State v. Davenport

cases determined
in the
nebraska court of appeals
()
S tate of N ebraSka , appellee , v .
ricky r. DaveNport , appellaNt .
755 n.W.2d 86
filed august 26, 2008. 	no. a-06-33.
. Postconviction: Proof: Appeal and Error. a defendant requesting postconviction
relief must establish the basis for such relief, and the district court’s findings will
not be disturbed unless they are clearly erroneous.
2. Postconviction. Whether a claim raised in a postconviction proceeding is procedur-
ally barred is a question of law.
3. Judgments: Appeal and Error. When reviewing a question of law, an appellate
court resolves the question independently of the lower court’s conclusion.
4. Appeal and Error. plain error may be asserted for the first time on appeal or be
noted by an appellate court on its own motion.
5. Appeal and Error: Words and Phrases. plain error exists where there is an error,
plainly evident from the record but not complained of at trial, which prejudicially
affects a substantial right of a litigant and is of such a nature that to leave it uncor-
rected would cause a miscarriage of justice or result in damage to the integrity,
reputation, and fairness of the judicial process.
6. Effectiveness of Counsel. a claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact.
7. Effectiveness of Counsel: Appeal and Error. Whether counsel’s performance
was deficient and whether that deficiency prejudiced the defendant are legal
determinations that an appellate court resolves independently of the lower
court’s decision.
8. Postconviction: Appeal and Error. a party cannot raise an issue in a postconvic-
tion motion if he or she could have raised that same issue on direct appeal.
9. Postconviction: Effectiveness of Counsel: Appeal and Error. When a defendant
was represented both at trial and on direct appeal by the same lawyers, generally
speaking, the defendant’s first opportunity to assert ineffective assistance of trial
counsel is in a motion for postconviction relief.
0. Postconviction: Appeal and Error. an appellate court will not entertain a succes-
sive motion for postconviction relief unless the motion affirmatively shows on its
face that the basis relied upon for relief was not available at the time the movant
filed the prior motion.
. Postconviction: Waiver: Appeal and Error. to use a procedural default or waiver
as a means of ignoring a plain error that results in an unconstitutional incarceration
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

would place form over substance; would damage the integrity, reputation, and fair-
ness of the judicial process; and would render the plain error doctrine and postcon-
viction relief remedies meaningless.
2. Effectiveness of Counsel. the failure to anticipate a change in existing law does
not constitute ineffective assistance of counsel.
3. Postconviction: Constitutional Law: Proof: Records. an evidentiary hearing on
a motion for postconviction relief must be granted when the motion contains fac-
tual allegations which, if proved, constitute an infringement of the movant’s rights
under the nebraska or federal constitution. however, if the motion alleges only
conclusions of fact or law, or the records and files in the case affirmatively show
that the movant is entitled to no relief, no evidentiary hearing is required.
4. Judgments: Appeal and Error. Where the record adequately demonstrates that
the decision of a trial court is correct, although such correctness is based on a
ground or reason different from that assigned by the trial court, an appellate court
will affirm.
appeal from the district court for douglas county: G ary b.
raNDall, Judge. affirmed.
ricky r. davenport, pro se.
Jon bruning, attorney General, and kimberly a. klein for
appellee.
irwiN, M oore, and caSSel, Judges.
caSSel, Judge.
introduction
in 993, a jury convicted ricky r. davenport of manslaugh-
ter, use of a firearm in the commission of a felony, and pos-
session of a firearm by a felon. on direct appeal, we affirmed
davenport’s convictions and sentences, and we later affirmed
the denial of his motion for postconviction relief. subsequently,
the nebraska supreme court determined in State v. Pruett, 263
neb. 99, 638 n.W.2d 809 (2002), that a defendant could not be
convicted of an intentional crime, such as use of a weapon to
commit a felony, when the underlying felony is an unintentional
crime, such as manslaughter. based upon the Pruett decision,
davenport filed a second motion for postconviction relief alleg-
ing that he received ineffective assistance of counsel at the trial
and appellate levels. the district court denied the motion with-
out an evidentiary hearing. We affirm.
2 	7 nebraska appellate reports

