State v. Amin

1

State of Nebraska, appellee, v. Bilal R. Amin II, appellant.

No. A-22-789

Court of Appeals of Nebraska

November 7, 2023

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: KEVIN R MCMANAMAN, Judge.

Bilal R. Amin II, pro se.

Michael T. Hilgers, Attorney General, and Matthew Lewis for appellee.

PIRTLE, Chief Judge, and MOORE and ARTERBURN, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

MOORE JUDGE.

INTRODUCTION

Bilal R. Amin II appeals from the order of the district court for Lancaster County, which denied his motion for postconviction relief without an evidentiary hearing. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

In November 2020, Amin entered a no contest plea and was convicted of generation of child pornography, age 19 and over, a Class ID felony. The factual basis offered during the plea hearing indicated that on May 13, 2019, police responded to a report of a suspicious person in a park. Upon arrival, they contacted the female victim, born in January 2009. She reported that an unknown man (later identified as Amin, born in December 1981) approached her while she was sitting on a park bench. The man used his cell phone to take a video of her breasts and vagina, kissed her on the lips, and stated, "I love you." The victim described the cell phone used by the man as having a green case. Other witnesses contacted by police observed an unknown man kissing the victim and shortly thereafter, running from the area after being chased by a neighbor. They stated the man was carrying a cell phone with a lime green case. The man was observed to run into an apartment complex a few blocks away. It was later determined that Amin had been staying in the apartment complex where the suspect was seen running; he was known to be in possession of a cell phone with a green case. On May 27, Amin was contacted by police during a traffic stop. He was a passenger in the vehicle and was arrested on an active warrant (for another crime). During the arrest, police observed him to be in possession of a cell phone with a lime green case, matching the one used to video record the victim in the park incident. The cell phone was collected as evidence. A search warrant was obtained and, upon execution of the warrant, video was located on the phone which showed the victim in this case being contacted by Amin. It shows him pull her shirt away from her breasts, recording her bare breasts. Later in the video, he places his fingers in her leggings and begins to pull them away from her body, at which point the video ended abruptly. Amin was contacted by police and arrested for the park incident on May 29. During the plea hearing, the court accepted Amin's plea and found him guilty of the crime charged. Amin was sentenced to a term of 35 to 40 years' imprisonment.

On direct appeal, and represented by the same counsel, Amin alleged that the district court abused its discretion by imposing an excessive sentence. This court summarily affirmed. See State v. Amin, 29 Neb.App. xxviii (No. A-21-142, June 7, 2021).

In July 2022, Amin, now self-represented, filed a motion for postconviction relief. In that motion, Amin presented claims with respect to the seizure of the cell phone and the subsequent search of its contents, the search warrant affidavit for the contents of the phone, and his trial counsel's ineffectiveness in failing to file a motion to suppress. Attached to Amin's motion were police reports with respect to the park incident, as well as the search warrant affidavits for the contents of the cell phone and the apartment where Amin resided.

On September 27, 2022, the district court entered an order denying Amin's request for postconviction relief. We have set forth details of the court's reasoning in the analysis section below.

ASSIGNMENTS OF ERROR

Amin assigns that (1) the district court erred in denying his motion for postconviction relief without an evidentiary hearing, (2) his trial counsel was ineffective for failing to move to suppress evidence found during the search of the cell phone and apartment, (3) the search and seizure of the cell phone incident to Amin's arrest was improper since it had no rational connection to the warrant for his arrest, (4) the search of the cell phone was illegal, and (5) the affidavits for the search warrants of the contents of the cell phone and apartment were fatally flawed.

STANDARD OF REVIEW

In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. State v. Galindo, 315 Neb. 1, 994 N.W.2d 562 (2023).

ANALYSIS

An evidentiary hearing is not required on a motion for postconviction relief when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights rendering the judgment void or voidable; (2) the motion alleges only conclusions of fact or law without supporting facts; or (3) the records and files affirmatively show that the defendant is entitled to no relief. Id.

Generally a voluntary guilty plea or plea of no contest waives all defenses to a criminal charge. State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022). Thus, when a defendant pleads guilty or no contest, the defendant is limited to challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel. Id.

A motion for postconviction relief cannot be used to secure review of issues that were or could have been litigated on direct appeal. Id. However, when the defendant is represented both at trial and on direct appeal by the same counsel, the defendant's first opportunity to assert ineffective assistance of trial counsel is in a motion for postconviction relief. Id.

In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense in his or her case. State v. Stelly, 308 Neb. 636, 955 N.W.2d 729 (2021). The two prongs of the ineffective assistance of counsel test-deficient performance and prejudice-may be addressed in either order, and the entire ineffectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable. Id. To show that counsel's performance was deficient, the defendant must show counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law. State v. Galindo, supra. When a conviction is based upon a guilty plea or a plea of no contest, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, the...