State v. Ely

306 Neb. 461

945 N.W.2d 492

STATE of Nebraska, appellee,

v.Nicholas J. ELY, appellant.

No. S-19-850.

Supreme Court of Nebraska.

Filed July 10, 2020

Brian S. Munnelly, for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.

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

Papik, J. Nicholas J. Ely appeals from an order denying him postconviction relief. The district court determined, after holding an evidentiary hearing, that there was no merit to Ely's claims that his counsel was ineffective at the trial court level in failing to advise him of his right to testify and ineffective on direct appeal in failing to argue that his right to self-representation was violated at trial. We find no reversible error and thus affirm.

BACKGROUND

Trial and Direct Appeal.

Ely was tried for his role in an attempted robbery in which the target was killed. The details that led to the charges and trial can be found in our opinion on Ely's direct appeal. See State v. Ely , 287 Neb. 147, 841 N.W.2d 216 (2014).

Ely's trial was scheduled to commence on October 1, 2012. On August 21, Ely filed a motion styled as "Motion to Dismiss Current Counsel and Appoint Myself Pro Se." In it, he asserted that the "issues involved in this case are complex and beyond the scope of [his] legal knowledge."

He then listed various complaints regarding his attorneys and the amount of time he had been able to review discovery produced in his case. He asked the court to "appoint" him as his own counsel, but also asked that he "have counsel appointed to me for help/advisory for when I have questions [about] my own counsel." On the same day, Ely filed a motion to continue the trial. In the motion to continue, he referred to his motion to dismiss his counsel and represent himself, and he claimed that he needed more time to prepare for trial.

On August 28, 2012, the district court held a hearing on Ely's motions. When asked about his motion to dismiss his counsel and represent himself, Ely said that he did not feel he had had enough time to prepare for trial and that he believed if he represented himself, he would be able to work on the case more. Ely indicated that he wished to spend more time reviewing discovery in his case, but that he did not believe there was enough time remaining prior to trial for him to do so. "So," as he put it, "I feel like I need to go pro se and to get a continuance."

After Ely's counsel responded, the district court said, "I don't see any benefit to you proceeding pro se .... [T]hese are serious charges. And I still think you need the advice of counsel. So I'm going to deny your motion."

The district court then heard argument on Ely's motion to continue. In support of this motion, Ely again referred to his motion to dismiss his counsel. He said, "I feel I'm not ready to go to trial in 30 days. That's why I'm in here putting in a motion to dismiss my counsel." The district court denied the motion to continue.

The week before trial was to commence, Ely filed another motion, styled as "Motion to Dismiss Counsel." In this motion, he asked the district court to dismiss his current counsel and reappoint new counsel. He listed numerous reasons why he was not satisfied with his current counsel, but made no mention of desiring to represent himself. On the same day, Ely filed another motion to continue, in which he referred to his recently filed motion to dismiss counsel and stated that his "new lawyer needs time to go over [d]iscovery and put in motions." The district court denied both motions.

Trial commenced as scheduled, with Ely represented by counsel. Ely did not testify in his own defense.

Ely was convicted of first degree murder on a felony murder theory and use of a deadly weapon to commit a felony. He was sentenced to life in prison on the murder conviction and to a consecutive sentence of 5 to 5 years’ imprisonment on the use of a deadly weapon conviction. We affirmed his convictions on direct appeal. State v. Ely , 287 Neb. 147, 841 N.W.2d 216 (2014).

Initial Postconviction Appeal.

After his convictions were affirmed, Ely filed multiple motions for postconviction relief in which he alleged numerous claims of ineffective assistance of trial and appellate counsel, as well as several claims of district court error. The district court initially denied Ely's motions without holding an evidentiary hearing. Ely appealed, raising 29 different assignments of error.

While we found that the district court correctly denied Ely relief without an evidentiary hearing on most of the claims asserted, we found that he was entitled to an evidentiary hearing on two of his claims: (1) that his trial counsel was ineffective in failing to advise him of his right to testify and (2) that his appellate counsel was ineffective in failing to argue that his right to self-representation was violated at trial. Accordingly, we reversed, and remanded, in part, with directions to the district court to hold an evidentiary hearing on those claims. We also directed the district court to grant Ely's motion for appointment of counsel. See State v. Ely , 295 Neb. 607, 889 N.W.2d 377 (2017).

Postconviction Proceedings on Remand.

The district court held an evidentiary hearing following remand. At the evidentiary hearing, the district court received depositions of both Ely and an attorney who served as Ely's counsel at trial and on appeal. After the evidentiary hearing, Ely successfully moved to reopen the record to introduce a motion he filed asking to dismiss his appellate counsel and appoint new counsel. Additional details regarding the evidence introduced at the evidentiary hearing are discussed in the analysis section below.

Following the evidentiary hearing, the district court found Ely was not entitled to relief on either of his two remaining claims. With respect to Ely's claim that his counsel was ineffective in failing to advise him of his right to testify, the district court found that Ely understood he had a right to testify, that his counsel advised him not to do so, and that this advice was reasonable. The district court also found that Ely's counsel did not render ineffective assistance by not arguing on appeal that Ely's right to self-representation was violated at trial. The district court reasoned that if that issue had been raised on direct appeal, it would not have been successful, and that therefore, counsel was not ineffective in failing to raise it.

Ely appeals.

ASSIGNMENTS OF ERROR

Ely assigns two errors on appeal. He claims that the district court erred (1) in denying relief on his claim that trial counsel was ineffective in failing to advise him of his right to testify and (2) in denying relief on his claim that his appellate counsel was ineffective in failing to assert on appeal that his right to self-representation was violated at trial.

STANDARD OF REVIEW

A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Huston , 302 Neb. 202, 922 N.W.2d 723 (2019). 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 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 conclusion. Huston, supra .

In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. Id. An appellate court upholds the trial court's factual findings unless they are clearly erroneous. Id.

ANALYSIS

Ineffective Assistance of Counsel Standards.

Both of Ely's assignments of error pertain to alleged ineffective assistance of counsel. We briefly review the legal standards governing such claims before turning to Ely's specific arguments.

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, 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. State v. Privett , 303 Neb. 404, 929 N.W.2d 505 (2019). 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. State v. Assad , 304 Neb. 979, 938 N.W.2d 297 (2020).

Right to Testify.

We now turn to Ely's argument that the district court erred by rejecting Ely's claim that his trial counsel ineffectively failed to advise him of his right to testify. Here, Ely correctly points out that a defendant has a fundamental constitutional right to testify. See State v. Iromuanya , 282 Neb. 798, 806 N.W.2d 404 (2011). Further, he correctly observes that we have previously stated defense counsel bears the primary responsibility for advising a defendant of his or her right to testify or not to testify, of the strategic implications of each choice, and that the choice is ultimately for the defendant to make. Id. In this case, however, we do not believe the district court erred by concluding that Ely's trial counsel met this responsibility and thus did not perform deficiently.

Although Ely testified in his deposition that he was not advised and did not know he had a right to testify, his counsel testified that this was "absolutely incorrect" and was a "bogus statement." She testified that when she met with Ely after he decided he wanted to go to trial, "one of the first things [he] said to me was, I can't take the stand because I have seven or eight felonies." She testified...