backGround
the state charged davenport with second degree murder,
use of a firearm in the commission of a felony, and possession
of a firearm by a convicted felon. the information alleged that
davenport killed the victim “intentionally, but without premedi-
tation.” davenport presented a self-defense theory at trial. the
court instructed the jury that in order to convict davenport of
manslaughter, the state had to prove that davenport killed the
victim “without malice, either (a) intentionally upon a sudden
quarrel, or (b) unintentionally while in the commission of the
unlawful act of assault,” and that his action was not justified as
set out in the jury instruction pertaining to self-defense. the jury
convicted davenport of the lesser charge of manslaughter, along
with use of a firearm in the commission of a felony and possession
of a firearm by a felon. the douglas county public defender’s
office represented davenport at trial and on direct appeal.
on direct appeal, in addition to the numerous assignments
of error raised by davenport’s counsel, he argued in a pro se
brief that the court failed to adequately instruct the jury because
it did not define the term “recklessly” with regard to the man-
slaughter instruction. We affirmed the convictions and sentences
in all respects. see State v. Davenport, no. a-94-009, 994 Wl
642698 (neb. app. nov. 5, 994) (not designated for perma-
nent publication).
davenport later filed a motion for postconviction relief claim-
ing ineffective assistance of counsel in a number of specified
ways, including failing to request a jury instruction () on
self-defense against a group of people and (2) defining the
term “recklessly” for purposes of manslaughter. We held that
the record affirmatively showed davenport was not entitled to
postconviction relief and that the district court did not err in
overruling the motion without a hearing. see State v. Davenport,
no. a-98-57, 999 Wl 703624 (neb. app. sept. 7, 999) (not
designated for permanent publication).
on november 3, 2006, davenport filed a second motion for
postconviction relief. under the broad heading “defendant’s
claims,” davenport claimed “violations of his right to [e]ffec-
tive [a]ssistance of [c]ounsel, his right to a [f]air [t]rial, and
his right to [d]ue [p]rocess of [l]aw, guaranteed by the fifth,
state v. davenport 	3
cite as 7 neb. app. 

sixth and the fourteenth amendments.” under the heading
“claim i,” davenport asserted that in State v. Jones, 245 neb.
82, 55 n.W.2d 654 (994), overruled on other grounds, State
v. Burlison, 255 neb. 90, 583 n.W.2d 3 (998)—decided 8
months prior to the decision in his direct appeal—the nebraska
supreme court held there was no requirement of intent to kill
in manslaughter, and he asserted that the stepped jury instruc-
tion given in davenport’s case for murder in the second degree
and the lesser-included offense of manslaughter was contrary to
the ruling in Jones. under the heading “claim ii,” davenport
alleged that after the decisions in his direct appeal and first
motion for postconviction relief, the nebraska supreme court
determined in State v. Pruett, 263 neb. 99, 638 n.W.2d 809
(2002), that a defendant could not be convicted of an intentional
crime—use of a weapon to commit a felony—when the underly-
ing felony is an unintentional crime, such as manslaughter. he
also alleged that using a procedural default to ignore plain error
resulting in an unconstitutional incarceration “would render the
plain error doctrine and postconviction relief remedies mean-
ingless.” the district court dismissed the motion without an
evidentiary hearing, stating that “[t]here are no facts raised by
[davenport] leading to issues that could not have been raised on
direct appeal or in the prior motion for post-conviction relief
and [davenport] is not entitled to maintain successive motions
for post-conviction relief.”
davenport timely appealed to this court. We sustained in part
the state’s motion for summary affirmance, affirming the district
court’s dismissal as to davenport’s “claim i,” but we allowed
davenport’s appeal to continue as to his “claim ii.”
assiGnments of error
davenport assigns that the district court erred in () find-
ing that his claims were procedurally barred when plain error
existed, (2) failing to find that he received ineffective assistance
of counsel at the trial and appellate levels, and (3) failing to
grant him an evidentiary hearing.
standard of revieW
[] a defendant requesting postconviction relief must estab-
lish the basis for such relief, and the district court’s findings
4 	7 nebraska appellate reports

