State v. Meyer

30 Neb.App. 662

971 N.W.2d 185

STATE of Nebraska, appellee,

v.Scottie M. MEYER, appellant.

No. A-21-018.

Court of Appeals of Nebraska.

Filed March 1, 2022.

Scottie M. Meyer, pro se.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

Pirtle, Chief Judge, and Riedmann and Bishop, Judges.

Riedmann, Judge.

I. INTRODUCTION

Scottie M. Meyer appeals the order of the district court for Sarpy County which denied his request for appointment of postconviction counsel and his verified motion for postconviction relief without an evidentiary hearing. We affirm.

II. BACKGROUND

On August 29, 2017, the State filed an information, charging Meyer with 10 counts, including multiple counts of first degree sexual assault, incest, child abuse, and tampering with a witness, informant, or juror. After several amendments, the operative pleading was a third amended information, alleging one count of first degree sexual assault of a child under 12 years of age, a Class IB felony; one count of incest, a Class IIA felony; and one count of violation of a domestic violence protection order, a Class I misdemeanor. Pursuant to a plea agreement, Meyer pled guilty to the charges in the third amended information.

The factual basis is fully recounted in his direct appeal to this court, State v. Meyer , No. A-18-353, 2019 WL 548644, (Neb. App. Feb. 12, 2019) (selected for posting to court website). The factual basis included evidence that two of Meyer's children had disclosed that he sexually abused them. Id. Meyer had searched various topics on his cell phone related to fathers having sex with their young daughters. Id. Additionally, Meyer sent letters to the children's mother through an intermediary suggesting that the children should change their stories; the mother felt threatened by the letters, and the letters were in violation of a protection order. Id. The district court accepted Meyer's guilty pleas and found him guilty. Id.

On March 19, 2018, the district court sentenced Meyer to incarceration for a term of not less than 40 nor more than 50 years on the sexual assault conviction, to a term of not less than 40 nor more than 50 years on the incest conviction, and a term of 1 year for the violation of the protection order, all to run consecutively. Meyer timely appealed, and different counsel represented him during the appellate proceedings.

We affirmed his convictions and sentences on direct appeal but found the record was insufficient to address one of his ineffective assistance of counsel claims. See id. That claim was that his trial counsel failed to appropriately and sufficiently communicate with him and he was under pressure to plead; thus, his guilty pleas were not made knowingly, voluntarily, and intelligently. Id. A mandate was issued on May 3, 2019.

Meyer timely filed a verified motion to set aside his convictions and sentences. He alleged ineffective assistance of counsel by both his trial counsel and appellate counsel. He requested appointment of counsel, due to the court's sealing certain documents in another proceeding which were only accessible to counsel. On the same day, Meyer filed a notice of intent to amend the postconviction motion, requesting that the court rule on his motion for appointment of counsel and thereafter grant him leave to amend his motion. The district court interpreted the notice of intent to amend as a motion to amend, and it granted Meyer 30 days to amend his motion. Following a hearing, Meyer's motion for appointment of counsel was overruled, and he was granted an additional 14 days to amend his motion. Meyer moved for an additional 90 days to amend his postconviction motion, and the district court granted Meyer additional time to amend. Meyer, however, gave notice to the district court that he was not going to amend his postconviction motion in light of the denial of counsel.

Based on the initial postconviction motion, the district court found that Meyer was not entitled to postconviction relief and again overruled his motion to appoint counsel. The district court found that Meyer had alleged four instances of ineffective assistance of counsel: (1) trial counsel was ineffective for advising Meyer to waive his statutory right to a preliminary hearing; (2) trial counsel was ineffective for failing to challenge the State's evidence on a motion to quash or a plea in abatement; (3) trial counsel was ineffective for failing to investigate possible defenses, failing to subject the files to sufficient review, and failing to recognize the intrinsic value of the information before her; and (4) appellate counsel was ineffective for failing to raise on direct appeal the ineffective assistance of trial counsel where trial counsel failed to subject the State's case to preliminary examination and move for absolute discharge.

As to Meyer's claims against his trial counsel, the district court determined those claims were procedurally barred because they could have been raised on direct appeal. Reviewing the layered ineffective assistance of counsel claims, however, the district court found that trial counsel was not ineffective for failing to file a plea in abatement or a motion to quash, because Meyer waived his right to a preliminary hearing; therefore, those pleadings were unavailable. It also found that because Meyer entered a not guilty plea, he waived any defect in the information. The district court found that trial counsel was not ineffective in advising Meyer to waive his preliminary hearing, because the sufficiency of the evidence to bind a case over for trial is cured by a subsequent finding at trial of guilty beyond a reasonable doubt which is supported by sufficient evidence. It also found that the advice of trial counsel for Meyer to waive his preliminary hearing was moot even if coerced or ill advised. Therefore, because trial counsel was not ineffective as to these issues, appellate counsel could not be ineffective, either.

The district court found that Meyer made conclusory allegations against trial counsel as to counsel's failure to investigate, review files, and recognize the value of the information before her. The district court found that these claims were also procedurally barred because they were not raised on direct appeal, but even if they had been, they would fail because Meyer failed to articulate how he was prejudiced by these allegations. There was no layered claim against appellate counsel on these issues. As to the claims of ineffective assistance of trial counsel raised on direct appeal, Meyer failed to reassert them in his postconviction motion. Therefore, the court denied the motion without an evidentiary hearing. Meyer timely appealed.

III. ASSIGNMENTS OF ERROR

Meyer asserts, restated and reordered, that (1) the district court erred in overruling Meyer's postconviction motion without first holding an evidentiary hearing and (2) the district court abused its discretion in denying Meyer's motion to appoint counsel.

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. Betancourt–Garcia , 310 Neb. 440, 967 N.W.2d 111 (2021).

We review the failure of the district court to provide court-appointed counsel in a postconviction proceeding for an abuse of discretion. State v. Taylor , 300 Neb. 629, 915 N.W.2d 568 (2018).

V. ANALYSIS

A defendant seeking relief under the Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016), must show that his or her conviction was obtained in violation of his or her constitutional rights. State v. Betancourt–Garcia, supra. Postconviction relief is a narrow category of relief and is not intended to secure a routine review for any defendant dissatisfied with his or her sentence.

Id. A motion for postconviction relief cannot be used to secure review of issues that were known to the defendant and which were or could have been litigated on direct appeal. Id.

1. OVERRULING WITHOUT EVIDENTIARY HEARING

Meyer assigns that the district court erred in overruling his postconviction motion without first holding an evidentiary hearing. He argues that insufficient assistance of counsel at the trial and appellate levels deprived him of effective assistance of counsel and that he was prejudiced as a result of that ineffective assistance. We disagree and affirm the district court's ruling.

(a) Law Applicable to Postconviction Proceedings

Before addressing Meyer's specific allegations, we set forth the general principles applicable to postconviction motions. To prevail under 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), a defendant must first show that his or her attorney's performance was deficient, meaning it objectively did not equal that of a lawyer with ordinary training and skill in criminal law. State v. Betancourt–Garcia, supra . Second, the defendant must show that he or she suffered prejudice as a result of the attorney's deficient performance. Id.

When a conviction is based upon a guilty plea or a plea of no contest, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty. State v. McLeod , 274 Neb. 566, 741 N.W.2d 664 (2007).

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).

A party cannot raise an issue in a postconviction motion if he or she could have raised that same issue on...