    Nebraska Advance Sheets
524	286 NEBRASKA REPORTS



                     VI. CONCLUSION
  For the reasons discussed, we affirm McGuire’s convictions
and sentences.
                                                     Affirmed.
  Heavican, C.J., and Cassel, J., not participating.



                      State of Nebraska, appellee, v.
                        Todd S. Baker, appellant.
                                     ___ N.W.2d ___

                 Filed August 30, 2013.     Nos. S-12-1180, S-12-1181.

 1.	 Postconviction: Appeal and Error. In appeals from postconviction 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 petitioner has failed to state a claim for
      postconviction relief.
 3.	 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.
 4.	 Postconviction: Constitutional Law: Proof. In a motion for postconviction
      relief, the defendant must allege facts which, if proved, constitute a denial or
      violation of his or her rights under the U.S. or Nebraska Constitution, causing the
      judgment against the defendant to be void or voidable.
  5.	 ____: ____: ____. 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.
 6.	 Postconviction: Proof. If a postconviction motion alleges only conclusions of
      fact or law, or if the records and files in the case affirmatively show that the
      defendant is entitled to no relief, the court is not required to grant an eviden-
      tiary hearing.
 7.	 Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance
      of counsel claim alleges a violation of the fundamental constitutional right to a
      fair trial.
 8.	 Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of
      ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668,
      104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his
      or her counsel’s performance was deficient and that this deficient performance
                         Nebraska Advance Sheets
	                                 STATE v. BAKER	525
	                                Cite as 286 Neb. 524

     actually prejudiced the defendant’s defense. An appellate court may address the
     two prongs of this test, deficient performance and prejudice, in either order.
 9.	 Effectiveness of Counsel: Appeal and Error. In addressing the “prejudice”
     component of the test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
     80 L. Ed. 2d 674 (1984), an appellate court focuses on whether a trial counsel’s
     deficient performance renders the result of the trial unreliable or the proceeding
     fundamentally unfair.
10.	 Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice under
     Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
     (1984), the petitioner must demonstrate a reasonable probability that but for his
     or her counsel’s deficient performance, the result of the proceeding would have
     been different. A reasonable probability is a probability sufficient to undermine
     confidence in the outcome.
11.	 Effectiveness of Counsel: Mental Competency: Proof. In order to demonstrate
     prejudice from counsel’s failure to seek a competency hearing, the defendant
     must demonstrate that there is a reasonable probability that he or she was, in fact,
     incompetent and that the trial court would have found the defendant incompetent
     had a competency hearing been conducted.

  Appeals from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
    Todd S. Baker, pro se.
  Jon Bruning, Attorney General, and George R. Love for
appellee.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
    Miller-Lerman, J.
                      NATURE OF CASE
   In each of these two cases, Todd S. Baker appeals the order
of the district court for Lancaster County which denied his
motion for postconviction relief without an evidentiary hear-
ing. Baker, acting pro se, sought relief with respect to two
separate convictions for first degree murder, for which he was
serving consecutive life sentences. Because Baker failed to
allege facts that show he was entitled to relief and the record
refutes his claims, we affirm the denials of his motions.
                STATEMENT OF FACTS
  In 2006, Baker was found by a jury to be guilty of first
degree murder; he was sentenced to life imprisonment. A
    Nebraska Advance Sheets
526	286 NEBRASKA REPORTS



notice of appeal was filed, but Baker later withdrew the appeal.
In 2007, Baker pled guilty to a separate charge of first degree
murder; he was sentenced to serve a life sentence consecutive
to the life sentence in his first conviction.
   In case No. S-12-1180, Baker filed a pro se motion for post-
conviction relief with respect to his 2006 murder conviction.
He claimed that he received ineffective assistance of counsel,
in that counsel (1) failed to appeal the overruling of his plea
in abatement, (2) allowed him to waive his right to a speedy
trial, (3) failed to request a mental evaluation, and (4) allowed
him to withdraw his appeal. He also generally claimed that
counsel was ineffective with respect to a motion to recuse the
trial judge. He further claimed that there was prosecutorial
misconduct because the prosecution did not call to the court’s
attention that he was mentally incompetent to stand trial. He
finally claimed that the court erred when it failed to order a
competency evaluation.
   In case No. S-12-1180, the court sustained the State’s
motion to deny an evidentiary hearing and dismissed Baker’s
motion for postconviction relief. The court concluded with
respect to Baker’s assertions of ineffective assistance of coun-
sel that (1) with respect to the motion to recuse, Baker made
a mere allegation of ineffective assistance without a showing
that counsel’s performance was deficient or that Baker was
prejudiced; (2) the overruling of a plea in abatement is not
appealable and that therefore, the fact that counsel did not
attempt to appeal the order was not deficient performance;
and (3) the record showed the trial court thoroughly inquired
into Baker’s decision to waive his speedy trial rights and that
Baker made no showing that counsel’s performance was defi-
cient or that he was prejudiced. With regard to Baker’s claims
that counsel, the prosecution, and the trial court violated his
rights by failing to deal with the issue of his competency,
the postconviction court noted that Baker’s claim was simply
that he was too medicated to be competent. The postconvic-
tion court noted that medication is often necessary to treat a
defendant’s mental ailments and does not necessarily render
the defendant incompetent. The postconviction court noted
                  Nebraska Advance Sheets
	                        STATE v. BAKER	527
	                       Cite as 286 Neb. 524

