State v. Heldt, A-16-505

Background

Heldt was charged with multiple felonies; he pled guilty pursuant to a plea agreement amended to attempted kidnapping (Class II) with a joint recommendation of 50 years.
Sentencing occurred April 21–22, 2014; no direct appeal was filed within 30 days.
Heldt filed a postconviction motion (Oct. 1, 2015) claiming trial counsel Ronald Temple was ineffective for failing to file a requested direct appeal.
At an evidentiary hearing Heldt testified he discussed appeals with Temple and received a letter from Temple (dated Apr. 22, 2014) advising Heldt of his right to appeal, recommending against appeal, and asking Heldt to notify Temple by May 2 if he wanted an appeal filed.
Heldt admitted he did not contact Temple after receiving the letter and no contemporaneous request or letter from Heldt to Temple was introduced at the hearing. Temple’s deposition confirmed no appeal request was made.
The district court denied relief, finding Heldt failed to show he ever requested an appeal; Heldt appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to file a direct appeal	Heldt: Temple discouraged appeal and failed to file despite Heldt’s alleged request, so prejudice should be presumed	State/Temple: No request to file an appeal was ever made; Temple informed Heldt of appeal rights and deadlines and said he would file if asked	Court: No clear error in finding Heldt did not request an appeal; no presumption of prejudice; no ineffective assistance
Whether counsel’s recommendation against appeal constituted deficient performance	Heldt: Recommendation discouraged exercise of absolute right to appeal	Temple: Recommendation was professional advice based on plea-based conviction; he informed Heldt of right/deadline and willingness to file if instructed	Court: Advice not deficient; recommending against appeal is not ineffective when client is informed and counsel would file if asked
Proper legal standard for presuming prejudice when appeal not filed	Heldt: Court should presume prejudice when counsel discourages appeal	State: Prejudice is presumed only when defendant specifically directed counsel to file an appeal and counsel failed to do so	Court: Applies Strickland; follows Trotter—presumption requires defendant-directed request; not met here
Sufficiency of evidence at postconviction hearing	Heldt: Credibility should favor his claim	State: Court as factfinder resolved credibility; documentary letter and testimony show no request	Court: Trial court’s factual findings (no request) not clearly erroneous; denies relief

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes deficiency and prejudice test for ineffective assistance of counsel)
State v. Trotter, 259 Neb. 212 (1999) (presumption of prejudice where counsel fails to file appeal after defendant directed filing)
State v. Meers, 267 Neb. 27 (2003) (discusses failure-to-appeal doctrine)
State v. Jim, 275 Neb. 481 (2008) (failure-to-appeal presumption reiterated)
State v. Vanderpool, 286 Neb. 111 (2013) (standards for reviewing ineffective-assistance claims; factual findings reviewed for clear error)
State v. Rocha, 286 Neb. 256 (2013) (counsel performance standard)
State v. Armstrong, 290 Neb. 991 (2015) (appellate review standards for postconviction factual findings)
State v. Ortega, 290 Neb. 172 (2015) (applies Strickland in Nebraska context)