State v. Buckman, No. S-99-948

• Decision Date: 07 July 2000
• Docket Number: No. S-99-1009., No. S-99-948
• Parties: STATE of Nebraska, appellee, v. Herman BUCKMAN, appellant.
• Court: Nebraska Supreme Court

613 N.W.2d 463

259 Neb. 924

STATE of Nebraska, appellee, v. Herman BUCKMAN, appellant.

Nos. S-99-948, S-99-1009.

Supreme Court of Nebraska.

July 7, 2000.

James R. Mowbray and Robert W. Kortus, of the Nebraska Commission on Public Advocacy, Lincoln, 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.

WRIGHT, J.

NATURE OF CASE

Herman Buckman appeals from an order of the Lancaster County District Court which dismissed his motions for postconviction relief pursuant to Neb.Rev. Stat. § 29-3001 et seq. (Reissue 1995). We have consolidated cases Nos. S-99-948 and S-99-1009 for purposes of briefing and oral argument.

SCOPE OF REVIEW

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. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).

FACTS

CASE NO. S-99-1009

Buckman was charged with burglary (count I) and with conspiracy to possess a controlled substance (count II). Buckman was also alleged to be a habitual criminal in both counts. On February 27, 1989, the trial court accepted Buckman's plea of no contest on count II. As part of a plea bargain, count I and a separate charge of possession of a firearm by a felon were dismissed. On March 2, Buckman was sentenced on count II, as enhanced by the habitual criminal statute, to 20 to 60 years' imprisonment to be served concurrently with the sentence imposed on count II in case No. S-99-948. No direct appeal was filed with respect to Buckman's conviction for conspiracy to possess a controlled substance.

CASE NO. S-99-948

With respect to case No. S-99-948, Buckman was charged with and subsequently found guilty by a jury of the first degree murder of Denise Stawkowski (count I) and use of a weapon to commit a felony (count II). He was later determined to be a habitual criminal. On March 2, 1989, he was sentenced on count I to life imprisonment, with credit for 377 days served plus any and all good time earned during that period, and on count II, as enhanced by the habitual criminal statute, to 20 to 60 years' imprisonment to be served consecutively to the sentence imposed on count I.

A detailed description of the facts regarding case No. S-99-948 is set forth in our opinion concerning Buckman's direct appeal. See State v. Buckman, 237 Neb. 936, 468 N.W.2d 589 (1991). We reiterate only those facts necessary for resolution of this postconviction action. The record shows that at the time of her death on February 19, 1988, the victim was a 25-year-old wife and mother of four children. She was a drug dealer and a drug user who sold drugs to several people.

The victim's husband testified that the victim began selling small quantities of methamphetamine to Buckman and Goldie Fisher in December 1987. The victim kept a record of her drug transactions in a blue trifold ledger, along with the drugs, money, and razor blades for dividing the drugs. In January 1988, Buckman and Fisher began to purchase cocaine from the victim. Buckman and Fisher paid for the drugs with cash or offered merchandise in exchange for the drugs.

Shortly before the murder, Buckman became dissatisfied with either the quantity or quality of the drugs he was buying from the victim. On at least one occasion, Buckman threatened to steal any drugs the victim might have had. The morning before the day of the murder, Buckman and Fisher traded a VCR for the balance due on an "eight-ball" of drugs received earlier in the week from the victim. Later that day, they were trying to sell leather jackets and baby clothes to get money to pay Fisher's babysitter. A few hours before the murder, they tried to sell or trade a ".38 Special" gun to the victim's husband for drugs. The same caliber gun was used to kill the victim. It was established that when the victim was with Fisher at approximately 1 a.m. on February 19, 1988, the victim's purse contained roughly $2,000 and three eight-balls of cocaine. None of these items were found with the victim's body when it was discovered at approximately 3:20 the same morning. On February 19, after the murder, Buckman and Fisher spent large amounts of cash in Lincoln, but when they were arrested, the baby clothes and leather coats were still in Buckman's car. At that time, Buckman had $656 in cash in his possession.

