State v. Vanderpool

Nebraska Advance Sheets
STATE v. VANDERPOOL 111
Cite as 286 Neb. 111admission is not finally approved as above provided, it
may not be used as evidence against the Respondent in
any way.
Pursuant to § 3-313, and given the conditional admission,
we find that respondent knowingly does not challenge or
contest the matters conditionally admitted. We further deter-
mine that by his conduct, respondent violated conduct rules
§§ 3-507.1 and 3-508.4(a), as well as his oath of office as
an attorney licensed to practice law in the State of Nebraska.
Respondent has waived all additional proceedings against him
in connection herewith. Upon due consideration, the court
approves the conditional admission and enters the orders as
indicated below.
CONCLUSION
Respondent is publically reprimanded. Respondent is
directed to pay costs and expenses in accordance with Neb.
Ct. R. §§ 3-310(P) and 3-323(B) within 60 days after the
order imposing costs and expenses, if any, is entered by
the court.
Judgment of public reprimand.
State of Nebraska, appellee, v.
Patrick W. Vanderpool, appellant.
___ N.W.2d ___
Filed June 21, 2013. No. S-12-755.
1. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel
provided ineffective assistance presents a mixed question of law and fact.
Determinations regarding whether counsel was deficient and whether the defend­
ant was prejudiced are questions of law that an appellate court reviews inde-
pendently of the lower court’s decision. The court reviews factual findings for
clear error.
2. Effectiveness of Counsel: Proof. 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 counsel’s performance was defi-
cient and that this deficient performance actually prejudiced his or her defense.
3. ____: ____. To show deficient performance, a defendant must show that coun-
sel’s performance did not equal that of a lawyer with ordinary training and skill
in criminal law in the area.
Nebraska Advance Sheets
112 286 NEBRASKA REPORTS
4. ____: ____. To show prejudice, the defendant must demonstrate reasonable prob-
ability that but for counsel’s deficient performance, the result of the proceeding
would have been different.
5. Postconviction: Effectiveness of Counsel: Proof. The defendant has the burden
in postconviction proceedings of demonstrating ineffectiveness of counsel, and
the record must affirmatively support that claim.
6. 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.
7. Postconviction: Evidence. Issues of credibility are for the postconviction court.
8. Postconviction: Effectiveness of Counsel: Sentences. Allegations of ineffec-
tive assistance which are affirmatively refuted by a defendant’s assurances to the
sentencing court do not constitute a basis for postconviction relief.
9. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is the
result of a guilty plea or a plea of no contest, the prejudice requirement for an
ineffective assistance of counsel claim is satisfied if the convicted defendant can
show a reasonable probability that, but for the errors of counsel, he or she would
have insisted on going to trial rather than pleading.
10. Postconviction: Effectiveness of Counsel: Proof. In the context of a claim of
ineffectiveness of counsel for failure to investigate, allegations are too specula-
tive 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.
11. Licenses and Permits: Attorneys at Law: Effectiveness of Counsel. The
failure to meet technical licensing requirements does not render an attorney per
se ineffective.
12. ____: ____: ____. Suspension for nonpayment of dues does not render an attor-
ney’s representation per se ineffective.
Appeal from the District Court for Douglas County: James T.
Gleason, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Kelly M. Steenbock for appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Cassel, J.
I. INTRODUCTION
A Nebraska attorney was suspended and later disbarred for
nonpayment of dues. While suspended, the attorney represented
Nebraska Advance Sheets
STATE v. VANDERPOOL 113
Cite as 286 Neb. 111Patrick W. Vanderpool in a criminal case. When Vanderpool
became aware of the suspension, he sought postconviction
relief based upon alleged ineffective assistance of counsel.
After an evidentiary hearing, the district court denied relief.
The court first declined to apply a per se rule—reasoning that
the attorney was qualified when admitted and was suspended
solely for nonpayment of dues. After considering Vanderpool’s
specific claims regarding his attorney’s performance, the court
found that they either were affirmatively disproved by the
record or constituted mere conclusions. We adhere to our pre-
vious rejection of a per se rule, and we find no error in the
court’s specific findings. Thus, we affirm.
