State v. Rhodes

State of NebraSka , appellee , v.
keNNeth rhodeS, appellaNt.
761 N.W.2d 907
Filed March 6, 2009. 	No. S-07-1198.
1. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of
ineffective assistance of counsel is a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. With regard to the questions
of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), an appellate court reviews such legal determinations indepen-
dently of the lower court’s decision.
2. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order
to establish a right to postconviction relief based on a claim of ineffective assist-
ance of counsel at trial or on direct appeal, the defendant has the burden, in
accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), to show that counsel’s performance was deficient; that is,
counsel’s performance did not equal that of a lawyer with ordinary training and
skill in criminal law in the area. Next, the defendant must show that counsel’s
deficient performance prejudiced the defense in his or her case. In order to show
prejudice, the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have been
different. The two prongs of this test, deficient performance and prejudice, may
be addressed in either order.
3. Effectiveness of Counsel: Presumptions. In determining whether a trial coun-
sel’s performance was deficient, there is a strong presumption that such counsel
acted reasonably.
4. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court will not second-guess reasonable
strategic decisions by counsel.
5. Postconviction: Effectiveness of Counsel: Appeal and Error. Although a
motion for postconviction relief cannot be used to secure review of issues which
were or could have been litigated on direct appeal, when a defendant was repre-
sented both at trial and on direct appeal by the same lawyer, the defendant’s first
opportunity to assert ineffective assistance of counsel is in a motion for postcon-
viction relief.
6. Attorney and Client: Trial: Testimony: Waiver. A defendant who has been
fully informed of the right to testify may not acquiesce in his or her counsel’s
advice that he or she not testify, and then later claim that he or she did not volun-
tarily waive such right.
Appeal from the District Court for Hall County: JameS d.
liviNgStoN, Judge. Affirmed.
316 	277 NEbrASkA rEporTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

James r. Mowbray and robert W. kortus, of Nebraska
Commission on public Advocacy, for appellant.
Jon bruning, Attorney General, and kimberly A. klein for
appellee.
heavicaN, 	c.J., 	Wright, 	coNNolly, 	gerrard, 	StephaN,
mccormack , and miller-lermaN, JJ.
heavicaN, c.J.
INTroDUCTIoN
kenneth rhodes was convicted in 1998 of possession of
a firearm by a felon and found to be a habitual criminal.
He was sentenced to 40 to 60 years’ imprisonment. rhodes
sought postconviction relief. Following an evidentiary hearing,
rhodes’ request was denied. He appeals. We affirm the district
court’s denial of postconviction relief.
FACTUAL bACkGroUND
on December 31, 1997, officers with the Grand Island
police Department initiated a traffic stop of the vehicle which
rhodes was operating. A subsequent search uncovered a shot-
gun wrapped in a towel in the back seat of rhodes’ vehicle.
Further investigation revealed that rhodes was a felon; in addi-
tion, law enforcement believed that rhodes’ operator’s license
had been suspended and that rhodes had been operating the
vehicle while under the influence of drugs or alcohol.
An amended information was filed against rhodes on April
17, 1998, charging him with one count of possession of a
firearm by a felon; driving under the influence (DUI), first
offense; driving during suspension (DUS), second offense; and
being a habitual criminal. Following a bench trial held on July
27, rhodes was found guilty of being a felon in possession
of a firearm and not guilty of the DUI and DUS charges. The
habitual criminal charge was deferred pending an enhance-
ment hearing.
At the enhancement hearing, evidence of prior felony con-
victions was introduced: convictions in 1977 for first degree
sexual assault and sodomy, and a conviction in 1988 for
attempted first degree sexual assault. rhodes was found to be
STATE v. rHoDES 	317
Cite as 277 Neb. 316

