State v. Hessler

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/28/2016 09:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. HESSLER
Cite as 295 Neb. 70
State of Nebraska, appellee, v.
Jeffrey Hessler, appellant.
___ N.W.2d ___
Filed October 28, 2016. No. S-15-960.
1. Judgments: Appeal and Error. 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.
2. Postconviction: Evidence: Appeal and Error. In an evidentiary hear-
ing on a motion for postconviction relief, the trial judge, as the trier of
fact, resolves conflicts in the evidence and questions of fact. An appel-
late court upholds the trial court’s findings unless they are clearly erro-
neous. In contrast, an appellate court independently resolves questions
of law.
3. Effectiveness of Counsel: Appeal and Error. 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.
4. Judgments: Constitutional Law: Legislature: Appeal and Error.
The common-law writ of error coram nobis exists in this state under
Neb. Rev. Stat. § 49-101 (Reissue 2010), which adopts English com-
mon law to the extent that it is not inconsistent with the Constitution
of the United States, the organic law of this state, or any law passed by
our Legislature.
5. Judgments: Evidence: Appeal and Error. 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. 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. The writ is not
available to correct errors of law.
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Nebraska Supreme Court A dvance Sheets
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STATE v. HESSLER
Cite as 295 Neb. 70
6. Convictions: Proof: Appeal and Error. 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. It is not enough to show that it might have
caused a different result.
7. Trial: Effectiveness of Counsel: Appeal and Error. Claims of errors or
misconduct at trial and ineffective assistance of counsel are inappropri-
ate for coram nobis relief.
8. Postconviction: Judgments: Constitutional Law. The Nebraska
Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2008
& Cum. Supp. 2014), provides that 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 constitu-
tional rights such that the judgment was void or voidable.
9. Constitutional Law: Effectiveness of Counsel. A proper ineffective
assistance of counsel claim alleges a violation of the fundamental con-
stitutional right to a fair trial.
10. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a
claim of ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant
must show that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant.
11. Trial: Pleas: Mental Competency. A person is competent to plead or
stand trial if he or she has the capacity to understand the nature and
object of the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make a ratio-
nal defense.
12. Pleas: Mental Competency: Right to Counsel: Waiver. A court is not
required to make a competency determination in every case in which a
defendant seeks to plead guilty or to waive his or her right to counsel; a
competency determination is necessary only when a court has reason to
doubt the defendant’s competence.
13. Effectiveness of Counsel: Mental Competency: Proof. In order to
demonstrate prejudice from counsel’s failure to investigate competency
and for failing to seek a competency hearing, the defendant must dem-
onstrate that there is a reasonable probability that he or she was, in fact,
incompetent and that the trial court would have found him or her incom-
petent had a competency hearing been conducted.
14. Effectiveness of Counsel: Pleas: Proof. To show prejudice when the
alleged ineffective assistance relates to the entry of a plea, the defendant
must show that there is a reasonable probability that, but for counsel’s
errors, he or she would not have entered the plea and would have
insisted on going to trial.
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Nebraska Supreme Court A dvance Sheets
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STATE v. HESSLER
Cite as 295 Neb. 70
15. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and
Error. After a trial, conviction, and sentencing, if counsel deficiently
fails to file or perfect an appeal after being so directed by the criminal
defendant, prejudice will be presumed and counsel will be deemed inef-
fective, thus entitling the defendant to postconviction relief.
Appeal from the District Court for Scotts Bluff County:
R andall L. Lippstreu, Judge. Affirmed.
Alan G. Stoler and Jerry M. Hug, of Alan G. Stoler, P.C.,
L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith
for appellee.
Wright, Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
Jeffrey Hessler appeals the order of the district court for
Scotts Bluff County which overruled his motion for postcon-
viction relief and denied his petition for a writ of error coram
nobis. Hessler claimed that he had received ineffective assist­
ance of trial counsel and was not competent to enter the plea
on which his conviction for first degree sexual assault on a
child was based. We affirm.
II. STATEMENT OF FACTS
In 2003, Hessler pled no contest to a charge of first degree
sexual assault on a child. Hessler had been charged with sex­
ually assaulting J.B., a girl under 16 years of age, on August
20, 2002. The district court accepted Hessler’s plea and sen-
tenced him to imprisonment for 30 to 42 years. No direct
appeal was taken from the conviction and sentence.
