Opinion
No. S-97-634.
Filed February 13, 1998.
1. 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.
2. Constitutional Law: Effectiveness of Counsel: Conflict of Interest. To establish a violation of the Sixth Amendment based on a conflict of interest, a defendant who raises no objection at trial must demonstrate (1) that his or her lawyer actively represented conflicting interests and (2) that the actual conflict of interest adversely affected the lawyer's performance.
3. Effectiveness of Counsel: Conflict of Interest: Proof. While a defendant who shows that a conflict of interest actually affected the adequacy of his or her representation need not demonstrate prejudice, such conflict of interest must be shown to have resulted in counsel's conduct detrimental to the defense.
4. Effectiveness of Counsel: Conflict of Interest. An asserted conflict of interest must be actual, rather than speculative or hypothetical.
5. Postconviction: Appeal and Error. Postconviction proceedings are not available to secure review of issues which were or could have been litigated on direct appeal.
Appeal from the District Court for Lincoln County: DONALD E. ROWLANDS II, Judge. Affirmed.
Leonard P. Vyhnalek for appellant.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson for appellee.
CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.
Stacey L. Fletcher appeals the district court's denial of his motion for postconviction relief. We affirm.
BACKGROUND
On February 19, 1992, Fletcher and Ira Leon entered the Barn Store in Lincoln County, Nebraska, with the intent to rob it. When they approached the clerk and indicated their intent to rob the store, she began to yell and ran toward the backroom. Leon pummeled the clerk about the head with a tire iron, killing her. Cash was then removed from the register and split between Fletcher and Leon. Fletcher was later arrested and taken to the police department, where he confessed to his involvement in the crime.
Patrick B. Hays was the court-appointed defense counsel for Fletcher. Robert P. Lindemeier, the public defender, was representing Leon, Fletcher's codefendant. Hays rented office space from Ronald A. Ruff of the Ruff, Nisley and Lindemeier law firm. That firm was located in a building owned by Ruff and his father. Hays shared office space, certain office equipment, and secretaries with Lindemeier. Hays testified that he did not recall providing Lindemeier with any information which was not available through depositions or police reports.
Fletcher was initially charged with aiding and abetting a robbery and with first degree murder in the perpetration or attempt to perpetrate a robbery. The information was later amended to a charge of robbery and premeditated first degree murder. Fletcher, in a plea bargain, pled nolo contendere to the original charges of felony murder and aiding and abetting a robbery. As part of that plea bargain, the State charged Fletcher with aiding and abetting a robbery rather than robbery, and with felony murder rather than premeditated murder as in the amended information. The State also agreed to dismiss three other felony charges for assaults in the jail while Fletcher was incarcerated. In addition to pleading no contest to those reduced charges as part of his consideration for the plea bargain, Fletcher agreed to give up any right he had to contest his convictions on constitutional grounds.
Fletcher then wanted to withdraw his plea, which request was denied by the trial court; this denial was appealed to the Supreme Court, which affirmed the trial court's decision in a memorandum opinion, case No. S-92-1099, filed May 20, 1993.
Fletcher filed a pro se motion for postconviction relief in the district court for Lincoln County, Nebraska, claiming that his constitutional rights had been violated because he had been sentenced for both robbery and felony murder in the perpetration of the same robbery and because he had been denied effective assistance of counsel. The trial court appointed Leonard P. Vyhnalek to represent Fletcher in his postconviction proceeding and granted Fletcher an evidentiary hearing. At the hearing, the district court took judicial notice of the complete court file in the matter and received into evidence Fletcher's deposition and testimony from Hays. After the hearing, the district court denied postconviction relief, concluding that double jeopardy did not attach and that Fletcher's claim of ineffectiveness of counsel was without merit. The district court further found that the representation of Fletcher by Hays met the highest standards associated with legal representation. Fletcher now appeals the district court's decision.
