State v. Stranghoener, 81-731

• Decision Date: 16 July 1982
• Docket Number: No. 81-731,81-731
• Citation: 322 N.W.2d 407,212 Neb. 203
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. David STRANGHOENER, Appellant.

Page 407

322 N.W.2d 407

212 Neb. 203

STATE of Nebraska, Appellee, v. David STRANGHOENER, Appellant.

No. 81-731.

Supreme Court of Nebraska.

July 16, 1982.

Syllabus by the Court

1. Post Conviction: Appeal and Error. One seeking post conviction relief has the burden of establishing the basis for such relief. The findings of the District Court in denying relief will not be disturbed on appeal unless they are clearly erroneous.

2. Post Conviction: Appeal and Error. A defendant in a post conviction proceeding may not raise questions which could have been raised on direct appeal and which do not involve questions making the judgment of conviction void or voidable under the state or federal Constitutions.

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

4. Effectiveness of Counsel. Where the claim of ineffective counsel is made, one must show how or in what manner the alleged inadequacy prejudiced him.

David Stranghoener, pro se.

Paul L. Douglas, Atty. Gen., and Melvin K. Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

KRIVOSHA, Chief Justice.

The appellant, David Stranghoener, has appealed from an order entered by the District Court for Sarpy County, Nebraska, denying his request for post conviction relief. The trial court, after reviewing the motion, the records, and the files of the case, concluded that Stranghoener was entitled to no relief and denied his motion for post conviction relief without an evidentiary hearing. We affirm.

This is Stranghoener's second appearance in this court. We have earlier passed upon his direct appeal, where the facts of the case are set out in greater detail. See State v. Stranghoener, 208 Neb. 598, 304 N.W.2d 679 (1981). For purposes of this appeal it is sufficient to relate that Stranghoener was originally charged with first degree murder. The charge was subsequently amended to second degree murder pursuant to a plea bargain entered into between Stranghoener and the State. Stranghoener pled guilty to the amended charge before the trial court on January 14, 1980, and was sentenced to a term of 20 years in prison.

He has now filed for post conviction relief pursuant to the provisions of Neb.Rev.Stat. §§ 29-3001 to 29-3004 (Reissue 1979), alleging a host of claims mostly in broad conclusionary terms and without specific factual allegations of the nature that would entitle him to any relief. This action seeking post conviction relief is filed pro se and is almost identical to the petition filed by Dennis J. Paulson, a codefendant in the original case. We have recently denied post conviction relief to Paulson. See State v. Paulson, 211 Neb. 711, 320 N.W.2d 115 (1982). As we noted in the Paulson case, supra at 713, 320 N.W.2d at 117: "It is well established that one seeking post conviction relief has the burden of establishing the basis for such relief and that the findings of the District Court in denying relief will not be disturbed on appeal unless they are clearly erroneous." See, also, Marteney v. State, 210 Neb. 172, 313 N.W.2d 449 (1981); State v. Rust, 208 Neb. 320, 303 N.W.2d 490 (1981).

Furthermore, we have frequently held that a defendant in a post conviction proceeding may not raise questions which could have been raised on direct appeal and which do not involve questions making the judgment of conviction void or voidable under the state or federal Constitutions. State v. Shepard, 208 Neb. 188, 302 N.W.2d 703 (1981); State v. Cole, 207 Neb. 318, 298 N.W.2d 776 (1980). Many of the claims now made by Stranghoener could have been included in his direct appeal if, in fact, such claims really existed. They may not now be raised and can be disregarded by us.

Likewise, in Paulson, supra, we again repeated our earlier announced rule to the effect that a voluntary guilty plea waives every defense to the charge, whether the defense is procedural, statutory, or constitutional, citing State v. Coleman, 209 Neb. 823, 311 N.W.2d 911 (1981), and State v. Country, 202 Neb. 509, 276 N.W.2d 110 (1979). It is only where a defendant maintains that his guilty plea was as a result of ineffective assistance of counsel that we consider claims which otherwise would have been waived by a plea of guilty. See State v. Hall, 188 Neb. 130, 195 N.W.2d 201 (1972). However, where the claim of ineffective counsel is made, one must likewise show how or in what manner the alleged inadequacy prejudiced him. State v. Holloman, 209 Neb. 828, 311 N.W.2d 914 (1981); State v. Colgrove, 207 Neb. 496, 299 N.W.2d 753 (1980).

As in Paulson, an examination of the record in this case convinces us that the grounds urged by Stranghoener for post conviction relief are wholly frivolous. The record in this case clearly establishes that Stranghoener's counsel did the best a criminal defense lawyer could have done, given the strength of the case against his client. The transcript of the preliminary hearing is particularly revealing on this point. Stranghoener's attorney was one of six attorneys representing six codefendants at the consolidated preliminary hearings. Stranghoener's attorney cross-examined the prosecution's witnesses, called his own witnesses, objected to evidence and testimony, and moved for dismissal of the information. His attorney was at least as active and effective as the others. Nowhere in the record from any of the proceedings held...