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- 445 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. HARMS
Cite as 315 Neb. 445
State of Nebraska, appellee, v.
Nathan V. Harms, appellant.
___ N.W.2d __
Filed November 9, 2023. No. S-22-393.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to dem-
onstrate a violation of his or her constitutional rights or that the record
and files affirmatively show that the defendant is entitled to no relief.
2. Postconviction: Judgments: Appeal and Error. Whether a claim
raised in a postconviction proceeding is procedurally barred is a ques-
tion of law which an appellate court reviews independently of the lower
court’s ruling.
3. Postconviction: Mental Competency. A procedural bar can apply to an
issue of competence in a postconviction proceeding.
4. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues that were known to the
defendant and which were or could have been litigated on direct appeal.
5. Trial: Pleas: Mental Competency. 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 ratio-
nal defense.
6. Trial: Mental Competency. The competency standard includes both (1)
whether the defendant has a rational as well as factual understanding of
the proceedings against him or her and (2) whether the defendant has
sufficient present ability to consult with his or her lawyer with a reason-
able degree of rational understanding.
7. Mental Competency. There are no fixed or immutable signs of incom-
petence, and a defendant can meet the modest aim of legal competency,
despite paranoia, emotional disorders, unstable mental conditions, and
suicidal tendencies.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. HARMS
Cite as 315 Neb. 445
Petition for further review from the Court of Appeals,
Pirtle, Chief Judge, and Arterburn and Welch, Judges,
on appeal thereto from the District Court for Douglas County,
Kimberly Miller Pankonin, Judge. Judgment of Court of
Appeals affirmed.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Nathan V. Harms appealed the order of the district court
for Douglas County that denied his motion for postconviction
relief without an evidentiary hearing to the Nebraska Court of
Appeals. The Court of Appeals affirmed the denial, and we
granted Harms’ petition for further review. Harms seeks review
of, inter alia, the Court of Appeals’ determination that one of
his claims was procedurally barred. We affirm the decision of
the Court of Appeals.
STATEMENT OF FACTS
In 2019, Harms was charged with 10 counts of possession of
child pornography. Pursuant to a plea agreement, Harms pled
no contest to three counts and the State dismissed the remain-
ing counts. The district court sentenced Harms to imprisonment
for 15 to 20 years on each count and ordered the sentences to
be served consecutively.
Harms appealed and was represented by new counsel on
direct appeal. He claimed that the district court imposed exces-
sive sentences, and he asserted several claims of ineffective
assistance of trial counsel. None of the claims of ineffec-
tive assistance concerned Harms’ competency. The Court of
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. HARMS
Cite as 315 Neb. 445
Appeals rejected Harms’ claim of excessive sentences. The
Court of Appeals determined that most of Harms’ claims of
ineffective assistance of trial counsel were without merit,
but it determined that one claim potentially had merit but
could not be resolved based on the record before it on direct
appeal. The Court of Appeals therefore affirmed Harms’ con-
victions and sentences. State v. Harms, No. A-19-630, 2020
WL 2754880 (Neb. App. May 20, 2020) (selected for posting
to court website).
In July 2021, Harms filed a motion for postconviction
relief, the denial of which gives rise to the instant appeal. He
asserted various claims for relief, including claims that he was
denied due process because (1) he was not competent when
he entered his pleas and (2) the district court made an insuf-
ficient inquiry into his competence at the plea hearing. He also
asserted various claims of ineffective assistance of trial coun-
sel, including failure to investigate his competency to enter his
pleas, and he claimed ineffective assistance of appellate coun-
sel for failing to raise these claims of ineffective assistance of
trial counsel on direct appeal.
The district court denied Harms’ motion for postconviction
relief without an evidentiary hearing. The court determined
that Harms’ due process claims relating to competency were
procedurally barred because they could have been raised on
direct appeal. Regarding his claim of ineffective assistance of
counsel for failing to investigate and challenge competency,
the court determined that Harms failed to show that a motion
for a competency hearing would have been successful, and
it found that his claim that he was not competent to enter
his pleas was refuted by the record of the plea colloquy. The
court determined that Harms failed to allege sufficient facts
to support his remaining claims of ineffective assistance
of counsel.
