McCORMACK, J.
Robert J. Dunkin pled no contest to the charge of murder in the second degree. The district court accepted Dunkin's plea, entered a judgment of guilty, and subsequently sentenced Dunkin to 40 years' to life imprisonment. Dunkin did not directly appeal the judgment, but filed a motion for postconviction relief which alleged that his constitutional right to the effective assistance of counsel had been violated. Following an evidentiary hearing, the district court denied Dunkin's request for postconviction relief. Dunkin appeals.
Dunkin was charged by information with murder in the first degree and use of a weapon to commit a felony in connection with the death of his girlfriend, Lynn Anderson. Pursuant to plea negotiations, the information was amended to charge Dunkin with murder in the second degree, to which Dunkin pled no contest. The district court accepted Dunkin's plea and entered a judgment of guilty. On April 28, 2009, the court sentenced Dunkin to 40 years' to life imprisonment. No direct appeal was taken from Dunkin's conviction and sentence.
On February 23, 2010, Dunkin filed a pro se "Motion to Vacate and Set Aside Sentence and Conviction Pursuant to [Neb.Rev.Stat.] §§ 29-3001 to 29-3004 [(Reissue 2008)]." Dunkin alleged that his constitutional right to the effective assistance of counsel had been violated. Dunkin asserted that his trial counsel coerced and pressured Dunkin to plead no contest to the charge of second degree murder, failed to investigate Dunkin's state of mind at the time of the offense, failed to have Dunkin undergo a mental health examination or retain a medical professional to testify, failed to adequately present evidence at the suppression hearing, failed to adequately prepare for trial, made sentencing representations to Dunkin that he would receive a sentence of 20 to 30 years' imprisonment, and failed to
Dunkin also filed a motion to withdraw his plea of no contest, wherein he claimed that he had been promised prosecutors would recommend a minimum sentence of 20 to 30 years' imprisonment and that he had been promised by his attorney he would be paroled upon first eligibility. At the time of the plea, Dunkin claimed he was so "mentally impaired/medicated that he didn't fully understand what was going on" because he was on a number of medications, the combined effect of which "is not known to Dunkin." He claimed he was experiencing hallucinations, delusions, a confused state, disorientation, disturbed concentration, anxiety, drowsiness, dizziness, weakness, fatigue, and headache. Dunkin claimed, at the time of the plea, that he had not been evaluated regarding the defense of not guilty by reason of insanity and that the plea was a product of coercion at the hands of his attorney. Dunkin asserted that he believes he has a meritorious defense to the charge of murder in the second degree.
Dunkin filed a motion for appointment of postconviction counsel, which the court granted. The State filed a responsive pleading, and the court conducted an evidentiary hearing on Dunkin's motion for postconviction relief.
Dunkin testified at the hearing on his postconviction motion. Dunkin stated that he was initially represented by an attorney from the Commission on Public Advocacy, but that Dunkin's brother wanted to hire a private attorney. Dunkin's brother hired trial counsel to represent him, and Dunkin's brother signed a fee agreement and paid a flat fee of $25,000. Dunkin stated that throughout the proceedings, his mother and brother were in contact with counsel while Dunkin was in jail, to relay messages from Dunkin. Dunkin stated that he could not contact counsel directly because counsel's office did not accept collect telephone calls. Counsel testified, however, that his office policy was to accept collect calls from clients who are in jail.
Dunkin testified regarding his first meeting with counsel on August 1, 2008, during which meeting Dunkin told counsel his version of the events that occurred on January 21 and 22, 2008, which had led to the death of Anderson. Dunkin explained that he had been in a relationship with Anderson for approximately 6 months. The evening of her death, she had gone to Dunkin's house and began crying. The two had previously discussed whether Anderson had cheated on Dunkin, and he again asked her if that was the case. Anderson did not answer, and Dunkin repeatedly asked if she had cheated on him until Anderson got angry. Anderson then jumped out of her chair and swung her purse at Dunkin, which hit him in the head and knocked him to the ground. Anderson swung her arms at Dunkin, and he attempted to restrain her but she bit him on the arm, knocking him to the ground again.
