State v. Anderson

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/12/2020 08:07 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
State of Nebraska, appellee, v.
Melvin Anderson, appellant.
___ N.W.2d ___
Filed May 29, 2020. No. S-19-1038.
1. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
2. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively determine
whether counsel did or did not provide effective assistance and whether
the defendant was or was not prejudiced by counsel’s alleged deficient
performance.
3. Pleas: Waiver. Generally, a voluntary guilty plea or plea of no contest
waives all defenses to a criminal charge.
4. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or
no contest, he or she is limited to challenging whether the plea was
understandingly and voluntarily made and whether it was the result of
ineffective assistance of counsel.
5. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that his or her counsel’s
performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense.
6. Effectiveness of Counsel: Appeal and Error. In reviewing claims of
ineffective assistance of counsel on direct appeal, an appellate court
decides only whether the undisputed facts contained within the record
are sufficient to conclusively determine whether counsel did or did not
provide deficient performance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance.
7. Effectiveness of Counsel: Records: Appeal and Error. The record on
direct appeal is sufficient to review a claim of ineffective assistance of
trial counsel if it establishes either that trial counsel’s performance was
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STATE v. ANDERSON
Cite as 305 Neb. 978
not deficient, that the appellant will not be able to establish prejudice, or
that trial counsel’s actions could not be justified as a part of any plau-
sible trial strategy.
8. Effectiveness of Counsel: Proof. To show that counsel’s performance
was deficient, a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law.
9. ____: ____. To show prejudice in a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding
would have been different.
10. Words and Phrases. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
11. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
tion is based upon a plea of no contest, the prejudice requirement for
an ineffective assistance of counsel claim is satisfied if the defendant
shows a reasonable probability that but for the errors of counsel, the
defendant would have insisted on going to trial rather than pleading
no contest.
12. Preliminary Hearings: Probable Cause. The purpose of a preliminary
hearing is to ascertain whether or not a crime has been committed and
whether or not there is probable cause to believe the accused commit-
ted it; it is not a trial of a person accused to determine his or her guilt
or innocence, but is a procedural safeguard to prevent a person from
being detained in custody without probable cause existing that the crime
charged was committed by that person.
13. Preliminary Hearings: Plea in Abatement. A plea in abatement is used
to challenge the sufficiency of the evidence at a preliminary hearing.
14. Motions to Dismiss: Plea in Abatement. Generally, a motion in the
nature to dismiss is permitted in criminal cases in various forms, includ-
ing a motion to quash and a plea in abatement.
15. Plea in Abatement: Evidence: Probable Cause: Verdicts. In order to
resist a challenge by a plea in abatement, the evidence received by the
committing magistrate need show only that a crime was committed and
that there is probable cause to believe that the accused committed it; the
evidence need not be sufficient to sustain a verdict of guilty beyond a
reasonable doubt.
16. Effectiveness of Counsel. As a matter of law, counsel is not ineffective
for failing to make a meritless objection.
17. Preliminary Hearings: Probable Cause: Witnesses. A full adversarial
hearing in which witnesses are called is not required for a determina-
tion of probable cause in a preliminary hearing under Neb. Rev. Stat.
§ 29-1607 (Reissue 2016).
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STATE v. ANDERSON
Cite as 305 Neb. 978
18. Constitutional Law: Preliminary Hearings: Probable Cause. In an
informal preliminary hearing, it does not violate the Confrontation
Clause to rely on out-of-court statements to determine probable cause
for purposes of continuing a defendant’s pretrial detention.
19. Criminal Law: Depositions: Pretrial Procedure. There is no obliga-
tion for the State to produce the victim or assist in locating the victim
for purposes of a pretrial deposition by defense counsel.
Appeal from the District Court for Lancaster County:
Andrew R. Jacobsen, Judge. Affirmed.
Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
In an appeal from a plea-based conviction, the defendant,
through new counsel, asserts that his plea was the result of
ineffective assistance of trial counsel. The majority of the alle-
gations of deficient conduct revolve around the victim’s failure
to appear at the preliminary hearing and law enforcement’s
inability to serve her with subpoenas for her appearance at the
preliminary hearing and subsequent deposition. The defendant
also argues that trial counsel was ineffective by failing to move
to suppress his inculpatory statement to law enforcement in
relation to the charge of third degree domestic assault to which
he pleaded.
