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07/06/2018 09:12 AM CDT




                                                           - 586 -
                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                                                       STATE v. HENK
                                                     Cite as 299 Neb. 586




                                        State   of   Nebraska,       appellee and
                                        cross-appellant, v. Ivan            K. Henk,
                                         appellant and cross-appellee.
                                                       ___ N.W.2d ___

                                           Filed April 13, 2018.     No. S-17-291.

                1.	 Judgments: Appeal and Error. The construction of a mandate issued
                     by an appellate court presents a question of law, on which an appellate
                     court is obligated to reach a conclusion independent of the determination
                     reached by the court below.
                2.	 Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
                     dentiary hearing on a motion for postconviction relief, the trial judge,
                     as the trier of fact, resolves conflicts in the evidence and questions of
                     fact. An appellate court upholds the trial court’s findings unless they are
                     clearly erroneous. In contrast, an appellate court independently resolves
                     questions of law.
                3.	 Postconviction. Postconviction proceedings are civil in nature.
                4.	 Courts: Judgments: Appeal and Error. A district court has an unquali-
                     fied duty to follow the mandate issued by an appellate court and must
                     enter judgment in conformity with the opinion and judgment of the
                     appellate court.
                 5.	 ____: ____: ____. A lower court may not modify a judgment directed
                     by an appellate court; nor may it engraft any provision on it or take any
                     provision from it.
                6.	 Judgments: Appeal and Error. No judgment or order different from, or
                     in addition to, the appellate mandate can have any effect.
                7.	 Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial
                     court is without power to affect rights and duties outside the scope of the
                     remand from an appellate court, any order attempting to do so is entered
                     without jurisdiction and is void.
                8.	 Courts: Judgments: Appeal and Error. When an appellate court’s
                     mandate makes its opinion a part thereof by reference, the lower court
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               Nebraska Supreme Court A dvance Sheets
                       299 Nebraska R eports
                                STATE v. HENK
                              Cite as 299 Neb. 586

     should examine the opinion with the mandate to determine the judgment
     to be entered or the action to be taken thereon.
 9.	 Waiver: Appeal and Error. Issues that an appellant waives on appeal
     are not part of an appellate court’s mandate on remand.
10.	 Courts: Appeal and Error. In order to protect the integrity of the
     judicial process, a defendant cannot be allowed to assert new claims
     on remand even when he or she is entitled to an evidentiary hearing on
     other claims.
11.	 Pleas: Waiver: Effectiveness of Counsel. Normally, a voluntary guilty
     plea waives all defenses to a criminal charge, but a court will con-
     sider an allegation that the plea was the result of ineffective assistance
     of counsel.

   Appeal from the District Court for Cass County: James T.
Gleason, Judge. Affirmed in part, and in part vacated and
set aside.

      Gregory A. Pivovar for appellant.

  Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.

   Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Colborn and Samson, District Judges.

      Cassel, J.
                       INTRODUCTION
   Ivan K. Henk again appeals from an order denying post-
conviction relief, this time after an evidentiary hearing man-
dated by our decision in the first appeal.1 We conclude that
two of Henk’s claims were outside the scope of our mandate,
and we vacate and set aside those parts of the district court’s
order. Because the remaining claim lacked merit, we otherwise
affirm the order.

 1	
      See State v. Henk, 284 Neb. xix (No. S-09-1160, July 17, 2012) (memo­
      randum opinion).
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           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                          STATE v. HENK
                        Cite as 299 Neb. 586

