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to promote the common good.”’”71 In essence, discontinuance
provisions work gradually over time to eliminate nonconform-
ing uses, a recognized good. And, as in Leisz, the regulation
here did not outright terminate the nonconforming use, but,
rather, allowed Rodehorst to continue the nonconforming use
if it did not discontinue the use for 1 year. As in Leisz, “[t]he
power to protect the property interest rest[ed] solely with the
landowner.”72 For these reasons, we conclude that the dis-
continuance provision at issue here did not work a taking
on Rodehorst.
VI. CONCLUSION
We conclude that Rodehorst discontinued its nonconform-
ing use for 1 year and therefore forfeited its right to continue
the use under the relevant zoning laws. We also conclude
that the Board did not have authority to grant Rodehorst a
use variance and that there was not a taking of Rodehorst’s
property.
Affirmed.
Heavican, C.J., participating on briefs.
71
See Scofield, supra note 43, 276 Neb. at 232-33, 753 N.W.2d at 359
(citing Penn Central, supra note 58).
72
Leisz, supra note 62, 702 N.E.2d at 1031.
State of Nebraska, appellee, v.
Andre D. Robinson, appellant.
___ N.W.2d ___
Filed March 28, 2014. No. S-13-575.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of
ineffective assistance of counsel is a mixed question of law and fact.
3. ____: ____. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear error.
4. ____: ____. With regard to the questions of counsel’s performance or preju-
dice to the defendant as part of the two-pronged test articulated in Strickland
Nebraska Advance Sheets
800 287 NEBRASKA REPORTS
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an
appellate court reviews such legal determinations independently of the lower
court’s decision.
5. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order
to establish a right to postconviction relief based on a claim of ineffective assist
ance of counsel at trial or on direct appeal, 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 in the area. Next, the defendant must show that counsel’s
deficient performance prejudiced the defense in his or her case. In order 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. The two prongs of this test, deficient performance and prejudice, may
be addressed in either order.
6. Postconviction: Effectiveness of Counsel: Records: Appeal and Error. In
order to raise the issue of ineffective assistance of trial counsel where appellate
counsel is different from trial counsel, a defendant must raise on direct appeal
any issue of ineffective assistance of trial counsel which is known to the defend
ant or is apparent from the record, or the issue will be procedurally barred on
postconviction review.
7. Due Process: Trial: Confessions. It is a violation of the Due Process Clause to
use a defendant’s involuntary statement against him at a criminal trial.
8. Records: Appeal and Error. It is incumbent upon an appellant to supply a
record which supports his or her appeal.
Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.
Andre D. Robinson, pro se.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Heavican, C.J.
INTRODUCTION
Andre D. Robinson was convicted of knowing or intentional
child abuse resulting in death and was sentenced to life impris-
onment. We affirmed his conviction and sentence.1 Robinson
then filed a petition for postconviction relief. Following an evi-
1
State v. Robinson, 278 Neb. 212, 769 N.W.2d 366 (2009).
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STATE v. ROBINSON 801
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dentiary hearing, his petition was dismissed. Robinson appeals.
We affirm.
BACKGROUND
Robinson was convicted of child abuse resulting in death and
was sentenced to life imprisonment. The facts underlying this
conviction are reported in our opinion in State v. Robinson.2
Briefly stated, the victim, Branesha Thomas, 22 months
old, was brought into a hospital emergency room in Omaha,
Nebraska, by her mother, Tanisha Turner, and Robinson.
Turner was a girlfriend of Robinson’s, but Robinson was not
Branesha’s father. Branesha was not breathing and had mul-
tiple bruises on her head, face, and chest. Branesha died of
her injuries.
Initially, Turner reported that Branesha had fallen off her
bed. Later, she informed investigators that she and Branesha
had spent the day with “Eric” and had gone to the Chuck E.
Cheese’s and Burger King restaurants. The next day, Turner
again changed her story, informing police investigators that she
had actually spent the day before with a friend, while Branesha
had been left with Robinson. Turner explained that she had
initially lied because she did not want her mother to know that
she had left Branesha with Robinson.
