                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                      STATE V. WEATHERS


  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.

                              BRANDON J. WEATHERS, APPELLANT.


                             Filed March 26, 2019.    No. A-18-483.


       Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge.
Affirmed.
       Brandon J. Weathers, pro se.
       Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.


       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       RIEDMANN, Judge.
                                       INTRODUCTION
       Brandon J. Weathers appeals the order of the district court for Douglas County which
denied his motion for postconviction relief without an evidentiary hearing. We affirm.
                                        BACKGROUND
        Weathers was charged with two counts of first degree sexual assault of a child. In
December 2014, the Douglas County Public Defender’s office was appointed to represent him. In
October 2015, Weathers filed a pro se motion to dismiss his counsel and appoint substitute counsel.
A hearing on the motion was held, and Weathers argued that his counsel was not trying to help
him and had not done anything on the case. After Weathers indicated that he was unable to afford
private counsel, the court informed him that his choices then were to retain his public defender or
represent himself. The court strongly advised Weathers that representing himself was not a good



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idea given the serious charges he was facing, but he nonetheless decided to do so. The court then
appointed his previously appointed counsel as his standby counsel.
         Weathers represented himself during a jury trial in December 2015, and the jury found him
guilty. He was sentenced to two consecutive terms of 50 to 80 years’ imprisonment. Weathers
appealed his convictions and sentences to this court and was appointed different counsel for his
direct appeal. We affirmed. See State v. Weathers, No. A-16-305, 2017 WL 24777 (Neb. App. Jan.
3, 2017) (selected for posting to court website).
         In December 2017, Weathers filed a pro se amended verified motion for postconviction
relief. He raised numerous issues related to trial errors, ineffective assistance of standby counsel,
and ineffective assistance of appellate counsel. The district court determined that the trial errors
raised in the motion were procedurally barred because they could have been raised on direct appeal.
In addition, the court found that because Weathers chose to represent himself at trial, he waived
his constitutional right to counsel, and thus, his ineffective assistance of standby counsel claims
were denied. Finally, the ineffective assistance of appellate counsel claims were denied because
Weathers failed to articulate any issues that would have changed the result of the appeal. The
district court therefore denied the postconviction motion without an evidentiary hearing. Weathers
now appeals.
                                   ASSIGNMENT OF ERROR
       Weathers assigns, consolidated, 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. Amaya, 298 Neb. 70, 902 N.W.2d 675 (2017). The lower court’s
findings of fact will be upheld unless such findings are clearly erroneous. Id.
                                            ANALYSIS
         Although Weathers’ assigned error is broad, we understand his argument on appeal to boil
down to one issue: his appellate counsel was ineffective in failing to raise on direct appeal the
denial of his motion to dismiss counsel and appoint substitute counsel. He argues that if such error
had been raised on appeal, it would have been successful because the district court failed to fulfill
its obligation to thoroughly inquire into the complaint he raised about appointed counsel.
         Once a defendant requesting substitute counsel has raised a seemingly substantial
complaint about counsel, the court has a duty to thoroughly inquire into the complaint. State v.
Davlin, 265 Neb. 386, 658 N.W.2d 1 (2003). The Nebraska Supreme Court adopted this principle
from Smith v. Lockhart, 923 F.2d 1314 (8th Cir. 1991). Thus, assuming Weathers raised a
substantial complaint, we look to Smith v. Lockhart and its progeny to determine whether the
district court’s inquiry into that complaint was sufficient.




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         The nature of the factual inquiry into the basis for a motion for substitute counsel is case
specific, and a thorough inquiry may not necessitate a separate hearing on the matter. See U.S. v.
Jones, 662 F.3d 1018 (8th Cir. 2011). In U.S. v. Jones, 795 F.3d 791 (8th Cir. 2015), the Eighth
Circuit held that the magistrate judge did not abuse his discretion in denying the defendant’s
motion for substitute counsel without inquiry where the defendant’s motion thoroughly explained
his reasons for requesting a new lawyer, and the district court had all the information necessary to
make a ruling. The court observed that in some cases, no inquiry may be required because all of
the relevant facts have already been disclosed to the court.
         Although Weathers’ written motion for substitute counsel listed several reasons he believed
that his counsel was not performing satisfactorily, in his reply brief on appeal, Weathers clarifies
that he filed the motion because of his belief that at least one, if not two, of the cell phones that
had been seized during the investigation in this case contained text messages that would exonerate
him, and defense counsel had failed or refused to pursue this information.
         The issue of allegedly missing text messages from cell phones was brought to the district
court’s attention on numerous occasions in this case before Weathers sought substitute counsel. In
May 2015, Weathers filed a pro se motion to compel data from cell phones. The matter was
addressed at a hearing on June 18. Weathers argued that he had repeatedly asked defense counsel
for information from the cell phones, but counsel had not tried to get it. Defense counsel responded
that he had addressed the issue with the prosecutor, and he felt confident that the prosecutor did
not have any additional information, but it was his understanding that the prosecutor was going to
ask the police if there was any additional information available. Defense counsel said that the
prosecutor had already turned over to him information on phone calls and text messages, and he
felt confident that if there was any additional information regarding text messages, the prosecutor
would turn it over as well. The prosecutor agreed that he would find out if there was any additional
information available, and if so, he would turn it over to the defense.
         In July 2015, Weathers sent a pro se letter to the court, in which he again raised the issue
of missing text messages from confiscated cell phones. On October 1, the district court filed copies
of several letters that had been sent by Weathers to the court in August and September. In the
letters, Weathers reiterates his belief that text messages are being withheld from him, and his
defense counsel is not pursing the matter.
         On October 28, 2015, Weathers filed the operative pro se motion to dismiss counsel and
appoint substitute counsel. Among other reasons, Weathers asserted that his counsel still had not
tried to retrieve the missing text messages. On November 2, Weathers filed a pro se motion to
continue, and one of the reasons he sought a continuance was because “all text message evidence
has not been turned over.” That same day, he filed a pro se motion to produce for examination
related to the cell phones and text messages.
         At a November 4, 2015, hearing on the motions, the court first addressed the motion to
produce for examination. Weathers argued that there were “some inconsistencies” with the text
message information he had received and that he had never received any text message information
from a certain cell phone, and despite asking defense counsel for it, Weathers claimed that counsel
had never attempted to get it. Defense counsel said that Weathers had had the opportunity to review
all of the information in counsel’s possession, and counsel again spoke with the prosecutor who



