State v. Davis

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/15/2022 09:05 AM CST
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. DAVIS
Cite as 31 Neb. App. 445State of Nebraska, appellee, v.
Durelle J. Davis, appellant.
___ N.W.2d ___
Filed November 8, 2022. No. A-22-056.
1. Right to Counsel: Appeal and Error. A trial court’s decision to sus-
tain or overrule a defendant’s motion to dismiss appointed counsel and
appoint substitute counsel is reviewed for an abuse of discretion.
2. Effectiveness of Counsel: Pleas: Waiver. A voluntary guilty plea or
plea of no contest generally waives all defenses to a criminal charge;
thus, when a defendant pleads guilty or no contest, he or she is lim-
ited to challenging whether the plea was understandingly and volun-
tarily made and whether it was the result of ineffective assistance of
counsel.
3. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
4. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the claim
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
5. 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 effective assistance and whether the defendant was or
was not prejudiced by counsel’s alleged deficient performance.
6. Pleas: Waiver. A voluntary guilty plea or plea of no contest waives all
defenses to a criminal charge.
7. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or no
contest, the defendant is limited to challenging whether the plea was
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Nebraska Court of Appeals Advance Sheets
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STATE V. DAVIS
Cite as 31 Neb. App. 445understandingly and voluntarily made and whether it was the result of
ineffective assistance of counsel.
8. Sentences: Appeal and Error. When sentences imposed within statu-
tory limits are alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering well-established factors and any applicable legal principles.
9. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense and (8) the violence involved in the
commission of the crime.
10. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
11. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant must raise on direct appeal any issue of trial counsel’s ineffective
performance which is known to the defendant or is apparent from the
record; otherwise, the ineffective assistance of trial counsel issue will
be procedurally barred.
12. Effectiveness of Counsel: Records: Appeal and Error. Once raised,
an appellate court will determine whether the record on appeal is suf-
ficient to review the merits of the ineffective performance claims. The
record is sufficient if it establishes either that trial counsel’s perform­
ance was not deficient, that the appellant will not be able to establish
prejudice as a matter of law, or that trial counsel’s actions could not be
justified as a part of any plausible trial strategy. Conversely, an ineffec-
tive assistance of counsel claim will not be addressed on direct appeal if
it requires an evidentiary hearing.
13. Effectiveness of Counsel: Postconviction: Appeal and Error. The
necessary specificity of allegations of ineffective assistance of trial
counsel on direct appeal for purposes of avoiding waiver requires, at a
minimum, allegations of deficient performance described with enough
particularity for an appellate court to make a determination of whether
the claim can be decided upon the trial record and also for a district
court later reviewing a potential petition for postconviction relief to
be able to recognize whether the claim was brought before the appel-
late court.
14. Effectiveness of Counsel: Appeal and Error. Assignments of error
on direct appeal regarding ineffective assistance of trial counsel must
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. DAVIS
Cite as 31 Neb. App. 445specifically allege deficient performance, and an appellate court will not
scour the remainder of the brief in search of such specificity.
15. Effectiveness of Counsel: Proof: Appeal and Error. When a claim
of ineffective assistance of trial counsel is raised in a direct appeal, the
appellant is not required to allege prejudice; however, an appellant must
make specific allegations of the conduct that he or she claims constitutes
deficient performance by trial counsel.
16. ____: ____: ____. General allegations that trial counsel performed defi-
ciently or that trial counsel was ineffective are insufficient to raise an
ineffective assistance claim on direct appeal.
17. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. In order to know whether the record is insufficient to address
assertions on direct appeal that trial counsel was ineffective, appellate
counsel must assign and argue deficiency with enough particularity (1)
for an appellate court to make a determination of whether the claim can
be decided upon the trial record and (2) for a district court later review-
ing a petition for postconviction relief to be able to recognize whether
the claim was brought before the appellate court.
18. Effectiveness of Counsel: Records: Appeal and Error. An ineffective
assistance of counsel claim made on direct appeal can be found to be
without merit if the record establishes that trial counsel’s performance
was not deficient or that the appellant could not establish prejudice.
19. Effectiveness of Counsel: Speedy Trial. When a defendant alleges he
or she was prejudiced by trial counsel’s failure to properly assert the
defendant’s speedy trial rights, the court must consider the merits of the
defendant’s speedy trial rights under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
20. Speedy Trial. To calculate the deadline for trial for speedy trial pur-
poses, a court must exclude the day the State filed the information,
count forward 6 months, back up 1 day, and then add any time excluded
under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).
Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
Joe Nigro, Lancaster County Public Defender, and Brittani
E. Lewit for appellant.
Douglas J. Peterson, Attorney General, and George C. Welch
for appellee.
Pirtle, Chief Judge, and Bishop and Welch, Judges.
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Nebraska Court of Appeals Advance Sheets
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STATE V. DAVIS
Cite as 31 Neb. App. 445Welch, Judge.
I. INTRODUCTION
Durelle J. Davis appeals his plea-based convictions of third
degree domestic assault on a pregnant woman and second
degree domestic assault. On appeal, Davis contends that the
district court erred in overruling his requests for the appoint-
ment of new counsel due to the deterioration of the attorney-
client relationship; that the sentences imposed were exces-
sive; and that his trial counsel was ineffective for failing to
effectively communicate with him, for withholding from the
court mitigating information which may have helped secure
his release or dismissal of the case, for requesting a continu-
ance over Davis’ objection, and for filing a pretrial motion on
Davis’ behalf which delayed his right to a speedy trial. For
the reasons set forth herein, we affirm.
II. STATEMENT OF FACTS
In June 2021, Davis was charged with third degree domestic
assault on a pregnant woman, second degree assault, use of a
deadly weapon to commit a felony, and tampering with a wit-
ness or informant. Pursuant to a plea agreement, Davis pled no
contest to third degree domestic assault on a pregnant woman
and second degree domestic assault, both Class IIIA felonies.
Also as part of the plea agreement, the State agreed not to
charge Davis as a habitual criminal.
The State provided the following factual basis: On March
19, 2021, police officers responded to a hospital based upon
the report of the assault of a female victim. Upon arrival, offi-
cers observed significant bruising on the victim’s face near
both of her eyes. The victim reported she was 27 weeks preg-
nant and had been staying at a local hotel to hide from Davis,
whom she identified as her boyfriend. The victim indicated
that on March 18, into the early morning hours of March 19,
Davis was staying with her when he became upset and struck
her eye and cheek with his fist. The victim reported that
Davis then used the handle of a metal baseball bat and hit her
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STATE V. DAVIS
Cite as 31 Neb. App. 445in the right forearm, right elbow, right hip, and lower right leg
area. Officers observed bruising and swelling consistent with
the victim’s report. The victim also had an older-appearing
bruise on her right eye, which bruise the victim reported
occurred during a prior incident, and a large bruise on the left
side of her forehead, which bruise she reported occurred dur-
ing an incident on March 6.
On March 6, 2021, officers had been dispatched after receiv-
ing a report that a pregnant woman was being assaulted. The
reporting witness stated that he heard the victim screaming,
heard Davis making threats to kill the victim, observed Davis
stomping on the victim’s head while the victim was on the
ground, and observed Davis pick up the victim and slam her
head into the side of a vehicle. The witness gave officers a
description of the victim, who had left the area prior to the
officers’ arrival, and the witness reported overhearing the vic-
tim and Davis making comments about the victim’s being
pregnant. Thereafter, when officers contacted Davis regarding
the incident, he stated that the victim had been assaulted by
another party.
After accepting Davis’ pleas on the facts set out above, the
matter was set for sentencing. During the sentencing hearing,
following the court’s statement that it had reviewed the presen-
tence investigation report and statements by counsel and Davis,
the district court stated:
So, you have a lengthy criminal history for somebody
your age.
Your [level of service/case management inventory]
score is 39, which is probably the highest that I have seen.
The underlying assaults in this case, as they were
described, are vicious. It isn’t just the victim’s statement.
The attack was corroborated by at least . . . two eye
witnesses.
You don’t show any remorse at all, sir, for this behavior.
You did receive the benefit of a very favorable plea
agreement.
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STATE V. DAVIS
Cite as 31 Neb. App. 445I do think that a period of incarceration is necessary.
Probation is not an option.
Having regard for the nature and circumstances of the
crime and the history, character and condition of [Davis],
imprisonment is necessary for the protection of the pub-
lic because I think the risk is substantial that during any
period of probation . . . Davis would engage in addi-
tional criminal conduct. A lesser sentence would depreci-
ate the seriousness of the crime and promote disrespect
for the law.
The court sentenced Davis to 3 years’ imprisonment and 18
months’ post-release supervision on each conviction, ordered
the sentences to run consecutively, and awarded Davis credit
for 275 days served. Davis now appeals from his convictions
and sentences.
