State v. Sellers

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State of Nebraska, appellee, v.
Terry J. Sellers, appellant.
___ N.W.2d ___
Filed February 6, 2015. No. S-13-1049.
1. 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.
2. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion
for postconviction relief must be granted when the motion contains factual alle-
gations which, if proved, constitute an infringement of the movant’s rights under
the Nebraska or federal Constitution. However, if the motion alleges only conclu-
sions of fact or law, or the records and files in the case affirmatively show that
the movant is entitled to no relief, no evidentiary hearing is required.
3. Appeal and Error. An appellate court does not consider errors which are argued
but not assigned.
4. Effectiveness of Counsel. A pro se party is held to the same standards as one
who is represented by counsel.
5. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. To estab-
lish a right to postconviction relief because of counsel’s ineffective assistance,
the defendant has the burden, under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel’s performance
was deficient; that is, counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. Next, the defendant must show that
counsel’s deficient performance prejudiced the defense in his or her case. To
show prejudice, the defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceeding would have been
different. A court may address the two prongs of this test, deficient performance
and prejudice, in either order.
6. Postconviction: Appeal and Error. A motion for postconviction relief cannot
be used to secure review of issues which were or could have been litigated on
direct appeal.
7. Postconviction: Effectiveness of Counsel: Appeal and Error. A claim of inef-
fective assistance of appellate counsel which could not have been raised on direct
appeal may be raised on postconviction review.
8. Effectiveness of Counsel: Appeal and Error. When analyzing a claim of inef-
fective assistance of appellate counsel, courts usually begin by determining
whether appellate counsel failed to bring a claim on appeal that actually preju-
diced the defendant. That is, courts begin by assessing the strength of the claim
appellate counsel failed to raise.
9. ____: ____. Counsel’s failure to raise an issue on appeal could be ineffective
assistance only if there is a reasonable probability that inclusion of the issue
would have changed the result of the appeal.
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10. ____: ____. When a case presents layered ineffectiveness claims, an appellate
court determines the prejudice prong of appellate counsel’s performance by
focusing on whether trial counsel was ineffective under the test in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If trial
counsel was not ineffective, then the defendant suffered no prejudice when appel-
late counsel failed to bring an ineffective assistance of trial counsel claim.
11. Postconviction: Effectiveness of Counsel: Proof. A petitioner’s postconviction
claims that his or her trial counsel was ineffective in failing to investigate pos-
sible defenses are too speculative to warrant relief if the petitioner fails to allege
what exculpatory evidence that the investigation would have procured and how it
would have affected the outcome of the case.
12. Postconviction: Appeal and Error. In a postconviction motion, an appellate
court will not consider as an assignment of error a claim that was not presented
to the district court.
Appeal from the District Court for Douglas County: P eter
C. Bataillon, Judge. Affirmed.
Terry J. Sellers, pro se.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Heavican, C.J., Connolly, Stephan, McCormack, Miller-
Lerman, and Cassel, JJ.
Cassel, J.
I. INTRODUCTION
This appeal follows the denial, without an evidentiary hear-
ing, of Terry J. Sellers’ motion for postconviction relief. With
one exception, our analysis breaks no new ground. Sellers
asserted a claim that the separation of the jury without his
consent created a rebuttable presumption of prejudice which
entitled him to an evidentiary hearing. But we conclude that
this type of presumed prejudice is not the kind of prejudice
necessary to establish a claim of ineffective assistance of coun-
sel. We affirm.
II. BACKGROUND
Sellers was convicted by a jury of two counts of first degree
murder, one count of attempted first degree murder, and three
counts of use of a deadly weapon to commit a felony. Sellers
was represented by counsel at trial and was provided with
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different counsel on direct appeal, where we affirmed his con-
victions and sentences.1 The facts surrounding Sellers’ convic-
tions are contained in State v. Sellers2 and are not repeated
herein, except as otherwise indicated.
Over the course of 4 days in late February 2005, Sellers
and Taiana Matheny engaged in a scheme whereby Matheny
would lure men to secluded locations so that she and Sellers
could rob and murder them. Sellers and Matheny successfully
robbed and shot to death two men and robbed and unsuccess-
fully attempted to murder another. Sellers was sentenced to
life imprisonment for each of the murder convictions, 40 to
50 years’ imprisonment for the attempted murder conviction,
and varying terms of imprisonment for the use of a deadly
weapon convictions.
