State v. Valverde
| Decision Date | 12 January 2016 |
| Docket Number | No. A-14-1121.,A-14-1121. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. PAUL A. VALVERDE, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Sarpy County: MAX KELCH, Judge. Affirmed.
Paul A. Valverde, pro se.
Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.
Paul A. Valverde appeals from the order of the district court for Sarpy County, which denied his motion for postconviction relief without an evidentiary hearing. Finding no error, we affirm.
Following a jury trial, Valverde was convicted of two counts of third degree sexual assault of a child, second offense; four counts of child abuse; and three counts of first degree sexual assault of a child, second offense, relating to acts committed against H.L. and B.V. at locations in Sarpy County between June 1, 2008 and December 10, 2010. On direct appeal, Valverde assigned error to the procedures used by the district court in receiving evidence of prior sexual offenses under Neb. Rev. Stat. § 27-414 (Cum. Supp. 2012), the court's failure to grant a mistrial in connection with the admission of § 27-414 evidence, and the court's giving certain jury instructions and refusing others. The Nebraska Supreme Court affirmed Valverde's convictions and sentences. State v. Valverde, 286 Neb. 280, 835 N.W.2d 732 (2013). Valverde was represented by the Sarpy County Public Defender's Office at trial and on direct appeal.
On July 22, 2014, Valverde filed a verified motion for postconviction relief. In his motion, Valverde asserted that his constitutional right to a fair trial was violated when the district court admitted evidence in violation of § 27-414 and when the court allowed a police detective to remain in the courtroom during the trial despite a sequestration order; that his appellate counsel was ineffective for failing to raise the sequestration issue on direct appeal; that his right to due process was violated when the State retaliated and vindictively "left [his] life sentence in place" after he deposed the victim; that he received ineffective assistance of counsel at trial and on direct appeal due to the failure to address the issue of vindictive prosecution; that the evidence at trial was insufficient to establish the specific dates that the alleged offenses occurred; and that he received ineffective assistance of counsel at trial and on direct appeal due to the failure to challenge the sufficiency of the evidence to support his convictions. Valverde asked the district court to grant him an evidentiary hearing and to appoint him counsel.
On November 18, 2014, the district court entered an order, denying Valverde's motion for postconviction relief without an evidentiary hearing. Valverde subsequently perfected his appeal to this court.
Valverde asserts, restated, that the district court erred by failing to appoint counsel and schedule an evidentiary hearing and that it should have granted postconviction relief on the issues of (1) the adequacy of the information, (2) the detective remaining in the courtroom during trial, and (3) prosecutorial vindictiveness. He also asserts that he received ineffective assistance of counsel from his attorney at trial and on direct appeal.
Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. State v. Harris, 292 Neb. 186, ___ N.W.2d ___ (2015). When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusion. Id. In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015). A postconviction claim that defense counsel provided ineffective assistance generally presents a mixed question of law and fact. State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. State v. Branch, 290 Neb. 523, 860 N.W.2d 712 (2015). With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellatecourt reviews such legal determinations independently of the lower court's decision. State v. Branch, supra.
Adequacy of Information.
Valverde assigns that he was entitled to postconviction relief due to the inadequacy of the information filed by the State. Specifically, he asserts that the district court erred by allowing the State to prosecute him by an information which did not adequately apprise him of the offenses against him and give him an opportunity to provide an alibi defense. Valverde argues that he "could not defend against crimes alleged to have occurred over a period of time, with no specific date and time, allowing him to put forth an alibi defense as to when the offenses took place." Brief for appellant at 7. He also states, "Even assuming he had an alibi, his constitutional right to exercise it was infringed upon by the State, when it failed to prove with specificity when the alleged crimes occurred." Brief for appellant at 8.
This issue is procedurally barred. Valverde did not raise the adequacy of the information at trial or on direct appeal, nor did he raise sufficiency of the evidence on direct appeal. A motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased. State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015). Further, although Valverde assigns generally that his trial and appellate counsel provided ineffective assistance of counsel which prejudiced him, he does not argue ineffective assistance of counsel in connection with the alleged inadequacy of the information or the sufficiency of the evidence. To be considered by an appellate court, an appellant must both assign and specifically argue any alleged error. State v. Huston, 291 Neb. 708, 868 N.W.2d 766 (2015). This assignment of error is without merit.
Detective Remaining in Courtroom.
Valverde assigns that the trial court erred when it allowed a police detective to remain in the courtroom during the trial to hear testimony from other witnesses. Again, Valverde did not raise this alleged error on direct appeal, so it is procedurally barred. See State v. Thorpe, supra. However, Valverde also assigns generally that his trial and appellate counsel provided ineffective assistance of counsel which prejudiced him, and he argues that his appellate counsel was ineffective for failing to raise the issue of the detective's sequestration on direct appeal. Although the language used by Valverde in his brief is less than clear, it does not appear that he argues ineffective assistance of trial counsel in connection with the sequestration issue. Accordingly, we will address whether he received ineffective assistance of appellate counsel in this regard.
A claim of ineffective assistance of appellate counsel which could not have been raised on direct appeal may be raised on postconviction review. State v. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015). When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin by determining whether appellate counsel actually prejudiced the defendant. Id. That is, courts begin by assessing the strength of the claim appellate counsel failed to raise. Id. Counsel's failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal. Id. When a casepresents layered ineffectiveness claims, an appellate court determines the prejudice prong of appellate counsel's performance by focusing on whether trial counsel was ineffective under the Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), test. If trial counsel was not ineffective, then the defendant suffered no prejudice when appellate counsel failed to bring an ineffective assistance of trial counsel claim. Id.
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense. State v. Nolan, supra. To show prejudice under the prejudice component of the Strickland v. Washington test, the defendant must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different. Id. A reasonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome. Id. A court may address the two prongs of the test, deficient performance and prejudice, in either order. Id.
Prior to trial, Valverde requested sequestration of the witnesses. The State made an oral motion, requesting that under Neb. Rev. Stat. § 27-615 (Reissue 2008), a particular police detective be considered the State's case agent and be allowed to remain in the courtroom during trial. The prosecutor explained that the detective was "obviously very...
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