CASSEL, J.
A Nebraska attorney was suspended and later disbarred for nonpayment of
In 2010, Vanderpool pled guilty to and was convicted of attempted first degree sexual assault, for which he was sentenced to 10 to 15 years' imprisonment. There was no direct appeal.
Throughout the criminal proceedings, Vanderpool was represented by David M. Walocha and believed that Walocha was licensed to practice law in Nebraska. In actuality, Walocha's license to practice law in Nebraska had been suspended since 1996 for nonpayment of dues. Vanderpool did not learn of this fact until after his sentencing. A few months later, in 2011, the Counsel for Discipline of the Nebraska Supreme Court filed formal charges against Walocha for practicing law on a suspended license.
After learning that Walocha's license was suspended but before Walocha was disbarred, Vanderpool filed a motion for postconviction relief, alleging ineffective assistance of counsel. He argued that Walocha was ineffective because he (1) led Vanderpool to believe that Vanderpool would receive only probation and not incarceration if Vanderpool pled guilty as part of a plea agreement, (2) failed to interview witnesses or independently investigate the crime of which Vanderpool was convicted, and (3) represented himself as licensed to practice law in Nebraska when his license was in fact suspended.
After an evidentiary hearing, the district court denied Vanderpool's motion for postconviction relief. In its order, the court analyzed the motion under both a per se theory of ineffectiveness and under the standard two-part test of Strickland v. Washington.
Taking up the issue of Walocha's suspension first, the district court held that it was bound by State v. McCroy
After rejecting a per se determination of ineffectiveness, the district court then found that Vanderpool's specific allegations of ineffective assistance of counsel lacked merit under the criteria of Strickland. Addressing Vanderpool's argument that Walocha promised a sentence of probation if Vanderpool pled guilty, the court found that this allegation was affirmatively refuted by the record. The court explained as follows:
As for Vanderpool's claim that Walocha failed to conduct an independent investigation, the court held that the allegations were "conclus[o]ry" in that Vanderpool "fail[ed] to allege with any specificity what exculpatory facts would have been discovered or how such discovery would have led to him not entering a plea of guilty to the significantly reduced charge."
Vanderpool timely appeals. Pursuant to statutory authority, we moved the case to our docket.
Vanderpool alleges that the district court erred in denying his motion for postconviction relief.
A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.
As in any other ineffective assistance of counsel case, we begin by reviewing Vanderpool's allegations under the two-part framework of Strickland. To prevail on a claim of ineffective assistance of counsel under Strickland, the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.
With these broad principles in mind, we turn to the specific errors that Vanderpool alleges Walocha committed. Liberally construed, Vanderpool's appellate brief argues that Walocha committed three specific errors: (1) He failed to file a direct appeal, (2) he led Vanderpool to believe that Vanderpool would receive only probation and not incarceration as part of a plea agreement, and (3) he failed to interview witnesses or independently investigate the crime of which Vanderpool was convicted. We find that Vanderpool is not entitled to relief based on any of these alleged errors in Walocha's actual performance.
Vanderpool alleges that Walocha was ineffective for failing to file a direct appeal after Vanderpool specifically requested that he do so. But Vanderpool did not raise this issue in his motion for postconviction relief. Neither did the district court rule on whether Walocha was ineffective for failing to file a direct appeal. In a postconviction motion, an appellate court will not consider as an assignment of error a claim that was not presented to the district court.
Vanderpool also argues that Walocha was ineffective for misrepresenting the terms of the plea agreement and thus leading Vanderpool to enter a guilty plea. At the evidentiary hearing before the district court, Vanderpool testified that Walocha told him that Walocha had reached an agreement with the prosecutor that would guarantee probation if Vanderpool pled guilty. According to Vanderpool, he pled guilty based solely on this promise of probation.
In evaluating this allegation, the district court highlighted that Vanderpool's responses to the sentencing court's questions on the record refuted the facts upon which he based this allegation of ineffective assistance of counsel. Indeed, the transcript from Vanderpool's sentencing hearing indicates that the plea agreement involved "the State not making any sentencing recommendation at the time of sentencing." When asked whether this was an accurate description of the plea agreement, Vanderpool responded, "Yes." Later, after Vanderpool entered a plea of guilty, the sentencing court asked, "[A]part from the State agreeing to withhold a sentencing recommendation, has anyone promised you anything or threatened you to get you to do this?" Vanderpool replied, "No, sir." The sentencing court asked whether Vanderpool was "doing this of [his] own free will." Vanderpool answered that he was entering a guilty plea of his own free will. Based on Vanderpool's answers on the record to these questions, we agree that the record affirmatively refutes his allegation that his counsel misrepresented the plea agreement.