Dunkin testified that Anderson told him she was going to kill him and then reached for a chair where he kept a gun. At the same time, Dunkin moved to reach the gun first; a struggle ensued, during which Anderson kicked Dunkin in the knee and he fell into the wall. When Dunkin fell, the gun went off and struck and killed Anderson. Dunkin testified that he told counsel that Anderson's death was accidental and unintentional. Dunkin stated that counsel told him that he thought Dunkin had a good case for manslaughter.
Dunkin explained to counsel that he had taken a large amount of prescription pills
Following the incident, Dunkin was taken from his home to a hospital by ambulance because of the possible overdose. Dunkin made statements to medical personnel and police officers during the ambulance ride and after arriving at the hospital. The statements made by Dunkin during this time were recorded by a police officer who rode to the hospital in the ambulance with Dunkin.
Counsel filed a motion to suppress the statements Dunkin had made to law enforcement and medical personnel when he was taken into custody. In the motion to suppress, counsel argued that Dunkin's statements to medical personnel should be suppressed on the basis of doctor-patient privilege. He also claimed that the statements Dunkin made to police officers at the hospital should be suppressed, because Dunkin was not properly advised of his Miranda rights. A suppression hearing was scheduled, and on December 23, 2008, Dunkin met with counsel for the second time for approximately 10 minutes immediately prior to the hearing to discuss what would happen.
At the suppression hearing, the State called two police officers to testify; counsel did not call any witnesses on Dunkin's behalf, nor did Dunkin testify. Dunkin met with counsel briefly following the suppression hearing, and counsel explained that the hearing had gone as he expected it would. Dunkin testified that he was lucid during the hearing and understood what was going on.
After taking the motion to suppress under advisement, the court overruled the motion in regard to Dunkin's statements made during transport to the hospital and those made to police officers at the hospital after Dunkin was read his Miranda rights, and it sustained the motion in regard to statements he made to police prior to being advised of his Miranda rights. The court reserved ruling on statements made by Dunkin to the treating physician at the hospital. Dunkin said that he wanted to appeal the suppression order but that counsel told him that could not be done because it was not a final, appealable order. Dunkin then told counsel he should try to negotiate a manslaughter charge.
Dunkin testified that he told counsel that the autopsy report was incorrect, because it reported that Anderson had died of strangulation and a gunshot wound. Dunkin told counsel that Anderson must have had bruises on her neck and that if this could be confirmed, it would support Dunkin's version of the events—that the death was accidental.
Counsel obtained court approval for appointment of an expert witness. Counsel retained Dr. George Nichols, with whom he had worked in a previous case. Counsel believed Nichols to be highly qualified and retained Nichols to review the autopsy report. Nichols was supplied with the police and medical reports related to Dunkin's case. Counsel testified that Nichols reviewed all of the documents in the case and was unable to confirm Dunkin's version of the events. Counsel stated that Nichols' opinion was generally unfavorable to Dunkin and that he did not receive a written report of Nichols' findings.
On February 10, 2009, counsel presented Dunkin with a plea offer of second degree murder and a dismissal of the gun charge. Dunkin asked counsel, If "this were your kid" in this situation, "what would you tell them [sic] to do?" Counsel said that he would advise him to take the plea deal, because the State would dismiss the gun charge and he would probably be looking at 20 to 30 years' imprisonment, which would be "really close" to what a manslaughter conviction would get him. Dunkin testified that counsel told him that the judge wanted his plea by the end of the day if he were going to take the deal. Dunkin stated that he felt "pressured" and "rushed" during the meeting regarding the plea offer.
Dunkin met with counsel for a second time also on February 10, 2009, for 10 to 15 minutes. Dunkin testified that at that point, Dunkin felt that they were not ready for trial, which was scheduled for 1 week later. Dunkin stated that they had not discussed strategy and that he had not been prepped to testify, so he decided to take the plea offer. Dunkin testified that counsel told him he had spoken with the prosecutor, the judge, and the parole board and that Dunkin would be let out of prison on his first parole date.
