State v. Blank, 90-1037

• Decision Date: 27 September 1991
• Docket Number: No. 90-1037,90-1037
• Citation: 474 N.W.2d 689,239 Neb. 188
• Parties: STATE of Nebraska, Appellee, v. Jeffrey M. BLANK, Appellant.
• Court: Nebraska Supreme Court

Page 689

474 N.W.2d 689

239 Neb. 188

STATE of Nebraska, Appellee, v. Jeffrey M. BLANK, Appellant.

No. 90-1037.

Supreme Court of Nebraska.

Sept. 27, 1991.

Syllabus by the Court

1. Postconviction: Proof: Appeal and Error. A defendant seeking postconviction relief has the burden of establishing the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous.

2. Postconviction: Effectiveness of Counsel: Proof. When the defendant in a postconviction proceeding alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. The defendant must also show that he was prejudiced in the defense of his case as a result of his attorney's actions or inactions.

3. Postconviction: Effectiveness of Counsel: Proof. In a postconviction relief action, a showing of prejudice to the defense requires a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

4. Effectiveness of Counsel: Words and Phrases. A reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different is a probability sufficient to undermine confidence in the outcome.

Robert B. Deck, Sioux City, Iowa, for appellant.

Don Stenberg, Atty. Gen., and Donald A. Kohtz, Lincoln, for appellee.

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

BOSLAUGH, Justice.

In 1988, the appellant, Jeffrey M. Blank, was charged with being a felon in possession of a firearm and with being a habitual criminal. Pursuant to a plea bargain, the habitual criminal allegation was dismissed and Blank entered a plea of no contest to the charge of felon in possession. See Neb.Rev.Stat. § 28-1206 (Reissue 1989). Before the date set for sentencing, Blank discovered that Initiative 403 had been passed in November 1988 and the "right to bear arms" amendment to the Nebraska Constitution had been adopted. See State v. Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989). Believing he had a defense to the charge based on Initiative 403, Blank filed a motion to withdraw his plea. The motion was overruled, and Blank was sentenced to a term of 16 to 54 months' imprisonment. The conviction and sentence were summarily affirmed on direct appeal. See State v. Blank, 234 Neb. xx (case No. 89-373, Dec. 14, 1989).

On July 2, 1990, Blank filed a petition for postconviction relief, pursuant to Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1989), alleging his conviction and sentence were void or voidable because he did not receive effective assistance of counsel and because he was arrested and convicted on the basis of evidence obtained pursuant to an unconstitutional search and seizure. On July 24, 1990, the district court appointed legal counsel to represent Blank in this postconviction action. After a hearing on September 20, 1990, the district court dismissed Blank's petition, finding that there was no evidence trial counsel failed to perform at least as well as a lawyer of ordinary training and skill in the criminal law in the area and that there was no evidence Blank was prejudiced in the defense of his case as a result of his attorney's action or inaction or that, but for the ineffective assistance of counsel, there was a reasonable probability the result would have been different.

Blank has appealed to this court, contending the district court erred in overruling his petition (1) because he received ineffective assistance of counsel and (2) because the conviction and sentence were obtained in violation of U.S. Const. amends. IV, V, and VI and Neb. Const. art. I, §§ 3, 7, 11, and 12.

A defendant seeking postconviction relief has the burden of establishing the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Keithley, 238 Neb. 966, 473 N.W.2d 129 (1991); State v. Whitmore, 238 Neb. 125, 469 N.W.2d 527 (1991); State v. Salas, 237 Neb. 546, 466 N.W.2d 790 (1991); State v. El-Tabech, 234 Neb. 831, 453 N.W.2d 91 (1990); State v. Jones, 231 Neb. 110, 435 N.W.2d 650 (1989).

When the defendant in a postconviction proceeding alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. The defendant must also show that he was prejudiced in the defense of his case as a result of his attorney's actions or inactions. State v. Britt, 237 Neb. 163, 465 N.W.2d 466 (1991); State v. El-Tabech, supra; State v. Jones, supra. A showing of prejudice to the defense requires a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. State v. Britt, supra; State v. Salas, supra; State v. El-Tabech, supra; State v. Jones, supra. A reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different is a probability sufficient to undermine confidence in the outcome. State v. Salas, supra; State v. El-Tabech, supra; State v. Jones, supra.

The record shows that Blank was initially incarcerated in the Dakota County jail on August 29, 1988, on two misdemeanor charges. On the morning of August 31, the janitor from the jail asked Dakota County Sheriff James Wagner about the ownership of a green 1971 Pontiac LeMans automobile that had been in the parking lot for several days. The janitor was concerned because the owner of the vehicle could not be identified, and he intended to tow it away.

After the discussion with the janitor, Sheriff Wagner was contacted by two police detectives from Sioux City, Iowa. The detectives told Wagner that they had information there was stolen property in the Pontiac and wanted to obtain a search warrant. A search warrant was issued for the vehicle. Meanwhile, following up on the janitor's request, Deputy Glen Sedivy asked Blank if the Pontiac belonged to him, and Blank indicated that it was his car.

Sheriff Wagner took a set of car keys from Blank's possession locker at the jail. The keys fit the doors to the Pontiac. At this time, Wagner saw that the Pontiac had a California license plate fitted over another license plate. He removed the California plate, discovered a Nebraska plate underneath, and determined that the Nebraska license plate was registered to Rhonda or Jeffrey Blank.

During the search of the automobile, several items were seized and turned over to the Sioux City, Iowa, authorities. Sheriff Wagner also confiscated a sawed-off shotgun that he found wrapped in a towel in the trunk of the Pontiac.

Bond had been set on the misdemeanor charges. Two women came to bond Blank out of jail between 1:30 and 2:30 p.m. on August 31, 1988, but were told that they had to wait. Approximately 45 minutes to 1 hour later, the women were told that new charges had been filed against Blank and that he could not be bonded out of jail.

On September 1, 1988, Blank was charged with being a felon in possession of a firearm and with being a habitual criminal. The next day, Randy Hisey, an attorney with 12 years' experience in criminal defense work, was appointed to represent Blank. After a preliminary hearing held September 30, 1988, Blank was bound over to the district court and was arraigned in the district court on October 11, 1988.

Hisey testified at the postconviction hearing that Blank was a demanding client and that Hisey was required to make very few judgment calls because Blank "called virtually all the shots in the course of the representation" and was very much in control of the defense. The record shows that Hisey filed numerous pretrial motions on Blank's behalf, including an application to use the law library; an application to return Blank to the Dakota County jail from the Diagnostic and Evaluation Center in Lincoln; a motion for the return of the 1971 Pontiac LeMans automobile seized in connection with the execution of the search warrant on August 31, 1988; a motion to receive medical care from his personal physician in Sioux City, Iowa; a motion for jail privileges; two motions to suppress evidence seized during the search warrant execution on August 31, 1988; several motions for bond...