                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                          STATE V. JONES


  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.

                                  THOMAS R. JONES, APPELLANT.


                               Filed April 21, 2015.   No. A-14-164.


         Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge. Affirmed
in part, and in part reversed and remanded for further proceedings.
       Thomas R. Jones, pro se.
       Jon Bruning, Attorney General, and Austin N. Relph for appellee.



       IRWIN, RIEDMANN, and BISHOP, Judges.
       IRWIN, Judge.
                                        I. INTRODUCTION
        Thomas R. Jones appeals an order of the district court for Douglas County denying
postconviction relief without an evidentiary hearing. On appeal, Jones asserts that the district court
erred in denying postconviction relief and asserts that he received an unlawful sentence. We find
that Jones sufficiently raised assertions concerning the effectiveness of his trial counsel and that
the district court erred in denying an evidentiary hearing. We find no merit to Jones’ assertion
regarding his sentence. We affirm in part, and in part reverse and remand for further proceedings.
                                        II. BACKGROUND
       Jones’ conviction and sentences were the subject of a prior appeal to this court. See State
v. Jones, No. A-11-852 (not designated for permanent publication).



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         Jones was convicted upon no contest pleas to a charge of first degree assault, a charge of
second degree assault, and a charge of use of a weapon in the commission of a felony. Id. Jones
was sentenced to terms of 20 to 20 years’ imprisonment on each of the assault convictions and 10
to 10 years’ imprisonment on the use of a weapon conviction. Id. The court ordered all three
sentences to be served consecutively. Id.
         On direct appeal, Jones challenged the sentences imposed and asserted that his trial counsel
had been ineffective. Id. With respect to the sentences, Jones asserted that the court’s oral
pronouncement had been different from the written pronouncement and that the sentences were an
abuse of discretion. Id. We found no merit to either assertion. Id. With respect to the effectiveness
of trial counsel, Jones asserted that his trial counsel had provided bad advice and pressured him
into accepting a plea. Id. We found that the record presented on direct appeal was insufficient to
allow us to address the assertions. Id.
         After we affirmed his conviction and sentences, Jones, acting pro se, filed a motion for
postconviction relief. In that motion, Jones presented three arguments.
         First, Jones argued that he “was deprived of the effective assistance of counsel when
appellate counsel failed to assign numerous errors made throughout the criminal prosecution by
defense counsel and the court, where such errors caused substantial prejudice to [him] and by any
objectively reasonable standard amounted to deficient performance constituting ineffective
assistance of counsel.” In support of this first argument, Jones asserted that his trial counsel
performed ineffectively in a variety of ways, including not sufficiently investigating and providing
incorrect advice to Jones. Jones asserted specific facts concerning representations made by his trial
counsel and asserted that he would have insisted on a trial if he had not received incorrect advice.
Jones also asserted that he had expressed to the court at sentencing that he had reservations about
the advice of his counsel, and the record of Jones’ sentencing confirms this assertion.
         Jones also asserted that he advised his appellate counsel about trial counsel’s
ineffectiveness. Jones asserted that his appellate counsel was ineffective for failing to raise on
appeal issues regarding his trial counsel’s misadvice and for failing to raise issues regarding the
sentence imposed by the district court.
         Second, Jones argued that the district court imposed an unlawful sentence because the
minimum and maximum terms of each sentence were identical. Jones asserted that this prevented
the sentences from properly being indeterminate sentences and prevented him from being eligible
for parole.
         Third, Jones argued that his appellate counsel was ineffective for failing to raise on appeal
issues concerning the unlawful nature of the sentences imposed by the district court.
         The district court held that Jones was not entitled to postconviction relief without
conducting an evidentiary hearing. The court did not discuss any of Jones’ assertions with
particularity, but concluded that “the verified petition for post conviction relief alleges only
conclusions of fact and law and that the records and files in the case affirmatively show that [Jones]
is entitled to no relief.” The court also held that “the claims set forth in the motion where [sic]
known or knowable to [Jones] at the time of his direct appeal and, therefore these claims are
procedurally barred.”
         This appeal followed.