BACKGROUND
Melvin Anderson was originally charged in county court with
strangulation, in violation of Neb. Rev. Stat. § 28-310.01(2)
(Reissue 2016), in relation to events occurring on March 14,
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STATE v. ANDERSON
Cite as 305 Neb. 978
2019. Following a hearing on March 15, the court issued an
order of probable cause and further detention.
The probable cause affidavit described that law enforce-
ment had responded to a call of domestic assault on March
14, 2019. Law enforcement observed red marks on both sides
of the victim’s neck consistent with being choked. The victim
described that while she was at her and Anderson’s apartment,
Anderson grabbed her around the neck with one hand and
held her against the wall for several minutes while threaten-
ing to kill her. She said there were moments when she could
not breathe. The victim’s cousin witnessed the assault and was
able to eventually assist the victim and accompany her out
of the apartment. Law enforcement later contacted Anderson,
who admitted only to grabbing the victim by her coat so that
he could get his wallet and telephone from her. Anderson
described that he grabbed the front of the victim’s coat near
her neck and that it was possible he could have grabbed her
neck with the coat.
On April 25, 2019, trial counsel filed a praecipe for a
subpoena to be served upon the victim, commanding her
appearance at the preliminary hearing scheduled for May
22. The journal entry for the preliminary hearing on May
22 reflects that the court found probable cause and that the
case was bound over to the district court for trial. It does not
describe the court’s reasoning in finding probable cause. The
only witness at the hearing was a law enforcement officer.
The journal entry does not reflect that the victim appeared at
the hearing.
On June 26, 2019, an amended information was filed in
district court charging Anderson with the original count of
strangulation in violation of § 28-310.01(2) and new counts of
tampering with a witness or informant in violation of Neb. Rev.
Stat. § 28-919 (Reissue 2016) and violating a protection order
in violation of Neb. Rev. Stat § 42-924(4) (Cum. Supp. 2018).
The new counts related to events occurring between June 1
and 12. Anderson waived appearance at the arraignment of the
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amended information. There is no record that a preliminary
hearing was held on the amended charges.
A reciprocal discovery order was entered on June 25, 2019,
with depositions to be taken by Anderson within 30 days. A
praecipe for a subpoena was filed on June 25, commanding
the victim to appear as a witness before the district court on
July 16. Records show that the sheriff attempted to serve the
subpoena on July 1, 9, and 12. On July 16, at the request of the
county attorney, the subpoena was returned unserved.
Another subpoena was issued on July 16, 2019, command-
ing the victim to appear as a witness before the district court
on July 22. Records show that the sheriff attempted to serve
the subpoena on July 18, 19, and 22, and it was returned as not
served on July 23.
On August 23, 2019, Anderson entered pleas of no contest
to the State’s second amended information, which then charged
Anderson with one count of third degree domestic assault
in violation of Neb. Rev. Stat. § 28-323(1) and (4) (Reissue
2016), one count of attempted tampering with a witness or
informant in violation of Neb. Rev. Stat. §§ 28-201(4)(e) and
28-919 (Reissue 2016), and one count of violating a protection
order under § 42-924(4).
The factual basis provided by the State asserted that on
March 14, 2019, law enforcement responded to a report of
domestic assault. A protection order had been granted for the
victim against Anderson earlier that day, but had not yet been
served. Anderson went to the victim’s apartment, there was an
argument, and Anderson grabbed the victim by the neck, apply-
ing so much pressure to her neck that there were moments she
was unable to breathe and telling her that he would kill her.
The victim’s cousin was a witness to the assault and was able
to assist the victim in leaving the apartment. Anderson later
indicated to law enforcement that he had an argument with
the victim and admitted to grabbing her coat, but denied stran-
gling her.