While Hessler was facing the charge in that first case, he
was also facing charges in a second case: first degree murder,
kidnapping, first degree sexual assault on a child, and use of a
firearm in connection with the assault and death of another girl
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STATE v. HESSLER
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under 16 years of age, Heather Guerrero. Hessler pled no con-
test in the first case before the jury trial was held in the sec-
ond case. Following the jury trial in the second case, Hessler
was convicted and sentenced to death for Guerrero’s murder.
Hessler’s convictions and sentences for the charges relating
to Guerrero were affirmed on direct appeal to this court. State
v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007). This court
also affirmed the overruling of Hessler’s subsequent motions
for postconvction relief relating to such convictions. State v.
Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011) (first postcon-
viction motion); State v. Hessler, 288 Neb. 670, 850 N.W.2d
777 (2014) (second postconviction motion and motion for writ
of error coram nobis).
On August 24, 2012, Hessler filed a pleading he titled as
“Verified Motion for Postconviction Relief and Petition for
Writ of Error Coram Nobis” in the instant case involving
the sexual assault of J.B. That filing gives rise to the present
appeal. Hessler alleged that the claims set forth in the filing
entitled him to postconviction relief or, in the alternative, a writ
of error coram nobis.
The district court determined that Hessler was entitled to an
evidentiary hearing on claims which the court characterized
as follows:
(1) a claim that Hessler was not competent to enter a plea
of no contest, because at the time of the plea “he was suffering
from bipolar disorder, severe, with psychotic features”; and
(2) claims that trial counsel was ineffective in
(a) “[f]ailing to investigate, raise, and prove” a claim that
Hessler was not competent to enter a plea of no contest;
(b) “[a]dvising Hessler to plead ‘no contest’”;
(c) “[a]dvising Hessler that a plea of ‘no contest’ [in this
case] would benefit him” by providing him with a double jeop-
ardy defense to the pending charges involving the assault and
death of Guerrero;
(d) “[f]ailing to investigate, discover, and present mitigating
evidence at the sentencing hearing”; and
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STATE v. HESSLER
Cite as 295 Neb. 70
(e) “[f]ailing to advise Hessler to file a direct appeal” or to
advise him that he “had a right to appeal and a right to counsel
to pursue his appeal.”
At the evidentiary hearing, the court received evidence
including, inter alia, depositions of the two attorneys who had
represented Hessler in the original conviction, depositions of
a psychologist and a psychiatric nurse who had worked with
Hessler in 2003, and the deposition of a psychiatrist who had
reviewed Hessler’s records and had met with Hessler in 2012
and 2013. Hessler did not testify. Following the evidentiary
hearing, the court rejected all of Hessler’s claims, overruled his
motion for postconviction relief, and denied his petition for a
writ of error coram nobis.
With regard to the claim that Hessler was not competent to
enter a plea of no contest, the court noted that both attorneys
who had represented Hessler in the original conviction were
experienced criminal defense attorneys and that both had deter-
mined there was nothing indicating that Hessler was not com-
petent to stand trial or that a mental health defense would be
successful. The court noted trial counsel had stated that Hessler
“was able to provide counsel with background information”
and that he “appeared reasonably intelligent and appeared to
understand the evidence and strategy of the case.”
The court further noted that the psychologist who treated
Hessler at the time of the conviction stated that although
Hessler “suffered from a bi-polar mood disorder, depression,
and paranoid delusional disorder,” Hessler still “understood
the release he signed, understood the potential consequences
of his charges,” “understood he was charged with sexual
assault[,] and knew he was going to plead and would go to the
penitentiary.” The court noted the psychologist also stated that
at the time of the plea, Hessler “was well aware of who [trial
counsel] was and understood [trial counsel’s] role in the case.”
The court further noted that the psychiatric nurse who treated
Hessler stated that the medications he was given to treat his
bipolar depression would clear his thinking such that he would
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be “‘more in reality’” and that Hessler “appeared to understand
her questions and his responses were appropriate.”