In April 2011, Sellers moved for postconviction relief. His
motion raised seven principal claims:
• His appellate counsel was ineffective in failing to raise, on
direct appeal, the failure of his trial counsel to conduct a rea-
sonable pretrial investigation.
• His appellate counsel was ineffective in failing to raise,
on direct appeal, the failure of his trial counsel to assert
Miranda3 violations.
• His appellate counsel was ineffective in failing to raise, on
direct appeal, the failure of his trial counsel to assert a viola-
tion of his speedy trial right.
• His appellate counsel was ineffective in arguing significantly
weaker issues on direct appeal.
• His trial counsel was ineffective in failing to object to jury
instructions Nos. 22 and 24.
• His trial counsel was ineffective in failing to make a Batson4
challenge during the selection of the jury.
1
See State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
2
Id.
3
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
4
See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986).
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• Because of his actual innocence, his convictions were a fun-
damental miscarriage of justice.
In addition to the above seven claims, Sellers made numer-
ous allegations concerning the performance of his trial counsel.
Among these allegations, Sellers asserted that his trial counsel
was ineffective in:
• failing to call important witnesses;
• failing to investigate the “cross section” jury requirement;
• failing to suppress illegally obtained statements and
confessions;
• failing to object to evidence that limited Sellers’ ability to
present a defense;
• failing to argue and present mitigating evidence, including
expert testimony, at sentencing;
• failing to object to the State’s presentence investigation
report; and
• failing to present “the Constitutionality of the statute” and
specific aggravating circumstances at sentencing.
However, these allegations were not clearly stated as indepen-
dent claims of ineffective assistance of trial counsel, or as the
basis for appellate counsel’s ineffectiveness in failing to raise
them on direct appeal. As explained in more detail below,
because Sellers had been provided with new counsel for his
direct appeal, the district court decided to treat each allegation
as a claim of ineffective assistance of appellate counsel.
Sellers supplemented his motion with a subsequent filing in
December 2011, raising two additional claims. First, Sellers
alleged that his appellate counsel was ineffective in failing
to raise, on direct appeal, the failure of his trial counsel to
object to the separation of the jury without Sellers’ consent.
And Sellers further alleged that his trial counsel was inef-
fective in failing to inform Sellers that such consent was
required. Second, Sellers asserted that the trial court should
have instructed the jury on the premeditated murder theory of
first degree murder and its lesser-included offenses.
The district court denied postconviction relief without an
evidentiary hearing. The court concluded that all of Sellers’
claims of ineffective assistance of counsel failed to include a
single fact or allegation establishing prejudice. Rather, Sellers’
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allegations consisted solely of conclusory statements to the
effect that the outcome of his trial and direct appeal would
have been different but for the ineffectiveness of his counsel.
And he failed to identify any specific witness, statement, viola-
tion, or evidence forming the basis for his claims.
As to Sellers’ claims regarding instructions Nos. 22 and 24,
the district court observed that this court analyzed the instruc-
tions in Sellers’ direct appeal. In his direct appeal, Sellers
alleged both that the trial court erred in giving instructions
Nos. 22 and 24, and that his trial counsel was ineffective in
failing to object to them. We determined that the record was
insufficient to address the performance of Sellers’ trial coun-
sel. But we concluded that the instructions were not plainly
erroneous. Based upon this conclusion, the district court deter-
mined that Sellers’ trial counsel was not ineffective in failing
to object.
The district court similarly found no basis for Sellers’ claim
of actual innocence or a fundamental miscarriage of justice.
The court observed that Sellers failed to identify any new
exculpatory evidence or any constitutional deprivation in viola-
tion of the Nebraska or federal Constitution. And the court also
found no merit to the claims raised in Sellers’ supplemental
motion. Sellers’ claim regarding the failure of the trial court
to instruct the jury on the premeditated murder theory of first
degree murder was procedurally barred. And Sellers failed to
allege any prejudice resulting from his trial counsel’s failure to
object to the jury’s separation.
Sellers filed a timely notice of appeal from the denial of
postconviction relief.