II. BACKGROUND
In 2010, Vanderpool pled guilty to and was convicted
of attempted first degree sexual assault, for which he was
sentenced to 10 to 15 years’ imprisonment. There was no
direct appeal.
Throughout the criminal proceedings, Vanderpool was rep-
resented by David M. Walocha and believed that Walocha was
licensed to practice law in Nebraska. In actuality, Walocha’s
license to practice law in Nebraska had been suspended since
1996 for nonpayment of dues. Vanderpool did not learn of this
fact until after his sentencing. A few months later, in 2011, the
Counsel for Discipline of the Nebraska Supreme Court filed
formal charges against Walocha for practicing law on a sus-
pended license.1 In 2012, Walocha was disbarred.2
After learning that Walocha’s license was suspended but
before Walocha was disbarred, Vanderpool filed a motion for
postconviction relief, alleging ineffective assistance of coun-
sel. He argued that Walocha was ineffective because he (1)
led Vanderpool to believe that Vanderpool would receive only
probation and not incarceration if Vanderpool pled guilty as
part of a plea agreement, (2) failed to interview witnesses or
1
See State ex rel. Counsel for Dis. v. Walocha, 283 Neb. 474, 811 N.W.2d
174 (2012).
2
See id.Nebraska Advance Sheets
114 286 NEBRASKA REPORTS
independently investigate the crime of which Vanderpool was
convicted, and (3) represented himself as licensed to practice
law in Nebraska when his license was in fact suspended.
After an evidentiary hearing, the district court denied
Vanderpool’s motion for postconviction relief. In its order, the
court analyzed the motion under both a per se theory of inef-
fectiveness and under the standard two-part test of Strickland
v. Washington.3 The court found that Vanderpool was not
entitled to relief for ineffective assistance of counsel under
either approach.
Taking up the issue of Walocha’s suspension first, the
district court held that it was bound by State v. McCroy4 to
reject a per se determination of ineffectiveness. In McCroy,
we declined to adopt a per se determination of ineffective-
ness in the case of disbarment subsequent to representation—a
factual situation the court viewed as similar to Vanderpool’s
representation by Walocha. The court also cited numerous
cases from other jurisdictions, noting that “in varying sets
of circumstances [c]ourts of other [s]tates have determined,
almost unanimously, that an attorney whose license has been
suspended for failure to pay dues may still be ‘counsel’ for
Sixth Amendment purposes.”
After rejecting a per se determination of ineffectiveness,
the district court then found that Vanderpool’s specific alle-
gations of ineffective assistance of counsel lacked merit
under the criteria of Strickland. Addressing Vanderpool’s
argument that Walocha promised a sentence of probation if
Vanderpool pled guilty, the court found that this allegation
was affirmatively refuted by the record. The court explained
as follows:
In this case, [Vanderpool] unequivocally represented to
the [c]ourt, on the record, that no promises were made by
anyone regarding his sentence[.] [H]aving clearly, intel-
ligently and forthrightly set forth that he had not been
3
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
4
State v. McCroy, 259 Neb. 709, 613 N.W.2d 1 (2000).
Nebraska Advance Sheets
STATE v. VANDERPOOL 115
Cite as 286 Neb. 111promised any particular sentence in return for his entry
of a guilty plea to the amended charge[,] to now deter-
mine that his plea was not voluntarily entered based on
promises made would be to make a mockery out of the
arraignment [process].
As for Vanderpool’s claim that Walocha failed to conduct an
independent investigation, the court held that the allegations
were “conclus[o]ry” in that Vanderpool “fail[ed] to allege with
any specificity what exculpatory facts would have been discov-
ered or how such discovery would have led to him not entering
a plea of guilty to the significantly reduced charge.”
Vanderpool timely appeals. Pursuant to statutory authority,
we moved the case to our docket.5
III. ASSIGNMENT OF ERROR
Vanderpool alleges that the district court erred in denying
his motion for postconviction relief.
