State v. Marks

286 Neb. 166

835 N.W.2d 656

State of Nebraska, appellee,

v.Jason L. Marks, appellant.

No. S–12–931

Supreme Court of Nebraska.

Filed June 28, 2013

Appeal from the District Court for Douglas County: W. Russell Bowie III, Judge. Affirmed.

Thomas J. Garvey for appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

Syllabus by the Court

[286 Neb. 166]1. Postconviction: Appeal and Error. In appeals from postconviction proceedings, an appellate court independently resolves questions of law.

2. Postconviction: Constitutional Law. A trial court's ruling that a petitioner's allegations are refuted by the record or are too conclusory to demonstrate a violation of the petitioner's constitutional rights is not a finding of fact—it is a determination, as a matter of law, that the petitioner has failed to state a claim for postconviction relief.

3. Postconviction: Constitutional Law: Appeal and Error. In appeals from post-conviction 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.

[286 Neb. 167]4. Postconviction. The Nebraska Postconviction Act, Neb.Rev.Stat. § 29–3001 et seq. (Reissue 2008 & Cum. Supp. 2012), provides that 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 constitutional rights such that the judgment was void or voidable.

5. Postconviction: Constitutional Law: Proof. 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.

6. Postconviction: Constitutional Law: Proof. A court must grant an evidentiaryhearing 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.

7. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively show that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.

8. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

9. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense. An appellate court may address the two prongs of this test, deficient performance and prejudice, in either order.

10. Effectiveness of Counsel. In addressing the “prejudice” component of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test, a court focuses on whether a trial counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.

11. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice under the prejudice component of the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test, there must be a reasonable probability that but for the petitioner's counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

12. Effectiveness of Counsel: Appeal and Error. When a case presents layered claims of ineffective assistance of counsel, an appellate court determines whether the petitioner was prejudiced by his or her appellate counsel's failure to raise issues related to his or her trial counsel's performance. If the trial counsel did not provide ineffective assistance, then the petitioner cannot show prejudice from the appellate counsel's alleged ineffectiveness in failing to raise the issue on appeal.

Miller-Lerman, J.

NATURE OF CASE

Jason L. Marks was convicted of first degree murder and use of a firearm to commit a felony. He was sentenced to life imprisonment for first degree murder and to a consecutive term of 5 to 10 years' imprisonment on the firearm conviction. We affirmed his convictions in State v. Marks, 248 Neb. 592, 537 N.W.2d 339 (1995) (Marks I ), but his sentence on the firearm conviction was twice vacated, and the cause remanded to the district court to correct the amount of credit for time served. See, also, State v. Marks, 265 Neb. xxii (No. S–02–1320, Apr. 9, 2003). Marks was represented by the same counselat trial and on these appeals. Marks filed an amended motion for postconviction relief, which the district court denied without an evidentiary hearing. Marks appeals. Marks is represented by new counsel in the current post-conviction case. Because Marks failed to allege facts that show he was entitled to relief and the record refutes his claims, we affirm.

STATEMENT OF FACTS

On May 9, 1994, Marks was charged by information with first degree murder and use of a firearm to commit a felony in connection with the shooting death of Arthur Godbolt. The facts of Marks' underlying case are set forth in detail in Marks I.

On the night of the shooting, Marks, Wade Stewart, and Shawn King were driving a vehicle owned by Stewart's mother. Stewart was driving, King was in the front passenger seat, and Marks was in the back seat. In Marks I, we stated that Marks testified that while they were driving,

he saw the victim's car and saw people standing by it. As they started driving toward the victim's car, King started firing, so Marks ... opened fire. Marks said that after he saw the victim's car, he figured that his group would be shot at. He claimed that it was dark and that he did not see anyone in the area where he was aiming. He stated that after King started firing, he saw people by the car run back toward the sidewalk and the house, and he claimed that he was not thinking, but was just shooting at the car. As they drove away, Marks looked back and said, “Somebody fell.” He thought he might have accidentally hit someone.

248 Neb. at 596, 537 N.W.2d at 343.

After a jury trial, Marks was found guilty on both counts. On November 30, 1994, he was sentenced to life imprisonment for first degree murder and to a consecutive term of 5 to 10 years' imprisonment on the firearm conviction. Marks' convictions were affirmed in Marks I, but we twice vacated the sentence for the use of a firearm conviction and remanded the cause to the district court to correct the amount of credit for time served. Marks was represented by the same counsel at trial and on these appeals.

Marks filed an amended motion for postconviction relief by new counsel on February 22, 2012. This postconviction proceeding gives rise to the instant appeal. In his amended motion, Marks alleged that he was entitled to postconviction relief based on what he styled as “judicial misconduct,” primarily because the district court excused a juror and replaced him with an alternate juror when Marks was not present. Marks styled additional claims as “prosecutorial misconduct,” primarily alleging that the prosecution failed to advise defense counsel of the existence of evidence regarding a bullet hole in the vehicle in which Marks was riding on the night of the shooting. Marks alleged various other claims based on purported denial of effective assistance of counsel, including that trial counsel failed to investigate aspects of the case, failed to call certain witnesses, failed to file motions in limine and to suppress, failed to request an intoxication defense instruction, and failed to object to proposed jury instructions. Marks alleged that his appellate counsel was ineffective because he failed to raise the foregoing issues on direct appeal.

In its September 14, 2012, order, the district court denied Marks' motion for postconviction relief without an evidentiary hearing. The district court reasoned that Marks' claims of ineffective assistance of trial and appellate counsel were without merit generally because Marks failed to allege sufficient facts to show prejudice or the record refuted his claims.

Marks appeals.

ASSIGNMENT OF ERROR

Marks claims, restated, that the district court erred when it denied his motion for postconviction relief without an evidentiary hearing.

STANDARD OF REVIEW

In appeals from postconviction proceedings, we independently resolve questions of law. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). A trial court's ruling that the petitioner's allegations are refuted by the record or are too conclusory to demonstrate a violation of the petitioner's constitutional rights is not a finding of fact—it is a determination, as a matter of law, that the petitioner has failed to state a claim for postconviction relief. Id. Thus, in appeals from post-conviction 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. Watkins, 284 Neb. 742, 825 N.W.2d 403 (2012); State v. Edwards, supra.

ANALYSIS

Marks claims on appeal that the district court erred when it denied postconviction relief without conducting an evidentiary hearing. We find no merit to Marks' assignment of error.

The Nebraska Postconviction Act, Neb.Rev.Stat. § 29–3001 et seq. (Reissue 2008 &...