                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. WILLIAMS


  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).


                                 STATE OF NEBRASKA, APPELLEE,
                                                 V.

                                 JAKOB L. WILLIAMS, APPELLANT.


                              Filed March 6, 2018.     No. A-17-357.


       Appeal from the District Court for Douglas County: LEIGH ANN RETELSDORF, Judge.
Affirmed.
       Jakob L. Williams, pro se.
       Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.


       MOORE, Chief Judge, and PIRTLE and ARTERBURN, Judges.
       MOORE, Chief Judge.
                                       I. INTRODUCTION
        Jakob L. Williams pled no contest to and was convicted of two counts of attempted first
degree assault, both Class III felonies, and one count of use of a firearm to commit a felony, a
Class IC felony. On direct appeal, this court summarily affirmed his convictions and sentences on
December 9, 2015, in case No. A-15-802. Williams then filed a motion for postconviction relief
in the district court for Douglas County, which the court denied without an evidentiary hearing.
Finding no error, we affirm.
                                       II. BACKGROUND
       On November 20, 2014, the State filed an information in the district court, charging
Williams in counts 1, 3, and 5 with attempted assault in the first degree, all Class III felonies; in




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counts 2, 4, and 6 with use of a firearm to commit a felony, all Class IC felonies; in count 7 with
unlawful discharge of a firearm, a Class ID felony; and in count 8 with possession of a deadly
weapon by a prohibited person, a Class ID felony.
         A jury trial was scheduled for June 10, 2015. On that date, the parties advised the court that
in exchange for Williams pleading no contest to two counts of attempted first degree assault and
one count of use of a firearm (counts 1, 2, and 5 of the information), the State would dismiss all
remaining charges. Upon the court’s inquiry, Williams confirmed that was his understanding of
the plea agreement.
         The district court then advised Williams of the nature of the offenses to which he was
pleading, the possible penalties, and the rights he would be waiving by pleading, and Williams
indicated his understanding of each portion of the court’s advisement. Specifically with respect to
penalties, the court advised Williams that counts 1 and 5 were Class III felonies, “carry[ing] up to
20 years’ imprisonment and a $25,000 fine or both fine and imprisonment.” And, the court advised
Williams that count 2 was a Class IC felony, carrying a mandatory minimum of 5 years’
imprisonment up to 50 years in prison. The court informed Williams that the sentences for counts
1 and 5 could be run concurrently or consecutively, but that the sentence for count 2 had to run
consecutive to the sentences for the other two counts. Williams affirmed that no one had threatened
him or promised him anything to get him to plead, other than the stated plea agreement, and that
the pleas were his own free and voluntary act. Williams also affirmed that he had had a chance to
discuss the facts and circumstances of the case with his attorney. Williams then plead no contest
to counts 1, 2, and 5 of the information.
         After the State provided a factual basis, the district court accepted Williams’ no contest
pleas and found him guilty of counts 1, 2, and 5. The State then moved to dismiss the remaining
counts, and the court dismissed counts 3, 4, 6, 7, and 8.
         A sentencing hearing was held before the district court on August 19, 2015. After hearing
statements from the attorneys for the parties and from Williams and discussing the factors it had
considered, the court imposed sentence. On count 1, attempted first degree assault, the court
sentenced Williams to 10 to 10 years’ imprisonment. On count 2, use of a firearm, the court noted
that it had “a mandatory minimum of 5,” but it stated that it was imposing a sentence of 10 to 15
years, which “has to run consecutive to Count 1.” In sentencing Williams on count 5, the other
attempted first degree assault count to which he had pled, the court misstated the count number,
“I’m also sentencing you to 10 to 15 years on Count 2 -- or 3. Is that the number that it would be?
Count 4 (sic). And that will be 10 to 15 years.” The court did not specifically state that the sentence
on count 5 was to run consecutively, but that was its apparent intent as the court went on to state,
“So, your sentence will be 30 to 40 years.”
         On August 20, 2015, the district court entered an order memorializing Williams’ sentences.
In the order, the court clearly stated that Williams had been convicted of count 1 (attempted first
degree assault), count 2 (use of a firearm to commit a felony), and count 5 (attempted first degree
assault). The court also clearly stated that it was sentencing Williams to consecutive periods of
incarceration of 10 to 10 years on count 1, 10 to 15 years on count 2, and 10 to 15 years on
count 5.




