State v. Determan

Decisions of the Nebraska Court of Appeals
STATE v. DETERMAN 683
Cite as 22 Neb. App. 683

State of Nebraska, appellee, v.
Aaron L. Determan, appellant.
___ N.W.2d ___

Filed January 27, 2015. No. A-13-756.

 1. Appeal and Error. In order to be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the brief of the
party asserting the error.
 2. Postconviction: Appeal and Error. In appeals from postconviction proceedings,
an appellate court independently resolves questions of law.
 3. Postconviction: Constitutional Law. A trial court’s ruling that the petitioner’s
allegations are refuted by the record or are too conclusory to demonstrate a
violation of the petitioner’s constitutional rights is not a finding of fact—it is a
determination, as a matter of law, that the petitioner has failed to state a claim for
postconviction relief.
 4. Postconviction: Constitutional Law: Appeal and Error. In appeals from post-
conviction 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.
 5. Effectiveness of Counsel: Appeal and Error. Determinations regarding
whether counsel was deficient and whether the defendant was prejudiced are
questions of law that an appellate court reviews independently of the lower
court’s decision.
 6. Postconviction: Final Orders. Within a postconviction proceeding, an order
granting an evidentiary hearing on some issues and denying a hearing on others
is a final order as to the claims denied without a hearing. In other words, an order
denying an evidentiary hearing on a postconviction claim is a final judgment as
to that claim.
 7. Postconviction: Effectiveness of Counsel: Appeal and Error. Where a defend­
ant alleges multiple postconviction claims of ineffective assistance of counsel
including a claim that counsel was deficient in failing to timely file, or otherwise
timely perfect, a direct appeal, the district court shall make its determination
regarding the claim regarding the direct appeal, including holding an evidentiary
hearing if the court determines that an evidentiary hearing is necessary, prior to
addressing the defendant’s other postconviction claims.

Appeal from the District Court for Saline County: Vicky L.
Johnson, Judge. Judgment vacated, and cause remanded for
further proceedings.

Jeffrey A. Gaertig, of Carlson, Schafer & Davis, P.C., L.L.O.,
for appellant, and Aaron L. Determan, pro se.
 Decisions of the Nebraska Court of Appeals
684 22 NEBRASKA APPELLATE REPORTS

Jon Bruning, Attorney General, and Melissa R. Vincent
for appellee.
Inbody, Riedmann, and Bishop, Judges.
Inbody, Judge.
INTRODUCTION
Aaron L. Determan appeals the portion of the decision of
the Saline County District Court denying his motion for post-
conviction relief without an evidentiary hearing on his claims
that trial counsel failed to object to the State’s breach of a plea
agreement, failed to properly effectuate a continuance of the
sentencing hearing, failed to advise him of the requirement of
corroboration for a plea-based drug conviction, and stipulated
to corroboration. The court determined that an evidentiary
hearing was required regarding Determan’s remaining claim,
that his trial counsel was ineffective for failing to timely per-
fect his direct appeal.
STATEMENT OF FACTS
Previous Case.
Determan was charged with unlawful manufacture or dis-
tribution of a controlled substance, a Class III felony. A jury
trial was set for February 27 and 28, 2013; however, on
February 26, Determan appeared with counsel and waived
his right to a jury trial. The following day, Determan entered
a plea of guilty to the charged offense. The only plea agree-
ment in this case was that the State would not make a
sentencing recommendation other than to submit the mat-
ter based on the information contained in the presentence
investigation report (PSR). The State provided the following
factual basis: On June 14, 2011, Determan made contact with
an informant who had been cooperating with the Nebraska
State Patrol regarding drug investigative matters. Determan
and the informant had been texting back and forth during the
afternoon hours of June 14, and an agreement was reached
for Determan to deliver 2 grams of hashish to the informant.
The informant, in cooperation with the Nebraska State Patrol,
was transported by a State Patrol investigator to a l­ocation
 Decisions of the Nebraska Court of Appeals
STATE v. DETERMAN 685
Cite as 22 Neb. App. 683

