State v. Timmens

State of NebraSka , appellee , v.
timmy alleN timmeNS, appellaNt.
805 N.W.2d 704
Filed December 2, 2011. 	No. S-11-217.
1. Jurisdiction: Appeal and Error. It is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
2. ____: ____. An appellate court determines a jurisdictional question that does not
involve a factual dispute as a matter of law.
3. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusion.
4. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
5. 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.
6. Pleadings: Appeal and Error. An appellate court reviews the denial of a motion
to alter or amend the judgment for an abuse of discretion.
7. Postconviction: Final Orders. Within a postconviction proceeding, an order
granting an evidentiary hearing on some issues and denying a hearing on others
is a final order as to the claims denied without a hearing.
8. Effectiveness of Counsel: Appeal and Error. When analyzing a claim of inef-
fective assistance of appellate counsel, courts usually begin by determining
whether appellate counsel failed to bring a claim on appeal that actually preju-
diced the defendant. That is, courts begin by assessing the strength of the claim
appellate counsel purportedly failed to raise.
9. ____: ____. Counsel’s failure to raise an issue on appeal could be ineffective
assistance only if there is a reasonable probability that inclusion of the issue
would have changed the result of the appeal.
10. ____: ____. When a case presents layered ineffectiveness claims, an appellate
court determines the prejudice prong of appellate counsel’s performance by
focusing on whether trial counsel was ineffective under the test in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
11. ____: ____. Under the test in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), a court determines (1) whether counsel’s
performance was deficient and (2) whether the deficient performance actually
prejudiced the defendant in making his or her defense. The two prongs of this
test, deficient performance and prejudice, may be addressed in either order.
12. ____: ____. If trial counsel was not ineffective, then the defendant suffered no
prejudice when appellate counsel purportedly failed to bring an ineffective assist-
ance of trial counsel claim.
STATE v. TImmENS 	787
Cite as 282 Neb. 787
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

13. Criminal Law: Effectiveness of Counsel. Trial counsel’s performance was
deficient if it did not equal that of a lawyer with ordinary training and skill in
criminal law in the area.
14. Effectiveness of Counsel: Presumptions. When considering whether trial coun-
sel’s performance was deficient, there is a strong presumption that counsel acted
reasonably.
15. Effectiveness of Counsel: Attorney and Client. The reasonableness of counsel’s
actions may be determined or substantially influenced by the defendant’s own
statements or actions.
16. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. Trial
counsel is afforded due deference to formulate trial strategy and tactics. When
reviewing a claim of ineffective assistance of counsel, an appellate court will not
second-guess reasonable strategic decisions by counsel.
Appeal from the District Court for Dawson County: JameS
e. D oyle iv, Judge. Affirmed.
Jeffrey 	m. 	Wightman, 	of 	Wightman 	& 	Wightman, 	for
appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
H eavicaN, c.J., coNNolly, G errarD, StepHaN, mccormack,
and miller-lermaN, JJ., and caSSel, Judge.
StepHaN, J.
In 2001, Timmy Allen Timmens was convicted of second
degree murder in connection with the death of Tracy Giugler
and was sentenced to serve a term of 45 years’ to life impris-
onment. We affirmed his conviction and sentence on direct
appeal.1 Timmens was represented by different attorneys at trial
and on direct appeal.
In 2008, Timmens filed a motion for postconviction relief
in which he alleged that his trial counsel was ineffective in
several particulars and that his appellate counsel was ineffec-
tive in failing to raise ineffective assistance of trial counsel on
direct appeal. The district court for Dawson County dismissed
all but one of the claims without an evidentiary hearing and
denied the remaining claim following an evidentiary hearing.
1 State v. Timmens, 263 Neb. 622, 641 N.W.2d 383 (2002).
788 	282 NEBrASkA rEporTS

