State v. Pigee

STATE OF NEBRASKA, APPELLEE, v. DAMON D. PIGEE, APPELLANT.

No. A-15-1113.

NEBRASKA COURT OF APPEALS

February 28, 2017

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 Douglas County: W. MARK ASHFORD, Judge. Affirmed.

Matthew R. Kahler, of Finley & Kahler Law Firm, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

RIEDMANN, BISHOP, and ARTERBURN, Judges.

BISHOP, Judge.

INTRODUCTION

Damon D. Pigee filed an amended motion for postconviction relief in the district court for Douglas County, alleging ineffective assistance of trial counsel and appellate counsel, prosecutorial misconduct, and judicial misconduct. Pigee appeals the district court's order denying his motion without an evidentiary hearing. We affirm.

BACKGROUND

On four separate occasions between November 2010 and April 2011, Pigee sold firearms to a confidential informant working with law enforcement. All of the sales were either captured on audio or video recordings or were observed by law enforcement officers.

On August 29, 2011, Pigee was charged in Douglas County District Court with four counts of possession of a deadly weapon by a prohibited person (Counts 1-4) pursuant to Neb. Rev. Stat. § 28-1206 (Reissue 2016), each a Class ID felony, and one count of delivering/distributingmarijuana (Count 5), a Class III felony. Pigee pled guilty to Counts 1-4, and, in exchange, Count 5 was dismissed; the State also agreed to dismiss another case pending against Pigee and agreed to not pursue a habitual criminal enhancement. The district court sentenced Pigee to 10 to 40 years' imprisonment on each count, with the sentences to run consecutively. Pigee, with new counsel, filed a direct appeal to this court, arguing only that his sentence was excessive. We granted the State's motion for summary affirmance in Pigee's direct appeal; the mandate issued on April 5, 2013.

Pigee filed (pro se) a verified motion for postconviction relief on June 5, 2013, and an amended motion on October 15. In the amended motion, he made several claims of ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and judicial misconduct. The district court denied Pigee's amended motion, without an evidentiary hearing, on November 19, 2014.

In its order, the district court stated that Pigee's claims of prosecutorial and judicial misconduct could have been reviewed on direct appeal and, therefore, these claims were procedurally barred. Additionally, since Pigee had a different attorney on direct appeal, his claims of ineffective assistance of trial counsel had to be raised on direct appeal if they were known to Pigee or were apparent from the record. Accordingly, the court found that Pigee's claims related to the ineffective assistance of trial counsel were procedurally barred. As to Pigee's claim of ineffective assistance of appellate counsel, the court noted that appellate counsel's failure to raise an issue on appeal could be ineffective assistance if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal. Therefore, in considering appellate counsel's ineffectiveness, the district court considered Pigee's claims of prosecutorial and judicial misconduct, and his claims of ineffective assistance of trial counsel. The court concluded that Pigee's allegations were conclusory and did not set forth sufficient facts to establish a constitutional infringement or were otherwise refuted by the record. The court further concluded that even if Pigee had alleged sufficient facts to show trial counsel was deficient, Pigee did not suffer any prejudice because of the favorable nature of the plea agreement. Pigee timely appealed.

ASSIGNMENT OF ERROR

Pigee assigns that the district court erred in dismissing his motion for postconviction relief without holding 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. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015). An evidentiary hearing on a motion for postconviction relief must be granted when the motion contains factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. Id.

A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012). On appeal from a proceedingfor postconviction relief, the trial court's findings of fact will be upheld unless such findings are clearly erroneous. Id. Determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law that we review independently of the lower court's decision. Id.

ANALYSIS

The Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016), 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. State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015). Thus, 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. Id. 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. Id.

In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law. State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015). Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case. Id. When a conviction is based upon a guilty plea, 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. Id. The two prongs of this test, deficient performance and prejudice, may be addressed in either order. Id. The entire ineffectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable. Id.

Under Nebraska law, in order to raise the issue of ineffective assistance of trial counsel where appellate counsel is different from trial counsel, a defendant must raise on direct appeal any issue of ineffective assistance of trial counsel which is known to the defendant or is apparent from the record, or the issue will be procedurally barred on postconviction review. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). When claims of a trial counsel's performance are procedurally barred, we examine claims regarding trial counsel's performance only if the defendant assigns as error that appellate counsel was ineffective for failing to raise trial counsel's performance. State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).

When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin by determining whether appellate counsel failed to bring a claim on appeal that actually prejudiced the defendant. State v. Huston, 291 Neb. 708, 868 N.W.2d 766 (2015). That is, courts begin by assessing the strength of the claim appellate counsel failed to raise. Id. Counsel's failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal. Id. When a case presents layeredineffectiveness claims, we determine the prejudice prong of appellate counsel's performance by focusing on whether trial counsel was ineffective under the Strickland test. Id. If trial counsel was not ineffective, then the defendant suffered no prejudice when appellate counsel failed to bring an ineffective assistance of trial counsel claim. Id.

In this postconviction action, since appellate counsel was different than trial counsel, the issue is whether appellate counsel failed to bring a claim on direct appeal that actually prejudiced Pigee such that inclusion of the issue would have changed the result of the appeal; and, to determine prejudice, we focus on whether trial counsel was ineffective. See State v. Huston, supra. In his brief, Pigee argues that appellate counsel should have raised the following claims: trial counsel failed to correctly inform Pigee of the penal consequences for his charges; trial counsel incorrectly advised Pigee that he was eligible for habitual offender charges; and trial counsel failed to depose witnesses, file appropriate motions, and failed to review discovery materials with Pigee. Accordingly, we examine these claims to determine whether trial counsel's performance was deficient, and whether there was a reasonable probability that but for the deficient performance of trial counsel, Pigee would have insisted on going to trial rather than pleading guilty.

Penal Consequences.

Pigee claims that "trial counsel failed to correctly inform [Pigee] of the penal...