Following
the alleged sexual abuse of his adopted daughter, B.L.,
Lierman was convicted by a jury of three counts of first
degree sexual assault of a child, two counts of third degree
sexual assault of a child, and three counts of child abuse,
and was sentenced to a total term of 70 to 140 years'
imprisonment. The facts relevant to the charges are
that B.L. alleged this sexual abuse began in approximately
2010. At that time, Lierman was on bond awaiting trial on
charges that he sexually abused B.L.'s biological sister,
A.L., who was another of Lierman's adopted daughters.
Lierman was eventually acquitted by a jury of the charges
involving A.L.
B.L.'s allegations first came to light on or about
February 12, 2015. On February 7, B.L. ingested an unknown
number of pills in an attempted suicide and was taken to a
hospital in Kearney, Nebraska. During a counseling session on
February 12, B.L. made statements suggesting that Lierman had
been sexually abusing her. An interview at a child advocacy
center was scheduled, at which time B.L. made further
allegations against Lierman, including that he would make her
model bras for him and that he would watch her while she was
showering. B.L. was placed in foster care while the matter
was investigated.
In July 2015, B.L. disclosed that from the ages of 12 to 14,
she was subject to digital and penile penetration by Lierman
on more than one occasion, primarily while at the
family's home in Neligh, Nebraska.
State v. Lierman, 305 Neb. 289, 291-92, 940 N.W.2d
529, 536 (2020).
During
his direct appeal, he was represented by different counsel
than had represented him during his trial and sentencing and
raised numerous assignments of error including that his trial
counsel was ineffective in various respects. As relevant to
this appeal, in determining Lierman's direct appeal, the
Nebraska Supreme Court found that certain of his claims of
ineffective assistance of trial counsel were either
insufficiently pled or were addressed and rejected. State v.
Lierman, supra. However, the court determined the record on
direct appeal was insufficient to review Lierman's claims
that his trial counsel was ineffective in failing to call as
witnesses Dr. Ashutosh Atri and Dr. Hugo Gonzalez and in not
utilizing evidence of Lierman's driving logs to form an
alibi defense. Id. Specifically, the Nebraska
Supreme Court held:
Lierman first assigns that his counsel was ineffective in
failing to call two particular witnesses: Dr. Ashutosh Atri,
a doctor at the hospital where B.L. was admitted following
her suicide attempt, and Dr. Hugo Gonzalez, another doctor
who would have testified that [the victim] never reported a
sexual assault to him. Lierman alleges Atri would have
testified that [the victim] indicated early in her stay she
was not a victim of sexual assault, that she participated in
family counseling sessions, and, further, that she made no
allegations of sexual assault until she learned she might be
discharged to go home soon.
There is nothing in the record to explain why counsel did not
call Atri and Gonzalez. As such, we lack the record to
determine this issue on direct appeal.
....
Lierman argues that his trial counsel erred in not pursuing
an alibi defense through the use of Lierman's driving
logs, which were apparently created by Lierman himself.
Lierman claims those logs would have shown that he was on the
road during some of the "relevant dates."
There is nothing in the record to explain why counsel chose
not to introduce these driving records. As such, we lack the
record to determine this issue on direct appeal.
State v. Lierman, 305 Neb. 289, 313-14, 940 N.W.2d
529, 548-49 (2020). Accordingly, both of these claims were
preserved for consideration in subsequent postconviction
proceedings.
Lierman
timely filed a motion for postconviction relief. He was
appointed counsel who subsequently filed an amended motion.
The amended motion for postconviction relief contended that
trial counsel was ineffective for failing to call as
witnesses
. . . Dr. Ashutosh Atri and Dr. Hugo Gonzalez Nieto, doctors
at Richard Young where B.L. was initially taken after being
placed in emergency protective custody after ingesting an
unknown quantity of pills in an attempt to hurt herself. B.L.
was a patient at Richard Young from February 8, 2015[,] until
her discharge on February 19, 2015; [and]
. . . That Lierman was prejudiced by trial counsel's
failure to call witnesses, Dr. Ashutosh Atri, and Dr. Hugo
Gonzalez Nieto[.]
Lierman asserted that, had Dr. Atri and Dr. Gonzalez Nieto
been called as witnesses during his trial, they would have
testified that the victim did not report an allegation of
sexual assault or abuse to them or actively denied such
allegations.
The
amended motion for postconviction relief also alleged:
That trial counsel was ineffective for not utilizing the
evidence of . . . Lierman's driving logs as an alibi
defense; [and]
. . . That Lierman's driving logs were kept in the usual
course of business as part of Lierman's job driving a
semi-tractor and trailer . . . and would have been helpful in
supporting an alibi for some of the dates that were important
to the State's case, particularly that on at least some
of the dates B.L. alleged she was assaulted by Lierman, he
was [out-of-state] driving his truck....
Further,
the amended motion alleged "[t]hat any attorney with
ordinary skill and training in the area of criminal law,
given the facts of this case," would have called Drs.
Atri and Gonzalez Nieto as witnesses based on B.L.'s
denials of being a victim of sexual assault and the
exculpatory nature of said evidence and would have used
Lierman's driving logs as an alibi defense based on the
exculpatory nature of said evidence. Lierman claimed that he
"was actually prejudiced in the defense of his case as a
result of trial counsel's actions or inactions" by
trial counsel's aforementioned failure and that "had
the jury heard this evidence, it would not have convicted
Lierman."
During
the June 2022 records hearing, the court heard arguments by
the State and Lierman's counsel and received into
evidence the 11-volume bill of exceptions from Lierman's
trial and sentencing. The court declined to receive into
evidence Lierman's offer of the depositions of Dr.
Ashutosh Atri and Dr. Gonzales Nieto. At the conclusion of
the hearing, the court stated:
There [are] no allegations that [Lierman's driving] logs
would show that . . . Lierman was not present for that time
frame. And because of . . . the very nature of the time frame
itself, it makes alibi almost nearly impossible to show.
But, irrespective of that, there are no specific dates that
would be contradictory of evidence or would impeach evidence
such that records would affirmatively show . . . Lierman is
entitled to relief, and actually the records show otherwise
as to the driver's logs.
As to the two doctors not being called on . . . Lierman's
behalf, once again, the Court recalls the trial of this
matter and it was replete with the fact that when . . . [the
victim was] first . . treated because of suicidal ideations
that she denied anything inappropriate was taking place at
the Lierman home. And it was only until she was advised that
she was being returned home did anything of this nature come
up.
This was gone over frequently and the evidence that would be
presented by the doctors would have been cumulative to the
evidence that was received in court and presented to the
jury, and had no effect on the jury's deliberation or
verdict.
And so the fact that the doctors were not called to testify
as to facts that were already presented in evidence . . .
affirmatively show that [Lierman] is entitled to no relief as
to this count as to the two doctors either.
Following
the hearing, the district court filed an order overruling the
amended petition for postconviction relief in its entirety.
Lierman has timely appealed to this court.
When a
district court denies postconviction relief without
conducting an evidentiary hearing, an appellate court
determines de novo whether the petitioner has alleged facts
that would support the claim and, if so, whether the files
and records affirmatively show that he or she is entitled to
no relief. State v. Jennings, 312 Neb. 1020, 1026
982 N.W.2d 216, 223 (2022).
Appellate
review of a claim...