Counsel stated that he did not depose any witnesses because he was able to rely on witness interviews conducted by Dunkin's previous attorney from the Commission on Public Advocacy. Counsel also testified that he felt he was prepared for trial and that he advised Dunkin to take the plea offer, because he felt there was a substantial likelihood Dunkin would be convicted of first degree murder if the case went to trial.
Dunkin entered his plea of no contest to the charge of murder in the second degree on February 10, 2009. At the plea hearing, Dunkin stated that he was taking several medications and that the medications helped him to think more clearly. During postconviction proceedings, however, Dunkin stated that he was suffering from anxiety on February 10 and that as a result, his mind was "racing" and he could not think straight. Dunkin testified that he did not freely and voluntarily plead no contest, because he was heavily medicated, he was not "in the right mind" to make such a decision, and he felt pressured. Dunkin stated that he decided to take the plea, because he had not discussed trial strategy with counsel and he felt rushed.
Dunkin also testified that counsel told him what answers to give to the judge at the plea hearing. Dunkin stated that without that preparation, he would not have been able to properly answer the questions regarding his understanding of the plea. Counsel testified that he did not pressure Dunkin in any way to accept a plea offer; that at all times, he told Dunkin to answer questions from the court truthfully; and that he told Dunkin he hoped for a sentence of 20 to 30 years' imprisonment, but had made no promises.
Sentencing was scheduled for April 27, 2009. Dunkin did not meet or speak with counsel prior to the sentencing date. On the day of the sentencing hearing, Dunkin and counsel met briefly. Dunkin had prepared a statement for the hearing that he wanted to read so Anderson's family could
Dunkin had no further contact with counsel following sentencing, nor did they discuss an appeal. Dunkin did not speak with counsel directly regarding an appeal of his conviction or sentence. However, Dunkin testified that he asked his mother, brother, and son to tell counsel that he wanted to appeal. Dunkin stated that he did not receive any correspondence from counsel regarding his ability to appeal and that he never signed a waiver of appeal.
Dunkin's mother, Meredith Chisholm, testified that Dunkin called her on May 8, 2009, and asked her if she would contact counsel to request an appeal. Chisholm contacted counsel on May 12 and left a message. Counsel returned Chisholm's call 2 days later, when Chisholm asked about the chances Dunkin would have on appeal and asked that counsel visit Dunkin in jail. Counsel stated that he believed the chances of success on appeal were slim and that he could not "take any more money from [the family]." Counsel did not speak with Chisholm any further regarding the possibility of an appeal.
Counsel testified that he did not get a written waiver of appeal from Dunkin or advise Dunkin or Chisholm that it would be possible to obtain court-appointed counsel to prosecute an appeal if Dunkin was determined to be indigent. However, counsel stated that he discussed the possibility of a successful appeal with Chisholm within 30 days of Dunkin's sentencing. At that time, Chisholm did not request that he file an appeal. Counsel further testified that he had explained to Dunkin that he would not be able to appeal the suppression order if he accepted the plea offer. And counsel testified that he also discussed all the other rights that Dunkin would waive if he entered the plea.
Following the evidentiary hearing, the district court denied Dunkin's request for postconviction relief. The court determined that Dunkin's plea was made freely and knowingly, without pressure or coercion from counsel and without the promise of a specific sentence. The court also found that counsel was not ineffective in his preparation for trial or in failing to request a competency examination. Finally, the court determined that although counsel engaged in some discussion regarding the possibility of an appeal, counsel was not ineffective in failing to file an appeal, because the record reflects that no request for appeal was made.
In denying Dunkin's claims, the court noted:
Dunkin appeals the denial of his motion for postconviction relief. Additional facts relating to Dunkin's plea and conviction will be discussed as necessary in our analysis section below.
Dunkin assigns that the district court erred in (1) failing to grant Dunkin's request for postconviction relief, because Dunkin's constitutional right to the effective assistance of counsel was violated throughout the discovery, trial, plea, and sentencing phases of his case, and (2) failing to grant Dunkin's request for postconviction relief, because Dunkin's right to the effective assistance of counsel was violated when trial counsel disregarded Dunkin's request to appeal his sentence.
