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04/13/2018 08:36 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                                                    STATE v. COLLINS
                                                    Cite as 299 Neb. 160




                                          State of Nebraska, appellee, v.
                                        Fredrick A. Collins, Jr., appellant.
                                                      ___ N.W.2d ___

                                            Filed March 2, 2018.    No. S-17-147.

                1.	 Postconviction: Constitutional Law: Appeal and Error. 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.
                2.	 Postconviction: Proof: Appeal and Error. When a district court denies
                    postconviction relief without conducting an evidentiary hearing, an
                    appellate court must determine whether the petitioner has alleged facts
                    that would support the claim and, if so, whether the files and records
                    affirmatively show that he or she is entitled to no relief.
                3.	 Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
                    To establish a right to postconviction relief because of counsel’s inef-
                    fective assistance, 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. Next, the defendant must show that
                    counsel’s deficient performance prejudiced the defense in his or her
                    case. To show prejudice, the defendant must demonstrate a reasonable
                    probability that but for counsel’s deficient performance, the result
                    of the proceeding would have been different. A court may address
                    the two prongs of this test, deficient performance and prejudice, in
                    either order.
                4.	 Effectiveness of Counsel: Speedy Trial. When a defendant alleges he
                    or she was prejudiced by trial counsel’s failure to properly assert the
                    defendant’s speedy trial rights, the court must consider the merits of
                    the defendant’s speedy trial rights under Strickland v. Washington, 466
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              Nebraska Supreme Court A dvance Sheets
                      299 Nebraska R eports
                              STATE v. COLLINS
                              Cite as 299 Neb. 160

     U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 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.
 5.	 Speedy Trial. To calculate the deadline for trial for speedy trial pur-
     poses, 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 Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).
 6.	 Effectiveness of Counsel. As a matter of law, counsel cannot be ineffec-
     tive for failing to raise a meritless argument.
 7.	 Postconviction: Justiciable Issues: Right to Counsel: Appeal and
     Error. When the defendant’s petition presents a justiciable issue to the
     district court for postconviction determination, an indigent defendant is
     entitled to the appointment of counsel. But, where the assigned errors in
     the postconviction petition before the district court are either procedur-
     ally barred or without merit, establishing that the postconviction petition
     contained no justiciable issue of fact or law, it is not an abuse of discre-
     tion to fail to appoint counsel for an indigent defendant.

  Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.
   Fredrick A. Collins, Jr., pro se.
   Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
  Heavican,        C.J.,    Miller-Lerman,           Cassel,     Stacy,     and
Funke, JJ.
   Cassel, J.
                     I. INTRODUCTION
   Fredrick A. Collins, Jr., appeals from an order denying his
motion for postconviction relief. Collins failed to allege suf-
ficient facts supporting the majority of his claims, and his
remaining claims are without merit. We affirm.
                      II. BACKGROUND
   Collins was originally charged with first degree sexual
assault of a child, a Class IB felony, and third degree sexual
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                               STATE v. COLLINS
                               Cite as 299 Neb. 160

assault of a child, a Class IIIA felony. Pursuant to a plea
agreement, Collins pled no contest to a reduced charge of first
degree sexual assault, a Class II felony, and the State dismissed
the third degree sexual assault of a child charge. The district
court sentenced Collins to 10 to 15 years’ imprisonment with
credit for 396 days of time served.
   On direct appeal, Collins assigned that he received an exces-
sive sentence and that he was denied effective assistance of
trial counsel. He alleged that his trial counsel was ineffective
when counsel (1) failed to inform him of the potential penalty
for a Class II felony, (2) failed to attack the validity of the
information for lack of jurisdiction, (3) failed to file a motion
for DNA testing or investigate why a sexual assault evidence
collection kit was not completed, (4) failed to file a motion to
discharge or dismiss, (5) failed to move to sever the offenses,
(6) failed to file a motion seeking to exclude testimony from
the victim and two witnesses, (7) failed to conduct depositions
of a police detective and a child advocacy center employee, (8)
failed to show him transcripts of any depositions, (9) failed to
object to or correct the factual basis provided at the plea hear-
ing, (10) coerced his acceptance of a plea deal, and (11) failed
to attend a presentence investigation interview with him or
review presentence investigation errors with him.
   We affirmed Collins’ sentence and determined that he was
not prejudiced by any failure of trial counsel to inform him of
the potential penalty for a Class II felony.1 We did not reach
the remaining claims of ineffective assistance of counsel after
determining that the record was not sufficient for review of
those claims.
   Collins has now filed a motion for postconviction relief
reasserting his 2d through 8th and 10th claims of ineffec-
tive assistance of counsel which were not reviewed on direct
appeal. He additionally filed a motion to appoint postconvic-
tion counsel.

