Opinion
No. A-11-990
01-08-2013
STATE OF NEBRASKA, APPELLEE, v. KEVIN A. SIMNICK, APPELLANT.
Kevin A. Simnick, pro se. Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Lancaster County: JEFFRE CHEUVRONT, Judge. Affirmed.
Kevin A. Simnick, pro se.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
IRWIN, SIEVERS, and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Kevin A. Simnick appeals from an order of the district court for Lancaster County denying his motion for postconviction relief without an evidentiary hearing. Having found that Simnick's assignments of error are either without merit or could have been or were previously raised on direct appeal, we affirm.
BACKGROUND
Pursuant to a plea agreement, Simnick pled no contest to one count of first degree sexual assault of his stepdaughter. In exchange for Simnick's plea, the State was granted leave to amend the information by interlineation whereby it modified one count of first degree sexual assault of a child to first degree sexual assault and dismissed a second count of first degree sexual assault of a child. The district court for Lancaster County sentenced Simnick to imprisonment for 20 to 35 years and found that Simnick had committed an "aggravated offense" under Neb. Rev. Stat. § 29-4005 (Reissue 2008) requiring him to register for life under the Sex Offender Registration Act (SORA). The court further found that Simnick would be subject to lifetime community supervision by the Office of Parole Administration. This court affirmed Simnick's conviction and sentence on appeal. See State v. Simnick, 17 Neb. App. 766, 771 N.W.2d 196 (2009).
On further review, the Nebraska Supreme Court affirmed the portion of the Court of Appeals' opinion affirming the conviction, but reversed the portion of the opinion affirming the sentence of lifetime community supervision. The Supreme Court concluded that the record indicated that the offense occurred prior to the effective date of the statute which imposed the requirement of lifetime supervision and that therefore, such sentencing violated the Ex Post Facto Clauses of the Nebraska and federal Constitutions. See State v. Simnick, 279 Neb. 499, 779 N.W.2d 335 (2010). On remand, the district court modified the sentence to delete the requirement of lifetime supervision.
Simnick thereafter filed an 89-page amended verified motion for postconviction relief, making numerous claims involving issues related to speedy trial, double jeopardy, the validity of the information filed against him, and ineffective assistance of trial and appellate counsel. The district court denied the motion without an evidentiary hearing. In the order denying the motion, the court stated that it had reviewed the files and record in the case and concluded that all of Simnick's claims "either are not true, do not constitute constitutional violations, or are mere conclusions." The court further found that because the record affirmatively showed that Simnick was not entitled to relief, an evidentiary hearing was not required.
ASSIGNMENTS OF ERROR
Simnick assigns that the district court erred in failing to grant him postconviction relief for the following reasons: (1) The district court did not have jurisdiction to convict him; (2) the district court erred in failing to advise him of his right to speedy trial; (3) the prosecution violated his right to due process by withholding exculpatory evidence from him; (4) the original information and the amended information both failed to notify him that the charges against him could be aggravated offenses, and the district court failed to advise him at the time of his plea that the charge against him was an aggravated offense; (5) the district court erred in accepting his no contest plea because it was not entered freely, voluntarily, knowingly, and intelligently; (6) the prosecution and district court breached the plea agreement by seeking and allowing the charge to be enhanced and by attaching consequences that were not agreed upon; (7) the district court erred in accepting an inaccurate and incorrect factual basis for the charge against him; (8) he received ineffective assistance of trial counsel; (9) he received ineffective assistance of appellate counsel; and (10) "the appellate court erred and abused its discretion in retroactive application of judicial interpretations of law unexpectedly and indefensibly upon [Simnick's] guilty plea." Simnick also assigns that the district court erred in failing to grant him an evidentiary hearing.
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. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011).
ANALYSIS
Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations. State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008). And, for any purpose, a plea of guilty or no contest generally embodies a waiver of every defense to the charge, whether procedural, statutory, or constitutional. Id. See, also, State v. Burkhardt, 258 Neb. 1050, 607 N.W.2d 512 (2000). When a defendant pleads guilty, he is limited to challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel. State v. Bazer, supra. 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. Id. Generally, in order to support a finding that a plea of guilty has been entered freely, voluntarily, and intelligently, the court must, inter alia, inform the defendant concerning (1) the nature of the charge, (2) the right to assistance of counsel, (3) the right to confront witnesses against the defendant, (4) the right to a jury trial, and (5) the privilege against self-incrimination. State v. Watkins, 277 Neb. 428, 762 N.W.2d 589 (2009). The record must also establish a factual basis for the plea and that the defendant knew the range of penalties for the crime charged. State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006). A factual basis for a plea of guilty may be established by inquiry of the prosecutor, interrogation of the defendant, or examination of the presentence report. State v. Dodson, 250 Neb. 584, 550 N.W.2d 347 (1996), overruled on other grounds, State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999).
We need not address all of Simnick's assignments of error, only the ones that relate to whether his plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel.
Notice of Aggravated Offense.
Three of Simnick's assignments of error contend that his plea was not freely, voluntarily, and intelligently made because he did not have notice before he pled that the charge against him was an aggravated offense subjecting him to lifetime SORA registration. This same argument was raised and rejected on direct appeal. On direct appeal, Simnick complained that he was not advised by the court that the charge to which he was pleading would subject him to lifetime SORA registration. The Court of Appeals found his claim to be without merit because advisement of the possibility of lifetime registration is not required to satisfy State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986), which requires the defendant to know the range of penalties for the crime for which he is charged. The Court of Appeals further found that Simnick could not claim he was not aware of, or was not advised about, lifetime registration because the record showed that at the plea hearing, Simnick was advised that he would be subjected to lifetime registration under SORA, as well as being advised of the statutory range of incarceration, and Simnick indicated that he understood the charge and possible penalties.