In connection with the issue pertaining to Hessler’s com-
petence to enter a plea, the court noted that Hessler presented
the deposition of a psychiatrist who had been hired in con-
nection with this postconviction action to review Hessler’s
records from the original conviction in 2003. Although the
psychiatrist opined that in 2003, Hessler was “depressed” and
had “paranoid thinking,” the court noted that the psychiatrist
stated he did not have adequate information to form a defini-
tive opinion on “what [e]ffect [such conditions] would have
on Hessler’s ability for rational choices about entering a plea
of no contest.”
Considering the evidence presented, the court concluded
that “Hessler’s evidence failed to demonstrate a reasonable
probability that he was, in fact, incompetent to enter a plea
of no-contest to sexually assaulting J.B., or that the trial
court would have found him incompetent had a competency
hearing been conducted.” The court further determined that
because the record showed Hessler to be competent, “his
counsel could not have been ineffective in not raising an issue
of competency.”
The court then considered Hessler’s other claims directed
at ineffective assistance of counsel. Regarding Hessler’s claim
that counsel was ineffective for advising him to plead no
contest, the court noted that prior to trial in this case, counsel
knew “(1) that Hessler had confessed to the sexual assault
of J.B., (2) efforts to suppress Hessler’s confession had not
been successful, and (3) DNA testing had scientifically con-
firmed his confession.” The court also noted that “Hessler had
advised [counsel] early on that he did not want a trial in the
J.B. sexual assault case.” The court further noted that the same
counsel who represented Hessler in this case represented him
in connection with the charges related to the assault and kill-
ing of Guerrero. Counsel knew that Hessler would be at risk
of a death sentence for the murder of Guerrero and that the
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STATE v. HESSLER
Cite as 295 Neb. 70
State would attempt to use the sexual assault of J.B. to prove
an aggravating circumstance in the murder trial. The post-
conviction court found that “counsel embarked on a global
strategy encompassing both cases with the ultimate goal of
saving [Hessler’s] life.” Because counsel had determined that
there was “no viable defense to the J.B. sexual assault case,”
counsel attempted to “preclude use of the sexual assault of
J.B. as an aggravating circumstance in the [Guerrero] homi-
cide case.”
Counsel’s strategy was to have “a final conviction and sen-
tence in the sexual assault case [involving J.B.] prior to trial
in the homicide case [involving Guerrero]” and then “to later
present a double jeopardy / plea in bar argument against its
use as an aggravating circumstance in the homicide trial.” The
court noted that counsel had explained this strategy to Hessler
and had advised him that the double jeopardy or plea in bar
“theory was untested.” Hessler agreed to the strategy and
advised counsel he wanted to plead in the instant case.
The postconviction court noted that the strategy to preclude
the sexual assault conviction in this case from being used in
the homicide case ultimately proved to be unsuccessful and
that the sexual assault of J.B. was allowed to be used to prove
an aggravating circumstance in the homicide sentencing trial.
The court concluded, however, that counsel was not ineffective
for advising Hessler to plead no contest or for so advising him
as part of the global strategy for both cases. The court con-
cluded that “[c]onfronted with overwhelming evidence of guilt,
Hessler’s trial counsel were not ineffective by attempting novel
legal defenses.” The court further noted that counsel’s advice
was “consistent with Hessler’s expressed desire to admit to the
sexual assault” of J.B.
With respect to Hessler’s claim that counsel was ineffective
for failing to investigate, discover, and present mitigating evi-
dence at the sentencing hearing, the postconviction court did
not explicitly reject the claim. However, the court found that
“[c]ounsel were never concerned about a sentence in the sexual
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STATE v. HESSLER
Cite as 295 Neb. 70
assault [of J.B.] case because Hessler would never live outside
prison in the homicide [of Guerrero] case.” The court con-
sidered such lack of focus on the sentence in the instant case
to be part of the global strategy that encompassed counsel’s
advice to plead no contest in this case in hopes of improving
Hessler’s outcome in the homicide case. The court determined
that such global strategy did not constitute ineffective assist­
ance of counsel.
Finally, with respect to Hessler’s claim that counsel was
ineffective for failing to advise him to file a direct appeal in
this case, the court found that “Hessler provided no evidence
that he ever requested counsel appeal his conviction and sen-
tence in this case.” The court further concluded that Hessler
had “shown no prejudice by the failure to file a direct appeal.”