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said that she would follow up on that issue. The prosecutor confirmed to the court that she would
“double check” to ensure that all of the cell phone information had been turned over to the defense.
The court then moved on to address the motion to dismiss counsel, and Weathers explained that
he did not believe that counsel was trying to help him and complained about what he perceived to
be counsel’s lack of work on the case.
        At the time the motion to dismiss counsel was addressed, the district court allowed
Weathers to explain his dissatisfaction with counsel but asked few questions. By that point,
however, the court was well aware of Weathers’ belief that text message information was still
missing and that his defense counsel had not addressed the issue to Weathers’ satisfaction. The
court was also aware that when the matter had previously been addressed on the record, defense
counsel explained that he had spoken to the prosecutor who assured him that all cell phone
information had been provided to the defense, and all information defense counsel had had been
turned over to Weathers personally. Thus, the court already had the information necessary to
determine whether Weathers’ dissatisfaction with his counsel rose to the level sufficient to dismiss
counsel and appoint substitute counsel, and little additional inquiry was required. In other words,
based on the history of the case, the court was well aware that Weathers believed the State was
withholding text messages from him, and defense counsel had not attempted to gain that
information, and that the State had repeatedly checked to ensure that all cell phone information
had been disclosed to the defense.
        In order to prevail on a motion for substitute counsel, Weathers had to show justifiable
dissatisfaction with counsel, and reasons for justifiable dissatisfaction include a conflict of interest,
an irreconcilable conflict, or a complete breakdown in communication between the attorney and
the defendant. Smith v. Lockhart, 923 F.2d 1314 (8th Cir. 1991). Justifiable dissatisfaction does
not include a defendant’s frustration with counsel who does not share defendant’s tactical opinions
but continues to provide zealous representation. U.S. v. Kelley, 774 F.3d 434 (8th Cir. 2014).
        Likewise, under Nebraska law, when a defendant becomes dissatisfied with
court-appointed counsel, unless the defendant can show good cause to the court for the removal of
counsel, his or her only alternative is to proceed pro se if competent to do so. State v. Bjorklund,
258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on other grounds, State v. Mata, 275 Neb. 1,
745 N.W.2d 229 (2008). The right of an indigent defendant to have counsel does not give the
defendant the right to be represented by counsel of his or her own choosing, and mere distrust of,
or dissatisfaction with, appointed counsel is not enough to secure the appointment of substitute
counsel. Id.
         In the present case, none of the complaints Weathers raised rose to the level of justifiable
dissatisfaction or good cause upon which the court should have granted substitute counsel.
Therefore, given the nature of Weathers’ complaints and the background of the case leading up to
the hearing on the motion to dismiss counsel, the district court conducted an appropriately
thorough inquiry into the factual basis for the motion. Accordingly, if appellate counsel had raised
this issue on direct appeal, it would not have been successful; therefore, appellate counsel was not
ineffective in failing to raise this issue on direct appeal. See State v. Ely, 295 Neb. 607, 889 N.W.2d
377 (2017) (appellate counsel could not have been ineffective for failing to make meritless




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argument). As a result, the district court did not err in denying the motion for postconviction relief
on this basis.
        To the extent Weathers raises additional issues including appellate counsel’s failure to
object to the bill of exceptions for two missing hearings, pretrial issues by trial counsel that were
not raised by appellate counsel on direct appeal, or any sort of structural error, such issues were
not specifically argued in his brief. See State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019)
(alleged error must be both specifically assigned and specifically argued in brief of party asserting
error to be considered by appellate court). We therefore do not address these issues.
                                          CONCLUSION
       For the foregoing reasons, we affirm the order of the district court.
                                                                                          AFFIRMED.




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