State v. Smith, 883 N.W.2d 299

Background

In 2008 Smith was tried and convicted of attempted second-degree murder, first-degree assault, and use of a weapon to commit a felony; he received concurrent and consecutive prison terms.
On direct appeal the Court of Appeals affirmed the assault and weapon convictions, reversed the attempted second-degree murder conviction, and remanded for retrial; the Nebraska Supreme Court granted further review and affirmed the Court of Appeals but ordered a new trial under plain error for the murder-related count because of developments in the law concerning voluntary sudden quarrel manslaughter.
After remand, Smith moved to dismiss his appellate counsel; the district court replaced counsel following a hearing. Smith then pled no contest to an amended charge of attempted voluntary manslaughter and was sentenced on that count concurrent with one assault sentence; the weapon sentence remained consecutive.
Smith filed an amended verified petition for postconviction relief claiming appellate counsel was ineffective (including failure to challenge the assault and weapon convictions), double jeopardy, due process violations, and related claims; he did not allege a conflict of interest in that petition.
The district court denied postconviction relief and declined to hold an evidentiary hearing, finding the petition alleged conclusions without factual support and that Smith failed to show deficient performance or prejudice.

Issues

Issue	Plaintiff's Argument (Smith)	Defendant's Argument (State)	Held
Ineffective assistance of appellate counsel for not challenging assault and weapon convictions	Appellate counsel should have argued trial counsel was ineffective for failing to request lesser-included/sudden quarrel instructions, which would have altered appeal outcomes	Assault and weapon convictions were final after appeal; lesser instructions were given where appropriate and sudden quarrel does not negate elements of those crimes; trial-counsel claims are procedurally barred absent a showing appellate counsel was ineffective	Denied — appellate counsel was not shown ineffective; no prejudice shown and claims were procedurally barred
Conflict of interest by appellate counsel	Smith asserted counsel had a conflict that rendered representation ineffective	Issue was not raised in the postconviction petition, so it was not preserved for review	Not considered — issue forfeited for postconviction review
Whether the district court improperly heard ineffective-assistance assertions at the motion-to-dismiss-counsel hearing	Smith contends the court considered postconviction-type ineffective-assistance claims at that hearing	Record shows the April 8 hearing was on the motion to dismiss counsel; the court declined to address postconviction claims and Smith made no contemporaneous objection	Denied — no error; hearing properly limited to counsel-dismissal issues
Plain error permeates the record	Smith claims pervasive plain error affecting substantial rights	Court reviewed asserted errors and found no uncorrected, prejudicial error after rejecting Smith’s claims	Denied — no plain error found

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong test for ineffective assistance: deficient performance and prejudice)
State v. Smith, 282 Neb. 720 (2011) (addressed mens rea and lesser-included instruction issues relevant to sudden quarrel/voluntary manslaughter)
State v. Smith, 284 Neb. 636 (2012) (further review holding trial court had no sua sponte duty to instruct absent a request but ordering new trial under plain error for murder-related count)
State v. Sellers, 290 Neb. 18 (2015) (procedural-bar principles for trial-counsel claims and analysis of appellate counsel ineffectiveness)
State v. Thorpe, 290 Neb. 149 (2015) (explains Strickland standard as applied in Nebraska and postconviction evidentiary-hearing thresholds)