State v. Von Dorn

• Decision Date: 22 December 1989
• Docket Number: No. 88-990,88-990
• Citation: 234 Neb. 93,449 N.W.2d 530
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Thomas Charles VON DORN, Appellant.

Page 530

449 N.W.2d 530

234 Neb. 93

STATE of Nebraska, Appellee, v. Thomas Charles VON DORN, Appellant.

No. 88-990.

Supreme Court of Nebraska.

Dec. 22, 1989.

Syllabus by the Court

1. Postconviction. In a proceeding under the Nebraska Postconviction Act, Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1985), the movant must allege facts which, if proved, constitute a denial or violation of the defendant's rights under the Nebraska or federal Constitution, causing the judgment against the defendant to be void or voidable.

2. Postconviction. A court is not required to grant an evidential hearing on a motion for postconviction relief which alleges only conclusions of law or fact; nor is an evidential hearing required under the Nebraska Postconviction Act when (1) the motion for postconviction relief does not contain sufficient factual allegations concerning a denial or violation of constitutional rights affecting the judgment against the movant, or (2) notwithstanding proper pleading of facts in a motion for postconviction relief, the files and records in the movant's case do not show a denial or violation of the movant's constitutional rights causing the judgment against the movant to be void or voidable.

3. Postconviction: Proof: Appeal and Error. One seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless clearly erroneous.

4. Statutes: Legislature: Intent. A legislative act operates only prospectively and not retrospectively unless the legislative intent and purpose that it should operate retrospectively is clearly disclosed.

5. Sentences. The granting of presentence jail time credit is within the trial court's discretion except where the statutory maximums are exceeded.

6. Constitutional Law: Effectiveness of Counsel: Proof. To sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. Constitution and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

7. Pleas. A judge is not required to inform a defendant of his or her right to appeal in order to assure that a plea of guilty or no contest is entered freely, intelligently, voluntarily, and understandingly.

Thomas Charles Von Dorn, pro se.

Robert M. Spire, Atty. Gen., and Mark D. Starr, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

Defendant-appellant, Thomas Charles Von Dorn, challenges the denial without an evidential hearing of his motion for postconviction relief. He asserts the postconviction court erred in failing to (1) find that the equal protection clause of the 14th amendment requires that he be granted credit for time served prior to sentencing, (2) find that he was deprived of his 6th amendment right to the effective assistance of counsel, and (3) grant him credit for time served. We affirm.

Von Dorn was arrested on November 9, 1987, and a subsequent information charged him with two counts of burglary. The record shows that Von Dorn stole items from at least two separate farms and sold them through auction houses.

His bail was apparently set at 10 percent of $250,000, although the record shows differing amounts for a "bail bond" and an "appearance bond." At any rate, Von Dorn was not able to post any bond, and he remained incarcerated from the time of his arrest through the time of sentencing on February 29, 1988. Pursuant to a plea bargain, Von Dorn pled no contest to one count of burglary. In return for this plea the State dismissed the second burglary charge and recommended incarceration for 3 to 5 years.

The trial judge sentenced Von Dorn to imprisonment for a period of not less than 3 nor more than 5 years. In refusing to credit Von Dorn for the 113 days he had spent in jail prior to sentencing, the trial judge stated that he had already taken into account the fact that Von Dorn had spent 113 days in jail during the pendency of the action.

In an effort to receive credit for the time served prior to sentencing, Von Dorn, on November 8, 1988, filed the pro se "post conviction motion coram nobis" which is the subject of this appeal and which we, as did the postconviction court, treat as a motion under the provisions of the Nebraska Postconviction Act, Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1985). We begin our analysis by recalling certain well-established rules which control the disposition of such motions.

