State v. Hessler

the Board noted that it was uncontested that Southern’s line
had the capacity to service Minden’s needs and that Southern
would provide this service for a fee to Minden. To summarize,
the two lines were to begin at the same place and both con-
nected to Minden’s substation. And only one line was needed
to carry the load. The record shows sufficient evidence to sup-
port the Board’s decision that Minden’s line would be unneces-
sarily duplicative of Southern’s line, and that decision is not
arbitrary or unreasonable.
CONCLUSION
We conclude the Board did not err when it concluded that
Minden’s line was not the most economical and feasible line.
Further, the Board did not err when it concluded that Minden’s
line would be unnecessarily duplicative of Southern’s existing
line. Accordingly, we affirm.
A ffirmed.
Wright, J., not participating in the decision.
STATe v. heSSLer 	935
Cite as 282 Neb. 935
StAte of NebrASkA, Appellee , v.
Jeffrey A. heSSler , AppellANt.
807 N.W.2d 504
Filed December 23, 2011. 	No. S-11-379.
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
2. Postconviction: Appeal and Error. On appeal from a proceeding for postconvic-
tion relief, the trial court’s findings of fact will be upheld unless such findings are
clearly erroneous.
3. Effectiveness of Counsel: Appeal and Error. Determinations regarding whether
counsel was deficient and whether the defendant was prejudiced are questions of
law that an appellate court reviews independently of the lower court’s decision.
4. Postconviction: Appeal and Error. A motion for postconviction relief cannot be
used to secure review of issues that were known to the defendant and could have
been litigated on direct review.
5. Postconviction: Effectiveness of Counsel: Appeal and Error. When a defendant
was represented both at trial and on direct appeal by lawyers employed by the
same office, the defendant’s first opportunity to assert ineffective assistance of
trial counsel is in a motion for postconviction relief.
6. Postconviction: Constitutional Law. Postconviction relief is a very narrow cat-
egory of relief available only to remedy prejudicial constitutional violations.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

7. Postconviction: Effectiveness of Counsel: Proof. The defendant has the burden
in postconviction proceedings of demonstrating ineffectiveness of counsel, and
the record must affirmatively support that claim.
8. Postconviction: Mental Competency: Effectiveness of Counsel: Proof. In order
to demonstrate prejudice from counsel’s failure to investigate competency and for
failure to seek a competency hearing, the defendant must demonstrate that there
is a reasonable probability that he or she was, in fact, incompetent and that the
trial court would have found the defendant incompetent had a competency hear-
ing been conducted.
9. Effectiveness of Counsel: Records. Counsel is not ineffective for failing to
undertake useless procedural challenges merely to create a record impregnable to
assault for claimed inadequacy of counsel.
10. Constitutional Law: Trial: Mental Competency. An individual has a constitu-
tional right not to be put to trial when lacking mental competency.
11. Constitutional Law: Right to Counsel: Waiver. A criminal defendant has a
constitutional right to waive the assistance of counsel and conduct his or her
own defense.
12. Mental Competency. There are no fixed or immutable signs of incompetence.
Appeal from the District Court for Scotts Bluff County:
rANdAll l. lippStreu, Judge. Affirmed.
Brian J. Lockwood, Deputy Scotts Bluff County Public
Defender, for appellant.
Jon Bruning, Attorney General, and J. Kirk Brown for
appellee.
C oNNolly, gerrArd, StephAN, mCC ormACk , and miller-
lermAN, JJ., and iNbody, Chief Judge, and pirtle , Judge.
mCC ormACk , J.
I. NATUre OF CASe
Jeffrey A. hessler filed a motion for postconviction relief
from his current incarceration and sentence to death for crimes
relating to the rape and murder of heather Guerrero. The dis-
trict court granted an evidentiary hearing on the limited issue
of whether trial counsel was ineffective in failing to demand a
competency hearing before the trial court allowed hessler to
waive counsel and represent himself at sentencing. The district
court denied postconviction relief. Because hessler failed to
demonstrate a reasonable probability that he was incompetent
at the sentencing hearing, we affirm.
936 	282 NeBrASKA rePOrTS

II. BACKGrOUND
hessler was convicted for first degree murder, kidnapping,
first degree sexual assault on a child, and use of a firearm
to commit a felony in relation to the murder of 15-year-old
Guerrero. The facts leading to the convictions are set forth in
more detail in our opinion in State v. Hessler (Hessler I).1
After his convictions in December 2004, hessler filed three
pro se motions to waive his right to be present at the aggrava-
tion hearing. The court excused hessler’s presence, and trial
counsel represented hessler at the aggravation hearing. After
the hearing, the jury found three statutory aggravating circum-
stances.2 Accordingly, the case was set to proceed before the
three-judge panel for consideration of the death penalty.
1. motioNS to remove C ouNSel
ANd proCeed pro Se
On March 31, 2005, hessler sought to remove counsel,
waive his right to counsel, and proceed pro se at the sentencing
hearing. hessler filed a pro se “Motion to Invoke My Sixth-
Amendment right and to expurgate the Advocate of the State
and to Delineate Myself.” This motion is set forth in detail
in Hessler I.3 In summary, hessler was unhappy with trial
counsel because they told him they were dutybound to contest
the imposition of the death penalty. hessler wished to be put
to death.
At the hearing on the motion, the court presented numer-
ous questions to hessler in order to determine if his waiver
of counsel was made knowingly, voluntarily, and intelligently.
hessler’s responses to the questions were generally appropriate.
hessler was asked to explain what “‘expurgate the Advocate
of the State’” in his pro se motion meant. he responded that
it was “[t]o remove [his] advocate.” he told the court that he
wished to discharge counsel because they “refuse[d] to comply
with my wishes.” hessler further explained to the court that
given the change of strategy, a scheduled presentencing hearing
1 State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007).
2 See Neb. rev. Stat. § 29-2523 (reissue 2008).
3 Hessler I, supra note 1.
STATe v. heSSLer 	937
Cite as 282 Neb. 935