will not be disturbed unless they are clearly erroneous. State v.
Jackson, 275 neb. 434, 747 n.W.2d 48 (2008).
[2,3] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. Id. When reviewing
a question of law, an appellate court resolves the question inde-
pendently of the lower court’s conclusion. Id.
[4,5] plain error may be asserted for the first time on appeal
or be noted by an appellate court on its own motion. Worth v.
Kolbeck, 273 neb. 63, 728 n.W.2d 282 (2007). plain error
exists where there is an error, plainly evident from the record
but not complained of at trial, which prejudicially affects a sub-
stantial right of a litigant and is of such a nature that to leave
it uncorrected would cause a miscarriage of justice or result in
damage to the integrity, reputation, and fairness of the judicial
process. Id.
[6,7] a claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact. State v. Jackson,
supra. Whether counsel’s performance was deficient and whether
that deficiency prejudiced the defendant are legal determinations
that an appellate court resolves independently of the lower
court’s decision. Id.
analYsis
before reaching davenport’s assignments of error, we set
forth the case law leading up to, and including, the decision in
State v. Pruett, 263 neb. 99, 638 n.W.2d 809 (2002).
in State v. Ring, 233 neb. 720, 447 n.W.2d 908 (989), the
nebraska supreme court determined that an unintentional crime
could not serve as the predicate offense for use of a deadly
weapon to commit a felony. Gerald dean ring was convicted of
felony motor vehicle homicide and of using a motor vehicle as a
deadly weapon in the commission of the homicide. the supreme
court held that in order to convict ring of the use of a deadly
weapon charge under neb. rev. stat. § 28-205 (reissue 985),
the state had to prove ring used his vehicle, the weapon at issue,
“for the purpose of committing a felony.” 233 neb. at 725, 447
n.W.2d at 9. the Ring court vacated ring’s use of a weapon
conviction after determining that felony motor vehicle homicide
was, by definition, a felony which is committed unintentionally
state v. davenport 	5
cite as 7 neb. app. 

and that nothing in the record indicated that ring sought or
intended to commit the felony motor vehicle homicide.
in State v. Jones, 245 neb. 82, 55 n.W.2d 654 (994),
overruled on other grounds, State v. Burlison, 255 neb. 90, 583
n.W.2d 3 (998), the nebraska supreme court determined that
there was no requirement of intention to kill in committing man-
slaughter and that the distinction between second degree murder
and manslaughter upon a sudden quarrel was the presence or
absence of an intention to kill.
next, the nebraska supreme court rejected a challenge based
upon Ring to a plea-based conviction. in State v. Burkhardt,
258 neb. 050, 607 n.W.2d 52 (2000), Jeffrey burkhardt pled
guilty to manslaughter and use of a firearm to commit a felony
in exchange for the state’s amending its charge of first degree
murder to manslaughter and filing no further charges. the trial
court accepted the plea and convicted burkhardt of both charges.
burkhardt appealed his convictions, arguing that he could not
be convicted of manslaughter and use of a weapon to commit a
felony, based upon State v. Ring, supra. but the supreme court
rejected such argument, stating that “[t]he voluntary entry of
a guilty plea or a plea of no contest waives every defense to
a charge, whether the defense is procedural, statutory, or con-
stitutional.” State v. Burkhardt, 258 neb. at 053, 607 n.W.2d
at 55.
then, in 2002, the supreme court released its decision in
State v. Pruett, supra. in that case, stuart r. pruett, planning
“to mess with” his friend, loaded a gun with a “dummy round,”
and fired it; but the gun instead fired an actual round, which
struck and killed pruett’s friend. 263 neb. at 02, 638 n.W.2d at
83. a jury convicted pruett of manslaughter by unintentionally
causing another’s death while committing the offense of reck-
less assault. after the supreme court discussed its decision in
State v. Kistenmacher, 23 neb. 38, 436 n.W.2d 68 (989),
regarding the term “recklessly” and the irrelevancy of subjective
intent, the court held that reckless assault was not an intentional
crime. the Pruett court then stated: “as a result, under State
v. Ring, 233 neb. 720, 447 n.W.2d 908 (989), pruett could
not be convicted of using a weapon to commit a felony when
the underlying felony was manslaughter due to unintentionally
6 	7 nebraska appellate reports