a habitual criminal and was subsequently sentenced to 40 to
60 years’ imprisonment. on appeal, in case No. A-98-1142,
rhodes’ conviction and sentence were affirmed in a memoran-
dum opinion filed on June 2, 1999, by the Nebraska Court of
Appeals. rhodes filed a petition for further review, which was
denied. rhodes was represented by the Hall County public
defender’s office at trial and on direct appeal.
rhodes sought postconviction relief in 2004. He filed a pro
se petition, but was later appointed counsel. Counsel filed an
amended and a second amended petition. An evidentiary hear-
ing was granted. Following that hearing, postconviction relief
was denied. rhodes appeals that denial.
ASSIGNMENTS oF Error
on appeal, rhodes assigns, restated, that the district court
erred in not granting him postconviction relief. In particular,
rhodes alleges the district court erred by not finding that his
trial counsel was ineffective for failing to (1) ascertain rhodes’
mental status and competency for trial and sentencing; (2) make
plea counteroffers; (3) adequately advise rhodes of his right to
testify; and (4) address constitutional, statutory, and decisional
authority which would have prevented the use of rhodes’ prior
felonies both in support of the underlying charges of posses-
sion of a firearm by a felon and as enhancement for the charge
of being a habitual criminal.
STANDArD oF rEVIEW
[1] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact.1 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.2 With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington,3 an appellate court
1 State v. Lopez, 274 Neb. 756, 743 N.W.2d 351 (2008).
2 Id.
3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
318 	277 NEbrASkA rEporTS

reviews such legal determinations independently of the lower
court’s decision.4
ANALYSIS
[2] on appeal, rhodes assigns as error that the district court
failed to find his trial counsel was ineffective in several par-
ticulars. In order to establish a right to postconviction relief
based on a claim of ineffective assistance of counsel at trial or
on direct appeal, the defendant has the burden, in accordance
with Strickland,5 to show that counsel’s performance was defi-
cient; that is, counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law in the
area.6 Next, the defendant must show that counsel’s deficient
performance prejudiced the defense in his or her case.7 In order
to show prejudice, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different.8 The
two prongs of this test, deficient performance and prejudice,
may be addressed in either order.
[3,4] In determining whether a trial counsel’s performance
was deficient, there is a strong presumption that such coun-
sel acted reasonably.9 When reviewing a claim of ineffective
assistance of counsel, an appellate court will not second-guess
reasonable strategic decisions by counsel.10
[5] before addressing the specific arguments rhodes makes
on appeal, we note that the issues raised are not procedurally
barred. Although a motion for postconviction relief cannot be
used to secure review of issues which were or could have been
litigated on direct appeal,11 when a defendant was represented
4 State v. Lopez, supra note 1.
5 Strickland v. Washington, supra note 3.
6 State v. Lopez, supra note 1.
7 Id.
8 Id.
9 Id.
10 Id.
11 State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).
STATE v. rHoDES 	319
Cite as 277 Neb. 316

both at trial and on direct appeal by the same lawyer, the
defendant’s first opportunity to assert ineffective assistance of
counsel is in a motion for postconviction relief.12
Failure to Ascertain Competency
for Trial and Sentencing.
In his first assignment of error, rhodes argues he received
ineffective assistance of counsel when his trial counsel failed
to ascertain whether he was competent for trial and again
for sentencing.
A review of the record in this case indicates rhodes had
a history of drug abuse prior to his arrest. once in custody,
rhodes was prescribed “amitriptyline.” Though not entirely
clear from the record, rhodes was apparently released on bond
in February 1998. on May 21, the day set for trial, rhodes
attempted to commit suicide by drug overdose.
Following his suicide attempt, rhodes was hospitalized and
then returned to custody. Upon his return to custody, rhodes
was again prescribed medication. According to rhodes’ testi-
mony, he was not taking all of this medication, as he was
“hoarding” it for a second suicide attempt.
A bench trial was held on July 27, 1998, and rhodes was
found guilty of being a felon in possession of a weapon and
not guilty of DUI and DUS. on August 13, rhodes was found
to be a habitual criminal. Sentencing was set for September 22,
but was continued to october 13, apparently at trial counsel’s
request due to rhodes’ “medical condition.”
on September 24 and 27 and october 4, 1998, rhodes
wrote letters to the district court suggesting that because of
the medication he was taking, he had no memory of his trial.
rhodes was eventually sentenced on october 13. Just prior to
sentencing, the district court brought rhodes’ letters to trial
counsel’s attention; there is no indication from the record
that counsel discussed the letters with rhodes in court prior
to sentencing.
We first address rhodes’ allegation that counsel failed to
ascertain his competency at the time of trial. It is undisputed
12 Id.
320 	277 NEbrASkA rEporTS

