State v. Hawkman

• Decision Date: 01 November 1978
• Docket Number: No. 41863,41863
• Citation: 201 Neb. 605,271 N.W.2d 46
• Parties: STATE of Nebraska, Appellee, v. Kenneth HAWKMAN, Appellant.
• Court: Nebraska Supreme Court

Page 46

271 N.W.2d 46

201 Neb. 605

STATE of Nebraska, Appellee, v. Kenneth HAWKMAN, Appellant.

No. 41863.

Supreme Court of Nebraska.

Nov. 1, 1978.

Syllabus by the Court

1. Effectiveness of counsel in the representation of a defendant in a criminal case is measured by comparison with the standard of performance which should be expected from a lawyer with ordinary training and skill in the criminal law in his area.

2. A claim of double jeopardy cannot be established without a showing of a previous charge and conviction arising out of the same transaction.

3. When several sentences are imposed upon counts based upon the same transaction, the provision that the sentences shall run concurrently produces a single result and the constitutional restriction against multiple punishment is not violated.

Magnuson, Magnuson & Peetz, O'Neill, for appellant.

Paul L. Douglas, Atty. Gen., Marilyn B. Hutchinson, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ., and KUNS, Retired District Judge.

KUNS, Retired District Judge.

This is an appeal from an order denying post conviction relief. Appellant was prosecuted in the District Court for Cherry County, Nebraska, upon an information consisting of four counts. Following a plea of guilty to each count, concurrent sentences were imposed. A belated motion for new trial was filed and upon appeal to this court the judgment was affirmed. State v. Hawkman, 198 Neb. 578, 254 N.W.2d 90.

Subsequently, appellant moved for post conviction relief upon the grounds of ineffectiveness of counsel and that the several charges against him constituted double jeopardy. The trial court ordered an evidentiary hearing, after which it made specific findings that the evidence was insufficient to establish the allegations of lack of effective assistance of counsel, and the further claims of redundant charges of double jeopardy.

The evidence, all offered by the appellant, consisted of testimony by his previous counsel and by the appellant himself. The record does not show any testimony bearing upon the question of what standard of performance should be expected of a lawyer with ordinary training and skill in the criminal law in his area, according to State v. Leadinghorse, 192 Neb. 485, 222 N.W.2d 573. The appellant disputed various portions of the testimony of his counsel. The trial court, having heard the testimony and observed the witnesses, resolved any conflicts in the testimony by its findings. No error in such findings has been shown.

Appellant was charged upon four counts: (1) Assault with intent to rob; (2) assault with intent to commit great bodily injury; (3) stabbing with intent to wound and maim; and (4) attempt to steal an...