State v. Trotter

• Decision Date: 14 April 2000
• Docket Number: No. S-98-1229.,S-98-1229.
• Parties: STATE of Nebraska, appellee, v. Harold Jay TROTTER, appellant.
• Court: Nebraska Supreme Court

609 N.W.2d 33

259 Neb. 212

STATE of Nebraska, appellee, v. Harold Jay TROTTER, appellant.

No. S-98-1229.

Supreme Court of Nebraska.

April 14, 2000.

Steven E. Achelpohl, Omaha, for appellant.

Don Stenberg, Attorney General, and Barry Waid, Lincoln, for appellee.

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

MILLER-LERMAN, J.

NATURE OF CASE

Harold Jay Trotter appeals the order of the district court for Otoe County which, after an evidentiary hearing, denied his motion for postconviction relief. For the reasons recited below, we reverse, and remand with directions to the district court to enter an order granting Trotter a new direct appeal.

STATEMENT OF FACTS

On October 29, 1997, following trial in the district court for Otoe County, a jury found Trotter guilty of child abuse resulting in death (count I), manslaughter (count II), and child abuse resulting in serious bodily injury (count III). On December 15, Trotter was sentenced to imprisonment for a term of 25 years to life on count I, 20 years on count II (to run concurrently with the sentence imposed on count I), and 5 to 12 years on count III (to run consecutively to the sentences imposed on counts I and II).

Following his sentencing, Trotter advised his trial counsel (Attorney I) that he wished to file a direct appeal from his convictions and sentences, but that he was indigent. In order to proceed with the appeal, on December 15, 1997, Attorney I presented Trotter with a "Financial Affidavit and Order Appointing Counsel," which Trotter executed. Attorney I then attached the financial affidavit to a "Motion to Proceed in Forma Pauperis and Motion for Appointment of Counsel." This combined motion was filed with the trial court on December 29. On this same date, Attorney I also filed a motion to withdraw as counsel for Trotter.

The trial court granted the motion to proceed in forma pauperis as well as Attorney I's motion to withdraw on December 29, 1997, and substitute counsel (Attorney II) was appointed to represent Trotter. On January 12, 1998, Attorney II filed a notice of appeal on behalf of Trotter, appealing the convictions and his sentences, the latter of which were entered December 15, 1997.

On March 30, 1998, the Nebraska Court of Appeals, relying on State v. Schmailzl, 248 Neb. 314, 534 N.W.2d 743 (1995), dismissed Trotter's direct appeal, due to the lack of a proper poverty affidavit in lieu of the statutory docket fee.

On June 4, 1998, Trotter, through Attorney II, filed a motion for postconviction relief pursuant to the Nebraska Postconviction Act, Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1995), together with another motion to proceed in forma pauperis and a supporting poverty affidavit. The basis for the postconviction case was ineffectiveness of counsel based on Attorney I's failure to perfect Trotter's appeal. An evidentiary hearing on the motion for postconviction relief was held on August 5 and continued on September 2. Postconviction relief was denied on October 26. It is the denial of postconviction relief from which Trotter appeals in the instant case.

At the hearing on postconviction relief, Attorney I testified in person, and Trotter testified by way of deposition. According to Attorney I's testimony, Trotter advised Attorney I that he wanted to appeal from his convictions and sentences, and Attorney I advised Trotter of the steps which needed to be completed in order to perfect the appeal. According to Attorney I's testimony, due to Trotter's indigency, those steps included completing a poverty affidavit. Attorney I testified that he obtained a form from the district court clerk's office to use as Trotter's poverty affidavit because Trotter was available at the time and could readily execute the document. Attorney I testified that because Trotter was soon to be transferred to the penitentiary, he used the poverty affidavit form he obtained from the district court clerk's office instead of preparing an affidavit at his office, as was his custom. It was this district court form that was later found to be deficient by the Court of Appeals.

In his deposition, Trotter testified that he advised Attorney I that he wanted to appeal and that he executed the poverty affidavit submitted to him by Attorney I. Trotter further stated that he was relying upon Attorney I's advice in connection with filing the appeal.

The State offered no evidence to contradict the testimony of Attorney I or Trotter with regard to Trotter's desire to file an appeal, or the actions taken by Attorney I in connection therewith. Instead, the State sought to prove that Trotter was not indigent at the time he filed his direct appeal.