III. ASSIGNMENTS OF ERROR
Davis contends that (1) the district court erred in overrul-
ing his requests for new appointed counsel despite the dete-
rioration of the attorney-client relationship; (2) the sentences
imposed were excessive; and (3) he received ineffective assist­
ance of counsel when trial counsel (a) did not effectively com-
municate with him, (b) withheld information from the court
that may have helped secure Davis’ release from custody or
dismissal of the case, (c) requested a continuance of the jury
trial despite Davis’ objection, and (d) filed pretrial motions
that Davis did not request and did not want filed, delaying his
right to a speedy trial.
IV. STANDARD OF REVIEW
[1] A trial court’s decision to sustain or overrule a defend­
ant’s motion to dismiss appointed counsel and appoint sub-
stitute counsel is reviewed for an abuse of discretion. State v.
Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).
[2] A voluntary guilty plea or plea of no contest gener-
ally waives all defenses to a criminal charge; thus, when a
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Nebraska Court of Appeals Advance Sheets
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STATE V. DAVIS
Cite as 31 Neb. App. 445defendant pleads guilty or no contest, he or she is limited to
challenging whether the plea was understandingly and volun-
tarily made and whether it was the result of ineffective assist­
ance of counsel. State v. Blake, 310 Neb. 769, 969 N.W.2d
399 (2022).
[3] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. State v. Morton, 310 Neb. 355, 966 N.W.2d
57 (2021).
[4,5] Whether a claim of ineffective assistance of trial coun-
sel can be determined on direct appeal presents a question of
law, which turns upon the sufficiency of the record to address
the claim without an evidentiary hearing or whether the claim
rests solely on the interpretation of a statute or constitutional
requirement. State v. Drake, 311 Neb. 219, 971 N.W.2d 759(2022). 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. Id.V. ANALYSIS
1. Failure to Appoint Replacement Counsel
First, Davis alleges that he “was denied the right to effective
assistance of counsel . . . [b]ecause the District Court erred
in overruling [his] requests for new court appointed counsel
despite the deterioration of the attorney-client relationship.”
Although Davis frames his argument as an ineffective assist­
ance of counsel claim, given the specific language of the
assignment of error, we consider this alleged error as a chal-
lenge to the court’s denial of Davis’ request to dismiss counsel
and appoint replacement counsel.
[6,7] However, as the Nebraska Supreme Court noted in
State v. Thomas, 311 Neb. 989, 996, 977 N.W.2d 258, 266
(2022):
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. DAVIS
Cite as 31 Neb. App. 445A voluntary guilty plea or plea of no contest waives all
defenses to a criminal charge. State v. Jaeger[, 311 Neb.]
69, 970 N.W.2d 751 (2022). When a defendant pleads
guilty or no contest, the defendant is limited to challeng-
ing whether the plea was understandingly and volun-
tarily made and whether it was the result of ineffective
assistance of counsel Id. [The defendant’s] challenges to
the district court’s rulings with respect to his motions to
discharge his trial counsel do not fall into these limited
categories. They have therefore been waived, and we will
not address their merits.
Here, Davis entered pleas of no contest, and in doing so, he
has waived any challenges to the district court’s rulings regard-
ing his requests to dismiss trial counsel and appoint replace-
ment counsel. Accordingly, this assigned error has been waived
and we decline to consider it.
2. Excessive Sentences
Davis next contends that the district court abused its discre-
tion in imposing excessive sentences.
Here, Davis was convicted of third degree domestic assault
on a pregnant woman and second degree domestic assault,
both Class IIIA felonies. See, Neb. Rev. Stat. § 28-115 (Cum.
Supp. 2020) (criminal offense against a pregnant woman;
enhanced penalty); Neb. Rev. Stat. § 28-323 (Reissue 2016)
(domestic assault; penalties). Class IIIA felonies are punish-
able by a minimum of no imprisonment and a maximum of 3
years’ imprisonment followed by 9 to 18 months’ post-release
supervision and/or a $10,000 fine. Neb. Rev. Stat. § 28-105(Cum. Supp. 2020). Davis was sentenced to 3 years’ impris-
onment followed by 18 months’ post-release supervision on
each count.
