State v. Heckard ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. HECKARD
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.
CHARLES J. HECKARD, JR., APPELLANT.
Filed March 16, 2021. No. A-20-394.
Appeal from the District Court for Douglas County: LEIGH ANN RETELSDORF, Judge.
Affirmed.
Charles J. Heckard, Jr., pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.
PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Charles J. Heckard, Jr., appeals the Douglas County District Court’s denial of his motion
for postconviction relief without an evidentiary hearing. For the reasons set forth herein, we affirm.
STATEMENT OF FACTS
Following a jury trial in 2014, the Douglas County District Court convicted Heckard of
burglary. In a filing the next day, the district court noted sentencing was “to be set upon arrest,”
finding that Heckard “failed to appear,” and indicating that a warrant had been issued. At the
enhancement hearing, held almost 3 years later in 2017, the district court found Heckard was a
habitual criminal and thereafter sentenced him to 10 to 12 years’ imprisonment. In a motion for
new trial, Heckard requested the district court vacate and set aside his burglary conviction. He
argued that he was not personally present “for a portion of his jury trial and for the verdict,” which
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he alleged was statutorily required in a felony trial, and that the court’s decision to proceed with
the trial in his absence affected his substantive rights and prevented a fair trial. The district court
overruled Heckard’s motion for a new trial.
On direct appeal, Heckard challenged his conviction alleging, among other things, that the
district court erred in denying a motion to suppress, proceeding with the jury trial without his
presence, and that the evidence was insufficient to support his conviction, all of which this court
rejected. See State v. Heckard, No. A-17-1131, 2019 WL 364300 (Neb. App. Jan. 29, 2019)
(selected for posting to court website). Heckard separately claimed that his trial counsel was
ineffective. See id. In State v. Heckard, we summarized Heckard’s claim of ineffective assistance
of trial counsel as follows:
Heckard claims he gave his trial counsel “a letter from Swayzer that contained
content that put trial counsel on notice that had [trial] counsel called Swayzer to testify on
[Heckard’s] behalf, Swayzer would have provided evidence that would have exonerated
[Heckard].” . . . He suggests Swayzer may have provided “exculpatory information, such
as perhaps negating [Heckard’s] knowledge of and intent to commit a burglary.”
Id. at 12. In analyzing Heckard’s claim of ineffective assistance of counsel in State v. Heckard,
this court stated:
Heckard’s presentence investigation report lists Swayzer as a codefendant and
indicates a case involving “[b]urglary” against Swayzer was dismissed in January 2015;
there is no explanation for the dismissal. At a hearing in August 2017, Heckard commented
that his “co-[d]efendant . . . which [sic] is now deceased, admits guilt to [Heckard’s]
charges,” referring to the burglary conviction of which Heckard had already been convicted
at that point and the pending habitual criminal count. At the same hearing, Heckard began
to mention a “letter,” saying it was from “Swayzer, that [sic] is now deceased,
admitting --,” but the district court stopped Heckard to inform him that his statement was
for him to “claim on appeal.” Nothing confirms if Swayzer had died or, assuming he had,
whether he died prior to or during Heckard’s trial in 2014.
We note that back in January 2014, Heckard’s trial counsel filed a “Motion to Take
Deposition,” requesting to take depositions of Johnson, Hale, and Swayzer, stating their
testimony “may be of assistance to the parties in the preparation of this case and may be
material or relevant to an issue to be determined at the trial of the offense.” Heckard’s trial
counsel did not call any witnesses to testify on Heckard’s behalf. Whether Heckard’s trial
counsel moved to depose Swayzer as a result of being put on notice by Heckard that
Swayzer possessed exculpatory information is unclear; also, Heckard does not specify a
timeframe for when he allegedly gave the letter to his trial counsel. Further, there is no
district court order concerning the motion to depose Swayzer. Also, the record neither
confirms that Heckard provided his trial counsel any sort of letter from Swayzer, nor does
it reflect whether that letter exists.
Under these circumstances, we cannot discern whether Heckard’s trial counsel was
deficient or strategic in not calling Swayzer to testify (if it was even possible) and/or not
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otherwise incorporating Swayzer’s letter, if admissible, for Heckard’s defense. We agree
with the State that our record on direct appeal is insufficient to address Heckard’s claim.
Id.
