State v. Warren

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/09/2022 09:04 AM CST
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. WARREN
Cite as 312 Neb. 991State of Nebraska, appellee, v.
Benjamin J. Warren, appellant.
___ N.W.2d ___
Filed December 2, 2022. No. S-21-1003.
1. Appeal and Error. Where no timely statement of errors is filed in an
appeal from a county court to a district court, appellate review is limited
to plain error.
2. Courts: Appeal and Error. In cases where no statement of errors was
filed, but the record showed that the district court considered an issue
that was also assigned to a higher appellate court, the Nebraska Supreme
Court or the Court of Appeals may consider that issue.
3. Effectiveness of Counsel: Appeal and Error. Appellate review of a
claim of ineffective assistance of counsel is a mixed question of law and
fact. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear
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. Rules of the Supreme Court: Appeal and Error. The purpose of Neb.
Ct. R. § 6‑1518(B) is to specifically direct the attention of the reviewing
court to precisely what error was allegedly committed by the lower court
and to advise the nonappealing party of what is specifically at issue in
the appeal.
5. Records: Appeal and Error. The appellant has the duty to present a
record supporting the assigned errors.
6. Effectiveness of Counsel: Proof. Generally, 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’s defense.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. WARREN
Cite as 312 Neb. 9917. ____: ____. To show prejudice, the defendant must demonstrate a rea-
sonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
Appeal from the District Court for Lancaster County, Ryan
S. Post, Judge, on appeal thereto from the County Court for
Lancaster County, Matthew L. Acton, Judge. Judgment of
District Court affirmed.
Nicholas R. Glasz, of Glasz Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
INTRODUCTION
Following a jury trial in the county court for Lancaster
County, Nebraska, Benjamin J. Warren was convicted of dis-
turbing the peace. Warren’s counsel timely filed an appeal with
the district court for Lancaster County and later filed a bill of
exceptions. However, counsel did not file a statement of errors
within 10 days of filing the bill of exceptions, as is required by
Neb. Ct. R. § 6‑1518(B). As a result, the district court reviewed
Warren’s appeal only for plain error. Finding none, it affirmed
the county court’s judgment. Warren then filed a motion to
reconsider, which the district court denied after considering
counsels’ arguments and the record as to Warren’s beliefs
that he is not guilty and would have been found not guilty
if his proposed witness had testified at trial. Warren appeals.
We affirm.
BACKGROUND
In 2020, Warren was charged with obstructing a peace offi-
cer, disturbing the peace, and second degree criminal trespass.
After trial in the matter, Warren was found guilty of disturb-
ing the peace, but not guilty of the remaining charges. At
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STATE V. WARREN
Cite as 312 Neb. 991sentencing, Warren was ordered to pay a $300 fine and was
given credit for time served.
Following sentencing, Warren’s trial attorney timely filed a
notice of appeal with the district court for Lancaster County. A
motion for substitute counsel was then sustained by the county
court, and a new attorney was appointed to represent Warren.
Counsel caused to be filed a bill of exceptions; however, the
attorney failed to file a statement of errors within 10 days of
filing the bill of exceptions or at any time thereafter.
Warren’s appeal came on for hearing before the district
court on August 24, 2021, at which time, counsel orally moved
to submit the matter to the court on the parties’ briefs, which
included Warren’s initial brief, the State’s answer brief, and
Warren’s reply brief. Warren’s counsel indicated Warren’s
agreement to this, and the court verified Warren’s consent.
Warren said “[y]es” when the court asked him whether submis-
sion on the briefs was “okay.”
Several days later, the district court affirmed the judgment
and sentence of the county court. Because no statement of
errors was timely filed, the district court limited its review to
plain error per State v. Nielsen. 1 It found none.
Warren subsequently sought reconsideration from the dis-
trict court, arguing that he was not guilty of disturbing the
peace and that he would have been found not guilty if his
proposed witness had been called to testify at trial. The motion
for reconsideration also stated that although Warren’s counsel
advised him that testimony by a single witness that his or her
peace was disturbed, if believed beyond a reasonable doubt by
the jury, would suffice to prove guilt, Warren “believes that
this would be considered plain error” under Nielsen.