Robinson denied that he had caused Branesha’s injuries. He
indicated that Branesha had fallen off her bed, but had seemed
fine. But, Robinson said, after eating at Chuck E. Cheese’s,
Branesha fell asleep in his car and could not be awakened. An
autopsy revealed that Branesha had suffered multiple bruises,
abrasions, and contusions, as well as fractured ribs and a frac-
tured humerus bone. The pathologist testified that Branesha’s
injuries were caused by blunt force trauma and were incon
sistent with Robinson’s contention that Branesha had fallen off
a bed.
During the investigation that followed Branesha’s death,
Robinson was interviewed by police. During the course of
that interview, Robinson admitted that he had accidentally
kicked Branesha.
2
Id.
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Following his conviction, Robinson appealed to this court.
On appeal, Robinson, represented by different counsel than at
trial, assigned as error that (1) the evidence was insufficient to
support his conviction, (2) the trial counsel was ineffective in
failing to object to the removal of the instruction regarding the
voluntariness of statements, (3) the district court erred in giv-
ing a supplemental instruction in response to a jury question,
and (4) his sentence was excessive. We addressed his first,
third, and fourth assignments, but declined to address the sec-
ond, concluding that the record was insufficient to address an
ineffective assistance of counsel claim on direct appeal.3
On May 6, 2011, Robinson filed a pro se petition for post-
conviction relief. He was appointed counsel and granted an
evidentiary hearing. Counsel then filed an amended petition for
postconviction relief, incorporating by reference the original
petition and adding new allegations.
In his amended petition, Robinson alleges several errors
on the part of the trial court and several corresponding errors
relating to the ineffectiveness of trial counsel and appellate
counsel. In particular, Robinson alleges that the trial court
erred in (1) not holding a hearing on the voluntariness of the
statements made to law enforcement on its own motion and (2)
failing to instruct the jury regarding the voluntariness of the
statements made to law enforcement. Robinson further alleges
that his trial counsel was ineffective for failing to (1) file a
motion to suppress statements made to law enforcement, (2)
request a hearing on the voluntariness of statements made to
law enforcement, (3) object to the removal of the voluntari-
ness instruction, and (4) call certain witnesses that might have
shown that Branesha was not in Robinson’s sole custody the
day of the accident.
Following a hearing, the district court dismissed his petition.
Robinson, again pro se, appeals.
ASSIGNMENTS OF ERROR
On appeal, Robinson assigns that the district court erred in
finding that (1) appellate counsel was not ineffective for failing
3
Id.
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to raise errors of trial counsel, (2) trial counsel was not ineffec-
tive for failing to object to a jury instruction on the voluntari-
ness of one of Robinson’s statements, and (3) Robinson was
procedurally barred from raising allegations of ineffectiveness
of trial counsel.
STANDARD OF REVIEW
[1] A defendant requesting postconviction relief must estab-
lish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.4
[2-4] Appellate review of a claim of ineffective assistance
of counsel is a mixed question of law and fact.5 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.6 With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington,7 an appellate court
reviews such legal determinations independently of the lower
court’s decision.8
ANALYSIS
[5] Robinson’s argument on appeal, restated and consoli-
dated, is that the district court erred in dismissing his peti-
tion for postconviction relief. In order to establish a right to
postconviction relief based on a claim of ineffective assistance
of counsel at trial or on direct appeal, the defendant has the
burden, in accordance with Strickland v. Washington,9 to show
that counsel’s performance was deficient; that is, counsel’s
performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law in the area.10 Next, the defendant
4
State v. Watkins, 284 Neb. 742, 825 N.W.2d 403 (2012).
5
State v. Poe, 284 Neb. 750, 822 N.W.2d 831 (2012).
6
Id.
7
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
8
State v. Poe, supra note 5.
9
Strickland v. Washington, supra note 7.
10
See State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
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804 287 NEBRASKA REPORTS
must show that counsel’s deficient performance prejudiced the
defense in his or her case.11 In order to show prejudice, the
defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceed-
ing would have been different.12 The two prongs of this test,
deficient performance and prejudice, may be addressed in
either order.
