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07/11/2017 12:09 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     24 Nebraska A ppellate R eports
                                               STATE v. KOLBJORNSEN
                                                Cite as 24 Neb. App. 851




                                         State of Nebraska, appellee, v.
                                        Frantz G. Kolbjornsen, appellant.
                                                      ___ N.W.2d ___

                                Filed July 3, 2017.   Nos. A-16-766, A-16-768, A-16-769.

                1.	 Postconviction: Evidence: Witnesses: Appeal and Error. In an evi-
                    dentiary hearing, as a bench trial provided by Neb. Rev. Stat. § 29-3001
                    et seq. (Reissue 2016) for postconviction relief, the trial judge, as the
                    trier of fact, resolves conflicts in the evidence and questions of fact,
                    including witness credibility and weight to be given a witness’ tes-
                    timony. In an appeal involving such a proceeding for postconviction
                    relief, the trial court’s findings will be upheld unless such findings are
                    clearly erroneous.
                2.	 Postconviction: Appeal and Error. In appeals from postconvic-
                    tion proceedings, an appellate court independently resolves questions
                    of law.
                3.	 Effectiveness of Counsel: Appeal and Error. Determinations regarding
                    whether counsel was deficient and whether the defendant was preju-
                    diced are questions of law that an appellate court reviews independently
                    of the lower court’s decision.
                4.	 Postconviction: Judgments: Constitutional Law. The Nebraska
                    Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016),
                    provides that postconviction relief is available to a prisoner in custody
                    under sentence who seeks to be released on the ground that there was
                    a denial or infringement of his or her constitutional rights such that the
                    judgment was void or voidable.
                5.	 Postconviction: Effectiveness of Counsel: Appeal and Error. In a
                    postconviction proceeding, the district court should first address the
                    claim that counsel was ineffective for failing to file a direct appeal,
                    including holding an evidentiary hearing, if required. Upon reach-
                    ing its decision, the district court should enter a final order on that
                    claim only. If the claim for a new direct appeal is denied, a defendant
                    should be permitted to appeal that denial. Only after the resolution of
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            Nebraska Court of A ppeals A dvance Sheets
                 24 Nebraska A ppellate R eports
                          STATE v. KOLBJORNSEN
                           Cite as 24 Neb. App. 851

     that appeal, or, alternatively, the expiration of the defendant’s time
     to appeal, should the district court proceed to consider the remain-
     ing claims.
 6.	 Constitutional Law: Effectiveness of Counsel. A proper ineffective
     assistance of counsel claim alleges a violation of the fundamental con-
     stitutional right to a fair trial.
 7.	 Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a
     claim of ineffective assistance of counsel under Strickland v. Washington,
     466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant
     must show that his or her counsel’s performance was deficient and that
     this deficient performance actually prejudiced the defendant.
 8.	 Postconviction: Effectiveness of Counsel: Presumptions: Appeal and
     Error. After a trial, conviction, and sentencing, if counsel deficiently
     fails to file or perfect an appeal after being so directed by the criminal
     defendant, prejudice will be presumed and counsel will be deemed inef-
     fective, thus entitling the defendant to postconviction relief.
 9.	 Fees: Appeal and Error. Neb. Rev. Stat. § 25-1912 (Reissue 2016),
     applicable to civil and criminal appeals, generally provides that an
     appeal may be taken by filing a notice of appeal and depositing the
     required docket fee with the clerk of the district court.
10.	 Jurisdiction: Affidavits: Fees: Appeal and Error. A poverty affidavit
     serves as a substitute for the docket fee otherwise required upon appeal,
     and an in forma pauperis appeal is perfected when the appellant timely
     files a notice of appeal and a proper affidavit of poverty.
11.	 Affidavits: Appeal and Error. The impoverished appellant, not her or
     his attorney, must execute the affidavit which substitutes for the pay-
     ment of fees and costs and the posting of security.
12.	 Effectiveness of Counsel: Proof. To show deficient performance, a
     defendant must show that counsel’s performance did not equal that of a
     lawyer with ordinary training and skill in criminal law.
13.	 Effectiveness of Counsel: Presumptions: Appeal and Error. The
     entire effectiveness analysis is viewed with a strong presumption that
     counsel’s actions were reasonable and that even if found unreason-
     able, the error justifies setting aside the judgment only if there was
     prejudice.