challenging the constitutionality of the death penalty statute did
not “need to happen.”
hessler informed the court he had been prescribed “anti-
psychotics” and “antihypnotic” drugs, but he had not taken
them that day. When asked about his ability to represent him-
self, hessler said he had God on his side, stating, “I just go by
what God tells me.” The court responded that while it would
not dissuade hessler from “following God,” he would have
to represent himself in a way that complied with court rules.
hessler indicated that he understood this and could do so. The
trial court determined that hessler had knowingly, intelligently,
and voluntarily decided to represent himself. Given the gravity
of the possible punishment, the court instructed counsel to pre-
pare for the sentencing hearing and be there on standby.
2. SeNteNCiNg heAriNg
At the sentencing hearing conducted on May 16, 2005,
hessler was again questioned about his desire to proceed pro
se. hessler responded to the questions appropriately, and the
court again determined that hessler knowingly, intelligently,
and voluntarily waived his right to counsel.
hessler declined to make any opening or closing statement at
the sentencing hearing. As evidence, hessler offered a 9-page
“Interlocutory Statement of the Defendant.” Because indicating
each spelling mistake or grammatical error in hessler’s state-
ment and other documentation would be distracting, we repro-
duce hessler’s written materials in their original form. hessler
began: “As God cicerones me through this ascription to show
true face I, Jeffrey Alan hessler, now brings to light my ascrip-
tion now before all.” hessler then explained that he wished to
be put to death, under the doctrine of “‘an eye for an eye.’”
hessler expressed remorse and noted that he suffered “from
certain Mental Conditions that may or may not truelly explain
My actions in this here Nightmare that I have caused.”
hessler explained why he had to discharge his counsel:
“GOD has shown me to move into hIS LIGhT and that is
why I had to finially expuregate my council of Attorney’s from
continuing from representing Me in this case. They refused
to follow GOD’s and My wishes.” More specifically, hessler
938 	282 NeBrASKA rePOrTS

described a recent encounter with a “Brother of Christ” at the
prison who was awoken from his sleep and led to hessler’s
cell to “bring GOD back into My Life and understanding.”
When he took this man’s hand, he “felt this powerful energy to
start to flow through my whole body. . . . GOD was speaking
through him to Me . . . I saw a single tear . . . and . . . his eyes
. . . were flaming at me.”
hessler wished for “nothing to be inveighed on Mybehalf
that might change the mind set of the Judges or of the People
of this society within this Matrix.” he asked that his “ver-
miculate tabernacle be sent to the reaper’s Nirvana and for My
vermiculate tabernacle to be gibbeted as soon as possible and
there should be no dialectic or extrospection towards or against
GOD’s Purpose and My destiny.”
Despite hessler’s failure to present evidence of mitigation,
the three-judge sentencing panel considered possible statutory
mitigators, particularly, the absence of hessler’s prior criminal
history and his relative age. The panel found no nonstatutory
mitigating circumstances. It found that the aggravating circum-
stances outweighed the mitigating circumstances. Accordingly,
the panel sentenced hessler to the death penalty.
3. direCt A ppeAl
For hessler’s automatic direct appeal, we appointed hessler’s
trial counsel to represent him. Counsel assigned as error the
trial court’s grant of hessler’s request to proceed pro se at the
sentencing hearing and the trial court’s failure to conduct a
competency hearing before allowing hessler to proceed pro se.
hessler filed a pro se brief in which he expressed his continu-
ing wish to be put to death.
We held that the trial court did not err when it failed to
conduct a competency hearing.4 Further, there was no error
when the court did not make an explicit determination that
hessler was competent to waive counsel.5 We explained that
the trial court did not have reason to suspect hessler’s com-
petence. We noted that when hessler moved to waive counsel,
4 Id.
5 Id.
STATe v. heSSLer 	939
Cite as 282 Neb. 935