[8-10] When sentences imposed within statutory limits are
alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering well-established factors and any applicable
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STATE V. DAVIS
Cite as 31 Neb. App. 445legal principles. State v. Blake, 310 Neb. 769, 969 N.W.2d
399 (2022). When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of
the offense and (8) the violence involved in the commission
of the crime. State v. Lierman, 305 Neb. 289, 940 N.W.2d
529 (2020). The appropriateness of a sentence is necessarily
a subjective judgment and includes the sentencing judge’s
observation of the defendant’s demeanor and attitude and
all the facts and circumstances surrounding the defendant’s
life. Id.At the time the presentence investigation report was pre-
pared, Davis was 35 years old with a 10th-grade education,
was unemployed, and had two dependents. Davis had an exten-
sive criminal history, including seven convictions for failing
to appear, three convictions each for third degree domestic
assault and violation of a protection order, and two convic-
tions each of providing false information and possession of a
controlled substance. He also had convictions for assault and
battery, domestic violence assault, felony terroristic threats,
operating during suspension, destruction of property under
$100, disorderly conduct, disturbing the peace, making false
statements to police, possession of methamphetamine with
intent to distribute (less than 10 grams), carrying a concealed
weapon, disturbing the peace by fighting, possession of mari-
juana less than 1 ounce, and numerous traffic and other minor
violations. One of Davis’ convictions resulted in Davis’ being
placed on probation, which was later revoked.
The level of service/case management inventory assessed
that Davis was in the very high risk range to reoffend, that no
areas of strength were identified during the assessment, and
that Davis’ score on the “Domestic Violence Matrix” assess-
ment indicated he was a high risk due to the nature of the pres-
ent assault.
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STATE V. DAVIS
Cite as 31 Neb. App. 445Based upon the record, the district court considered the
appropriate sentencing factors. Further, as it relates to those
factors, including that the sentences imposed were within the
relevant statutory sentencing ranges, the benefit Davis received
from his plea agreement, Davis’ criminal history, and Davis’
being in the very high or high risk range to reoffend, we find
the district court did not abuse its discretion in considering the
relevant factors and imposing the sentences. This assignment
of error fails.
3. Ineffective Assistance
of Counsel
Davis’ final assignment of error is that his trial counsel
was ineffective. Specifically, Davis asserts that he was denied
effective assistance of counsel when trial counsel (a) did not
effectively communicate with him, (b) withheld information
from the court that may have helped secure Davis’ release from
custody or dismissal of the case, (c) requested a continuance
of the jury trial despite Davis’ objection, and (d) filed pretrial
motions that Davis did not request and did not want filed,
delaying his right to a speedy trial.
[11-14] Recently, in State v. Drake, 311 Neb. 219, 236-37,
971 N.W.2d 759, 774 (2022), the Nebraska Supreme Court set
forth the directives that must be followed when addressing an
ineffective assistance of counsel on direct appeal:
When a defendant’s trial counsel is different from his
or her counsel on direct appeal, the defendant must raise
on direct appeal any issue of trial counsel’s ineffective
performance which is known to the defendant or is appar-
ent from the record; otherwise, the ineffective assistance
of trial counsel issue will be procedurally barred.
Once raised, an appellate court will determine whether
the record on appeal is sufficient to review the merits of
the ineffective performance claims. The record is suffi-
cient if it establishes either that trial counsel’s perform­
ance was not deficient, that the appellant will not be able
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STATE V. DAVIS
Cite as 31 Neb. App. 445to establish prejudice as a matter of law, or that trial coun-
sel’s actions could not be justified as a part of any plau-
sible trial strategy. Conversely, an ineffective assist­ance
of counsel claim will not be addressed on direct appeal if
it requires an evidentiary hearing.
The necessary specificity of allegations of ineffective
assistance of trial counsel on direct appeal for purposes
of avoiding waiver requires, at a minimum, allegations
of deficient performance described with enough particu-
larity for an appellate court to make a determination of
whether the claim can be decided upon the trial record
and also for a district court later reviewing a potential
petition for postconviction relief to be able to recog-
nize whether the claim was brought before an appellate
court. Assignments of error on direct appeal regard-
ing ineffective assistance of trial counsel must specifi-
cally allege deficient performance, and an appellate court
will not scour the remainder of the brief in search of
such specificity.
