286 Neb. 83 | Neb. | 2013
N ebraska a dvaNce s heets
STATE v . BRANCH 83 Cite as 286 Neb. 83
district court will not be disturbed unless they are clearly erroneous. State v. Robinson , 285 Neb. 394, 827 N.W.2d 292 (2013). “The entry of filing by the clerk is the best evidence of the date of filing and is presumed to be correct until the contrary is shown.” State v. Hess , 261 Neb. 368, 37778, 622 N.W.2d 891, 901 (2001). The district court’s finding that Smith filed his motion outside the 1year period was not clearly erroneous.
VI. CONCLUSION The district court did not err in denying postconviction relief without an evidentiary hearing. We affirm the judgment of the district court.
a ffirmed . s tate of N ebraska , appeLLee , v . J ames L. b raNch , appeLLaNt . ___ N.W.2d ___ Filed June 14, 2013. No. S121010. 1. Postconviction: Constitutional Law: Appeal and Error. In appeals from post conviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief.
2. Postconviction: Constitutional Law: Judgments: Proof. An evidentiary hear ing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant’s rights under the Nebraska or federal Constitution, causing the judgment against the defendant to be void or voidable.
3. Postconviction. An evidentiary hearing is not required when a motion for post conviction relief alleges only conclusions of fact or law. 4. Postconviction: Constitutional Law: Judgments: Proof. If a defendant makes sufficient allegations of a constitutional violation which would render a judg ment void or voidable, an evidentiary hearing on a motion for postconviction relief may be denied only when the records and files affirmatively show that the defend ant is entitled to no relief.
Appeal from the District Court for Douglas County: w. m ark a shford , Judge. Affirmed in part, and in part reversed and remanded for further proceedings.
N ebraska a dvaNce s heets 84 286 NEBRASKA REPORTS Sean M. Conway, of Dornan, Lustgarten & Troia, P.C., L.L.O., for appellant. Jon Bruning, Attorney General, and George R. Love for appellee. h eavicaN , c.J., w right , s tephaN , m c c ormack , and c asseL , JJ. h eavicaN , c.J.
INTRODUCTION
James L. Branch’s motion for postconviction relief was denied without an evidentiary hearing. He appeals. We con clude that Branch is entitled to an evidentiary hearing on his allegation regarding potential alibi evidence and accord ingly reverse the district court’s denial of a hearing. As to Branch’s other allegations, however, we affirm the district court’s judgment.
BACKGROUND
In March 2008, Branch was charged by amended informa tion with robbery, first degree false imprisonment, and kid napping. At his jury trial, Branch testified in his own behalf that he was not present during the alleged crimes. Following the conclusion of his trial, Branch was convicted of rob bery and kidnapping, and the false imprisonment charge was dismissed. He was sentenced to 40 to 50 years’ imprison ment for robbery and life imprisonment for kidnapping; this court affirmed. [1]
In April 2011, Branch filed a pro se motion for postconvic tion relief. He was appointed counsel, and an amended motion for postconviction relief was filed. That motion alleged that trial and appellate counsel were the same and that this counsel was ineffective as follows:
a. Trial counsel was aware [Branch] claimed not to be present during the incident and did not commit the crimes charged but failed to call witnesses on [Branch’s] behalf, such as Laqu[e]sha Martin, who would testify [Branch] [1] State v. Branch , 277 Neb. 738, 764 N.W.2d 867 (2009). N ebraska a dvaNce s heets STATE v . BRANCH 85 Cite as 286 Neb. 83
was not present during the incident and did not commit the crimes charged;
b. Trial counsel failed to use an investigator to dis cover additional witnesses and/or evidence that tended to establish that [Branch] was not present during the incident and did not commit the crimes charged even though [Branch] provided trial counsel with information in this regard;
c. Trial counsel knew there were latent fingerprints from the crime scene, but did not request for indepen dent scientific evaluation of any and all lifts of latent fingerprints;
d. Trial counsel knew there was blood or suspected blood samples, but did not request for independent scien tific evaluation of any and all blood or suspected blood samples; and
e. Trial counsel failed to consult with [Branch] regard ing critical aspects of the case, e.g., calling or not calling witnesses vital to the defense, theory of the defense, and final argument.
Branch further alleged that he was prejudiced by this deficient performance because:
a. The lack of additional defense witnesses and expert testimony regarding the physical evidence unfairly preju diced the jury against [Branch] and his theory of defense;
b. Consultation with [Branch] regarding potential defense witnesses, expert testimony, and trial strategy would have resulted in a stronger defense at trial and would have produced a different result at trial; and
c. There is a reasonable probability that but for trial counsel’s deficient performance the results of the trial would have been different.
The district court denied Branch’s motion without an evi dentiary hearing. Branch appeals.
ASSIGNMENT OF ERROR
Branch assigns that the district court erred in failing to grant an evidentiary hearing on his motion for postconvic tion relief.