he was still represented by counsel, and that counsel did not
move for a determination of hessler’s competence at that time
or at any previous time.6 And there was “no indication . . .
that hessler was unable to consult with counsel with a rea-
sonable degree of rational understanding. To the contrary, the
record contains references to consultations between hessler
and his counsel.”7
Furthermore, we stated that “the court had observed hessler
over many months prior to trial and at trial.”8 There was no
special significance to the fact that hessler said he was not
on his medications on the day the court considered his request
to waive counsel, because “the court was in a position to be
satisfied that any medication hessler was or was not on did
not compromise his present competence to waive counsel.”9
Finally, we explained that although hessler’s pro se filings
before the trial court “contain[ed] irrelevant matter,” they never-
theless indicated that “hessler understood the factual nature of
the proceedings against him and the potential consequences of
such proceedings.”10 hessler demonstrated in the filings that
he “had a rational and factual understanding that he was being
prosecuted for the death of [Guerrero] and that the death pen-
alty was a potential punishment for that crime.”11
4. poStCoNviCtioN
After we affirmed hessler’s convictions and sentences on
direct appeal, hessler changed his mind about wanting to be
put to death. he filed a motion for postconviction relief and
obtained appointed counsel. In his amended postconviction
motion, hessler presented several allegations, including the
allegation that trial counsel was ineffective in failing to inves-
tigate hessler’s mental state and failing to object to going for-
ward with the sentencing hearing without a formal competency
6 Id.
7 Id. at 509, 741 N.W.2d at 429.
8 Id.
9 Id.
10 Id. at 509-10, 741 N.W.2d at 429.
11 Id. at 510, 741 N.W.2d at 429-30.
940 	282 NeBrASKA rePOrTS

investigation and hearing. After a preliminary hearing to nar-
row the issues, the postconviction court concluded that hessler
was entitled to an evidentiary hearing on the limited issue of
whether trial counsel was ineffective for failing to raise issues
of competency after hessler’s convictions but prior to mitiga-
tion and sentencing. In addition to the entire trial record, the
following evidence was accepted into evidence at the postcon-
viction evidentiary hearing.
(a) hessler’s Deposition
hessler explained in his deposition testimony that he had
informed trial counsel of his intention to terminate their repre-
sentation of him on the day they were going to argue a motion
alleging electrocution was unconstitutional, March 31, 2005.
hessler explained that his motivation for terminating counsel
was because he wanted the death penalty and counsel refused
to advocate for the death penalty.
When asked about the unusual wording of his pro se motions
before the trial court, hessler said that he came up with the
words used in those motions from his thoughts and “through
certain books I came across.” he no longer could recall the
meaning of many of the words he used. When hessler was
asked, “Was there a point in your life where you were speaking
like this?” hessler answered, “Never.”
hessler testified that from the beginning of the trial, he
understood the charges against him, the potential consequences
for those charges, the role of the jury and the judge, and the
purpose of the trial. he testified he still understood all those
things when he decided to terminate his attorneys’ representa-
tion and proceed pro se at sentencing. hessler did not specifi-
cally address whether he had ever heard voices.
(b) Arias’ report
A neuropsychological evaluation was conducted at counsel’s
request by Dr. robert G. Arias in March 2003, and a 16-page
report was made of this evaluation. Arias noted that hessler
claimed he “must have been chosen to pass on an evil mes-
sage” and that killing Guerrero was completely out of his
control. hessler reported a history of heavy drug use and ques-
tioned whether his brain had been “‘fried’” by drugs. hessler
STATe v. heSSLer 	941
Cite as 282 Neb. 935

expressed some concern that he was a “Mafia target” because
he had associated with local drug dealers.
Arias’ 	“Diagnostic 	Impressions” 	of 	hessler 	included
“hallucin[o]gen Persisting Perceptual Disorder” and “Depressive
Disorder Not Otherwise Specified.” however, Arias considered
the results of the three principal psychological tests conducted
on hessler to be invalid due to “an organized attempt to portray
himself in an overly negative light.” Specifically: “[hessler]
clearly attempted to answer in a psychotic fashion, but validity
scales revealed this to be an intentional attempt to manipulate
his presentation in a negative fashion.” Arias further stated that
the results “reflected a broad tendency to magnify his level of
experienced illness or a characterological inclination to com-
plain or be self-pitying. . . . A similar pattern of overendorse-
ment of depressive symptomatology was seen . . . .”
In his conclusions, Arias stated that hessler was an individ-
ual with “a longstanding antisocial, narcissistic personality dis-
order.” he stated that hessler was somewhat depressed, which
would be expected under the circumstances, and at moderate
to high risk for suicide during his incarceration. But again,
“Valid assessment of his emotional functioning on objective
measures was not obtained . . . given the patient’s clear and
organized attempt to portray himself in an overly negative
light, particularly with regard to psychotic symptoms to explain
his behavior.”
(c) Scharf’s Letter
In May 2003, trial counsel asked that a psychologist, Dr.
Daniel L. Scharf, provide hessler with treatment for depres-
sion. Scharf provided hessler with treatment through the sum-
mer of 2003. In a letter written to trial counsel on September
3, 2003, Scharf explained that while he had not conducted a
forensic examination, it was his impression that hessler suf-
fered from bipolar mood disorder. he also thought hessler
probably suffered from a “delusion disorder, persecutory type.”
Scharf was skeptical of whether hessler had a mixed antisocial
and narcissistic personality disorder and thought that he might
instead experience “narcissism/grandiosity” as a component of
the bipolar mood disorder.
942 	282 NeBrASKA rePOrTS