[15-18] When a claim of ineffective assistance of trial coun-
sel is raised in a direct appeal, the appellant is not required
to allege prejudice; however, an appellant must make specific
allegations of the conduct that he or she claims constitutes
deficient performance by trial counsel. State v. Devers, 306
Neb. 429, 945 N.W.2d 470 (2020). General allegations that
trial counsel performed deficiently or that trial counsel was
ineffective are insufficient to raise an ineffective assistance
claim on direct appeal. State v. Weathers, 304 Neb. 402, 935
N.W.2d 185 (2019). In order to know whether the record is
insufficient to address assertions on direct appeal that trial
counsel was ineffective, appellate counsel must assign and
argue deficiency with enough particularity (1) for an appel-
late court to make a determination of whether the claim
can be decided upon the trial record and (2) for a district
court later reviewing a petition for postconviction relief to be
able to recognize whether the claim was brought before the
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Nebraska Court of Appeals Advance Sheets
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STATE V. DAVIS
Cite as 31 Neb. App. 445appellate court. State v. Devers, supra. An ineffective assist­
ance of counsel claim made on direct appeal can be found to
be without merit if the record establishes that trial counsel’s
performance was not deficient or that the appellant could not
establish prejudice. State v. Weathers, supra.(a) Failure to Communicate Effectively
Davis assigns as error that trial counsel was ineffective
because she “did not effectively communicate with him.”
Davis expounds on this claim in the argument section of his
brief by specifically arguing that his trial counsel failed to
disclose the victim’s contact with trial counsel’s office during
which the victim disclosed that she was not going to cooperate
with the State and was not going to attend court.
However, as this court noted in State v. Santos Romero, ante
p. 14, 19-20, 974 N.W.2d 624, 628-29 (2022):
Assignments of error on direct appeal regarding inef-
fective 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. State v. Mrza, 302 Neb. 931, 926 N.W.2d
79 (2019). The Supreme Court has found that an error
assigning that trial counsel was ineffective in “‘fail[ing]
to adequately investigate [the defendant’s] defenses’”
lacked the specificity we demand on direct appeal. Id.
at 935, 926 N.W.2d at 86. Likewise, the Supreme Court
recently held that an error assigning that trial counsel was
ineffective in “‘Failing to Investigate the Case Fully’”
lacked the requisite specificity as to what component of
investigation counsel was allegedly deficient in failing to
conduct. State v. Wood, 310 Neb. 391, 436, 966 N.W.2d
825, 858 (2021).
Similarly, here, Davis’ assignment of error lacks sufficient
specificity regarding how trial counsel “did not effectively
communicate with him.” Accordingly, this assigned error has
not been sufficiently pled.
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Cite as 31 Neb. App. 445(b) Withholding Information
Davis next alleges that he was denied effective assistance
of counsel because trial counsel “withheld information from
the Court that may have helped secure his release from cus-
tody or dismissal of the case.” Again, Davis expounds upon
this assigned error in his argument by specifically arguing
that his trial counsel failed to disclose the victim’s commu-
nication to counsel’s office. However, similar to his claim
raised in the preceding section of this opinion, Davis’ assigned
error lacks sufficient specificity regarding what information
Davis contends counsel should have provided to the court.
Accordingly, this assignment of error has not been pled with
sufficient specificity.
(c) Continuance and Pretrial Motions
We consolidate the analysis of Davis’ final two claims of
ineffective assistance of counsel, i.e., that his trial counsel
was ineffective because trial counsel “requested that [Davis’]
jury trial be continued despite [Davis’] objection” and “filed
pretrial motions [Davis] did not request and did not want filed,
thus delaying his right to a speedy trial.”
[19,20] When a defendant alleges that he or she was
prejudiced by trial counsel’s failure to properly assert the
defend­ant’s speedy trial rights, the court must consider the
merits of the defendant’s speedy trial rights under Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). State v. Collins, 299 Neb. 160, 907 N.W.2d 721(2018). To calculate the deadline for trial for speedy trial
purposes, a court must exclude the day the State filed the
information, count forward 6 months, back up 1 day, and then
add any time excluded under Neb. Rev. Stat. § 29-1207(4)
(Reissue 2016). See State v. Collins, supra.Here, the information was filed on June 10, 2021. Therefore,
the speedy trial deadline, before adding any excluded time, was
December 10. Thus, at the time Davis entered his pleas of no
contest on September 29, the State still had just over 2 months
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Cite as 31 Neb. App. 445to bring Davis to trial, even excluding any continuances or
motions filed by trial counsel that would have extended that
time. Accordingly, since Davis entered his pleas of no con-
test prior to the expiration of the speedy trial clock excluding
any continuances for motions or requests by trial counsel, the
record refutes his claims and trial counsel was not ineffective
in filing the complained of motions and requests to continue
the trial. Cf. State v. Collins, supra (in appeal of denial of post-
conviction relief, Nebraska Supreme Court held that because
deadline for speedy trial purposes had not run, defense counsel
could not have been ineffective for failing to file motion to
discharge on speedy trial grounds). These claims of ineffective
assistance of trial counsel fail.