that 	there 	is 	evidence 	rhodes 	had 	mental 	health 	issues
preceding trial. In particular, rhodes attempted suicide just
prior to trial. In addition, rhodes’ sister testified that while
rhodes was in jail, “he was more rational” than after he was
released on bond. She testified that after rhodes was released
on bond, rhodes was “different” and “way out there at times
where [she] didn’t even know what he was ta[l]king about.” of
course, it was while released on bond that rhodes made his
suicide attempt.
but in addition to the testimony of rhodes’ sister, the record
also includes the testimony of trial counsel. According to coun-
sel, he had represented rhodes on a number of charges over a
period of about 10 years and believed he had a good “rapport”
with rhodes. The record shows that while counsel did not visit
rhodes while rhodes was hospitalized, counsel did have con-
tact with rhodes between the suicide attempt and trial. Counsel
testified that he had no reason to believe rhodes was not com-
petent to stand trial and that rhodes’ actions were consistent
with counsel’s history with rhodes. Counsel testified that he
believed rhodes “would respond like kenneth rhodes” and “in
what I would consider to be sane answers for a person of his
social history.”
The district court specifically found that trial counsel “had
no indication in his dealings with [rhodes] that [rhodes] did
not understand.” This finding is supported by the record and is
not clearly erroneous. We therefore conclude that rhodes has
failed to meet his burden of showing that counsel was deficient
for failing to ascertain rhodes’ competency for trial.
rhodes also contends that trial counsel was ineffective for
failing to ascertain his competency prior to sentencing. In sup-
port of this contention, rhodes points to the letters he wrote to
the district court between trial and sentencing which suggest
that rhodes did not recall his trial or conviction. rhodes argues
that counsel’s failure to address these letters with him prior to
sentencing was deficient performance. besides rhodes’ deposi-
tion testimony, these three letters are the sole evidence suggest-
ing that rhodes was incompetent at the time of sentencing.
The district court addressed rhodes’ contention that he was
incompetent at sentencing and found rhodes “has indicated
STATE v. rHoDES 	321
Cite as 277 Neb. 316

that he understood what was transpiring through going up to
and through the trial of the matter and to the time of sentence.”
The district court noted it believed rhodes’ claim, coming only
after conviction, was “self-serving.” We find no clear error
in this finding. We therefore conclude that rhodes has also
failed to meet his burden of showing that counsel was defi-
cient for failing to ascertain rhodes’ competency at the time
of sentencing.
Thus, rhodes has failed to meet his burden to show that trial
counsel was deficient for failing to ascertain rhodes’ compe-
tency at trial and at sentencing. rhodes’ first assignment of
error is without merit.
Failure to Pursue Plea Agreement.
In his second assignment of error, rhodes contends he
received ineffective assistance of counsel when counsel failed
to inform rhodes that he had the ability to present counter-
offers in response to the State’s plea offers.
As an initial matter, there is a dispute as to the correct stan-
dard to apply in cases involving plea negotiations. The State
relies upon the two-part test set forth in Strickland and con-
tends that in order to show rhodes is entitled to postconviction
relief, he must show that but for his counsel’s errors, the result
of the plea negotiation process would be different.
on the other hand, rhodes argues that he must show evi-
dence that (1) for nonstrategic reasons, his or her attorney
ignored a request to pursue a plea agreement and (2) the
prosecution would have cooperated with the plea or had some
reason to cooperate with the plea. This was the test stated by
the district court; however, rhodes argues that the district court
failed to consider whether the State had reason to cooperate
with the plea. In support of this standard, rhodes relies upon
Lipson v. U.S.13 and Brown v. Doe.14
We have reviewed Lipson and Doe and are not persuaded
that either case sets forth a standard different from the standard
13 Lipson v. U.S., 233 F.3d 942 (7th Cir. 2000).
14 Brown v. Doe, 2 F.3d 1236 (2d Cir 1993).
322 	277 NEbrASkA rEporTS