(d) Medical records
hessler introduced into evidence at the postconviction hear-
ing approximately 450 pages of prison psychological and med-
ical records and related correspondence from the time period
of 2003 to 2010. The records contain numerous prescriptions
at different points in time. hessler did not present expert testi-
mony regarding those records, nor did he otherwise attempt to
explain their contents as the records pertained to his compe-
tency at sentencing.
A psychological report from the prison medical records,
written in September 2003, states that according to personal-
ity assessments performed on hessler, he was “someone who
seems to be either exaggerating his symptomologies or is per-
haps making a cry or plea for help.”
The records demonstrate that hessler was engaged in a
dispute with prison staff over his treatment and medications
around the time of the sentencing hearing. hessler made
numerous written communications to prison staff on this point.
hessler was demanding a prescription or treatment plan. On
April 8, 2005, hessler wrote to the prison mental health staff
“asking you if you would please advise me on what is being
done to correct and restructure my treatment medication plan.”
On April 12, hessler refused the treatment of a psychiatrist and
refused one of his medications. On April 15, hessler wrote to
the mental health staff:
Yes, I wrote you . . . at the beginning of this week pretain-
ing to your findings and so feedback to the conversation
we had on the morning of the 8th of April of 2005. And as
of to date I have yet to hear a response back from you and
you stated to me at the end of that conversation that you
would respond to an interview request form that I would
send. have you reached your findings so that you can
advise back to me with those findings? I have also wrote
to the medical director, since the pharmacy forwarded the
information that ordered the restructure of my medication
treatment plan to him, but I have yet to hear a response
back from him. I would greatly appreciate your services
in getting some type of information . . . . I thank you for
STATe v. heSSLer 	943
Cite as 282 Neb. 935

all your help, time, and services in this important matter
at hand.
Similarly worded inmate interview requests were made on
April 21 and 29, and a letter to the leading psychiatrist was
sent on April 21, asking that a treatment plan recommended
previously by another doctor be implemented.
A segregation mental status review on April 8, 2005, stated
that hessler’s thought patterns were appropriate, on track, rele-
vant, and consistent with reality, although his mood was irri-
table. A psychiatric consultation note on May 6 described that
hessler was writing to the staff psychiatrist and others con-
cerning disputes about what medication he should be on. The
staff psychiatrist did not think hessler’s current medication
was properly treating his anxiety. Accordingly, the psychiatrist
discontinued certain medications and prescribed others. The
psychiatrist did not note any other mental or emotional disturb-
ances requiring treatment.
On May 10, 2005, 6 days before his sentencing hearing,
hessler requested authorization for a specific cold medica-
tion that he had used in the past and found effective. The cold
medicine which was available without authorization was not
working to relieve his symptoms. he stated: “I have used the
cold tabs on the Unit and they are hard to get when you really
need one and plus they do not help relieve fully My congestion
and seasonial type allergies.” Many similar minor complaints
are found throughout the prison records.
On May 18, 2005, hessler filled out a health services
request form to “please schedule myself for an appointment
soon to fully discuss my medical/mental conditions and the
treatment medications that I am currently prescribed by several
doctors,” and hessler’s disagreement with prison medical and
psychiatric staff continued. An intake assessment dated May
19, 2005, stated that no mental health program involvement
was recommended.
(e) Trial Counsel
The deposition testimonies of hessler’s trial counsel, James
Mowbray and Jeffrey Pickens, were introduced. Both testified
that their decision not to bring the issue of competency to the
944 	282 NeBrASKA rePOrTS

trial court’s attention was not a strategic one. rather, they
explained they had no doubt that hessler met the legal test
of competency. In light of this, Mowbray and Pickens were
concerned that calling for a competency hearing would result
in divulging confidential attorney-client communications and
would violate their client’s wishes.
(i) Pickens
Pickens testified that hessler “seemed to me to be a bright
person and he seemed to understand everything that . . . I told
him.” On March 23, 2005, Pickens discussed with hessler the
upcoming hearing on a motion for new trial and challenging
the constitutionality of electrocution, as well as the upcom-
ing sentencing hearing. hessler expressed that he wanted the
death penalty. hessler also told Pickens that hessler felt he had
“lost his mind over the case.” he told Pickens he was “hearing
voices,” or “thoughts which resemble voices,” which gave him
messages relating to what he perceived as his destiny. hessler
conveyed that he thought these messages were coming from
God. In particular, God was telling hessler not to fight the
death penalty. This was God’s “command,” and hessler told
Pickens he had no choice.
Pickens told hessler they could not ethically pursue a strat-
egy seeking the death penalty. hessler informed Pickens that,
accordingly, he was thinking about firing Mowbray and Pickens
and representing himself.
When Pickens asked hessler if he believed he was compe-
tent, hessler refused to answer. hessler also refused to be seen
by another psychologist in order to evaluate his competency.
Upon further questioning by Pickens, however, hessler assured
Pickens that he understood the nature of the upcoming sentenc-
ing proceedings and that he was able to help with the defense
of his case. Pickens explained he was trying to determine
hessler’s competency under the standard set forth in State v.
Guatney.12 Pickens testified that based on hessler’s answers to
his questions, he believed hessler was competent.
12 State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980).
STATe v. heSSLer 	945
Cite as 282 Neb. 935

