State v. Gibilisco

But an evidentiary hearing may be denied when the records
and files affirmatively show that the defendant is entitled to
no relief.32 In this case, the record affirmatively demonstrates
that McKinney was not prejudiced by trial counsel’s failure to
object to the State’s closing statement.
McKinney also suggests, in passing, that she was denied
effective assistance of counsel because her counsel on direct
appeal did not argue that the erroneous admission of her
DNA was not harmless. But McKinney was not prejudiced by
the omission, because, as noted above, those arguments were
presented in her motion for rehearing. And it is certainly not
clear, given our review of the record in McKinney I, what her
appellate counsel could have argued that would have affected
our decision.
In short, we find no error in the district court’s conclusion
that McKinney was not prejudiced by the instances of ineffec-
tive assistance of counsel that she alleged.
CoNCluSIoN
Each of McKinney’s arguments is either procedurally barred
or without merit. We affirm the district court’s judgment deny-
ing her motion for postconviction relief.
A ffirmed.
H eAvicAn, C.J., not participating.
32 See id.
StAte of nebrASkA, Appellee , v.
pHilip p. G ibiliSco, AppellAnt.
778 N.W.2d 106
Filed January 29, 2010. 	No. S-08-1255.
1. Judgments: Appeal and Error. When reviewing a question of law, an appellate
court resolves the question independently of the lower court’s conclusion.
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 performance
308 	279 NEBrASKA rEportS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

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. Pleadings. A motion for reconsideration should be treated as a motion to alter
or amend a judgment when such motion meets the criteria for a motion to alter or
amend the judgment.
5. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. 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 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 per-
formance did not equal that of a lawyer with ordinary training and skill in crimi-
nal law in the area. In addition, the defendant must show that counsel’s deficient
performance prejudiced the defense in his or her case.
6. Effectiveness of Counsel: Proof. 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.
7. 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.
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. A motion for
postconviction relief asserting ineffective assistance of trial counsel is procedur-
ally barred when (1) 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.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
W. ruSSell boWie iii, Judge. Affirmed.
Gregory A. pivovar for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
H eAvicAn, 	c.J., 	WriGHt, 	connolly, 	G errArd, 	StepHAn,
mccormAck, and miller-lermAn, JJ.
miller-lermAn, J.
NAturE oF tHE CASE
After being convicted of five counts of first degree sexual
assault, appellant, philip p. Gibilisco, filed a verified motion for
StAtE v. GIBIlISCo 	309
Cite as 279 Neb. 308

postconviction relief in the district court for Douglas County.
In his motion, Gibilisco raised claims of ineffective assistance
of trial and appellate counsel. Several of the claims involved
statutory speedy trial issues. the district court initially sus-
tained the postconviction motion and dismissed all charges
against Gibilisco. However, upon consideration of a subsequent
motion filed by the appellee, State of Nebraska, the district
court ultimately granted in part and in part denied Gibilisco’s
motion for postconviction relief, with the ultimate result being
that the conviction on count I was vacated and the convic-
tions on counts II through V were upheld. Gibilisco appeals.
We affirm.
StAtEMENt oF FACtS
on September 13, 2002, Gibilisco was charged by informa-
tion with one count of sexual assault on a child “on or about
the 24th day of March, 2002, thru [sic] the 15th day of July,
2002.” After declining to enter into a plea agreement with the
State, Gibilisco pled not guilty to this one count on September
18. on June 12, 2003, the information was amended by adding
four additional counts of sexual assault on a child. Counts II
through V allege the same timeframe. the evidence presented
at trial generally established that Gibilisco was almost 40 years
old at the time of the offenses and that he solicited a girl to
perform oral sex on him on five occasions when she was 11
and 12 years old.
this case has been appealed twice before. In State v.
Gibilisco, 12 Neb. App. l (No. A-03-844, Sept. 2, 2003),
Gibilisco appealed the district court’s denial of his pretrial
motion to dismiss for vindictive prosecution. the Court of
Appeals concluded that the order denying Gibilisco’s motion
to dismiss was not a final, appealable order and dismissed the
appeal. thereafter, a trial was held and Gibilisco was convicted
on all five counts.
In State v. Gibilisco, A-04-480, 2005 Wl 1022024 (Neb.
App. Apr. 26, 2005) (not designated for permanent publica-
tion), Gibilisco appealed his convictions. on direct appeal,
Gibilisco was represented by different counsel than at trial.
He claimed that the district court erred in denying his motion
310 	279 NEBrASKA rEportS

