                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                       STATE V. RUEGGE


  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.
                               LARRY LEE RUEGGE, APPELLANT.


                           Filed January 13, 2015.   No. A-14-197.


       Appeal from the District Court for Holt County: MARK D. KOZISEK, Judge. Affirmed.
       Larry Lee Ruegge, pro se.
       Jon Bruning, Attorney General, and George R. Love for appellee.


       IRWIN, RIEDMANN, and BISHOP, Judges.
       IRWIN, Judge.
                                     I. INTRODUCTION
        Larry Lee Ruegge appeals an order of the district court for Holt County, Nebraska,
denying Ruegge’s motion for postconviction relief without granting an evidentiary hearing. On
appeal, Ruegge asserts that the district court erred in denying him postconviction relief, in
denying him an evidentiary hearing, and in not appointing counsel. We find no merit, and we
affirm.
                                     II. BACKGROUND
        In April 2012, Ruegge was convicted by a jury of burglary. He was found to be a habitual
criminal and sentenced to 14 to 20 years’ imprisonment. Ruegge filed a direct appeal, and this
court found no merit to his assertions on appeal and affirmed his conviction in a memorandum
opinion. See State v. Ruegge, No. A-12-551, 2013 WL 5366332 (Neb. App. July 16, 2013)
(selected for posting to court Web site).




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         As we noted in our opinion rejecting Ruegge’s direct appeal, the incident giving rise to
Ruegge’s conviction occurred in October 2010, when a swine nursery was burglarized. The
State’s primary evidence against Ruegge at trial was the testimony of one of Ruegge’s
acquaintances, Collin O’Connell, who allegedly burglarized the nursery with Ruegge. O’Connell
testified against Ruegge, and Ruegge’s defense focused almost entirely on discrediting
O’Connell’s testimony. After hearing all of the evidence, the jury convicted Ruegge.
         In November 2013, Ruegge filed a verified motion for postconviction relief. As grounds
for relief, Ruegge asserted that he had received ineffective assistance of appellate counsel.
Ruegge alleged that his appellate counsel had “failed to specifically assign and specifically
argue” certain instances of alleged ineffectiveness by Ruegge’s trial counsel, including failing to
object to the State’s characterization of O’Connell “as an informant” instead of as an accomplice;
failing to request an accomplice jury instruction; and failing to call a potential witness to testify
about O’Connell’s having lied when implicating Ruegge. Ruegge also alleged that his appellate
counsel had failed “to specifically assign as error the district court erred in the manner in which
it responded to a question posed by the jury during deliberations.”
         The State filed a motion to dismiss Ruegge’s postconviction action without an
evidentiary hearing. The State alleged that Ruegge had failed to allege facts which would
constitute a denial or violation of his constitutional rights and that the case files and record
affirmatively demonstrated that Ruegge was entitled to no relief.
         In January 2014, the district court held a telephonic hearing. At that hearing, the State
offered a copy of the brief filed on direct appeal by Ruegge’s appellate counsel and a copy of this
court’s opinion rejecting Ruegge’s direct appeal. The State argued that Ruegge’s claims that his
appellate counsel had failed to specifically assign and specifically argue various issues were
directly refuted by the brief filed by his counsel and by this court’s opinion, in which this court
addressed the various assertions concerning trial counsel’s failure to challenge the State’s
characterization of O’Connell that Ruegge asserts his appellate counsel failed to properly raise.
The State argued that Ruegge had failed to allege facts showing that he was entitled to relief
concerning his claim that appellate counsel was ineffective for not asserting that trial counsel had
been ineffective regarding calling the witness to testify about O’Connell’s credibility because
O’Connell himself admitted to the same information that the proposed witness would allegedly
have testified to. The State argued that Ruegge had failed to allege facts showing that there was
any prejudice related to the court’s response to the jury’s question during deliberations.
         In February 2014, the district court entered an order dismissing Ruegge’s motion for
postconviction relief without further evidentiary hearing. The court noted that it had specifically
considered the prior filings made in Ruegge’s criminal case, the opinion of this court on direct
appeal, and the filings made in the present postconviction action. The court then, in turn, rejected
each of Ruegge’s asserted grounds for postconviction relief.
         With respect to Ruegge’s assertion that his appellate counsel had been ineffective for
failing to specifically assign and specifically argue trial counsel’s ineffectiveness related to the
State’s characterization of O’Connell, the district court found that Ruegge had failed to allege
sufficient facts to demonstrate that trial counsel had been ineffective in the first instance. The
court specifically noted that, at trial, although the State had referred to O’Connell as an
informant instead of as an accomplice, O’Connell had also been referred to as a “snitch,” a


