State v. Johnson, S-90-1220

• Decision Date: 16 July 1993
• Docket Number: No. S-90-1220,S-90-1220
• Citation: 243 Neb. 758,502 N.W.2d 477
• Parties: STATE of Nebraska, Appellee, v. Timothy E. JOHNSON, Appellant.
• Court: Nebraska Supreme Court

Page 477

502 N.W.2d 477

243 Neb. 758

STATE of Nebraska, Appellee, v. Timothy E. JOHNSON, Appellant.

No. S-90-1220.

Supreme Court of Nebraska.

July 16, 1993.

Syllabus by the Court

1. Effectiveness of Counsel: Proof. The standard of review for a claim of ineffective assistance of counsel is a two-tiered analysis. First, the defendant must show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. Next, the defendant must show that counsel's deficient performance prejudiced the defense of his case.

2. Pleas: Effectiveness of Counsel: Proof. When the defendant has entered a guilty plea, counsel's deficient performance constitutes prejudice if the defendant shows with a reasonable probability that but for counsel's errors, the defendant would have insisted on going to trial rather than pleading guilty.

3. Effectiveness of Counsel: Presumptions. With regard to the first part of the ineffective assistance of counsel analysis, there is a strong presumption that counsel's performance was reasonable.

4. Effectiveness of Counsel: Appeal and Error. Even if counsel's actions are found to be unreasonable, the judgment will not be set aside unless those actions constitute prejudice.

5. Search and Seizure: Standing. Since it is elementary that one has a reasonable or legitimate expectation of privacy in his or her body, there is no question that one has standing to contest the search of his or her person.

6. Search Warrants. In order to be valid, a warrant must particularly describe the place to be searched and the persons to be seized.

7. Search Warrants: Police Officers and Sheriffs. The particularity requirement for a warrant does not provide that under no circumstances may a warrant be issued for one whom the police cannot identify by name in advance.

8. Search Warrants. What will amount to forbidden generality, or insufficient particularity, in a search warrant necessarily depends upon the facts and circumstances of each case.

9. Postconviction: Appeal and Error. On appeal from a proceeding for postconviction relief, the trial court's findings will be upheld unless such findings are clearly erroneous.

10. Judgments: Evidence: Appeal and Error. A motion for writ of error coram nobis reaches only matters of fact unknown to the applicant at the time of judgment, not discoverable through reasonable diligence, and which, if known by the court, would have prevented entry of judgment.

11. Postconviction: Appeal and Error. If a defendant is denied his right to appeal because of counsel's failure to timely file notice of appeal, a motion for postconviction relief is the proper means of attacking such denial.

12. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of ineffective assistance of counsel, an appellate court will not second-guess reasonable strategic decisions by counsel.

James C. Stecker of Robak and Stecker, Columbus, for appellant.

Don Stenberg, Atty. Gen. and Delores Coe-Barbee, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

PER CURIAM.

Defendant, Timothy E. Johnson, appeals the decision of the district court for Platte County which denied his motion for postconviction relief and for writ of error coram nobis. See Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1989) and 49-101 (Reissue 1988). We affirm.

On October 22, 1985, at 7:48 a.m., the Nebraska State Patrol obtained a search warrant for room No. 70 in the Seven Knights Motel, Columbus, Nebraska. The room had been rented by Michael Lutt, whom the State Patrol suspected of involvement in illegal drug activity in the area. The warrant commanded the search of the motel room, Lutt, and "persons unknown." In the evening of October 22, the State Patrol executed a search of the motel room. Lutt and the appellant were the only persons in the room when the State Patrol entered and were immediately searched. The search of the appellant revealed an eyeglass case containing a syringe filled with methamphetamine.

The county attorney's office for Platte County charged the appellant with possession of a controlled substance other than marijuana. See Neb.Rev.Stat. § 28-416 (Reissue 1985). Since the appellant had twice previously been convicted, sentenced, and committed to prison for terms of not less than 1 year, the county attorney also charged him with habitual criminal status. See Neb.Rev.Stat. § 29-2221 (Reissue 1989). Counsel was appointed, and at his arraignment on April 4, 1986, the appellant entered a plea of not guilty.

