State v. Lee

negligence. We also determine that Sadler’s additional insured
endorsement, which provided coverage for liability arising out
of Sadler’s operations, was broad enough to include coverage
for Alliance’s negligence even if Sadler was not negligent. We
reverse the judgment and remand the cause for further proceed-
ings on the application of the “sole negligence” exclusion in
the endorsement.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
WRight, J., not participating.
state of nebRaska , appellee , v.
donald m. lee , appellant.
807 N.W.2d 96
Filed October 28, 2011. 	No. S-10-1098.
1. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion
for postconviction relief is required on an appropriate motion containing factual
allegations that, if proved, constitute an infringement of the movant’s rights under
the Nebraska or federal Constitution.
2. ____: ____: ____. When a movant for postconviction relief makes an allega-
tion of an infringement of constitutional rights, a court may deny an evidentiary
hearing only when the records and files affirmatively show that the defendant is
entitled to no relief.
3. 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.
4. Effectiveness of Counsel: Appeal and Error. A claim that defense counsel
provided ineffective assistance presents a mixed question of law and fact.
Determinations regarding whether counsel was deficient and whether this defi-
ciency prejudiced the defendant are questions of law that an appellate court
reviews independently of the lower court’s decision. An appellate court reviews
factual findings for clear error.
5. Pleas: Waiver. A voluntary guilty or no contest plea generally waives all defenses
to the charge.
6. Postconviction: Pleas: Effectiveness of Counsel. In a postconviction proceed-
ing brought by a defendant convicted on a plea of guilty or no contest, a court
will consider an allegation that the plea was the result of ineffective assistance
of counsel.
7. Postconviction: Effectiveness of Counsel: Appeal and Error. When lawyers
employed by the same office represent a defendant both at trial and on direct
652 	282 NebrASkA repOrtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

appeal, the defendant’s first opportunity to assert ineffective assistance of trial
counsel is in a motion for postconviction relief.
8. Postconviction: Effectiveness of Counsel: Proof. to establish a right to post-
conviction relief on a claim of ineffective assistance of counsel, the petitioner
has the burden to meet the test put forward in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. ed. 2d 674 (1984); that is, the petitioner must show
that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the defendant.
9. Criminal Law: Effectiveness of Counsel. A lawyer’s performance is deficient if
his or her performance did not equal that of a lawyer with ordinary training and
skill in criminal law in the area.
10. Effectiveness of Counsel: Proof. to show prejudice, the defendant must dem-
onstrate a reasonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
11. Postconviction: Appeal and Error. A defendant cannot use a postconviction
proceeding to secure review of issues that were known to the defendant and that
were or could have been litigated on direct appeal.
12. Pleas: Waiver. 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
concerning (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. A voluntary
and intelligent waiver of the above rights must affirmatively appear from the face
of the record.
13. Right to Counsel. An express advisement of the right to counsel is not necessary
when the defendant is represented by counsel.
14. Postconviction: Effectiveness of Counsel: Speedy Trial. In a postconviction
proceeding, when a defendant alleges that trial counsel failed to properly assert
his or her speedy trial rights, the court must consider the merits of the defendant’s
speedy trial rights under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. ed. 2d 674 (1984).
15. Effectiveness of Counsel. Only if a motion would have resulted in the defend-
ant’s absolute discharge, thus barring a later trial and conviction, could the failure
to move for discharge be deemed ineffective assistance.
16. ____. Defense counsel is not ineffective for failing to raise a meritless argument.
17. Speedy Trial. Nebraska’s speedy trial statutes require that those who are charged
with crimes be brought to trial within 6 months, as calculated by the appli-
cable statute.
18. ____. to calculate the deadline for trial under the speedy trial statutes, a court
must exclude the day the State filed the information, count forward 6 months,
back up 1 day, and then add any time excluded under Neb. rev. Stat. § 29-1207(4)
(reissue 2008).
19. ____. If the State does not bring the defendant to trial within the permissible
time, the court must order an absolute discharge from the offense charged.
StAte v. Lee 	653
Cite as 282 Neb. 652

