                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. BURTON


  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.

                               KARNELL D. BURTON, APPELLANT.


                              Filed June 30, 2015.   No. A-14-584.


       Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed.
       Michael P. Meckna for appellant.
       Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.


       MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
       BISHOP, Judge.
        Karnell D. Burton appeals from the district court’s denial of his motion for postconviction
relief without an evidentiary hearing.
                                       I. BACKGROUND
      The facts in the instant case were summarized in Burton’s direct appeal to the Nebraska
Supreme Court in State v. Burton, 282 Neb. 135, 137-38, 802 N.W.2d 127, 130-31 (2011):
              This case arises out of the shootings of Timothy Thomas and his cousin Marshall
      Turner, which left Thomas dead and Turner seriously wounded. Generally, the State
      accused Burton and his alleged accomplice, Thunder Collins, of shooting Thomas and
      Turner in an attempt to steal cocaine from them. . . .
              The State’s evidence at trial, taken in the light most favorable to the State,
      established that Collins, Turner, and Thomas had been engaged in transporting cocaine
      from Los Angeles, California, to sell in Omaha, Nebraska. On the trip that culminated in



                                               -1-
       the shootings at issue in this case, Turner and Thomas had driven to Omaha from California
       in a sports utility vehicle (SUV), accompanied by Turner’s girlfriend and another man,
       Darryl Reed. The cocaine they were transporting had been hidden in the body of the SUV.
               Collins contacted his friend Ahmad Johnson, who testified at trial that Collins asked
       him to help Collins “get these guys.” Collins told Johnson that they needed a secure
       location to get the drugs out of the SUV. Johnson asked his friend Karl Patterson whether
       they could use Patterson’s automotive repair shop. Patterson refused, but, according to
       Johnson, agreed to give Collins a gun. Collins and Johnson then tried to contact Burton,
       but failed. So, Collins told Turner and Thomas to follow Collins in their SUV to Johnson’s
       house, to use Johnson’s garage to remove the drugs from the SUV.
               Burton called Collins back, and Collins told him to come to Johnson’s house, so he
       did. Johnson took the gun that they had gotten from Patterson and placed it in the kitchen.
       Burton and Johnson were in the house talking when Collins came in and asked for a gun
       Burton had brought with him, which was smaller. Johnson said he told Burton to “watch
       [Collins’] back,” then went outside and sat in his car, listening to music.
               Turner and Thomas were still in the garage, and Turner was watching Thomas work
       to remove the drugs from the SUV, when Turner was suddenly shot in the neck. Turner fell
       to the ground and crawled under the SUV. When he got up, he saw Burton pointing a gun
       at him and Collins holding Thomas by the hair. Turner tried to get between Collins and
       Thomas, so Burton shot Turner in the buttocks. Collins then shot Thomas in the head.
       Burton went to help Collins move Thomas’ body, and Turner heard Burton say, “Let me
       make sure this nigger dead.” Another shot was fired, grazing Turner’s head. Turner heard
       Collins and Burton go out the back door of the garage, so he got into the SUV, drove it
       through the closed garage door, and fled.

        The State initially charged Burton on November 10, 2008, with first degree murder (felony
murder), two counts of use of a deadly weapon to commit a felony, and attempted second degree
murder. On March 26, 2009, the State filed a motion for leave to file an amended information to
amend the first degree murder charge to add an alternative theory of premediated murder. A
hearing on the motion was held on April 14; counsel for Burton objected to the amendment and
the district court permitted the State to file the amended information. The State filed its amended
information on April 15.
        Trial was scheduled to begin on July 13, 2009 (Burton had previously made a voluntary
waiver of his right to speedy trial at a hearing on March 31). On the same day trial was scheduled
to begin, Burton filed a motion in limine requesting two alternative prayers of relief: he sought to
preclude the State from presenting evidence or testimony regarding the results of certain DNA
testing of a shoe and clothing of Burton’s that he alleged was not provided to him in a timely
manner for cross-examination purposes; in the alternative, Burton sought a continuance of trial to
evaluate and subject the DNA evidence for independent testing. Burton alleged that the complete
results of the State’s DNA testing were not provided to Burton’s counsel until July 8, five days
before trial was scheduled to begin. During a hearing on Burton’s motion held the same date, the
court stated on the record that the situation did put Burton in a position of undue prejudice, but



