State v. Amaya

stAte oF neBrAskA, Appellee , v.
JAy d. AMAyA, AppellAnt.
758 N.W.2d 22
Filed December 5, 2008. 	No. S-07-1117.
1. 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.
2. Appeal and Error. An alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to be considered by an
appellate court.
3. Pleas. A plea of no contest is equivalent to a plea of guilty.
4. Postconviction: Pleas: Waiver: Effectiveness of Counsel. Normally, a voluntary
guilty plea waives all defenses to a criminal charge. However, in a postconviction
proceeding brought by a defendant convicted because of a guilty plea or a plea
of no contest, a court will consider an allegation that the plea was the result of
ineffective assistance of counsel.
5. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order to
establish a right to postconviction relief based on a claim of ineffective assistance
of counsel, the defendant has the burden first to show that counsel’s performance
was deficient; that is, counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law in the area. Next, the defendant must
show that counsel’s deficient performance prejudiced the defense in his or her
case. The two prongs of this test, deficient performance and prejudice, may be
addressed in either order.
6. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is
based upon a guilty plea or a plea of no contest, the prejudice requirement for
an ineffective assistance of counsel claim is satisfied if the defendant shows a
reasonable probability that but for the errors of counsel, the defendant would have
insisted on going to trial rather than pleading guilty.
7. Postconviction: Effectiveness of Counsel: Presumptions: Proof. Under certain
circumstances, the nature of counsel’s deficient conduct in the context of the prior
proceedings can lead to a presumption of prejudice, negating the defendant’s need
to offer evidence of actual prejudice in a postconviction case.
8. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and Error.
After a trial, conviction, and sentencing, if counsel deficiently fails to file or
perfect an appeal after being so directed by the criminal defendant, prejudice will
be presumed and counsel will be deemed ineffective, thus entitling the defendant
to postconviction relief.
Appeal from the District Court for Lincoln County: donAld
e. rowlAnds, Judge. Affirmed.
Scott H. Trusdale, of Trusdale & Trusdale, P.C., L.L.O.,
for appellant.
818 	276 NEBrASkA rEPOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

Jon Bruning, Attorney General, and George r. Love for
appellee.
H eAvicAn, 	c.J., 	wrigHt, 	connolly, 	gerrArd, 	stepHAn,
MccorMAck , and M iller-lerMAn, JJ.
stepHAn, J.
In 1998, Sheri Fhuere was sexually assaulted and killed in
her home in North Platte, Nebraska. michael E. Long and Jay
D. Amaya were arrested and charged in connection with the
crimes. Amaya entered pleas of no contest and was convicted
on one count of first degree murder, one count of use of a
knife in the commission of a felony, and one count of sexual
assault. The district court for Lincoln County imposed con-
secutive sentences of life imprisonment on the murder con-
viction, 10 to 20 years’ imprisonment on the weapon convic-
tion, and 20 to 40 years’ imprisonment on the sexual assault
conviction. No direct appeal was filed. In 2006, Amaya filed
a verified motion for postconviction relief. After appoint-
ing counsel and conducting an evidentiary hearing, the dis-
trict court denied postconviction relief. Amaya appeals from
that order.
BACkGrOUND
When police arrived at Fhuere’s home on July 16, 1998,
they found Long attempting to resuscitate her. Fhuere had been
beaten and sexually assaulted, and her throat had been slashed.
There was a severe bite mark on her left thigh. Fhuere was
pronounced dead at the scene, and a pathologist later deter-
mined that she died as the result of either the slash wound or
the beating.
Long was interviewed several times over the next hours
and eventually gave a written statement to police dated July
16, 1998. Although there were inconsistencies in his story,
he generally told officers that he and Amaya beat Fhuere
and that Amaya slashed her throat. Long also told the offi-
cers where to find the knife that Amaya used, and he stated
that Amaya had bitten Fhuere during the assault. A forensic
dentist later matched the bite mark to a dental impression
STATE v. AmAYA 	819
Cite as 276 Neb. 818

of Amaya’s teeth. DNA testing established the presence of
Fhuere’s blood on Amaya’s shoe. Amaya wrote letters con-
fessing to the crimes.
Both Long and Amaya were charged with first degree mur-
der. Amaya was also charged with use of a deadly weapon to
commit a felony and first degree sexual assault. Long entered
into a plea agreement with the State. In exchange for his testi-
mony against Amaya, the charges against Long were reduced
to aiding and abetting second degree murder and aiding and
abetting first degree sexual assault. Long was sentenced to 25
years’ to life imprisonment on the murder conviction and 5 to
10 years’ imprisonment on the sexual assault conviction.
Amaya’s appointed trial counsel deposed Long after Long
had entered into the plea agreement but before Amaya had
entered his no contest pleas. The deposition revealed that
Long had significant drug, alcohol, and mental health issues
that began in his early teens and continued at the time of the
deposition. It also revealed that he had given several statements
about Fhuere’s death to the police and that, in general, each
succeeding statement tended to mitigate his culpability and
exaggerate Amaya’s. Long stated during this deposition that
the written statement he had given to police on July 16, 1998,
was truthful. He also stated, however, that he was extremely
intoxicated the night of the murder and that some of the details
in the statement were not correct. He admitted that he had also
told officers that evening that he had blacked out and could not
remember everything that had happened.
After Long had been deposed, and after being fully advised
of his rights, Amaya entered the no contest pleas in exchange
for the State’s agreement not to seek the death penalty or intro-
duce evidence of aggravating circumstances. Prior to entering
the pleas, Amaya wrote a letter to his attorneys expressing his
desire to avoid the death penalty. The pleas were entered on
October 19, 1999, and Amaya was sentenced on November 19.
On November 22, counsel wrote a letter to Amaya informing
him of his right to appeal. The letter advised Amaya that the
deadline for filing a notice of appeal was December 20, 1999,
and further stated:
820 	276 NEBrASkA rEPOrTS

If you wish to appeal, or discuss that matter further,
please notify me as soon as possible so that I will have
time to prepare and file the necessary paperwork. Since
some of the appeal documents require your signature, I
have enclosed with this letter the following:
1. Application to Proceed In Forma Pauperis;
2. Financial Affidavit;
3. motion and Order.
If you decide to appeal, you must complete these plead-
ings, sign them, have your signature notarized and return
them to my office no later than December 20, 1999.
On December 9, 1999, counsel received a letter from Amaya
stating in part: “Here are the forms you sent me all filled out.
About the appeal they could reduce my time but they could
not give me more [time] or more charges right? Please get a
hold of me to let me know.” Counsel replied on the same day
and advised Amaya of the State’s statutory right to appeal a
sentence as excessively lenient. Counsel further stated in the
same letter that he did not recommend filing an appeal, but that
the final decision on the matter was Amaya’s. The letter spe-
cifically stated: “If you do wish to appeal, please let me know
and the appeal will be filed. The appeal must be on file on or
before December 20, 1999.” Counsel testified that he received
no further direction from Amaya regarding an appeal.
On November 21, 2006, Amaya filed a verified motion for
postconviction relief. The motion alleged that he received inef-
fective assistance of counsel in 10 particulars. After an eviden-
tiary hearing, the district court denied relief in a detailed order
analyzing each of Amaya’s postconviction claims. Amaya filed
this timely appeal.
ASSIGNmENTS OF ErrOr
Amaya assigns that the district court erred in (1) denying
relief on the 10 areas of alleged ineffective assistance of coun-
sel set forth in his motion for postconviction relief, (2) failing
to determine that trial counsel did not conduct proper discovery
with regard to Long’s statements, and (3) failing to determine
that trial counsel did not file a direct appeal after being asked
to do so.
STATE v. AmAYA 	821
Cite as 276 Neb. 818

STANDArD OF rEVIEW
[1] 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.1
ANALYSIS
[2] Amaya’s first assignment of error is very broad and is
not argued in his brief. An alleged error must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the error to be considered by an appellate court.2
Accordingly, we address only the two assignments of error
which Amaya has argued.
investigAtion oF long’s stAteMent
prior to pleAs
[3,4] As noted, Amaya entered pleas of no contest to the
charges on which he was convicted. A plea of no contest is
equivalent to a plea of guilty.3 Normally, a voluntary guilty
plea waives all defenses to a criminal charge. However, in a
postconviction proceeding brought by a defendant convicted
because of a guilty plea or a plea of no contest, a court will
consider an allegation that the plea was the result of ineffective
assistance of counsel.4 In his motion for postconviction relief,
Amaya alleged that his trial counsel was ineffective in failing
to “[a]dequately pursue discovery” in order to obtain informa-
tion regarding Long’s “‘[d]eal’” with the prosecutor.
[5,6] Familiar principles of law govern our consideration of
this claim. In order to establish a right to postconviction relief
based on a claim of ineffective assistance of counsel, the defend-
ant has the burden first to show that counsel’s performance was
deficient; that is, counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law in the
1 State v. Barnes, 272 Neb. 749, 724 N.W.2d 807 (2006); State v. Ortiz, 266
Neb. 959, 670 N.W.2d 788 (2003).
2 State v. Dockery, 273 Neb. 330, 729 N.W.2d 320 (2007); State v. Kuehn,
273 Neb. 219, 728 N.W.2d 589 (2007).
3 State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006); State v. Gonzalez-
Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003).
4 State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).
822 	276 NEBrASkA rEPOrTS

area.5 Next, the defendant must show that counsel’s deficient
performance prejudiced the defense in his or her case.6 The two
prongs of this test, deficient performance and prejudice, may
be addressed in either order.7 When a conviction is based upon
a guilty plea or a plea of no contest, the prejudice requirement
for an ineffective assistance of counsel claim is satisfied if the
defendant shows a reasonable probability that but for the errors
of counsel, the defendant would have insisted on going to trial
rather than pleading guilty.8
To buttress his argument that his trial counsel failed to con-
duct sufficient “discovery” with respect to Long, Amaya directs
us to an affidavit executed by Long in 2007, after Amaya filed
his postconviction motion. In this affidavit, Long avers that in
his July 16, 1998, statement to police, he falsely placed the
blame on Amaya in order to exact revenge after police told him
that Amaya had implicated him in the crimes. Long further
stated in the 2007 affidavit that he did not “know for sure what
went on the night of the crime” because he was so “high and
drunk” that he could not “remember what I was doing let alone
what . . . Amaya was doing.” Amaya argues that Long’s state-
ment to police was the key piece of evidence against him and
that if his counsel had done more to investigate, Long’s state-
ment would have been discredited before he entered his pleas.
Without expressly saying so, Amaya implies that if Long’s
statement had been properly tested by his counsel, he would
not have agreed to enter his pleas.
The record clearly reflects that Amaya’s trial counsel did not
accept Long’s July 16, 1998, statement at face value. Before
Amaya entered his pleas, counsel deposed Long with respect
to the various statements Long had given to police. This ques-
tioning established that Long had at times lied to police, but he
maintained that his written statement implicating Amaya in the
5 State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008); State v. Smith, 269
Neb. 773, 696 N.W.2d 871 (2005).
6 Id.
7 State v. Lopez, 274 Neb. 756, 743 N.W.2d 351 (2008).
8 State v. McLeod, supra note 4.
STATE v. AmAYA 	823
Cite as 276 Neb. 818

crimes was true. Also, Long’s plea agreement with the prosecu-
tor was produced at his deposition.
In a deposition received at the postconviction hearing,
Amaya’s trial counsel testified that Long’s anticipated trial tes-
timony was only a part of the body of incriminating evidence
confronting Amaya at the time he entered his no contest pleas.
Other items included the victim’s blood on Amaya’s shoe, the
determination of a forensic dentist that Amaya had inflicted the
bite wound, and various letters in which Amaya had confessed
to the crimes. The district court agreed with trial counsel’s
characterization of this evidence of guilt as “bordering on over-
whelming.” The district court also determined that Amaya’s
allegations that trial counsel did not adequately investigate
Long’s statements were “patently frivolous.” The court fur-
ther determined that Long’s 2007 affidavit had “no credibility
whatsoever,” because it was “impossible to separate fact from
fiction in anything which Long says about this case or Amaya’s
involvement therein.” Based upon our review of the record,
the district court’s findings of fact on this issue are not clearly
erroneous, and therefore, we conclude that the court did not err
in denying this claim for postconviction relief.
A lleged FAilure to F ile direct A ppeAl
[7,8] Amaya contends that his trial counsel was ineffective
for failing to file a direct appeal in response to his request that
he do so. Under certain circumstances, the nature of counsel’s
deficient conduct in the context of the prior proceedings can
lead to a presumption of prejudice, negating the defendant’s
need to offer evidence of actual prejudice in a postconviction
case.9 After a trial, conviction, and sentencing, if counsel defi-
ciently fails to file or perfect an appeal after being so directed
by the criminal defendant, prejudice will be presumed and
counsel will be deemed ineffective, thus entitling the defendant
to postconviction relief.10
9 State v. Davlin, 265 Neb. 386, 658 N.W.2d 1 (2003); State v. Trotter, 259
Neb. 212, 609 N.W.2d 33 (2000).
10 State v. Barnes, supra note 1; State v. Deckard, 272 Neb. 410, 722 N.W.2d
55 (2006).
824 	276 NEBrASkA rEPOrTS

Assuming without deciding that the same principle would
apply where conviction is the result of a guilty or no contest
plea, the critical question of fact is whether Amaya directed
his counsel to file a direct appeal on his behalf. After review-
ing the evidence received at the postconviction hearing, the
district court concluded that he did not. As noted above, the
final letter which counsel sent to Amaya specifically requested
that Amaya notify him if he wished to file an appeal. After
receiving conflicting evidence, the district court found that
counsel “never heard again” from Amaya and that Amaya’s
statements to the contrary were not credible. Based upon
our review of the record, we conclude these findings are not
clearly erroneous.
CONCLUSION
For the reasons discussed, we conclude that the district
court did not err in denying Amaya’s motion for postconviction
relief, and we affirm its judgment.
AFFirMed.
in re interest oF Joel A nAyA, A cHild under
18 yeArs oF Age .
stAte oF neBrAskA, Appellee , v. Josue A nAyA
And MAry A nAyA, AppellAnts.
758 N.W.2d 10
Filed December 5, 2008. 	No. S-07-1136.
1. Moot Question: Jurisdiction: Appeal and Error. mootness does not prevent
appellate jurisdiction.
2. ____: ____: ____. Because mootness is a justiciability doctrine that operates
to prevent courts from exercising jurisdiction, an appellate court reviews moot-
ness determinations under the same standard of review as other jurisdictional
questions. When a jurisdictional question does not involve a factual dispute, its
determination is a matter of law, which requires an appellate court to reach a
conclusion independent of the decisions made by the lower courts.
3. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional is a question of law; accordingly, the Nebraska Supreme Court is obligated
to reach a conclusion independent of the decision reached by the court below.
4. Courts: Jurisdiction. Although not a constitutional prerequisite for jurisdiction,
an actual case or controversy is necessary for the exercise of judicial power.
IN rE INTErEST OF ANAYA 	825
Cite as 276 Neb. 825