III. ASSIGNMENTS OF ERROR
Sellers assigns, restated and reordered, that the district court
erred in denying postconviction relief, because his appellate
counsel was ineffective in failing to raise, on direct appeal,
(1) trial counsel’s failure to object to the separation of the
jury without Sellers’ consent, and the corresponding failure to
inform Sellers that such consent was required; (2) trial coun-
sel’s failure to conduct a reasonable pretrial investigation; (3)
trial counsel’s failure to object to instructions Nos. 22 and
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24; and (4) trial counsel’s failure to request that the jury be
instructed on the premeditated murder theory of first degree
murder and its lesser-included offenses.
IV. STANDARD OF REVIEW
[1,2] In appeals from postconviction proceedings, an appel-
late 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 affirma-
tively show that the defendant is entitled to no relief.5 An evi-
dentiary hearing on a motion for postconviction relief must be
granted when the motion contains factual allegations which, if
proved, constitute an infringement of the movant’s rights under
the Nebraska or federal Constitution.6 However, if the motion
alleges only conclusions of fact or law, or the records and files
in the case affirmatively show that the movant is entitled to no
relief, no evidentiary hearing is required.7
V. ANALYSIS
[3,4] We first dispose of a preliminary issue. The arguments
made in Sellers’ brief are not limited to his assignments of
error, but extend to many of the claims raised in his postcon-
viction motion. Among others, he makes assertions regarding
actual innocence, the composition of the jury, and alleged vio-
lations of his Miranda rights and speedy trial right. However,
an appellate court does not consider errors which are argued
but not assigned.8 We acknowledge that Sellers filed his brief
pro se. But a pro se party is held to the same standards as one
who is represented by counsel.9 We restrict our analysis to
Sellers’ assignments of error.
[5] We next review governing principles of law regarding
a claim of ineffective assistance of counsel. To establish a
5
State v. Armendariz, 289 Neb. 896, ___ N.W.2d ___ (2015).
6
State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).
7
Id.
8
State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).
9
See State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994).
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right to postconviction relief because of counsel’s ineffective
assistance, the defendant has the burden, under Strickland v.
Washington,10 to show that counsel’s performance was defi-
cient; that is, counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law.11 Next,
the defendant must show that counsel’s deficient performance
prejudiced the defense in his or her case.12 To show prejudice,
the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the pro-
ceeding would have been different.13 A court may address the
two prongs of this test, deficient performance and prejudice, in
either order.14
[6] However, a motion for postconviction relief cannot be
used to secure review of issues which were or could have
been litigated on direct appeal.15 As noted above, Sellers
was represented by new counsel in his direct appeal. He was
therefore required to assert, on direct appeal, any alleged
deficiencies in trial counsel’s performance known to him or
apparent from the record in order to preserve them for post-
conviction review.16
Sellers raised only one claim of ineffective assistance of trial
counsel on direct appeal, relating to his trial counsel’s failure
to object to instructions Nos. 22 and 24. But Sellers’ post-
conviction motion made numerous allegations concerning the
performance of his trial counsel. Thus, the majority of Sellers’
claims of ineffective assistance of trial counsel were potentially
barred from postconviction review. However, the ineffective
assistance claims raised in Sellers’ motion were presented in
a very confusing manner, making it difficult to distinguish
10
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
11
See Duncan, supra note 8.
12
Id.
13
Id.
14
Id.
15
See Hessler, supra note 6.
16
See State v. Thomas, 278 Neb. 248, 769 N.W.2d 357 (2009).
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between claims of ineffective assistance of trial and appellate
counsel. Consequently, the district court decided to treat each
ineffective assistance claim as a claim of ineffective assistance
of appellate counsel. We will do likewise.
[7-10] This postconviction proceeding was Sellers’ first
opportunity to assert that his appellate counsel was ineffective.
A claim of ineffective assistance of appellate counsel which
could not have been raised on direct appeal may be raised on
postconviction review.17 When analyzing a claim of ineffective
assistance of appellate counsel, courts usually begin by deter-
mining whether appellate counsel failed to bring a claim on
appeal that actually prejudiced the defendant.18 That is, courts
begin by assessing the strength of the claim appellate counsel
failed to raise.19 Counsel’s failure to raise an issue on appeal
could be ineffective assistance only if there is a reasonable
probability that inclusion of the issue would have changed the
result of the appeal.20 When a case presents layered ineffec-
tiveness claims, we determine the prejudice prong of appellate
counsel’s performance by focusing on whether trial counsel
was ineffective under the Strickland test.21 If trial counsel was
not ineffective, then the defendant suffered no prejudice when
appellate counsel failed to bring an ineffective assistance of
trial counsel claim.22
We now turn to Sellers’ specific allegations of ineffective
assistance of appellate counsel. And we begin with the primary
issue presented by this appeal—whether the separation of the
jury without Sellers’ consent created a presumption of preju-
dice which entitled him to an evidentiary hearing.