                                               -2-
that it was not making a ruling with regard to a permanent limitation or exclusion of the evidence.
However, the court stated that “if the State wishes to go forward today, I’m going to grant the
motion in limine with regard to the DNA.” The court left the choice to proceed to trial up to the
State, and if it chose not to proceed to trial, another trial date would be set. The State chose not to
proceed to trial without the DNA evidence; the court stated that it was granting Burton’s motion
to continue trial pursuant to his request. Trial was continued to October 13.
         On July 13, 2009, the same date that Burton filed and had his motion to continue sustained,
the State filed a motion for leave to file a second amended information, seeking to add a first
degree assault charge and an associated third use of a deadly weapon to commit a felony charge
(both arising out of the same facts as the underlying charges). A hearing on the State’s motion was
held on July 17. Counsel for Burton objected on the basis that the filing was tardy, it seemed to
just be “piling on,” and also objected on speedy trial grounds. The court granted the State’s motion
on July 28, and the State filed its second amended information adding the charges of first degree
assault and use of a deadly weapon to commit a felony on the same date.
         A jury trial commenced on October 13, 2009. Burton was convicted of manslaughter,
attempted second degree murder, first degree assault, and two counts of use of a deadly weapon to
commit a felony, and the district court sentenced him to a total of 80 to 130 years’ imprisonment.
         Burton’s trial counsel also represented him on his direct appeal, assigning four errors: the
district court (1) violated Burton’s statutory right to a speedy trial when it granted the State’s
motion to file the second amended information (over his objection) which added the charges of
first degree assault and use of a deadly weapon to commit a felony; (2) committed reversible error
when it denied Burton’s motion for mistrial based on prosecutorial misconduct during the State’s
rebuttal in final argument; (3) committed reversible error when it refused to allow Burton to present
evidence that two of the State’s witnesses were members of a violent street gang; and (4) abused
its discretion in imposing excessive sentences. The Nebraska Supreme Court concluded Burton
waived any violation of his right to speedy trial with respect to the amended charges because he
did not move for discharge before trial. After finding no merit to Burton’s remaining three
assignments of error, the Supreme Court affirmed Burton’s convictions and sentences.
         Burton filed a motion for postconviction relief on August 27, 2012, pursuant to Neb. Rev.
Stat. § 29-3001 et seq. (Reissue 2008). He alleged he was denied effective assistance of trial
counsel at the pretrial, trial, and appellate stages for the following reasons: (1) trial counsel failed
to protect his statutory and constitutional rights to a speedy trial; (2) trial counsel failed to protect
him from vindictive prosecution; and (3) trial counsel failed to request the lesser included offense
and jury instruction of “attempted sudden quarrel manslaughter” for the charge of attempted
second degree murder.
         Burton alleged his due process and equal protection rights were violated by the State when
it filed the second amended information because such amendment amounted to prosecutorial
vindictiveness.
         Burton also alleged his due process and equal protection rights were violated by the district
court for the following reasons: (1) the district court committed plain error and/or abused its
discretion in granting a continuance at the State’s request but finding that the request was made by
him, which resulted in a violation of his speedy trial rights; (2) the district court committed plain



