Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/29/2016 09:06 AM CDT




                                                         - 311 -
                                  Nebraska Supreme Court A dvance Sheets
                                          294 Nebraska R eports
                                                   STATE v. SMITH
                                                  Cite as 294 Neb. 311




                                        State of Nebraska, appellee, v.
                                         William E. Smith, appellant.
                                                    ___ N.W.2d ___

                                          Filed July 29, 2016.     No. S-15-127.

                1.	 Postconviction: Constitutional Law: Appeal and Error. In appeals
                     from postconviction proceedings, an appellate court reviews de novo a
                     determination that the defendant failed to allege sufficient facts to dem-
                     onstrate a violation of his or her constitutional rights or that the records
                     and files affirmatively show that the defendant is entitled to no relief.
                2.	 Effectiveness of Counsel: Appeal and Error. When reviewing a claim
                     of ineffective assistance of counsel, an appellate court reviews the fac-
                     tual findings of the lower court for clear error.
                 3.	 ____: ____. 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 inde-
                     pendently of the lower court’s decision.
                4.	 Postconviction: Constitutional Law: Proof. An evidentiary hearing
                     on a motion for postconviction relief must be granted when the motion
                     contains factual allegations which, if proved, constitute an infringe-
                     ment of the movant’s rights under the Nebraska or federal Constitution.
                     However, if the motion alleges only conclusions of fact or law, or the
                     records and files in the case affirmatively show that the movant is
                     entitled to no relief, no evidentiary hearing is required.
                5.	 Effectiveness of Counsel: Proof: Appeal and Error. To prevail
                     on a claim of ineffective assistance of counsel under Strickland v.
                     Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
                     the defendant must show that his or her counsel’s performance was
                     deficient and that this deficient performance actually prejudiced the
                     defendant’s defense.
                6.	 ____: ____: ____. To show prejudice under the prejudice component
                     of the test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
                                     - 312 -
              Nebraska Supreme Court A dvance Sheets
                      294 Nebraska R eports
                               STATE v. SMITH
                              Cite as 294 Neb. 311

      80 L. Ed. 2d 674 (1984), the petitioner must demonstrate a reasonable
      probability that but for his or her counsel’s deficient performance,
      the result of the proceeding would have been different. A reason-
      able probability is a probability sufficient to undermine confidence in
      the outcome.
 7.	 Effectiveness of Counsel: Appeal and Error. When analyzing a claim
      of ineffective assistance of appellate counsel, courts usually begin by
      determining whether appellate counsel failed to bring a claim on appeal
      that actually prejudiced the defendant. That is, courts begin by assessing
      the strength of the claim appellate counsel failed to raise.
  8.	 ____: ____. Counsel’s failure to raise an issue on appeal could be inef-
      fective assistance only if there is a reasonable probability that inclusion
      of the issue would have changed the result of the appeal.
 9.	 ____: ____. When a case presents layered ineffectiveness claims, an
      appellate court determines the prejudice prong of appellate counsel’s
      performance by focusing on whether trial counsel was ineffective under
      the test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
      80 L. Ed. 2d 674 (1984). If trial counsel was not ineffective, then the
      defendant suffered no prejudice when appellate counsel failed to bring
      an ineffective assistance of trial counsel claim.
10.	 Indictments and Informations. Objections to an information or the
      content of an information should be raised by a motion to quash.
11.	 Pleas: Indictments and Informations: Waiver. When a defendant
      enters a plea in a case, he waives objections to all defects in an infor-
      mation that can be reached by a motion to quash, except those defects
      which are of such a fundamental character as to make the indictment
      wholly invalid.
12.	 Effectiveness of Counsel: Appeal and Error. When claims of a trial
      counsel’s performance are procedurally barred, an appellate court exam-
      ines claims regarding trial counsel’s performance only if the defendant
      assigns as error that appellate counsel was ineffective for failing to raise
      trial counsel’s performance.
13.	 Postconviction: Judicial Notice: Appeal and Error. A reviewing court
      considering a motion for postconviction relief may take judicial notice
      of the record in the direct appeal.
14.	 Homicide: Words and Phrases. A “sudden quarrel” is a legally recog-
      nized and sufficient provocation which causes a reasonable person to
      lose normal self-control.
15.	 Homicide. Although provocation negates malice, malice is not a statu-
      tory element of second degree murder in Nebraska.
16.	 Postconviction: Appeal and Error. An appellate court will not con-
      sider as an assignment of error a question not presented to the district
                                    - 313 -
             Nebraska Supreme Court A dvance Sheets
                     294 Nebraska R eports
                              STATE v. SMITH
                             Cite as 294 Neb. 311