Hessler appeals the order which overruled his motion for
postconviction relief and denied his petition for a writ of error
coram nobis.
III. ASSIGNMENTS OF ERROR
Hessler claims that the postconviction district court erred
when it rejected his claims that (1) he was denied due process
and effective assistance of counsel because he was not compe-
tent to enter a plea of no contest, (2) trial counsel’s advice to
plead no contest was ineffective assistance of counsel, (3) trial
counsel’s failure to discover and present mitigating evidence
at sentencing was ineffective assistance of counsel, and (4)
trial counsel’s failure to advise him to file a direct appeal was
ineffective assistance of counsel.
IV. STANDARDS OF REVIEW
[1] 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. Harrison,
293 Neb. 1000, 881 N.W.2d 860 (2016).
[2] In an evidentiary hearing on a motion for postconvic-
tion relief, the trial judge, as the trier of fact, resolves con-
flicts in the evidence and questions of fact. An appellate court
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upholds the trial court’s findings unless they are clearly erro-
neous. In contrast, an appellate court independently resolves
questions of law. State v. Saylor, 294 Neb. 492, 883 N.W.2d
334 (2016).
[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 independently of the lower court’s
decision. State v. Saylor, supra.
V. ANALYSIS
1. District Court Did Not Err When
It Denied Hessler’s Petition for
Writ of Error Coram Nobis
In this action Hessler set forth various claims and alleged
that such claims entitled him to postconviction relief or, in the
alternative, a writ of error coram nobis. A writ of error coram
nobis is relief distinct from relief available under the Nebraska
Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue
2008 & Cum. Supp. 2014). As we noted in State v. Harris, 292
Neb. 186, 871 N.W.2d 762 (2015), § 29-3003 provides that
relief under that act “is not intended to be concurrent with any
other remedy existing in the courts of this state,” including
a writ of error coram nobis. Therefore, we consider whether
Hessler’s claims would entitle him to a writ of error coram
nobis separately from our consideration of Hessler’s claims for
relief under the Nebraska Postconviction Act. We conclude that
the district court did not err when it denied Hessler’s petition
for a writ of error coram nobis.
[4-6] The common-law writ of error coram nobis exists
in this state under Neb. Rev. Stat. § 49-101 (Reissue 2010),
which adopts English common law to the extent that it is not
inconsistent with the Constitution of the United States, the
organic law of this state, or any law passed by our Legislature.
State v. Sandoval, 288 Neb. 754, 851 N.W.2d 656 (2014). The
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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 mat-
ters 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 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. It is not enough to show that it might
have caused a different result. State v. Harris, supra.
[7] In State v. Hessler, 288 Neb. 670, 850 N.W.2d 777
(2014), we affirmed the denial of Hessler’s request for a writ
of error coram nobis in connection with his convictions related
to the assault and murder of Guerrero. In that case, Hessler
raised claims that were similar to claims he raises here. In
that appeal, we stated that claims of errors or misconduct at
trial and ineffective assistance of counsel are inappropriate
for coram nobis relief. Similarly, most of Hessler’s claims in
the present action are claims of ineffective assistance of trial
counsel, and thus, such claims are inappropriate for coram
nobis relief.
Hessler’s claim in this case with regard to his mental
competence was based in part on his claim of a denial of his
right to effective assistance of counsel, but the claim was also
based in part on an alleged denial of his due process rights.
Hessler made similar allegations with regard to his mental
competence in his request for a writ of error coram nobis in
connection with the convictions related to the homicide of
Guerrero. See id. Without explicitly deciding whether a meri-
torious claim of a denial of due process based on a defendant’s
mental incompetence would be appropriate for coram nobis
relief, we determined on appeal that Hessler’s claim relating
to mental competence was without merit and therefore did not
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entitle him to coram nobis relief. Id. As discussed below in
connection with Hessler’s request for postconviction relief in
this case, Hessler’s claims related to mental competence are
also without merit and similarly do not entitle him to a writ
of error coram nobis.
Hessler has not identified a fact which would have pre-
vented entry of judgment. The substance of Hessler’s claims in
this action either is not appropriate for coram nobis relief or is
without merit. Accordingly, we conclude that the district court
did not err when it denied Hessler’s petition for a writ of error
coram nobis.
