State v. Hess

• Citation: 622 N.W.2d 891,261 Neb. 368
• Decision Date: 09 March 2001
• Docket Number: No. S-00-252.,S-00-252.
• Parties: STATE of Nebraska, Appellee, v. Troy Anthony HESS, Appellant.
• Court: Supreme Court of Nebraska

622 N.W.2d 891

261 Neb. 368

STATE of Nebraska, Appellee, v. Troy Anthony HESS, Appellant.

No. S-00-252.

Supreme Court of Nebraska.

March 9, 2001.

Sean J. Brennan, Sommerville, NJ, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, Justice.

I. NATURE OF CASE

Troy Anthony Hess, the appellant, was convicted in November 1994, and sentenced in January 1995, on charges of kidnapping, escape, two counts of use of a weapon to commit a felony, and being a felon in possession of a firearm. Hess' direct appeal was dismissed by this court as being filed out of time. See State v. Hess, 247 Neb. xxii (case No. S-95-146, Apr. 12, 1995). Hess now appeals from a denial of postconviction relief. The primary questions presented in this appeal are whether Hess was denied due process of law relating to the filing of the notice of appeal from his conviction and whether Hess was denied effective assistance of counsel because Hess' appellate counsel failed to respond to, or inform Hess of, this court's order to show cause why Hess' appeal should not be dismissed as untimely.

II. FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from the record produced by the evidentiary hearing in this case, as well as this court's records of Hess' direct appeal. Where cases are interwoven and interdependent and the controversy involved has already been considered and determined by the court in a former proceeding involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action. State v. Suggs, 259 Neb. 733, 613 N.W.2d 8 (2000).

Hess was convicted pursuant to a jury verdict on November 7, 1994. Hess represented himself at trial. Hess testified that after the conviction was entered, on November 20, he mailed his first notice of appeal to the clerk of the district court (clerk's office). Subsequently, Hess was sentenced on January 9, 1995. Hess testified that on January 30, he mailed his motion for appointment of appellate counsel, affidavit in forma pauperis, and 6-month financial statement to the clerk's office.

Hess testified that on February 2, 1995, he received a written response from the clerk's office indicating that no notice of appeal had been included in the paperwork that Hess had sent to the clerk's office. Hess testified that attached to this letter from the clerk's office was a photocopy of Hess' original notice of appeal, which he had mailed on November 20, 1994. At the evidentiary hearing in the instant case, Hess produced the letter and photocopy of the notice of appeal that he claimed to have received from the clerk's office, and this was admitted into evidence as exhibit 40.

Hess testified that after receiving exhibit 40 from the clerk's office, he immediately mailed another copy of his notice of appeal to the clerk's office. Hess testified that the second notice of appeal was mailed on February 6, 1995. This notice of appeal was file stamped by the clerk's office on February 10. On the same day, the district court appointed Miles Johnston, Jr., to represent Hess on appeal.

On March 22, 1995, this court issued an order to show cause why Hess' appeal should not be dismissed, as the February 10 notice of appeal was not timely filed. A copy of the order was sent to Johnston's office by certified mail and was received on March 23. The order stated that Hess was ordered to show cause by April 4 why his appeal should not be dismissed. On April 25, this court issued its mandate indicating that the appeal had been dismissed.

Hess testified that Johnston visited Hess in late May 1995 and that Johnston told Hess that Johnston was working on the appeal and did not tell Hess that the appeal had already been dismissed. Hess testified that he finally found out about the dismissal in June, after he "made a phone call to the court." Hess testified that he was told that the appeal had been dismissed for failure to show cause why the appeal should not be dismissed. It should be noted that Johnston was suspended from the practice of law on August 31, and disbarred by this court on January 10, 1997, for a longstanding pattern of neglecting matters entrusted to him. See State ex rel. NSBA v. Johnston, 251 Neb. 468, 558 N.W.2d 53 (1997).

Hess' amended motion for postconviction relief alleges, in sum, that Hess' constitutional right to a direct appeal was violated by the clerical errors of the clerk's office in failing to timely file Hess' appeal documents and by the ineffective assistance of his appellate counsel in failing to respond to this court's order to show cause. The district court held an evidentiary hearing, at which Hess was the only witness. The State did not substantively contradict Hess' testimony regarding the events leading to the dismissal of his direct appeal.

