State v. Vann

• Decision Date: 12 July 1994
• Docket Number: No. A-93-853,A-93-853
• Citation: 2 Neb.App. 946,519 N.W.2d 568
• Parties: STATE of Nebraska, Appellee, v. Sidney E. VANN, Appellant.
• Court: Nebraska Court of Appeals

Page 568

519 N.W.2d 568

2 Neb.App. 946

STATE of Nebraska, Appellee, v. Sidney E. VANN, Appellant.

No. A-93-853.

Court of Appeals of Nebraska.

July 12, 1994.

Syllabus by the Court

1. Postconviction: Appeal and Error. On appeal from a proceeding for postconviction relief, the trial court's findings will be upheld unless such findings are clearly erroneous.

2. Postconviction: Appeal and Error. 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.

3. Postconviction: Proof. A defendant moving for postconviction relief must allege facts in the motion which, if proved, constitute a denial or violation of his or her rights under the Nebraska or federal Constitution.

4. Constitutional Law: Postconviction. The Nebraska Postconviction Act applies only where a prisoner has sustained such a denial or infringement of constitutional rights that the judgment is void or voidable.

5. Postconviction. An evidentiary hearing on a motion for postconviction relief may properly be denied when the records and files of the case affirmatively establish that the defendant is not entitled to relief.

6. Postconviction: Appeal and Error. A motion for postconviction relief cannot be 7. Constitutional Law: Effectiveness of Counsel: Proof. In order to state a claim of ineffective assistance of counsel as violative of the Sixth Amendment to the U.S. Constitution and thereby obtain reversal of a conviction, one must show that counsel's performance was deficient and such deficient performance prejudiced one's defense, that is, demonstrate a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

used as a substitute for an appeal or to secure a further review of issues already litigated on direct appeal or which were known to the defendant and counsel at the time of trial and which were capable of being raised, but were not raised, in the defendant's direct appeal.

8. Postconviction: Effectiveness of Counsel: Appeal and Error. Where a defendant appears pro se on direct appeal in addition to appellate counsel and explicitly undertakes to remedy appellate counsel's perceived ineffectiveness by identifying and arguing additional appellate issues, the defendant has not suffered the loss of appellate review and cannot later, on postconviction review, successfully complain of ineffective appellate representation.

Sidney E. Vann, pro se.

Don Stenberg, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.

IRWIN, MILLER-LERMAN, and MUES, JJ.

MILLER-LERMAN, Judge.

Sidney E. Vann appeals the order of the district court denying without hearing his motion for postconviction relief filed pursuant to Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1989 & Supp.1993). As the basis for postconviction relief, Vann claims that he was denied effective assistance of counsel at both the trial and appellate levels in connection with his rights to be free from unreasonable searches and seizures as guaranteed under the Fourth Amendment to the U.S. Constitution and art. I, § 7, of the Nebraska Constitution. For the reasons recited below, we affirm.

GENERAL LEGAL PRINCIPLES

On appeal from a proceeding for postconviction relief, the trial court's findings will be upheld unless such findings are clearly erroneous. State v. Livingston, 244 Neb. 757, 509 N.W.2d 205 (1993); State v. Johnson, 243 Neb. 758, 502 N.W.2d 477 (1993). "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." (Emphasis in original.) State v. Stewart, 242 Neb. 712, 717, 496 N.W.2d 524, 527 (1993). Accord State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991).

The Nebraska Supreme Court has held that a defendant moving for postconviction relief must allege facts in the motion which, if proved, "constitute a denial or violation of his or her rights under the Nebraska or federal Constitution." State v. Sims, 244 Neb. 771, 772, 509 N.W.2d 6, 8 (1993). Accord State v. Russell, 239 Neb. 979, 479 N.W.2d 798 (1992). "The Nebraska Postconviction Act applies only where a prisoner has sustained such a denial or infringement of constitutional rights that the judgment is void or voidable." State v. Sims, 244 Neb. at 772, 509 N.W.2d at 8. "[A]n evidentiary hearing on a motion for postconviction relief may properly be denied when the records and files of the case affirmatively establish that the defendant is not entitled to relief." State v. Victor, 242 Neb. 306, 309, 494 N.W.2d 565, 569 (1993).

