State v. McGurk
| Decision Date | 30 May 1995 |
| Docket Number | No. A-93-521,A-93-521 |
| Citation | 3 Neb.App. 778,532 N.W.2d 354 |
| Parties | STATE of Nebraska, Appellee, v. Timothy G. McGURK, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Postconviction: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or federal Constitution, causing the judgment against the defendant to be void or voidable.
2. Postconviction: Proof: Appeal and Error. A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous.
3. Judgments: Appeal and Error. Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.
4. Postconviction: Effectiveness of Counsel: Proof. Nebraska law applies the following two-pronged test for determining the effectiveness of counsel in a postconviction case: (1) whether the attorney, in representing the defendant, performed at least as well as an attorney with ordinary training and skill in criminal law in the area and (2) whether the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions.
5. Postconviction: Effectiveness of Counsel: Proof. A postconviction defendant must show that his trial counsel's performance was deficient and that the deficient performance prejudiced the defendant's defense in such a way that the defendant was denied a fair trial, that is, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
6. Postconviction: Effectiveness of Counsel: Proof. A postconviction appellant must show counsel's deficient performance and prejudice to the defendant.
7. Right to Counsel: Effectiveness of Counsel: Presumptions. Prejudice will be presumed (1) where the accused is completely denied counsel at a critical stage of the proceedings, (2) where counsel fails to subject the prosecution's case to meaningful adversarial testing, and (3) where the surrounding circumstances may justify a presumption of ineffectiveness without inquiry into counsel's actual performance at trial.
8. Conflict of Interest: Effectiveness of Counsel: Presumptions. Prejudice will be presumed where there is an actual conflict of interest among multiple defendants jointly represented by the same counsel.
9. Right to Counsel: Effectiveness of Counsel. The exceptions in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), permit finding a constructive denial of counsel in only a very narrow spectrum of cases.
10. Right to Counsel: Effectiveness of Counsel: Presumptions: Proof. Unless a defendant can show that his case is squarely governed by United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), he must rebut a presumption that Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), should apply.
11. Criminal Law: Constitutional Law. Petty crimes or offenses, as opposed to serious crimes or offenses, do not give rise to the Sixth Amendment right to jury trial.
12. Criminal Law: Constitutional Law: Sentences. The severity of the maximum authorized penalty is the most objective indication of the seriousness of the crime, and a maximum authorized prison term of more than 6 months implicates the right to jury trial, whereas a term of 6 months or less presumptively does not.
13. Effectiveness of Counsel. An attorney has a duty to investigate the facts of his client's case and to research the law applicable to those facts.
14. Effectiveness of Counsel. Counsel is expected to possess knowledge of those plain and elementary principles of law which are commonly known by well-informed attorneys and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques.
15. Drunk Driving: Effectiveness of Counsel. An attorney representing a defendant charged with driving while under the influence of alcohol, third offense, whose case was tried in Nebraska in 1991 should have known of or have discovered the rules of law in Richter v. Fairbanks, 903 F.2d 1202 (8th Cir.1990), before proceeding to trial with his or her client, notwithstanding the practice of other attorneys.
16. Effectiveness of Counsel: Proof. Even where counsel's representation was deficient, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
17. Criminal Law: Judgments: Effectiveness of Counsel: Proof. The additional prejudice requirement is based on the conclusion that an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.
18. Effectiveness of Counsel: Proof. Even if a defendant shows that particular errors of counsel were unreasonable, the defendant must show that they actually had an adverse effect on the defense.
19. Effectiveness of Counsel: Proof. Proof of prejudice is required to succeed in establishing a claim of ineffective assistance of counsel.
20. Effectiveness of Counsel: Proof. In order to satisfy the prejudice prong of the analysis in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must first make an allegation of the nature and effect of the requisite prejudice.
21. Postconviction: Proof. For a postconviction motion to succeed, a defendant must allege facts which, if proved, constitute a denial of a constitutional right.
22. Postconviction: Proof. A claim of prejudice will not succeed where the claim is merely speculative.
23. Effectiveness of Counsel: Proof. In order to succeed on a claim of ineffective assistance of counsel, a defendant must prove prejudice resulted from counsel's allegedly deficient performance.
24. Effectiveness of Counsel: Records: Proof. To sustain a claim of ineffective assistance of counsel, the defendant must demonstrate prejudice was suffered, and the record must affirmatively support the claim.