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         On direct appeal, Williams only alleged that his sentences were excessive. He was
represented by the same attorney during the plea and sentencing proceedings and on direct appeal.
This court summarily affirmed Williams’ convictions and sentences on December 9, 2015, in case
No. A-15-802.
         On July 14, 2016, Williams filed a pro se motion for postconviction relief, setting forth
various claims of ineffective assistance of trial and appellate counsel, prosecutorial misconduct,
and trial court error, including plain error. As relevant to the present appeal, Williams alleged that
the trial court failed to adequately inform him of the potential sentences before accepting his pleas
and that the State breached the plea agreement and/or the court erred by sentencing him on counts
that were to be dismissed pursuant to the plea agreement. He also alleged that his trial counsel was
ineffective for failing to object to these breaches/errors and that his appellate counsel was
ineffective for failing to raise these issues on appeal. Also on July 14, Williams filed pro se motions
requesting an evidentiary hearing on his postconviction motion, seeking to withdraw his plea, and
requesting appointment of postconviction counsel.
         On February 2, 2017, Williams filed a pro se motion, seeking a default judgment on his
postconviction motion. Williams alleged that the State had failed to respond to an order entered by
the district court on August 8, 2016, requiring the State to respond to Williams’ request for an
evidentiary hearing. The record on appeal does not contain the order referenced in Williams’
motion or any pleadings from the State.
         On March 9, 2017, the district court entered an order ruling on Williams’ motions for
postconviction relief, evidentiary hearing, appointment of counsel, and default judgment. With
respect to Williams’ request for a default judgment, the court noted that the State had filed a
response to Williams’ postconviction motion “out of the initial time ordered by the Court due to
an unexpected medical issue.” Because Williams did not “provide any law or facts relating to
prejudice” to support his request for a default judgment and because the court needed to determine
the necessity of an evidentiary hearing on the postconviction motion “regardless of a response
from the State,” the court denied Williams’ request for a default judgment.
         In considering Williams’ postconviction motion, the district court first addressed his claims
of ineffective assistance of trial counsel. The court found that Williams failed to set forth any
factual allegations relating to prejudice incurred due to his counsel’s alleged errors. Additionally,
the court found Williams had not even set forth any “self-serving” declarations that he would have
insisted on going to trial absent his trial counsel’s alleged errors. The court also noted the favorable
plea agreement, which had allowed Williams to plead to three charges in exchange for the
dismissal of five other charges, all of which were Class IC or ID felonies, considerably reducing
his potential time in prison. The court found that the favorable nature of the plea agreement refuted
any argument that Williams would have insisted on going to trial rather than accepting the plea
offer. The court stated, “The lack of facts relating to prejudice combined with the favorable plea
agreement is reason alone to dismiss this motion for postconviction [relief] without an evidentiary
hearing.” Regardless, the district court went on to address whether Williams’ trial counsel
performed deficiently in any of the ways alleged by Williams, and it found that Williams was not
entitled to an evidentiary hearing on any of those issues.




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         In addressing Williams’ claims of ineffective assistance of appellate counsel, the court
found that it had already addressed the majority of Williams’ arguments in its previous analysis
and “for those same reasons,” found that the inclusion of such claims on direct appeal would not
have changed the outcome. The court found that any arguments not already addressed “do not have
enough facts or law establishing inclusion of such issues” would have changed the results on direct
appeal. Accordingly, the court found Williams was not entitled to an evidentiary hearing on his
claims of ineffective assistance of appellate counsel.
         With respect to Williams’ claims of prosecutorial misconduct and trial court error, the
district court found that those could have been raised on direct appeal, and were procedurally
barred. The court also rejected Williams’ claims of plain error, finding that plain error cannot be
asserted on postconviction “to raise claims of error by the trial court.”
         The district court denied Williams’ motion for postconviction relief without an evidentiary
hearing. It also denied his request for appointment of counsel. Williams subsequently perfected
the present appeal to this court.
                                  III. ASSIGNMENTS OF ERROR
        Williams’ assignments of error and his arguments on appeal are convoluted and somewhat
hard to follow, but in general, he asserts that the district court erred by (1) failing to enter a default
judgment, (2) failing to appoint counsel, (3) committing plain error, and (4) failing to grant
postconviction relief and/or an evidentiary hearing. He also asserts that he received ineffective
assistance of trial and appellate counsel on direct appeal. We address Williams’ arguments as to
why he should have been granted relief in the analysis section below. We have not addressed any
arguments raised by Williams that were not also assigned as error. An alleged error must be both
specifically assigned and specifically argued in the brief of the party asserting the error to be
considered by an appellate court. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
                                   IV. STANDARD OF REVIEW
        In appeals from postconviction proceedings, an appellate 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 record and files affirmatively show that the defendant is
entitled to no relief. State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).
        When a claim of ineffective assistance of counsel presents a mixed question of law and
fact, an appellate court reviews the lower court’s factual findings for clear error but independently
determines whether those facts show counsel’s performance was deficient and prejudiced the
defendant. Id.
                                            V. ANALYSIS
                                        1. DEFAULT JUDGMENT
        Williams asserts that the district court erred by failing to grant his motion for default
judgment due to the State’s failure to respond to his postconviction motion within 90 days as
ordered by the court. Williams has included neither the court order directing the State to respond
nor the State’s response in the record on appeal. However, in its March 19, 2017, order, the court