IV. STANDARD OF REVIEW
[1] A claim that defense counsel provided ineffec-
tive assistance presents a mixed question of law and fact.6
Determinations regarding whether counsel was deficient and
whether the defendant was prejudiced are questions of law
that an appellate court reviews independently of the lower
court’s decision.7 The court reviews factual findings for
clear error.8
V. ANALYSIS
1. Ineffective Assistance of Counsel
Under Strickland
[2-5] As in any other ineffective assistance of counsel case,
we begin by reviewing Vanderpool’s allegations under the
two-part framework of Strickland. To prevail on a claim of
5
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
6
State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
7
Id.8
Id.Nebraska Advance Sheets
116 286 NEBRASKA REPORTS
ineffective assistance of counsel under Strickland, the defend­
ant must show that counsel’s performance was deficient and
that this deficient performance actually prejudiced his or her
defense.9 To show deficient performance, a defendant must
show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law in the area.10
To show prejudice, the defendant must demonstrate reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different.11 The
defendant has the burden in postconviction proceedings of
demonstrating ineffectiveness of counsel, and the record must
affirmatively support that claim.12
With these broad principles in mind, we turn to the specific
errors that Vanderpool alleges Walocha committed. Liberally
construed, Vanderpool’s appellate brief argues that Walocha
committed three specific errors: (1) He failed to file a direct
appeal, (2) he led Vanderpool to believe that Vanderpool
would receive only probation and not incarceration as part
of a plea agreement, and (3) he failed to interview witnesses
or independently investigate the crime of which Vanderpool
was convicted. We find that Vanderpool is not entitled to
relief based on any of these alleged errors in Walocha’s
actual performance.
(a) Failure to Appeal
[6] Vanderpool alleges that Walocha was ineffective for
failing to file a direct appeal after Vanderpool specifically
requested that he do so. But Vanderpool did not raise this
issue in his motion for postconviction relief. Neither did the
district court rule on whether Walocha was ineffective for
failing to file a direct appeal. In a postconviction motion,
an appellate court will not consider as an assignment of
9
State v. Watt, 285 Neb. 647, ___ N.W.2d ___ (2013).
10
Id.11
Id.12
State v. Hessler, 282 Neb. 935, 807 N.W.2d 504 (2011).
Nebraska Advance Sheets
STATE v. VANDERPOOL 117
Cite as 286 Neb. 111error a claim that was not presented to the district court.13
To the extent Vanderpool argues that Walocha was ineffec-
tive for failing to file a direct appeal, we decline to consider
this allegation.
(b) Advice Regarding Guilty Plea
Vanderpool also argues that Walocha was ineffective for
misrepresenting the terms of the plea agreement and thus lead-
ing Vanderpool to enter a guilty plea. At the evidentiary hear-
ing before the district court, Vanderpool testified that Walocha
told him that Walocha had reached an agreement with the
prosecutor that would guarantee probation if Vanderpool pled
guilty. According to Vanderpool, he pled guilty based solely
on this promise of probation.
In evaluating this allegation, the district court highlighted
that Vanderpool’s responses to the sentencing court’s ques-
tions on the record refuted the facts upon which he based
this allegation of ineffective assistance of counsel. Indeed,
the transcript from Vanderpool’s sentencing hearing indi-
cates that the plea agreement involved “the State not making
any sentencing recommendation at the time of sentencing.”
When asked whether this was an accurate description of the
plea agreement, Vanderpool responded, “Yes.” Later, after
Vanderpool entered a plea of guilty, the sentencing court
asked, “[A]part from the State agreeing to withhold a sen-
tencing recommendation, has anyone promised you anything
or threatened you to get you to do this?” Vanderpool replied,
“No, sir.” The sentencing court asked whether Vanderpool
was “doing this of [his] own free will.” Vanderpool answered
that he was entering a guilty plea of his own free will. Based
on Vanderpool’s answers on the record to these questions, we
agree that the record affirmatively refutes his allegation that
his counsel misrepresented the plea agreement.
During the evidentiary hearing, Vanderpool attempted to
reconcile the contradiction between his answers during sen-
tencing and his allegations of ineffective assistance of counsel
13
State v. Yos-Chiguil, supra note 6.
Nebraska Advance Sheets
118 286 NEBRASKA REPORTS
by claiming that he lied to the sentencing judge. According
to Vanderpool, Walocha specifically advised him to deny that
“there was a reason why [he] was pleading guilty” and to
“say no” if asked whether anyone promised him a specific
sentence in return for pleading guilty. Vanderpool stated that
he did as Walocha told him because he thought Walocha was
“leading [him] in the right direction” and “doing his job” as
an attorney.
