State v. Honken ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. HONKEN
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.
ROBERT S. HONKEN, APPELLANT.
Filed November 3, 2020. No. A-19-949.
Appeal from the District Court for Hamilton County: RACHEL A. DAUGHERTY, Judge.
Affirmed.
Robert S. Honken, pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.
BISHOP, ARTERBURN, and WELCH, Judges.
BISHOP, Judge.
Robert S. Honken was previously convicted of two counts of conspiracy to commit first
degree murder, and was sentenced to 45 to 50 years’ imprisonment on each count, to be served
concurrently. His convictions and sentences were affirmed on direct appeal by this court in State
v. Honken, 25 Neb. Ct. App. 352, 905 N.W.2d 689 (2017).
More than 1 year after the mandate issued in State v. Honken, supra, Honken filed
numerous pro se pleadings requesting relief, including a verified motion for postconviction relief,
a petition for writ of error coram nobis, and a motion for new trial. The Hamilton County District
Court denied Honken’s requests for relief for various reasons. Honken appeals the district court’s
order denying him relief. We affirm.
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BACKGROUND
TRIAL AND DIRECT APPEAL
This case arose out of Honken’s attempt to hire two different individuals, including an
undercover investigator, to kill his wife. Following a stipulated bench trial, Honken was convicted
of two counts of conspiracy to commit first degree murder, and was sentenced to 45 to 50 years’
imprisonment on each count, to be served concurrently. His convictions and sentences were
affirmed on direct appeal by this court in State v. Honken, supra. At the time of his direct appeal,
Honken was represented by different counsel than at the time of trial. This court’s mandate in the
former case was issued on January 22, 2018, and the district court entered judgment on our
mandate on January 29.
SUBSEQUENT REQUESTS FOR RELIEF
AND DISTRICT COURT’S ORDER
Between June 24 and July 15, 2019, Honken filed numerous pro se requests for relief. On
June 24, Honken filed (1) a verified motion for postconviction relief, (2) a motion for evidentiary
hearing to make a record for postconviction relief, (3) a petition for writ of error coram nobis, (4)
two motions for absolute discharge, (5) a motion to suppress, (6) two motions for appointment of
counsel, and (7) a motion to proceed in forma pauperis. On July 5, Honken filed (1) a motion for
absolute discharge, (2) a motion to suppress, (3) a motion for appointment of counsel, and (4) a
motion to proceed in forma pauperis. On July 15, Honken filed a motion for new trial. The contents
of Honken’s pleadings will be discussed as necessary in the analysis.
On August 30, 2019, the district court denied all of Honken’s requests for relief without
holding an evidentiary hearing. The court found that Honken’s motion for postconviction relief
was time barred, and did not otherwise affirmatively show that he was entitled to relief. The court
noted that Honken’s writ for error coram nobis was substantially similar to his motion for
postconviction relief and raised the same claims. The court found that the writ challenged errors
of law and did not allege specific facts that would have prevented a conviction, and therefore, the
writ, on its face, provided no possibility of relief. As to Honken’s motion for new trial, the court
found that to the extent Honken’s claims were based on grounds other than “newly discovered
evidence,” he failed to timely file the motion or allege facts showing that such a filing was
unavoidably prevented. And to the extent that Honken’s motion for new trial was based on “newly
discovered evidence,” he failed to allege facts showing the information could not have been
discovered and produced at trial; further any alleged “newly discovered evidence” that discredited
a witness at trial did not justify a new trial. Finally, the court found Honken’s two motions to
suppress and three motions for absolute discharge were untimely filed. Accordingly, the district
court denied all of Honken’s requests for relief.
Honken appeals.
ASSIGNMENTS OF ERROR
Summarized, Honken assigns that the district court erred when it denied his motion for
postconviction relief, his petition for writ of error coram nobis, and his motion for new trial without
an evidentiary hearing.
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STANDARD OF REVIEW
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law which is reviewed independently of the lower court’s ruling. State v. Hessler, 305 Neb. 451,
940 N.W.2d 836 (2020).
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. Jackson, 296 Neb. 31, 892 N.W.2d 67 (2017).
The findings of the district court in connection with its ruling on a motion for a writ of
error coram nobis will not be disturbed unless they are clearly erroneous. State v. Hessler, 295
Neb. 70, 886 N.W.2d 280 (2016).