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“co-defendant,” and a “stool pigeon” at various times during voir dire. In addition, there was
evidence adduced demonstrating that O’Connell had participated in the crime with Ruegge.
O’Connell’s involvement in the crime, his prior statements and prior unlawful behavior, and the
fact that the State had promised not to prosecute O’Connell in exchange for his testimony were
all explored at trial. Thus, the district court concluded, Ruegge failed to demonstrate that the
outcome of the proceedings would have been any different if his trial counsel had objected to the
State’s characterization of O’Connell as an informant rather than as an accomplice.
        With respect to Ruegge’s claim that his appellate counsel had been ineffective for failing
to specifically assign and specifically argue trial counsel’s ineffectiveness related to not
requesting an accomplice jury instruction, the district court concluded that appellate counsel did
raise that issue on direct appeal. The court concluded that, although this court did not reach the
ultimate merits of the claim, the record clearly demonstrates that appellate counsel did reach the
issue and, accordingly, affirmatively refutes Ruegge’s assertion that his appellate counsel was
ineffective for not raising it.
        With respect to Ruegge’s claim that his appellate counsel had been ineffective for failing
to specifically assign and specifically argue trial counsel’s ineffectiveness related to not calling a
particular witness, the district court found that Ruegge had failed to allege facts demonstrating
any prejudice from trial counsel’s failure to call the witness. The court noted that everything
Ruegge alleged that the potential witness could have presented testimony about was already
admitted to and testified to by O’Connell and that the potential witness’ testimony would have
been cumulative. Because O’Connell’s credibility was thoroughly explored and presented to the
jury, the court concluded, Ruegge failed to allege sufficient facts to demonstrate that calling the
potential witness would have changed the outcome of the case.
        Finally, with respect to Ruegge’s claim that his appellate counsel had been ineffective for
failing to assign error concerning trial counsel’s ineffectiveness related to the trial court’s
response to a question posed by the jury during deliberations, the district court concluded that
Ruegge failed to allege sufficient facts demonstrating how the court’s response was incorrect or
resulted in any prejudice.
        Because the district court concluded that Ruegge had failed to allege sufficient facts
demonstrating any entitlement to relief and that the record affirmatively demonstrated that he
was entitled to no relief, the court denied postconviction relief, dismissed Ruegge’s motion
without further hearing, and denied Ruegge’s request for the appointment of counsel. This appeal
followed.
                                 III. ASSIGNMENTS OF ERROR
        On appeal, Ruegge has assigned three errors, in which he challenges the district court’s
denial of postconviction relief, denial of an evidentiary hearing, and denial of counsel.
                                          IV. ANALYSIS
        The Nebraska Postconviction Act provides relief to a convicted prisoner if that prisoner
can show that his or her conviction was the result of an infringement of the prisoner’s
constitutional rights. State v. Fernando-Granados, 289 Neb. 348, 854 N.W.2d 920 (2014).
Postconviction relief may be denied without an evidentiary hearing if (1) the petitioner fails to


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allege facts supporting a claim of ineffective assistance of counsel or (2) the files and records
affirmatively show that he or she is entitled to no relief. Id.
        Appeals of postconviction proceedings are reviewed independently if they involve a
question of law. Id. A trial court’s ruling that a petitioner’s allegations are too conclusory is a
finding as a matter of law that the petitioner has failed to state a claim for postconviction relief.
Id. 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. Id.
        Appellate review of a claim of ineffective assistance of counsel is a mixed question of
law and fact. Id. When reviewing the claim, an appellate court reviews the factual findings of the
lower court for clear error; however, with regard to the questions of deficient performance and
prejudice, an appellate court reviews such determinations independently of the lower court’s
decision. Id.
                              1. MERITS OF POSTCONVICTION RELIEF
        As noted above, Ruegge sought postconviction relief on the basis of asserting that his
counsel on direct appeal “was ineffective for failing to specifically assign and specifically argue
the following ineffective assistance of trial counsel claims on direct appeal”: failing to object to
the characterization of O’Connell as an informant instead of as an accomplice, failing to request
an accomplice jury instruction, and failing to call a specific witness for the defense. Ruegge also
asserted that his appellate counsel “was also ineffective for failing to specifically assign as error
the district court erred in the manner in which it responded to a question posed by the jury during
deliberations.” We conclude that Ruegge failed to demonstrate that he was entitled to relief on
any of these allegations of ineffectiveness of trial counsel, and the district court did not err in so
finding.
        In an ineffective assistance of counsel claim, there must be a finding of both deficiency of
counsel and prejudice to the defendant’s case. State v. Fernando-Granados, supra. To show
ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), a defendant must show, first, that counsel was deficient and, second,
that the deficient performance actually caused prejudice to the defendant’s case. State v.
Fernando-Granados, supra. The two prongs of this test may be addressed in either order, and the
entire ineffectiveness analysis should be viewed with a strong presumption that counsel’s actions
were reasonable. Id.
        Prejudice caused by counsel’s deficiency is shown when there is a reasonable probability
that but for counsel’s deficient performance, the result of the proceeding would have been
different. State v. Fernando-Granados, 289 Neb. 348, 854 N.W.2d 920 (2014). A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id. In making this
determination, a court hearing an ineffectiveness claim must consider the totality of the evidence
before the judge or jury, and taking factual findings unaffected by any error as a given and taking
due account of the effect of any error on the remaining findings, a court making the prejudice
inquiry must ask if the defendant has met the burden of showing that the decision reached would
reasonably likely have been different absent error. See id.


