State v. Sims

need 	to 	address 	whether 	his 	trial 	counsel’s 	performance
was deficient.24
CONCLUSION
Although communication between the trial judge and jurors
should always take place with the parties and their counsel
present (unless waived), the record before us does not affir-
matively show that the communication in this case warranted
a mistrial. Thus, Hudson failed to meet his burden of proving
that he was prejudiced by alleged ineffective assistance of
counsel. The judgment of the district court is affirmed.
A ffirmed.
24 See State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997), disapproved
on other grounds, State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
StAte of NebrASkA, Appellee , v.
michAel J. SimS, AppellANt.
761 N.W.2d 527
Filed February 20, 2009. 	No. S-08-432.
1. Postconviction. Whether a claim raised in a postconviction proceeding is proce-
durally barred is a question of law.
2. Judgments: Appeal and Error. When reviewing a question of law, an appellate
court reaches a conclusion independent of the lower court’s ruling.
3. Postconviction: Constitutional Law. The Nebraska Postconviction Act, Neb.
Rev. Stat. § 29-3001 et seq. (Reissue 2008), is available to a defendant to
show that his or her conviction was obtained in violation of his or her constitu-
tional rights.
4. Postconviction. The need for finality in the criminal process requires that a
defendant bring all claims for relief at the first opportunity.
5. Postconviction: Appeal and Error. An appellate court will not entertain a suc-
cessive 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.
6. Criminal Law: Judgments: Records. A court has inherent power in a criminal
case to correct its records to reflect the “truth,” nunc pro tunc.
7. Judgments. Neb. Rev. Stat. § 25-2001(3) (Reissue 2008) states that clerical mis-
takes in judgments, orders, or other parts of the record and errors therein arising
192 	277 NebRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

from oversight or omission may be corrected by the court by an order nunc pro
tunc at any time on the court’s initiative or on the motion of any party.
8. ____. The general rule that a judgment is no longer open to amendment, revi-
sion, modification, or correction after the term at which it was rendered does not
apply where the purpose is to correct or amend clerical or formal errors so as to
make the record entry speak the truth and show the judgment which was actually
rendered by the court.
9. Sentences: Time. A sentence validly imposed takes effect from the time it
is pronounced.
10. Sentences. When a valid sentence has been put into execution, the trial court
cannot modify, amend, or revise it in any way, either during or after the term or
session of court at which the sentence was imposed. Any attempt to do so is of
no effect, and the original sentence remains in force.
Appeal from the District Court for Douglas County: GAry
b. rANdAll, Judge. Affirmed in part, and in part reversed and
remanded with directions.
Michael J. Sims, pro se.
Jon bruning, Attorney General, and George R. Love for
appellee.
heAvicAN, 	c.J., 	WriGht, 	coNNolly, 	G errArd, 	StephAN,
mccormAck , and miller-lermAN, JJ.
miller-lermAN, J.
NATURe OF THe CASe
This case involves appeals by Michael J. Sims from two
different rulings which we have combined in one opinion. The
first ruling pertains to Sims’ second motion for postconviction
relief. The second ruling pertains to a sentence-related motion
for an order nunc pro tunc which Sims filed in his original
criminal case.
With respect to the second postconviction motion, the dis-
trict court for Douglas County denied Sims’ motion to alter
or amend the district court’s judgment which had denied his
second motion for postconviction relief. After a jury trial,
Sims was found guilty of the charges in a four-count infor-
mation: count I, murder in the first degree; count II, use of a
deadly weapon to commit a felony; count III, attempted mur-
der in the first degree; and count IV, use of a deadly weapon
STATe v. SIMS 	193
Cite as 277 Neb. 192

