Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/25/2019 01:06 AM CDT




                                                        - 404 -
                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                                  STATE v. PRIVETT
                                                  Cite as 303 Neb. 404




                                        State of Nebraska, appellee, v.
                                         Phillip M. Privett, appellant.
                                                    ___ N.W.2d ___

                                          Filed June 21, 2019.    No. S-18-775.

                 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 record
                    and files affirmatively show that the defendant is entitled to no relief.
                 2. Postconviction: Constitutional Law: Proof. 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.
                 3. Postconviction: Pleadings. A defendant is required to make specific
                    allegations instead of mere conclusions of fact or law in order to receive
                    an evidentiary hearing for postconviction relief.
                 4. Postconviction: Appeal and Error. When a district court denies post-
                    conviction relief without conducting an evidentiary hearing, an appel-
                    late court must determine whether the petitioner has alleged facts that
                    would support the claim and, if so, whether the files and records affirm­
                    atively show that he or she is entitled to no relief.
                 5. Effectiveness of Counsel: Pleas: Waiver. Generally, a voluntary guilty
                    plea or plea of no contest waives all defenses to a criminal charge. Thus,
                    when a defendant pleads guilty or no contest, he or she is limited to
                    challenging whether the plea was understandingly and voluntarily made
                    and whether it was the result of ineffective assistance of counsel.
                 6. Postconviction: Effectiveness of Counsel: Pleas. 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.
                                    - 405 -
             Nebraska Supreme Court A dvance Sheets
                     303 Nebraska R eports
                              STATE v. PRIVETT
                              Cite as 303 Neb. 404

 7. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
    In order 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. Next, the defendant
    must show that counsel’s deficient performance prejudiced the defense
    in his or her case.
 8. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
    tion is based upon a guilty plea, the prejudice requirement for an inef-
    fective 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.
 9. Effectiveness of Counsel: Appeal and Error. The two prongs of the
    ineffective assistance of counsel test under Strickland v. Washington,
    466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), deficient per-
    formance and prejudice, may be addressed in either order.
10. Effectiveness of Counsel: Proof. In the context of a claim of ineffec-
    tiveness of counsel for failure to investigate, allegations are too specula-
    tive to warrant relief if the petitioner fails to allege what exculpatory
    evidence that the investigation would have procured and how it would
    have affected the outcome of the case.
11. Effectiveness of Counsel: Pleas: Proof. Self-serving declarations that
    a defendant would have gone to trial are not enough to warrant a hear-
    ing; a defendant must present objective evidence showing a reasonable
    probability that he or she would have insisted on going to trial.

  Appeal from the District Court for Knox County: James G.
Kube, Judge. Affirmed.

  Michael J. Wilson, of Schaefer Shapiro, L.L.P., for
appellant.

  Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.

  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
                              - 406 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        STATE v. PRIVETT
                        Cite as 303 Neb. 404

  Cassel, J.
                       INTRODUCTION
   Phillip M. Privett appeals from an order denying his motion
for postconviction relief without an evidentiary hearing. He
raises two claims of ineffective assistance of trial counsel.
Although he asserts that counsel failed to investigate and
advise him of a viable defense, his motion failed to allege
sufficient facts. He also claims that in response to his hearing
impairment, counsel failed to request the court to amplify its
voice or employ a telecommunications device. But, the record
affirmatively refutes his claim. We affirm.

                        BACKGROUND
   The State charged Privett with first degree murder and use
of a firearm to commit a felony. Two attorneys were appointed
to represent him. Pursuant to a plea agreement, the State
amended the first count to second degree murder and Privett
pled no contest to both counts. The district court sentenced
him to 30 to 50 years’ imprisonment for second degree murder
and not less than or more than 10 years’ imprisonment for use
of a firearm to commit a felony.
   On direct appeal, Privett assigned that he received excessive
sentences. The Nebraska Court of Appeals summarily affirmed
his sentences.
   Represented by different counsel, Privett filed an amended
motion for postconviction relief, asserting two claims of inef-
fective assistance of trial counsel. First, he claimed that trial
counsel were ineffective when they failed “to adequately inves-
tigate and advise Privett as to ‘the available options and pos-
sible consequences’ prior to pleading no contest.” Second,
he asserted that trial counsel were ineffective for failing “to
request continued amplification of the words of [the district
court] and the parties at the plea hearing [or] provid[e] a tele-
communications device for the deaf.”
   The district court denied postconviction relief without
an evidentiary hearing, finding that Privett did not allege
                                  - 407 -
             Nebraska Supreme Court A dvance Sheets
                     303 Nebraska R eports
                            STATE v. PRIVETT
                            Cite as 303 Neb. 404