(ii) Mowbray
Mowbray testified that from the beginning, hessler went
back and forth on whether he wanted to be put to death or
sentenced to life imprisonment. Later, hessler became more
religious and ultimately insisted on the death penalty. Mowbray
said that although they were not sure what was driving hessler
“in terms of his decision-making,” “[t]here wasn’t any ques-
tion in our mind from a legal standpoint that he understood”
the nature of the upcoming hearings and the penalties he
was facing.
When asked whether he had noticed any change in hessler’s
understanding of the proceedings from the beginning of their
representation to the time they were discharged, Mowbray said,
“No, I think he always understood what was going on. There
was a change in at least what he was communicating as to who
was making his decisions. But he certainly understood what we
were telling him.”
(f) Disposition
The district court denied postconviction relief. The court
concluded that the record affirmatively showed hessler was
competent at the time of the sentencing hearing; therefore,
counsel could not have been ineffective in not raising the issue
of competency. hessler appeals.
III. ASSIGNMeNTS OF errOr
hessler assigns that the postconviction court erred by failing
to find that trial counsel was ineffective in failing to raise and
preserve the issue of competence.
IV. STANDArD OF reVIeW
[1] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact.13
[2] On appeal from a proceeding for postconviction relief,
the trial court’s findings of fact will be upheld unless such find-
ings are clearly erroneous.14
13 State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).
14 State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009).
946 	282 NeBrASKA rePOrTS

[3] Determinations regarding whether counsel was deficient
and whether the defendant was prejudiced are questions of law
that we review independently of the lower court’s decision.15
V. ANALYSIS
In this appeal from the denial of postconviction relief, the
question is whether trial counsel was ineffective by failing to
ask for a competency hearing before the court allowed hessler
to proceed pro se at sentencing. hessler argues that an inquiry
during a competency hearing might have revealed he was not
competent to stand trial. even if competent to stand trial, he
argues he may not have been competent to represent himself.
hessler acknowledges that it is traditionally the burden of the
petitioner to more affirmatively demonstrate prejudice, but he
argues he was unable to do so in this case because counsel’s
failure to request a competency hearing left him with an insuf-
ficient record on which to prove a postconviction claim.
[4,5] We first address whether hessler’s postconviction
motion is procedurally barred. A motion for postconviction
relief cannot be used to secure review of issues that were
known to the defendant and could have been litigated on direct
review.16 however, when a defendant was represented both at
trial and on direct appeal by lawyers employed by the same
office, the defendant’s first opportunity to assert ineffective
assistance of trial counsel is in a motion for postconviction
relief.17 hessler was represented by the Nebraska Commission
on Public Advocacy at trial and on direct appeal. While hessler
also filed a pro se brief on direct appeal, we will, given the
unusual circumstances of the appeal and the gravity of the
issues alleged and sentences imposed, treat these postconvic-
tion proceedings as hessler’s first opportunity to raise claims
of ineffective assistance of counsel.18 We also note that while
we determined in Hessler I that the trial court did not err in
15 State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
16 State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995), abrogated on other
grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
17 State v. Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009).
18 See State v. Johnson, 4 Neb. App. 776, 551 N.W.2d 742 (1996).
STATe v. heSSLer 	947
Cite as 282 Neb. 935

failing to hold a competency hearing sua sponte,19 this was a
different legal question than whether defense counsel should
have requested a competency hearing.20
[6,7] Postconviction relief is a very narrow category of relief
available only to remedy prejudicial constitutional violations.21
The defendant has the burden in postconviction proceedings of
demonstrating ineffectiveness of counsel, and the record must
affirmatively support that claim.22 Specifically, the defendant
must show, in accordance with Strickland v. Washington,23 that
counsel’s performance was deficient; that is, counsel’s perform-
ance did not equal that of a lawyer with ordinary training
and skill in criminal law in the area.24 Second, the defendant
must show that counsel’s deficient performance prejudiced
the defense in his or her case; that is, there was a reasonable
probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.25 The two
prongs of this test, deficient performance and prejudice, may
be addressed in either order.26
[8,9] In order to demonstrate prejudice from counsel’s failure
to investigate competency and for failure to seek a competency
hearing, the defendant must demonstrate that there is a reason-
able probability that he or she was, in fact, incompetent and that
the trial court would have found the defendant incompetent had
a competency hearing been conducted.27 Other courts have said
19 State v. Hessler, supra note 1.
20 Lawrence v. State, 969 So. 2d 294 (Fla. 2007).
21 See State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).
22 State v. Ray, 266 Neb. 659, 668 N.W.2d 52 (2003).
23 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. ed. 2d 674
(1984).
24 See State v. Watkins, 277 Neb. 428, 762 N.W.2d 589 (2009).
25 See id.
26 State v. Amaya, 276 Neb. 818, 758 N.W.2d 22 (2008).
27 See, Matheney v. Anderson, 377 F.3d 740 (7th Cir. 2004); Hull v. Kyler,
190 F.3d 88 (3d Cir. 1999); Williamson v. Ward, 110 F.3d 1508 (10th Cir.
1997); Futch v. Dugger, 874 F.2d 1483 (11th Cir. 1989); Felde v. Butler,
817 F.2d 281 (5th Cir. 1987); Nelson v. State, 43 So. 3d 20 (Fla. 2010);
Ridgley v. State, 148 Idaho 671, 227 P.3d 925 (2010).
948 	282 NeBrASKA rePOrTS

