State v. Painter

• Decision Date: 22 July 1988
• Docket Number: No. 87-647,87-647
• Parties: STATE of Nebraska, Appellee, v. Robert R. PAINTER, Appellant.
• Court: Nebraska Supreme Court

Page 513

426 N.W.2d 513

229 Neb. 278

STATE of Nebraska, Appellee, v. Robert R. PAINTER, Appellant.

No. 87-647.

Supreme Court of Nebraska.

July 22, 1988.

Syllabus by the Court

1. Postconviction: Appeal and Error. A motion for postconviction relief may not be used to obtain review of issues which could have been raised on direct appeal.

2. Postconviction: Appeal and Error. 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 unless clearly erroneous.

3. Effectiveness of Counsel: Proof. To assert a successful claim of ineffective assistance of counsel, a defendant must prove (1) that his attorney failed to perform as well as an attorney with ordinary training and skill in the criminal law in the area; (2) that his interests were not conscientiously protected; and (3) that if his attorney had been effective, there is a reasonable probability that the results would have been different.

Lavern R. Holdeman and Rick L. Williams, of Peterson Nelson Johanns Morris & Holdeman, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Susan M. Ugai, Lincoln, for appellee.

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

WHITE, Justice.

Defendant, Robert R. Painter, has appealed from an order of the district court for Madison County which denied his motion for postconviction relief. The motion to vacate sentence raised three issues on postconviction: (1) whether defendant's confession was coerced; (2) that defendant was incompetent at the time of the proceedings against him and unable to assist in his defense; and (3) ineffective assistance of counsel.

In January of 1986, the defendant was charged with sexual assault of a child, a Class IV felony, in violation of Neb.Rev.Stat. § 28-320.01 (Reissue 1985). On February 10, 1986, defendant entered a plea of guilty to that charge pursuant to a plea agreement in which the State agreed to refrain from charging Painter with first degree sexual assault, a Class II felony, and to not recommend a specific term of incarceration regarding a probation violation. Painter was sentenced to a term of not less than 20 months' nor more than 5 years' imprisonment in connection with the sexual assault on a child conviction.

Further, following revocation of his probation due to the sexual assault conviction, he was sentenced to the same term for the earlier conviction for aiding and abetting the commission of a theft. The court ordered, as part of the second sentence, that the two sentences would be served consecutively. The two cases involved were consolidated on direct appeal, and the convictions and sentences were affirmed by this court in all respects. State v. Painter, 223 Neb. 808, 394 N.W.2d 292 (1986).

Painter was granted an evidentiary hearing on his postconviction motion and was represented by counsel in those proceedings. The district court granted the State's motion to dismiss the first two issues raised by the postconviction petition, the coerced confession issue and the alleged incompetence of the defendant at the time of his conviction for sexual assault on a child. The evidentiary hearing proceeded, and further evidence was adduced on the third issue of ineffective assistance of counsel.

On this appeal Painter assigns one general error. Appellant alleges that the district court erred in failing to vacate the judgment and sentence imposed upon Painter, as the same were void or voidable under the Constitutions of the United States and the State of Nebraska. From that vague assigned error it is difficult to tell whether the appellant takes issue with the court's decision to dismiss the first two grounds of relief in the petition or if the only error complained of is the court's ruling on the ineffective assistance of counsel claim. In any event, we can dispose of any claimed errors as to the court's ruling on the first two issues in the petition by referring to our longstanding rule that a motion for postconviction relief may not be used to obtain review of issues which could have been raised on direct appeal. State v. Rivers, 226 Neb. 353, 411 N.W.2d 350 (1987). The questions of coerced confession and the defendant's competence could have been raised on direct appeal and cannot be the basis for postconviction relief. Aside from that rule, the district court did review the deposition evidence introduced by defendant on those issues and made specific findings against the defendant as to those claims. For those reasons, any alleged error based on the court's order dismissing the first two grounds of relief are without merit.

Appellant's principal basis for relief on postconviction is a claim of ineffective assistance of counsel. Painter alleges that his counsel failed to adequately investigate the case, failed to request an evaluation to determine Painter's competence at the time of arraignment and sentencing, and failed generally to render effective assistance in preparing Painter's case and his defenses thereto.

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. State v. Rivers, supra; State v. Fries, 224 Neb. 482, 398 N.W.2d 702 (1987).

"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."

State v. Broomhall, 227 Neb. 341, 343, 417 N.W.2d 349, 351 (1988).

To assert a successful claim of ineffective assistance of counsel, a defendant must prove (1) that his attorney failed to perform as well as an attorney with ordinary training and skill in the criminal law in the area; (2) that his interests were not conscientiously protected; and (3) that if his attorney had been effective, there is a reasonable probability that the results would have been different. State v. Propst, 228 Neb. 722, 424 N.W.2d 136 (1988); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The Strickland standard for evaluating claims of ineffective assistance of counsel applies to ineffective assistance claims arising out of the plea bargaining process as well as the usual criminal trial context. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The "prejudice" requirement enunciated in the Strickland test "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. at 370. "In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id.

Painter's ineffective assistance claim is based generally on counsel's alleged failure to adequately investigate his case. Specifically, that failure to investigate includes (1) failure to interview key witnesses and (2) failure to obtain an independent assessment of Painter's competence.

In Strickland, the Supreme Court stated that the duty to investigate can be defined as "a duty to make reasonable investigations or to make a...