Simultaneous with the request for reconsideration, the sec-
ond attorney to appear on Warren’s behalf moved to with-
draw. This motion was granted, and yet another attorney was
appointed to represent Warren in the matter.
1
State v. Nielsen, 301 Neb. 88, 917 N.W.2d 159 (2018).
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STATE V. WARREN
Cite as 312 Neb. 991At the hearing on the motion to reconsider, Warren argued
that, on appeal, he received ineffective assistance of counsel
and that he should be allowed to file the statement of errors for
the court to reconsider the appeal.
The district court subsequently overruled Warren’s motion
to reconsider, which it treated as a motion to alter or amend
per DeBose v. State 2 and related cases. The district court spe-
cifically mentioned Warren’s beliefs regarding his guilt and
his proposed witness’ testimony. It indicated that “[o]n each
of these points,” it “considered the arguments of counsel [and]
reviewed the record,” but it denied the motion.
Warren appealed to the Nebraska Court of Appeals, and we
moved the matter to our docket.
ASSIGNMENTS OF ERROR
Warren assigns, restated, that (1) the district court erred in
limiting its review to plain error and (2) counsel was ineffec-
tive in failing to file a statement of errors.
STANDARD OF REVIEW
[1,2] Where no timely statement of errors is filed in an
appeal from a county court to a district court, appellate review
is limited to plain error. 3 In cases where no statement of errors
was filed, but the record showed that the district court consid-
ered an issue that was also assigned to a higher appellate court,
the Nebraska Supreme Court or the Court of Appeals may con-
sider that issue. 4
[3] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. 5 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
2
DeBose v. State, 267 Neb. 116, 672 N.W.2d 426 (2003).
3
Nielsen, supra note 1.
4
Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018).
5
State v. Ellis, 311 Neb. 862, 975 N.W.2d 530 (2022).
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STATE V. WARREN
Cite as 312 Neb. 991error. 6 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, 7 an appellate court
reviews such legal determinations independently of the lower
court’s decision. 8
ANALYSIS
Failure to File Statement of Errors
Warren argues that the district court erred by reviewing his
appeal only for plain error, instead of reviewing the errors
alleged in his briefs. He maintains that the district court should
have considered the errors alleged in the briefs, because the
court “had the matter submitted on [the] briefs.” 9 Warren’s
arguments, however, are inconsistent with the prior decisions
of this court and the record on appeal. As such, they are with-
out merit.
[4] Section 6‑1518(B) prescribes that in an appeal from
the county court to the district court, the appellant shall file
a statement of errors with the district court within 10 days of
filing the bill of exceptions. Such statement shall consist of a
separate, concise statement of each error allegedly made by
the trial court, and each assignment of error shall be separately
numbered and paragraphed. 10 This rule is a longstanding one,
adopted in 1991, 11 and we have recognized that it serves an
important purpose. The purpose of the rule is to specifically
direct the attention of the reviewing court to precisely what
error was allegedly committed by the lower court and to advise
the nonappealing party of what is specifically at issue in the
6
Id.7
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
8
Ellis, supra note 5.
9
Brief for appellant at 7.
10
§ 6‑1518(B).
11
See State v. Hanger, 241 Neb. 812, 491 N.W.2d 55 (1992).
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STATE V. WARREN
Cite as 312 Neb. 991appeal. 12 We and the Court of Appeals have repeatedly held
that where an appellant fails to comply with this rule, appel-
late review is limited to plain error under the standard previ-
ously noted. 13
Warren would have us disregard these precedents and find
that the district court should have considered the errors alleged
in his briefs because the matter was submitted on the briefs.
We decline to adopt such an approach given the facts and cir-
cumstances of this case. The record shows that Warren moved
for the matter to be submitted to the court on briefs. His coun-
sel indicated that he agreed to submission on the briefs, and
the court expressly sought and received his consent to proceed
in this manner. As the party who moved for submission on the
briefs, Warren cannot now rely on the court’s acceptance of
such submission as the basis for asserting that the court should
have considered the arguments in the briefs despite the general
rule that review is limited to plain error when an appellant fails
to file a statement of errors.
