State v. Erlewine
| Decision Date | 23 March 1990 |
| Docket Number | No. 89-657,89-657 |
| Citation | 452 N.W.2d 764,234 Neb. 855 |
| Parties | STATE of Nebraska, Appellee, v. Daniel G. ERLEWINE, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Court Rules: Judicial Notice. The Supreme Court will judicially notice lower court rules filed with the Clerk of the Supreme Court.
2. Effectiveness of Counsel: Proof. When a defendant alleges a violation of his or her constitutional right to effective assistance of counsel, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as an attorney with ordinary training and skill in the criminal law in the area. Further, there must be a showing of how the defendant was prejudiced in the defense of his or her case as a result of the attorney's actions or inactions.
3. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeal, and, as such, its review is limited to an examination of the county court record for error or abuse of discretion.
4. Courts: Appeal and Error. Under the provisions of Neb.Rev.Stat. §§ 25- 2733 and 25-1911 (Reissue 1989), the district court and the Nebraska Supreme Court generally shall review appeals from the county court for error appearing on the record.
5. Courts: Appeal and Error. The Supreme Court, in reviewing decisions of the district court which affirmed, reversed, or modified decisions of the county court, will consider only those errors specifically assigned in the appeal to the district court and again assigned as error in the appeal to the Supreme Court.
Brent M. Bloom, Omaha, for appellant.
Robert M. Spire, Atty. Gen., Herbert M. Fitle, Omaha City Atty., and Gary P. Bucchino, Omaha City Prosecutor, and J. Michael Tesar, Omaha, for appellee.
This is an appeal from the Douglas County District Court's order affirming defendant's convictions and sentences on various charges. We affirm.
In exchange for certain other offenses' being dismissed, defendant, on March 8, 1989, pled guilty in the Douglas County Court to four counts of operating a motor vehicle during a period of suspension, one count of providing false information, one count of driving while under the influence, one count of carrying a concealed weapon, and one count of possession of an unregistered firearm. Defendant was represented by counsel when each of these pleas was accepted. The trial court imposed the recommended total sentence of 120 days' incarceration and suspend defendant's driver's license for 545 days.
Defendant or his trial counsel subsequently filed notices of appeal. Defendant's trial counsel also filed praecipes for a transcript and bill of exceptions, but filed no statement of errors with the district court as required by the Rules of Practice for the Fourth Judicial District Court, rule No. 8 (January 1988). Because these rules are on file with the Clerk of the Supreme Court, we will take notice of them. See, Aetna Cas. & Surety Co. v. Nielsen, 217 Neb. 297, 348 N.W.2d 851 (1984), overruled on other grounds, First Nat. Bank v. Bolzer, 221 Neb. 415, 377 N.W.2d 533 (1985). The Douglas County District Court affirmed the convictions and sentences, but noted defendant's counsel did not appear to argue the matter.
New counsel was substituted. Defendant appeals to this court, contending his trial counsel was ineffective in failing to pursue defendant's appeal in the district court.
When a defendant alleges a violation of his or her constitutional right to effective assistance of counsel, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as an attorney with ordinary training and skill in the criminal law in the area. Further, there must be a showing of how the defendant was prejudiced in the defense of his or her case as a result of the attorney's actions or inactions. See State v. Domingus, 234 Neb. 267, 450 N.W.2d 668 (1990).
Assuming in the present case that trial counsel's performance in failing to pursue the district court appeal was deficient, defendant was not prejudiced by this deficiency. "In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeal, and, as such, its review is limited to an examination of the county court record for error or abuse of discretion." State v. Sock, 227...
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State v. Thalken
...State v . Thompson , 224 Neb. 922, 402 N.W.2d 271 (1987).68 See, also, Neb. Rev. Stat. § 25-2733 (Reissue 2016) and State v. Erlewine , 234 Neb. 855, 452 N.W.2d 764 (1990).69 State v. Schall , supra note 15.70 United States v . Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed. 2d 608 (1970).71 ......
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State v. Nowicki
...failed to assign it as error to the district court. This court adopted the following rule of practice in State v. Erlewine, 234 Neb. 855, 857, 452 N.W.2d 764, 767 (1990): The Supreme Court, in reviewing decisions of the district court which affirmed, reversed, or modified decisions of the c......
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State v. Estes, 90-265
...of the second-offense conviction in his appeal from the county to the district court. Prior to our decision in State v. Erlewine, 234 Neb. 855, 452 N.W.2d 764 (1990), in cases where the district court acted as an intermediate court of appeals, both the district court and the Nebraska Suprem......