State v. Rivers, 86-1080

Decision Date28 August 1987
Docket NumberNo. 86-1080,86-1080
Citation411 N.W.2d 350,226 Neb. 353
PartiesSTATE of Nebraska, Appellee, v. Robert Earl RIVERS, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Postconviction. When a motion for postconviction relief and the files and records show that a defendant is not entitled to relief, no evidentiary hearing is required.

2. 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.

3. 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 in denying relief will not be disturbed on appeal unless they are clearly erroneous.

4. Postconviction. Although an evidentiary hearing is not always necessary on an application for postconviction relief, such a hearing is usually advisable to avoid protracted litigation.

5. Pleas. A voluntary guilty plea waives every defense to the charge, whether the defense is procedural, statutory, or constitutional.

6. Effectiveness of Counsel. This court has adopted a two-part test to determine whether a defendant received effective counsel: first, the attorney must perform at least as well as an attorney in that area with ordinary skill in criminal law, and second, the attorney must conscientiously protect the client's interests. Additionally, the defendant must show that there is a reasonable probability that but for the attorney's error the result of the case would have been different.

E. Michael Slattery of Case, Reinsch & Slattery, P.C., Plattsmouth, for appellant.

Robert M. Spire, Atty. Gen., and Steven J. Moeller, Lincoln, for appellee.

BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

COLWELL, District Judge, Retired.

This is a postconviction proceeding under Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1985). Defendant, Robert Earl Rivers, appeals an order denying him an evidentiary hearing and postconviction relief, claiming an evidentiary hearing was required upon his motion that contained factual allegations which, if proved, constituted a violation or infringement of constitutional rights, and citing State v. Malek, 219 Neb. 680, 365 N.W.2d 475 (1985).

We note that a further statement of the Malek rule includes: "When a motion for postconviction relief and the files and records show that a defendant is not entitled to relief, no evidentiary hearing is required." State v. Bean, 224 Neb. 278, 280, 398 N.W.2d 104, 107 (1986). Such files and records include the presentence report. State v. Waterman, 215 Neb. 768, 340 N.W.2d 438 (1983).

On December 29, 1983, Rivers entered a plea of guilty to one count of first degree sexual assault, Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1985), the victim being under 16 years of age. On August 23, 1984, a sentence of not less than 5 and not more than 9 years was imposed, to be served in the Nebraska Penal and Correctional Complex. There was no direct appeal. Rivers was represented by attorney Oliver Pollak, of Omaha, Nebraska. We affirm.

On July 16, 1983, defendant Rivers, age 35 years, was residing at a trailer court in Eagle, Cass County, Nebraska, with his wife, Janette, and her two daughters, Marjie, age 15 years, and Cheri, age 13 years. About 8 p.m., Rivers suggested to Marjie that they go out to the edge of town, and Marjie agreed. She rode her moped, and Rivers followed in his car. They went to a secluded place under a mulberry tree, where Marjie voluntarily removed her clothing and Rivers had anal intercourse with her. Marjie returned to the family home, where she showered and changed clothing. Soon, Janette became suspicious, and after some questioning, Marjie admitted the assault. Janette telephoned the State Patrol; Officer B.L. Hobbs responded, and later placed Rivers under arrest. Both Marjie and Rivers had berry stains on their person. When first interviewed, Rivers denied the assault, but admitted being at the assault scene with Marjie and took the officer there. He explained the berry stains resulted from their falling down. The next day, still denying the July 16 assault, Rivers told officers that he had had prior anal intercourse with Marjie in the last 2 or 3 years. Marjie later confirmed this to an officer by saying that there had been several acts, the last being in October 1982.

Prior to accepting Rivers' guilty plea, the trial judge conducted an extensive allocution with Rivers, in full compliance with State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981), and State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).