Further, the record shows that the district court actually con-
sidered Warren’s beliefs about his guilt and his proposed wit-
ness’ testimony in connection with Warren’s motion for recon-
sideration. The district court limited its review to plain error
under the precedents previously cited when it initially affirmed
the judgment and sentence of the county court. However,
Warren subsequently moved for reconsideration, which the dis-
trict court treated as a motion to alter or amend. 14 At that point,
the district court “considered the arguments of counsel [and]
reviewed the record” as to Warren’s beliefs that he is not guilty
12
See, e.g., State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005); State v.
Zimmerman, 19 Neb. App. 451, 810 N.W.2d 167 (2012).
13
See, e.g., North Star Mut. Ins. Co. v. Stewart, 311 Neb. 33, 970 N.W.2d
461 (2022); Griffin, supra note 12; Zimmerman, supra note 12; State v.
Harper, 19 Neb. App. 93, 800 N.W.2d 683 (2011).
14
Cf. State v. Lotter, 301 Neb. 125, 135, 917 N.W.2d 850, 858 (2018)
(motion for reconsideration is “functional equivalent” of motion to alter or
amend judgment).
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STATE V. WARREN
Cite as 312 Neb. 991of disturbing the peace and that he would have been found not
guilty if his proposed witness testified at trial.
[5] It is not apparent from the record what, if any, other
errors Warren’s briefs may have assigned as to the county court
proceedings. The briefs are not part of the record on appeal.
Additionally, he has not provided any indication of other
alleged errors as to the county court proceedings beyond his
beliefs about his guilt, his proposed witness’ testimony, and his
conviction based on the testimony of one witness. The appel-
lant has the duty to present a record supporting the assigned
errors. 15 Insofar as Warren alleges that the district court erred
in not considering other issues raised in the briefs, he failed to
provide a record supporting such error.
Ineffective Assistance of Counsel
Warren argues that his “trial counsel” was ineffective in
failing to file a statement of errors. 16 He argues that prejudice
to his defense should be presumed because he “was effec-
tively denied his due process right to appeal.” 17 He maintains
that his case is “analogous” to Garza v. Idaho 18 and Roe v.
Flores‑Ortega, 19 two decisions in which the U.S. Supreme
Court found that prejudice is presumed where counsel fails to
file an appeal when requested to do so by the defendant. 20 He
similarly maintains that he received the same type of cursory
review that the concurring opinion in State v. Sundquist 21 sug-
gested may warrant a presumption of prejudice. We disagree.
15
See, e.g., Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566 (2015).
16
Brief for appellant at 7.
17
Id.18
Garza v. Idaho, ___ U.S. ___, 139 S. Ct. 738, 203 L. Ed. 2d 77 (2019).
19
Roe v. Flores‑Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985(2000).
20
Brief for appellant at 8.
21
State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019) (Cassel, J.,
concurring; Miller‑Lerman, J., joins).
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STATE V. WARREN
Cite as 312 Neb. 991[6] Generally, to prevail on a claim of ineffective assist­
ance of counsel under Strickland, 22 the defendant must show
that his or her counsel’s performance was deficient and that
this deficient performance actually prejudiced the defendant’s
defense. 23 In this case, the State concedes that the failure to file
a statement of errors was deficient performance. As such, we,
like Warren, focus on the issue of prejudice.
[7] To show prejudice under Strickland, the defendant gen-
erally must demonstrate a reasonable probability that but for
his or her counsel’s deficient performance, the result of the
proceeding would have been different. 24 However, Strickland
also recognized that “[in] certain Sixth Amendment contexts,
prejudice is presumed.” 25 In these contexts, prejudice is “so
likely that case‑by‑case inquiry into prejudice is not worth
the cost.” 26
Strickland and United States v. Cronic, 27 another ineffective
assistance of counsel opinion issued the same day as Strickland,
recognized three such contexts, involving the “actual or con-
structive denial of the assistance of counsel altogether,” 28 “state
interference with counsel’s assistance,” 29 and “counsel entirely
fail[ing] to subject the prosecution’s case to meaningful adver-
sarial testing.” 30 Subsequent opinions of the U.S. Supreme
Court and this court have also found that a presumption of
prejudice is warranted where the defendant is left completely
22
Strickland, supra note 7.
23
State v. Lessley, ante p. 316, 978 N.W.2d 620 (2022).
24
Id.25
Strickland, supra note 7, 466 U.S. at 692.
26
Id.27
United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657(1984).
