Opinion
No. A-11-019.
10-25-2011
STATE OF NEBRASKA, APPELLEE, v. DWIGHT L. TUCKER, APPELLANT.
Dwight L. Tucker, pro se. Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Douglas County: MARLON A. POLK, Judge. Affirmed.
Dwight L. Tucker, pro se.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
IRWIN, CASSEL, and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Dwight L. Tucker filed this action for postconviction relief in the district court for Douglas County. Tucker challenges the court's denial of Tucker's requests for postconviction relief, an evidentiary hearing, and appointment of counsel. Based on the reasons that follow, we affirm the decisions of the district court.
BACKGROUND
We incorporate by reference the facts of this case as stated in State v. Tucker, 17 Neb. App. 487, 764 N.W.2d 137 (2009), and State v. Tucker, 278 Neb. 935, 774 N.W.2d 753 (2009). The State charged Tucker with murder in the first degree (both premeditated murder and felony murder while attempting to perpetrate a robbery), use of a deadly weapon to commit a felony, and possession of a deadly weapon by a convicted felon. The parties stipulated that Tucker was a convicted felon in Nebraska at the time the charged crimes were alleged to have occurred.
The district court conducted a bench trial on February 19 through 21, 2010. The court found Tucker guilty of the lesser-included offense of manslaughter "by unintentionally causing the death of [the victim] while in the commission of an unlawful act." The court did not specify the unlawful act, although it also found Tucker guilty of possession of a deadly weapon by a felon. Finally, the court found Tucker guilty of use of a deadly weapon to commit a felony. In so doing, the court explained that the predicate felony to that offense was "assault--at least in the first and/or second degree on [the victim] and/or a terroristic threat towards [him]." The court sentenced Tucker to imprisonment of 20 to 20 years for count I (manslaughter), 10 to 10 years for count II (use of a deadly weapon), and 4 to 4 years for count III (possession of a deadly weapon).
Tucker appealed his convictions to this court. Among other assignments of error no longer relevant, Tucker argued there was insufficient evidence to convict him of use of a weapon to commit a felony, especially in light of the trial court's finding that he did not intentionally kill the victim. We affirmed the trial court's conviction and sentence. See State v. Tucker, 17 Neb. App. 487, 764 N.W.2d 137 (2009). Although we recognized that the predicate felony for use of a deadly weapon must be intentional, we found the evidence sufficient to support the trial court's finding of the intentional act of terroristic threats. This court did not address the trial court's findings of first or second degree assault. A partial dissent to the case argued that there was insufficient evidence to prove any of these predicate offenses. With regard to first or second degree assault, the dissent argued, "The mere fact that the victim in this case was killed does not allow an inference that Tucker intended to inflict any bodily injury . . . ." Id. at 504, 764 N.W.2d at 152 (Irwin, Judge, concurring in part, and in part dissenting). As for terroristic threats, the dissent argued that the majority's opinion "results in the inescapable conclusion that anytime somebody holds a firearm in the presence of somebody else, there has been a terroristic threat, and there is no authority for such an expansive conclusion." Id. at 503, 764 N.W.2d at 152 (Irwin, Judge, concurring in part, and in part dissenting).
Tucker petitioned the Nebraska Supreme Court for further review, alleging this court erred in affirming the use of a deadly weapon to commit a felony conviction because there was insufficient evidence as a matter of law to sustain such a finding. The Supreme Court affirmed the Court of Appeals' decision finding that the evidence was sufficient to support the trial court's judgment that Tucker was guilty of use of a weapon to commit a felony based upon the predicate offense of intentional assault. See State v. Tucker, 278 Neb. 935, 774 N.W.2d 753 (2009). The court stated that testimony at trial that the gun was in working order and that Tucker's admission to shooting the victim was sufficient to infer Tucker pulled the trigger intentionally, even if he harbored such intent only briefly.