[7] Given this evidence, the district court was faced with the
option of relying upon the official transcript of Vanderpool’s
sentencing hearing, which disproved that he had been promised
probation in exchange for entering a guilty plea, or rejecting
this portion of the record based on Vanderpool’s testimony that
he lied to the sentencing court upon the advice of Walocha.
Issues of credibility are for the postconviction court.14 The
court chose to accept the record over Vanderpool’s testimony,
noting that to accept his after-the-fact explanation for entering
a guilty plea “would be to make a mockery out of the arraign-
ment [process].” We find no clear error in the court’s assess-
ment of Vanderpool’s credibility.
[8] This court has previously held that allegations of ineffec-
tive assistance which are affirmatively refuted by a defendant’s
assurances to the sentencing court do not constitute a basis for
postconviction relief.15 As we have noted:
If the dialogue which is required between the court
and the defendant whereat, as here, the court receives an
affirm­tive answer as to whether the defendant under-
a
stands the specified and full panoply of constitutional
rights . . . and whether it is true that defendant was not
improperly influenced by threats or promises . . . all done
during the sanctity of a full and formal court proceeding,
is to be impugned by a mere recantation made after the
doors of the prison clang shut, we are wasting our time
14
State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009).
15
See, e.g., State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011); State v.
Vo, 279 Neb. 964, 783 N.W.2d 416 (2010); State v. McLeod, 274 Neb. 566,
741 N.W.2d 664 (2007).
Nebraska Advance Sheets
STATE v. VANDERPOOL 119
Cite as 286 Neb. 111and that of the trial judges, making a mockery out of the
arraignment process.16
Because the record refutes Vanderpool’s allegation that
Walocha allegedly misrepresented the plea agreement, the dis-
trict court did not err in finding that Vanderpool was not enti-
tled to relief on that ground.
(c) Failure to Investigate
Finally, Vanderpool argues that Walocha was ineffective
because he failed to “conduct an independent investigation of
the facts.”17 In his motion for postconviction relief, Vanderpool
further alleged that Walocha “never interviewed any of the
witnesses against [him].” The district court dismissed this
allegation because it failed to “allege with any specificity what
exculpatory facts would have been discovered or how such
discovery would have led to [Vanderpool’s] not entering a plea
of guilty to the significantly reduced charge.”
[9,10] In order to satisfy the prejudice prong of Strickland,
a defendant must “show a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding
in question would have been different.”18 When a convic-
tion is the result of a guilty plea or a plea of no contest, the
prejudice requirement for an ineffective assistance of coun-
sel claim is satisfied if the convicted defendant can show
a reasonable probability that, but for the errors of counsel,
he or she would have insisted on going to trial rather than
pleading.19 Specifically, in the context of a claim of inef-
fectiveness of counsel for failure to investigate, allegations
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.”20
16
State v. Scholl, 227 Neb. 572, 580, 419 N.W.2d 137, 142 (1988).
17
Brief for appellant at 6.
18
State v. Jackson, 275 Neb. 434, 443, 747 N.W.2d 418, 430 (2008).
19
State v. Golka, supra note 15.
20
State v. Edwards, 284 Neb. 382, 412-13, 821 N.W.2d 680, 705 (2012).
Nebraska Advance Sheets
120 286 NEBRASKA REPORTS
Based on these standards, the district court did not err in
denying Vanderpool relief for his counsel’s alleged failure to
investigate. Vanderpool did not identify what exculpatory evi-
dence investigation would have uncovered, which witnesses
Walocha should have interviewed, or what testimony those
witnesses would have provided. And when asked during oral
arguments how further investigation would have changed the
outcome of the criminal proceedings, Vanderpool stated that
he was not certain that the outcome would have been dif-
ferent. The district court’s implicit finding—that Vanderpool
would not have insisted on going to trial rather than plead-
ing—was not clearly erroneous. Thus, Vanderpool failed to
show how he was prejudiced by Walocha’s alleged failure
to investigate.
For all of these reasons, Vanderpool is not entitled to relief
based on any of the alleged errors in Walocha’s actual per­
formance. The district court did not err in so concluding.