in Wilber, Saline County, Nebraska, at which point he pro-
ceeded to the door of a residence and had a brief discussion
with Determan. At that point, there was an exchange where
Determan provided to the informant a plastic baggie contain-
ing a brown substance which looked like hashish. Hashish is
a derivative of a Schedule I drug that also has tetrahydrocan-
nabinol (THC) in it. The informant provided $60 to Determan
for the transaction. The informant then got back into the State
Patrol vehicle and delivered the substance to the State Patrol
investigator. The substance was analyzed by the Nebraska
State Patrol laboratory, which showed the substance to be
THC, a Schedule I drug, which is a controlled substance
under Nebraska law.
Upon the reading of the factual basis, the following col-
loquy occurred among the district court, defense counsel, and
Determan:
THE COURT: Anything to add as far as the facts are
concerned, [defense counsel]?
[Defense counsel]: No, Your Honor.
THE COURT: Do you stipulate there was sufficient
corroboration?
[Defense counsel]: Yes.
THE COURT: . . . Determan, have you heard what
the county attorney believes his evidence would be in
this case?
[Determan]: Yes, ma’am.
THE COURT: Do you have any disagreement with
anything that he has said?
[Determan]: No, ma’am.
THE COURT: Did you do the things that he says that
you did?
[Determan]: Yes, ma’am.
The district court accepted Determan’s plea and found him
guilty of the charged offense. The court ordered a presentence
investigation and instructed Determan to contact the probation
office by no later than 3 p.m. the following Friday to sched-
ule an appointment. The court also advised Determan that if
he failed to show up for his appointment, it was possible the
 Decisions of the Nebraska Court of Appeals
686 22 NEBRASKA APPELLATE REPORTS

probation office would not be able to complete the PSR in
time for his sentencing hearing, and that that “[would not]
help” Determan.
On February 27, 2013, Determan called the probation office
and left a voice mail indicating that he needed to schedule an
appointment. Support staff attempted to contact Determan at
the number provided, but were unable to make contact with
Determan. The following day, the probation officer assigned
to conduct Determan’s presentence interview sent a letter to
Determan advising him that his appointment was scheduled
for March 11 at 12:30 p.m. Determan failed to appear for his
appointment and did not call to reschedule it. On March 12,
the probation officer contacted Determan by telephone to dis-
cuss his missed appointment. Determan explained that he had
been in the emergency room with a toothache and was unable
to attend his appointment. The probation officer scheduled a
second appointment, for March 19 at 2 p.m., and reminded
Determan that he needed to complete his paperwork and bring
it with him. On March 18, Determan called the probation
officer and advised her that he was having car problems and
was attempting to find a ride. The probation officer reminded
Determan that his appointment was not until 2 p.m. the fol-
lowing day. On the day of his appointment, Determan arrived
at the probation office 40 minutes late and did not have his
paperwork with him. The probation officer advised Determan
that she could not meet with him, due to her other scheduled
appointments. She further advised Determan to contact his
attorney, because she would not have time to interview him
prior to the PSR’s being due. She also provided him with
another copy of the paperwork that he needed to complete.
The probation officer completed the PSR without interviewing
Determan. The PSR included an older PSR prepared in March
2011 in connection with a different case.
At the sentencing hearing held on April 15, 2013, the court
noted that it had received and reviewed the PSR prepared by
the probation department. Although Determan’s counsel stated
that he had reviewed the PSR, he noted that Determan had
been unable to complete his portion of the presentence inves-
tigation. Determan’s counsel made an oral motion to continue
 Decisions of the Nebraska Court of Appeals
STATE v. DETERMAN 687
Cite as 22 Neb. App. 683

the sentencing hearing to allow Determan to complete the pre-
sentence investigation interview. The prosecutor opposed the
continuance, noting that Determan had substantial opportuni-
ties to complete his portion of the presentence investigation,
that this was not the first time Determan had been required
to submit to a presentence investigation, and that Determan
“knows the routine.” The prosecutor further suggested that
Determan’s request for a continuance was “just another delay
tactic.” The court denied the motion to continue the sentencing
hearing, noting:
It is routinely my practice when I take a plea to advise
defendants that it is their obligation to contact probation
as soon as possible, that if they don’t appear when they’re
supposed to, that it can delay the [PSR] preparation. I
don’t have any specific recollection of doing so with . . .
Determan, but I am certain that I did.
After his request for a continuance was denied, Determan
sought and received permission to supplement the PSR
through testimony. Determan testified that he had attempted
to check himself into a drug rehabilitation program 3 weeks
earlier but was denied admission because he had not yet
obtained an evaluation. He further testified that he had been
employed by a roofing company since being released from
incarceration in October 2012, but that he was currently
unemployed because his boss had passed away the previous
week. Determan testified that his father had a job for him
“starting in May and ending in November” and that he was
prepared to obtain a substance abuse evaluation and to seek
necessary treatment.
Following Determan’s testimony, the district court sought
remarks from the State, which offered the following: “Your
Honor, the State reviewed the [PSR]. It does set forth suf-
ficient information to allow the Court to make an adequate
and appropriate decision on [Determan], and I will submit it
based upon that information.” Prior to imposing sentence, the
district court stated that it had considered the following fac-
tors in determining Determan’s sentence: (1) the nature and
circumstances of the current offense; (2) Determan’s criminal
history, which included 15 infractions, 28 misdemeanors, and
 Decisions of the Nebraska Court of Appeals
688 22 NEBRASKA APPELLATE REPORTS

