State v. Silvers

• Decision Date: 04 December 1998
• Docket Number: No. S-98-126,S-98-126
• Citation: 255 Neb. 702,587 N.W.2d 325
• Parties: STATE of Nebraska, appellee, v. Thomas J. SILVERS, appellant.
• Court: Nebraska Supreme Court

Page 325

587 N.W.2d 325

255 Neb. 702

STATE of Nebraska, appellee, v. Thomas J. SILVERS, appellant.

No. S-98-126.

Supreme Court of Nebraska.

Dec. 4, 1998.

Syllabus by the Court

1. Jurisdiction: Final Orders: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. The three types of final orders which may be reviewed on appeal under the provisions of Neb.Rev.Stat. § 25-1902 (Reissue 1995) are (1) an order which affects a substantial right in an action and which in effect determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered.

2. Actions: Statutes. Special proceedings entail civil statutory remedies not encompassed in chapter 25 of the Nebraska Revised Statutes. Special proceedings have also been described as every special statutory remedy which is not in itself an action.

3. Postconviction: Proof. 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 state or federal Constitution.

4. Postconviction. An evidentiary hearing is not required when a motion for postconviction relief alleges only conclusions of fact or law.

5. Postconviction. An evidentiary hearing may be denied on a motion for postconviction relief when the records and files affirmatively show that the defendant is entitled to no relief.

6. Postconviction: Case Disapproved. To the extent that State v. Jones, 254 Neb. 212, 575 N.W.2d 156 (1998), and State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997), suggest that an evidentiary hearing on an adequately pled motion for postconviction relief is required only where the files and records establish entitlement to relief, they are disapproved.

7. Postconviction: Pleas: Waiver: Effectiveness of Counsel. Normally, a voluntary guilty plea waives all defenses to a criminal charge. However, in a postconviction action brought by a defendant convicted on the basis of a guilty plea, a court will consider an allegation that the plea was the result of ineffective assistance of counsel.

8. Postconviction: Effectiveness of Counsel: Pleas: Proof. When a defendant in a postconviction motion alleges a violation of his or her constitutional right to effective assistance of counsel as a basis for relief, the standard for determining the propriety of the claim is whether the attorney, in representing the accused, performed at least as well as a lawyer with ordinary training and skill in the criminal law in the area. Further, the defendant must make a showing of how the defendant was prejudiced in the defense of his or her case as a result of his or her attorney's actions or inactions. When a conviction is based upon a guilty plea, the prejudice requirement is satisfied if the defendant shows a reasonable probability that, but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty.

9. Effectiveness of Counsel: Presumptions: Appeal and Error. The entire ineffectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable and that even if found unreasonable, the error justifies setting aside the judgment only if there was prejudice.

10. Warrantless Searches: Constitutional Law. Three factors govern the constitutionality of warrantless and nonconsensual entries onto premises that are damaged by fire: whether there are legitimate privacy interests in the fire-damaged property that are protected by the Fourth Amendment, whether exigent circumstances justify the government intrusion regardless of any reasonable expectation of privacy, and whether the object of the search is to determine the cause of the fire or to gather evidence of criminal activity.

11. Search and Seizure. If reasonable privacy interests remain in the property damaged by fire, in the absence of consent, any official entry must be made pursuant to a warrant or pursuant to exigent circumstances.

12. Warrantless Searches: Evidence. A burning building creates an exigency that justifies the warrantless entry of fire officials to fight the blaze. In addition, once fire officials are in the building, they may remain there without a warrant for a reasonable time to ensure that the fire will not reignite and to investigate the cause of the fire after it has been extinguished. During this time, warrantless seizures of evidence found in plain view while inspecting the premises are also constitutional.

13. Search and Seizure. When reasonable expectations of privacy exist, additional investigations after the fire has been extinguished and officials have left the scene must be made pursuant to a warrant or a new exigency.

