State v. Lee

STATE v. LEE 	601
Cite as 290 Neb. 601
CONCLUSION
Because the juvenile court’s orders affected Melissa’s sub-
stantial right to raise her children, they were final and appeal-
able. Upon our de novo review, we find that the evidence
supports the juvenile court’s order changing the primary per-
manency objective from reunification with Melissa to adoption,
with a concurrent plan of reunification with the father for the
three oldest children and a concurrent plan of guardianship for
the three youngest children. We therefore affirm the juvenile
court’s order in each case.
A ffirmed.
StAte of NebrASkA, Appellee, v.
doNAld m. lee, AppellANt.
861 N.W.2d 393
Filed April 3, 2015. 	No. S-14-537.
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: Pleas: Waiver: Effectiveness of Counsel. Normally, a volun-
tary guilty plea waives all defenses to a criminal charge. However, in a postcon-
viction 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.
3. Evidence: Appeal and Error. An appellate court does not resolve conflicts
in the evidence, pass on the credibility of witnesses, evaluate explanations,
or reweigh the evidence presented, which are within a fact finder’s province
for disposition.
Appeal from the District Court for Lincoln County: doNAld
e. rowlANdS, Judge. Affirmed.
Donald M. Lee, pro se.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
H eAvicAN, c.J., wrigHt, coNNolly, StepHAN, mccormAck,
miller-lermAN, and cASSel, JJ.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:32 AM CST

602 	290 NEBRASKA REPORTS
wrigHt, J.
NATURE OF CASE
Donald M. Lee was convicted of second degree murder
and sentenced to life imprisonment. On direct appeal in case
No. S-09-779, he asserted only a claim of excessive sentence,
which on December 10, 2009, we summarily affirmed. Lee
now appeals the denial of his motion for postconviction relief,
asserting that he was not brought to trial in a timely manner.
The issue is whether the district court erred in denying Lee
postconviction relief.
SCOPE OF REVIEW
[1] A defendant requesting postconviction relief must estab-
lish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).
[2] 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. State
v. Amaya, 276 Neb. 818, 758 N.W.2d 22 (2008). When a con-
viction is based upon a guilty plea, 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. State v. Armendariz, 289 Neb. 896,
857 N.W.2d 775 (2015).
FACTS
The following statement of facts is based upon State v. Lee,
282 Neb. 652, 807 N.W.2d 96 (2011), which was a prior post-
conviction action. In July 2008, the State filed a complaint in
county court, charging Lee with first degree murder. On July
21, the court arraigned him. On November 3, after Lee waived
his preliminary hearing, the State filed the information in dis-
trict court, charging Lee with first degree murder.
On May 19, 2009, under a plea bargain, Lee pleaded no
contest to one count of second degree murder. The district

STATE v. LEE 	603
Cite as 290 Neb. 601
court sentenced Lee to a term of 70 years to life in prison. His
direct appeal asserted excessive sentence, and we summarily
affirmed. Lee moved for postconviction relief and alleged vio-
lations of his right to speedy trial, his right to due process, and
his right to effective assistance of counsel. The court denied
relief without granting an evidentiary hearing. The court found
that two continuances—one of a motion to suppress hearing
and one of the trial itself—tolled the time in which Lee was to
be brought to trial.
We reviewed Lee’s first denial of postconviction relief, and
we affirmed the district court’s order in part. However, we
reversed the judgment and remanded the cause with regard to
Lee’s claim that his trial counsel was ineffective for failing to
assert his speedy trial rights.
We noted that Lee was mistaken in his claim that the speedy
trial clock began to run July 18, 2008, the day the State filed
the complaint, because that was not the operative date. Instead,
we stated that the operative date was November 3, 2008, the
date the State filed the information in district court. Although
the court found that the speedy trial clock was tolled by several
motions to continue, it did not show the dates during which
those motions were pending.
We concluded that the district court should have certified
and included in the transcript any files or records, which
would have included any documents related to the supposed
continuances considered by the court in denying Lee an
evidentiary hearing. The record did not show who filed the
continuances, when they were granted, or the duration of the
continuances. We found that the record did not affirmatively
show that Lee’s ineffective assistance of counsel claim regard-
ing his speedy trial claim was without merit. We reversed the
district court’s order in part and remanded the cause for fur-
ther proceedings.
At the evidentiary hearing upon remand, the only testi-
mony offered was the deposition of Robert Lindemeier, who
was Lee’s trial and direct appeal counsel. Lindemeier is an
experienced criminal attorney who has practiced law since
1984. He stated in his deposition that he had defended 15
to 20 first degree murder cases and 10 to 15 second degree