1. Separation of Jury
Sellers assigns that his appellate counsel was ineffective in
failing to raise, on direct appeal, the failure of his trial counsel
17
State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).
18
State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
19
Id.
20
Id.
21
See id.
22
Id.
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to object to the jury’s separation without Sellers’ consent. He
further alleges that his trial counsel was ineffective in failing to
advise him that such consent was required.
Nebraska law provides that in a criminal case, “[w]hen a
case is finally submitted to the jury, they must be kept together
in some convenient place, under the charge of an officer, until
they agree upon a verdict or are discharged by the court.”23
Although this provision can be waived by agreement of the
defendant and the State, it is otherwise mandatory.24
Sellers asserts that he was entitled to an evidentiary hear-
ing on this claim, because the separation of the jury without
his consent created a rebuttable presumption of prejudice. He
cites to our holding in State v. Robbins25 that in the absence of
an express agreement or consent by the defendant, the failure
to comply with § 29-2022 creates a rebuttable presumption of
prejudice and places the burden upon the prosecution to show
that no injury resulted.
We first note that in State v. Collins,26 we overruled the hold-
ing of Robbins that a defendant’s express agreement or consent
is required to waive the right under § 29-2022 to sequester the
jury. But our ruling in Collins was prospective only.27 Sellers
was tried before Collins was decided, and the case at bar is
governed by the rule from Robbins.
Sellers misconstrues the applicability of the presumption
of prejudice of Robbins to this postconviction proceeding. In
applying Robbins to a petitioner’s claim of ineffective assist­
ance of counsel in a habeas proceeding, the U.S. Court of
Appeals for the Eighth Circuit observed that the presumption
of prejudice created by a violation of § 29-2022 is distinct
from Strickland prejudice.28 A violation of the statute will not,
23
Neb. Rev. Stat. § 29-2022 (Reissue 2008). See State v. Barranco, 278 Neb.
165, 769 N.W.2d 343 (2009).
24
Barranco, supra note 23.
25
State v. Robbins, 205 Neb. 226, 287 N.W.2d 55 (1980), overruled, State v.
Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
26
Collins, supra note 25.
27
See State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).
28
See Kitt v. Clarke, 931 F.2d 1246 (8th Cir. 1991).
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by itself, justify reversal of a conviction.29 Thus, § 29-2022
prejudice does not alter the prejudice analysis required by
Strickland.30 Under Strickland, a defendant has the burden to
show that he would have prevailed on appeal because the State
could not have overcome the rebuttable presumption of preju-
dice created by the violation of § 29-2022.31
We agree with the conclusion reached by the Eighth Circuit
and adopt its reasoning. A defendant requesting postconvic-
tion relief must establish the basis for such relief.32 In order to
establish the prejudice prong of the Strickland test, Sellers was
required to allege sufficient facts to show that he would have
prevailed on appeal because the State could not have over-
come the rebuttable presumption of prejudice created by the
violation of § 29-2022. But Sellers alleged only that his trial
counsel did not inform him of the requirement for his consent.
He failed to allege any facts as to the State’s ability to over-
come the presumption. Consequently, Sellers’ allegations were
insufficient to show that his appellate counsel was ineffective
in failing to raise the issue on direct appeal. We find no error
in the denial of postconviction relief on this claim without an
evidentiary hearing.
2. R easonable P retrial Investigation
Sellers asserts that his appellate counsel was ineffective
in failing to raise, on direct appeal, the failure of his trial
counsel to conduct a reasonable pretrial investigation. In his
postconviction motion, he identified several activities that his
trial counsel failed to undertake. These activities included fil-
ing a motion for discovery, hiring an independent investigator,
reviewing the crime scene, consulting with a ballistics expert,
and identifying and interviewing potential witnesses.
However, Sellers failed to allege how undertaking the above
activities would have produced a different outcome at trial.
More specifically, he did not identify any exculpatory evidence
29
See id.
