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no liability as a matter of law. Thus, Brothers suffered no
prejudice when he was not allowed an opportunity to present
evidence regarding the County’s motion to dismiss. We further
conclude that Brothers failed to comply with the notice provi-
sions of the Act, because he did not file his tort claim with the
statutorily designated individual. We therefore affirm the deci-
sion of the Court of Appeals.
                                                      Affirmed.
   Wright, J., not participating.



                    State of Nebraska, appellee, v.
                  Jonathon L. Armendariz, appellant.
                                    ___ N.W.2d ___

                       Filed January 16, 2015.     No. S-13-998.

 1.	 Postconviction: Constitutional Law: Appeal and Error. In appeals from post-
     conviction 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.
 2.	 Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion
     for postconviction relief must be granted when the motion contains factual alle-
     gations which, if proved, constitute an infringement of the movant’s rights under
     the Nebraska or federal Constitution. However, if the motion alleges only conclu-
     sions 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.
 3.	 Postconviction: Pleas: Effectiveness of Counsel. In a postconviction action
     brought by a defendant convicted because of a guilty plea or a plea of no con-
     test, a court will consider an allegation that the plea was the result of ineffective
     assist­ance of counsel.
 4.	 Postconviction: Effectiveness of Counsel: Appeal and Error. Although a
     motion for postconviction relief cannot be used to secure review of issues which
     were or could have been litigated on direct appeal, when a defendant was repre-
     sented 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 postcon-
     viction relief.
 5.	 Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order
     to establish a right to postconviction relief based on a claim of ineffective assist­
     ance 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
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	                                STATE v. ARMENDARIZ	897
	                                  Cite as 289 Neb. 896

        defendant must show that counsel’s deficient performance prejudiced the defense
        in his or her case.
 6.	    Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction 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.
 7.	    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 performance and prejudice, may be
        addressed in either order.
 8.	    Effectiveness of Counsel: Presumptions: Appeal and Error. The entire inef-
        fectiveness analysis is viewed with a strong presumption that counsel’s actions
        were reasonable.
 9.	    Criminal Law: Intoxication: Jury Instructions. Evidence of excessive intoxi-
        cation by which the defendant is wholly deprived of reason may be submitted
        to the jury for it to consider whether in fact a crime has been committed, or to
        determine the degree of the crime when the offense consists of several degrees.
10.	    Postconviction: Intoxication: Pleas. When a defendant alleges in a postconvic-
        tion action that he or she would have insisted on going to trial if counsel had
        informed him or her of an intoxication defense, a court need not take the self-
        serving declaration on its face. Rather, the court can consider other factors, such
        as the likely penalties the defendant would face if convicted at trial, the relative
        benefit of the plea bargain, and the strength of the State’s case.
11.	    Pleas. In order for a defendant to knowingly and voluntarily enter into a guilty
        plea, a court must inform the defendant of the following: (1) the nature of the
        charge, (2) the right to assistance of counsel, (3) the right to confront witnesses
        against the defendant, (4) the right to a jury trial, and (5) the privilege against
        self-incrimination.
12.	    ____. When a guilty plea is entered, the record must establish a factual basis for
        the plea.
13.	    Effectiveness of Counsel. The failure to anticipate a change in existing law does
        not constitute deficient performance.
14.	    Postconviction: Right to Counsel: Appeal and Error. Failure to appoint
        counsel in postconviction proceedings is not error in the absence of an abuse
        of discretion.
15.	    Postconviction: Justiciable Issues: Right to Counsel. When the assigned errors
        in a postconviction petition before the district court contain no justiciable issues
        of law or fact, it is not an abuse of discretion to fail to appoint counsel for an
        indigent defendant.
16.	    Pleadings. An amended pleading supersedes the original pleading, whereupon
        the original pleading ceases to perform any office as a pleading.

