State v. Bennett
| Decision Date | 16 April 1999 |
| Docket Number | No. S-98-016,S-98-016 |
| Citation | 256 Neb. 747,591 N.W.2d 779 |
| Parties | STATE of Nebraska, Appellant, v. Terry L. BENNETT, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Postconviction: Effectiveness of Counsel: Appeal and Error. When a plaintiff seeking postconviction relief has different counsel on appeal than at trial, the plaintiff's motion for postconviction relief is procedurally barred if the plaintiff (1) knew of the issues assigned in the postconviction motion at the time of the plaintiff's direct appeal, (2) failed to assign those issues on direct appeal, and (3) did not assign as error the failure of appellate counsel on direct appeal to raise the issues assigned in the postconviction motion.
2. Postconviction: Judicial Notice: Appeal and Error. A reviewing court considering a motion for postconviction relief may take judicial notice of the record in the direct appeal.
3. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal.
4. Postconviction: Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. Although an appellate court will not address an ineffective assistance of counsel claim on direct appeal when the matter necessitates an evidentiary hearing, an appellate court's refusal to do so does not bar a later motion for postconviction relief.
Darryl R. Lowe, Deputy Douglas County Attorney, Omaha, on brief, for appellant.
Emil M. Fabian, of Fabian & Thielen, Omaha, for appellee.
The State appeals the district court's decision granting post-conviction relief to the appellee, Terry L. Bennett. The district court concluded that Bennett's trial counsel had rendered ineffective assistance of counsel at trial in the following respects: Counsel was ineffective per se because he was fraudulently readmitted to the bar, counsel failed to object to evidence of Bennett's prior bad acts, and counsel failed to call alibi witnesses. We reverse, and dismiss because Bennett had different counsel on direct appeal than at trial and, therefore, his post-conviction ineffective assistance of counsel claims could have been raised on direct appeal. Because they were not, his claims are procedurally barred.
Bennett was charged with the offenses of robbery and assault in the first degree on October 2, 1991. Bennett retained attorney Charles M. Radosevich to represent him. At trial, Bennett and other witnesses were questioned concerning Bennett's prior bad acts, including his alleged ties to a certain street gang, his alleged status as a drug dealer, his alleged failure to file tax returns, his being wounded in a drive-by shooting, and his lavish drug-financed lifestyle. Radosevich did not object to the above questioning or testimony, nor did he file any motions in limine to exclude the use of prior bad acts evidence at trial. Radosevich also did not call certain alibi witnesses at trial. After a jury verdict, Bennett was convicted of both charges. Bennett was sentenced on June 3, 1992, to concurrent terms of imprisonment for 16 2/3 to 20 years and 6 2/3 to 20 years.
Bennett appealed his convictions to the Nebraska Court of Appeals, asserting that the trial court had committed reversible error by excluding certain evidence and that Bennett's sentences were excessive. The Court of Appeals affirmed Bennett's convictions and modified the terms of Bennett's imprisonment on November 9, 1993. State v. Bennett, 2 Neb.App. 188, 508 N.W.2d 294 (1993).
On August 21, 1992, while Bennett's appeal was pending, disciplinary proceedings were filed in this court against Radosevich. Radosevich had been disbarred by the Colorado Supreme Court on October 30, 1989, for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Radosevich, who had let his membership in the Nebraska State Bar Association lapse, applied for reinstatement on January 13, 1991, but did not inform the Nebraska bar of his disbarment in Colorado. The Nebraska State Bar Association returned Radosevich to active membership on February 22, 1991. Following disciplinary proceedings, Radosevich was disbarred by this court on June 11, 1993.
On August 19, 1997, Bennett filed an amended motion for postconviction relief. An evidentiary hearing was held, and the trial court granted Bennett's motion. The trial court found that Radosevich's representation of Bennett was ineffective in that (1) Radosevich had been disbarred in Colorado and obtained readmission to the Nebraska bar by fraudulent means, which is per se insufficient to satisfy the Sixth Amendment's guarantee of the right to counsel; (2) Radosevich failed to object to evidence concerning Bennett's prior bad acts; and (3) Radosevich failed to call certain alibi witnesses.
The State asserts that the district court erred in (1) granting Bennett's motion for postconviction relief because the issues raised in Bennett's postconviction motion were procedurally barred by Bennett's failure to raise them on direct appeal; (2) concluding that Bennett's trial counsel was ineffective per se because of a prior, unrelated disciplinary action for professional misconduct in another state; and (3) finding that Bennett's trial counsel was ineffective because of his decisions of trial strategy.
The State argues that Bennett could have litigated the issues he raised in his postconviction motion in his direct appeal and, thus, that Bennett's postconviction motion is procedurally barred, citing State v. Whitmore, 238 Neb. 125, 469 N.W.2d 527 (1991). In Whitmore, the plaintiff sought postconviction relief based upon an alleged conflict concerning his trial counsel's representation of a codefendant. This court noted that the plaintiff had different counsel on appeal than he had at trial and that the plaintiff had not assigned as error that his appellate counsel's failure to raise the conflict of interest amounted to ineffective assistance of counsel. We also...
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...259 (1999). Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. See, State v. Bennett, 256 Neb. 747, 591 N.W.2d 779 (1999); State v. Moore, 256 Neb. 553, 591 N.W.2d 86 V. ANALYSIS 1. MAY 9, 1986, MEETING Ryan claims the district court erred in ......
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State v. Dunster
...appeal when the matter necessitates an evidentiary hearing, such claims do not "require dismissal ipso facto." State v. Bennett, 256 Neb. 747, 751, 591 N.W.2d 779, 782 (1999). The determining factor is whether the record is sufficient to adequately review the question presented. Id. Under S......
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Sims v. Houston
...direct appeal or they will be procedurally barred if later brought in a state post-conviction action. See, e.g., State v. Bennett, 256 Neb. 747, 591 N.W.2d 779, 782-783 (1999) (where the defendant had new counsel for his direct appeal, defendant's post-conviction motion was procedurally bar......
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State v. McCroy
...applied for reinstatement on January 13, 1991, but did not inform the NSBA of his disbarment in Colorado. See State v. Bennett, 256 Neb. 747, 591 N.W.2d 779 (1999). He was reinstated to active membership in the NSBA on February 22, 1991, but following discovery of the disciplinary action ta......