At the time of sentencing, the trial judge reviewed a lengthy presentence report prepared by a state probation officer that included (1) Rivers' criminal record, beginning in 1965, showing more than 35 arrests, mostly alcohol-related, and two prior felony convictions, (2) copies of interviews and signed statements of Rivers, his wife, Janette, and his stepdaughter, Marjie, (3) numerous letters and copies of letters between Rivers and his former wife, Janette (their divorce became final in August 1983), showing a continued family bond between them and hope for reconciliation, and (4) an August 3, 1983, report from the Nebraska State Patrol laboratory that semen was identified in the anal specimens taken from Marjie.

On June 3, 1986, while still confined, Rivers filed a motion to vacate judgment. The court appointed E. Michael Slattery, attorney, of Plattsmouth, Nebraska, as counsel for Rivers. On September 16, 1986, Rivers filed a verified amended motion to vacate judgment, alleging numerous errors that we summarize as follows: (1) ineffective counsel, because Pollak did not advise Rivers of his defenses; particularly, that his conviction required corroboration of the victim's statement and proof of her age; that Pollak promised Rivers that he would be confined in the regional center and instructed Rivers to respond negatively when the judge asked him about possible threats and promises that induced his guilty plea; that there was animosity between Pollak and Rivers, shown when Pollak implied to the judge that Rivers was lying; and that Pollak had a conflict of interest in offering to perform counseling between Rivers and Janette, while she was a potential witness; (2) insufficient factual basis to support the guilty plea; (3) involuntary guilty plea; and (4) abuse of discretion by the trial judge in the imposition of sentence.

A motion for postconviction relief may not be used to obtain review of issues which could have been raised on direct appeal. State v. Evans, 224 Neb. 64, 395 N.W.2d 563 (1986).

"A defendant seeking post conviction relief has the burden of establishing a basis for such relief, and the findings of the district court in denying relief will not be disturbed on appeal unless they are clearly erroneous." (Syllabus of the court.) State v. Moore, 217 Neb. 609, 350 N.W.2d 14 (1984).

The evidentiary hearing provided in § 29-3001 is a vehicle for a confined defendant to meet his or her burden of proof, and "although an evidentiary hearing is not always necessary on an application for post conviction relief, 'such a hearing is usually advisable to avoid protracted litigation.' " State v. Waterman, 215 Neb. 768, 774, 340 N.W.2d 438, 442 (1983). "A voluntary guilty plea waives every defense to the charge, whether the defense is procedural, statutory, or constitutional." State v. Paulson, 211 Neb. 711, 714, 320 N.W.2d 115, 117 (1982).

Pursuant to a court order, argument was had October 10, 1986, on the sole issue of whether or not an evidentiary hearing should be provided; no evidence was presented. On October 20, 1986, the judge made written findings, including:

[T]he defendant was ably represented by his counsel at the time of the entry of the plea and prior thereto; that he has failed to show the ineffectiveness of counsel either in the records or the presentence report or that the items complained of could not have been used to secure the review of an issue on direct appeal.

Thereafter, he denied both an evidentiary hearing and the motion for postconviction relief, citing State v. Birge, 223 Neb. 761, 763, 393 N.W.2d 713, 714-15 (1986):

This court has adopted a two-part test to determine whether a defendant received effective counsel: first, the attorney must perform at least as well as an attorney in that area with ordinary skill in criminal law, and second, the attorney must conscientiously protect the client's interests.... Additionally, the defendant must show that in the absence of the attorney's error the result of the case would have been different.

Although we believe it made no difference in this case, the correct rule is that the defendant must show that there is a reasonable probability that but for counsel's error the result of the case would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

One general error is assigned for review: "The Court erred in not allowing Appellant to proceed with an evidentiary hearing in support of his Motion to Vacate." We review by referring to the summarized allegations in the motion.

Ineffective counsel: There is no merit to Rivers' claim that Pollak did not explain his possible defenses. The record shows the victim had been living in his household for more...

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  • State v. Johnson
    • United States
    • Nebraska Court of Appeals
    • 25 Junio 1996
    ...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 ......
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