State v. Dunkin

claim is that it is an action on an account.31 As such, it is a
single claim for an amount exceeding $4,000, and § 25-1801
is inapplicable.32 We find no merit to Thomas & Thomas’
cross-appeal.
ConClusion
We find no merit to Hathaway switzer’s claim that it was not
liable for the services provided by Thomas & Thomas. nor do
we find merit to any of the arguments for attorney fees. But we
find that the court erred in entering judgment against switzer
individually. The court’s judgment, to the extent that it holds
Hathaway switzer liable in the sum of $5,992, is affirmed. The
judgment is reversed to the extent that it holds switzer person-
ally liable, and the cause is remanded to the district court with
directions to dismiss Thomas & Thomas’ claim against switzer
as an individual.
A ffirmed in pArt, And in pArt reversed
And remAnded with directions.
wright, J., not participating in the decision.
31 see, generally, Sodoro, Daly v. Kramer, 267 neb. 970, 679 n.W.2d 213
(2004).
32 see Schaffer v. Strauss Brothers, 164 neb. 773, 83 n.W.2d 543 (1957)
(refusing fees under former version of § 25-1801, based on rejection of
plaintiff’s argument that he filed 71 claims for $20 each instead of 1 claim
for $1,420). see, also, Hancock v. Parks, 172 neb. 442, 110 n.W.2d 69
(1961).
stAte of nebrAskA, Appellee , v.
robert J. dunkin, AppellAnt.
807 n.W.2d 744
Filed January 13, 2012. 	no. s-11-220.
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
2. Postconviction: Appeal and Error. on appeal from a proceeding for postconvic-
tion relief, the trial court’s findings of fact will be upheld unless such findings are
clearly erroneous.
30 	283 neBrAskA reporTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

3. Effectiveness of Counsel: Appeal and Error. Determinations regarding whether
counsel was deficient and whether the defendant was prejudiced are questions of
law that an appellate court reviews independently of the lower court’s decision.
4. 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.
5. 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.
6. Effectiveness of Counsel: Pleas: Proof. Within the plea context, in order to
satisfy the prejudice requirement to establish an ineffective assistance of counsel
claim, the defendant must show that there is a reasonable probability that, but for
counsel’s errors, he or she would not have pleaded guilty and would have insisted
on going to trial.
7. Effectiveness of Counsel: Presumptions: Appeal and Error. The entire ineffec-
tiveness analysis is viewed with a strong presumption that counsel’s actions were
reasonable and that even if found unreasonable, the error justifies setting aside
the judgment only if there was prejudice.
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 proceed-
ings against him or her, to comprehend his or her own condition in reference to
such proceedings, and to make a rational defense.
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: Mental Competency: Proof. in order to demonstrate
prejudice from counsel’s failure to investigate competency and for failing to seek a
competency hearing, the defendant must demonstrate that there is a reasonable prob-
ability that he or she was, in fact, incompetent and that the trial court would have
found him or her to be incompetent had a competency hearing been conducted.
12. Constitutional Law: Trial: Mental Competency. An individual has a constitu-
tional right not to be put to trial when lacking mental competency.
13. Postconviction: Effectiveness of Counsel: Presumptions: Proof. under certain
circumstances, the nature of counsel’s deficient conduct in the context of the prior
proceedings can lead to a presumption of prejudice, negating the defendant’s need
to offer evidence of actual prejudice in a postconviction case.
14. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and Error.
After a trial, conviction, and sentencing, if counsel deficiently fails to file or
perfect an appeal after being so directed by the criminal defendant, prejudice will
sTATe v. Dunkin 	31
Cite as 283 neb. 30

be presumed and counsel will be deemed ineffective, thus entitling the defendant
to postconviction relief.
Appeal from the District Court for lancaster County: Jeffre
cheuvront, Judge. Affirmed.
sanford pollack, of pollack & Ball, l.l.C., for appellant.
Jon Bruning, Attorney General, and kimberly A. klein for
appellee.
heAvicAn, 	c.J., 	wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller-lermAn, JJ.
mccormAck, J.
i. nATure oF CAse
robert J. Dunkin pled no contest to the charge of murder
in the second degree. The district court accepted Dunkin’s
plea, entered a judgment of guilty, and subsequently sentenced
Dunkin to 40 years’ to life imprisonment. Dunkin did not
directly appeal the judgment, but filed a motion for postcon-
viction relief which alleged that his constitutional right to the
effective assistance of counsel had been violated. Following an
evidentiary hearing, the district court denied Dunkin’s request
for postconviction relief. Dunkin appeals.
ii. BACkGrounD
1. conviction And sentencing proceedings
Dunkin was charged by information with murder in the first
degree and use of a weapon to commit a felony in connec-
tion with the death of his girlfriend, lynn Anderson. pursuant
to plea negotiations, the information was amended to charge
Dunkin with murder in the second degree, to which Dunkin
pled no contest. The district court accepted Dunkin’s plea and
entered a judgment of guilty. on April 28, 2009, the court
sentenced Dunkin to 40 years’ to life imprisonment. no direct
appeal was taken from Dunkin’s conviction and sentence.
on February 23, 2010, Dunkin filed a pro se “Motion to
Vacate and set Aside sentence and Conviction pursuant to
[neb. rev. stat.] §§ 29-3001 to 29-3004 [(reissue 2008)].”
Dunkin alleged that his constitutional right to the effective
32 	283 neBrAskA reporTs