Timmens perfected this appeal after the district court overruled
his motion to alter or amend the judgment. We affirm.
I. BACkGroUND
1. trial
The evidence from Timmens’ jury trial is fully summarized
in our opinion on direct appeal2 and will be restated here only
to the extent necessary to address the postconviction issues.
At all relevant times, Timmens and Giugler were in a rela-
tionship and lived together in overton, Nebraska. on Friday,
July 21, 2000, Timmens went to a bar in overton with Gary
paben. Appearing as a witness for the State at trial, paben
testified they arrived at the bar while it was still light outside.
paben testified he and Timmens drank whiskey and Coke. He
acknowledged that he had a lot to drink and that Timmens
drank the same amount. paben testified that they stayed at the
bar until approximately midnight when the bartender “shut
[them] off.” After leaving the bar, paben and Timmens walked
to Timmens’ home.
When they arrived, Giugler was sleeping on the couch in
the living room. paben passed out on Timmens’ bed but woke
up when he heard “what appeared to sound like two people
arguing” outside. He heard angry voices and what sounded
like a woman say “‘help.’” A neighbor heard what sounded
like a fence being torn down and the slamming of a garbage
can lid in the alley that separated her backyard from Timmens’
backyard.
on July 22, 2000, after Giugler was reported missing, law
enforcement officers investigated and eventually found her
body in the basement of Timmens’ home. The pathologist who
conducted the autopsy testified that the cause of Giugler’s
death was blunt trauma to the head, chest, abdomen, and upper
and lower extremities, with hemorrhaging and rib fractures
resulting from an extensive and forceful beating.
Timmens’ counsel requested an intoxication instruction, and
the jury was instructed:
2 Id.
STATE v. TImmENS 	789
Cite as 282 Neb. 787

There has been evidence that [Timmens] was intoxi-
cated at the time that the crime with which he is charged
was committed.
Intoxication is a defense only when a person’s men-
tal abilities were so far overcome by the use of alco-
hol that he could not have had the required intent. You
may consider evidence of alcohol use along with all the
other evidence in deciding whether [Timmens] had the
required intent.
The jury found Timmens guilty of second degree murder.
2. D irect appeal
on direct appeal, Timmens’ new attorney assigned that
the trial court erred in not suppressing certain evidence and
in imposing an excessive sentence. Appellate counsel did not
assert that trial counsel had been ineffective. We rejected each
of the assigned errors and affirmed.
3. poStcoNvictioN proceeDiNGS
In his motion for postconviction relief, Timmens alleged his
trial counsel was ineffective in failing to file a motion to sup-
press evidence and in failing to make various trial objections.
He also alleged trial counsel was ineffective for not vigorously
pursuing an intoxication defense. Timmens alleged his appel-
late counsel was ineffective in failing to raise and thereby pre-
serve the ineffective assistance of trial counsel issues on direct
appeal. He further alleged that appellate counsel was ineffec-
tive for failing to assign error to the district court’s denial of
his pro se motion to appoint new trial counsel.
After reviewing the files and records from Timmens’ trial
and appeal, the district court determined that they affirmatively
showed that Timmens was not entitled to relief on his postcon-
viction claims, with the exception of the claim pertaining to the
intoxication defense. The court ordered an evidentiary hearing
on that claim and denied and dismissed all the other claims. At
the hearing, the court received deposition testimony of paben,
Timmens, and Timmens’ trial counsel.
Timmens testified in his deposition that he did not remember
any of the events immediately preceding Giugler’s death and
790 	282 NEBrASkA rEporTS