                                                  -3-
error and/or abused its discretion in permitting the State to file the second amended information;
and (3) the district court committed plain error by failing to instruct the jury of the lesser included
offense of “attempted sudden quarrel manslaughter” with respect to the charge of attempted second
degree murder.
        The State filed a motion to dismiss Burton’s postconviction relief without a hearing on the
basis that his claims were either procedurally barred or the record affirmatively showed that he
was entitled to no relief.
        On February 19, 2014, the district court entered an order denying Burton’s motion for
postconviction relief, without an evidentiary hearing. The district court found that the record was
clear that Burton made an unconditional waiver of his right to speedy trial on March 31, 2009, and
the court scheduled trial for July 13. The court noted that with Burton’s consent, trial was continued
from July 13 to the agreed upon date of October 13, for Burton to further explore certain DNA
evidence. The district court found that Burton through his counsel, and individually,
unconditionally waived his right to speedy trial and never formally terminated the right prior to
the actual date of trial, and that trial counsel was not ineffective in requesting additional time to
analyze DNA evidence being offered by the State.
        With respect to Burton’s claim that trial counsel was ineffective in failing to file a motion
to discharge to protect his speedy trial rights regarding the second amended information, the court
cited to State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997), for the proposition that successive
informations regarding the same conduct are not to be considered separately for speedy trial
determinations, and thus trial counsel was not ineffective and Burton was not prejudiced.
        The district court concluded that Burton’s claims for prosecutorial vindictiveness were
conclusory without facts to support his allegations.
        With respect to Burton’s claim that his trial counsel was ineffective for failing to request
the lesser included offense of attempted sudden quarrel manslaughter, pursuant to State v. Smith,
282 Neb. 720, 806 N.W.2d 383 (2011), the district court concluded that the case was decided 2
years after Burton’s trial and the crime of attempted voluntary manslaughter did not exist at the
time of his trial; Burton’s counsel could not be held to be ineffective for failing to anticipate a
change in the existing law.
        Finally, the district court concluded that Burton’s claims for plain error and/or abuse of
discretion were procedurally barred with respect to the district court’s granting of the July 13,
2009, continuance without his express waiver, permitting the State to file the second amended
information, and failing to instruct the jury as to the lesser included offense of “attempted sudden
quarrel manslaughter.”
        Burton filed an appeal from the district court’s order denying postconviction relief to this
court on March 16, 2014; however, counsel for Burton was informed by the clerk’s office that
there was no filing fee so the filing fee was not paid. This court dismissed Burton’s appeal for lack
of jurisdiction on May 9. Following a hearing in the district court on May 29 on Burton’s motion
to reinstate his appeal, the district court reinstated the instant appeal on June 10.




                                                 -4-
                                 II. ASSIGNMENTS OF ERROR
         Burton assigns thirteen errors on appeal, which we summarize and consolidate as follows:
the district court erred in (1) determining he was not denied effective assistance of counsel where
counsel failed to protect his constitutional and statutory speedy trial rights; (2) determining he was
not denied effective assistance of counsel where counsel failed to request that the jury be instructed
on the lesser included offense of “attempted sudden quarrel manslaughter;” (3) determining he was
not entitled to an evidentiary hearing with respect to whether his counsel was ineffective for failing
to raise the issue of vindictive prosecution at trial or on appeal; (4) determining he was procedurally
barred from claiming the trial court plainly erred or abused its discretion in finding that Burton
requested a continuance on July 13, 2009, in violation of his constitutional and statutory speedy
trial rights; (5) determining he was procedurally barred from claiming the trial court plainly erred
or abused its discretion in determining the July 13 continuance applied to the charges added in the
second amended information; (6) determining he failed to allege sufficient facts to support the
claim of prosecutorial vindictiveness; (7) determining he was procedurally barred from claiming
the trial court committed plain error or abused its discretion in allowing the State to file the second
amended information; and (8) determining that he was procedurally barred from claiming that the
district court committed plain error for failing to instruct the jury on the lesser included offense of
“attempted sudden quarrel manslaughter.”
                                  III. 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. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015). 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. Id. 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.
         Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law. State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010). When reviewing a question of law,
an appellate court reaches a conclusion independent of the lower court’s ruling. Id.
                                          IV. ANALYSIS
                          1. PLAIN ERROR/ABUSE OF DISCRETION CLAIMS
        The district court in the instant action concluded that several of Burton’s claims were
procedurally barred; namely, Burton’s claims that the trial court committed plain error and/or
abused its discretion in (1) determining the July 13, 2009, continuance was made at his request;
(2) determining that the July 13 continuance applied to the added charges in the second amended
information; (3) permitting the State to file a second amended information; and (4) failing to
instruct the jury on the lesser included offense of “attempted sudden quarrel manslaughter” with




