State v. Golka

State of NebraSka , appellee , v.
JaSoN l. G olka , appellaNt.
796 N.W.2d 198
Filed April 22, 2011. 	No. S-10-484.
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: Constitutional Law: Proof. An evidentiary hearing on a motion
for postconviction relief must be granted when the motion contains factual allega-
tions which, if proved, constitute an infringement of the movant’s rights under the
Nebraska or federal Constitution. However, if the motion alleges only conclusions
of fact or law, or the records and files in the case affirmatively show that the mov-
ant is entitled to no relief, no evidentiary hearing is required.
3. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel
provided ineffective assistance presents a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. With regard to the questions
of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), an appellate court reviews such legal determinations indepen-
dently of the lower court’s decision.
4. Postconviction: Effectiveness of Counsel: Pleas. 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.
5. 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.
6. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is the
result of a guilty plea or a plea of no contest, the prejudice requirement for an
ineffective assistance of counsel claim is satisfied if the convicted defendant can
show a reasonable probability that, but for the errors of counsel, he or she would
have insisted on going to trial rather than pleading.
7. Effectiveness of Counsel: Jury Trials: Waiver. The decision to waive a jury
trial is ultimately and solely the defendant’s, and, therefore, the defendant must
bear the responsibility for that decision. Counsel’s advice to waive a jury trial
can be the source of a valid claim of ineffective assistance only when (1) counsel
interferes with his or her client’s freedom to decide to waive a jury trial or (2) the
appellant can point to specific advice of counsel so unreasonable as to vitiate the
knowing and intelligent waiver of the right.
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8. Effectiveness of Counsel: Pleadings: Trial. Where the alleged error of counsel
is a failure to advise the defendant of a potential affirmative defense to the crime
charged, the resolution of the “prejudice” inquiry will depend largely on whether
the affirmative defense likely would have succeeded at trial.
9. Jury Instructions: Homicide: Evidence. No error occurs by not instructing the
jury regarding second degree murder and manslaughter where there is no evidence
that would give a fact finder a rational basis to find the defendant guilty of second
degree murder or manslaughter and acquit him or her of first degree murder.
10. Homicide: Intent. A person commits murder in the first degree if he or she kills
another person purposely and with deliberate and premeditated malice or in the
commission of a felony or by administering poison.
11. ____: ____. A person commits murder in the second degree if he causes the death
of a person intentionally, but without premeditation.
12. ____: ____. The material elements of manslaughter are an unintentional killing
while in the commission of an unlawful act or upon sudden quarrel.
13. Self-Defense. To successfully assert the claim of self-defense, one must have a
reasonable and good faith belief in the necessity of using force. In addition, the
force used in defense must be immediately necessary and must be justified under
the circumstances.
14. Effectiveness of Counsel: Appeal and Error. Counsel’s failure to raise an issue
on appeal could be ineffective assistance only if there is a reasonable probability
that inclusion of the issue would have changed the result of the appeal.
15. Pleas. To support a finding that a plea of guilty or nolo contendere has been
voluntarily and intelligently made, the court must (1) inform the defendant con-
cerning (a) the nature of the charge, (b) the right to assistance of counsel, (c)
the right to confront witnesses against the defendant, (d) the right to a jury trial,
and (e) the privilege against self-incrimination; and (2) examine the defendant to
determine that he or she understands the foregoing. Additionally, the record must
establish that (1) there is a factual basis for the plea and (2) the defendant knew
the range of penalties for the crime with which he or she is charged.
16. Constitutional Law. once a defendant is informed of his or her constitutional
rights, there is no requirement that the court advise the defendant on each subse-
quent court appearance of those same rights.
Appeal from the District Court for Sarpy County: William
b. Z aStera, Judge. Affirmed.
James r. Mowbray and Jeffery A. pickens, of Nebraska
Commission on public Advocacy, for appellant.
Jon bruning, Attorney General, and Stacy M. Foust for
appellee.
H eavicaN, c.J., coNNolly, G errard, StepHaN, mccormack ,
and miller-lermaN, JJ., and iNbody, Chief Judge.
STATE v. GoLkA 	361
Cite as 281 Neb. 360

miller-lermaN, J.
NATUrE oF THE CASE
In this postconviction case, appellant, Jason L. Golka, was
convicted in the district court for Sarpy County of two counts
of first degree murder pursuant to a guilty plea. on the date of
the offenses, Golka was 17 years old. Golka was sentenced to
two consecutive terms of life imprisonment “without parole.”
Golka appealed the sentences and, on direct appeal, claimed
that the provision that his sentences be “without parole” should
be vacated pursuant to State v. Conover, 270 Neb. 446, 703
N.W.2d 898 (2005). This court issued a memorandum opinion
and affirmed Golka’s convictions on both counts of first degree
murder; however, because we found the “without parole” fea-
ture to be error, we vacated the sentences of life imprisonment
“without parole” and remanded the cause for resentencing.
Golka was resentenced to two life terms to be served consecu-
tively, from which he did not appeal.
After resentencing, Golka filed a motion for postconviction
relief which gives rise to the instant appeal. In his motion,
Golka alleged that he received ineffective assistance of trial
counsel based on counsel’s advising him to waive his right to a
jury trial, failing to advise him of certain defenses, and advis-
ing him to enter into the plea agreement. Golka argues that he
received ineffective assistance of appellate counsel because his
counsel on appeal did not assign as error that the district court
erred in accepting Golka’s plea without advising him of the
nature of the charges against him or his right to be presumed
innocent. Finally, Golka alleged that sentences of life imprison-
ment constituted cruel and unusual punishment because of his
age at the time of the crimes. The district court denied Golka’s
claims without an evidentiary hearing. Golka appeals, and
we affirm.
STATEMENT oF FACTS
on November 17, 2004, Golka was charged by information
in the district court for Sarpy County with two counts of first
degree murder and two counts of use of a firearm to commit a
felony. on the date of the offenses, Golka was 17 years old. on
November 19, Golka was arraigned in a group arraignment. At
362 	281 NEbrASkA rEporTS