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                                (a) Characterization of O’Connell
        Ruegge first based his request for postconviction relief on an assertion that his appellate
counsel had been ineffective for failing to specifically assign and argue that trial counsel was
ineffective for failing to object to the State’s characterization of O’Connell as an informant
during voir dire, rather than as an accomplice. We agree with the district court that this claim
lacks merit.
        During voir dire, the State informed the prospective jurors that the case being tried
involved “an informant.” The State, however, also indicated that “there are a lot of names for
informants,” including “[s]nitch” and “stool pigeon.” The State also told the prospective jurors
that the State had “promised . . . O’Connell that [it] won’t prosecute him in exchange for his
truthful testimony” and that “O’Connell will testify that he was present at the burglary and
actually walked in and took some things himself.” The State also referred to O’Connell as a
“codefendant.”
        On this claim, the district court found that Ruegge had failed to allege sufficient facts to
demonstrate that trial counsel was ineffective in the first instance. The court concluded that the
record and files demonstrated that O’Connell was described by the State as an accomplice, even
if he was not specifically called one, and Ruegge failed to allege sufficient facts to demonstrate
that his trial counsel had been ineffective for failing to object to the State’s characterizations of
O’Connell. The court further concluded that Ruegge had failed to allege facts demonstrating that
the outcome of the proceedings would likely have been different had his counsel objected. We
agree.
        Having agreed that Ruegge failed to demonstrate that his trial counsel was ineffective or
that there was any prejudice related to the State’s characterization of O’Connell during voir dire,
we similarly conclude that Ruegge failed to allege any facts demonstrating that his appellate
counsel was ineffective for not specifically assigning and arguing about this on direct appeal. It
was not error to deny Ruegge postconviction relief on his allegation.
                                    (b) Accomplice Instruction
         Ruegge next based his request for postconviction relief on an assertion that his appellate
counsel had been ineffective for failing to specifically assign and argue that trial counsel was
ineffective for not requesting an accomplice jury instruction. We agree with the district court that
this claim lacks merit.
         In our opinion on Ruegge’s direct appeal, we addressed his appellate counsel’s claim that
trial counsel had been ineffective in a variety of ways. One of the assertions we addressed was
appellate counsel’s claim that trial counsel had been ineffective “for failing to request a jury
instruction concerning how the testimony of a ‘co-defendant’ should be ‘interpreted.’” See brief
for appellant on direct appeal at 19. We specifically concluded that “to the extent that Ruegge is
asserting that trial counsel should have requested a specific instruction about how the jury is to
consider the testimony of an accomplice, we find that the record is insufficient to review whether
counsel was ineffective.” State v. Ruegge, No. A-12-551, 2013 WL 5366332 at *8 (Neb. App.
July 16, 2013) (selected for posting to court Web site). We concluded that the record was
insufficient to address whether trial counsel had requested an accomplice jury instruction or, if
not, why he had not done so or whether not doing so might have been a reasonable trial strategy.


