State v. Glover

State of NebraSka , appellee , v.
M ichael J. G lover , appellaNt.
774 N.W.2d 248
Filed October 30, 2009. 	No. S-09-156.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
3. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective 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 perform-
ance 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 independently of the lower
court’s decision.
4. 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.
5. 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.
6. Postconviction: Pleas: Waiver: Effectiveness of Counsel. Normally, a voluntary
guilty plea waives all defenses to a criminal charge, but in a postconviction action
brought by a defendant convicted as a result of a guilty plea, a court will consider
an allegation that the plea was the result of ineffective assistance of counsel.
7. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is
based upon a guilty plea, the prejudice requirement for an ineffective assistance
of counsel claim is satisfied if the defendant shows a reasonable probability that
but for the errors of counsel, the defendant would have insisted on going to trial
rather than pleading guilty.
Appeal from the District Court for Douglas County: G reGory
M. Schatz, Judge. Affirmed.
STATE v. gLOvEr 	795
Cite as 278 Neb. 795
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

Thomas J. garvey for appellant.
Jon Bruning, Attorney general, James D. Smith, and Katie
L. Benson, Special Assistant Attorney general, for appellee.
heavicaN, 	c.J., 	WriGht, 	coNNolly, 	G errard, 	StephaN,
MccorMack, and M iller-lerMaN, JJ.
heavicaN, C.J.
INTrODUCTION
Michael J. glover appeals the denial of his motion for post-
conviction relief after an evidentiary hearing in the Douglas
County District Court. This is the second appeal resulting from
glover’s motion for postconviction relief. We affirm the deci-
sion of the district court.
BACKgrOUND
In 2003, glover was charged with first degree murder and
use of a deadly weapon to commit a felony. glover pled no
contest to second degree murder, use of a deadly weapon to
commit a felony, and robbery. glover was sentenced to 40
years’ to life imprisonment for the second degree murder con-
viction; 10 to 20 years’ imprisonment for the use of a deadly
weapon conviction, to run consecutively to his first sentence;
and 15 to 20 years’ imprisonment for the robbery conviction, to
run concurrently with his first sentence. The trial court granted
glover credit for time served.
glover had the same counsel for both his trial and direct
appeal. Because he pled no contest, on direct appeal, glover
was limited to an excessive sentences claim. In case No.
S-05-528, on August 31, 2005, we granted the State’s motion
for summary affirmance. glover filed for postconviction relief.
In that motion, glover alleged that his trial counsel was inef-
fective for failing to obtain or investigate a recantation state-
ment that his codefendant had made before glover entered the
no contest pleas. glover’s codefendant, Damien Watkins, pled
guilty to second degree murder and agreed to testify against
glover. Shortly before glover’s trial was scheduled to take
place, Watkins claimed in his recantation that he and glover
had taken credit for the robbery and murder for purposes of
796 	278 NEBrASKA rEpOrTS

notoriety, but had not actually committed the crimes. glover
claimed that his trial counsel did not properly investigate
Watkins’ recantation.
glover also claimed trial counsel was ineffective in several
other respects. glover claimed that his trial counsel failed to
investigate gunshot residue or blood spatter evidence which
would prove Watkins was the shooter. Furthermore, glover
claimed that his trial counsel failed to advise him of the mini-
mum penalties and that his trial counsel failed to withdraw
glover’s no contest pleas.
In connection with the postconviction motion, the State
deposed glover’s trial counsel. Trial counsel stated that he
investigated Watkins’ recantation, but that glover had admit-
ted to being at the scene of the murder and that no helpful
fingerprint or DNA evidence existed. Trial counsel also stated
that he had advised glover of the minimum and maximum
penalties for his offenses and that glover had never asked to
withdraw his no contest pleas. The trial court accepted the
deposition of glover’s trial counsel into evidence, then denied
glover’s motion for postconviction relief without an eviden-
tiary hearing.
glover appealed that denial, and we addressed his arguments
in State v. Glover.1 We found that the trial court erred when it
accepted the deposition of the trial attorney without holding
an evidentiary hearing. We then remanded the cause to the
trial court for an evidentiary hearing. The evidentiary hearing
was held January 7 and 12, 2009, after which the district court
denied glover’s motion for postconviction relief. glover now
appeals that denial.
ASSIgNMENTS OF ErrOr
glover assigns, restated and consolidated, that (1) the dis-
trict court erred in denying him an evidentiary hearing on his
motion for postconviction relief and (2) his trial counsel was
ineffective, causing his plea to not be knowingly, voluntarily,
and intelligently entered.
1 State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).
STATE v. gLOvEr 	797
Cite as 278 Neb. 795