the arraignment, Golka was advised, inter alia, that he had the
right to a jury trial, the right to a speedy and public trial, the
right to counsel, and the right to confront and cross-examine
witnesses, and that he would be presumed innocent. The court
advised Golka, “Your presumption of innocence continues
throughout the proceeding unless and until the State meets its
burden of proof, and the State’s burden of proof is to prove
you guilty beyond a reasonable doubt before you can lose your
presumption of innocence and be found guilty.” The body of
the information was read to Golka. The reading included iden-
tification of the victims, the location of the crime, the level of
the crime, and the nature of the penalties. Golka was asked if
he understood the nature of the charges and the penalties, to
which Golka stated, “Yes, sir.”
on March 3, 2005, an evidentiary hearing to transfer to juve-
nile court was conducted and the motion to transfer was denied.
Also on March 3, an evidentiary hearing on Golka’s motion to
suppress was conducted, and the motion was denied.
on July 5, 2005, the district court held a hearing at which
Golka waived his right to a jury trial. The following exchange
took place:
THE CoUrT: Sir, do you understand that in each of
these files, that you have an absolute right to a jury trial?
[Golka]: Yes, Your Honor.
THE CoUrT: Are you waiving that right at this time?
[Golka]: Yes, Your Honor.
THE CoUrT: Now, sir, was any threat made to you,
promise given to you, or inducement given to you to get
you to waive?
[Golka]: No, Your Honor.
THE CoUrT: You’re doing so freely and voluntarily?
[Golka]: Yes, Your Honor.
THE CoUrT: Now, you’ve had discussions with your
counsel about this; is that correct?
[Golka]: Yes, Your Honor.
THE CoUrT: Are you satisfied with that recommenda-
tion — or the advice you’ve gotten?
[Golka]: Yes, Your Honor.
STATE v. GoLkA 	363
Cite as 281 Neb. 360

THE CoUrT: He’s — you had ample opportunity to
talk to him about these matters?
[Golka]: Yes, Your Honor.
THE CoUrT: The Court at this time [finds Golka’s]
waiver of jury trial to be freely, voluntarily, intelligently,
[and] knowingly made. The Court accepts the waivers.
A second amended information was filed on July 8, 2005,
with an additional count of conspiracy to commit first degree
murder, a Class II felony. on July 13, pursuant to a plea agree-
ment, Golka pled guilty to two counts of first degree murder. In
exchange for his pleas, the State agreed to dismiss both counts
of use of a firearm to commit a felony and the conspiracy
count. In addition, in a second case, the State agreed to dismiss
a count of use of a firearm to commit a felony, and to dismiss
a third case in its entirety.
At the plea hearing, the State offered a factual basis for each
count of first degree murder. The district court took judicial
notice of the evidence adduced at the juvenile transfer and
motion to suppress hearings and the orders issued on each of
those motions. There was evidence that one victim died of a
gunshot wound to the head and that the other victim died from
multiple gunshot wounds to the torso and head.
At the plea hearing, the following exchange took place:
THE CoUrT: . . . Counts I and III are two counts
of murder in the first degree. The possible penalty here
— the maximum possible penalty, by reason of the fact
that you were under 18 years of age at the time of the
commission of the offense, is — the maximum penalty
is confinement with the Department of Corrections of the
State of Nebraska for the term of your natural life without
the possibility of parole.
Now do you understand the maximum possible pen-
alty here?
[Golka]: Yes, Your Honor.
THE CoUrT: okay.
. . . .
THE CoUrT: on each count. Do you understand
that?
[Golka]: Yes, Your Honor.
364 	281 NEbrASkA rEporTS

THE CoUrT: Do you also understand that if I saw
fit, I could make those sentences run consecutive to each
other?
[Golka]: Yes, Your Honor.
before accepting the pleas, the court also advised Golka that
he had the following rights: the right to counsel, the right to a
jury trial, the right to call and confront witnesses, the privilege
against self-incrimination, the right to a speedy and public trial
where the State would have the burden of proving him guilty
beyond a reasonable doubt, and the right to appeal. Golka
stated that no promises had been made to induce his plea and
that he was not subjected to any threats, promises, or other
inducements. Golka stated that he understood his rights and
that he was pleading freely and voluntarily. The district court
accepted the pleas and adjudged Golka guilty of two counts of
first degree murder.
Golka was sentenced on August 19, 2005, to two consecu-
tive terms of life imprisonment without parole. Golka appealed
the convictions and sentences and, on direct appeal, claimed
that the provision that his sentences be “without parole” should
be vacated pursuant to State v. Conover, 270 Neb. 446, 703
N.W.2d 898 (2005). This court filed a memorandum opinion on
September 27, 2006, in which we affirmed Golka’s convictions
on both counts of first degree murder but vacated the sentences
of “life imprisonment without parole” and remanded the cause
for resentencing.
The resentencing hearing occurred on December 1, 2006.
The following exchange took place at the resentencing:
THE CoUrT: . . .
. . . .
Matter comes on for resentencing after remand from
the Nebraska Supreme Court. . . .
. . . .
THE CoUrT: . . .
The Court has considered a presentence report or
an evaluation that was contained in the bill of excep-
tions. . . .
. . . [H]as the state had an opportunity to review this?
[prosecutor]: We have.
STATE v. GoLkA 	365
Cite as 281 Neb. 360

