State v. Thomas, S-99-1412.
| Decision Date | 06 July 2001 |
| Docket Number | No. S-99-1412.,S-99-1412. |
| Citation | 629 N.W.2d 503,262 Neb. 138 |
| Parties | STATE of Nebraska, Appellee, v. Rickey R. THOMAS, Appellant. |
| Court | Nebraska Supreme Court |
Rickey R. Thomas, pro se.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.
Rickey R. Thomas pled guilty to and was convicted of possession with intent to deliver a controlled substance under Neb. Rev.Stat. § 28-416(1)(a) (Cum.Supp.1992). Additionally, a forfeiture action was commenced, pursuant to Neb.Rev.Stat. § 28-431 (Reissue 1995), against $4,892 found in Thomas' possession at the time of Thomas' arrest and was resolved subsequent to Thomas' possession with intent to deliver conviction. Thomas did not file a plea in bar to the possession with intent to deliver charge and did not appeal either the conviction for possession with intent to deliver or the judgment in the forfeiture action. Thomas filed this motion for postconviction relief to challenge his criminal conviction. Thomas relies on our decision in State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999), to assert that he was placed in double jeopardy when charged with possession with intent to deliver and that, therefore, his trial counsel provided ineffective assistance by failing to file a plea in bar to the possession charge.
On July 6, 1992, a no-knock search warrant was executed on Thomas' residence. The police found 22 individually wrapped hits of heroin, scales, and $4,892 in cash. Thomas was charged with possession with intent to deliver a controlled substance. On August 14, Thomas pled guilty to the possession with intent to deliver charge and on October 5, was sentenced to 10 to 20 years' imprisonment.
On July 14, 1992, the State brought a separate forfeiture action against the $4,892 found in Thomas' possession at the time of his arrest. The forfeiture action was resolved on August 25 when the district court found that the money was forfeited to the State. In the district court's decree on the forfeiture action, it noted that Thomas had been served as an interested party to the action, but had failed to respond to the service and had not challenged the forfeiture action.
Thomas filed a motion for postconviction relief pursuant to the Nebraska Postconviction Act, challenging his possession with intent to deliver conviction. Thomas claimed that on the criminal charge, his trial counsel provided ineffective assistance because such counsel failed to file a plea in bar to the possession with intent to deliver charge. Thomas claimed that his right to be free from double jeopardy had been violated because jeopardy had attached to the forfeiture proceedings and that, therefore, the charge of possession with intent to deliver was barred by the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution or Neb. Const. art. I, § 12. Thomas asserted that had his counsel filed a plea in bar to the criminal charge, the result of the proceedings would have been different because the possession with intent to deliver charge would have been dismissed. Therefore, Thomas alleged that his trial counsel provided ineffective assistance because his performance was deficient and that such deficient performance prejudiced Thomas.
The district court denied Thomas' request for postconviction counsel. Thereafter, the district court denied Thomas' motion for postconviction relief without an evidentiary hearing. The district court determined that Thomas' possession with intent to deliver charge was not barred by the Double Jeopardy Clause because jeopardy did not attach to the forfeiture action until evidence was taken on August 25, 1992—after Thomas' August 14 possession conviction. Thomas appealed, and we moved the case to our docket pursuant to our authority to regulate the dockets of the appellate courts.
On appeal, Thomas assigns that the district court erred in (1) denying Thomas' request for postconviction counsel, (2) refusing to grant Thomas an evidentiary hearing on his postconviction action, and (3) denying Thomas' motion for postconviction relief.
When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000).
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. State v. Becerra, 261 Neb. 596, 624 N.W.2d 21 (2001).
Failure to appoint counsel in postconviction proceedings is not error in the absence of an abuse of discretion. State v. Soukharith, supra.
In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. State v. Becerra, supra.
Normally, a voluntary guilty plea waives all defenses to a criminal charge. State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000). However, when a conviction is based upon a guilty plea, the prejudice requirement for an ineffective assistance of counsel claim 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. State v. Silvers, 260 Neb. 831, 620 N.W.2d 73 (2000); State v.. Buckman, supra. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal. State v. Suggs, 259 Neb. 733, 613 N.W.2d 8 (2000). Thus, in order for Thomas to have properly challenged his possession with intent to deliver conviction in this postconviction action, he must have alleged that his guilty plea and his failure to raise the argument on direct appeal were the result of ineffective assistance of counsel.
Although Thomas did not specifically argue that he would not have pled guilty had his counsel provided effective assistance, the effect of Thomas' argument appears to be the same. Thomas asserted that had his counsel caused the possession with intent to deliver charge to be dismissed, the result of the proceeding would have been different. The facts alleged in Thomas' petition are sufficient for a court to infer that Thomas would not have pled guilty to the possession charge had his attorney filed a plea in bar to such charge because the charge would have been dismissed as barred by double jeopardy and that as a result, Thomas would not have been faced with pleading guilty as the charge would have previously been dismissed. Because we conclude that Thomas' postconviction claim is without merit on other grounds, we will generously assume, without deciding, that Thomas properly alleged that his guilty plea and his subsequent failure to pursue the issue in a direct appeal were the result of ineffective assistance of counsel.
In order to establish a right to postconviction relief based on a claim of ineffective counsel, the defendant has the burden first to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case. State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001). The two prongs of this test, deficient performance and prejudice, may be addressed in either order. If it is more appropriate to dispose of an ineffectiveness claim due to the lack of sufficient prejudice, that course should be followed. State v. Soukharith, 260 Neb. 478, 618 N.W.2d 409 (2000). 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. State v. Silvers, supra.
Thomas' petition alleged that had his counsel filed a plea in bar to the possession with intent to deliver charge, such charge would have been dismissed because the charge violated Thomas' right to be free from double jeopardy. Thomas' argument was that the prosecution of the criminal charge was barred by double jeopardy after the State filed the forfeiture action. Thomas relies on our ruling in State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999), for support. In Franco, we addressed a situation in which the defendant had been arrested and charged with possession of a controlled substance with intent to deliver under § 28-416(1)(a). At the time of the defendant's arrest in Franco, $2,190 in cash was seized from the defendant and the State filed a forfeiture action against the money pursuant to § 28-431. Evidence was adduced in the forfeiture proceeding prior to any action on the possession with intent to deliver charge. State v. Franco, supra.
The day after evidence was adduced in the forfeiture proceeding, the defendant in Franco filed a plea in bar, requesting the information on the possession with intent to deliver charge be dismissed because it was barred by the Double Jeopardy Clause.
In analyzing whether double jeopardy had attached to the forfeiture action, we determined in Franco that forfeiture actions under § 28-431 provide a criminal sanction and that such action is criminal in nature for purposes of double jeopardy. See, also, State v. Spotts, 257 Neb. 44, 595 N.W.2d 259 (1999). In Franco, we determined that because jeopardy attaches when a judge begins to hear evidence as to the guilt of a defendant and because evidence had been adduced in the forfeiture action prior to the defendant's prosecution on the criminal charge, prosecution of the possession with intent to deliver charge in Franco was barred by the Double Jeopardy...
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