State v. Schneckloth, 89-1171

• Decision Date: 20 July 1990
• Docket Number: No. 89-1171,89-1171
• Citation: 235 Neb. 853,458 N.W.2d 185
• Parties: STATE of Nebraska, Appellee, v. Larry W. SCHNECKLOTH, Appellant.
• Court: Nebraska Supreme Court

Page 185

458 N.W.2d 185

235 Neb. 853

STATE of Nebraska, Appellee, v. Larry W. SCHNECKLOTH, Appellant.

No. 89-1171.

Supreme Court of Nebraska.

July 20, 1990.

Syllabus by the Court

1. Constitutional Law: Right to Counsel: Effectiveness of Counsel: Appeal and Error. If a defendant has the constitutional right to an attorney in the prosecution of an appeal, the defendant has the right to effective assistance of counsel in the appeal.

2. Effectiveness of Counsel: Appeal and Error. A claim of ineffective assistance of appellate counsel is analogous to a claim of ineffective counsel at trial and is evaluated by the same standard used to assess the assistance of counsel at trial.

3. Criminal Law: Effectiveness of Counsel: Conflict of Interest. In criminal proceedings a defendant's right to effective counsel includes a lawyer's representation free from conflicting interests.

4. Constitutional Law: Effectiveness of Counsel: Conflict of Interest. A sole attorney's multiple representation of codefendants is not per se a violation of the constitutional guarantee of effective assistance of counsel.

5. Constitutional Law: Effectiveness of Counsel: Conflict of Interest: Proof. In order to establish a violation of the sixth amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.

6. Constitutional Law: Effectiveness of Counsel: Conflict of Interest: Proof. A defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief.

7. Constitutional Law: Criminal Law: Effectiveness of Counsel: Conflict of Interest: Proof. The possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his sixth amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance.

Larry W. Schneckloth, pro se.

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

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

PER CURIAM.

Larry W. Schneckloth appeals from the district court's denial of postconviction relief under Nebraska's Postconviction Act,

Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1989). Schneckloth, [235 Neb. 854] contending that he was denied effective assistance of counsel in his direct appeal, State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981), claims that the district court should have held an evidentiary hearing on Schneckloth's motion for postconviction relief.

STANDARD OF REVIEW

A motion for postconviction relief cannot be used to secure review of issues which have already been litigated on direct appeal, or which were known to the defendant and counsel at the time of trial and which were capable of being raised, but were not raised, in the defendant's direct appeal. State v. Hurlburt, 221 Neb. 364, 377 N.W.2d 108 (1985). In an appeal involving a proceeding for postconviction relief, the trial court's findings will be upheld unless such findings are clearly erroneous.

State v. Dillon, 224 Neb. 503, 507, 398 N.W.2d 718, 720-21 (1987); State v. Bostwick, 233 Neb. 57, 443 N.W.2d 885 (1989); State v. Davis, 228 Neb. 622, 423 N.W.2d 487 (1988).

As reflected in the direct appeal, State v. Schneckloth, Koger, and Heathman, supra, the State charged John Koger, Noel Heathman, and Schneckloth with kidnapping, see Neb.Rev.Stat. § 28-313(1) (Reissue 1989); first degree sexual assault, see Neb.Rev.Stat. § 28-319(1) (Reissue 1989); and using a firearm to commit a felony, see Neb.Rev.Stat. § 28-1205(1) (Reissue 1989), all of which were alleged to have occurred on February 27, 1980. Schneckloth was represented by the Douglas County public defender's office; Koger and Heathman were represented by privately retained counsel. Although the record does not contain information regarding the consolidation of the trials for Koger, Heathman, and Schneckloth, none disputes that, over Schneckloth's objection, the district court sustained the State's consolidation motion.

During trial, Koger and Heathman testified; Schneckloth declined to take the stand. The State subsequently presented a rebuttal witness to impeach testimony from Koger and Heathman. The rebuttal testimony incriminated Schneckloth and his codefendants. See State v. Schneckloth, Koger, and Heathman, supra. However, the court gave a limiting instruction, admonishing the jury that the rebuttal witness' testimony should not be considered as evidence against Schneckloth. The jury found each defendant guilty as charged.