604 	290 NEBRASKA REPORTS
murder cases and that he handles approximately 300 felonies
per year. Lindemeier testified that Lee was charged with first
degree murder in an information filed November 3, 2008.
He had filed three motions to continue in the case on Lee’s
behalf, and he obtained Lee’s verbal consent before filing
each motion. He specifically told Lee that the time elapsed
after a motion to continue was excluded from the 180-day
speedy trial period, and he stated that Lee had no objection to
the continuances.
The district court found that the first motion for continuance
was filed January 23, 2009. The court sustained the motion on
January 26 and continued the case until March 17. The pur-
pose for the motion was to allow Lindemeier to take a number
of depositions, file a motion to suppress, and await pend-
ing DNA results. According to Lindemeier, eight depositions
were taken and he hired a private investigator and mitigation
expert from Minnesota to work on the case. As a result of this
continuance, 48 days were excluded for speedy trial purposes
from January 26 to March 17, 2009. The second motion for
continuance was filed on March 13, 2009. The court sustained
the motion, and the speedy trial time was tolled an additional
48 days. The third motion was filed on March 17, 2009. The
court sustained the motion and continued the case until May
19. Because of the overlap in the time period between the
second and third motion, another 15 days were tolled from the
speedy trial time period.
On May 13, 2014, the district court entered an order denying
Lee’s motion for postconviction relief. The court found that a
total of 195 days had elapsed from the filing of the information
on November 3, 2008, until Lee entered his plea of no contest
on May 19, 2009. The court determined that a total of 111 days
were excluded from the speedy trial statutory period by virtue
of continuances sought by counsel for Lee. The court con-
cluded that only 84 days had elapsed which were chargeable to
the State pursuant to the speedy trial statute and that therefore,
Lee’s right to a speedy trial was not violated.
The district court’s order discussed Lindemeier’s substan-
tial experience in representing clients in criminal cases and
accepted his testimony. It found that Lindemeier obtained

STATE v. LEE 	605
Cite as 290 Neb. 601
Lee’s verbal consent before seeking any of the continuances.
Lee did not offer evidence at the evidentiary hearing. Lee
now appeals.
ASSIGNMENTS OF ERROR
Lee contends that the district court erred and abused its dis-
cretion in denying his motion for postconviction relief on his
claim that his right to a speedy trial was violated.
Lee also assigns that the district court erred and abused
its discretion by failing to determine whether Lee’s Sixth
Amendment rights were violated.
ANALYSIS
In State v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011), we
determined that the record did not affirmatively show that Lee
was not entitled to postconviction relief for ineffective assist-
ance of counsel for failure to assert violation of his statutory
speedy trial rights. The district court denied an evidentiary
hearing because it found that Lee had asked for continuances
which tolled the time in which the State had to commence the
trial. Because of this tolling, the court concluded that the State
had not violated Lee’s right to a speedy trial. But the court did
not certify and include in the transcript files and records that
illustrated why it denied the evidentiary hearing. Therefore, we
remanded the cause for further proceedings.
On remand, the district court conducted an evidentiary hear-
ing to determine whether Lee’s speedy trial rights had been
violated and subsequently denied Lee’s motion for postcon-
viction relief. The issue is whether the court erred in denying
Lee’s motion.
The record presented to the district court contained suf-
ficient evidence to support its finding that Lee’s right to a
speedy trial was not violated and that therefore, Lindemeier
was not ineffective for failing to raise that argument. Lee’s
assertion that he had been denied a speedy trial was based
on the mistaken belief that the date on which his speedy trial
clock began was July 18, 2008, the date the complaint was
filed, rather than November 3, 2008, the date the informa-
tion was filed in district court. The record from the hearing

606 	290 NEBRASKA REPORTS
included documentation of the three continuances that tolled
Lee’s speedy trial clock for a total 111 days and that only 84
days had lapsed under the 180-day speedy trial statute.
There was substantial evidence that counsel was not inef-
fective for requesting continuances. The record showed that
Lindemeier believed the continuances were necessary to obtain
more time to take depositions, hire a private investigator, hire
a mitigation expert, and file a motion to suppress evidence.
Negotiations for a plea bargain also continued during the third
continuance. Lindemeier testified that he explained the conse-
quences of the continuances to Lee before filing each motion
and that Lee consented each time.
[3] Lee takes issue with the amount of weight the district
court gave to Lindemeier’s testimony. An appellate court does
not resolve conflicts in the evidence, pass on the credibility
of witnesses, evaluate explanations, or reweigh the evidence
presented, which are within a fact finder’s province for dis-
position. See State v. Schuller, 287 Neb. 500, 843 N.W.2d
626 (2014). The district court did not abuse its discretion in
accepting Lindemeier’s testimony that he explained to Lee the
effect of a motion to continue on the speedy trial clock and that
Lee consented to each continuance. Nor did the court in any
way hinder Lee from offering evidence to rebut Lindemeier’s
testimony. The record does not show that Lee offered any
such evidence.
Lee 	has 	not 	presented 	evidence 	that 	the 	district 	court
erred in any of its findings. We find no clear error in the
court’s judgment.
CONCLUSION
For the reasons stated above, we affirm the judgment of the
district court denying Lee’s motion for postconviction relief.
A ffirmed.