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01/29/2016 09:04 AM CST




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                                           Nebraska A dvance Sheets
                                            292 Nebraska R eports
                                                 STATE v. DETERMAN
                                                  Cite as 292 Neb. 557




                                        State of Nebraska, appellee, v.
                                        A aron L. Determan, appellant.
                                                    ___ N.W.2d ___

                                         Filed January 29, 2016.   No. S-13-756.

                1.	 Postconviction: Appeal and Error. In appeals from postconvic-
                    tion proceedings, an appellate court independently resolves questions
                    of law.
                2.	 Postconviction: Constitutional Law. A trial court’s ruling that the
                    petitioner’s allegations are refuted by the record or are too conclusory
                    to demonstrate a violation of the petitioner’s constitutional rights is not
                    a finding of fact—it is a determination, as a matter of law, that the peti-
                    tioner has failed to state a claim for postconviction relief.
                3.	 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 record
                    and files affirmatively show that the defendant is entitled to no relief.
                4.	 Effectiveness of Counsel: Appeal and Error. Determinations regard-
                    ing whether counsel was deficient and whether the defendant was
                    prejudiced are questions of law that an appellate court reviews indepen-
                    dently of the lower court’s decision.
                5.	 Postconviction: Final Orders. Within a postconviction proceeding,
                    an order granting an evidentiary hearing on some issues and denying
                    a hearing on others is a final, appealable order as to the claims denied
                    without a hearing.
                6.	 Postconviction: Time: Appeal and Error. Pursuant to Neb. Rev. Stat.
                    § 25-1912 (Reissue 2008), a defendant has just 30 days to appeal from
                    the denial of an evidentiary hearing; the failure to do so results in the
                    defendant’s losing the right to pursue those allegations further.
                7.	 Criminal Law: Appeal and Error. When a decision of the Nebraska
                    Supreme Court results in a new rule, that rule applies to all criminal
                    cases still pending on direct review.
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                   Nebraska A dvance Sheets
                    292 Nebraska R eports
                       STATE v. DETERMAN
                        Cite as 292 Neb. 557

   Petition for further review from the Court of Appeals,
Inbody, R iedmann, and Bishop, Judges, on appeal thereto from
the District Court for Saline County, Vicky L. Johnson, Judge.
Judgment of Court of Appeals affirmed.
   Jeffrey A. Gaertig, of Carlson, Schafer & Davis, P.C., L.L.O.,
for appellant.
  Aaron L. Determan, pro se.
  Douglas J. Peterson and Jon Bruning, Attorneys General,
Nathan A. Liss, and Melissa R. Vincent for appellee.
  Wright, Connolly, Cassel, and Stacy, JJ.
  Per Curiam.
                        INTRODUCTION
   Aaron L. Determan’s motion for postconviction relief was
granted in part, and in part denied. Determan appealed the por-
tion of the district court’s order denying relief. The Nebraska
Court of Appeals vacated that portion of the district court’s
order denying relief and remanded the cause for further pro-
ceedings. The primary issue presented by this appeal is what
procedure the district court should follow when considering a
postconviction motion that raises both an allegation that trial
counsel was ineffective for failing to file a direct appeal and
other ineffective assistance of counsel claims.
                  FACTUAL BACKGROUND
   Determan pled guilty to one count of unlawful manufacture
or distribution of a controlled substance. He was sentenced
to 8 to 10 years’ imprisonment. Determan’s direct appeal was
dismissed on June 28, 2013, in case No. A-13-441, because his
poverty affidavit was untimely filed.
   On August 16, 2013, Determan filed a motion for post-
conviction relief alleging that his counsel was ineffective in
failing to (1) file a direct appeal, (2) object to the denial
of Determan’s motion to postpone sentencing, (3) advise
Determan of the strength and weakness of the State’s evidence,
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                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                             STATE v. DETERMAN
                              Cite as 292 Neb. 557

(4) argue mitigating factors at sentencing, and (5) object when
the State violated the terms of the plea agreement by making a
statement at sentencing.
   The district court granted Determan an evidentiary hear-
ing on the allegation regarding Determan’s direct appeal, but
denied the remaining allegations. In denying those allegations,
the district court concluded that Determan could not show that
his counsel’s performance was deficient.
   Determan appealed from the denial of postconviction relief.
In vacating the order and remanding the cause, the Court of
Appeals relied upon its decision in State v. Seeger.1 In Seeger,
the defendant had filed a postconviction motion alleging that
his trial counsel was ineffective for failing to file a direct
appeal and was also ineffective in other particulars. The district
court granted an evidentiary hearing on the direct appeal issue,
but denied the remainder of the claims. The defendant appealed
from that denial.
   On appeal, the defendant argued that the district court erred
both in denying his other claims of ineffective assistance
of counsel and in not deferring ruling on those other claims
until after it held an evidentiary hearing on his direct appeal
allegation.
   The Court of Appeals concluded that there was no authority
for the defendant’s position that the ruling on the other claims
should be deferred until after a new evidentiary hearing was
held and that thus, it was not error for the district court to
decide those issues before holding an evidentiary hearing on
the direct appeal claim. But the Court of Appeals observed that
“judicial economy may have been served by deferring ruling
on the balance of the postconviction claims.”2 The Court of
Appeals noted:
      A better procedure would be to defer ruling on the bal-
      ance of the postconviction claims until after the eviden-
      tiary hearing on the entitlement to a new direct appeal has