sufficient facts and that the record affirmatively disproved
the claims.
   Privett filed a timely appeal, which we moved to our docket.1

                  ASSIGNMENTS OF ERROR
   Privett assigns that the district court erred in denying an
evidentiary hearing on his claims for ineffective assistance of
trial counsel where counsel (1) failed to advise Privett concern-
ing a viable defense that he lacked capacity to form the intent
required to commit murder and (2) failed to request additional
amplification or a telecommunications device for the deaf dur-
ing the proceedings.
   We note that in Privett’s amended motion for postconvic-
tion relief, he claimed counsel were ineffective for failing to
advise on a defense of sudden quarrel manslaughter. On appeal,
Privett does not assign error to or argue that claim. Therefore,
we do not address it.2

                   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 record and files affirma-
tively show that the defendant is entitled to no relief.3

                           ANALYSIS
   Privett contends that the district court erred in dismissing his
claims for ineffective assistance of counsel without an eviden-
tiary hearing. Generally, he argues that his claims did not allege
mere conclusions of fact and that the record did not affirma-
tively disprove his claims. We first recite the general principles

1
    See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018); Neb. Rev. Stat.
    § 29-3002 (Reissue 2016).
2
    See State v. Munoz, ante p. 69, 927 N.W.2d 25 (2019).
3
    State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).
                                   - 408 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                             STATE v. PRIVETT
                             Cite as 303 Neb. 404

of law regarding postconviction motions and ineffective assist­
ance of counsel; we then turn to Privett’s specific claims.

                   General Principles of Law
   [2-4] 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 infringe-
ment of the defendant’s rights under the Nebraska or federal
Constitution.4 A defendant is required to make specific allega-
tions instead of mere conclusions of fact or law in order to
receive an evidentiary hearing for postconviction relief.5 When
a district court denies postconviction relief without conduct-
ing an evidentiary hearing, an appellate court must determine
whether the petitioner has alleged facts that would support the
claim and, if so, whether the files and records affirmatively
show that he or she is entitled to no relief.6
   [5,6] Generally, a voluntary guilty plea or plea of no con-
test waives all defenses to a criminal charge.7 Thus, when a
defendant pleads guilty or no contest, he or she is limited to
challenging whether the plea was understandingly and volun-
tarily made and whether it was the result of ineffective assist­
ance of counsel.8 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.9 Because Privett
pled no contest to the charges, we will consider his allega-
tions that the plea was the result of ineffective assistance of
trial counsel.

4
    Id.
5
    State v. Fox, 286 Neb. 956, 840 N.W.2d 479 (2013).
6
    State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018).
7
    State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).
8
    Id.
9
    Id.
                                     - 409 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                              STATE v. PRIVETT
                              Cite as 303 Neb. 404

   [7-9] In order 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,10 to show that counsel’s performance was defi-
cient; that is, counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law. Next,
the defendant must show that counsel’s deficient performance
prejudiced the defense in his or her case.11 When a convic-
tion is based upon a guilty 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.12 The two prongs
of the ineffective assistance of counsel test under Strickland,
deficient performance and prejudice, may be addressed in
either order.13
                              Defense
   Responding to the district court’s reasoning, Privett’s brief
on appeal argues that the district court erred in dismissing
his claim without an evidentiary hearing, “because trial coun-
sel’s comments during sentencing demonstrate that they knew
Privett had no ability to form the necessary intent to commit
murder, and that effective assistance required additional inves-
tigation from experts other than the State’s forensic [psychia-
trist, Dr.] Y. Scott Moore.”14
   Privett argues that trial counsel were deficient for failing to
investigate into his “unique personal circumstances.”15 But, as