A de novo standard of review applies when an appellate court is reviewing a trial court’s
dismissal of a motion for a new trial under Neb. Rev. Stat. § 29-2102(2) (Reissue 2016) without
conducting an evidentiary hearing. See State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).
ANALYSIS
POSTCONVICTION RELIEF
Honken contends that the district court erred in overruling his motion for postconviction
relief without an evidentiary hearing.
Postconviction relief is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or her constitutional rights
such that the judgment was void or voidable. State v. Newman, 300 Neb. 770, 916 N.W.2d 393
(2018). In a motion for postconviction relief, the defendant must allege facts which, if proved,
constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing
the judgment against the defendant to be void or voidable. State v. Newman, supra.
A trial court must grant an evidentiary hearing to resolve the claims in a postconviction
motion when the motion contains factual allegations which, if proved, constitute an infringement
of the defendant’s rights under the Nebraska or federal Constitution. State v. Newman, supra. If a
postconviction motion alleges only conclusions of fact or law, or if the records and files in a case
affirmatively show the defendant is entitled to no relief, the court is not required to grant an
evidentiary hearing. Id. Thus, in a postconviction proceeding, an evidentiary hearing is not
required (1) when the motion does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights; (2) when the motion alleges only conclusions
of fact or law; or (3) when the records and files affirmatively show that the defendant is entitled to
no relief. Id.
In his 32-page motion for postconviction relief, Honken alleged more than 40 claims of
ineffective assistance of trial counsel, approximately 30 claims of ineffective assistance of
appellate counsel, approximately 15 claims of prosecutorial misconduct, more than 10 errors by
the trial court, and actual innocence. Many of his individual claims are found in more than one of
the categories above. While we do not set forth each of Honken’s individual claims, they include
claims related to the failure to file motions to suppress, the failure to interview or call witnesses,
the admissibility of evidence, an entrapment defense, the failure to investigate his competency, a
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violation of his right to a speedy trial, attorney conflict of interest, and the failure to inform him of
a plea offer.
Before we can address Honken’s arguments, we must first determine whether the district
court correctly concluded that his motion was untimely. The Nebraska Postconviction Act contains
a 1-year time limit for filing a verified motion for postconviction relief, which runs from one of
four triggering events or August 27, 2011, whichever is later. State v. Harrison, 293 Neb. 1000,
881 N.W.2d 860 (2016). See, also, Neb. Rev. Stat. § 29-3001(4) (Reissue 2016). Section
29-3001(4) states:
A one-year period of limitation shall apply to the filing of a verified motion for
postconviction relief. The one-year limitation period shall run from the later of:
(a) The date the judgment of conviction became final by the conclusion of a direct
appeal or the expiration of the time for filing a direct appeal;
(b) The date on which the factual predicate of the constitutional claim or claims
alleged could have been discovered through the exercise of due diligence;
(c) The date on which an impediment created by state action, in violation of the
Constitution of the United States or the Constitution of Nebraska or any law of this state,
is removed, if the prisoner was prevented from filing a verified motion by such state action;
(d) The date on which a constitutional claim asserted was initially recognized by
the Supreme Court of the United States or the Nebraska Supreme Court, if the newly
recognized right has been made applicable retroactively to cases on postconviction
collateral review; or
(e) August 27, 2011.
Here, Honken’s judgment of convictions became final when this court issued its mandate
on January 22, 2018. See State v. Koch, 304 Neb. 133, 933 N.W.2d 585 (2019) (direct appeal
concluded once appellate court issued mandate, not when district court entered judgment on
mandate). Honken filed his postconviction motion on June 24, 2019, more than 1 year after the
date the mandate was issued by the appellate court. Accordingly, Honken’s motion for
postconviction relief was time barred absent facts that bring his claim within § 29-3001(4)(b), (c),
or (d).
Honken made no argument which could be construed as bringing his claim within
§ 29-3001(4)(c) or (d). As to § 29-3001(4)(b), Honken alleged that his trial counsel was ineffective
for failing to communicate a plea offer by the county attorney. Honken alleged he received
“[d]ocuments” on June 7, 2019, regarding a plea offer that was never discussed with him; he states,
“see Exhibit ‘A’ Never discuss what the deal was, I should have been told.” However, there is no
exhibit “A” attached to his motion. As stated by the district court:
While this allegation arguably is one that may warrant an evidentiary hearing, the Court
notes that [Honken] had different counsel on appeal than he did at the trial court level.
