State v. Smith, 294 Neb. 311

Background

In 2008 William E. Smith was tried and convicted of attempted second-degree murder, first-degree assault, and use of a weapon to commit a felony; sentences for attempted murder and assault ran concurrently and the weapon sentence ran consecutively.
On direct appeal the Nebraska Court of Appeals affirmed the assault and weapon convictions, reversed the attempted-second-degree-murder conviction, and remanded for retrial; the Nebraska Supreme Court affirmed in part but found plain error requiring a new trial on the homicide count because an instruction distinguishing second-degree murder and voluntary (sudden quarrel) manslaughter was warranted.
After remand the district court appointed new counsel (and later held a hearing on Smith’s motion to dismiss his appellate counsel); rather than proceed to retrial, Smith pleaded no contest to attempted voluntary manslaughter and was sentenced to concurrent imprisonment on that count.
Smith filed an amended verified petition for postconviction relief alleging (among other theories) ineffective assistance of appellate counsel, that sudden quarrel provocation should have reduced the assault to third-degree assault, and that combined convictions violated double jeopardy; he did not raise a conflict-of-interest claim in that petition.
The district court denied postconviction relief and declined to hold an evidentiary hearing, concluding Smith’s petition alleged only conclusions and that the record affirmatively showed no entitlement to relief; Smith appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an evidentiary hearing on postconviction relief was required for claims appellate counsel was ineffective	Smith: his petition alleged facts showing appellate counsel failed to challenge the assault and weapon convictions and thus an evidentiary hearing was required	State: petition contained only conclusions or was procedurally barred by final judgments; the record shows no entitlement to relief	Court: no hearing required; petition insufficient and record precludes relief
Whether appellate counsel was ineffective for failing to challenge first-degree assault and weapon convictions (lesser-included/sudden quarrel)	Smith: appellate counsel should have raised that ‘‘sudden quarrel’’ or lesser-included instructions applied to those counts	State: lesser-included instruction for assault was given (third-degree); sudden quarrel negates malice but malice is not an element of first-degree assault or weapon offense, so claim lacks merit	Court: counsel not ineffective; sudden quarrel inapplicable to those offenses
Whether the district court erred by addressing ineffective-assistance-of-appellate-counsel claims at a hearing on Smith’s motion to dismiss counsel (prior to plea)	Smith: the court improperly entertained appellate-ineffectiveness claims at the new-counsel hearing	State: the April 8 hearing was properly limited to the motion to dismiss counsel; Smith did not object and attempted to raise postconviction matters but court declined	Court: no error—the hearing dealt with dismissal of counsel and Smith did not preserve any objection
Whether plain error permeates the record	Smith: unspecified pervasive plain error exists warranting relief	State: record does not show unasserted but obvious error that prejudiced Smith or damaged judicial integrity	Court: no plain error found

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-pronged ineffective assistance of counsel test)
State v. Smith, 282 Neb. 720 (Neb. 2011) (arraigned prior Nebraska decision concerning manslaughter instruction issues)
State v. Smith, 284 Neb. 636 (Neb. 2012) (subsequent Nebraska Supreme Court decision addressing instruction duties and plain error)
State v. Sellers, 290 Neb. 18 (Neb. 2015) (framework for evaluating appellate counsel ineffectiveness claims)
State v. Thorpe, 290 Neb. 149 (Neb. 2015) (discusses Strickland prejudice standard in Nebraska)
Blockburger v. United States, 284 U.S. 299 (establishes double jeopardy test for separate statutory offenses)