three felonies—two of which resulted in incarceration and
one of which resulted in placement on probation, from which
he received an unsatisfactory release; (3) his unemployed
status; and (4) his failure to obtain a substance abuse evalu-
ation when given the opportunity. The court then sentenced
Determan to 8 to 10 years’ imprisonment with credit for 7
days served.
Following his sentencing, Determan, assisted by the same
counsel that represented him during his plea and sentencing,
timely filed a notice of appeal. However, because Determan’s
poverty affidavit was not filed under 32 days after his sentenc-
ing, we dismissed his direct appeal for lack of jurisdiction on
June 28, 2013, in case No. A-13-441.

Current Case.
In August 2013, Determan filed a verified motion for post-
conviction relief alleging, inter alia, that trial counsel was
ineffective for (1) failing to timely file his direct appeal; (2)
failing to object when the prosecutor violated the terms of the
plea agreement; (3) failing to file a written motion to continue
the sentencing hearing, failing to object when his oral request
to continue the sentencing hearing was denied, and failing to
properly present to the court mitigating factors supporting pro-
bation or a more lenient sentence; and (4) failing to advise him
of the deficiencies in the State’s required corroborating evi-
dence, stipulating to an inadequate factual basis, and advising
him to do the same. He contends that absent the acts and omis-
sions of his trial counsel, he would have chosen to go to trial
rather than plead guilty to the State’s factual basis premised
upon inadmissible evidence.
On August 22, 2013, the district court filed an order deny-
ing in part, and granting in part, Determan’s request for post-
conviction relief. The court granted Determan’s request for an
evidentiary hearing with regard to the untimely filing of his
appeal. However, the court dismissed the remaining claims
contained in Determan’s motion for postconviction relief.
Regarding the second allegation, failing to object when
the prosecutor violated the terms of the plea agreement, the
court found:
 Decisions of the Nebraska Court of Appeals
STATE v. DETERMAN 689
Cite as 22 Neb. App. 683

The record reflects that the prosecutor made an objec-
tion when [Determan] moved to continue. He submit-
ted the case for sentencing based on the [PSR]. This
is in exact accord with his agreement. This portion of
the Motion [for postconviction relief] is dismissed as
[Determan] cannot show that the attorney’s performance
was deficient.
Regarding the third allegation, failing to file a written
motion to continue the sentencing hearing, failing to object
when his oral request to continue the sentencing hearing was
denied, and failing to properly present to the court mitigating
factors supporting probation or a more lenient sentence, the
court found:
The record is clear that [Determan’s] counsel moved
to continue the sentencing hearing. The State objected.
[That] motion was overruled. This portion of the Motion
[for postconviction relief] is dismissed as [Determan] can-
not show that the attorney’s performance was deficient.
....
The record reflects that [Determan’s] counsel did argue
mitigating facts. [Determan] testified. This portion of
the Motion [for postconviction relief] is dismissed as
[Determan] cannot show that the attorney’s performance
was deficient.
Regarding the fourth allegation, failing to advise him of the
deficiencies in the State’s required corroborating evidence and
stipulating to an inadequate factual basis and advising him to
do the same, the court found:
In colloquy with the Court, [Determan] stated that
he understood all of the written information provided
to him from his counsel. He also stated that he had told
his attorney everything that he knew about the case, that
his counsel had discussed trial strategies and defense,
that he was satisfied with the advice of his attorney. His
counsel stipulated that there was sufficient corroboration
when the factual basis was related by the prosecutor.
[Determan] then indicated that he had no disagreement
with anything stated by the prosecutor and admitted
that he had engaged in the acts stated by the prosecutor.
 Decisions of the Nebraska Court of Appeals
690 22 NEBRASKA APPELLATE REPORTS

This portion of the Motion [for postconviction relief] is
dismissed as [Determan] cannot show that the attorney’s
performance was deficient.

ASSIGNMENTS OF ERROR
Determan contends the district court erred in denying him an
evidentiary hearing on his postconviction claims of ineffective
assistance of trial counsel regarding counsel’s failure to object
to the State’s breach of the plea agreement, failure to properly
effectuate a continuance of the sentencing hearing, failure to
advise him of the requirement of corroboration for a plea-based
drug conviction, and stipulation to corroboration.
[1] We note that in his brief, Determan argues that trial
counsel was ineffective for failing to object to the district
court’s reliance on a 2010 PSR; however, he did not assign
this as error. In order to be considered by an appellate court,
an alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error. State v.
Green, 287 Neb. 212, 842 N.W.2d 74 (2014).