 1	
      State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                              STATE v. COLLINS
                              Cite as 299 Neb. 160

   The district court denied postconviction relief without an
evidentiary hearing after finding Collins’ claims were either
insufficiently pled or without merit. The court also denied
Collins’ request for appointment of postconviction counsel.
   Collins appealed, and we moved the case to our docket.2
                III. ASSIGNMENTS OF ERROR
   Collins assigns, restated, that the district court erred in
failing to (1) conduct an evidentiary hearing on his claims of
ineffective assistance of counsel and (2) assign counsel for the
postconviction proceeding.
                IV. STANDARD OF REVIEW
   [1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defend­
ant failed to allege sufficient facts to demonstrate a viola-
tion of his or her constitutional rights or that the record
and files affirm­atively show that the defendant is entitled to
no relief.3
­
                         V. ANALYSIS
             1. Motion for Postconviction R elief
   [2] When a district court denies postconviction relief with-
out conducting an evidentiary hearing, an appellate court must
determine whether the petitioner has alleged facts that would
support the claim and, if so, whether the files and records
affirmatively show that he or she is entitled to no relief.4 If
none of Collins’ allegations were sufficiently alleged, no evi-
dentiary hearing was required. Likewise, no evidentiary hear-
ing would be necessary even if some claims were sufficiently
alleged, so long as the files and records affirmatively showed
that he was entitled to no relief.

 2	
      See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).
 3	
      State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).
 4	
      See id.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                               STATE v. COLLINS
                               Cite as 299 Neb. 160

   All of Collins’ allegations are grounded in claims of inef-
fective assistance of counsel. The standard governing such
claims is well settled.
   [3] To establish a right to postconviction relief because of
counsel’s ineffective assistance, the defendant has the bur-
den, in accordance with Strickland v. Washington,5 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.6 Next, the defendant must
show that counsel’s deficient performance prejudiced the
defense in his or her case.7 To show prejudice, the defend­
ant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceed-
ing would have been different.8 A court may address the two
prongs of this test, deficient performance and prejudice, in
either order.9
   With these standards in mind, we turn to Collins’ spe-
cific claims. As explained below, none required an eviden-
tiary hearing.
                  (a) Failure to Attack Validity
                          of Information
   Collins alleged that he received ineffective assistance of
counsel when trial counsel failed to attack the validity of
the original information filed, because “the dates alleged
concerning the offenses clearly posed a jurisdictional issue.”
However, he did not specify how the dates constituted a juris-
dictional issue or how he was prejudiced when the dates were
modified in the amended information.

 5	
      Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
      (1984).
 6	
      State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).
 7	
      Id.
 8	
      Id.
 9	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                 STATE v. COLLINS
                                 Cite as 299 Neb. 160

   Collins argues in his brief on appeal that the court lacked
jurisdiction, because some of the alleged actions took place in
a different county and the victim lived in a different county
from January 1, 2009, to June 30, 2010. But, the amended
information alleged that Collins committed first degree sexual
assault between June 25, 2011, and June 12, 2012, in Douglas
County, Nebraska. Therefore, his allegations and conclusions
concerning the time between January 1, 2009, and June 30,
2010, are irrelevant. Collins failed to identify any jurisdic-
tional issue with the operative information and thus cannot
show either deficient performance or prejudice.
           (b) Failure to Move for DNA Testing and
               Investigate Lack of Sexual Assault
                    Evidence Collection Kit
   Collins alleged that trial counsel was ineffective in failing
to move for DNA testing and in failing to investigate why a
sexual assault evidence collection kit was not completed. He
argues that if such actions had been taken, evidence against
him would have been suppressed or evidence exonerating him
would have been admitted.
   However, Collins did not allege what evidence a DNA test
or collection kit would have discovered. Because this case
involved various incidents of sexual abuse which recurred
over a long period of time and included digital—but not
penile—penetration,10 his failure may well have resulted from
an absence of evidence to test or collect. Accordingly, counsel
could not be ineffective for failing to request such testing or
investigate the lack of an evidence collection kit.
                (c) Failure to Move to Discharge
                    on Speedy Trial Grounds
   Collins alleged that trial counsel failed to move to discharge
the information on speedy trial grounds. He maintains that the
speedy trial clock had expired before entry of his plea.

10	
      See State v. Collins, supra note 1.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                               STATE v. COLLINS
                               Cite as 299 Neb. 160

   [4] When a defendant alleges he or she was prejudiced
by trial counsel’s failure to properly assert the defendant’s
speedy trial rights, the court must consider the merits of
the defend­ ant’s speedy trial rights under Strickland.11 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.12
   [5] To calculate the deadline for trial for speedy trial pur-
poses, a court must exclude the day the State filed the infor-
mation, count forward 6 months, back up 1 day, and then
add any time excluded under Neb. Rev. Stat. § 29-1207(4)
(Reissue 2016).13 The original information was filed July 30,
2012. Therefore, the speedy trial deadline before adding any
excluded time was January 30, 2013.
   The State argues that there were two periods of exclud-
able time pursuant to § 29-1207(4). First, it argues that the
time between Collins’ pretrial motion to produce certain evi-
dence, filed November 1, 2012, and the district court’s order
sustaining the motion on November 28, 2012 (27 days),
was excludable. Second, it suggests that Collins’ motion to
continue the scheduled trial, filed January 16, 2013, was
one of indefinite duration. Therefore, it argues that the time
between the filing of the motion and the trial rescheduled
for March 18, 2013 (61 days), was excludable. We agree on
both counts.
   [6] After adding the excluded time, the deadline for trial
was April 28, 2013. Collins entered his plea of no contest on
March 20. Because the deadline for speedy trial purposes had
not run, defense counsel could not have been ineffective for
failing to file a motion to discharge on speedy trial grounds.