     court for disposition through a defendant’s motion for postconvic-
     tion relief.
17.	 Double Jeopardy: Statutes: Proof. In a double jeopardy analysis,
     where the same act or transaction constitutes a violation of two dis-
     tinct statutory provisions, the test to determine whether there are two
     offenses or one is whether each provision requires proof that the other
     does not.
18.	 Appeal and Error. An appellate court may find plain error on appeal
     when an error unasserted or uncomplained of at trial, but plainly evident
     from the record, prejudicially affects a litigant’s substantial right and,
     if uncorrected, would result in damage to the integrity, reputation, and
     fairness of the judicial process.

  Appeal from the District Court for Lancaster County: Paul
D. Merritt, Jr., Judge. Affirmed.
   William E. Smith, pro se.
   Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
   Wright, Connolly, Miller-Lerman, and K elch, JJ., and
Pirtle, Judge.
   K elch, J.
                      I. INTRODUCTION
   William E. Smith appeals the district court’s order that
denied his motion for postconviction relief without an evi-
dentiary hearing. Smith asserts that he received ineffective
assistance of appellate counsel, that the district court erred in
hearing his claims of ineffective assistance of appellate counsel
at a hearing on his motion for new counsel, and that plain error
permeates the record. Because we find no merit in Smith’s
claims, we affirm.
                    II. BACKGROUND
                  1. Original Convictions
                        and Sentences
   Smith was involved in an altercation in 2008. Consequently,
the State charged Smith with one count of attempted second
                              - 314 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                         STATE v. SMITH
                        Cite as 294 Neb. 311

degree murder, a Class II felony; one count of first degree
assault, a Class III felony; and one count of use of a weapon
to commit a felony, a Class III felony. Following a trial, a jury
found Smith guilty of the crimes charged. Smith was sentenced
to 25 to 35 years’ imprisonment for attempted second degree
murder and 15 to 20 years’ imprisonment for first degree
assault, to run concurrently. He was sentenced to 15 to 20
years’ imprisonment for use of a weapon to commit a felony,
to run consecutively with the other sentences.
                      2. A ppellate History
   On direct appeal to the Nebraska Court of Appeals, Smith
assigned and argued that the jury should have been instructed
that if his intent to kill resulted from a sudden quarrel, he
should have been convicted of attempted sudden quarrel man-
slaughter. See State v. Smith, 19 Neb. App. 708, 811 N.W.2d
720 (2012). He also assigned and argued that the jury should
have been instructed that he acted in self-defense. We sum-
marized the Court of Appeals’ reasoning in our subsequent
further review of that opinion:
     [T]he Court of Appeals determined that a self-defense
     instruction was not warranted by the evidence. It further
     determined that Smith’s trial counsel could not have been
     deficient in failing to request an instruction on attempted
     sudden quarrel manslaughter, because at the time of the
     trial, that crime did not exist in Nebraska. The court
     reasoned that trial counsel could not have been ineffec-
     tive “for not anticipating how the courts would rule.”
     [State v. Smith, 19 Neb. App. at 728, 811 N.W.2d at 738.]
     But the Court of Appeals concluded that under our deci-
     sion in [State v. Smith, 282 Neb. 720, 806 N.W.2d 383
     (2011)], the trial court had a sua sponte duty to instruct
     on attempted sudden quarrel manslaughter because it
     was a lesser-included offense of attempted second degree
     murder and there was some evidence of a sudden quarrel
     occurring immediately before the shooting. We granted
     petitions for further review filed by each party.
                              - 315 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                         STATE v. SMITH
                        Cite as 294 Neb. 311