There is no factual allegation to explain why [Honken] could not have obtained this
information through the exercise of due diligence prior to the one-year deadline imposed
in [§ 29-3001(4)(a)]. [Honken] does not allege that the factual predicate for his ineffective
assistance claim was not discoverable through the exercise of due diligence within the
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one-year limitation period. As such, the Court finds that [Honken] does not meet the criteria
as set forth in [§ 29-3001(4)(b)].
We agree with the district court that Honken did not meet the criteria as set forth in
§ 29-3001(4)(b). And, as noted by the State, Honken does not argue on appeal that the district
court erred in not finding this claim timely under § 29-3001(4)(b).
In fact, when discussing postconviction relief in his brief, Honken states, “[w]hether timely
presented or not,” he has a claim of “Actual Innocence.” Brief for appellant at 18. Honken’s
postconviction motion alleged he was actually innocent of the crimes for which he was convicted.
He supports his allegation by referencing alleged procedural errors, a warrantless search and illegal
arrest, speedy trial issues, coercion to have a bench trial instead of a jury trial, issues of his own
competency, attorney conflict of interest, the use of a paid informant by law enforcement to entrap
him, inconsistent statements by “several informants,” recently revealed persons “that had
information to clear defendant,” and alleged claims of ineffective assistance of counsel. In his brief
to this court, Honken contends than an “actual [i]nnocence claim is clearly warranted in this case.”
Id. at 19. The trial court found Honken made generalizations but did not allege specific facts that
would have prevented a conviction. We agree.
In State v. Dubray, 294 Neb. 937, 947-48, 885 N.W.2d 540, 551 (2016), the Nebraska
Supreme Court stated:
A claim of actual innocence may be a sufficient allegation of a constitutional
violation under the Nebraska Postconviction Act. The essence of a claim of actual
innocence is that the State’s continued incarceration of such a petitioner without an
opportunity to present newly discovered evidence is a denial of procedural or substantive
due process. The threshold to entitle a prisoner to an evidentiary hearing on such a
postconviction claim is “‘extraordinarily high.’” Such a petitioner must make a strong
demonstration of actual innocence because after a fair trial and conviction, the presumption
of innocence vanishes.
Actual innocence means that a defendant did not commit the crime for which he or she is charged.
Nadeem v. State, 298 Neb. 329, 904 N.W.2d 244 (2017) (comparing legal innocence with actual
innocence). Honken has not met the extraordinarily high threshold of alleging facts sufficient to
show he is actually innocent of the crimes; none of his alleged facts show that he did not commit
the crimes for which he was convicted. Accordingly, the district court did not err in denying
Honken’s motion for postconviction relief without an evidentiary hearing.
WRIT OF ERROR CORAM NOBIS
Honken contends that the district court erred in overruling his petition for writ of error
coram nobis without an evidentiary hearing.
The purpose of the writ of error coram nobis is to bring before the court rendering
judgment matters of fact which, if known at the time the judgment was rendered, would have
prevented its rendition. State v. Harrison, supra. The writ reaches only matters of fact unknown to
the applicant at the time of judgment, not discoverable through reasonable diligence, and which
are of a nature that, if known by the court, would have prevented entry of judgment. Id. The writ
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is not available to correct errors of law. Id. The burden of proof in a proceeding to obtain a writ of
error coram nobis is upon the applicant claiming the error, and the alleged error of fact must be
such as would have prevented a conviction. State v. Hessler, 295 Neb. 70, 886 N.W.2d 280 (2016).
It is not enough to show that it might have caused a different result. Id.
In his 34-page petition for writ of error coram nobis, Honken’s claims are the same as those
alleged his motion for postconviction relief. Honken alleged more than 40 claims of ineffective
assistance of trial counsel, approximately 30 claims of ineffective assistance of appellate counsel,
approximately 15 claims of prosecutorial misconduct, and more than 10 errors by the trial court.
However, claims of errors or misconduct at trial and ineffective assistance of counsel are
inappropriate for coram nobis relief. State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).