Harms appealed to the Court of Appeals. He claimed that
the district court erred when it determined that his due process
claims related to competency were procedurally barred. He
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. HARMS
Cite as 315 Neb. 445
also claimed that the district court erred when it rejected four
of his claims of ineffective assistance of counsel, including
his claim that counsel failed to investigate and challenge his
competency. Harms does not seek further review related to
claims of ineffective assistance other than the claims related to
competency, and therefore, those other claims are not discussed
further herein. The Court of Appeals affirmed the decision of
the district court. State v. Harms, No. A-22-393, 2023 WL
2656390 (Neb. App. Mar. 28, 2023) (selected for posting to
court website).
The Court of Appeals first addressed the district court’s
ruling in which it had determined that because Harms’ due
process claims relating to lack of competency could have been
litigated on direct appeal, they were procedurally barred. The
Court of Appeals determined that this ruling did not constitute
error. The Court of Appeals cited precedent to the effect that
a motion for postconviction relief cannot be used to secure
review of issues which were known to the defendant and which
were or could have been litigated on direct appeal. The Court
of Appeals noted that Harms relied on the Court of Appeals’
decision in State v. Johnson, 4 Neb. App. 776, 551 N.W.2d 742
(1996), in support of his argument that a procedural bar did not
apply to his competency claims. The Court of Appeals rejected
this argument.
In Johnson, the defendant did not file a direct appeal, but
he did file a motion for postconviction relief in which he
raised a claim of ineffective assistance of trial counsel based
on the allegation that trial counsel failed to properly advise
him regarding competency to stand trial. On appeal from
the denial of that postconviction relief, the Court of Appeals
determined in Johnson that trial counsel did not provide inef-
fective assistance with respect to competence, in part because
trial counsel put into evidence a psychiatric report in which
the doctor concluded that the defendant was not presently
competent to stand trial. The Court of Appeals determined
that although counsel was not ineffective, given the existence
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. HARMS
Cite as 315 Neb. 445
of the report and other indications that the defendant was not
competent, the trial court had violated the defendant’s due
process rights when it failed to conduct a full hearing on the
defendant’s competence. The Court of Appeals therefore con-
cluded that the district court committed plain error when it
denied postconviction relief.
In its opinion, the Court of Appeals in Johnson acknowl-
edged precedent of this court which “suggest[ed] a procedural
default in postconviction proceedings when the issue of com-
petency to stand trial was not raised on direct appeal.” 4 Neb.
App. at 798, 551 N.W.2d at 757 (citing State v. Painter, 229
Neb. 278, 426 N.W.2d 513 (1988), and State v. Rehbein, 235
Neb. 536, 455 N.W.2d 821 (1990)). However, the Court of
Appeals in Johnson cited a string of cases seemingly to the
contrary in which this court had considered issues of compe-
tency raised in postconviction actions and had not imposed
a procedural bar to avoid considering the issue. The Court
of Appeals therefore concluded in Johnson that “we do not
believe the law is that there is a procedural bar in postconvic-
tion proceedings of issues relating to competency to stand trial,
and we decline to impose such a procedural bar for these issues
in this postconviction proceeding.” 4 Neb. App. at 801, 551
N.W.2d at 758.
In the present case, the Court of Appeals rejected Harms’
argument, based on Johnson, in which he urged the court to
conclude that his due process claims relating to competency
were not procedurally barred. In rejecting his argument, the
Court of Appeals cited State v. Watkins, 284 Neb. 742, 825
N.W.2d 403 (2012), in which we distinguished Johnson and
concluded that a competency claim raised for the first time
in a second motion for postconviction relief was procedurally
barred. In Watkins, we rejected what we characterized as the
defendant’s “argument that a procedural bar can never apply
to an issue of competence.” 284 Neb. at 749, 825 N.W.2d at
408-09. In Watkins, we distinguished Johnson on the basis
that “the competency issue was raised in Johnson in a first
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. HARMS
Cite as 315 Neb. 445
postconviction proceeding after no direct appeal had been
taken,” whereas the defendant in Watkins, who had taken a
direct appeal, raised the competency issue for the first time
in a second postconviction motion and had not raised the
issue in the first postconviction motion. 284 Neb. at 749,
825 N.W.2d at 408. In Watkins, we also distinguished the
matter on the basis that the trial court’s plea colloquy with
the defendant in Johnson “raised an obvious issue of com-
petence,” whereas the plea colloquy with the defendant in
Watkins did “not suggest any such problem.” 284 Neb. at 749,
825 N.W.2d at 408. In Watkins, we reaffirmed the correctness
of imposing a procedural bar in two previous cases involving
competency issues raised for the first time in successive post-
conviction motions.
