State v. Assad

304 Neb. 979

938 N.W.2d 297

STATE of Nebraska, appellee,

v.Jason ASSAD, appellant.

No. S-17-1193.

Supreme Court of Nebraska.

Filed February 7, 2020

Gerald L. Soucie and Brian S. Munnelly, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

Papik, J.

After Jason Assad was convicted of several criminal offenses, he appealed. The only errors his appellate counsel initially assigned, however, pertained to issues that were not preserved for appellate review. And although his counsel later sought leave to assert that trial counsel was ineffective in failing to preserve issues for appeal, those attempts were unsuccessful and Assad’s convictions were summarily affirmed. Assad now seeks postconviction relief, asserting that his appellate counsel was ineffective and arguing that, unlike most defendants asserting ineffective assistance of counsel, he is not required to demonstrate that he was prejudiced as a result of counsel’s deficient performance. The district court rejected Assad’s argument that he was entitled to a presumption of prejudice and denied his motion for postconviction relief without an evidentiary hearing. The Nebraska Court of Appeals affirmed, but did not address Assad’s argument regarding a presumption of prejudice.

Upon further review, we find this is not a circumstance in which prejudice is presumed, but, rather, Assad is required to demonstrate that his counsel performed deficiently and that he was actually prejudiced as a result of that deficient performance.

Because Assad has not even attempted to demonstrate prejudice, we find that he is not entitled to postconviction relief and affirm.

BACKGROUND

Assad’s Convictions.

On the morning of September 14, 2014, police in Sidney, Nebraska, received a call from an individual who reported hearing the sound of a woman’s scream coming from a nearby motel. Assad and his wife lived at the motel at the time. A police officer went to the motel to investigate. After the officer was unable to make contact with anyone at the motel, he obtained a search warrant. During the execution of the search warrant, officers entered the room in which Assad and his wife resided. There, the officers were confronted by Assad, who was yelling profanities. The officers later found Assad’s wife with injuries to her head and face. They also found what appeared to be evidence of narcotics. The officers then obtained additional search warrants. During the execution of the additional search warrants, officers seized surveillance videos, which included footage from the inside of the motel room. Officers continued to investigate and determined that Assad had possession of a knife and a rifle in the motel room and that he had previously been convicted of a felony.

Assad was later charged with possession of a weapon by a prohibited person, first degree false imprisonment, terroristic threats, use of a weapon to commit a felony, and possession of a firearm by a prohibited person. Prior to trial, he filed a series of suppression motions, each of which sought to suppress evidence obtained through the September 14, 2014, searches. The district court held a hearing on the motions to suppress and denied the motions, concluding that the searches were done pursuant to valid search warrants and, alternatively, that the good faith exception recognized in United States v. Leon , 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), applied.

At trial, when the State introduced evidence seized through the September 14, 2014, searches, Assad did not renew the objections he made in his pretrial motions to suppress. A jury found Assad guilty of each of the charged offenses listed above. Assad was later found to be a habitual criminal at a sentencing enhancement hearing. He was sentenced to an aggregate period of 35 to 60 years’ imprisonment.

Direct Appeal.

Assad’s trial counsel filed a notice of appeal, but shortly thereafter new counsel entered an appearance and his trial counsel was granted leave to withdraw. His appellate counsel later filed a 40-page brief assigning two errors on appeal, both of which addressed the denial of Assad’s pretrial motions to suppress. The brief contained arguments that evidence seized in the search of his residence should be suppressed, because officers violated his Fourth Amendment rights when they entered his residence, and that evidence seized after the search of his residence should be suppressed as fruit of the poisonous tree.

The State responded by filing a motion for summary affirmance. In support of its motion, the State noted that Assad’s trial counsel had not objected at trial to the evidence that was the subject of the motions to suppress. As a result, the State contended, Assad’s arguments that evidence should have been suppressed were not properly preserved for appellate review.