causing [the victim’s] death while in the commission of reck-
less assault.” State v. Pruett, 263 neb. 99, 06, 638 n.W.2d
809, 86 (2002). in so ruling, the supreme court specifically
rejected the state’s argument that pruett could still be convicted
of use of a weapon to commit a felony because he intentionally
committed the crime of reckless assault. We note, incidentally,
that the Kistenmacher court ultimately affirmed the defendant’s
convictions for manslaughter and use of a firearm to commit
a felony.
With this background in place, we turn to the issues raised in
davenport’s appeal.
Whether Davenport’s Claims Are Procedurally Barred.
the district court stated in its order that davenport “has not
raised any issues which could not have been raised on direct
appeal” and that “[t]here are no facts raised by [davenport] lead-
ing to issues that could not have been raised on direct appeal or
in the prior [m]otion for [p]ost-[c]onviction [r]elief.” although
the district court did not explicitly state that davenport’s claims
were procedurally barred, it appears that the court relied upon
this concept.
[8,9] a party cannot raise an issue in a postconviction motion
if he or she could have raised that same issue on direct appeal.
State v. Jackson, 275 neb. 434, 747 n.W.2d 48 (2008). a
motion for postconviction relief asserting ineffective assistance
of trial counsel is procedurally barred when () the defendant
was represented by a different attorney on direct appeal than
at trial, (2) an ineffective assistance of trial counsel claim was
not brought on direct appeal, and (3) the alleged deficiencies
in trial counsel’s performance were known to the defendant or
apparent from the record. Id. When a defendant was represented
both at trial and on direct appeal by the same lawyers, generally
speaking, the defendant’s first opportunity to assert ineffective
assistance of trial counsel is in a motion for postconviction
relief. State v. McHenry, 268 neb. 29, 682 n.W.2d 22 (2004).
because davenport was represented by the public defender’s
office at trial and on direct appeal, his initial postconviction
action was his first opportunity to raise claims of ineffective
assistance of counsel.
state v. davenport 	7
cite as 7 neb. app. 

[0] in davenport’s first postconviction action, he challenged
the effectiveness of his counsel, but none of the areas of alleged
ineffectiveness dealt with his convictions for both manslaughter
and use of a weapon to commit a felony. an appellate court
will not entertain a successive motion for postconviction relief
unless the motion affirmatively shows on its face that the basis
relied upon for relief was not available at the time the movant
filed the prior motion. State v. Moore, 272 neb. 7, 78 n.W.2d
537 (2006). although the decision in State v. Pruett, 263 neb.
99, 638 n.W.2d 809 (2002), had not been released at the time
of davenport’s first postconviction action, as discussed above,
the Pruett decision was driven in part by State v. Ring, 233 neb.
720, 447 n.W.2d 908 (989). and State v. Jones, 245 neb. 82,
55 n.W.2d 654 (994), overruled on other grounds, State v.
Burlison, 255 neb. 90, 583 n.W.2d 3 (998), eliminated any
requirement of intention to kill in committing manslaughter.
the Jones opinion was released shortly after davenport filed
his initial brief on appeal, but prior to the filing of his reply
brief and the issuance of our decision. he certainly could have
raised any claims based upon Jones in his first postconviction
action. because davenport could have raised in his first post-
conviction action—based upon the reasoning in State v. Ring,
supra, and State v. Jones, supra—essentially the same issues
he now raises based upon State v. Pruett, supra, his claims are
procedurally barred.
Effect of Plain Error on Procedural Bar.
[] in davenport’s brief, he does not seem to quarrel with a
determination that his claims are procedurally barred. rather, he
urges that his convictions and sentences for both manslaughter
and use of a weapon to commit a felony are contrary to control-
ling law in nebraska and thus constitute plain error. because of
the alleged plain error, davenport argues that the court erred in
“procedurally defaulting” his claim. brief for appellant at 6.
in support of his argument, he cites to State v. Burlison, 255
neb. at 93, 583 n.W.2d at 34 (quoting State v. Hall, 249 neb.
376, 543 n.W.2d 462 (996), overruled on other grounds, State
v. Burlison, supra), for the following proposition: “‘[t]o use
a procedural default or waiver as a means of ignoring a plain
8 	7 nebraska appellate reports

