State v. Bishop

• Decision Date: 22 February 2002
• Docket Number: No. S-01-291.,S-01-291.
• Parties: STATE of Nebraska, Appellee, v. Travis J. BISHOP, Appellant.
• Court: Nebraska Supreme Court

639 N.W.2d 409

263 Neb. 266

STATE of Nebraska, Appellee, v. Travis J. BISHOP, Appellant.

No. S-01-291.

Supreme Court of Nebraska.

February 22, 2002.

Michael D. Nelson, Omaha, of Nelson McClellan, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Travis J. Bishop appeals from an order of the district court for Douglas County granting him postconviction relief in the form of a new direct appeal. He contends that because he received ineffective assistance of counsel at both the trial and appellate levels, his conviction and sentence should be vacated.

FACTS

On December 10, 1998, Bishop was arrested in Douglas County and charged with various offenses, including unlawful possession of cocaine with intent to deliver and possession of money used or intended to be used to facilitate a violation of Neb. Rev.Stat. § 28-416 (Cum.Supp.1998). The police seized $835 in cash from Bishop at the time of his arrest. On December 14, Bishop appeared with counsel before the Douglas County Court on the criminal charges and a date for a preliminary hearing was set.

On December 16, 1998, the State filed a "Petition for Disposition of Seized Property" in the district court for Douglas County pursuant to Neb.Rev.Stat. § 28-431 (Cum.Supp.2000). The petition was captioned "The State of Nebraska, Plaintiff, v. Eight Hundred Thirty Five Dollars in U.S. Currency, Defendant, and Travis J. Bishop, Interested Party." The State alleged that the money seized from Bishop on December 10 was intended for use to facilitate transactions involving controlled substances. The petition alleged that the "owner of the money is believed to be Travis J. Bishop."

Bishop was served with a copy of the petition by certified mail. The summons notified Bishop that he had been sued by the State and that he had 30 days to file an appropriate written response in answer to the petition "or such Petition will be taken as true and judgment entered accordingly for the relief demanded." Bishop did not answer or appear. Following an evidentiary hearing, the district court entered a decree on January 25, 1999, finding that the $835 seized from Bishop was used to facilitate a violation of § 28-416. The court ordered the $835 forfeited to the State.

On March 12, 1999, Bishop waived his right to a preliminary hearing and was bound over for trial on the criminal possession charges. On May 28, we decided State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999), in which we held that forfeiture proceedings under § 28-431 are criminal in nature and that double jeopardy rights are violated when the State seeks to impose cumulative punishments for drug possession and forfeiture in separate proceedings.

Bishop's original attorney died on July 27, 1999, and the attorney's son, who was also an attorney and with whom the original attorney shared an office, assumed responsibility for Bishop's legal defense. On August 23, Bishop, while represented by this attorney, entered a plea of no contest to the charge of unlawful possession with intent to deliver a controlled substance. Before accepting the plea, the court asked defense counsel if he believed that the plea was consistent with the law and the facts and in Bishop's best interests. The attorney replied, "I believe it is in his best interests, and I can see no benefit to be obtained by proceeding to trial in this matter." On December 23, Bishop was sentenced to a term of 8 to 10 years' imprisonment.

On January 21, 2000, Bishop filed a pro se notice of appeal. The Douglas County public defender was appointed as his appellate counsel. The assistant public defender assigned to the case wrote to Bishop on February 11, informing him that the appellate brief was due April 12 and inviting Bishop to contact her with any questions or concerns. In a subsequent letter, this attorney informed Bishop that she had filed the brief on his behalf and enclosed a copy. Other than this correspondence, Bishop's appellate counsel had no contact with him before she filed his appellate brief. The only assignment of error set forth in the brief was a claim that Bishop's sentence was excessive.

Appellate counsel subsequently received a letter from Bishop dated May 18, 2000, in which he stated that he had been trying to contact her for a month. In the letter, Bishop asked counsel to contact him regarding additional issues he wished to include in his appellate brief. He also requested copies of various documents pertaining to his case including those from the forfeiture proceeding.