In a proceeding under the act, the movant must allege facts which, if proved, constitute a denial or violation of the defendant's rights under the Nebraska or federal Constitution, causing the judgment against the defendant to be void or voidable. State v. Nearhood, 233 Neb. 767, 448 N.W.2d 399 (1989); State v. Start, 229 Neb. 575, 427 N.W.2d 800 (1988). A court is not required to grant an evidential hearing on a motion for postconviction relief which alleges only conclusions of law or fact; nor is an evidential hearing required under the Nebraska Postconviction Act when (1) the motion for postconviction relief does not contain sufficient factual allegations concerning a denial or violation of constitutional rights affecting the judgment against the movant, or (2) notwithstanding proper pleading of facts in a motion for postconviction relief, the files and records in the movant's case do not show a denial or violation of the movant's constitutional rights causing the judgment against the movant to be void or voidable. State v. Nearhood, supra; State v. Start, supra. Moreover, one seeking postconviction relief has the burden of establishing a basis for such relief, and the findings of the district court will not be disturbed unless clearly erroneous. State v. Nearhood, supra; State v. Bostwick, 233 Neb. 57, 443 N.W.2d 885 (1989); State v. Kern, 232 Neb. 799, 442 N.W.2d 381 (1989); State v. Ditter, 232 Neb. 600, 441 N.W.2d 622 (1989); State v. Gagliano, 231 Neb. 911, 438 N.W.2d 783 (1989).

With those basic rules in mind, we move on to a consideration of Von Dorn's first assignment of error, that the postconviction court erred in failing to find that the equal protection clause of the 14th amendment to the U.S. Constitution requires that he be granted credit for time served prior to sentencing.

This court addressed similar contentions in Eutzy v. State, 199 Neb. 384, 258 N.W.2d 829 (1977), and State v. Nelson, 189 Neb. 580, 203 N.W.2d 785 (1973). In Nelson, the defendant pled guilty to embezzlement of more than $100, a crime punishable by 1 to 7 years' imprisonment. The district court sentenced Nelson to 1 to 3 years' imprisonment and did not allow credit for time served. Nelson later filed a motion seeking credit for time served. When the district court overruled the motion, Nelson appealed the decision to this court, arguing that the ruling violated constitutional guarantees of due process and equal protection. In upholding the district court's decision, this court stated:

The judge who heard the motion was the judge who pronounced sentence. He found that in the sentencing of defendant he had considered the prior time spent in custody....

Had the judge resentenced defendant, he clearly would have imposed a sentence with the same net time for defendant to serve. In doing so, he would not have penalized a defendant for attacking the sentence. Cf. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The resentence furthermore would not have discriminated against an indigent unable to tender a monetary bond.

A criminal sentence in which the court considered prior time spent in custody may be consistent with state and federal constitutional guarantees of due process and with the federal constitutional guarantee of equal protection, although the record at the sentencing hearing is silent on the subject.

Nelson at 580-81, 203 N.W.2d at 786-87.

In Eutzy, the defendant spent 135 days in confinement prior to sentencing because he was unable to post bail. In sentencing the defendant to 3 to 5 years' imprisonment for forgery, the sentencing court stated that it had considered the time the defendant had spent in custody prior to confinement and ruled that the defendant would not be credited for time served prior to sentencing. The commitment order also noted that the court had considered the time the defendant had served while awaiting trial.

In seeking credit for time served, Eutzy challenged the constitutionality of Neb.Rev.Stat. § 83-1,106 (Reissue 1987), which left the granting of credit for time served to the discretion of the district court. In addressing Eutzy's challenge on appeal, this court stated:

This case is similar to State v. Nelson, 189 Neb. 580, 203 N.W.2d 785, in which the defendant was sentenced to imprisonment for 1 to 3 years for embezzlement. In that case the record was silent and a verbatim record of the sentencing hearing was not before this court. However, the trial court found that the time spent in custody had been considered in fixing the sentence. We held that a criminal sentence in which the court considered prior time spent in custody might be consistent with the federal constitutional guarantee of equal protection even though the record at the sentencing hearing was silent on the subject.

The sentence which was imposed here was much less than the statutory maximum of 20 years imprisonment authorized by section 28-601, R.R.S.1943. Since the 135 days that Eutzy spent in confinement between the time of his arrest and the time that he was sentenced was considered by the trial court in fixing the sentence imposed, the result is the same as if the sentence had been 3 years and 4 1/2...