State v. Kolbjornsen
24 Neb. Ct. App. 851
| Neb. Ct. App. | 2017Background
- Frantz G. Kolbjornsen pleaded no contest to amended charges in three Hall County cases and was sentenced March 11, 2015; sentences were ordered concurrent with each other but consecutive to a Hamilton County sentence and no credit for time served was given.
- Kolbjornsen filed identical postconviction motions in the three cases alleging, among other claims, ineffective assistance of trial counsel for failing to file direct appeals.
- A single evidentiary hearing was held; the district court denied relief in each case after finding counsel was not deficient in handling appeals and addressed other claims on the merits.
- Kolbjornsen appealed; the cases were consolidated for appeal.
- The Nebraska Court of Appeals reviewed the direct-appeal ineffective-assistance claim and applied State v. Determan’s procedure requiring district courts to decide the counsel-failed-to-file-appeal claim first and to defer other claims until that resolution and any appeal of it.
- The Court of Appeals affirmed the denial of relief on the failure-to-file-appeal theory but vacated and remanded the district court’s rulings on the remaining postconviction claims, directing those claims to be deferred pending finality of the direct-appeal issue.
Issues
| Issue | Kolbjornsen's Argument | State's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for failing to file direct appeals | Wife notified counsel; Kolbjornsen intended to appeal and counsel failed to file or take steps to ensure appeals were timely | Counsel acted promptly after contact, sent poverty affidavit and instructions, delay was due to Kolbjornsen’s slow response and mail, not counsel’s deficiency | Court held counsel was not deficient; denied postconviction relief on this claim |
| Whether prejudice is presumed when counsel fails to file a directed appeal | If counsel failed after being directed, prejudice is presumed and relief warranted | No deficient performance shown, so presumption not triggered | Court applied presumption rule but found it inapplicable because counsel’s conduct was reasonable |
| Proper postconviction procedure when both failure-to-file-appeal and other claims are raised | Kolbjornsen sought full adjudication of all claims | State argued district court may adjudicate all claims after hearing | Court held, per State v. Determan, district court must first decide failure-to-file-appeal claim and defer other claims until resolution or appeal of that issue |
| Disposition of the district court’s rulings on non-appeal claims | Kolbjornsen argued the other denials should stand | State relied on district court’s factual findings on other claims | Court vacated the district court’s rulings on remaining claims and remanded for proceedings consistent with Determan (defer until direct-appeal mandate issues) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard requiring deficient performance and prejudice)
- State v. Determan, 292 Neb. 557 (procedural rule: decide counsel-failed-to-file-direct-appeal claim first and defer other claims)
- State v. Dunkin, 283 Neb. 30 (presumption of prejudice when counsel fails to file a directed appeal)
- State v. Hessler, 295 Neb. 70 (postconviction relief and ineffective-assistance principles)
- State v. Ruffin, 280 Neb. 611 (in forma pauperis appeal perfected by timely notice plus proper poverty affidavit)
- State v. Perry, 268 Neb. 179 (postal delays and appeal-timing issues discussed)