State v. Ely
| Decision Date | 20 January 2017 |
| Docket Number | No. S-16-471.,S-16-471. |
| Citation | 889 N.W.2d 377,295 Neb. 607 |
| Parties | STATE of Nebraska, appellee, v. Nicholas J. ELY, appellant. |
| Court | Nebraska Supreme Court |
295 Neb. 607
889 N.W.2d 377
STATE of Nebraska, appellee,
v.
Nicholas J. ELY, appellant.
No. S-16-471.
Supreme Court of Nebraska.
Filed January 20, 2017.
Brian S. Munnelly for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Heavican, C.J., Wright, Miller–Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
Cassel, J.
I. INTRODUCTION
Nicholas J. Ely appeals from an order denying his motions for postconviction relief, appointment of counsel, leave to proceed in forma pauperis, and recusal of the trial judge. The district court determined that Ely's postconviction claims were procedurally barred. We agree that some were barred. And the files and records affirmatively show that Ely was entitled to no relief on many of the other claims. But two claims were not barred and warranted an evidentiary hearing. This, in turn, drives our disposition of the other issues on appeal.
II. BACKGROUND
Ely was involved in an attempted robbery with several other individuals in which the target of the robbery was killed. Because of his involvement, Ely was ultimately convicted by a jury of first degree murder (felony murder) and use of a deadly weapon to commit a felony. He was sentenced to life in prison on the murder conviction and to a consecutive sentence of 5 to 5 years' imprisonment on the use of a deadly weapon conviction. The circumstances which led to Ely's convictions and sentences may be found in our opinion on direct appeal.1
1. DIRECT APPEAL
On direct appeal, represented by the same counsel as he was at trial, Ely assigned that (1) there was insufficient evidence to sustain the guilty verdicts, (2) the district court erred in sustaining the State's motion in limine and excluding evidence of
prior illegal conduct by a codefendant, and (3) the district court erred in giving a "flight" instruction to the jury. We affirmed his convictions and sentences, modifying only his credit for time served by applying it to the use of a deadly weapon sentence.2 Ely has since filed a motion and an amended motion for postconviction relief and now appeals from the denial of his motions.
2. POSTCONVICTION PROCEEDING
Ely filed his first pro se motion for postconviction relief and alleged numerous claims of ineffective assistance of trial counsel, several claims of district court error, and numerous claims of ineffective assistance of appellate counsel. He stated in his motion for postconviction relief that his counsel on direct appeal was the same counsel he had at trial. Ely also filed a motion for appointment of counsel, a motion for leave to proceed in forma pauperis, and a poverty affidavit in support of his motions.
While his first motion was pending and before the State filed a response, Ely filed a motion for leave to file an amended motion for postconviction relief. He additionally filed a motion for the court to recuse itself from his postconviction proceeding and his amended motion for postconviction
relief. In his amended motion, Ely again alleged numerous claims of ineffective assistance of trial counsel, several claims of district court error, and numerous claims of ineffective assistance of appellate counsel. Comparing the amended motion to the original motion, Ely did not allege any new claims and did not state any new facts in support of his claims. The district court ruled on both the original and the amended motions for postconviction relief. The 29 errors assigned in the amended motion are summarized and reordered as follows:
(1) The district court abused its discretion by (a) denying Ely's request to dismiss counsel and proceed pro se,
b) sustaining the State's oral motion in limine to prevent Ely from cross-examining codefendants about the possible life sentences they faced, (c) denying Ely's motion to have personal access to his discovery, and (d) denying Ely his privilege to depose the State's witnesses.
(2) Ely was denied effective assistance of trial counsel when trial counsel (a) failed to advise Ely of his right to testify in his own behalf; (b) failed to object to testimony concerning prior bad acts; (c) failed to suppress the search of a cell phone linked to Ely, due to an illegal search warrant; (d) failed to inform the jury of Nicholas Palma's deal to testify for the State; (e) failed to object to or move to strike Palma's prejudicial testimony after it did not fulfill what the State said it would; (f) failed to make reasonable investigations involving defense witnesses; (g) failed to object to the State's prejudicial remarks during closing arguments; (h) failed to object and/or add to the jury instruction regarding intent; (i) failed to object to jury instruction No. 20, regarding "accomplice testimony," for leaving out certain language; (j) failed to object to jury instruction No. 17 for leaving out language that would pertain to Ely; (k) failed to depose witnesses Ely had asked them to depose; (l) failed to cross-examine State witnesses efficiently; (m) failed to object to or move to strike Jacob Wilde's testimony after it was discovered Wilde did not know about Ely's involvement in the robbery and homicide; (n) failed to go over all the evidence with Ely before trial; (o) failed to adequately explain Ely's defense during opening statements and closing arguments; and (p) had a conflict of interest with Ely.
