State v. DerrState v. Derr
Effectiveness of Counsel: Records: Appeal and Error. It is thе responsibility of the appellate courts to determine whether the record presented on direct appeal is sufficient to address the claims of ineffective assistance of trial counsel when appellate counsel is different from trial counsel. - Effectiveness of Counsel: Proof. In order to prevail on an ineffective assistance of counsel claim, a defendant must show that his or her counsel‘s performance was deficient and that he or she was prejudiced by that deficient performance.
Appeal from the District Court for Buffalo County: JOHN P. ICENOGLE, Judge. Affirmed.
D. Brandon Brinegar, Deputy Buffalo County Public Defender, of Ross, Schroeder & George, L.L.C., for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
IRWIN, MOORE, and CASSEL, Judges.
IRWIN, Judge.
I. INTRODUCTION
This direct appeal involves issues of ineffective assistance of trial counsel. Appellate counsel is different from trial counsel. In the brief of David A. Derr, he asks that this court “find the record to be insufficient to allow [his] assigned errors to be addressed on direct appeal, and that [his] clаims of ineffective assistance of counsel are preserved for postconviction review.” Brief for appellant at 11. Derr‘s brief also states, “Essentially, [hе] has no argument on direct appeal.” Id. at 7.
[1] It is the responsibility of the appellate courts to determine whether the record presented on direct aрpeal is sufficient to address the claims of ineffective assistance of trial counsel when appellate counsel is different from trial counsel. Therefоre, since Derr presumed the record was inadequate for review of these issues and failed to allege that any of counsel‘s actions prejudiced him or, stаted another way, did not sufficiently allege his ineffective assistance of counsel claims, we are constrained to find that Derr‘s assertions of ineffective assistаnce of counsel are without merit.
II. BACKGROUND
The underlying facts of this case are undisputed. In September 2009, Derr‘s 12-year-old daughter reported to police that Derr
III. ASSIGNMENT OF ERROR
Derr asserts that he was denied effective assistance of trial counsel.
IV. STANDARD OF REVIEW
Claims of ineffective assistance of counsel raised for the first time on direct appeal dо not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. State v. McDaniel, 17 Neb. App. 725, 771 N.W.2d 173 (2009). When the issue has not been raised or ruled оn at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeаl. Id.
V. ANALYSIS
On appeal, Derr argues that he was denied his right to effective assistance of counsel because of his trial counsel‘s failure to (1) inform Derr that he could move to withdraw his no contest plea prior to the sentencing hearing, (2) adequately review the contents of the presentence report with Derr prior to the sentencing hearing, and (3) inform Derr that he could ask that the sentencing hearing be continued in order to obtain further evidence and/or expert witnesses. Derr acknоwledges that his assertions are being raised for the first time on direct appeal and recognizes that the issues may not be ripe for resolution on appeal because of the lack of an evidentiary record.
Derr is also clearly aware of the rule that where appellate counsel is different from trial сounsel, a defendant must raise on direct appeal any issue of ineffective assistance of trial counsel which is known to the defendant or is apparent
[2] The analysis section of Derr‘s brief is limited to his general argument that his trial counsel provided ineffective assistance and a brief recitation of how his counsel‘s performance was deficient. Derr does not allege how any of trial counsel‘s actions prejudiced him. In order tо prevail on an ineffective assistance of counsel claim, a defendant must show that his or her counsel‘s performance was deficient and that he or shе was prejudiced by that deficient performance. State v. Thomas, 278 Neb. 248, 769 N.W.2d 357 (2009). Because Derr did not allege both that his counsel‘s performance was deficient and that such deficiеnt performance was prejudicial to him, resolution of his assertions of ineffective assistance of counsel hinges not on the adequacy of the record before us, but on his failure to provide this court with sufficient allegations of ineffective assistance of counsel.
1. WITHDRAWAL OF NO CONTEST PLEA
Derr alleges that his trial counsel was ineffective because counsel failed to inform him that he could withdraw his no contest plea prior to the sentencing hearing. Derr does not allege any possible grounds or reasons for the withdrawal of his plea. The right to withdraw a plea previously entered is not absolute. State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010). Because Derr does not allege the grounds for a withdrawаl of his plea, he cannot demonstrate that a motion to withdraw the plea would have been successful. Thus, he cannot demonstrate that he was prejudicеd by his counsel‘s failure to advise him that he could withdraw his plea. This assertion has no merit.
Derr alleges that his trial counsel was ineffective because counsel failеd to adequately review the contents of the presentence report with Derr prior to the sentencing hearing. The record reveals that Derr‘s trial counsel did review the presentence report prior to the trial. In fact, at the sentencing hearing, counsel spoke at length about the information contained in thе report. The record does not indicate whether Derr‘s trial counsel reviewed the report with Derr. However, even if his counsel did fail to review the report with him, Dеrr has not alleged how he was prejudiced by counsel‘s actions. Specifically, Derr has not alleged how the ultimate outcome of the sentencing hearing would have been different had he had the opportunity to review the report with counsel. This assertion has no merit.
3. MOTION TO CONTINUE SENTENCING HEARING
Derr alleges that his trial counsel was ineffective bеcause he failed to inform Derr that he could ask that the sentencing hearing be continued in order to obtain further evidence and/or expert witnesses. Derr does not specify what other evidence or witnesses he could have called at the sentencing hearing if granted a continuance. Moreover, he does not allege what any additional evidence or testimony would have shown or whether it would have altered the outcome of the sentencing hearing. Because Dеrr does not specifically allege what other evidence or testimony he would have presented at the sentencing hearing, he cannot demonstrate thаt he was prejudiced by his counsel‘s failure to inform him that the sentencing hearing could be continued. This assertion has no merit.
VI. CONCLUSION
Derr has not shown that he was prejudiced by his trial сounsel‘s alleged deficient performance. As such, we reject his assigned error that his counsel was ineffective, and we affirm his conviction and sentence.
AFFIRMED.