Karen Niemann testified that she picked up Fisher, who was alone on a road near the location of the murder, at approximately 1:30 a.m. This was within the timeframe for the victim's death as set by the pathologist. Other evidence placed Fisher with Buckman immediately before and after the murder.

Certain evidence placed Buckman at the scene of the murder. There were bloodstains on his clothing and on the steering wheel cover and floormats in his car. A Kool cigarette butt was found in the victim's car, and a package of Kool cigarettes and brown slippers were found near the murder scene. A cellmate of Buckman's testified that Buckman bragged that he had killed the victim in the presence of Fisher and that he had used the money he stole from the victim to pay debts.

Buckman was represented on direct appeal by the same attorneys he had at trial. On appeal, we held that (1) the evidence supported the convictions, (2) the jury was not required to be unanimous as to the theory which brought it to its guilty verdict on the first degree murder charge, and (3) the admission of evidence regarding Buckman's use of illegal controlled substances and the receipt of stolen property was not an abuse of discretion. See State v. Buckman, 237 Neb. 936, 468 N.W.2d 589 (1991). We also concluded that Buckman's appeal did not preserve the issue of whether the trial court erred in overruling his motion in limine and his objection at trial to Niemann's testimony, and we refused to consider his claim that the trial court erred in not requiring the State to elect between premeditated murder and felony murder. Id.

MOTIONS FOR POSTCONVICTION RELIEF

On April 1, 1998, Buckman filed a motion for postconviction relief with respect to his convictions for first degree murder and use of a weapon, which he subsequently amended. On July 28, Buckman filed a motion for postconviction relief with respect to his conviction for conspiracy to possess a controlled substance, which was also subsequently amended.

On January 27, 1999, the State requested that the district court deny an evidentiary hearing and overrule Buckman's motions to vacate and/or set aside the judgments and/or convictions. On May 28, the district court denied an evidentiary hearing in both cases and dismissed the motions for postconviction relief. Buckman appeals from this order.

ASSIGNMENTS OF ERROR

Buckman asserts that (1) the district court erred in failing to grant an evidentiary hearing; (2) the district court erred in dismissing the amended motions for postconviction relief; and (3) he was denied the right to a fair trial and the conflict-free assistance of counsel at trial and on direct appeal, in violation of the 5th, 6th, and 14th Amendments to the U.S. Constitution.

ANALYSIS

CASE NO. S-99-1009

Buckman argues his counsel was ineffective because counsel told him that a plea of no contest to the charge of conspiracy to possess a controlled substance would result in no additional prison time, since his sentence would run concurrently with the sentences imposed for first degree murder and use of a weapon to commit a felony. He also claims he was told that because he would win on appeal, the plea would not matter. Buckman further alleges that counsel told him that he did not need a trial on the conspiracy charge because his appeal regarding the murder and use of a weapon to commit a felony would inevitably be successful and would vindicate him on all charges, including the conspiracy charge. He further asserts that counsel was ineffective in not challenging the admissibility of the evidence against him and in not informing him regarding the evidentiary challenges that could have been made and those that would be forfeited in the event of a plea of no contest.

An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the state or federal Constitution. State v. Lyle, 258 Neb. 263, 603 N.W.2d 24 (1999). An evidentiary hearing is not required when the motion alleges only conclusions of fact or law. Id. Further, when the motion properly alleges an infringement of a defendant's constitutional rights, an evidentiary hearing should still be denied when the records and files affirmatively show that the defendant is entitled to no relief. Id.

A plea of no contest is equivalent to a plea of guilty. State v. Spiegel, 239 Neb. 233, 474 N.W.2d 873 (1991). Normally, a voluntary guilty plea waives all defenses to a criminal charge. State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998). However, in a postconviction action brought by a defendant convicted on the basis of a guilty plea, a court will consider an allegation that the plea was the result of ineffective assistance of counsel. Id.

Under the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order to sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and Neb. Const. art. I, § 11, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. Lyle, supra.

When a conviction is based upon a guilty plea, the prejudice requirement is satisfied if a...