28
Strickland, supra note 7, 466 U.S. at 683.
29
Id., 466 U.S. at 692.
30
Cronic, supra note 27, 466 U.S. at 659.
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STATE V. WARREN
Cite as 312 Neb. 991without representation on appeal and where counsel’s failure to
file or perfect an appeal requested by the defendant results in
the forfeiture of the proceeding itself. 31
None of the previously recognized contexts are implicated in
Warren’s case, and his argument that prejudice should nonethe-
less be presumed because he was “effectively denied his due
process right to appeal” 32 is inconsistent with the prior deci-
sions of this and other courts.
For example, in Flores‑Ortega, the U.S. Supreme Court dis-
tinguished “forfeiture of a proceeding itself” from “a judicial
proceeding of disputed reliability” when finding that prejudice
is presumed where counsel fails to file an appeal requested by
the defendant. 33 The Court opined that this was an “unusual”
case and that counsel’s deficient performance deprived the
defendant of “more than a fair judicial proceeding; that defi-
ciency deprived [the defendant] of the appellate proceeding
altogether.” 34 We drew a similar distinction in State v. Trotter 35
when finding that prejudice is presumed where counsel’s fail-
ure to file a proper poverty affidavit resulted in the dismissal of
the defendant’s appeal. We concluded that the attorney’s failure
to perfect the appeal “‘essentially waive[d] [the defendant’s]
opportunity to make a case on the merits.’” 36
Other decisions take a similar approach when discussing
deficiencies in counsel’s performance that did not result in
31
Garza, supra note 18; Flores‑Ortega, supra note 19; Penson v. Ohio, 488
U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); State v. Trotter, 259
Neb. 212, 609 N.W.2d 33 (2000).
32
Brief for appellant at 7.
33
Flores‑Ortega, supra note 19, 528 U.S. at 483.
34
Id. See, also, Penson, supra note 31, 488 U.S. at 88 (“denial of counsel
in this case left petitioner completely without representation during the
appellate court’s actual decisional process. This is quite different” from
case alleging other defects in counsel’s performance).
35
Trotter, supra note 31.
36
Id. at 222, 609 N.W.2d at 40.
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Cite as 312 Neb. 991forfeiture of the proceeding itself. For example, in Cronic, the
U.S. Supreme Court declined to presume prejudice where an
inexperienced attorney, whom the court gave little time to pre-
pare, represented the defendant in a complex mail fraud trial,
because these factors “do not demonstrate that counsel failed
to function in any meaningful sense as the Government’s
adversary.” 37 Similarly, in Bell v. Cone, 38 the U.S. Supreme
Court distinguished failure to oppose the prosecution “through-
out the sentencing proceeding as a whole” from failure to
oppose the prosecution “at specific points” when rejecting a
presumption of prejudice where defendant’s counsel failed to
“‘mount some case for life’” at a capital sentencing hearing.
The defendant in that case argued that by failing to call wit-
nesses at the hearing and waiving closing arguments, his coun-
sel failed to test the prosecution’s case, as contemplated by
Cronic. The Court disagreed, emphasizing that under Cronic,
“the attorney’s failure must be complete.” 39
The Bell Court further explained that “th[e] difference”
between a case where prejudice must be proved and one where
it is presumed is “not of degree but of kind.” 40 Likewise, in
Florida v. Nixon, 41 the Court opined that the presumption
of prejudice represents a “narrow exception” to the general
requirement in Strickland that prejudice must be proved, which
arises “infrequently,” when declining to presume prejudice
where counsel conceded defendant’s guilt without defendant’s
express consent. The defendant in Nixon also argued that
counsel’s failure was a failure to test the prosecution’s case
37
Cronic, supra note 27, 466 U.S. at 666.
38
Bell v. Cone, 535 U.S. 685, 696, 697, 122 S. Ct. 1843, 152 L. Ed. 2d 914(2002).
39
Id., 535 U.S. at 697.
40
Id.41
Florida v. Nixon, 543 U.S. 175, 190, 125 S. Ct. 551, 160 L. Ed. 2d 565(2004).