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        Ruegge did not make any claims in this postconviction action to assert directly that his
trial counsel had been ineffective or requesting an evidentiary hearing on matters that we had
previously held the record insufficient to address. Rather, he specifically alleged in this
postconviction action that his appellate counsel was ineffective for not specifically raising this
issue. But appellate counsel did specifically raise this issue, and the records and files of this case
affirmatively demonstrate that there is no merit to the assertion that appellate counsel failed to
raise this issue.
        The district court specifically held that the record demonstrated that appellate counsel did
raise the issue on appeal and therefore that Ruegge was entitled to no relief on this claim that
appellate counsel was ineffective. We agree.
                                       (c) Calling of Witness
         Ruegge next based his request for postconviction relief on an assertion that his appellate
counsel had been ineffective for failing to specifically assign and argue that trial counsel was
ineffective for not calling a particular witness. We agree with the district court that this claim
lacks merit.
         Ruegge alleged that his trial counsel was ineffective for failing to call an attorney to
whom O’Connell had made admissions indicating that he had lied to law enforcement when he
had implicated Ruegge in the crimes at issue at trial. Ruegge alleged that if the attorney had been
called, he could have testified about whether he or O’Connell had initiated the conversation and
could have testified to the fact that O’Connell admitted that he lied to investigators concerning
Ruegge’s involvement. He alleged that the testimony of an attorney would have been more
reliable than that of a “meth addict who [was] trying to save his own skin.”
         The district court noted that at trial, O’Connell had testified on cross-examination about
the statements that he had made to the attorney. O’Connell had admitted during
cross-examination that he had told the attorney a number of things, including that he did not
know who had been involved in the burglary, that he had lied to law enforcement when he
implicated Ruegge in the burglary, that he had felt coerced into making statements implicating
Ruegge, and that he had never seen Ruegge burglarize anything.
         The testimony that Ruegge has alleged in his motion that could have been presented by
the attorney was presented in O’Connell’s own testimony. O’Connell admitted to making the
very statements that Ruegge alleges his trial counsel was ineffective for not calling the attorney
to testify about. Ruegge has not demonstrated why there was any need to have another witness
present the same testimony, why failing to present cumulative evidence could be considered
deficient performance, or how he might have been prejudiced by the failure of trial counsel to
present such cumulative evidence. We agree with the district court that Ruegge was not entitled
to postconviction relief on this assertion.
                                   (d) Response to Jury Question
        Ruegge finally based his request for postconviction relief on an assertion that his
appellate counsel had been ineffective for failing to specifically assign as error that the trial court
had erred in the manner in which it responded to a question posed by the jury during
deliberations. We agree with the district court that this claim lacks merit.


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         We first note that in Ruegge’s postconviction motion he has not presented any indication
of what question was asked by the jury during deliberations, what answer was given by the trial
court, or why that answer was erroneous. He merely indicates that because his appellate counsel
failed to specifically assign this as error, this court “declined to address counsel’s contention
concerning the answer to the jury’s question on appeal.”
         The district court, in the present postconviction proceeding, noted that at trial the jury had
posed two questions to the court during its deliberations and that Ruegge’s “brief indicates that
[he] complains about the court’s response to the jury question” concerning the State’s charging
Ruegge with burglary during the month of October, rather than on a specific date during the
month. Ruegge’s brief on appeal to this court does not address his assertion that the trial court
erred in its handling of any jury question or that his appellate counsel had been ineffective for
failing to raise such an issue.
         Ruegge alleged no facts in his postconviction motion to demonstrate that the trial court
committed any error, that any such error prejudiced him in any way, or that his appellate counsel
was ineffective in any way related to this matter. His motion does not allege facts from which we
can even discern what the alleged error by the trial court actually was. We agree with the district
court that Ruegge was not entitled to postconviction relief on this matter.
                                           (e) Conclusion
        As such, we find no error in the district court’s conclusion that with respect to each
asserted basis for postconviction relief Ruegge failed to allege sufficient facts to demonstrate any
violation of his constitutional rights or any entitlement to postconviction relief and that the
record affirmatively demonstrated that he was not entitled to relief. We find no merit to Ruegge’s
assignment of error that the district court erred in dismissing his motion for postconviction relief.
                               2. DENIAL OF EVIDENTIARY HEARING
         Ruegge also assigns as error the district court’s dismissal of his motion for postconviction
relief without granting an evidentiary hearing. We find this claim to be without merit.
         An evidentiary hearing on a motion for postconviction 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. State v. McGhee, 280 Neb. 558, 787 N.W.2d
700 (2010). 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. Id.
         In this case, the district court held a telephonic hearing. At the commencement of the
hearing, the court asked the State if it had “[a]ny evidence” to adduce. The State then offered,
and the court received without objection, Ruegge’s brief on direct appeal and this court’s opinion
affirming Ruegge’s conviction on direct appeal. The court then asked Ruegge if he had any
evidence, and Ruegge indicated that he had “[n]one that I can think of.”
         As we have concluded above, this is a case where Ruegge’s motion failed to include
sufficient facts to demonstrate an entitlement to relief and the record affirmatively demonstrated
that he was not entitled to relief. Thus, we find no error in the district court’s failure to conduct




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any further evidentiary hearing beyond the opportunity it gave to Ruegge to present evidence and
which Ruegge failed to avail himself. This assigned error is meritless.
                                      3. DENIAL OF COUNSEL
         Finally, Ruegge has assigned as error that the district court erred in denying his request
for postconviction relief without appointing counsel to represent him. We find no merit to this
claim.
         Under the Nebraska Postconviction Act, it is within the discretion of the trial court as to
whether counsel shall be appointed to represent the defendant. State v. McGhee, supra. 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. Id.
         As we have concluded above, Ruegge’s motion for postconviction relief did not contain
any justiciable issues of law or fact. Thus, we conclude there was no abuse of discretion by the
district court in failing to appoint counsel. This assigned error is meritless.
                                        V. CONCLUSION
       We find no merit to Ruegge’s appeal. We affirm.
                                                                                        AFFIRMED.




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