On October 29, 2010, Tucker filed a motion for postconviction relief requesting the court vacate and set aside the convictions and sentences because "his constitutional and substantial rights were infringed upon so as to render his conviction[s] void or voidable." He asserted the district court erred in finding him guilty of use of a firearm to commit a felony because there was insufficient evidence to sustain the finding. He also asserted two errors related to sentencing. The State filed a motion to dismiss Tucker's request for postconviction relief on November 24. The hearing on the State's motion took place on December 9, and the court's order denying Tucker's motion for postconviction relief was filed December 16.
ASSIGNMENTS OF ERROR
Tucker assigns that the court erred and abused its discretion in (1) denying postconviction relief on the merits of his allegations of ineffective assistance of counsel, (2) denying an evidentiary hearing on the motion to vacate and set aside his convictions and sentences, and (3) failing to appoint postconviction counsel.
STANDARD OF REVIEW
A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the trial court will not be disturbed unless they are clearly erroneous. State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010).
To establish a right to postconviction relief based on a claim of ineffective assistance of counsel, a defendant has the burden to show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense in his or her case. Id.
Failure to appoint counsel in postconviction proceedings is not error in the absence of an abuse of discretion. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
ANALYSIS
Ineffective Assistance of Trial Counsel.
Tucker alleges the district court erred in denying postconviction relief because counsel was ineffective in both his trial and his appeal. First, he argues that trial counsel was ineffective for not moving for a new trial as a result of the district court's finding that Tucker was guilty of manslaughter and the use of a weapon in the commission of that felony. He argues that an unintentional crime cannot be used as a predicate felony for a use of a weapon charge; therefore, the court should have dismissed count II, the use of a weapon charge. The district court ultimately determined the evidence established Tucker used a deadly weapon in the commission of a felony, at least first and/or second degree assault, and/or a terroristic threat toward the victim.
This court and the Nebraska Supreme Court have both addressed this issue. We found the evidence was sufficient to support the district court's finding of an intentional act of terroristic threats, but did not address whether the evidence would support first or second degree assault. The Supreme Court agreed that unintentional manslaughter could not form the basis for the intentional use of a weapon, nor could reckless assault and/or reckless terroristic threats. However, intentional terroristic threats or intentional assault could be used as a predicate felony for a use of a weapon charge, and the court affirmed the convictions.
The case at bar parallels State v. Sepulveda, 278 Neb. 972, 775 N.W.2d 40 (2009). In Sepulveda, the defendant was charged with second degree murder and ultimately convicted of manslaughter and use of a firearm to commit a felony. The Nebraska Supreme Court stated that in accordance with Neb. Rev. Stat. § 28-1205(1) (Reissue 2008), a defendant must commit an underlying or predicate intentional felony before he or she can be convicted of use of a deadly weapon to commit a felony. See State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).
In Sepulveda, the defendant argued that the manslaughter conviction could not serve as the basis for a use of a firearm conviction and that his trial counsel's failure to raise the issue resulted in ineffective assistance of counsel. The court determined the defendant's argument failed because the manslaughter conviction was not the predicate felony for his use of a firearm conviction. Rather, the predicate felony was intentional assault against the victim. The court in Sepulveda noted the intent required by the assault relates to the act which produces the injury, not the consequences which result from the assault. See, also, State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).
In the instant case, this court and the Nebraska Supreme Court agreed with the trial court that the predicate felony for Tucker was assault and/or terroristic threats. Tucker's intentional actions support the convictions for both manslaughter and the use of a weapon to commit a felony and are therefore not inconsistent.
Appellate counsel's failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal. Nebraska case law clearly indicates that defense counsel is not ineffective for failing to raise an argument that has no merit. State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007). We agree with the State's argument that Tucker's attorney would not have been successful on a motion for new trial on the basis that the verdict was contrary to law. Tucker was not denied effective assistance at trial. Therefore, the trial court did not err in denying his motion to vacate and set aside his convictions and sentences.
Ineffective Assistance of Appellate Counsel.
Next, Tucker alleges the district court erred in denying postconviction relief because counsel was ineffective upon appeal, citing his counsel's failure to "specifically assign, brief and argue on direct appeal the issue relating to count II of the information." Brief for appellant at 15. Count II was the charge for use of a deadly weapon to commit a felony.
