Buttercase v. Davis -- supplemental opinion , 313 Neb. 587 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/24/2023 09:06 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BUTTERCASE V. DAVIS
Cite as 313 Neb. 587Joseph J. Buttercase, appellant, v.
James Martin Davis and Davis
Law Office, appellees.
___ N.W.2d ___
Filed February 24, 2023. No. S-20-871.
supplemental opinion
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Former opinion modified. Motion for rehear-
ing overruled.
Joseph J. Buttercase, pro se.
Nicholas F. Miller, of Baird Holm, L.L.P., for appellees.
Cassel, Stacy, Funke, Papik, and Freudenberg, JJ., and
Wheelock and Post, District Judges.
Per Curiam.
This case is before us on a motion for rehearing filed by
the appellant, Joseph J. Buttercase, concerning our opinion in
Buttercase v. Davis, 313 Neb. 1, 982 N.W.2d 240 (2022).
We overrule the motion, but modify the opinion as follows:
In the analysis section, under the subheading “Davis’
Amended Motion for Summary Judgment,” we withdraw
the sixth paragraph and substitute the following:
His related argument, that he would not have pled
guilty but for Davis’ failure to investigate and discover
- 588 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BUTTERCASE V. DAVIS
Cite as 313 Neb. 587material exculpatory evidence also fails. When a crimi-
nal defendant convicted as a result of a guilty or no
contest plea raises a Sixth Amendment ineffective assist­
ance of counsel claim, he or she must show that but for
the errors of counsel, he or she would not have pleaded
guilty or no contest and would have insisted on going to
trial. See, State v. Thomas, 311 Neb. 989, 977 N.W.2d
258 (2022); State v. Privett, 303 Neb. 404, 929 N.W.2d
505 (2019). But we are aware of no Nebraska authority
holding that a criminal defendant raising a subsequent
legal malpractice claim is relieved of demonstrating
actual innocence if he or she can merely show that but
for counsel’s errors, he or she would have rejected a plea
and insisted on going to trial. And, as we have discussed,
there was no evidence that Buttercase was actually inno-
cent of the obscenity charge.
In the analysis section, under the subheading “Davis’
Amended Motion for Summary Judgment,” we withdraw
the first sentence of the seventh paragraph and substitute
the following:
Buttercase’s arguments that he is actually innocent of
obscenity because the videos and images are not obscene
under the U.S. Supreme Court’s holding in Miller v.
California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419(1973), and that the federal obscenity statute cannot be
constitutionally applied to him because, although he pled
guilty to producing and transporting obscene materials for
distribution, he only possessed and viewed images of his
private intimate relations with his wife within his home
are also unavailing.
In the analysis section, under the subheading “Admission
of Evidence,” we withdraw the fifth sentence of the ninth
paragraph and substitute the following: “Exhibit 14 does
not purport to address Buttercase’s actual innocence of the
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
BUTTERCASE V. DAVIS
Cite as 313 Neb. 587obscenity charge, which is why we find his opposition to
Davis’ motion for summary judgment failed.”
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled.
Heavican, C.J., and Miller‑Lerman, J., not participating.