                         BACKGROUND
   In October 2003, Henk was charged with first degree mur-
der, with aggravating circumstances, for the death of his son,
Brendan Gonzalez, which occurred on or about January 6. He
was initially questioned after his son disappeared, but he did
not make any admissions. At a subsequent hearing on an unre-
lated charge, Henk admitted in open court to killing Brendan.
He was then interviewed and eventually led investigators to the
dumpster in which he said he had placed Brendan’s body.
   Henk ultimately pled guilty to first degree murder in
exchange for the State’s not pursuing the death penalty. Once
again, he admitted in open court to the killing as part of the
factual basis underlying the plea. The court accepted this plea
and later sentenced Henk to life imprisonment without the pos-
sibility of parole.
   Henk filed a pro se motion for postconviction relief in May
2009 alleging that David Kofoed, a crime scene investigator,
planted blood evidence in the specific dumpster. He claimed
that the identification of the blood as belonging to Brendan was
a “critical piece of evidence” for the State and that his choice
to plead guilty was influenced in part by the strength of this
DNA evidence.
   The district court denied Henk’s motion for postconviction
relief without an evidentiary hearing after determining that the
issues were known to Henk at the time of his guilty plea and
thus that his claim was procedurally barred. The court also
determined that the arguments were without merit, because
the blood evidence was not part of the factual basis used at
the plea hearing. Henk appealed with the assistance of counsel
who had represented him at trial.
   On appeal, we determined that Henk’s claim could not have
been previously raised and thus was not procedurally barred.
After finding that Henk had alleged facts which, if proved,
could constitute an infringement of his rights under the state
or federal Constitution, we concluded that he was entitled to
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                 STATE v. HENK
                               Cite as 299 Neb. 586

an evidentiary hearing. Accordingly, we reversed the decision
and remanded the matter with directions to the district court to
grant an evidentiary hearing.
   On remand, Henk was represented by new counsel and
requested leave to file an amended motion for postconviction
relief in order to raise a third “cause of action,” for ineffective
assistance of trial counsel. The State objected and argued that
pursuant to this court’s mandate, the issues should be limited to
those in the original motion for postconviction relief.
   A hearing was held, after which the court granted Henk
leave to file an amended motion. In doing so, the court inter-
preted the following statement from our opinion, “[t]he pur-
pose of that evidentiary hearing will be to determine whether a
constitutional violation occurred and, if so, whether Henk was
prejudiced by such violation,”2 as broad enough to allow the
new claim of ineffective assistance of counsel.
   Henk then filed an amended motion for postconviction
relief in which he alleged that his constitutional rights were
violated by (1) the planting of evidence or false reports of
Brendan’s blood in the dumpster Henk identified to law
enforcement, (2) the prosecution’s failure to disclose Kofoed’s
misconduct to Henk, and (3) ineffective assistance of trial
counsel when counsel failed to challenge the DNA evidence
at issue.
   The district court conducted an evidentiary hearing and
afterward denied Henk’s amended motion for postconvic-
tion relief for failure to meet his burden of proof. The court
adopted the test applied in State v. Lee 3 for analysis of an
ineffective assistance of counsel claim and held that “[w]hen
a defendant has pled guilty and alleges a constitutional viola-
tion in his [motion for] postconviction relief, and the court
determines that an evidentiary hearing for a constitutional

 2	
      Id.
 3	
      State v. Lee, 290 Neb. 601, 861 N.W.2d 393 (2015).
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                STATE v. HENK
                              Cite as 299 Neb. 586

claim is necessitated by the facts, the court will apply a ‘but-
for’ analysis to determine the merits of the claim.” In limit-
ing the issue to whether but for the intentional fabrication of
evidence Henk would have rejected the plea offer, the court
found that there was “ample evidence that [he] would have
accepted the plea offer, regardless of the blood evidence from
the dumpster.” Therefore, it concluded that Henk suffered no
actual prejudice. The court applied the same analysis to find
that Henk’s other claims were without merit.
   Henk now appeals.
                 ASSIGNMENTS OF ERROR
   Henk assigns, restated, that the district court erred in deny-
ing his amended motion for postconviction relief when (1)
his constitutional rights were violated by an investigator fal-
sifying evidence, (2) the prosecution knowingly or recklessly
disregarded the falsified evidence, and (3) his trial coun-
sel was ineffective in advising him to take the proffered
plea agreement.
   The State cross-appeals and assigns that the district court
erred in granting Henk’s motion for leave to file an amended
motion for postconviction relief.
                    STANDARD OF REVIEW
   [1] The construction of a mandate issued by an appellate
court presents a question of law, on which an appellate court is
obligated to reach a conclusion independent of the determina-
tion reached by the court below.4
   [2] In an evidentiary hearing on a motion for postconviction
relief, the trial judge, as the trier of fact, resolves conflicts in
the evidence and questions of fact.5 An appellate court upholds
the trial court’s findings unless they are clearly erroneous.6

