State v. Malcom, No. A-06-524 (Neb. App. 8/7/2007), A-06-524.

CourtCourt of Appeals of Nebraska
Writing for the CourtIrwin
Docket NumberNo. A-06-524.,A-06-524.
Decision Date07 August 2007

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No. A-06-524.
Court of Appeals of Nebraska.
Filed August 7, 2007.

Appeal from the District Court for Dawson County: TERRI HARDER, Judge. Affirmed.

Charles D. Brewster for appellant.

Arven Malcom, Jr., pro se.

Jon Bruning, Attorney General, and James D. Smith for appellee.

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

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IRWIN, Judge.


Arven Malcom, Jr., appeals from the district court's denial, after an evidentiary hearing, of Malcom's motion for postconviction relief. He asserts, among other things, that the trial court erred in finding he was not denied effective assistance of counsel concerning the plea bargaining process. The trial court found that Malcom failed to prove that he would have accepted the plea offer but for counsel's deficiency. We find the trial court was not clearly wrong in this factual finding. Additionally, we find no merit to the other assigned errors. Therefore, we affirm the judgment of the trial court.


Following a jury trial in 1993, Malcom was convicted and sentenced to 10 to 30 years' imprisonment for first degree sexual assault on a child. Four years later, Malcom filed his first application for postconviction relief, in which he alleged that trial counsel was ineffective for failing to file a direct appeal. After receiving new appellate counsel, Malcom filed a direct appeal with this court. See State v. Malcom, 7 Neb. App. 286, 583 N.W.2d 45 (1998) (Malcom I).

On direct appeal, Malcom asserted, in part, that his trial counsel had been ineffective because she failed to object to hearsay statements, failed to subject the State's case to meaningful review, and asked questions regarding consent and mistake of age — despite the court's warning that neither constituted valid defenses to the charge of sexual assault on a child. We held in Malcom I that although his trial counsel's actions were deficient, Malcom was not denied effective assistance of counsel because he failed to prove his trial counsel's deficient performance prejudiced him. We concluded this in Malcom I because the record indicated that there was sufficient testimony, not adduced by trial counsel, regarding sexual penetration and regarding Malcom's and the victim's ages. Malcom sought further review by the Nebraska Supreme Court, and his petition was denied.


In 1999, Malcom filed a 104-page pro se motion for postconviction relief requesting that the trial court vacate and set aside his conviction and sentence. In his motion, Malcom asserted, in part, that he was denied effective assistance of appellate counsel in Malcom I, because appellate counsel did not address an alleged conflict of interest between Malcom and the public defender's office and because appellate counsel did not address trial counsel's failure to pursue a plea bargain. The trial court ordered that an evidentiary hearing be conducted. However, the

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court limited the issues to the alleged relationship between Malcom's trial counsel and the victim and to appellate counsel's failure to investigate.

In 2002, after the evidentiary hearing, the trial court denied Malcom's motion for postconviction relief. He appealed the court's findings to this court in State v. Malcom, 12 Neb. App. 432, 675 N.W.2d 728 (2004) (Malcom II). In Malcom II, we declined to revisit the issue regarding trial counsel's deficiency at trial because the issue was determined in Malcom I. Next, we concluded that Malcom I, although not explicitly, implicitly rejected Malcom's argument that the standard of prejudice per se in United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), applied. We then looked to whether Malcom suffered prejudice by incriminating himself at the 1993 hearing, and we found no prejudice, because "uniform testimony from a variety of sources" established the requisite elements for conviction. Malcom II, 12 Neb. App. at 440, 675 N.W.2d at 736. Finally, we found that the trial court erred in limiting the scope of the evidentiary hearing to conversations between only Malcom and appellate counsel. We ordered that a new evidentiary hearing be conducted and that the hearing "shall focus on whether there was a favorable plea bargain offered . . . which bargain Malcom alleges that he rejected as a result of deficient performance of his [trial] counsel in the plea bargaining process." Id. at 444, 675 N.W.2d at 738. We found that the potential evidence adduced could include the friendship between trial counsel and the victim and Malcom's prior plea bargaining experience and its effect on the plea bargaining process in his prosecution.

