                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                    STATE V. UEDING-NICKEL


  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.

                               CARL UEDING-NICKEL, APPELLANT.


                            Filed October 23, 2018.    No. A-17-732.


       Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge.
Affirmed.
       Zachary S. Hindman, of Mayne, Arneson, Hindman, Hisey & Daane, for appellant.
       Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.


       PIRTLE, RIEDMANN, and WELCH, Judges.
       PIRTLE, Judge.
                                        INTRODUCTION
        Carl Ueding-Nickel appeals the order of the district court for Douglas County which
overruled his motion for postconviction relief without an evidentiary hearing and without
appointing counsel. He claims the district court erred when it denied his motions for an evidentiary
hearing and appointment of counsel and when it denied his motion for postconviction relief. For
the reasons that follow, we affirm the district court’s order.
                                        BACKGROUND
        On January 24, 2014, Ueding-Nickel was charged by information with one count of sexual
assault on a child in the first degree, a Class IB felony; one count of sexual assault on a child in
the third degree, a Class IIIA felony; one count of visual depiction of sexually explicit conduct of




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a child while defendant is 19 years of age or older, a Class ID felony; and one count of tampering
with physical evidence, a Class IV felony.
         Ueding-Nickel was provided a court appointed attorney. Ueding-Nickel brought a motion
to suppress his statements to the police on the basis of his alleged intoxication and mental health.
The motion to suppress was denied by the district court on July 25, 2014. On October 22,
Ueding-Nickel’s counsel filed a motion to withdraw as attorney of record, which motion was
granted by the district court.
         Ueding-Nickel was subsequently appointed new counsel. Pursuant to a plea agreement
Ueding-Nickel agreed to a stipulated bench trial in exchange for the state dropping all but the first
count of sexual assault of a child. Ueding-Nickel was found guilty of sexual assault on a child in
the first degree and was sentenced to a term of 50 to 60 years’ imprisonment.
         Ueding-Nickel filed a timely appeal regarding his conviction and was represented by
counsel on appeal. Ueding-Nickel challenged the denial of his motion to suppress statements he
gave to police following his arrest and the length of his sentence. See State v. Ueding-Nickel, No.
A-15-210, 2015 WL 7456006 (Neb. App. Nov. 24, 2015) (selected for posting to court website).
His primary argument as to the motion to suppress was that his statement was not voluntary as it
was the “‘product of both his mental health and his extreme level of intoxication.’” Id. at *3. This
court determined that the district court properly denied the motion to suppress and that the length
of Ueding-Nickel’s sentence was not excessive. In reaching this conclusion, this court reviewed
the evidence and found that Officer Worley was a credible witness, and that the video of
Ueding-Nickel showed that he did not appear to be intoxicated or under the influence of drugs or
alcohol.
         Ueding-Nickel subsequently filed a timely motion for postconviction relief along with
motions for appointment of counsel and for an evidentiary hearing all on August 15, 2016. The
motion for postconviction relief was premised on ineffective assistance of counsel for both of
Ueding-Nickel’s trial counsel and his appellate counsel.
         The district court issued an order on June 19, 2017, determining that Ueding-Nickel had
failed to demonstrate that any of the allegations would have changed the outcome of the conviction
and that he failed to show that he would had been prejudiced by any alleged ineffective assistance
of his attorneys. In the same order the district court denied the motion for an evidentiary hearing
and motion for appointment of counsel.
         Ueding-Nickel appeals from the June 19, 2017, order.
         For a detailed recitation of the underlying facts see State v. Ueding-Nickel, supra.
                                   ASSIGNMENTS OF ERROR
        Ueding-Nickel asserts the district court erred in denying his motion for postconviction
relief by determining that the claims were procedurally barred. Ueding-Nickel further asserts that
the district court erred in denying his motions for an evidentiary hearing and appointment of
counsel on the basis that he created justiciable claims of ineffective assistance of his trial counsel.