During the evidentiary hearing, Vanderpool attempted to reconcile the contradiction between his answers during sentencing and his allegations of ineffective assistance of counsel by claiming that he lied to the sentencing judge. According to Vanderpool, Walocha specifically advised him to deny that "there was a reason why [he] was pleading guilty" and to "say no" if
Given this evidence, the district court was faced with the option of relying upon the official transcript of Vanderpool's sentencing hearing, which disproved that he had been promised probation in exchange for entering a guilty plea, or rejecting this portion of the record based on Vanderpool's testimony that he lied to the sentencing court upon the advice of Walocha. Issues of credibility are for the postconviction court.
This court has previously held that allegations of ineffective assistance which are affirmatively refuted by a defendant's assurances to the sentencing court do not constitute a basis for postconviction relief.
Because the record refutes Vanderpool's allegation that Walocha allegedly misrepresented the plea agreement, the district court did not err in finding that Vanderpool was not entitled to relief on that ground.
Finally, Vanderpool argues that Walocha was ineffective because he failed to "conduct an independent investigation of the facts."
In order to satisfy the prejudice prong of Strickland, a defendant must "show a reasonable probability that but for counsel's deficient performance, the result of the proceeding in question would have been different."
Based on these standards, the district court did not err in denying Vanderpool relief for his counsel's alleged failure to investigate. Vanderpool did not identify what exculpatory evidence investigation would have uncovered, which witnesses Walocha should have interviewed, or what testimony those witnesses would have provided. And when asked during oral arguments how further investigation would have changed the outcome of the criminal proceedings, Vanderpool stated that he was not certain that the outcome would have been different. The district court's implicit finding — that Vanderpool would not have insisted on going to trial rather than pleading — was not clearly erroneous. Thus, Vanderpool failed to show how he was prejudiced by Walocha's alleged failure to investigate.
For all of these reasons, Vanderpool is not entitled to relief based on any of the alleged errors in Walocha's actual performance. The district court did not err in so concluding.
Because Vanderpool failed to show that he is entitled to relief under Strickland, his claim of ineffective assistance of counsel can succeed only if a per se rule applies. We now turn to that issue.
A per se determination of ineffective assistance of counsel is based on the proposition that when "surrounding circumstances justify a presumption of ineffectiveness" a court can find a claim of ineffective assistance of counsel to "be sufficient without inquiry into counsel's actual performance at trial."
This court rejected a per se determination of ineffective assistance of counsel in McCroy.
Because the issue of per se ineffective assistance of counsel was one of first impression in McCroy, we engaged in a lengthy discussion of case law from other
Based on this survey of case law, we concluded that there is "a valid distinction between representation by one who has never been qualified to practice law and one who was properly admitted in the first instance but is subsequently suspended or disbarred."
From McCroy, we conclude that the question whether an attorney has met the substantive requirements for a license to practice law at any time is at the heart of our consideration whether to apply a per se determination of ineffectiveness. This focus on the substantive requirements for a license is consistent with the decisions of other courts. In considering whether to adopt a per se rule, the Seventh Circuit has noted that "the constitutional focus is on whether the federal court is satisfied that the attorney is competent and has authorized him to practice law."
The logical implication of placing such focus on substantive requirements when considering whether to apply a per se rule is that the failure to meet technical licensing requirements does not render an attorney per se ineffective. Courts have overwhelmingly declined to adopt a per se determination of ineffectiveness in the case of an attorney who has been suspended or otherwise disciplined for practicing law while technical defects exist in his or her license.
Under this prevailing rule, suspension for nonpayment of dues does not render an attorney's representation per se ineffective. The payment of dues is a technical requirement for a license to practice law and does not reflect on an attorney's competence, ability, or legal skill. As the Kansas Supreme Court stated in Johnson v. State,
Vanderpool attempts to distinguish his case from McCroy. He argues that unlike the attorney who represented McCroy, Walocha was "unlicensed in Nebraska at
Based on our previous holding in McCroy, we decline to adopt a per se determination of ineffectiveness based solely upon the fact that Vanderpool's attorney was suspended for nonpayment of dues at the time he represented Vanderpool in his criminal proceedings. We also find that Vanderpool failed to show that he was denied the effective assistance of counsel based on specific aspects of his attorney's actual performance. Accordingly, we affirm the judgment of the district court denying Vanderpool postconviction relief.
AFFIRMED.