2. District Court Did Not Err When
It Overruled Hessler’s Motion
for Postconviction R elief
[8] Before considering Hessler’s specific claims for post-
conviction relief, we review the applicable general standards.
The Nebraska Postconviction Act, § 29-3001 et seq., provides
that 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.
Starks, 294 Neb. 361, 883 N.W.2d 310 (2016).
[9,10] Most of Hessler’s claims in this action center on the
alleged ineffective assistance provided by his trial counsel. A
proper ineffective assistance of counsel claim alleges a viola-
tion of the fundamental constitutional right to a fair trial. Id.
To prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, 446 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant. See State v.
Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016).
(a) Mental Competence
Hessler first claims that the district court erred when it
rejected his claim that because he was not competent to enter
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a plea of no contest, he was denied due process and effective
assistance of counsel. Hessler argues both that he was denied
due process because the court accepted his plea when he was
mentally incompetent and that trial counsel was ineffective for
failing to investigate and pursue a claim that he was not com-
petent to stand trial or enter a plea. We find no merit to this
assignment of error.
[11-13] A person is competent to plead or stand trial if he
or she has the capacity to understand the nature and object of
the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make
a rational defense. State v. Dunkin, 283 Neb. 30, 807 N.W.2d
744 (2012). The test of mental capacity to plead is the same as
that required to stand trial. Id. A court is not required to make
a competency determination in every case in which a defendant
seeks to plead guilty or to waive his or her right to counsel;
a competency determination is necessary only when a court
has reason to doubt the defendant’s competence. Id. In order
to demonstrate prejudice from counsel’s failure to investigate
competency and for failing to seek a competency hearing, the
defendant must demonstrate that there is a reasonable prob-
ability that he or she was, in fact, incompetent and that the trial
court would have found him or her incompetent had a compe-
tency hearing been conducted. Id.
At the evidentiary hearing in this case, Hessler’s trial coun-
sel testified that there was nothing that indicated that Hessler
was not competent to stand trial or that a mental health defense
would be successful. To the contrary, the court noted that trial
counsel testified that Hessler “was able to provide counsel
with background information” and “appeared reasonably intel-
ligent and appeared to understand the evidence and strategy
of the case.” In addition, the court noted the psychologist
who treated Hessler at the time of the conviction stated that
although Hessler suffered from conditions including “bi-polar
mood disorder, depression, and paranoid delusional disorder,”
Hessler was still able to understand important aspects of the
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proceedings against him including “the release he signed,
. . . the potential consequences of his charges, [that] he was
charged with sexual assault and [that] he was going to plead
and would go to the penitentiary.” The psychologist stated that
Hessler knew who his trial counsel were and their role in the
proceedings. In addition, the court noted the psychiatric nurse
who treated Hessler stated that the medications he was given
helped him and that he “appeared to understand her questions
and his responses were appropriate.”
Such evidence would indicate that Hessler was mentally
competent at the time of his conviction under the legal stan-
dards set forth above. The evidence indicated that he had “the
capacity to understand the nature and object of the proceed-
ings against him . . . , to comprehend his . . . own condi-
tion in reference to such proceedings, and to make a rational
defense.” See State v. Dunkin, 283 Neb. at 44, 807 N.W.2d at
756. The evidence recounted above indicated that Hessler was
competent, and Hessler failed to present evidence to call his
competence into question. With regard to the latter proposi-
tion, Hessler presented the deposition of a psychiatrist who
had been retained in connection with this postconviction action
to review Hessler’s records from the original conviction in
2003. Although the psychiatrist opined that in 2003, Hessler
was “depressed” and had “paranoid thinking,” the court noted
that the psychiatrist stated that he did not have adequate
information to form a definitive opinion on “what [e]ffect
[such conditions] would have on Hessler’s ability for rational
choices about entering a plea of no contest.” As noted above,
the psychologist who treated Hessler at the time of the con-
viction also determined that Hessler had mental health issues,
but that despite such conditions, he was able to understand
the proceedings.
The record indicates that Hessler was legally competent at
the time of his conviction, and in this postconviction action,
he failed to present evidence to dispute such determination.