assistance of counsel had been violated. Dunkin asserted that
his trial counsel coerced and pressured Dunkin to plead no
contest to the charge of second degree murder, failed to inves-
tigate Dunkin’s state of mind at the time of the offense, failed
to have Dunkin undergo a mental health examination or retain
a medical professional to testify, failed to adequately present
evidence at the suppression hearing, failed to adequately pre-
pare for trial, made sentencing representations to Dunkin that
he would receive a sentence of 20 to 30 years’ imprisonment,
and failed to perfect an appeal of Dunkin’s sentence despite
Dunkin’s request.
Dunkin also filed a motion to withdraw his plea of no con-
test, wherein he claimed that he had been promised prosecu-
tors would recommend a minimum sentence of 20 to 30 years’
imprisonment and that he had been promised by his attorney
he would be paroled upon first eligibility. At the time of the
plea, Dunkin claimed he was so “mentally impaired/medicated
that he didn’t fully understand what was going on” because he
was on a number of medications, the combined effect of which
“is not known to Dunkin.” He claimed he was experiencing
hallucinations, delusions, a confused state, disorientation, dis-
turbed concentration, anxiety, drowsiness, dizziness, weakness,
fatigue, and headache. Dunkin claimed, at the time of the plea,
that he had not been evaluated regarding the defense of not
guilty by reason of insanity and that the plea was a product of
coercion at the hands of his attorney. Dunkin asserted that he
believes he has a meritorious defense to the charge of murder
in the second degree.
Dunkin filed a motion for appointment of postconviction
counsel, which the court granted. The state filed a responsive
pleading, and the court conducted an evidentiary hearing on
Dunkin’s motion for postconviction relief.
2. evidentiAry heAring on
postconviction motion
Dunkin testified at the hearing on his postconviction motion.
Dunkin stated that he was initially represented by an attorney
from the Commission on public Advocacy, but that Dunkin’s
brother wanted to hire a private attorney. Dunkin’s brother
sTATe v. Dunkin 	33
Cite as 283 neb. 30

hired trial counsel to represent him, and Dunkin’s brother
signed a fee agreement and paid a flat fee of $25,000. Dunkin
stated that throughout the proceedings, his mother and brother
were in contact with counsel while Dunkin was in jail, to relay
messages from Dunkin. Dunkin stated that he could not con-
tact counsel directly because counsel’s office did not accept
collect telephone calls. Counsel testified, however, that his
office policy was to accept collect calls from clients who are
in jail.
Dunkin testified regarding his first meeting with counsel on
August 1, 2008, during which meeting Dunkin told counsel his
version of the events that occurred on January 21 and 22, 2008,
which had led to the death of Anderson. Dunkin explained that
he had been in a relationship with Anderson for approximately
6 months. The evening of her death, she had gone to Dunkin’s
house and began crying. The two had previously discussed
whether Anderson had cheated on Dunkin, and he again asked
her if that was the case. Anderson did not answer, and Dunkin
repeatedly asked if she had cheated on him until Anderson got
angry. Anderson then jumped out of her chair and swung her
purse at Dunkin, which hit him in the head and knocked him
to the ground. Anderson swung her arms at Dunkin, and he
attempted to restrain her but she bit him on the arm, knocking
him to the ground again.
Dunkin testified that Anderson told him she was going to
kill him and then reached for a chair where he kept a gun. At
the same time, Dunkin moved to reach the gun first; a struggle
ensued, during which Anderson kicked Dunkin in the knee and
he fell into the wall. When Dunkin fell, the gun went off and
struck and killed Anderson. Dunkin testified that he told coun-
sel that Anderson’s death was accidental and unintentional.
Dunkin stated that counsel told him that he thought Dunkin had
a good case for manslaughter.
Dunkin explained to counsel that he had taken a large amount
of prescription pills after the incident, including more than 60
Xanax pills, some percocet, hydrocodone, and “Ambien Cr.”
Dunkin stated that he remembers nothing between the time he
took the pills and when he woke up in jail. Dunkin testified
that counsel commented he thought that that number of pills
34 	283 neBrAskA reporTs

