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www.nebraska.gov/apps-courts-epub/
01/02/2024 08:04 AM CST
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. YATES
Cite as 32 Neb. App. 555
State of Nebraska, appellee, v.
Ryan L. Yates, appellant.
___ N.W.2d ___
Filed January 2, 2024. No. A-23-200.
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. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the determination made by the
court below.
3. Appeal and Error. Alleged errors of the lower court must be both spe-
cifically assigned and specifically argued in the brief of the party assert-
ing the errors to be considered by the appellate court.
4. Postconviction: Constitutional Law: Proof. The district court must
grant an evidentiary hearing to resolve the claims in a postconviction
motion when the motion contains factual allegations which, if proved,
constitute an infringement of the defendant’s rights under the state or
federal Constitution.
5. ____: ____: ____. An evidentiary hearing is not required on a motion
for postconviction relief when (1) the motion does not contain factual
allegations which, if proved, constitute an infringement of the movant’s
constitutional rights rendering the judgment void or voidable; (2) the
motion alleges only conclusions of fact or law without supporting facts;
or (3) the records and files affirmatively show that the defendant is
entitled to no relief.
Appeal from the District Court for Cass County: Michael
A. Smith, Judge. Affirmed.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. YATES
Cite as 32 Neb. App. 555
Ryan L. Yates, pro se.
Michael T. Hilgers, Attorney General, and Melissa R.
Vincent for appellee.
Riedmann, Arterburn, and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
Ryan L. Yates appeals the order of the Cass County District
Court that denied his verified motion for postconviction relief
without holding an evidentiary hearing. He claims the court
imposed upon him a higher burden of proof than that con-
tained in the governing statute when denying an evidentiary
hearing. We affirm.
BACKGROUND
In October 2019, the State filed charges against Yates for
first degree sexual assault of a child. Yates later filed a motion
to take depositions. At the hearing on the motion to take depo-
sitions, Yates’ counsel requested that the court strike the victim,
M.P.S., from Yates’ motion to take depositions. The district
court granted the motion to take depositions of the remaining
five people Yates listed.
On August 7, 2020, a jury found Yates guilty of one count
of first degree sexual assault of a child. He was sentenced
to 20 to 25 years’ imprisonment, with a 15-year mandatory
minimum, in which good-time credit shall not accrue. Yates
appealed, and he was represented by the same counsel at trial
and on appeal to this court. This court affirmed Yates’ convic-
tion and sentence on September 7, 2021. See State v. Yates,
No. A-20-838, 2021 WL 4057807 (Neb. App. Sept. 7, 2021)
(selected for posting to court website).
In October 2022, Yates filed a petition for postconviction
relief. In his petition, he raised nine claims of ineffective
assistance of counsel: (1) failure to take the deposition of
M.P.S.; (2) failure to effectively cross-examine M.P.S.; (3)
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. YATES
Cite as 32 Neb. App. 555
failure to take the deposition of A.P.Y.; (4) failure to take the
deposition of N.Y., a witness of the crime who testified against
Yates; (5) failure to adequately prepare Yates for trial; (6)
failure to object and preserve the record; (7) failure to strike
a juror; (8) failure to strike a prosecutor’s comment during
his cross-examination of Yates; and (9) failure to convey a
plea offer.
The district court denied Yates’ motion for postconviction
relief without an evidentiary hearing. It held that regarding
Yates’ claims that his trial counsel should have deposed cer-
tain witnesses, Yates failed to show that his trial counsel was
unaware of the witnesses’ prior statements or of facts known
to these witnesses; thus, his allegations were speculative and
did not include facts, if proved, that would show an infringe-
ment of his rights occurred. For Yates’ claims about cross-
examining M.P.S., failing to strike the prosecutor’s comment,
and failing to strike the juror, the district court explained that
deference is given to trial counsel in determining issues related
to trial strategy and that Yates failed to allege any facts that
would support a finding of prejudice. Lastly, the district court
held that Yates failed to allege that a plea offer was made,
which meant his final claim contained a defect sufficient to
deny an evidentiary hearing. Yates appeals.
ASSIGNMENT OF ERROR
Yates assigns that the district court committed plain error
by denying him an evidentiary hearing on all of his claims in
his petition for postconviction relief.
STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late 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. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022).
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. YATES
Cite as 32 Neb. App. 555
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the determination made by
the court below. State v. Goynes, 293 Neb. 288, 876 N.W.2d
912 (2016).
[3] Alleged errors of the lower court must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the errors to be considered by an appellate court.
State v. Lessley, supra.
ANALYSIS
Yates argues on appeal that the district court violated his
rights under the Nebraska Postconviction Act, the Nebraska
Constitution, and the U.S. Constitution. Yates explains that the
district court should have granted him an evidentiary hearing
because under Neb. Rev. Stat. § 29-3001 (Reissue 2016), proof
of his claims is not a prerequisite for an evidentiary hear-
ing. Yet, the district court denied him an evidentiary hearing
because none of his claims, if proved, resulted in a violation of
his constitutional rights. He argues as follows:
The problem is that the district court applied an uncon-
stitutional case law rule/bar that requires a movant to
meet all of the requirements needed to get relief, like a
new trial—i.e. showing deficiency and prejudice to cause
the judgment to be void—and holding that that same
standard is required to get an evidentiary hearing, without
conducting an evidentiary hearing.
Brief for appellant at 19. He contends that the Nebraska
Postconviction Act imposes a lighter burden to obtain an
evidentiary hearing, specifically that it contains no lan-
guage requiring a movant to prove an infringement of his or
her constitutional rights as a prerequisite to an evidentiary
hearing. Yates’ argument is contrary to the purpose of the
Nebraska Postconviction Act and the criteria and procedure
set forth therein.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. YATES
Cite as 32 Neb. App. 555
Section 29-3001(1) provides that a prisoner in custody can
file a postconviction motion for relief on the basis that there
was a denial or infringement of his or her rights that would
render the judgment void or voidable under the Nebraska or
U.S. Constitution. Section 29-3001(2) sets forth the criteria
and the procedure by which an evidentiary hearing is granted.
It provides in part:
Unless the motion and the files and records of the case
show to the satisfaction of the court that the prisoner is
entitled to no relief, the court shall cause notice thereof to
be served on the county attorney, grant a prompt hearing
thereon, and determine the issues and make findings of
fact and conclusions of law with respect thereto.
Section 29-3001(2) does not require an evidentiary hearing if
the court is satisfied that the petitioner is not entitled to relief.
Appellate courts give statutory language its plain and ordinary
meaning, and will not look beyond the statute to determine
legislative intent when the words are plan, direct, and unam-
biguous. State v. Goynes, supra.
Shortly after the Nebraska Postconviction Act was adopted,
the Nebraska Supreme Court explained that the purpose of the
act is to ensure relief is provided “‘in those cases where a mis-
carriage of justice may have occurred.’” State v. Robertson,
294 Neb. 29, 43, 881 N.W.2d 864, 876 (2016), quoting State v.
Clingerman, 180 Neb. 344, 142 N.W.2d 765 (1966). However,
the act is not “‘a procedure to secure a routine review for any
defendant dissatisfied with his sentence.’” Id. Before a court
notifies the county attorney and orders an evidentiary hearing,
it must first determine whether the motion, files, and records
of the case show petitioner’s rights were not violated. If they
show no violation, then no evidentiary hearing is required.
See State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 (2022).
To hold otherwise would permit defendants to misuse and
abuse a remedy intended to provide relief for those excep-
tional cases where the rights of a defendant have been ignored
or abused. State v. Clingerman, supra.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. YATES
Cite as 32 Neb. App. 555
Here, Yates’ argument misinterprets § 29-3001. Yates con-
tends that “according to § 29-3001(2), once the court causes
notice thereof to be served on the county attorney, [y]ou are
entitled to relief and, therefore, the court must grant a prompt
hearing.” Brief for appellant at 22. We reject this argument for
two reasons.
First, Yates’ argument ignores the first part of § 29-3001(2),
which states, “Unless the motion and the files and records of
the case show to the satisfaction of the court that the prisoner
is entitled to no relief . . . .” The mandate to cause notice
thereof to be served on the county attorney for an evidentiary
hearing is plain and unambiguous. It is triggered only upon
the court’s finding the petitioner is not precluded from relief,
which is the mechanism to distinguish between a dissatisfied
defendant and a miscarriage of justice. See, State v. Lessley,
supra; State v. Clingerman, supra. The district court deter-
mined that Yates was not entitled to relief because his claims—
if proved—would not show a violation of his rights.
