Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,341 Cases and Articles on TJV!
 
Nebraska State Categories







State of Nebraska v Alfredson

Case No. S-13-036 (NE S.Ct., Feb. 21, 2014)

NATURE OF CASE



This is a postconviction appeal. Joshua G. Alfredson was convicted by a jury of first degree sexual assault and second degree false imprisonment. He was sentenced to 15 to 20 years’ imprisonment for first degree sexual assault and 1 year’s imprisonment for second degree false imprisonment, to be served concurrently. On direct appeal, his convictions and sentences were affirmed.

Alfredson now appeals the district court’s July 24, 2012, dismissal of all but one of his claims for postconviction relief without an evidentiary hearing. An evidentiary hearing was held on trial counsel’s failure to disclose an alleged plea offer. Alfredson also appeals the district court’s December 11 denial of his ineffective assistance of counsel claim based on those allegations. We affirm.

BACKGROUND



The facts adduced at Alfredson’s trial are discussed in greater detail in State v. Alfredson, and are limited herein to the facts pertinent to Alfredson’s appealed postconviction claims. The sexual assault and false imprisonment took place in Alfredson’s apartment on April 5, 2009. The victim testified that on that date, Alfredson, with whom she had previously had a sexual relationship, became increasingly angry.
 

 

Judge(s): Mike Heavican
Jurisdiction: Nebraska Supreme Court
Supreme Court Judge(s)
William Connolly
Mike Heavican
Michael McCormack
Lindsey Miller-Lerman
Kenneth Stephan
John Wright

 
Trial Court Judge(s)
Karen Flowers

 
Appellant Lawyer(s) Appellant Law Firm(s)
Nancy Peterson

 
Appellee Lawyer(s) Appellee Law Firm(s)
Jon Bruning Office of the Nebraska Attorney General
Nathan Liss Office of the Nebraska Attorney General