Based on our decision in Watkins, the Court of Appeals in
the present case stated:
Harms failed to raise the issue of his competency in con-
nection with his direct appeal; he fails to allege that the
defense was not available to him before; and, following
our review of the full colloquy between the district court
and Harms during the plea hearing and Harms’ allocution
at the sentencing hearing, the exchange in no way sug-
gests of an issue regarding Harms’ competence.
State v. Harms, No. A-22-393, 2023 WL 2656390 at *7 (Neb.
App. Mar. 28, 2023) (selected for posting to court website).
The Court of Appeals recognized that this was Harms’ first
postconviction motion, not a successive postconviction motion
as in Watkins, but concluded nevertheless that the competency
claim was procedurally barred because Harms did not raise it
in his direct appeal.
Having determined that Harms’ due process claim related
to competence was procedurally barred, the Court of Appeals
turned to Harms’ claims of ineffective assistance of trial and
direct appeal counsel, including Harms’ claim that his appel-
late counsel was ineffective for failing to raise trial counsel’s
failure to investigate his competency. The Court of Appeals
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. HARMS
Cite as 315 Neb. 445
cited precedent to the effect that the question of competence
refers to whether defendants have the capacity to understand
the nature and object of the proceedings against them, to com-
prehend their own condition in reference to such proceedings,
and to make a rational defense. The Court of Appeals deter-
mined that although Harms made generalized allegations that
his psychiatric history included alcoholism, depression, anxi-
ety, posttraumatic stress disorder, and panic disorder, with a
history of suicide attempts, and that he had been denied access
to medications at times, he “failed to plead any exculpatory
evidence that would have been uncovered through investi-
gation that would tie his alleged medical issues to a lack of
competency as it has been defined” in Nebraska precedent.
Harms, supra, 2023 WL 2656390 at *9. The Court of Appeals
concluded that Harms failed to make factual allegations to
support his claims of ineffective assistance of counsel and that
therefore, the district court did not err when it denied an evi-
dentiary hearing on the claims. The Court of Appeals further
concluded that the district court did not err when it rejected
Harms’ remaining claims, and it therefore affirmed the dis-
trict court’s order that denied postconviction relief without
a hearing.
We granted Harms’ petition for further review.
ASSIGNMENTS OF ERROR
Harms claims that the Court of Appeals erred when it
(1) concluded that his due process claim related to compe-
tency was procedurally barred and (2) affirmed the district
court’s denial of his claims of ineffective assistance of trial
and appellate counsel. Regarding ineffective assistance of
counsel, Harms specifically claims that the Court of Appeals
erred when it concluded that he was competent based on his
plea colloquy.
STANDARDS OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. HARMS
Cite as 315 Neb. 445
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. Galindo, ante p. 1, 994 N.W.2d 562 (2023).
[2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law which an appellate
court reviews independently of the lower court’s ruling. Id.
ANALYSIS
Due Process Claim Related to Competence
Was Procedurally Barred in Harms’
Postconviction Action.
Harms first claims that the Court of Appeals erred when it
determined that his due process claim relating to competence
was procedurally barred. Because it could have been, but was
not, raised in his direct appeal, we conclude that the issue was
procedurally barred in this postconviction action. The Court of
Appeals did not err when it so concluded.
As the foregoing factual section demonstrates, Harms and
the Court of Appeals placed emphasis on State v. Johnson, 4
Neb. App. 776, 551 N.W.2d 742 (1996), and State v. Watkins,
284 Neb. 742, 825 N.W.2d 403 (2012). Thus, our initial analy-
sis focuses on these cases before addressing our competency
jurisprudence more widely. Harms argues that the present case
is governed by Johnson and that under the precedent of that
case, “a claim of competency, which is a fundamental due
process claim, cannot suffer from a procedural bar.” Brief
for appellant on petition for further review at 3. Harms notes
that Watkins did not overrule Johnson. Because the defendant
in Watkins did not raise the competency issue in his direct
appeal or his first postconviction motion, Harms contends his
case is more like Johnson, in which the defendant raised the
competency issue in the first postconviction motion he filed
and it was not procedurally barred. See, also, State v. Saufley,
29 Neb. App. 592, 956 N.W.2d 726 (2021) (Court of Appeals
citing Johnson to conclude that procedural bar did not apply
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. HARMS
Cite as 315 Neb. 445
where defendant did not file direct appeal from plea-based
conviction and raised competency issues in first postconvic-
tion motion).
