State v. Dixon , 286 Neb. 157 ( 2013 )

Nebraska Advance Sheets
STATE v. DIXON 157
Cite as 286 Neb. 157conclude on further review that the decision of the Court of
Appeals in State v. Osborne, 20 Neb. App. 553, 826 N.W.2d
892 (2013), is not erroneous. Accordingly, we affirm the deci-
sion of the Court of Appeals which affirmed the portion of the
district court’s order in which it affirmed Osborne’s conviction
for third degree sexual assault.
With regard to Osborne’s claims related to the alleged inef-
fectiveness of trial counsel, we note that the Court of Appeals
did not discuss this claim. In contrast, the district court sitting
as an appellate court did consider effectiveness of trial counsel
and stated that it would not “address the ineffective counsel
issues on this direct appeal as an evidentiary hearing would be
required for such a review.”
[3] We have often stated that an ineffective assistance of
counsel claim will not be addressed on direct appeal if it
requires an evidentiary hearing. State v. Watt, supra. The dis-
trict court determined that an evidentiary hearing would be
required, and we agree with the district court’s assessment of
the record. We treat the Court of Appeals’ silence on the issue
as its indication that the ineffective assistance of trial counsel
issue could not be reached on direct appeal on the existing
record, and so construed, we agree.
CONCLUSION
On further review, we affirm the decision of the Court
of Appeals.
Affirmed.
Connolly and McCormack, JJ., participating on briefs.
Cassel, J., not participating.
State of Nebraska, appellee, v.
Michale M. Dixon, appellant.
___ N.W.2d ___
Filed June 28, 2013. No. S-12-791.
1. Constitutional Law: Criminal Law: Right to Counsel. The Sixth Amendment
to the U.S. Constitution provides that in all criminal prosecutions, the accused
shall have the assistance of counsel for his or her defense.
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158 286 NEBRASKA REPORTS
2. ____: ____: ____. An indigent criminal defendant’s Sixth Amendment right
to counsel does not include the right to counsel of the indigent defendant’s
own choice.
3. Rules of the Supreme Court: Right to Counsel. Neb. Ct. R. of Prof. Cond.
§ 3-501.2(d) (rev. 2008) provides that a limited appearance may be entered by a
lawyer only when a person is not represented.
4. Right to Counsel: Waiver: Effectiveness of Counsel. Counsel appointed to an
indigent defendant must remain with the defendant unless one of three conditions
is met: (1) The accused knowingly, voluntarily, and intelligently waives the right
to counsel and chooses to proceed pro se; (2) appointed counsel is incompetent,
in which case new counsel is to be appointed; or (3) the accused chooses to retain
private counsel.
5. Criminal Law: Courts: Right to Counsel: Time. A district court has discretion
in determining the amount of time to allow a criminal defendant to attempt to
retain private counsel.
6. Criminal Law: Right to Counsel: Time. Where a criminal defendant is finan-
cially able to hire an attorney, he or she may not use his or her neglect in hiring
one as a reason for delay.
7. Effectiveness of Counsel: Proof. In order to establish whether a defendant
was denied effective assistance of counsel, the defendant must first demonstrate
that counsel was deficient; that is, counsel did not perform at least as well as a
criminal lawyer with ordinary training and skill in the area. Second, the defendant
must show that he or she was prejudiced by the actions or inactions of his or her
counsel; that is, the defendant must demonstrate with reasonable probability that
but for counsel’s deficient performance, the result of the proceeding would have
been different.
8. Appeal and Error. A party cannot complain of error which he or she has invited
the court to commit.
Appeal from the District Court for Lancaster County: Karen
B. Flowers, Judge. Affirmed.
Steffanie J. Garner Kotik, of Kotik & McClure Law,
for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein
for appellee.
Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman,
and Cassel, JJ.
Heavican, C.J.
INTRODUCTION
Michale M. Dixon pled no contest to the unauthorized use
of a financial transaction device with a value between $500
Nebraska Advance Sheets
STATE v. DIXON 159
Cite as 286 Neb. 157and $1,500. Dixon was found to be a habitual criminal and
was sentenced to 10 to 20 years’ imprisonment. On appeal,
Dixon claims that her Sixth Amendment right to counsel was
denied when private counsel was prohibited from entering a
limited appearance in her case. Dixon further claims that her
trial counsel was ineffective and that the district court erred in
sentencing her on the same day it accepted her plea. We affirm
the decision of the district court.