error that results in an unconstitutional incarceration would
place form over substance; would damage the integrity, reputa-
tion, and fairness of the judicial process; and would render the
plain error doctrine and postconviction relief remedies meaning-
less.’” this proposition originated in State v. Plant, 248 neb.
52, 532 n.W.2d 69 (995), overruled on other grounds, State v.
Burlison, supra, where the trial court omitted malice as a mate-
rial element of second degree murder in its jury instruction and
the state argued that the defendant waived his right to raise it
in postconviction proceedings because the issue of the errone-
ous jury instruction was not raised at trial or on direct appeal.
the nebraska supreme court reasoned that the omission of
the material element of malice from the second degree murder
instruction made the defendant’s conviction for second degree
murder “constitutionally invalid, and postconviction relief is
proper to rectify a constitutionally invalid conviction.” Id. at
56, 532 n.W.2d at 622. the nebraska supreme court similarly
considered claims that would otherwise be procedurally barred
in State v. Mata, 266 neb. 668, 668 n.W.2d 448 (2003), and
State v. Ryan, 249 neb. 28, 543 n.W.2d 28 (996), over-
ruled on other grounds, State v. Burlison, supra. in our opinion,
the instant case presents an analogous situation. accordingly,
despite what would otherwise be procedurally barred, in this
instance we will consider whether davenport’s counsel failed to
provide effective assistance.
Ineffective Assistance of Counsel.
under Strickland v. Washington, 466 u.s. 668, 04 s. ct.
2052, 80 l. ed. 2d 674 (984), davenport has the burden to
show that () counsel performed deficiently—that is, counsel did
not perform at least as well as a criminal lawyer with ordinary
training and skill in the area—and (2) this deficient perform-
ance actually prejudiced him in making his defense. see State
v. Jackson, 275 neb. 434, 747 n.W.2d 48 (2008) (construing
Strickland v. Washington, supra). the prejudice prong requires
that davenport show a reasonable probability that but for coun-
sel’s deficient performance, the result of the proceeding in ques-
tion would have been different. see State v. Jackson, supra. a
reasonable probability is a probability sufficient to undermine
state v. davenport 	9
cite as 7 neb. app. 

confidence in the outcome. Id. an appellate court can assess the
prongs in either order. see id.
We rejected a postconviction claim similar to davenport’s in
State v. Drinkwalter, 4 neb. app. 944, 720 n.W.2d 45 (2006).
but there is a key distinction. the convictions in Drinkwalter
were the result of a plea bargain, which we recognized to be a
“significant benefit” to the defendant. Id. at 954, 720 n.W.2d at
423. to demonstrate the benefit to the defendant, we noted:
[i]n the first trial, he had been sentenced to death for the
first degree murder conviction and 6 to 2 years’ imprison-
ment on the use of a weapon to commit a felony convic-
tion. after the supreme court reversed the decision and
remanded the cause for a new trial, [the defendant] faced
the charges of use of a weapon in the commission of a
felony and first degree murder again, which could mean a
death sentence again or life in prison without parole. he
entered into negotiations for a plea agreement. the state
offered a greatly reduced charge of manslaughter, a class
iii felony, which is punishable by a maximum of 20 years’
imprisonment, a $25,000 fine, or both, and a minimum of
 year’s imprisonment, and the state retained the charge of
using a weapon to commit a felony, a class iii felony.
Id. at 954-55, 720 n.W.2d at 423-24. like in State v. Pruett,
263 neb. 99, 638 n.W.2d 809 (2002), but in contrast with
Drinkwalter, davenport was convicted following a trial; thus, no
plea agreement was involved.
[2] as discussed above, the Pruett decision was released
well after davenport’s trial, direct appeal, and first postconvic-
tion proceeding. davenport’s argument recognizes that under
State v. Jones, 245 neb. 82, 55 n.W.2d 654 (994), overruled
on other grounds, State v. Burlison, 255 neb. 90, 583 n.W.2d
3 (998), there is no such crime as intentional manslaughter.
he then cites to the holding in Pruett and states that his “[t]rial/
[a]ppella[te] [c]ounsel failed to address this issue at trial or on
direct appeal.” brief for appellant at 5-6. although in Pruett
the supreme court extended to manslaughter the rationale of
State v. Ring, 233 neb. 720, 447 n.W.2d 908 (989), Ring did
not involve manslaughter. and although the decision in Ring
was available at the time of davenport’s trial, the Jones case had
0 	7 nebraska appellate reports