[3] In Watkins, we distinguished the case factually from
Johnson. In doing so, we also “reject[ed] the argument that
a procedural bar can never apply to an issue of competence”
raised in a postconviction proceeding, and we “decline[d] to
establish such a rule.” Watkins, 284 Neb. at 749, 825 N.W.2d
at 408-09. We did not explicitly overrule Johnson in Watkins
because the two cases were in different procedural postures
and the specific holding in Johnson was not applicable. We
distinguished Johnson on the basis that after a direct appeal,
Watkins “involve[d] a successive motion for postconviction
relief,” whereas “the competency issue was raised in Johnson
in a first postconviction proceeding after no direct appeal had
been taken.” Watkins, 284 Neb. at 749, 825 N.W.2d at 408.
We also distinguished the two cases on the basis that “the trial
court’s colloquy with the defendant in Johnson at the time of
the plea raised an obvious issue of competence,” whereas “the
district court’s colloquy with [the defendant in Watkins] at the
time of his guilty plea [did] not suggest any such problem.”
Watkins, 284 Neb. at 749, 825 N.W.2d at 408.
Procedurally, the present case is unlike Johnson and Watkins.
While the competency issue was raised in Watkins in a suc-
cessive postconviction motion, Harms, like the defendant in
Johnson, raised the competency issue in a first postconviction
proceeding. However, the present case differs from Johnson;
in Johnson, no direct appeal was taken, but in the present
case, Harms took a direct appeal and did not raise the compe-
tency issue.
As we explain below by reference to our broader compe-
tency jurisprudence, and as we did in Watkins, we continue
to reject the broad statement from Johnson that a procedural
bar can never apply to an issue of competence. In Watkins,
we reaffirmed our holdings in State v. Fincher, 191 Neb. 446,
216 N.W.2d 172 (1974), and State v. Ryan, 257 Neb. 635,
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. HARMS
Cite as 315 Neb. 445
601 N.W.2d 473 (1999), which applied a procedural bar to
successive postconviction motions. We note the existence of
yet another case, State v. Painter, 229 Neb. 278, 426 N.W.2d
513 (1988), which involved a procedural posture like that in
the present case. In Painter, a competency issue was raised
in a postconviction motion after the defendant’s convictions
and sentences were affirmed on direct appeal. In Painter, we
reasoned that we could dispose of alleged due process errors
relating to competency because “a motion for postconviction
relief may not be used to obtain review of issues which could
have been raised on direct appeal.” 229 Neb. at 280, 426
N.W.2d at 515. We note, however, that in the postconviction
motion in Painter, the defendant also raised a claim of ineffec-
tive assistance of counsel related to competency, and that on
appeal, we reviewed the district court’s ruling on that claim on
the merits without noting any procedural bar to the ineffective
assistance of counsel claim.
[4] This court continues to adhere to the longstanding rule
noted in Painter that “a motion for postconviction relief can-
not be used to secure review of issues that were known to the
defendant and which were or could have been litigated on
direct appeal.” State v. Galindo, ante p. 1, 10, 994 N.W.2d
562, 574 (2023). In adhering to this rule, we note that the
“need for finality in the criminal process requires that a
defendant bring all claims for relief at the first opportunity.”
Id. We conclude, therefore, that the procedural bar set forth
in Painter continues to apply when a competency issue raised
in a postconviction motion could have been, but was not,
raised on direct appeal. Important to our reasoning is the fact
that when there has been a direct appeal, there has been an
opportunity for review by an appellate court, and we further
observe that in a postconviction motion, the defendant can
still raise a claim of ineffective assistance for any failure of
appellate counsel to present a meritorious competency issue
on direct appeal.
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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE V. HARMS
Cite as 315 Neb. 445
In view of the foregoing, we conclude that the due process
issue of competence is procedurally barred in a postconviction
action when the defendant took a direct appeal and could have,
but did not, raise the issue in that direct appeal. We emphasize
that our holding in this case is governed by the specific proce-
dural posture in which Harms’ convictions and sentences were
affirmed in a direct appeal in which he could have, but did
not, raise the competency issue. As we did in State v. Watkins,
284 Neb. 742, 749, 825 N.W.2d 403, 408 (2012), we distin-
guish the present case from State v. Johnson, 4 Neb. App. 776,
551 N.W.2d 742 (1996), which was in a different procedural
posture in that “the competency issue was raised in Johnson
in a first postconviction proceeding after no direct appeal had
been taken.” Because Harms’ convictions and sentences were
affirmed in a direct appeal, this case does not present the same
procedural circumstances that were present when the Court of
Appeals decided Johnson.