that he told his trial counsel this. But he also testified that he
told his trial counsel that he was intoxicated that evening and
that he understood his counsel was aware of this after depos-
ing paben prior to trial. Timmens testified that he did not recall
discussing an intoxication defense with his trial counsel and
that counsel did not argue or develop an intoxication defense
at his trial. He also testified that while he was awaiting trial,
his counsel arranged for him to be evaluated by a psychologist
“[t]o determine [his] state of mind.” According to Timmens,
the evaluation was never completed, because he told the psy-
chologist that he could not remember anything about the events
leading to Giugler’s death.
Timmens’ 	trial 	counsel 	testified 	that 	Timmens 	never
instructed him to pursue an intoxication defense and that
Timmens insisted he did not kill Giugler and was wrongfully
accused. Counsel testified that he obtained a court order for a
mental health evaluation to explore the viability of “state-of-
mind defenses,” such as an intoxication defense. Counsel stated
he explained the importance of the evaluation to Timmens,
but Timmens refused to speak with the psychologist, “because
in doing that, he would have to admit that he did something
wrong, and that’s something he would not do.” Accordingly,
counsel did not develop or argue an intoxication defense at
Timmens’ trial. Explaining his reason for not doing so, coun-
sel testified, “I don’t recall anything [Timmens] said about
intoxication having anything to do with this case or this crime,
because he didn’t do it. He didn’t kill this woman, he said. So
that, to me, negated any effort to try to do anything, because
he didn’t do it.”
Following the evidentiary hearing, the district court entered
an order denying the intoxication defense claim and incorpo-
rating the prior order that had dismissed all other postconvic-
tion claims. The district court found that trial counsel’s per-
formance was not deficient. The court explained, “The thrust
of . . . trial counsel’s dilemma was Timmens was insisting he
did not commit the crime, while the presentation of evidence
of an intoxication defense would concede Timmens caused
[Giugler’s] death but without intent to do so. According to
trial counsel, Timmens insisted ‘he didn’t do it.’” Based upon
STATE v. TImmENS 	791
Cite as 282 Neb. 787

this finding, the court concluded that trial counsel acted rea-
sonably in selecting a trial strategy consistent with Timmens’
claim that he did not commit the crime. The court further con-
cluded that the “apparent tactic of trial counsel in requesting
an intoxication instruction was to take advantage of paben’s
trial testimony, adduced by the State, by having the court, not
Timmens or his counsel, introduce the intoxication defense via
the instructions.”
Timmens filed a motion to alter or amend the judgment pur-
suant to Neb. rev. Stat. § 25-1329 (reissue 2008) on october
21, 2010. The motion sought reconsideration of the court’s find-
ings on the intoxication defense claim in light of a December
26, 2000, letter addressed to Timmens from his trial counsel.
The motion also asked the court to consider the cumulative
effect of Timmens’ ineffective assistance of counsel allegations.
After finding the letter was not newly discovered evidence and
the motion was based on arguments previously asserted and
rejected, the district court denied Timmens’ motion. Timmens
filed a timely notice of appeal from that order.
II. ASSIGNmENTS oF Error
Timmens assigns, summarized and renumbered, that the dis-
trict court erred in (1) summarily dismissing all but one of his
ineffective assistance of appellate counsel claims, (2) failing
to find appellate counsel was prejudicially ineffective in not
assigning and arguing a claim of ineffective assistance based
on trial counsel’s failure to vigorously pursue an intoxication
defense, and (3) denying Timmens’ motion to alter or amend
the judgment.
III. STANDArD oF rEVIEW
[1-3] It is the duty of an appellate court to determine whether
it has jurisdiction over the matter before it.3 An appellate court
determines a jurisdictional question that does not involve a fac-
tual dispute as a matter of law.4 When reviewing questions of
3 See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
4 Id.
792 	282 NEBrASkA rEporTS

