State v. Combs

S
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/05/2021 09:07 AM CST




                                                        - 587 -
                               Nebraska Supreme Court Advance Sheets
                                        308 Nebraska Reports
                                                   STATE v. COMBS
                                                  Cite as 

308 Neb. 587



                                        State of Nebraska, appellee, v.
                                         Patrick J. Combs, appellant.
                                                    ___ N.W.2d ___

                                          Filed March 5, 2021.    No. S-20-335.

                 1. Effectiveness of Counsel: Appeal and Error. Appellate review of a
                    claim of ineffective assistance of counsel is a mixed question of law and
                    fact. When reviewing a claim of ineffective assistance of counsel, an
                    appellate court reviews the factual findings of the lower court for clear
                    error. With regard to the questions of counsel’s performance or prejudice
                    to the defendant as part of the two-pronged test articulated in Strickland
                    v. Washington, 

466 U.S. 668

, 

104 S. Ct. 2052

, 

80 L. Ed. 2d 674

(1984),
                    an appellate court reviews such legal determinations independently of
                    the lower court’s decision.
                 2. Postconviction: Evidence. In an evidentiary hearing on a motion for
                    postconviction relief, the trial judge, as the trier of fact, resolves con-
                    flicts in the evidence and questions of fact.
                 3. Postconviction: Constitutional Law. Postconviction relief is a very
                    narrow category of relief, available only to remedy prejudicial constitu-
                    tional violations that render the judgment void or voidable.
                 4. Postconviction: Effectiveness of Counsel: Appeal and Error. To
                    establish a right to postconviction relief based on a claim of ineffec-
                    tive assistance of counsel, the defendant has the burden, in accordance
                    with Strickland v. Washington, 

466 U.S. 668

, 

104 S. Ct. 2052

, 80 L.
                    Ed. 2d 674 (1984), to show that counsel’s performance was deficient;
                    that is, counsel’s performance did not equal that of a lawyer with ordi-
                    nary training and skill in criminal law. Next, the defendant must show
                    that counsel’s deficient performance prejudiced the defense in his or
                    her case.
                 5. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and
                    Error. After a trial, conviction, and sentencing, if counsel deficiently
                    fails to file or perfect an appeal after being so directed by the criminal
                    defendant, prejudice will be presumed and counsel will be deemed inef-
                    fective, thus entitling the defendant to postconviction relief.
                                   - 588 -
           Nebraska Supreme Court Advance Sheets
                    308 Nebraska Reports
                             STATE v. COMBS
                            Cite as 

308 Neb. 587

 6. Effectiveness of Counsel: Appeal and Error. Where the defendant
    has provided specific instructions to his or her counsel to file a notice
    of appeal, counsel’s failure to follow those instructions is deficient
    performance. On the other hand, where the defendant has explicitly
    instructed his or her counsel not to file an appeal, the defendant cannot
    later complain that, by following his or her instructions, counsel per-
    formed deficiently.
 7. Effectiveness of Counsel: Intent: Appeal and Error. Where the
    defend­ant has not conveyed his or her intent with respect to an appeal
    either way, it must first be determined whether trial counsel consulted
    with the defendant about the appeal before a determination can be made
    about deficient performance.
 8. Effectiveness of Counsel: Appeal and Error: Words and Phrases. In
    the context of a claim of ineffectiveness of counsel, the term “consult”
    means advising the defendant about the advantages and disadvantages of
    taking an appeal and making a reasonable effort to discover the defend­
    ant’s wishes.
 9. Effectiveness of Counsel: Appeal and Error. If counsel has consulted
    with the defendant, then counsel performed deficiently only by failing to
    follow the defendant’s express instructions regarding an appeal.

  Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
   Candice C. Wooster, of Brennan & Nielsen Law Offices,
P.C., for appellant.
   Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
Funke, JJ.
  Heavican, C.J.
                        INTRODUCTION
   Patrick J. Combs appeals from the district court’s denial, fol-
lowing an evidentiary hearing, of his motion seeking postcon-
viction relief. In that motion, Combs alleged that his counsel
was ineffective for failing to file a direct appeal when directed
to do so. We affirm.
                               - 589 -
          Nebraska Supreme Court Advance Sheets
                   308 Nebraska Reports
                          STATE v. COMBS
                         Cite as 

308 Neb. 587

                         BACKGROUND
   Combs was convicted in March 2018 for one count of theft
by unlawful taking, one count of attempted theft by unlawful
taking, and one count of abuse of a vulnerable adult. On May
14, he was sentenced to 5 years’ probation. No direct appeal
was filed.
   Combs subsequently filed a motion seeking postconviction
relief, alleging that his trial counsel was ineffective for failing
to file an appeal. An evidentiary hearing was held on Combs’
motion on the question of whether counsel was ineffective
for failing to file an appeal. At that hearing, depositions
of both Combs and his trial counsel, Robert Creager, were
offered into evidence. Those depositions reveal the following
timeline relevant to the issues raised by Combs’ postconvic-
tion motion.
   On May 15, 2018, Creager emailed a billing statement to
Combs. In his email, Creager stated that “[w]ith 20K still in
trust, the balance due would be around $16k. I would accept
a $5k discount if we do the appeal for a flat fee of $10k. The
[$]5k would be payable now, and the $10K would be payable
when the Appellant’s brief date is set.”
   On May 29, 2018, Combs emailed Creager, indicating that
he was “inclined to pursue an appeal,” but that his wife had
reservations. Combs then asked several questions relating to
the appeal. Combs ended the email by stating that “[w]e are
sending you $5000 this week. Our schedule is pretty hectic this
week[,] and we will be out of town next week[,] so coming
down to your office might be tough, but we can certainly talk
by phone when you are available.”
   Combs and Creager agree that they spoke on June 8, 2018.
Combs testified that during the conversation, he told Creager
that he wanted to appeal. Combs indicated in his deposition
that after telling Creager to appeal, he and his wife “cele­
brated” that decision.
   Conversely, Creager testified that he received no direc-
tion to appeal during that call, but simply answered more
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         Nebraska Supreme Court Advance Sheets
                  308 Nebraska Reports
                         STATE v. COMBS
                        Cite as 

308 Neb. 587

questions regarding the appeal process, including informing
Combs that he could file the appeal and later withdraw it if
he no longer wanted to pursue the appeal. Creager alleges that
he ended the conversation by asking Combs to let him know
by the following Monday, June 11, 2018, whether he wanted
to appeal and that he, Creager, checked his email and phone
messages multiple times on that Monday to ensure he did not
miss a message from Combs. Receiving none, Creager did not
file an appeal.
   A check for $5,000 was apparently received by the book-
keeper at Creager’s law firm on June 11, 2018, though Creager
testified that he had no personal knowledge of its receipt.
Neither the check, nor a copy of the canceled check, is part of
our record.
   Combs contacted Creager on June 14, 2018, the day after the
appeal deadline had passed, to ask whether the appeal had been
filed. Combs subsequently filed this postconviction motion.
   Following the hearing, the district court denied the motion
for postconviction relief. In so doing, it made findings of fact
that it believed Creager’s testimony over Combs’ testimony,
both because it found Creager more credible than Combs
and because Combs’ wife offered no testimony corroborating
Combs’ assertion that she was aware Creager had been directed
to file an appeal. The district court further rejected Combs’
claim that Creager had an obligation to confirm his belief that
Combs did not want to pursue an appeal. It found that the pay-
ment of $5,000, particularly on the facts presented, did not
support an express direction to Creager that an appeal should
be filed on Combs’ behalf.
   Combs appeals.

                 ASSIGNMENT OF ERROR
   On appeal, Combs assigns three assignments of error that
can be consolidated as one: The district court erred in find-
ing that counsel was not ineffective by failing to file a direct
appeal.
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            Nebraska Supreme Court Advance Sheets
                     308 Nebraska Reports
                              STATE v. COMBS
                             Cite as 

