State v. Gunther

disagreement with § 29-2022 neither harmed Barranco nor
suggested any bias against him. Therefore, we find Barranco’s
sole assignment of error to be without merit.
ConClusion
For the foregoing reasons, the judgment of the district court
is affirmed.
A ffirmed.
H eAvicAn, C.J., not participating.
StAte of nebrASkA, Appellee , v.
micHAel J. G untHer , AppellAnt.
768 n.W.2d 453
Filed July 24, 2009. 	no. s-08-631.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the district court’s findings
will not be disturbed unless they are clearly erroneous.
2. Postconviction: Constitutional Law: Proof. in a motion for postconviction
relief under the nebraska Postconviction Act, neb. Rev. stat. §§ 29-3001 through
29-3004 (Reissue 2008), the defendant must allege facts which, if proved,
constitute a denial or violation of his or her rights under the u.s. or nebraska
Constitution, causing the judgment against the defendant to be void or voidable.
3. Right to Counsel: Effectiveness of Counsel. A defendant who elects to repre-
sent himself or herself cannot thereafter complain that the quality of his or her
own defense amounted to a denial of effective assistance of counsel.
4. Constitutional Law: Right to Counsel. There is no federal sixth Amendment
constitutional right to effective assistance of standby counsel, and there is no
right to effective assistance of standby counsel under neb. Const. art. i, § 11.
Appeal from the District Court for sarpy County: WilliAm
b. ZASterA, Judge. Affirmed.
Donald l. schense, of law office of Donald l. schense, for
appellant.
Jon Bruning, Attorney General, and George R. love for
appellee.
H eAvicAn, 	c.J., 	WriGHt, 	connolly, 	G errArd, 	StepHAn,
mccormAck , and miller-lermAn, JJ.
sTATe v. GunTheR 	173
Cite as 278 neb. 173
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

miller-lermAn, J.
nATuRe oF CAse
Michael J. Gunther appeals the denial of his motion for
postconviction 	relief 	without 	an 	evidentiary 	hearing. 	on
appeal, Gunther claims that he received ineffective assistance
of standby counsel at his trial, entitling him to postconviction
relief. Because we conclude that the standby counsel issue does
not raise a constitutional claim, we affirm the denial of post-
conviction relief without an evidentiary hearing.
sTATeMenT oF FACTs
At his trial in 2005, Gunther waived his right to counsel
and elected to represent himself. The district court for sarpy
County ordered standby counsel to be available to assist him.
Gunther was convicted by a jury of first degree murder and use
of a firearm to commit a felony. The court sentenced Gunther
to life imprisonment without parole on the murder conviction
and to imprisonment for 10 to 20 years on the firearm convic-
tion and ordered the sentences to be served consecutively.
Gunther was represented by counsel on direct appeal to this
court. on appeal, Gunther asserted, inter alia, that the district
court erred in allowing him to waive his right to counsel and
to proceed to trial on his own. We rejected his assignments
of error and affirmed his convictions and his sentence on the
firearm conviction, but we found error in his sentence of life
imprisonment without parole on the murder conviction, and we
remanded the cause with directions to sentence Gunther to life
imprisonment on the murder conviction. State v. Gunther, 271
neb. 874, 716 n.W.2d 691 (2006).
on April 22, 2008, Gunther filed a pro se motion for post-
conviction relief. Gunther alleged four grounds for relief: (1)
that he was denied a meaningful direct appeal, (2) that the trial
court conducted an improper competency evaluation, (3) that
he was provided ineffective assistance of standby counsel at
trial, and (4) that the trial court committed judicial misconduct
in various respects. Gunther requested an evidentiary hearing
and appointment of postconviction counsel.
The district court denied Gunther’s motion for postconvic-
tion relief without an evidentiary hearing and did not appoint
174 	278 neBRAskA RePoRTs