[6] In order to raise the issue of ineffective assistance of trial
counsel where appellate counsel is different from trial counsel,
a defendant must raise on direct appeal any issue of ineffective
assistance of trial counsel which is known to the defendant or
is apparent from the record, or the issue will be procedurally
barred on postconviction review.13
As an initial matter, we agree with both Robinson and
the State that the district court erred insofar as it found that
Robinson’s allegations on the issues relating to the volun-
tariness of Robinson’s statements to law enforcement were
procedurally barred. Appellate counsel raised the issue of the
jury instruction on direct appeal, and as such, this issue is
preserved. And in his postconviction motion, Robinson alleged
that appellate counsel was ineffective for failing to raise trial
counsel’s ineffectiveness in not requesting a hearing on the
voluntariness of Robinson’s statements and also in not filing a
motion to suppress those statements. We therefore turn to the
merits of Robinson’s claim that trial counsel was ineffective for
failing to request a voluntariness hearing, for failing to file a
motion to suppress his statements, and for not objecting to the
lack of a jury instruction on the issue of whether Robinson’s
statements were voluntary.
We first turn to Robinson’s arguments that counsel was
ineffective for failing to request a hearing on the voluntariness
of Robinson’s statements and for failing to file to suppress
those statements.
11
See id.
12
State v. Poe, supra note 5.
13
State v. Watt, supra note 10.
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[7] We conclude that counsel’s performance was not inef-
fective. It is a violation of the Due Process Clause to use a
defendant’s involuntary statement against him at a criminal
trial.14 And had the State offered the statements in question,
the State would have had the burden to prove that they were
voluntarily made.15 But the record shows the State did not offer
the statements in question into evidence, but, rather, Robinson
did, because the statements were relevant to his defense that
he would have said anything to law enforcement, including
making a confession, in order to end the interview. In fact,
the record suggests that the State believed that the statements
might have been coerced and declined to offer them. Thus,
a hearing on the voluntariness of the statements was unnec-
essary, as was the filing of a motion to suppress, and trial
counsel’s performance was not deficient in failing to pursue
these options.
Nor was counsel ineffective for failing to object to the
judge’s apparent failure to instruct the jury on the voluntari-
ness of the statements at issue. The proposed instruction that
the court declined to give is not included in the record, though
Robinson suggests that it is the pattern jury instruction found
in the Nebraska Jury Instructions.16 We noted in our opinion on
direct appeal that for the purpose of reviewing the allegations
of ineffective assistance of trial counsel, we would not presume
that the pattern instruction was the instruction that the trial
court declined to give.17
[8] But it would appear that the original proposed instruction
was not preserved. It is incumbent upon an appellant to supply
a record which supports his or her appeal.18 Robinson failed to
do so. As such, we have no instruction to review in order to
determine whether it ought to have been given.
14
State v. Seberger, 279 Neb. 576, 779 N.W.2d 362 (2010).
15
State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
16
See NJI2d Crim. 6.0.
17
State v. Robinson, supra note 1.
18
State v. Seberger, 284 Neb. 40, 815 N.W.2d 910 (2012).
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And even if we were to assume that it was the pattern jury
instruction that the court declined to give, Robinson’s argument
would still be without merit. The instruction provides:
There has been evidence that defendant, (here insert
name), made a statement to (a law enforcement officer,
here identify person to whom statement was made). You
may rely on any such statement only if you decide beyond
a reasonable doubt [with regard to each statement]:
(1) that the defendant made the statement; and
(2) that the defendant understood what (he, she) was
saying; and
(3) that the statement was freely and voluntarily made
under all the circumstances surrounding its making.
If you decide that the state did not prove these three
things beyond a reasonable doubt then you must disre-
gard (the, that particular) statement even if you think it
is true.19
But this instruction simply makes no sense in the context
where the defendant introduced the statement precisely to
show that it was involuntary, as was the case here. As such,
trial counsel was not deficient in failing to object when the
trial court declined to give the instruction. Nor was Robinson
prejudiced by the trial court’s failure to give this instruction.
The district court did not err in dismissing Robinson’s petition
for postconviction relief.
CONCLUSION
The order of the district court dismissing Robinson’s petition
for postconviction relief is affirmed.
Affirmed.
19
NJI2d Crim. 6.0.