State v. Lyman

• Decision Date: 20 November 1992
• Docket Number: No. S-91-112,S-91-112
• Citation: 241 Neb. 911,492 N.W.2d 16
• Parties: STATE of Nebraska, Appellee, v. Roy K. LYMAN, Appellant.
• Court: Nebraska Supreme Court

Page 16

492 N.W.2d 16

241 Neb. 911

STATE of Nebraska, Appellee, v. Roy K. LYMAN, Appellant.

No. S-91-112.

Supreme Court of Nebraska.

Nov. 20, 1992.

Syllabus by the Court

1. Postconviction. An evidentiary hearing on a motion for postconviction relief is not required if the motion alleges only conclusions of fact or law or if the record and files in the case affirmatively establish that the defendant is not entitled to relief.

2. Pleas: Effectiveness of Counsel: Proof. In an ineffective assistance of counsel action based on a guilty-plea conviction, the prejudice requirement is satisfied if the defendant shows a reasonable probability that, but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty.

3. Effectiveness of Counsel: Confessions: Evidence. The failure of counsel to investigate or move to suppress a questionable confession is not per se ineffective assistance of counsel if it can be shown from the record that the evidence is so overwhelming against the defendant that failure to investigate or suppress the confession was a reasonable strategic move by counsel or that the defendant suffered no prejudice from counsel's inaction.

4. Effectiveness of Counsel: Appeal and Error. The strategic merits of asserting a legal defense should be left to legal practitioners, and those strategic decisions, if reasonable, will not be second-guessed by the courts.

5. Postconviction: Appeal and Error. Under the procedural bar rule, a motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased.

6. Pleas: Sentences: Time: Appeal and Error. Although a trial court's failure to inform a defendant of the mandatory consecutive nature of sentences is error, this error will not render a guilty plea invalid if the defendant is informed of the minimum time he will serve in prison and the possible range of his or her sentences.

7. Effectiveness of Counsel. One of the things a defendant must show when alleging ineffective assistance of counsel is that the deficient performance prejudiced the defendant by altering the results of the proceeding.

8. Postconviction: Right to Counsel. The law does not guarantee the right to counsel in a postconviction proceeding.

Mark A. Weber, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellant.

Roy K. Lyman, pro se.

Don Stenberg, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.

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

WHITE, Justice.

Roy K. Lyman appeals the district court's denial of his motion for postconviction relief. See Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1989). The district court found that Lyman had failed to meet his burden of showing that his constitutional rights had been denied by his 1987 guilty-plea convictions and therefore denied him relief on the motion. We affirm.

This is Lyman's second appearance before this court. In State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988) (Lyman I ), we affirmed Lyman's convictions of two counts of first degree assault and one count of use of a knife in the commission of a felony. Lyman had originally been charged with eight felony counts for stabbing his two infant daughters, his ex-wife, and his ex-wife's boyfriend. Pursuant to a plea bargain, the charges were reduced to the three listed above, and Lyman pled guilty. He was sentenced to 5 to 10 years in prison on each count, with the sentences to run consecutively.

After we affirmed his convictions, Lyman filed a motion for postconviction relief in the Douglas County District Court. The district court determined that the 20-page motion, which is not before us, alleged ineffective assistance of counsel, in violation of Lyman's constitutional right to counsel. The motion apparently alleged that counsel had inappropriately (1) failed to investigate the admissibility of Lyman's confession to police; (2) failed to move to suppress the confession; (3) failed to have a hearing on Lyman's competency to plead guilty; and (4) failed to discuss possible defenses, including the insanity defense, with Lyman.

The district court held that Lyman had not met his burden of alleging facts sufficient to show that his rights had been constitutionally violated and thus denied Lyman relief. The court refused to grant an evidentiary hearing on the postconviction motion, and Lyman perfected this appeal.

Through his own pro se brief and the brief of his appellate counsel, Lyman alleges several errors by the district court. Lyman's first assignment of error alleges that the district court erred in failing to find that Lyman had been denied effective assistance of counsel by his original counsel's failure to perform the previously mentioned actions that Lyman had listed in his motion for postconviction relief.

Lyman next alleges that his guilty plea was not knowing and voluntary because (1) counsel failed to advise Lyman of the mandatory consecutive nature of the sentences for the crimes to which he pled guilty, (2) counsel failed to apprise Lyman of the minimum time he would serve in prison, and (3) the trial court inadequately informed Lyman of the possible sentences which could be imposed for the crimes charged. Lyman further alleges that it was error not to grant an evidentiary hearing on the ineffectiveness and voluntariness issues. Finally, Lyman alleges that his rights were violated because the information that charged Lyman was constitutionally inadequate and because he was not allowed to review and contest his presentence report.

INEFFECTIVE ASSISTANCE OF COUNSEL

The most problematic points raised by Lyman involve the alleged ineffective assistance of his trial counsel. Lyman first alleges that counsel erred by failing to investigate the confession Lyman made to police and by failing to move to suppress the confession. Lyman's second ineffective assistance claim stems from his counsel's failure to have a hearing on Lyman's competency to plead guilty and his counsel's alleged failure to discuss the insanity defense with Lyman. Lyman asserts that the district court erred by refusing an evidentiary hearing on the effectiveness of Lyman's counsel.

Under the Nebraska Postconviction Act, a defendant who moves for relief must allege facts that, if proved, constitute a violation or denial of the defendant's constitutional rights, thereby rendering the judgment against the movant void or voidable. State v. Start, 229 Neb. 575, 427 N.W.2d 800 (1988). An evidentiary hearing on a motion for postconviction relief is not required if the motion alleges only conclusions of fact or law or if the record and files in the case affirmatively establish that the defendant is not entitled to relief. State v. Keithley, 238 Neb. 966, 473 N.W.2d 129 (1991); Start, supra.

Normally, a voluntary guilty plea waives all defenses to a charge. However, a court will consider an allegation that the plea was the result of ineffective assistance of counsel. State v. Russell, 239 Neb. 979, 479 N.W.2d 798 (1992) (citing State v. Stranghoener, 212 Neb. 203, 322 N.W.2d 407 (1982)).

The standard of review for an ineffective assistance of counsel claim is well defined:

" 'A defendant seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed on appeal unless clearly erroneous. [Citations omitted.] " 'When the defendant in a postconviction motion alleges a violation of his constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. Further, the defendant must make a showing of how the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions.' " '

"... '[T]o sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. Constitution and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.' ..."

State v. Gagliano, 231 Neb. 911, 914-15, 438 N.W.2d 783, 786 (1989) (quoting State v. Jones, 231 Neb. 110, 435 N.W.2d 650 (1989)).

When a conviction involves a guilty plea, the prejudice requirement is satisfied if the defendant shows a reasonable probability that, but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); State v. Wakeman, 231 Neb. 66, 434 N.W.2d 549 (1989). The entire ineffectiveness analysis is viewed with the strong presumption that counsel's actions were reasonable, and even if found unreasonable, the error justifies setting aside the judgment only if there was prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We first apply the ineffective assistance analysis to the allegations regarding Lyman's confession. At the plea hearing, after the trial court had meticulously explained Lyman's rights to him, including the fact that a statement made before a suspect's Miranda rights are read to him or her is inadmissible, Lyman stated that he had not been read his rights before confessing. The following exchange then occurred:

[The court:] What I'm trying to say is the county attorney had indicated to me that you gave a statement. If the case went to trial, they would have to show to me out of the presence of the jury that you were properly...