State v. Smith, 284 Neb. 636, 640-41, 822 N.W.2d 401,
407 (2012).
   On further review, we affirmed the judgment of the Court
of Appeals, based on different reasoning. See State v. Smith,
supra. We held that “(1) the trial court had no duty to instruct
on attempted sudden quarrel manslaughter in the absence of
a request to do so and (2) Smith’s trial counsel was not
ineffective in failing to request such an instruction.” Id. at
654, 822 N.W.2d at 415. But under the plain error doctrine,
we held that Smith was entitled to a new trial at which
the jury could be instructed on the distinction between sec-
ond degree murder and voluntary sudden quarrel manslaugh-
ter to determine whether Smith committed attempted second
degree murder. Such an instruction, we held, was supported by
the evidence.
   We reasoned that State v. Smith, 282 Neb. 720, 806 N.W.2d
383 (2011), occasioned a significant change in the law after
Smith’s case was tried and while it was pending on appeal. At
the time Smith’s case was tried, voluntary manslaughter was
an unintentional crime and the crime of attempted voluntary
manslaughter did not exist. Therefore, there was no reason for
Smith to request an instruction on attempted voluntary man-
slaughter. We emphasized that voluntary manslaughter is not
a lesser-included offense of second degree murder. Instead,
we held that voluntary manslaughter is a lesser degree of
homicide than second degree murder and that the two are dif-
ferentiated only by the presence or absence of the sudden quar-
rel provocation.
      Thus, where there is evidence that (1) a killing occurred
      intentionally without premeditation and (2) the defend­
      ant was acting under the provocation of a sudden quar-
      rel, a jury must be given the option of convicting of
      either second degree murder or voluntary manslaughter
      depending upon its resolution of the fact issue regard-
      ing provocation.
State v. Smith, 284 Neb. at 656, 822 N.W.2d at 417.
                              - 316 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                         STATE v. SMITH
                        Cite as 294 Neb. 311

   We rejected Smith’s remaining arguments, including his
argument that the Court of Appeals erred in finding he was not
entitled to a self-defense instruction in the first trial.
                   3. Motion for New Counsel
   After we issued our opinion, Smith filed a motion for new
counsel, seeking to dismiss his counsel, who had represented
him on direct appeal. Smith made claims of ineffectiveness,
including that his counsel had failed to disclose a conflict of
interest. Without addressing Smith’s claims, the district court
discharged Smith’s counsel and appointed him new counsel
for the retrial of the attempted second degree murder charge.
We summarize pertinent facts from the hearing on Smith’s
motion for new counsel in more detail in the analysis sec-
tion below.
                            4. Plea
   In lieu of a new trial, Smith pled no contest on June 26,
2013, to the amended charge of attempted voluntary man-
slaughter. He was sentenced to 20 months’ to 5 years’ impris-
onment, to be served concurrently with his sentence of 15 to
20 years’ imprisonment for first degree assault. The sentence of
15 to 20 years’ imprisonment for use of a weapon to commit a
felony remained consecutive to the other sentences.
                 5. Postconviction Proceedings
   On March 26, 2014, Smith filed an “Amended Verified
Petition for Postconviction Relief,” which is the only post-
conviction motion in the record before us. Smith essentially
argued (1) that the theory of sudden quarrel provocation
should have reduced his first degree assault conviction to third
degree assault and (2) that his convictions for first degree
assault and attempted voluntary manslaughter together vio-
lated constitutional principles of double jeopardy. He used
this contention as a basis for interrelated arguments about
due process, ineffective assistance of trial counsel, trial court
error, ineffective assistance of appellate counsel, appellate
                              - 317 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                         STATE v. SMITH
                        Cite as 294 Neb. 311