Because there was nothing to indicate to either the trial court
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or counsel that Hessler was not competent to stand trial or
enter a plea, there is no merit to Hessler’s claims that the court
violated his due process rights by accepting his plea and that
counsel provided ineffective assistance by failing to investi-
gate or pursue a claim that he was not competent. The district
court therefore did not err when it denied postconviction relief
on Hessler’s claims related to mental competence.
(b) Plea Advice
Hessler next claims that the district court erred when it
rejected his claim that trial counsel’s advice to plead no contest
was ineffective assistance of counsel. Hessler argues that coun-
sel’s advice was deficient because it was based on a strategy
pursuant to which he would enter a plea in this case in order to
prevent the sexual assault of J.B. from being used to prove an
aggravator in the murder case involving Guerrero. The strategy
did not work out, and the sexual assault of J.B. was ultimately
used to prove an aggravator in the murder case. We find no
merit to this assignment of error.
[14] To show prejudice when the alleged ineffective assist­
ance relates to the entry of a plea, the defendant must show
that there is a reasonable probability that, but for counsel’s
errors, he or she would not have entered the plea and would
have insisted on going to trial. State v. Crawford, 291 Neb.
362, 865 N.W.2d 360 (2015). Therefore, Hessler needed to
show that if counsel had not given the allegedly erroneous
advice to enter a plea in this case, he would have insisted on
going to trial.
Hessler contends that counsel’s strategy was unreasonable
because it was based on a mistaken reading of the law as it
existed at the time of his conviction. However, whether or not
the strategy was based on a good reading of the law at the
time, we note that counsel testified that the strategy had been
explained to Hessler, and the court observed that Hessler had
been told that the strategy was “untested.” Counsel made no
guarantee that the strategy would be successful, and Hessler
agreed to the strategy with knowledge of its uncertainty.
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Furthermore, even without considering the global strategy
relating to the separate homicide case against Hessler, the
record indicates that counsel had reasons to advise Hessler
to plead in this case. The district court in this postconviction
action noted in its order that Hessler had confessed to the
sexual assault of J.B., that efforts to suppress the confession
were unsuccessful, and that DNA evidence was consistent with
the confession. The court also noted that Hessler had advised
counsel that he did not want a trial in this case. As the district
court concluded, counsel’s advice to enter a plea was not defi-
cient in light of the “overwhelming evidence” against Hessler
and his stated desire to avoid a trial.
Whether or not counsel’s advice regarding the global strat-
egy proved erroneous, Hessler has not shown that if counsel
had not given such advice, he would have insisted on going to
trial. The record indicates that given the strength of the State’s
case against him in this case and his own stated desire to
avoid a trial, Hessler had sufficient reason to enter a plea inde-
pendently of counsel’s advice regarding the global strategy.
Therefore, Hessler has not shown that but for the allegedly
erroneous advice he would have gone to trial. We conclude
that the district court did not err when it rejected Hessler’s
claim that counsel was ineffective for advising him to enter
a plea.
(c) Mitigating Evidence
Hessler next claims that the district court erred when it
rejected his claim that trial counsel’s failure to discover and
present mitigating evidence at sentencing was ineffective
assistance of counsel. Hessler’s arguments focus on counsel’s
alleged failure to adequately investigate and address issues of
his mental competence; he argues that if the trial court had
been made aware of his mental health issues, the court would
have determined that he was not competent to understand
the sentencing process. We find no merit to this assignment
of error.
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As we discussed above, Hessler did not present evidence to
show that he did not meet the legal standard of competence,
and instead, the record indicated that he was able to understand
the proceedings against him, including the sentencing aspects
of the proceedings. We note in particular with regard to sen-
tencing that the psychologist who treated Hessler at the time
of the conviction stated that Hessler “understood the potential
consequences of his charges” and that Hessler knew that by
entering a plea, he “would go to the penitentiary.”
Other than his alleged mental incompetence, Hessler pre-
sented no evidence of mitigating circumstances that counsel
should have discovered and presented at his sentencing. We
therefore conclude that the district court did not err when
it rejected Hessler’s claim that trial counsel was ineffec-
tive for failing to discover and present mitigating evidence
at sentencing.