that the trial court had ample opportunity to observe Baker
over the course of the proceedings and that the record dem-
onstrated Baker had the capacity to understand the nature and
object of the proceedings against him and could make a ratio-
nal defense.
   In case No. S-12-1181, Baker filed a pro se motion for
postconviction relief with respect to his 2007 murder convic-
tion. He claimed that he received ineffective assistance of
counsel, in that counsel (1) allowed his right to a speedy trial
to be violated and (2) failed to request a mental evaluation.
He further claimed that there was prosecutorial misconduct
because the prosecution did not call to the court’s attention
that Baker was mentally incompetent to stand trial. He finally
claimed that the court erred when it failed to order a compe-
tency evaluation.
   In case No. S-12-1181, the court sustained the State’s motion
to deny an evidentiary hearing and dismissed Baker’s motion
for postconviction relief. The court noted that there was no
violation of Baker’s speedy trial rights, because the record
showed that he was arraigned, pled guilty, and was sentenced
all in one hearing. The court concluded, therefore, that there
was no ineffective assistance of counsel with respect to speedy
trial rights. With regard to Baker’s claims that counsel, the
prosecution, and the trial court violated his rights by failing
to deal with the issue of his competency, the postconviction
court noted that, as in case No. S-12-1180, Baker’s claim
was simply that he was too medicated to be competent. The
postconviction court similarly noted that the record showed
the trial court thoroughly questioned Baker before accepting
his plea, that his answers were appropriate, and that there was
nothing that should have caused counsel or the court to doubt
Baker’s competence.
   Baker appeals the denials of his motions for postconviction
relief without evidentiary hearings in each of these two cases.
                 ASSIGNMENT OF ERROR
   In each case, Baker claims, restated, that the district court
erred when it denied his motion for postconviction relief with-
out an evidentiary hearing.
    Nebraska Advance Sheets
528	286 NEBRASKA REPORTS



                   STANDARD OF REVIEW
   [1-3] In appeals from postconviction proceedings, we inde-
pendently resolve questions of law. State v. Edwards, 284
Neb. 382, 821 N.W.2d 680 (2012). 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 determina-
tion, as a matter of law, that the petitioner has failed to state a
claim for postconviction relief. Id. Thus, 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. State v. Watkins, 284 Neb. 742, 825
N.W.2d 403 (2012); State v. Edwards, supra.

                          ANALYSIS
   Baker claims in each appeal that the district court erred
when it denied postconviction relief without conducting an
evidentiary hearing. We find no merit to Baker’s assignment of
error in either appeal.
   [4] The Nebraska Postconviction Act, Neb. Rev. Stat.
§ 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2012), pro-
vides that postconviction relief is available to a prisoner in
custody under sentence who seeks to be released on the ground
that there was a denial or infringement of his constitutional
rights such that the judgment was void or voidable. State v.
Molina, 279 Neb. 405, 778 N.W.2d 713 (2010); State v. York,
278 Neb. 306, 770 N.W.2d 614 (2009). Thus, in a motion for
postconviction relief, the defendant must allege facts which,
if proved, constitute a denial or violation of his or her rights
under the U.S. or Nebraska Constitution, causing the judgment
against the defendant to be void or voidable. State v. Gunther,
278 Neb. 173, 768 N.W.2d 453 (2009); State v. Jim, 275 Neb.
481, 747 N.W.2d 410 (2008).
   [5,6] 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
                   Nebraska Advance Sheets
	                         STATE v. BAKER	529
	                        Cite as 286 Neb. 524

federal Constitution. State v. Watkins, supra. If a postcon-
viction motion alleges only conclusions of fact or law, or if
the records and files in the case affirmatively show that the
defend­ nt is entitled to no relief, the court is not required to
       a
grant an evidentiary hearing. Id.
   [7,8] A proper ineffective assistance of counsel claim alleges
a violation of the fundamental constitutional right to a fair trial.
See State v. Robinson, 285 Neb. 394, 827 N.W.2d 292 (2013).
To prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense. State
v. Robinson, supra. An appellate court may address the two
prongs of this test, deficient performance and prejudice, in
either order. Id.
   [9,10] In addressing the “prejudice” component of the
Strickland test, an appellate court focuses on whether a trial
counsel’s deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair. State v.
Robinson, supra. To show prejudice under the prejudice com-
ponent of the Strickland test, the petitioner must demonstrate a
reasonable probability that but for his or her counsel’s deficient
performance, the result of the proceeding would have been
different. State v. Robinson, supra. A reasonable probability
is a probability sufficient to undermine confidence in the out-
come. Id.
   We note that in case No. S-12-1180, a notice of appeal from
the underlying conviction in 2006 was filed but the appeal
was withdrawn. Baker alleged that his counsel was ineffec-
tive in allowing him to withdraw the appeal. We read this as
a claim that counsel, as appellate counsel, provided ineffective
assistance because, by allowing him to withdraw the appeal,
counsel failed to raise issues of trial error on appeal. In case
No. S-12-1181, there is no indication that Baker filed a direct
appeal from his plea-based conviction in 2007. In his postcon-
viction motion, however, he makes a general claim that he was
denied effective assistance of counsel on direct appeal. Given
the lack of clarity in his motion, for purposes of the present
    Nebraska Advance Sheets
530	286 NEBRASKA REPORTS