[Defense counsel]: I have.
THE CoUrT: [addressing defense counsel] [I]s there
any legal reason why sentence may not be pronounced?
[Defense counsel]: No.
THE CoUrT: State wish to be heard?
[prosecutor]: Your Honor, the only reason we are here,
obviously, is because this comes back on remand because
the court has determined that the statute under which
[Golka] was initially sentenced was unconstitutional.
There has been no change in circumstance that would
warrant a change in the status of the — of [Golka’s]
sentence; that being two consecutive life sentences. And
with that, I would ask you to consider the state’s previous
arguments that were offered to the Court on August 19,
2005, at his original sentencing.
. . . .
[Defense counsel]: . . . We’re here today to formally
sentence . . . Golka pursuant to the mandate of the
supreme court.
I’ve had an opportunity to review the presentence
investigation. . . . Golka is obviously aware we’re not
here asking for probation. With that, we know that we are
going to get two consecutive life sentences.
The — and I’ve talked to [Golka] for a little bit and I
think he realizes that there is an opportunity, albeit slim
and way down the road, for him to have his sentences
commuted, and he — he is in the situation of having to
be an ideal prisoner for a long time if he wants the oppor-
tunity to have his sentence commuted. It’s not going to
be in my lifetime, but I think he realizes that if he abides
by the rules and regulations, there is a chance for him to
better himself.
. . . .
THE CoUrT: okay. Mr. Golka, is there anything you
wish to tell me?
[Golka]: No.
THE CoUrT: Mr. Golka, it will be the judgment of
the Court on resentencing that on each count you be sen-
tenced to serve a term of your natural life; that you are
366 	281 NEbrASkA rEporTS

— and these sentences to be served . . . consecutively
with each other, . . . and it will be deemed that these sen-
tences commenced August 19th, 2005. So the resentence
is not from today.
With that, he’s remanded to the custody of the sheriff
for transportation back to the Department of Corrections.
No appeal was taken from the resentencing. Golka was rep-
resented by the same counsel at trial, on direct appeal, and at
the resentencing.
on November 8, 2007, Golka filed a pro se motion for post-
conviction relief and filed an amended motion on November
26, 2008, through counsel. In his amended petition, Golka
claimed that he received ineffective assistance of trial and
appellate counsel.
With respect to trial counsel, Golka alleged that trial counsel
was ineffective when he advised Golka to waive his right to
a jury trial, failed to advise him of the existence of alternate
crimes and defenses that he could have asserted, and advised
him to accept the plea agreement.
With respect to the plea, Golka claimed that his trial counsel
was ineffective when he advised Golka to plead guilty. Golka
specifically alleged that his counsel advised him that if he
pled guilty to the two counts of first degree murder, “his two
life sentences would be commuted to sentences of terms of
years after 20 to 25 years, and he would be paroled.” Golka
alleged that he pled guilty based on this advice and, “[b]ut
for [counsel’s] advice, . . . would have exercised his right to a
trial rather than entering his guilty pleas pursuant to the plea
agreement.”
In his motion for postconviction relief, Golka alleged that
he received ineffective assistance of appellate counsel when his
appellate counsel failed to assign as error that the district court
had erred when it accepted his guilty plea without advising
Golka of the nature of the charges against him and his right to
be presumed innocent.
Finally, Golka raised a claim of cruel and unusual punish-
ment with respect to sentencing. The district court denied
Golka’s claims without an evidentiary hearing in an order filed
April 20, 2010. Golka appealed.
STATE v. GoLkA 	367
Cite as 281 Neb. 360

ASSIGNMENTS oF Error
Golka claims that the district court erred when it denied him
postconviction relief without conducting an evidentiary hearing
on the claims of (1) ineffective assistance of trial counsel, (2)
ineffective assistance of appellate counsel, and (3) constitution-
ality of sentencing juveniles.
STANDArDS oF rEVIEW
[1,2] A defendant requesting postconviction relief must
establish the basis for such relief, and the findings of the dis-
trict court will not be disturbed unless they are clearly errone-
ous. State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010). 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 Nebraska or federal Constitution. Id. 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.
[3] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact. When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court
reviews such legal determinations independently of the lower
court’s decision. State v. McKinney, 279 Neb. 297, 777 N.W.2d
555 (2010).
ANALYSIS
The overriding issue presented in this appeal is whether the
district court erred when it denied postconviction relief without
conducting an evidentiary hearing. 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 Nebraska
or federal Constitution. State v. McGhee, 280 Neb. 558, 787
368 	281 NEbrASkA rEporTS

