State v. Parnell, No. A-17-1147.

CourtCourt of Appeals of Nebraska
Writing for the CourtMOORE, Chief Judge.
PartiesSTATE OF NEBRASKA, APPELLEE, v. KEINALD V. PARNELL, ALSO KNOWN AS REGINALD V. PARNELL, APPELLANT.
Docket NumberNo. A-17-1147.
Decision Date16 October 2018

STATE OF NEBRASKA, APPELLEE,
v.
KEINALD V. PARNELL, ALSO KNOWN AS REGINALD V. PARNELL, APPELLANT.

No. A-17-1147.

NEBRASKA COURT OF APPEALS

October 16, 2018


MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: KIMBERLY MILLER PANKONIN, Judge. Affirmed.

Keinald V. Parnell, pro se.

Douglas J. Peterson, Attorney General, and, on brief, Sarah E. Marfisi for appellee.

MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.

MOORE, Chief Judge.

I. INTRODUCTION

Keinald V. Parnell appeals from the order of the district court for Douglas County, which denied his motion for postconviction relief without an evidentiary hearing. For the reasons set forth herein, we affirm.

II. BACKGROUND

As recited in this court's memorandum opinion on direct appeal:

Parnell was charged with burglary, terroristic threats, first degree false imprisonment, two counts of use of a firearm to commit a felony, possession of a firearm by a prohibited person, and misdemeanor violation of a protection order. The State also alleged that Parnell was a habitual criminal. Parnell pled guilty to the violation of a protection order and proceeded to trial on the remaining six charges.

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The evidence at trial showed that in the early morning hours of May 9, 2015, Parnell entered the house of his ex-girlfriend, Randie Frederick. Randie was not home, but her adult son, Dominic Frederick, was asleep in the living room. Dominic's two children, who also lived in the house, were not at home that night. Parnell brandished a knife and, Dominic later claimed, a gun, and forced Dominic to remain in the living room of the house until the morning hours. In the morning, Dominic's uncle came by the house after receiving no answer to phone calls to Dominic's cellphone. The uncle saw Dominic sitting on a couch inside the house and saw another figure in the house, but left without speaking to Dominic. Shortly thereafter, the Fredericks' next door neighbor saw a broken window on the Fredericks' house and called the police. Following the police's arrival, Dominic was able to safely exit the house and an hours-long standoff between Parnell and police ensued. Parnell was eventually apprehended in the attic of the house and arrested.
On the day of Parnell's arrest, police collected a knife and a glove from the Fredericks' home. Two days later, Dominic summoned the police back to his house to retrieve a second knife he claimed to have found in the attic. Eleven days later, police returned to the house with special equipment and located a gun in the basement drywall.
The jury found Parnell guilty of burglary, false imprisonment, and terroristic threats, and acquitted him of the three firearms charges.
The court ordered a presentence investigation and conducted an enhancement hearing. The court found Parnell to be a habitual criminal and sentenced him to 30 to 30 years for burglary, 30 to 30 years for terroristic threats, 30 to 30 years for false imprisonment, and one year for violation of a protection order. The court ordered that all four sentences be served concurrently and awarded Parnell credit for 327 days served.

State v. Parnell, No. A-16-354, 2016 WL 7209829 at *1 (Neb. App. Dec. 13, 2016) (selected for posting to court website).

On direct appeal, Parnell was represented by the same attorney that had represented him at trial. In the brief filed by his attorney, Parnell alleged that there was insufficient evidence to support his convictions for burglary, terroristic threats, and false imprisonment. He also alleged that he received excessive sentences for those three convictions. Although Parnell also submitted two pro se briefs on direct appeal, his arguments in those briefs either mirrored those asserted by his attorney or failed to comply with this court's rules, and we did not separately address them. This court affirmed, finding the evidence sufficient to support Parnell's convictions for burglary, terroristic threats, and false imprisonment and finding that the sentences imposed were not excessive. See State v. Parnell, supra.

On June 8, 2017, Parnell filed a pro se verified motion for postconviction relief. He set forth various claims of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, prosecutorial misconduct, trial court error, and actual innocence. On October 6, the district court entered an order, denying Parnell's motion for postconviction relief without an evidentiary hearing. We discuss the court's reasoning below as necessary to our resolution of the issues raised on appeal. Parnell subsequently perfected his appeal to this court.

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III. ASSIGNMENTS OF ERROR

Parnell asserts, restated, that the district court erred in failing to (1) conduct an evidentiary hearing on the allegations contained in his motion for postconviction relief, (2) address "the Confrontation Clause, Compulsory process and the Fourth Amendment," (3) address "the constitution [sic] right to a [s]peed[y] [t]rial violation in violation to due [p]rocess," (4) hold an evidentiary hearing on his claim that his counsel was ineffective because she had a conflict of interest, and (5) hold an evidentiary hearing on his claims of actual innocence, ineffective assistance of trial counsel, ineffective assistance of appellate counsel, prosecutorial misconduct, and misconduct by the trial judge. Brief for appellant at 2.

IV. STANDARD OF REVIEW

In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. State v. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018).

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018). When reviewing a question of law, an appellate court resolves the question independently of the lower court's conclusion. Id.

A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. Id. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. With regard to questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's conclusion. State v. McGuire, supra.

V. ANALYSIS
1. APPLICABLE LEGAL PRINCIPLES

Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable. State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018). 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 U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. State v. Stricklin, supra.

A trial court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant's rights under the Nebraska or federal Constitution. State v. Stricklin, supra. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in a case affirmatively show the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing. Id. In a postconviction proceeding, an evidentiary hearing is not required (1) when the motion does not contain factual allegations which, if proved, constitute an infringement

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of the movant's constitutional rights; (2) when the motion alleges only conclusions of fact or law; or (3) when the records and files affirmatively show that the defendant is entitled to no relief. Id.

As discussed further below, certain issues raised by Parnell in this postconviction appeal were or could have been litigated on direct appeal and are thus procedurally barred. However, because Parnell was represented by the same counsel at trial and on direct appeal, this is his first opportunity to raise issues of ineffective assistance of trial and appellate counsel. Although a motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, when a defendant was represented by the same lawyer both at trial and on direct appeal, the defendant's first opportunity to assert ineffective assistance of counsel is in a motion for postconviction relief. Id.

A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial. State v. Stricklin, supra. To establish a right to postconviction relief because of counsel's ineffective assistance, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law. State v. Foster, 300 Neb. 883, 916 N.W.2d 562 (2018). Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case. Id. To establish the prejudice prong of a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. I...

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