law, an appellate court resolves the questions independently of
the lower court’s conclusion.5
[4,5] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact.6 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.7 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,8 an appellate court
reviews such legal determinations independently of the lower
court’s decision.9
[6] An appellate court reviews the denial of a motion to alter
or amend the judgment for an abuse of discretion.10
IV. ANALYSIS
1. JuriSDictioN
The district court 	entered 	two 	separate orders denying
Timmens’ postconviction claims. The first order denied all
claims, except that relating to the intoxication defense, with-
out an evidentiary hearing. The second order, entered after
the evidentiary hearing, denied the remaining claim. The State
argues that we lack jurisdiction over any issues in this appeal
arising from the first order, because Timmens did not perfect a
timely appeal after entry of that order. Timmens counters that
we have jurisdiction over all issues, because the second order,
from which he perfected a timely appeal, incorporates the first
order by reference.
[7] The State’s position is correct. Within a postconvic-
tion proceeding, an order granting an evidentiary hearing on
some issues and denying a hearing on others is a final order
5 Id.; State v. Gibilisco, 279 Neb. 308, 778 N.W.2d 106 (2010).
6 Gibilisco, supra note 5.
7 Id.; State v. Hudson, 277 Neb. 182, 761 N.W.2d 536 (2009).
8 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
9 Gibilisco, supra note 5; Hudson, supra note 7.
10 See Mandolfo v. Mandolfo, 281 Neb. 443, 796 N.W.2d 603 (2011).
STATE v. TImmENS 	793
Cite as 282 Neb. 787

as to the claims denied without a hearing.11 The order deny-
ing all but one of Timmens’ postconviction claims without an
evidentiary hearing was entered on April 14, 2009. Timmens’
notice of appeal, filed march 11, 2011, is therefore untimely
with respect to that order.12 Timmens’ right to appeal the 2009
order was time barred and could not be resurrected by the
district court’s reference to that order in its subsequent order
denying the remaining postconviction claim following the evi-
dentiary hearing. Accordingly, our jurisdiction extends only to
the assignments of error relating to the intoxication defense
and the motion to alter or amend the judgment, as to which the
appeal is timely.
2. iNeffective aSSiStaNce of couNSel
(a) General principles
[8,9] Timmens argues the district court erred in failing to
find that his appellate counsel was prejudicially ineffective
for not raising the ineffectiveness of trial counsel on appeal.
When analyzing a claim of ineffective assistance of appellate
counsel, courts usually begin by determining whether appellate
counsel failed to bring a claim on appeal that actually preju-
diced the defendant.13 That is, courts begin by assessing the
strength of the claim appellate counsel purportedly failed to
raise.14 Counsel’s failure to raise an issue on appeal could be
ineffective assistance only if there is a reasonable probability
that inclusion of the issue would have changed the result of
the appeal.15
[10-12] When, as here, the case presents layered ineffective-
ness claims, we determine the prejudice prong of appellate
counsel’s performance by focusing on whether trial counsel
11 See Yos-Chiguil, supra note 3. See, also, State v. Poindexter, 277 Neb. 936,
766 N.W.2d 391 (2009); State v. Harris, 267 Neb. 771, 677 N.W.2d 147
(2004); State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
12 See Neb. rev. Stat. § 25-1931 (reissue 2008).
13 State v. Jim, 278 Neb. 238, 768 N.W.2d 464 (2009); State v. Jackson, 275
Neb. 434, 747 N.W.2d 418 (2008).
14 Id.
15 Id.
794 	282 NEBrASkA rEporTS

was ineffective under the Strickland test.16 Under that test, a
court determines (1) whether counsel’s performance was defi-
cient and (2) whether the deficient performance actually preju-
diced the defendant in making his or her defense.17 The two
prongs of this test, deficient performance and prejudice, may
be addressed in either order.18 If trial counsel was not ineffec-
tive, then the defendant suffered no prejudice when appellate
counsel purportedly failed to bring an ineffective assistance of
trial counsel claim.19
(b) performance of Trial Counsel
[13,14] In considering whether Timmens’ trial counsel per-
formed deficiently in failing to vigorously pursue an intoxica-
tion defense, we are guided by established principles. Trial
counsel’s performance was deficient if it did not equal that of
a lawyer with ordinary training and skill in criminal law in the
area.20 When considering whether trial counsel’s performance
was deficient, there is a strong presumption that counsel acted
reasonably.21
Based upon the evidence presented at the postconviction
hearing, the district court found that “trial counsel knew an
intoxication defense was possible [and] took the steps neces-
sary to obtain the evidence to present the defense but was
stymied by Timmens’ insistence he did not commit the crime
and Timmens’ lack of cooperation in garnering the evidence
to present the defense.” This factual finding is fully sup-
ported by the record, and we accept it as the basis of our
independent assessment of counsel’s performance under the
Strickland test.
[15,16] As the U.S. Supreme Court noted in Strickland,
“The reasonableness of counsel’s actions may be determined
16 Id.
17 Id.
18 Gibilisco, supra note 5. See State v. Thomas, 278 Neb. 248, 769 N.W.2d
357 (2009).
19 Jim, supra note 13; Jackson, supra note 13.
20 See, Gibilisco, supra note 5; Thomas, supra note 18.
21 Jim, supra note 13. See Hudson, supra note 7.
STATE v. TImmENS 	795
Cite as 282 Neb. 787