2. P er Se Ineffective Assistance
of Counsel
Because Vanderpool failed to show that he is entitled to
relief under Strickland, his claim of ineffective assistance of
counsel can succeed only if a per se rule applies. We now turn
to that issue.
A per se determination of ineffective assistance of counsel
is based on the proposition that when “surrounding circum-
stances justify a presumption of ineffectiveness” a court can
find a claim of ineffective assistance of counsel to “be suf-
ficient without inquiry into counsel’s actual performance at
trial.”21 When the right circumstances are present, prejudice
is presumed.22 A per se determination of ineffective assist­
ance of counsel thus sits in stark contrast to a determination
that counsel is ineffective under Strickland, because such a
per se finding is not based on the particulars of counsel’s
representation.
21
United States v. Cronic, 466 U.S. 648, 662, 104 S. Ct. 2039, 80 L. Ed. 2d
657 (1984).
22
See State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011).
Nebraska Advance Sheets
STATE v. VANDERPOOL 121
Cite as 286 Neb. 111This court rejected a per se determination of ineffective
assistance of counsel in McCroy.23 In that case, Barry D.
McCroy sought postconviction relief because his attorney was
disbarred after representing McCroy for failing to disclose a
disbarment in Colorado when applying for a license to prac-
tice law in Nebraska. On these facts, we declined to adopt a
per se determination of ineffectiveness, but, rather, analyzed
McCroy’s postconviction motion “under the Strickland test
based upon [his attorney’s] actual performance in represent-
ing McCroy.”24
Because the issue of per se ineffective assistance of coun-
sel was one of first impression in McCroy, we engaged in a
lengthy discussion of case law from other courts. In doing
so, we noted that other courts adopted a per se determina-
tion of ineffectiveness in situations where an attorney (1) was
“unsuccessful in passing the bar examination and thus was
never admitted to practice as a lawyer,”25 (2) was admitted
to practice law “on the basis of false representations regard-
ing his legal education,”26 (3) was denied a license to practice
law “due to lack of moral character,”27 (4) had “submitted
his resignation to the state bar with disciplinary proceedings
pending,”28 and (5) was deemed incompetent to represent
clients.29 In contrast, we cited to other courts that declined to
adopt a per se rule of ineffectiveness in the case of attorney
suspension;30 disbarment of “‘an attorney previously qualified
23
See State v. McCroy, supra note 4.
24
Id. at 717, 613 N.W.2d at 7.
25
Id. at 713, 613 N.W.2d at 5 (discussing Solina v. United States, 709 F.2d
160 (2d Cir. 1983)).
26
Id. (discussing U.S. v. Novak, 903 F.2d 883 (2d Cir. 1990)).
27
Id. (discussing Huckelbury v. State, 337 So. 2d 400 (Fla. App. 1976)).
28
Id. at 714, 613 N.W.2d at 5 (discussing In re Johnson, 1 Cal. 4th 689, 822
P.2d 1317, 4 Cal. Rptr. 2d 170 (1992)).
29
See id. (discussing People v. Hinkley, 193 Cal. App. 3d 383, 238 Cal. Rptr.
272 (1987), and Ex parte Williams, 870 S.W.2d 343 (Tex. App. 1994)).
30
See State v. McCroy, supra note 4 (discussing State v. Smith, 476 N.W.2d
511 (Minn. 1991)).
Nebraska Advance Sheets
122 286 NEBRASKA REPORTS
and in good standing’”31; and license revocation due to an
attorney’s false reporting on his application,32 among others.
In particular, we emphasized the finding of the Ninth Circuit
that “‘the infliction of discipline upon an attorney previously
qualified and in good standing will not and should not trans-
form his services into ineffective assistance.’”33
Based on this survey of case law, we concluded that there
is “a valid distinction between representation by one who
has never been qualified to practice law and one who was
properly admitted in the first instance but is subsequently
suspended or disbarred.”34 The facts showed that McCroy’s
attorney graduated from an accredited law school, passed
the bar examination, and was admitted to practice law in
Nebraska prior to being disbarred. Because McCroy’s attor-
ney “was properly admitted to practice law in this state in
the first instance and was licensed to do so at the time of
the challenged representation,” we declined to adopt a per se
determination of ineffectiveness even though the attorney was
subsequently disbarred.35
From McCroy, we conclude that the question whether an
attorney has met the substantive requirements for a license to
practice law at any time is at the heart of our consideration
whether to apply a per se determination of ineffectiveness.