(3) Ely was denied effective assistance of counsel on direct appeal when appellate counsel (a) failed to argue that the district court erred by denying Ely his right to proceed pro se, (b) argued on appeal a jury instruction that did not reflect the instruction given at trial, (c) failed to argue relevant issues pertaining to the prejudicial "flight" instruction given at trial, (d) failed to argue Ely's confrontation rights were violated,
e) failed to argue that evidence was ruled admissible pursuant to Neb. Rev. Stat. § 27–404 (Reissue 2016) in a codefendant's first trial but inadmissible in Ely's trial, (f) failed to argue that Palma's testimony did not fulfill what the State said it would, (g) failed to argue that the district court erred by denying Ely's motion to have personal access to his discovery, (h) failed to argue that the district court erred by denying Ely his privilege to depose the State's witnesses, and (i) had a conflict of interest with Ely.
The district court, without holding an evidentiary hearing, denied Ely's motions, finding that the issues raised in the motions for postconviction relief "were known and/or knowable at the time of his direct appeal and, therefore, the motions ... should be overruled and denied." The court denied Ely's other motions for appointment of counsel, to proceed in forma pauperis, and for recusal. The court's order
denying Ely's motions did not state that Ely had failed to allege sufficient facts to demonstrate a violation of his constitutional rights or that the record and files affirmatively showed that he was entitled to no relief. The order instead seems to rest entirely on the court's finding that the issues raised in the motion for postconviction relief were procedurally barred.
Ely timely appeals.
III. ASSIGNMENTS OF ERROR
Ely assigns, restated, renumbered, and reordered, that the district court erred in (1) denying his motion for postconviction relief without an evidentiary hearing, (2) denying his motion to proceed in forma pauperis, (3) denying his motion for appointment of counsel, and (4) denying his motion for recusal.
IV. STANDARD OF REVIEW
Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law.3 When reviewing
questions of law, an appellate court resolves the questions independently of the lower court's conclusion.4
A district court's denial of in forma pauperis status under Neb. Rev. Stat. § 25–2301.02 (Reissue 2016) is reviewed de novo on the record based on the transcript of the hearing or written statement of the court.5
Failure to appoint counsel in a postconviction proceeding is not error in the absence of an abuse of discretion.6
A motion to recuse for bias or partiality is initially entrusted to the discretion of the trial court, and the trial court's ruling will be affirmed absent an abuse of that discretion.7
V. ANALYSIS
1. MOTION FOR POSTCONVICTION RELIEF
The need for finality in the criminal process requires that a defendant bring all claims for relief at the first opportunity.8 Therefore, 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.9 Ely alleged claims of district court error that, as he notes in his other assignments of error, were known and could have been litigated on direct appeal by his appellate...
To continue reading
Request your trial
-
State v. Cody
...artificial isolation but must be viewed in the context of the overall charge to the jury considered as a whole." State v. Ely, 295 Neb. 607, 622, 889 N.W.2d 377, 392 (2017). "Because lifetime community supervision is an additional form of punishment, a jury, rather than a trial court, must ......
-
State v. Devers
...Id. at 20.24 See State v. Freemont , 284 Neb. 179, 817 N.W.2d 277 (2012).25 Id.26 State v. Thomas , supra note 15.27 State v. Ely , 295 Neb. 607, 889 N.W.2d 377 (2017).28 See State v. Perrigo , 244 Neb. 990, 1001, 510 N.W.2d 304, 311 (1994).29 Brief for appellant at 28.30 Id.31 State v. Sel......
-
State v. Parnell
...representation of one client is rendered less effective by reason of his or her representation of another client. State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017). The defendant who shows that a conflict of interest actually affected the adequacy of his or her representation need not demon......
-
State v. Loding
...v. Parnell , supra note 1.9 Id.10 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).11 State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).12 Id.13 Id.14 Id.15 See Neb. Ct. R. §§ 3-701 to 3-706 (rev. 2012).16 See Neb. Ct. R. § 3-101(L) (rev. 2015).17 § 3-101(J).18 ......