to commit a felony. This court affirmed the convictions in
State v. Sims, 258 Neb. 357, 603 N.W.2d 431 (1999) (Sims I).
This court also affirmed the denial of Sims’ first postconvic-
tion motion in State v. Sims, 272 Neb. 811, 725 N.W.2d 175
(2006) (Sims II). In his second postconviction motion, Sims
claims that he received ineffective assistance of counsel at
trial and on appeal and that there was insufficient evidence to
convict him.
In a separate motion filed in district court in the original
criminal case, Sims asked the district court for an order nunc
pro tunc to correct a discrepancy between the sentence that was
orally pronounced on count III, attempted murder, and the writ-
ten sentence on count III in a journal entry titled “Judgment
and Sentence.”
The district court denied both motions. Sims appeals each
of these rulings. We affirm the denial of relief related to Sims’
second postconviction motion, reverse the order denying his
motion for an order nunc pro tunc, and remand the cause
with directions.
STATeMeNT OF FACTS
After a jury trial, Sims was found guilty of murder in the first
degree, attempted murder in the first degree, and two counts of
use of a deadly weapon to commit a felony. On November
24, 1998, the district court for Douglas County pronounced
Sims’ sentences as life in prison for count I, murder; 10 to 12
years in prison for count II, use of a deadly weapon to com-
mit a felony; 10 to 25 years in prison for count III, attempted
murder; and 10 to 12 years in prison for count IV, use of
a deadly weapon to commit a felony. However, the written
journal entry titled “Judgment and Sentence” states that with
respect to count III, attempted murder, Sims was sentenced to
20 to 25 years in prison, rather than 10 to 25 years as had been
orally pronounced.
Sims appealed his convictions and sentences to this court.
On direct appeal in Sims I, Sims argued that the evidence was
insufficient to sustain his convictions, that the trial court erred
in not granting his motion for a new trial, and that it was plain
error for the trial court not to instruct the jury on self-defense
194 	277 NebRASkA RePORTS

or on uncorroborated accomplice testimony. Sims also argued
that he received ineffective assistance of trial counsel based
on his trial counsel’s failure to (1) move for discharge due
to alleged violations of his right to speedy trial under state
statutes and the state and federal Constitutions, (2) request a
jury instruction regarding uncorroborated accomplice testi-
mony, and (3) request a jury instruction on the issue of self-
defense. On direct appeal, Sims’ counsel was different from his
trial counsel.
In Sims I, this court determined that the record afforded
an insufficient basis upon which to resolve Sims’ claims of
ineffective assistance of trial counsel and declined to review
the issue on direct appeal. On the remaining claims, the court
affirmed Sims’ sentences and convictions.
After this court’s disposition in Sims I, Sims filed a verified
motion for postconviction relief alleging claims of ineffective
assistance of counsel. After holding an evidentiary hearing on
Sims’ claims, the district court denied Sims’ motion, conclud-
ing that Sims failed to show that his counsel’s performance was
constitutionally deficient.
In Sims II, Sims appealed the district court’s denial of his
first motion for postconviction relief to this court, and on
postconviction appeal, Sims claimed that his trial counsel was
ineffective for (1) failure to file a motion for discharge on
statutory and constitutional speedy trial grounds and (2) failure
to assert an objection under Doyle v. Ohio, 426 U.S. 610, 96 S.
Ct. 2240, 49 L. ed. 2d 91 (1976). He also claimed as error the
failure of the postconviction trial judge to recuse himself. In
Sims II, Sims did not argue a claim of ineffective assistance of
appellate counsel on direct appeal. In Sims II, this court upheld
the district court’s denial of Sims’ first motion for postconvic-
tion relief.
On April 2, 2007, Sims filed a petition for a writ of habeas
corpus in the U.S. District Court for the District of Nebraska.
Sims v. Houston, 562 F. Supp. 2d 1066 (D. Neb. 2008). In his
petition, Sims argued that he received ineffective assistance of
trial and appellate counsel. Id. On May 21, 2008, the federal
district court entered an order denying Sims’ petition, finding
that with the exception of his ineffective assistance of counsel
STATe v. SIMS 	195
Cite as 277 Neb. 192

claims based on his right to speedy trial, all of his claims
were procedurally defaulted because he did not exhaust his
remedies in state court prior to bringing the claims in his fed-
eral habeas action. Id. Furthermore, with respect to the speedy
trial claim, the federal district court concluded that Sims’ trial
counsel was not ineffective for seeking additional time to pre-
pare. Id.
On June 29, 2007, Sims filed a second motion for postcon-
viction relief in the district court for Douglas County. That
motion alleges that Sims’ trial counsel was ineffective on the
following grounds, which we quote:
[C]ounsel: (1) failed to object, motion to strike, motion
for mistrial, request curative instruction and preserve for
appellate review that trial court committed plain error
by reading instructions to jury prior to final argument;
(2) failed to object, motion to strike, motion for mistrial,
request curative instruction and preserve for appellate
review prosecutor’s variance to alternative theory that
[Sims] assisted perpetrator of crime of Murder in the First
Degree; (3) failed to object, motion to strike, request cura-
tive instruction and preserve for appellate review failure
to give adequate notice of alternative theory that [Sims]
only assisted perpetrator of crime of Murder in the First
Degree; (4) failed to object, request proper instruction,
and preserve for appellate review request that Instruction 5
instruct only as to what [Sims] was given adequate notice
to defend against; (5) failed to object, request correct
instruction, and preserve for appellate review request that
Jury Instruction 5 properly instruct on alternative theory
of aiding and abetting; (6) failed to object, request correct
instruction, and preserve for appellate review request that
Jury Instructions 5, 6, 7, and 8 include material elements
of aiding and abetting; (7) failed to object, request correct
instruction, and preserve for appellate review request that
Jury Instruction 14 include Intent is required to be an aider
and abettor; (8) failed to object, request correct instruc-
tion, and preserve for appellate review request that Jury
Instruction 14 include that Intent must be found beyond
a reasonable doubt; (9) failed to object and preserve for
196 	277 NebRASkA RePORTS