analysis only, we will read this as a claim that appellate coun-
sel was ineffective.
   Given our interpretation of Baker’s motions, because
Baker’s trial counsel was also his appellate counsel in each
case, these postconviction proceedings are his first opportu-
nity to assert claims that his trial counsel provided ineffective
assistance. See State v. Edwards, 284 Neb. 382, 821 N.W.2d
680 (2012). These claims are layered ineffectiveness claims—
i.e., a claim that his appellate counsel was ineffective for fail-
ing to raise claims of his trial counsel’s ineffective assistance.
When a case presents layered claims of ineffective assistance
of counsel, we determine whether the petitioner was preju-
diced by his or her appellate counsel’s failure to raise issues
related to his or her trial counsel’s performance. Id. See, also,
State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011). If
the trial counsel did not provide ineffective assistance, then
the petitioner cannot show prejudice from the appellate coun-
sel’s alleged ineffectiveness in failing to raise the issue on
appeal. See id.
   The bulk of Baker’s claims in both case No. S-12-1180
and case No. S-12-1181 concerns his assertion that a hearing
should have been held to determine whether he was competent
to stand trial. He claims that counsel was ineffective for fail-
ing to request a hearing, that it was misconduct for prosecutors
to fail to request a hearing, and that the trial court erred when
it failed to order a hearing. Also, his claims that counsel was
ineffective with respect to allowing him to waive a speedy
trial and allowing him to withdraw his appeal in case No.
S-12-1180 are based on his argument that he was not compe-
tent to make such decisions.
   [11] We have stated that in order to demonstrate prejudice
from counsel’s failure to seek a competency hearing, the
defendant must demonstrate that there is a reasonable prob-
ability that he or she was, in fact, incompetent and that the
trial court would have found the defendant incompetent had a
competency hearing been conducted. See State v. Hessler, 282
Neb. 935, 807 N.W.2d 504 (2011). No prejudice is evident in
this case. Baker merely alleged that he was on various medica-
tions at the time of his trials and that such medication made
                  Nebraska Advance Sheets
	                        STATE v. BAKER	531
	                       Cite as 286 Neb. 524

him incompetent. He listed various medications he was taking
and listed the possible side effects of such medications, but he
made no allegations of fact to the effect that he suffered par-
ticular side effects or other narrative to support his claim that
such medications made him incompetent. As the district court
noted, Baker’s claims of incompetence are contradicted by the
record in each case, wherein the trial court observed Baker
and had no reason to doubt his competence. The trial court
questioned Baker regarding his competence and specifically
addressed the effect of the medications on his competence.
Because the allegations and the record do not show that Baker
would have been found incompetent, he failed to show that
counsel was ineffective for failure to request a hearing. For
the same reason, his allegations surrounding prosecutor mis-
conduct or trial court error with respect to competence are also
without merit.
   Baker made other claims of ineffective assistance of counsel
in each case, including his claim in case No. S-12-1181 that
counsel was ineffective with respect to speedy trial issues and
his claims in case No. S-12-1180 that counsel was ineffective
with respect to the motion to recuse and the plea in abatement.
We conclude that the district court did not err when it rejected
such claims without an evidentiary hearing. In each case,
Baker’s allegations of ineffective assistance of trial counsel
are conclusory, are refuted by the record, and are not pleaded
in enough detail to warrant an evidentiary hearing. We there-
fore conclude that Baker did not allege sufficient facts which,
if proved, would establish a reasonable probability that the
outcome of his case would have been different but for his trial
counsel’s alleged deficient performance.
   As stated above, Baker’s trial counsel was also his appellate
counsel, and therefore, we must determine whether Baker was
prejudiced by his appellate counsel’s alleged failure to raise
on appeal issues related to his trial counsel’s effectiveness at
trial. Based on our conclusion that Baker’s trial counsel was
not ineffective, we conclude that Baker cannot show prejudice
from his appellate counsel’s alleged ineffectiveness in failing
to raise these issues on direct appeal. See State v. Edwards, 284
Neb. 382, 821 N.W.2d 680 (2012).
    Nebraska Advance Sheets
532	286 NEBRASKA REPORTS



                         CONCLUSION
   Baker’s motions for postconviction relief in these two cases
do not allege facts which constitute a denial of his constitu-
tional rights, and, as to certain allegations, the record refutes
his claims. Therefore, the district court did not err when it
denied Baker’s motion for postconviction relief in each case
without an evidentiary hearing.
                                                      Affirmed.
