State v. Watkins

but instead were substantive evidence of Pischel’s guilt. The
online conversations and Pischel’s statements therein were
evidence of the elements of the crime of use of a computer to
entice a child or peace officer believed to be a child for sexual
purposes; therefore, the transcripts of such conversations were
substantive evidence of the crime charged.
Because the transcripts were not testimony but instead sub-
stantive evidence of the crime charged, the court had broad
discretion to allow the jury access to such evidence during
deliberations. We conclude that the court did not abuse its dis-
cretion by allowing such access, and we reject Pischel’s final
assignment of error.
CONCLUSION
We conclude that any error in the admission of evidence
obtained in the search of Pischel’s vehicle was harmless error.
We further conclude that the district court did not err in refus-
ing Pischel’s requested instruction on entrapment, nor did the
court err in allowing the jury access to the written transcripts
of the online conversations. We finally conclude that there was
sufficient evidence to support Pischel’s conviction. We there-
fore affirm Pischel’s conviction and sentence.
A ffirmed.
StAte of NebrASkA, Appellee , v.
dAmieN d. WAtkiNS, AppellANt.
762 N.W.2d 589
Filed March 20, 2009. 	No. S-08-712.
1. Postconviction: Appeal and Error. On appeal from a proceeding for postconvic-
tion relief, the lower court’s findings of fact will be upheld unless such findings
are clearly erroneous.
2. 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.
428 	277 NeBraSka rePOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

3. Effectiveness of Counsel: Appeal and Error. When a case presents layered
ineffectiveness claims, an appellate court determines the prejudice prong of
appellate counsel’s performance by focusing on whether trial counsel was
ineffective.
4. Postconviction: Pleas: Waiver: Effectiveness of Counsel. Normally, a voluntary
guilty plea waives all defenses to a criminal charge. However, 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 ineffec-
tive assistance of counsel.
5. Pleas. Generally, in order to support a finding that a plea of guilty has been
entered freely, voluntarily, and intelligently, the court must, inter alia, inform the
defendant concerning (1) the nature of the charge, (2) the right to assistance of
counsel, (3) the right to confront witnesses against the defendant, (4) the right to
a jury trial, and (5) the privilege against self-incrimination.
6. Postconviction: Appeal and Error. an appellate court will not consider as an
assignment of error a question not presented to the district court for disposition
through a defendant’s motion for postconviction relief.
appeal from the District Court for Douglas County: G reGory
m. SchAtz, Judge. affirmed.
Thomas M. rowen for appellant.
Jon 	Bruning, 	attorney 	General, 	George 	r. 	Love, 	and
kimberly a. klein for appellee.
heAvicAN, 	C.J., 	WriGht, 	coNNolly, 	G errArd, 	StephAN,
mccormAck, and miller-lermAN, JJ.
StephAN, J.
Damien D. Watkins pled guilty to an amended charge of
second degree murder and was sentenced to 40 years to life
in prison. His direct appeal was summarily affirmed, and he
then filed this postconviction proceeding, alleging that he
was denied his constitutional rights due to the ineffective
assistance of trial and appellate counsel. after conducting an
evidentiary hearing, the district court denied postconviction
relief. Watkins appeals from that order. We affirm.
FaCTS
Watkins was originally charged with first degree murder
and use of a deadly weapon to commit a felony in con-
nection with the death of Jesus Covarrubias. The State’s
theory was that Watkins and Michael Glover agreed to rob
STaTe v. WaTkINS 	429
Cite as 277 Neb. 428