  Appeal from the District Court for Sarpy County: David K.
Arterburn, Judge. Affirmed.
       Jonathon L. Armendariz, pro se.
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  Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
   Stephan, J.
   Jonathon L. Armendariz pled guilty to an amended infor-
mation charging one count of second degree murder and one
count of use of a firearm to commit a felony. The Nebraska
Court of Appeals summarily affirmed a direct appeal filed by
his trial counsel. Armendariz then filed this action seeking
postconviction relief. The district court denied relief without
conducting an evidentiary hearing, and Armendariz filed this
timely appeal. We affirm the judgment of the district court.
                            I. FACTS
   Armendariz was originally charged with one count of first
degree murder, one count of use of a firearm to commit a fel-
ony, and one count of robbery. In July 2011, he pled guilty to
an amended information charging one count of second degree
murder and one count of use of a firearm to commit a felony.
At the time the pleas were entered, Armendariz informed the
court that there had been no promises or threats made to him
in exchange for his pleas and that he was acting freely and vol-
untarily. Armendariz also told the court that he understood the
proceedings and that he knew what he was doing.
   Before accepting the pleas, the court advised Armendariz
of his constitutional and statutory rights, and cautioned
Armendariz to ask any questions he had during the advise-
ment. The court advised Armendariz that he had a right to be
represented by an attorney at all stages of the proceedings,
including sentencing; that he had the right not to incriminate
himself, which included the right to remain silent at any hear-
ing or trial; that he was presumed innocent; that he had the
right to a speedy and public trial before a jury; that he had the
right to confront his accusers at trial; that he had the right to
cross-examine his accusers at trial; and that he had the right at
trial to call witnesses on his own behalf. Armendariz was also
advised that if he went to trial, a jury would have to find him
                  Nebraska Advance Sheets
	                    STATE v. ARMENDARIZ	899
	                      Cite as 289 Neb. 896

guilty beyond a reasonable doubt; that he had a right to chal-
lenge any search or seizure and contest the use of evidence
obtained during them; and that because he was 17 years old
when the crimes were committed, he had the right to seek
transfer to juvenile court. He was also advised that he had the
right to appeal any final order of the court.
   The court then advised Armendariz that if he entered a
guilty plea, he was waiving most of the rights he had just been
advised of. He was specifically advised that he retained the
right to have his attorney represent him and retained the right
to appeal, but that by pleading guilty, he was waiving many
appeal issues.
   Armendariz was advised by the court that to prove the
charge of second degree murder, the State would have to
prove beyond a reasonable doubt that he intentionally, but
without premeditation, killed the victim. Armendariz acknowl-
edged his understanding that by entering the pleas, he was
relieving the State of its trial burden and would be found
guilty based on the pleas and the factual basis provided by
the State. He was advised that the possible penalty for second
degree murder was a minimum of 20 years’ imprisonment and
a maximum of life imprisonment. He informed the court he
understood the possible penalties. Armendariz stated he had
reviewed the facts of the case and explained his story to his
attorney, had explored possible defenses with his attorney,
and had discussed the possible penalties with his attorney. He
stated he was satisfied with the services and advice received
from his counsel.
   The State then gave a factual basis for the pleas.
Summarized, it was that the victim was found in his bed-
room and had died of a single gunshot wound to the back
of his head, which shot was fired at close range. A 9-mm
shell casing and a spent bullet were found at the crime
scene. Investigators discovered that the last cell phone call
to the victim had been placed by Armendariz, and when they
searched Armendariz’ residence, they discovered a 9-mm
handgun and two cell phones that had belonged to the victim.
The handgun was tested and found to be the weapon that had
fired the bullet that matched the shell casing found at the
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900	289 NEBRASKA REPORTS



crime scene. A witness was located and informed police that
he had gone with Armendariz to the victim’s home the morn-
ing of the crime in order to rob the victim and had stayed in
the car while Armendariz went inside.
   In response to this, Armendariz’ attorney informed the court
that “[t]he actual facts would not support that there was going
to be or that there was a robbery, but we don’t dispute that the
State has a witness that would testify to that.” He otherwise
agreed with the factual basis as presented by the State.
   Armendariz’ guilty pleas were accepted by the court. At
sentencing, he informed the court, “I know I’m going to
prison, and I have come to terms with that. I just hope it’s not
for life. . . . Whether I do life or 20 years in prison, everything
happens for a reason . . . .” He ultimately was sentenced to
80 years’ to life imprisonment on the murder charge and 10
to 20 years’ imprisonment on the firearm charge. His trial
counsel filed a direct appeal, assigning as error that the sen-
tences imposed were excessive. The Court of Appeals sum-
marily affirmed.
   Armendariz subsequently filed this action for postconvic-
tion relief, alleging ineffective assistance of trial and appellate
counsel. After allowing Armendariz leave to amend his original
postconviction motion, the district court denied relief with-
out conducting an evidentiary hearing. Armendariz filed this
timely appeal.