would have killed Dunkin and that Dunkin stated he had taken
the pills because he wanted to kill himself because he could not
live with what had happened.
(a) suppression Hearing
Following the incident, Dunkin was taken from his home
to a hospital by ambulance because of the possible overdose.
Dunkin made statements to medical personnel and police offi-
cers during the ambulance ride and after arriving at the hos-
pital. The statements made by Dunkin during this time were
recorded by a police officer who rode to the hospital in the
ambulance with Dunkin.
Counsel filed a motion to suppress the statements Dunkin
had made to law enforcement and medical personnel when
he was taken into custody. in the motion to suppress, counsel
argued that Dunkin’s statements to medical personnel should
be suppressed on the basis of doctor-patient privilege. He also
claimed that the statements Dunkin made to police officers
at the hospital should be suppressed, because Dunkin was
not properly advised of his Miranda rights. A suppression
hearing was scheduled, and on December 23, 2008, Dunkin
met with counsel for the second time for approximately 10
minutes immediately prior to the hearing to discuss what
would happen.
At the suppression hearing, the state called two police offi-
cers to testify; counsel did not call any witnesses on Dunkin’s
behalf, nor did Dunkin testify. Dunkin met with counsel briefly
following the suppression hearing, and counsel explained that
the hearing had gone as he expected it would. Dunkin testified
that he was lucid during the hearing and understood what was
going on.
After taking the motion to suppress under advisement, the
court overruled the motion in regard to Dunkin’s statements
made during transport to the hospital and those made to police
officers at the hospital after Dunkin was read his Miranda
rights, and it sustained the motion in regard to statements he
made to police prior to being advised of his Miranda rights.
The court reserved ruling on statements made by Dunkin to the
treating physician at the hospital. Dunkin said that he wanted
sTATe v. Dunkin 	35
Cite as 283 neb. 30

to appeal the suppression order but that counsel told him that
could not be done because it was not a final, appealable order.
Dunkin then told counsel he should try to negotiate a man-
slaughter charge.
(b) Autopsy report
Dunkin testified that he told counsel that the autopsy report
was incorrect, because it reported that Anderson had died of
strangulation and a gunshot wound. Dunkin told counsel that
Anderson must have had bruises on her neck and that if this
could be confirmed, it would support Dunkin’s version of the
events—that the death was accidental.
Counsel obtained court approval for appointment of an expert
witness. Counsel retained Dr. George nichols, with whom he
had worked in a previous case. Counsel believed nichols to
be highly qualified and retained nichols to review the autopsy
report. nichols was supplied with the police and medical
reports related to Dunkin’s case. Counsel testified that nichols
reviewed all of the documents in the case and was unable to
confirm Dunkin’s version of the events. Counsel stated that
nichols’ opinion was generally unfavorable to Dunkin and that
he did not receive a written report of nichols’ findings.
nichols reviewed the bruises on Anderson’s neck, with
which Dunkin took issue, and determined that the bruises on
her neck were not from strangulation or a purse strap as Dunkin
had stated, but appeared to be from a “karate chop”-like blow
to the neck. After reviewing the documents, nichols informed
counsel that he thought Dunkin’s version of the incident was
implausible and that it appeared that Anderson’s death “was
an execution.”
(c) plea negotiations and proceeding
on February 10, 2009, counsel presented Dunkin with a
plea offer of second degree murder and a dismissal of the gun
charge. Dunkin asked counsel, if “this were your kid” in this
situation, “what would you tell them [sic] to do?” Counsel
said that he would advise him to take the plea deal, because
the state would dismiss the gun charge and he would prob-
ably be looking at 20 to 30 years’ imprisonment, which would
be “really close” to what a manslaughter conviction would
36 	283 neBrAskA reporTs