STANDARD OF REVIEW
[2-4] In appeals from postconviction proceedings, we inde-
pendently resolve questions of law. State v. Dragon, 287 Neb.
519, 843 N.W.2d 618 (2014); State v. Baker, 286 Neb. 524, 837
N.W.2d 91 (2013). A trial court’s ruling that the petitioner’s
allegations are refuted by the record or are too conclusory to
demonstrate a violation of the petitioner’s constitutional rights
is not a finding of fact—it is a determination, as a matter of
law, that the petitioner has failed to state a claim for postcon-
viction relief. State v. Dragon, supra; State v. Baker, supra.
Thus, 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. State v. Dragon,
supra; State v. Baker, supra.
[5] Determinations regarding whether counsel was deficient
and whether the defendant was prejudiced are questions of law
that we review independently of the lower court’s decision.
 Decisions of the Nebraska Court of Appeals
STATE v. DETERMAN 691
Cite as 22 Neb. App. 683

State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012); State v.
Hernandez, 22 Neb. App. 62, 847 N.W.2d 111 (2014).
ANALYSIS
[6] Within a postconviction proceeding, an order granting
an evidentiary hearing on some issues and denying a hear-
ing on others is a final order as to the claims denied without
a hearing. State v. Alfredson, 287 Neb. 477, 842 N.W.2d 815
(2014). In other words, an order denying an evidentiary hear-
ing on a postconviction claim is a final judgment as to that
claim. Id. Thus, Determan’s postconviction claims which were
denied by the district court are properly before this court
for review.
[7] However, before addressing Determan’s assigned errors,
we are compelled to note that we have addressed the issue of
the preferred procedural practice when a defendant’s motion
for postconviction relief raises multiple issues regarding inef-
fective assistance of counsel, one of which is counsel’s failure
to timely file, or otherwise timely perfect, his direct appeal.
We previously held in State v. Seeger, 20 Neb. App. 225, 822
N.W.2d 436 (2012), that where a defendant combines all of his
claims of ineffective assistance of counsel in a postconviction
action including a claim that counsel was ineffective in failing
to timely file a direct appeal, judicial economy may be served
by deferring ruling on the balance of postconviction claims
until after an evidentiary hearing on the entitlement to a new
direct appeal has been held.
If a new direct appeal is granted, the remaining postcon-
viction claims could be dismissed as premature and there-
after raised in the direct appeal. If a new direct appeal
is not granted, then the court could issue a final order
addressing all of the claims and the appellant would be
required to file only one appeal.
Id. at 230-31, 822 N.W.2d at 442. Despite our previous pro-
nouncement on this issue, the piecemeal determination of
postconviction claims where there is a claim of the ineffective-
ness of counsel for failing to timely perfect a direct appeal is
obviously a continuing issue. Therefore, we are now setting
forth that where a defendant alleges multiple postconviction
 Decisions of the Nebraska Court of Appeals
692 22 NEBRASKA APPELLATE REPORTS

claims of ineffective assistance of counsel including a claim
that counsel was deficient in failing to timely file, or otherwise
timely perfect, a direct appeal, the district court shall make its
determination regarding the claim regarding the direct appeal,
including holding an evidentiary hearing if the court deter-
mines that an evidentiary hearing is necessary, prior to address-
ing the defendant’s other postconviction claims. We also note
that although the issue is not directly presented to us, judicial
economy would be best served by following this same proce-
dure in all postconviction cases where the district court deter-
mines that an evidentiary hearing is needed on one or more of
the defendant’s claims but not on other claims.

CONCLUSION
Based on our ruling, we find that the district court erred
in ruling on the balance of Determan’s postconviction claims
prior to holding an evidentiary hearing on his entitlement
to a new direct appeal, and therefore, the decision of the
district court denying Determan’s motion for postconviction
relief without an evidentiary hearing on his second, third, and
fourth claims is vacated and this cause is remanded for fur-
ther proceedings.
Judgment vacated, and cause remanded
for further proceedings.

In re Estate of Mary Ann Clinger, deceased.
Orin M. Clinger et al., appellants, v.
Shaun Clinger, Personal R epresentative
of the Estate of M ary A nn Clinger,
deceased, et al., appellees.
___ N.W.2d ___

Filed January 27, 2015. No. A-13-769.

 1. Rules of the Supreme Court: Appeal and Error. A party filing a cross-appeal
must set forth a separate division of the brief prepared in the same manner and
under the same rules as the brief of appellant.