The appellant alleges that during discussions with counsel regarding the probable success of a motion to suppress, counsel told the appellant that he had no standing to contest the warrant or the search. The appellant further alleges that counsel threatened to withdraw if the appellant did not plead guilty. The appellant asserts that he felt his only alternative was to plea-bargain with the county attorney, in light of his counsel's advice that a motion to suppress would most likely be denied. Then, on May 14, 1986, pursuant to a three-way plea bargain among the appellant, the county attorney's office, and the U.S. attorney's office, the appellant entered a plea of guilty on both charges. The U.S. attorney's office agreed not to prosecute the appellant for violations of the federal controlled substances laws if he pled guilty to the State's charges. Also as part of the plea bargain, the county attorney agreed to recommend the minimum sentence under the habitual criminal statute. In addition, the start of the appellant's sentence would be delayed to enable him to arrange housing for his girl friend. The court sentenced the appellant to a term of a minimum of 10 years and a maximum of 10 years' imprisonment in the Nebraska Penal and Correctional Complex.

The appellant asserts that he asked his counsel to appeal the conviction and sentence, but counsel refused. Yet, counsel did file a motion to reduce sentence, which the district court denied and we affirmed on appeal. State v. Johnson, 225 Neb. xxi (case No. 87-044, May 20, 1987).

After obtaining new counsel, the appellant filed a motion for postconviction relief and for writ of error coram nobis, alleging ineffective assistance of counsel. On May 4, 1989, a hearing was held on the motion. At the close of the appellant's case, the State moved to dismiss the appellant's requests for relief. The district court dismissed the appellant's postconviction motion for failure to prove a prima facie case, but allowed the hearing to proceed on the writ of error coram nobis. After completion of the hearing, the district court denied the motion for writ of error coram nobis.

On appeal, we vacated the district court's judgment because the court failed to issue specific findings of fact and conclusions of law. State v. Johnson, 235 Neb. xxi (case No. 89-817, May 16, 1990). On November 27, 1990, the district court issued its findings of fact and conclusions of law, again denying the appellant's motion. Thus, the appeal now before this court arises out of the district court's second denial of the appellant's motion for postconviction relief and for writ of error coram nobis.

The appellant asserts that the district court erred in (1) granting the State's motion for directed verdict at the completion of the appellant's case on the motion for postconviction relief, (2) finding that the appellant was not denied effective assistance of counsel, and (3) denying the motion for writ of error coram nobis for the failure of the appellant's counsel to appeal the conviction and sentence upon the appellant's request.

The appellant's first and second assignments of error involve the appellant's request for postconviction relief based upon a claim of ineffective assistance of counsel. The standard of review for a claim of ineffective assistance of counsel is a two-tiered analysis. First, the defendant must show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. State v. Lyman, 241 Neb. 911, 492 N.W.2d 16 (1992). Next, the defendant must show that counsel's deficient performance prejudiced the defense of his case. Id. When the defendant has entered a guilty plea, counsel's deficient performance constitutes prejudice if the defendant shows with a reasonable probability that but for counsel's errors, the defendant would have insisted on going to trial rather than pleading guilty. Id.

With regard to the first part of the ineffective assistance analysis, there is a strong presumption that counsel's performance was reasonable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Even if counsel's actions are found to be unreasonable, the judgment will not be set aside unless those actions constitute prejudice. Id.

We now apply the two-tiered analysis to determine if counsel's actions constituted ineffective assistance. First, was counsel's advice deficient? The appellant alleges that counsel erred in advising him (1) that he had no standing to contest the search by the State Patrol and (2) that a motion to suppress evidence obtained in the search would likely be denied. The record includes testimony by counsel which indicates he in fact advised the appellant that there was no standing to contest the search and that the chance of a successful motion to suppress was slim.

While we agree that a motion to suppress would have been denied, we do not agree that the appellant did not have standing to contest the search. It is not clear from the record whether counsel advised the appellant he did not have standing to contest the search of the motel room, his person, or both. The State Patrol's search of the motel room should be viewed as a separate event from the search of the appellant....