State v. Bowen
| Decision Date | 26 June 1998 |
| Docket Number | No. S-97-839,S-97-839 |
| Parties | STATE of Nebraska, Appellee, v. Phillip E. BOWEN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous.
2. Postconviction. Once a motion for postconviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the prior motion was filed.
3. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were known to defendant and could have been litigated on direct appeal.
Phillip E. Bowen, pro se.
Don Stenberg, Attorney General, and David T. Bydalek, Lincoln, for appellee.
Phillip E. Bowen filed a second motion for postconviction relief, and it was dismissed by the trial court. We affirm because Bowen could have raised the lesser-included offense issue in his direct appeal and his first postconviction action.
Bowen was convicted of first degree murder and the use of a firearm to commit a felony in 1988. See State v. Bowen, 232 Neb. 725, 442 N.W.2d 209 (1989) (Bowen I ). On his direct appeal in Bowen I, Bowen was represented by different counsel than at trial. See State v. Bowen, 244 Neb. 204, 505 N.W.2d 682 (1993) (Bowen II ). This court affirmed Bowen's convictions in Bowen I. Bowen then filed a motion for postconviction relief pro se, which was dismissed by the trial court. See Bowen II, supra. We affirmed the trial court's dismissal in Bowen II. Finally, Bowen filed yet another pro se motion for postconviction relief, which is the subject of this appeal, and it also was dismissed by the trial court.
Rephrased, Bowen asserts that the trial court abused its discretion in (1) denying his request for appointment of counsel to represent and advise him in presenting and arguing his motion for postconviction relief, (2) denying his request for an evidentiary hearing on his motion for postconviction relief, and (3) dismissing his motion for postconviction relief.
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Fletcher, 253 Neb. 1029, 573 N.W.2d 752 (1998).
Bowen asserts that the trial court erred in dismissing his motion for postconviction relief, arguing that his right to due process was violated by his felony murder conviction because the trial court failed to give an instruction concerning any lesser- included offenses and that Bowen's trial counsel was ineffective in failing to request such instructions.
At the outset, we note that this is Bowen's second pro se motion for postconviction relief and that his direct appeal was handled by a different attorney than the attorney that represented Bowen at trial. Once a motion for postconviction relief has been judicially determined, any subsequent motion for such relief from the same conviction and sentence may be dismissed unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the prior motion was filed. State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994). Furthermore, a motion for postconviction relief cannot be used to secure review of issues which were known to defendant and could have been litigated on direct appeal. State v. Jones, 246 Neb. 673, 522 N.W.2d 414 (1994).
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