A motion for postconviction relief cannot be used to secure a further review of issues already litigated on direct appeal. State v. Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009). Because Simnick argued on direct appeal that he did not have notice before he pled that the charge against him was an aggravated offense subjecting him to lifetime SORA registration, he cannot be heard to complain of it again.
Factual Basis for Charge.
Simnick also assigns that the district court erred in accepting an inaccurate and incorrect factual basis for the charge against him. Simnick claims the factual basis was inaccurate because it did not state when the crime occurred and because the location of the sexual assault given by the State at the plea hearing was different from that listed by the police in the affidavit for probable cause.
This issue could have been raised on direct appeal, but was not. Therefore, Simnick is barred from raising it on postconviction. Errors assigned in a postconviction appeal that are of the type that could have been raised by direct appeal are barred from consideration at postconviction. State v. Gamez-Lira, 264 Neb. 96, 645 N.W.2d 562 (2002).
Ineffective Assistance of Trial Counsel.
Simnick makes numerous ineffective assistance of trial counsel claims in his brief to this court. However, most of Simnick's claims are procedurally barred.
Under Nebraska law, in order to raise the issue of ineffective assistance of trial counsel where appellate counsel is different from trial counsel, a defendant must raise on direct appeal any issue of ineffective assistance of trial counsel which is known to the defendant or is apparent from the record, or the issue will be procedurally barred on postconviction review. State v. Dunster, supra.
Simnick was represented by different counsel at trial and on direct appeal. His appellate counsel raised multiple claims of ineffective assistance of trial counsel, and only those claims that were raised on direct appeal have been preserved for postconviction review. The allegations of ineffective assistance of trial counsel that Simnick now alleges that were not raised on direct appeal are procedurally barred because they were known to Simnick or were apparent on the record. A defendant cannot secure postconviction review of issues which were or could have been litigated on direct appeal. Id.
The only ineffective assistance of trial counsel claims that have been preserved by having been raised on direct appeal and on postconviction involve general allegations that counsel failed to prepare to defend Simnick, failed to defend him during the plea hearing, and was ineffective at sentencing.
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact. State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009). When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error. Id. With regard to the questions of counsel's performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court's decision. Id.
To establish a right to postconviction relief based on a claim of ineffective assistance of counsel at trial or on direct appeal, the defendant has the burden, in accordance with Strickland v. Washington, supra, to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area. State v. Davlin, supra. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case. Id. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Id. If the conviction was the result of a plea, the prejudice requirement is satisfied if he can show a reasonable probability that, but for the errors of counsel, he would have insisted on going to trial rather than pleading. State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010).
Simnick lists a litany of trial counsel's alleged failures leading up to the plea hearing, but does not show how he was prejudiced by trial counsel's actions or inactions. Simnick also makes various allegations regarding how trial counsel was ineffective at the plea hearing, including his failure to object to the court's not offering a new preliminary hearing on the charge in the amended information, his failure to object to the court's not advising Simnick of all the consequences of the charge, and his failure to object to the inaccurate and incorrect factual basis. Simnick also claims that trial counsel was ineffective at sentencing because he failed to advise Simnick that he could withdraw his plea because the charge was enhanced to an aggravated offense which was not part of the plea agreement.
Simnick has failed to show that counsel's performance was deficient or how he was prejudiced by the actions or inactions of trial counsel. Simnick's ineffective assistance of trial counsel claims that are not procedurally barred are without merit.
Ineffective Assistance of Appellate Counsel.
Simnick also argues that his appellate counsel was ineffective for failing to raise a variety of assertions regarding the alleged ineffectiveness of his trial counsel.
When analyzing a claim of ineffective assistance of appellate counsel, a court usually begins by determining whether appellate counsel failed to bring a claim on appeal that actually prejudiced the defendant. That is, courts begin by assessing the strength of the claim appellate counsel failed to raise. State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009). Counsel's failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal. When, as here, the case presents layered ineffectiveness claims, we determine the prejudice prong of appellate counsel's performance by focusing on whether trial counsel was ineffective under the Strickland test. State v. Davlin, supra.
If trial counsel was not ineffective, then the defendant suffered no prejudice when appellate counsel failed to bring an ineffective assistance of trial counsel claim. Id.
Having found that Simnick's claims regarding his trial counsel's ineffectiveness are either procedurally barred or without merit, his appellate counsel cannot be ineffective in failing to raise ineffective assistance of trial counsel claims as he suffered no prejudice.
Evidentiary Hearing.
Under the Nebraska Postconviction Act, the district court has discretion to adopt reasonable procedures for determining what the motion and the files and records show, and whether any substantial issues are raised, before granting a full evidentiary hearing. State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008). Even if appropriate allegations are made, an evidentiary hearing should be denied if the trial records and files affirmatively show that the defendant is entitled to no relief. Id. In this case, the trial records and files affirmatively show that based upon the allegations made in Simnick's motion, Simnick is entitled to no relief. The trial court did not err in denying Simnick an evidentiary hearing and in dismissing the amended motion for postconviction relief.
CONCLUSION
For the reasons stated above, Simnick's assignments of error are either procedurally barred or without merit. Because the files and records affirmatively show that he is entitled to no relief, there was no need for an evidentiary hearing. See State v. Bazer, supra. The judgment of the district court denying Simnick's motion for postconviction relief is affirmed.
AFFIRMED.