STATE OF NEBRASKA V. THOMAS R. JONES

Lincoln, NE - Criminal defense attorney represented Thomas R. Jones with appealing the order of the district court for Douglas County overruling his motion for postconviction relief following an evidentiary hearing.

In July 2011, Jones entered no contest pleas to and was convicted of first degree assault,

second degree assault, and use of a deadly weapon to commit a felony. Jones was sentenced to

terms of 20 to 20 years' imprisonment on each of the assault convictions and 10 to 10 years'

imprisonment on the weapon charge. The district court ordered all three sentences to be served

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consecutively. The background of this case is summarized in Jones' direct appeal heard by this

court. See State v. Jones, No. A-11-852, 2012 WL 2199128 (Neb. App. Jun. 12, 2012) (selected

for posting to court website) (Jones I).

On direct appeal and represented by different counsel, Jones argued that the district court's

oral pronouncement of sentences differed from the court's written pronouncement of sentences;

that his sentences were excessive; and that he received ineffective assistance of trial counsel. See

id. With respect to his claim of ineffective assistance of counsel, Jones alleged that his trial counsel

"'pressured him to enter into the plea agreement'” and made misrepresentations about the possible

penalties Jones faced. Id. at *5. This court found no merit to Jones' arguments concerning his

sentences, but found that the record on direct appeal was insufficient to address Jones' ineffective

assistance of counsel claim. Id.

After this court affirmed his convictions and sentences, Jones filed a pro se motion for

postconviction relief in the district court. In that motion, Jones presented three arguments. First,

Jones argued that he "was deprived of effective assistance of counsel when appellate counsel failed

to assign numerous errors made throughout the criminal prosecution by defense counsel and the

court, where such errors caused substantial prejudice to [him] and by any objectively reasonable

standard amount to deficient performance constituting ineffective assistance of counsel.” In

support of this argument, Jones asserted that his trial counsel performed ineffectively in a variety

of ways, including by not sufficiently investigating the case and in providing improper advice to

Jones regarding the State's plea offer. Second, Jones argued that the district court imposed an

unlawful sentence. Third, Jones argued that his appellate counsel was ineffective for failing to

raise on appeal issues concerning the unlawful nature of the sentences imposed by the district

court.

The district court denied the entirety of Jones' postconviction motion without an

evidentiary hearing. Jones then appealed the district court's order to this court. See State v. Jones,

No. A-14-164, 2015 WL 1858863 (Neb. App. Apr. 21, 2015) (selected for posting to court website)

(Jones II). In Jones II, this court found no merit to Jones' assertions regarding the district court's

ruling on his postconviction claims related to his sentences or to the effectiveness of appellate

counsel. However, we found merit to Jones' assertion regarding the effectiveness of his trial

counsel, noting that while Jones' postconviction motion was "inartfully presented,” "a reasonable

reading of the motion includes assertions that his trial counsel was ineffective in ways that were

raised by his appellate counsel on direct appeal,” which related to "[trial] counsel's advice that

Jones enter into a plea agreement.” Id. at *3. Accordingly, this court reversed the district court's

order and remanded the cause to the district court with directions to hold an evidentiary hearing

on that single claim. Jones II, supra.

Following remand, the district court appointed counsel to represent Jones, and Jones moved

to file an amended motion for postconviction relief. The district court denied Jones' motion to

amend. Jones then filed a motion to alter or amend the district court's judgment, and the district

court denied Jones' motion on the ground that the court was "confined to the mandate.”

On August 29, 2019, an evidentiary hearing was held. Jones offered into evidence his own

deposition as well as the deposition of trial counsel. Jones additionally offered the live testimony

of his fiance. The State offered into evidence the depositions of the victims in this case, which

Jones' trial counsel had conducted prior to the entry of Jones' no contest pleas.

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After the evidentiary hearing, the district court denied Jones' request for postconviction

relief. In a written order, the court found that Jones' trial counsel had not made any promises to

Jones regarding the sentences he would receive if he entered pleas, and the court further found that

Jones' trial counsel had conducted a reasonable investigation before advising Jones to enter his

pleas. The district court found that Jones had failed to prove prejudice "in light of the plea

agreement and the strength of the evidence he was facing had he gone to trial.”

