State v. Dunkin

• Decision Date: 13 January 2012
• Docket Number: No. S–11–220.,S–11–220.
• Citation: 807 N.W.2d 744,283 Neb. 30
• Parties: STATE of Nebraska, appellee, v. Robert J. DUNKIN, appellant.
• Court: Nebraska Supreme Court

283 Neb. 30

807 N.W.2d 744

STATE of Nebraska, appellee,

v.Robert J. DUNKIN, appellant.

No. S–11–220.

Supreme Court of Nebraska.

Jan. 13, 2012.

Syllabus by the Court

1.Effectiveness of Counsel.A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

2.Postconviction: Appeal and Error.On appeal from a proceeding for postconviction relief, the trial court's findings of fact will be upheld unless such findings are clearly erroneous.

3.Effectiveness of Counsel: Appeal and Error.Determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law that an appellate court reviews independently of the lower court's decision.

4.Postconviction:Effectiveness of Counsel:Proof:Appeal and Error.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.The two prongs of this test, deficient performance and prejudice, may be addressed in either order.

5.Postconviction:Pleas: Effectiveness of Counsel.In a postconviction action brought by a defendant convicted because of a guilty plea or a plea of no contest, a court will consider an allegation that the plea was the result of ineffective assistance of counsel.

6.Effectiveness of Counsel:Pleas:Proof.Within the plea context, in order to satisfy the prejudice requirement to establish an ineffective assistance of counsel claim, the defendant must show that there is a reasonable probability that, but for counsel's errors, he or she would not have pleaded guilty and would have insisted on going to trial.

7.Effectiveness of Counsel:Presumptions:Appeal and Error.The entire ineffectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable and that even if found unreasonable, the error justifies setting aside the judgment only if there was prejudice.

8.

Trial:

Pleas:

Mental Competency.A person is competent to plead or stand trial if he or she has the capacity to understand the nature and object of the proceedings against him or her, to comprehend his or her own condition in reference to such proceedings, and to make a rational defense.

9.Trial:Pleas: Mental Competency.The test of mental capacity to plead is the same as that required to stand trial.

10.Pleas: Mental Competency: Right to Counsel: Waiver.A court is not required to make a competency determination in every case in which a defendant seeks to plead guilty or to waive his or her right to counsel; a competency determination is necessary only when a court has reason to doubt the defendant's competence.

11.Effectiveness of Counsel: Proof.In order to demonstrate prejudice from counsel's failure to investigate competency and for failing to seek a competency hearing, the defendant must demonstrate that there is a reasonable probability that he or she was, in fact, incompetent and that the trial court would have found him or her to be incompetent had a competency hearing been conducted.

12.Constitutional Law: Trial: Mental Competency.An individual has a constitutional right not to be put to trial when lacking mental competency.

13.Postconviction: Effectiveness of Counsel: Presumptions:Proof.Under certain circumstances, the nature of counsel's deficient conduct in the context of the prior proceedings can lead to a presumption of prejudice, negating the defendant's need to offer evidence of actual prejudice in a postconviction case.

14.

Postconviction:

Effectiveness of Counsel

: Presumptions:Appeal and Error.After a trial, conviction, and sentencing, if counsel deficiently fails to file or perfect an appeal after being so directed by the criminal defendant, prejudice will be presumed and counsel will be deemed ineffective, thus entitling the defendant to postconviction relief.

Sanford J. Pollack, Lincoln, of Pollack & Ball, L.L.C., for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

McCORMACK, J.

I.NATURE OF CASE

Robert J. Dunkin pled no contest to the charge of murder in the second degree.The district court accepted Dunkin's plea, entered a judgment of guilty, and subsequently sentenced Dunkin to 40 years' to life imprisonment.Dunkin did not directly appeal the judgment, but filed a motion for postconviction relief which alleged that his constitutional right to the effective assistance of counsel had been violated.Following an evidentiary hearing, the district court denied Dunkin's request for postconviction relief.Dunkin appeals.