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STATE v. ANDERSON
Cite as 305 Neb. 978
While Anderson was in custody for this offense, the victim
received a letter addressed to her from an inmate at the jail
who identified himself as “Lucky Luciano.” The victim did not
open the letter. She knew that “Lucky” was Anderson’s nick-
name. Law enforcement opened the letter, which informed the
victim she should tell the courts that there was no fight and no
choking, that she feels protected and safe around “Lucky,” and
that it was a mistake putting him in jail. The letter directed the
victim to report that she was off her medication and did not
know what she was doing when she made the report. Enclosed
with the letter was a piece of a dreadlock that the victim
believed was from Anderson. There was a protection order in
place when this letter was delivered to the victim.
After an extensive colloquy with Anderson, the court
accepted Anderson’s pleas as voluntarily, freely, knowingly,
and intelligently made, and it found that there was a factual
basis for the pleas. Despite trial counsel’s request to sentence
Anderson immediately, the court ordered a presentence investi-
gation be completed. The State noted that it was trying to reach
the victim in order to obtain a victim impact statement, but that
its last contact with her had been in May 2019.
Once the presentence investigation was completed, the court
proceeded to sentencing. The State noted at the sentencing
hearing that the probation office was able to obtain a victim
impact statement, which was somewhat surprising because the
State had been having difficulty locating her. The State noted
that Anderson “had the benefit of a very generous plea agree-
ment from the State simply because we were having difficulty
finding [the victim] after we tried to subpoena her several
times for a deposition and trying to locate her by mail and
by phone.”
The court sentenced Anderson to imprisonment for 180 days
on count 1, 360 days on count 2, and 360 days on count 3. The
sentences on counts 2 and 3 were ordered to be served concur-
rently to each other and consecutively to count 1.
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305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
Anderson appeals, seeking to set aside his pleas and the
resulting convictions and sentences, as the result of ineffec-
tive assistance of trial counsel. He obtained new counsel for
his appeal.
ASSIGNMENTS OF ERROR
Anderson assigns that trial counsel provided ineffective
assistance by (1) failing to move to continue the plea in abate-
ment, when the subpoena issued by Anderson was not served
on the alleged victim; (2) failing to file a plea in abatement,
because there was insufficient evidence to support a probable
cause finding that Anderson strangled the alleged victim; (3)
failing to move the trial court to require the State to produce
the alleged victim for deposition and exclude the alleged vic-
tim as a witness; (4) failing to move to suppress Anderson’s
statement; and (5) counseling Anderson to enter a plea. We
disregard Anderson’s broad assignment of error that trial coun-
sel provided ineffective assistance of counsel to Anderson in
violation of his Sixth Amendment rights, because assignments
of error on direct appeal regarding ineffective assistance of
trial counsel must specifically allege deficient performance,
and an appellate court will not scour the remainder of the brief
in search of such specificity. 1
STANDARD OF REVIEW
[1] Whether a claim of ineffective assistance of trial counsel
may be determined on direct appeal is a question of law. 2
[2] In reviewing claims of ineffective assistance of counsel
on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. 3
1
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
2
Id.
3
Id.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. ANDERSON
Cite as 305 Neb. 978
ANALYSIS
[3,4] Generally, a voluntary guilty plea or plea of no con-
test waives all defenses to a criminal charge. 4 Thus, when a
defend­ant pleads guilty or no contest, he or she is limited to
challenging whether the plea was understandingly and vol-
untarily made and whether it was the result of ineffective
assistance of counsel. 5 For this direct appeal, Anderson has
obtained counsel different from trial counsel, and he asserts
that his pleas were the result of ineffective assistance of trial
counsel. He does not challenge whether his pleas were other-
wise understandingly and voluntarily made.
[5-7] To prevail on a claim of ineffective assistance of
counsel, the defendant must show that his or her counsel’s
performance was deficient and that this deficient performance
actually prejudiced the defendant’s defense. 6 In reviewing
claims of ineffective assistance of counsel on direct appeal,
an appellate court decides only whether the undisputed facts
contained within the record are sufficient to conclusively
determine whether counsel did or did not provide deficient
performance and whether the defendant was or was not preju-
diced by counsel’s alleged deficient performance. 7 The record
on direct appeal is sufficient to review a claim of ineffective
assistance of trial counsel if it establishes either that trial
counsel’s performance was not deficient, that the appellant
will not be able to establish prejudice, or that trial coun-
sel’s actions could not be justified as a part of any plausible
trial strategy. 8
[8-11] To show that counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal
4
State v. Privett, 303 Neb. 404, 929 N.W.2d 505 (2019).