                II. ASSIGNMENTS OF ERROR
   Armendariz broadly assigns that the district court erred in
not granting him an evidentiary hearing on the claims of inef-
fective assistance of counsel that he asserted in his amended
motion for postconviction relief. Arguments in support of each
of these claims are scattered throughout his pro se brief. In
addition to this broad assignment of error and related argu-
ments, he specifically assigns and argues that he was entitled
to an evidentiary hearing, because his trial counsel (1) failed
to transfer or move to transfer his case to juvenile court, (2)
failed to have him evaluated prior to entering his guilty pleas,
(3) failed to prepare an adequate defense, (4) failed to create a
                        Nebraska Advance Sheets
	                           STATE v. ARMENDARIZ	901
	                             Cite as 289 Neb. 896

record of the factual basis of the crimes, (5) failed to move to
suppress his statements, (6) misadvised him prior to the entry
of his pleas, (7) failed to challenge information in the presen-
tence investigation report, and (8) failed to object during the
colloquy when he entered his guilty pleas.
   Armendariz also assigns that the district court erred in not
combining his original postconviction motion with his amended
motion and in not appointing him counsel to assist him with his
postconviction claims.

                 III. STANDARD OF REVIEW
   [1] 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.1
   [2] An evidentiary hearing on a motion for postconvic-
tion relief must be granted when the motion contains factual
allegations which, if proved, constitute an infringement 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.2

                         IV. ANALYSIS
   Armendariz’ pro se amended motion for postconviction
relief contains numerous allegations of ineffective assist­
ance of counsel. Summarized, the amended motion alleged
Armendariz’ counsel was ineffective for (1) failing to provide
effective assistance before the guilty pleas were entered; (2)
failing to object to the court’s improper rights advisory at the
time the pleas were entered; (3) failing to object or advise

 1	
      State v. Baker, 286 Neb. 524, 837 N.W.2d 91 (2013); State v. Marks, 286
      Neb. 166, 835 N.W.2d 656 (2013).
 2	
      State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011); State v. McGhee,
      280 Neb. 558, 787 N.W.2d 700 (2010).
    Nebraska Advance Sheets
902	289 NEBRASKA REPORTS



Armendariz not to plead guilty, due to an insufficient fac-
tual basis to support the pleas at the plea hearing; (4) failing
to object at the plea hearing, because Armendariz was not
fully advised of the charges against him; (5) failing to file a
motion to withdraw the pleas prior to or at sentencing; and
(6) failing to raise the invalidity of the pleas on direct appeal.
Armendariz’ brief to this court challenges the district court’s
findings on all of the allegations he made in the amended
motion for postconviction relief.

                  1. Ineffective Assistance of
                       Counsel in General
   [3] None of the claims Armendariz made in his amended
motion are waived or procedurally barred. He did enter guilty
pleas, and normally, a voluntary guilty plea waives all defenses
to a criminal charges.3 But the claims he is asserting are
not direct defenses to the criminal charges. Instead, they are
framed as ineffective assistance of counsel claims. In a post-
conviction action 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.4
   [4] In addition, although a motion for postconviction relief
cannot be used to secure review of issues which were or could
have been litigated on direct appeal, when a defendant was
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.5
Armendariz was represented by the same lawyer at trial and
on direct appeal, and therefore his claims are not procedur-
ally barred.
   [5-8] In order to establish a right to postconviction relief
based on a claim of ineffective assistance of counsel, the

 3	
      State v. Glover, 278 Neb. 795, 774 N.W.2d 248 (2009).
 4	
      State v. Watkins, 277 Neb. 428, 762 N.W.2d 589 (2009); State v. McLeod,
      274 Neb. 566, 741 N.W.2d 664 (2007).
 5	
      State v. Robinson, 285 Neb. 394, 827 N.W.2d 292 (2013); State v.
      McKinney, 279 Neb. 297, 777 N.W.2d 555 (2010).
                         Nebraska Advance Sheets
	                            STATE v. ARMENDARIZ	903
	                              Cite as 289 Neb. 896

defendant has the burden, in accordance with Strickland v.
Washington,6 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.7 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.8 The two prongs
of this test, deficient performance and prejudice, may be
addressed in either order.9 The entire ineffectiveness analysis
is viewed with a strong presumption that counsel’s actions
were reasonable.10
   Here, we focus on whether Armendariz alleged sufficient
facts in his amended motion which, if true, would entitle him
to postconviction relief. If so, he is entitled to an evidentiary
hearing on the claim, unless the files and records affirmatively
show that he is not.11

