State of Nebraska v. Andrea E. Moffatt

Omaha, Nebraska criminal defense lawyer represented the Defendant seeking post-conviction relief.



In January 2021, pursuant to a plea agreement, Moffatt pled no contest to two counts of attempted possession of a deadly weapon by a prohibited person, each a Class II felony. She was sentenced to 14 to 18 years' imprisonment on each count, to be served concurrently with one another, but consecutively to the sentence imposed in a separate case.





Following her convictions and imposition of the sentences, Moffatt, who was represented by new counsel, filed a direct appeal. See State v. Moffatt, No. A-21-170, 2021 WL 4534057 (Neb.App. Oct. 5, 2021) (not designated for permanent publication) (Moffatt I). On appeal, Moffatt argued that (1) she did not voluntarily, knowingly, and intelligently waive her right to an updated presentence report prior to sentencing; (2) the district court erred in imposing an excessive sentence, and (3) her trial counsel provided ineffective assistance in allowing her to proceed to sentencing without the benefit of an updated presentence report. In an opinion affirming Moffatt's convictions and sentences, this court found that Moffatt had knowingly and intelligently waived her right to an updated presentence report; that the district court did not abuse its discretion in sentencing her; and that Moffatt was not prejudiced by trial counsel's decision to allow her to proceed to sentencing without an updated presentence report. The mandate issued on November 15, 2021.



On November 4, 2022, Moffatt filed a motion for postconviction relief in the district court. She later filed an amended motion for postconviction relief in March 2023. This amended motion is the operative motion in this case. In the amended motion, Moffatt alleges that her trial counsel provided her with ineffective assistance in numerous ways. She also alleges that appellate counsel "provided ineffective assistance by failing to meet with her and discuss the ineffective assistance of trial counsel so as to effectively set out those complaints in her appellate brief." Finally, Moffatt alleges that the combined effect of the ineffective assistance of her trial counsel and appellate counsel required reversal of her convictions and sentences.



In October 2023, the district court entered an order denying Moffatt's amended motion for postconviction relief without an evidentiary hearing. In the order, the court found that Moffatt's trial counsel did not provide her with ineffective assistance and, as a result, her appellate counsel did not provide ineffective assistance in failing to raise the claims regarding trial counsel on direct appeal. In so finding, the district court questioned whether Moffatt had properly raised the "layered ineffective assistance of counsel claims" in her motion for postconviction relief. Ultimately the court determined the claims of ineffective assistance of appellate counsel were "sufficient" to warrant review.



* * *



Legal issue Was the appellant entitled to an evidentiary hearing for claims of ineffective assistance of trial and appellate counsel in a postconviction relief motion?



Key Phrases Postconviction relief denial. Ineffective assistance of counsel. Procedurally barred claims. Excessive sentence allegation. Direct appeal review.

Affirmed