appellate review request Jury Instruction and definition on
Self-Defense; (10) failed to object and preserve for appel-
late review request Jury Instruction on Uncorroborated
Accomplice testimony; (11) failed to object and preserve
for appellate review request Verdict Form to allow Jury to
distinguish theory on which [it] found guilt.
Sims also argued that his appellate counsel, who was differ-
ent from his trial counsel, was ineffective on direct appeal for
failing to raise these same and similar issues and that there was
insufficient evidence presented at trial to convict him.
On March 21, 2007, in a separate filing filed in Sims’
original criminal case, Sims filed a motion for an order nunc
pro tunc asking the district court to correct the discrepancy
between the sentence of 10 to 25 years in prison for count III,
attempted murder, that was orally pronounced at sentencing
and the written journal entry that stated Sims was sentenced to
20 to 25 years in prison on count III.
With respect to Sims’ second motion for postconviction
relief, after conducting an evidentiary hearing, the district court
overruled the motion on November 8, 2007, finding that all the
issues raised by Sims were known to him at the time he filed
his first motion for postconviction relief and that he was there-
fore procedurally barred from raising these claims in a second
motion for postconviction relief. On November 15, Sims filed a
motion to alter or amend the district court’s judgment, and the
district court denied the motion on April 9, 2008.
With respect to Sims’ motion for an order nunc pro tunc,
after holding a hearing, the district court denied the motion on
April 9, 2008, stating only that “[t]he Court having reviewed
the pleadings and arguments finds that [Sims’] Motion for an
Order Nunc Pro Tunc is hereby denied.”
Sims appeals from these two separate orders.
ASSIGNMeNTS OF eRROR
Sims assigns as error, rephrased and summarized, that (1)
the district court erred by denying his motion to alter or amend
the judgment which had denied his second motion for post-
conviction relief and (2) the district court erred by denying his
motion for an order nunc pro tunc.
STATe v. SIMS 	197
Cite as 277 Neb. 192

STANDARDS OF ReVIeW
[1,2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. When reviewing a
question of law, an appellate court reaches a conclusion inde-
pendent of the lower court’s ruling. State v. Marshall, 272 Neb.
924, 725 N.W.2d 834 (2007); State v. Schnabel, 260 Neb. 618,
618 N.W.2d 699 (2000).
ANALYSIS
Sims’ Successive Motion for Postconviction
Relief Is Procedurally Barred.
The first aspect of the appeal before us pertains to the
denial of Sims’ motion to alter or amend the judgment deny-
ing postconviction relief. We have previously determined that
a motion to alter or amend a postconviction judgment is an
appropriate motion, that the filing of the motion terminates
the time for filing a notice of appeal under Neb. Rev. Stat.
§ 25-1912(3) (Reissue 2008), and that a new period of 30 days
for filing a notice of appeal commences when the motion is
ordered dismissed. State v. Bao, 269 Neb. 127, 690 N.W.2d
618 (2005).
[3-5] The Nebraska Postconviction Act, Neb. Rev. Stat.
§ 29-3001 et seq. (Reissue 2008), is available to a defendant
to show that his or her conviction was obtained in violation
of his or her constitutional rights. State v. Marshall, supra.
However, the need for finality in the criminal process requires
that a defendant bring all claims for relief at the first oppor-
tunity. Id. Therefore, 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. Id.
In the instant case, the allegations in Sims’ second motion
for postconviction relief involve ineffective assistance of coun-
sel claims against his trial and appellate counsel as well as
Sims’ claim that there was insufficient evidence to convict him.
Sims previously raised, and this court rejected on direct appeal,
Sims’ claim that there was insufficient evidence to convict him.
Further, Sims’ claims of ineffective assistance of counsel were
198 	277 NebRASkA RePORTS