  Appeal from the District Court for Hall County: Teresa
K. Luther, Judge. Affirmed in part, and in part vacated and
remanded for further proceedings.
   Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom &
Stehlik, P.C., L.L.O., for appellant.
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         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
                      STATE v. KOLBJORNSEN
                       Cite as 24 Neb. App. 851

  Douglas J. Peterson, Attorney General, Kimberly A. Klein,
and, on brief, George R. Love, for appellee.
  Moore, Chief Judge, and Pirtle and Bishop, Judges.
  Pirtle, Judge.
                       INTRODUCTION
   Frantz G. Kolbjornsen filed three identical motions for post-
conviction relief following his pleas of no contest to the under-
lying criminal charges in cases Nos. CR 14-596, CR 14-598,
and CR 14-600. His motions were denied following an evi-
dentiary hearing. Kolbjornsen appeals the orders of the district
court for Hall County, and the cases have been consolidated for
briefing and disposition. We affirm in part, and in part vacate
and remand the causes for further proceedings.
                        BACKGROUND
   On November 25, 2014, Kolbjornsen was charged by
information in three separate criminal cases in Hall County,
Nebraska: (1) No. CR 14-596—second degree forgery, a
Class III felony; (2) No. CR 14-598—possession of a destruc-
tive device, a Class IV felony; and (3) No. CR 14-600—assault
in the first degree, a Class II felony, and use of a deadly
weapon to commit a felony, a Class II felony.
   Kolbjornsen was also charged in Hall County case No.
CR 14-602 with theft by unlawful taking. Pursuant to a plea
agreement, the State amended the charges in cases Nos.
CR 14-596, CR 14-598, and CR 14-600, and agreed to dismiss
the following charges: (1) three forgery charges, each a Class I
misdemeanor; (2) use of a deadly weapon to commit a felony,
a Class II felony; and (3) theft, a Class IV felony.
   Kolbjornsen entered pleas of no contest to amended charges
of (1) attempted forgery, in the second degree, a Class IV fel-
ony; (2) possession of a destructive device, a Class IV felony;
and (3) attempted first degree assault, a Class III felony.
   At the time he was sentenced, Kolbjornsen was serving a
term of imprisonment for a criminal conviction in Hamilton
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         Nebraska Court of A ppeals A dvance Sheets
              24 Nebraska A ppellate R eports
                      STATE v. KOLBJORNSEN
                       Cite as 24 Neb. App. 851

County, Nebraska. As part of the plea agreement, the State also
agreed to recommend concurrent sentences for the amended
charges in Hall County cases Nos. CR 14-596, CR 14-598, and
CR 14-600 and for the sentences subject to the agreement to
run concurrent to the sentence imposed in Hamilton County.
Kolbjornsen was convicted of each of the amended criminal
charges in the district court for Hall County.
   Kolbjornsen was sentenced on March 11, 2015. The
State recommended concurrent sentencing, but asked that
Kolbjornsen not receive credit for time served for the Hamilton
County sentence, as it was not related to the crimes commit-
ted in Hall County. The State recommended that sentencing be
concurrent with the Hamilton County sentence beginning from
the date of sentencing in Hall County.
   In case No. CR 14-596, the court sentenced Kolbjornsen
to 20 months’ to 5 years’ imprisonment, with the sentence
to be served concurrently with cases Nos. CR 14-598 and
CR 14-600. In case No. CR 14-598, Kolbjornsen was sen-
tenced to 20 months’ to 5 years’ imprisonment, with the sen-
tence to be served concurrently with the sentences imposed in
cases Nos. CR 14-596 and CR 14-600. In case No. CR 14-600,
Kolbjornsen was sentenced to 5 to 7 years’ imprisonment,
with the sentence to be served concurrently with cases Nos.
CR 14-596 and CR 14-598. The court ordered that these con-
current sentences would run consecutively to the sentence
imposed by the district court for Hamilton County, and the
court gave no credit for time previously served. The court
indicated that the imposition of these sentences would add 21⁄2
years to his parole eligibility and 31⁄2 years to the “jam time,”
or the time of his mandatory discharge.
   Kolbjornsen filed amended motions for postconviction
relief in each case, including several allegations of trial court
error and allegations of ineffective assistance of counsel. The
same motion was filed in each case. A single evidentiary
hearing was held March 3, 2016, to address the postconvic-
tion motions.
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          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                       STATE v. KOLBJORNSEN
                        Cite as 24 Neb. App. 851