              2. Allegations in Amended Motion
                   (a) Pre-plea Hearing Issues
                          (i) Evaluation
   Armendariz alleged his trial counsel should have had him
evaluated before he entered his pleas to determine his ability
to form the specific intent necessary to commit murder. The
sole basis for this allegation was that he was only 17 years old
at the time the crimes were committed. He made no allegation
that he was otherwise unable to form the necessary intent or

 6	
      Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
      (1984).
 7	
      See State v. Glover, supra note 3.
 8	
      Id.
 9	
      See, State v. Robinson, supra note 5; State v. Glover, supra note 3.
10	
      State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012).
11	
      See, State v. Golka, supra note 2; State v. McGhee, supra note 2.
    Nebraska Advance Sheets
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otherwise incompetent. Instead, he referenced general studies
that have been done on juvenile brain development.
   There is no legal requirement that a juvenile be evaluated
to determine his or her ability to form specific intent. There is
no allegation or even an indication that there was any question
about Armendariz’ competency or sanity. Trial counsel there-
fore did not perform deficiently in this regard.
                     (ii) Intoxication Defense
   Armendariz alleged that his trial counsel did not advise him
that if he had gone to trial, the jury could have considered
the fact that he was under the influence of marijuana at the
time of the crime in determining whether he had the requisite
intent to commit murder. He alleged that there was insuf-
ficient evidence of premeditation to support a first degree
murder charge and that had he known there was a chance
of fighting the second degree murder charge, he would have
proceeded to trial.
   [9,10] Evidence of excessive intoxication by which the
defendant is wholly deprived of reason may be submitted to
the jury for it to consider whether in fact a crime has been
committed or to determine the degree of the crime when the
offense consists of several degrees.12 When a defendant alleges
in a postconviction action that he or she would have insisted
on going to trial if counsel had informed him or her of an
intoxication defense, a court need not take the self-serving
declaration on its face.13 Rather, the court can consider other
factors, such as the likely penalties the defendant would face if
convicted at trial, the relative benefit of the plea bargain, and
the strength of the State’s case.14
   Here, Armendariz has failed to allege sufficient facts to
make the baseline showing of excessive intoxication. He
alleges he was under the influence of marijuana, but does not
allege how much he had consumed, in what amount of time
it was consumed, or how the consumption impacted him. The

12	
      See State v. Hotz, 281 Neb. 260, 795 N.W.2d 645 (2011).
13	
      See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
14	
      See id.
                         Nebraska Advance Sheets
	                             STATE v. ARMENDARIZ	905
	                               Cite as 289 Neb. 896

mere allegation that he was intoxicated is not sufficient to sup-
port an obligation on the part of trial counsel to inform him
of the defense, which by definition is available only when the
intoxication was so great that it “wholly deprived” the defend­
ant of reason.15 This allegation is without merit.

                 (iii) Promise of 50-Year Sentence
    In his amended motion, Armendariz asserted that his trial
counsel “advised him that if he pleaded guilty he would have
. . . gotten not more than fifty years.” He further alleged that
when the court asked him prior to accepting the pleas whether
anyone had made any promises to him about the sentences, he
answered no because he was under the impression the court
already knew the deal was to sentence him to no more than
50 years’ imprisonment. He generally alleges that if he had
been aware the sentence could have been greater than 50 years’
imprisonment, he would not have entered his guilty pleas.
    The files and records affirmatively disprove this assertion.
Armendariz was specifically advised by the court that the
possible penalty for second degree murder was a minimum
of 20 years’ imprisonment and a maximum of life imprison-
ment. He was further advised that the possible penalty for use
of a weapon to commit a felony was a minimum of 5 years’
imprisonment and a maximum of 50 years’ imprisonment. He
informed the court that he understood both. At sentencing,
Armendariz spoke for himself, stating, “I know I’m going
to prison, and I have come to terms with that. I just hope
it’s not for life. . . . Whether I do life or 20 years in prison,
everything happens for a reason . . . .” This record, and in
particular Armendariz’ statements at sentencing, affirmatively
refutes Armendariz’ allegation that he relied on a promise of a
sentence no greater than 50 years’ imprisonment when entering
his pleas. This allegation is without merit.