 1	
      State v. Seeger, 20 Neb. App. 225, 822 N.W.2d 436 (2012).
 2	
      Id. at 230, 822 N.W.2d at 441.
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                       Nebraska A dvance Sheets
                        292 Nebraska R eports
                           STATE v. DETERMAN
                            Cite as 292 Neb. 557

      been held. If a new direct appeal is granted, the remaining
      postconviction claims could be dismissed as premature
      and thereafter raised in the direct appeal.3
Though the Court of Appeals set forth this procedure, it
addressed the district court’s denial of the defendant’s claim in
that appeal and affirmed.
   In the case at bar, the district court did not follow the proce-
dure set forth in Seeger. Instead, in one order, the district court
granted an evidentiary hearing on Determan’s direct appeal
claim while denying the remainder of his claims. The Court of
Appeals, citing Seeger, vacated the denial of the “other” claims
and remanded the cause for further proceedings. The Court of
Appeals also made the holding in Seeger explicit:
      Therefore, we are now setting forth that where a defend­
      ant alleges multiple postconviction claims of ineffective
      assistance of counsel including a claim that counsel was
      deficient in failing to timely file, or otherwise timely
      perfect, a direct appeal, the district court shall make its
      determination regarding the claim regarding the direct
      appeal, including holding an evidentiary hearing if the
      court determines that an evidentiary hearing is necessary,
      prior to addressing the defendant’s other postconviction
      claims. We also note that although the issue is not directly
      presented to us, judicial economy would be best served
      by following this same procedure in all postconviction
      cases where the district court determines that an eviden-
      tiary hearing is needed on one or more of the defendant’s
      claims but not on other claims.4
Accordingly, the Court of Appeals vacated the district court’s
denial of the “other” allegations and remanded the cause for
further proceedings.5
   We granted the State’s petition for further review.

 3	
      Id. at 230-31, 822 N.W.2d at 442.
 4	
      State v. Determan, 22 Neb. App. 683, 691-92, 859 N.W.2d 899, 906
      (2015).
 5	
      State v. Determan, supra.
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                        Nebraska A dvance Sheets
                         292 Nebraska R eports
                             STATE v. DETERMAN
                              Cite as 292 Neb. 557

                 ASSIGNMENTS OF ERROR
   The State assigns that the Court of Appeals erred in (1) man-
dating an incorrect procedure for the district court to follow
when considering postconviction motions that allege the inef-
fective assistance of counsel for failing to file a direct appeal
and (2) vacating the district court’s order and remanding the
cause for further proceedings where the procedure was newly
adopted in State v. Determan.6
                    STANDARD OF REVIEW
   [1-3] In appeals from postconviction proceedings, we inde-
pendently resolve questions of law.7 A trial court’s ruling that
the petitioner’s allegations are refuted by the record or are too
conclusory to demonstrate a violation of the petitioner’s con-
stitutional rights is not a finding of fact—it is a determination,
as a matter of law, that the petitioner has failed to state a claim
for postconviction relief.8 Thus, in appeals from postconviction
proceedings, an appellate court reviews de novo a determina-
tion that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that
the record and files affirmatively show that the defendant is
entitled to no relief.9
   [4] Determinations regarding whether counsel was deficient
and whether the defendant was prejudiced are questions of law
that we review independently of the lower court’s decision.10
                           ANALYSIS
   In its petition for further review, the State argues that the
Court of Appeals erred in the procedure it set forth for dis-
trict courts to follow when considering those postconviction
motions that alleged both the ineffectiveness of counsel in