ASSIGNMENTS OF ERROR
Fletcher assigns as error (1) the district court's finding that the Lincoln County public defender and court-appointed counsel for Fletcher did not have a conflict of interest, (2) the district court's failure to vacate the sentence for aiding and abetting a robbery when Fletcher had also been sentenced for a felony murder charge, and (3) the district court's failure to retroactively apply State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996), and State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
STANDARD OF REVIEW
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. State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997); State v. Hall, 249 Neb. 376, 543 N.W.2d 462 (1996); State v. Schoonmaker, 249 Neb. 330, 543 N.W.2d 194 (1996).
ANALYSIS
INEFFECTIVE ASSISTANCE OF COUNSEL
Fletcher first assigns as error the district court's finding that the Lincoln County public defender and Fletcher's court-appointed counsel worked independently of each other and did not have a conflict of interest. We disagree with this assertion.
To establish a violation of the Sixth Amendment based on a conflict of interest, a defendant who raises no objection at trial must demonstrate (1) that his or her lawyer actively represented conflicting interests and (2) that the actual conflict of interest adversely affected the lawyer's performance. State v. Marchese, 245 Neb. 975, 515 N.W.2d 670 (1994); State v. Carter, 236 Neb. 656, 463 N.W.2d 332 (1990); State v. Schneckloth, 235 Neb. 853, 458 N.W.2d 185 (1990), denial of habeas corpus affirmed sub nom. Schneckloth v. Dahm, 994 F.2d 843 (8th Cir. 1993).
While a defendant who shows that a conflict of interest actually affected the adequacy of his or her representation need not demonstrate prejudice, such conflict of interest must be shown to have resulted in counsel's conduct detrimental to the defense. State v. Marchese, supra. Further, the asserted conflict of interest must be actual, rather than speculative or hypothetical. State v. Carter, supra.
We therefore turn to an examination of the record to determine whether Hays actually represented conflicting interests. Hays testified that although he did rent office space from a senior partner in the firm which included Lindemeier (the public defender), Hays was an independent practitioner. He testified that he did not recall sharing any information with Lindemeier which could not have been found in police reports or in other sources. Moreover, Fletcher did not introduce any evidence to support his claim that he was prejudiced by the rental agreement. Fletcher testified that he could not prove any confidential communications he had with Hays were made known to Lindemeier. We conclude the trial court was not clearly erroneous in finding that there was no conflict between Hays and Lindemeier.
Although we conclude there is not a conflict in this case, we point out that both the trial court and the practicing bar should be cognizant of the mischief that can be created in the appointment of defense counsel who has an office-sharing arrangement with counsel for a codefendant.
DOUBLE JEOPARDY
We now turn to a consideration of Fletcher's last two assignments of error. Fletcher argues that the district court should have vacated his sentence for aiding and abetting a robbery because a sentence for the underlying felony in a felony murder case constitutes double jeopardy. Fletcher points this court to the cases State v. McHenry, supra, and State v. Nissen, supra, which hold that sentencing for the underlying felony and felony murder constitutes double jeopardy, and argues that it was error for the district court not to retroactively apply those cases.
Fletcher's double jeopardy claim is without merit. Postconviction proceedings are not available to secure review of issues which were or could have been litigated on direct appeal. State v. Thieszen, 252 Neb. 208, 560 N.W.2d 800 (1997); State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991). The issue of double jeopardy could have been litigated on direct appeal. Therefore, review is not available for this issue in this postconviction proceeding.
Because Fletcher was procedurally barred from raising the double jeopardy issue, the district court was correct in denying Fletcher's postconviction motion requesting that his sentence for aiding and abetting a robbery be vacated. Therefore, Fletcher's second assignment of error is without merit.
We do not reach Fletcher's third assignment of error because his claim is procedurally barred.
CONCLUSION
Having found Fletcher's first and second assignments of error to be without merit, and not having reached the third assignment of error, the decision of the district court is affirmed.
AFFIRMED.
WHITE, C.J., participating on briefs.