N.W.2d 700 (2010). However, if the motion alleges only con-
clusions 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.
Ineffective Assistance of Counsel.
[4-6] We note that Golka was represented by the same law-
yer at the time of his plea, on direct appeal, and at the resen-
tencing, and, accordingly, this postconviction proceeding is
his first opportunity to assert claims of ineffective assistance
of counsel. See State v. McKinney, supra. 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 assistance of counsel.
State v. Vo, supra. In order to establish a right to postconvic-
tion relief based on a claim of ineffective assistance of counsel,
the defendant has the burden, in accordance with Strickland v.
Washington, supra, to show that counsel’s performance was
deficient and that counsel’s deficient performance prejudiced
the defense in his or her case. State v. Vo, supra. The two
prongs of this test, deficient performance and prejudice, may be
addressed in either order. Id. When a conviction is the result of
a guilty plea or a plea of no contest, the prejudice requirement
is satisfied if the convicted defendant can show a reasonable
probability that, but for the errors of counsel, he or she would
have insisted on going to trial rather than pleading. See id.
Ineffective Assistance of Trial Counsel:
Waiver of Jury.
Golka alleged that his trial counsel was ineffective when
counsel advised him to waive a jury trial. Golka alleges that
trial counsel advised him that it was better to have a judge
decide his case, because a judge is a professional and confusion
would result if 12 people were required to decide his guilt or
innocence. Golka also alleges that trial counsel failed to advise
him that the jury verdict must be unanimous. Golka alleged
that but for trial counsel’s advice, he would have exercised his
right to a jury trial. Golka claims that he was denied his right to
a jury trial guaranteed by the 6th and 14th Amendments to the
STATE v. GoLkA 	369
Cite as 281 Neb. 360

U.S. Constitution and article I, §§ 6 and 11, of the Nebraska
Constitution. We find no merit to this argument.
[7] The focus of this allegation of ineffectiveness is Golka’s
assertion that trial counsel’s advice was so “patently unreason-
able,” brief for appellant at 13, as to vitiate the knowing and
intelligent waiver of his right to a jury trial. In this regard, we
have stated:
The decision to waive a jury trial is ultimately and
solely the defendant’s, and, therefore, the defendant must
bear the responsibility for that decision. . . . Counsel’s
advice to waive a jury trial can be the source of a valid
claim of ineffective assistance only when (1) counsel
interferes with his or her client’s freedom to decide to
waive a jury trial or (2) the appellant can point to specific
advice of counsel so unreasonable as to vitiate the know-
ing and intelligent waiver of the right.
State v. Dean, 264 Neb. 42, 48-49, 645 N.W.2d 528, 534 (2002)
(citation omitted). See, also, State v. Seberger, 279 Neb. 576,
779 N.W.2d 362 (2010).
There is nothing in the postconviction motion or record
which suggests that trial counsel interfered with Golka’s free-
dom to decide to waive a jury trial, and the colloquy in court
at the jury trial waiver hearing is to the contrary. The alleged
statements of trial counsel regarding the relative merits of try-
ing a case to the court as opposed to a jury were commonplace
considerations and did not constitute unreasonable advice so as
to vitiate the knowing and intelligent waiver of the right to a
jury trial.
The decision to waive the jury was Golka’s. Trial counsel’s
alleged advice was not unreasonable. The allegations in the
postconviction motion and the record affirmatively show that
Golka was not entitled to relief on this issue, and the district
court did not err when it denied this claim without an eviden-
tiary hearing.
Ineffective Assistance of Trial Counsel: Alternate
Crimes and Available Defenses.
Golka alleged that his trial counsel was ineffective because
he failed to advise Golka of alternate crimes to which he would
370 	281 NEbrASkA rEporTS

have been subject and defenses he could have asserted. Golka
claims that further advice, and inferentially no plea, would
have led Golka to proceed to trial wherein he would have been
convicted of second degree murder or manslaughter rather than
first degree murder or acquitted based on diminished capacity
or self-defense. For purposes of analysis, we assume without
deciding that trial counsel failed to advise Golka regarding
these matters. We conclude that no prejudice resulted, and this
claim is without merit.
[8] The U.S. Supreme Court has stated: “[W]here the alleged
error of counsel is a failure to advise the defendant of a poten-
tial affirmative defense to the crime charged, the resolution
of the ‘prejudice’ inquiry will depend largely on whether the
affirmative defense likely would have succeeded at trial.” Hill
v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203
(1985). See, similarly, Gumangan v. U.S., 254 F.3d 701 (8th
Cir. 2001) (stating that counsel was not ineffective for failing
to advise of certain defenses, because they would not have
been likely to succeed had defendant gone to trial).
Notwithstanding the fact that Golka’s convictions are plea
based, the record in this postconviction case is extensive. It
includes the juvenile transfer hearing, the motion to suppress,
and the factual bases at the plea hearing. The strength of the
State’s case is obvious, and Golka received benefit from the
plea bargain. The allegation that Golka would have gone to
trial if he had been advised of the alternate crimes and defenses
is perfunctory. Given the allegations and the record, the authen-
ticity of the allegation that Golka would have gone to trial is
negated by its lack of merit. Given the lack of merit, no “ratio-
nal defendant [would have] insist[ed] on going to trial” on
these bases. Roe v. Flores-Ortega, 528 U.S. 470, 486, 120 S.
Ct. 1029, 145 L. Ed. 2d 985 (2000).
[9] In order to evaluate Golka’s claim regarding the exis-
tence of the alternate crimes and the availability of the defenses
he now urges, we need to analyze whether the facts produce
a rational basis to acquit Golka of first degree murders and
instead convict him of second degree murders or manslaughters
and whether the defenses likely would have succeeded at trial.
We have indicated that no error occurs by not instructing the
STATE v. GoLkA 	371
Cite as 281 Neb. 360