STANDArD OF rEvIEW
[1-3] A defendant requesting postconviction relief must
establish the basis for such relief, and the findings of the
district court will not be disturbed unless they are clearly
erroneous.2 A claim that defense counsel provided ineffec-
tive assistance presents a mixed question of law and fact.3
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,4 an appel-
late court reviews such legal determinations independently of
the lower court’s decision.5
ANALYSIS
glover’s first assignment of error is without merit because
he received an evidentiary hearing after we remanded his
motion for postconviction relief back to the district court.6
We therefore turn to glover’s assignment that his trial counsel
was ineffective.
[4,5] 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, 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. 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 reason-
able 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
2 State v. Caddy, 262 Neb. 38, 628 N.W.2d 251 (2001).
3 State v. Hudson, 277 Neb. 182, 761 N.W.2d 536 (2009).
4 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
5 State v. Hudson, supra note 3.
6 See State v. Glover, supra note 1.
798 	278 NEBrASKA rEpOrTS

be addressed in either order.7 In determining whether a trial
counsel’s performance was deficient, there is a strong presump-
tion that such counsel acted reasonably.8
[6,7] Normally, a voluntary guilty plea waives all defenses
to a criminal charge, but in a postconviction action brought by
a defendant convicted as a result of a guilty plea, a court will
consider an allegation that the plea was the result of ineffec-
tive assistance of counsel.9 When a conviction is based upon
a guilty plea, the prejudice requirement for an ineffective
assistance of counsel claim is satisfied if the defendant shows
a reasonable probability that but for the errors of counsel, the
defendant would have insisted on going to trial rather than
pleading guilty.10
As noted, glover alleges that his trial counsel was ineffective
for failing to investigate Watkins’ recantation as well as favor-
able gunshot residue or blood spatter evidence. glover further
argues that he suffered prejudice because proper investigation
of such evidence and the recantation would have led to the
withdrawal of his no contest pleas. glover argues that the trial
court, in denying his motion for postconviction relief, accepted
the deposition testimony of his trial counsel and disregarded
glover’s testimony entirely.
In its order, the district court found that glover’s counsel
was not ineffective and that glover did not suffer prejudice.
The trial court found that trial counsel had properly investi-
gated both Watkins’ recantation as well as possible “powder
residue and/or blood” evidence and that glover had not suf-
fered any prejudice. The trial court also accepted trial counsel’s
testimony that glover had been properly advised of possible
penalties and was aware of potential sentences. While glover
disputed this in his testimony, issues of credibility are for the
trial court.11
7 State v. Lopez, 274 Neb. 756, 743 N.W.2d 351 (2008).
8 Id.
9 State v. Barnes, 272 Neb. 749, 724 N.W.2d 807 (2006).
10 Id.
11 See State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009).
STATE v. gLOvEr 	799
Cite as 278 Neb. 795

When reviewing a claim of ineffective assistance of counsel,
an appellate court will not second-guess reasonable strategic
decisions by counsel.12 glover cannot demonstrate that his
attorney’s actions were unreasonable, nor can he demonstrate
any sort of prejudice. glover’s assignments of error are there-
fore without merit.
CONCLUSION
glover has been unable to demonstrate that his counsel’s
performance was deficient or that he was prejudiced. For those
reasons, we affirm the decision of the district court.
affirMed.
12 State v. Rhodes, 277 Neb. 316, 761 N.W.2d 907 (2009).
800 	278 NEBrASKA rEpOrTS