State v. Crawford
| Decision Date | 17 July 2015 |
| Docket Number | No. S–14–338,S–14–338 |
| Citation | 865 N.W.2d 360 |
| Parties | State of Nebraska, appellee, v. Jamey M. Crawford, appellant. |
| Court | Nebraska Supreme Court |
Nicholas E. Wurth, of Law Offices of Nicholas E. Wurth, P.C., for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
court to reach a conclusion independent from the lower court's decision.
3. Limitations of Actions: Pleadings: Waiver.A statute of limitations does not operate by its own force as a bar, but, rather, operates as a defense to be pled by the party relying upon it and is waived if not pled.
4. Limitations of Actions.A typical statute of limitations specifies only that an action must be commenced within a specified time period.
5. Postconviction: Limitations of Actions: Jurisdiction.The 1–year period of limitation set forth in Neb.Rev.Stat. § 29–3001(4) (Cum. Supp. 2014) is not a jurisdictional requirement and instead is in the nature of a statute of limitations.
6. Postconviction: Constitutional Law: Proof.In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.
7. Postconviction: Constitutional Law: Proof.A court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant's rights under the Nebraska or federal Constitution.
8. Postconviction: Appeal and Error.If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case
affirmatively show that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.
9. Constitutional Law: Effectiveness of Counsel.A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.
10. Effectiveness of Counsel: Proof: Appeal and Error.To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense. A court may address the two prongs of this test, deficient performance and prejudice, in either order.
11. Effectiveness of Counsel: Pleas: Proof.To show prejudice when the alleged ineffective assistance relates to the entry of a plea, the defendant must show that there is a reasonable probability that, but for counsel's errors, he or she would not have entered the plea and would have insisted on going to trial.
12. Constitutional Law: Right to Counsel: Effectiveness of Counsel: Time: Appeal and Error.A defendant does not have a constitutional right to counsel beyond the conclusion of his or her direct appeal, and therefore, he or she cannot be deprived of effective assistance of counsel based on the failure of counsel to timely file a petition for further review.
Jamey M. Crawford appeals the order of the district court for Dodge County which denied his motion for postconviction
relief on the merits after an evidentiary hearing. As an initial matter, the State argues on appeal that although the issue was not raised in the district court, Crawford's motion should have been dismissed as untimely pursuant to the 1–year period of limitation set forth in Neb.Rev.Stat. § 29–3001(4) (Cum. Supp. 2014) of the postconviction act. We conclude that the 1–year period of limitation is an affirmative defense and that the State waived the defense when it failed to raise it in the district court. With respect to the merits, we affirm the district court's denial of Crawford's motion for postconviction relief.
In 2011, Crawford pled guilty to possession of a controlled substance and was found to be a habitual criminal. The district court for Dodge County sentenced Crawford to imprisonment for 10 to 15 years. The Nebraska Court of Appeals affirmed Crawford's conviction and sentence. State v. Crawford, No. A–11–645, 2012 WL 399888 (Neb. App. Feb. 7, 2012) (). Crawford did not petition this court for further review, and therefore, the Court of Appeals filed its mandate on March 14, 2012.
On March 27, 2013, Crawford filed a pro se motion for postconviction relief in which he raised various claims. The State responded to Crawford's pro se motion by arguing the merits of Crawford's claims. In its response, the State did not raise the issue whether Crawford's motion was timely under § 29–3001(4).
The district court thereafter appointed postconviction counsel, who filed an amended motion. In the amended motion, Crawford stated that his counsel on direct appeal was different from his trial counsel and that he received ineffective assistance of appellate counsel in various respects.
Among Crawford's claims of ineffective assistance of appellate counsel was an assertion that “appellate counsel failed to assign as error, trial counsel's failure to file a motion
to withdraw [Crawford's] guilty plea after it was made obvious that [Crawford] wished to do so.” Crawford asserted that he entered the guilty plea because he was led to believe that he would be eligible to participate in a drug court program. However, Crawford alleged, trial counsel failed to advise him that he would not be eligible for drug court if he was found to be a habitual criminal. He further claimed that he likely would have been allowed to withdraw his plea prior to sentencing, because the misunderstanding regarding eligibility for drug court would have been a fair and just basis to allow withdrawal.
Crawford also claimed that in December 2011, during the pendency of his direct appeal, appellate counsel informed him that counsel would be unable to continue representing him. Crawford claimed that counsel never filed a motion to withdraw as counsel and that, as a result, Crawford “was uncertain of whether he was represented by counsel or not” when the Court of Appeals affirmed his conviction on February 7, 2012, and he was without an attorney to petition this court for further review. Crawford claimed that he would have sought further review but that the time for filing a petition for further review had expired before he learned no substitute appellate counsel had been appointed.
After an evidentiary hearing on Crawford's motion for post-conviction relief, the district court denied Crawford's claims on their merits. With regard to the claim regarding withdrawal of the plea on the basis that Crawford was not informed he was not eligible for drug court, the court stated that it was apparent on the record Crawford knew before entering his plea there was a possibility that he would not be admitted into drug court and that Crawford confirmed to the trial court he understood admission into drug court was not part of the plea agreement. The court further stated that the record showed that Crawford was aware of the potential sentence if he was found to be a habitual criminal.
With regard to appellate counsel's withdrawal during the pendency of the direct appeal, the court found that Crawford was not prejudiced by counsel's withdrawal. The court noted that although Crawford was informed of appellate counsel's withdrawal in December 2011, Crawford did not file a request for appointment of appellate counsel until August 2012, at which time, the request was denied because there was no appeal pending.
The district court did not on its own motion raise an issue whether Crawford's postconviction motion was timely under § 29–3001(4), nor did the court address the issue in its order denying relief.
Crawford appeals the denial of his postconviction motion.
Crawford claims, restated, that the district court erred in denying his claims that he received ineffective assistance of counsel when (1) appellate counsel failed to assign error to trial counsel's failure to move to withdraw the plea and (2) appellate counsel failed to ensure that Crawford received substitute appellate counsel. Crawford also claims that he should be granted postconviction relief “due to the plain error that permeates the record.” The State asserts that denial of Crawford's motion was correct, either because the motion for postconviction was not timely filed or because it lacked merit.
A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court's decision. State v. Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014).
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. Branch, 290 Neb. 523, 860 N.W.2d 712 (2015).
We note as an initial matter that the State argues that rather than addressing the merits of Crawford's postconviction motion, the district court should have dismissed Crawford's motion on the basis that it was untimely pursuant to the 1–year period of limitation set forth in §...
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