State v. Watkins

742 	284 NEBRASKA REPORTS
trust funds belonging to the Trust. In creating the account,
Shirley did not intend for Robin to have survivorship rights
to the remaining balance of $77,937.09, and the account most
nearly conforms to an agency or convenience account. Robin
converted the funds in the account for her own use by refusing
to turn them over to the Trust. Accordingly, we affirm the deci-
sion of the district court.
A ffirmed.
StAte of NebrASkA, Appellee, v.
dAmieN d. WAtkiNS, AppellANt.
825 N.W.2d 403
Filed November 30, 2012. 	No. S-11-1105.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Postconviction: Constitutional Law: Proof. A court must grant an eviden-
tiary hearing to resolve the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an infringement of the
defendant’s rights under the Nebraska or federal Constitution.
3. Postconviction: Proof. If a postconviction motion alleges only conclusions of
fact or law, or if the records and files in the case affirmatively show that the
defendant is entitled to no relief, the court is not required to grant an eviden-
tiary hearing.
4. Postconviction: Constitutional Law: Appeal and Error. In appeals from post-
conviction proceedings, an appellate court reviews de novo a determination that
the defendant failed to allege sufficient facts to demonstrate a violation of his or
her constitutional rights or that the record and files affirmatively show that the
defendant is entitled to no relief.
5. Postconviction: Appeal and Error. Whether a claim raised in a postconviction
proceeding is procedurally barred is a question of law.
6. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusion.
7. Postconviction. The need for finality in the criminal process requires that a
defendant bring all claims for relief at the first opportunity.
8. Postconviction: Appeal and Error. It is fundamental that a motion for postcon-
viction relief cannot be used to secure review of issues which were known to the
defendant and could have been litigated on direct appeal.
9. ____: ____. An appellate court will not entertain a successive motion for post-
conviction relief unless the motion affirmatively shows on its face that the
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

STATE v. WATKINS 	743
Cite as 284 Neb. 742
basis relied upon for relief was not available at the time the movant filed the
prior motion.
Appeal from the District Court for Douglas County: G reGory
m. S chAtz, Judge. Affirmed.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
heAvicAN, c.J., WriGht, coNNolly, StephAN, mccormAck,
miller-lermAN, and cASSel, JJ.
cASSel, J.
INTRODUCTION
In 	a 	second 	postconviction 	proceeding, 	the 	appellant
attempted to raise the issue of his competence to enter a guilty
plea but he alleged no reason why the issue could not have
been asserted in his direct appeal or his first postconviction
proceeding. Because the need for finality in the judicial process
demands application of a procedural bar rule, we affirm the
district court’s judgment.
BACKGROUND
In 2004, while represented by counsel, Damien D. Watkins
pled guilty to second degree murder. The district court sen-
tenced him to 40 years to life in prison.
Through 	appellate 	counsel 	different 	from 	trial 	counsel,
Watkins filed a direct appeal. Watkins assigned only that the
district court erred in denying his motion to withdraw his guilty
plea without holding an evidentiary hearing. On November 16,
2005, in case No. S-05-271, this court sustained the State’s
motion for summary affirmance.
In 2006, Watkins filed a motion for postconviction relief.
He alleged the denial of a fair trial and due process when the
trial court accepted his guilty plea without first advising him
of his right to the assistance of counsel at trial and receiving
acknowledgment of that right. Watkins asserted that he was
denied the effective assistance of trial counsel concerning an
alleged breach of the plea agreement by the State. He also