Covarrubias and that Glover killed Covarrubias during the
robbery. Watkins eventually agreed to testify against Glover,
and the State agreed to charge Watkins with one count of sec-
ond degree murder.
Watkins pled guilty to an amended charge of second degree
murder. He was represented by counsel at the time of the plea.
Before accepting the guilty plea, the court advised Watkins in
open court, inter alia, of the following:
You have a right to a speedy public trial to a jury in
this case. and in order to be convicted, a jury of 12 peo-
ple would have to unanimously, that means all of them,
agree that the prosecutor has proven you guilty beyond a
reasonable doubt.
If you were to have a trial, you and your attorney
would have the right to confront and cross-examine all of
the witnesses that the State would call to testify against
you at the trial.
If you were to have a trial, you could call witnesses to
testify for you in your defense at the trial, and you would
have available to you the subpoena power of the Court,
which means that the Court would order to be here at
court expense, if necessary, any witness that you would
want to have here to testify for you on your behalf at
the trial.
If you were to have a trial, you could testify yourself
as a witness in your own defense, but you can’t be com-
pelled to make any statements against your interests in
the trial, you can’t be compelled to offer any evidence at
all in the trial, and you can’t be compelled to testify as a
witness at the trial.
and if you chose not to testify as a witness at your
trial, the prosecutor couldn’t comment on that to the jury
in the trial of your case or use that in any way against you
in your trial.
If you were to have a trial, I would tell the jury that
you are presumed to be innocent until proven guilty.
Do you understand that if you plead guilty, you waive
your right to trial and you waive all of these other rights
that go along with your right to trial?
430 	277 NeBraSka rePOrTS

Watkins responded affirmatively. It is undisputed that the court
did not expressly advise Watkins that he had a right to have
counsel represent him if he chose to go to trial.
The plea agreement between Watkins and the State is not
in the record. Watkins testified in the postconviction proceed-
ing that he understood he would receive a sentence of 20 to
25 years in prison for second degree murder in return for his
testimony against Glover and that the State would inform the
court of his cooperation. The attorney who represented Watkins
at the time of his plea, however, testified that the State agreed
to inform the court that it would make no public or private
objection to a sentence of 20 years, but refused to go into
open court and recommend such a sentence. Trial counsel fur-
ther testified that the State also agreed to inform the court of
Watkins’ cooperation. Counsel testified that the State did not
agree to remain silent at Watkins’ sentencing and that there was
no guarantee that Watkins would receive a sentence of 20 to 25
years in prison.
Watkins’ trial counsel wrote a letter to the judge requesting
a sentence of 20 to 25 years in prison. The letter highlighted
Watkins’ cooperation in the case and minimized his partici-
pation in the murder. at the sentencing hearing on February
4, 2005, Watkins’ counsel again stressed these issues. When
asked to comment, the prosecutor stated: “[T]he State would
agree that some consideration should be given for the fact
that [Watkins] was willing to testify against his co-defendant.
However, this is a very serious crime and we would ask that
you treat it with the proper respect that it has due.” Prior to
announcing the sentence, the court noted that it had been
informed by the prosecutor of Watkins’ cooperation. The court
also noted Watkins’ extensive criminal history and the fact that
the crime was originally charged as first degree murder. Taking
into consideration Watkins’ cooperation, but also the nature
of his offense and his history of violent criminal offenses, the
court imposed a sentence of 40 years to life in prison. a writ-
ten sentencing order was filed on February 7.
On February 18, 2005, Watkins filed a motion to withdraw
his guilty plea. In this motion, he contended that the comments
made by the prosecutor at the sentencing hearing violated the
STaTe v. WaTkINS 	431
Cite as 277 Neb. 428