 6	
      Id.
 7	
      State v. Dragon, 287 Neb. 519, 843 N.W.2d 618 (2014).
 8	
      Id.
 9	
      Id.
10	
      State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012).
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                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                              STATE v. DETERMAN
                               Cite as 292 Neb. 557

failing to file a direct appeal and other allegations of ineffec-
tive assistance of counsel.
   The Court of Appeals’ procedure, as stated in Seeger and
Determan, requires a district court to first “make its determina-
tion regarding the claim regarding the direct appeal, including
holding an evidentiary hearing if the court determines that
an evidentiary hearing is necessary, prior to addressing the
defend­ant’s other postconviction claims.”11
   [5,6] The State argues that the Court of Appeals’ proce-
dure is incorrect insofar as it risks depriving a defendant of
his right to appeal should the district court deny that portion
of a postconviction motion seeking a new direct appeal. The
State correctly notes that within a postconviction proceeding,
an order granting an evidentiary hearing on some issues and
denying a hearing on others is a final, appealable order as to
the claims denied without a hearing.12 As such, a defendant has
just 30 days to appeal from that denial.13 The failure to do so
results in the defendant’s losing the right to pursue those alle-
gations further.14
   The procedure as set forth by the Court of Appeals requires
a defendant to wait for one final order entered after all of his
or her claims are disposed of. The procedure, as currently com-
posed, places a defendant in a tenuous position: he or she must
either appeal from the denial of his or her request for a new
direct appeal or hope that the district court grants postconvic-
tion relief on the yet-unresolved claims. Moreover, as the State
notes, the district court’s later determination of the nondirect
appeal claims could be rendered meaningless where a new

11	
      State v. Determan, supra note 4, 22 Neb. App. at 692, 859 N.W.2d at 906.
12	
      See, State v. Robinson, 287 Neb. 606, 843 N.W.2d 672 (2014); State v.
      Harris, 267 Neb. 771, 677 N.W.2d 147 (2004); State v. Silvers, 255 Neb.
      702, 587 N.W.2d 325 (1998).
13	
      Neb. Rev. Stat. § 25-1912 (Reissue 2008).
14	
      See, State v. Timmens, 282 Neb. 787, 805 N.W.2d 704 (2011); State v.
      Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
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                          Nebraska A dvance Sheets
                           292 Nebraska R eports
                               STATE v. DETERMAN
                                Cite as 292 Neb. 557

direct appeal is granted, because those claims could be raised
in a new direct appeal.15
   We agree with the Court of Appeals that multiple appeals
from various parts of one postconviction motion do not serve
judicial economy. And we agree with the State that such a
procedure as currently set forth by the Court of Appeals could,
in certain circumstances, place a defendant in a difficult posi-
tion and result in needless determinations by the district court
regarding the underlying merits of a postconviction motion.
   Keeping in mind these considerations, we modify the Court
of Appeals’ procedure to be followed by those district courts
that are presented with postconviction motions alleging both a
direct appeal claim and other claims of ineffective assistance
of counsel. In the future, the district court should first address
the claim that counsel was ineffective for failing to file a
direct appeal, including holding an evidentiary hearing, if
required. Upon reaching its decision, the district court should
enter a final order on that claim only. If the claim for a new
direct appeal is denied, a defendant should be permitted to
appeal that denial. Only after the resolution of that appeal, or,
alternatively, the expiration of the defendant’s time to appeal,
should the district court proceed to consider the remain-
ing claims.
   We note that this procedure is applicable only in those
situations where a defendant raises both the ineffectiveness of
counsel for not filing a direct appeal along with other allega-
tions of ineffectiveness. In situations where a defendant does
not allege the ineffectiveness of counsel in not filing a direct
appeal, the usual rule of finality applies, and an order granting
an evidentiary hearing on some issues and denying a hear-
ing on others is a final order as to the claims denied without
a hearing.16

15	
      State v. Caddy, 262 Neb. 38, 628 N.W.2d 251 (2001).
16	
      State v. Robinson, supra note 12; State v. Harris, supra note 12; State v.
      Silvers, supra note 12.
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                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                              STATE v. DETERMAN
                               Cite as 292 Neb. 557

   While we adopt a slightly different procedure than the one
proposed by the Court of Appeals, we agree that the proper dis-
position of the underlying appeal in this case is that the district
court’s order denying certain postconviction claims should be
vacated and the cause remanded for further proceedings. And
we emphasize that this will be the disposition of cases violat-
ing this procedure in the future.
   [7] Finally, we note that the State argues that this proce-
dural rule is newly adopted and thus should be applied only
prospectively. This is a correct statement as far as it goes.
But, “‘[w]hen a decision of this Court results in a “new rule,”
that rule applies to all criminal cases still pending on direct
review.’”17 And this case is still pending on direct review.
Moreover, though the parameters of the procedural rule might
not have been well defined prior to the Court of Appeals’ deci-
sion in this case, a version of the procedure existed such that
we are not persuaded that the rule was new.
   We affirm the decision of the Court of Appeals.
                        CONCLUSION
   The decision of the Court of Appeals is affirmed.
                                                   A ffirmed.
   Heavican, C.J., and Miller-Lerman, J., participating on
briefs.

17	
      State v. Mantich, 287 Neb. 320, 329, 842 N.W.2d 716, 724 (2014) (quoting
      Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442
      (2004)).