jury regarding second degree murder and manslaughter where
there is no evidence that would give a fact finder a rational
basis to find the defendant guilty of second degree murder or
manslaughter and acquit him or her of first degree murder.
See State v. Banks, 278 Neb. 342, 771 N.W.2d 75 (2009). The
same reasoning applies here. Accordingly, we must review the
circumstances surrounding these two murders as reflected in
the record.
on october 23, 2004, in the early morning hours, Golka was
hit over the head and knocked unconscious at the residence of
Jay Ellis. Chunks of Golka’s hair were shaved off, his hat and
head were spray painted, and he was burned with a cigarette.
After he regained consciousness, he went home. Golka then
spent the day with his girlfriend, who took him to get his hair
cut, and he slept. He went back to the Ellis residence that night
and confronted Ellis with a .22-caliber rifle regarding who
had assaulted him. Ellis acted as if nothing had happened, but
became upset after seeing Golka had a weapon. Golka left.
Golka admitted that he planned the murder on Sunday,
october 24, 2004. He planned to use his stepfather’s 12 gauge
shotgun and a .22-caliber rifle to kill Ellis and anyone else in
the residence. He directed a 15-year-old individual, who had
accompanied him, to walk to the front door to determine who
was in the residence. The individual informed Golka that Ellis
and roscoe Jordan were the only ones in the residence. Golka
retrieved the .22-caliber rifle from his vehicle and walked into
the backyard. He knocked over a plant to cause a loud noise so
that Jordan, whom Golka could see through the kitchen win-
dow, would come outside.
once Jordan appeared, Golka stood up and fired seven
rounds into Jordan’s upper body and head. The first shots were
heard at a little after midnight on october 25, 2004. It appeared
to Golka that Jordan was trying to get back up, so he fired
three more shots toward his head. Jordan did not move.
Golka then went back to the vehicle to retrieve the 12 gauge
shotgun and returned to the residence. once inside, Golka
could see Ellis lying on the couch and fired one round into
Ellis’ head. He then exited the home and fired another round
pointblank into Jordan’s head.
372 	281 NEbrASkA rEporTS

Golka and the 15-year-old individual discussed “keep[ing]
this a secret,” and after dropping the individual off, Golka dis-
posed of the .22-caliber rifle in a drainage ditch or sewer area
to conceal it. He called his mother, told her what he had done,
and told her that he was hearing voices in his head. before
being taken into custody, Golka parked his vehicle in the Sarpy
County sheriff’s office parking lot. Golka stated that he took
four or five Valium pills and contemplated suicide.
Golka was described as very cooperative with law enforce-
ment after being taken into custody. He was transported to a
hospital, where he tested positive for marijuana and negative
for Valium. The CAT scan of his head was negative for inju-
ries. Golka did not indicate that he was under the influence of
marijuana or any other substances other then Valium, nor did
he exhibit any signs of being under the influence.
Given these facts, and the absence of allegations that put the
facts in doubt, Golka’s convictions of first degree murder are
supported by the facts and provide no rational basis for acquit-
tal. His alternate theories were not warranted by the evidence,
and his various defense theories lack merit. Therefore, Golka
suffered no prejudice and it was not ineffective of trial counsel
not to have advised Golka about these matters.
[10,11] Neb. rev. Stat. § 28-303 (reissue 2008) provides
that a person commits murder in the first degree if he or
she kills another person purposely and with deliberate and
premeditated malice or in the commission of a felony or by
administering poison. The facts show Golka killed the victims
purposely, deliberately, and with premeditation. In contrast,
the crime of second degree murder, found at Neb. rev. Stat.
§ 28-304 (reissue 2008), provides that “[a] person commits
murder in the second degree if he causes the death of a person
intentionally, but without premeditation.” See State v. Davlin,
272 Neb. 139, 719 N.W.2d 243 (2006). The facts show Golka
killed the victims with premeditation; there is no rational basis
to believe that Golka would have been acquitted of first degree
murder and convicted of second degree murder.
[12] With respect to manslaughter, the material elements are
an unintentional killing while in the commission of an unlawful
act, State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009),
STATE v. GoLkA 	373
Cite as 281 Neb. 360

