State v. Robertson
| Decision Date | 01 July 2016 |
| Docket Number | No. S–15–443.,S–15–443. |
| Citation | 294 Neb. 29,881 N.W.2d 864 |
| Parties | State of Nebraska, appellee, v. Keenon A. Robertson, appellant. |
| Court | Nebraska Supreme Court |
Gerald L. Soucie for appellant.
Keenon A. Robertson, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.
Heavican, C.J., Wright, Connolly, Miller–Lerman, Cassel, Stacy, and Kelch, JJ.
Keenon A. Robertson appeals from the district court's denial of his motion for postconviction relief without an evidentiary hearing and the subsequent denial of his motion to alter or amend the judgment. We affirm.
After a jury trial, Robertson was convicted of one count of discharging a firearm at an inhabited house, occupied building, or occupied vehicle and one count of use of a weapon to commit a felony. He was sentenced to a total of 25 to 60 years' imprisonment.
Robertson filed a direct appeal and was appointed different counsel. The Nebraska Court of Appeals affirmed his convictions and sentences.1 Robertson then filed a verified motion for postconviction relief. In it, he alleged his appellate counsel was ineffective for (1) failing to convince the Court of Appeals that the trial court's failure to give a defense of others instruction was prejudicial, (2) not alleging his trial counsel was ineffective for failing to timely appeal the denial of his pretrial motion for discharge, and (3) not filing a petition for further review after the Court of Appeals concluded his ineffective assistance of trial counsel claim related to juror misconduct was not reviewable on direct appeal.
After directing the State to respond to Robertson's motion, the district court denied postconviction relief without conducting an evidentiary hearing. Robertson then filed a motion to alter or amend the judgment, which the district court ultimately denied. Robertson timely filed this appeal.
Robertson assigns, restated and summarized, that (1) his appellate counsel was ineffective for not convincing the Court of Appeals that Robertson was prejudiced by the trial court's failure to give a defense of others instruction, (2) his appellate counsel was ineffective for failing to raise on direct appeal that trial counsel was ineffective for failing to timely appeal from the denial of his motion for absolute discharge, (3) his trial counsel was ineffective for failing to move for a mistrial after a juror disclosed he had visited the scene of the crime, (4) the district court erred in denying postconviction relief without giving him an opportunity to amend the pleadings, (5) the district court erred in denying his motion to alter or amend the judgment after denying postconviction relief, and (6) the district court erred in failing to appoint him postconviction counsel.
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.2
Failure to appoint counsel in a postconviction action is not error in the absence of an abuse of discretion.3
A denial of a motion to alter or amend the judgment is reviewed for an abuse of discretion.4
A defendant seeking relief under the Nebraska Postconviction Act5 must show that his or her conviction was obtained in violation of his or her constitutional rights.6 An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution, causing the judgment against the defendant to be void or voidable.7 When a district court denies postconviction relief without conducting an evidentiary hearing, an appellate court must determine whether the petitioner has alleged facts that would support a claim of ineffective assistance of counsel and, if so, whether the files and records affirmatively show that he or she is entitled to no relief.8 If the petitioner has not alleged facts which would support a claim of ineffective assistance of counsel or if the files and records affirmatively show he or she is entitled to no relief, then no evidentiary hearing is necessary.9
When this case was on direct appeal, Robertson's counsel assigned and argued that the trial court erred in failing to give a defense of others jury instruction. The Court of Appeals agreed. It reasoned, however, that because the jury rejected Robertson's self-defense claim, the jury necessarily would have rejected a defense of others claim, so the Court of Appeals concluded Robertson could not show he was prejudiced by the failure to give the instruction. In his postconviction motion, Robertson alleged his appellate counsel was ineffective because he failed to “demonstrate the requisite level of outcome-changing prejudice” to the Court of Appeals.
Liberally construed, Robertson's postconviction motion alleges that had appellate counsel made different legal arguments, the Court of Appeals would have reached a different result. We conclude the files and records affirmatively show that the Court of Appeals correctly resolved the legal issue, so no legal argument posited by appellate counsel could have resulted in a different outcome. The district court properly concluded that Robertson is not entitled to an evidentiary hearing on this issue, because the files and records affirmatively show the claim is without merit.