enunciated in Strickland for ineffective assistance claims. We
further note that the test set forth in Strickland is applicable to
claims for the ineffective assistance of counsel when the defend-
ant was convicted following a trial. And the U.S. Supreme
Court in Hill v. Lockhart15 extended Strickland to challenges to
guilty pleas based upon ineffective assistance of counsel. We
can conceive of no reason to apply a different standard to the
ineffective assistance of counsel claim presented by this case.
We therefore apply Strickland to rhodes’ claim that his trial
counsel was ineffective because he did not inform rhodes that
rhodes could propose counteroffers to the State’s plea offers.
We now turn to that claim.
At his deposition, rhodes testified that he was unaware
he could make offers or counteroffers to the State’s plea
offers. However, rhodes also testified that he asked counsel
to communicate an offer to the State. Given the nature of that
offer—that the State release rhodes for 5 to 7 days prior to
sentencing—counsel informed rhodes that the offer was “far-
fetched,” and, indeed, it is unclear whether the offer was even
communicated to the State. We nevertheless conclude that the
fact that rhodes requested such an offer be made is a clear
indication that rhodes was aware he could make offers and
counteroffers to the State.
rhodes suggested his own counteroffer and therefore could
not have been prejudiced by any failure of trial counsel to
inform him that such offers could be made. There is no indica-
tion from the record that had trial counsel informed rhodes
of this right, the results of the plea negotiation process would
have been different. rhodes has therefore failed to meet his
burden of showing he was prejudiced by any alleged deficiency
in his counsel’s performance. rhodes’ second assignment of
error is without merit.
Failure to Inform Rhodes of Right to Testify.
In his third assignment of error, rhodes asserts that he
received ineffective assistance of counsel when his counsel
15 Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).
STATE v. rHoDES 	323
Cite as 277 Neb. 316

failed to inform rhodes of rhodes’ right to testify in his own
behalf. rhodes contends he was not informed of his right to
testify at his motion to suppress, nor was he informed he had
the right to testify at trial.
We turn first to rhodes’ allegation that he was not informed
he had the right to testify at trial. The district court’s order
specifically noted that the record was replete with references
to the strategic reasons as to why rhodes did not testify and
that the matter was discussed with rhodes. our review of the
record indicates that this finding was not clearly erroneous.
Counsel testified at his deposition that he did not have any spe-
cific recollection of discussing with rhodes the right to testify,
but that as a general practice, he would have discussed it twice:
initially, when all other rights were explained to rhodes and,
again, around the time of trial, when making a determination
as to whether rhodes would testify. More importantly, at his
deposition, rhodes testified repeatedly that he was aware he
could testify and that he had discussed with counsel whether
he should testify.
[6] A defendant who has been fully informed of the right to
testify may not acquiesce in his or her counsel’s advice that he
or she not testify, and then later claim that he or she did not
voluntarily waive such right.16 A review of the record shows
that rhodes was informed of his right to testify and acquiesced
to counsel’s advice that he should not testify. We therefore
conclude that rhodes has not met his burden of showing trial
counsel’s performance was deficient with respect to rhodes’
allegation regarding his right to testify at trial.
We next address rhodes’ allegation that he was not informed
he had the right to testify at the hearing on his motion to sup-
press. rhodes contends that had he known that he could testify
at this hearing, he would have testified that
he used arm signals to signal his turn; that the tempera-
ture was cold and clothing he wore was not appropriate
for that cold weather (undercutting testimony of law
enforcement about [his] behavior); the slope of the road
where the car was parked and how that would have
16 See Lema v. U.S., 987 F.2d 48 (1st Cir. 1993).
324 	277 NEbrASkA rEporTS

effected [sic] whether the door was open; and that he . . .
was not Mirandized.17
Assuming, but not deciding, that counsel’s performance was
deficient, we nevertheless conclude rhodes was not prejudiced
by that performance with regard to rhodes’ right to testify at
the hearing on his motion to suppress. First, rhodes asserts
he could have testified that he signaled his turn with an arm
signal. However, such evidence was presented at the suppres-
sion hearing through the testimony of rhodes’ passenger.
rhodes was not prejudiced by his inability to testify to this
point where the evidence was nevertheless presented to the
district court.
rhodes also contends that he would have testified regarding
the temperature and his attire at the time of the stop. rhodes’
proposed testimony is apparently aimed at testimony by the
officers that rhodes was “unsteady on his feet”; appeared
“fidgety”; and was, in the officers’ estimations, under the influ-
ence of drugs or alcohol. However, following trial, rhodes was
acquitted of the DUI charge. He could not have been preju-
diced by his inability to rebut the officers’ testimonies regard-
ing whether he was under the influence when in fact he was
found not guilty of such charge. We also note that one officer
testified on both direct and cross-examination that the weather
at the time of the stop was cold; therefore, this evidence was
nevertheless presented to the district court.
Next, rhodes argues he could have testified that the vehicle
was parked on an incline during the stop. Apparently, this testi-
mony would have been aimed at rebutting the testimony of one
officer that the driver’s-side door was open at the time that he,
the officer, identified the shotgun on the floor behind the front
driver and passenger seats. rhodes apparently contends this
was not so, because he had closed the door upon exiting the
vehicle and because the slope of the road would have made the
door shut automatically. However, rhodes does not explain,
nor can we conceive of, what effect this would have had on the
ultimate outcome of the suppression hearing. As such, rhodes
17 brief for appellant at 24.
STATE v. rHoDES 	325
Cite as 277 Neb. 316