plea agreement and that had he known the comments would be
made, Watson would not have agreed to plead guilty. However,
on February 25, before the motion to withdraw the plea was
ruled upon, Watkins filed a pro se notice of appeal from the
conviction and sentencing. On March 1, Watkins and his trial
counsel appeared in the district court and trial counsel was
given leave to withdraw. The court’s trial docket reflects that
Watkins’ motion to withdraw his plea was denied on that date
without an evidentiary hearing, and a written order to this
effect was filed on March 7. an order appointing appellate
counsel was filed on March 8.
Watkins’ newly appointed appellate counsel filed a brief
assigning one error: “The District Court erred in denying
[Watkins’] Motion to Withdraw Plea in the absence of an
evidentiary hearing.” On November 16, 2005, in our case No.
S-05-271, we granted the State’s motion for summary affirm-
ance, because Watkins’ notice of appeal was filed prior to the
district court’s ruling on the motion to withdraw the plea and,
thus, the sole issue assigned in the appellate brief was not
properly before us.
Watkins filed his verified motion for postconviction relief
on September 14, 2006. The motion alleged, summarized and
restated, that his guilty plea was not knowingly, intelligently,
and voluntarily made because he was not informed of his
right to counsel if he chose to go to trial; that his trial coun-
sel was ineffective for failing to object to the prosecutor’s
comments at the sentencing hearing; and that his appellate
counsel was ineffective for failing to raise these issues on
direct appeal. after conducting an evidentiary hearing, the
district court denied postconviction relief. Watkins filed this
timely appeal.
aSSIGNMeNTS OF errOr
Watkins assigns, restated, that (1) trial counsel was ineffec-
tive in failing to object to the prosecutor’s statement at sentenc-
ing and in failing to properly advise Watkins of the potential
sentence he faced, (2) appellate counsel was ineffective in
failing to raise all appealable issues, (3) the district court erred
in failing to advise Watkins of his right to counsel before
432 	277 NeBraSka rePOrTS

accepting his guilty plea, and (4) the district court erred in
denying Watkins’ motion to withdraw his guilty plea without
conducting an evidentiary hearing.
STaNDarD OF reVIeW
[1] On appeal from a proceeding for postconviction relief,
the lower court’s findings of fact will be upheld unless such
findings are clearly erroneous.1
aNaLYSIS
[2,3] Watkins contends that the district court in the post-
conviction proceeding erred in concluding that he was not
deprived of his constitutional right to effective assistance of
trial and appellate counsel. The principles applicable to this
issue are well established. In order to establish a right to post-
conviction relief based on a claim of ineffective assistance of
counsel, the defendant has the burden first to show that coun-
sel’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.2 When a case presents layered ineffectiveness
claims, an appellate court determines the prejudice prong of
appellate counsel’s performance by focusing on whether trial
counsel was ineffective.3
Guilty pleA
[4] Watkins contends that his appellate counsel was ineffec-
tive in failing to challenge the validity of his guilty plea on
direct appeal. He contends that appellate counsel should have
assigned and argued that the district court failed to inform
him that if he chose to go to trial, he had the right to be rep-
resented by counsel. Normally, a voluntary guilty plea waives
all defenses to a criminal charge. However, in a postconviction
1 State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007); State v. Wagner, 271
Neb. 253, 710 N.W.2d 627 (2006).
2 State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008); State v. Smith, 269
Neb. 773, 696 N.W.2d 871 (2005).
3 See State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
STaTe v. WaTkINS 	433
Cite as 277 Neb. 428

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 assistance of counsel.4
assuming without deciding that the issue is not waived under
the unusual circumstances of this case, we reach it.
[5] Generally, in order to support a finding that a plea of
guilty has been entered freely, voluntarily, and intelligently,
the court must, inter alia, inform the defendant concerning
(1) the nature of the charge, (2) the right to assistance of
counsel, (3) the right to confront witnesses against the defend-
ant, (4) the right to a jury trial, and (5) the privilege against
self-incrimination.5 The record reflects that Watkins was not
expressly informed of his right to counsel if he chose to go
to trial. However, as the district court correctly concluded,
this failure does not render the plea invalid where, as here,
the record also reflects that the defendant was actually rep-
resented by counsel at the time of the guilty plea and during
prior proceedings. as we noted in State v. Neal6: “To hold that
it is error upon a court’s failure to inform a defendant of his
right to counsel when a defendant has the benefit of counsel
before the court and acknowledges that his counsel’s represen-
tation has been satisfactory would be the epitome of slavish
technicality.” relying upon Neal, we held in State v. Mindrup7
that a court’s failure to inform a represented defendant of her
right to counsel did not invalidate a guilty plea, regardless
of whether the defendant expressed satisfaction with coun-
sel’s representation.
Watkins was accompanied by his appointed counsel when
he entered his guilty plea. He acknowledged on the record
that he had sufficient time to discuss the plea agreement with
counsel and that he was satisfied with counsel’s efforts on his
behalf. Trial counsel later testified that he had no reason to
believe that Watkins’ guilty plea was not freely, intelligently,
4 State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).
5 See, State v. Hays, 253 Neb. 467, 570 N.W.2d 823 (1997); State v. Irish,
223 Neb. 814, 394 N.W.2d 879 (1986).
6 State v. Neal, 216 Neb. 709, 712, 346 N.W.2d 218, 220 (1984).
7 State v. Mindrup, 221 Neb. 773, 380 N.W.2d 637 (1986).
434 	277 NeBraSka rePOrTS