20. Speedy Trial: Indictments and Informations. For a felony, the speedy trial
clock begins to run on the date that the indictment is returned or the information
is filed, not on the date on which the complaint is filed.
21. Postconviction: Proof. Under the postconviction statutes, a court is not obligated
to hold an evidentiary hearing if the files and records of the case affirmatively
show that the prisoner is entitled to no relief.
22. Postconviction. the district court has discretion to adopt reasonable procedures
for determining what the motion and the files and records show, and whether
the defendant has raised any substantial issues, before granting a full eviden-
tiary hearing.
23. Postconviction: Appeal and Error. An appellate court examines the procedures
used by the district court to determine whether to grant an evidentiary hearing for
abuse of discretion, which exists only when the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a substantial right and deny-
ing a just result in matters submitted for disposition.
Appeal from the District Court for Lincoln County: John
p. muRphy, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Donald M. Lee, pro se.
Jon bruning, Attorney General, and George r. Love for
appellee.
heavican, 	c.J., 	WRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmack , and milleR-leRman, JJ.
connolly, J.
In 2009, under a plea bargain, Donald M. Lee pleaded nolo
contendere to one count of second degree murder. the court
sentenced Lee to a term of 70 years to life in prison. Lee now
moves for postconviction relief. He claims violations of his
right to speedy trial, his right to due process, and his right to
effective assistance of counsel. the district court denied relief
without granting an evidentiary hearing. We affirm in part, and
in part reverse and remand for further proceedings.
bACkGrOUND
In July 2008, the State originally filed a complaint in county
court, charging Lee with first degree murder. On July 21,
the court arraigned him. On November 3, after Lee waived a
654 	282 NebrASkA repOrtS

preliminary hearing, the State filed the information in district
court, charging Lee with first degree murder.
On May 19, 2009, under a plea bargain, the State filed an
amended information reducing the charge to second degree
murder and Lee pleaded nolo contendere. Lee attended the plea
hearing with his attorney. After a colloquy in which the court
advised Lee of certain rights, the State provided a factual basis
for the plea. briefly stated, an autopsy revealed that a young
girl died of manual strangulation and had also suffered injuries
such as a fractured skull, a lacerated intestine, and multiple
abrasions and contusions. Lee was the only adult with the girl
when the incident occurred. Lee’s explanation for the injuries
was inconsistent with the pathologist’s report.
the court sentenced Lee to a term of 70 years to life in
prison. Lee appealed in case No. S-09-779, asserting only a
claim of an excessive sentence. On December 10, 2009, we
summarily affirmed.
postconviction claims
Lee’s first postconviction claim is that the State violated
his right to a speedy trial. He alleged that the State filed the
information on July 18, 2008, but that he did not enter his plea
until May 19, 2009. Further, while Lee acknowledges the court
conducted at least two hearings regarding his case, he alleged
that he requested no continuance and never waived his speedy
trial rights. And he claims that nobody ever explained his right
to a speedy trial to him.
Lee’s next claim is that the court failed to advise him of
the consequences of his plea. He alleged that the court did not
explain the rights that he would waive by entering a plea of
no contest. He also claimed that the court failed to question
him regarding his age; education; whether he was intoxicated;
whether he was acting under any threats, promises, or induce-
ments; and whether he was mentally competent. Finally, he
alleged that the court failed to ask him whether he agreed with
the State’s factual basis for the plea.
Lee’s final two claims relate to the effectiveness of his trial
and appellate counsel. He claims that both were ineffective for
StAte v. Lee 	655
Cite as 282 Neb. 652

failing to raise the speedy trial issue and the voluntariness of
his plea.
the distRict couRt’s oRdeR denying
an evidentiaRy heaRing
the court denied Lee relief without an evidentiary hearing.
the court’s analysis of the speedy trial issue appears limited
to the statutory speedy trial provision. Lee’s motion does not
appear to have raised a constitutional speedy trial claim.1 the
court found that the State filed the information on November
3, 2008, and that Lee entered his plea on May 19, 2009, which
meant that if no time was excluded, Lee’s right was violated.
but the court found that a pair of continuances—one relating
to a hearing on a motion to suppress and the other a continu-
ance of the trial itself—tolled the time in which to bring Lee
to trial. but the record in this appeal fails to show who filed
these continuances, when they were granted, or the length of
the continuances. Nevertheless, the court found that the State
had not violated Lee’s right to a speedy trial, so neither trial
nor appellate counsel was ineffective in failing to raise it.
the court also rejected Lee’s claim that the court did not
advise him of the consequences of his plea. the court found
that the bill of exceptions clearly showed that the court had
advised Lee of his rights and that Lee had knowingly and vol-
untarily waived those rights. As with Lee’s speedy trial claim,
the court concluded that because the underlying error was
meritless, it was not ineffective assistance of counsel to not
raise it.
ASSIGNMeNtS OF errOr
Lee assigns that the district court erred as follows:
(1) in denying his motion for postconviction relief without
an evidentiary hearing; and
(2) in refusing to appoint counsel for the postconviction
motion.
1 See, Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. ed. 2d 101
(1972); State v. Sims, 272 Neb. 811, 725 N.W.2d 175 (2006).
656 	282 NebrASkA repOrtS