Jones now appeals the district court's order denying his motion for postconviction relief,

represented by new counsel.

ASSIGNMENTS OF ERROR

Jones assigns that the district court erred in (1) denying his motion to file an amended

motion for postconviction relief and (2) overruling his motion for postconviction relief following

an evidentiary hearing. He further assigns that his postconviction counsel provided ineffective

assistance.

STANDARD OF REVIEW

The decision to grant or deny an amendment to a pleading rests in the discretion of the trial

court. State v. Mata, 280 Neb. 849, 790 N.W.2d 716 (2010). An abuse of discretion occurs when

a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is

clearly against justice or conscience, reason, and evidence. Id.

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. State v. Beehn, 303 Neb. 172, 927

N.W.2d 793 (2019). An appellate court upholds the trial court's findings unless they are clearly

erroneous. Id.

A claim that defense counsel provided ineffective assistance presents a mixed question of

law and fact. Id. When reviewing a claim of ineffective assistance of counsel, an appellate court

reviews the factual findings of the lower court for clear error. Id. With regard to 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 conclusion. State v.

Beehn, supra.

ANALYSIS

Denial of Motion to Amend.

Jones assigns that the district court abused its discretion in denying his motion to file an

amended motion for postconviction relief.

The record in this case shows that following remand to the district court, Jones was

appointed counsel and moved to amend his motion for postconviction relief. A hearing on Jones'

motion to amend was held on July 10, 2018. The transcript of that hearing is not included in the

record before this court. Following the district court's denial of his motion to amend, Jones filed a

motion to alter or amend the judgment. The district court denied Jones' motion "for the reasons

previously stated, which is that the Court is confined to the mandate.”

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On appeal, Jones argues that the purpose of amending his postconviction motion was to

"clarify his position.” Brief for appellant at 21. He argues that because in Jones II, supra, this court

stated that his postconviction motion was "inartfully presented,” it was imperative for him to

outline "in what manner he believed he was failed by his trial counsel.” Brief for appellant at 21.

Jones claims that the district court abused its discretion in not allowing him to amend his motion

for postconviction relief in order to allow him "to present evidence as to each of his areas of

concern” regarding the effectiveness of his trial counsel. Id. at 22.

The facts in this case are similar to those in State v. Henk, 299 Neb. 586, 909 N.W.2d 634

(2018). In Henk, the defendant had appealed the district court's denial of postconviction relief

without an evidentiary hearing. After determining that Henk's postconviction claim was not

procedurally barred and that he had alleged facts which, if proved, could constitute an infringement

of his constitutional rights, the Nebraska Supreme Court reversed and remand for an evidentiary

hearing on Henk's claim. On remand, Henk requested leave to file an amended motion for

postconviction relief in order to allege additional claims, which the district court granted. After an

evidentiary hearing, the district court again denied Henk's motion for postconviction relief, and he

appealed.

On appeal, the Supreme Court determined the district court improperly granted leave to

amend. The court held that "[s]ince only one issue was passed upon by this court and referenced

in our opinion, our mandate was limited to require an evidentiary hearing on that claim alone.” Id.

at 592, 909 N.W.2d. at 639. The court vacated and set aside the district court's order granting leave

to file an amended motion for postconviction relief, "[b]ecause the district court did not have the

authority to affect rights and duties outside the scope of the remand.” Id. at 592-93, 909 N.W.2d

at 639.

In Jones II, this court stated that:

In his direct appeal, we specifically recognized that [Jones] raised assertions concerning

the effectiveness of his trial counsel concerning counsel's advice that Jones enter into a

plea agreement. We concluded that the record was insufficient and declined to address the

merits of those claims . . . and he now raises them in postconviction as he needed to.

Jones II at *3. This court then remanded the case for an evidentiary hearing on the sole issue of

whether Jones' trial counsel had rendered ineffective assistance in advising him to enter a plea.

Jones II, supra.

