State v. Reddick

• Decision Date: 21 October 1988
• Docket Number: No. 87-941,87-941
• Citation: 230 Neb. 218,430 N.W.2d 542
• Parties: STATE of Nebraska, Appellee, v. Dwight E. REDDICK, Appellant.
• Court: Nebraska Supreme Court

Page 542

430 N.W.2d 542

230 Neb. 218

STATE of Nebraska, Appellee, v. Dwight E. REDDICK, Appellant.

No. 87-941.

Supreme Court of Nebraska.

Oct. 21, 1988.

Syllabus by the Court

1. Postconviction: Proof. A defendant seeking postconviction relief has the burden of establishing a basis for such relief.

2. Constitutional Law: Postconviction. Postconviction relief is available only when a constitutional right has been infringed or violated.

3. Constitutional Law: Right to Counsel: Effectiveness of Counsel. A criminal defendant has a constitutional right not only to counsel, but to the effective assistance of counsel.

4. Effectiveness of Counsel: Pleas. The voluntariness of a plea entered upon the advice of counsel depends on whether the advice was within the range of competence

demanded of attorneys in criminal cases.

5. Effectiveness of Counsel: Proof. To assert a successful claim of ineffective assistance of counsel, a criminal defendant must prove (1) that his or her attorney failed to perform as well as an attorney with ordinary training and skill in the criminal law in the area; (2) that the defendant's interests were not conscientiously protected; and (3) that if the defendant's attorney had been effective, there is a reasonable probability that the results would have been different; in order to satisfy the third, or prejudice, requirement in the context of a plea, the defendant must show that there is a reasonable probability that, but for counsel's errors, defendant would not have pled and would have insisted upon going to trial.

6. Effectiveness of Counsel: Conflict of Interest: Words and Phrases. The phrase "conflict of interest" denotes a situation in which regard for one duty tends to lead to disregard of another; a conflict of interest places a defense attorney in a situation inherently conducive to divided loyalties.

7. Right to Counsel. The right of an indigent defendant to have counsel does not give such a defendant the right to be represented by counsel of his or her own choosing, and the mere distrust of, or dissatisfaction with, appointed counsel is not enough to secure the appointment of substitute counsel.

8. Postconviction. An evidentiary hearing may properly be denied on a motion for postconviction relief when the records and files in the case affirmatively establish that defendant is entitled to no relief.

9. 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.

10. Pleas: Waiver: Indictments and Informations: Effectiveness of Counsel. A voluntary plea of no contest waives every defense to the charge, whether the defense is procedural, statutory, or constitutional, except the defenses that the information is insufficient to charge an offense and that the plea was the result of ineffective assistance of counsel.

11. Judges: Recusal: Appeal and Error. A motion to disqualify a judge on the ground of bias or prejudice is addressed to the judge's sound discretion, and an order overruling such a motion will ordinarily be affirmed on appeal unless the record establishes bias or prejudice as a matter of law.

12. Judges: Recusal: Prosecuting Attorneys. A judge is not disqualified merely because he at some earlier time and in a different case prosecuted the criminal defendant appearing before him.

Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee.

Dwight E. Reddick, pro se.

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

CAPORALE, Justice.

Defendant, Dwight E. Reddick, appeals the denial of an evidentiary hearing and dismissal of his motion, made under the provisions of the Postconviction Act, Neb.Rev.Stat. §§ 29-3001 through 29-3004 (Reissue 1985), to vacate or set aside the judgment affirmed in State v. Reddick, 221 Neb. 322, 376 N.W.2d 797 (1985) (Reddick I ). He has assigned six errors to the ruling on his postconviction motion, which meld to assert that the postconviction court erred in denying him an evidentiary hearing and dismissing his motion, inasmuch as the records and files establish that the trial court erred (1) in failing to dismiss the public defender and appoint substitute counsel because of the public defender's conflict of interest and failure to zealously pursue Reddick's defense and (2) in failing to find one of the trial judges to have lacked impartiality. Reddick has also filed a motion to expand the record, claiming that a certain statement made by him has been omitted from the trial court bill of exceptions. We overrule Reddick's motion and affirm the postconviction court's judgment dismissing his motion for postconviction relief.

Reddick, pursuant to his no contest plea, was adjudged guilty of attempted first degree sexual assault. He was thereafter determined to be a nontreatable mentally disordered sex offender and sentenced to imprisonment. Reddick's direct appeal of his conviction and sentence to this court in Reddick I resulted in the rejection of his claims that the trial court had erred in finding his condition to be nontreatable and in finding constitutional the requirement of Neb.Rev.Stat. § 29-2914 (Reissue 1985) that nontreatable mentally disordered sex offenders be imprisoned.

We begin by recalling that a defendant seeking postconviction relief has the burden of establishing a basis for such relief, State v. Harton, 230 Neb. 167, 430 N.W.2d 313 (1988), and State v. Painter, 229 Neb. 278, 426 N.W.2d 513 (1988), which is available only when a constitutional right has been infringed or violated. Kerns v. Grammer, 227 Neb. 165, 416 N.W.2d 253 (1987); § 29-3001.

Reddick's first claimed trial error rests on the fact that he wrote a number of letters to the trial judges, complaining about the representation afforded him by the attorneys assigned to him through the office of the Lancaster County public defender, and that he questioned the ethics of one of those attorneys. He argues that these complaints, coupled with his unsuccessful effort to have substitute counsel appointed, created a conflict of interest between his appointed attorneys and himself such as to have deprived him of the effective assistance of counsel.

There is no question but that a criminal defendant has a constitutional right not only to counsel, but to the effective assistance of counsel. State v. Scholl, 227 Neb. 572, 419 N.W.2d 137 (1988); State v. Grotzky, 222 Neb. 39, 382 N.W.2d 20 (1986); U.S. Const. amend. VI.

The voluntariness of a plea entered upon the advice of counsel depends on whether the advice was within the range of competence demanded of attorneys in criminal cases. State v. Harton, supra; Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). We have said that to assert a successful claim of ineffective assistance of counsel, a criminal defendant must prove (1) that his or her attorney failed to perform as well as an attorney with ordinary training and skill in the criminal law in the area; (2) that the defendant's interests were not conscientiously protected; and (3) that if the defendant's attorney had been effective, there is a reasonable probability that the results would have been different. State v. Harton, supra; State v. Painter, supra; 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). In order to satisfy the third, or prejudice, requirement in the context of a plea, the defendant must show that there is a reasonable probability that, but for counsel's errors, defendant would not have pled and would have insisted upon going to trial. State v. Harton, supra; Hill v. Lockhart, supra. A reasonable probability consists of a probability sufficient to undermine confidence in the outcome. State v. Harton, supra; State v. Broomhall, 227 Neb. 341, 417 N.W.2d 349 (1988).

The phrase "conflict of interest" denotes a situation in which regard for one duty tends to lead to disregard of another; a conflict of interest places a defense attorney in a situation inherently conducive to divided loyalties. State v. Nance, 227 Neb. 581, 418 N.W.2d 598 (1988). Assuming for purposes of argument, but not concluding, that Reddick's complaints against his attorneys created the awkward situation he claims, there is nothing to indicate that this situation was "inherently conducive to divided loyalties." If anything, the attorneys' best defense against...