11	
      Strickland v. Washington, supra note 5; State v. Betancourt-Garcia, 295
      Neb. 170, 887 N.W.2d 296 (2016).
12	
      See State v. Betancourt-Garcia, supra note 11.
13	
      See id.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                                STATE v. COLLINS
                                Cite as 299 Neb. 160

As a matter of law, counsel cannot be ineffective for failing to
raise a meritless argument.14
               (d) Failure to Move for Severance
   Collins alleged that trial counsel was ineffective for fail-
ing to sever the charges against him. He argued that “[h]ad
[he] had separate trials, he would not have agreed to the plea
agreement reached in this case.”15 However, Collins did not
allege how he was prejudiced given that the third degree
sexual assault of a child charge was dismissed pursuant to the
plea agreement. In fact, it is impossible to see how two trials
would have benefited Collins more than the plea agreement
when he had previously admitted his wrongdoing to two wit-
nesses for the State. Consequently, Collins has failed to allege
prejudice on this claim.
            (e) Failure to Move to Exclude Testimony
   Collins alleged that counsel was ineffective for failing to
move to exclude testimony of the victim and two adult wit-
nesses. He claimed, “Trial Counsel was aware or should have
been aware that portions of the alleged victim’s statements
were perjurious when she lied and fabricated in her deposition
. . . .”16 However, Collins did not specify which statements
were fabricated or provide any detail of the deposition. He
also failed to identify the legal basis on which trial counsel
could have excluded any of the testimony. Without more
specificity, Collins failed to adequately allege this claim.
Thus, the district court was correct in denying it without an
evidentiary hearing.
             (f) Allegations Concerning Discovery
   Collins alleged that trial counsel failed to conduct depo-
sitions of two State witnesses and review other deposition

14	
      State v. Schwaderer, supra note 6.
15	
      Brief for appellant at 14.
16	
      Id.
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            Nebraska Supreme Court A dvance Sheets
                    299 Nebraska R eports
                        STATE v. COLLINS
                        Cite as 299 Neb. 160

transcripts with him. He generally claimed that, had counsel
deposed the witnesses and shared all deposition transcripts
with him, he “would not have agreed to the plea agreement in
this matter.”17 But, without more, these are merely conclusory
statements. Collins has not alleged any facts that the deposi-
tions may have revealed that would have prevented his accept­
ance of the plea deal. Because these claims were insufficiently
pled, the district court was correct in denying the claims with-
out an evidentiary hearing.
                     (g) Coerced Acceptance
                        of Plea Agreement
   Collins alleged that trial counsel coerced his acceptance of
the plea agreement by withholding discovery; admitting that
counsel had never tried a case like his; failing to inform him
of the rights he would waive by pleading guilty and how the
proceedings would go; prompting him to answer the court’s
questions at the plea hearing; and suggesting that he would be
imprisoned for at least 35 years if he did not plead guilty, but
would likely get probation or a light sentence if he accepted
the plea deal. However, these allegations are directly refuted
by the record.
   The district court informed Collins of the rights he would
retain and the rights he would waive by entering his plea,
which Collins stated he understood. The court also explained
the range of penalties which Collins would be subject to as a
result of his plea, which Collins again stated he understood.
Collins asserted that “[t]here’s been no promises” on whether
he would receive a particular sentence or be placed on proba-
tion and affirmed that he had enough time to talk to his attor-
ney before the hearing. This record affirmatively shows that
Collins is entitled to no relief on this claim, because he freely,
knowingly, intelligently, and voluntarily entered his plea pursu-
ant to the plea agreement.

17	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                               STATE v. COLLINS
                               Cite as 299 Neb. 160

                 2. Motion to A ppoint Counsel
   [7] Collins assigns and argues that the district court erred
when it denied his motion for appointment of postconviction
counsel. When the defendant’s petition presents a justiciable
issue to the district court for postconviction determination, an
indigent defendant is entitled to the appointment of counsel.18
But, where the assigned errors in the postconviction peti-
tion before the district court are either procedurally barred
or without merit, establishing that the postconviction peti-
tion contained no justiciable issue of fact or law, it is not
an abuse of discretion to fail to appoint counsel for an indi-
gent defendant.19
   As we have noted, Collins has not alleged facts sufficient
to entitle him to an evidentiary hearing on his postconviction
claim, and thus has raised no justiciable issue of fact or law.
Therefore, the district court did not abuse its discretion in
declining to appoint counsel.
                        VI. CONCLUSION
   For the reasons set forth above, we affirm the final order of
the district court.
                                                    A ffirmed.
   K elch, J., participating on briefs.
   Wright, J., not participating.

18	
      State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).
19	
      See, State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016); State v. Phelps,
      286 Neb. 89, 834 N.W.2d 786 (2013).