that in order to successfully advance a claim that counsel was
ineffective for failing to obtain or have a transcribed record for
review, a defendant must demonstrate specific prejudice result-
ing from not having that record.28 Counsel is not ineffective for
failing “to undertake useless procedural challenges merely to
create a record impregnable to assault for claimed inadequacy
of counsel.”29
The issue of prejudice in this case is necessarily bound up in
the law of competency, and we will turn to that now.30 In doing
so, we consider the state of the law at the time of the proceed-
ings at issue.31
[10] An individual has a constitutional right not to be put to
trial when lacking “mental competency.”32 This includes sen-
tencing.33 In Guatney, we said that the test of competency to
stand trial is whether the defendant has the capacity to under-
stand the nature and object of the proceedings against him, to
comprehend his own condition in reference to such proceed-
ings, and to make a rational defense.34 We held that the defend-
ant in Guatney was clearly competent when expert witnesses
agreed he could appreciate the proceedings in court; understand
the nature of the roles that the judge, the prosecutor, and the
defense attorney would play; and cooperate with his attorneys
to provide for a defense.35 The defendant’s unstable emotional
state, paranoid ideation, occasional outbursts in court and
28 See, e.g., Bates v. State, 3 So. 3d 1091 (Fla. 2009).
29 People v. Shelburne, 104 Cal. App. 3d 737, 744, 163 Cal. rptr. 767, 772
(1980).
30 See Hull v. Kyler, supra note 27.
31 See, State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006); State v.
Billups, 263 Neb. 511, 641 N.W.2d 71 (2002).
32 See Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. ed. 2d 345
(2008).
33 See, e.g., State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999); State v.
Johnson, supra note 18; Neb. rev. Stat. § 29-1823(1) (reissue 2008).
34 State v. Guatney, supra note 12.
35 Id.
STATe v. heSSLer 	949
Cite as 282 Neb. 935

“desire for undeserved punishment rather than justice,” did not
render him incompetent.36
[11] A criminal defendant also has a constitutional right to
waive the assistance of counsel and conduct his or her own
defense.37 In Godinez v. Moran,38 the U.S. Supreme Court
held that the competency standard for determining whether a
defendant may waive the right to counsel and plead guilty is
the same as the standard for determining whether a defendant
is competent to stand trial.
The defendant in Godinez was evaluated by two psychia-
trists prior to trial. Both concluded that despite a suicide
attempt after the crimes, the defendant was able to understand
the pending proceedings and assist counsel in his defense.
Two months after pleading not guilty, the defendant sought
to discharge his attorneys, plead guilty, and represent himself
at sentencing so he could prevent the presentation of mitigat-
ing evidence and be sentenced to death. The court found the
defendant to be competent and accepted his plea as freely and
voluntarily given and his waiver of counsel as knowingly and
intelligently made.39
After being sentenced to death, the defendant asked for post-
conviction relief, asserting that the trial court erred in allowing
him to represent himself and in accepting his plea. The Ninth
Circuit Court of Appeals granted the motion, reasoning that
competency to waive constitutional rights required a higher
level of the “capacity for ‘reasoned choice’”40 than did the
requirement to stand trial, which is that a defendant have a
“‘rational and factual understanding of the proceedings and is
capable of assisting his counsel.’”41 The U.S. Supreme Court
disagreed. It noted that the decision to plead guilty is no more
36 Id. at 505, 299 N.W.2d at 541.
37 See State v. Lewis, 280 Neb. 246, 785 N.W.2d 834 (2010).
38 Godinez v. Moran, 509 U.S. 389, 113 S. Ct. 2680, 125 L. ed. 2d 321
(1993).
39 Id.
40 See 509 U.S. at 397.
41 See 509 U.S. at 394.
950 	282 NeBrASKA rePOrTS

complicated than the sum total of decisions a defendant must
make during the course of a trial when represented by counsel,
such as whether to take the witness stand, waive the right to a
jury trial, and other strategic choices.42
The Court reiterated that “a criminal defendant’s ability
to represent himself has no bearing upon his competence to
choose self-representation.”43 “requiring that a criminal defend-
ant be competent,” the Court said, “has a modest aim: It seeks
to ensure that he has the capacity to understand the proceedings
and to assist counsel.”44
Subsequently, in State v. Dunster (Dunster I)45 and State v.
Dunster (Dunster II),46 we upheld the defendant’s decision to
waive counsel, plead guilty, and proceed pro se at the sentenc-
ing hearing despite defendant’s strategy of pursuing “‘suicide
by state.’”47 The defendant was on Prozac, Depakote, and
Librium and was diagnosed with bipolar disorder. however, he
had told the court that the medication and his disorder did not
affect his ability to understand what was going on around him.48
The trial court later conducted a competency hearing requested
by counsel during a brief moment after pleading guilty when
the defendant stated he wished to have counsel. A psychiatrist
testified that the defendant was well oriented and understood
the charges and the possible consequences. The defendant was
subsequently allowed to again waive counsel and proceed to
represent himself at sentencing.
After sentencing, the defendant filed a motion for new trial
based on previously undisclosed medical records indicating an
acute psychotic episode and undiagnosed depression. The trial
court stated that the defendant’s mental condition had “‘ebbed
and flowed’” during the sentencing hearing, but that he was
42 Godinez v. Moran, supra note 38.
43 509 U.S. at 400 (emphasis in original).
44 509 U.S. 402.
45 State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
46 State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005).
47 Id. at 779, 707 N.W.2d at 417.
48 Dunster II, supra note 46. See, also, Dunster I, supra note 45.
STATe v. heSSLer 	951
Cite as 282 Neb. 935