or upon sudden quarrel, State v. Sepulveda, 278 Neb. 972,
775 N.W.2d 40 (2009). See Neb. rev. Stat. § 28-305 (reissue
2008). The facts show the killings were intentional and not
upon sudden quarrel; therefore, there is no rational basis to
believe that Golka would have been acquitted of first degree
murder and convicted of manslaughter.
With respect to diminished capacity, we have indicated that
this defense may be available where a defendant lacked the
capacity to intend the voluntary and probable consequences of
his or her act. See State v. Urbano, 256 Neb. 194, 589 N.W.2d
144 (1999). See, also, State v. Canbaz, 270 Neb. 559, 705
N.W.2d 221 (2005). The facts show that Golka tested nega-
tive for Valium and that a CAT scan was negative. The facts
show that 11⁄2 days after the events of october 23, 2004, Golka
deliberately set out to go to Ellis’ house in revenge. After the
killings, he hid at least one weapon and he was articulate with
the authorities. It is not likely that diminished capacity would
have succeeded at trial.
[13] With respect to self-defense, Neb. rev. Stat. § 28-1409
(reissue 2008) provides:
(1) . . . [T]he use of force upon or toward another per-
son is justifiable when the actor believes that such force
is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other
person on the present occasion.
. . . .
(4) The use of deadly force shall not be justifiable
under this section unless the actor believes that such force
is necessary to protect himself against death, serious
bodily harm, kidnapping or sexual intercourse compelled
by force or threat[.]
To successfully assert the claim of self-defense, one must have
a reasonable and good faith belief in the necessity of using
force. In addition, the force used in defense must be immedi-
ately necessary and must be justified under the circumstances.
State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
Where there is no present threat, a claim of self-defense is not
viable. See State v. Eagle Thunder, 201 Neb. 206, 266 N.W.2d
755 (1978).
374 	281 NEbrASkA rEporTS

The facts of the case and Golka’s statements to the authori-
ties show that self-defense was not a viable defense, because,
inter alia, the unlawful force of the previous encounter had
passed and Golka’s use of force was not immediately neces-
sary. It is not likely that self-defense would have succeeded
at trial.
The facts show the existence of two first degree murders,
and there is no rational basis to believe that Golka would have
been acquitted of first degree murders and instead convicted of
second degree murders or manslaughters. The alternate theories
would not have been warranted by the evidence. Further, the
defenses Golka claims were not communicated to him by trial
counsel would have been unavailing. The allegations in the
postconviction motion are not to the contrary. A rational defend-
ant would not have insisted on going to trial. Roe v. Flores-
Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985
(2000). Therefore, Golka was not prejudiced by trial counsel’s
alleged failure to advise him on these matters or by the entry
of his pleas. The district court did not err when it denied this
claim without an evidentiary hearing.
Ineffective Assistance of Trial Counsel:
Improper Plea Advice.
Golka claims that he received ineffective assistance of trial
counsel based on sentencing-related advice that his counsel
gave him with respect to entering into a plea agreement with
the State. The substance of this claim is that trial counsel alleg-
edly assured Golka that if he accepted the plea agreement, he
would be paroled, whereas, in fact, there is no basis in law
or experience to expect to be paroled, and that if he had been
accurately advised, he would have insisted on going to trial.
Golka specifically alleges that trial counsel advised him that
if he “accepted the plea agreement, his two life sentences
would be commuted to sentences of terms of years after 20 to
25 years, and he would be paroled” and that “[b]ut for [trial
counsel’s] advice, . . . Golka would have exercised his right
to a trial rather than entering his guilty pleas pursuant to the
plea agreement.”
In its order, the district court generally determined that even
if Golka had been better apprised of the law regarding his
STATE v. GoLkA 	375
Cite as 281 Neb. 360

parole eligibility and the unlikelihood of parole, Golka could
not establish that he would have insisted upon going to trial.
The district court determined that Golka gained significant
benefit from the plea agreement, and the court therefore found
no merit to his claim regarding the alleged impropriety of
pleading guilty and, thus, denied an evidentiary hearing on this
issue. In the context of this postconviction action, the question
presented on appeal is whether the records and files in the case
affirmatively show that Golka is entitled to no relief on this
issue and thus not entitled to an evidentiary hearing, as the
district court determined. See State v. Vo, 279 Neb. 964, 783
N.W.2d 416 (2010).
The statements Golka now attributes to his counsel of prom-
ises of parole are inconsistent with his representations to the
court at the plea hearing and are contradicted by the record at
the resentencing. As reflected in the record of the plea hearing,
Golka specifically denied that any promises had been made to
induce his plea and he indicated that he was not subjected to
any threats, promises, or other inducements. He also expressed
his understanding that life imprisonment was the maximum
possible penalty which the court could impose.
In connection with trial counsel’s advice, we refer in par-
ticular to the record at the resentencing in which counsel
represented to the court a summary of his advice to Golka
as follows:
[Defense counsel:] I’ve had an opportunity to review
the presentence investigation. . . . Golka is obviously
aware we’re not here asking for probation. With that,
we know that we are going to get two consecutive life
sentences.
The — and I’ve talked to [Golka] for a little bit and I
think he realizes that there is an opportunity, albeit slim
and way down the road, for him to have his sentences
commuted, and he — he is in the situation of having to
be an ideal prisoner for a long time if he wants the oppor-
tunity to have his sentence commuted. It’s not going to
be in my lifetime, but I think he realizes that if he abides
by the rules and regulations, there is a chance for him to
better himself.
376 	281 NEbrASkA rEporTS