VI. CONCLUSION
Having considered and found that Davis’ assigned errors
fail, we affirm his convictions and sentences.
Affirmed.
Bishop, Judge, concurring.
Other than the majority’s handling of two of Davis’ ineffec-
tive assistance of trial counsel claims—failing to communicate
effectively and withholding information from the trial court—
I concur in all other respects with the opinion. However, the
majority’s application of State v. Mrza, 302 Neb. 931, 926
N.W.2d 79 (2019), to find these two assignments of error to
be insufficiently stated for this court to address the claims is
construing Mrza to place more emphasis on form over sub-
stance than I read Mrza to intend. The majority’s decision
simply pushes these claims down the road for consideration
under an ineffective assistance of appellate counsel claim
potentially raised in a postconviction action. I would dispose
of them here.
The majority concludes that two of Davis’ claims of ineffec-
tive assistance of trial counsel were not sufficiently expounded
upon in the assignment of errors section of the brief: that trial
counsel “did not effectively communicate with [Davis],” and
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Cite as 31 Neb. App. 445that trial counsel “withheld information from the Court that
may have helped secure [Davis’] release from custody or dis-
missal of the case.”
Regarding the claim related to trial counsel not effectively
communicating with Davis, the majority acknowledges:
Davis expounds on this claim in the argument section
of his brief by specifically arguing that his trial counsel
failed to disclose the victim’s contact with trial counsel’s
office during which the victim disclosed that she was not
going to cooperate with the State and was not going to
attend court.
Although not addressed by the majority, Davis further argues
in his brief that trial counsel “‘acted as if that never happened
before, like I made it up,’” and then trial counsel sent him a
letter indicating that trial counsel’s staff “‘didn’t remember
such a thing.’” Brief for appellant at 21. Davis further suggests
that “whether the alleged victim will be called to testify and to
what [he or she] will testify is an important factor for criminal
defendants to consider when deciding how to proceed.” Id. at
22. Davis argues that “[l]ack of faith in his counsel made it
difficult for [Davis] to fully weigh his options and make fully
informed decisions as to how to proceed, thus prejudicing
him.” Id.
Regarding the assignment of error that “trial counsel with-
held information from the Court that may have helped secure
his release from custody or dismissal of the case,” the major-
ity again concludes that this “assigned error lacks sufficient
specificity regarding what information Davis contends counsel
should have provided to the court.” The majority acknowl-
edges that “Davis expounds upon this assigned error . . . by
specifically arguing that his trial counsel failed to disclose the
victim’s communication to counsel’s office.” However, Davis
further argues that in addition to informing the court about the
victim’s contact with trial counsel, trial counsel should have
informed the court that the victim, “on her own,” came to the
decision to write the letter and statement admitting that Davis
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Cite as 31 Neb. App. 445did not assault her, and that his contact with the victim was
before he made his first court appearance or “before [he] had a
bond or before there was any no contact order in place.” Id. at
22. Davis argues that he was “harmed by counsel not provid-
ing this information to the lower courts as it may have helped
persuade the Court to either dismiss the charges following
the preliminary hearing or led it to release him from custody
while the matter was pending.” Id. at 23.
In making the above arguments, Davis supplied headings
in the argument section of his brief which correlated exactly
with his assigned errors. Then, he further argued trial counsel’s
alleged deficiency with enough particularity for this court to
make a determination of whether the claims could be decided
upon the trial record and for a district court later reviewing
a petition for postconviction relief to be able to recognize
whether the claim was previously brought before an appellate
court. See State v. Devers, 306 Neb. 429, 945 N.W.2d 470(2020). Even the State found the presentation of the assigned
errors and corresponding arguments sufficient to respond to
them in its brief, concluding in both instances that the claims
lacked merit. I would have done the same.
It is true that State v. Mrza, 302 Neb. 931, 935, 926 N.W.2d
79, 86 (2019), states that “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.” However, I do not read that admonition to
mean that assignments of error must allege all the necessary
details about the claimed deficiency in the assignments of
error section of the brief and then be restated again later in the
argument section. In my opinion, when the deficient conduct
alleged in the assignments of error section can be directly cor-
related with a specific heading and a detailed discussion in the
argument section, as was done here, then no scouring of the
brief is necessary and the assigned claim of ineffective assist­
ance of counsel should be addressed.