A motion for postconviction relief cannot be used as a substitute for an appeal or to secure a further review of issues already litigated on direct appeal or which were known to the defendant and counsel at the time of trial and which were capable of being raised, but were not raised, in the defendant's direct appeal. State v. Wickline, 241 Neb. 488, 488 N.W.2d 581 (1992); State v. Whitmore, 238 Neb. 125, 469 N.W.2d 527 (1991).

In connection with a claim of ineffective assistance of counsel, the Nebraska Supreme Court has stated:

[I]n order to state a claim of ineffective assistance of counsel as violative of the Sixth Amendment to the U.S. Constitution and thereby obtain reversal of a conviction, one must show that counsel's performance was deficient and such deficient performance prejudiced one's defense, that is, demonstrate a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.

State v. Bowen, 244 Neb. 204, 214, 505 N.W.2d 682, 689 (1993). Accord, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Nielsen, 243 Neb. 202, 498 N.W.2d 527 (1993); State v. Victor, supra.

FACTS

The relevant facts as summarized by the Nebraska Supreme Court in Vann's direct appeal are as follows:

On June 25, 1986, the manager of a Residence Inn hotel in Omaha called the Omaha police narcotics unit to inform the police that a resident of the hotel, Sidney Vann, was acting in an unusual manner in that he was paying his bill in cash and the hotel was having a hard time collecting the bill; in that Vann requested his room not be cleaned by the hotel's personnel; in that many long-distance telephone calls were being made, particularly to California; and in that Vann left his room and returned at unusual hours, including visits to the hotel registration desk at 3 or 4 a.m. On June 30, 1986, the manager requested Vann to leave the hotel. Vann's final bill was paid in cash after he had been locked out of his room to effect payment. At trial, the manager identified Vann as the defendant herein.

The manager's call to the police narcotics unit was noted in police records, but no actual investigation was made until July 1, 1986, because of then-pending, ongoing narcotics investigations in other unrelated cases. On July 1, narcotics investigators went to the Residence Inn.

On July 2, 1986, the owners of M3 Video, a videocassette movie rental store in Omaha, reported to a police officer, whose assignment was to investigate theft cases, that a person named Sidney Vann had rented six videocassette movies from M3 Video on June 23, 1986, that he had not returned the cassettes by June 30, and that those cassettes had a value of $360. The M3 Video owners informed the police theft investigator that Vann had furnished M3 with nonexistent and fraudulent addresses and telephone numbers, but that M3 had traced Vann to the Residence Inn in Omaha.

On July 1, while the narcotics officers were at the Residence Inn, they were informed that while hotel employees were cleaning Vann's room after he was evicted, a tray with a white residue had been found. This tray and residue were disposed of by the hotel prior to police arrival. Residence Inn employees provided the narcotics officers with a description of Vann's vehicle and with its California license number.

On July 2, 1986, the police narcotics officers located Vann's vehicle at the Omaha Best Western Airport Inn and placed the car under surveillance. The manager of the Airport Inn informed the officers that Vann and his wife were living in room 206. The officers requested that any trash removed from room 206 be saved for investigation. Pursuant to this request, hotel employees provided officers with trash from room 206. This trash was taken to police headquarters and examined. Some of the trash was considered to have evidentiary value, was logged into the police property unit, and was later forwarded to a chemist for examination.

During this same time period, the theft investigation officer followed up on the M3 Video theft. Using information furnished to him by the owners of M3 Video, the theft investigation officer went to the Residence Inn on July 2, 1986, and was informed by the Residence Inn that Vann had been "evicted" and that the Residence Inn had called the police narcotics unit. The theft investigation officer contacted the narcotics unit and was informed by the narcotics officers that Vann had been located at the Airport Inn. Officers of the two units consulted together about the suspect Vann, who was being investigated by each unit.

On July 3, 1986, the theft investigation officer obtained a felony arrest warrant for Vann for the videocassette theft. The officer from the theft investigation unit informed officers from the narcotics unit about the warrant, and at approximately 9:50 a.m. on July 3, 1986, officers from both units went to the Airport Inn to arrest Vann.

Officers knocked on the door of room 206. A party who identified himself as Sidney Vann answered the door. Vann was dressed only in his underwear. He allowed the officers into the room, and a majority of the eight officers entered the room. This group consisted of...