State v. Howard

29 Neb.App. 860

961 N.W.2d 560

STATE of Nebraska, appellee,

v.John J. HOWARD, appellant.

No. A-20-446.

Court of Appeals of Nebraska.

Filed May 18, 2021.

Kenneth Jacobs, of Jacobs Alexander Law, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy, Lincoln, for appellee.

Moore, Riedmann, and Bishop, Judges.

Riedmann, Judge.

INTRODUCTION

John J. Howard appeals the order of the district court for Douglas County which denied his verified motion for postconviction relief without holding an evidentiary hearing. He challenges the procedure the court followed prior to ruling on his motion and the decision to deny him an evidentiary hearing. We affirm.

BACKGROUND

Howard was charged with first degree sexual assault, sexual assault of a child, and first degree sexual assault of a child. The charges were based on allegations made by two of his daughters, M.H. and S.H., ages 22 and 16 respectively at the time of trial. Both daughters claimed that when they were around the ages of 4 or 5, Howard would digitally penetrate them when giving them baths. S.H. also described incidents, prior to the time she was in third grade, where Howard would force her to perform oral sex on him and would touch her vagina or force her to touch his penis.

The matter proceeded to a jury trial, and after the close of evidence and deliberations, the jury found Howard guilty of all three charges. He was sentenced to a total of 77 to 113 years’ imprisonment.

Howard appealed to this court. We affirmed his convictions and sentences on direct appeal but found that the record was insufficient to address several of his ineffective assistance of counsel claims. See State v. Howard , 26 Neb. App. 628, 921 N.W.2d 869 (2018). The Nebraska Supreme Court denied Howard's petition for further review, and the mandate issued in March 2019.

On February 27, 2020, Howard filed a verified motion for postconviction relief, which asserted several claims of ineffective assistance of counsel. Specifically, he claimed that his trial counsel was ineffective in failing to timely move for a mistrial during his ex-wife's testimony, failing to cross-examine M.H. as to whether she immediately reported to her mother inappropriate touching by her grandfather, failing to call Dr. Kirk Newring as an expert witness at trial, and failing to properly investigate and present evidence in 16 enumerated respects. He additionally alleged that his appellate counsel was ineffective in failing to assign as error on direct appeal his trial counsel's failure to object during the testimony of two of the State's witnesses, a forensic interviewer and S.H.’s counselor.

The district court directed the State to respond to the motion, but it did not do so. In a subsequent written order, the court denied postconviction relief without holding an evidentiary hearing. Howard appeals.

ASSIGNMENTS OF ERROR

Howard assigns that the district court erred in (1) failing to hold a "records" hearing or identify the files and records upon which it relied and (2) denying his motion for postconviction relief without an evidentiary hearing.

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. Stricklin , 300 Neb. 794, 916 N.W.2d 413 (2018).

ANALYSIS

Failure to Hold Records Hearing.

Howard first challenges the procedure the district court followed in this case, asserting that the district court abused its discretion in failing to hold a records hearing. We disagree.

Under the postconviction statutes, a court is not obligated to hold an evidentiary hearing if the files and records of the case affirmatively show that the prisoner is entitled to no relief. State v. Lee , 282 Neb. 652, 807 N.W.2d 96 (2011). And the district court has discretion to adopt reasonable procedures for determining what the motion and the files and records show, and whether the defendant has raised any substantial issues, before granting a full evidentiary hearing. Id. We examine these procedures for abuse of discretion, which exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. Id.

Howard relies upon State v. Glover , 276 Neb. 622, 756 N.W.2d 157 (2008), to support his argument in the present case. In Glover , the defendant filed a motion for postconviction relief alleging ineffective assistance of counsel. The State filed a motion asking the court to deny relief without conducting an evidentiary hearing. The trial court held a hearing on the State's motion at which it received into evidence a copy of trial counsel's deposition which had been taken after the postconviction motion was filed. The court then relied on the deposition to conclude that the files and records affirmatively showed the defendant was not entitled to relief.

On appeal, the Supreme Court noted that trial courts have discretion to adopt reasonable procedures for determining what files and records it should review before granting a full evidentiary hearing and observed that in general, it has allowed courts to (1) order the State to respond to a prisoner's postconviction motion or to show cause why an evidentiary hearing should not be held, (2) allow the State to file a motion to deny an evidentiary hearing, and (3) hold a records hearing for receiving into evidence the relevant files and records that the court may need to review in considering whether to grant or deny an evidentiary hearing. Id. The Supreme Court also cited its prior holdings that if a court does not receive into evidence the relevant case records and files at a records hearing, the court should certify and include in the transcript the files and records it considered in denying relief. Id.

The Supreme Court pointed out that in previous cases, the files and records that the district court received at the records hearings were limited to the prisoner's trial files and records. Id. Thus, the "files and records of the case," as the term is used in Neb. Rev. Stat. § 29-3001(2) (Reissue 2016), upon which a postconviction court should rely in denying an evidentiary hearing, are the files and records existing before the postconviction motion is filed. State v. Glover, supra . The Supreme Court therefore disapproved of the procedure used by the district court.

We do not find that State v. Glover, supra , mandates that a trial court hold a records hearing before ruling on a postconviction motion. The issue in Glover was if a trial court does hold a records hearing, whether it could receive new evidence at that hearing. And the Supreme Court determined that it could not, reasoning that "receiving new evidence at a records hearing would create chaos," because either the State or the prisoner could be unprepared to respond to new evidence, and that unpreparedness could result in unnecessary due process challenges from prisoners. State v. Glover , 276 Neb. at 629, 756 N.W.2d at 163. Nor does Glover require a trial court to elect one of the three procedural options the Supreme Court has approved in the past. Rather, it reinforces that a trial court is allowed discretion to adopt its own reasonable procedures for determining what files and records it should review, so long as that discretion comports with the specific procedural rules mandated by § 29-3001. The question in the present case is whether the district court's procedure was reasonable or constituted an abuse of discretion.

In State v. Lee , 282 Neb. 652, 807 N.W.2d 96 (2011), the trial court denied an evidentiary hearing on a postconviction motion because it found that the defendant had asked for continuances, which tolled the time in which the State had to commence the trial. Because of this tolling, the court concluded that the State had not violated the defendant's right to a speedy trial and denied postconviction relief without an evidentiary hearing. On appeal, however, the Supreme Court observed that the files and records of the case did not show when the court granted the continuances or for how long the matters were continued. In other words, the files and records of the case did not show that the defendant actually moved for continuances and thus did not show that the State did not violate his speedy trial right. Accordingly, because the records did not affirmatively show that the defendant was not entitled to relief, the Supreme Court held that the trial court should have certified and included in the transcript any files or records, including any documents related to the supposed continuances, that it considered in denying an evidentiary hearing.

The reason for this requirement is "obvious." Id. at 665, 807 N.W.2d at 107. When a trial court denies an evidentiary hearing based upon documents it does not certify and include in the transcript, it effectively denies the movant a meaningful appeal, leaving the appellate court with only the option of taking the trial court's word for the matter, which it will not do. See id.

Thereafter, in State v. Torres , 300 Neb. 694, 915 N.W.2d 596 (2018), the defendant argued that the trial court violated State v. Glover , 276 Neb. 622, 756 N.W.2d 157 (2008), because it did not hold a records hearing or otherwise identify the files and records on which it relied in denying postconviction relief without an evidentiary hearing. The Supreme Court in Torres observed that the trial court's order made express findings regarding the history of the defendant's case and based those findings on its review of the files and records in the case. The court's order also made specific findings regarding various dates relevant to its conclusion that the motion was barred by the 1-year statute of...