State v. Vanderpool

• Decision Date: 21 June 2013
• Docket Number: No. S–12–755,S–12–755
• Citation: 286 Neb. 111,835 N.W.2d 52
• Parties: State of Nebraska, Appellee, v. Patrick W. Vanderpool, Appellant.
• Court: Nebraska Supreme Court

286 Neb. 111

835 N.W.2d 52

State of Nebraska, Appellee,

v.Patrick W. Vanderpool, Appellant.

No. S–12–755

Supreme Court of Nebraska.

Filed June 21, 2013

Appeal from the District Court for Douglas County: James T. Gleason, Judge.Affirmed.

Thomas C. Riley, Douglas County Public Defender, and Kelly M. Steenbock for appellant.

Jon Bruning, Attorney General, and Erin E. Tangeman for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

[286 Neb. 111]1.Effectiveness of Counsel: Appeal and Error.A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.Determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law that an appellate court reviews independently of the lower court's decision.The court reviews factual findings for clear error.

2.Effectiveness of Counsel: Proof.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 counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.

3.Effectiveness of Counsel: Proof.To show deficient performance, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area.

[286 Neb. 112]4.Effectiveness of Counsel: Proof.To show prejudice, the defendant must demonstrate reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

5.Postconviction: Effectiveness of Counsel: Proof.The defendant has the burden in postconviction proceedings of demonstrating ineffectiveness of counsel, and the record must affirmatively support that claim.

6.Postconviction: Appeal and Error.In a postconviction motion, an appellate court will not consider as an assignment of error a claim that was not presented to the district court.

7.Postconviction: Evidence.Issues of credibility are for the postconviction court.

8.Postconviction: Effectiveness of Counsel: Sentences.Allegations of ineffective assistance which are affirmatively refuted by a defendant's assurances to the sentencing court do not constitute a basis for postconviction relief.

9.Convictions: Effectiveness of Counsel: Pleas: Proof.When a conviction is the result of a guilty plea or a plea of no contest, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the convicted defendant can show a reasonable probability that, but for the errors of counsel, he or she would have insisted on going to trial rather than pleading.

10.Postconviction: Effectiveness of Counsel: Proof.In the context of a claim of ineffectiveness of counsel for failure to investigate, allegations are too speculative to warrant relief if the petitioner fails to allege what exculpatory evidence that the investigation would have procured and how it would have affected the outcome of the case.

11.Licenses and Permits: Attorneys at Law: Effectiveness of Counsel.The failure to meet technical licensing requirements does not render an attorney per se ineffective.

12.Licenses and Permits: Attorneys at Law: Effectiveness of Counsel.Suspension for nonpayment of dues does not render an attorney's representation per se ineffective.

Cassel, J.

I.INTRODUCTION

A Nebraska attorney was suspended and later disbarred for nonpayment of dues.While suspended, the attorney represented Patrick W. Vanderpool in a criminal case.When Vanderpool became aware of the suspension, he sought postconviction relief based upon alleged ineffective assistance of counsel.After an evidentiary hearing, the district court denied relief.The court first declined to apply a per se rule—reasoning that the attorney was qualified when admitted and was suspended solely for nonpayment of dues.After considering Vanderpool's specific claims regarding his attorney's performance, the court found that they either were affirmatively disproved by the record or constituted mere conclusions.We adhere to our previous rejection of a per se rule, and we find no error in the court's specific findings.Thus, we affirm.

II.BACKGROUND

In 2010, Vanderpool pled guilty to and was convicted of attempted first degree sexual assault, for which he was sentenced to 10 to 15 years' imprisonment.There was no direct appeal.