308 Neb. 587

                    STANDARD OF REVIEW
   [1,2] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. 1 When reviewing
a claim of ineffective assistance of counsel, an appellate court
reviews the factual findings of the lower court for clear error. 2
With regard to the questions of counsel’s performance or preju-
dice to the defendant as part of the two-pronged test articulated
in Strickland v. Washington, 3 an appellate court reviews such
legal determinations independently of the lower court’s deci-
sion. 4 In an evidentiary hearing on a motion for postconviction
relief, the trial judge, as the trier of fact, resolves conflicts in
the evidence and questions of fact. 5
                           ANALYSIS
   Combs assigns that the district court erred in not finding
that his counsel was ineffective for failing to file a direct
appeal. He makes three arguments in support of this conclu-
sion: (1) that counsel erred in not filing an appeal when he
was requested to do so, (2) that counsel erred in not following
up with Combs regarding the filing of an appeal, and (3) that
counsel erred in failing to appeal even after receiving payment
for such an appeal.
   [3-5] Postconviction relief is a very narrow category of
relief, available only to remedy prejudicial constitutional
violations that render the judgment void or voidable. 6 To
establish a right to postconviction relief based on a claim of
ineffective assistance of counsel, the defendant has the bur-
den, in accordance with Strickland, 7 to show that counsel’s
1
    State v. Dalton, 

307 Neb. 465

, 

949 N.W.2d 752

(2020).
2

Id. 3

    Strickland v. Washington, 

466 U.S. 668

, 

104 S. Ct. 2052

, 

80 L. Ed. 2d 674

    (1984).
4
    State v. Dalton, supra note 1.
5

Id. 6


Id. 7

    Strickland v. Washington, supra note 3.
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             Nebraska Supreme Court Advance Sheets
                      308 Nebraska Reports
                              STATE v. COMBS
                             Cite as 

308 Neb. 587

perform­ance was deficient; that is, counsel’s performance did
not equal that of a lawyer with ordinary training and skill in
criminal law. Next, the defendant must show that counsel’s
deficient performance prejudiced the defense in his or her
case. 8 After a trial, conviction, and sentencing, if counsel
deficiently fails to file or perfect an appeal after being so
directed by the criminal defendant, prejudice will be pre-
sumed and counsel will be deemed ineffective, thus entitling
the defendant to postconviction relief. 9
   [6] Where the defendant has provided specific instructions
to his or her counsel to file a notice of appeal, counsel’s failure
to follow those instructions is deficient performance. 10 On the
other hand, where the defendant has explicitly instructed his
or her counsel not to file an appeal, the defendant cannot later
complain that, by following his or her instructions, counsel
performed deficiently. 11
   [7-9] Where the defendant has not conveyed his or her
intent with respect to an appeal either way, it must first be
determined whether trial counsel consulted with the defendant
about the appeal before a determination can be made about
deficient performance. 12 In this context, the term “consult”
means advising the defendant about the advantages and dis­
advantages of taking an appeal and making a reasonable effort
to discover the defendant’s wishes. 13 If counsel has consulted
with the defendant, then counsel performed deficiently only
by failing to follow the defendant’s “express instructions”
regarding an appeal. 14
 8
     State v. Dalton, supra note 1.
 9

Id. 10

     See Roe v. Flores-Ortega, 

528 U.S. 470

, 

120 S. Ct. 1029

, 

145 L. Ed. 2d 985

(2000).
11
     See

id. 12

     See

id. 13


Id. 14

     See

id., 528

U.S. at 478.
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              Nebraska Supreme Court Advance Sheets
                       308 Nebraska Reports
                                STATE v. COMBS
                               Cite as 

308 Neb. 587

Failing to File Appeal Upon
Request to Do So.
   Combs first asserts that he instructed Creager to file an
appeal during their telephone conversation on June 8, 2018,
and that Creager was ineffective for failing to do so.
   In an evidentiary hearing for postconviction relief, the post-
conviction trial judge, as the trier of fact, resolves conflicts
in the evidence and questions of fact, including witness cred-
ibility and the weight to be given a witness’ testimony. 15 And
when reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court
for clear error. 16
   Combs and Creager are in agreement that they spoke about
a possible appeal on June 8, 2018. Their testimonies differ in
that Combs testified he told Creager he wanted to appeal, while
Creager testified that Combs said he still needed to talk with
his wife about it.
   The record demonstrates there was a conflict between
Combs’ testimony that he directed Creager to appeal and
Creager’s testimony that he received no such direction. In this
instance, the district court explicitly found Creager’s testimony
to be more credible.
   Having reviewed the record, and given deference to the
district court’s findings of fact, we find no clear error in the
court’s findings. Creager was not deficient in failing to file
an appeal that the district court determined Creager was not
directed to file. Combs’ argument to the contrary is with-
out merit.
Failing to Follow Up Regarding
Filing of Appeal.
   Combs next argues that Creager was ineffective in failing
to follow up with him regarding whether he wished to file
an appeal.
15
     State v. Dalton, supra note 1.
16