StANDArD OF reVIeW
[1-3] An evidentiary hearing on a motion for postconviction
relief is required on an appropriate motion containing factual
allegations that, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution.2
When a movant makes such an allegation, a court may deny
an evidentiary hearing only when the records and files affirm-
atively show that the defendant is entitled to no relief.3 A
defendant requesting postconviction relief must establish the
basis for such relief, and the findings of the district court will
not be disturbed unless they are clearly erroneous.4
[4] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact.5 Determinations
regarding whether counsel was deficient and whether this defi-
ciency prejudiced the defendant are questions of law that we
review independently of the lower court’s decision.6 We review
factual findings for clear error.7
ANALYSIS
Lee’s brief is sketchy at best. He appears to claim that he is
entitled to relief for the following reasons: (1) He entered his
plea involuntarily and unintelligently; (2) the State violated his
statutory right to a speedy trial; and (3) his trial and appellate
counsel (who were from the same office) were ineffective for
failing to raise the above issues.
[5,6] We begin with a few general principles. First, a volun-
tary guilty or no contest plea generally waives all defenses to
the charge.8 but in a postconviction proceeding brought by a
defendant convicted on a plea of guilty or no contest, a court
2 See State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).
3 See id.
4 Id.
5 State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
6 Id.
7 Id.
8 See, id.; State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010).
StAte v. Lee 	657
Cite as 282 Neb. 652

will consider an allegation that the plea was the result of inef-
fective assistance of counsel.9
[7] When lawyers employed by the same office represent
a defendant both at trial and on direct appeal, the defendant’s
first opportunity to assert ineffective assistance of trial coun-
sel is in a motion for postconviction relief.10 So, this is Lee’s
first opportunity to assert his ineffective assistance of coun-
sel claims.
[8-10] to establish a right to postconviction relief on a claim
of ineffective assistance of counsel, the petitioner has the bur-
den to meet the test put forward in Strickland v. Washington11;
that is, the petitioner must show that counsel’s performance
was deficient and that counsel’s deficient performance preju-
diced the defendant.12 A lawyer’s performance is deficient if his
or her performance did not equal that of a lawyer with ordinary
training and skill in criminal law in the area.13 to show preju-
dice, the defendant must demonstrate a reasonable probability
that but for counsel’s deficient performance, the result of the
proceeding would have been different.14
the voluntaRiness of lee’s plea
[11] Lee first argues that his plea did not comport with due
process because the trial court did not ensure that his plea was
voluntary. but Lee either knew or should have known of this
error when he prosecuted his direct appeal. because he did not
raise it, he has waived consideration of it now. A defendant
cannot use a postconviction proceeding to secure review of
issues that were known to the defendant and that were or could
have been litigated on direct appeal.15
9 Yos-Chiguil, supra note 5; Vo, supra note 8.
10 See, State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004); State v. Jones,
264 Neb. 671, 650 N.W.2d 798 (2002).
11 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. ed. 2d 674
(1984).
12 See Yos-Chiguil, supra note 5.
13 See McLeod, supra note 2.
14 State v. Gibilisco, 279 Neb. 308, 778 N.W.2d 106 (2010).
15 See Vo, supra note 8.
658 	282 NebrASkA repOrtS

but Lee may still assert an ineffective assistance of counsel
claim based on those facts. Lee claims that his counsel was
ineffective for not reminding the court of its obligations to
ensure the voluntariness of his plea and for not raising the issue
on appeal.
[12] to support a finding that a plea of guilty or nolo con-
tendere 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.”16
A voluntary and intelligent waiver of the above rights must
affirmatively appear from the face of the record.17
At the plea hearing, where Lee was represented by counsel,
the following exchange occurred:
tHe COUrt: Okay. Mr. Lee, the Amended Information
alleges that on or about July 19, 2008 here in Lincoln
County 	you 	intentionally 	[but] 	without 	premeditation
killed [the victim]. It’s a Class I(b) felony which is pun-
ishable by life imprisonment as a maximum or twenty
years in prison as a minimum. Do you understand that?
Mr. Lee: Yes.
tHe COUrt: If you enter a plea of no contest to this
charge, you’re giving up your right to have a speedy and
a public trial by jury, and at that trial you’d have the right
16 State v. Golka, 281 Neb. 360, 378, 796 N.W.2d 198, 213 (2011), quoting
State v. Hays, 253 Neb. 467, 570 N.W.2d 823 (1997). See, also, State v.
Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).
17 Golka, supra note 16.
StAte v. Lee 	659
Cite as 282 Neb. 652