Throughout the criminal proceedings, Vanderpool was represented by David M. Walocha and believed that Walocha was licensed to practice law in Nebraska.In actuality, Walocha's license to practice law in Nebraska had been suspended since 1996 for nonpayment of dues.Vanderpool did not learn of this fact until after his sentencing.A few months later, in 2011, the Counsel for Discipline of the Nebraska Supreme Court filed formal charges against Walocha for practicing law on a suspended license.¹In 2012, Walocha was disbarred.²

After learning that Walocha's license was suspended but before Walocha was disbarred, Vanderpool filed a motion for postconviction relief, alleging ineffective assistance of counsel.He argued that Walocha was ineffective because he(1) led Vanderpool to believe that Vanderpool would receive only probation and not incarceration if Vanderpool pled guilty as part of a plea agreement, (2) failed to interview witnesses or independently investigate the crime of which Vanderpool was convicted, and (3) represented himself as licensed to practice law in Nebraska when his license was in fact suspended.

After an evidentiary hearing, the district court denied Vanderpool's motion for postconviction relief.In its order, the court analyzed the motion under both a per se theory of ineffectiveness and under the standard two-part test of Strickland v. Washington.³The court found that Vanderpool was not entitled to relief for ineffective assistance of counsel under either approach.

Taking up the issue of Walocha's suspension first, the district court held that it was bound by State v. McCroy⁴ to reject a per se determination of ineffectiveness.In McCroy,we declined to adopt a per se determination of ineffectiveness in the case of disbarment subsequent to representation—a factual situation the court viewed as similar to Vanderpool's representation by Walocha.The court also cited numerous cases from other jurisdictions, noting that “in varying sets of circumstances [c]ourts of other [s]tates have determined, almost unanimously, that an attorney whose license has been suspended for failureto pay dues may still be ‘counsel’ for Sixth Amendment purposes.”

After rejecting a per se determination of ineffectiveness, the district court then found that Vanderpool's specific allegations of ineffective assistance of counsel lacked merit under the criteria of Strickland.Addressing Vanderpool's argument that Walocha promised a sentence of probation if Vanderpool pled guilty, the court found that this allegation was affirmatively refuted by the record.The court explained as follows:

In this case, [Vanderpool] unequivocally represented to the [c]ourt, on the record, that no promises were made by anyone regarding his sentence [.][H]aving clearly, intelligently and forthrightly set forth that he had not been promised any particular sentence in return for his entry of a guilty plea to the amended charge[,] to now determine that his plea was not voluntarily entered based on promises made would be to make a mockery out of the arraignment [process].

As for Vanderpool's claim that Walocha failed to conduct an independent investigation, the court held that the allegations were “conclus[o]ry” in that Vanderpool “fail[ed] to allege with any specificity what exculpatory facts would have been discovered or how such discovery would have led to him not entering a plea of guilty to the significantly reduced charge.”

Vanderpool timely appeals.Pursuant to statutory authority, we moved the case to our docket.⁵

III.ASSIGNMENT OF ERROR

Vanderpool alleges that the district court erred in denying his motion for postconviction relief.

IV.STANDARD OF REVIEW

A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.⁶Determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law that an appellate court reviews independently of the lower court's decision.⁷The court reviews factual findings for clear error.⁸

V.ANALYSIS

1.Ineffective Assistance of Counsel Under Strickland

As in any other ineffective assistance of counsel case, we begin by reviewing Vanderpool's allegations under the two-part framework of Strickland.To prevail on a claim of ineffective assistance of counsel under Strickland,the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.⁹To show deficient performance, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area.¹⁰To show prejudice, the defendant must demonstrate reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.¹¹The defendanthas the burden in postconviction proceedings of demonstrating ineffectiveness of counsel, and the record must affirmatively support that claim.¹²

With these broad principles in mind, we turn to the specific errors that Vanderpool alleges Walocha committed.Liberally construed, Vanderpool's appellate brief argues that Walocha committed three specific errors: (1)He failed to file a direct appeal, (2)he led Vanderpool to believe that Vanderpool would receive only probation and not incarceration as part of a plea agreement, and (3)he failed to interview witnesses or independently investigate the crime of which Vanderpool was...