postconviction counsel. Regarding Gunther’s first ground for
relief, the court found that Gunther had had his direct appeal
to this court. Regarding Gunther’s second ground for relief, the
court found that issues regarding the competency evaluation
were discussed in this court’s opinion on direct appeal and that
the procedure was “approved” by this court. The court also
found that even if the specific competency evaluation issue
raised by Gunther was not addressed in the opinion, the issue
could have and should have been raised in the direct appeal
and was therefore procedurally barred in this postconviction
action. Regarding Gunther’s third ground for relief, the court
found that Gunther elected to represent himself at trial; that on
direct appeal, this court found his waiver of counsel to be valid
and noted no plain error with respect to standby counsel; and
that Gunther elected to bear the risks inherent in choosing to
represent himself. Regarding Gunther’s final ground for relief,
the court found that all the issues raised by Gunther regarding
alleged judicial misconduct could have been raised on direct
appeal and that this court found those issues that were raised
on direct appeal lacked merit. The court concluded that the
judicial misconduct issues were procedurally barred in this
postconviction action.
Gunther appeals the denial of his motion for postconviction
relief. Gunther is represented by counsel in this appeal.
AssiGnMenT oF eRRoR
Gunther asserts that the district court erred in failing to find
that he received ineffective assistance of standby counsel at
trial and in therefore denying his motion for postconviction
relief without an evidentiary hearing.
sTAnDARDs oF ReVieW
[1] A defendant requesting postconviction relief must estab-
lish the basis for such relief, and the district court’s findings
will not be disturbed unless they are clearly erroneous. State v.
Jackson, 275 neb. 434, 747 n.W.2d 418 (2008).
AnAlYsis
We note first that although Gunther makes the global asser-
tion that the court erred in denying his motion for postconviction
sTATe v. GunTheR 	175
Cite as 278 neb. 173

relief without an evidentiary hearing, Gunther’s arguments in
his brief are limited to only one of his claims for relief: that
he was provided ineffective assistance of standby counsel at
trial. Gunther made no argument either in his brief or at oral
argument with regard to the direct appeal and judicial mis-
conduct issues. At oral argument, Gunther made arguments
with regard to the competency evaluation issue but he did not
specifically assign error or specifically argue the issue in his
brief. To be considered by an appellate court, an error must be
both specifically assigned and specifically argued in the brief
of the party asserting the error. Malchow v. Doyle, 275 neb.
530, 748 n.W.2d 28 (2008). We therefore do not address the
other claims for postconviction relief which Gunther alleged in
his petition.
Gunther argues that the district court erred when it rejected
his claim that he received ineffective assistance of standby
counsel at trial. As explained below, we conclude that Gunther’s
claim of ineffective assistance of standby counsel as alleged in
this case does not assert a constitutional ground for postconvic-
tion relief and that therefore, the district court did not err when
it denied relief without an evidentiary hearing.
in his motion for postconviction relief, Gunther asserted
that he was denied effective assistance of counsel due to the
failings of his standby trial counsel. Gunther generally asserted
that standby counsel was ineffective for failing to make objec-
tions or advise Gunther to make objections at appropriate
times. Gunther’s allegations of ineffective assistance of coun-
sel are limited to allegations regarding the performance of
counsel as standby counsel; Gunther did not allege ineffective
assistance of counsel prior to the time he waived his right
to counsel.
[2] in a motion for postconviction relief under the nebraska
Postconviction 	Act, 	neb. 	Rev. 	stat. 	§§ 	29-3001 	through
29-3004 (Reissue 2008), the defendant must allege facts which,
if proved, constitute a denial or violation of his or her rights
under the u.s. or nebraska Constitution, causing the judgment
against the defendant to be void or voidable. State v. Jim, 275
neb. 481, 747 n.W.2d 410 (2008). The question therefore is
whether Gunther’s allegations that standby counsel provided
176 	278 neBRAskA RePoRTs