. . . .
THE CoUrT: okay. Mr. Golka, is there anything you
wish to tell me?
[Golka]: No.
These statements by counsel made before the court were
not a promise of parole. These statements indicate that Golka
has the opportunity for parole “albeit slim and way down the
road.” When invited by the court, Golka did not take issue with
counsel’s narrative regarding the advice he had rendered to
Golka or otherwise express that counsel’s advice had been to
the contrary. There was no indication by Golka that he wished
to withdraw his plea and insist on going to trial, an option
available to him between conviction and sentencing. See State
v. Williams, 276 Neb. 716, 757 N.W.2d 187 (2008).
Golka claims that he pled guilty based on counsel’s promise
of parole and that but for that advice, he would have insisted
on going to trial. The record is sufficient to evaluate Golka’s
claim. The records and files contradict this claim and affirma-
tively show that he is not entitled to relief, and thus no eviden-
tiary hearing is required on this issue. Although our reasoning
differs from that of the district court, the district court did not
err when it denied this claim without an evidentiary hearing.
Ineffective Assistance of Appellate Counsel:
Failure to Assign Errors on Appeal.
Golka alleges that he received ineffective assistance of
appellate counsel because his appellate counsel did not assign
as error the district court’s acceptance of his pleas without
properly advising him of the nature of the charges against him,
his understanding thereof, and his right to be presumed inno-
cent at trial. because we conclude that the records and files in
the case affirmatively show that Golka is entitled to no relief
on his claims that he received ineffective assistance of appel-
late counsel, we affirm the decision of the district court which
denied these claims without an evidentiary hearing.
As noted above, in order to establish a right to postconvic-
tion relief based on a claim of ineffective assistance of counsel
at trial or on direct appeal, the defendant has the burden, in
accordance with Strickland v. Washington, 466 U.S. 668, 104
STATE v. GoLkA 	377
Cite as 281 Neb. 360

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel’s
performance was deficient and that counsel’s deficient per-
formance prejudiced the defense in his or her case. State v.
Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).
[14] When analyzing a claim of ineffective assistance of
appellate counsel, courts usually begin by determining whether
appellate counsel failed to bring a claim on appeal that actu-
ally prejudiced the defendant. State v. Jim, 278 Neb. 238, 768
N.W.2d 464 (2009). In doing so, courts begin by assessing the
strength of the claim appellate counsel purportedly failed to
raise. Id. Counsel’s failure to raise an issue on appeal could be
ineffective assistance only if there is a reasonable probability
that inclusion of the issue would have changed the result of the
appeal. Id.
[15] Golka’s appellate ineffectiveness claim under consid-
eration is grounded in Golka’s assertion that his plea was not
voluntarily or intelligently entered due to purported failures
of the court to advise him of the nature of the charges against
him, his understanding thereof, and the presumption of inno-
cence. To assess the strength of Golka’s claim, we must begin
by reviewing what the district court is required to advise a
defendant when accepting a plea. We generally refer to State v.
Irish, 223 Neb. 814, 394 N.W.2d 879 (1986), to ascertain these
requirements. To support a finding that a plea of guilty or nolo
contendere has been voluntarily and intelligently made,
1. The court must
a. 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; and
b. examine the defendant to determine that he or she
understands the foregoing.
2. Additionally, the record must establish that
a. there is a factual basis for the plea; and
b. the defendant knew the range of penalties for the
crime with which he or she is charged.
State v. Hays, 253 Neb. 467, 471-72, 570 N.W.2d 823, 827
(1997), quoting State v. Irish, supra. Accord, State v. LeGrand,
378 	281 NEbrASkA rEporTS

249 Neb. 1, 541 N.W.2d 380 (1995), overruled on other
grounds, State v. Louthan, 257 Neb. 174, 595 N.W.2d 917
(1999); State v. Walker, 235 Neb. 85, 453 N.W.2d 482 (1990).
A voluntary and intelligent waiver of the above rights must
affirmatively appear from the face of the record. State v.
Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981).
[16] With respect to the nature of the charges, we have
reversed, and remanded a cause for further proceedings, where
the court failed to inform a defendant of the nature of the
charges and failed to examine the defendant to determine that
he understood the nature of the charges at the time of enter-
ing into the plea. State v. Ponec, 236 Neb. 710, 463 N.W.2d
793 (1990). With respect to the presumption of innocence, we
have not required the trial court to inform the defendant of
the “presumption of innocence” per se, although the advise-
ments under Irish, taken together, reflect the presumption.
For completeness, we note that elsewhere, it has been held
that the failure to advise the defendant of the presumption
of innocence does not require setting aside the guilty plea.
See, e.g., People v. Saffold, 465 Mich. 268, 631 N.W.2d 320
(2001). Finally, it is important to note that once a defendant
is informed of his or her constitutional rights, there is no
requirement that the court advise the defendant on each sub-
sequent court appearance of those same rights. See State v.
LeGrand, supra. See, also, State v. Wiley, 225 Neb. 55, 402
N.W.2d 311 (1987).
In this case, as we understand it, both the State and the dis-
trict court refer to the following exchange at the plea hearing
to support the proposition that Golka was adequately advised
regarding the nature of the charges and questioned as to his
understanding of the charges against him:
THE CoUrT: . . . Counts I and III are two counts
of murder in the first degree. The possible penalty here
— the maximum possible penalty, by reason of the fact
that you were under 18 years of age at the time of the
commission of the offense, is — the maximum penalty
is confinement with the Department of Corrections of the
State of Nebraska for the term of your natural life without
the possibility of parole.
STATE v. GoLkA 	379
Cite as 281 Neb. 360