court error, and disproportionate sentencing. Smith’s motion
for postconviction relief did not raise claims concerning any
conflict of interest.
   Following a hearing, the district court denied Smith’s
motion for postconviction relief and denied an evidentiary
hearing on the matter. It found no factual basis supporting
Smith’s claims that his constitutional rights had been infringed
so as to render his conviction void or voidable, and it found
no showing that Smith’s trial counsel or appellate counsel had
been deficient or that Smith had been prejudiced by any defi-
ciency, if it had indeed existed.
   Smith now appeals.
                III. ASSIGNMENTS OF ERROR
   Smith assigns, condensed and restated, (1) that the district
court erred in denying his motion for postconviction relief
without an evidentiary hearing despite Smith’s claims that his
appellate counsel was ineffective; (2) that the district court
erred in hearing his claims of ineffective assistance of appel-
late counsel at the hearing on his motion for new counsel, prior
to his motion for postconviction relief; and (3) that plain error
permeates the record.
                IV. STANDARD OF REVIEW
   [1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of
his or her constitutional rights or that the records and files
affirmatively show that the defendant is entitled to no relief.
State v. Determan, 292 Neb. 557, 873 N.W.2d 390 (2016).
   [2,3] When reviewing a claim of ineffective assistance of
counsel, an appellate court reviews the factual findings of the
lower court for clear error. State v. Branch, 290 Neb. 523, 860
N.W.2d 712 (2015). 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
                              - 318 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                         STATE v. SMITH
                        Cite as 294 Neb. 311

court reviews such legal determinations independently of the
lower court’s decision. State v. Branch, supra.
                          V. ANALYSIS
                    1. Ineffective Assistance
                      of A ppellate Counsel
   [4] Smith alleges that the district court erred in denying
his motion for postconviction relief without an evidentiary
hearing despite Smith’s claims that his appellate counsel was
ineffective. An evidentiary hearing on a motion for post-
conviction relief must be granted when the motion contains
factual allegations which, if proved, constitute an infringe-
ment of the movant’s rights under the Nebraska or federal
Constitution. State v. Ware, 292 Neb. 24, 870 N.W.2d 637
(2015). However, if the motion alleges only conclusions of
fact or law, or the records and files in the case affirmatively
show that the movant is entitled to no relief, no evidentiary
hearing is required. Id.
   [5,6] To prevail on a claim of ineffective assistance of coun-
sel under Strickland v. Washington, supra, the defendant must
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend­
ant’s defense. State v. Thorpe, 290 Neb. 149, 858 N.W.2d 880
(2015). To show prejudice under the prejudice component of
the Strickland test, the petitioner must demonstrate a reason-
able probability that but for his or her counsel’s deficient
performance, the result of the proceeding would have been
different. State v. Thorpe, supra. A reasonable probability is
a probability sufficient to undermine confidence in the out-
come. Id.
   [7-9] When analyzing a claim of ineffective assistance of
appellate counsel, courts usually begin by determining whether
appellate counsel failed to bring a claim on appeal that actu-
ally prejudiced the defendant. State v. Sellers, 290 Neb. 18,
858 N.W.2d 577 (2015). That is, courts begin by assessing
the strength of the claim appellate counsel failed to raise. Id.
                              - 319 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                         STATE v. SMITH
                        Cite as 294 Neb. 311

Counsel’s failure to raise an issue on appeal could be inef-
fective assistance only if there is a reasonable probability
that inclusion of the issue would have changed the result of
the appeal. Id. When a case presents layered ineffectiveness
claims, an appellate court determines the prejudice prong of
appellate counsel’s performance by focusing on whether trial
counsel was ineffective under the Strickland test. State v.
Sellers, supra. If trial counsel was not ineffective, then the
defendant suffered no prejudice when appellate counsel failed
to bring an ineffective assistance of trial counsel claim. Id.

