State v. Deckard
| Decision Date | 06 October 2006 |
| Docket Number | No. S-05-871.,S-05-871. |
| Parties | STATE of Nebraska, appellee v. Nathaniel DECKARD, Jr., appellant. |
| Court | Nebraska Supreme Court |
Nathaniel Deckard, Jr., pro se.
Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.
Nathaniel Deckard, Jr., appeals from an order of the district court for Douglas County denying his motion for postconviction relief following an evidentiary hearing. We find no error and affirm the judgment of the district court.
On June 26, 1973, Deckard was charged by information with first degree murder for a killing in the perpetration of or the attempt to perpetrate a robbery in Douglas County. His appointed counsel filed a motion to suppress all oral, written, or recorded statements taken from Deckard by Omaha police. Deckard escaped from custody before the motion was resolved. He was subsequently located in Georgia, where he was serving a sentence for a robbery conviction. Deckard ultimately entered into a plea agreement in Nebraska in which he pled guilty to a reduced charge of second degree murder and also pled guilty to the escape charge. On April 25, 1974, he was sentenced to life in prison on the second degree murder conviction and to 10 years in prison on the escape conviction. Pursuant to the plea agreement, the sentences were ordered to be concurrent, and it was further ordered that Deckard's time of confinement in Georgia on the robbery conviction would count toward fulfillment of the murder and escape sentences in Nebraska.
Deckard was released on parole after serving 12½ years. His parole was revoked due to a misdemeanor theft charge and drug use in 1995, and he has been incarcerated since that time. On May 7, 2002, he filed a motion for postconviction relief. After conducting an evidentiary hearing, the district court denied postconviction relief. Deckard filed this timely appeal from the order denying postconviction relief, and we removed the appeal to our docket pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995). Additional facts relevant to the analysis will be discussed therein.
Deckard assigns, consolidated, restated, and renumbered, that the district court erred in (1) failing to find that his due process rights were violated by the lack of a verbatim record of certain proceedings held in 1973 and 1974, (2) taking judicial notice of docket entries, (3) failing to find that his trial counsel was ineffective for failing to file an appeal after being requested to do so, (4) failing to find that his trial counsel was ineffective in not securing Deckard's presence at a suppression hearing, (5) failing to find that his trial counsel was ineffective for advising him to plead guilty to an amended charge of second degree murder, (6) failing to find that an admission by his trial counsel was prejudicial to Deckard's defense, (7) failing to address Deckard's claims of ineffective assistance of postconviction counsel, and (8) failing to observe the canon of impartiality by purveying false information in the final order.
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. Wagner, 271 Neb. 253, 710 N.W.2d 627 (2006); State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006).
The record establishes that sometime before November 14, 1978, the stenographic notes of the proceedings on Deckard's motion to suppress, plea, and sentencing were inadvertently destroyed. It is therefore impossible to prepare a transcript or bill of exceptions of the criminal proceedings.
The record does, however, contain the docket sheet from the criminal case, which includes the following entry for August 29, 1973: The judge's initials appear next to this entry. A docket entry dated April 15, 1974, provides:
Defendant present with counsel.... Plaintiff represented.... With leave of Court plaintiff filed an amended Information charging Second Degree Murder. Defendant waived preliminary hearing and service of a copy of the Information 24 hours heretofore. Defendant was arraigned and after advise [sic] by the Court as to his rights, defendant voluntarily, knowingly and intelligently entered a plea of guilty to the amended Information and thereupon was adjudged by the Court to be guilty as charged and a judgment of conviction entered thereon.
The judge's initials appear next to this entry. A docket entry dated April 25, 1974, states: The judge's initials appear next to this entry.
Deckard contends that the lack of a verbatim record of the proceedings violates his due process rights. In a similar situation, the U.S. Supreme Court held that no constitutional rights were violated. Norvell v. Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963). The defendant in Norvell was convicted of murder in 1941. Although he was indigent, he had counsel at the time of trial. He did not appeal. In 1956, the defendant requested a stenographic record of his trial. The official court reporter had died, and no one could read his shorthand notes. Efforts to reconstruct the trial through the testimony of persons who had attended were unsuccessful, and thus in 1956, it was not possible for Illinois to supply the defendant with adequate appellate review of his conviction. The U.S. Supreme Court reasoned that although Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), held that an indigent defendant could not be denied a direct appeal, "[w]hen, through no fault of the State, transcripts of criminal trials are no longer available because of the death of the court reporter, some practical accommodation must be made." Norvell, 373 U.S. at 424, 83 S.Ct. 1366. The Court concluded that under the circumstances, the defendant's right to due process was not violated.
Notably, the instant case involves a postconviction proceeding, not a direct appeal. Moreover, in Nebraska the controlling rule is that in appellate proceedings, unless there is proof to the contrary, the journal entry in a duly authenticated record of the trial court imports absolute verity. Alder v. First Nat. Bank & Trust Co., 241 Neb. 873, 491 N.W.2d 686 (1992). The judge's entries on the docket sheet in the record before us provide an adequate basis for our review of Deckard's postconviction claims. We conclude that the lack of a verbatim record of the proceedings does not violate Deckard's right to due process.
During the postconviction evidentiary hearing, the State requested that the court take judicial notice of all the court files and records related to Deckard's postconviction claims. Deckard's counsel did not object, and the court took judicial notice of its files and records. After the conclusion of the evidentiary hearing, Deckard filed pro se objections to the taking of judicial notice. The court allowed him to make a record of his objections. Deckard argued, generally summarized, that judicial notice of the record, particularly the docket sheet, was improper because he disputed its factual accuracy.
In its order denying postconviction relief, the court noted that it was proper for it to take judicial notice of the file, records, and docket sheet in the prior proceeding, as all related to the case upon which Deckard sought postconviction relief. When cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in the former proceedings involving one of the parties now before it, the court has a right to examine its own records and take judicial notice of its own proceedings and judgments in the former action. Strunk v. Chromy-Strunk, 270 Neb. 917, 708 N.W.2d 821 (2006). Neb.Rev.Stat. § 29-3001 (Reissue 1995) specifically authorizes a district court to review "files and records of the case" in a postconviction proceeding. Although Deckard disputes the factual accuracy of the journal entries, the district court found that his testimony was not credible. We find no error in the decision of the district court to take judicial notice of its docket sheet in the criminal proceeding.
Deckard contends that he is entitled to postconviction relief because his trial counsel was ineffective. Normally, a voluntary guilty plea waives all defenses to a criminal charge. However, in a postconviction action brought by a defendant convicted because of a guilty plea, a court will consider an allegation that the plea was the result of ineffective assistance of counsel. State v. McDermott, 267 Neb. 761, 677 N.W.2d 156 (2004). In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel at trial or on direct appeal, the defendant has the burden first to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case. The two prongs of this test, deficient performance and prejudice, may be addressed in either order. State v. Marshall, 269 Neb. 56, 690...
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