get him. Dunkin testified that counsel told him that the judge
wanted his plea by the end of the day if he were going to take
the deal. Dunkin stated that he felt “pressured” and “rushed”
during the meeting regarding the plea offer.
Dunkin met with counsel for a second time also on February
10, 2009, for 10 to 15 minutes. Dunkin testified that at that
point, Dunkin felt that they were not ready for trial, which was
scheduled for 1 week later. Dunkin stated that they had not dis-
cussed strategy and that he had not been prepped to testify, so
he decided to take the plea offer. Dunkin testified that counsel
told him he had spoken with the prosecutor, the judge, and the
parole board and that Dunkin would be let out of prison on his
first parole date.
Counsel stated that he did not depose any witnesses because
he was able to rely on witness interviews conducted by Dunkin’s
previous attorney from the Commission on public Advocacy.
Counsel also testified that he felt he was prepared for trial and
that he advised Dunkin to take the plea offer, because he felt
there was a substantial likelihood Dunkin would be convicted
of first degree murder if the case went to trial.
Dunkin entered his plea of no contest to the charge of mur-
der in the second degree on February 10, 2009. At the plea
hearing, Dunkin stated that he was taking several medications
and that the medications helped him to think more clearly.
During postconviction proceedings, however, Dunkin stated
that he was suffering from anxiety on February 10 and that
as a result, his mind was “racing” and he could not think
straight. Dunkin testified that he did not freely and volun-
tarily plead no contest, because he was heavily medicated, he
was not “in the right mind” to make such a decision, and he
felt pressured. Dunkin stated that he decided to take the plea,
because he had not discussed trial strategy with counsel and
he felt rushed.
Dunkin also testified that counsel told him what answers to
give to the judge at the plea hearing. Dunkin stated that with-
out that preparation, he would not have been able to properly
answer the questions regarding his understanding of the plea.
Counsel testified that he did not pressure Dunkin in any way to
accept a plea offer; that at all times, he told Dunkin to answer
sTATe v. Dunkin 	37
Cite as 283 neb. 30

questions from the court truthfully; and that he told Dunkin he
hoped for a sentence of 20 to 30 years’ imprisonment, but had
made no promises.
sentencing was scheduled for April 27, 2009. Dunkin did
not meet or speak with counsel prior to the sentencing date.
on the day of the sentencing hearing, Dunkin and counsel met
briefly. Dunkin had prepared a statement for the hearing that
he wanted to read so Anderson’s family could hear what had
happened. Counsel told Dunkin it would be in his best interests
not to say anything, and Dunkin refrained from reading his
statement and said only that he was sorry and took responsibil-
ity for what had happened. The court imposed a sentence of 40
years’ to life imprisonment.
(d) possibility of Appeal
Dunkin had no further contact with counsel following sen-
tencing, nor did they discuss an appeal. Dunkin did not speak
with counsel directly regarding an appeal of his conviction or
sentence. However, Dunkin testified that he asked his mother,
brother, and son to tell counsel that he wanted to appeal.
Dunkin stated that he did not receive any correspondence from
counsel regarding his ability to appeal and that he never signed
a waiver of appeal.
Dunkin’s mother, Meredith Chisholm, testified that Dunkin
called her on May 8, 2009, and asked her if she would contact
counsel to request an appeal. Chisholm contacted counsel on
May 12 and left a message. Counsel returned Chisholm’s call
2 days later, when Chisholm asked about the chances Dunkin
would have on appeal and asked that counsel visit Dunkin in
jail. Counsel stated that he believed the chances of success on
appeal were slim and that he could not “take any more money
from [the family].” Counsel did not speak with Chisholm any
further regarding the possibility of an appeal.
Counsel testified that he did not get a written waiver of
appeal from Dunkin or advise Dunkin or Chisholm that it
would be possible to obtain court-appointed counsel to pros-
ecute an appeal if Dunkin was determined to be indigent.
However, counsel stated that he discussed the possibility of a
successful appeal with Chisholm within 30 days of Dunkin’s
38 	283 neBrAskA reporTs

sentencing. At that time, Chisholm did not request that he file
an appeal. Counsel further testified that he had explained to
Dunkin that he would not be able to appeal the suppression
order if he accepted the plea offer. And counsel testified that
he also discussed all the other rights that Dunkin would waive
if he entered the plea.
(e) Disposition
Following the evidentiary hearing, the district court denied
Dunkin’s request for postconviction relief. The court deter-
mined that Dunkin’s plea was made freely and knowingly,
without pressure or coercion from counsel and without the
promise of a specific sentence. The court also found that
counsel was not ineffective in his preparation for trial or in
failing to request a competency examination. Finally, the court
determined that although counsel engaged in some discussion
regarding the possibility of an appeal, counsel was not ineffec-
tive in failing to file an appeal, because the record reflects that
no request for appeal was made.
in denying Dunkin’s claims, the court noted:
Dunkin cannot bring himself to come to grips with
the facts of this case, that is, the killing was not an
accident. When his first attorney was unable to obtain a
reduced charge of manslaughter, he and his family some-
how believed that if they retained the services of a well-
known experienced criminal attorney, he would be able to
achieve the desired reduction in the original charge of first
degree murder to manslaughter. There is no doubt that
[counsel] fit Dunkin’s qualification. He is an experienced,
competent and well respected criminal lawyer. When he
first heard Dunkin’s version of the facts surrounding the
incident, he felt there may be a viable defense theory to
the case. However, after reviewing the reports and other
documents, and conferring with the forensic pathologist
who was retained at the expense of lancaster County,
[counsel] concluded that manslaughter was not an alterna-
tive that the state would consider. in fact, at the time of
sentencing this court noted that its review of the record
and autopsy did not support a theory that the death was
sTATe v. Dunkin 	39
Cite as 283 neb. 30