ineffective assistance, if proved, would constitute a denial
or violation of his constitutional rights. We conclude that
Gunther’s allegations would not constitute the denial or viola-
tion of his constitutional rights entitling him to postconvic-
tion relief.
[3] A claim for ineffective assistance of counsel in a post-
conviction action generally arises from the right to coun-
sel secured by the 6th and 14th amendments to the u.s.
Constitution and neb. Const. art. i, § 11. however, we noted
in Gunther’s direct appeal that a “defendant who elects to
represent himself or herself cannot thereafter complain that
the quality of his or her own defense amounted to a denial
of effective assistance of counsel.” State v. Gunther, 271
neb. 874, 888, 716 n.W.2d 691, 704 (2006) (citing Faretta
v. California, 422 u.s. 806, 95 s. Ct. 2525, 45 l. ed. 2d
562 (1975)). see, Wilson v. Parker, 515 F.3d 682, 696 (6th
Cir. 2008) (“[l]ogically, a defendant cannot waive his right
to counsel and then complain about the quality of his own
defense”); Williams v. Stewart, 441 F.3d 1030, 1047 n.6 (9th
Cir. 2006) (“[h]aving failed to show that his decision to repre-
sent himself was involuntary, [defendant] cannot claim that he
was denied the effective assistance of counsel at trial”). When
one validly waives one’s constitutional right to counsel, he or
she cannot thereafter seek postconviction relief based on the
denial or violation of that constitutional right.
in this case, Gunther’s request to represent himself was
granted. The decision to represent oneself is a choice exercised
by a defendant, and the appointment of standby counsel to assist
a pro se defendant is within the discretion of the trial court.
State v. Wilson, 252 neb. 637, 564 n.W.2d 241 (1997); State
v. Green, 238 neb. 328, 470 n.W.2d 736 (1991). it has been
stated and we agree that “a pro se defendant does not enjoy an
absolute right to standby counsel” and “a defendant does not
have a right to standby counsel of his own choosing.” U.S. v.
Webster, 84 F.3d 1056, 1063 (8th Cir. 1996). see, also, U.S. v.
Einfeldt, 138 F.3d 373, 378 (8th Cir. 1998) (“[t]here is no con-
stitutional right to hybrid representation” in which defendant
represents himself or herself but is assisted by standby counsel
on technical aspects of trial such as objections).
sTATe v. GunTheR 	177
Cite as 278 neb. 173

[4] Relief afforded under the nebraska Postconviction Act,
§§ 29-3001 through 29-3004, is limited to the denial or vio-
lation of constitutional rights. Although we have not previ-
ously analyzed it, the issue of whether standby counsel’s
performance is subject to the constitutional right to effective
assistance of counsel has been considered by other courts.
in this regard, we note that various federal courts have rea-
soned that a defendant cannot assert a federal constitutional
violation based on ineffective assistance of standby counsel.
e.g., Simpson v. Battaglia, 458 F.3d 585, 597 (7th Cir. 2006)
(“inadequacy of standby counsel’s performance, without the
defendant’s relinquishment of his [right to self-representation],
cannot give rise to an ineffective assistance of counsel claim
under the sixth Amendment”); U.S. v. Schmidt, 105 F.3d 82,
90 (2d Cir. 1997) (“[a]bsent a constitutional right to standby
counsel, a defendant generally cannot prove standby counsel
was ineffective”); Johnson v. Quarterman, 595 F. supp. 2d
735, 750 (s.D. Tex. 2009) (“[a]lthough the court may appoint
standby counsel to assist a pro se defendant, there is no con-
stitutional right to the effective assistance of such counsel”).
We agree with the reasoning of the foregoing federal authori-
ties and numerous similar cases not cited here which conclude
that there is no federal sixth Amendment constitutional right
to effective assistance of standby counsel. We adopt such
reasoning and, by extension, now hold that there is no right
to effective assistance of standby counsel under neb. Const.
art. i, § 11.
For completeness, we note that the Court of Appeals for the
second Circuit recognized a possible exception to the general
rule that there is no constitutional claim for ineffective assist-
ance of standby counsel. The court stated, “Perhaps in a case
where standby counsel held that title in name only and, in fact,
acted as the defendant’s lawyer throughout the proceedings,
we would consider a claim of ineffective assistance of standby
counsel.” U.S. v. Schmidt, 105 F.3d at 90. Gunther, however,
makes no allegation or argument that standby trial counsel
effectively acted as his lawyer after he waived his right to
counsel. in Gunther’s direct appeal, we noted that
178 	278 neBRAskA RePoRTs