legally competent, and the motion for new trial was denied.49
We affirmed, reasoning that the record and the trial court’s spe-
cific findings of competency made it clear that had the newly
discovered evidence been known, the trial court would have
reached the same conclusion.50
Later, in the case of State v. Gunther,51 we affirmed the trial
court’s implicit determination of competency as part of the
waiver of counsel colloquy when there was no separate hearing
on competency. Like the defendant in Dunster I, the defendant
in Gunther wished to proceed pro se at trial and at sentencing
in order to be put to death.52 Although no notice of aggravat-
ing circumstances had been filed, and the death penalty was
thus not a possibility, the defendant wished to discharge his
attorneys because he thought they were colluding with the
prosecution to deny him the death penalty.53 We held that the
record showed the defendant was sufficiently aware of his right
to have counsel and to understand the charges against him, the
possible sentences, and the possible consequences of foregoing
counsel.54 he was accordingly legally competent to stand trial
and represent himself, despite paranoid thoughts and a desire
for capital punishment.
[12] There are no fixed or immutable signs of incompe-
tence.55 As the above cases illustrate, a defendant can meet
the “modest aim”56 of legal competency, despite paranoia,
emotional disorders, unstable mental conditions, and suicidal
tendencies. The desire for capital punishment certainly does
not create a reasonable probability of incompetency.57 This is
49 Dunster II, supra note 46, 270 Neb. at 783, 707 N.W.2d at 420.
50 Id.
51 State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).
52 Id.
53 Id.
54 Id.
55 Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. ed. 2d 103 (1975).
56 Godinez v. Moran, supra note 38, 509 U.S. at 402.
57 See, also, e.g., State v. Cowans, 87 Ohio St. 3d 68, 717 N.e.2d 298
(1999).
952 	282 NeBrASKA rePOrTS

not an overly uncommon or inherently irrational trial strategy.
Furthermore, a rule requiring reversal when a capital defendant
chooses self-representation and insists on the death penalty
“could easily be misused by a knowledgeable defendant who
wished to embed his trial with reversible error.”58
hearing voices representing messages from God does not,
without evidence of how the messages affect the defendant’s
ability to comprehend the trial proceedings and make a rational
defense, demonstrate incompetence.59 And as one court noted,
psychiatric clinicians are especially careful in characterizing
religious beliefs or experiences as delusional.60
The fundamental question is whether the defendant’s mental
disorder or condition prevents the defendant from having the
capacity to understand the nature and object of the proceed-
ings, to comprehend the defendant’s own condition in reference
to such proceedings, and to make a rational defense.61
In the hundreds of pages of medical records, hessler’s
correspondence, and psychological reports and evaluations,
and in the testimony of hessler’s trial counsel and of hessler
himself, there is no indication that hessler was incompetent to
stand trial. Neither did hessler’s actions before the sentenc-
ing panel indicate he was unable to maneuver through those
proceedings.
The “Interlocutory Statement of the Defendant” was unusu-
ally worded. It was thus difficult, but not impossible, to under-
stand. The sentiment conveyed in the statement was report-
edly guided by hessler’s religious experiences and beliefs.
The vocabulary was apparently derived from religious books
58 People v. Taylor, 47 Cal. 4th 850, 865, 220 P.3d 872, 882, 102 Cal rptr. 3d
852, 865 (2009). See, also, e.g., State v. Cowans, supra note 57.
59 See, Crawley v. Dinwiddie, 584 F.3d 916 (10th Cir. 2009); Ford v.
Bowersox, 256 F.3d 783 (8th Cir. 2001); State v. Paulino, 127 Conn. App.
51, 12 A.3d 628 (2011); State v. Young, 623 So. 2d 689 (La. App. 1993);
State v. Hope, 96 N.C. App. 498, 386 S.e.2d 224 (1989). See, also, e.g.,
Williams v. State, 396 So. 2d 267 (Fla. App. 1981); Calambro v. District
Court, 114 Nev. 961, 964 P.2d 794 (1998).
60 See Bottoson v. Moore, 234 F.3d 526 (11th Cir. 2000).
61 State v. Guatney, supra note 12.
STATe v. heSSLer 	953
Cite as 282 Neb. 935