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
bargain offer, which was made in writing and contained all sufficient evidence to overcome the presumption that his trial id. 482 287 nebraska reports the district court also appointed counsel. on others is a final order as to the claims denied without a law independently of the trial court’s conclusion. performance did not equal that of a lawyer with ordinary and possession. notice of appeal must be filed on those postconviction claims carlos h. v. lindsay m., 283 neb. 1004, 815 n.w.2d 168 (2012). the defendant has the burden in postconviction properly investigate the incident and for failing to make an district court. 11 to show leave, taking the prescription bottle with her, alfredson physi- in postconviction proceedings of demonstrating ineffectiveness of counsel, and dismissal of all but one of his claims for postconviction relief the first order, on july 24, 2012, denied all claims without an the facts adduced at alfredson’s trial are discussed in alfredson had rejected the alleged “zero to fives” offer. procedural requirements occurred prior to the december 16, did not do in december 2009. the county attorney testified that raised in a postconviction proceeding is procedurally barred is to appeal the july 24, 2012, order is time barred. accordingly, has the duty to communicate to the defendant all formal offers 16 offers. the offers detailed the charges to which the defendant question of law. an appellate court reaches a conclusion regarding questions of has the duty to communicate to the defendant all formal offers from the pros- prejudiced by that performance are questions of law that the appellate court whether the petitioner was prejudiced by that performance are allegations contain [sic] in alfredson’s motion for post- objection under § 27-404 to the evidence of his cocaine use supreme court stated that, “as a general rule, defense counsel  2 favorable to the accused.”21  4 § 25-1301 (reissue 2008), a judge’s decision must be both rendered and entered. would plead, the proposed sentences, and when the offer id., 132 s. ct. at 1409. allegedly made by the state prior to trial. the motion to judgment as a matter of law. (1984). evidentiary hearing except for the claim relating to the alleged relevant terms of the agreement. ney was not authorized to make such a plea offer. performance, the result of the proceeding would have been [4] before reaching the legal issues presented for review, it accepted, because the evidence indicated that the county attor- guilty to one count of attempted first degree sexual assault, a cussed only one plea offer with him in september 2009. this 484 287 nebraska reports 480 287 nebraska reports reviews independently of the lower court’s decision.  5. postconviction: final orders. within a postconviction proceeding, an order december 31, 2009. trial counsel testified that he did not nebraska advance sheets file, he discovered that in mid-december 2009, a “plea offer” appellee. 2012. alfredson’s notice of appeal, filed on january 10, 2013, is sented in frye, the court noted that any exceptions to the rule in criminal law in the area. presented at the evidentiary hearing establishes that neither the that thus, it would not be prudent to define detailed standards nebraska advance sheets 13 it occurred as recalled by trial counsel, was a formal offer for in alfredson’s apartment on april 5, 2009. the victim testified fective assistance of counsel with respect to a plea offer that trial counsel was deficient in failing to communicate to a sexual relationship, became increasingly angry. training and skill in criminal law in the area.14 attorney testified that it is a normal occurrence for him to dis- 12 need not be discussed, because it was undisputed that the offer nebraska advance sheets 15 conclusion punishments, sex offender registry issues, or collateral recently, the u.s. supreme court has clarified the issue. in cient and that this deficient performance actually prejudiced his or her defense. 14. effectiveness of counsel: plea bargains. as a general rule, defense counsel alfredson now appeals the district court’s july 24, 2012, therefore, he did not believe the december 16 conversation, if alfredson testified that on december 31, 2009, trial coun- the alleged december 16, 2009, conversation was never provided ineffective assistance presents a mixed question of 25 id. ecution to accept a plea on terms and conditions that may be convicted by a jury of first degree sexual assault and sec- evidence to show a reasonable probability that the offer would an evidentiary hearing on some issues and denying a hearing  1. judgments: jurisdiction: appeal and error. a jurisdictional question which strate reasonable probability that but for counsel’s deficient from the prosecution to accept a plea on terms and conditions class iii felony. alfredson rejected the offer. reflect that alfredson was not willing to plead guilty to any sentences were affirmed.1 two separate orders denying alfredson’s postconviction claims. proceedings of demonstrating ineffectiveness of counsel, and his claim that trial counsel’s failure to disclose an offered plea without an evidentiary hearing. an evidentiary hearing was court’s grant of summary judgment if the pleadings and admitted evidence show state v. vanderpool, supra note 13. 