accidental. Merely because the result of the case is not
that hoped for by the defendant does not support a finding
of ineffective assistance of counsel.
Dunkin appeals the denial of his motion for postconviction
relief. Additional facts relating to Dunkin’s plea and conviction
will be discussed as necessary in our analysis section below.
iii. AssiGnMenTs oF error
Dunkin assigns that the district court erred in (1) failing
to grant Dunkin’s request for postconviction relief, because
Dunkin’s constitutional right to the effective assistance of
counsel was violated throughout the discovery, trial, plea, and
sentencing phases of his case, and (2) failing to grant Dunkin’s
request for postconviction relief, because Dunkin’s right to the
effective assistance of counsel was violated when trial counsel
disregarded Dunkin’s request to appeal his sentence.
iV. sTAnDArD oF reVieW
[1-3] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.1 on
appeal from a proceeding for postconviction relief, the trial
court’s findings of fact will be upheld unless such findings are
clearly erroneous.2 Determinations regarding whether counsel
was deficient and whether the defendant was prejudiced are
questions of law that we review independently of the lower
court’s decision.3
V. AnAlYsis
Dunkin argues that the district court erred in denying his
motion for postconviction relief on the basis of ineffective
assistance of counsel. Dunkin claims that his trial counsel
failed to properly investigate the case, retain experts, conduct
discovery, and prepare for trial. Had trial counsel properly
prepared, Dunkin asserts that he would not have entered a plea
of no contest but would have insisted on a trial. Dunkin argues
that counsel should have requested a competency hearing
1 State v. Yos-Chiguil, 281 neb. 618, 798 n.W.2d 832 (2011).
2 State v. Poindexter, 277 neb. 936, 766 n.W.2d 391 (2009).
3 State v. Yos-Chiguil, supra note 1.
40 	283 neBrAskA reporTs

and investigated Dunkin’s mental health. Dunkin also asserts
that 	trial 	counsel 	disregarded 	Dunkin’s 	request 	to 	appeal
his sentence.
[4] 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,4
to show that counsel’s performance was deficient and that
counsel’s deficient performance prejudiced the defense in his
or her case.5 The two prongs of this test, deficient performance
and prejudice, may be addressed in either order.6
1. pleA
[5-7] 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 Within the plea context, in order
to satisfy the prejudice requirement to establish an ineffective
assistance of counsel claim, the defendant must show that there
is a reasonable probability that, but for counsel’s errors, he or
she would not have pleaded guilty and would have insisted on
going to trial.8 The entire ineffectiveness analysis is viewed
with a strong presumption that counsel’s actions were reason-
able and that even if found unreasonable, the error justifies set-
ting aside the judgment only if there was prejudice.9
(a) pressure to enter plea
Dunkin argues that he did not freely and voluntarily plead
no contest to the amended information, because counsel pres-
sured him to plead to the amended charge. Dunkin claims he
4 Strickland v. Washington, 466 u.s. 668, 104 s. Ct. 2052, 80 l. ed. 2d 674
(1984).
5 State v. Vo, 279 neb. 964, 783 n.W.2d 416 (2010).
6 Id.
7 Id.
8 State v. Yos-Chiguil, supra note 1.
9 State v. McDermott, 267 neb. 761, 677 n.W.2d 156 (2004); State v.
George, 264 neb. 26, 645 n.W.2d 777 (2002); State v. Thomas, 262 neb.
138, 629 n.W.2d 503 (2001); State v. Silvers, 260 neb. 831, 620 n.W.2d
73 (2000).
sTATe v. Dunkin 	41
Cite as 283 neb. 30