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noted that the State’s response was filed out of time due to “an unexpected medical issue.” The
court observed that Williams had not cited any law supporting his request or any facts showing
prejudice. The court further observed that it needed to review Williams’ postconviction motion to
determine the necessity of an evidentiary hearing.
         Whether default judgment should be entered because of a party’s failure to timely respond
to a petition rests within the discretion of the trial court, and an abuse of discretion must
affirmatively appear to justify a reversal on such a ground. Mason State Bank v. Sekutera, 236
Neb. 361, 461 N.W.2d 517 (1990). In his brief on appeal, Williams does not argue that he was
prejudiced by the delay, and we find no abuse of discretion in the district court’s denial of
Williams’ motions for default judgment. Regardless of the timing of the State’s response, it was
necessary for the district court to independently assess the merits of Williams’ motion to determine
whether he was entitled to an evidentiary hearing and appointment of counsel. This assignment of
error is without merit.
                             2. INEFFECTIVE ASSISTANCE OF COUNSEL
        Normally, a voluntary guilty plea waives all defenses to a criminal charge. State v. Lee,
290 Neb. 601, 861 N.W.2d 393 (2015). However, in a postconviction proceeding brought by a
defendant convicted because of a guilty plea or a plea of no contest, a court will consider an
allegation that the plea was the result of ineffective assistance of counsel. Id. A motion for
postconviction relief cannot be used to secure review of issues which were or could have been
litigated on direct appeal. State v. Ross, 296 Neb. 923, 899 N.W.2d 209 (2017). When a defendant
is represented both at trial and on direct appeal by the same lawyer, the defendant’s first
opportunity to assert ineffective assistance of counsel is in a motion for postconviction relief. Id.
        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. Ross, supra. Next, the defendant must show that counsel’s deficient performance
prejudiced the defense in his or her case. Id. When a conviction is based upon a guilty or no contest
plea, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the
defendant shows a reasonable probability that but for the errors of counsel, the defendant would
have insisted on going to trial rather than pleading guilty or no contest. State v. Barrera-Garrido,
296 Neb. 647, 895 N.W.2d 661 (2017). Under the framework of Strickland v. Washington, supra,
a court may address the two elements, deficient performance and prejudice, in either order. State
v. Ross, supra.
        Williams presents arguments on appeal concerning the penalty advisement he received
from the district court during the plea hearing, and he alleges a breach of the plea agreement in
connection with the counts upon which he was sentenced. As noted above, Williams’ assignments
of error and arguments are somewhat difficult to follow. However, to the extent that Williams
argues that he received ineffective assistance of counsel in connection with these claims, we
address his arguments below.




