State v. Bean

• Decision Date: 19 December 1986
• Docket Number: No. 86-541,86-541
• Citation: 398 N.W.2d 104,224 Neb. 278
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Terry L. BEAN, Appellant.

Page 104

398 N.W.2d 104

224 Neb. 278

STATE of Nebraska, Appellee, v.Terry L. BEAN, Appellant.

No. 86-541.

Supreme Court of Nebraska.

Dec. 19, 1986.

Syllabus by the Court

1.Rules of the Supreme Court: Appeal and Error.Relief granted pursuant to Neb.Ct.R. of Prac. 3B(rev. 1986) constitutes the disposition of a direct appeal on its merits.

2.Rules of the Supreme Court: Appeal and Error.In disposing of a case under Neb.Ct.R. of Prac. 3B(rev. 1986), the Nebraska Supreme Court examines the entire record, not only to resolve those matters which are specifically called to its attention by counsel but also to determine whether any possible errors exist.

3.Rules of the Supreme Court: Postconviction: Appeal and Error.Any matter which can be determined from the record on direct appeal is considered by the Nebraska Supreme Court when ruling on a motion filed pursuant to Neb.Ct.R. of Prac. 3B(rev. 1986).Any such matter is not subject to relitigation in an action brought pursuant to the Nebraska Postconviction Act, Neb.Rev.Stat. §§ 29-3001 et seq.(Reissue 1985).

4.Postconviction.In order to state a cause of action for postconviction relief, the motion must allege facts which, if proved, constitute an infringement of a prisoner's constitutional rights; allegations which are mere conclusions are not sufficient.

5.Postconviction.When a motion for postconviction relief and the files and records show that a defendant is not entitled to relief, no evidentiary hearing is required.

Terry L. Bean, pro se.

Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Defendant, Terry L. Bean, appeals from the denial of relief under the provisions of the Nebraska Postconviction Act, Neb.Rev.Stat. §§ 29-3001 et seq.(Reissue 1985).He assigns as errors the failure of the district court to (1) find the evidence insufficient to sustain the conviction, (2) find that he should have been allowed to dismiss the deputy public defender assigned to him in the case leading to his conviction, (3) grant him an evidentiary hearing, and (4) find that he was denied the effective assistance of counsel.We affirm.

Pursuant to a plea bargain whereunder the State dismissed a habitual criminal charge and a use of a weapon to commit a felony charge, Bean pled guilty to first degree assault.Such assault is a Class III felony punishable by imprisonment of from 1 to 20 years or a $25,000 fine, or both such imprisonment and fine.Neb.Rev.Stat. §§ 28-308and28-105(1)(Reissue 1985).He was thereafter adjudged guilty and sentenced to imprisonment for a term of 3 to 5 years.After that conviction was appealed to this court, Bean's counsel moved to withdraw pursuant to Neb.Ct.R. of Prac. 3B(rev. 1986) on the ground that the appeal was "wholly frivolous and totally without merit."That motion was granted, and the judgment appealed from was affirmed.State v. Bean, 221 Neb. xxix(case No. 85-938, Jan. 23, 1986).

As pointed out in State v. Sanders, 220 Neb. 308, 369 N.W.2d 641(1985), relief granted pursuant to rule 3B constitutes the disposition of a direct appeal on its merits, for in such a casethis court examines the entire record, not only to resolve those matters which are specifically called to its attention by counsel but also to determine whether any possible errors exist.Therefore, any matter which can be determined from the record on direct appeal is considered when ruling on a motion filed pursuant to rule 3B and is not subject to relitigation in an action brought pursuant to the Postconviction Act.

Bean's first assignment of error, that the evidence was insufficient to support the conviction, and his second assignment of error, that the district court should have permitted him to dismiss the deputy public defender assigned to him, were considered in his direct appeal.Therefore, neither of those assignments is subject to relitigation or further discussion.

This brings us to Bean's third assignment of error, that he was denied an evidentiary hearing in this proceeding.

We begin our analysis of this issue by recalling that in order to state a cause of action for postconviction relief, the motion must allege facts which, if proved, constitute an infringement of a prisoner's constitutional rights; allegations which are mere conclusions are not sufficient.State v. Galvan, 222 Neb. 104, 382 N.W.2d 337(1986);State v....