                      (iv) Ballistics Expert
   Armendariz alleged that trial counsel was ineffective for
failing to hire a ballistics expert to examine whether the gun

15	
      See State v. Hotz, supra note 12.
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906	289 NEBRASKA REPORTS



used in the killing was the type of gun that accidentally dis-
charges. He contended that if trial counsel had taken this step
to help support Armendariz’ theory of the crime, he would have
chosen to proceed to trial and give his account of how the kill-
ing occurred.
   The evidence showed the gun was fired at close range to
the back of the victim’s head. There is a strong inference of
an intentional, execution-style killing, and very little eviden-
tiary support for an accidental killing. Moreover, the mere
fact that this type of gun could be fired accidentally does
not necessarily support a finding that it was not intention-
ally fired. Trial counsel was not deficient in failing to engage
a ballistics expert to show that this gun could have been
fired accidentally.

                  (v) Combination of Pre-plea
                     Hearing Ineffectiveness
   Armendariz’ amended motion also generally alleged that
the combination of all of the foregoing actions or inactions
amounted to ineffective assistance of counsel. Restated, the
combined effect of no evaluation of his ability to form the
intent to kill, no advisement of the intoxication defense, the
promise of no more than 50 years’ imprisonment, and the
failure to pursue the gun expert all resulted in his deciding to
accept the plea instead of going to trial. Because counsel was
not deficient in any of the alleged areas, no combined ineffec-
tive assistance of counsel occurred.

                    (b) Plea Hearing Issues
                   (i) Rights Advisory Given
                         by Trial Court
   In his amended motion, Armendariz claimed that the rights
advisory given by the trial court at the time he entered his
pleas was improper and that his trial counsel was ineffective
for failing to object to it. Specifically, he alleged the rights
advisory did not adequately inform him (1) of his right against
self-incrimination or (2) that by entering the pleas, he was
admitting to the facts alleged by the State as the factual basis
of his pleas.
                        Nebraska Advance Sheets
	                           STATE v. ARMENDARIZ	907
	                             Cite as 289 Neb. 896

   [11] In order for a defendant to knowingly and voluntarily
enter into a guilty plea, a court must inform the defendant
of the following: (1) the nature of the charge, (2) the right
to assistance of counsel, (3) the right to confront witnesses
against the defendant, (4) the right to a jury trial, and (5) the
privilege against self-incrimination.16 Here, the record shows
Armendariz was properly advised of all of the foregoing. His
assertion that he did not fully understand the advisements does
not and cannot negate the fact that they were properly given.
Moreover, the record shows that at the time they were given,
Armendariz acknowledged that he understood the charges and
his rights. Trial counsel did not perform deficiently in failing
to object, because the advisements given by the court were
not improper.

                       (ii) Lack of Factual
                          Basis for Pleas
   [12] When a guilty plea is entered, the record must establish
a factual basis for the plea.17 Armendariz alleges there was no
factual basis for the pleas, because he did not admit that he
went to the home to commit a robbery, and he contends his
trial counsel was ineffective for failing to advise the court that
he was not admitting to the robbery facts.
   The record shows that trial counsel informed the court that
Armendariz’ position was that “[t]he actual facts would not
support that there was going to be or that there was a robbery,”
even though he conceded the State had a witness that would
testify about the robbery plan. Thus, trial counsel did inform
the court Armendariz was not admitting there was a plan to rob
the victim.
   Moreover, there was a sufficient factual basis to support
the charge of second degree murder. To support the charge of
second degree murder, the factual basis had to show that the
killing was done intentionally. Here, part of the factual basis
was that the victim died of a single gunshot wound inflicted
to the back of his head at close range. While there was no

16	
      See State v. Watkins, supra note 4.
17	
      State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006).
    Nebraska Advance Sheets
908	289 NEBRASKA REPORTS



direct evidence of the details of the killing, the location of the
gunshot wound itself supports a reasonable inference that the
killing was intentional. There is no merit to this allegation of
ineffective assistance of counsel.