 4	
      State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).
 5	
      State v. Glass, 298 Neb. 598, 905 N.W.2d 265 (2018).
 6	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                 STATE v. HENK
                               Cite as 299 Neb. 586

In contrast, an appellate court independently resolves ques-
tions of law.7
                           ANALYSIS
                           Jurisdiction
   [3] Because postconviction proceedings are civil in nature,8
some principles of jurisdiction derived from civil cases may be
applicable to proceedings under the Nebraska Postconviction
Act.9 We turn to the State’s jurisdictional argument.
   The State argues that granting Henk’s motion for leave to
file an amended motion for postconviction relief and holding a
hearing on the additional claim were outside the scope of the
mandate from this court and, thus, outside the district court’s
authority. We agree. But for reasons discussed below, we also
conclude that holding a hearing on the claim of prosecutorial
misconduct was outside the scope of our mandate.
   [4-7] A district court has an unqualified duty to follow the
mandate issued by an appellate court and must enter judgment
in conformity with the opinion and judgment of the appellate
court.10 A lower court may not modify a judgment directed by
an appellate court; nor may it engraft any provision on it or
take any provision from it.11 No judgment or order different
from, or in addition to, the appellate mandate can have any
effect.12 Because a trial court is without power to affect rights
and duties outside the scope of the remand from an appellate
court, any order attempting to do so is entered without jurisdic-
tion and is void.13

 7	
      Id.
 8	
      See State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).
 9	
      Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).
10	
      State v. Payne, supra note 4.
11	
      Id.
12	
      Id.
13	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                  STATE v. HENK
                                Cite as 299 Neb. 586

   [8] In Henk’s original appeal from postconviction proceed-
ings, we remanded the cause for an evidentiary hearing “to
determine whether a constitutional violation occurred and, if
so, whether Henk was prejudiced by such violation.”14 Our
mandate directed the district court “to enter judgment in con-
formity with the judgment and opinion of this court.” When an
appellate court’s mandate makes its opinion a part thereof by
reference, the lower court should examine the opinion with the
mandate to determine the judgment to be entered or the action
to be taken thereon.15
   In our previous opinion, this court passed on only one
issue—whether Henk was entitled to an evidentiary hearing
on his claim that his due process rights were violated when
Kofoed planted evidence and falsified official reports. Though
Henk had initially also asserted a claim of prosecutorial mis-
conduct, he affirmatively abandoned it on appeal and assigned
error only to the court’s denial of an evidentiary hearing on his
first claim. Relying on this sole assignment of error, we did
not consider whether Henk was entitled to an evidentiary hear-
ing on the prosecutorial misconduct claim.
   [9,10] Since only one issue was passed upon by this court
and referenced in our opinion, our mandate was limited to
require an evidentiary hearing on that claim alone. Issues that
an appellant waives on appeal are not part of an appellate
court’s mandate on remand.16 And in order to protect the integ-
rity of the judicial process, a defendant cannot be allowed to
assert new claims on remand even when he or she is entitled
to an evidentiary hearing on other claims.17 Because the district
court did not have the authority to affect rights and duties

