This is the only claim Sobey raises as to his appellate counsel's performance. Sobey claims that this failure by his appellate counsel deprived him of his right to effective assistance of counsel under the Sixth Amendment to the U.S. Constitution and article 1, § 11, of the Nebraska Constitution. Further, he claims that the failure of appellate counsel to raise this issue on direct appeal deprived him of his right to due process of law under the 14th Amendment to the U.S. Constitution and article 1, § 3, of the Nebraska Constitution. He bases his due process argument primarily on State v. Davlin, 10 Neb.App. 866, 639 N.W.2d 168 (2002) (Davlin I), where we found: For a defendant to be required to go to trial with counsel the defendant finds unsatisfactory or to try his or her case pro se when before trial facts exist which, if the court knew of them, would show that the defense counsel had a conflict of interest, that communication between counsel and the defendant had completely broken down, or that counsel has refused upon request to take reasonable steps to present or discover evidence that would be helpful, would in effect be requiring the defendant to be represented by ineffective counsel.

The Nebraska Court of Appeals reversed the judgment and remanded the cause for a new trial, concluding that Davlin's due process rights were violated by the trial court's refusal to inquire into his dissatisfaction with court-appointed counsel. See State v. Davlin, 10 Neb. App. 866, 639 N.W.2d 168 (2002). We granted the State's petition for further review.

(Davlin I). Davlin then filed a motion for postconviction relief, with new counsel, alleging: (1) the court denied his right to due process and effective assistance of counsel by denying his pretrial request for substitution of counsel; (2) he was denied effective assistance of trial and appellate counsel for a number of reasons, including trial counsel's failure to object to documents introduced to establish the habitual criminal charge because they did not have the proper judicial signature to certify that Davlin had been convicted by a judge and sentenced to at least one year's imprisonment. State v. Davlin, 10 Neb. App. 866, 639 N.W.2d 168 (2002) (Davlin II). This court concluded Davlin had been denied an opportunity to be heard on his concerns about trial counsel, and was therefore denied due process. This court reversed Davlin's convictions and sentences and remanded the case for a new trial.