to dismiss in which he claimed vindictive prosecution, admit-
ting a taped conversation between Gibilisco and the victim’s
mother, and failing to direct a verdict on four of the five
counts. Gibilisco also challenged the sentence imposed by
the district court. In addition, on direct appeal, Gibilisco
claimed that his trial counsel was ineffective for failing to
seek dismissal on statutory speedy trial grounds. In response
to this last assignment of error, the Court of Appeals con-
cluded that an evidentiary hearing would be necessary to
determine whether a speedy trial violation had occurred and
whether Gibilisco’s trial counsel was ineffective for not seek-
ing discharge.
on May 4, 2006, Gibilisco filed a motion for postconviction
relief in which he raised several claims of ineffective assist-
ance of trial and appellate counsel. Disposition of Gibilisco’s
postconviction motion gives rise to the instant appeal. For pur-
poses of this appeal, the relevant claims raised in Gibilisco’s
postconviction motion are that trial counsel was ineffective for
failing to (1) raise and preserve the issue of whether Gibilisco
received a speedy trial; (2) object to the filing of the amended
charges and failing to ask for a preliminary hearing; and (3)
inform him of the penalties for the crimes when discussing
plea negotiations and the treatment of sexual offenders in jail.
Gibilisco also claimed that trial counsel was ineffective when
he purportedly misinformed Gibilisco that the court would not
order consecutive sentences.
By agreement of the parties, the district court held an eviden-
tiary hearing limited to the issue of whether Gibilisco received
ineffective assistance of trial counsel based on Gibilisco’s
claim that trial counsel failed to move to dismiss his case on
the ground that his 6-month statutory speedy trial rights had
been violated. See Neb. rev. Stat. § 29-1207 (reissue 2008).
on June 6, 2007, the district court entered an order sustaining
Gibilisco’s motion.
In its June 6, 2007, order, the court stated that Gibilisco was
first charged in the district court on September 11, 2002, and
that therefore, absent excludable time, Gibilisco should have
been brought to trial within 6 months, which was March 10,
2003. trial on Gibilisco’s case began on December 16, 2003.
StAtE v. GIBIlISCo 	311
Cite as 279 Neb. 308

the court noted that several procedural excludable events
had occurred, including motions to suppress, continue, and dis-
miss, as well as an attempted appeal. the court found the total
excludable time attributable to these events to be 270 days.
the court reasoned that in order to avoid running afoul of
his 6-month right to a speedy trial, Gibilisco’s trial should have
begun within 270 days after March 10, or December 5, 2003.
Because Gibilisco’s trial did not start until December 16, the
court found that Gibilisco’s statutory right to a speedy trial had
been violated. Given this violation, the court further concluded
that Gibilisco’s trial counsel was ineffective for failing to file a
motion to discharge. the court sustained Gibilisco’s motion for
postconviction relief and vacated Gibilisco’s convictions.
After the filing of the June 6, 2007, order, the State filed
a motion to reconsider. In its motion, the State argued that
although Gibilisco’s right to a speedy trial may have been vio-
lated on count I of the information, any speedy trial violation
should not apply to counts II through V of the amended infor-
mation, because these subsequently filed charges restarted the
speedy trial clock.
In response to the State’s motion to reconsider, the court
stayed its June 6, 2007, order and directed the parties to brief
the matter. on November 2, the district court entered an order
which granted the State’s motion to reconsider and vacated its
order of June 6.
the district court entered an additional order on November
7, 2008, granting in part and in part denying Gibilisco’s motion
for postconviction relief. the district court granted the motion
with respect to count I on speedy trial grounds and conse-
quently vacated the conviction and sentence as to count I of the
amended information only. the district court denied Gibilisco’s
motion for postconviction relief with respect to the remaining
speedy trial and other issues. Gibilisco appeals.
ASSIGNMENtS oF Error
Gibilisco claims, restated and summarized, that the district
court erred in (1) allowing the State to challenge the court’s
June 6, 2007, order granting him postconviction relief by
way of a motion to reconsider; (2) finding that the additional
312 	279 NEBrASKA rEportS

