State v. Kolbjornsen, 24 Neb. Ct. App. 851

Frantz G. Kolbjornsen entered no-contest pleas in three Hall County cases (amended to attempted forgery, possession of a destructive device, and attempted first-degree assault) and was sentenced March 11, 2015; sentences were ordered concurrent with each other but consecutive to a Hamilton County sentence.
Kolbjornsen filed identical postconviction motions in the three cases alleging ineffective assistance of trial counsel (including failure to file direct appeals) and various trial-court errors; a single evidentiary hearing was held.
The district court denied postconviction relief in full after the evidentiary hearing, finding counsel was not deficient in handling appeals and that delays were attributable to Kolbjornsen.
On appeal, the Nebraska Court of Appeals consolidated the cases and reviewed only the claim that counsel failed to file direct appeals, following the Nebraska Supreme Court’s procedure in State v. Determan.
The Court of Appeals affirmed the denial of relief as to the claim that counsel failed to file direct appeals (finding counsel acted promptly and defendant delayed), but vacated and remanded the district court’s rulings on the remaining postconviction claims pending resolution of the direct-appeal issue.

Issue	Kolbjornsen's Argument	State/Counsel's Argument	Held
Whether counsel was ineffective for failing to file direct appeals	He instructed his wife to notify counsel to file appeals; counsel failed to timely file	Counsel acted promptly after being notified, sent poverty affidavit/instructions, delay was due to Kolbjornsen and mail	Counsel not ineffective; court affirmed denial on this claim
Whether postconviction court should decide other claims before direct-appeal claim	(Implicit) All claims may be addressed together	Determan requires resolution of direct-appeal claim first; other claims should be deferred	Court vacated district court rulings on other claims and remanded to defer them until direct-appeal issue is final
Whether prejudice is presumed where attorney fails to file appeal after defendant directs appeal	Failure to file caused prejudice; presumption applies	No deficient performance shown, so presumption does not trigger	Presumption applies only if counsel was deficient; here no deficiency found, so no presumed prejudice
Whether delays in communications/filing can excuse counsel’s failure to perfect appeal	Defendant contends notification via spouse was sufficient and counsel should have ensured filing	Counsel reasonably relied on client-signed poverty affidavit and provided timely instructions; defendant delayed signing/returning	Court found delay by defendant and postal issues insufficient to show counsel deficient

Strickland v. Washington, 466 U.S. 668 (establishes the two-prong ineffective-assistance standard)
State v. Determan, 292 Neb. 557 (modifies procedure: district courts must resolve direct-appeal ineffective-assistance claims first)
State v. Hessler, 295 Neb. 70 (postconviction relief and ineffective-assistance overview)
State v. Dunkin, 283 Neb. 30 (prejudice presumed when counsel fails to file appeal after defendant directs appeal)
State v. Ruffin, 280 Neb. 611 (procedures for in forma pauperis appeals and poverty affidavit requirements)
State v. Armstrong, 290 Neb. 991 (trial court as factfinder in postconviction evidentiary hearings)
State v. Perry, 268 Neb. 179 (postal delay issues affecting timely appeal filings)
State v. Alford, 24 Neb. App. 213 (standard for deficient performance review)