30
See id.
31
See id.
32
See Hessler, supra note 6.
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that the activities would have procured. As the district court
observed, his allegations consisted solely of conclusory state-
ments, such as, “‘[I]f trial and/or appellate counsel would have
investigated and hired an investigator to fully investigate the
case at bar, there surely would have been a different outcome
in [Sellers’] trial.’”
[11] Such conclusory allegations are insufficient to establish
the prejudice prong of the Strickland test. We have previ-
ously observed that a petitioner’s postconviction claims that
his or her trial counsel was ineffective in failing to investigate
possible defenses are too speculative to warrant relief if the
petitioner fails to allege what exculpatory evidence that the
investigation would have procured and how it would have
affected the outcome of the case.33 And in assessing postcon-
viction claims that trial counsel was ineffective in failing to
call a particular witness, we have upheld dismissal without an
evidentiary hearing where the motion did not include specific
allegations regarding the testimony which the witness would
have given if called.34
There is nothing in Sellers’ motion that would suggest the
nature of the exculpatory evidence which his trial counsel
would have obtained through the above activities. And his
motion neither identified a single witness that was not called to
testify nor described the testimony that the witness would have
given. As such, Sellers’ allegations were insufficient to show
that his appellate counsel was ineffective in failing to raise
this issue on direct appeal. “If defendant does not choose to
specify what [he] is claiming, a trial court need not conduct a
discovery hearing to determine if anywhere in this wide world
there is some evidence favorable to defendant’s position.”35
33
See State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
34
See, State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010); Davlin,
supra note 18.
35
State v. Threet, 231 Neb. 809, 813, 438 N.W.2d 746, 749 (1989),
disapproved on other grounds, State v. Harris, 267 Neb. 771, 677 N.W.2d
147 (2004).
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The district court correctly concluded that this claim did not
entitle Sellers to postconviction relief.
3. Instructions Nos. 22 and 24
Sellers assigns that his appellate counsel was ineffective in
failing to raise, on direct appeal, the failure of his trial coun-
sel to object to jury instructions Nos. 22 and 24. However,
as noted above, Sellers’ appellate counsel raised and argued
this issue on direct appeal, but we determined that the
record was insufficient to resolve the issue of trial counsel’s
performance.
Thus, it appears that Sellers assigns that his appellate coun-
sel was ineffective in failing to take an action which his appel-
late counsel did in fact undertake. But in his postconviction
motion, Sellers correctly identified this claim as one of ineffec-
tive assistance of trial counsel. Given the district court’s deci-
sion to treat each ineffective assistance claim raised in Sellers’
motion as a claim of ineffective assistance of appellate counsel,
we overlook the wording of the assigned error and proceed to
the merits.
(a) Instruction No. 22
Instruction No. 22 provided:
There has been testimony from Taiana Matheny, a
claimed accomplice of the Defendant. You should closely
examine her testimony for any possible motive she might
have to testify falsely. You should hesitate to convict the
Defendant if you decide that Taiana Matheny testified
falsely about an important matter and that there is no
other evidence to support her testimony.
In his postconviction motion, Sellers alleged that instruc-
tion No. 22 created an improper presumption that Matheny
was his accomplice. Thus, he claimed that the instruction
negated his defense that Matheny was the principal architect
of the crimes. Finally, he asserted that the instruction was
erroneous because it omitted a sentence from the pattern jury
instruction that “[the jury] should convict the defendant only
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if the evidence satisfies [the jury] beyond a reasonable doubt
of (his, her) guilt.”36
However, Sellers’ allegations were insufficient to establish
a right to postconviction relief. The allegations in his postcon-
viction motion were identical to the assertions we rejected in
Sellers’ direct appeal. We concluded that no improper presump-
tion was created by instruction No. 22, because the instruction
“provide[d] in plain English that Matheny was a ‘claimed
accomplice’—nothing more, nothing less.”37 And although
the instruction deviated from the pattern jury instruction, the
instructions as a whole charged the jury that the State was
required to prove each and every element of the offense
charged beyond a reasonable doubt.
Sellers’ motion failed to establish any prejudice from his
trial counsel’s failure to object to instruction No. 22. As we
observed on direct appeal, instruction No. 22 was a cautionary
instruction in Sellers’ favor regarding the weight to be given to
Matheny’s testimony. We find no error in the denial of postcon-
viction relief on this claim.