This focus on the substantive requirements for a license is
consistent with the decisions of other courts. In considering
whether to adopt a per se rule, the Seventh Circuit has noted
that “the constitutional focus is on whether the federal court
is satisfied that the attorney is competent and has autho-
rized him to practice law.”36 Similarly, the Fifth Circuit has
31
Id. at 715, 613 N.W.2d at 6 (quoting United States v. Mouzin, 785 F.2d 682(9th Cir. 1986)).
32
See id. (discussing Vance v. Lehman, 64 F.3d 119 (3d Cir. 1995)).
33
Id. at 715, 613 N.W.2d at 6 (quoting United States v. Mouzin, supra
note 31).
34
Id. at 717, 613 N.W.2d at 7.
35
Id. at 719, 613 N.W.2d at 8.
36
U.S. v. Williams, 934 F.2d 847, 851 (7th Cir. 1991).
Nebraska Advance Sheets
STATE v. VANDERPOOL 123
Cite as 286 Neb. 111stated that “the key to adequate representation is not technical
license to practice in the jurisdiction involved, but a credential
from some forum demonstrating the specialized knowledge of
a lawyer.”37
[11] The logical implication of placing such focus on sub-
stantive requirements when considering whether to apply a per
se rule is that the failure to meet technical licensing require-
ments does not render an attorney per se ineffective. Courts
have overwhelmingly declined to adopt a per se determination
of ineffectiveness in the case of an attorney who has been sus-
pended or otherwise disciplined for practicing law while tech-
nical defects exist in his or her license.38 Even courts that have
adopted a per se determination of ineffectiveness have limited
their holdings by differentiating technical requirements of the
licensing process from substantive ones.39
[12] Under this prevailing rule, suspension for nonpayment
of dues does not render an attorney’s representation per se
ineffective. The payment of dues is a technical requirement for
a license to practice law and does not reflect on an attorney’s
competence, ability, or legal skill. As the Kansas Supreme
Court stated in Johnson v. State,40 “Although the payment of
the registration fee is a prerequisite to the ethical practice of
law in this state, the payment itself has nothing to do with the
legal ability of the attorney.” Because the payment of dues is
merely a technical requirement for the maintenance of a license
37
U.S. v. Maria-Martinez, 143 F.3d 914, 917 (5th Cir. 1998) (emphasis in
original).
38
See, e.g., U.S. v. Watson, 479 F.3d 607 (8th Cir. 2007); U.S. v. Ross, 338
F.3d 1054 (9th Cir. 2003); U.S. v. Mitchell, 216 F.3d 1126 (D.C. Cir.
2000); Vance v. Lehman, supra note 32; U.S. v. Rosnow, 981 F.2d 970(8th Cir. 1992); U.S. v. Williams, supra note 36; United States v. Mouzin,
supra note 31; United States v. Hoffman, 733 F.2d 596 (9th Cir. 1984); In
re Johnson, supra note 28; People v Pubrat, 451 Mich. 589, 548 N.W.2d
595 (1996); State v. Smith, supra note 30; Com. v. Allen, 48 A.3d 1283 (Pa.
Super. 2012); Cantu v. State, 930 S.W.2d 594 (Tex. Crim. App. 1996).
39
See, e.g., U.S. v. Novak, supra note 26; Solina v. United States, supra
note 25.
40
Johnson v. State, 225 Kan. 458, 465, 590 P.2d 1082, 1087 (1979).
Nebraska Advance Sheets
124 286 NEBRASKA REPORTS
to practice law and Walocha’s nonpayment of dues was the
sole reason that he was suspended at the time he represented
Vanderpool, we decline to adopt a per se determination of inef-
fectiveness. Numerous other courts have specifically addressed
nonpayment of dues and have reached this same conclusion.41
In the words of the Illinois Supreme Court, “To find a defend­
ant’s [S]ixth [A]mendment right to counsel to have been vio-
lated, there must be additional factors above and beyond a
mere suspension for nonpayment of bar dues.”42
Vanderpool attempts to distinguish his case from McCroy.
