State v. Wiemer, A-94-052

• Decision Date: 13 June 1995
• Docket Number: No. A-94-052,A-94-052
• Citation: 533 N.W.2d 122,3 Neb.App. 821
• Parties: STATE of Nebraska, Appellant, v. John WIEMER, Appellee.
• Court: Nebraska Court of Appeals

Page 122

533 N.W.2d 122

3 Neb.App. 821

STATE of Nebraska, Appellant, v. John WIEMER, Appellee.

No. A-94-052.

Court of Appeals of Nebraska.

June 13, 1995.

Syllabus by the Court

1. Postconviction: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or federal Constitution, causing the judgment against the defendant to be void or voidable.

2. Postconviction: Proof: Appeal and Error. A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous.

3. Judgments: Appeal and Error. Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.

4. Postconviction. Claims which could have been litigated in a first postconviction case may not be litigated in a second postconviction case. However, dismissal of subsequent postconviction claims is contingent on the previous motion for postconviction relief having been judicially determined.

5. Postconviction. Consideration of a second postconviction motion is proper where the first postconviction motion was dismissed because the defendant was in federal rather than Nebraska custody.

6. Postconviction: Appeal and Error. For postconviction purposes, issues raised on direct appeal but disposed of procedurally have not been litigated.

7. Due Process. Procedural due process requires that an individual charged be notified of the charge and given a reasonable opportunity to be heard and to present any defense to the charge.

8. Indictments and Informations. An information may be amended before a verdict or finding if no new additional or different offense is charged and the substantive rights of the defendant are not prejudiced.

9. Indictments and Informations: Sexual Assault. An information charging sexual assault on a child may be amended to expand the dates based on the trial evidence.

10. Pleas. A plea of no contest, or nolo contendere, is equivalent to a plea of guilty for convicting and sentencing a defendant.

11. Pleas: Waiver. The voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge, whether the defense is procedural, statutory, or constitutional.

12. Pleas: Waiver: Indictments and Informations: Effectiveness of Counsel: Jurisdiction. The only exceptions to the rule that a guilty or no contest plea waives every defense are for the defenses of insufficiency of the indictment, information, or complaint; ineffective assistance of counsel; and lack of jurisdiction.

13. Postconviction: Effectiveness of Counsel: Proof. The two-pronged test for determining the effectiveness of counsel in a postconviction case is as follows: (1) whether the attorney, in representing the defendant, performed at least as well as an attorney with ordinary training and skill in criminal law in the area and (2) whether the defendant was prejudiced in the defense of his case as a result of his attorney's actions or inactions.

14. Postconviction: Effectiveness of Counsel: Proof. A postconviction defendant must show that his trial counsel's performance was deficient and that the deficient 15. Postconviction: Effectiveness of Counsel: Proof. To be successful on a claim of ineffectiveness of counsel, a defendant seeking postconviction relief must show counsel's deficient performance and prejudice to the defendant.

performance prejudiced the defendant's defense in such a way that the defendant was denied a fair trial, that is, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

16. Effectiveness of Counsel: Proof. The defendant has the burden of demonstrating ineffectiveness of counsel, and the record must affirmatively support the claim.

17. Postconviction: Effectiveness of Counsel: Judges. The question of whether counsel performed in accordance with the test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is a legal matter concerning which judges are required to be their own experts; judging the law is one of the more important judicial functions.

18. Pleas: Effectiveness of Counsel. A plea of guilty will be found to be freely and voluntarily entered upon the advice of counsel if that advice is within the range of competence demanded of attorneys in criminal cases.

19. Effectiveness of Counsel: Proof. Even where counsel's representation was deficient, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

20. Judgments: Effectiveness of Counsel: Proof. The additional prejudice requirement is based on the proposition that an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.

21. Effectiveness of Counsel: Proof. Even if a defendant shows that particular errors of counsel were unreasonable, the defendant must show that they actually had an adverse effect on the defense.

22. Effectiveness of Counsel: Proof. Proof of prejudice is required to succeed in establishing a claim of ineffective assistance of counsel.

23. Effectiveness of Counsel: Proof. Proof of a deficient performance must be accompanied by proof of prejudice to succeed in an ineffective assistance of counsel claim.

24. Pleas: Effectiveness of Counsel: Proof. In order to satisfy the prejudice requirement in the context of a plea, the defendant must show that there is a reasonable probability that, but for counsel's errors, the defendant would not have pled and would have insisted upon going to trial.

25. Postconviction: Effectiveness of Counsel: Proof. In meeting the prejudice standard, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), states, it is not enough for the defendant to show that counsel's errors had some conceivable effect on the outcome of the proceeding.

26. Effectiveness of Counsel: Proof: Words and Phrases. A defendant claiming ineffective assistance of counsel must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In making this determination, a court must consider the totality of the evidence before the judge or jury.

27. Effectiveness of Counsel. The court may evaluate an ineffectiveness of counsel claim for deficient performance by counsel and for prejudice in any order.

28. Constitutional Law: Criminal Law: Limitations of Actions. An extended statute of limitations properly applies to crimes where the statute of limitations had not yet run on the alleged acts at the time a new statute of limitations law took effect. These extensions do not violate the ex post facto clause.

29. Sexual Assault: Limitations of Actions. In deciding whether a charge of first degree sexual assault is time barred, the question is whether the original limitations period had run before the new law extending the limitations period became effective.

30. Limitations of Actions: Pleas: Waiver. The statute of limitations is an 31. Criminal Law: Limitations of Actions. The statute of limitations is a defense and must be asserted at trial by the defendant in criminal cases.

affirmative defense and can be waived by a guilty plea.

32. Limitations of Actions: Waiver: Jurisdiction. Cases holding that the statute of limitations is not waiveable generally reason that the statute of limitations is jurisdictional.

33. Lesser-Included Offenses: Limitations of Actions: Jury Instructions: Waiver. In order for the court to charge a jury on a lesser-included offense which is time barred, a defendant must explicitly waive the statute of limitations.

34. Limitations of Actions: Waiver. The statute of limitations can, under proper circumstances, be waived.

Charles W. Campbell, York County Attorney, for appellant.

Richard Douglas McClain, P.C., Lincoln, for appellee.

SIEVERS, C.J., and MILLER-LERMAN and INBODY, JJ.

MILLER-LERMAN, Judge.

The State appeals the order of the York County District Court granting John Wiemer's motion for postconviction relief. For the reasons recited below, we reverse, and remand for a hearing.

BACKGROUND

On December 17, 1990, the State filed an information against Wiemer charging him with three counts of sexual assault in the first degree, in violation of Neb.Rev.Stat. § 28-319 (Reissue 1989), each a Class II felony, punishable by up to 50 years' imprisonment. Each count charged that Wiemer's daughter had been subjected to sexual penetration by Wiemer. The offenses were alleged to have occurred during the period of June 15 to July 7, 1986. According to an interview with the daughter in 1990, conducted by her counselors at Boys Town, she alleged that she was assaulted while her mother was in Holland for 3 weeks. The State amended the information on December 21, 1990, alleging that the offenses occurred during an expanded timeframe from June 1 to September 30, 1986. Wiemer pled not guilty.

As a result of plea negotiations, the State filed a second amended information on March 22, 1991. The second amended information, to which Wiemer pled no contest, charged one count of incest, in violation of § 28-703 (Reissue 1989), a Class III felony, punishable by 20 years' imprisonment, a $25,000 fine, or both. The act of incest was alleged to have occurred during the period from June 1 to September 30, 1986.

At the hearing to accept the plea, the court asked the State to recite the factual basis for the prosecution and conviction. The prosecutor recited the following factual basis:

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