744 	284 NEBRASKA REPORTS
claimed a denial of the effective assistance of appellate counsel
by counsel’s failure to raise the above issues on appeal. The
district court appointed counsel different from trial and appel-
late counsel to represent Watkins. Following an evidentiary
hearing, the court denied the motion. Upon Watkins’ appeal
assisted by yet another attorney, this court found no error and
affirmed the district court’s judgment.1
In 2011, Watkins filed a pro se second verified motion for
postconviction relief and request for an evidentiary hearing. He
again asserted that he was denied his constitutional rights to a
fair trial, to due process of law, and to effective assistance of
counsel. More specifically, Watkins alleged that his rights were
violated when the trial court accepted his guilty plea without
first advising him of his right to the assistance of counsel at
trial and receiving an acknowledgment from Watkins, which
Watkins claimed made his plea not knowingly, intelligently,
voluntarily, understandingly, and freely made. Watkins alleged
that he was denied the effective assistance of counsel when
trial counsel (1) advised Watkins not to alert the court con-
cerning Watkins’ mental health history, (2) failed to move
to suppress Watkins’ confession, (3) failed to investigate the
facts and merits of the case, and (4) failed to inform the court
that Watkins was on a mind-altering medication. Watkins also
alleged that appellate counsel failed to effectively communi-
cate with him prior to filing the appeal and that counsel failed
to raise all appealable issues. Watkins attached exhibits to his
postconviction motion relating to his May 2003 admission to a
mental health center.
The State moved to dismiss Watkins’ motion without an evi-
dentiary hearing, contending that Watkins was asserting argu-
ments that could have been raised in the previous postconvic-
tion motion. The district court granted the State’s motion and
dismissed Watkins’ motion for postconviction relief without an
evidentiary hearing. The court reasoned that Watkins’ “mental
situation” had been known to him since he entered his plea in
October 2004 and that the other issues raised in the motion had
already been litigated.
1 See State v. Watkins, 277 Neb. 428, 762 N.W.2d 589 (2009).

STATE v. WATKINS 	745
Cite as 284 Neb. 742
Watkins timely appealed. The State filed a motion for sum-
mary affirmance, which we overruled.
ASSIGNMENT OF ERROR
Watkins assigns the following error: “Because Nebraska law
states there is no ‘procedural bar in postconviction proceed-
ings of issues relating to competency to stand trial,’ the district
court erred when, based solely on its finding that the issues
were procedurally barred, it dismissed . . . Watkins’ compe-
tency issues without an evidentiary hearing.”
STANDARD OF REVIEW
[1] A defendant requesting postconviction relief must estab-
lish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.2
[2-4] A court must grant an evidentiary hearing to resolve
the claims in a postconviction motion when the motion contains
factual allegations which, if proved, constitute an infringe-
ment of the defendant’s rights under the Nebraska or federal
Constitution.3 If a postconviction motion alleges only con-
clusions of fact or law, or if the records and files in the case
affirmatively show that the defendant is entitled to no relief,
the court is not required to grant an evidentiary hearing.4 In
appeals from postconviction proceedings, we review de novo a
determination that the defendant failed to allege sufficient facts
to demonstrate a violation of his or her constitutional rights or
that the record and files affirmatively show that the defendant
is entitled to no relief.5
[5,6] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law.6 When reviewing
questions of law, an appellate court resolves the questions inde-
pendently of the lower court’s conclusion.7
2 State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011).
3 State v. Edwards, ante p. 382, 821 N.W.2d 680 (2012).
4 Id.
5 Id.
6 State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
7 Id.

746 	284 NEBRASKA REPORTS
ANALYSIS
[7-9] The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first opportu-
nity.8 Therefore, it is fundamental that a motion for postcon-
viction relief cannot be used to secure review of issues which
were known to the defendant and could have been litigated on
direct appeal.9 Similarly, an appellate court will not entertain a
successive motion for postconviction relief unless the motion
affirmatively shows on its face that the basis relied upon
for relief was not available at the time the movant filed the
prior motion.10
Watkins 	had 	two 	previous 	opportunities 	to 	raise 	his
competency-related claims: (1) his direct appeal and (2) his
first motion for postconviction relief. His second motion for
postconviction relief does not show on its face that the com-
petency issues were unknown or unavailable to him at those
earlier opportunities. Further, the motion does not attempt to
state any reason why the competency issues were not raised in
the prior proceedings. The record shows that no issue relating
to competency was raised despite Watkins’ having been repre-
sented by four different attorneys: his initial counsel at the time
of his guilty plea, a second attorney on direct appeal, a third
attorney during the first postconviction proceedings at the trial
court level, and yet another attorney on the first postconvic-
tion appeal.
In the second postconviction proceeding, the district court
concluded that the competency issues were procedurally barred
because Watkins did not raise them in his first motion for post-
conviction relief. We agree.
Nearly 40 years ago, this court applied a procedural bar
to a claim challenging competency to stand trial.11 In State v.
Fincher,12 the defendant had originally filed a direct appeal
challenging the excessiveness of his sentence, which was
8 State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).
9 Id.
10 Id.
11 See State v. Fincher, 191 Neb. 446, 216 N.W.2d 172 (1974).
12 Id.