                                                 -5-
respect to the attempted second degree murder charge. Burton argues the district court erred in
concluding his above claims were procedurally barred.
        Plain error cannot be asserted in a postconviction proceeding to raise claims of error by the
trial court. State v. Sepulveda, 278 Neb. 972, 775 N.W.2d 40 (2009). Further, a motion for
postconviction relief cannot be used to secure review of issues that were known to the defendant
and could have been litigated on direct appeal. State v. Hessler, 282 Neb. 935, 807 N.W.2d 504
(2011). No matter how they may be phrased or rephrased, if issues raised in a motion for
postconviction relief were or could have been litigated on direct appeal, the defendant is
procedurally barred from using them as a basis for postconviction relief. State v. Boppre, supra.
        Each of Burton’s above claimed errors with respect to the trial court’s actions or inaction
were known to him at the time of his direct appeal and could have been raised and litigated in his
direct appeal. As such, the district court in the instant case did not err in determining these claims
were procedurally barred.
                                2. PROSECUTORIAL VINDICTIVENESS
        Burton claims the district court erred in determining he failed to allege sufficient facts to
support the claim of prosecutorial vindictiveness. (Burton also alleges his trial counsel was
ineffective for failing to protect him from prosecutorial vindictiveness, which we discuss further
in our analysis below.) As with Burton’s claimed errors regarding the trial court’s actions, Burton’s
claim that the State’s filing of the second amended information amounted to prosecutorial
vindictiveness could have been raised and litigated on his direct appeal. As such, this claim is also
procedurally barred. State v. Hessler, supra (a motion for postconviction relief cannot be used to
secure review of issues that were known to the defendant and could have been litigated on direct
appeal).
                         3. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
        Burton’s remaining assignments of error regard his claims for ineffective assistance of
counsel. 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. State v. McKinney, 279
Neb. 297, 777 N.W.2d 555 (2010). Burton was represented by the same attorney at trial and on his
direct appeal and, as such, the present postconviction action is his first opportunity to assert
ineffective assistance of counsel.
        In order to establish a right to postconviction relief based on a claim of ineffective
assistance of counsel at trial or on direct appeal, 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 in the area. State v. Dunster, 278 Neb. 268, 769
N.W.2d 401 (2009). Next, the defendant must show that counsel’s deficient performance
prejudiced the defense in his or her case. Id. In order to show prejudice, the defendant must
demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the