                  (a) Unchallenged Convictions
   Smith chiefly assigns that the trial court committed plain
reversible error and abused its discretion when it denied his
amended petition for postconviction relief without an eviden-
tiary hearing. To support this assignment, Smith argues that
appellate counsel was ineffective by failing to challenge his
convictions for first degree assault and use of a weapon to
commit a felony. But as a preliminary matter, we note that he
attempts to combine this argument with a theory that he pled
to a “reduced charge of attempted voluntary manslaughter
[which] effectively erradicated [sic] and eliminated the charges
of first degree assault and use of a weapon.” Brief for appellant
at 21. However, this argument that his plea somehow vitiated
the other convictions is procedurally barred because Smith did
not challenge the charge of attempted second degree murder
on remand.
   Smith appealed his three convictions to the Court of Appeals,
which affirmed the convictions for first degree assault and use
of a weapon to commit a felony but reversed the conviction
for attempted second degree murder and remanded the cause
for a new trial. This court affirmed the decision of the Court
of Appeals. As a result, after remand, Smith’s convictions for
first degree assault and use of a weapon to commit a felony
were final judgments. See State v. Shannon, 293 Neb. 303,
876 N.W.2d 907 (2016) (issuance of mandate by appellate
                              - 320 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                         STATE v. SMITH
                        Cite as 294 Neb. 311

court is date judgment of conviction becomes final for pur-
poses of postconviction review).
   [10,11] The only pending matter after appeal and remand
was the retrial on the charge of attempted second degree
murder. However, Smith pled no contest to the amended
charge of attempted voluntary manslaughter. Rather than fil-
ing a motion to quash or otherwise attacking the validity of
the attempted second degree murder charge after remand, on
double jeopardy grounds, for example, Smith entered his plea,
which waived his right to challenge the retrial of that charge.
Objections to an information or the content of an information
should be raised by a motion to quash. See, Neb. Rev. Stat.
§ 29-1808 (Reissue 2008); State v. Roucka, 253 Neb. 885, 573
N.W.2d 417 (1998). When a defendant enters a plea in a case,
he waives objections to all defects in an information that can
be reached by a motion to quash, except those defects which
are of such a fundamental character as to make the indictment
wholly invalid. Nelson v. State, 167 Neb. 575, 94 N.W.2d
1 (1959).
   Smith’s convictions for first degree assault and use of a
weapon to commit a felony were final judgments, and his
plea without challenging the information did not affect those
convictions. Therefore, Smith’s contention—that his plea to
a “reduced charge of attempted voluntary manslaughter . . .
effectively eradicated and eliminated the charges of first degree
assault and use of a weapon”—is without merit.
   We now turn to Smith’s primary argument that appellate
counsel was ineffective on appeal by failing to challenge his
convictions for first degree assault and use of a weapon to
commit a felony. The basis of such challenge, Smith contends,
would have been trial counsel’s failure to request a lesser-
included instruction or an instruction on “sudden quarrel.”
   [12] First, the State correctly argues that any claims as to
trial court error or ineffective assistance of trial counsel would
be procedurally barred on postconviction review, because
Smith had new counsel on direct appeal. See State v. Sellers,
                               - 321 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                          STATE v. SMITH
                         Cite as 294 Neb. 311

290 Neb. 18, 858 N.W.2d 577 (2015). When claims of a trial
counsel’s performance are procedurally barred, an appellate
court examines claims regarding trial counsel’s performance
only if the defendant assigns as error, as Smith did in the
instant case, that appellate counsel was ineffective for failing
to raise trial counsel’s performance. See State v. Molina, 279
Neb. 405, 778 N.W.2d 713 (2010). However, if trial counsel
was not ineffective, then the defendant suffered no prejudice
when appellate counsel failed to bring an ineffective assistance
of trial counsel claim. State v. Sellers, supra. As a result, any
conclusion that Smith’s appellate counsel’s performance was
ineffective in regard to the charges of first degree assault or use
of a weapon to commit a felony would require us to find that
trial counsel should have requested a lesser-included instruc-
tion or an instruction on “sudden quarrel.”
   [13] Regarding Smith’s assertion concerning a lesser-
included instruction, we must examine the record on direct
appeal to determine whether the jury was instructed as to
a lesser-included charge for first degree assault. A review-
ing court considering a motion for postconviction relief may
take judicial notice of the record in the direct appeal. State
v. Parmar, 263 Neb. 213, 639 N.W.2d 105 (2002); State v.
Bennett, 256 Neb. 747, 591 N.W.2d 779 (1999). In reference
to the charge of first degree assault, the trial court did instruct
the jury as to the lesser-included charge of third degree assault.
There would be no lesser-included charge for use of a weapon
to commit a felony. Smith was afforded the proper lesser-
included instruction.
   [14,15] We next address Smith’s contention that appellate
counsel should have argued that “sudden quarrel” also affected
the charges of first degree assault and use of a weapon to com-
mit a felony. A “sudden quarrel” is a legally recognized and
sufficient provocation which causes a reasonable person to lose
normal self-control. State v. Trice, 286 Neb. 183, 835 N.W.2d
667 (2013). Although provocation negates malice, malice is not
a statutory element of second degree murder in Nebraska. Id.
                              - 322 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                         STATE v. SMITH
                        Cite as 294 Neb. 311

