State v. Thomas

• Decision Date: 16 November 1990
• Docket Number: No. 89-875,89-875
• Citation: 236 Neb. 553,462 N.W.2d 862
• Parties: STATE of Nebraska, Appellee, v. Ralph E. THOMAS, Appellant.
• Court: Nebraska Supreme Court

Page 862

462 N.W.2d 862

236 Neb. 553

STATE of Nebraska, Appellee, v. Ralph E. THOMAS, Appellant.

No. 89-875.

Supreme Court of Nebraska.

Nov. 16, 1990.

Syllabus by the Court

1. Postconviction: Prisoners: Standing: Probation and Parole: Words and Phrases. A prisoner who has been paroled is "in custody under sentence" for purposes of Neb.Rev.Stat. § 29-3001 (Reissue 1989) of the Postconviction Act.

2. Postconviction. One who requests relief pursuant to Neb.Rev.Stat. § 29-3001 (Reissue 1989) must allege facts that constitute a denial of his rights under the Nebraska or federal Constitution, causing the judgment against him to be voidable.

3. Postconviction: Appeal and Error. The findings of the postconviction hearing court will not be disturbed unless clearly erroneous.

4. Expert Witnesses: Effectiveness of Counsel: Proof. Expert testimony is generally not admissible as proof that the assistance of counsel in a criminal case was ineffective.

5. Constitutional Law: Effectiveness of Counsel. An accused is entitled to the effective assistance of counsel under the sixth amendment to ensure that he receives a fair trial and is able to actively combat the prosecution's charges in an adversarial proceeding.

6. Constitutional Law: Effectiveness of Counsel: Proof. In order to prove that his counsel was ineffective so as to render his trial unjust, therefore requiring reversal of his conviction, a defendant must address two components: First, he must prove that his counsel's performance was defective by showing that his counsel's representation fell below prevailing professional standards of reasonableness in the area; and second, he must show that his counsel's performance prejudiced his defense and that there was a reasonable probability that but for the conduct of his counsel, the result of the proceeding would have been different.

7. Pretrial Procedure: Appeal and Error. The trial court has broad discretion in granting the discovery requests of defense counsel, and error can be founded only upon an abuse of discretion.

Rodney W. Smith, Neligh, for appellant.

Robert M. Spire, Atty. Gen., and Alfonza Whitaker, Omaha, for appellee.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

WHITE, Justice.

Ralph E. Thomas appeals the Knox County District Court's denial of his motion to vacate his conviction and sentence pursuant to the Postconviction Act, Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1989). In 1981, Thomas was convicted of first degree assault and sentenced to 3 to 5 years' imprisonment. He was released on bond on April 23, pending his direct appeal to this court. This court affirmed his conviction on December 28, 1981. See State v. Thomas, 210 Neb. 298, 314 N.W.2d 15 (1981). Thomas failed to appear to begin serving his sentence and, following a jury trial on July 6, 1989, was convicted of the charge of failure to appear. He was sentenced to imprisonment for 1 year, to be served consecutively to his previous sentence for first degree assault. This court affirmed his conviction for failure to appear on August 10, 1990. See State v. Thomas, 236 Neb. 84, 459 N.W.2d 204 (1990). Thomas has been paroled on both charges after serving approximately 2 1/2 years on the two sentences.

The district court denied Thomas' motion to vacate his first degree assault conviction and sentence after a hearing on April 17, 1989. The court determined that Thomas had failed to prove the performance of his attorney, Richard McCoy, was deficient and that McCoy performed at least as well as a criminal trial lawyer with ordinary training and skill in the criminal law in the area. The court also decided that Thomas failed to demonstrate that but for McCoy's failure to appear at the motion to consolidate, at the taking of 22 depositions before trial, and at Thomas' first scheduled sentencing hearing, the result of the proceeding would have been different. Thomas appeals the district court's ruling. The State's motion for summary affirmance was denied by this court on March 1, 1990.

On August 4, 1980, Thomas, along with his two brothers who were codefendants in the assault prosecution, assaulted Thornton Rave in Santee, Knox County, Nebraska. Rave, a part-time police officer in Santee, was investigating a report that the Thomas brothers were breaking windows out of a police car parked at the residence of the chief of police, Dean Kitto. As Rave was questioning a neighbor about the broken windows, he was confronted and attacked by the Thomas brothers. Ralph Thomas struck Rave with his fist, Gary Thomas hit Rave with a board, and Randy Thomas jumped on top of Rave as he fell to the ground. Rave testified that as a result of the beating he suffered a broken eardrum, a slight concussion, bruises, scratches, and a permanent loss of hearing.