10
     Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
     (1984).
11
     State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015).
12
     Id.
13
     Id.
14
     Brief for appellant at 7.
15
     Id. at 11.
                                    - 410 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                              STATE v. PRIVETT
                              Cite as 303 Neb. 404

the district court correctly determined, trial counsel did con-
duct a diligent investigation when they filed a notice of intent
to rely on the insanity defense and a motion for a psychologi-
cal examination of Privett. The court granted the motion for a
psychological evaluation, which was performed by Dr. Y. Scott
Moore. The record shows that Moore is a forensic psychiatrist
with the Lincoln Regional Center.
   Candidly, Privett’s remaining arguments that trial coun-
sel were ineffective for failing to investigate a defense of an
inability to form intent, to advise Privett about that defense,
and to obtain an evaluation from someone other than Moore
are intertwined. We separate them for discussion.
   Privett argues that counsel were ineffective for failing to
investigate, premising this argument upon counsel’s purported
knowledge that he could not have formed the requisite intent.
To establish counsel’s knowledge, Privett relies on two state-
ments made by trial counsel at the sentencing hearing. First,
counsel stated, “I think that the post-traumatic stress disorder
may have played a role in that as might have the medications
he’s on.” Second, counsel stated, “[W]e won’t know exactly
what happened and we won’t know why it happened.” Privett
argues that these statements alone dictated that it was neces-
sary for trial counsel to investigate further and, specifically, to
hire an independent forensic psychologist.
   [10] In the context of a claim of ineffectiveness of counsel
for failure to investigate, allegations are too speculative to
warrant relief if the petitioner fails to allege what exculpa-
tory evidence that the investigation would have procured and
how it would have affected the outcome of the case.16 Privett
broadly alleged that further investigation required an indepen-
dent forensic psychologist, but he did not allege what excul-
patory evidence would have been discovered by the forensic
psychologist or how that evidence would have affected the
outcome of the case. We agree with the district court that the

16
     State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).
                                      - 411 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                             STATE v. PRIVETT
                             Cite as 303 Neb. 404

facts alleged were insufficient to show deficient conduct by
trial counsel.
   Privett argues that trial counsel were ineffective for failing
to advise him on a defense where his post-traumatic stress dis-
order (PTSD) and medications caused him to enter a dissocia-
tive state and prevented him from forming the requisite intent.
Trial counsel appropriately relied on Moore’s evaluations when
advising Privett on viable defenses. In Moore’s evaluation of
Privett’s competency for trial, Moore remarked:
      When I talk to [Privett] about the symptoms of PTSD,
      he tells me that it is mostly a matter of being a little bit
      “jumpy” and he tells me that if he hears a loud noise, he
      still has a tendency to “hit the dirt” until he knows what
      it is.
In the evaluation regarding sanity, Moore stated that Privett
confessed to a history of alcohol usage and that with “his new
history . . . of having a great many times of no memory of
what he had been doing, there is the possibility that . . . Privett
was in a state of alcohol blackout at the time of the alleged
murder.” Further, he opined that “[o]ther than some symp-
toms of sleep difficulties and some startle reactions described
to me . . . , I cannot find any marked symptoms of PTSD in
this gentleman.”
   Moore’s evaluations refute the allegation that Privett’s PTSD
and medications caused him to enter into a dissociative state.
And Privett’s motion fails to allege facts showing that a dif-
ferent forensic psychologist likely would have concluded oth-
erwise. Without facts to show why trial counsel should not
have relied on Moore’s evaluations, there was no factual basis
for the existence of such defense. With no basis to support the
defense’s existence, trial counsel had no obligation to advise
him of it.17 Therefore, the district court did not err in finding
that the record affirmatively refuted Privett’s claim.

