State v. Privett, 929 N.W.2d 505

Phillip M. Privett was charged with first-degree murder and a firearm enhancement; he pled no contest pursuant to a plea agreement after the State amended the charge to second-degree murder. He was sentenced to 30–50 years on murder and 10 years on the firearm count.
Privett filed an amended postconviction motion alleging ineffective assistance of trial counsel on two grounds: (1) counsel failed to investigate and advise him about a defense that he lacked the mens rea due to PTSD, medications, dissociation, or alcohol blackout; and (2) counsel failed to request continued amplification or a telecommunications device for the deaf when Privett had hearing difficulty at sentencing.
Trial counsel had filed a notice of intent to rely on an insanity defense and obtained a court-ordered psychological evaluation performed by forensic psychiatrist Dr. Y. Scott Moore.
Moore’s evaluations found only limited PTSD symptoms, noted possible alcohol blackout history but found no marked PTSD symptoms or clear support for dissociation, undermining Privett’s proposed defense.
The district court denied postconviction relief without an evidentiary hearing, concluding Privett’s allegations were speculative and the record affirmatively refuted the hearing-impairment claim. Privett appealed.

Issue	Privett's Argument	State's Argument	Held
Whether counsel was ineffective for failing to investigate and advise about a lack-of-intent defense based on PTSD/medication/dissociation	Counsel knew Privett could not form intent and should have hired independent forensic experts and investigated further	Counsel pursued a psychological exam (Dr. Moore); Privett failed to specify what exculpatory evidence further investigation would have produced	Denied — allegations speculative; Moore’s exam undermined the existence of the claimed defense, and Privett did not allege what a different expert would have found
Whether counsel was ineffective for failing to secure amplification or a telecommunications device when Privett had hearing difficulty at sentencing	Counsel should have informed the court/requested devices because Privett could not hear and thus could not understand proceedings	The record shows the court repeatedly offered accommodations, Privett declined continuance, and he responded appropriately when asked; the claim is refuted by the record	Denied — record affirmatively disproves the claim; no deficient performance shown

Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged ineffective-assistance standard: deficient performance and prejudice)
State v. Armendariz, 289 Neb. 896 (2015) (applying Strickland in plea/postconviction context)
State v. Vanderpool, 286 Neb. 111 (2013) (investigation claims require alleging what exculpatory evidence would be found)
State v. McGhee, 280 Neb. 558 (2010) (failure-to-procure-witnesses claims must identify witnesses and expected testimony)
State v. Barrera-Garrido, 296 Neb. 647 (2017) (self-serving declarations that a defendant would have gone to trial are insufficient)
State v. Martinez, 302 Neb. 526 (2019) (standard for reviewing sufficiency of postconviction pleadings)