25. Effectiveness of Counsel: Proof: Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A defendant claiming ineffective assistance of counsel must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. In making this determination, a court must consider the totality of the evidence before the judge or jury.
26. Effectiveness of Counsel. In making predictions of the outcome at a possible trial, where necessary, such predictions should be made objectively, without regard for the idiosyncrasies of the particular decisionmaker.
James R. Mowbray, of Mowbray & Walker, P.C., Lincoln, for appellant.
Norman Langemach, Jr., Lincoln City Prosecutor, for appellee.
Timothy G. McGurk appeals the Lancaster County District Court's affirmance of the county court's denial of his motion for postconviction relief. For the reasons recited below, we affirm.
On September 28, 1990, Officer Michael Johnston of the Lincoln Police Department arrested McGurk for driving while under the influence of alcohol (DWI). Following McGurk's arrest, the State filed a complaint charging McGurk with DWI, third offense. McGurk pleaded not guilty to the charges, and the case proceeded to trial.
The record reflects that at no time prior to trial did McGurk's trial counsel inform him of the availability of a jury trial for DWI, third offense, cases in Nebraska, notwithstanding the holding in Richter v. Fairbanks, 903 F.2d 1202 (8th Cir.1990), which had been decided May 23, 1990. Consequently, McGurk did not request a jury trial, and McGurk's case was tried to the court on January 8, 1991.
The trial testimony covers about 130 transcribed pages. Johnston testified that while on an unrelated traffic stop he witnessed McGurk drive by and remain a lengthy time at a stop sign. After completing the traffic stop, Johnston followed McGurk and witnessed McGurk make a wide turn and "weave back and forth within the lane touching center line." Johnston stopped McGurk. Following the stop, Johnston saw that McGurk's eyes were bloodshot and watery, his face was flushed, and he smelled of alcohol. Johnston asked McGurk to exit his vehicle to perform field sobriety tests. According to Johnston, McGurk was wobbly and held onto the vehicle to maintain his balance. McGurk refused to perform field sobriety tests. Johnston opined that McGurk was intoxicated and arrested him. After Johnston took McGurk to the jail at 9th and J Streets, McGurk was tested on an Intoxilyzer, which measured a blood alcohol content of .282. Ronald Ritenour, a correctional officer at the Lancaster County Correctional facility, testified as to McGurk's uncooperativeness at the jail. Rex Thompson testified regarding the maintenance of the Intoxilyzer. McGurk testified and denied making a wide turn. McGurk admitted having about five beers in the late afternoon and one beer later that night prior to arrest at approximately 12:51 a.m. on September 28, 1990. McGurk's citation charged McGurk with DWI, in violation of Lincoln Mun.Code § 10.52.020. Following closing arguments, the trial judge found McGurk guilty.
An enhancement hearing was held on January 22, 1991. Following the enhancement hearing, at which evidence of two previous DWI convictions was received, the trial court sentenced McGurk for DWI, third offense, to 3 months in jail; fined him $500 plus costs; and revoked his driver's license and all driving privileges in the State of...
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McGurk v. Stenberg
...the second claim (ineffective assistance), but did not discuss petitioner's first claim (right to trial by jury). State v. McGurk, 3 Neb.App. 778, 532 N.W.2d 354 (1995). McGurk petitioned for further review of his second claim by the Nebraska Supreme Court, but that petition was On August 1......
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...a claim of prejudice cannot be merely speculative. See State v. Gibbs, 238 Neb. 268, 470 N.W.2d 558 (1991). See, also, State v. McGurk, 3 Neb.App. 778, 532 N.W.2d 354 (1995). Galindo's claim appears to depend on the presiding judge's continued misapplication of Ring, but even assuming the p......
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McGurk v. Stenberg, 97-4253
...trial counsel did in fact perform deficiently, the claim did not establish Strickland prejudice. See State v. McGurk, 3 Neb.App. 778, 532 N.W.2d 354 (Neb.Ct.App.1995). The appeals court did not address McGurk's jury-trial claim. McGurk sought discretionary review of the ineffective assistan......
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State v. Coleman
...depending on later pleadings, because the record we have is inadequate to determine such claims. Coleman cites State v. McGurk, 3 Neb.App. 778, 532 N.W.2d 354 (1995), for the generic claim that he "is entitled to a new trial as the circumstances justify a presumption of ineffectiveness." Br......