STATE v. WATKINS 	747
Cite as 284 Neb. 742
affirmed.13 He subsequently lost on appeal from the denial of
postconviction relief, where he alleged incompetence, ineffec-
tive assistance of counsel, error involving jury instructions,
and a failure of proof.14 The defendant then filed a petition
for a writ of habeas corpus in federal court challenging the
propriety of jury instructions on an insanity defense, the
effectiveness of counsel, and the failure of the trial court to
hold a hearing on the defendant’s competency to stand trial.
But the federal court dismissed the petition without prejudice
because the defendant had not exhausted his state remedies
as to the trial court’s failure to hold a competency hearing.
The defendant filed a second postconviction motion, which
was summarily overruled. In affirming the district court’s
judgment on appeal, this court stated: “‘There ought to be
some final end to litigation in a criminal case. . . . There is no
justification for allowing a prisoner to continue litigation end-
lessly by piecemeal [postconviction] attacks on his conviction
and sentence.’”15
Watkins asserts that where issues relating to competency to
stand trial are involved, Nebraska law does not allow a proce-
dural bar in postconviction proceedings. He relies upon State
v. Johnson.16 In that case, the defendant did not file a direct
appeal. In a postconviction motion, the defendant alleged that
trial counsel was ineffective for failing to raise the issue of
competency. The Nebraska Court of Appeals determined that
the record failed to demonstrate that counsel was ineffective,
but found that there was plain error due to the trial court’s fail-
ure to hold a full hearing on the defendant’s competency when
the court was faced with reasonable doubt regarding compe-
tency. The Johnson court noted that Fincher17 was procedurally
distinguishable and stated, in dicta, “[T]he continued viability
of the rule used to deny relief in Fincher has to be very much
13 See State v. Fincher, 188 Neb. 376, 196 N.W.2d 909 (1972).
14 See State v. Fincher, 189 Neb. 746, 204 N.W.2d 927 (1973).
15 State v. Fincher, supra note 11, 191 Neb. at 447, 216 N.W.2d at 173,
quoting State v. Reichel, 187 Neb. 464, 191 N.W.2d 826 (1971).
16 State v. Johnson, 4 Neb. App. 776, 551 N.W.2d 742 (1996).
17 State v. Fincher, supra note 11.

748 	284 NEBRASKA REPORTS
in doubt at this point.”18 The Johnson court discussed two
decisions from this court which suggested a procedural bar
in postconviction proceedings when competency to stand trial
was not raised on direct appeal: State v. Painter19 and State v.
Rehbein.20 However, the Johnson court concluded that there
should not be a procedural bar, stating:
[D]espite the suggestions in Painter and Rehbein, we
do not believe the law is that there is a procedural bar
in postconviction proceedings of issues relating to com-
petency to stand trial, and we decline to impose such
a procedural bar for these issues in this postconviction
proceeding. In reaching this conclusion, we bear in mind
the sanctity of constitutional protections and the need to
guard against constitutionally infirm convictions.21
Approximately 3 years after Johnson,22 this court again
applied a procedural bar to a competency claim raised for the
first time in a second motion for postconviction relief.23 In
State v. Ryan,24 the defendant did not raise any issues regard-
ing competency to stand trial on direct appeal or in his first
motion for postconviction relief. The trial court determined
that the competency claims were procedurally barred but that
even if not barred, the defendant was not entitled to relief
because he was clearly competent during his trial. This court
agreed, stating that because the defendant failed to raise the
competency issue on direct appeal or in his first postconvic-
tion proceeding, the claim was procedurally barred unless the
defendant could show that the basis for relief was unavailable
when the prior motions were filed. This court reasoned that
the reports on the defendant’s mental condition, which were
prepared before his trial, were available to the defendant and
his counsel at all times. We stated, “Allowing [the defendant]
18 State v. Johnson, supra note 16, 4 Neb. App. at 800, 551 N.W.2d at 758.
19 State v. Painter, 229 Neb. 278, 426 N.W.2d 513 (1988).
20 State v. Rehbein, 235 Neb. 536, 455 N.W.2d 821 (1990).
21 State v. Johnson, supra note 16, 4 Neb. App. at 801, 551 N.W.2d at 758.
22 State v. Johnson, supra note 16.
23 See State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999).
24 Id.