accepted the plea agreement only because he recognized that
his counsel was not ready for trial. The district court con-
cluded that Dunkin’s arguments were without merit, because
the record did not reflect that counsel pressured Dunkin to
plead no contest and Dunkin failed to present any evidence of
prejudice resulting from counsel’s allegedly deficient pretrial
investigation.
The record affirmatively reflects that Dunkin freely and
voluntarily entered his plea. During the plea proceeding, the
following colloquy occurred:
THe CourT: Have you discussed the plea proceed-
ings that we are conducting here today with [counsel]?
THe DeFenDAnT: Yes, Your Honor.
THe CourT: Did he explain the Amended information
and the charge to you together with the rights we have
been discussing?
THe DeFenDAnT: Yes, Your Honor.
THe CourT: And did [counsel] discuss with you all
of the possible defenses to this charge that you might
have if you were to have a trial?
THe DeFenDAnT: Yes, Your Honor.
THe CourT: Are there any defenses that you feel you
may have or any facts about the case that you feel might
be helpful to your defense that you have not discussed
with [counsel]?
THe DeFenDAnT: no, Your Honor.
THe CourT: in other words, have you told him every-
thing about the case that you feel he needs to know to be
able to represent you properly?
THe DeFenDAnT: Yes, Your Honor.
THe CourT: Are you satisfied with the job he’s done
as your attorney?
THe DeFenDAnT: Yes, Your Honor.
THe CourT: Do you feel he is a competent lawyer,
that he knows what he’s doing?
THe DeFenDAnT: Yes, Your Honor.
THe CourT: is there anything you have asked [coun-
sel] to do in regard to representing you in this matter that
he has failed to do?
42 	283 neBrAskA reporTs

THe DeFenDAnT: no, Your Honor.
THe CourT: And have you had enough time to talk
with him about the case?
THe DeFenDAnT: Yes, Your Honor.
We agree with the district court that the record does not indi-
cate that Dunkin was in any way uncertain or reluctant to enter
his plea.
Based upon our review of the record, the district court’s
finding that Dunkin was not pressured or coerced is not clearly
erroneous. Accordingly, we conclude that the court did not err
in denying Dunkin’s claim for postconviction relief.
(b) Adequacy of preparation
in addition, Dunkin apparently argues that but for counsel’s
ineffective representation at the suppression hearing, Dunkin
would not have entered a plea of no contest, but would have
insisted on going to trial. Dunkin asserts that counsel’s failure
to obtain an order suppressing the entirety of the statements
Dunkin made to police officers and medical personnel on the
night of the incident contributed to his decision. He argues
that counsel’s statement that the suppression order was not
appealable also contributed to his acceptance of the plea.
Dunkin claims he believed the determinations in the suppres-
sion order could not be reviewed. if he had known the issues
would be preserved following a trial, he would not have taken
the plea.
The postconviction court determined that because an order
overruling a motion to suppress is not a final, appealable order,
Dunkin’s claim is without merit. We agree and note that the
record does not indicate that counsel represented to Dunkin
that the suppression order could never be appealed. Counsel
only indicated that he was unable to file an interlocutory appeal
in the case. And there is nothing in the record to suggest that
the suppression order was entered erroneously. Accordingly,
Dunkin has failed to establish that trial counsel was ineffective
in this regard.
Finally, Dunkin asserts that he accepted the plea because
counsel did not follow his instructions to interview witnesses
and investigate the case. Dunkin requested that counsel interview
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Dunkin’s sons, various experts, and character witnesses and
argues that counsel should have subpoenaed such witnesses to
testify at trial. Again, Dunkin claims that if counsel had inter-
viewed or subpoenaed these witnesses, Dunkin would have
insisted on going to trial. But Dunkin presented no evidence
that any of these witnesses could have presented testimony
both relevant to the case and favorable to Dunkin. The district
court noted that Dunkin’s sons had already been subpoenaed
by the state and that counsel contacted a forensic pathologist,
nichols, per Dunkin’s request. The court concluded, however,
that the expert testimony would not be helpful to Dunkin, as it
contradicted Dunkin’s version of the incident. We agree with
the district court that there is no evidence that Dunkin was
prejudiced by counsel’s failure to call these witnesses. nor did
counsel’s decision not to call these witnesses unduly pressure
or coerce Dunkin to accept a plea.
Dunkin has failed to establish that counsel’s preparation for
the case was unreasonable or inadequate. And Dunkin has not
established prejudice: The record does not indicate a reason-
able probability that, but for counsel’s alleged errors, Dunkin
would not have entered his plea and would have insisted on
going to trial. Dunkin’s claim regarding inadequate preparation
is therefore without merit.
(c) Competency
[8-10] Dunkin also argues that counsel was ineffective for
failing to request a mental health evaluation or competency
examination to determine whether Dunkin understood the
effect of the plea proceedings. 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 pro-
ceedings, and to make a rational defense.10 The test of mental
capacity to plead is the same as that required to stand trial.11
A court is not required to make a competency determination
in every case in which a defendant seeks to plead guilty or to
10 State v. Vo, supra note 5.
11 Id.
44 	283 neBrAskA reporTs