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                                       (a) Penalty Advisement
        Williams argues that, during the plea hearing, the trial court incorrectly advised him of the
“Total Potential Penal Consequences” of the counts to which he was pleading no contest. Brief for
appellant at 13. Specifically, he complains of the court’s failure to inform him that the minimum
possible penalty for counts 1 and 5 (the counts of attempted first degree assault), Class III felonies,
was one year. Although Williams argues that the court only advised him of the penalty for count
1 and not count 5, the record affirmatively refutes this allegation. In advising Williams of the
possible penalties on these counts, the court stated, “Counts 1 and 5 are Class III felonies. They
carry up to 20 years’ imprisonment and a $25,000 fine or both fine and imprisonment. The court
went on to ask if Williams understood “the possible penalties the Court could impose on Counts 1
and 5,” and Williams indicated his understanding. Williams does not argue that he was prejudiced
by the trial court’s failure to inform him of the one year minimum penalty for these charges. Nor
does he argue that had he known of the one year minimum, he would not have pled no contest to
counts 1 and 5 and would have insisted on going to trial.
        The Nebraska Supreme Court has found that a court’s failure to advise a defendant of the
correct statutory minimum and maximum penalties does not automatically warrant reversal. State
v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015). In Russell, the court found that the defendant
suffered no prejudice when he was advised of a higher minimum penalty than that mandated by
statute, finding it “inconceivable that [the defendant] would plead no contest after being advised
of a 20-year minimum sentence but would not have entered such a plea if he were properly
informed that the minimum sentence was 15 years.” Id., 291 Neb. at 42, 863 N.W.2d at 820-21.
The Supreme Court has stated, “If it can be determined that the defendant understood the nature
of the charge, the possible penalty, and the effect of his plea, then there is no manifest injustice
that would require that the defendant be permitted to withdraw his plea.” State v. Rouse, 206 Neb.
371, 375-76, 293 N.W.2d 83, 86 (1980). See, also, State v. Jipp, 214 Neb. 577, 334 N.W.2d 805
(1983) (finding no prejudice where defendant was advised of lower maximum penalty than that
mandated by statute).
        In this case, Williams was advised of the correct maximum possible penalty for both of the
attempted first degree assault charges and was sentenced within the statutory range for each of
those convictions. With respect to the other count to which he pled (count 2, use of a firearm), he
was advised that as a Class IC felony, it carried a 5 year mandatory minimum and a maximum of
50 years’ imprisonment, and that the court had to impose a consecutive sentence on that count.
Under these circumstances and given the favorable nature of the plea agreement (pleading to three
counts in exchange for dismissal of five other charges, which were Class IC and ID felonies), it
seems very unlikely that had the trial court informed Williams of the one year minimum on counts
1 and 5, he would have rejected the plea agreement and insisted on going to trial. Williams has not
shown that he was prejudiced by his trial counsel’s failure to object to the penalty advisement.
                               (b) Alleged Breach of Plea Agreement
       Williams argues that there was a breach of the plea agreement and that he was improperly
sentenced on counts 1, 2, 3, and 4, instead of on counts 1, 2, and 5. Although the trial court
misspoke when it sentenced him on count 5 during the sentencing hearing, the record does not



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show that Williams was prejudiced. Williams entered pleas of no contest to counts 1, 2, and 5 (two
Class III felonies and one Class 1C felony), and the court then dismissed counts 3, 4, 6, 7, and 8.
The court accepted Williams’ pleas and found him guilty of counts 1, 2, and 5. In sentencing
Williams on count 5, although the court inadvertently referenced counts 3 and 4 and did not
directly reference count 5, it is clear that Williams was only sentenced on a total of three counts
and that he received sentences within the statutory ranges for two Class III felonies and one Class
1C felony. The record refutes any assertion that objection by his trial counsel to the misstatement
would have changed the outcome of Williams’ sentencing.
                                            3. PLAIN ERROR
        Williams asserts that the district court erred in failing to find plain error by the trial court
in giving the penalty advisement during the plea hearing and in sentencing him on counts dismissed
pursuant to the plea agreement. We have already addressed these issues in terms of Williams’
claims of ineffective assistance of counsel. In terms of his allegations of trial court error, the district
court correctly found that plain error cannot be asserted in a postconviction proceeding to raise
claims of error by the trial court. See State v. Sepulveda, 278 Neb. 972, 775 N.W.2d 40 (2009).
Williams’ arguments to the contrary are without merit.
                                       4. EVIDENTIARY HEARING
         Williams asserts that the district court erred in failing to grant him an evidentiary hearing.
A court must grant an evidentiary hearing to resolve the claims in a postconviction motion when
the motion contains factual allegations which, if proved, constitute an infringement of the
defendant’s rights under the Nebraska or federal Constitution. State v. Vela, 297 Neb. 227, 900
N.W.2d 8 (2017). If a postconviction motion alleges only conclusions of fact or law, or if the
records and files in the case affirmatively show that the defendant is entitled to no relief, the court
is not required to grant an evidentiary hearing. Id. As discussed above, Williams’ motion for
postconviction relief does not show a violation of his constitutional rights and the record
affirmatively shows he is not entitled to postconviction relief. Accordingly, the court did not err in
failing to grant an evidentiary hearing.
                                     5. APPOINTMENT OF COUNSEL
        Williams asserts that the district court erred by denying his request for appointment of
postconviction counsel. There is no federal or state constitutional right to an attorney in state
postconviction proceedings. State v. Custer, 298 Neb. 279, 903 N.W.2d 911 (2017). 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. Id. Where the assigned errors in the postconviction
petition before the district court are either procedurally barred or without merit, establishing that
the postconviction action contained no justiciable issue of law or fact, it is not an abuse of
discretion to fail to appoint appellate counsel for an indigent defendant. Id. As discussed above,
Williams’ postconviction motion presents no justiciable issues. Accordingly, the district court did
not err in denying his request for appointment of postconviction counsel.




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                              VI. CONCLUSION
The district court did not err in denying Williams’ motion for postconviction relief.
                                                                                AFFIRMED.




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