State v. Davis

• Decision Date: 05 June 2012
• Docket Number: No. A-11-944.,A-11-944.
• Parties: STATE OF NEBRASKA, APPELLEE, v. DARIUS DAVIS, APPELLANT.
• Court: Nebraska Court of Appeals

STATE OF NEBRASKA, APPELLEE,

v.DARIUS DAVIS, APPELLANT.

No. A-11-944.

NEBRASKA COURT OF APPEALS

Filed June 5, 2012

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed.

Darius Davis, pro se.

Jon Bruning, Attorney General, and Carrie A. Thober for appellee.

INBODY, Chief Judge, and IRWIN and SIEVERS, Judges.

INBODY, Chief Judge.

I. INTRODUCTION

Darius Davis appeals from the Douglas County District Court's denial of his motion for postconviction relief without an evidentiary hearing. For the reasons set forth herein, we affirm.

II. STATEMENT OF FACTS

In 2010, Davis was charged with terroristic threats and first degree domestic assault. Pursuant to a plea agreement, Davis pled no contest to first degree domestic assault and the State dismissed the terroristic threats charge and a misdemeanor domestic assault case that was pending in county court. At the plea hearing, at which Davis appeared with his counsel, the district court advised Davis of his rights, the nature of the charge, and the possible penalties. During the plea hearing, the following exchange occurred between the trial court and Davis:

THE COURT: Okay. All right. . . . I need to ask you a series of questions, the purpose of which is to make sure that you understand that you have certain constitutional rights available to you in this matter, and by offering a plea, if I accept it, you're going to be giving up many of those rights. I also need to determine that any plea that you'remaking is being made freely, knowingly and voluntarily, and you're, in fact, guilty of the charge.

So as we go through this process, if there are any questions that you have, please ask me to clarify anything you don't understand. And if you wish to speak privately with [defense counsel], you're entitled to do so. Do you understand that, sir?

[Davis]: Yes, sir.

THE COURT: Before I can accept that plea, I need to be certain that you understand the specific constitutional rights that you're going to be giving up. You have a right to a public and speedy trial by a jury of 12 people who in order to convict you would have to find you unanimously guilty. That would mean all the members of the jury would need [to] find you guilty before you could be convicted of the charge. You would also have a right to confront any witnesses who would appear at trial and testify against you. That would give you the right to see them, hear them, question and cross-examine them. You also have a right to require witnesses to appear at trial and testify on your behalf.

At the trial of this cause the State of Nebraska is required to prove beyond a reasonable doubt that you committed the offense charged before you could be convicted of that offense. And at the trial of this action, I would advise the jury that you're presumed to be innocent and that presumption remains with you unless or until the State has proven you guilty beyond a reasonable doubt.

Further, sir, you could not be compelled to make a statement or testify against yourself at any trial or hearing in this matter, but you may remain silent.

You're also entitled to be represented by an attorney at all stages of this criminal proceeding which includes a trial and an appeal. And if you can't afford an attorney now or at a later time, I would appoint one to represent you at no charge. Do you understand that you have those rights as I've explained them to you . . . ?

[Davis]: Yes.

THE COURT: Do you understand that by offering a plea of no contest, if I accept it, you'll be giving up those rights because there won't be a jury trial where you could raise them?

[Davis]: Yes.

THE COURT: You also understand that if you were to take your case to trial and if you were found guilty that you could appeal your conviction in this matter to the Nebraska Court of Appeals or the Nebraska Supreme Court?

[Davis]: Yes.

After the factual basis was recited by the State, the district court accepted Davis' no contest plea and found him guilty. The district court sentenced Davis to 15 to 20 years' imprisonment. In case No. A-10-661, Davis, through his same counsel, timely filed a direct appeal to this court, alleging excessive sentence as the sole assignment of error. On October 29, 2010, this court summarily affirmed Davis' conviction and sentence.

On February 9, 2011, Davis filed a motion for postconviction relief alleging that his plea was entered involuntarily and that he received ineffective assistance of trial and appellatecounsel. On February 15, the district court entered an order directing the State to respond to Davis' postconviction motion within 45 days. When no responsive pleading was filed by the State, Davis filed motions for default judgment on April 25 and May 25. The State filed its motion to dismiss Davis' motion for postconviction relief on July 19. While the matter was still pending, Davis filed a request for ruling on his previously filed motions for default judgment and sought a writ of mandamus to compel the clerk of the district court to enter default judgment.

On October 14, 2011, the district court entered an order denying Davis' motion for postconviction relief without an evidentiary hearing. On October 17, the court denied Davis' motion for writ of mandamus, and on November 3, the court, at Davis' request due to concerns regarding having a final order, denied Davis' motion for default judgment, although the court noted that it clearly did not grant Davis' motion for default judgment at the time that it denied Davis' motion for postconviction relief. On November 4, Davis timely appealed to this court, and pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.

III. ASSIGNMENTS OF ERROR

On appeal, Davis' assigned errors can be consolidated into the following issues: The district court erred in (1) denying his motion for a default judgment and (2) denying his motion for postconviction relief without an evidentiary hearing.

IV. STANDARD OF REVIEW

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 Nebraska or federal Constitution. State v. McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010). However, an evidentiary hearing may be denied when the records and files affirmatively show that the defendant is entitled to no relief. Id.

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010); State v. Thomas, 278 Neb. 248, 769 N.W.2d 357 (2009).

V. ANALYSIS

1. DENIAL OF MOTION FOR DEFAULT JUDGMENT

In his first assignment of error, Davis contends that the district court erred in overruling his motions for default judgment after the State failed to respond to his postconviction motion within 45 days as ordered by the court. On February 15, 2011, the district court ordered the State to respond to Davis' postconviction motion within 45 days; however, the State did not file its motion to dismiss Davis' motion for postconviction relief until July 19.

Whether default judgment should be entered because of a party's failure to timely respond to a petition rests within the discretion of the trial court, and an abuse of discretion must affirmatively appear to justify reversal on such ground. Mason State Bank v. Sekutera, 236 Neb. 361, 461 N.W.2d 517 (1990). Although the record before this court discloses no reason for the delay in the State's response, the delay did not prejudice Davis, and we can see no abuse ofdiscretion in the district court's denial of Davis' motions for default judgment. Consequently, we find that this assigned error is without merit.

2. DENIAL OF MOTION FOR POSTCONVICTION RELIEFWITHOUT EVIDENTIARY HEARING

Secondly, Davis contends that the district court erred in denying his motion for postconviction relief without an evidentiary hearing because (a) trial counsel was ineffective for (i) failing to object or move to allow Davis to withdraw his no contest plea after the district court incorrectly advised him that he would be waiving his right to be represented by an attorney on appeal by pleading no contest; (ii) failing to properly investigate the case, retain experts, and/or conduct discovery; (iii) failing to consult with Davis on critical aspects of the case; (iv) failing to file a motion to suppress statements that were allegedly obtained in violation of Davis' constitutional rights; and (v) failing to object to false and improper statements made by the prosecution at sentencing and (b) appellate counsel was ineffective for failing to raise these claims on direct appeal.

In the instant case, the same attorney represented Davis at trial and on direct appeal, making this postconviction action his first opportunity to raise his claims of ineffective assistance of counsel. See State v. Biloff, 18 Neb. App. 215, 778 N.W.2d 497 (2009) (where defendant was represented by same lawyer at trial and on direct appeal, his motion for postconviction relief was first opportunity to assert ineffective assistance of counsel).

In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense in his or her case. State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012). The two prongs of this test, deficient performance and prejudice, may be...