II.BACKGROUND

1.Conviction and Sentencing Proceedings

Dunkin was charged by information with murder in the first degree and use of a weapon to commit a felony in connection with the death of his girlfriend, Lynn Anderson.Pursuant to plea negotiations, the information was amended to charge Dunkin with murder in the second degree, to which Dunkin pled no contest.The district court accepted Dunkin's plea and entered a judgment of guilty.On April 28, 2009, the court sentenced Dunkin to 40 years' to life imprisonment.No direct appeal was taken from Dunkin's conviction and sentence.

On February 23, 2010, Dunkin filed a pro se “Motion to Vacate and Set Aside Sentence and Conviction Pursuant to [Neb.Rev.Stat.] §§ 29–3001 to 29–3004[ (Reissue 2008) ].”Dunkin alleged that his constitutional right to the effective assistance of counsel had been violated.Dunkin asserted that his trial counsel coerced and pressured Dunkin to plead no contest to the charge of second degree murder, failed to investigate Dunkin's state of mind at the time of the offense, failed to have Dunkin undergo a mental health examination or retain a medical professional to testify, failed to adequately present evidence at the suppression hearing, failed to adequately prepare for trial, made sentencing representations to Dunkin that he would receive a sentence of 20 to 30 years' imprisonment, and failed to perfect an appeal of Dunkin's sentence despite Dunkin's request.

Dunkin also filed a motion to withdraw his plea of no contest, wherein he claimed that he had been promised prosecutors would recommend a minimum sentence of 20 to 30 years' imprisonment and that he had been promised by his attorney he would be paroled upon first eligibility.At the time of the plea, Dunkin claimed he was so “mentally impaired/medicated that he didn't fully understand what was going on” because he was on a number of medications, the combined effect of which “is not known to Dunkin.”He claimed he was experiencing hallucinations, delusions, a confused state, disorientation, disturbed concentration, anxiety, drowsiness, dizziness, weakness, fatigue, and headache.Dunkin claimed, at the time of the plea, that he had not been evaluated regarding the defense of not guilty by reason of insanity and that the plea was a product of coercion at the hands of his attorney.Dunkin asserted that he believes he has a meritorious defense to the charge of murder in the second degree.

Dunkin filed a motion for appointment of postconviction counsel, which the court granted.The State filed a responsive pleading, and the court conducted an evidentiary hearing on Dunkin's motion for postconviction relief.

2.Evidentiary Hearing on Postconviction Motion

Dunkin testified at the hearing on his postconviction motion.Dunkin stated that he was initially represented by an attorney from the Commission on Public Advocacy, but that Dunkin's brother wanted to hire a private attorney.Dunkin's brother hired trial counsel to represent him, and Dunkin's brother signed a fee agreement and paid a flat fee of $25,000.Dunkin stated that throughout the proceedings, his mother and brother were in contact with counsel while Dunkin was in jail, to relay messages from Dunkin.Dunkin stated that he could not contact counsel directly because counsel's office did not accept collect telephone calls.Counsel testified, however, that his office policy was to accept collect calls from clients who are in jail.

Dunkin testified regarding his first meeting with counsel on August 1, 2008, during which meeting Dunkin told counsel his version of the events that occurred on January 21 and 22, 2008, which had led to the death of Anderson.Dunkin explained that he had been in a relationship with Anderson for approximately 6 months.The evening of her death, she had gone to Dunkin's house and began crying.The two had previously discussed whether Anderson had cheated on Dunkin, and he again asked her if that was the case.Anderson did not answer, and Dunkin repeatedly asked if she had cheated on him until Anderson got angry.Anderson then jumped out of her chair and swung her purse at Dunkin, which hit him in the head and knocked him to the ground.Anderson swung her arms at Dunkin, and he attempted to restrain her but she bit him on the arm, knocking him to the ground again.

Dunkin testified that Anderson told him she was going to kill him and then reached for a chair where he kept a gun.At the same time, Dunkin moved to reach the gun first; a struggle ensued, during which Anderson kicked Dunkin in the knee and he fell into the wall.When Dunkin fell, the gun went off and struck and killed Anderson.Dunkin testified that he told counsel that Anderson's death was accidental and unintentional.Dunkin stated that counsel told him that he thought Dunkin had a good case for manslaughter.

Dunkin explained to counsel that he had taken a large amount of prescription pills after the incident, including more than 60 Xanax pills, some Percocet, hydrocodone, and “Ambien CR.”Dunkin stated that he remembers...