To be deficient, counsel's performance must not equal that of a lawyer with ordinary training and skill in criminal law in the area. State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009). In determining whether a trial counsel's performance was deficient, there is a strong presumption that such counsel acted reasonably. Id.
For the reasons stated above, the Nebraska Supreme Court ruled in State v. Sepulveda, 278 Neb. 972, 775 N.W.2d 40 (2009), that convictions for manslaughter and use of a firearm to commit a felony were not inconsistent when the use of a weapon charge is predicated on an additional intentional felony; therefore, his trial counsel's failure to raise the issue of inconsistency was not deficient performance and did not result in ineffective assistance of counsel.
The outcome of Tucker's case would not have been different if counsel had assigned and argued that the two charges were inconsistent, as it would be contrary to Nebraska law. Therefore, we cannot find that Tucker's counsel was deficient. Tucker's request for postconviction relief on issues related to ineffective assistance of counsel fails to meet the requirements of a claim for ineffective assistance of counsel. See State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010).
Tucker also alleges he received ineffective assistance of counsel because his counsel failed to argue Tucker's constitutional right to due process was violated because the State never charged Tucker with the underlying intentional felony supporting the use of a weapon to commit a felony charge. He asserts this amounts to plain error according to State v. Davlin, 263 Neb. 283, 639 N.W.2d 613 (2002). However, in Davlin, the court notes plain error is an error which "prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice." 263 Neb. at 292, 639 N.W.2d at 642.
In the present case, there is no evidence which suggests that Tucker was prejudicially affected or that there has been a miscarriage of justice. At trial, Tucker was afforded the opportunity to be heard and defend himself. In addition, his defense strategy would likely have been no different with the addition of an assault or threat charge to the existing charges for murder and use of a weapon to commit a felony. His counsel attempted to prove he did not intentionally harm the victim, and after hearing the evidence, the trial court found that Tucker engaged in an intentional act which led to the death of the victim. This is enough to support both convictions, and the outcome would be the same regardless of whether the issue was raised on direct appeal. There is no evidence to show Tucker was prejudiced; therefore, we do not agree that he was given ineffective assistance of appellate counsel.
Denial of Evidentiary Hearing.
Tucker alleges that the district court erred and abused its discretion when denying him an evidentiary hearing on the motion to vacate and set aside his convictions and sentences. This motion chiefly asserted the district court erred in convicting Tucker of manslaughter and use of a weapon to commit a felony and that his counsel was ineffective.
An evidentiary hearing for postconviction relief must be granted when the motion contains factual allegations which, if proved, constitute an infringement of the movant's rights. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010). However, postconviction relief without an evidentiary hearing is properly denied when the files and records affirmatively show that the prisoner is entitled to no relief. State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).
Having concluded that Tucker would not be entitled to relief if the motion was granted, the district court did not err in denying Tucker an evidentiary hearing.
Failure to Appoint New Counsel.
Finally, Tucker argues that the trial court erred in failing to appoint postconviction counsel. In the absence of a showing of an abuse of discretion, the failure to provide court-appointed counsel in postconviction proceedings is not error. State v. Mata, 280 Neb. 849, 790 N.W.2d 716 (2010). When the assigned errors in a postconviction petition before a district court contains no justiciable issues of fact or law, it is not an abuse of discretion to fail to appoint counsel for an indigent defendant. State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).
Tucker alleges that he received ineffective assistance of counsel and his constitutional rights were violated and that therefore, the district court erred by denying his request for postconviction counsel. Under the Nebraska Postconviction Act, it is within the discretion of the trial court as to whether counsel shall be appointed to represent the defendant. McGhee, supra. However, as stated above, Tucker failed to provide sufficient evidence to convince the court of the merit of either his ineffective assistance or constitutional claims. Having determined that Tucker's motion for postconviction relief presented no justiciable issues, the district court did not abuse its discretion in denying Tucker's motion for appointment of counsel.
CONCLUSION
We conclude the district court did not err in denying Tucker's requests for postconviction relief, an evidentiary hearing, and the appointment of counsel. The district court was not clearly erroneous, and there was no abuse of discretion.
AFFIRMED.