State v. Loving

• Docket Number: A-23-009
• Decision Date: 16 January 2024
• Parties: State of Nebraska, appellee, v. Jeffrey S. Loving, appellant
• Court: Nebraska Court of Appeals

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State of Nebraska, appellee,
v.
Jeffrey S. Loving, appellant

No. A-23-009

Court of Appeals of Nebraska

January 16, 2024

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge. Affirmed in part, and in part vacated and remanded for further proceedings.

Jeffrey S. Loving, pro se.

Michael T. Hilgers, Attorney General, and Nathan A. Liss for appellee.

RIEDMANN, ARTERBURN, and WELCH, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

ARTERBURN, JUDGE

INTRODUCTION

Jeffrey S. Loving appeals from an order denying his motion for postconviction relief following an evidentiary hearing on his claim that trial counsel was ineffective for failing to file a direct appeal. In the same order, the district court denied Loving's separate claim of ineffective assistance of trial counsel, which alleged that counsel should have filed a motion for absolute discharge on speedy trial grounds. For the reasons set forth below, we affirm in part, and in part vacate and remand for further proceedings.

BACKGROUND

The State filed an information charging Loving with first degree murder pursuant to Neb. Rev. Stat. § 28-303(1) (Reissue 2016) and with use of a deadly weapon to commit a felony pursuant to Neb. Rev. Stat. § 28-1205(1) (Reissue 2016). The charges against Loving stemmed

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from an incident which occurred on July 7, 2016. Evidence presented by the State revealed that at 5:53 p.m., shots were fired near the intersection of 28th and Laurel Avenues in Omaha, Nebraska. Approximately 3 minutes after the shots were fired, the 911 emergency dispatch service received a telephone call indicating that there was a shooting victim located at a gas station a short distance from 28th and Laurel Avenues.

When police arrived at the gas station, they found Marshall Washington in the front seat of a silver sport utility vehicle (SUV) suffering from a gunshot wound to his right cheek. Washington ultimately succumbed to his injuries. He was pronounced dead at a hospital upon his arrival. At the gas station, police also located the driver of the SUV, Theodore Loving. Theodore told police that his nephew, Loving, had shot at the vehicle as a result of a dispute they were having. Theodore claimed that Loving owed him $3,000 for drugs he had purchased. Loving was subsequently arrested and charged with the murder of Washington.

In October 2017, a jury trial was held and Loving was found guilty of second degree murder and use of a deadly weapon (firearm) to commit a felony. He was sentenced to a total of 110 to 130 years' imprisonment. Loving appealed his convictions and sentences to this court. See State v. Loving, 27 Neb.App. 73, 926 N.W.2d 686 (2019). On appeal, Loving alleged, among other claims, that a new trial was warranted because the district court incorrectly instructed the jury on the elements of second degree murder. We agreed with this assertion, finding plain error in the step instruction given to the jury regarding the elements of murder in the second degree and manslaughter. We reversed Loving's convictions and sentences, and remanded for a new trial. Id. Our mandate issued on April 9, 2019.

After our mandate issued, the district court issued an order scheduling the retrial for December 2, 2019. However, on November 22, Loving's trial counsel filed a motion to withdraw, indicating that withdrawal was required by "the rules of ethics delineated in the Rules of Professional Conduct." The district court granted the motion to withdraw and appointed Loving with substitute trial counsel. Substitute counsel filed a motion to continue the trial to at least April 13, 2020, so that he could adequately prepare. Filed with the motion was an affidavit from Loving indicating that he was waiving his right to a speedy trial after discussing the issue with his new counsel. The district court granted the motion to continue.

On March 13, 2020, the State filed an amended information charging Loving with second degree murder pursuant to Neb. Rev. Stat. § 28-304 (Reissue 2016) and with use of a deadly weapon to commit a felony pursuant to § 28-1205(1). On July 21, pursuant to a plea agreement with the State, Loving pled guilty to the charges in the amended information. In exchange for his guilty pleas, the State recommended to the district court that Loving receive a sentence of 30 to 50 years' imprisonment on his second degree murder conviction and a sentence of 10 to 10 years' imprisonment on his conviction for use of a deadly weapon to commit a felony, for a total sentence of 40 to 60 years' imprisonment. The district court accepted the State's sentencing recommendation and sentenced Loving in conformity therewith. No direct appeal followed.

On July 1, 2021, Loving timely filed a verified motion for postconviction relief in the district court. In his motion, Loving alleged that counsel was ineffective for failing to file a direct appeal when Loving had repeatedly requested that counsel do so following the imposition of his sentences. Loving made a second claim of ineffective assistance of counsel based on trial counsel's failure to file a motion for absolute discharge on speedy trial grounds. Loving also appeared to

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argue in his motion that the district court erred in failing to dismiss the charges against Loving, knowing that his speedy trial rights had been violated. Essentially, Loving's speedy trial assertions stemmed from his belief that the original date for the retrial, December 2, 2019, was beyond the speedy trial deadline and that, as such, substitute counsel should have filed a motion to discharge, rather than a motion to continue the trial, and the district court should not have accepted his plea.

The court ordered an evidentiary hearing on Loving's first claim, regarding the...