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                                    STANDARD OF REVIEW
        A defendant requesting postconviction relief must establish the basis for such relief, and
the findings of the trial court will not be disturbed unless they are clearly erroneous. State v. Vo,
279 Neb. 964, 783 N.W.2d 416 (2010).
        To establish a right to postconviction relief based on a claim of ineffective assistance of
counsel, a defendant has the burden to show that counsel’s performance was deficient and that
counsel’s deficient performance prejudiced the defense in his or her case. Id.
        Failure to appoint counsel in postconviction proceedings is not error in the absence of an
abuse of discretion. State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
                                            ANALYSIS
        We first note that Ueding-Nickel does not assign error to the district court’s determination
that his appellate counsel was not ineffective. To be considered by an appellate court, an alleged
error must be both specifically assigned on appeal and specifically argued in the appellate brief of
the party assigning the error. Heitzman v. Thompson, 270 Neb. 600, 705 N.W.2d 426 (2005). As
such, the court will not address the performance of the appellate counsel.
Motion for Postconviction Relief.
        Ueding-Nickel alleges that the district court improperly denied his motion for
postconviction relief as being procedurally barred. Whether a claim raised in a motion for
postconviction relief is procedurally barred is a question of law. State v. Sims, 277 Neb. 192, 761
N.W.2d 527 (2009).
        In its order, the district court noted the procedural history of the case and that
Ueding-Nickel had previously appealed the denial of his motion to suppress on the basis of
intoxication and mental incapacity and that it was affirmed by this court. The district court then
stated, “[a]s such, [Ueding-Nickel] is procedurally barred from raising those issues in his motion
for postconviction relief.” This statement does not relate to the district court’s determination of the
allegations of ineffective assistance of counsel. It is merely a statement as to what issues could not
be considered in the postconviction relief motion. The court continued after this statement of the
procedural posture of the case to make determinations specifically relating to Ueding-Nickel’s
claims regarding ineffective assistance of counsel. Therefore, we find this assignment of error
without merit.
Motions for Evidentiary Hearing and Appointment of Counsel.
        Ueding-Nickel alleges that the district court erred in denying his motions for an evidentiary
hearing and appointment of counsel on the basis that he pled a justiciable claim of ineffective
assistance of his trial counsel based on six areas where he alleged his trial counsel was ineffective.
        An evidentiary hearing for postconviction relief must be granted when the motion contains
factual allegations which, if proved, constitute an infringement of the movant’s rights. State v.
McGhee, supra. However, postconviction relief without an evidentiary hearing is properly denied
when the files and records affirmatively show that the prisoner is entitled to no relief. State v.
Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).



