State v. Glover

stAte of nebrAskA, Appellee , v .
michAel J. glover , AppellAnt .
756 N.W.2d 157
Filed September 26, 2008. 	No. S-07-1108.
1. Postconviction: Proof: Appeal and Error. In a postconviction proceeding, an
appellate court reviews for an abuse of discretion the procedures a district court
uses to determine whether the prisoner’s allegations sufficiently establish a basis
for relief and whether the files and records of the case affirmatively show that the
prisoner is entitled to no relief.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court bases its decision upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
3. Judgments. A trial court abuses its discretion when its decision incorrectly
applies or fails to comply with specific procedural rules governing the action.
4. Postconviction. Under Neb. rev. Stat. § 29-3001 (reissue 1995), a district
court need not conduct an evidentiary hearing in the following circumstances:
(1) when the prisoner alleges only conclusions of law or facts; and (2) when the
files and records of the case affirmatively show that the prisoner is entitled to
no relief.
5. ____. A district court has discretion to adopt reasonable procedures for deter-
mining what files and records it should review before granting a full eviden-
tiary hearing.
6. Postconviction: Records: Words and Phrases. The phrase “files and records of
the case” in Neb. rev. Stat. § 29-3001 (reissue 1995) refers to existing files and
records of the case before the prisoner filed a postconviction proceeding—not to
testimony taken for the postconviction proceeding.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
gregory m. schAtz, Judge. reversed and remanded for fur-
ther proceedings.
Thomas J. Garvey for appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
heAvicAn, 	C.J., 	W right, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller -lermAn, JJ.
connolly, J.
SUMMArY
Michael J. Glover argues that the district court erred in deny-
ing his petition for postconviction relief without an evidentiary
622 	276 NEBrASkA rEPOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

hearing. At a hearing on the State’s motion to deny an eviden-
tiary hearing, Glover offered and the court received his trial
counsel’s deposition. Glover’s postconviction counsel offered
the deposition to resist the State’s motion. relying on the
deposition, the court decided factual questions and overruled
Glover’s claims of ineffective assistance of counsel at trial and
on appeal.
We conclude that the court erred in relying on Glover’s
trial counsel’s deposition that was not part of the case records
and files. Because the case records and files fail to show that
Glover is not entitled to relief for any of his claims, we remand
for an evidentiary hearing.
BACkGrOUND
In 2003, the State filed an information alleging that Glover
had deliberately, or during an attempted robbery, killed Jesus
Covarrubias. The State originally charged Glover with first
degree murder and use of a deadly weapon to commit a felony.
But in June 2004, under a plea agreement, Glover pleaded no
contest to three charges: second degree murder, use of a deadly
weapon to commit a felony, and robbery.
glover ’ s pleAs
In June 2004, the district court found that Glover had vol-
untarily pleaded no contest to the charges in the amended
information and found him guilty. The prosecutor offered the
following factual basis for the pleas: Glover and his codefend-
ant, Damien Watkins, decided to rob Covarrubias, and “a gun
was drawn” as they approached him. The prosecutor stated that
the evidence showed Glover had drawn the gun. Although she
acknowledged that Glover contested this fact, she stated that
both defendants were presumed to be involved in the shooting
under an aiding and abetting theory. She further stated that
after Covarrubias displayed a knife, Glover shot him in the
chest, killing him.
Before accepting Glover’s pleas, the court asked him if he
understood the maximum penalties that each offense carried.
The court also stated that if it imposed consecutive sentences,
it could sentence him to life plus 100 years’ imprisonment.
STATE v. GlOVEr 	623
Cite as 276 Neb. 622

Glover’s trial counsel asked the court to clarify that a second
degree murder conviction carried a minimum sentence of 20
years’ imprisonment. Counsel also asked the court to clarify
that a sentence for use of a deadly weapon must run consecu-
tive to the murder sentence. The court verified that Glover’s
counsel had explained this to Glover and that he understood.
The court did not explain the minimum sentences for the
offenses of use of a deadly weapon or robbery. It did, however,
ensure that Glover understood that he could appeal if he went
to trial but that he could not necessarily appeal from a no con-
test plea. Glover stated that his counsel had explained these
facts and that he understood.
When asked whether he was satisfied with his attorneys,
Glover responded, “Not really.” When asked why, he stated,
“Because I just don’t feel that they do their best to defend me.”
The court responded that it would not accept his plea and that
the case would go to trial. Glover then stated that he would
stand by his no contest plea because he did not want an auto-
matic life sentence.
glover’s sentencing
In April 2005, the court sentenced Glover to the following
terms of imprisonment, with credit for time served: 40 years
to life for the second degree murder conviction; 10 to 20 years
for the use of a deadly weapon conviction, to run consecutive
to his first sentence; and 15 to 20 years for the robbery convic-
tion, to run concurrent with his first sentence.
glover’s direct A ppeAl
Glover limited his appeal to an excessive sentence claim.
The public defender’s office represented Glover at trial and on
appeal, our case No. S-05-528. This court granted the State’s
motion for summary affirmance.
glover’s postconviction proceeding
Glover’s first petition for postconviction relief is not part of
this record. But in May 2007, after Glover had filed his post-
conviction proceeding, the State deposed Glover’s trial coun-
sel. In June, with different counsel, Glover filed his amended
petition. he alleged that his trial counsel provided ineffective
624 	276 NEBrASkA rEPOrTS