5
Id.
6
See, Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018).
7
See State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
8
State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).
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STATE v. ANDERSON
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that of a lawyer with ordinary training and skill in criminal
law. 9 To show prejudice, the defendant must demonstrate a
reasonable probability that but for counsel’s deficient per-
formance, the result of the proceeding would have been dif-
ferent. 10 A reasonable probability is a probability sufficient to
undermine confidence in the outcome. 11 When a conviction
is based upon a plea of no contest, the prejudice requirement
for an ineffective assistance of counsel claim is satisfied if the
defendant shows a reasonable probability that but for the errors
of counsel, the defendant would have insisted on going to trial
rather than pleading no contest. 12
Anderson asserts that but for trial counsel’s failure to pur-
sue various pretrial motions pertaining to the victim’s lack
of appearance at the preliminary hearing and the inability to
serve a subpoena upon her, the charges against him would
have been dismissed; therefore, he would not have pleaded no
contest. He also asserts that counsel was deficient by failing to
move in limine to suppress his statements to law enforcement.
Anderson’s assignment of error that counsel was ineffective
in advising him to plead no contest is intertwined with these
assertions because, he argues, it was deficient conduct for
trial counsel to advise him to plead before pursuing the pre-
trial motions.
Preliminary Hearing
Anderson first argues that but for trial counsel’s ineffective
assistance in failing to file a plea in abatement or a motion
to continue at the preliminary hearing, the charges against
him would have been dismissed before he decided to plead
no contest. The undisputed facts contained within the record
are sufficient to conclusively determine that trial counsel was
9
Mrza, supra note 1.
10
Id.
11
Id.
12
See Privett, supra note 4.
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not deficient by failing to file a plea in abatement. Further,
we are able to conclusively determine upon the record that
Anderson will be unable to demonstrate that but for trial coun-
sel’s failure to file another motion to continue the preliminary
hearing, the charges would have been dismissed—the premise
upon which he asserts he would have declined to enter into a
plea bargain agreement with the State. Accordingly, the record
conclusively demonstrates that the allegedly deficient act of
failing to move to continue the preliminary hearing did not
prejudice Anderson.
[12] The purpose of a preliminary hearing is to ascertain
whether or not a crime has been committed and whether or not
there is probable cause to believe the accused committed it. 13 It
is not a trial of a person accused to determine his or her guilt
or innocence, but is a procedural safeguard to prevent a person
from being detained in custody without probable cause existing
that the crime charged was committed by that person. 14
Anderson asserts that the court stated during the preliminary
hearing that it was binding the matter over because Anderson
had admitted he strangled the victim, and he argues that
because the probable cause affidavit did not contain such an
admission, the case would have been dismissed had counsel
filed a plea in abatement on the grounds of lack of probable
cause. With this reasoning, Anderson concludes that trial coun-
sel was ineffective for failing to file a plea in abatement.
[13-15] A plea in abatement is used to challenge the suf-
ficiency of the evidence at a preliminary hearing. 15 It has been
observed that, generally, a motion in the nature to dismiss
is permitted in criminal cases in various forms, including a
motion to quash and a plea in abatement. 16 In order to resist
a challenge by a plea in abatement, the evidence received by
13
State v. Hill, 255 Neb. 173, 583 N.W.2d 20 (1998).
14
Id.
15
State v. Lasu, 278 Neb. 180, 768 N.W.2d 447 (2009).
16
See State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453 (2017).
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STATE v. ANDERSON
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the committing magistrate need show only that a crime was
committed and that there is probable cause to believe that the
accused committed it. 17 The evidence need not be sufficient to
sustain a verdict of guilty beyond a reasonable doubt. 18
Anderson acknowledges that the county court’s alleged state-
ment as to its reasoning in concluding there was probable cause
is not in the record, because the preliminary hearing was not
preserved. He does not assert that trial counsel was ineffective
in failing to insist that the preliminary hearing be part of the
record. In any event, whatever was said by the county court
at the preliminary hearing, the undisputed facts of the record
affirmatively demonstrate there was probable cause to show
that a crime was committed and that Anderson com­mitted it.