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         In the absence of a showing of an abuse of discretion, the failure to provide court-appointed
counsel in postconviction proceedings is not error. State v. Mata, 280 Neb. 849, 790 N.W.2d 716
(2010). When the assigned errors in a postconviction petition before a district court contain no
justiciable issues of fact or law, it is not an abuse of discretion to fail to appoint counsel for an
indigent defendant. State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).
         Ueding-Nickel first claims that his trial attorneys were deficient in their presentation of
evidence as to Ueding-Nickel’s allegation that his post-Miranda statements were involuntary due
to his intoxication. Ueding-Nickel recites a variety of factual allegations to support this claim, the
majority of which were in the record that was reviewed by this court on direct appeal. As such
evidence was previously reviewed and affirmed by this court as to Ueding-Nickel’s post-Miranda
statements, there can be no justiciable claim as to ineffective assistance of counsel as there can be
no prejudice. See State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016). The only new factual
allegations that were presented by Ueding-Nickel as to this point, were the detox reports from his
initial incarceration. Ueding-Nickel alleges these documents along with the fact that he was placed
in a detox unit at the Douglas County Department of Corrections’ facility demonstrate that he was
severely intoxicated at the time of his post-Miranda statements. However, on their face these
documents do not establish that Ueding-Nickel was intoxicated at the time, only that due to his
substance abuse he was at risk for suffering substance withdrawal which was treated by the staff.
Therefore, Ueding-Nickel has not presented a justiciable claim as to his post-Miranda statements
on the basis of intoxication.
         Ueding-Nickel’s second claim is that his trial attorneys were deficient in their presentation
of evidence as to Ueding-Nickel’s allegation that his post-Miranda statements were involuntary
due to his mental illnesses. Like Ueding-Nickel’s prior allegation, this claim rests on facts that
were already in the record of the direct appeal. Ueding-Nickel primarily points to a letter dated
December 11, 1996, from psychiatrist D.A. Swanson, M.D., which notes a number of disorders
that Ueding-Nickel was receiving treatment for. In considering whether a statement was made
voluntarily, the totality of the circumstances must be considered. State v. Erks, 214 Neb. 302, 333
N.W.2d 776 (1983). However, we cannot find that a nearly 20-year-old letter, without additional
evidence that Ueding-Nickel was suffering these disorders at the time of his statements, would
have any impact on the totality of the circumstances surrounding his statements. As such, there
was no prejudice in Ueding-Nickel’s trial counsel failing to present this evidence on the motion to
suppress. Therefore, Ueding-Nickel has not presented a justiciable claim as to his post-Miranda
statements on the basis of mental illness.
         Ueding-Nickel’s third claim is that his trial attorneys were deficient in their presentation
of evidence as to Ueding-Nickel’s allegation that his post-Miranda statements were involuntary
due to coercion by law enforcement. He alleges that this occurred when he was allowed to go to
the restroom while he was being held prior to his questioning. During this time, Ueding-Nickel
alleges he was approached by an unknown officer who suggested that he would receive favorable
treatment if he admitted the alleged crimes. This alleged encounter was not captured in the video
of the interview room. The first time this allegation appears in the record is in Ueding-Nickel’s
motion for postconviction relief. In addition, Ueding-Nickel does not allege that he informed either
of his trial attorneys of this encounter. We cannot find that either of the trial attorneys were



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deficient in failing to investigate an incident which they had no knowledge of. Therefore,
Ueding-Nickel has not presented a justiciable claim as to the deficiency of his trial attorneys in
investigating and objecting to his post-Miranda statements on the basis of coercion by law
enforcement.
        Ueding-Nickel’s fourth claim is that his trial attorneys were deficient in their investigation
and presentation of exculpatory evidence. The majority of these allegations were already present
in the record and were reviewed by this court on direct appeal. Ueding-Nickel alleges there were
additional witnesses that could have been called to provide exculpatory testimony. However, none
of the suggested testimony relates to his statements to law enforcement in which he admitted the
crime he was ultimately convicted of. Thus, there is no prejudice as to this allegation as the
inclusion of this evidence would not have impacted the outcome, whether taken individually or
collectively. Therefore, Ueding-Nickel has not presented a justiciable claim as to the investigation
and presentation of exculpatory evidence.
        Ueding-Nickel’s fifth claim is that his trial attorneys were deficient in both the performance
in litigating the motion to suppress and in investigating the exculpatory evidence, either
individually or cumulatively. This claim is essentially a repetition of Ueding-Nickel’s earlier
claims and therefore does not present a justiciable issue.
        Ueding-Nickel’s final claim is that his trial attorneys were deficient in ensuring
Ueding-Nickel was competent for trial. This allegation presents no additional facts beyond what
was already in the record. Thus, the court finds that there was no prejudice to Ueding-Nickel as
the earlier evidence was already a part of the record for consideration by both the district court and
this court. Therefore, Ueding-Nickel has not presented a justiciable claim as to his competency.
        As Ueding-Nickel has failed to present any justiciable issues in his motion for
postconviction relief, we find that the district court properly denied the motion for an evidentiary
hearing as Ueding-Nickel was not entitled to relief. Further, we find that the district court did not
abuse its discretion in denying his motion for appointment of counsel as he did not present any
justiciable claims.
                                            CONCLUSION
        We conclude the district court did not err in denying Ueding-Nickel’s request for
postconviction relief, an evidentiary hearing, and the appointment of counsel. Ueding-Nickel was
not entitled to relief and the district court did not abuse its discretion. The order of the district court
is affirmed.
                                                                                              AFFIRMED.




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