known or knowable to Sims at the time of his direct appeal
and his first motion for postconviction relief. Sims attempts to
excuse his failure to raise his ineffective assistance of counsel
claims in his prior postconviction motion by arguing that his
postconviction counsel was ineffective for failing to raise these
claims. However, we have held that there is no constitutional
guarantee to effective assistance of counsel in a postconviction
action, and therefore, Sims’ claim of ineffective assistance of
postconviction counsel is unavailing. State v. Deckard, 272
Neb. 410, 722 N.W.2d 55 (2006).
Sims further attempts to excuse his failure to raise the inef-
fective assistance of counsel claims in his first postconviction
motion by arguing that he could not raise the claims in his first
motion because he is not trained in the law. We have addressed
a similar claim in State v. Parmar, 263 Neb. 213, 221-22, 639
N.W.2d 105, 112 (2002), stating:
Although [the movant] argues that he appeared pro se in
the [first] postconviction proceeding, this is of no avail
because . . . there is no absolute requirement of appoint-
ment of counsel in postconviction cases, and the defend-
ant has the right of self-representation. A pro se party
is held to the same standards as one who is represented
by counsel.
Therefore, Sims’ attempts to excuse his failure to raise his inef-
fective assistance of counsel claims in his previous motion are
without merit. These claims were known or knowable to Sims
in the previous proceedings, and he had an opportunity to raise
them and failed to do so. because Sims has not affirmatively
shown on the face of his motion that the grounds for relief
raised in his second motion for postconviction relief could
not have been asserted at the time he filed his prior motion,
his claims were properly rejected by the district court and the
denial of his motion to alter or amend the judgment on this
basis is affirmed.
The District Court Erred by Denying Sims’
Motion for an Order Nunc Pro Tunc.
The second aspect of the appeal before us pertains to the dis-
trict court’s denial of Sims’ motion for an order nunc pro tunc.
STATe v. SIMS 	199
Cite as 277 Neb. 192

In that motion, Sims asked the district court to correct a dis-
crepancy between the sentence orally pronounced at sentencing
and the sentence written in the journal entry. At sentencing,
the district court orally sentenced Sims on count III, attempted
murder, to 10 to 25 years in prison, whereas the written journal
entry states that Sims was sentenced to 20 to 25 years in prison
for count III. The State acknowledges that there is a discrep-
ancy between the orally pronounced sentence and the written
journal entry. We agree with Sims that his motion for an order
nunc pro tunc should have been granted, and we reverse, and
remand with directions.
In addressing Sims’ motion for an order nunc pro tunc, the
district court denied the motion without discussing its reason-
ing. We note, however, that a review of the bill of exceptions
from the hearing on the motion for an order nunc pro tunc
reveals that the district court’s main issue with the motion was
the court’s concern that the motion may not have been timely,
because Sims filed the motion in his criminal case after the
completion of his direct appeal. After expressing this concern,
the district court went on to state, “[A]s a practical matter, I
don’t see that it makes a difference, and I wouldn’t object to
making the change if after I reviewed the documents I believe
that your argument was correct.”
[6,7] The parties agree, and the record shows, that a sentenc-
ing error occurred. A court has inherent power in a criminal
case to correct its records to reflect the “truth,” nunc pro tunc.
State v. Kortum, 176 Neb. 108, 110, 125 N.W.2d 196, 199
(1963). Neb. Rev. Stat. § 25-2001(3) (Reissue 2008) states that
“[c]lerical mistakes in judgments, orders, or other parts of the
record and errors therein arising from oversight or omission
may be corrected by the court by an order nunc pro tunc at any
time on the court’s initiative or on the motion of any party . .
. .” We have previously explained:
[T]he office of an order nunc pro tunc is to correct a
record which has been made so that it will truly record
the action had, which through inadvertence or mistake
was not truly recorded. It is not the function of an order
nunc pro tunc to change or revise a judgment or order,
or to set aside a judgment actually rendered, or to render
200 	277 NebRASkA RePORTS