In October 2019, Heckard filed a motion for postconviction relief alleging that he received
ineffective assistance of trial counsel due to trial counsel’s (1) failure to present exculpatory
testimony or documentary evidence of his codefendant General Swayzer and (2) failure to file a
motion for new trial challenging that Heckard had the right to appear at all trial proceedings.
Regarding trial counsel’s failure to present exculpatory testimony or documentary evidence of
codefendant Swayzer, Heckard alleged:
Trial counsel was ineffective by reason, that the failure to present [exculpatory]
evidence, i.e., the notarized letter, by . . . Swayzer, acclaimed co-defendant, [cannot] be
viewed as reasonable under the fact[s] and circumstances [known] or should have been
[known] by trial counsel. Specifically, [Swayzer] perfected a notarized [declaration]
claiming [Heckard] had no knowledge of [the] crime . . . and cited specifically that
[Heckard] had no knowledge. This evidence is relevant due to the nature of ineffectiveness
of the above stated counsel and prosecuting attorney.
. . . Defense Counsel failed to submit, file, or otherwise perfect [Heckard’s] direct
appeal with the above stated vital information that would have exonerated [Heckard]. And
stating [Heckard] had no knowledge of said crime, and or forthwith had direction to commit
the felony that [Heckard] was charged with. (See exhibit A.)
Heckard attached the handwritten “notarized letter” to his motion, which stated:
District Attorney[’]s Office
On the day of 10-9-13 A crime was committed at 718 S 37 St. I General Swayzer
admitts [sic] full responcabitily [sic] for whatever crime was committed. “Their [sic] is a
deffendant [sic] by the name of Charles Heckard whom [sic] was falsley [sic] charged with
F3 Burglary.” Charles had nothin [sic] to do with entering this address at 718 S. 37 St.
Pleaze [sic] make note of this for the records[.] “Thank you[.]”
The letter then contained a signature line with “General Swayzer” written thereon with handwritten
dates of 10-15-13 and 10-11-13 underneath the signature. The letter also bears a notary stamp with
the name Susan Larsen whose commission was to expire on December 6, 2015, with no attestation
associated with the stamp.
The district court denied Heckard’s motion for postconviction relief without an evidentiary
hearing. The district court noted:
It appears [Heckard’s] motion brings one claim of ineffective assistance of trial counsel
based on his trial attorney failing to produce the testimony or written statement of
co-defendant, . . . Swayzer.1 Typically, [Heckard] would be barred from bringing this
claim, as he had different trial and appellate counsel, but this claim was preserved in the
direct appeal. There, the Nebraska Court of Appeals found the record to be insufficient to
address the claim.
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Footnote 1 of the district court’s opinion stated: “There appears to be one other claim interwoven
within [Heckard’s] motion, which relates to the Court proceeding with trial without [Heckard’s]
presence, but that was addressed in the direct appeal.”
In considering Heckard’s allegation that his trial counsel was ineffective for failing to
produce the testimony or written statement of Swayzer, the district court found Heckard’s motion
failed to state sufficient facts to warrant an evidentiary hearing on the claim. In support of this
finding, after quoting the language of our opinion in State v. Heckard, No. A-17-1131, 2019 WL
364300 at *12 (Neb. App. Jan. 29, 2019) (selected for posting to court website), the district court
focused on the last few sentences of that opinion, wherein we stated:
Whether Heckard’s trial counsel moved to depose Swayzer as a result of being put on
notice by Heckard that Swayzer possessed exculpatory information is unclear; also,
Heckard does not specify a timeframe for when he allegedly gave the letter to his trial
counsel. Further, there is no district court order concerning the motion to depose Swayzer.
Also, the record neither confirms that Heckard provided his trial counsel any sort of letter
from Swayzer, nor does it reflect whether that letter exists.
(Emphasis omitted.) The district court then found as it relates to Heckard’s motion for
postconviction relief:
Similarly here, [Heckard’s] motion does not fill in the detail necessary to grant an
evidentiary hearing. There are no specific facts about when this written statement was
provided to trial counsel or whether . . . Swayzer would have been able to testify at the time
of the trial. The Court also notes that [Heckard] fled during trial and voluntarily chose not
to participate in his defense. For these reasons, the Court finds [Heckard’s] motion is
denied for failing to state facts sufficient to warrant an evidentiary hearing.
In addition to finding Heckard failed to state facts sufficient to warrant an evidentiary
hearing, the district court also found the record refuted that Heckard suffered any prejudice even
if trial counsel was deficient in failing to call Swayzer to establish that Heckard did not intend to
commit the burglary. Heckard has timely appealed to this court.
