                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. PODRAZO


  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.

                                NICHOLAS J. PODRAZO, APPELLANT.


                             Filed October 8, 2019.    No. A-18-802.


       Appeal from the District Court for Douglas County: JAMES T. GLEASON, Judge. Affirmed.
       Robert B. Creager, Anderson, Creager & Wittstruck, P.C., for appellant.
       Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.


       RIEDMANN, BISHOP, and ARTERBURN, Judges.
       RIEDMANN, Judge.
                                        INTRODUCTION
       Nicholas J. Podrazo appeals the order of the district court for Douglas County which denied
his motion for postconviction relief without an evidentiary hearing. We affirm.
                                         BACKGROUND
         A jury convicted Podrazo of first degree sexual assault and attempted first degree assault
in 2013. After trial but before sentencing, Podrazo filed a motion for new trial. As relevant to this
appeal, he argued that he was entitled to a new trial because of juror misconduct. Podrazo asserted
that a legal assistant for his trial counsel contacted the Douglas County Jury Commissioner’s office
prior to trial and requested copies of the questionnaires which had been completed by the jurors
summoned for the jury panel. The request was denied at that time, but on the morning of the first
day of trial, counsel received a list of the names and addresses of the 40 jurors who had been
selected as potential jurors for his trial.



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         The parties conducted voir dire, but neither party requested the court reporter to transcribe
it. After trial concluded, Podrazo’s counsel researched the members of the jury and, based on
information she discovered, concluded that several members of the jury had not truthfully
answered voir dire questions. As a result, she filed a motion for new trial and argued that several
jurors had been victims of sexual abuse and/or filed for protection orders, but evidence supporting
that argument, although offered, was not received by the court. Podrazo argued that he was entitled
to a new trial because had his attorney received basic information on the jury pool prior to trial,
she could have completed her research and learned potentially relevant information on the jurors
before conducting voir dire. Given the information she was able to learn about the jurors, she
would not have allowed certain jurors to be seated on the jury.
         The district court denied Podrazo’s motion for new trial. He was sentenced to 40 to 50
years’ imprisonment for the sexual assault conviction and a consecutive term of 10 to 16 years’
imprisonment for attempted assault. He appealed his convictions and sentences and was
represented by the same counsel who represented him at trial. This court affirmed the convictions.
See State v. Podrazo, 21 Neb. App. 489, 840 N.W.2d 898 (2013).
         In February 2015, Podrazo, represented by new counsel, filed a verified motion for
postconviction relief. He alleged that his trial counsel was ineffective for failing to timely seek a
court order for access to juror information, failing to request that the court reporter record voir
dire, and failing to properly “settle” the bill of exceptions regarding alleged juror misconduct. The
district court denied postconviction relief without an evidentiary hearing. Podrazo appeals.
                                   ASSIGNMENTS OF ERROR
       Podrazo assigns that the district court erred in denying his motion for postconviction relief
without an evidentiary hearing.
                                    STANDARD OF REVIEW
        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. State v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018).
                                            ANALYSIS
        Podrazo claims that the district court erred when it denied his claims of ineffective
assistance of counsel without conducting an evidentiary hearing. He specifically asserts that
counsel should have (1) secured juror information prior to trial, (2) requested an official record of
the voir dire examination, and (3) requested that the bill of exceptions be “settled.” We disagree.
        Postconviction relief is a very narrow category of relief, available only to remedy
prejudicial constitutional violations that render the judgment void or voidable. State v. Henderson,
supra. On appeal from the denial of postconviction relief without an evidentiary hearing, the
question is not whether the movant was entitled to relief by having made the requisite showing.
Instead, it must be determined whether the allegations were sufficient to grant an evidentiary
hearing. Id.




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         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. State v. Dragon, 287 Neb. 519, 843
N.W.2d 618 (2014). 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 evidentiary hearing. Id.
         When, as here, a defendant was represented both at trial and on direct appeal by the same
counsel, the defendant’s first opportunity to assert ineffective assistance of counsel is in a motion
for postconviction relief. State v. Henderson, supra. 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. Dragon, supra. A court may
address the two prongs of this test, deficient performance and prejudice, in either order. Id.
         To prove that counsel’s performance was deficient, the defendant must prove that counsel’s
performance did not equal that of a lawyer with ordinary training and skill in criminal law in the
area. State v. Henderson, supra.
         In addressing the “prejudice” component of the Strickland test, a court focuses on whether
a trial counsel’s deficient performance renders the result of the trial unreliable or the proceeding
fundamentally unfair. State v. Dragon, supra. To show prejudice under the prejudice component
of the Strickland test, there must be a reasonable probability that but for the deficient performance,
the result of the proceeding would have been different. State v. Dragon, supra. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id.
         Podrazo makes three claims of ineffective assistance of counsel: that counsel should have
(1) secured juror information prior to trial, (2) requested an official record of the voir dire
examination, and (3) requested that the bill of exceptions be settled. We conclude that the district
court did not err when it rejected such claims without an evidentiary hearing.
         The district court found that Podrazo’s claim that counsel should have sought a court order
allowing access to juror information was refuted by the record and case law. The court concluded
that because the juror information was eventually received, counsel was not deficient by merely
failing to get the information at an earlier time. The court additionally concluded that even if
counsel was deficient in failing to request the juror information by court order prior to trial,
Podrazo suffered no prejudice because trial counsel had the ability to ask about any information
that would have been in the questionnaire during voir dire.
         Upon our de novo review, we agree with the district court’s determination that the record
and case law refute Podrazo’s claim that trial counsel was ineffective in failing to seek a court
order for pretrial access to juror information. The information in the juror questionnaires, other
than that contained in the detachable confidential juror information section of the questionnaire,
should be made available upon request to an attorney involved in the jury trial. Huber v. Rohrig,
280 Neb. 868, 791 N.W.2d 590 (2010). However, there is no requirement that a trial counsel obtain
juror information prior to trial.
         The Nebraska Supreme Court has determined that a trial court’s erroneous denial of a
party’s request for juror questionnaires as an aid to effective voir dire and jury selection was