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                                  III. ASSIGNMENTS OF ERROR
       Appearing pro se on appeal, Jones has assigned four errors, which we consolidate for
discussion to two. First, Jones asserts that the district court erred in denying postconviction relief
without an evidentiary hearing. Second, Jones asserts that the sentences imposed upon his
conviction were unlawful.
                                           IV. ANALYSIS
        Jones has assigned as error that the district court erred in “failing to find that [Jones] was
deprived of the effective assistance of counsel when appellant [sic] counsel failed to assign
numerous errors made throughout the criminal prosecution by trial counsel and the trial court,
where such errors caused substantial prejudice to [Jones] and by any objectively reasonable
standard amounted to deficient performance constituting ineffective assistance of counsel.” Jones
has also assigned as error that the district court erred in “failing to find that appellant [sic] counsel
failed to properly present the issue of the courts [sic] reversible error” regarding the sentences
imposed by the trial court. Jones has also assigned as error that the district court erred in finding
his claims were procedurally barred.
                        1. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
         With respect to his appellate counsel, Jones argues in his brief on appeal that the district
court erred by failing to find ineffective assistance “when appellate counsel failed to assign
numerous errors committed by trial counsel throughout the criminal prosecution.” Brief for
Appellant at 18. Jones presents more than 10 pages of argument concerning trial counsel’s advice
to Jones to enter no contest pleas.
         To the extent Jones is asserting on appeal that his appellate counsel was ineffective for
failing to raise on direct appeal assertions that trial counsel had been ineffective for providing
incorrect advice related to Jones’ plea, the argument on appeal is without merit. In our prior opinion
affirming Jones’ conviction and sentences, we specifically discussed Jones’ appellate counsel’s
assertions that Jones’ trial counsel had been ineffective for allegedly providing incorrect advice
related to the plea. See State v. Jones, supra. We declined to review that assertion concerning trial
counsel because the record was insufficient. Id. Appellate counsel could not have been ineffective
for failing to raise an issue that appellate counsel clearly did raise. See State v. Nolan, 283 Neb.
50, 807 N.W.2d 520 (2012).
         Accordingly, to the extent Jones’ motion for postconviction relief asserted that his appellate
counsel was ineffective for failing to raise issues on direct appeal, that assertion lacks merit. The
district court did not err in refusing to grant an evidentiary hearing regarding the assertions made
by Jones about his appellate counsel.
                          2. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
        Jones also included in his motion for postconviction relief a variety of assertions about his
trial counsel. In denying an evidentiary hearing, the district court held that Jones’ motion alleged
only conclusions, that the records and files affirmatively showed no entitlement to relief, and that
his claims were known or knowable at the time of his direct appeal and were, therefore,
procedurally barred. We disagree.


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         Jones presented his motion for postconviction relief pro se. It is inartfully presented.
Nonetheless, we conclude that a reasonable reading of the motion includes assertions that his trial
counsel was ineffective in ways that were raised by his appellate counsel on direct appeal. On
direct appeal, we specifically declined to address claims on the basis of the record then being
insufficient. Jones specifically noted in his motion that he “seeks to expand the record through
postconviction in order that the court can fairly and ‘meaningfully assess’ the ineffective assistance
claims.”
         An evidentiary hearing on a motion for postconviction relief is required on an appropriate
motion containing factual allegations which, if proved, constitute an infringement of the movant’s
rights under the Nebraska or federal Constitutions, causing the judgment against the movant to be
void or voidable. State v. Cook, 290 Neb. 381, ___ N.W.2d ___ (2015). An evidentiary hearing is
not required when a motion for postconviction relief alleges only conclusions of fact or law. State
v. Cook, supra.
         Contrary to the district court’s conclusion, Jones’ motion did not allege only conclusions
of fact and law. Jones included specific assertions concerning his trial counsel, what he believed
to constitute deficient performance, and how or why that performance resulted in him entering a
plea instead of insisting on going to trial.
         The need for finality in the criminal process requires that a defendant bring all claims for
relief at the first opportunity. State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014). A motion
for postconviction relief cannot be used to secure review of issues which were or could have been
litigated on direct appeal. Id.
         In his direct appeal we specifically recognized that he raised assertions concerning the
effectiveness of his trial counsel concerning counsel’s advice that Jones enter into a plea
agreement. We concluded that the record was insufficient and declined to address the merits of
those claims. Jones did not waive these assertions because they were known or knowable at the
time of his direct appeal--he raised them as he needed to, the record was insufficient, and he now
raises them in postconviction as he needed to.
         The State has acknowledged on appeal that if this court concludes that Jones has
sufficiently, although inartfully, raised issues concerning the effectiveness of his trial counsel, then
“an evidentiary hearing would be required.” Brief for Appellee at 7. We reverse the district court’s
conclusion that Jones did not sufficiently raise these issues or that they were procedurally barred,
and we remand for further proceedings.
                                         V. CONCLUSION
         We find no merit to Jones’ assertions regarding the district court’s ruling on his claims
regarding his sentence and the effectiveness of his appellate counsel. We do, however, find merit
to his assertions regarding the district court’s ruling on his claims regarding the effectiveness of
his trial counsel, and we reverse and remand for further proceedings.
                                                    AFFIRMED IN PART, AND IN PART REVERSED AND
                                                    REMANDED FOR FURTHER PROCEEDINGS.




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