14. Search Warrants: Evidence: Probable Cause. When a warrant is necessary, the object of the search dictates the type of warrant required. If the primary objective is to determine the cause of the fire, an administrative warrant will suffice. However, if the primary objective is to gather evidence of criminal activity, a criminal search warrant must be obtained upon a showing of probable cause.

15. Arson: Search Warrants: Evidence. Once investigators determine arson as the cause of a blaze, a search warrant 16. Pleas: Waiver. Guilty pleas are grave and solemn acts which waive certain constitutional rights, and they therefore must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.

must be obtained in order to gather evidence of criminal activity that was not seized in plain view during the initial search.

17. Pleas: Effectiveness of Counsel. A plea of guilty will be found to be freely and voluntarily entered upon the advice of counsel if that advice is within the range of competence demanded of attorneys in criminal cases.

18. Postconviction: Right to Counsel. Under the Nebraska Postconviction Act, it is within the discretion of the trial court as to whether counsel shall be appointed to represent the defendant.

19. Postconviction: Justiciable Issues: Right to Counsel: Appeal and Error. Where the assigned errors in the postconviction petition before the district court are either procedurally barred or without merit, establishing that the postconviction action contained no justiciable issue of law or fact, it is not an abuse of discretion to fail to appoint appellate counsel for an indigent defendant. However, where the defendant's petition presents a justiciable issue to the district court for postconviction determination, an indigent defendant is entitled to the appointment of counsel.

Thomas J. Silvers, pro se, for appellant.

Don Stenberg, Attorney General, and Mark D. Starr, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

In 1986, following a fire at his home that caused the death of his stepdaughter, Thomas J. Silvers pled guilty to first degree arson and first degree felony murder and is currently serving sentences for those convictions. In this action filed in the district court for Buffalo County, Silvers sought postconviction relief on two theories: (1) The arson conviction violated double jeopardy because arson is an underlying felony of first degree felony murder, and (2) he was denied effective assistance of counsel because his attorney failed to file a motion to suppress evidence seized by fire and police officials without warrants at various times after the fire and failed to inform him of the viability of such a motion. The district court allowed the State 30 days to show cause or request a hearing as to why the court should not summarily dismiss the arson conviction based upon a violation of double jeopardy. However, the court denied Silvers' request for relief regarding the felony murder conviction on the basis that Silvers' pleadings did not allege sufficient facts to justify an evidentiary hearing. We conclude that Silvers' pro se motion alleges sufficient facts to state a claim for postconviction relief and that it cannot be determined from the files and records before us that he is not entitled to such relief. Accordingly, we reverse, and remand with directions that Silvers be granted an evidentiary hearing with the assistance of appointed counsel.

FACTUAL ALLEGATIONS

In his motion for postconviction relief filed in January 1998, Silvers alleges that a fire broke out at his home in Kearney, Nebraska, on May 3, 1986, and that his stepdaughter, Sheila Heard, died on May 11 as a result of extensive burns she suffered in the fire. Silvers alleges that he was arrested by Kearney police on May 6 and that he was eventually charged with first degree felony murder and first degree arson. Shortly after his arrest, Silvers retained an attorney to represent him. After initially pleading not guilty to both charges, Silvers changed his pleas to guilty and was convicted and sentenced to life imprisonment for felony murder and a consecutive term of 5 to 10 years' imprisonment for arson. In his brief, Silvers asserts that his guilty pleas were not entered pursuant to any plea agreement.

Silvers alleges that the alarm which summoned the Kearney Fire Department to his home was turned in at 1:23 a.m. on May 3, 1986, and that firefighters arrived a short Silvers alleges that after determining the point of the fire's origin, investigators contacted Gary Nelson, a deputy State Fire Marshal, who arrived at the scene at 1:48 a.m. Silvers alleges that based on Nelson's experience and the observance of certain burn patterns, Nelson determined that the fire had been intentionally set. Silvers further alleges that a Detective Dreyer of the Kearney Police...