14	
      State v. Henk, supra note 1.
15	
      County of Sarpy v. City of Gretna, 276 Neb. 520, 755 N.W.2d 376 (2008).
16	
      Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).
17	
      See, e.g., State v. Payne, supra note 4; State v. Edwards, 294 Neb. 1, 880
      N.W.2d 642 (2016) (Stacy, J., concurring; Cassel, J., joins).
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                  STATE v. HENK
                                Cite as 299 Neb. 586

outside the scope of the remand, we vacate and set aside the
order granting leave to file an amended motion for postconvic-
tion relief and that portion of the district court’s order address-
ing the second and third claims.
   We express no opinion as to whether there is a procedural
bar on Henk’s third claim, because the record on appeal is
insufficient to determine whether the claim for ineffective
assistance of counsel could have been asserted at the time that
he filed the prior motion.18 Assuming without deciding that he
was not procedurally or time barred from doing so, we note
that Henk could have filed a second motion for postconvic-
tion relief alleging this claim at the time of filing his request
for leave to amend his first motion.19 However, Henk is judi-
cially estopped from reasserting his second claim, because he
affirm­atively abandoned it in his first appeal.20
   Having determined that only one issue is properly before us
on appeal, we turn to consider the merits of that claim.
                             Merits
   Henk argues that but for the fabricated evidence, he would
not have agreed to the plea bargain. He suggests that “[h]ad
the fraudulent conduct of the government official been revealed
and disclosed it would have tainted the entire process.”21
However, the wrongness of Kofoed’s conduct is not the issue
in this case. That matter has been settled, and Kofoed has been
sentenced in consideration of his crimes.22 Here, Henk had the

18	
      See State v. Jackson, 296 Neb. 31, 892 N.W.2d 67 (2017).
19	
      See, e.g., State v. Edwards, supra note 17.
20	
      See O’Connor v. Kearny Junction, 295 Neb. 981, 987, 893 N.W.2d 684,
      690 (2017) (“[w]hen a party has unequivocally asserted a position in a
      proceeding and a court accepts that position, judicial estoppel can bar that
      party’s inconsistent claim against the same or a different party in a later
      proceeding”).
21	
      Brief for appellant at 34.
22	
      See State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                  STATE v. HENK
                                Cite as 299 Neb. 586

burden to prove that there was a constitutional violation and
that he was prejudiced by the constitutional violation.
   [11] Normally, a voluntary guilty plea waives all defenses to
a criminal charge, but a court will consider an allegation that
the plea was the result of ineffective assistance of counsel.23
Though this claim was not framed as ineffective assistance
of counsel in the first appeal, we nonetheless remanded for
an evidentiary hearing. The sufficiency of this allegation thus
became the law of the case, and, as neither party addresses it
on this appeal, we assume without deciding that a constitu-
tional violation occurred.
   To establish prejudice in this context, Henk had to show
that but for the fabricated evidence, he would not have
accepted the plea bargain.24 Henk did not meet this burden
of proof.
   The record demonstrates that Henk’s main concern in
pleading guilty was preventing the media from disclosing
the evidence and his statements detailing the killing to law
enforcement. In Henk’s own words, he said, “I was very
interested in getting the statements that I made and confes-
sions that I made not given to the public. So that was a major
consideration.” During his interviews with law enforcement,
he had gone into detail about killing Brendan and he had
made clear even before he was charged that he intended to
plead guilty. He also admitted to the killing at the hearing on
his plea. And as the district court noted, Henk offered his own
deposition into evidence, but it did not state that he would
not have pled guilty were it not for the dumpster evidence.
With this record, the district court was not clearly wrong in
finding that there was ample evidence that Henk would have
accepted the plea offer, regardless of the blood evidence from
the dumpster.

23	
      See State v. Lee, supra note 3.
24	
      See id.
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           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                          STATE v. HENK
                        Cite as 299 Neb. 586

   Because Henk did not show that but for the fabricated
evidence, he would not have accepted the plea bargain, he
failed to establish that he was entitled to postconviction
relief. Accordingly, the district court did not err in denying
his motion.
                         CONCLUSION
   We vacate and set aside the district court’s order granting
leave to file an amended motion for postconviction relief and
the portion of its order concerning those claims which were
outside the scope of our mandate. Because Henk’s remaining
claim is without merit, we affirm in all other respects the dis-
trict court’s order denying postconviction relief.
	A ffirmed in part, and in part
	                                 vacated and set aside.
   Wright, J., not participating.