ASSIGNMENTS OF ERROR
Heckard assigns as error that (1) the district court erred in proceeding with the December
2014 jury trial in absentia, (2) the evidence was insufficient to support his conviction of burglary,
(3) the district court erred in overruling his motion to suppress, (4) the prosecutor withheld
exculpatory information involving a confession from Heckard’s codefendant prior to the
codefendant’s death in 2015, and (5) representation provided by trial counsel constituted
ineffective assistance of counsel.
STANDARD OF REVIEW
In appeals from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirmatively show that the defendant is
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entitled to no relief. State v. Parnell, 305 Neb. 932, 943 N.W.2d 678 (2020). 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. Id.ANALYSIS
Heckard’s first three assignments of error on appeal are that: (1) the district court erred in
proceeding with the December 2014 jury trial in absentia; (2) the evidence was insufficient to
support his conviction of burglary; and (3) the district court erred in overruling his motion to
suppress. Each of these three assignments of error were raised in Heckard’s direct appeal and were
considered and rejected by this court. State v. Heckard, No. A-17-1131, 2019 WL 364300 (Neb.
App. Jan. 29, 2019) (selected for posting to court website). A motion for postconviction relief
cannot be used to secure review of issues which were known to the defendant and which were or
could have been litigated on direct appeal. State v. Parnell, supra. Since each of these issues was
litigated in Heckard’s direct appeal and considered and rejected by this court, these claims are
procedurally barred. We further note that none of these claims were raised in Heckard’s motion
for postconviction relief. An appellate court will not consider an issue on appeal that was not
presented to or passed upon by the trial court. See State v. Oliveira-Coutinho, 304 Neb. 147, 933
N.W.2d 825 (2019).
Further, Heckard’s fourth assignment of error is that the prosecutor withheld exculpatory
information involving a confession from Heckard’s codefendant prior to codefendant Swayzer’s
death in 2015. This assigned error could have been raised, but was not raised, in Heckard’s direct
appeal. Consequently, this assigned error is also procedurally barred.
Heckard’s remaining assignment of error is that “the representation provided by
[Heckard’s] trial attorneys constituted ineffective assistance of counsel.” Brief for appellant at 3.
When, as here, a defendant’s trial counsel is different from his or her counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is
known to the defendant or is apparent from the record. State v. Devers, 306 Neb. 429, 945 N.W.2d
470 (2020). Here, the allegation that Heckard’s trial counsel was ineffective for failing to produce
the testimony or written statement of codefendant Swayzer was raised and preserved on direct
appeal and was raised in Heckard’s motion for postconviction relief; however, the district court
found Heckard’s postconviction motion contained insufficient allegations of deficient
performance in connection with his preserved assignment. Specifically, the district court found
“[Heckard’s] motion does not fill in the detail necessary to grant an evidentiary hearing. There are
no specific facts about when this written statement was provided to trial counsel or whether . . .
Swayzer would have been able to testify at the time of the trial.” We agree.
We understand Heckard’s specific assignment of error on appeal--that the district court
erred in failing to find the representation provided by Heckard’s trial attorneys constituted
ineffective assistance of counsel--was his attempt to state that the district court erred in failing to
find his trial counsel provided ineffective assistance in connection with his more specific claim in
his postconviction motion. That is:
Trial counsel was ineffective by reason, that the failure to present [exculpatory] evidence,
i.e., the notarized letter, by . . . Swayzer, acclaimed co-defendant, [cannot] be viewed as
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reasonable under the fact[s] and circumstances [known] or should have been [known] by
trial counsel. Specifically, [Swazyer] perfected a notarized [declaration] claiming
[Heckard] had no knowledge of [the] crime . . . and cited specifically that [Heckard] had
no knowledge.
As such, Heckard’s specific assignment appears to be that his trial counsel failed to provide the
content of Swayzer’s letter as “evidence” after Heckard provided the letter to his counsel and that
said failure constituted ineffective assistance of counsel.
Because the district court dismissed Heckard’s claim for failure to properly plead, we take
this opportunity to review the pleading standards in connection with claims of ineffective
assistance of counsel on direct appeal and on claims of ineffective assistance in connection with
postconviction motions. In connection with direct appeals, a defendant is not required to make
allegations of prejudice and only needs to make specific allegations of deficient performance.
