State v. Johnson

1

State of Nebraska, appellee, v. Vernon R. Johnson, appellant.

No. A-22-110

Court of Appeals of Nebraska

January 3, 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 Douglas County: Shelly R Stratman, Judge.

Vernon R. Johnson, pro se.

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

Pirtle, Chief Judge, and Arterburn and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH JUDGE.

I. INTRODUCTION

Vernon R. Johnson appeals the Douglas County District Court's denial of his amended motion for postconviction relief without an evidentiary hearing. Johnson contends that the district court erred in denying his amended motion for postconviction relief without an evidentiary hearing on three general bases: trial court error, ineffective assistance of trial counsel, and postconviction court error. For the reasons stated herein, we affirm.

II. STATEMENT OF FACTS

1. Conviction and Direct Appeal

In February 2020, Johnson was charged with second degree forgery in an amount of $1,500 but less than $5,000, a Class IV felony. In May, Johnson was charged in an amended information with second degree forgery in an amount of $5,000 or more, a Class IIA felony.

Pursuant to a plea agreement, Johnson pled no contest to the amended information. The State provided a factual basis which set forth that, between the dates of April 28 through October 30, 2019, Johnson fraudulently wrote 54 checks on 44 different occasions at seven different Hy-Vee locations in the Omaha, Nebraska area. Johnson was identified on video surveillance on each occasion. The total value of the checks written was $6,745.76 with Johnson not having permission on any of the accounts to write those checks.

Thereafter, Johnson was sentenced to 15 to 20 years' imprisonment with credit for 148 days served. Johnson, represented by the same counsel, filed a direct appeal asserting that the sentence imposed was excessive. This court summarily affirmed Johnson's conviction and sentence. See State v. Johnson, A-20-0492 (November 17, 2020).

2. Motion for Postconviction Relief

In April 2021, Johnson filed a pro se motion for postconviction relief asserting three general claims that he received ineffective assistance of counsel, that his sentence and conviction were obtained by judicial misconduct, and that the court committed plain error and abused its discretion in imposing an excessive sentence.

In June 2021, Johnson filed an amended motion for postconviction relief wherein, in addition to the previously asserted claims, he asserted a fourth general claim that the sentence imposed amounted to cruel and unusual punishment in violation of the Eighth Amendment. Although the district court noted that Johnson failed to file a motion seeking leave of court to file an amended motion for postconviction relief, the court allowed Johnson to proceed on the motion and stated that "[t]he Court will now move forward using the Amended Motion for Postconviction Relief as [Johnson]'s official and final request for relief."

In October 2021, Johnson filed a second motion for leave to amend his motion for postconviction relief. In his second amended motion for postconviction relief, he asserted a fifth claim alleging that the district court violated Nebraska statutes related to the amended information; that his constitutional rights were violated during the plea and sentencing; and that, due to trial counsel's ineffectiveness in failing to investigate the factual basis for the amended information, his plea was not entered knowingly, voluntarily, and intelligently. The transcript does not reflect that the district court ruled on Johnson's request to file a second amended motion for postconviction relief.

In January 2022, the district court denied Johnson's amended motion for postconviction relief without an evidentiary hearing finding that "[e]ach argument in [Johnson's] motion for postconviction relief are denied without an evidentiary hearing, because his arguments for relief are either not pled with specific facts, the record affirmatively establishes his claims are without merit, or they are procedurally barred."

As it related to Johnson's claims of ineffective assistance of counsel, the district court found

[Johnson] takes issue with his trial counsel not objecting . . . [to] the State [filing]

the amended information and in failing to provide him with discovery. . . . . . . Focusing specifically on the prejudice prong of this inquiry, the Court finds the allegations in [Johnson's] amended motion do not warrant an evidentiary hearing.

Specifically, the Court finds the amended motion fails to set forth sufficient facts to establish that there is a reasonable probability that, but for counsel's errors, he would not have entered a plea and would have insisted on going to trial. The Nebraska Supreme Court has explained that "[s]elf-serving declarations that a defendant would have gone to trial will not be enough; a defendant must present sufficient facts showing a reasonable probability that he or she would have insisted on going to trial." State v. Yos-Chiquil, 281 Neb. 618, 798 N.W.2d 832 (2011). Here, the only facts relating to prejudice in the amended motion are generic and self-serving. For example, [Johnson] states he has "demonstrated by the facts, a reasonable probability that but for trial counsel's deficient performance, the result of [Johnson's] proceeding would have been different," but then fails to provide the "facts" to support prejudice. Therefore, all of [Johnson's] ineffective assistance of counsel claims are denied without an evidentiary hearing based on the lack of prejudice.

The district court then considered Johnson's claims of judicial misconduct, plain error, and Eighth Amendment violations finding:

Each of these claims relate to arguments relating to sentencing in this case. As such, these claims do not need to be discussed in great detail, because a "motion for postconviction relief cannot be used to secure review of issues which were or could have been litigated on direct appeal, no matter how those issues may be phrased or rephrased." State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015). Because each of these claims could have been brought in the direct appeal, they do not warrant an evidentiary hearing.

III. ASSIGNMENTS OF ERROR

On appeal, Johnson contends that the district court erred in denying his amended motion for postconviction relief without an evidentiary hearing on three general bases: trial court error, ineffective assistance of trial counsel, and postconviction court error.

Regarding Johnson's claims of trial court error, he contends that the trial court committed error during the hearing related to Johnson's plea to the amended information, in failing to arraign Johnson on the amended information, in failing to provide the amended information one day prior to plea, in failing to hold a preliminary hearing, and in accepting his no contest plea without receiving an opportunity to receive counsel's advice during and after Johnson's statement of "no sir."

Regarding Johnson's claims of ineffectiveness of trial counsel, he contends that trial counsel was ineffective by (a) failing to advise or object during the plea and amended information hearings when Johnson was questioned by the court regarding Johnson's knowledge of the charge contained in the amended information; (b) failing to advise him on all aspects of the criminal proceedings so that Johnson could understand his case for trial or change of plea; (c) failing to provide him with court-ordered mutual and reciprocal discovery which led to lack of understanding in connection with his plea; and (d) failing to advise him regarding the amended charge of second degree forgery, which resulted in his inability to make a knowing, voluntary, and intelligent waiver of constitutional rights during the plea hearing.

In addition to these assignments of ineffective assistance which relate to his postconviction motion, Johnson also assigns his counsel was ineffective in: failing to request an arraignment or preliminary hearing on the new charge in the amended information without providing a copy of the indictment and 24-hour period to prepare for his defense without assent or being called to answer the indictment; failing to provide discovery or exculpatory evidence on the new charges of the amended information prior to hearings; providing "incorrect advice" regarding the potential sentence of a Class IIA felony; and by performing deficiently which performance did not equal that of a lawyer with ordinary training and skill in criminal law.

Finally, regarding Johnson's claim of postconviction court error, those can be consolidated and restated as follows: (a) the district court erred in denying his motion for postconviction relief without an evidentiary hearing in connection with his claims of ineffective assistance of counsel and (b) the district court erred in failing to address his motion for leave to file a second amended motion for postconviction relief.

IV. 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. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022).

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. Id. When reviewing a question of law, an appellate court reaches a conclusion independent...