The same principle applies to first degree assault, because “[a]
person commits the offense of assault in the first degree if he
or she intentionally or knowingly causes serious bodily injury
to another person.” See Neb. Rev. Stat. § 28-308(1) (Cum.
Supp. 2014). Malice is not an element of first degree assault,
and, as such, “sudden quarrel” would not be applicable to
negate it. A similar rationale applies to use of a deadly weapon
to commit a felony, which does not have malice as an element.
See Neb. Rev. Stat. § 28-1205 (Cum. Supp. 2014).
   Smith also contends that State v. Butler, 10 Neb. App. 537,
634 N.W.2d 46 (2001), stands for the proposition that because
“provocation” can mitigate an intentional killing, it may also
mitigate a charge of assault. However, Butler is distinguish-
able because the Court of Appeals was addressing “provoca-
tion” as it relates to a claim of self-defense in connection with
an assault charge. In Butler, the Court of Appeals was discuss-
ing Neb. Rev. Stat § 28-1409(4)(a) (Reissue 1995), which
provided that the use of deadly force in self-defense is not
justifiable if “‘[t]he actor, with the purpose of causing death or
serious bodily harm, provoked the use of force against himself
in the same encounter.’” 10 Neb. App. at 553, 634 N.W.2d
at 61.
   Smith’s appellate counsel did raise ineffective assistance
of trial counsel for failing to request a self-defense instruc-
tion on all charges. Both the Court of Appeals and this court
rejected that claim. “Provocation” may have been related to
Smith’s self-defense claim, but it would not act to mitigate
his charge of assault; and the holding in Butler should not be
interpreted for such a proposition.
   Accordingly, these assigned errors by Smith are with-
out merit.
                   (b) Appellate Counsel’s
                      Conflict of Interest
   [16] Smith assigns as error that appellate counsel was inef-
fective by representing him notwithstanding a conflict of
                              - 323 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                         STATE v. SMITH
                        Cite as 294 Neb. 311

interest; however, Smith did not set forth this issue in his
amended petition for postconviction relief. An appellate court
will not consider as an assignment of error a question not pre-
sented to the district court for disposition through a defendant’s
motion for postconviction relief. State v. Thorpe, 290 Neb.
149, 858 N.W.2d 880 (2015). Consequently, this issue shall not
be addressed.
                (c) Double Jeopardy Violations
   Smith argues:
     All things considered, had appellate counsel assigned
     error to the [charges of first degree assault and use of a
     weapon to commit a felony], “double jeopardy” would
     have [forbidden] a retrial, and by the same token, the
     reduced charge of attempted [voluntary] manslaughter
     vitiates the first degree assault charge, which in turn
     negates the use of a weapon charge.
Brief for appellant at 28. Again, the only count remanded
for retrial was the attempted second degree murder charge
and, as discussed above, the convictions for both first degree
assault and use of a deadly weapon to commit a felony were
affirmed and became final judgments. Any double jeopardy
argument would have applied only to the charge of attempted
second degree murder, and Smith assigns no error in regard
to that charge.
   [17] Further, the offenses of first degree assault and
attempted voluntary manslaughter do not violate double jeop-
ardy. In a double jeopardy analysis, where the same act
or transaction constitutes a violation of two distinct statu-
tory provisions, the test to determine whether there are two
offenses or one is whether each provision requires proof that
the other does not. State v. Huff, 279 Neb. 68, 776 N.W.2d
498 (2009), citing Blockburger v. United States, 284 U.S. 299,
52 S. Ct. 180, 76 L. Ed. 306 (1932). First degree assault and
attempted voluntary manslaughter are two distinct offenses.
As pointed out by the State, first degree assault requires
                              - 324 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                         STATE v. SMITH
                        Cite as 294 Neb. 311