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Cite as 312 Neb. 991under Cronic. However, the Court again rejected this argument,
because counsel’s failure must be “‘complete.’” 42
Collectively, these cases show why the circumstances
alleged by Warren are not tantamount to being denied an
appeal. Counsel’s failure to file a statement of errors did not
result in forfeiture of the appeal, unlike in Flores‑Ortega and
Trotter. Nor did it result in a complete failure to test the pros-
ecution’s case, like that envisioned in Cronic, Bell, and Nixon.
The record shows that counsel filed briefs and a motion for
reconsideration on Warren’s behalf. It is true that the record
does not establish what arguments counsel made in those
briefs. However, the record does show that counsel advanced
and the district court actually considered Warren’s beliefs that
he is not guilty and that he would have been found not guilty if
his proposed witness had been called at trial.
Warren has not indicated any other assignments of error—
beyond his beliefs about his guilt, his proposed witness’ tes-
timony, and his conviction based on the testimony of one
witness—that he made as to the county court proceedings.
However, even assuming that there were other assigned errors,
any inability to raise them due to counsel’s failure to file a
statement of error would constitute a failure to raise particular
issues, or to oppose the prosecution on specific points, as in
Bell and Nixon. It would not demonstrate a complete failure
under Cronic.
Our earlier decision in State v. Assad 43 illustrates this point.
The defendant in that case also argued that he “‘effectively
received no direct appeal’” where his appellate counsel ini-
tially assigned only errors pertaining to issues that were not
preserved for appellate review. 44 We rejected this argument,
42
Id. See, also, Smith v. Robbins, 528 U.S. 259, 286, 120 S. Ct. 746, 145 L.
Ed. 2d 756 (2000) (distinguishing “denial of counsel altogether on appeal”
from “mere ineffective assistance of counsel”).
43
State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).
44
Id. at 988‑89, 938 N.W.2d at 303.
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STATE V. WARREN
Cite as 312 Neb. 991because the substance of his complaint was that counsel raised
some issues, and not others, and this type of alleged error is
subject to the general requirement in Strickland that prejudice
be proved, rather than a presumption of prejudice. 45 We see no
reason to adopt a different view here.
Warren’s argument that his appeal received the same type of
cursory review that was of concern to the concurring justices in
Sundquist is similarly unavailing. 46 The defendant in Sundquist
also alleged ineffective assistance of counsel based on his
counsel’s failure to file a statement of errors when appealing
a county court criminal case to the district court. However,
the record showed that counsel had actually raised the same
argument regarding the reoffer of a plea agreement that the
defendant advanced on appeal, and the district court considered
the merits of this argument, instead of reviewing only for plain
error. 47 The concurring justices found these factors significant
and suggested that a presumption of prejudice might other-
wise be warranted if “counsel files no statement of errors and
advances no arguments for reversal, which results in a cursory
review by the district court for plain error.” 48
In Warren’s case, however, it cannot be said that counsel
“advance[d] no arguments for reversal,” as contemplated by
the Sundquist concurrence. 49 As we previously observed, the
record on appeal shows that Warren’s counsel filed initial
and reply briefs, as well as a motion for reconsideration. As
such, the facts of this case are not tantamount to the denial
of appellate counsel contemplated by the concurrence in
Sundquist.
45
Assad, supra note 43.
46
See Sundquist, supra note 21 (Cassel, J., concurring; Miller‑Lerman, J.,
joins).
47
Sundquist, supra note 21.
48
Id. at 1025, 921 N.W.2d at 146 (Cassel, J., concurring; Miller‑Lerman, J.,
joins).
49
See id.
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Cite as 312 Neb. 991As to the merits of Warren’s claim of ineffective assistance
of counsel absent a presumption of prejudice, we note that
appellate courts have generally reached ineffective assistance
of counsel claims on direct appeal only in those instances
where it was clear from the record that such claims were with-
out merit or in the rare case where trial counsel’s error was so
egregious and resulted in such a high level of prejudice that
no tactic or strategy could overcome the effect of the error,
which effect was a fundamentally unfair trial. 50 This is not such
a case.
CONCLUSION
Warren’s argument that the district court erred by limiting its
review to plain error is without merit. As to Warren’s argument
that trial counsel was ineffective for failing to file a statement
of errors, the record is insufficient to reach that argument.
Accordingly, the judgment of the district court is affirmed.
Affirmed.
50
State v. Kipple, 310 Neb. 654, 968 N.W.2d 613 (2022).