Second, a request for the State to respond to a postconvic-
tion motion does not trigger a requirement that an eviden-
tiary hearing be granted. See State v. Robertson, supra. The
Supreme Court observed that nothing in the postconviction
statutes precludes a district court from asking the State to
respond prior to determining whether an evidentiary hearing is
warranted. Id.
Through case law, the Supreme Court has provided guide-
lines for both the courts and litigants in postconviction pro-
ceedings. Consistent with the Nebraska Postconviction Act,
the Supreme Court has enunciated the following principles.
[4,5] The district court must grant an evidentiary hearing
to resolve the claims in a postconviction motion when the
motion contains factual allegations which, if proved, constitute
an infringement of the defendant’s rights under the state or
federal Constitution. State v. Jaeger, 311 Neb. 69, 970 N.W.2d
751 (2022). However, the allegations in a motion for post-
conviction relief must be sufficiently specific for the district
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. YATES
Cite as 32 Neb. App. 555
court to make a preliminary determination as to whether an
evidentiary hearing is justified. Id. An evidentiary hearing is
not required on a motion for postconviction relief when (1) the
motion does not contain factual allegations which, if proved,
constitute an infringement of the movant’s constitutional rights
rendering the judgment void or voidable; (2) the motion
alleges only conclusions of fact or law without supporting
facts; or (3) the records and files affirmatively show that the
defendant is entitled to no relief. Id.
When a district court denies postconviction relief without
conducting an evidentiary hearing, an appellate court deter-
mines de novo whether the petitioner has alleged facts that
would support the claim and, if so, whether the files and
records affirmatively show that he or she is entitled to no
relief. Id. The appellate court does not conduct this review
sua sponte, however; as with all appeals, the alleged errors of
the lower court must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the errors to be
considered by the appellate court. Id. The appellate court will
not scour the record on appeal to understand unclear argu-
ments or find support for broad conclusions. Id.
Applying the postconviction statutes and the principles set
forth above, we reject Yates’ argument that the district court
imposed a greater burden of proof on him than required by
statute when denying him an evidentiary hearing. The court
was first required to determine whether the postconviction
motion alleged facts that would support Yates’ claim and, if
so, whether the files and records affirmatively showed that
he was entitled to no relief. The district court’s order reveals
that is the procedure followed. For example, Yates stated in
his postconviction petition that he did not know whether a
plea offer had been made by the State, but that counsel would
be ineffective for not relaying it, if one had been made. The
district court reasoned that the absence of an allegation that
a plea offer was actually made ordinarily would be a suf-
ficient defect to deny an evidentiary hearing, and we agree.
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Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
STATE V. YATES
Cite as 32 Neb. App. 555
See State v. Seberger, 284 Neb. 40, 815 N.W.2d 910 (2012)
(holding that defendant cannot use postconviction procedure
to fish for evidence which he hopes might aid him in obtain-
ing postconviction relief). Thus, Yates’ motion, itself, failed
to allege facts showing he was entitled to relief; therefore, no
evidentiary hearing was required on this claim. This determi-
nation does not increase the burden of proof imposed upon
him under § 29-3001.
We do not review the merits of Yates’ remaining claims
made in his petition for postconviction relief, because they
are not before this court. On appeal, Yates assigned only one
error: The district court plainly erred by denying Yates an
evidentiary hearing. As explained above, his argument in sup-
port of his assigned error addressed only the degree of proof
the district court imposed in denying an evidentiary hearing.
Having found no error in the district court’s application of the
postconviction statutes, and because Yates does not specifically
assign or argue the merits of his specific claims, we do not
consider them. See State v. Jaeger, 311 Neb. 69, 970 N.W.2d
751 (2022) (errors must be specifically assigned and argued to
obtain appellate review).
CONCLUSION
The district court properly denied Yates’ petition for post-
conviction relief without an evidentiary hearing. The district
court correctly applied the postconviction criteria and proce-
dure set forth in § 29-3001; thus, we affirm.
Affirmed.