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.
Dunkin argues that the district court erred in denying his motion for postconviction relief on the basis of ineffective assistance of counsel. Dunkin claims that his trial counsel failed to properly investigate the case, retain experts, conduct discovery, and prepare for trial. Had trial counsel properly prepared, Dunkin asserts that he would not have entered a plea of no contest but would have insisted on a trial. Dunkin argues that counsel should have requested a competency hearing and investigated Dunkin's mental health. Dunkin also asserts that trial counsel disregarded Dunkin's request to appeal his sentence.
In order to establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington,
In a postconviction action brought by a defendant convicted because of a guilty plea or a plea of no contest, a court will consider an allegation that the
Dunkin argues that he did not freely and voluntarily plead no contest to the amended information, because counsel pressured him to plead to the amended charge. Dunkin claims he accepted the plea agreement only because he recognized that his counsel was not ready for trial. The district court concluded that Dunkin's arguments were without merit, because the record did not reflect that counsel pressured Dunkin to plead no contest and Dunkin failed to present any evidence of prejudice resulting from counsel's allegedly deficient pretrial investigation.
The record affirmatively reflects that Dunkin freely and voluntarily entered his plea. During the plea proceeding, the following colloquy occurred:
We agree with the district court that the record does not indicate that Dunkin was in any way uncertain or reluctant to enter his plea.
Based upon our review of the record, the district court's finding that Dunkin was not pressured or coerced is not clearly erroneous. Accordingly, we conclude that the court did not err in denying Dunkin's claim for postconviction relief.
In addition, Dunkin apparently argues that but for counsel's ineffective representation at the suppression hearing, Dunkin would not have entered a plea of no contest, but would have insisted on going to trial. Dunkin asserts that counsel's failure to obtain an order suppressing the entirety of the statements Dunkin made to police officers and medical personnel on the night of the incident contributed to his decision. He argues that counsel's statement that the suppression order was not appealable also contributed to his acceptance of the plea. Dunkin claims he believed the determinations in the suppression order could not be reviewed. If he had known the issues would be preserved following a trial, he would not have taken the plea.
The postconviction court determined that because an order overruling a motion to suppress is not a final, appealable order, Dunkin's claim is without merit. We agree and note that the record does not indicate that counsel represented to Dunkin that the suppression order could never be appealed. Counsel only indicated that he was unable to file an interlocutory appeal in the case. And there is nothing in the record to suggest that the suppression order was entered erroneously. Accordingly, Dunkin has failed to establish that trial counsel was ineffective in this regard.
Finally, Dunkin asserts that he accepted the plea because counsel did not follow his instructions to interview witnesses and investigate the case. Dunkin requested that counsel interview Dunkin's sons, various experts, and character witnesses and argues that counsel should have subpoenaed such witnesses to testify at trial. Again, Dunkin claims that if counsel had interviewed or subpoenaed these witnesses, Dunkin would have insisted on going to trial. But Dunkin presented no evidence that any of these witnesses could have presented testimony both relevant to the case and favorable to Dunkin. The district court noted that Dunkin's sons had already been subpoenaed by the State and that counsel contacted a forensic pathologist, Nichols, per Dunkin's request. The court concluded, however, that the expert testimony would not be helpful to Dunkin, as it contradicted Dunkin's version of the incident. We agree with the district court that there is no evidence that Dunkin was prejudiced by counsel's failure to call these witnesses. Nor did counsel's decision not to call these witnesses unduly pressure or coerce Dunkin to accept a plea.
Dunkin has failed to establish that counsel's preparation for the case was unreasonable or inadequate. And Dunkin has not established prejudice: The record does not indicate a reasonable probability that, but for counsel's alleged errors, Dunkin would not have entered his plea and would have insisted on going to trial. Dunkin's claim regarding inadequate preparation is therefore without merit.
Dunkin also argues that counsel was ineffective for failing to request a mental health evaluation or competency examination to determine whether Dunkin understood the effect of the plea proceedings. A person is competent to plead or stand trial if he or she has the capacity to understand the nature and object of the proceedings against him or her, to comprehend his or her own condition in reference to such proceedings, and to make a rational defense.