serious bodily injury to occur and attempted voluntary man-
slaughter does not require any injury to occur. See, § 28-308;
Neb. Rev. Stat. § 28-305 (Supp. 2015); Neb. Rev. Stat.
§ 28-201 (Supp. 2015).
   We find that Smith was not placed in double jeopardy by
his appellate counsel’s actions; and therefore, Smith’s appel-
late counsel was not ineffective in this respect.
                      2. Hearing on Motion
                         for New Counsel
   Smith assigns that the district court erred in hearing his
claims of ineffective assistance of appellate counsel at a hear-
ing on his motion for new counsel—claims which Smith
asserts pertained to his motion for postconviction relief. Smith
alleges that on April 8, 2013, a hearing was held regarding his
claim of ineffective assistance of appellate counsel, before his
plea to attempted voluntary manslaughter. The bill of excep-
tions for April 8 reflects that this allegation has no merit:
         THE COURT: Okay. This is the matter of State of
      Nebraska versus William E. Smith, CR08-1249.
         You’re Mr. Smith, sir?
         [Smith]: Yes, I am, sir.
         THE COURT: Thank you, sir.
         Excuse me.
         On March 28th, 2013, I entered a judgment in accord­
      ance with the mandate of the Nebraska Supreme Court,
      which vacated and set aside the conviction for attempted
      second degree murder, and ordered me to have — set a
      retrial with respect to that charge.
         . . . Smith had filed, on January 18th, 2013 — before
      we take up where we’re going with that, on January 13th
      — 18th, 2013, he filed a motion to dismiss current coun-
      sel and appoint new counsel. I issued an order after that
      was filed, saying I couldn’t do anything while that case
      was on appeal, because I didn’t have jurisdiction to do
      anything. So, when I entered judgment last week, or on
                               - 325 -
           Nebraska Supreme Court A dvance Sheets
                   294 Nebraska R eports
                          STATE v. SMITH
                         Cite as 294 Neb. 311

      March 28th, I did say we’d go ahead and take up first this
      motion to dismiss.
         I have read the motion. I have some questions about it
      but I want to ask, first, . . . whether you still wish to pur-
      sue this motion or if you wish to withdraw it at this time.
      I don’t know, so I just want to make sure.
         [Smith]: I wish to pursue it, Your Honor.
Clearly, the hearing on April 8 was only upon Smith’s motion
to dismiss counsel, and he never objected to the hearing. The
district court allowed Smith to make a record as to why he
desired his counsel dismissed. Later in the hearing, Smith, not
the court, attempted to initiate a dialog about postconviction
relief, but the court declined to discuss it. Accordingly, this
error has no merit.
                        3. Plain Error
   [18] Finally, Smith assigns that plain error permeates the
record. An appellate court may find plain error on appeal
when an error unasserted or uncomplained of at trial, but
plainly evident from the record, prejudicially affects a liti-
gant’s substantial right and, if uncorrected, would result in
damage to the integrity, reputation, and fairness of the judi-
cial process. State v. Dubray, 289 Neb. 208, 854 N.W.2d 584
(2014). Having already rejected all of Smith’s claims, we find
no plain error.
                      VI. CONCLUSION
   For the reasons set forth above, we hold that the district
court did not err in denying Smith’s motion for postconviction
relief and denying an evidentiary hearing on the matter.
                                                    A ffirmed.
   Heavican, C.J., and Cassel and Stacy, JJ., not participating.
