State v. Gagliano, 88-739

• Citation: 438 N.W.2d 783,231 Neb. 911
• Decision Date: 21 April 1989
• Docket Number: No. 88-739,88-739
• Parties: STATE of Nebraska, Appellee, v. William J. GAGLIANO, Appellant.
• Court: Supreme Court of Nebraska

Page 783

438 N.W.2d 783

231 Neb. 911

STATE of Nebraska, Appellee, v. William J. GAGLIANO, Appellant.

No. 88-739.

Supreme Court of Nebraska.

April 21, 1989.

Syllabus by the Court

1. Expert Witnesses: Effectiveness of Counsel: Proof. Generally, expert testimony is not admissible as proof that assistance of counsel in a criminal case was ineffective.

2. Criminal Law: Expert Witnesses. The right of an indigent defendant to the appointment of an expert witness at State expense generally rests in the discretion of the trial court.

3. Postconviction: Proof: Appeal and Error. A defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed on appeal unless clearly erroneous.

4. Postconviction: Effectiveness of Counsel: Proof. When a defendant, in a postconviction motion, alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. Further, defendant must make a showing of how the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions.

5. Constitutional Law: Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. Constitution and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

6. Effectiveness of Counsel: Proof. A convicted defendant seeking a reversal of the conviction or sentence for the reason that counsel's assistance was deficient must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

7. Effectiveness of Counsel: Proof: Witnesses. To sustain a claim of ineffective assistance of counsel based on counsel's failure to interview witnesses, the record must establish the identity and testimony of the witnesses counsel failed to interview.

8. Pleas: Postconviction. Where the record discloses that a plea of guilty was understandingly and voluntarily entered, it is not subject to postconviction relief.

Maurice A. Green, of Burger, Bennett & Green, P.C., McCook for appellant.

Robert M. Spire, Atty. Gen., and Kenneth W. Payne, Alliance, for appellee.

BOSLAUGH, WHITE, CAPORALE, and GRANT, JJ., and RIST, District Judge.

WHITE, Justice.

Defendant, William J. Gagliano, appeals from an order of the district court for Frontier County denying his motion for postconviction relief. The defendant bases his motion on a claim of ineffective assistance of counsel.

The defendant was originally charged with arson in the first degree, manufacture of a controlled substance, and possession of marijuana of more than 1 pound. Pursuant to a plea arrangement, defendant pleaded guilty to one count of second degree arson and one count of possession of marijuana of more than 1 pound. The bill of exceptions establishes that the court fully complied with the procedures set out in State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986), in accepting the defendant's guilty pleas. Defendant was sentenced to the Nebraska Penal and Correctional Complex for a period of not less than 5 nor more than 10 years' imprisonment on the arson charge and for a period of 1 year's imprisonment on the possession charge, the sentences to be served concurrently.

Prior to the hearing on his motion for postconviction relief, defendant, an indigent, filed a motion requesting authorization to employ legal counsel as an expert witness. The defendant wanted to employ legal counsel as an expert witness to establish what conduct meets the standard of care a lawyer with ordinary training and skill in the criminal law in the area would possess. The district court, finding that "the requested testimony [by legal counsel] concerns an opinion of law which is a matter to be determined by the Court," denied the motion.

The defendant contends the court erred by overruling his motion for authorization to employ legal counsel and by failing to find that defendant was denied effective assistance of counsel.

Defendant's first assignment of error relating to his motion for authorization to employ legal counsel is without merit. In State v. Ohler, 219 Neb. 840, 366 N.W.2d 771 (1985), an appeal from a postconviction proceeding, one of the errors assigned was the "lower court's refusal to permit expert testimony regarding what a 'reasonably prudent criminal trial attorney would have done.' " Id. at 845, 366 N.W.2d at 775. This court held: "Generally, expert testimony is not admissible as proof that the assistance of counsel in a criminal case was ineffective." Id. Further, the issue is analogous to one of the issues we addressed in State v. Suggett, 200 Neb. 693, 264 N.W.2d 876 (1978). In Suggett, an indigent defendant made a motion during postconviction proceedings for authority to retain a psychiatrist. The trial court denied the motion. We affirmed the court's decision, stating that "[t]he right of an indigent defendant to the appointment of an expert witness at State expense generally rests in the discretion of the trial court." Id. at 697, 264 N.W.2d at 879. See Annot., Right of Indigent Defendant in Criminal Case to Aid of State by Appointment of Investigator or Expert, 34 A.L.R.3d 1256, 1269 (1970). The record discloses no abuse of discretion on the part of the trial court.

In his second assignment of error the defendant alleges that the court failed to find that he was denied effective assistance of counsel by the court's failing to give sufficient weight to the facts that (1) counsel failed to attempt to suppress statements made by the defendant, (2) counsel failed to conduct a thorough investigation and interview witnesses, (3) counsel failed to assure that defendant's past criminal history was accurately reflected in the presentence investigation, and (4) counsel failed to provide the court with information detailing the extensive cooperation provided by the defendant to the authorities.

Addressing each allegation separately, we note that the appropriate standard of review for a claim of ineffective assistance of counsel is as follows:

"A defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed on appeal unless clearly erroneous. [Citations omitted.] ' "When the defendant in a postconviction motion alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. Further, the defendant must make a showing of how the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions." ' " ...

... "[T]o sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. Constitution and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different."

A convicted defendant seeking a reversal of the conviction or sentence for the...