   On July 28, 2016, the district court filed orders address-
ing several of Kolbjornsen’s specific allegations and deny-
ing Kolbjornsen’s motions for postconviction relief “in [their]
entirety.” The same order was filed in each case. Kolbjornsen
timely appealed and requested that the cases be consolidated
for the purposes of appeal.
                  ASSIGNMENTS OF ERROR
   Kolbjornsen asserts, generally, that the district court erred in
denying his motions for postconviction relief. He argues that
he was denied effective assistance of trial counsel for several
reasons, including the allegation that trial counsel failed to file
a direct appeal in each case. He also argues multiple allega-
tions of trial court error.
                     STANDARD OF REVIEW
   [1] In an evidentiary hearing, as a bench trial provided by
Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016) for postcon-
viction relief, the trial judge, as the trier of fact, resolves con-
flicts in the evidence and questions of fact, including witness
credibility and weight to be given a witness’ testimony. State
v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015). In an
appeal involving such a proceeding for postconviction relief,
the trial court’s findings will be upheld unless such findings are
clearly erroneous. Id.
   [2,3] In appeals from postconviction proceedings, we inde-
pendently resolve questions of law. State v. Determan, 292
Neb. 557, 873 N.W.2d 390 (2016). Determinations regarding
whether counsel was deficient and whether the defendant was
prejudiced are questions of law that we review independently
of the lower court’s decision. Id.
                        ANALYSIS
   [4] The Nebraska Postconviction Act, § 29-3001 et seq.,
provides that postconviction relief is available to a prisoner
in custody under sentence who seeks to be released on the
ground that there was a denial or infringement of his or
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          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                      STATE v. KOLBJORNSEN
                       Cite as 24 Neb. App. 851

her constitutional rights such that the judgment was void
or voidable. State v. Hessler, 295 Neb. 70, 886 N.W.2d
280 (2016).
   In this consolidated appeal, Kolbjornsen makes several
claims related to the effectiveness of his trial counsel and
alleges there were multiple irregularities or errors in the pro-
ceedings before the trial court.
   [5] In State v. Determan, supra, the Nebraska Supreme
Court modified the procedure to be followed by those district
courts that are presented with postconviction motions alleg-
ing both a direct appeal claim and other claims of ineffective
assist­ance of counsel. The Nebraska Supreme Court stated:
      In the future, the district court should first address the
      claim that counsel was ineffective for failing to file a
      direct appeal, including holding an evidentiary hearing,
      if required. Upon reaching its decision, the district court
      should enter a final order on that claim only. If the claim
      for a new direct appeal is denied, a defendant should be
      permitted to appeal that denial. Only after the resolu-
      tion of that appeal, or, alternatively, the expiration of the
      defendant’s time to appeal, should the district court pro-
      ceed to consider the remaining claims.
         We note that this procedure is applicable only in those
      situations where a defendant raises both the ineffective-
      ness of counsel for not filing a direct appeal along with
      other allegations of ineffectiveness.
Id. at 563, 873 N.W.2d at 395.
   In State v. Determan, supra, the Nebraska Supreme Court
ultimately found that the proper disposition of the underly-
ing appeal would be to vacate the district court’s order deny-
ing postconviction claims and remand the cause for further
proceedings.
   Here, following an evidentiary hearing, the district court
denied postconviction relief on the basis that trial counsel was
ineffective for failing to file a direct appeal in each case. The
district court also addressed Kolbjornsen’s other allegations
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                      STATE v. KOLBJORNSEN
                       Cite as 24 Neb. App. 851

