State v. Malcom, A-02-621.

Citation675 N.W.2d 728,12 Neb. App. 432
Decision Date09 March 2004
Docket NumberNo. A-02-621.,A-02-621.
PartiesSTATE of Nebraska, Appellee, v. Arven MALCOM, Jr., Appellant.
CourtCourt of Appeals of Nebraska

Arven Malcom, Jr., pro se.

Don Stenberg, Attorney General, Marilyn B. Hutchinson, and Corey M. O'Brien for appellee.

IRWIN, Chief Judge, and SIEVERS and MOORE, Judges.



Arven Malcom, Jr., was convicted in November 1993 in the district court for Dawson County of first degree sexual assault under Neb.Rev.Stat. § 28-319 (Reissue 1989) and was sentenced to 10 to 30 years' imprisonment. Before us in this appeal is the 104-page pro se "Verified Motion to Vacate and Set Aside Conviction and Sentence" filed in March 1999 by Malcom under the Nebraska Post-conviction Act. After granting a limited evidentiary hearing, the district court for Dawson County denied Malcom post-conviction relief, and he has now appealed to this court.


Malcom was convicted of first degree sexual assault for engaging in sexual intercourse and cunnilingus with a 15-year-old girl when he was 49 years old. The pertinent facts of the case are found in our opinion in Malcom's direct appeal, State v. Malcom, 7 Neb.App. 286, 583 N.W.2d 45 (1998), and we will not repeat them in this opinion except as necessary. We are fully aware that Malcom testified and admitted all facts necessary to prove the State's case except for the victim's age, but he claims that he did so only because of the ineffective assistance of his trial counsel. In any event, this appeal does not deal with Malcom's factual innocence. Instead, our focus is on the crucial constitutional principles upon which our criminal justice system rests and which, on occasion, take precedence over the question of a particular defendant's factual guilt or innocence.


On August 5, 1993, Malcom was charged by information with having committed first degree sexual assault when he was over 19 and the victim was under 16, a crime sometimes referenced as statutory rape. The Dawson County public defender, Stephen Potter, initially represented Malcom. The county court record shows that Potter filed a motion in the Dawson County Court to withdraw as counsel due to a conflict of interest. The county court record reflects that the court determined that there was no conflict of interest, although the facts and reasoning behind this conclusion were not put on the record. The court did find on the record that it was proper for Brenda Brogan, Potter's deputy, to act as Malcom's attorney. Malcom's motion and briefing make much of alleged conflicts of interest, including that Brogan was a friend of the victim and her family.

Brogan acted as Malcom's attorney for the trial in the district court for Dawson County, at which he was found guilty of first degree sexual assault. Brogan failed to perfect an appeal, and in Malcom's first post-conviction action, he was able to obtain vacation of his sentence on such ground. He was resentenced to the same term of imprisonment, and he then perfected a direct appeal to this court.

His direct appeal proceeded with new counsel. In the direct appeal, the following errors were assigned: ineffective assistance of counsel, erroneous jury instructions, an excessive sentence, and abuse of discretion in resentencing. In our opinion on direct appeal, State v. Malcom, 7 Neb. App. at 294, 583 N.W.2d 45 (1998), we found that trial counsel's performance had been deficient because counsel had advanced the "defenses" of consent and mistake of age, which are not defenses in a statutory rape case, as well as relying on nonexistent lesser-included offenses. However, in analyzing whether Malcom had suffered prejudice from such ineffective assistance of counsel, we said that Malcom had not been prejudiced by such deficiencies, citing the fact that the evidence supported the conviction. Id. Among other things, we referenced Malcom's admissions to two witnesses that he had had sex with the victim. This court found no reversible errors and affirmed the conviction and the sentence. It is of particular significance that Malcom sought review of our decision by the Nebraska Supreme Court. In his briefing to that court, he vigorously argued that our analysis of whether he had been prejudiced by the ineffective assistance of counsel was flawed because we should have found prejudice per se or structural error, dispensing with any need on his part to show prejudice. See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (complete denial of counsel or deprivation of effective representation at critical stage of accused's trial justifies presumption of prejudice). Nonetheless, the Nebraska Supreme Court denied Malcom's petition for further review, letting our published decision stand.