17
     See Armendariz, supra note 11.
                                  - 412 -
              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                            STATE v. PRIVETT
                            Cite as 303 Neb. 404

   Finally, Privett asserts that trial counsel were ineffective for
failing to obtain an independent forensic psychological evalu-
ation. In a postconviction motion, an allegation that defense
counsel was ineffective in failing to procure witnesses favor-
able to the defendant was properly dismissed without an evi-
dentiary hearing where the motion did not specifically identify
the witnesses or the nature of their testimony.18 Privett failed
to sufficiently allege whom trial counsel should have obtained
to perform an independent forensic psychological evaluation
and what the forensic psychologist would have opined as the
explanation for his failure to remember the events surround-
ing the victim’s death. We agree with the district court that
the facts alleged are insufficient to show deficient conduct by
trial counsel.
                       Hearing Impairment
   Privett contends that trial counsel were ineffective when
they failed to inform the court that he could not hear or failed
to provide him with a telecommunications device. He alleged
that after the court amplified its voice during the sentenc-
ing hearing, it then decreased the volume of its voice to a
point where he could not hear. He argues that this left him
unable to understand the nature of the proceedings against him,
which deprived him of his right to due process under the 14th
Amendment to the U.S. Constitution.
   Nebraska courts have yet to discuss whether counsel is inef-
fective for failing to inform the court when its hard-of-hearing
client cannot hear. But, an Ohio court discussed the issue in an
almost identical factual scenario.
   In State v. Thomas,19 the defendant claimed that trial coun-
sel was ineffective for failing to request a hearing device
for his hearing-impaired client. During the plea hearing, the

18
     See State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
19
     State v. Thomas, Nos. 25331, 25332, 2014 WL 1339070 (Ohio App. Mar.
     21, 2014) (unpublished opinion).
                                   - 413 -
               Nebraska Supreme Court A dvance Sheets
                       303 Nebraska R eports
                             STATE v. PRIVETT
                             Cite as 303 Neb. 404

court moved the defendant closer to the bench. The defendant
affirmed his ability to hear the court and counsel. The court
informed the defendant that if he could not hear clearly, to let it
know so it could repeat itself. The court inquired several times
throughout the plea whether the defendant could hear, and in
each instance, the defendant affirmed that he could. The Ohio
appellate court determined that the record clearly refuted the
claim. Thus, the appellate court concluded that trial counsel’s
performance was not deficient.
   Here, the record shows that Privett heard, understood, and
appropriately responded during the proceedings. At the hear-
ing during which Privett entered his pleas, he did not express
that he was having any difficulty hearing anything. All of
his answers to the court’s questions responded directly and
appropriately. And contrary to Privett’s argument on appeal,
the only hearing at which Privett expressed any difficulty in
hearing was the sentencing proceeding. During that event, one
of Privett’s counsel advised the court that Privett did not have
any working hearing aids and had told his attorney that he
was having difficulty hearing. In response, the court instructed
Privett that if he could not hear, he should inform his attorney
or raise his hand. Later, Privett did inform the court that he
could not hear. At that time, the court stated, “All right. Then
what we’ll do is postpone this and come back when he has a
hearing aid.” Privett responded, “No, sir, please don’t.” The
court then asked Privett whether he could tell the court what it
was trying to do. Privett responded, “Try to decide what [its]
going to do with me, I guess.” He then stated that he could suf-
ficiently hear the court and answered all the court’s remaining
questions without issue.
   [11] Self-serving declarations that a defendant would have
gone to trial are not enough to warrant a hearing; a defendant
must present objective evidence showing a reasonable prob-
ability that he or she would have insisted on going to trial.20

20
     State v. Barrera-Garrido, 296 Neb. 647, 895 N.W.2d 661 (2017).
                              - 414 -
           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        STATE v. PRIVETT
                        Cite as 303 Neb. 404

Privett’s self-serving declaration that the court lowered its
voice during the proceeding and that he could not hear is
clearly refuted by the record. The record shows that the dis-
trict court made every effort to ensure that Privett could hear
and understand the proceedings, including repeatedly offering
to continue the hearing to a later date. Privett declined each
invitation to postpone the sentencing. Accordingly, the district
court did not err in finding that the record affirmatively dis-
proved Privett’s allegation of not being able to hear.
                        CONCLUSION
   For the reasons set forth above, we affirm the final order of
the district court.
                                                    A ffirmed.
   Freudenberg, J., not participating.