                                                -6-
proceeding would have been different. Id. The two prongs of this test, deficient performance and
prejudice, may be addressed in either order. Id.
        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 Constitution. State v. Soukharith, 260 Neb. 478, 618 N.W.2d
409 (2000). An evidentiary hearing is not required when the motion alleges only conclusions of
fact or law. Id. Further, when the motion properly alleges an infringement of the defendant’s
constitutional rights, an evidentiary hearing should still be denied when the records and files
affirmatively show that the defendant is entitled to no relief. Id. Thus, the focus of our inquiry is
whether Burton has alleged facts which, if proved, would establish that he was denied effective
assistance of counsel.
                              (a) Speedy Trial Claim With Respect to
                                    July 13, 2009, Continuance
        Although Burton alleges both his constitutional and statutory speedy trial rights were
violated, his arguments are limited to the statutory speedy trial provision. For an appellate court to
consider an alleged error, a party must specifically assign and argue it. State v. Johnson, 290 Neb.
862, 862 N.W.2d 757 (2015). We thus limit our discussion to whether Burton’s trial counsel was
ineffective with respect to his statutory right to a speedy trial.
        The statutory right to a speedy trial is set forth in Neb. Rev. Stat. §§ 29-1207 and 29-1208
(Cum. Supp. 2014). Under § 29-1207(1), “[e]very person indicted or informed against for any
offense shall be brought to trial within six months, and such time shall be computed as provided
in this section.” To calculate the deadline for trial under the speedy trial statutes, a court must
exclude the day the State filed the information, count forward 6 months, back up 1 day, and then
add any time excluded under § 29-1207(4). State v. Vela-Montes, 287 Neb. 679, 844 N.W.2d 286
(2014). If a defendant is not brought to trial before the running of the time for trial as provided for
in § 29-1207, as extended by excluded periods, he or she shall be entitled to his or her absolute
discharge from the offense charged and for any other offense required by law to be joined with
that offense. § 29-1208.
        Burton asserts that his trial counsel’s performance was deficient because he did not object
to the district court’s finding that the July 13, 2009, continuance was made at the defendant’s
request. On July 13, Burton filed a motion in limine containing two alternative prayers for relief:
an order from the district court precluding the State from presenting any evidence or testimony
concerning DNA evidence, or in the alternative, (2) a continuance of the trial. The district court
stated on the record that the untimely DNA results did put Burton in a position of undue prejudice,
and stated that “if the State wishes to go forward today, I’m going to grant the motion in limine
with regard to the DNA.” The court left the choice to proceed to trial up to the State; the State
chose not to proceed to trial without the DNA evidence and the district court continued trial until
October 13. Counsel for Burton replied, “That’s acceptable.”
        Burton’s trial counsel sought to cure the prejudice caused by the State’s belated disclosure
of evidence either by suppression of the evidence, or by a continuance of trial so that Burton could
obtain independent testing in order to meaningfully cross-examine the State’s witness. The district



                                                 -7-
court granted Burton’s alternative request for a continuance. When a continuance will cure the
prejudice caused by belated disclosure of evidence, a continuance should be requested by counsel
and granted by the trial court. State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011). The district
court granted one of the requests for relief specifically requested by Burton to cure the prejudice
caused by the State’s belated disclosure of evidence. And, trial counsel agreed that a continuance
to October 13, 2009, was “acceptable.” The period of delay resulting from a continuance granted
at the request or with the consent of the defendant or his or her counsel is excludable from the
speedy trial clock. See § 29-1207(4)(b).
        The original information was filed on November 10, 2008; this made May 10, 2009, the
original deadline for trial absent any excludable time. Burton filed a motion for discovery on
November 17, 2008, which the trial court granted on November 19, resulting in 2 days of
excludable time. At a hearing on March 31, 2009, Burton waived his right to speedy trial until the
next available trial date at which his counsel could appear, which was July 13, resulting in 104
days of excludable time. Counsel for Burton both requested and consented to a continuance of trial
from July 13 to October 13, resulting in 92 days of excludable time. In total, there were 198 days
of excludable time, and the State had until November 24 to bring Burton to trial. Burton was
brought to trial on October 13, prior to the running of the time for trial as provided for in § 29-1207,
and therefore his trial counsel cannot be ineffective for failing to file a motion to discharge the
charges contained in the original information.
                              (b) Speedy Trial Claims With Respect to
                                   Second Amended Information
        Burton argues his trial counsel was ineffective for failing to protect his speedy trial rights
with respect to the new charges contained in the second amended information--the first degree
assault charge and the associated weapons charge--filed on July 28, 2009. Burton argues that the
6-month speedy trial clock on the charges in the second amended information should be calculated
from the date the original information was filed, as the new charges arose out of the same set of
facts and required no new evidence to support them. And, Burton argues that because the charges
in the second amended information were filed after he (allegedly) provided his limited waiver of
his right to a speedy trial from July 13 to October 13, he contends that the waiver was not effective
against the charges added in the second amended information.
        Burton’s trial counsel did assign this as error on his direct appeal. However, the Nebraska
Supreme Court concluded that Burton waived any violation of his right to speedy trial by not
moving for discharge before trial. See State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011).
Burton now argues that his trial counsel was ineffective in failing to file a motion to discharge
before trial. Only if a motion would have resulted in the defendant’s absolute discharge, thus
barring a later trial and conviction, could the failure to move for discharge be deemed ineffective
assistance. State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011). We next examine whether a motion
would have resulted in Burton’s absolute discharge.
        Under circumstances where an amended information charges a different crime but also the
original crimes, the original and new charges run on different speedy trial clocks, so long as the
“new” charge was not one required to be joined with the original charges under double jeopardy



