State v. Determan, 859 N.W.2d 899

Background

Determan pled guilty to unlawful manufacture/distribution of a controlled substance (hashish/THC); plea limited the State’s sentencing recommendation to submission of the PSR only.
During plea colloquy defense counsel stipulated there was sufficient corroboration for the factual basis; Determan admitted the facts and the court accepted the plea.
Determan missed or was late to presentence interviews; the probation officer completed the PSR without interviewing him and included an older 2011 PSR.
At sentencing the court denied defense counsel’s oral motion to continue so the PSR interview could be completed; the court nevertheless allowed Determan to supplement the PSR by testifying and then sentenced him to 8–10 years.
Determan filed a timely notice of appeal but the appeal was dismissed for lack of jurisdiction due to a late poverty affidavit; he then filed a postconviction motion alleging multiple ineffective-assistance-of-counsel claims including failure to timely perfect the direct appeal.
The district court granted an evidentiary hearing only on the untimely-appeal claim and dismissed the remaining claims without a hearing; Determan appealed those dismissals.

Issues

Issue	Determan's Argument	State/Respondent's Argument	Held
Whether counsel was ineffective for failing to timely file/perfect a direct appeal	Counsel failed to timely perfect the appeal; entitlement to a new direct appeal and evidentiary hearing	District court granted an evidentiary hearing on this claim (so respondent did not oppose a hearing)	Appellate court affirmed need for an evidentiary hearing on this claim and required it be resolved before other claims
Whether counsel failed to object to the State’s alleged breach of the plea agreement	Counsel should have objected when the State relied on the PSR and submitted the case for sentencing contrary to the plea agreement	State argued its conduct (submitting the PSR) was consistent with the plea (no sentencing recommendation beyond PSR)	Trial court had dismissed this claim; appellate court vacated that dismissal and remanded because it should not have ruled on collateral claims before resolving the appeal-perfection claim
Whether counsel failed to properly obtain/press for a continuance of the sentencing hearing and to present mitigating evidence	Counsel should have filed a written motion to continue, preserved objection to denial, and more effectively presented mitigation to avoid prison	State pointed to counsel’s oral motion to continue, objection by prosecutor, the court’s denial, and counsel’s mitigation advocacy and client testimony	Trial court dismissed the claim on the merits; appellate court vacated denial and remanded pending resolution of the untimely-appeal claim first
Whether counsel failed to advise Determan about corroboration requirements and improperly stipulated to corroboration of the plea factual basis	Counsel failed to inform Determan that the State’s corroborating evidence was deficient and improperly stipulated to sufficiency, inducing the plea	State pointed to the plea colloquy where Determan admitted facts, counsel stipulated to corroboration, and Determan said he had no disagreement	Trial court dismissed the claim as refuted by the record; appellate court vacated denial and remanded because procedural sequencing required resolution of the appeal-perfection claim before the other claims

Key Cases Cited

State v. Green, 287 Neb. 212 (discussing assignment and argument of errors) (explains appellate preservation rules)
State v. Dragon, 287 Neb. 519 (postconviction review standard) (appellate de novo review of legal determinations)
State v. Baker, 286 Neb. 524 (postconviction review standard) (same)
State v. Dunkin, 283 Neb. 30 (ineffective assistance standard) (review of deficiency and prejudice are legal questions)
State v. Hernandez, 22 Neb. App. 62 (appellate review of counsel effectiveness) (confirms independent review)
State v. Alfredson, 287 Neb. 477 (finality of postconviction rulings) (order denying hearing is final as to that claim)
State v. Seeger, 20 Neb. App. 225 (procedural practice in multi-claim postconviction petitions) (prefer resolving appeal-perfection claim first)