Specifically, the Supreme Court has held that
in the case of an argument presented for the purpose of avoiding procedural bar to a future
postconviction action, appellate counsel must present the claim with enough particularity
for (1) an appellate court to make a determination of whether the claim can be decided
upon the trial record and (2) a district court later reviewing a petition for postconviction
relief to be able to recognize whether the claim was brought before the appellate court.
State v. Abdullah, 289 Neb. 123, 132-33, 853 N.W.2d 858, 866 (2014).
In contrast, in filing a motion for postconviction relief, to be entitled to an evidentiary
hearing, a defendant’s postconviction motion must state facts actually amounting to prejudice. See
State v. Abdulkadir, 293 Neb. 560, 878 N.W.2d 390 (2016). A motion which alleges only
conclusions of facts or law is insufficient. State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775(2015). A motion for postconviction relief must adequately allege how the defendant was
prejudiced by counsel’s actions. Prejudice is shown by establishing that but for the deficient
performance of counsel, there is a reasonable probability that the outcome of the case would have
been different. State v. Dubray, 294 Neb. 937, 885 N.W.2d 540 (2016).
In connection with his direct appeal, Heckard alleged his trial counsel was ineffective in
that Heckard claimed:
[H]e gave his trial counsel “a letter from Swayzer that contained content that put trial
counsel on notice that had [trial] counsel called Swayzer to testify on [Heckard’s] behalf,
Swayzer would have provided evidence that would have exonerated [Heckard].” . . .
[Heckard] suggests Swayzer may have provided “exculpatory information, such as perhaps
negating [Heckard’s] knowledge of and intent to commit a burglary.”
State v. Heckard, No. A-17-1131, 2019 WL 364300 at *12 (Neb. App. Jan. 29, 2019) (selected for
posting to court website).
After reviewing that allegation, we preserved that claim for later proceedings while stating,
among other things:
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Heckard’s trial counsel did not call any witnesses to testify on Heckard’s behalf. Whether
Heckard’s trial counsel moved to depose Swayzer as a result of being put on notice by
Heckard that Swayzer possessed exculpatory information is unclear; also, Heckard does
not specify a timeframe for when he allegedly gave the letter to his trial counsel.
Id. In short, our opinion clearly included reference of the importance of the timing of Heckard
providing the alleged letter to his trial counsel as it relates to the possible merits of Heckard’s
alleged claim.
Nothwithstanding our previous holding in State v. Heckard, in connection with his
postconviction motion, Heckard failed to allege when he allegedly provided Swayzer’s letter to
his trial counsel as it relates to his specific claim of ineffective assistance of counsel. Assuming
without deciding whether the contents of the conclusory letter might have impacted his trial
counsel’s decisions, the timing of when Heckard provided the letter to his trial counsel directly
relates to any potential prejudice associated with it. In this unusual case, this matter was tried in
2014, but Heckard was not sentenced until 2017 because he absconded during the middle of his
trial. And as we noted in State v. Heckard, the matter of the alleged letter first arose in 2017 in
connection with Heckard’s sentencing where Heckard began to mention a letter from Swayzer and
provided that Swayzer was “now deceased.” Id. at 12. We also note that in his motion for
postconviction relief, Heckard references the letter stating “Defense counsel failed to submit, file,
or otherwise perfect [Heckard’s] direct appeal with the above stated vital information that would
have exonerated [Heckard].” (Emphasis supplied.) If anything, Heckard appears to suggest the
timing of the furnishing of Swayzer’s letter to trial counsel was late in the proceedings in
connection with Heckard’s sentencing or appeal and not prior to, or during, Heckard’s trial.
Regardless, by failing to plead that Swayzer’s letter was provided to trial counsel in
advance of or during his trial, Heckard has failed to state facts actually amounting to prejudice on
the part of his trial counsel. Having failed to allege prejudice in connection with his specific
postconviction claim, his specific assignment of error fails. Accordingly, we need not address the
second basis of the district court’s finding that the evidence adduced at trial overwhelmingly
negates the substance of the alleged statement by Swayzer. See State v. Connelly, 307 Neb. 495,
949 N.W.2d 519 (2020) (appellate court is not obligated to engage in analysis that is not necessary
to adjudicate case and controversy before it).
CONCLUSION
The district court’s order denying Heckard’s motion for postconvciton relief without an
evidentiary hearing is affirmed.
AFFIRMED.
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