In 1999, Malcom filed a second post-conviction motion, which is now before us. The district court treated it as a first motion for post-conviction relief and entered a preliminary order in which it made a number of findings, beginning with the finding that its review would be limited to Malcom's claims concerning ineffectiveness of appellate counsel. The district court developed this position from the rule that a motion for post-conviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, quoting State v. Jones, 254 Neb. 212, 575 N.W.2d 156 (1998), disapproved on other grounds, State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998)

. Thus, the district court said, it may not review issues in regard to "ineffective assistance of counsel at the trial stage since those issues were or could have been raised on the direct appeal."

The district court correctly quotes the holding of State v. Jones, supra.

However, the district court's conclusion from that holding is not entirely correct, or at least, it is incompletely expressed. Rather, the rule is that if the record on direct appeal is not adequate for the appellate court to review a claim of ineffectiveness of counsel, then such claim must wait for a post-conviction proceeding for the development of an adequate record. See, State v. Dandridge, 255 Neb. 364, 585 N.W.2d 433 (1998); State v. Dawn, 246 Neb. 384, 519 N.W.2d 249 (1994) (as trial record did not reveal whether trial counsel had conducted investigation into informant's background, issue of ineffectiveness on ground of failure to investigate was held not to be before court); State v. Dixon, 223 Neb. 316, 389 N.W.2d 307 (1986) (court refused to consider ineffectiveness of counsel claim on direct appeal because there was no record of counsel's performance to review), disapproved on other grounds, State v. Minshall, 227 Neb. 210, 416 N.W.2d 585 (1987). In summary, before a direct appeal presents a procedural bar to raising an issue in a postconviction proceeding, the issue must be one which could have been raised on direct appeal and the direct appeal record must have been adequate for the appellate court to review and decide the issue. See State v. Matthews, 8 Neb.App. 167, 590 N.W.2d 402 (1999). In fairness, we note that elsewhere in the district court's order of April 12, 1999, its awareness of these rules is apparent, irrespective of its initially stated incorrect premise or its ultimate incorrect application thereof—which we discuss more fully later. However, completeness requires that we discuss the district court's other findings in some detail.

The district court found that Malcom's motion raised, "in essence, three claims of denial of the right to effective assistance of counsel on appeal." The district court said that these three claims were (1) that appellate counsel did not raise issues in the Court of Appeals in regard to a claimed conflict of interest between Malcom and the public defender's office; (2) that appellate counsel did not raise issues in the Court of Appeals concerning pretrial proceedings, for example, trial counsel's failure to pursue a plea bargain or file a motion to quash; and (3) that appellate counsel did not "raise all of the issues that should have been raised in order to seek a proper review in the Court of Appeals of the issue of ineffective assistance of counsel." The district court dispensed with this third claim by reasoning that even if we had found that "trial counsel was more ineffective, the result would not have been different," because although we found that Malcom's trial counsel had been ineffective, we found that Malcom's defense had not been prejudiced by such ineffectiveness.

Central to our resolution of this appeal is the district court's discussion of Malcom's motion, which it said

can be read to argue that the appellate counsel did not raise issues in the District Court by way of a motion for new trial so that there could have been a record submitted to the Court of Appeals in regard to certain issues. Specifically the issue of the conflict involving trial counsel because of her friendship of the victim's family and issues regarding counsel's failure to investigate. The Court finds that a hearing should be held on the Defendant's Motion for Post-conviction Relief in regard to those issues only.

After this finding, the district court significantly restricted the evidentiary hearing, saying that the "scope of the inquiry in regard to the depositions shall be limited to the conversations held between [Malcom] and appellate counsel in regard to the two issues [of conflict of interest and failure to investigate] noted above and the actions of appellate counsel in that regard."

The district court's incorrect finding that this post-conviction proceeding was strictly limited to the effectiveness of appellate counsel foreclosed the trial court from considering Malcom's other allegations about trial counsel, which allegations had not been procedurally barred by the direct appeal because the trial record was inadequate for us to have reviewed...

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