FACTUAL BACKGROUND
The facts of this case are not contested. On April 9, 2012,
Dixon was charged with the unauthorized use of a financial
transaction device with a value between $500 and $1,500,
and with another offense in a separate case. The information
filed in this case alleges that on or about December 15, 2011,
Dixon used a bank debit card which was not hers for the pur-
pose of obtaining money or credit with intent to defraud or
without the authorization of the owner of the debit card. The
public defender’s office was appointed to represent Dixon
on both sets of Dixon’s offenses, because she was found to
be indigent.
On June 28, 2012, the public defender and the prosecutor
assigned to this case appeared before the district court, with
Dixon present, and informed the court that they both had been
contacted repeatedly by attorney Frank Robak, Sr., about the
case. The public defender and the prosecutor informed the
court that Robak had been paid a retainer fee by Dixon’s fiance
to represent Dixon, but had not entered a formal appearance
in the case. Dixon reported to the public defender that she had
paid Robak enough money for him to enter a plea on Dixon’s
behalf, but that Robak was requesting more money to proceed
with a jury trial. The public defender further explained that
Dixon had requested a continuance in the case so that Dixon
could gather the funds necessary to retain Robak and proceed
with trial. The prosecutor informed the court that she had no
objection to the continuance of the matter so that Dixon could
obtain funds to retain Robak for representation.
The court allowed for the continuance, and Dixon waived all
of her rights to a speedy trial on the record. The court further
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160 286 NEBRASKA REPORTS
explained to Dixon that because Robak had never entered
an appearance in the case, he was not currently representing
Dixon and that the public defender was her current counsel.
A status hearing was scheduled for July 24, 2012, for the
parties to inform the court as to whether Dixon was able to
retain Robak.
On July 18, 2012, Robak filed a “Limited Appearance
of Counsel” on behalf of Dixon for the “limited purpose of
attempting immediate resolution of this case without neces-
sity of a trial or complex hearings.” A week after this filing,
on July 24, the court conducted the scheduled status hearing
with the public defender and the prosecutor present. Robak
was not present at the hearing. The court reported on the
record that Robak confirmed with the court and the vari-
ous parties in chambers the week prior that he would not be
representing Dixon and that he would be withdrawing his
limited appearance. The court further noted that pursuant to
Neb. Ct. R. of Prof. Cond. § 3-501.2(d) (rev. 2008), a limited
appearance may be entered by a lawyer only when a party is
not represented and that it considered Robak’s limited appear-
ance a “nullity,” regardless of whether Robak was going to
withdraw it. The court then made a docket entry reflecting
this finding.
On July 30, 2012, the public defender and the prosecutor
appeared before the district court again, with Dixon present,
to address Robak’s continued contact with Dixon. According
to Dixon’s public defender, Robak continued to communicate
with Dixon regarding the case. The public defender reported
Robak had instructed Dixon to inform the court that Dixon
supported his limited appearance and that the court should
take notice of this. The court refused to take such notice,
again noting that “a person may enter a limited appearance
for a person who is not represented” and that “Dixon is rep-
resented.” The court further instructed Dixon that Robak had
to fully represent her or not represent her at all. The court
explained to Dixon that Robak had previously told the court
in chambers prior to the July 24 status hearing that he would
represent Dixon in seeking a plea, but not if the case went
Nebraska Advance Sheets
STATE v. DIXON 161
Cite as 286 Neb. 157to trial. However, there was no plea offer before the court.
Thus, the court found Robak was not representing Dixon.
Dixon’s case was then placed on the court’s trial list for the
September term.
On August 1, 2012, the court sent a letter to Robak, with
copies to the prosecutor and the public defender. The let-
ter stated that the court understood that Robak was going to
withdraw his limited appearance, as he had indicated at the
July 18 in-chambers meeting, but that he had failed to do so.
The letter further reported that the Nebraska rules on limited
representation do not permit a lawyer to enter a limited appear-
ance on behalf of a person who is represented by counsel. The
letter contained a copy of § 3-501.2(d) and explained that the
public defender was Dixon’s current attorney unless the court
specifically gave the public defender permission to withdraw
from the case.
On August 30, 2012, Dixon pled no contest to the unautho­
rized use of a financial device with a value between $500 and
$1,500. The court found that Dixon understood her rights and
the consequences of waiving those rights and that Dixon’s
waiver was freely, voluntarily, knowingly, and intelligently
given. The court accepted Dixon’s plea. In exchange for
Dixon’s plea of no contest, the offense charged in Dixon’s
other case was dismissed. Dixon then reported to the court
that she was satisfied with the job the public defender had
done in this matter. After the court accepted Dixon’s plea, it
asked Dixon if she wanted to be sentenced that day. Dixon
answered affirmatively and confirmed she had discussed this
with counsel.