the record clearly demonstrates that although standby
counsel was present and advised Gunther at times during
the trial, Gunther was allowed to control the organization
and content of his own defense, make his own motions,
argue points of law, participate in voir dire, question wit-
nesses, and address the court and the jury at appropriate
points in the trial.
State v. Gunther, 271 neb. 874, 890, 716 n.W.2d 691, 704
(2006). Therefore, in this case, we are not required to deter-
mine whether the potential exception mentioned by the second
Circuit exists for cases where standby counsel effectively acted
as counsel.
Because Gunther elected to represent himself and waived
his constitutional right to counsel, Gunther’s allegations of
ineffective assistance of counsel serving only as standby
counsel would not constitute an infringement of his constitu-
tional rights to effective assistance of counsel under the u.s.
or nebraska Constitution. under the nebraska Postconviction
Act, §§ 29-3001 through 29-3004, 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
u.s. or nebraska Constitution. State v. Jim, 275 neb. 481,
747 n.W.2d 410 (2008). 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. Id. Gunther alleges
only conclusions that standby counsel, who is not alleged
to have in fact served as trial counsel, provided ineffective
assistance of standby counsel. such allegations, if proved,
would not entitle Gunther to postconviction relief, and the
district court did not err in rejecting such claims without an
evidentiary hearing.
ConClusion
We conclude that the district court did not err when it
concluded that Gunther’s claims of ineffective assistance of
standby counsel do not constitute a denial or violation of
sTATe v. GunTheR 	179
Cite as 278 neb. 173

StAte of nebrASkA, AppellAnt, v.
JAmeS A. lASu, Appellee .
768 n.W.2d 447
Filed July 24, 2009. 	no. s-08-841.
1. Statutes: Judgments: Appeal and Error. The meaning of a statute is a question
of law, on which an appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court below.
2. Plea in Abatement. A plea in abatement can be made when there is a defect in
the record which can be established only by extrinsic evidence.
3. Preliminary Hearings: Plea in Abatement. A plea in abatement is used to chal-
lenge the sufficiency of the evidence at a preliminary hearing.
4. Plea in Abatement: Probable Cause: Evidence: Verdicts. To resist a challenge
by a plea in abatement, the evidence received by the committing magistrate need
show only that a crime was committed and that there is probable cause to believe
that the accused committed it. The evidence need not be sufficient to sustain a
verdict of guilty beyond a reasonable doubt.
5. Criminal Law: Evidence: Police Officers and Sheriffs. The crime of tampering
with physical evidence, as defined by neb. Rev. stat. § 28-922(1)(a) (Reissue
2008), does not include mere abandonment of physical evidence in the presence
of law enforcement.
6. Criminal Law: Statutes. A fundamental principle of statutory construction
requires that penal statutes be strictly construed.
7. Statutes: Legislature: Appeal and Error. in reading a statute, a court must
determine and give effect to the purpose and intent of the legislature as ascer-
tained from the entire language of the statute considered in its plain, ordinary, and
popular sense.
8. Criminal Law: Evidence. To “conceal” or “remove” physical evidence, within
the meaning of neb. Rev. stat. § 28-922(1)(a) (Reissue 2008), is to act in a way
that will prevent it from being disclosed or recognized.
Appeal from the District Court for hall County: WilliAm t.
WriGHt, Judge. exception overruled.
Gail A. VerMaas and lynelle D. homolka, Deputy hall
County Attorneys, for appellant.
constitutional rights and would not entitle him to postconvic-
tion relief. We therefore affirm the court’s denial of postcon-
viction relief without an evidentiary hearing.
A ffirmed.
180 	278 neBRAskA RePoRTs