In order to demonstrate prejudice from counsel's failure to investigate competency and for failing to seek a competency hearing, the defendant must demonstrate that there is a reasonable probability that he or she was, in fact, incompetent and that the trial court would have found him or her incompetent had a competency hearing been conducted.
An individual has a constitutional right not to be put to trial when lacking mental competency.
The fundamental question is whether the defendant's mental disorder or condition prevents the defendant from having the capacity to understand the nature and object of the proceedings, comprehend the defendant's own condition in reference to such proceedings, and to make a rational defense.
Prior to accepting Dunkin's plea of no contest to the charge of murder in the second degree, the district court made a number of inquiries as to Dunkin's background and articulated the rights he was waiving by entering the plea. During this inquiry, Dunkin informed the court that he was 44 years of age, had completed high school and taken some college courses, and had been employed as an area facilities manager for apartments in several states. Dunkin stated which prescription medications he was taking and for what purpose, that he had taken the prescribed dosage, and that the medication was not affecting his ability to understand the proceedings. The record also reflects the following exchanges regarding Dunkin's understanding of the proceedings:
The only evidence in the record to support Dunkin's assertion that he did not voluntarily enter his plea is his own testimony that counsel coached Dunkin in answering the court's questions. There is nothing in the record to corroborate this allegation. Nor is there evidence of any mental or physical symptoms relating to Dunkin's medications or his purported anxiety issues. The record of Dunkin's plea proceeding does not reflect that Dunkin was incompetent to enter his plea. Dunkin's responses to questions from the court were appropriate and reflected his knowledge that he was appearing in court for the purpose of entering a plea of no contest and that he understood the consequences of such action as they were explained to him by the judge.
Though Dunkin claims that counsel was ineffective for failing to raise the competency issue, Dunkin testified at the evidentiary hearing in February 2009 that he believed himself to be competent to stand trial. So, Dunkin apparently does not seek to prove that he was prejudiced by the absence of a competency hearing. He argues that "[i]t would have seemed prudent, even though nothing may have come of it, to request a mental health evaluation or competency examination."
Dunkin claims that counsel was ineffective in failing to object to the State's alleged breach of the plea agreement when he was sentenced to 40 years' to life imprisonment rather than 20 to 30 years' imprisonment. The district court determined that Dunkin's allegation that a specific sentence was promised or that the plea agreement was conditioned on such a sentence was without merit. The district court discussed sentencing with Dunkin at the plea hearing:
There is no evidence that Dunkin was promised a certain sentence, and other than his testimony at the evidentiary hearing below, there is no evidence that Dunkin believed he was guaranteed a sentence of 20 to 30 years' imprisonment. The record reflects that counsel told Dunkin he hoped for such a sentence, but this does not support an ineffectiveness claim. Dunkin's
Dunkin contends that his trial counsel was ineffective for failing to file a direct appeal in response to his request that he do so. Under certain circumstances, the nature of counsel's deficient conduct in the context of the prior proceedings can lead to a presumption of prejudice, negating the defendant's need to offer evidence of actual prejudice in a postconviction case.
Assuming without deciding that the same principle would apply where conviction is the result of a guilty or no contest plea, the critical question of fact is whether Dunkin directed his counsel to file a direct appeal on his behalf. After reviewing the evidence received at the postconviction hearing, the district court concluded that he did not. As noted above, Dunkin's mother, Chisholm, contacted counsel to discuss the possible success of an appeal, but the record does not indicate that she specifically requested counsel to pursue an appeal. And there is no evidence that Dunkin attempted to contact counsel by letter or telephone to make such a request himself. It is uncontested that Dunkin and counsel had no contact following the sentencing proceedings. Based upon our review of the record, we conclude that these findings are not clearly erroneous.
For the reasons discussed above, we conclude that the district court did not err in denying Dunkin's motion for postconviction relief, and we affirm its judgment.
AFFIRMED.
WRIGHT, J., not participating in the decision.