An enhancement hearing was then held, and the prosecution
entered five exhibits into evidence relating to Dixon’s vari-
ous prior convictions. The exhibits demonstrated that in 2000,
Dixon was sentenced to two separate terms of imprisonment
for 1 to 3 years, to run concurrently, for two counts of second
degree forgery; in 2005, Dixon was sentenced to two separate
terms of imprisonment for 6 to 10 years, to run concurrently,
for burglary and criminal possession of a financial transac-
tion device. Dixon objected to the admittance of the exhibits
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162 286 NEBRASKA REPORTS
related to her 2000 convictions. Dixon claimed those convic-
tions were currently on appeal for the reason that she was not
aware in 2000 that she could have transferred those cases to
juvenile court. As such, Dixon argued those convictions could
not be used for enhancement purposes. Dixon also objected to
the exhibits related to her 2005 convictions. She asserted that
the past convictions established by those exhibits were also not
appropriate for enhancement purposes because she was pres-
ently serving sentences for those convictions.
The court found all of Dixon’s objections to be collateral
attacks on the earlier judgments. The court then found Dixon
to be a habitual criminal for purposes of enhancement and
sentenced Dixon to 10 to 20 years’ imprisonment. Dixon
timely appealed.
ASSIGNMENTS OF ERROR
Dixon assigns that (1) the district court committed revers-
ible error by denying her Sixth Amendment right to counsel
of her choosing by not allowing Robak to appear in the case,
(2) she received ineffective assistance of counsel in that her
public defender failed to file an interlocutory appeal challeng-
ing the denial of the entry of appearance of Robak, and (3) the
district court erred in proceeding with sentencing on the same
day as the plea hearing because there were unresolved post-
conviction proceedings that would have affected the sentence
in this matter.
STANDARD OF REVIEW
When dispositive issues on appeal present questions of law,
an appellate court has an obligation to reach an independent
conclusion irrespective of the decision of the court below.1
Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.2 To prevail on a claim of ineffective assistance of counsel
1
State v. Scheffert, 279 Neb. 479, 778 N.W.2d 733 (2010).
2
State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).
Nebraska Advance Sheets
STATE v. DIXON 163
Cite as 286 Neb. 157under Strickland v. Washington,3 the defendant must show that
counsel’s performance was deficient and that this deficient per-
formance actually prejudiced his or her defense. With regard
to the question of counsel’s performance or prejudice to the
defendant as part of the two-pronged test, an appellate court
reviews such legal determinations independently of the lower
court’s decision.4
ANALYSIS
Sixth Amendment Right to Counsel.
In her first assignment of error, Dixon argues that the dis-
trict court denied her Sixth Amendment right to counsel of her
choosing by not allowing Robak to enter a limited appearance
in this case. Dixon’s argument is without merit.
[1,2] The Sixth Amendment to the U.S. Constitution pro-
vides that “[i]n all criminal prosecutions, the accused shall
. . . have the Assistance of Counsel for his [or her] defence.”
This court has held that an indigent criminal defendant’s Sixth
Amendment right to counsel does not include the right to
counsel of the indigent defendant’s own choice.5 On appeal,
Dixon does not contest that she was found to be indigent. As
such, Dixon’s argument regarding her choice of counsel is
without merit.
[3] Nor did the court err in prohibiting Robak from entering
a limited appearance on Dixon’s behalf. Section 3-501.2(d)
provides that a limited appearance may be entered by a law-
yer only when a person is not represented. In this case, Dixon
was represented throughout the proceedings. As such, the
court did not err in finding Robak’s limited appearance to be
a nullity.
[4] Furthermore, this court has held that counsel appointed
to an indigent defendant must remain with the defendant unless
one of three conditions is met: (1) The accused knowingly,
voluntarily, and intelligently waives the right to counsel and
3
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
4
See Moyer, supra note 2.
5
State v. Bustos, 230 Neb. 524, 432 N.W.2d 241 (1988).
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164 286 NEBRASKA REPORTS
chooses to proceed pro se; (2) appointed counsel is incom-
petent, in which case new counsel is to be appointed; or (3)
the accused chooses to retain private counsel.6 At no time
throughout her proceedings did Dixon waive her right to her
appointed public defender and choose to proceed pro se, nor
does the record reflect that Dixon reported to the court that her
appointed counsel was incompetent.