Id. – 594 –

             Nebraska Supreme Court Advance Sheets
                      308 Nebraska Reports
                               STATE v. COMBS
                              Cite as 

308 Neb. 587

   We addressed similar facts in State v. Dalton. 17 There, the
defendant argued that his counsel was ineffective, not only
by failing to file a direct appeal, but also by failing to obtain
an “explicit directive” from defendant regarding an appeal. 18
We rejected such a burden on trial counsel, noting that “[i]t is
simply not under defense counsel’s power to force a client to
provide an explicit response to inquiries regarding the client’s
right to appeal.” 19
   Here, Combs argues that Creager should have followed up
with him between June 8 and 13, 2018, to determine whether
Combs wanted to appeal. The record shows that Combs and
Creager had multiple conversations, even prior to his sentenc-
ing, regarding a possible appeal and that Combs kept putting
off the decision, asking more questions, and indicating that
his wife needed to be convinced. The district court found as
credible Creager’s testimony that because the deadline was
approaching, he told Combs to let him know by June 11 if he
wanted to file an appeal.
   These facts show the difficulty with placing such a burden
on defense counsel. As we recognized in Dalton, it is not
within counsel’s power to force a defendant to give an explicit
response on the issue of an appeal. 20 U.S. Supreme Court
case law explains that the failure to file an appeal after one
is requested is deficient conduct and that the failure to file an
appeal after being told the defendant did not wish to appeal is
not deficient conduct. 21 In such instances where no direction is
given, as is the situation presented here, counsel must con-
sult with the defendant as to the topic of an appeal, which
includes “advising the defendant about the advantages and
17

Id. 18


Id. at 472, 949

N.W.2d at 758.
19

Id. 20

     State v. Dalton, supra note 1.
21
     See Roe v. Flores-Ortega, supra note 10.
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              Nebraska Supreme Court Advance Sheets
                       308 Nebraska Reports
                              STATE v. COMBS
                             Cite as 

308 Neb. 587

disadvantages of taking an appeal, and making a reasonable
effort to discover the defendant’s wishes.” 22
    In this case, there is no dispute that Creager consulted with
Combs about Combs’ right to appeal and that Combs was to
contact Creager in order to ensure that an appeal was filed.
It was Combs’ responsibility to request that Creager file an
appeal. As we noted above, the district court found that Combs
made no such request.
    There is no merit to Combs’ argument that Creager was
deficient in failing to follow up with Combs with respect to the
filing of an appeal.

Failing to Appeal After Receipt
of Payment for Appeal.
   Finally, Combs argues that Creager had notice Combs
wished to file an appeal, because Combs paid $5,000 for an
appeal, and that the failure to file the appeal after accepting
payment was deficient performance.
   As an initial matter, despite Combs’ assertion to the contrary,
the record is not clear that the $5,000 paid by Combs was for
payment of an appeal. The emails between Combs and Creager
regarding payment are not clear in stating that $5,000 was due
for the filing of a notice of appeal. A copy of the check is not
part of the record such that it might indicate on its face that the
check was for an appeal.
   Moreover, Combs indicated in a May 29, 2018, email that
he would be sending a check for $5,000. But by his own tes-
timony, Combs did not inform Creager until June 8 that he
wished to appeal. Given this evidence and our standard of
review, the trial court’s finding of facts regarding the $5,000
payment are not clear error.
   The record establishes that Creager consulted with Combs
about the appeal. In such an instance, only the failure to com-
ply with the “express instructions” given by Combs would
22

Id., 528

U.S. at 478.
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               Nebraska Supreme Court Advance Sheets
                        308 Nebraska Reports
                           STATE v. COMBS
                          Cite as 

308 Neb. 587

constitute deficient conduct. 23 The payment of     $5,000, par-
ticularly under the facts as noted above, did not   qualify as an
express instruction.
   Creager was not deficient in failing to file a   direct appeal
based upon the payment of $5,000 by Combs.          Combs’ final
argument is without merit.

                         CONCLUSION
  The order of the district court dismissing Combs’ motion for
postconviction relief is affirmed.
                                                  Affirmed.
  Papik and Freudenberg, JJ., not participating.
23
     See id.

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