11, 2012, denied alfredson’s motion for postconviction relief is timely. which the right to counsel applies.11 trial counsel, a public defender since 1984, testified that both trial counsel and the county attorney testified that they state v. robinson, 285 neb. 394, 827 n.w.2d 292 (2013). state of nebraska, appellee, v. deficient performance, a defendant must show that counsel’s he received ineffective assistance of appellate counsel; and ond degree false imprisonment. he was sentenced to 15 to granting an evidentiary hearing on some issues and denying a hearing on others [9-11] to prevail on a claim of ineffective assistance of fireman’s fund insurance company, consequences. from the evidence. gate; (4) the trial court failed to properly instruct the jury; (5) strickland v. washington.12  5 ant about a letter sent by the prosecutor detailing two different  3 ___ n.w.2d ___ (7) trial counsel was ineffective for failing to advise him of such a broad rule would result in late, frivolous, and fab- such as the charges to which alfredson would plead were not held on trial counsel’s failure to disclose an alleged plea offer. id. ing on a postconviction claim is a final judgment as to that tual dispute is determined by an appellate court as a matter of to disclose the plea offer. the district court noted that there state’s motion to deny an evidentiary hearing is overruled [8] alfredson’s only surviving assignment of error regards for what constitutes a plea bargain offer.22 26 ing to disclose it to alfredson. alfredson has failed to present durally barred is a question of law. claims without an evidentiary hearing was entered on july 24, according to trial counsel’s notes, which were admitted counsel under strickland, the defendant must show that coun-  7. postconviction: time: appeal and error. under neb. rev. stat. § 25-1912 state v. vanderpool, 286 neb. 111, 835 n.w.2d 52 (2013). cite as 287 neb. 477 to trial counsel that would have allowed alfredson to plead trial counsel admits that he did not communicate the alleged that on that date, alfredson, with whom she had previously had after the evidentiary hearing, the district court, on december offers.” the opinion explains: “[t]he fact of a formal offer have allowed him to continue his education under the “gi bill” in sum, we conclude the district court was not clearly erro- stage of a criminal prosecution to which the right to counsel applies.  4. jurisdiction: appeal and error. before reaching the legal issues presented for according to trial counsel, the county attorney asked trial  8 478 287 nebraska reports whether a claim alfredson offered his own deposition testimony and the deposi- appeal from the district court for lancaster county: karen ing alfredson’s allegations under the two-part framework of trial to the cocaine testimony and failure to properly investi- he would plead. alfredson recalls no discussion of offenses, ously stated that a trial counsel’s failure to communicate a the record must affirmatively support that claim.17 allowing evidence of his cocaine use; (2) there was prosecuto- state v. alfredson 481 for the foregoing reasons, we affirm the judgment of the 11. effectiveness of counsel: presumptions. in determining whether trial counsel’s there was insufficient evidence to support his convictions; (6) jurisdiction 16, 2009. it found that alfredson had failed to present any 20 years’ imprisonment for first degree sexual assault and 1 nebraska advance sheets claims. the sexual assault and false imprisonment took place court’s decision.7 unless they are clearly erroneous.25 therefore untimely with respect to that order. alfredson’s right of law.18 to the facts pertinent to alfredson’s appealed postconviction  2. postconviction. whether a claim raised in a postconviction proceeding is proce- and brief meeting with the county attorney at the courthouse. in determining missouri v. frye, ___ u.s. ___, 132 s. ct. 1399, 182 l. ed. 2d 379 (2012). under neb. rev. stat. § 25-1912 (reissue 2008), a 23 the defense counsel’s performance was deficient and whether the petitioner was alfredson filed his notice of appeal on january 10, 2013. counsel was not ineffective for failing to communicate a so that what took place in the negotiation process becomes not have been canceled before the plea offer could have been jane doe, appellant and cross-appellee, v. defendant. david urbom, judge. affirmed. claim.10 filed february 21, 2014. no. s-13-075. under the facts pre- 14 joshua g. alfredson, appellant. process presents a critical stage of a criminal prosecution to  3. bankruptcy: judgments: appeal and error. whether the automatic stay pro- ___ n.w.2d ___ nebraska advance sheets finds that the district court’s factual finding that there was no  8. right to counsel: plea bargains. the plea-bargaining process presents a critical case, the findings of the district court will not be disturbed was a formal one.23 counsel whether alfredson would be interested in two “zero to 17 [3] a petitioner’s claim that his or her defense counsel  9 the court addressed the state of missouri’s concern that 20 this proposition of law has not been explored by our and miller-lerman, jj. [1,2] a jurisdictional question which does not involve a fac-  6 questions of law that we review independently of the lower the court also suggests that states, and are limited herein discussed. this is in direct contrast to the september plea a final judgment as to that claim. 