(b) Instruction No. 24
Instruction No. 24 provided: “Evidence of marijuana and
money located at [Jeremiah Brodie’s residence in] Omaha,
Nebraska, was received only for the limited purpose of the
credibility of DaWayne Kearney and for no other purpose. You
may consider this evidence only for the limited purpose and
for no other.”
DaWayne Kearney was one of Sellers’ victims—he was
robbed, but escaped before he could be killed. After numerous
unsuccessful attempts were made to serve Kearney with a sub-
poena to testify, Kearney was arrested at the home of Jeremiah
Brodie. During the arrest and a subsequent search of Brodie’s
residence, police officers found handguns, ammunition, mari-
juana, and cash. Kearney was not charged with any offense,
because police did not believe there was any evidence against
36
See NJI2d Crim. 5.6.
37
Sellers, supra note 1, 279 Neb. at 230, 777 N.W.2d at 788.
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him. Another individual admitted that the handguns belonged
to her, and there was no evidence that Kearney was in posses-
sion of the guns or the marijuana.
On direct appeal, Sellers alleged that instruction No. 24
negated the inference that Kearney was a drug dealer. And this
inference was consistent with Sellers’ testimony that he met
with Kearney to buy marijuana, not to rob and kill him. But
we concluded that the instruction did not foreclose Sellers’
ability to argue that Kearney was a drug dealer. Sellers was
permitted to question Kearney about the drugs and money
found at Brodie’s residence and any agreement Kearney had
made with the State. The instruction did not prevent the
jury from considering Sellers’ version of the confrontation
with Kearney.
Sellers’ postconviction motion again made the same alle-
gations that he made on direct appeal. And these allegations
failed to establish any prejudice resulting from his trial coun-
sel’s failure to object to the instruction. Instruction No. 24 did
not inhibit Sellers from asserting a claim of self-defense, and
the jury was given two instructions on that theory. We agree
that Sellers failed to establish a right to postconviction relief
on this claim.
4. P remeditated Murder
Theory Instruction
[12] Sellers assigns that his appellate counsel was ineffec-
tive in failing to raise, on direct appeal, the failure of his trial
counsel to request an instruction on the premeditated murder
theory of first degree murder and its lesser-included offenses.
However, this claim was not presented to the district court. In
his supplemental motion, Sellers alleged that the trial court
erred in instructing the jury. He did not assert a claim of inef-
fective assistance of counsel. We therefore decline to review
this assignment of error. In a postconviction motion, an appel-
late court will not consider as an assignment of error a claim
that was not presented to the district court.38
38
State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).
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VI. CONCLUSION
We find no merit to Sellers’ assigned errors. His assertions
of ineffective assistance of trial and appellate counsel failed to
establish any prejudice resulting from the alleged deficiencies
of his counsel. And his claim of instructional error regarding
the premeditated murder theory of first degree murder was not
presented as a claim of ineffective assistance of counsel before
the district court. We affirm the denial of postconviction relief
without an evidentiary hearing.
Affirmed.
Wright, J., participating on briefs.
Abigail K. Despain, appellee, v.
William E. Despain, appellant.
___ N.W.2d ___
Filed February 6, 2015. No. S-13-1133.
1. Judgments: Appeal and Error. An appellate court determines jurisdictional
questions that do not involve a factual dispute as a matter of law.
2. New Trial: Appeal and Error. Regarding motions for new trial, an appel-
late court will uphold a trial court’s ruling on such a motion absent an abuse
of discretion.
3. Divorce: Property Division: Appeal and Error. In actions for the dissolution
of marriage, the division of property is a matter entrusted to the discretion of the
trial judge, whose decision will be reviewed de novo on the record and will be
affirmed in the absence of an abuse of discretion.
4. Judges: Words and Phrases. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying just results in matters submitted
for disposition.
5. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
6. Jurisdiction: Time: Notice: Appeal and Error. To vest an appellate court with
jurisdiction, a party must timely file a notice of appeal.
7. Statutes: Appeal and Error. Statutory language is to be given its plain and
ordinary meaning, and interpretation will not be used to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.
8. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 2008),
the equitable division of property is a three-step process. The first step is to clas-
sify the parties’ property as marital or nonmarital, setting aside the nonmarital