assistance at trial. he alleged that his counsel failed to obtain
or investigate a recantation statement that Watkins had made
in an April 2004 affidavit—before Glover pleaded no contest.
Glover attached Watkins’ affidavit to his postconviction peti-
tion. In the affidavit, Watkins averred that he had not murdered
anyone and that he had fabricated his earlier statement that
Glover had committed the murder, explaining that “[j]ust for
notoriety, reputation, and teenage kicks, we both, myself and
my co-defendant, made up the whole thing not knowing the
full extent of the outcome.”
Glover claimed that if his trial counsel had obtained the
statement, his counsel could have developed a defense or nego-
tiated a more favorable plea agreement. Glover further claimed
that his trial counsel was ineffective in failing to (1) advise him
of the penalties for his no contest pleas, (2) advise him of the
effect his no contest plea would have on his right to appeal, and
(3) move for withdrawal of Glover’s pleas before sentencing,
despite Glover’s numerous requests. Glover claimed that the
third failure deprived him of an appeal regarding withdrawal
for his counsel’s failure to visit with Watkins regarding excul-
patory information.
Glover alleged that his appellate counsel was ineffective
because he failed to assign as error the court’s failure to advise
Glover of his right to counsel. he claimed this failure fore-
closed him from raising his trial counsel’s failure to investigate
Watkins’ recantation. he also alleged that his appellate counsel
failed to raise the court’s failure to advise Glover of the mini-
mum sentences for use of a deadly weapon to commit a felony
and robbery.
proceedings to determine Whether An
evidentiAry heAring WAs reqUired
Glover sought an evidentiary hearing. The State moved to
deny Glover’s petition without an evidentiary hearing. The State
alleged that Glover’s trial counsel was not ineffective, based
largely on his counsel’s deposition testimony regarding his
actions in the case. At the hearing, the deputy county attorney
offered the bill of exceptions from Glover’s plea and sentencing
hearings. he stated that Glover would be offering the deposition
STATE v. GlOVEr 	625
Cite as 276 Neb. 622

of his trial counsel. The records submitted by the State do not
include the plea agreement or presentence investigation report.1
When the court asked Glover’s postconviction counsel if he
were offering anything to resist the State’s motion, he offered
the deposition. he argued that Glover’s trial counsel admitted in
the deposition that he did not interview Watkins.
like the State’s motion, the court’s order dismissing Glover’s
petition without an evidentiary hearing includes many fac-
tual statements from trial counsel’s deposition that are not in
the records submitted by the State. The court concluded that
Glover’s claims that his counsel was ineffective, both at trial
and on appeal, had no merit.
ASSIGNMENTS OF ErrOr
Glover assigns that the district court erred in denying his
request for an evidentiary hearing and in dismissing his motion
for postconviction relief.
STANDArD OF rEVIEW
[1] In a postconviction proceeding, we review for an abuse
of discretion the procedures a district court uses to determine
whether the prisoner’s allegations sufficiently establish a basis
for relief and whether the files and records of the case affirma-
tively show that the prisoner is entitled to no relief.2
[2,3] An abuse of discretion occurs when a trial court bases
its decision upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason, and
evidence.3 A trial court abuses its discretion when its decision
incorrectly applies or fails to comply with specific procedural
rules governing the action.4
1 See State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
2 See, State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008); State v. McLeod,
274 Neb. 566, 741 N.W.2d 664 (2007), citing State v. Dean, 264 Neb. 42,
645 N.W.2d 528 (2002).
3 See State v. Reid, 274 Neb. 780, 743 N.W.2d 370 (2008).
4 See, Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007); Ensrud v.
Ensrud, 230 Neb. 720, 433 N.W.2d 192 (1988). Compare, Bump v.
Firemens Ins. Co., 221 Neb. 678, 380 N.W.2d 268 (1986); State ex rel.
Krieger v. Board of Supervisors, 171 Neb. 117, 105 N.W.2d 721 (1960).
626 	276 NEBrASkA rEPOrTS