charges in the amended information were not subject to the
same dismissal date on speedy trial grounds as the original
charge and reversing its dismissal of all charges based on this
determination; (3) concluding that Gibilisco did not receive
ineffective assistance of counsel based on his trial counsel’s
purported failure to properly relate a potential plea bargain
and the consequences to Gibilisco; and (4) concluding that
Gibilisco did not receive ineffective assistance of counsel based
on his trial counsel’s purported failure to move to quash the fil-
ing of the amended information.
StANDArDS oF rEVIEW
[1] When reviewing a question of law, an appellate court
resolves the question independently of the lower court’s con-
clusion. See State v. Dunster, 278 Neb. 268, 769 N.W.2d
401 (2009).
[2,3] A claim that defense counsel provided ineffective
assistance presents 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. State v. Hudson, 277 Neb. 182, 761 N.W.2d 536
(2009). 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 independently of the lower court’s
decision. Id.
ANAlYSIS
The District Court Properly Considered the State’s
Motion for Reconsideration as a Motion
to Alter or Amend the Judgment.
As an initial matter, we must address Gibilisco’s assign-
ment of error challenging the validity of the State’s motion
for reconsideration of the district court’s June 6, 2007, order.
We understand Gibilisco’s challenge to the State’s motion for
reconsideration to be that the motion for reconsideration was
not the proper method for challenging the court’s June 6 order.
We find this assignment of error to be without merit.
StAtE v. GIBIlISCo 	313
Cite as 279 Neb. 308

[4] the State directs us to State v. Bao, 269 Neb. 127, 690
N.W.2d 618 (2005). In Bao, we concluded that a motion for
reconsideration should be treated as a motion to alter or amend
a judgment when such motion meets the criteria for a motion
to alter or amend the judgment, to wit, being filed not later
than 10 days after the entry of judgment, see Neb. rev. Stat.
§ 25-1329 (reissue 2008), and seeking substantive alteration
of the judgment. the State argues that as in State v. Bao, its
motion for reconsideration was functionally a motion to alter
or amend a judgment. We agree with the State and conclude
that the State’s motion for reconsideration qualifies for treat-
ment as a motion to alter or amend a judgment.
the State filed the motion on June 8, 2007, within 10
days of the June 6 order granting Gibilisco postconviction
relief. Further, the motion sought substantive alteration of
the judgment by asserting that the June 6 order sustaining
Gibilisco’s motion was in error, because it concluded that
Gibilisco received ineffective assistance of counsel based on
his trial counsel’s failure to make a motion for discharge for
speedy trial act violations. the State argued in the motion for
reconsideration that the postconviction motion should have
been dismissed because the counts against Gibilisco contained
in the amended information did not violate the speedy trial act,
and therefore, Gibilisco’s counsel was not ineffective for fail-
ing to move for discharge at trial.
the motion for reconsideration was in effect a timely motion
to alter or amend the judgment, and the district court did not
err in considering the motion.
Gibilisco’s Claim of Ineffective Assistance of Counsel
Due to Speedy Trial Issues Is Without Merit.
Gibilisco claims that he received ineffective assistance of
trial counsel due to counsel’s purported failure to challenge
the amended information on speedy trial grounds. As a con-
sequence, Gibilisco argues that the district court erred in
this postconviction case when it vacated its June 6, 2007,
order which had granted Gibilisco’s motion for postconvic-
tion relief in its entirety based on a speedy trial violation, and
further erred in its November 7, 2008, order which granted
314 	279 NEBrASKA rEportS

