State v. Biloff

Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d
94 (2002).
We agree with that holding and rationale. The trial judge’s find-
ing that Visoso will not be entitled to vocational rehabilitation
is premature. See Green v. Drivers Mgmt., Inc., supra. Whether
illegal alien status prevents an award of vocational rehabilita-
tion because such status prohibits working in this country is a
question that we need not reach.
CONCLUSION
For the reasons stated above, we affirm the findings of
the 	three-judge 	review 	panel 	for 	the 	Nebraska 	Workers’
Compensation Court.
A ffirmed.
StAte of NebrASkA, Appellee , v.
G reGory A. biloff, AppellANt.
778 N.W.2d 497
Filed December 1, 2009. 	No. A-09-175.
This opinion has been ordered permanently published by order
of the Court of Appeals dated December 14, 2009.
1. Criminal Law: Double Jeopardy. The Double Jeopardy Clause of the Fifth
Amendment to the U.S. Constitution protects against three distinct abuses: (1)
a second prosecution for the same offense after acquittal, (2) a second prosecu-
tion for the same offense after conviction, and (3) multiple punishments for the
same offense.
2. Double Jeopardy: Statutes: Proof. Where the same act or transaction constitutes
a violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or one is whether each provision requires proof of
a fact which the other does not.
3. Criminal Law: Double Jeopardy: Sexual Assault. Because first degree sexual
assault on a child and incest each includes at least one element which is
not included in the other, they are separate offenses for the purpose of dou-
ble jeopardy.
Appeal from the District Court for Lancaster County: kAreN
b. flowerS, Judge. Affirmed.
Calvin D. Hansen for appellant.
STATe v. BILOFF 	215
Cite as 18 Neb. App. 215
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

Jon Bruning, Attorney General, and erin e. Tangeman for
appellee.
irwiN, SieverS, and CArlSoN, Judges.
irwiN, Judge.
I. INTRODUCTION
Pursuant to this court’s authority under Neb. Ct. R. App.
P. § 2-111(B)(1) (rev. 2008), this case was ordered submit-
ted without oral argument. Gregory A. Biloff appeals from
the district court’s dismissal of his motion for postconviction
relief without an evidentiary hearing. On appeal, Biloff asserts
that the court erred in denying an evidentiary hearing and in
denying postconviction relief. For the reasons stated below, we
affirm the district court’s denial of Biloff’s motion.
II. BACKGROUND
In March 2005, Biloff’s 10-year-old daughter reported to
school officials that Biloff had been sexually abusing her for
approximately 5 years. She reported that the incidents of abuse
had occurred every other weekend when she and her younger
sister would stay with Biloff. As a result of these allegations,
Biloff was interviewed by police. Ultimately, Biloff admit-
ted that he had been abusing his daughter since she was 6
years old.
Biloff was charged with one count of first degree sexual
assault on a child and one count of incest. Biloff was arraigned,
and he entered a plea of not guilty to the charges. At some
point prior to trial, Biloff reached a plea agreement with the
State. Under the agreement, Biloff agreed to plead guilty to the
first degree sexual assault on a child charge, in exchange for
which the State agreed to dismiss the incest charge. The court
accepted Biloff’s plea and found him guilty of first degree
sexual assault on a child.
After a presentence investigation was completed, Biloff was
sentenced to 20 to 30 years’ imprisonment. Biloff appealed his
sentence to this court, arguing that it was excessive. This court
found that the sentence was within the statutory limits and that,
given the seriousness of the offense, there was no abuse of dis-
cretion. We summarily affirmed the sentence.
216 	18 NeBRASKA APPeLLATe RePORTS

Biloff then filed a motion for postconviction relief on the
basis of ineffective assistance of counsel. The district court
denied Biloff’s motion and denied Biloff an evidentiary hear-
ing on the matter. Biloff appeals here.
III. ASSIGNMeNT OF eRROR
Biloff has assigned three errors on appeal, which we con-
solidate for discussion to one: The district court erred in deny-
ing Biloff’s motion for postconviction relief without granting
an evidentiary hearing.
IV. STANDARD OF ReVIeW
An evidentiary hearing on a motion for postconviction relief
is not required if the motion alleges only conclusions of fact or
law or if the record and files in the case affirmatively establish
that the defendant is not entitled to relief. See State v. Billups,
263 Neb. 511, 641 N.W.2d 71 (2002).
Appellate review of a claim of ineffective assistance of coun-
sel is a mixed question of law and fact. State v. Rhodes, 277
Neb. 316, 761 N.W.2d 907 (2009). When reviewing a claim
of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. Id. With
regard to the questions of counsel’s performance or prejudice
to the defendant as part of the two-pronged test, an appellate
court reviews such legal determinations independently of the
lower court’s decision. Id.
V. ANALYSIS
In his motion for postconviction relief, Biloff made multiple
allegations regarding the alleged failures and omissions of his
trial counsel. As a result of these alleged failures and omis-
sions, Biloff argues, he was given ineffective counsel. Biloff
alleges, “But for the ineffectiveness of counsel, the results of
the proceedings would have been different” because Biloff
would have demanded his right to trial, rather than pleading
guilty to first degree sexual assault on a child. Upon our review
of each of the alleged failures of trial counsel, we conclude that
the assertions in Biloff’s motion lack merit.
One seeking postconviction relief has the burden of estab-
lishing the basis for such relief, and the findings of the
STATe v. BILOFF 	217
Cite as 18 Neb. App. 215