At the time of the preliminary hearing, Anderson had not yet
sent the letter from “Lucky,” and his allegations of ineffective
assistance of trial counsel at the preliminary hearing appear
limited to count 1, strangulation, which was reduced to third
degree domestic assault pursuant to the plea bargain agreement.
The affidavit of probable cause described that law enforce-
ment had observed red marks on both sides of the victim’s
neck consistent with being choked and that the victim reported
Anderson had grabbed her around the neck with one hand and
held her against the wall for several minutes while threatening
to kill her. She told law enforcement there were moments when
she could not breathe.
[16] The affidavit provided sufficient evidence to support
the court’s finding of probable cause. A plea in abatement, had
it been made, would have lacked merit. And, as a matter of
law, counsel is not ineffective for failing to make a meritless
objection. 19
Anderson also asserts that trial counsel was ineffective for
failing to move to continue the preliminary hearing, because
17
Id.
18
See id.
19
See State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).
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STATE v. ANDERSON
Cite as 305 Neb. 978
the victim did not appear at the hearing despite the issuance of
a subpoena. We observe that trial counsel moved to continue
the preliminary hearing, albeit not before issuing a summons
for the victim’s appearance. Anderson articulates his argument
as follows:
Rather than moving to continue the hearing in order to
obtain [the victim’s] presence and testimony, Anderson’s
counsel allowed the matter to proceed through the pre-
liminary hearing denying Anderson the right to confront
[the victim] at the first opportunity which could have
produced the first opportunity to have the case dismissed
by the Court. 20
In his summary of the arguments, Anderson also argues that
trial counsel’s failure to move to continue the preliminary hear-
ing “theoretically waived Anderson’s ability to use the Court’s
power to enforce the subpoena regarding [the victim’s] refusal
to appear if she had been served.” 21
[17,18] Anderson’s reliance on the right to confrontation
under these facts is misplaced. A full adversarial hearing in
which witnesses are called is not required for a determination
of probable cause in a preliminary hearing under Neb. Rev.
Stat. § 29-1607 (Reissue 2016). 22 In an informal preliminary
hearing, it does not violate the Confrontation Clause to rely on
out-of-court statements to determine probable cause for pur-
poses of continuing a defendant’s pretrial detention. 23
Nor is it clear how trial counsel’s inability to cross-examine
the victim at the preliminary hearing could have resulted in
the dismissal of the strangulation charge. Even if trial counsel
could have obtained another continuance and the victim would
20
Brief for appellant at 20.
21
Id. at 15.
22
See, Neb. Rev. Stat. § 27-1101 (Reissue 2016); State v. Wilkinson, 219
Neb. 685, 365 N.W.2d 478 (1985); Daniel A. Morris, Nebraska Trials
§ 4:11 (2019).
23
See Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975).
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have eventually appeared and been cross-examined at the pre-
liminary hearing, Anderson does not argue that she would have
recanted her report to law enforcement. Nor would it follow
that the court would have dismissed the case if she had. There
was a witness to the strangulation, and law enforcement had
observed the victim’s injuries.
As already stated, with or without the victim’s testimony,
there was probable cause to conclude that a crime was com-
mitted. The record, accordingly, conclusively demonstrates that
Anderson would be unable, in an evidentiary hearing, to prove
the strangulation charge would have been dismissed if trial
counsel had moved to continue the preliminary hearing. The
undisputed facts in the record demonstrate that Anderson was
not prejudiced by an alleged failure to obtain dismissal because
of trial counsel’s failure to move to continue the prelimi-
nary hearing.
As for any argument that the failure to move to continue the
preliminary hearing prejudiced Anderson because he thereby
waived his ability to move for an order compelling the State
to produce the victim for a pretrial deposition, as explained in
the next section, a motion for an order compelling the State to
produce the victim would have lacked merit. Trial counsel’s
alleged waiver of a nonexistent right could not have preju-
diced Anderson.
