State v. Pope

• Decision Date: 21 September 1984
• Docket Number: No. 83-956,83-956
• Citation: 355 N.W.2d 216,218 Neb. 361
• Parties: STATE of Nebraska, Appellee, v. Gary W. POPE, Appellant.
• Court: Nebraska Supreme Court

Page 216

355 N.W.2d 216

218 Neb. 361

STATE of Nebraska, Appellee, v. Gary W. POPE, Appellant.

No. 83-956.

Supreme Court of Nebraska.

Sept. 21, 1984.

Syllabus by the Court

1. Post Conviction: Appeal and Error. A motion for post conviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated.

2. Post Conviction: Appeal and Error. A petitioner in a post conviction proceeding may not raise questions which could have been raised on direct appeal unless the questions are such that they would make the judgment of conviction void or voidable under the state or federal Constitution.

3. Post Conviction: Appeal and Error. Matters already litigated or which could have been raised on direct appeal are not properly included in an action seeking post conviction relief.

4. Appeal and Error. Where an issue is known to the defendant at trial and he fails to raise it in his direct appeal, the appeal is waived.

Steven Lefler, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Lynne R. Fritz, Asst. Atty. Gen., Lincoln, for appellee.

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

KRIVOSHA, Chief Justice.

The appellant, Gary W. Pope, appeals from an order entered by the district court for Saunders County, Nebraska, denying him post conviction relief sought pursuant to the provisions of Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1979). After reviewing the record, we believe the judgment should be affirmed.

This is the second time this matter has been before this court. Pope was originally convicted of first degree murder and sentenced to life imprisonment. On direct appeal to this court the decision and sentence were affirmed. See State v. Pope, 211 Neb. 425, 318 N.W.2d 883 (1982) (Pope I ). The facts of the case are set out in detail in Pope I and will not be repeated here. The important factor is that the issues raised in Pope I are nearly identical to those raised here. In Pope I it was claimed that the trial court erred in failing to declare a mistrial on the court's own motion when, during trial, it allegedly became apparent that Pope's trial counsel was acting under an actual conflict of interest. We examined that claim in Pope I and found that it was without merit. In this appeal Pope maintains that the trial court erred in two respects: (1) That the court erred in failing to grant post conviction relief because Pope's trial counsel was acting under an actual conflict of interest, and (2) That the trial court, being privy and witness to the various conversations and communications which were the subject matter of the exhibits contained within the post conviction appeal, should have disqualified itself.

We may easily dispose of both matters. The purpose of affording post conviction relief is not to permit the defendant endless appeals on matters already decided. Rather, the purpose is to correct errors of constitutional proportion which could not otherwise be raised on direct appeal, such as ineffectiveness of counsel who brought the direct appeal in the first place. We have repeatedly held that a motion for post conviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated. See, State v. Hochstein, 216 Neb. 515, 344 N.W.2d 469 (1984); State v. Ohler, 215 Neb. 401, 338 N.W.2d 776 (1983); State v. Freeman, 212 Neb. 278, 322 N.W.2d 437 (1982); State v. Meredith, 212 Neb. 109, 321 N.W.2d 456 (1982). Furthermore, we have held that a petitioner in a post conviction proceeding may not raise questions which could have been raised on direct appeal unless the questions are such that they would make the judgment of conviction void or voidable under the state or federal Constitution. See, State v. Hochstein, supra; State v. Stranghoener, 212 Neb. 203, 322 N.W.2d 407 (1982); State v. Shepard, 208 Neb. 188, 302 N.W.2d 703 (1981); State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980). We have further held that matters already litigated or which could have been raised on direct appeal are not properly included in an action seeking post conviction relief. See State v. Shepard, supra. Moreover, where an issue is known to the defendant at trial and he fails to raise it in his direct appeal, the appeal is waived. See, State v. Cole, supra; State v. Fowler, 201 Neb. 647, 271 N.W.2d 341 (1978).

The record in this case and our opinion in Pope I make it clear that all of the above rules are applicable. Pope is not entitled to any post conviction relief because the matters involved in this post conviction action were matters which either had in fact been decided by this court on direct appeal or were matters known to the defendant and therefore could have been raised on direct appeal.

Pope knew that the trial judge had not disqualified himself when he perfected his direct appeal to this court, yet he did not raise that as an error. In passing, we might note that the judge's failure to disqualify himself was not error, see State v. Herren, 212 Neb. 706, 325 N.W.2d 151 (1982), which undoubtedly was the reason counsel did not raise the matter on direct appeal, though he now attempts to do so on post conviction relief. In any event, the issue is not one which can now be considered in this post conviction action.

Additionally, we specifically addressed the issue of counsel's alleged conflict of interest in Pope I and determined that a conflict did not exist. Pope's counsel in this action, who was the same counsel as in the direct appeal though not the trial counsel, argues that our opinion in Pope I was based upon a lack of evidence as to...