We therefore conclude that the Court of Appeals did not err
in this case when it determined that Harms’ due process claim
related to competence was procedurally barred.
Court of Appeals Did Not Err When It
Affirmed the Denial of Harms’ Claims
of Ineffective Assistance of Counsel.
Harms further claims that the Court of Appeals erred when it
affirmed the district court’s denial of his claims of ineffective
assistance of trial and appellate counsel related to competency.
He specifically claims that the Court of Appeals erred because
it reached this determination based solely on the plea colloquy
and because it failed to determine that other matters outside
the trial record would have warranted a competency hearing if
counsel had brought those matters to the trial court’s attention.
We reject these claims.
Harms asserts that the plea colloquy alone cannot resolve
the issue of his competence. He further asserts that he
alleged other matters outside the record to support his claims,
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315 Nebraska Reports
STATE V. HARMS
Cite as 315 Neb. 445
including allegations regarding his psychiatric history and his
history of suicide attempts. He further argues that his allega-
tions were sufficient to show that if counsel had brought the
issues to the trial court’s attention, they would have warranted
a hearing that went beyond the plea colloquy to determine
his competence.
Contrary to Harms’ assertions, we do not read the Court of
Appeals’ analysis as relying on the plea colloquy alone. In its
recitation of facts, the Court of Appeals recited the trial court’s
plea colloquy with Harms and also extensively recited the allo-
cution at Harms’ sentencing. In our view, Harms’ statements,
particularly those he made at his sentencing, indicate that he
understood the nature of the proceedings and his role in the
proceedings and that he was competent to participate in his
defense. We reject Harms’ assertion that the Court of Appeals
relied solely on the plea colloquy when it rejected his claims of
ineffective assistance of counsel related to competence.
In its analysis of the claims, the Court of Appeals focused
on the allegations Harms made to support the claims rather
than on the plea colloquy. Reviewing the allegations, the
Court of Appeals determined that although Harms made alle-
gations regarding his psychiatric history and his history of
suicide attempts, he made no allegations that tie that his-
tory to a lack of competence as competence is defined in
Nebraska precedent.
[5-7] We have said that 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. State v. Garcia,
ante p. 74, 994 N.W.2d 610 (2023). The competency stan-
dard includes both (1) whether the defendant has a rational
as well as factual understanding of the proceedings against
him or her and (2) whether the defendant has sufficient pres-
ent ability to consult with his or her lawyer with a reasonable
degree of rational understanding. Id. There are no fixed or
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STATE V. HARMS
Cite as 315 Neb. 445
immutable signs of incompetence, and a defendant can meet
the modest aim of legal competency, despite paranoia, emo-
tional disorders, unstable mental conditions, and suicidal ten-
dencies. Id.
The Court of Appeals considered the record and Harms’
allegations in terms of this precedent, and we determine that
the Court of Appeals did not err when it concluded that Harms’
allegations failed to tie his medical issues to a lack of com-
petency as defined in our precedent. Although Harms made
allegations regarding his mental history, he made no allega-
tions that show that the conditions from which he had suffered
prevented him from being competent to stand trial in the sense
of being able to understand the proceedings and assist in his
defense. We therefore see no error in the Court of Appeals’
conclusion that the district court did not err when it denied
Harms’ claims of ineffective assistance of counsel relating to
competence without an evidentiary hearing.
CONCLUSION
We conclude that the Court of Appeals did not err when it
determined that Harms’ due process claim related to compe-
tence was procedurally barred in this postconviction action
because Harms could have, but did not, raise the issue in his
direct appeal. We further determine that, regarding Harms’
claims of ineffective assistance of counsel, the Court of
Appeals did not rely solely on the plea colloquy and instead
that it considered Harms’ allegations in terms of precedent
regarding competence. We conclude that the Court of Appeals
did not err when it rejected Harms’ claims of ineffective assist
ance of trial counsel and counsel on direct appeal related to
competence and, in so doing, did not err when it affirmed the
district court’s denial of the claims. We therefore affirm the
Court of Appeals’ decision in which it affirmed the district
court’s order denying postconviction relief without an eviden-
tiary hearing.
Affirmed.