an order different from the one actually rendered, even
though such order was not the order intended.
Continental Oil Co. v. Harris, 214 Neb. 422, 424, 333 N.W.2d
921, 923 (1983).
[8] We have applied the nunc pro tunc procedure in sentenc-
ing cases. See, State v. Kortum, supra; State v. Ziemann, 14
Neb. App. 117, 130, 705 N.W.2d 59, 70 (2005) (citing Kortum
for the proposition that “[i]t is clear that a criminal sentence
can be corrected by an order nunc pro tunc”). This court has
also held that the general rule that a judgment is no longer
open to amendment, revision, modification, or correction after
the term at which it was rendered does not apply where the
purpose is to correct or amend clerical or formal errors so as
to make the record entry speak the truth and show the judg-
ment which was actually rendered by the court. Middle Loup
P. P. & I. D. v. Loup River P. P. D., 149 Neb. 810, 32 N.W.2d
874 (1948) (Yeager, J., dissenting; Paine, J., joins). The district
court’s concern regarding the timeliness of Sims’ motion was
not warranted.
[9,10] When determining if the sentencing error in this case
should be corrected by an order nunc pro tunc, it is necessary
to determine which sentence is legally enforceable. We have
held that when the sentence orally pronounced at sentencing
differs from a later written sentence, the former prevails. See
State v. Schnabel, 260 Neb. 618, 618 N.W.2d 699 (2000). In
Schnabel, we explained that a sentence validly imposed takes
effect from the time it is pronounced. When a valid sentence
has been put into execution, the trial court cannot modify,
amend, or revise it in any way, either during or after the term
or session of court at which the sentence was imposed. Id.
Any attempt to do so is of no effect, and the original sentence
remains in force. Id. Therefore, in this case, the sentence on
count III, orally pronounced as 10 to 25 years in prison, was
within the statutory range and was valid at the time it was pro-
nounced, and the written journal entry stating that Sims was
sentenced to 20 to 25 years in prison on count III was errone-
ous and of no legal effect.
Looking at the record before this court, it appears that the
erroneous written sentence was the result of a clerical mistake
STATe v. SIMS 	201
Cite as 277 Neb. 192

that occurred when the journal entry was created. The correc-
tion of the journal entry would not revise or alter a judgment
entered; rather, it would correct the record to accurately state
the judgment entered.
The State does not clearly object to this court’s acting to
correct the sentence. However, the State argues that because
Sims was sentenced to life in prison for his conviction on count
I, the first degree murder charge, any error in the duration of
his sentence for the conviction on count III, attempted murder,
is of no consequence. In this regard, we note that we are aware
that Sims has received a life sentence on count I. However, it
is possible that the Nebraska board of Pardons could commute
the life sentence on count I to a term of years, in which case
the sentence on count III could become relevant. See State
v. Marrs, 272 Neb. 573, 723 N.W.2d 499 (2006) (discussing
statutory authority for commuting sentences). We are not per-
suaded by the State’s argument.
It is important to note that the “purpose of [an order nunc
pro tunc] is to correct the record which has been made,
so that it will truly record the action really had, but which
through some inadvertence or mistake has not been truly
recorded.” Calloway v. Doty, 108 Neb. 319, 322, 188 N.W.
104, 105 (1922). Therefore, even if correcting the erroneous
journal entry proves to have no practical effect, it ensures
the integrity of the system and the accuracy of the record of
the court.
Given the discrepancy between the orally pronounced sen-
tence on count III and the written entry relating thereto, we
conclude that the orally pronounced sentence is controlling and
that Sims’ motion for an order nunc pro tunc correcting the
erroneous written entry should have been granted. The district
court’s denial should be and is hereby reversed, and the cause
is remanded with directions to correct the written entry.
CONCLUSION
The district court did not err when it determined that
Sims’ second motion for postconviction relief was procedur-
ally barred. We therefore affirm the district court’s denial of
Sims’ motion to alter or amend the judgment on this basis. The
202 	277 NebRASkA RePORTS

district court did err by denying Sims’ separate motion for an
order nunc pro tunc filed in his original criminal case, because
the sentencing term for the conviction on count III, attempted
murder, set forth in the written journal entry titled “Judgment
and Sentence,” was inconsistent with the sentence orally pro-
nounced by the district court. The ruling denying Sims’ motion
for an order nunc pro tunc is reversed. The cause is remanded
to the district court with directions to the district court to enter
an order nunc pro tunc directing the clerk of the court to cor-
rect the journal entry to state a sentence on count III of 10 to
25 years in prison that is consistent with the sentence orally
pronounced on November 24, 1998.
A ffirmed iN pArt, ANd iN pArt reverSed
ANd remANded With directioNS.
STATe v. SIMS 	203
Cite as 277 Neb. 192