of ineffective assistance and allegations of trial court error.
Keeping in mind the procedure set forth in State v. Determan,
supra, we will only consider Kolbjornsen’s argument regard-
ing trial counsel’s alleged failure to file a direct appeal in each
case. The remainder of the district court’s orders are vacated
and the causes are remanded for further proceedings.
   [6,7] A proper ineffective assistance of counsel claim alleges
a violation of the fundamental constitutional right to a fair
trial. State v. Hessler, 295 Neb. 70, 886 N.W.2d 280 (2016).
To prevail on a claim of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), the defendant must show that his or
her counsel’s performance was deficient and that this defi-
cient performance actually prejudiced the defendant. State v.
Hessler, supra.
   [8] After a trial, conviction, and sentencing, if counsel defi-
ciently fails to file or perfect an appeal after being so directed
by the criminal defendant, prejudice will be presumed and
counsel will be deemed ineffective, thus entitling the defendant
to postconviction relief. State v. Dunkin, 283 Neb. 30, 807
N.W.2d 744 (2012).
   [9-11] Neb. Rev. Stat. § 25-1912 (Reissue 2016), appli-
cable to civil and criminal appeals, generally provides that an
appeal may be taken by filing a notice of appeal and deposit-
ing the required docket fee with the clerk of the district court.
State v. Ruffin, 280 Neb. 611, 789 N.W.2d 19 (2010). The
Nebraska Supreme Court has noted that a poverty affidavit
serves as a substitute for the docket fee otherwise required
upon appeal and that an in forma pauperis appeal is per-
fected when the appellant timely files a notice of appeal and
a proper affidavit of poverty. Id. The impoverished appellant,
not her or his attorney, must execute the affidavit which sub-
stitutes for the payment of fees and costs and the posting of
security. Id.
   Kolbjornsen asserts that his trial counsel was ineffective
for failing to file a direct appeal in each case and that the
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          Nebraska Court of A ppeals A dvance Sheets
               24 Nebraska A ppellate R eports
                      STATE v. KOLBJORNSEN
                       Cite as 24 Neb. App. 851

district court erred in denying postconviction relief on this
basis. He asserts that he asked his wife to notify his trial
counsel that he wished to file direct appeals, and he argues
that his counsel failed to do so or make other affirmative steps
to ensure the appeals could proceed prior to the filing dead-
line. Kolbjornsen’s wife testified that she contacted counsel
on March 18 or 19, 2015, to give him notice that Kolbjornsen
wished to appeal the orders filed on March 11.
   At the evidentiary hearing, trial counsel testified that in
situations such as this, he typically asks his clients to write
him directly rather than communicating through a spouse so
he has a clear directive from a client regarding their wishes.
Nevertheless, he recognized the urgency involved and he pro-
ceeded to immediately prepare and send a letter to Kolbjornsen
at the correctional institution. He did not recall the date that
Kolbjornsen’s wife contacted him by telephone, but testified
that his standard course of practice would be to communicate
with this client within a day or two.
   Trial counsel testified that he acted promptly due to the short
period of time remaining before the deadline to file appeals.
He said the letter instructed Kolbjornsen that the poverty
affidavits had to be signed, notarized, and back in counsel’s
possession by April 10, 2015, in order to perfect the appeals.
Counsel testified that he sent the letter on March 31 and that
he received Kolbjornsen’s response on April 13, after the dead-
line for direct appeals had passed. Trial counsel said the letter
containing a signed poverty affidavit was the only direct com-
munication he received from Kolbjornsen requesting that he
file appeals.
   Kolbjornsen testified that he received the letter from trial
counsel on April 4, 2015. He signed the form and had it nota-
rized on April 8, and he mailed it back to trial counsel on the
same day. He received a letter from trial counsel indicating
that the deadline had passed for filing direct appeals and advis-
ing him to file motions for postconviction relief.
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               24 Nebraska A ppellate R eports
                       STATE v. KOLBJORNSEN
                        Cite as 24 Neb. App. 851