On or about April 20, 2000, Bishop filed a pro se motion in the Nebraska Court of Appeals requesting leave to file a supplemental brief. In this motion, Bishop stated that his appellate counsel had failed to communicate with him despite his efforts to contact her. Bishop further stated in the motion that he wished to argue on appeal that his trial counsel was ineffective, although he made no specific reference to a double jeopardy issue at that time.

On May 23, 2000, Bishop's appellate counsel received a copy of his motion and responded in a letter to him on the same date. She advised Bishop that his appeal was limited to matters which were reflected in the appellate record and that none of the additional issues he sought to raise in a supplemental brief were set forth in the record. She specifically advised him that "[t]he issues that you wish to raise regarding ineffective assistance of counsel are properly raised on a Motion for Postconviction Relief. This Motion can not [sic] be raised until your appeal to the Nebraska Court of Appeals is final." On May 26, the Nebraska Court of Appeals summarily affirmed Bishop's conviction and sentence and denied as moot his motion to file a supplemental brief. His appellate counsel notified him of this action by letter dated May 30, 2000, and advised him that he should begin the postconviction process.

On June 23, 2000, Bishop filed a verified motion for postconviction relief in which he alleged that his trial counsel was ineffective in failing to raise the issue of the prior forfeiture to the district court. With leave of court, he subsequently filed an amended motion in which he alleged facts pertaining to the seizure and forfeiture of the $835 in cash from his person at the time of his arrest on December 10, 1998. He alleged that he informed his trial counsel of these facts prior to entering his plea and that he entered his plea on the advice of said counsel. He further alleged that if he had been advised that the possession case was a separate criminal prosecution for the same offense involved in the forfeiture, he would have contested the charge. Bishop further alleged that his trial counsel was ineffective for failing to be fully informed of the facts and law and for failing to file a plea in bar or other appropriate motion to the charges in the possession case.

Bishop also alleged that his appellate counsel provided ineffective assistance because she failed to meet with him or otherwise discuss his case prior to filing the appellate brief and because she failed to assign as error the ineffective assistance of trial counsel in the direct appeal in order to preserve his right to postconviction relief. Bishop alleged that but for the ineffective assistance of his counsel, he would not have been convicted in the criminal possession case.

An evidentiary hearing on Bishop's amended postconviction motion was held on September 12, 2000. Bishop testified that all of the allegations in his amended motion were true. The attorney who represented him at the time of his plea testified via deposition that he represented Bishop only with respect to the possession charges and was not involved in any "money issue." He admitted that he had seen police reports indicating that $835 was seized from Bishop at the time of his arrest and that he was aware of the decision in State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999), prior to the date on which Bishop entered his plea. He testified, however, that at all times prior to Bishop's entering a plea to the possession charges, he was completely unaware of the forfeiture proceedings and had not been advised of their existence by either the county attorney or Bishop.

The deposition of Bishop's appellate counsel was received in evidence at the postconviction hearing. In her testimony, appellate counsel admitted that at the time of her May 23, 2000, letter to Bishop, she was aware of Nebraska cases holding that an issue which could have been but was not raised on direct appeal is procedurally barred in a postconviction action. She further testified that when she received Bishop's letter of May 18, 2000, requesting copies of documents from the forfeiture proceedings and stating his allegations of ineffective assistance of trial counsel, she did not recognize a potential issue for appeal because there was nothing in the appellate record to support his claims and the time for filing the appellate brief had already passed.

The district court entered a detailed order on February 5, 2001, finding that Bishop had received ineffective assistance of counsel and granting him postconviction relief in the form of a new direct appeal. The court held that Bishop's appellate counsel was deficient in failing to investigate issues outside the four corners of the recorded proceedings and thus failing to discover the prior forfeiture action. In addressing whether appellate counsel's performance was prejudicial to Bishop, the court analyzed "how the result of the proceeding would have been different had Appellate Counsel argued on appeal that the Defendant's trial counsel ... rendered ineffective assistance." In this analysis, the court found that trial counsel admitted that a review of the police reports would have made him aware of the seizure of the $835 and that he was...