                                                 -8-
principles. See State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014). The original charges
continue with the same speedy trial clock, while the new charges begin with their own new speedy
trial clock. Id. See, also, State v. Gibilisco, 279 Neb. 308, 778 N.W.2d 106 (2010) (additional first
degree sexual assault counts contained in an amended information, which the State alleged
occurred during the same timeframe and against the same victim as was alleged in the original
information, nevertheless constituted separate and distinct crimes and required the State to present
different evidence to prove each of the crimes, so the speedy trial clock restarted upon the filing
of the amended information).
         In the instant case, the State asserts that the new charges added in the second amended
information had their own speedy trial clock, whereas Burton contends that the new charges were
“related to the same incident as the original trial information and did not stem from any new
evidence” and therefore ran on the same speedy trial clock as the charges in the original
information. Brief for appellant at 33. Although Burton is correct in identifying that the felony
charges added by the second amended information were related to the same incidents or were
committed simultaneously with the felonies alleged in the original information and first amended
information, the question we must answer is whether the “new” charges of first degree assault and
related weapon charges were required to be joined with the original charges under double jeopardy
principles. See State v. Hettle, supra.
         The State initially charged Burton on November 10, 2008, with first degree murder of
Thomas (felony murder) (later amended to add an alternative theory of premeditated murder),
attempted second degree murder of Turner, and two counts of use of a deadly weapon to commit
a felony. The second amended information filed on July 29, 2009, added charges of first degree
assault of Turner and a related use of a deadly weapon to commit a felony charge. Nebraska courts
have previously held that double jeopardy does not bar prosecution of a defendant for first degree
assault following an acquittal on attempted second degree murder. See State v. Michael Ray Smith,
3 Neb. App. 564, 529 N.W.2d 116 (1995). See, also State v. Lovelace, 212 Neb. 356, 322 N.W.2d
673 (1982). Actual injury is a necessary element of the crime of first degree assault, but is not a
necessary element of the crime of attempted second degree murder. See State v. Michael Ray
Smith, supra. And, intent to kill, a required element of the crime of attempted second degree
murder, is not an element of the crime of first degree assault. See Neb. Rev. Stat. § 28-304 (Reissue
2008). Each offense requires proof of an element which the other does not, and thus double
jeopardy does not bar successive prosecutions. See id. When underlying felonies themselves are
not barred from successive prosecution on double jeopardy grounds, separate underlying use of a
weapon charges are also not barred by double jeopardy. See State v. Michael Ray Smith, supra.
         Accordingly, double jeopardy principles did not require the charge of first degree assault
of Turner and underlying use of a deadly weapon charge to be joined with the charge of attempted
second degree murder of Turner and underlying use of a deadly weapon charge contained in the
original information. Therefore, the speedy trial clock for the “new” charges in the second
amended information began running on the date it was filed, July 28, 2009. Burton was brought to
trial on October 13, well before the expiration of the 6-month statutory speedy trial clock. Burton’s
trial counsel was not ineffective for failing to file a motion to discharge because such motion would
not have been successful.