not been decided. in other words, at the time of davenport’s con-
victions, it was not clear that manslaughter was a purely unin-
tentional crime. the failure to anticipate a change in existing
law does not constitute ineffective assistance of counsel. State
v. Billups, 263 neb. 5, 64 n.W.2d 7 (2002). accordingly,
davenport’s trial counsel was not ineffective.
We also conclude that on direct appeal, davenport’s counsel
was not ineffective. as we noted above, the Jones decision was
released shortly after davenport’s counsel filed the appellate
brief containing the various assignments of error. nonetheless,
the significance of the Jones decision in relation to the Ring case
did not become manifest until the supreme court’s decision in
Pruett. the fact that the Pruett decision makes no mention of
Jones in determining that pruett’s manslaughter conviction could
not support the use of a weapon charge reinforces our conclu-
sion that davenport’s counsel was not ineffective in not linking
Jones to Ring. We cannot conclude that davenport’s appellate
counsel failed to perform at least as well as a criminal lawyer
with ordinary training and skill in the area.
finally, the doctrine of ineffective assistance of counsel has
no application to davenport’s first postconviction proceeding.
because davenport had the same counsel at trial as on direct
appeal, his initial postconviction proceeding was the first “real”
opportunity to raise ineffectiveness of counsel. although the
district court provided davenport with appointed counsel for the
appeal in his first postconviction proceeding, there is no consti-
tutional guarantee of effective assistance of counsel in a postcon-
viction action and therefore no claim for ineffective assistance
of postconviction counsel. see State v. Bao, 269 neb. 27, 690
n.W.2d 68 (2005).
Denial of Evidentiary Hearing.
[3,4] an evidentiary hearing on a motion for postconvic-
tion relief must be granted when the motion contains factual
allegations which, if proved, constitute an infringement of the
movant’s rights under the nebraska or federal constitution.
however, if the motion alleges only conclusions of fact or
law, or the records and files in the case affirmatively show that
the movant is entitled to no relief, no evidentiary hearing is
state v. davenport 	
cite as 7 neb. app. 

required. State v. Jim, 275 neb. 48, 747 n.W.2d 40 (2008).
although we considered davenport’s claims as though they
were not procedurally barred, we agree that the records and files
affirmatively show that davenport was not entitled to postcon-
viction relief. Where the record adequately demonstrates that the
decision of a trial court is correct, although such correctness is
based on a ground or reason different from that assigned by the
trial court, an appellate court will affirm. State v. Marshall, 269
neb. 56, 690 n.W.2d 593 (2005).
conclusion
We considered davenport’s claim based upon State v. Pruett,
263 neb. 99, 638 n.W.2d 809 (2002), even though it would
otherwise be procedurally barred. however, we conclude that he
failed to show that his trial or appellate counsel performed defi-
ciently. because the record affirmatively shows that davenport
was not entitled to postconviction relief, we affirm the dis-
trict court’s denial, without holding an evidentiary hearing, of
davenport’s second motion for postconviction relief.
affirMeD.
firSt N atioNal baNk of oMaha , appellee , v .
eDwiN e. elDriDGe , appellaNt .
756 n.W.2d 67
filed august 26, 2008. 	no. a-07-54.
. Summary Judgment. summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. in reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions of law independently of the trial court’s conclusions.
4. Records: Appeal and Error. it is incumbent upon the party appealing to present a
record which supports the errors assigned.
2 	7 nebraska appellate reports