Following the State’s motion for summary affirmance, Assad’s appellate counsel filed a motion requesting leave to file a revised brief. The motion stated that the revised brief would "address issues raised in [the State’s] Motion for Summary Affirmance." Attached to the motion was a proposed revised brief, which added a new assignment of error alleging that trial counsel’s failure to object at trial to the evidence Assad previously sought to suppress constituted ineffective assistance of counsel. The Court of Appeals denied leave to file the revised brief. It later granted the State’s motion for summary affirmance. The Court of Appeals’ disposition stated in full:

Motion of appellee for summary affirmance sustained; judgment affirmed. See Neb. Ct. R. App. P. § 2-107(B)(2); State v. Podrazo , 21 Neb. App. 489, 840 N.W.2d 898 (2013) (defendant must object at trial to the admission of evidence sought to be suppressed to preserve an appellate question concerning admissibility of that evidence).

Assad’s appellate counsel subsequently filed a motion to file a supplemental brief. This motion attached a proposed supplemental brief containing a single assignment of error: that trial counsel’s failure to object at trial to the evidence that was the subject of the suppression motions constituted ineffective assistance of counsel. The Court of Appeals denied the motion.

Assad’s appellate counsel then filed a petition for further review on Assad’s behalf. This court denied the petition for further review.

Postconviction Proceedings.

After the conclusion of the direct appeal proceedings, Assad, represented by yet another attorney, filed a verified motion for postconviction relief. The postconviction motion asserted various claims for relief. One layered claim of ineffective assistance of counsel is relevant for present purposes. Assad alleged that his appellate counsel’s failure to allege ineffective assistance on the part of his trial counsel constituted ineffective assistance of appellate counsel. Assad claimed his appellate counsel should have asserted that trial counsel’s failure to preserve a number of issues for appellate review, including the claim that the motions to suppress should have been granted, amounted to ineffective assistance.

The State filed a motion to dismiss the postconviction motion without an evidentiary hearing. Assad filed a brief in opposition. In the brief, Assad claimed that as a result of appellate counsel’s performance, he was denied all appellate review and was entitled to a new direct appeal.

The district court granted the State’s motion to dismiss and denied Assad’s motion for postconviction relief without an evidentiary hearing. In a written order, the district court rejected Assad’s argument that he was entitled to a new direct appeal. Instead, it concluded that Assad was entitled to relief under Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ( Strickland ), only if he could show that his counsel was deficient and that this deficient performance prejudiced him. With respect to Assad’s layered claim of ineffective assistance of counsel, the trial court concluded that Assad could not show prejudice because the arguments he claimed counsel should have presented lacked merit.

Court of Appeals.

Assad appealed to the Court of Appeals. Among his assignments of error was a contention that the district court erred in rejecting his layered claim of ineffective assistance of counsel. He argued that under cases such as State v. Trotter , 259 Neb. 212, 609 N.W.2d 33 (2000), he should not have been required to prove prejudice, because prejudice should be presumed, and that he was thus entitled to a new direct appeal.

The Court of Appeals affirmed the district court’s order. State v. Assad , No. A-17-1193, 2019 WL 951169 (Neb. App. Feb. 26, 2019) (selected for posting to court website). The Court of Appeals observed that, with one exception not relevant here, Assad did not make any specific argument on appeal as to why his trial counsel’s failures to preserve issues for appellate review amounted to ineffective assistance. It thus concluded that Assad had not sufficiently argued his claim that appellate counsel was ineffective for not asserting a layered claim of ineffective assistance of counsel and did not consider its merits.

Petition for Further Review.

Assad filed a petition for further review. His sole assignment of error was that the Court of Appeals erred by affirming the district court’s dismissal of his ineffective assistance of appellate counsel claim. He again argued that, under the circumstances, prejudice should be presumed and that he should have been awarded a new direct appeal for his appellate counsel’s deficient performance.

We granted Assad’s petition for further review. We directed the parties to file supplemental briefs addressing whether, under the circumstances, Assad was required to demonstrate prejudice under Strickland or whether this is a case in which prejudice is presumed.

ASSIGNMENT OF ERROR

As noted above, Assad assigns...