State v. Dandridge

Decision Date02 October 1998
Docket NumberNo. S-96-874,S-96-874
Citation255 Neb. 364,585 N.W.2d 433
PartiesSTATE of Nebraska, Appellee, v. Geary L. DANDRIDGE, Appellant.
CourtNebraska 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: Proof. 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.

3. Postconviction. An evidentiary hearing may be denied on a motion for postconviction relief when the records and files affirmatively show that the defendant is entitled to no relief.

4. Judicial Notice: Records: Collateral Estoppel: Res Judicata. A court may judicially notice the existence of its records and the records of another court, but judicial notice of facts reflected in a court's records is subject to the doctrine of collateral estoppel or of res judicata.

5. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal.

Dennis R. Keefe, Lancaster County Public Defender, and Paul E. Cooney, for appellant.

Don Stenberg, Attorney General, Kimberly A. Klein, and, on brief, Jay C. Hinsley, for appellee.

Gary E. Lacey, Lancaster County Attorney, and Duane A. Austria, amici curiae.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

WRIGHT, Justice.

NATURE OF CASE

In March 1992, Geary L. Dandridge was convicted in the district court for Lancaster County of possession of a controlled substance (cocaine) and being a felon in possession of a firearm. He was sentenced as a habitual criminal to concurrent terms of 15 to 30 years' imprisonment. His convictions and sentences were affirmed by the Nebraska Court of Appeals. See State v. Dandridge, 1 Neb.App. 786, 511 N.W.2d 527 (1993). In July 1996, the district court dismissed Dandridge's motion for postconviction relief based on ineffective assistance of counsel, and he appeals.

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. Fletcher, 253 Neb. 1029, 573 N.W.2d 752 (1998).

FACTS

Prior to trial on the criminal charges, the State of Nebraska instituted a forfeiture action against Dandridge's property pursuant to Neb.Rev.Stat. § 28-431 (Reissue 1995). At the forfeiture hearing, the State introduced evidence that on September 28, 1991, law enforcement officers confiscated $1,544 in U.S. currency pursuant to a search warrant executed at Dandridge's residence. The currency was found on top of the toilet tank, adjacent to a shot glass which contained a piece of crack cocaine. Law enforcement opined that the denominations of the currency were consistent with currency involved in the distribution of crack cocaine. Dandridge appeared pro se at the forfeiture hearing, but presented no evidence.

The trial court found that Dandridge was the owner of the currency, that the currency "had been used, or was intended for use, to facilitate a violation of Article 4 of Chapter 28 of the Nebraska Revised Statutes," and that Dandridge forfeited the $1,544. The trial court found that no claims or petitions had On October 29, 1991, Dandridge was charged by information with two counts: (1) possession of a controlled substance and habitual criminal and (2) felon in possession of a firearm and habitual criminal. The criminal prosecution was based on the same conduct which had resulted in the forfeiture of Dandridge's currency.

been filed for the property and ordered the currency forfeited.

Dandridge was convicted of both counts charged in the information. A hearing on the habitual criminal allegation was held, and he was found to be a habitual criminal within the meaning of the law. He was sentenced to a period of incarceration of not less than 15 nor more than 30 years on each count, the sentences to run concurrently. Additionally, he was taxed with the costs of the prosecution and was given credit for 218 days served. Dandridge's convictions and sentences were subsequently affirmed. See State v. Dandridge, supra.

On April 22, 1996, Dandridge filed a motion for postconviction relief pursuant to Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1995). The motion asked that the district court set aside Dandridge's convictions and sentences and alleged that Dandridge had been subjected to unconstitutional and multiple punishments for the same offense, that his trial counsel's performance had been unconstitutionally deficient, and that the denial or infringement of his rights rendered the judgment void or voidable.

The district court sustained the State's motion to deny an evidentiary hearing and dismissed Dandridge's motion for post-conviction relief, finding that upon review of the files and records, Dandridge was not entitled to relief. Dandridge was granted leave to prosecute an appeal in forma pauperis, and Dandridge timely appealed.

ASSIGNMENTS OF ERROR

Dandridge claims that the district court erred by depriving him of an opportunity to adduce evidence at a hearing in support of his motion for postconviction relief and by dismissing the motion.

ANALYSIS

In summary, Dandridge claims that his trial counsel should have filed a plea in bar to Dandridge's criminal prosecution because the State had obtained forfeiture of his currency in a prior action arising out of the same set of facts. According to Dandridge, the forfeiture constituted a criminal punishment which barred subsequent prosecution on the criminal charges. Dandridge asserts that he received ineffective assistance of counsel because had his counsel filed a plea in bar, double jeopardy would have prevented the subsequent criminal prosecution.

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). 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. Parmar, 249 Neb. 462, 544 N.W.2d 102 (1996). An evidentiary hearing may be denied on a motion for postconviction relief when the records and files affirmatively show that the defendant is entitled to no relief. Id.

In denying Dandridge's motion for postconviction relief, the district court found that his claims were without merit. Relying on State v. Hansen, 249 Neb. 177, 542 N.W.2d 424 (1996); State v. Wolf, 250 Neb. 352, 549 N.W.2d 183 (1996); and United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), the court found that civil forfeiture proceedings do not bar criminal prosecution based on the same underlying facts unless the forfeiture is so punitive as to be the equivalent of a criminal proceeding.

The district court found that Dandridge's allegations of ineffective assistance of counsel were premised on the conclusion that his criminal conviction was barred by the prior forfeiture proceeding. Because the court concluded that the forfeiture was civil in nature, it found that the failure to raise a double jeopardy argument could not be grounds for a claim of ineffective assistance of counsel.

We do not reach the issue of whether the district court correctly determined that the forfeiture proceeding was civil in nature. Instead, we address the State's contention that Dandridge is procedurally barred from raising this issue on his motion for postconviction relief. The State argues that a motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal. It is the State's position that Dandridge's double jeopardy claim could have been raised on direct appeal, but was not, and is therefore procedurally barred.

We note that Dandridge was represented by different counsel on direct appeal than during trial. When a defendant has a different counsel on appeal than during trial, appellate counsel may raise any ineffective assistance of counsel claims it may have in regard to trial counsel's performance. See State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995).

Another consideration is whether the appellate court would have addressed the issue of ineffective assistance of counsel had it been raised during direct appeal. There is no indication in the Court of Appeals' opinion or the briefs filed on direct appeal that the forfeiture action and the issue of double jeopardy were raised in the trial court or that the trial court had the opportunity to rule on such issues. See State v. Dandridge, 1 Neb.App. 786, 511 N.W.2d 527 (1993).

Generally, when an issue has not been raised or ruled on at the trial level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. State v. Cody, 248 Neb. 683, 539 N.W.2d 18 (1995). However, when an ineffective assistance of counsel claim is raised on direct appeal, the claim need not be automatically dismissed; the determining factor is whether the record is sufficient to adequately review the question. See id. Had Dandridge's counsel raised the double jeopardy issue on appeal, the appellate court would have had to supplement the record with evidence of the earlier forfeiture action in order to address the issue. Thus, the issue is whether supplementing the record with evidence of the forfeiture would constitute an "evidentiary hearing," as the phrase is used in our case law...

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