State v. Agok, 857 N.W.2d 72

Agok Arok Agok was convicted by a jury (terroristic threats; use of a weapon to commit a felony) and sentenced to concurrent prison terms in April 2013.
Trial counsel (a deputy public defender) informed Agok she could not represent him on appeal because he alleged her ineffective assistance, but she helped prepare and file the notice of appeal and related in forma pauperis filings.
Agok proceeded pro se in the appellate court; his appeal was docketed (No. A-13-578) but later dismissed for failure to file a brief.
Agok moved in district court for appointment of counsel on appeal; the district court said the appellate court had exclusive jurisdiction and denied relief; the appellate court denied a subsequent pro se motion without prejudice to filing in the trial court.
Agok filed a postconviction motion alleging ineffective assistance for failure to file an appellate brief; the district court dismissed the motion without an evidentiary hearing, reasoning the appeal had been perfected.
On appeal from the dismissal, the Nebraska Court of Appeals found Agok was indigent, was deprived of counsel on direct appeal because trial counsel ceased representation without filing to withdraw in the appellate court, and therefore his appeal was not effective; the court reversed and remanded directing a new direct appeal with appointed counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether postconviction motion should be dismissed where trial counsel assisted in filing appeal but did not file appellate brief	Agok: counsel was ineffective for failing to provide appellate representation and file a brief	State: appeal was perfected and counsel did not fail because notice of appeal was filed	Reversed: dismissal improper because Agok was deprived of counsel on direct appeal and deserves new appeal with counsel
Whether trial counsel could withdraw without seeking leave of appellate court	Agok: counsel effectively withdrew by ceasing representation, denying his right to counsel	State: counsel’s actions did not amount to ineffective assistance because procedural filings were made	Held for Agok: counsel was required to file motion to withdraw in appellate court and did not do so
Whether indigent defendant had right to appointed appellate counsel after district granted IFP	Agok: IFP granted established indigence and right to appointed counsel	State: implied that procedural perfection of appeal cured any counsel failures	Held for Agok: IFP established indigence; denial of counsel meant no effective appeal; remedy is new appeal with counsel appointed
Remedy where indigent defendant lacked counsel on direct appeal	Agok: postconviction relief or new direct appeal with counsel	State: denial of relief below was proper	Held: grant new direct appeal and appoint new counsel; reverse dismissal and remand

State v. Trotter, 259 Neb. 212 (Neb. 2000) (postconviction relief pleading and standard for factual findings)
State v. Dawn, 246 Neb. 384 (Neb. 1994) (indigent defendant deprived of counsel on appeal renders appeal ineffective)
State v. Molina, 271 Neb. 488 (Neb. 2006) (conflict when defendant alleges trial counsel ineffective prevents trial counsel from representing on appeal)
Pennfield Oil Co. v. Winstrom, 276 Neb. 123 (Neb. 2008) (appellate court may take judicial notice of interrelated trial court records)
Evitts v. Lucey, 469 U.S. 387 (U.S. 1985) (indigent defendants have right to effective assistance of appellate counsel)
Douglas v. California, 372 U.S. 353 (U.S. 1963) (indigent defendant has right to appointed counsel for first-tier appeal)