(a) Malcom's Testimony

Subsequent to Malcom II, at an October 2005 evidentiary hearing, Malcom testified that the Dawson County public defender initially represented him on the 1993 sexual assault charge. The public defender filed a motion to withdraw due to a conflict of interest, which the trial court denied. Thereafter, the public defender's "assistant," whom we have referred to as Malcom's trial counsel, handled his case. Malcom testified that when he told trial counsel his version of the incident, she stated, "`I've known [the victim] ever since they moved into Lexington several years ago, and I don't believe that [the victim] would . . . lie.'" He testified that he then asked if "consent [was] a good defense," and she allegedly responded, "`[T]hat's a good defense.'"

Malcom testified that prior to trial, trial counsel spoke to him about a plea offer on only one occasion. He "remember[ed] her saying something about one year if I accepted the plea." He testified that he told her he wanted the offer in writing, due to a negative plea bargain experience in 1992 concerning unrelated sexual assault charges. Malcom testified, "[B]ecause [trial counsel told Malcom she felt he would be acquitted with a consent defense] and because she never did bring a plea in writing[, he] went to trial." He testified that he "[m]ost definitely" would have accepted the plea bargain if he had been informed that "there were no defenses of consent or mistake of age" and "no lesser included offenses" to the charge of first degree sexual assault on a child.

He testified that although the judge stated at trial that consent and mistake of age were not defenses, trial counsel "did not take any breaks or ask for any continuances or anything to discuss the matter with me." On cross-examination, Malcom admitted that there were some

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recesses in the course of the trial, but that he and trial counsel did not discuss the judge's comments.

(b) Trial Counsel's Testimony

Trial counsel testified that she became familiar with Malcom's case in July 1993 while she was employed with the Dawson County public defender's office. She testified that she did not recall knowing the victim or her family prior to Malcom's case in 1993 and that Malcom's misunderstanding may have arisen when she told him that the victim "looks like a believable witness, the jury may believe her" after taking the victim's deposition. She further testified that even if she had met the victim and her family prior to the case, she could "certainly say" that they were not personal friends.

Trial counsel testified that she and the county attorney discussed a possible plea bargain for Malcom that involved dropping the first degree sexual assault on a child charge, a Class II felony, in exchange for Malcom's guilty plea to attempted first degree sexual assault on a child, a Class III felony. She testified that she did not recall discussing sentencing recommendations as part of the plea agreement, nor did she recall discussing the possibility that Malcom would be given a 1-year prison sentence. She further testified that her notes reflected the plea offer was to include dropping the Class II felony in exchange for a guilty plea to a Class III felony, but the notes did not reflect a sentencing recommendation.

Trial counsel did not recall Malcom's requesting that the plea bargain be in writing, nor did she have any independent recollection of visiting with Malcom about the plea offer. She testified that she knew Malcom turned down the plea offer because the case proceeded to trial. She did not recall discussing with Malcom the concept of lesser-included offenses for first degree sexual assault. She testified that Malcom wanted her to try the case on the defenses of consent and mistake of age, even though she told him on "several occasions" that consent and mistake of age were not actual legal defenses, that it would be a "real uphill battle to win," and that they would not be successful using such defenses. She claimed that he "insisted" they go to trial and that he just was "adamant" that he wanted to try the case on the issues of consent and mistake of age.

(c) County Attorney's Testimony

The now former county attorney testified that he prosecuted Malcom in approximately 1992 for an unrelated sexual assault and in 1993 for the first degree sexual assault charges currently at issue. He testified that Malcom was offered a plea bargain for the 1992 sexual assault charges, which offer he initially rejected but later accepted after retaining a different lawyer. The former county attorney further recalled that Malcom had a strained relationship with the public defender, who initially represented him during the 1992 and 1993 sexual assault charges.

Regarding the 1993 sexual assault charges, the former county attorney testified that he had never been under the impression that trial counsel knew the victim prior to the case and that had the victim indicated such a relationship, he would have remembered. He also did not specifically recall offering trial counsel a plea bargain, but he testified that it "would not have been unusual" to lower a Class II felony to a Class III felony in return for...

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