State v. Lessley
312 Neb. 316
Neb.2022Background
- Lessley was convicted at jury trial of felony murder, two counts of use of a deadly weapon, first‑degree assault, and possession of a firearm by a prohibited person based on evidence including DNA on a bat, a shoeprint on a laptop, GPS records for his Suburban, witness descriptions, and his possession of similar shoes and vehicle features.
- The State amended the information at trial to drop the premeditated‑murder theory and proceed on felony murder; Lessley did not object and was convicted on the felony murder theory.
- On direct appeal this Court affirmed the convictions but found plain error in modified resentencing for some counts and remanded for resentencing consistent with the original terms.
- Lessley filed a verified postconviction motion alleging multiple ineffective‑assistance claims (advising waiver of speedy trial, failure to interview alibi witnesses, refusal to let him testify, failure to obtain expert witnesses, failure to object to the information amendment) and various trial errors.
- The district court denied the motion without an evidentiary hearing, concluding the claims were procedurally barred, insufficiently pleaded, or affirmatively refuted by the record; Lessley appealed.
Issues
| Issue | Lessley (plaintiff) | State/District Court (defendant) | Held |
|---|---|---|---|
| Whether postconviction motion entitled to evidentiary hearing | Motion alleged facts showing constitutional violations and entitlement to hearing | Motion either asserted only conclusions, was procedurally barred, or the record refuted claims | Denial affirmed; motion did not allege sufficient specific facts for a hearing or claims were barred/refuted |
| Whether court erred by ruling without allowing State to respond | Court should have given State chance to plead preclusion and respond before ruling | Statute requires notice to county attorney only if court finds a hearing warranted; State had no obligation to respond before court determined no hearing required | No error; court need not wait for State response before denying without hearing |
| Ineffective assistance — failure to investigate/interview alleged alibi (Westbrook) | Westbrook would have testified he was with Lessley 1:30–4:30 a.m., undermining prosecution | Allegation too nonspecific (didn’t state where they were) and not shown to be inconsistent with crime scene; conclusory | Denied; allegations insufficiently specific to require an evidentiary hearing |
| Ineffective assistance — counsel refused to allow Lessley to testify | Counsel prevented testimony about extramarital affair and an earlier altercation; that testimony would have helped defense | Lessley didn’t allege facts showing counsel interfered with decision or that advice was unreasonable; lacked detail on proposed testimony | Denied; insufficient facts to show interference or prejudice under Strickland |
| Ineffective assistance — failure to call serology/forensic experts | An expert would have shown blood mixture/flawed testing that might have refuted State evidence | Allegations on flawed testing were not in the verified motion; showing a mixture of blood would not have changed outcome given other evidence | Denied; allegations inadequate and some claims not raised in the verified motion |
| Ineffective assistance — failure to object to amendment of information | Amendment prejudiced defense by changing charges on first day of trial | Amendment removed a theory (premeditation) and did not add charges; record shows no prejudice | Denied; record affirmatively refutes prejudice and counsel not ineffective |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two‑prong ineffective‑assistance test: deficient performance and prejudice)
- State v. Cullen, 311 Neb. 383 (2022) (postconviction review standards; de novo review when no evidentiary hearing)
- State v. Jaeger, 311 Neb. 69 (2022) (requirements for specificity in postconviction pleadings and when hearings are required)
- State v. Munoz, 309 Neb. 285 (2021) (allegations about uncalled witnesses must be specific about expected testimony)
- State v. Stricklin, 300 Neb. 794 (2018) (contrast where specific alibi allegations warranted a hearing)
- State v. Burries, 310 Neb. 688 (2022) (State need not respond to postconviction pleading before court determines hearing is warranted)
- State v. Lessley, 301 Neb. 734 (2018) (direct appeal affirming convictions and remanding for resentencing)