The district court denied Hess' motion for postconviction relief. The district court determined that there was no evidence to rebut the presumption that Hess' second notice of appeal was timely file stamped when it was received by the clerk's office. The district court determined that Hess did not prove that Hess' first notice of appeal was received and/or lost by the district court and that it was "inconceivable" that the clerk's office would mail a copy of that notice of appeal back to Hess. The district court generally discredited Hess' version of events and concluded that any ineffective assistance of counsel was without prejudice, because Hess would have been unable in any event to show that his appeal was timely filed. Hess appeals from the denial of postconviction relief.

III. ASSIGNMENTS OF ERROR

Hess assigns, consolidated and restated, that the district court erred in concluding that (1) Hess had not proved that his notice of appeal was received by the court clerk prior to the appeal deadline and (2) Hess was not denied his right to effective assistance of counsel when his attorney did not respond to the show cause order and explain why the notice of appeal was filed by the clerk 1 day after the appeal deadline had expired.

IV. STANDARD OF REVIEW

A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Silvers, 260 Neb. 831, 620 N.W.2d 73 (2000); State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000). The appellant in a postconviction proceeding has the burden of alleging and proving the claimed error is prejudicial. See State v. Hunt, 254 Neb. 865, 580 N.W.2d 110 (1998).

V. ANALYSIS

Initially, we note that a motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal. State v. Suggs, 259 Neb. 733, 613 N.W.2d 8 (2000). The issues presented by Hess, however, relate to the dismissal of his direct appeal and, obviously, could not have been raised on direct appeal. Therefore, the issues presented by Hess in his postconviction motion are not procedurally barred.

For relief to be granted under Neb. Rev.Stat. §§ 29-3001 to 29-3004 (Reissue 1995), the claimed infringement must be constitutional in dimension. State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000). Hess argues that he was deprived of his direct appeal because two of his constitutional rights, as guaranteed by the U.S. and Nebraska Constitutions, were violated: (1) his right to due process of law and (2) his right to effective assistance of counsel. We address each claim in turn.

1. Due Process

Hess does not clearly distinguish whether the due process claim he is presenting is procedural or substantive in nature. We determine, based upon our analysis of his argument, that Hess is asserting a procedural due process violation.

Due process claims are generally subjected to a two-part analysis: (1) Is the asserted interest protected by the Due Process Clause and (2) if so, what process is due? Billups v. Nebraska Dept. of Corr. Servs. Appeals Bd., 238 Neb. 39, 469 N.W.2d 120 (1991). Procedural due process limits the ability of the government to deprive persons of interests which constitute "liberty" or "property" interests within the meaning of the Due Process Clause and requires that parties deprived of such interests be provided adequate notice and an opportunity to be heard. Bauers v. City of Lincoln, 255 Neb. 572, 586 N.W.2d 452 (1998). The concept of due process embodies the notion of fundamental fairness and defies precise definition. In re Interest of Kelley D. & Heather D., 256 Neb. 465, 590 N.W.2d 392 (1999). See, also, Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).

The U.S. Constitution does not guarantee the right to appeal a criminal conviction. See, Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984). Where an appeal is provided as a matter of right, however, the procedures used in deciding appeals must comport with the requirements of the Due Process Clause. See, Evitts v. Lucey, supra; State v. Kelley, 198 Neb. 805, 255 N.W.2d 840 (1977). Neb. Const. art. I, § 23, guarantees the right to appeal in all felony cases. State v. Schroder, supra.

Hess argues that his right to due process was violated when he was deprived of his right to appeal due to the clerk's office's failure to appropriately date and file the notices of appeal he claims to have mailed on November 20, 1994, and February 6, 1995. For purposes of deciding this appeal, we assume that Hess has properly alleged a violation of procedural due process that deprived him of his right to direct appeal. Therefore, the issue is whether Hess met his burden of proving such a violation at the evidentiary hearing. In conducting this...