and voluntarily made. On this record, there is no basis for chal-
lenging the validity of Watkins’ guilty plea. accordingly, the
fact that the issue was not raised on appeal cannot be deemed
deficient performance on the part of Watkins’ appellate counsel
or prejudicial to Watkins.
SeNteNciNG
Watkins argues that his trial counsel was constitutionally
ineffective in failing to object to the prosecutor’s comments
during sentencing as being in violation of the plea agreement
and that his appellate counsel was ineffective in failing to raise
this issue on appeal. This claim rests upon Watkins’ postcon-
viction allegation that as part of the plea agreement, he was
“promised a minimum sentence in the range of 20-30 years”
and that the prosecutor further promised “to make no further
comment regarding sentencing.”
The district court made a factual determination from the
record that Watkins received no promise with respect to sen-
tencing. The record reflects that before accepting Watkins’
plea, the court asked if he understood that by pleading guilty,
he would subject himself to the maximum penalty of life
imprisonment. Watkins answered, “Yeah.” Immediately there-
after, the court asked, “Has anybody told you or led you to
believe that if you pled guilty today that you’d be given proba-
tion or some sort of light sentence or be in any way rewarded
in exchange for agreeing to plead guilty in this case?” Watkins
answered, “No.” Watkins’ trial counsel testified that he advised
Watkins that while 20 years in prison was the minimum sen-
tence he could receive, there was “no guarantee” with respect
to the actual sentence. Based upon this evidence, the district
court’s finding that Watkins was not promised a sentence of
20 to 30 years’ imprisonment in exchange for his plea is not
clearly erroneous.
Nor does the record support Watkins’ claim that his trial
counsel was ineffective in not objecting to the prosecutor’s
comments at the sentencing hearing or that his appellate coun-
sel was ineffective in failing to raise this issue on appeal. There
was no agreement that the prosecutor would “remain silent”
at sentencing. The prosecutor agreed to inform the court of
STaTe v. WaTkINS 	435
Cite as 277 Neb. 428

Watkins’ cooperation and not to object to his request for a
minimum sentence. Watkins’ trial counsel testified that while
he believed the prosecutor’s comments may have violated the
“spirit” of the plea agreement, they did not constitute an actual
violation. The record supports the district court’s implicit find-
ing that the prosecutor’s comments did not violate the plea
agreement, and accordingly, there is no basis for Watkins’
claim that his lawyers were ineffective for failing to advo-
cate otherwise.
Attempt to WithdrAW pleA
[6] Finally, Watkins argues that the district court violated
his right to counsel when it did not appoint new counsel at
the hearing on his motion to withdraw his plea. However, this
claim was not asserted in Watkins’ verified motion for post-
conviction relief and it was not addressed by the district court
in its disposition of that motion. We decline to reach the issue,
based upon the principle that an appellate court will not con-
sider as an assignment of error a question not presented to the
district court for disposition through a defendant’s motion for
postconviction relief.8
CONCLUSION
Finding no error, we affirm the judgment of the district court
denying postconviction relief.
A ffirmed.
8 State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (2006); State v. Caddy,
262 Neb. 38, 628 N.W.2d 251 (2001).
436 	277 NeBraSka rePOrTS