ANAlYSIS
The main issue presented by this appeal is procedural.
Although the district court’s rationales appear facially reason-
able, it has created a procedural snarl. Glover argues that by
denying him an evidentiary hearing after receiving his trial
counsel’s deposition, the court effectively allowed only his
counsel to testify. he argues that by following that procedure,
the court cut off his right to testify.
The State argues that the court relied on the deposition of
Glover’s trial counsel because Glover offered it at the hear-
ing on the State’s motion to deny an evidentiary hearing. It
contends that Glover cannot complain of error it invited the
court to make. The State makes two alternative arguments:
(1) Glover alleged only conclusions of law or fact; and (2) the
records and files of the case affirmatively showed that Glover
was not entitled to relief based on his allegations.
We conclude that the district court’s failure to comply
with the specific procedural requirements of Neb. rev. Stat.
§ 29-3001 (reissue 1995) is dispositive. That section mandates
the following procedure for postconviction proceedings when a
prisoner claims in a verified motion that a constitutional viola-
tion renders the judgment void or voidable:
Unless the motion and the files and records of the case
show to the satisfaction of the court that the prisoner is
entitled to no relief, the court shall cause notice thereof to
be served on the county attorney, grant a prompt hearing
thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto.5
[4] Under this statute, we have recognized two exceptions
to a district court’s duty to grant an evidentiary hearing when
the prisoner’s factual allegations, if proved, show a violation
of the prisoner’s constitutional rights.6 We have stated that a
district court need not conduct an evidentiary hearing in the
following circumstances: (1) when the prisoner alleges only
conclusions of law or facts, and (2) when the files and records
5 § 29-3001.
6 See, e.g., State v. Jim, supra note 2.
STATE v. GlOVEr 	627
Cite as 276 Neb. 622

of the case affirmatively show that the prisoner is entitled to
no relief.7
[5] We have further held that a district court has discretion
to adopt reasonable procedures for determining what files and
records it should review before granting a full evidentiary
hearing.8 In general, we have allowed the court to (1) order
the State to respond to a prisoner’s postconviction motion or to
show cause why an evidentiary hearing should not be held, (2)
allow the State to file a motion to deny an evidentiary hearing,
and (3) hold a “records” hearing for receiving into evidence the
relevant files and records that the court may need to review in
considering whether to grant or deny an evidentiary hearing.9
And if a court does not receive into evidence the relevant case
records and files at a records hearing, the court should certify
and include in the transcript the files and records it considered
in denying relief.10 But the district court’s discretion must com-
port with the specific procedural rules mandated by § 29-3001.
In the cited cases, the files and records that the district court
received at the records hearings were limited to the prisoner’s
trial files and records.
[6] The phrase “files and records of the case” in § 29-3001
refers to existing files and records of the case before the pris-
oner filed a postconviction proceeding—not to testimony taken
for the postconviction proceeding. In State v. Flye,11 we held
that the district court did not err in overruling the prisoner’s
postconviction motion based on the files and records of the
case it received in a records hearing. We stated:
Where no controverted material issues of fact are pre-
sented, the facts as shown by the record are undisputed,
the taking of oral testimony on the motion could not add
7 See id.
8 See, McLeod, supra note 2; Dean, supra note 2.
9 See, McLeod, supra note 2; Dean, supra note 2; State v. Flye, 201 Neb.
115, 266 N.W.2d 237 (1978).
10 See, Dean, supra note 2; State v. Fugate, 180 Neb. 701, 144 N.W.2d
412 (1966).
11 State v. Flye, supra note 9.
628 	276 NEBrASkA rEPOrTS

to or detract from the information shown by the court’s
files and records, and the court is satisfied that the pris-
oner is entitled to no relief, no hearing is required under
the provisions of the Post Conviction Act.12
Our earlier case law shows that we have required a district
court to consider the files and records of the case without the
benefit of additional testimony taken as evidence for the post-
conviction proceeding. We believe receiving new evidence at
a records hearing would create chaos. Either the State or the
prisoner could be unprepared to respond to new evidence. That
unpreparedness could result in unnecessary due process chal-
lenges from prisoners. And appellate courts would constantly
have to backtrack and consider whether an evidentiary hearing
was warranted based solely on the allegations and the informa-
tion contained in the case records and files—a question that the
district court should initially address.
But the State argues that in State v. Bazer,13 we recently
affirmed the denial of an evidentiary hearing when the district
court received into evidence at a records hearing the deposition
of the prisoner and his trial counsel. There, however, both the
district court and this court relied solely on the trial records
and files to conclude that the prisoner was not entitled to post-
conviction relief. So while we do not approve of the court’s
admission of the depositions in Bazer, we had no need to reach
the procedural issue there. In contrast, the court here relied on
Glover’s trial counsel’s deposition to conclude that several of
Glover’s claims were without merit.
Would the court have reached that same result without the
benefit of the deposition? We believe not. We are unable to
conclude from our review of Glover’s case records and files
that Glover is not entitled to postconviction relief for any of his
claims. This is not surprising. In postconviction proceedings
based on plea-based convictions, much of the needed informa-
tion is not contained in the record. We remand for an evidentiary
12 Id. at 119, 266 N.W.2d at 240 (emphasis supplied), citing State v. Woods,
180 Neb. 282, 142 N.W.2d 339 (1966).
13 State v. Bazer, ante p. 7, 751 N.W.2d 619 (2008).
STATE v. GlOVEr 	629
Cite as 276 Neb. 622

hearing for those claims that the district court denied relief by
relying on the deposition of Glover’s counsel.
reversed And remAnded for
fUrther proceedings .
630 	276 NEBrASkA rEPOrTS