STATE v. WATKINS 	749
Cite as 284 Neb. 742
to first raise the issue of competency after more than 10 years
of appellate litigation during which [the defendant] chose not
to raise the issue would make a mockery of the finality of the
judicial process.”25
Watkins points out that Ryan26 did not overrule Johnson.27
He contends that the Ryan court did not hold that the proce-
dural bar must be imposed on every defendant who fails to
raise a constitutional issue at the first opportunity and then
upon subsequently raising it, fails to show that it was previ-
ously unavailable. Thus, he contends that we should not apply
the procedural bar rule. We disagree.
We reaffirm our holdings in Fincher28 and Ryan.29 As in
those cases, the instant case involves a successive motion for
postconviction relief. In contrast, the competency issue was
raised in Johnson30 in a first postconviction proceeding after
no direct appeal had been taken. While the trial court’s col-
loquy with the defendant in Johnson at the time of the plea
raised an obvious issue of competence, the district court’s col-
loquy with Watkins at the time of his guilty plea does not sug-
gest any such problem. Watkins’ admission to a mental health
center predated his guilty plea, and he has not alleged that his
mental health records were not available to his attorneys in
any of the prior proceedings. Watkins essentially asks for a
rule establishing that an issue related to competency to stand
trial or to enter a plea is never procedurally barred. While we
recognize the constitutional imperative of an accused’s com-
petence to enter a guilty plea,31 we reject the argument that
a procedural bar can never apply to an issue of competence.
Because of the need for finality, we decline to establish such
a rule.
25 Id. at 662, 601 N.W.2d at 493.
26 State v. Ryan, supra note 23.
27 State v. Johnson, supra note 16.
28 State v. Fincher, supra note 11.
29 State v. Ryan, supra note 23.
30 State v. Johnson, supra note 16.
31 See Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815
(1966).

750 	284 NEBRASKA REPORTS
CONCLUSION
Because Watkins did not allege that the competency-related
issues he raised in his second motion for postconviction relief
were not available previously or could not have been raised
either on direct appeal or in his first postconviction proceeding,
the claims are procedurally barred. We affirm the judgment of
the district court.
A ffirmed.
StAte of NebrASkA, Appellee, v.
ryAN l. poe, AppellANt.
822 N.W.2d 831
Filed November 30, 2012. 	No. S-12-141.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of
ineffective assistance of counsel is a mixed question of law and fact.
3. ____: ____. When reviewing a claim of ineffective assistance of counsel, an
appellate court reviews the factual findings of the lower court for clear error.
4. ____: ____. With regard to the questions of counsel’s performance or preju-
dice 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.
5. Postconviction: Constitutional Law: Judgments: Proof. An evidentiary hear-
ing on a motion for postconviction relief is required on an appropriate motion
containing factual allegations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution, causing the judgment
against the defendant to be void or voidable.
6. Postconviction. An evidentiary hearing is not required when a motion for post-
conviction relief alleges only conclusions of fact or law.
7. Postconviction: Constitutional Law: Judgments: Proof. If a defendant makes
sufficient allegations of a constitutional violation which would render a judg-
ment void or voidable, an evidentiary hearing on a motion for postconviction
relief may be denied only when the records and files affirmatively show that the
defendant is entitled to no relief.
8. Constitutional Law: Trial: Due Process. The Due Process Clause of the U.S.
Constitution guarantees every defendant the right to a trial comporting with basic
tenets of fundamental fairness.