or substantially influenced by the defendant’s own statements
or actions.”22 Given Timmens’ insistence that he did not kill
Giugler, counsel could hardly mount a defense premised on
the notion that Timmens killed her unintentionally while in
a state of intoxication. Even if Timmens had been willing to
assert the intoxication defense, Timmens’ refusal to participate
in the mental health evaluation prevented counsel from fully
assessing the viability of the defense. We agree with the con-
clusion of the district court that by requesting an instruction
on the intoxication defense based on paben’s testimony with
respect to Timmens’ alcohol consumption, as elicited by the
State, Timmens’ counsel was able to provide the jury with a
basis for convicting Timmens on a lesser homicide offense
while at the same time preserving “the internal consistency of
Timmens’ defense” that he was innocent and should be acquit-
ted. Trial counsel is afforded due deference to formulate trial
strategy and tactics.23 When reviewing a claim of ineffective
assistance of counsel, an appellate court will not second-guess
reasonable strategic decisions by counsel.24 Applying this well-
established principle here, we independently conclude that trial
counsel’s performance with respect to the intoxication defense
was not deficient under the Strickland standard. It necessarily
follows that appellate counsel could not have been ineffec-
tive in not raising the issue of trial counsel’s performance on
direct appeal.
3. motioN to alter or ameND JuDGmeNt
At a hearing on Timmens’ motion to alter or amend the
judgment, Timmens’ counsel requested that it be treated as a
motion for new trial based on newly discovered evidence. In a
subsequent written order, the district court treated the motion as
a timely motion to alter or amend the judgment filed pursuant
to § 25-1329, but concluded that the letter did not constitute
newly discovered evidence, because it had been in Timmens’
22 Strickland, supra note 8, 466 U.S. at 691.
23 Jim, supra note 13.
24 Id.; State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003).
796 	282 NEBrASkA rEporTS

possession at the time of the postconviction hearing. The court
overruled the motion.
Like the district court, we consider Timmens’ motion as
a motion to alter or amend the judgment, which may be
based upon newly discovered evidence.25 This court has defined
newly discovered evidence as evidence which neither the liti-
gant nor counsel could have discovered by the exercise of
reasonable diligence.26 The evidence must also be more than
merely cumulative; it must be competent, relevant, and mate-
rial, and of such character as to reasonably justify a belief that
its admission would bring about a different result if a new trial
were granted.27
We agree with the district court that the letter upon which
Timmens’ motion is based does not constitute newly discov-
ered evidence. As admitted in his brief, the letter in question
was in Timmens’ possession at all relevant times. Its content
would not warrant a different resolution of his postconviction
claim. The district court did not abuse its discretion in denying
the motion to alter or amend the judgment.
V. CoNCLUSIoN
This court lacks jurisdiction over the claims summarily
dismissed on April 14, 2009, because Timmens did not timely
appeal from that order. Timmens’ ineffective assistance claim
related to trial counsel’s failure to vigorously pursue an intoxi-
cation defense is without merit. Finally, the district court did
not abuse its discretion in overruling Timmens’ motion to alter
or amend the judgment.
affirmeD.
WriGHt, J., not participating.
25 Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004).
26 Id.; Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728
N.W.2d 570 (2007).
27 Id.
STATE v. TImmENS 	797
Cite as 282 Neb. 787