After trial, Schneckloth's lawyer filed a motion for new trial, alleging that the court erred in consolidating Schneckloth's case for trial with the cases of Heathman and Koger and erred in overruling Schneckloth's motion to sever his trial from the trials of Koger and Heathman. Schneckloth's lawyer also contended, among other things, that the trial court erred in the admission of testimony from the State's rebuttal witness. The trial court overruled Schneckloth's motion for new trial and sentenced Koger, Heathman, and Schneckloth each to life imprisonment for the kidnapping conviction, with a concurrent sentence of 8 to 10 years' imprisonment for the first degree sexual assault conviction, and also sentenced each defendant to a term of 3 to 5 years' imprisonment for the firearm conviction, a sentence which was consecutive to all other sentences imposed. See State v. Schneckloth, Koger, and Heathman, supra.

Koger, Heathman, and Schneckloth appealed their convictions and sentences, which appeals, with approval of counsel, were consolidated. In their direct appeal, Schneckloth, Heathman, and Koger were jointly represented by the Douglas County public defender's office. The sole assignment of error pertained to the sentences imposed for the kidnapping convictions. None of the errors alleged in Schneckloth's motion for new trial were assigned as errors in the direct appeal. This court affirmed the convictions and sentences of Koger, Heathman, and Schneckloth. See State v. Schneckloth, Koger, and Heathman, supra.

On August 8, 1989, pursuant to the Nebraska Postconviction Act, §§ 29-3001 et seq., Schneckloth filed a "Verified Motion to Vacate or Set Aside the Sentence," contending that he was denied his rights under both the U.S. and Nebraska Constitutions because he was not afforded conflict-free assistance of counsel in the direct appeal. Specifically, Schneckloth alleged that his lawyer in the direct appeal failed to provide Schneckloth with conflict-free assistance of counsel because appellate counsel (1) stipulated that the appeals of Koger, Heathman, and Schneckloth were consolidated for purposes of appeal, resulting in a conflict of interest for Schneckloth's lawyer; (2) failed to provide Schneckloth with individual representation in the appeal; (3) failed to assign as error the questions set out in Schneckloth's motion for new trial; and (4) failed to request a transcript of the hearing on the motion to consolidate the trials of Koger, Heathman, and Schneckloth, when the transcript would have shown that Schneckloth had a defense which was antagonistic to the defense of Koger and Heathman. Schneckloth alleged that his appellate counsel's conduct resulted in denial of his constitutional rights of effective assistance of counsel and due process guaranteed under the 5th, 6th, and 14th amendments to the U.S. Constitution.

After reviewing the file and record in Schneckloth's case, the district court, without an evidentiary hearing, concluded that Schneckloth had failed to show that prejudice resulted from the appellate absence of an assignment of error regarding consolidation of Schneckloth's trial with his codefendants' and from consolidation of the three defendants' appeals. The district court remarked:

Defendant fails to allege how he was prejudiced by consolidation of his trial with that of his codefendants other than to indicate that he was damaged by rebuttal evidence adduced at trial regarding the two codefendants. The file reflects that the jury was properly admonished that the rebuttal testimony was admissable [sic] against the two codefendants only and not against this defendant. Under these circumstances it is obvious that defendant's appellate counsel did not feel that this was a viable issue on appeal. Failure to pursue on appeal an invalid issue can hardly be evidence of incompetent counsel.

Similarly defendant fails to show how he was prejudiced by consolidation of the appeals before the Supreme Court other than to state that there was a conflict of interest because the defense advanced by this defendant was different than that of his codefendants. Defendant's appellate counsel obviously determined that the issues of all three defendants on appeal were identical.

The district court denied Schneckloth's motion for postconviction relief.

In his postconviction appeal, Schneckloth claims that (1) the two-part standard expressed by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is inapplicable to Schneckloth's claim that he was denied conflict-free assistance of counsel on appeal and that the standard set forth in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), is the correct standard regarding a conflict of interest; (2) the district court should have held an evidentiary hearing; and (3) Schneckloth is entitled to the postconviction relief of a new direct appeal and court-appointed counsel. The gist of Schneckloth's argument is that, although he was represented by counsel independent from his codefendants at trial, appellate representation of all three codefendants by the public defender constituted a conflict of interest which denied Schneckloth effective assistance of counsel. Schneckloth argues that the...