has again failed to establish how he was prejudiced by the fact
that he did not testify.
Finally, rhodes argues he would have testified that he
was not given any Miranda warnings. but rhodes’ motion
to suppress any statements taken in violation of Miranda
was sustained, and no such statements were introduced into
evidence. Thus, rhodes suffered no prejudice by the lack of
his testimony at the suppression hearing regarding his lack of
Miranda warnings.
For the foregoing reasons, we conclude that rhodes was not
prejudiced by his counsel’s alleged failure to inform rhodes of
his right to testify at his suppression hearing. In addition, we
conclude that rhodes and his counsel discussed rhodes’ right
to testify at trial and that rhodes acquiesced in counsel’s opin-
ion that he should not testify. As such, counsel’s performance
on this point was not deficient. rhodes’ third assignment of
error is without merit.
Failure to Address Authority Regarding
Use of Rhodes’ Prior Felonies.
Finally, in his fourth assignment of error, rhodes argues
his counsel was ineffective for failing to argue that the use
of one of his prior felonies to support both his underlying
charge of being a felon in possession of a firearm and his
habitual criminal enhancement was a violation of the Double
Jeopardy and Due process Clauses of the Nebraska and
U.S. Constitutions.
A review of the record indicates that at trial, the State intro-
duced evidence of rhodes’ 1988 attempted first degree sexual
assault conviction in order to prove rhodes was a felon and
guilty of being a felon in possession of a firearm in violation
of Neb. rev. Stat. § 28-1206(1) (reissue 2008). Then, after
rhodes was found guilty, the State introduced that same prior
conviction at the enhancement hearing on the habitual criminal
charge, as well as rhodes’ 1977 convictions for first degree
sexual assault and sodomy. rhodes contends that the use of
the 1988 conviction both to prove the underlying charge and to
enhance his sentence was a violation of double jeopardy and
due process.
326 	277 NEbrASkA rEporTS

This court has recently considered this issue. In State v.
Ramirez,18 we held that using the same offense both to establish
the defendant’s status as a felon and to enhance that defend-
ant’s sentence was not a violation of double jeopardy. rhodes
concedes that Ramirez is on point, but asks us to reconsider
that decision. In support of this argument, rhodes contends this
court’s decision in Ramirez implicitly acknowledged that there
is an ambiguity in the underlying statutes and that the rule of
lenity requires such ambiguity to be decided in rhodes’ favor.
However, in Ramirez, we addressed and rejected the argument
that the underlying statutes were ambiguous and specifically
addressed the rule of lenity in that context. We therefore
decline rhodes’ invitation to revisit Ramirez.
because the use of the same felony both to establish rhodes’
status as a felon and to enhance his sentence was permissible,
rhodes’ sentence was lawful. Accordingly, we conclude that
rhodes has not met his burden of showing he was prejudiced
by his counsel’s failure to object to the use of the same convic-
tion for both purposes. rhodes’ fourth and final assignment is
without merit.
CoNCLUSIoN
The judgment of the district court denying rhodes’ motion
for postconviction relief is affirmed.
affirmed.
18 State v. Ramirez, supra note 11.
STATE v. bAbbITT 	327
Cite as 277 Neb. 327
State of NebraSka , appellee , v.
aNthoNy babbitt, appellaNt.
762 N.W.2d 58
Filed March 6, 2009. 	No. S-08-498.
1. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact.