State v. Honken

STATE OF NEBRASKA, APPELLEE, v. ROBERT S. HONKEN, APPELLANT.

No. A-19-949.

NEBRASKA COURT OF APPEALS

November 3, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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 Hamilton County: RACHEL A. DAUGHERTY, Judge. Affirmed.

Robert S. Honken, pro se.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

BISHOP, ARTERBURN, and WELCH, Judges.

BISHOP, Judge.

Robert S. Honken was previously convicted of two counts of conspiracy to commit first degree murder, and was sentenced to 45 to 50 years' imprisonment on each count, to be served concurrently. His convictions and sentences were affirmed on direct appeal by this court in State v. Honken, 25 Neb. App. 352, 905 N.W.2d 689 (2017).

More than 1 year after the mandate issued in State v. Honken, supra, Honken filed numerous pro se pleadings requesting relief, including a verified motion for postconviction relief, a petition for writ of error coram nobis, and a motion for new trial. The Hamilton County District Court denied Honken's requests for relief for various reasons. Honken appeals the district court's order denying him relief. We affirm.

BACKGROUND

TRIAL AND DIRECT APPEAL

This case arose out of Honken's attempt to hire two different individuals, including an undercover investigator, to kill his wife. Following a stipulated bench trial, Honken was convicted of two counts of conspiracy to commit first degree murder, and was sentenced to 45 to 50 years' imprisonment on each count, to be served concurrently. His convictions and sentences were affirmed on direct appeal by this court in State v. Honken, supra. At the time of his direct appeal, Honken was represented by different counsel than at the time of trial. This court's mandate in the former case was issued on January 22, 2018, and the district court entered judgment on our mandate on January 29.

SUBSEQUENT REQUESTS FOR RELIEF

AND DISTRICT COURT'S ORDER

Between June 24 and July 15, 2019, Honken filed numerous pro se requests for relief. On June 24, Honken filed (1) a verified motion for postconviction relief, (2) a motion for evidentiary hearing to make a record for postconviction relief, (3) a petition for writ of error coram nobis, (4) two motions for absolute discharge, (5) a motion to suppress, (6) two motions for appointment of counsel, and (7) a motion to proceed in forma pauperis. On July 5, Honken filed (1) a motion for absolute discharge, (2) a motion to suppress, (3) a motion for appointment of counsel, and (4) a motion to proceed in forma pauperis. On July 15, Honken filed a motion for new trial. The contents of Honken's pleadings will be discussed as necessary in the analysis.

On August 30, 2019, the district court denied all of Honken's requests for relief without holding an evidentiary hearing. The court found that Honken's motion for postconviction relief was time barred, and did not otherwise affirmatively show that he was entitled to relief. The court noted that Honken's writ for error coram nobis was substantially similar to his motion for postconviction relief and raised the same claims. The court found that the writ challenged errors of law and did not allege specific facts that would have prevented a conviction, and therefore, the writ, on its face, provided no possibility of relief. As to Honken's motion for new trial, the court found that to the extent Honken's claims were based on grounds other than "newly discovered evidence," he failed to timely file the motion or allege facts showing that such a filing was unavoidably prevented. And to the extent that Honken's motion for new trial was based on "newly discovered evidence," he failed to allege facts showing the information could not have been discovered and produced at trial; further any alleged "newly discovered evidence" that discredited a witness at trial did not justify a new trial. Finally, the court found Honken's two motions to suppress and three motions for absolute discharge were untimely filed. Accordingly, the district court denied all of Honken's requests for relief.

Honken appeals.

ASSIGNMENTS OF ERROR

Summarized, Honken assigns that the district court erred when it denied his motion for postconviction relief, his petition for writ of error coram nobis, and his motion for new trial without an evidentiary hearing.

STANDARD OF REVIEW

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed independently of the lower court's ruling. State v. Hessler, 305 Neb. 451, 940 N.W.2d 836 (2020).

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. Jackson, 296 Neb. 31, 892 N.W.2d 67 (2017).

The findings of the district court in connection with its ruling on a motion for a writ of error coram nobis will not be disturbed unless they are clearly erroneous. State v. Hessler, 295 Neb. 70, 886 N.W.2d 280 (2016).

A de novo standard of review applies when an appellate court is reviewing a trial court's dismissal of a motion for a new trial under Neb. Rev. Stat. § 29-2102(2) (Reissue 2016) without conducting an evidentiary hearing. See State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).

ANALYSIS

POSTCONVICTION RELIEF

Honken contends that the district court erred in overruling his motion for postconviction relief without an evidentiary hearing.

Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable. State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018). In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. State v. Newman, supra.

A trial court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant's rights under the Nebraska or federal Constitution. State v. Newman, supra. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in a case affirmatively show the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing. Id. Thus, in a postconviction proceeding, an evidentiary hearing is not required (1) when the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights; (2) when the motion alleges only conclusions of fact or law; or (3) when the records and files affirmatively show that the defendant is entitled to no relief. Id.

In his 32-page motion for postconviction relief, Honken alleged more than 40 claims of ineffective assistance of trial counsel, approximately 30 claims of ineffective assistance of appellate counsel, approximately 15 claims of prosecutorial misconduct, more than 10 errors by the trial court, and actual innocence. Many of his individual claims are found in more than one of the categories above. While we do not set forth each of Honken's individual claims, they include claims related to the failure to file motions to suppress, the failure to interview or call witnesses, the admissibility of evidence, an entrapment defense, the failure to investigate his competency, aviolation of his right to a speedy trial, attorney conflict of interest, and the failure to inform him of a plea offer.

Before we can address Honken's arguments, we must first determine whether the district court correctly concluded that his motion was untimely. The Nebraska Postconviction Act contains a 1-year time limit for filing a verified motion for postconviction relief, which runs from one of four triggering events or August 27, 2011, whichever is later. State v. Harrison, 293 Neb. 1000, 881 N.W.2d 860 (2016). See, also, Neb. Rev. Stat. § 29-3001(4) (Reissue 2016). Section 29-3001(4) states:

A one-year period of limitation shall apply to the filing of a verified motion for postconviction relief. The one-year limitation period shall run from the later of:

(a) The date the judgment of conviction became final by the conclusion of a direct appeal or the expiration of the time for filing a direct appeal;

(b) The date on which the factual predicate of the constitutional claim or claims alleged could have been discovered through the exercise of due diligence;

(c) The date on which an impediment created by state action, in violation of the Constitution of the United States or the Constitution of Nebraska or any law of this state, is removed, if the prisoner was prevented from filing a verified motion by such state action;

(d) The date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court, if the newly recognized right has been made applicable retroactively to cases on postconviction collateral review; or

(e) August 27, 2011.

Here, Honken's judgment of convictions became final when this court issued its mandate on January 22, 2018. See State v. Koch, 304 Neb. 133, 933 N.W.2d 585 (2019) (direct appeal concluded once appellate court issued mandate, not when district court entered judgment on mandate). Honken filed his postconviction motion on June 24, 2019, more than 1 year after the date the mandate was issued by the appellate court. Accordingly, Honken's motion for postconviction relief was time barred absent facts that bring his claim...