12. effectiveness of counsel: proof. to show prejudice, the defendant must dem- id. sexually assault her. the lower court’s decision. [14] we now hold that, as a general rule, defense counsel required to consult with the victim and his superiors, which he the defendant the prosecutor’s formal written plea offer. the visions of 11 u.s.c. § 362(a) (2006 & supp. iii 2009) have been violated is a victim.26 state v. alfredson, 282 neb. 476, 804 n.w.2d 153 (2011). cassel, j., not participating. nebraska advance sheets (reissue 2008), a notice of appeal must be filed on postconviction claims within on july 24, 2012, the district court held that the onstrate reasonable probability that but for counsel’s deficient performance, the law and fact.5 in his deposition, alfredson testified that trial counsel dis- plea offer. the second order, entered on december 11, after the id. 486 287 nebraska reports rial misconduct; (3) he received ineffective assistance of trial law and fact. an appellate court reviews factual findings for clear error. whether 22 of his ineffective assistance of counsel claim based on those nebraska advance sheets he did not believe the december 16, 2009, conversation was a ed. 2d 674 (1984), the defendant must show that counsel’s performance was defi- hearing.9 result of the proceeding would have been different. we review factual findings for clear error.6 was no evidence that a formal offer was made on december 10. ____: ____. to show deficient performance, a defendant must show that coun- granted, and gives that party the benefit of all reasonable inferences deducible a question of law.4 whether trial counsel’s performance was deficient, courts give plea bargain in writing or require all offers be made part of the record by in re interest of violet t., 286 neb. 949, 840 n.w.2d 459 (2013). fives,” with both being sex charges. the county attorney testi- for appellant. ecution to accept a plea on terms and conditions that may be favorable to the cite as 287 neb. 477 allegations. we affirm. nebraska advance sheets year’s imprisonment for second degree false imprisonment, to discussion constituted a formal offer. without a formal offer state v. boppre, 280 neb. 774, 790 n.w.2d 417 (2010). evidence in the light most favorable to the party against whom the judgment was pretrial negotiations.”24 cite as 287 neb. 477 would expire.20 our review of the record being made, trial counsel could not have been deficient in fail- 13. postconviction: effectiveness of counsel: proof. the defendant has the burden bargain constituted ineffective assistance. the plea-­bargaining deny an evidentiary hearing is sustained as to all other cally prevented her from doing so. alfredson proceeded to relying on federal circuit court precedent, we have previ- of law, which requires the appellate court to reach a conclusion independent from formance actually prejudiced his or her defense.13 as in any other inef- he is also required to have the plea bargain approved ing to alfredson’s claim that his trial counsel was ineffective the order denying all but one of alfredson’s postconviction reasonableness. motion was denied by the missouri court of appeals. as witnesses trial counsel and the deputy county attorney who recollect the december 31 meeting, but testified that his notes counsel for a variety of reasons, including failure to object at testified that before he can negotiate a formal plea offer, he is by his superiors before making a formal offer. neither of the  4. judgments: final orders. to constitute a judgment under neb. rev. stat. [5-7] within a postconviction proceeding, an order granting was made. in his deposition, alfredson argues that he would formal offer is amply supported by the record. the district court entered sel’s performance was deficient and that this deficient per- alfredson testified that after he acquired trial counsel’s case here, the district court made a factual finding that no formal neous in its finding that there was not a formal offer made on 16, 2009. trial counsel testified that he had an unexpected state v. iromuanya, 282 neb. 798, 806 n.w.2d 404 (2011). state v. alfredson 479 have given consideration to this plea offer because it would state v. robinson, supra note 5. 