State v. Neal, 88-328
| Decision Date | 03 March 1989 |
| Docket Number | No. 88-328,88-328 |
| Citation | 231 Neb. 415,436 N.W.2d 514 |
| Parties | STATE of Nebraska, Appellee, v. Michael E. NEAL, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Effectiveness of Counsel: Proof. To 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.
2. Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel, the defendant has the burden to present a record which shows counsel's deficient performance in representing the defendant.
3. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated.
4. Motions for Continuance: Appeal and Error. A continuance is a matter for the discretion of the trial court, whose ruling on a motion for continuance will be upheld unless such ruling constitutes an abuse of discretion.
Jarve L. Garrett, of Garrett Law Office, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and Douglas J. Peterson, for appellee.
Michael E. Neal was convicted of robbery and use of a firearm in the robbery and, consequently, was sentenced for each conviction. In State v. Neal, 216 Neb. 709, 346 N.W.2d 218 (1984), we affirmed Neal's convictions and sentences. In a postconviction proceeding, Neal appeals from the order denying him postconviction relief. We affirm.
Neal was charged with the March 30, 1982, armed robbery of a "Town & Country" store in Omaha and use of a firearm in the robbery. Michael Gutowski, a lawyer in the public defender's office, was appointed to represent Neal. On April 15, Neal was arraigned on the robbery and firearm charges, and, on his pleas of not guilty, Neal's cases were set for a jury trial. On September 8, the day before his jury trial was to begin, Neal apparently told the trial court that he had secured recently retained counsel and requested a continuance so that his retained counsel could prepare for trial. However, counsel whom Neal allegedly retained never made an appearance on Neal's behalf or otherwise confirmed representation of Neal.
Walter Bray, who had pled guilty to the same robbery charged against Neal, was sentenced the day that Neal's trial was scheduled to commence. At the commencement of Neal's trial and immediately after the jury had been impaneled, Neal requested to change his pleas from not guilty to guilty, which the district court allowed. The court found Neal guilty of robbery and use of a firearm in commission of the robbery, and thereafter sentenced Neal to consecutive sentences of 14 to 50 years' imprisonment for the robbery conviction and 5 to 20 years for the firearm conviction.
During the pendency of the direct appeal of his convictions, Neal filed an action for a writ of coram nobis in the district court, seeking a new trial on the ground of newly discovered evidence, namely, Neal's assertion that he had left the robbery site unaccompanied by Bray and other perpetrators of the robbery. At the coram nobis hearing, Gutowski testified that he had reviewed the evidence gathered by police in connection with the "Town & Country" robbery, including a statement given by Walter Bray, one of the robbers, who told police that Neal was not involved in the robbery. Gutowski further testified that he had attempted to interview Bray before Neal's trial, but learned through Bray's court-appointed lawyer that Bray refused to talk to Gutowski. Nevertheless, Gutowski obtained a subpoena for Bray's appearance as a witness in Neal's case. The district court, after a hearing, denied the requested coram nobis relief. Neal's appeal to this court, seeking a review of the coram nobis proceeding, was summarily dismissed.
On December 16, 1987, Neal filed a motion for postconviction relief based on two grounds--ineffective assistance of counsel regarding the convictions for the robbery and firearm charges and denial of his right to counsel of his choice. The district court, after examining the record of Neal's hearing for the coram nobis writ, found that an evidential hearing was not required and, therefore, that Neal was entitled to no postconviction relief. See Neb.Rev.Stat. § 29-3001 (Reissue 1985) ("Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing ..."). After the district court's denial of Neal's request for postconviction relief, this appeal followed.
Neal does not challenge the district court's refusal to hold an evidential hearing on the postconviction motion. Rather, Neal questions the district court's substantive and factual determination that Gutowski performed "at least as well as a lawyer with ordinary training and skill in the criminal law" in Neal's defense. Neal bases his postconviction claim on the sixth amendment to the U.S. Constitution and asserts that Gutowski's failure to interview Walter Bray constitutes ineffective assistance of counsel because Gutowski, uninformed concerning Bray's version of the getaway, erroneously recommended that Neal plead guilty to the robbery and firearm charges.
As expressed in State v. Hawthorne, 230 Neb. 343, 347, 431 N.W.2d 630, 633 (1988):
[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.
Further, "[t]o sustain a claim of ineffective assistance of counsel, the...
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