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harmless error where the party was able to conduct in-person voir dire of the jurors and obtain
information comparable to that provided on the juror questionnaires. See Huber v. Rohrig, supra.
Here, we understand Podrazo’s position that he did question jurors during voir dire, but that several
of them were not forthcoming about information he deems relevant toward his selection of the
members of the jury. However, if research done on the jurors during trial revealed any
inconsistencies in the answers given during voir dire, counsel could have then filed a motion to
discharge a particular juror from the jury and replaced the juror with an alternate. Accordingly, we
conclude that the district court did not err in denying this claim without an evidentiary hearing.
         Podrazo’s next claim alleges that trial counsel was ineffective for failing to request that
voir dire be recorded. The district court noted that the motion for postconviction relief stated that
the recording of the voir dire examination would have made a record from which counsel could
establish that jurors gave false or misleading answers to relevant questions which could reasonably
have been grounds for a new trial. Based on this allegation, the district court concluded that
Podrazo failed to set forth sufficient facts to show that inclusion of the voir dire transcript would
have changed the outcome of the motion for new trial. The court observed that Podrazo never
articulated how inclusion of the transcript from voir dire would have changed the outcome of his
motion for new trial; specifically, the postconviction motion does not allege what questions were
asked by counsel during jury selection regarding protection orders.
         We agree with the district court that because this claim alleges only conclusions of fact or
law, no evidentiary hearing was required. Podrazo failed to allege to which jurors he was referring,
what questions were asked of the jurors, and what information the jurors failed to disclose which
would support his claim of juror misconduct. See, e.g., State v. Threet, 231 Neb. 809, 438 N.W.2d
746 (1989), disapproved on other grounds, State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004)
(affirming dismissal of postconviction motion without evidentiary hearing on basis claims were
conclusory where identity of proposed witnesses and substance of their testimony was not pled).
In addition, Podrazo does not allege how proof that certain jurors lied or misled the court during
jury selection would have changed the outcome of his motion for new trial, and the district court,
which ruled on the motion for new trial, specifically found that even if Podrazo had established
juror misconduct in the manner he alleged it occurred, success on his motion for new trial was
unlikely. Therefore, the district court did not err in denying this claim without an evidentiary
hearing.
         Podrazo also asserts that “[t]o the extent that any error was made by counsel in failing to
take down the voir dire examination,” there were other remedies available to trial counsel to perfect
the record, including “settling” the bill of exceptions pursuant to Neb. Rev. Stat. § 25-1140
(Reissue 2016) and Neb. Ct. R. § 2-105(B)(5) (rev. 2018). Brief for appellant at 14. Although a bit
unclear, it appears that Podrazo argues that counsel should have moved to have the bill of
exceptions amended to include the voir dire examination so that the trial court, and an appellate
court, could determine whether any juror misconduct occurred. The problem here is that voir dire
was not recorded; thus, there is no transcription of those proceedings that could be included in the
bill of exceptions. The record cannot be supplemented with what does not exist. State v. Bowen,
244 Neb. 204, 505 N.W.2d 682 (1993). Therefore, the court did not err in denying an evidentiary
hearing on this claim.



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        Podrazo raises two additional arguments that we need not address. He first claims that he
was prejudiced by the failure of trial counsel to preserve the issues raised in the postconviction
proceeding. He notes that this is a claim that simply preserves the merits of the underlying claims
in the event that they are found to be in procedural default. Having found no procedural default, it
is unnecessary to address this claim. Podrazo also asserts that if we conclude that counsel was
ineffective for failing to request that voir dire be recorded but invoke evidentiary rules or conclude
that no prejudice can be established because voir dire was not recorded, the process is
fundamentally unfair and violates his due process rights. Because we determined that the district
court did not err in denying the claim that counsel was ineffective regarding the recordation of voir
dire, we need not address this claim either. See State v. Goynes, 303 Neb. 129, 927 N.W.2d 346
(2019) (appellate court is not obligated to engage in analysis not necessary to adjudicate case and
controversy before it).
                                          CONCLUSION
       Having found that the record supports the district court’s denial of Podrazo’s
postconviction motion without an evidentiary hearing, we affirm the district court’s order.
                                                                                          AFFIRMED.




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