waive his or her right to counsel; a competency determination
is necessary only when a court has reason to doubt the defend-
ant’s competence.12
[11] in order to demonstrate prejudice from counsel’s failure
to investigate competency and for failing to seek a compe-
tency hearing, the defendant must demonstrate that there is a
reasonable probability that he or she was, in fact, incompetent
and that the trial court would have found him or her incom-
petent had a competency hearing been conducted.13 The issue
of prejudice in this case is necessarily bound up in the law of
competency, and we will turn to that now.14
[12] An individual has a constitutional right not to be put to
trial when lacking mental competency.15 in State v. Guatney,16
we said that the test of competency to stand trial is whether the
defendant has the capacity to understand the nature and object
of the proceedings against him, to comprehend his own condi-
tion in reference to such proceedings, and to make a rational
defense. We held that the defendant was clearly competent when
expert witnesses agreed he could appreciate the proceedings in
court; understand the nature of the roles that the judge, the
prosecutor, and the defense attorney would play; and cooperate
with his attorneys to provide for a defense.17 The defendant’s
unstable emotional state, paranoid ideation, and occasional out-
bursts in court did not render him incompetent.18
12 Id.
13 see, Hull v. Kyler, 190 F.3d 88 (3d Cir. 1999); Felde v. Butler, 817 F.2d
281 (5th Cir. 1987); Matheney v. Anderson, 377 F.3d 740 (7th Cir. 2004);
Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997); Futch v. Dugger,
874 F.2d 1483 (11th Cir. 1989); Nelson v. State, 43 so. 3d 20 (Fla. 2010);
Ridgley v. State, 148 idaho 671, 227 p.3d 925 (2010).
14 see Hull v. Kyler, supra note 13.
15 see, Indiana v. Edwards, 554 u.s. 164, 128 s. Ct. 2379, 171 l. ed. 2d
345 (2008); State v. Fox, 282 neb. 957, 806 n.W.2d 883 (2011); State v.
Hessler, 282 neb. 935, 807 n.W.2d 504 (2011).
16 State v. Guatney, 207 neb. 501, 299 n.W.2d 538 (1980). see, also, State v.
Fox, supra note 15; State v. Hessler, supra note 15.
17 State v. Guatney, supra note 16.
18 Id.
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The fundamental question is whether the defendant’s mental
disorder or condition prevents the defendant from having the
capacity to understand the nature and object of the proceed-
ings, comprehend the defendant’s own condition in reference
to such proceedings, and to make a rational defense.19 Here,
the record demonstrates that Dunkin had the capacity to under-
stand the proceedings and assist in his defense.
prior to accepting Dunkin’s plea of no contest to the charge
of murder in the second degree, the district court made a num-
ber of inquiries as to Dunkin’s background and articulated the
rights he was waiving by entering the plea. During this inquiry,
Dunkin informed the court that he was 44 years of age, had
completed high school and taken some college courses, and
had been employed as an area facilities manager for apartments
in several states. Dunkin stated which prescription medications
he was taking and for what purpose, that he had taken the pre-
scribed dosage, and that the medication was not affecting his
ability to understand the proceedings. The record also reflects
the following exchanges regarding Dunkin’s understanding of
the proceedings:
THe CourT: . . . [H]ave i used any words here so far
that you don’t understand?
THe DeFenDAnT: no, sir.
THe CourT: Do you have any questions about any of
these rights?
THe DeFenDAnT: no, Your Honor, i do not.
THe CourT: And are you in fact waiving and giv-
ing up the rights we have been discussing freely and
voluntarily?
THe DeFenDAnT: Yes, Your Honor.
. . . .
THe CourT: And do you still wish to plead no con-
test to the charge in the Amended information?
THe DeFenDAnT: Yes, i do, Your Honor.
THe CourT: Again, are you freely and voluntarily
entering this plea and waiving your rights?
THe DeFenDAnT: Yes, Your Honor.
19 Id.
46 	283 neBrAskA reporTs

