State v. Collins, 299 Neb. 160

Background

Collins pled no contest to a reduced charge of first degree sexual assault (Class II felony) under a plea agreement; sentenced to 10–15 years with credit for time served.
On direct appeal he challenged sentence and multiple ineffective-assistance claims; the court affirmed sentence and found the record insufficient to resolve many counsel-related claims.
Collins filed a postconviction petition reasserting several ineffective-assistance claims that were not addressed on direct appeal and moved for appointment of postconviction counsel.
The district court denied postconviction relief without an evidentiary hearing, finding most claims insufficiently pleaded or without merit, and denied appointment of counsel.
Collins appealed; the Nebraska Supreme Court reviewed the denial de novo and affirmed the district court.

Issues

Issue	Collins' Argument	State's Argument	Held
Whether Collins alleged sufficient facts to require an evidentiary hearing on ineffective-assistance claims	Counsel failed to: attack the information for jurisdictional defects; seek DNA testing or investigate missing evidence kit; move to discharge on speedy-trial grounds; move to sever; depose witnesses or share transcripts; move to exclude witness/victim testimony; and coerced plea	Many claims were conclusory or unsupported by facts; some claims were refuted by the record; others would be meritless and thus not ineffective assistance	No evidentiary hearing required. Most claims were insufficiently pleaded or without merit; record affirmatively refuted coercion-of-plea claim, so no relief granted.
Validity of original information / jurisdictional defect	Dates in original information allegedly created a jurisdictional problem because some conduct and victim residence predated alleged dates	Amended information alleged the offense in Douglas County within operative dates; the January 2009–June 2010 dates were irrelevant to the operative charge	Collins failed to identify any jurisdictional defect in the operative information; no deficient performance or prejudice shown.
Failure to request DNA testing / investigate missing sexual-assault kit	Counsel should have sought DNA testing or investigated lack of kit; such testing might have suppressed State evidence or produced exculpatory evidence	Collins did not allege what DNA or kit would have produced; the charged acts involved non-penile digital conduct across many incidents, so there may have been no testable evidence	Claim insufficiently pleaded; counsel cannot be ineffective for failing to pursue testing when no plausible evidence to test was alleged.
Failure to move to discharge on speedy-trial grounds	Speedy-trial clock had run before plea; counsel should have sought discharge	When calculating deadlines and excluding periods (motions and continuances), trial deadline had not passed before the plea; a meritless motion cannot be the basis for ineffective assistance	No prejudice: speedy-trial deadline had not run; counsel not ineffective for failing to raise a meritless speedy-trial discharge motion.
Failure to appoint postconviction counsel	Collins asserted entitlement to counsel because his petition raised justiciable issues	Appointment of counsel is required only if petition alleges justiciable issues; here petition raised none warranting an evidentiary hearing	Denial of appointment was not an abuse of discretion because petition presented no justiciable issue of fact or law.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard: deficient performance and prejudice)
State v. Collins, 292 Neb. 602 (prior direct-appeal decision in this matter)
State v. Schwaderer, 296 Neb. 932 (discusses ineffective-assistance standards)
State v. Betancourt-Garcia, 295 Neb. 170 (speedy-trial calculation and discharge standard)
State v. Johnson, 298 Neb. 491 (review standards for postconviction dismissal without hearing)
State v. Ely, 295 Neb. 607 (appointment of postconviction counsel required only when petition raises justiciable issues)