district court will not be disturbed on appeal unless clearly
erroneous. See State v. McHenry, 268 Neb. 219, 682 N.W.2d
212 (2004).
In order to establish a right to postconviction relief based on
a claim of ineffective counsel, the defendant has the burden to
show that counsel’s performance was deficient; that is, coun-
sel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law in the area. The defendant
must also show that counsel’s deficient performance prejudiced
the defense in his or her case. The two prongs of this test, defi-
cient performance and prejudice, may be addressed in either
order. Id.
In determining whether a trial counsel’s performance was
deficient, there is a strong presumption that such counsel
acted reasonably. Id. When reviewing a claim of ineffective
assistance of counsel, an appellate court will not second-guess
reasonable strategic decisions by counsel. Id.
In order to show prejudice, the defendant must demon-
strate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been
different. Id. When a defendant’s conviction involves a guilty
plea, the defendant will satisfy the element of prejudice if the
defendant can show a reasonable probability that but for the
errors of counsel, the defendant would have insisted on going
to trial rather than pleading guilty. See State v. Amaya, 276
Neb. 818, 758 N.W.2d 22 (2008). In the context of postconvic-
tion relief, a reasonable probability is a probability sufficient
to undermine confidence in the outcome. See Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. ed. 2d
674 (1984).
Before addressing the specific arguments Biloff makes on
appeal, we note that the issues raised are not procedurally
barred. Although a motion for postconviction relief cannot be
used to secure review of issues which were or could have been
litigated on direct appeal, Biloff was represented both at trial
and on direct appeal by the same lawyer. See State v. Rhodes,
277 Neb. 316, 761 N.W.2d 907 (2009). As such, his motion for
postconviction relief was his first opportunity to assert ineffec-
tive assistance of counsel.
218 	18 NeBRASKA APPeLLATe RePORTS

1. fAilure to A dviSe duriNG pleA proCeSS
Biloff first alleges that his trial counsel failed to properly
advise him during the plea process. Specifically, Biloff alleges
that his trial counsel failed to advise him that “a double jeop-
ardy claim was available to him to prevent the state from
charging him with [both first degree sexual assault on a child
and incest] regarding the same victim on the same date.” Biloff
further alleges that if he had been advised about the double
jeopardy issue, he would not have pled guilty, but would have
demanded his right to trial.
Contrary to Biloff’s allegations in his motion, first degree
sexual assault on a child and incest are not the same offense
for purposes of double jeopardy. As such, Biloff’s counsel was
not ineffective for failing to advise him that he could not be
convicted of both crimes.
[1] The Double Jeopardy Clause of the Fifth Amendment to
the U.S. Constitution protects against three distinct abuses: (1)
a second prosecution for the same offense after acquittal, (2) a
second prosecution for the same offense after conviction, and
(3) multiple punishments for the same offense. State v. Winkler,
266 Neb. 155, 663 N.W.2d 102 (2003). The protection provided
by Nebraska’s double jeopardy clause is coextensive with that
provided by the U.S. Constitution. State v. Winkler, supra.
A single transaction can give rise to distinct offenses under
separate statutes without violating the Double Jeopardy Clause.
See Albernaz v. U.S., 450 U.S. 333, 101 S. Ct. 1137, 67 L. ed.
2d 275 (1981). The Nebraska Supreme Court has held, “‘The
test is not whether the defendant has already been tried for the
same act, but whether he has been put in jeopardy for the same
offense.’” Warren v. State, 79 Neb. 526, 531, 113 N.W. 143,
145 (1907).
[2] Under Blockburger v. U.S., 284 U.S. 299, 52 S. Ct. 180,
76 L. ed. 306 (1932), where the same act or transaction consti-
tutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or one
is whether each provision requires proof of a fact which the
other does not. The Blockburger test applies equally to multiple
punishment and multiple prosecution cases. State v. Winkler,
supra. The Blockburger, or “same elements,” test asks whether
STATe v. BILOFF 	219
Cite as 18 Neb. App. 215

each offense contains an element not contained in the other.
Id. If not, they are the same offense and double jeopardy bars
additional punishment and successive prosecution. Id. If so,
they are not the same offense and double jeopardy is not a bar
to additional punishment or successive prosecution. In apply-
ing the Blockburger test to separately codified criminal statutes
which may be violated in alternative ways, only the elements
charged in the case at hand should be compared in determining
whether the offenses under consideration are separate or the
same for purposes of double jeopardy. Id.
Under the Blockburger test, if first degree sexual assault on a
child and incest each contain an element that is not contained in
the other, then they are not the same offense and double jeop-
ardy does not bar conviction or punishment for both offenses.
We now compare the elements of first degree sexual assault
on a child as defined by Neb. Rev. Stat. § 28-319(1) (Reissue
1995) and incest as defined by Neb. Rev. Stat. § 28-703
(Reissue 2008).
Section 28-319(1) stated: “Any person who subjects another
person to sexual penetration . . . when the actor is nineteen
years of age or older and the victim is less than sixteen years
of age is guilty of sexual assault in the first degree.” As such,
first degree sexual assault on a child requires proof of (1)
sexual penetration, (2) the age of the victim, and (3) the age of
the offender.
Section 28-703 states in pertinent part: “Any person who
shall knowingly . . . engage in sexual penetration with any
person who falls within the degrees of consanguinity set forth
in section 28-702 . . . commits incest.” As such, incest requires
proof of (1) sexual penetration, (2) degree of consanguin-
ity between the two parties, and (3) knowledge of the degree
of consanguinity.
[3] Proof of the degree of consanguinity between the parties
is not an element of first degree sexual assault on a child. Proof
of the age of the victim or the age of the offender is not an ele-
ment of incest. Because each of the charged offenses includes
at least one element which is not included in the other, they are
separate offenses for the purpose of double jeopardy. As such,
Biloff’s counsel was not ineffective for failing to advise him
220 	18 NeBRASKA APPeLLATe RePORTS

that he could not be convicted or punished for both crimes. His
assertion has no merit.
2. fAilure to iNveStiGAte
Biloff next alleges that his trial counsel failed to conduct
a complete factual investigation of his case, in that his trial
counsel failed to investigate, research, and prepare a motion to
suppress statements Biloff made to law enforcement; failed to
interview witnesses; failed to review the videotaped interviews
with the victim; and failed to consult experts. Biloff indicates
that this failure to investigate prevented his attorney from ade-
quately preparing for trial or providing him with sound advice
about whether to go to trial or accept the plea agreement with
the State.
Biloff does not allege facts to demonstrate that the state-
ment he gave to police was subject to suppression because
of constitutional violations. Rather, Biloff only alleges that
his statements “were not lawfully obtained.” In a postconvic-
tion motion, the pleading of mere conclusions of fact or of
law is not sufficient to require the court to grant an eviden-
tiary hearing. See State v. Lytle, 224 Neb. 486, 398 N.W.2d
705 (1987).
Biloff makes no allegations about what his attorney would
have uncovered had his attorney interviewed witnesses or
examined the evidence. It is not enough to allege that if coun-
sel had properly investigated, the defendant would not have
pled guilty. In addition to such an allegation, the defendant
must allege facts which tell the court why the result would
have been different. See State v. McHenry, 268 Neb. 219, 682
N.W.2d 212 (2004).
In addition, the record shows Biloff repeatedly indicated at
the plea proceeding that he had sufficient time to discuss his
case with his attorney and that he had discussed all available
defenses with his attorney. When the court asked Biloff if he
was satisfied with his attorney, Biloff responded, “Definitely,
yes.” Furthermore, during the plea colloquy, the trial court
informed Biloff that he had a right to request a suppression
hearing concerning any statements he had made to law enforce-
ment officials and that by pleading guilty, he was giving up that
STATe v. BILOFF 	221
Cite as 18 Neb. App. 215

right. Biloff affirmatively indicated that he understood that he
was waiving his right to a suppression hearing.
Biloff’s assertions concerning his counsel’s failure to inves-
tigate have no merit.
VI. CONCLUSION
Because Biloff’s postconviction motion alleged only conclu-
sions and because the record and files in this case affirmatively
establish that Biloff was not entitled to relief, we find that the
district court did not err in denying Biloff an evidentiary hear-
ing or in denying his motion. We therefore affirm.
A ffirmed.
levi J. bowmAN, AppellANt, v. beverly Neth ,
direCtor , StAte of NebrASkA, depArtmeNt
of motor vehiCleS, Appellee .
778 N.W.2d 751
Filed December 22, 2009. 	No. A-09-110.
1. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Evidence: Jurisdiction. The sworn report of the arresting officer is received into
the record by the hearing officer as the jurisdictional document of a license revo-
cation hearing, and upon the receipt of the sworn report, the order of revocation
by the director of the Department of Motor Vehicles has prima facie validity.
2. Records: Evidence: Waiver. When the record does not clearly indicate that an
exhibit has been received into evidence, a party objecting to the receipt of the
exhibit waived its objection when it did not insist upon a ruling on the objection,
and the evidence is in the record for consideration the same as other evidence.
3. Affidavits: Proof: Public Officers and Employees. An affidavit must bear on its
face, by the certificate of the officer before whom it is taken, evidence that it was
duly sworn to by the party making the same.
4. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Evidence: Affidavits. A sworn report in an administrative license revocation
proceeding is, by definition, an affidavit, which must bear on its face, by the
certificate of the officer before whom it is taken, evidence that it was duly sworn
to by the party making the same.
5. Affidavits. The test for proper acknowledgment of an affidavit is whether the
certificate of acknowledgment substantially complies with the requirements of
Nebraska law.
Appeal from the District Court for Cass County: dANiel e.
bryAN, Jr ., Judge. Affirmed.
222 	18 NeBRASKA APPeLLATe RePORTS