N ebraska a dvaNce s heets 86 286 NEBRASKA REPORTS
STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel late court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirma tively show that the defendant is entitled to no relief. [2]
ANALYSIS
[24] In his sole assignment of error, Branch asserts that the district court erred in failing to grant him an evidentiary hearing. An evidentiary hearing on a motion for postconvic tion relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringe ment of the movant’s rights under the Nebraska or federal Constitution, causing the judgment against the defendant to be void or voidable. [3] An evidentiary hearing is not required when the motion alleges only conclusions of fact or law. [4] If the defendant makes sufficient allegations of a constitutional violation which would render the judgment void or voidable, an evidentiary hearing may be denied only when the records and files affirmatively show that the defendant is entitled to no relief. [5] Alibi Testimony.
We turn first to Branch’s argument that the district court erred in failing to grant an evidentiary hearing on his allegation that his trial counsel was ineffective for failing to present alibi evidence in the form of Laquesha Martin’s testimony.
As is set forth above, Branch alleged that trial counsel was aware of Branch’s alibi defense and further alleged that Martin would testify that Branch was not present during the inci dent and did not commit the crimes charged. Standing alone, these allegations are insufficient to support the granting of an [2] State v. Edwards , 284 Neb. 382, 821 N.W.2d 680 (2012). [3] State v. Poe , 284 Neb. 750, 822 N.W.2d 831 (2012). [4] Id. [5] Id.
N ebraska a dvaNce s heets STATE v . BRANCH 87 Cite as 286 Neb. 83
evidentiary hearing, because they do not specifically allege that Martin would provide an alibi for Branch.
Given the restrictions of the Nebraska Postconviction Act, [6] those seeking postconviction relief ought to plead any and all allegations with as much detail as possible in order to avoid the dismissal of their motion without an evidentiary hearing. But in this case, an otherwise vague allegation is made sufficiently clear upon review of the record.
At trial, Branch testified in his own behalf. In that testi mony, Branch stated that on the date of the robbery, he was asleep until just prior to either 11 a.m. or 2 p.m., at which time he picked up Martin from work. Branch explained that he was uncertain about the time because Martin had been working a lot of overtime and he was unsure about whether she worked overtime on that day. In any event, Branch testi fied that after he picked Martin up, he and Martin drove to the home of a friend of Branch’s who was keeping Branch’s dog. Branch estimated that they were gone about 1 [1] ⁄ [2] hours before returning to the apartment they shared. Upon returning to their apartment, the two met with Paul Miller. Miller had in his possession a credit card, and he asked Branch if he would go around town with Miller and fill up gas tanks. We note that this timeline, while vague, is not obviously inconsistent with the victim’s testimony regarding the robbery, which is also somewhat vague.
When the allegations regarding Martin’s proposed testimony are considered in conjunction with Branch’s trial testimony, they are sufficient to warrant the granting of an evidentiary hearing. The allegations in Branch’s motion state that Martin would testify that Branch was not present during the incident and did not commit the crimes charged. And Branch testi fied that he was with Martin. A logical reading of both sug gests that Martin would testify that Branch was not present and did not commit the crimes charged because he was with Martin. As such, Branch is entitled to an evidentiary hearing on this allegation. [6] Neb. Rev. Stat. § 293001 et seq. (Reissue 2008 & Cum. Supp. 2012).
N ebraska a dvaNce s heets 88 286 NEBRASKA REPORTS Remaining Allegations.
Branch also alleges that his counsel was ineffective for fail ing to use an investigator to discover additional witnesses, for failing to consult with Branch on critical aspects of the case, and for failing to order independent testing of fingerprint and blood evidence.
While Branch is entitled to an evidentiary hearing on the question of the ineffectiveness of his trial counsel with regard to a potential alibi witness, the remainder of his allegations are merely conclusory and insufficient to warrant postconvic tion relief. Branch fails to allege what other witnesses might be called or what their testimony might be. In addition, he fails to allege what specifically would have been different about these “critical aspects of the case” if only he had been consulted by trial counsel. And Branch fails to set forth any prejudice that would result from independent analyses of fin gerprint and blood evidence when nothing at trial suggested that this evidence in any way implicated Branch, and where there were other perpetrators of the crimes in addition to Branch. Thus, Branch is not entitled to an evidentiary hearing on these allegations.
CONCLUSION
We reverse the district court’s denial of Branch’s request for an evidentiary hearing regarding trial counsel’s alleged inef fectiveness in failing to present Martin’s alibi testimony. We otherwise affirm the denial of Branch’s request. The judgment of the district court is affirmed in part and in part reversed, and the cause remanded for further proceedings.
a ffirmed iN part , aNd iN part reversed aNd remaNded for further proceediNgs .
c oNNoLLy and m iLLer -L ermaN , JJ., participating on briefs.