Honken also made a claim of actual innocence. But, as noted previously, Honken did not
allege facts sufficient to show he is actually innocent of the crimes; none of his alleged facts show
that he did not commit the crimes for which he was convicted. See Nadeem v. State, supra.
Accordingly, the district court did not err in denying Honken’s petition for a writ of error coram
nobis without an evidentiary hearing.
MOTION FOR NEW TRIAL
Honken contends that the district court erred in denying his motion for new trial without
an evidentiary hearing.
Honken was convicted of his crimes in November 2016, and this court affirmed his
convictions and sentences in December 2017; our mandate was issued on January 22, 2018.
Honken did not file his motion for new trial until July 15, 2019. In his motion for new trial, Honken
claimed there were numerous irregularities and misconduct during the proceedings. His claims are
similar to those made in his motion for postconviction relief and in his petition for writ of error
coram nobis. His claims included allegations of a violation of his right to speedy trial, “false
testimony” and “false evidence” by named individuals, “false statements” by “informants,”
“inconsistent statements” by named individuals, the admissibility of evidence, evidence of
entrapment, the failure to disclose exculpatory evidence, the failure to discuss a plea offer, issues
of Honken’s competency, attorney conflict of interest, the ineffective assistance of his trial and
appellate counsel, prosecutorial misconduct, and judicial errors.
Grounds for a new trial are set forth in Neb. Rev. Stat. § 29-2101 (Reissue 2016) which
states:
A new trial, after a verdict of conviction, may be granted, on the application of the
defendant, for any of the following grounds affecting materially his or her substantial
rights: (1) Irregularity in the proceedings of the court, of the prosecuting attorney, or of the
witnesses for the state or in any order of the court or abuse of discretion by which the
defendant was prevented from having a fair trial; (2) misconduct of the jury, of the
prosecuting attorney, or of the witnesses for the state; (3) accident or surprise which
ordinary prudence could not have guarded against; (4) the verdict is not sustained by
sufficient evidence or is contrary to law; (5) newly discovered evidence material for the
defendant which he or she could not with reasonable diligence have discovered and
produced at the trial; (6) newly discovered exculpatory DNA or similar forensic testing
evidence obtained under the DNA Testing Act; or (7) error of law occurring at the trial.
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If the motion for new trial and supporting documents fail to set forth sufficient facts, the court
may, on its own motion, dismiss the motion without a hearing. § 29-2102.
In his motion for new trial, Honken specifically mentions § 29-2101(3), (4), and (5).
However, for the sake of completeness, we will also briefly address the other grounds for new trial
as well.
None of Honken’s allegations fall within § 29-2101(6). And a motion for new trial based
on the grounds set forth in § 29-2101(1), (2), (3), (4), or (7) shall be filed within 10 days after the
verdict was rendered unless such filing is unavoidably prevented. Neb. Rev. Stat. § 29-2103(3)
(Reissue 2016). Honken did not file his motion for new trial within 10 days after the verdict was
rendered. And although Honken claims that his filing was unavoidably prevented, the record
before us and the allegations in Honken’s own motion refute his claim.
The record before us reveals that Honken was present for the trial court proceedings.
Honken confirmed to the trial court his desire to waive his right to a jury trial and to proceed to
trial based upon stipulated facts. The record also reveals that Honken confirmed his trial counsel’s
statements to the court that Honken “did not want to go through with a full-blown trial with live
witnesses” and that counsel’s “instructions are to not object” to the State’s exhibits and to submit
the evidence to the court. Because Honken was present during the trial court proceedings or
otherwise should have been aware of any issues under § 29-2101(1), (2), (3), (4), or (7), he did not
allege facts showing that his filing for a motion for new trial on such grounds was unavoidably
prevented. Furthermore, although Honken makes allegations of prosecutorial misconduct, he did
not support his allegations with an affidavit. See § 29-2102 (grounds set forth in § 29-2101(2), (3),
and (6) shall be supported by affidavits showing truth of such grounds, and grounds may be
controverted by affidavits; if motion for new trial and supporting documents fail to set forth
sufficient facts, court may, on its own motion, dismiss motion without hearing.)