We determine that the district court in this case correctly found that it was confined to the

mandate issued by this court in Jones II. The district court did not abuse its discretion in denying

Jones' motion to amend. Moreover, Jones was not prejudiced by the denial of his motion to amend,

as this court had already clearly isolated and articulated for which claim the district court was to

hold an evidentiary hearing on remand. The purpose of the evidentiary hearing was to afford Jones

an opportunity to "present evidence as to each of his areas of concern,” which he now complains

he was not able to do on appeal. Brief for appellant at 22. This argument fails.

Denial of Postconviction Relief.

Jones assigns that the district court erred in finding that he did not receive ineffective

assistance of counsel and in denying his motion for postconviction relief. He claims that the district

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court erred in finding the testimony of Jones' trial counsel to be credible and in accepting counsel's

version of events over Jones' version.

Postconviction relief is a very narrow category of relief, available only to remedy

prejudicial constitutional violations that render the judgment void or voidable. State v. Beehn, 303

Neb. 172, 927 N.W.2d 793 (2019). The Nebraska Postconviction Act is intended to provide relief

in those cases where a miscarriage of justice may have occurred; it is not intended to be a procedure

to secure a routine review for any defendant dissatisfied with his or her sentence. State v. Beehn,

supra.

To establish a right to postconviction relief based on a claim of ineffective 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 ordinary training and skill in criminal

law. State v. Ely, 306 Neb. 461, 945 N.W.2d 492 (2020). Next, the defendant must show that

counsel's deficient performance prejudiced the defense in his or her case. Id. To show prejudice,

the defendant must demonstrate a reasonable probability that but for counsel's deficient

performance, the result of the proceeding would have been different. Id.

Trial counsel is afforded due deference to formulate trial strategy and tactics, and an

appellate court will not second-guess trial counsel's reasonable strategic tactics when reviewing

claims of ineffective assistance of counsel. State v. Lang, 305 Neb. 726, 942 N.W.2d 388 (2020).

Jones argues that his trial counsel was ineffective when he advised Jones to accept the

State's plea agreement. In his brief on appeal, Jones cites to 12 "failures” committed by trial

counsel that led Jones to feel "he had no choice but to plead guilty.” Brief for appellant at 23. In

his deposition, Jones testified that his trial counsel told him that if he failed to enter a plea, he

"could be enhanced as a habitual offender” and that his counsel inaccurately advised Jones that if

he accepted the State's plea agreement, the sentence on the weapon charge could be ordered to be

served concurrently to the assault sentences. Jones testified that he was never told that a sentence

on a weapon charge must mandatorily run consecutively to any other charges. Jones also testified

that there was at least one occasion when his counsel scheduled a hearing for him to enter a plea,

but Jones refused to be transported to the courthouse.

In contrast, Jones' trial counsel testified that prior to the plea hearing, he did not makes

Jones any promises regarding what sentence he would receive if he were to enter a plea. Counsel

stated that he did not "threaten” Jones with habitual criminal enhancements because he did not

think Jones was "habitual eligible” at that time. Trial counsel testified that he did not recall Jones

ever refusing to be transported to the courthouse for any reason, and he stated he would remember

if such an event had occurred. Trial counsel testified that in all his years of working as a criminal

defense attorney, he "never set a plea without talking to a client beforehand and getting their

blessing on it.” Trial counsel additionally testified that if he had known Jones was having second

thoughts, he would have filed a motion to withdraw the pleas prior to sentencing.

In its order denying Jones' motion for postconviction relief, the district court specifically

found that the testimony of Jones' trial counsel was "more credible” than Jones' testimony. The

court found "that there were no sentencing agreements and [that trial counsel] never relayed any

to [Jones], nor did [counsel] give an opinion as to what he thought the sentence might be.” The

district court also took into account Jones' statements at the plea hearing, at which time Jones

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affirmed to the court that he understood the charges against him and the possible penalties. The

district court advised Jones that a sentence on a weapon charge had "to run consecutive to any

sentence on the underlying charge.” At the plea hearing, Jones also asserted that no one had led

him to believe he would receive probation or a lighter sentence in exchange for entering a plea.

Jones argues that the district court erred in crediting his trial counsel's testimony over his

own. However, 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. State v. Beehn, 303 Neb.