                  (iii) Advisement of Charges
   Armendariz alleged in his postconviction motion that he was
not advised by the court that he (1) had to have the specific
intent to kill and (2) was entitled to effective assistance of
counsel. He asserts that had he known either of those things,
he would not have listened to his counsel and would not have
entered his guilty pleas.
   We have repeatedly articulated what rights a defendant has to
be advised of in order to make the entry of a plea knowing and
voluntary.18 The record affirmatively shows that Armendariz
was advised of those rights. This allegation is without merit.

                      (c) Sentencing Issues
   Armendariz alleged that his trial counsel should have moved
to withdraw the pleas before his sentences were imposed. In
support of this allegation, he again asserts there was no factual
basis for the pleas. He also asserts that, at sentencing, the State
changed its theory of the case from one based on robbery to
one based on an intentional killing, and that his trial counsel
should have moved to withdraw the pleas after realizing the
State’s theory of the case had changed.
   As noted, there was a factual basis for the pleas. Although
that basis referenced a robbery plan, it also at least implicitly
demonstrated that the killing was done intentionally. Further,
the record shows that the State argued at sentencing consistent
with the factual basis that was provided at the plea hearing.
These allegations are without merit.
   Armendariz also alleged that his trial counsel performed
deficiently at sentencing by failing to advise the court of Neb.
Rev. Stat. § 29-2204(3) (Reissue 2008). That statute provides
in relevant part that except when a term of life is required by
law, whenever the defendant is less than 18 years old at the

18	
      See State v. Watkins, supra note 4.
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	                           STATE v. ARMENDARIZ	909
	                             Cite as 289 Neb. 896

time of the crime, the court has the discretion to make a dispo-
sition under the juvenile code instead of imposing the statutory
penalty for the crime. Armendariz was 17 years old at the time
the crimes were committed.
   Trial counsel did not raise § 29-2204(3) at sentencing.
Assuming counsel was deficient in failing to so advise the
court, there was no prejudice to Armendariz as a matter of law.
In light of Armendariz’ age, his prior criminal history, and the
nature of the crimes at issue, there is no reasonable probability
that the district court would have exercised its discretion to
sentence Armendariz under the juvenile code instead of sen-
tencing him as an adult offender.
                        (d) Appeal Issues
                  (i) Failure of Trial Court to
                   Properly Advise of Rights
   Armendariz alleged that his counsel was ineffective for
failing to argue on appeal that the trial court failed to properly
advise him of his rights at the plea hearing. This allegation
is without merit, because the files and records affirmatively
show that Armendariz was properly advised.
                    (ii) State v. Smith and
                        Sudden Quarrel
   Armendariz alleged that his appellate counsel was inef-
fective in failing to argue on appeal that his advice to
Armendariz to plead guilty was poor, because it was based on
an incorrect understanding of the difference between second
degree murder and voluntary manslaughter. This argument is
based on our decision in State v. Smith,19 where we clarified
the difference between second degree murder and volun-
tary manslaughter.
   Armendariz entered his plea on July 26, 2011. Smith was
decided on November 18, 2011. The district court reasoned
that because the plea was entered prior to the time Smith was
decided, trial counsel could not have been ineffective at the
time he advised Armendariz to enter the plea.

19	
      State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
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   While this is true, it mischaracterizes the nature of
Armendariz’ claim. He asserts that his counsel was ineffec-
tive in failing to raise the Smith issue on appeal. The brief in
Armendariz’ direct appeal was filed on December 14, 2011,
after Smith had been decided. Armendariz alleges that Smith
was the law at the time of his direct appeal; that his appellate
counsel was ineffective for failing to argue on direct appeal that
had he known of Smith, he would not have advised Armendariz
to enter the plea to second degree murder; and that therefore,
Armendariz should be allowed to withdraw his plea in order to
avoid a manifest injustice.
   Armendariz has failed to allege facts that, if true, would
show his appellate counsel was ineffective. In his amended
motion, Armendariz alleges that the victim angered him when
he refused to pay a debt. And “[t]hen, in a sudden motion and
without saying anything,” the victim “dove toward the drawers
in front of him, where Armendariz knew [the victim] kept his
gun, upon which Armendariz panicked and unknowingly fired
his gun . . . .” Panic does not equal provocation, and there-
fore these allegations do not support a finding that there was
provocation that excited Armendariz’ passion and obscured his
power of reasoning to the extent that he acted rashly and from
passion, without due deliberation and judgment.20 And because
there are no facts alleged to support that the killing was the
result of a sudden quarrel, appellate counsel could not have
been deficient in failing to raise the possible applicability of
Smith on direct appeal.