(d) Direct Appeal
Hessler finally claims that the district court erred when it
rejected his claim that trial counsel’s failure to advise him to
appeal was ineffective assistance of counsel. Hessler contends
various issues could have been raised on appeal. We find no
merit to this assignment of error.
[15] After a trial, conviction, and sentencing, if counsel
deficiently fails to file or perfect an appeal after being so
directed by the criminal defendant, prejudice will be presumed
and counsel will be deemed ineffective, thus entitling the
defendant to postconviction relief. State v. Dunkin, 283 Neb.
30, 807 N.W.2d 744 (2012). The court in this postconviction
case found that “Hessler provided no evidence that he ever
requested counsel appeal his conviction and sentence in this
case.” Such finding was consistent with the court’s determina-
tion that Hessler was in agreement with counsel’s global strat-
egy to enter a plea in this case and refrain from filing a direct
appeal in order to have a final judgment before the trial in the
murder case. The postconviction court’s finding that Hessler
has not shown that counsel failed to file a direct appeal after
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being directed to do so is not clearly erroneous. See State v.
Saylor, 294 Neb. 492, 883 N.W.2d 334 (2016).
In connection with the direct appeal issue, Hessler contends
that trial counsel was deficient because counsel should have
advised him to appeal and to raise certain issues on appeal. In
this respect, the district court in this postconviction action con-
cluded that Hessler has “shown no prejudice by the failure to
file a direct appeal.” Although Hessler describes certain issues
which could have been raised on appeal, such as the denial of
his motion to discharge the jury panel and the denial of his
motions to suppress, he did not demonstrate that such issues
would have been successful on appeal. Furthermore, because
Hessler entered a plea, certain issues related to his conviction
were waived. See State v. Lee, 290 Neb. 601, 861 N.W.2d 393
(2015) (noting that normally, voluntary guilty plea waives all
defenses to criminal charge). We have recognized that in a
postconviction proceeding brought by a defendant convicted
because of a guilty plea or a plea of no contest, a court will
consider an allegation that the plea was the result of ineffective
assistance of counsel. Id. Above, we considered and rejected
Hessler’s allegation that his plea was the result of ineffective
assistance of counsel, and Hessler has not shown that any of
the issues he suggests could have been raised on direct appeal
were of such merit that counsel’s advice to enter the plea
was deficient.
To illustrate Hessler’s assertion that colorable issues should
have been presented on appeal, we note that Hessler contends
that on direct appeal, he could have shown a denial of due
process because the trial court and court reporter failed to
make a verbatim record of the plea hearing. He asserts that
an appellate court would have vacated his conviction and
remanded the matter for new proceedings to be held in the
presence of a court reporter. The district court in this post-
conviction action acknowledged that a verbatim record of the
plea hearing was unavailable and that the court reporter was
now incompetent to provide such a record. The district court
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determined, however, that the lack of a verbatim record did
not prejudice Hessler, because counsel’s strategy was to enter
a plea with no appeal.
In its order, the court cited State v. Deckard, 272 Neb.
410, 722 N.W.2d 55 (2006), in which we concluded that the
lack of a verbatim record did not violate defendant’s due
process rights with respect to his postconviction proceeding
because the trial court’s journal entries were sufficient to
review the defendant’s postconviction claims. Hessler asserts
that Deckard does not apply here because the record in this
case is not sufficient to review his various claims, including
that he was mentally incompetent, and that without the ver-
batim record, it cannot be determined whether the trial court
knew of his mental health issues and therefore whether the
court properly considered whether he was competent to enter
his plea.
However, as we determined above, Hessler has not shown
that he was not mentally competent to enter a plea, and instead,
the evidence and record indicated that he was competent, as the
postconviction court found. The court’s acceptance of his plea
indicates that the court viewed him as competent to enter the
plea, and a verbatim record of the proceeding was not neces-
sary to review that claim.
Hessler has not shown either that counsel ignored his
request to file a direct appeal or that counsel was ineffective
for failing to advise him to take a direct appeal. We therefore
conclude that the district court did not err when it rejected
this claim.
VI. CONCLUSION
Having rejected each of Hessler’s claims on appeal, we
affirm the district court’s order which overruled his motion
for postconviction relief and denied his petition for a writ of
error coram nobis.
A ffirmed.
Heavican, C.J., not participating.