[5,6] The record establishes, however, that Dixon expressed
her desire to the court to retain Robak as private counsel to
replace her assigned public defender and asked the court for a
continuance to obtain funds to hire Robak. We have held that a
district court has discretion in determining the amount of time
to allow a criminal defendant to attempt to retain private coun-
sel.7 We have further held that “‘[w]here a criminal defendant
is financially able to hire an attorney, he or she may not use his
or her neglect in hiring one as a reason for delay.’”8
Dixon’s public defender, the prosecution, and the court did
not object to Dixon’s request to retain Robak. Dixon’s request
for a continuance was granted, and the court, within its dis-
cretion, allowed Dixon almost a month’s time to gather the
funds Robak had requested for full representation. The court
explained to Dixon that because Robak had never entered
an appearance in the case, he was not currently representing
Dixon, and that the public defender was still her current coun-
sel. Therefore, the public defender was required to remain with
Dixon unless and until Dixon successfully retained Robak.9 But
as expressed by Robak himself, Dixon failed to gather funds to
retain Robak.
During the continuance and while the public defender con-
tinued to represent Dixon, Robak filed his “Limited Appearance
of Counsel” on behalf of Dixon. Subsequent to his filing,
Robak reported to the court that Dixon could not pay him his
requested fees for full representation and that he would be
6
State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).
7
See State v. Neal, 231 Neb. 415, 436 N.W.2d 514 (1989).
8
Id. at 420, 436 N.W.2d at 518.
9
Sandoval, supra note 6.
Nebraska Advance Sheets
STATE v. DIXON 165
Cite as 286 Neb. 157withdrawing his limited appearance. Citing to § 3-501.2(d),
the court found Robak’s limited appearance to be a nullity and
continued to deny Robak’s attempts to make a limited appear-
ance on Dixon’s behalf.
As Dixon’s attempts to gather funds to retain Robak were
unsuccessful, Dixon remained represented by her public
defender at all times in this matter. Thus, as Dixon was rep-
resented by the public defender, pursuant to § 3-501.2(d), the
court did not err in finding Robak’s limited appearance to be
a nullity and in denying Robak’s continued attempts to enter a
limited appearance on Dixon’s behalf. Dixon’s first assignment
of error is without merit.
Ineffective Assistance of Counsel.
[7] In her second assignment of error, Dixon claims that
her public defender was ineffective because she failed to file
an interlocutory appeal when the district court did not allow
Robak to enter a limited appearance. In order to establish
whether a defendant was denied effective assistance of counsel,
the defendant must first demonstrate that counsel was deficient;
that is, counsel did not perform at least as well as a criminal
lawyer with ordinary training and skill in the area. Second,
the defendant must show that he or she was prejudiced by the
actions or inactions of her counsel; that is, the defendant must
demonstrate with reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have
been different.10
Because the district court correctly found that Robak’s lim-
ited appearance was invalid pursuant to Nebraska law, there
was no pertinent issue for her public defender to appeal.
Because Dixon has failed to show how her counsel was defi-
cient, she was not prejudiced. Dixon’s second assignment of
error is without merit.
Dixon’s Sentencing.
In her final assignment of error, Dixon asserts that the dis-
trict court erred in sentencing her on the same day that her
10
State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002).
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166 286 NEBRASKA REPORTS
plea was taken. Dixon contends that the objections she made
at her enhancement hearing related to her past convictions
demonstrated to the court that certain issues on appeal could
affect the enhancement of her sentence. Dixon argues here that
the court should have waited until those matters were decided
before sentencing her.
[8] The district court confirmed with Dixon, however, that
she wanted to be sentenced on the same day her plea was
taken and that she had discussed this with counsel. “It has long
been the rule in this state that a party cannot complain of error
which he [or she] has invited the court to commit.”11 Dixon’s
final assignment of error is without merit.
CONCLUSION
We affirm Dixon’s conviction and sentence.
Affirmed.
McCormack, J., participating on briefs.
11
Norwest Bank Neb. v. Bowers, 246 Neb. 83, 85, 516 N.W.2d 623, 624
(1994).
State of Nebraska, appellee, v.
Jason L. Marks, appellant.
___ N.W.2d ___
Filed June 28, 2013. No. S-12-931.
1. Postconviction: Appeal and Error. In appeals from postconviction proceedings,
an appellate court independently resolves questions of law.
2. Postconviction: Constitutional Law. A trial court’s ruling that a petitioner’s
allegations are refuted by the record or are too conclusory to demonstrate a
violation of the petitioner’s constitutional rights is not a finding of fact—it is a
determination, as a matter of law, that the petitioner has failed to state a claim for
postconviction relief.
3. Postconviction: Constitutional Law: Appeal and Error. In appeals from post-
conviction 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.