsel’s alleged
failure to timely file an appeal despite [the defendant’s]
alleged request that trial counsel do so.
(Emphasis supplied.)
At oral argument before this court, the State, relying on
State v. Russell, supra, asserted that if the defendant is aware
of his or her right to appeal, then inquiry into trial counsel’s
deficiency for failure to consult is unnecessary; the only con-
sideration is whether the defendant directed counsel to file an
appeal. We have already concluded that trial counsel’s failure
to consult with Ammons about an appeal constituted deficient
conduct under Roe v. Flores-Ortega, supra, and the facts pre-
sented here; and we do not read State v. Russell, supra, to
preclude a finding of prejudice in this case simply because
Ammons was generally aware he had a right to appeal.
We first note that any reliance by the State on Peguero
v. United States, 526 U.S. 23, 119 S. Ct. 961, 143 L. Ed.
2d 18 (1999), via State v. Russell, supra, is misplaced in
the case before us, because Peguero was not related to trial
counsel’s alleged ineffective performance. Rather, the ques-
tion in Peguero was whether the defendant was prejudiced
by the trial court’s failure to advise him of his right to appeal
as required by the Federal Rules of Criminal Procedure. In
Peguero, the U.S. Supreme Court granted certiorari to resolve
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Cite as 31 Neb. App. 489a circuit conflict over whether a district court’s failure to
advise a defendant of his right to appeal as required by the
Federal Rules of Criminal Procedure provides a basis for col-
lateral relief even when the defendant was otherwise aware of
his right to appeal. The U.S. Supreme Court held that a district
court’s failure to advise the defendant of his right to appeal
was an error, but that alone did not entitle him to habeas relief
if he knew of his right and suffered no prejudice from the
omission. The defendant testified at the evidentiary hearing
that, upon being sentenced, he at once asked his lawyer to file
an appeal. The record indicated that the defendant’s trial coun-
sel testified that the defendant told counsel he did not want to
appeal, because he hoped to cooperate with the government
to earn a sentence reduction as permitted within 1 year of
sentencing when a defendant provides substantial assistance
in the prosecution of another person. Because the defendant
had full knowledge of his right to appeal, the U.S. Supreme
Court concluded that the district court’s failure to inform him
of that right did not prejudice him. Notably, the impact of trial
counsel’s alleged ineffectiveness because of a failure to con-
sult with a criminal defendant about the advantages and dis-
advantages of taking an appeal was not discussed in Peguero
but was addressed the next year in Roe v. Flores-Ortega, 528
U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000), as dis-
cussed above.
We also observe that in Roe v. Flores-Ortega, supra, the
U.S. Supreme Court gave a comparison cite to Peguero when
disapproving a per se prejudice rule. The Court stated a
per se prejudice rule ignores the critical requirement that
counsel’s deficient performance must actually cause the
forfeiture of the defendant’s appeal. If the defendant
cannot demonstrate that, but for counsel’s deficient per-
formance, he would have appealed, counsel’s deficient
performance has not deprived him of anything, and he
is not entitled to relief. Cf. Peguero v. United States,
526 U.S. 23[, 119 S. Ct. 961, 143 L. Ed. 2d 18] (1999)
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Cite as 31 Neb. App. 489(defendant not prejudiced by court’s failure to advise
him of his appeal rights, where he had full knowledge of
his right to appeal and chose not to do so). Accordingly,
we hold that, to show prejudice in these circumstances,
a defendant must demonstrate that there is a reason-
able probability that, but for counsel’s deficient failure
to consult with him about an appeal, he would have
timely appealed.
. . . [W]e hold that when counsel’s constitutionally
deficient performance deprives a defendant of an appeal
that he otherwise would have taken, the defendant has
made out a successful ineffective assistance of counsel
claim entitling him to an appeal.
Roe v. Flores-Ortega, 528 U.S. at 484 (emphasis in original).
In this case, although the district court noted that Ammons
“is not a stranger to the judicial system having previously
been convicted of Possession of a Deadly Weapon by a Felon,
which by definition, indicates that he had a previous felony
conviction,” familiarity with the criminal justice system does
not necessarily mean familiarity with appellate procedure.
Ammons testified that prior to this case, he had never filed
an appeal and was not aware that he needed to file an appeal
within 30 days of the date of his sentencing. When asked what
took him so long to file his own direct appeal, he responded
that he “had to do the research and learn how to do it myself.”
And he had previously confirmed that, due to the COVID-19
pandemic and being placed on a 14-day quarantine, his abil-
ity to go to the law library at the correctional facility was
restricted. Under the circumstances of this case, Ammons
demonstrated that there is a reasonable probability that, but
for counsel’s failure to consult with him about an appeal,
he would have timely appealed; accordingly, he has shown
prejudice. See State v. Wagner, 271 Neb. 253, 710 N.W.2d
627 (2006).
For the sake of completeness, we also point out that it is
not necessary that Ammons demonstrate that his appeal has
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defendant to demonstrate that his hypothetical appeal might
have had merit before any advocate has ever reviewed the
record in his case in search of potentially meritorious grounds
for appeal.” Roe v. Flores-Ortega, 528 U.S. at 486 (emphasis
in original). “Rather, we require the defendant to demon-
strate that, but for counsel’s deficient conduct, he would have
appealed.” Id. The prejudice inquiry may be satisfied if the
defendant shows nonfrivolous grounds for appeal. See Roe v.
Flores-Ortega, supra.In the present case, while the likelihood of success on
appeal on issues noted by Ammons may not be high, we can-
not say that such an appeal would be frivolous. See State
v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018) (generally
within trial court’s discretion to direct sentences imposed
for separate crimes be served either concurrently or con-
secutively). See, also, State v. Hicks, No. A-20-732, 2021
WL 3354272 (Neb. App. Aug. 3, 2021) (selected for posting
to court website) (defendant pled no contest to two counts
of possession of deadly weapon by prohibited person, each
count relating to one of two pistols defendant received dur-
ing controlled buy; language of § 28-1206 not ambiguous and
simultaneous possession of multiple firearms each consists of
separate offense; imposition of two consecutive sentences did
not violate Double Jeopardy Clause).
Because Ammons’ trial counsel was ineffective, Ammons’
motion for postconviction relief should have been granted and
he should have been given a new direct appeal.
VI. CONCLUSION
For the foregoing reasons, we reverse the denial of Ammons’
motion for postconviction relief and remand the matter to
the district court with directions to grant Ammons a new
direct appeal.
Reversed and remanded with directions.