24 conviction relief. tion testimony of trial counsel. at the hearing, the state called kept in a prescription bottle. when the victim attempted to december 16, 2009. the overwhelming weight of the evidence after his direct appeal had been exhausted, appeal from the district court for red willow county:   6. ____: ____. an order denying an evidentiary hearing on a postconviction claim is offer was made on december 16, 2009. in a postconviction cuss the possibility of future plea bargains with defense coun- standard of review 30 days. strickland v. washington, 466 u.s. 668, 104 s. ct. 2052, 80 l. ed. 2d 674 independent from the lower court’s decision.3 of counsel under strickland v. washington, 466 u.s. 668, 104 s. ct. 2052, 80 l. for failing to disclose a plea bargain, as to which the appeal felony. trial counsel believes that this note was written because review, it is the duty of an appellate court to determine whether it has jurisdiction does not involve a factual dispute is determined by an appellate court as a matter vincent m. powers, of vincent m. powers & associates, id. in order to prevent abuse, can elect to require all offers to be jon bruning, attorney general, and nathan a. liss for the court stressed that negotiation charges alfredson would plead guilty to. the county attorney sel. however, he testified that under nebraska law, he is not filed february 21, 2014. no. s-13-036. performance was deficient, courts give counsel’s acts a strong presumption of state v. iromuanya, supra note 11. over the matter before it. formal plea offer, because there was no discussion about what into evidence, the alleged “plea offer” occurred on december law, which requires the appellate court to reach a conclusion after his convictions and sentences were affirmed by this be served concurrently. on direct appeal, his convictions and state v. yos-chiguil, 281 neb. 618, 798 n.w.2d 832 (2011). 21 our jurisdiction extends only to the assignment of error relat- cite as 287 neb. 477 plea negotiations. on the ineffective assistance of trial counsel claim for failure allowed to offer a plea bargain without first consulting with the id., 132 s. ct. at 1408. b. flowers, judge. affirmed. sel’s performance did not equal that of a lawyer with ordinary training and skill  3. effectiveness of counsel: appeal and error. a petitioner’s claim that his or ineffective assistance—  2. ____: ____. in reviewing a summary judgment, an appellate court views the with respect to the allegation that alfredson received inef- affirmed. upon his release from incarceration. counsel’s acts a strong presumption of reasonableness.15 has the duty to communicate formal offers from the pros- state nor trial counsel for alfredson believed the courthouse id. counsel acted reasonably. after granting certiorari, the u.s. supreme court held id. state v. timmens, 282 neb. 787, 805 n.w.2d 704 (2011). heavican, c.j., wright, connolly, stephan, mccormack, see neb. rev. stat. § 29-120 (reissue 2008). nancy k. peterson for appellant. greater detail in state v. alfredson,2 defense counsel failed to advise the defend­ is the duty of an appellate court to determine whether it has ing his claims that trial counsel was ineffective for failing to appellee and cross-appellant. fied that he had no recollection of that conversation. background plea offer and (2) dismissing without an evidentiary hear- prosecuted the case. was a formal written offer extended by the county attorney more clear if some later inquiry turns on the conduct of earlier that may be favorable to the defendant. nebraska advance sheets this is a postconviction appeal. joshua g. alfredson was [12,13] to show prejudice, the defendant must demon- her defense counsel provided ineffective assistance presents a mixed question of analysis nebraska advance sheets ences that may be drawn from the facts and that the moving party is entitled to state v. alfredson 483 the defend­ant filed a motion for postconviction relief and the jurisdiction over the matter before it.8 means that its terms and its processing can be documented state v. alfredson 477 cite as 287 neb. 477 different.16 alfredson assigns that the district erred in (1) finding trial whether the defense counsel’s performance was deficient and that there is no genuine issue as to any material facts or as to the ultimate infer- fective assistance of counsel claim, we begin by review- evidentiary hearing, denied the remaining claim. plea offer to a defendant is deficient performance as a matter within 30 days.  1 on november 27, 2012, an evidentiary hearing was held. court with any detail. is a final order as to the claims denied without a hearing. state v. alfredson 485  7 a plea deal. formalized in writing. it was made in passing, and key details state v. iromuanya, supra note 11. the victim testified that alfredson ingested cocaine that he sel simply asked him whether there was any felony to which 10 alfredson also appeals the district court’s december 11 denial erred, under neb. rev. stat. § 27-404 (cum. supp. 2012), in did not believe the discussion constituted an offer. the county missouri v. frye,19 court, alfredson timely filed a motion for postconviction ricated claims by stressing that it applies only to “formal 18 2009, conversation. nature of case in other words, an order denying an evidentiary hear- the record must affirmatively support that claim. tactics for plea bargaining are unique to each individual and 19  1. summary judgment: appeal and error. an appellate court will affirm a lower relief. his amended motion alleged that (1) the trial court  9. effectiveness of counsel: proof. to prevail on a claim of ineffective assistance plea offer to alfredson until he met with him face-to-face on assignments of error the prosecutor. heavican, c.j.


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise