State v. Vo

the director is merely investigative or ministerial. Compare
Finer Foods Sales Co., Inc. v. Block, 708 F.2d 774 (D.C. Cir.
1983). Instead, I believe that the risk of bias and unfairness
was intolerably high and that there was a violation of due
process in this case. I would reverse the decision of the Court
of Appeals.
C onnolly, J., joins in this concurrence and dissent.
State of nebraSka , appellee ,
v. thoi vo, appellant.
783 N.W.2d 416
Filed June 4, 2010. 	No. S-09-912.
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. An evidentiary hearing on a motion
for postconviction relief must be granted when the motion contains factual allega-
tions which, if proved, constitute an infringement of the movant’s rights under the
Nebraska or federal Constitution. However, if the motion alleges only conclusions
of fact or law, or the records and files in the case affirmatively show that the mov-
ant is entitled to no relief, no evidentiary hearing is required.
3. Pleas. A plea of no contest is equivalent to a plea of guilty.
4. Pleas: Waiver. Normally, a voluntary guilty plea waives all defenses to a crimi-
nal charge.
5. Postconviction: Appeal and Error. A motion for postconviction relief cannot be
used to secure review of issues which were known to the defendant and which
were or could have been litigated on direct appeal.
6. Postconviction: Pleas: Effectiveness of Counsel. In a postconviction action
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 assist-
ance of counsel.
7. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order
to establish a right to postconviction relief based on a claim of ineffective assist-
ance of counsel, the defendant has the burden, in accordance with Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show
that counsel’s performance was deficient and 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.
8. Trial: Pleas: Mental Competency. A person is competent to plead or stand trial
if he or she has the capacity to understand the nature and object of the proceedings
against him or her, to comprehend his or her own condition in reference to such
proceedings, and to make a rational defense.
964 	279 NEbrASkA rEporTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

9. ____: ____: ____. The test of mental capacity to plead is the same as that
required to stand trial.
10. Pleas: Mental Competency: Right to Counsel: Waiver. A court is not required
to make a competency determination in every case in which a defendant seeks to
plead guilty or to waive his or her right to counsel; a competency determination
is necessary only when a court has reason to doubt the defendant’s competence.
11. Effectiveness of Counsel. Defense counsel is not ineffective for failing to raise
an argument that has no merit.
12. Postconviction: Right to Counsel. Under the Nebraska postconviction Act, it is
within the discretion of the trial court as to whether counsel shall be appointed to
represent the defendant.
Appeal from the District Court for Lancaster County: Jodi
nelSon, Judge. Affirmed.
Thoi Vo, pro se.
Jon bruning, Attorney General, and Nathan A. Liss for
appellee.
heaviCan, 	C.J., 	Wright, 	C onnolly, 	gerrard, 	Stephan,
MCC orMaCk, and M iller-lerMan, JJ.
Stephan, J.
Thoi Vo appeals from the denial of his motion for postcon-
viction relief without an evidentiary hearing. We affirm.
I. bACkGroUND
In April 2007, Vo was charged by information with first
degree murder and use of a weapon to commit a felony.
represented by counsel and assisted by an interpreter, he
entered a not guilty plea. on December 11, the State amended
the information to one count of second degree murder, and Vo,
again with counsel and the assistance of an interpreter, entered
a plea of no contest. before accepting the plea, the district
court found that Vo was not under the influence of alcohol,
drugs, narcotics, or other pills. In the course of this determina-
tion, Vo informed the court that he had some “mental prob-
lems” for which he had last seen a doctor in 2001. Vo stated
that he did not take any medication for mental problems. Vo
informed the court that he knew that he was appearing before
a court in Lincoln for the purpose of entering a plea. The court
STATE v. Vo 	965
Cite as 279 Neb. 964

specifically found that Vo was following the questions, was
giving suitable answers, and appeared physically normal.
The court also informed Vo of the rights and privileges he
would be waiving by entering the plea. The court specifically
asked whether Vo was freely and voluntarily giving up his
rights and stated, “In other words, is this what you want to
do?” Vo responded, “Yes.” The court also asked, “[o]ther than
[the] plea agreement, which may be a promise — the State
may have promised you that they would amend this from a
first-degree murder to a second-degree murder. other than that
promise, have any other promises been made to you at all?
. . . And I mean by anybody.” Vo responded, “No.” In response
to the court’s inquiry, Vo’s counsel stated that he believed
that Vo was waiving his rights freely, voluntarily, knowingly,
and intelligently.
The court also asked Vo whether he had told his counsel
everything he knew about the case, and Vo responded that he
had and that he was satisfied with the efforts of his counsel on
his behalf. regarding the plea agreement, the court told Vo:
I want you to understand that I’m not bound by plea nego-
tiations. And if I accept your plea of no contest, I don’t
have to accept any recommendation being made by the
County Attorney, [your counsel,] or anyone else as to what
the sentence ought to be. Do you understand that?
Vo responded that he did. The court also told Vo that it could
take into consideration “all of the circumstances surrounding
the charges” in determining the sentence to be imposed. In
addition, the court asked Vo, “Has anyone made any promises
to you or represented to you in any way what the sentence will
be in this case if I accept your plea and find you guilty?” Vo
responded, “No.”
The 	State 	then 	offered 	a 	factual 	basis 	for 	the 	plea.
Summarized, the basis was that Vo and the victim were involved
in a minor vehicular accident in Lancaster County. Vo and his
passenger argued with the victim, and the confrontation esca-
lated into a fistfight. At one point, onlookers pulled Vo out of
the fight, and he then returned to his vehicle, retrieved a knife,
and stabbed the victim in the abdomen. Vo then used the same
knife to puncture the tires on the victim’s car, and then left the
966 	279 NEbrASkA rEporTS

area with his passenger. At least three eyewitnesses saw the
crime, and Vo admitted to police that he stabbed the victim.
While incarcerated, Vo admitted to several cellmates that he
had stabbed the victim.
At the sentencing hearing, Vo’s counsel referred to a psy-
chological evaluation performed on Vo at the Lincoln regional
Center in 2000, noting that it had resulted in a diagnosis of
“pervasive developmental disorder.” prior to pronouncing the
sentence, the court stated that it was aware of this diagnosis
and of other reports of Vo’s mental health that were included
in the presentence report. The court sentenced Vo to 50 years
to life in prison.
After his direct appeal was summarily affirmed, Vo filed
a pro se verified motion for postconviction relief, in which
he alleged that his trial counsel was ineffective (1) in dealing
with his mental competency in the trial court and on appeal
and (2) in advising him and his family that he would receive
a sentence of imprisonment of 20 to 40 years in exchange
for his no contest plea. Vo also alleged that the State com-
mitted “prosecutorial misconduct” by “hiding the true nature
of [Vo’s] mental health and physical deformities.” The State
filed a responsive motion requesting the court to deny the
postconviction motion without an evidentiary hearing based
upon the files and records of the case. After conducting a hear-
ing on this motion, the district court determined that the files
and records of the case established that Vo was not entitled
to the postconviction relief he sought and therefore overruled
his motion without conducting an evidentiary hearing. Vo per-
fected this timely appeal.
II. ASSIGNMENTS oF Error
Vo’s assignments of error include certain general proposi-
tions which are not directed to a specific ruling by the district
court and therefore are not considered on appeal. Vo properly
assigns, restated and consolidated, that the district court erred
in denying his motion for postconviction relief without an evi-
dentiary hearing on the issues of (1) whether the State commit-
ted prosecutorial misconduct and (2) whether his trial counsel,
who also represented him on direct appeal, was ineffective.
STATE v. Vo 	967
Cite as 279 Neb. 964

We also understand Vo to contend that the district court erred
in not appointing counsel to represent him in this postconvic-
tion proceeding.
III. STANDArD oF rEVIEW
[1,2] A defendant requesting postconviction relief must
establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.1
An evidentiary hearing on a motion for postconviction relief
must be granted when the motion contains factual allegations
which, if proved, constitute an infringement of the movant’s
rights under the Nebraska or federal Constitution.2 However,
if the motion alleges only conclusions of fact or law, or the
records and files in the case affirmatively show that the movant
is entitled to no relief, no evidentiary hearing is required.3
IV. ANALYSIS
1. proSeCutorial M iSConduCt
[3-5] Vo was convicted and sentenced based upon his plea
of no contest to the charge of second degree murder. A plea of
no contest is equivalent to a plea of guilty.4 Normally, a volun-
tary guilty plea waives all defenses to a criminal charge.5 Vo’s
plea waived any claim of prosecutorial misconduct. Moreover,
any such claim would be procedurally barred under the prin-
ciple that a motion for postconviction relief cannot be used to
secure review of issues which were known to the defendant
and which were or could have been litigated on direct appeal.6
1 State v. Molina, ante p. 405, 778 N.W.2d 713 (2010); State v. Nesbitt, ante
p. 355, 777 N.W.2d 821 (2010).
2 State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009); State v. Jim, 275
Neb. 481, 747 N.W.2d 410 (2008).
3 Id.
4 State v. Amaya, 276 Neb. 818, 758 N.W.2d 22 (2008); State v. Lassek, 272
Neb. 523, 723 N.W.2d 320 (2006).
5 State v. Watkins, 277 Neb. 428, 762 N.W.2d 589 (2009); State v. McLeod,
274 Neb. 566, 741 N.W.2d 664 (2007).
6 State v. Moore, 272 Neb. 71, 718 N.W.2d 537 (2006); State v. Harris, 267
Neb. 771, 677 N.W.2d 147 (2004).
968 	279 NEbrASkA rEporTS

Accordingly, there is no merit in Vo’s argument that the district
court erred in dismissing his postconviction claim based upon
prosecutorial misconduct.
2. ineffeCtive aSSiStanCe of C ounSel
[6,7] In a postconviction action brought by a defendant con-
victed because of a guilty plea or a plea of no contest, a court
will consider an allegation that the plea was the result of inef-
fective assistance of counsel.7 In order to establish a right to
postconviction relief based on a claim of ineffective assistance
of counsel, the defendant has the burden, in accordance with
Strickland v. Washington,8 to show that counsel’s performance
was deficient and that counsel’s deficient performance preju-
diced the defense in his or her case.9 The two prongs of this
test, deficient performance and prejudice, may be addressed in
either order.10 because Vo’s conviction was the result of a plea,
the prejudice requirement is satisfied if he can show a reason-
able probability that, but for the errors of counsel, he would
have insisted on going to trial rather than pleading.11
Vo assigns and briefly argues that his counsel was ineffec-
tive in “failing to establish that the victim initiated the fight-
ing,” but that issue was not raised in Vo’s motion for postcon-
viction relief and therefore is not properly before us on appeal.
We therefore address only the claims that Vo’s counsel was
ineffective in not raising competency issues and in promising
Vo that he would receive a specific sentence if he entered a
plea of no contest.
(a) Competency
[8-10] based upon the assertion that he is a person with
mental retardation, Vo argues that his counsel was ineffective
in failing to seek a competency hearing in the district court and
7 State v. Watkins, supra note 5; State v. McLeod, supra note 5.
8 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
9 State v. McKinney, ante p. 297, 777 N.W.2d 555 (2010).
10 Id.
11 See State v. Glover, 278 Neb. 795, 774 N.W.2d 248 (2009).
STATE v. Vo 	969
Cite as 279 Neb. 964

in failing to raise a competency issue on appeal. A person is
competent to plead or stand trial if he or she has the capacity
to understand the nature and object of the proceedings against
him or her, to comprehend his or her own condition in refer-
ence to such proceedings, and to make a rational defense.12 The
test of mental capacity to plead is the same as that required
to stand trial.13 A court is not required to make a competency
determination in every case in which a defendant seeks to
plead guilty or to waive his or her right to counsel; a compe-
tency determination is necessary only when a court has reason
to doubt the defendant’s competence.14
Vo’s allegation that he was incompetent to plead because he
is a person with mental retardation is flawed in two respects.
First, the files and records do not support and indeed refute
Vo’s claim that he is a person with mental retardation. Vo
contends that the diagnosis was made during a psychological
evaluation conducted by the Adolescent and Family Services
team at the Lincoln regional Center in 2000, when Vo was 17
years old and subject to the jurisdiction of a juvenile court. A
report of the evaluation is included in the record. The report
reflects that Vo “appears to have the characteristics of a per-
vasive developmental disorder” characterized by “severe and
pervasive impairment in reciprocal social interaction skills and
in communication skills.” The report further indicates that the
development disorder “is often associated with some degree of
mental retardation” and that while an IQ test was not adminis-
tered, Vo’s performances on other tests “suggest either border-
line or retarded mental functioning.” In a letter dated January
21, 2008, which was included in the presentence report, the
supervising psychologist for the 2000 evaluation stated:
A pervasive developmental disorder is not the same
as an intellectual disorder, as in mental retardation. At
the time of the [Adolescent and Family Services] evalua-
tion there was concern with [Vo’s] intellectual deficit,
12 State v. Lassek, supra note 4.
13 Id.
14 State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007). See, also, Godinez
v. Moran, 509 U.S. 389, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993).
970 	279 NEbrASkA rEporTS

but his language and cross-cultural problems made an
intellectual test invalid although there was enough evi-
dence to raise the possibility of intellectual problems a[t]
that time. However, additional school nonverbal testing
reports suggest impaired intelligence is not a primary
problem — on some nonverbal tests he scored within the
normal range.
The record also reflects that after the 2000 evaluation, Vo
was referred to another facility for further evaluation. A psy-
chological report dated March 24, 2001, was completed by a
licensed supervising psychologist, a licensed mental health
practitioner, and a licensed professional counselor at this
facility. That report indicates that after testing, the examiners
were “unable to substantiate any of the necessary deficits that
would indicate any type of pervasive developmental disorder
or to even bring cause for a rule out diagnosis. [Vo’s] over-
all functioning surpasses what would indicate symptoms for
pervasive developmental disorder.” The examiners diagnosed
Vo with a general anxiety disorder and opined that “the prior
diagnosis of pervasive Developmental Disorder does not accu-
rately describe . . . Vo at this time.” The presentence report
includes Vo’s school records, which reflect that he graduated
from high school in 2003 and achieved grades which, while
not exemplary, sometimes included A’s, b’s, and C’s in math
and reading classes. After high school, Vo attended commu-
nity college and worked for an electrical company perform-
ing wiring.
Second, even if a diagnosis of mental retardation were
established, it would not necessarily imply incompetence to
plead or stand trial.15 State v. Bradford16 was a postconviction
proceeding in which the defendant contended that he was not
competent to enter a guilty plea because he was a person with
mental retardation. The record reflected that the defendant had
been diagnosed with moderate mental retardation, as well as
alcohol abuse, mild organic brain syndrome, and a personality
15 See, State v. Tully, 226 Neb. 651, 413 N.W.2d 910 (1987); State v.
Bradford, 223 Neb. 908, 395 N.W.2d 495 (1986).
16 State v. Bradford, supra note 15.
STATE v. Vo 	971
Cite as 279 Neb. 964

encompassing the schizotypal and antisocial personality classi-
fications. Despite this, we concluded that other evidence in the
record and the defendant’s responses to the court’s questioning
at the plea hearing were sufficient to establish the defendant’s
competency at the time of the plea.
[11] As noted, the record establishes that Vo does not have a
cognitive mental impairment. In addition, the record of his plea
hearing refutes his current claim that he was incompetent to
enter his no contest plea. Vo’s responses to questions from the
court were appropriate and reflected his knowledge that he was
appearing in court for the purpose of entering a no contest plea
and that he understood the consequences of such action as they
were explained to him by the judge. because the record affirm-
atively reflects that Vo was competent to enter his plea, his
counsel could not have been ineffective in not raising an issue
of competency, either in the trial court or on appeal. Defense
counsel is not ineffective for failing to raise an argument that
has no merit.17
(b) promise of Specific Sentence
Vo also contends that his counsel was ineffective in promis-
ing him and his family that if he entered a no contest plea, he
would receive a sentence of either 20 to 30 or 20 to 40 years’
imprisonment. Vo contends that but for that promise, he would
not have entered his plea.
The record of the plea hearing refutes this claim. In response
to direct and specific questioning by the judge, Vo affirmed that
no one had made any promises, aside from the plea agreement,
in exchange for his plea. Vo also affirmed that entering a plea
was what he wanted to do, and then again agreed that other
than the plea agreement, no “other promises [had] been made
to [him] at all . . . by anybody.” After the plea agreement was
stated to the court, the judge informed Vo:
I want you to understand that I’m not bound by plea
negotiations. And if I accept your plea of no contest, I
don’t have to accept any recommendation being made
by 	the 	County Attorney, 	[your 	counsel,] 	or 	anyone
17 State v. McLeod, supra note 5.
972 	279 NEbrASkA rEporTS

else as to what the sentence ought to be. Do you under-
stand that?
Vo responded that he did. The judge then specifically asked Vo
whether anyone had made any promises to him or represented
to him what his sentence would be, and he said, “No.” Having
unequivocally represented to the court on the record that no
promises were made by anyone regarding his sentence, Vo is
not entitled to an evidentiary hearing on his postconviction
claim to the contrary.
3. appointMent of C ounSel
[12] Vo argues that a court should be required to appoint
postconviction counsel for any person with mental retardation.
As we have noted, the record refutes Vo’s claim that he is a per-
son with mental retardation. Under the Nebraska postconviction
Act, it is within the discretion of the trial court as to whether
counsel shall be appointed to represent the defendant.18 When
the assigned errors in a postconviction petition before the dis-
trict court contain no justiciable issues of law or fact, it is not
an abuse of discretion to fail to appoint counsel for an indigent
defendant.19 because Vo’s postconviction motion presents no
justiciable issues, the district court properly refused to appoint
postconviction counsel.
4. plain error
In his pro se brief, Vo specifically requests that we review the
judgment of the district court for plain error. We find none.
V. CoNCLUSIoN
For the reasons discussed, we affirm the judgment of the
district court dismissing Vo’s motion for postconviction relief
without an evidentiary hearing.
affirMed.
18 Id.; State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
19 State v. McLeod, supra note 5.
STATE v. Vo 	973
Cite as 279 Neb. 964