Ralph Thomas claimed he struck Rave in self-defense. He stated that he and his brothers approached Rave to ask him to take away the gun and Mace of Kitto, who they claimed was intoxicated and had earlier sprayed Gary Thomas with Mace in a local tavern. Thomas testified that as he approached Rave to discuss the situation, Rave tried to strike him.

Thomas' assigned errors can be summarized as an ineffective assistance of counsel claim. First, he claims the district court erred in denying him the opportunity to depose an attorney, a physician, and a witness for the State. He claims that he needed the depositions in order to demonstrate that his attorney, Richard McCoy, was ineffective by failing to call an expert medical witness to testify as to the victim's injuries, to establish what the standard of practice for a criminal trial attorney was in the area, and to show that McCoy's failure to appear at the State's taking of the deposition of Cora Jones harmed him because Jones was involved in a feud with his family and was not a credible witness. Second, he claims the court erred in not permitting an attorney to testify as to the standard of practice of a criminal trial lawyer in the area. He offered the testimony to demonstrate that McCoy's performance fell below this standard. Last, he claims that McCoy was ineffective as counsel because he failed to appear at the hearing on the motion to consolidate the trials of Thomas and his two brothers, at the taking of 22 depositions prior to trial, and at Thomas' first scheduled sentencing hearing.

Section 29-3001 permits "[a] prisoner in custody under sentence" to file a motion asking the court to vacate and set aside his sentence. Since the appellant in this case is currently on parole, it is necessary to determine whether a prisoner who has been paroled is "in custody under sentence" for purposes of the Postconviction Act.

In Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), the U.S. Supreme Court held that a parolee was "in custody" for purposes of habeas corpus relief within the meaning of 28 U.S.C. § 2241 (1958). The Court stated that even though the Virginia Parole Board had released the petitioner from physical imprisonment, it imposed conditions upon him which significantly confined and restrained his freedom. The Court stated that this was enough to keep him "in custody" of the Virginia Parole Board within the meaning of the habeas corpus statute. Jones, supra.

In State v. Losieau, 180 Neb. 696, 144 N.W.2d 435 (1966), this court held that a defendant was "in custody under sentence" for purposes of the Postconviction Act even though the defendant had not yet begun to serve the imposed sentence. The defendant was sentenced on a burglary conviction as a habitual criminal and was paroled 9 years later. He violated his parole and was sentenced again on new charges. He was returned to the penitentiary to finish serving his first sentence and sought to challenge his second conviction under the Postconviction Act before he began serving it. This court stated that the Postconviction Act is a comprehensive postconviction measure embracing federal and state constitutional claims and is broader as to the basis for relief than the federal habeas corpus remedies. The court concluded that in order to safeguard the defendant's rights and avoid the dangers of delaying the defendant's postconviction remedies until he was serving his second sentence, relief under the Postconviction Act was available even though the defendant had not begun to serve his sentence. Losieau, supra.

The U.S. Supreme Court has held that a parolee is "in custody" for purposes of the habeas corpus statutes. See Jones, supra. This court has stated that the Postconviction Act is broader as a basis for relief than the federal remedies. It has determined, in keeping with a broad reading of the act, that under the act a prisoner may challenge a conviction even if he has not yet begun to serve his sentence. We conclude that a broad reading of the act also includes permitting a parolee the right to challenge his conviction under the act.

As with the petitioner in Jones, supra, Thomas has been released from physical custody. However, he is not free from all restraints of the correctional system. He remains under the jurisdiction of the Nebraska Board of Parole until his term of parole is finished satisfactorily. See Neb.Rev.Stat. § 83-1,121 (Reissue 1987). He is subject to revocation of his parole and return to prison if he violates the terms of his parole in any way. See Neb.Rev.Stat. § 83-1,119 (Reissue 1987). As a condition of parole he may be required to be employed, remain in a certain geographical area unless granted written permission to leave the area, report to his parole officer, submit to certain medical or psychological treatment, refrain from associating with certain persons, or abide by any other conditions determined by the Board of Parole. See Neb.Rev.Stat. § 83-1,116 (Reissue 1987). Thomas does not possess the same degree of liberty and freedom as a citizen not under the jurisdiction of the Board of Parole. The restrictions imposed upon a...