Now do you understand the maximum possible pen-
alty here?
[Golka]: Yes, Your Honor.
THE CoUrT: okay.
. . . .
THE CoUrT: on each count. Do you understand
that?
[Golka]: Yes, Your Honor.
THE CoUrT: Do you also understand that if I saw
fit, I could make those sentence run consecutive to each
other?
[Golka]: Yes, Your Honor.
We note the greater particularity at the arraignment on
November 19, 2004, quoted earlier in this opinion, where the
court advised Golka that counts I and III charged him with
one count each of first degree murder and that the first degree
murders were Class IA felonies. The court read the charging
documents to Golka. The court specifically inquired if Golka
understood the nature of the charges and the penalties, and
Golka responded, “Yes, sir.”
We have held that in a case where the defendant is repre-
sented by counsel and the court advised the defendant of the
offense with which he was charged, the defendant has been
adequately advised as to the nature of the offense. See State
v. Clark, 217 Neb. 417, 350 N.W.2d 521 (1984). The state-
ment by the trial court at the plea hearing as to the nature of
the charges was meager, but the statements by the trial court
at the arraignment were ample. Although at no point in the
exchange at the plea hearing did the court confirm that Golka
understood the nature of the charges, the record does show
that this inquiry was met at the arraignment. We believe that
generally, where the defendant is properly advised of his rights
during the proceedings, the plea is a voluntary and intelligent
choice. See State v. Wiley, supra. Taking the arraignment and
the plea hearing together, the record shows that Golka was
properly advised of the nature of the charges and his under-
standing thereof.
With respect to the presumption of innocence, at the arraign-
ment, Golka was advised that he was presumed to be innocent
380 	281 NEbrASkA rEporTS

and that this “presumption of innocence continues throughout
the proceeding unless and until the State meets its burden
of proof.” This advisement goes beyond what is required
in Irish.
because Golka received the proper necessary advisements,
appellate counsel did not fail to raise issues related thereto
on appeal. The records and files in this case affirmatively
show that there is no merit to Golka’s claims of ineffective
assistance of appellate counsel. The district court did not err
when it denied relief on these issues without an evidentiary
hearing.
Life Sentence for Juvenile Who
Committed Homicide.
In his postconviction motion, Golka raised an issue with
respect to his sentences. The allegation in his postconviction
motion reads in its entirety as follows:
41. Mr. Golka’s date of birth is November 9, 1986. The
date of offense of the crimes for which he was convicted
was october 24, 2004. Thus, he was 17 years old at the
time the crimes were committed.
42. Sentencing children who were less than 18 years old
at the time of the commission of theirs [sic] crimes con-
stitutes cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments to the United States
Constitution and art. I, § 9 of the Nebraska Constitution.
Evidently, before the district court, Golka explained the
import of the sentencing issue alluded to in his postconviction
motion. In its order denying relief, the district court noted that
Golka cited “no authority which would support this [sentenc-
ing] claim [and that] to the contrary, [the court] has located
several cases in which courts of other jurisdictions have found
the punishment of life in prison [for juveniles] was not cruel
and unusual.”
We are aware that subsequent to the filing of Golka’s
amended motion for postconviction relief and the court’s order
denying the motion, the U.S. Supreme Court issued its opinion
in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L.
Ed. 2d 825 (2010). In that opinion, the Court considered the
STATE v. GoLkA 	381
Cite as 281 Neb. 360

sentencing of a juvenile nonhomicide offender and held that
the Eighth Amendment to the U.S. Constitution prohibited the
imposition of a life sentence without parole for the juvenile
offender who did not commit homicide.
Since Graham and referring thereto, courts have upheld
sentences of life without parole for juveniles who have com-
mitted homicides. Jackson v. Norris, 2011 Ark. 49, 578 S.W.3d
103 (2011); State v. Andrews, 329 S.W.3d 369 (Mo. 2010).
The majority opinion in Andrews states that “the Court recog-
nized [in Graham] that a line existed ‘between homicide and
other serious violent offenses against the individual.’ . . .” 329
S.W.3d at 377. Andrews further states that “[b]y illustrating the
differences between all other juvenile criminals and murderers,
the Court implies that it remains perfectly legitimate for a juve-
nile to receive a sentence of life without parole for committing
murder.” Id. We agree with the reasoning of these cases.
referring to his postconviction motion quoted above, we
believe that Golka’s allegations are conclusory and that he has
alleged no facts in his postconviction motion upon which we
could conclude that his life sentences for first degree murders
constitute cruel and unusual punishment under the federal or
state constitution. It is axiomatic that if a motion for post-
conviction relief alleges only conclusions of fact or law, no
evidentiary hearing is required. State v. McGhee, 280 Neb.
558, 787 N.W.2d 700 (2010). An evidentiary hearing was not
warranted on this issue, and the district court did not err when
it so ruled.
CoNCLUSIoN
The district court did not err when it denied Golka’s motion
for postconviction relief without an evidentiary hearing.
affirmed.
WriGHt, J., not participating.
382 	281 NEbrASkA rEporTS