172, 927 N.W.2d 793 (2019). An appellate court upholds the trial court's findings unless they are

clearly erroneous. Id. Here, the district court acknowledged that there was conflicting testimony

on the issue of what advice Jones' trial counsel gave regarding the State's plea offer, and the court

resolved the conflict in favor of trial counsel.

We determine that the district court did not commit clear error when it found the testimony

of Jones' trial counsel to be credible, ultimately finding that counsel had not made Jones any

promises regarding what his sentence might be. We also note, as did the district court, that prior

to entering his pleas, Jones affirmatively stated to the court that he understood the possible

penalties he faced and that no one had made him any promises regarding potential sentences. We

conclude that Jones' trial counsel was not ineffective. This argument fails.

Ineffective Assistance of Postconviction Counsel.

Finally, Jones assigns that his appointed postconviction counsel did not provide effective

assistance as required by Neb. Rev. Stat. § 29-3004 (Reissue 2016). Jones argues that his

postconviction counsel "failed to act as a competent attorney in several regards.” Brief for

appellant at 26. Reordered, Jones alleges that his postconviction counsel was ineffective for failing

to: (1) depose the victims and a witness in this case; (2) obtain transport records from corrections

that would show Jones refused to attend a scheduled plea hearing; (3) question Jones' fiance about

potential alibi evidence; (4) make postconviction arguments related to trial counsel's performance

at Jones' sentencing hearing; (5) make a record of the hearing on Jones' motion to file an amended

motion for postconviction relief; and (6) "engage in basic communication” with Jones. Id. at 26-27.

There is no constitutional right to effective assistance of counsel at postconviction

proceedings. State v. McGuire, 299 Neb. 762, 910 N.W.2d 144 (2018). However, Jones cites to

§ 29-3004, which states that "[t]he district court may appoint not to exceed two attorneys to

represent the prisoners in all [postconviction] proceedings” and that "[t]he attorney or attorneys

shall be competent and shall provide effective counsel.” The Supreme Court has not explicitly

decided whether this section provides for a statutory right to competent and effective

postconviction counsel that may be enforced on appeal from a postconviction proceeding. See

State v. McGuire, supra.

Assuming without deciding that there is such an enforceable statutory right to effective

postconviction counsel, we determine that Jones has failed to prove that he is entitled to relief.

On remand, the mandate from this court in Jones II directed the district court to hold an

evidentiary hearing on the sole issue of whether Jones' trial counsel had rendered ineffective

assistance in advising Jones to enter a plea. Therefore, Jones' postconviction counsel could not

have been ineffective for failing to (1) conduct depositions of the victims and witnesses; (2)

investigate corrections transport records; (3) investigate alibi evidence; or (4) make postconviction

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arguments related to trial counsel's performance at the sentencing hearing. These issues are all

beyond the scope of the mandate, and on appeal, Jones does not specify how these factors relate

to the relevant issue--that is, whether trial counsel pressured Jones or misadvised him in order to

induce him to enter a plea. As a matter of law, counsel cannot be ineffective for failing to raise a

meritless argument. State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018).

Jones' fifth argument, that his postconviction counsel was ineffective for failing to make a

record of the hearing on his motion to file an amended postconviction motion, also fails. As we

discuss above, the district court correctly found that it was limited by this court's mandate on

remand and did not abuse its discretion in denying Jones' motion to amend. A transcript of the

hearing on Jones' motion would not have altered our analysis. We conclude that Jones cannot

prove prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), with respect to this issue.

Lastly, Jones argues that his postconviction counsel failed to communicate with him, but

this argument consists of a single sentence and the conclusory allegation that counsel's conduct

was deficient. This argument is too vague and lacking in specificity to establish either deficient

performance or prejudice under Strickland.

Accordingly, we conclude that even assuming a statutory right to effective assistance of

counsel under § 29-3004 exists, Jones' arguments fail to show that he would be entitled to relief.

We conclude that the district court did not abuse its discretion in denying Jones’ motion to file an amended motion for postconviction relief and did not err in overruling his motion for postconviction relief. We further conclude that Jones’ arguments related to the effectiveness of his postconviction counsel fail. Therefore, the order of the district court is affirmed