In an order dated October 26, 1998, the district court denied Trotter's motion for postconviction relief. The district court relied on a two-part test derived from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland held generally that in order to establish that a defendant was denied effective assistance of counsel, the defendant must demonstrate that counsel's performance was deficient and that the defendant was prejudiced thereby. The district court ruled that, assuming, arguendo, that Attorney I was deficient in failing to perfect Trotter's appeal, Trotter had not demonstrated in his postconviction action that Attorney I's deficient representation prejudiced Trotter in some manner. Because Trotter had failed in his postconviction motion to specify issues which he would have pursued in a direct appeal and failed to prove the strength of his potential appeal at the postconviction hearing, the district court concluded that Trotter had failed to show a reasonable probability that absent Attorney I's deficient performance, the result of the appeal proceedings would have been different. The district court further ruled, as a matter of law, that the relief Trotter was seeking in his motion for postconviction relief, namely the reinstatement of his direct appeal, was not the type of relief which could be afforded by a trial court under the Nebraska Postconviction Act.

Attorney II filed this appeal. While the present appeal was pending, Attorney II withdrew as Trotter's counsel, and substitute counsel, Attorney III, has undertaken the representation of Trotter in the case.

ASSIGNMENTS OF ERROR

On appeal, Trotter has assigned eight errors, which combine to form two assignments of error. Trotter claims, restated, that the district court erred (1) in failing to presume prejudice where counsel's performance was deficient and in failing to find that counsel's failure to perfect Trotter's direct appeal amounted to ineffective assistance of counsel, in violation of the 6th Amendment to the U.S. Constitution, made applicable to the states through the 14th Amendment, and in violation of Neb. Const. art. I, § 11, and (2) in ruling that it did not possess the authority to grant Trotter the postconviction relief he sought.

STANDARD OF REVIEW

A defendant requesting postconviction relief must establish the basis for such relief, and the factual findings of the district court will not be disturbed unless they are clearly erroneous. State v. Cook, 257 Neb. 693, 601 N.W.2d 501 (1999); State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999); State v. Smith, 256 Neb. 705, 592 N.W.2d 143 (1999). A defendant moving for postconviction relief must allege facts which, if proved, constitute a denial or violation of his or her rights under the state or federal Constitutions. State v. Cook, supra; State v. Ryan, supra; State v. Smith, supra.

When an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent, correct conclusion irrespective of the determination made by the court below. Nelson v. Lusterstone Surfacing Co., 258 Neb. 678, 605 N.W.2d 136 (2000).

ANALYSIS

Nebraska Postconviction Act.

The Nebraska Postconviction Act is available to a defendant to show that his or her conviction was obtained in violation of his or her constitutional rights. § 29-3001. Trotter's claims that he was denied his constitutional rights to effective assistance of counsel, therefore, are properly raised on a postconviction motion.

This court has previously held that where a defendant directs his or her counsel to file an appeal and the defendant is denied his or her right to an appeal because counsel fails to perfect an appeal, the proper vehicle for the defendant to seek relief is through the Nebraska Postconviction Act. State v. Johnson, 243 Neb. 758, 502 N.W.2d 477 (1993); State v. Carter, 236 Neb. 656, 463 N.W.2d 332 (1990); State v. Halsey, 195 Neb. 432, 238 N.W.2d 249 (1976). In Halsey, we stated that "[a] defendant must show, by a preponderance of the evidence, that he was denied his right to appeal due to the negligence or incompetence of counsel, and through no fault of his own." 195 Neb. at 433-34,238 N.W.2d at 250.

It is fundamental to a claim of ineffective assistance of counsel based on failure to appeal or failure to properly perfect an appeal, that the defendant directed that such appeal be filed. The record in this case establishes that Trotter was advised about his appellate rights and directed his counsel to file an appeal, but that the appeal was not perfected. Accordingly, Trotter may seek relief under the Nebraska Postconviction Act.

Ineffective Assistance of Counsel: Application of United States v. Cronic.

Trotter asserts, summarized and restated, that he was denied effective assistance of counsel by virtue of Attorney I's failure to perfect his appeal and that the district court erred in requiring Trotter to demonstrate that he was prejudiced by the lack of an appeal. Trotter argues that the district court erred when it relied on the two-pronged standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), rather than relying on the companion case to Strickland, ...