postconviction relief limited to count I. We find no error in the
district court’s rulings.
As noted above, on November 2, 2007, the district court
filed an order granting the State’s motion for reconsidera-
tion, and on November 7, 2008, the court concluded that
Gibilisco’s counsel was not ineffective for failing to file a
motion for discharge on speedy trial grounds on counts II
through V of the amended information. In its order granting
the State’s motion for reconsideration, the court noted that
these additional charges were first filed in an amended infor-
mation and concluded that they were not subject to the same
dismissal dates for speedy trial purposes as controlled the
speedy trial analysis on count I, which was the only charge
found in both the original and amended informations. the
district court concluded that although there had been a viola-
tion of the speedy trial act on count I, the trial on the four
new counts in the amended information did not violate the
speedy trial act.
In reaching its conclusion, the district court quoted this
court’s decision in State v. French, 262 Neb. 664, 670, 633
N.W.2d 908, 914 (2001), as follows:
It is important to determine whether the amendment
charges the same crime or a totally different crime. A
distinction is made between an amendment to a complaint
or information and an amended complaint or information.
If the amendment to the complaint or information does
not change the nature of the charge, then obviously the
time continues to run against the State for purposes of the
speedy trial act. If the second complaint alleges a differ-
ent crime, without charging the original crime(s), then it
is an amended complaint or information and it supersedes
the prior complaint or information. the original charges
have been abandoned or dismissed.
Based on this jurisprudence, the district court reasoned
that the substance of count I had not changed in the amended
information, so the time for bringing Gibilisco to trial on that
count had expired. the court further determined, however, that
the amended information, which added counts II through V,
restarted the speedy trial clock applicable to those counts.
StAtE v. GIBIlISCo 	315
Cite as 279 Neb. 308

Applying the reasoning in French, the court stated that
in addition to repeating count I, the amended information
charged Gibilisco with four additional, separate crimes of
sexual assault on the same victim. the court stated that
the speedy trial clock should have been restarted for these
new and different charges. the court noted that Gibilisco
had had ample opportunity to investigate and object to the
nature and sufficiency of evidence on the amended informa-
tion and to move to quash the amended information had that
been warranted. the district court determined that counts II
through V did not violate the speedy trial statute and that
therefore, Gibilisco suffered no prejudice due to his trial
counsel’s purported failure to file a motion to discharge with
respect to these additional charges. We agree with the district
court’s analysis.
Gibilisco argues that the district court’s conclusions were
in error, because the four counts contained in the amended
information were based on the same set of facts as the origi-
nal charge and the State knew of the facts associated with the
additional charges at the time the original information was
filed. Gibilisco therefore claims that the speedy trial clock
should not be deemed to have restarted upon the filing of the
amended information.
[5-7] 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 accord-
ance 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. State v. Thomas, 278 Neb. 248, 769
N.W.2d 357 (2009). In addition, the defendant must show that
counsel’s deficient performance prejudiced the defense in his
or her case. Id. 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. Id. the two prongs of this test, deficient per-
formance and prejudice, may be addressed in either order. See
id. In determining whether a trial counsel’s performance was
316 	279 NEBrASKA rEportS

deficient, there is a strong presumption that such counsel acted
reasonably. Id.
the issue in this case is the effect, if any, for speedy trial
purposes of the filing of the amended information on each of
the five counts. In State v. French, 262 Neb. 664, 633 N.W.2d
908 (2001), we noted that in cases involving amended charges,
it is important to determine whether the amended charge is for
the same crime or for a totally different crime. We stated that
“[i]f the amendment to the complaint or information does not
change the nature of the charge, then obviously the time con-
tinues to run against the State for purposes of the speedy trial
act.” Id. at 670, 633 N.W.2d at 914.
Here, the amended information charged five separate counts
of first degree sexual assault, albeit during the same alleged
timeframe. Although count I repeated the substance of the
charge found in the original information, counts II through V
were new charges based on four additional incidents of sexual
assault against the victim in this case. these charges were not
based on facts identical to the original charge; rather, they
were separate incidents of sexual assault during the same time
period as had been alleged with respect to the first charge.
Except for count I, the nature of the charges against Gibilisco
were changed by the amended information. Each of these new
charges required the State to present separate, additional evi-
dence in order to prove each additionally alleged crime beyond
a reasonable doubt. Indeed, as has been described previously
in this case on direct appeal, at trial, the victim testified that
she could recall five separate incidents of sexual assault. State
v. Gibilisco, No. A-04-480, 2005 Wl 1022024 (Neb. App. Apr.
26, 2005) (not designated for permanent publication).
referring to the amended information, Gibilisco suggests
that allegations of a time period as distinguished from particu-
lar dates is problematic. We find no error in this regard. We
have concluded that as long as the information provides a time-
frame which has a distinct beginning and an equally clear end
within which the crimes are alleged to have been committed,
it is constitutionally sufficient. See State v. Martinez, 250 Neb.
597, 550 N.W.2d 655 (1996). See, also, State v. Piskorski, 218
Neb. 543, 357 N.W.2d 206 (1984). As was noted in Martinez,
StAtE v. GIBIlISCo 	317
Cite as 279 Neb. 308