He argues that unlike the attorney who represented McCroy,
Walocha was “unlicensed in Nebraska at the time of his
representation of [Vanderpool].”43 We are not persuaded.
McCroy focused on whether an attorney had met the substan-
tive requirements to practice law, including completion of
adequate legal education, possession of moral character at
the time of admission, and passage of the bar examination.
Because the attorney in McCroy had fulfilled all of these
requirements, we held that he was not per se ineffective even
though he was later disbarred. In the instant case, these same
relevant facts are present—Walocha was admitted to practice
law in Nebraska in 1994 after meeting all the substantive
requirements. The McCroy holding dictates our resolution of
Vanderpool’s appeal. As explained above, under the distinc-
tion between substantive and technical licensing requirements
41
See, e.g., Kieser v. People of State of New York, 56 F.3d 16 (2d Cir.
1995); Reese v. Peters, 926 F.2d 668 (7th Cir. 1991); Beto v. Barfield,
391 F.2d 275 (5th Cir. 1968); U.S. v. Dumas, 796 F. Supp. 42 (D. Mass.
1992); People v. Medler, 177 Cal. App. 3d 927, 223 Cal. Rptr. 401 (1986);
Dolan v. State, 469 So. 2d 142 (Fla. App. 1985); Cornwell v. Dodd, 270
Ga. 411, 509 S.E.2d 919 (1999); People v. Brigham, 151 Ill. 2d 58, 600
N.E.2d 1178, 175 Ill. Dec. 720 (1992); Johnson v. State, supra note 40;
Commonwealth v. Thomas, 399 Mass. 165, 503 N.E.2d 456 (1987); People
v Brewer, 88 Mich. App. 756, 279 N.W.2d 307 (1979); Jones v. State, 747
S.W.2d 651 (Mo. App. 1988); Com. v. Jones, 829 A.2d 345 (Pa. Super.
2003); Hill v. State, 393 S.W.2d 901 (Tex. Crim. App. 1965).
42
People v. Brigham, supra note 41, 151 Ill. 2d at 71, 600 N.E.2d at 1184-
85, 175 Ill. Dec. at 726-27.
43
Brief for appellant at 10.
Nebraska Advance Sheets
STATE v. SCHANAMAN 125
Cite as 286 Neb. 125established in McCroy, Walocha’s suspension for nonpayment
of dues did not render him per se ineffective.
VI. CONCLUSION
Based on our previous holding in McCroy, we decline to
adopt a per se determination of ineffectiveness based solely
upon the fact that Vanderpool’s attorney was suspended for
nonpayment of dues at the time he represented Vanderpool in
his criminal proceedings. We also find that Vanderpool failed
to show that he was denied the effective assistance of counsel
based on specific aspects of his attorney’s actual performance.
Accordingly, we affirm the judgment of the district court
denying Vanderpool postconviction relief.
Affirmed.
State of Nebraska, appellee, v.
David Schanaman, appellant.
___ N.W.2d ___
Filed June 21, 2013. No. S-12-808.
1. Pleas: Appeal and Error. The right to withdraw a plea previously entered is not
absolute. And, in the absence of an abuse of discretion, refusal to allow a defend­
ant’s withdrawal of a plea will not be disturbed on appeal.
2. Pleas. When a defendant moves to withdraw his or her plea before sentencing, a
court, in its discretion, may grant the motion for any fair and just reason, if such
withdrawal would not substantially prejudice the prosecution.
3. Indictments and Informations: Courts. Neb. Rev. Stat. § 29-1802 (Reissue
2008) does not apply to complaints in county court.
4. Statutes: Judicial Constructions: Legislature: Presumptions. When the
Nebraska Supreme Court has construed a statute in a certain manner and that
construction has not evoked a legislative amendment, it is presumed that the
Legislature has acquiesced in the court’s construction.
Appeal from the District Court for Kimball County, Derek
C. Weimer, Judge, on appeal thereto from the County Court for
Kimball County, Randin Roland, Judge. Judgment of District
Court affirmed.
Todd Morten, of Island & Huff, P.C., L.L.O., for appellant.