    The court found that there was no evidence Kolbjornsen’s
counsel ignored his instructions, and it found that counsel
acted promptly, providing adequate instructions regarding the
filing deadline. The court noted that this situation is similar to
that in State v. Perry, 268 Neb. 179, 681 N.W.2d 729 (2004),
in which it appeared the postal service may have been a factor
in Kolbjornsen’s inability to timely file the appeals. However,
the court also noted that Kolbjornsen waited weeks before
contacting counsel regarding his desire to file appeals and that
his counsel acted promptly to provide him with the necessary
documents. The court indicated that Kolbjornsen could have
made alternative arrangements for delivery if he felt the mail
service would be “questionable for meeting the deadline.”
Ultimately, the court found that there was no evidence show-
ing that counsel was deficient in his performance.
    When reviewing a claim of ineffective assistance of coun-
sel, an appellate court reviews factual findings of the lower
court for clear error. We find the trial judge, as the trier of fact,
did not clearly err in determining that Kolbjornsen’s delay in
contacting counsel regarding his desire to appeal affected his
counsel’s ability to timely file appeals on his behalf.
    [12,13] To show deficient performance, a defendant must
show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law. See State v.
Alford, 24 Neb. App. 213, 884 N.W.2d 470 (2016). The entire
effectiveness analysis is viewed with a strong presumption
that counsel’s actions were reasonable and that even if found
unreasonable, the error justifies setting aside the judgment only
if there was prejudice. Id.
    The evidence shows that trial counsel acted promptly once
Kolbjornsen’s wife contacted him, and he sent the neces-
sary paperwork and instructions in a timely manner. The evi-
dence also shows that, after sentencing, Kolbjornsen delayed
a week or more before asking his wife to contact his counsel,
and delayed again in signing and returning the letter, even
though he had been informed that failure to return the poverty
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               24 Nebraska A ppellate R eports
                      STATE v. KOLBJORNSEN
                       Cite as 24 Neb. App. 851

affidavits by April 10, 2015, would affect his ability to file
direct appeals.
   Based upon our review of the record, we conclude that trial
counsel’s performance was not deficient and that the district
court did not err in denying postconviction relief on this theory
of ineffective assistance of counsel. And because our decision
on Kolbjornsen’s claim of ineffective assistance of counsel for
failing to timely file direct appeals is subject to further review,
we conclude that based on State v. Determan, 292 Neb. 557,
873 N.W.2d 390 (2016), neither the district court nor this
court can address the remaining postconviction claims until a
mandate has issued as to the direct appeal issue. Accordingly,
we must vacate the district court’s orders as to the remaining
postconviction claims and remand the causes with directions
to defer consideration of those claims until after the mandates
have issued as to the direct appeal claims.
                          CONCLUSION
   We find the district court did not err in denying Kolbjornsen’s
motions for postconviction relief on the basis that his trial
counsel was ineffective for failure to file direct appeals. We
vacate the district court’s orders as to the remaining postcon-
viction claims and remand the causes with directions to defer
consideration of those claims until after the mandates have
issued as to the direct appeal claims.
	A ffirmed in part, and in part vacated and
	                   remanded for further proceedings.