Alleged Unavailability
of Victim
Anderson asserts trial counsel was ineffective by failing to
move for a court order that the State produce the victim or
otherwise assist in making the victim available for the deposi-
tion ordered by the court pursuant to Neb. Rev. Stat. § 29-1917
(Reissue 2016) and for which a subpoena under Neb. Rev. Stat.
§ 25-1223 (Cum. Supp. 2018) had been issued at trial counsel’s
request. In conjunction with this allegation, Anderson asserts
that his trial counsel was ineffective by failing to move to sup-
press the victim’s testimony.
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STATE v. ANDERSON
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According to Anderson, if trial counsel had made a request
that the State produce the victim or assist in locating her and
the request had been granted, and if the State had thereafter
acted in bad faith by failing to comply with the order, then
trial counsel could have requested that the victim’s testimony
be excluded as a sanction against the State. Anderson asserts
that if this had been done, the court would have granted such
a motion and he would have insisted on going to trial. Again,
these allegations appear limited to the charge of strangulation
that was reduced to third degree domestic assault under the
plea bargain agreement.
[19] The long chain of hypothetical variables in this allega-
tion of ineffective assistance of counsel is not amenable to
evidentiary proof. Most notably, it fails at its first premise. As
Anderson admits, there is no obligation for the State to pro-
duce the victim or assist in locating the victim for purposes
of a pretrial deposition by defense counsel. There would have
been no merit to a motion for a court order compelling the
State to produce the victim or otherwise assist in making the
victim available for the court-ordered deposition. As a matter
of law, counsel is not ineffective for failing to make a meritless
objection. 24 Because there is no merit to Anderson’s assertion
that trial counsel was ineffective for failing to move to compel
the State in this manner, it follows that there is no merit to his
assertion that trial counsel was ineffective for failing to move
to suppress the victim’s testimony, under the hypothetical that
had such motion been made and granted, the State would have
acted in bad faith.
We also note that while there generally are remedies for
the State’s fault or bad faith, Anderson does not assert that the
State was concealing access to exculpatory evidence in any
sort of a violation of Brady v. Maryland. 25 He does not assert
that the victim’s testimony would be exculpatory. Nor does he
24
See State v. Schwaderer, supra note 19.
25
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
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assert that the State was concealing the victim’s whereabouts.
Indeed, the record indicates that the State had been unable to
contact her despite its attempts to do so. The allegation that
the State somehow would have acted in bad faith if there had
been an order to supply the victim for the deposition is entirely
too speculative to be susceptible to proof at an evidentiary
hearing. Prejudice for purposes of ineffective assistance of
counsel cannot be founded on hypothetical bad acts that did
not occur but allegedly would have occurred had counsel not
acted deficiently.
We are able to conclusively determine on the record that
counsel was not ineffective for failing to move the court to
compel the State to produce the victim or assist in locating her
so that she could be deposed by trial counsel.
Anderson’s Statement to
Law Enforcement
Lastly, Anderson argues that trial counsel was ineffective for
failing to move to suppress his statement to law enforcement
as involuntarily made. Anderson asserts that he was heav-
ily medicated and therefore unable to understandably waive
his Miranda rights when he made the statement. Anderson
does not assert that any statements are at issue other than
those described in the affidavit in support of probable cause.
According to that report, Anderson specifically denied that he
had strangled the victim. Anderson admitted only that he “did
grab the victim by her coat” so that he could get his wallet and
telephone from her.
Anderson describes this as a “confession.” 26 It clearly was
not a confession to the original charge of strangulation, but
perhaps could be described as such in relation to the charge of
third degree domestic assault to which he pleaded. It cannot
be determined on the appellate record whether this “confes-
sion” was voluntarily made, and thus, we cannot determine on
26
Brief for appellant at 20.
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this record whether a motion to suppress the statement would
have had any merit. Neither does the record affirmatively dis-
prove Anderson’s assertion that if the statement would have
been suppressed, he would not have pleaded no contest to the
charge of third degree domestic assault. Therefore, we do not
resolve on direct appeal the merits of this allegation of ineffec-
tive assistance.
CONCLUSION
For the foregoing reasons, we affirm the judgment below.
Affirmed.