                                                -9-
                              (c) Lesser-Included Offense Instruction
        Burton argues that his trial counsel was ineffective for failing to request a jury instruction
for attempted sudden quarrel manslaughter, pursuant to State v. Ronald Smith, 282 Neb. 720, 806
N.W.2d 383 (2011). Burton argues that “the law which did not allow ‘attempted sudden quarrel
manslaughter’ as a lesser-included offense was questionable for more than ten years prior to the
decision in State v. [Ronald] Smith, supra.” Brief for appellant at 51.
        The district court concluded that Burton’s counsel could not be ineffective for failing to
anticipate a change in the existing law as the crime of attempted voluntary manslaughter did not
exist at the time of his trial, and we agree. Until the Nebraska Supreme Court released State v.
Ronald Smith, supra, the crime of attempted voluntary manslaughter (including upon a sudden
quarrel) did not exist in Nebraska. State v. William Smith, 19 Neb. App. 708, 811 N.W.2d 720
(2012) aff’d on other grounds, 284 Neb. 636, 822 N.W.2d 401 (2012) (affirming this court’s
conclusion that trial counsel could not be ineffective for failing to anticipate how the court would
rule in State v. Ronald Smith, supra).
        Burton’s trial took place in October 2009, and the Supreme Court’s opinion in State v.
Ronald Smith, supra, was released in 2011. The failure to anticipate a change in existing law does
not constitute deficient performance. State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015).
As such, Burton’s trial counsel could not have been ineffective for failing to request that the jury
be instructed on attempted sudden quarrel manslaughter.
                        (d) Failure to Pursue Vindictive Prosecution Claim
         Burton alleges his trial counsel was ineffective for failing to pursue vindictive prosecution
charges against the State in response to its filing of the second amended information. Burton argues
that he made sufficient allegations to at least merit an evidentiary hearing on his claim, citing to
the fact that the State filed the second amended information on the same day he filed and the district
court sustained his motion regarding the DNA evidence.
         Consistent with the law developed by the U.S. Supreme Court, Nebraska courts have in the
past rejected a claim of prosecutorial vindictiveness where increased charges were filed prior to
trial. State v. Flye, 245 Neb. 495, 513 N.W.2d 526 (1994). In State v. Johnson, 234 Neb. 110, 449
N.W.2d 232 (1989), the defendant asserted that his due process rights were violated when the
prosecutor dismissed an original misdemeanor charge and refiled a felony complaint after the
defendant refused to plead to the original charge and exercised his right to a trial. The Nebraska
Supreme Court refused to presume that the prosecutor’s actions were presumptively vindictive, in
large part because of the treatment by the U.S. Supreme Court of questions of alleged prosecutorial
vindictiveness in the pretrial setting. See, United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485,
73 L. Ed. 2d 74 (1982); Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604
(1978). In State v. Flye, supra, the court found no prosecutorial vindictiveness had been
demonstrated where the State added habitual criminal charges in response to the defendant’s
rejection of a plea offer. In State v. Morrison, 243 Neb. 469, 500 N.W.2d 547 (1993), disapproved
on other grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999), the court found no
prosecutorial vindictiveness had been demonstrated where the State amended an information to
include an additional charge after the defendant rejected an offer by the State to forgo adding the



                                                - 10 -
additional charge if the defendant elected to plead to the original charge. Similarly, in State v.
Trammell, 240 Neb. 724, 484 N.W.2d 263 (1992), the court found no prosecutorial vindictiveness
had been demonstrated where previously dismissed charges were refiled after the defendant
successfully appealed his conviction on an unrelated charge.
        At the pretrial stage, there is good reason to be cautious about adopting a presumption of
vindictiveness to evaluate a prosecutor’s response to the defendant’s demand for a trial. United
States v. Goodwin, supra. At the pretrial stage, the prosecutor’s assessment of the proper extent of
prosecution may not have crystallized, and a prosecutor should remain free prior to trial to exercise
broad discretion to determine the extent of the societal interest in prosecution. Id. An initial
decision should not prevent future conduct, because the initial charges filed may not reflect the
extent to which an individual is legitimately subject to prosecution. Id.
        In light of the above case law, it is clear that the State’s filing of a second amended
information at the pretrial stage did not justify a presumption of vindictive prosecution. Because
there was no presumption of prosecutorial vindictiveness, or evidence of actual prosecutorial
vindictiveness, Burton cannot show that trial counsel was deficient for failing to raise the issue.
                                        V. CONCLUSION
       For the foregoing reasons, we affirm the district court’s dismissal of Burton’s motion for
postconviction relief without an evidentiary hearing.
                                                                                       AFFIRMED.




                                               - 11 -