hessler was reading. This does not demonstrate a reason-
able probability that hessler was incompetent at the time of
sentencing. hessler testified that he never spoke in such an
unusual manner. Pickens did not observe any form of incoher-
ent or unusual speech when he met with hessler shortly before
the sentencing hearing. hessler’s written communications on
other matters to prison staff reflects a completely different tone
and content which were appropriate to hessler’s age and edu-
cation and the topic at hand.
The only other possible evidence presented by hessler relat-
ing to incompetence was Pickens’ report that hessler said
he heard voices relaying God’s messages and that he had to
obey God’s commands. But Pickens also described these as
“thoughts which resemble voices.” And, at the evidentiary hear-
ing, hessler failed to acknowledge ever having heard voices.
he also failed to present any evidence explaining in more detail
the nature of these “voices” and how they might have affected
his ability to understand the sentencing proceedings.
As already discussed, we will not assume that hearing mes-
sages from God and following God’s perceived commands,
without more, demonstrate incompetence. hessler provided
no evidence that the alleged “voices” made him incompetent.
Similarly, the evidence that hessler was prescribed psychiatric
medications which he may or may not have been taking at the
time of sentencing does not demonstrate incompetence, absent
some expert testimony connecting the medications to his ability
to understand the proceedings and assist in his defense.
Mowbray and Pickens testified that at the time of sentenc-
ing, there was no doubt hessler was competent under the stan-
dards set forth in Guatney.62 They knew their client. hessler’s
general demeanor and his responses to questions specifically
geared toward assessing competency demonstrated to Mowbray
and Pickens that he understood the nature of the proceedings
and was capable of assisting counsel (or himself).
hessler’s profession that he was under God’s control was
not new. Similar sentiments had been shared with Arias, who
concluded that hessler demonstrated a “clear and organized
62 See State v. Guatney, supra note 12.
954 	282 NeBrASKA rePOrTS

attempt to portray himself in an overly negative light, particu-
larly with regard to psychotic symptoms to explain his behav-
ior.” Prison psychological records similarly report a tendency
of “exaggerating” symptoms. A report near the time of sen-
tencing stated that hessler was displaying appropriate thought
patterns consistent with reality and on track. As noted by the
district court, rather than meeting his burden of affirmatively
demonstrating incompetence, the record developed at the evi-
dentiary hearing affirmatively shows that hessler met the legal
standard of competency required to waive counsel and proceed
pro se at sentencing.
In fact, hessler ultimately concedes he failed to demonstrate
a reasonable probability that he would have been found incom-
petent had trial counsel demanded a competency hearing prior
to the sentencing hearing. Thus, he failed to show prejudice in
the traditional sense required at postconviction. hessler instead
argues the prejudice lies in the absence of a meaningful record
with which he could prove such incompetency.
We have already discussed the substantial record developed
at trial and during the evidentiary hearing on the issue of com-
petency. What hessler is truly arguing is that trial counsel’s
failure to call for a competency hearing resulted in the possible
loss of vital additions to that evidence. Because competency
changes over time, hessler argues he can never obtain the
evidence that trial counsel failed to obtain at the time of the
sentencing hearing and he can never know what that evidence
would or would not have been.
recognizing that the law does not consider this to be proof
of prejudice, hessler suggests we adopt a special prejudice rule
for death penalty cases. Under the proposed rule, counsel is put
on “inquiry notice”63 when a defendant reports hearing voices.
Once put on notice, counsel is per se ineffective for failing to
call for a competency hearing, unless there is a strategic reason
not to do so.
We decline to adopt such a rule. Counsel is not required
to move for a competency hearing at every alleged sign of
mental illness. Counsel is not required “to undertake useless
63 Brief for appellant at 14.
STATe v. heSSLer 	955
Cite as 282 Neb. 935

procedural challenges merely to create a record impregnable
to assault for claimed inadequacy of counsel.”64 Insofar as the
failure to call into question the defendant’s competency could
conceivably be deemed prejudicial because of a lost moment
in time, the defendant must still demonstrate specific preju-
dice resulting from not having the hearing.65 That showing is
not made through mere speculation that a hearing might have
revealed something more.
At hessler’s disposal was a large medical file, several wit-
nesses to hessler’s behavior, numerous exemplars of hessler’s
written communications, and several psychological assess-
ments and reports. Yet, hessler did not present any testimony
or opinion which even attempted a retrospective evaluation of
the probability that hessler was incompetent at the time of the
sentencing hearing. Perhaps most notably, hessler did not pre-
sent the testimony of the prison psychiatrist who was treating
hessler at the time of the sentencing hearing and who presum-
ably would have some insight into his competency.
hessler was granted an evidentiary hearing and was granted
the appointment of counsel at the evidentiary hearing. he was
given an opportunity to present evidence demonstrating that
had counsel called for a competency hearing, he would have
been found incompetent to stand trial and waive counsel. he
failed to make such a showing. Accordingly, the district court
properly denied postconviction relief.
VI. CONCLUSION
hessler failed to demonstrate that a constitutional violation
occurred when trial counsel did not move for a competency
hearing before the sentencing hearing. We affirm the judgment
of the district court denying postconviction relief.
A ffirmed.
heAviCAN, C.J., and W right, J., not participating.
64 People v. Shelburne, supra note 29, 104 Cal. App. 3d at 744, 163 Cal. rptr.
at 772.
65 See, e.g., Bates v. State, supra note 28.
956 	282 NeBrASKA rePOrTS