to hold otherwise would impose an impossible burden on a
child sexual assault victim where there are allegations of mul-
tiple assaults over a lengthy timeframe.
to summarize, because counts II through V alleged separate
and distinct crimes and required the State to present different
evidence to prove each of these crimes as charged, the speedy
trial clock began to run again upon the filing of the amended
information. there was no speedy trial violation on these new
charges. Because Gibilisco was not prejudiced by his counsel’s
purported failure to file a motion to discharge based on a vio-
lation of the speedy trial act with respect to counts II through
V, Gibilisco did not receive ineffective assistance of counsel in
this regard and we affirm the district court’s ruling relative to
counts II through V. For completeness, we note that the State
did not cross-appeal the district court’s order granting post-
conviction relief relative to count I, and we do not consider
this ruling.
Gibilisco’s Claim of Ineffective Assistance of Counsel
With Respect to Communication of the Potential
Plea Agreement Is Procedurally Barred.
Next, Gibilisco claims that he received ineffective assistance
of trial counsel, because his trial counsel did not properly relay
information to him with respect to the plea agreement offered
by the State.
[8,9] Gibilisco did not raise this claim on direct appeal,
and it is therefore procedurally barred. 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 418 (2008). A motion for postconvic-
tion relief asserting ineffective assistance of trial counsel is
procedurally barred when (1) 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.
Here, Gibilisco had different counsel at trial and on appeal.
on direct appeal, Gibilisco did not raise a claim of ineffective
318 	279 NEBrASKA rEportS

assistance of trial counsel based on his counsel’s purported fail-
ure to relay information with respect to a potential plea agree-
ment. Because the alleged deficiencies regarding Gibilisco’s
plea agreement discussion with trial counsel were known to
Gibilisco at the time of his initial appeal, a claim of ineffec-
tive assistance of trial counsel based on the manner in which
plea information was communicated to Gibilisco is procedur-
ally barred.
Gibilisco Did Not Receive Ineffective Assistance of Counsel
Based on His Counsel’s Purported Failure to
Challenge the Amended Information.
Finally, Gibilisco claims that his trial counsel was ineffec-
tive for failing to move to quash the amended information. In
his brief, Gibilisco generally complains that his trial counsel
failed to attack the charges in the amended information in
any “meaningful manner.” Brief for appellant at 33. However,
as was discussed above, the amended information was not
constitutionally deficient. therefore, Gibilisco suffered no
prejudice on this basis and the district court properly denied
his claim.
CoNCluSIoN
the filing of the amended information containing new
charges that were substantially different from the single charge
in the original complaint restarted the speedy trial clock on
counts II through V in the amended information. Gibilisco
was not denied his statutory right to a speedy trial on counts
II through V. therefore, the district court did not err when it
concluded that Gibilisco did not receive ineffective assistance
of counsel based on a purported failure of trial counsel to file a
motion for discharge for speedy trial act violations on counts II
through V. the remainder of Gibilisco’s ineffective assistance
of counsel claims are without merit. We therefore affirm.
A ffirmed.
StAtE v. GIBIlISCo 	319
Cite as 279 Neb. 308