THe CourT: . . . [i]s there anything else you wish to
say at this time or any questions you have either of [coun-
sel] or myself before i accept your plea?
. . . .
THe DeFenDAnT: no, Your Honor.
The only evidence in the record to support Dunkin’s asser-
tion that he did not voluntarily enter his plea is his own testi-
mony that counsel coached Dunkin in answering the court’s
questions. There is nothing in the record to corroborate this
allegation. nor is there evidence of any mental or physical
symptoms relating to Dunkin’s medications or his purported
anxiety issues. The record of Dunkin’s plea proceeding does
not reflect that Dunkin was incompetent to enter his plea.
Dunkin’s responses to questions from the court were appro-
priate and reflected his knowledge that he was appearing in
court for the purpose of entering a plea of no contest and that
he understood the consequences of such action as they were
explained to him by the judge.
Though Dunkin claims that counsel was ineffective for
failing to raise the competency issue, Dunkin testified at the
evidentiary hearing in February 2009 that he believed himself
to be competent to stand trial. so, Dunkin apparently does not
seek to prove that he was prejudiced by the absence of a compe-
tency hearing. He argues that “[i]t would have seemed prudent,
even though nothing may have come of it, to request a mental
health evaluation or competency examination.”20 Accordingly,
Dunkin has not established the prejudice required on this claim.
Moreover, because the record affirmatively reflects that Dunkin
was competent to enter his plea, his counsel was not ineffective
for failing to raise the issue of competency—an argument that
has no merit—in the trial court.21
(d) promise of specific sentence
Dunkin claims that counsel was ineffective in failing to
object to the state’s alleged breach of the plea agreement when
he was sentenced to 40 years’ to life imprisonment rather than
20 Brief for appellant at 22 (emphasis supplied).
21 see State v. Vo, supra note 5.
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20 to 30 years’ imprisonment. The district court determined
that Dunkin’s allegation that a specific sentence was promised
or that the plea agreement was conditioned on such a sentence
was without merit. The district court discussed sentencing with
Dunkin at the plea hearing:
THe CourT: i assume there has been a plea agree-
ment here, is that correct?
[Counsel for the state:] There has, Judge. The plea
agreement is in exchange for the state filing the amended
charge of second degree murder, . . . Dunkin would plead
guilty or no contest to that charge. no other charges stem-
ming from the events of January 21, 2008, would be filed
against . . . Dunkin.
THe CourT: [Defense counsel], is that your under-
standing of the plea agreement?
[Defense counsel]: That’s accurate, Your Honor.
THe CourT: And . . . is that your understanding of
the plea agreement?
THe DeFenDAnT: Yes, Your Honor.
THe CourT: And is this an agreeable way to dispose
of the matter as far as you are concerned?
THe DeFenDAnT: Yes, Your Honor.
THe CourT: other than this agreement, has anyone
connected with law enforcement or anyone else made any
threats, direct or indirect, used any force or held out any
promises of any kind to get you to come in here today and
to enter this plea and to waive your rights?
THe DeFenDAnT: no, Your Honor.
THe CourT: Has anyone made any promises or rep-
resentations to you as to what the actual sentence in this
case might be should you enter this plea?
THe DeFenDAnT: no, Your Honor.
THe CourT: Do you understand that within the limits
of the statute the determination of the appropriate sen-
tence is entirely up to the Court?
THe DeFenDAnT: Yes, Your Honor.
THe CourT: And do you still wish to plead no con-
test to the charge in the Amended information?
THe DeFenDAnT: Yes, i do, Your Honor.
48 	283 neBrAskA reporTs

THe CourT: Again, are you freely and voluntarily
entering this plea and waiving your rights?
THe DeFenDAnT: Yes, Your Honor.
There is no evidence that Dunkin was promised a certain sen-
tence, and other than his testimony at the evidentiary hearing
below, there is no evidence that Dunkin believed he was guar-
anteed a sentence of 20 to 30 years’ imprisonment. The record
reflects that counsel told Dunkin he hoped for such a sentence,
but this does not support an ineffectiveness claim. Dunkin’s
arguments to the contrary are without merit.
2. fAilure to file direct A ppeAl
[13,14] Dunkin contends that his trial counsel was ineffective
for failing to file a direct appeal in response to his request that
he do so. under certain circumstances, the nature of counsel’s
deficient conduct in the context of the prior proceedings can
lead to a presumption of prejudice, negating the defendant’s
need to offer evidence of actual prejudice in a postconviction
case.22 After a trial, conviction, and sentencing, if counsel defi-
ciently fails to file or perfect an appeal after being so directed
by the criminal defendant, prejudice will be presumed and
counsel will be deemed ineffective, thus entitling the defendant
to postconviction relief.23
Assuming without deciding that the same principle would
apply where conviction is the result of a guilty or no contest
plea, the critical question of fact is whether Dunkin directed
his counsel to file a direct appeal on his behalf. After reviewing
the evidence received at the postconviction hearing, the district
court concluded that he did not. As noted above, Dunkin’s
mother, Chisholm, contacted counsel to discuss the possible
success of an appeal, but the record does not indicate that she
specifically requested counsel to pursue an appeal. And there
is no evidence that Dunkin attempted to contact counsel by
letter or telephone to make such a request himself. it is uncon-
tested that Dunkin and counsel had no contact following the
22 State v. Amaya, 276 neb. 818, 758 n.W.2d 22 (2008).
23 Id.
sTATe v. Dunkin 	49
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sentencing proceedings. Based upon our review of the record,
we conclude that these findings are not clearly erroneous.
Vi. ConClusion
For the reasons discussed above, we conclude that the dis-
trict court did not err in denying Dunkin’s motion for postcon-
viction relief, and we affirm its judgment.
A ffirmed.
wright, J., not participating in the decision.
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