                    (iii) Miller v. Alabama
   In Miller v. Alabama21 the U.S. Supreme Court held that
a juvenile cannot be subject to a mandatory sentence of life
imprisonment without parole for a homicide. If applied to
Armendariz, who was 17 years old at the time of the murder,
Miller would have eliminated the possibility of mandatory life

20	
      See id.
21	
      Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407
      (2012).
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	                         STATE v. ARMENDARIZ	911
	                           Cite as 289 Neb. 896

imprisonment for a first degree murder charge. Miller was
decided after Armendariz entered his plea. Because of this tim-
ing, the district court reasoned Miller could not be the basis of
Armendariz’ ineffective assistance of counsel claim.
   But Armendariz did not allege that trial counsel was inef-
fective in failing to anticipate Miller at the time he advised
Armendariz to enter the plea. Instead, he argues that his coun-
sel was ineffective for failing to raise an appellate argument
based on Miller.
   Armendariz acknowledges that Miller was not actually
decided until after his direct appeal was completed. He argues,
however, that the U.S. Supreme Court had granted certiorari
in Miller before counsel submitted his direct appeal brief.
Armendariz alleges that his counsel acted in a deficient man-
ner because he should have been aware of the potential impact
of Miller on his case and should have asked that the appeal be
stayed pending the outcome of Miller.
   [13] Appellate counsel did not perform in a deficient manner
by failing to ask that the appeal be stayed pending the outcome
of Miller. The failure to anticipate a change in existing law
does not constitute deficient performance.22

                 (e) Failure to Appoint Counsel
   [14,15] Armendariz assigns that the district court erred in
failing to appoint counsel to represent him in his postconvic-
tion action. Failure to appoint counsel in postconviction pro-
ceedings is not error in the absence of an abuse of discretion.23
When the assigned errors in a postconviction petition before
the district court contain no justiciable issues of law or fact, it
is not an abuse of discretion to fail to appoint counsel for an
indigent defendant.24 Because the district court correctly found
no justiciable issues, it did not abuse its discretion in failing to
appoint counsel.

22	
      State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
23	
      State v. McGhee, supra note 2; State v. Thomas, 262 Neb. 138, 629
      N.W.2d 503 (2001).
24	
      State v. McGhee, supra note 2; State v. McLeod, supra note 4.
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                    3. Allegations in Brief
   Armendariz makes various allegations of ineffective assist­
ance of counsel in his brief that were not made in his amended
motion. These include not filing a motion to transfer the case
to juvenile court; failing to object to certain testimony at the
preliminary hearing; not considering that he had been on drugs,
drinking alcohol, and smoking marijuana the day of the crime;
not investigating or challenging crime scene photographs; not
preparing a transcript of the preliminary hearing; not filing
any pleadings on his behalf; not moving to suppress evidence;
and not challenging information in the presentence investiga-
tion report. Because these allegations were not raised in the
amended motion, the district court could not have erred in fail-
ing to grant an evidentiary hearing on them, and we need not
consider them on the merits.25

               4. Allegations in Original Motion
   [16] Armendariz alleges that the district court erred in not
considering his original motion for postconviction relief in
combination with his amended motion for postconviction relief.
This argument is based on a fundamental misunderstanding of
the nature of an amended pleading or motion. An amended
pleading supersedes the original pleading, whereupon the origi-
nal pleading ceases to perform any office as a pleading.26 It is
clear the district court did not err in limiting its analysis to the
motion that was before it—the amended motion.

                       V. CONCLUSION
   For the foregoing reasons, the judgment of the district court
denying postconviction relief without an evidentiary hearing
is affirmed.
                                                   Affirmed.

25	
      See, State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013); State v.
      Yos-Chiguil, supra note 13.
26	
      In re Interest of Rondell B., 249 Neb. 928, 546 N.W.2d 801 (1996).