Prior to trial, Robertson filed a motion for absolute discharge, contending his statutory right to a speedy trial had been violated. The district court denied the motion for discharge, and no appeal was taken.
Later, on direct appeal, Robertson's counsel alleged the district court erred in granting the State's motion to continue just prior to the date trial was scheduled to commence. The Court of Appeals construed this as an attempt by Robertson to argue that the motion for discharge should have been granted. It declined to address the issue on direct appeal, because the denial of the motion for discharge was a final order from which no timely appeal had been taken.
In his postconviction motion, Robertson presents a layered claim of ineffective assistance of counsel. He alleges his appellate counsel was ineffective for failing to assign as error on direct appeal that his trial counsel was ineffective in failing to timely appeal from the denial of the motion to discharge. He alleges this failure prevented the Court of Appeals from considering the issue of whether granting the continuance violated his right to a speedy trial. In its order denying postconviction relief without an evidentiary hearing, the district court found that the record showed the continuance was supported by good cause and concluded that the speedy trial clock was tolled during the time period of the continuance.
We agree with the district court that the files and records affirmatively disprove this layered ineffective assistance of counsel claim. According to Neb. Rev. Stat. § 29–1207 (Reissue 2008), every person indicted or informed against for any offense must be brought to trial within 6 months. When a felony is involved, the 6–month speedy trial period commences to run from the date the indictment is returned or the information is filed.10 Certain periods of delay, however, are excluded from the speedy trial computation, including the time between the defendant's assertion of pretrial motions and their final disposition and the period of delay resulting from a continuance granted at the request of the prosecuting attorney if the grounds for the continuance fit under the relevant statutory language.11 To calculate the time for speedy trial purposes, a court must exclude the day the information was filed, count forward 6 months, back up 1 day, and then add any time excluded under § 29–1207(4) to determine the last day the defendant can be tried.12
Here, the State filed the information on May 19, 2010, so, without any excluded time, Robertson had to be brought to trial by November 19. The record shows Robertson filed a motion for discovery depositions on August 5, and the motion was granted on September 30. This period of 56 days was excludable under § 29–1207(4)(a) as a period of delay resulting from the filing of a pretrial motion by Robertson.
The record also shows the State moved for a continuance on December 10, 2010, which the district court granted; trial was rescheduled for April 11, 2011. This continuance resulted in a delay of 122 days. The period of delay resulting from a continuance granted at the request of the State is excludable if it is granted to allow additional time to prepare a case and “additional time is justified because of the exceptional circumstances of the case.”13 A period of delay can also be excludable if it is not specifically enumerated in the statute but a court finds there is “good cause” for the delay.14
The record shows the State asked for the continuance because the original prosecutor was on maternity leave, the case was set for trial with 11 days' notice, and it faced significant practical and logistical issues in assembling relevant evidence. The record further shows the information charged Robertson with eight separate counts, including four counts of attempted murder and four counts of using a deadly weapon to commit a felony. The district court noted that it did not recall ever continuing a trial for good cause on the State's motion, but found the unique circumstances presented amounted to good cause and granted the motion to continue.
As a general rule, a trial court's determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal...
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State v. Harris
...in the case of postconviction proceedings, we have stated that they are "not ... ordinary civil action[s]." See State v. Robertson , 294 Neb. 29, 41, 881 N.W.2d 864, 875 (2016). Harris posits that this statement calls into question the ongoing validity of our previous determinations that pr......
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State v. Lotter
...order did not announce a "decision or final order" within the meaning of § 25-1912(2).At this point, we recognize that our analysis in State v. Robertson44 does not directly apply in this situation. There, the court considered amendment in the context of a timely filed motion to alter or am......
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Maria T. v. Jeremy S.
...Sedlacek v. Hann , supra note 18.40 See Freedman, supra note 25.41 Rehbein v. Clarke , supra note 21.42 See id.43 See State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).44 See Sedlacek v. Greenholtz , supra note 18.45 In re Interest of Joseph C., 299 Neb. 848, 910 N.W.2d 773 (2018).46 S......
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State v. Haynes
...807 (2006) ; State v. Lytle, 224 Neb. 486, 398 N.W.2d 705 (1987) ; Neb. Rev. Stat. § 29-3001 (Reissue 2016).12 See State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).13 State v. Trackwell, 250 Neb. 46, 547 N.W.2d 471 (1996) ; State v. Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).14......