Honken’s motion for new trial also alleged newly discovered evidence pursuant to
§ 29-2101(5). A motion for new trial based on the grounds set forth in § 29-2101(5) shall be filed
within a reasonable time after the discovery of the new evidence and cannot be filed more than 5
years after the date of the verdict, unless the motion and supporting documents show the new
evidence could not with reasonable diligence have been discovered and produced at trial and such
evidence is so substantial that a different result may have occurred. See § 29-2103(4). The ground
set forth in § 29-2101(5) shall be supported by evidence of the truth of the ground in the form of
affidavits, depositions, or oral testimony. § 29-2102(1). If the motion for new trial and supporting
documents fail to set forth sufficient facts, the court may, on its own motion, dismiss the motion
without a hearing. § 29-2102(2).
Honken’s allegations included: “[t]he new[ly] discovered police reports that was [sic] just
released to defendant on June 7, 2019 that reveals the inconsistent statements made by several
informants and the used [sic] of non-testifying informant’s out-of-court statements that the trial
Judge knew was false but continued to use them to convict Robert Honken”; several named
witnesses were “just revealed on June 7, 2019,” and “had information to clear defendant, but never
called, a denial of his constitutional rights to confrontation clause and compulsory process”; and
“[n]ewly discovered evidence, via informant’s statements of the creation and mamipulation [sic]
of the stories” of named individuals. Honken also alleged, “It is known now that [Honken’s trial
counsel], [and] the prosecutor with held [sic] exculpatory evidence so substantial that the sentences
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and conviction cannot stand due to the miscarriage of justice that occurred in the case,” and he
“was not able to obtain or discover any of the . . . evidence until after actually getting his records
from his attorneys, and obtaining affidavits that should have been introduced during trial.”
(Emphasis supplied.) Honken stated he received records from his trial counsel on June 7, 2019,
after a complaint was filed with the counsel for discipline. Honken’s allegations of “newly
discovered” evidence that would “clear” him and “newly discovered” evidence “via informant’s
statements of the creation and mamipulation [sic] of the stories” of named individuals were not
supported by affidavits, depositions, or oral testimony.
The district court found that any allegations of newly discovered evidence came from
Honken’s review of his own file, and “[in] fact, [Honken] acknowledges that he received the
information directly from his trial counsel.” Accordingly, the district court found that Honken
failed to allege facts which show the information alleged was “newly discovered” and could not
have been discovered and produced at trial. We agree.
Initially we note that to justify a new trial, newly discovered evidence must involve
something other than the credibility of the witness who testified at trial. State v. Oliveira-Coutinho,
291 Neb. 294, 865 N.W.2d 740 (2015). And two of Honken’s allegations refer to exculpatory
evidence that revealed “inconsistent” statements or “creation and mamipulation [sic] of the stories”
of named individuals.” His remaining allegation refers to several named witnesses who “had
information to clear” Honken. This is a curious allegation given that Honken admitted to law
enforcement that he had hired two individuals, including an undercover investigator to kill his
wife. See State v. Honken, 25 Neb. Ct. App. 352, 905 N.W.2d 689 (2017). Regardless, in his motion
for new trial, Honken alleged that his trial counsel and the prosecutor withheld the exculpatory
information. Therefore, Honken’s own allegation establishes that his trial counsel was aware of
the information. This is further evidenced by Honken’s allegation that he was not able to discover
the information until getting the records from his attorneys. Based on Honken’s own allegations,
the alleged exculpatory information was found in his own case file. Trial counsel, being aware of
any exculpatory evidence, could have produced it at trial. And if trial counsel failed to produce
any exculpatory evidence at trial, such could have been raised as an ineffective assistance of
counsel claim on appeal. However, ineffective assistance of counsel is not a ground upon which a
defendant may move for new trial under § 29-2101. State v. Pieper, 274 Neb. 768, 743 N.W.2d
360 (2008). Moreover, as previously noted, Honken’s allegations of “newly discovered” evidence
that would “clear” him and “newly discovered” evidence “via informant’s statements of the
creation and mamipulation [sic] of the stories” of named individuals were not supported by
affidavits, depositions, or oral testimony as required. See § 29-2102(2). Accordingly, upon our de
novo review, we find no error by the district court when it denied Honken’s motion for new trial
without an evidentiary hearing.
CONCLUSION
For the reasons stated above, we affirm the decision of the district court to deny Honken’s
requested relief without an evidentiary hearing.
AFFIRMED.
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