to see and hear all the witnesses that would come and
testify and have [counsel] cross-examine those witnesses
on your behalf. You’d also have the right to put on your
own evidence, which includes the right to ask the Court
to issue subpoenas to anyone you’d like to have testify for
you and the Court would issue those subpoenas and make
them come and testify on your behalf.
You cannot be called as a witness against yourself nor
can you be made to testify against yourself. If you chose
not to testify it can’t be used against you in any way or
even be mentioned in front of a jury; however, if you
decided you wanted to testify and took the stand, you
would waive your Fifth Amendment right and the County
Attorney could ask you any questions she wished about
your testimony or about the charges and you would have
to answer.
You are presumed to be innocent of this charge and
that presumption goes with you throughout the trial until
the State has proven your guilt beyond a reasonable
doubt so that all twelve members of the jury believed
you were guilty. If all twelve could not agree, you could
not be found guilty at that trial. Do you understand
those rights?
Mr. Lee: Yes.
tHe COUrt: You also understand by entering a plea
of no contest you’re waiving any other motions you may
file and plus any appeal of the Court’s prior ruling on the
motion to suppress that you had filed?
Mr. Lee: Yes.
tHe COUrt: If you enter a plea of no contest, as I
said, you’re waiving those rights, and if the State supplies
a sufficient factual basis for the Court to accept the plea,
you’d be found guilty the same as if you’d been tried and
convicted by a jury.
Mr. Lee: Yes.
tHe COUrt: Do you understand that?
Mr. Lee: Yes.
After this colloquy, the State provided a factual basis for
the crime.
660 	282 NebrASkA repOrtS

thus, to summarize the proceedings, the court informed Lee
that the State had charged him with a Class Ib felony and that
the State had alleged that he had killed the victim intentionally
but without premeditation. the court informed Lee that the pos-
sible sentence ranged from 20 years to life in prison. the court
also informed Lee that by pleading guilty, Lee was waiving
his right to a jury trial, the right to cross-examine witnesses,
and his right not to testify. Finally, the State provided a factual
basis for the plea. Lee stated several times that he understood
the rights he was waiving and the nature of the charge. And
the court found that the plea was “knowingly, voluntarily and
intelligently entered.”
[13] It is true that the court did not explicitly advise Lee that
he was entitled to the assistance of counsel, but in consider-
ing a similar advisement, we held that an express advisement
of the right to counsel is not necessary when the defendant
is represented by counsel.18 Counsel represented Lee at all
times—from the arraignment through his plea—so an express
warning was unnecessary.
thus, the court gave Lee all the required advisements. And
so, counsel was not ineffective in failing to ask the court to
do so.
Was counsel ineffective foR failing to
asseRt lee’s speedy tRial R ights?
Lee next argues that the State violated his right to a speedy
trial. From his motion for postconviction relief and the court’s
order, it appears that Lee is asserting that the State violated
his statutory speedy trial rights. He did not claim and does
not argue on appeal that the State violated his constitutional
right to a speedy trial,19 and we will not address it. Further,
the Nebraska postconviction Act provides relief only if there
was a “‘denial or infringement’” of constitutional rights.20 the
6-month statutory speedy trial right found at Neb. rev. Stat.
18 See State v. Watkins, 277 Neb. 428, 762 N.W.2d 589 (2009).
19 See, U.S. Const. amends. VI and XIV; Neb. Const. art. I, § 11. See, also,
Barker, supra note 1; Sims, supra note 1.
20 Yos-Chiguil, supra note 5, 281 Neb. at 626, 798 N.W.2d at 840.
StAte v. Lee 	661
Cite as 282 Neb. 652

§ 29-1207 (reissue 2008) is separate from the constitutional
speedy trial right.21 So even if it were not waived by a plea of
guilty,22 a claim of a statutory speedy trial violation, in and of
itself, would not be cognizable in a postconviction proceeding
because it is not a constitutional right. Nevertheless, it can be
considered through the prism of an ineffective assistance of
counsel claim.
[14-16] In a postconviction proceeding, when a defendant
alleges that trial counsel failed to properly assert his or her
speedy trial rights, the court must consider the merits of the
defendant’s speedy trial rights under Strickland.23 Again, under
Strickland, one claiming ineffective assistance of counsel must
show a reasonable probability that but for the deficient perform-
ance, the result of the proceedings would have been different.24
Only if a motion would have resulted in the defendant’s abso-
lute discharge, thus barring a later trial and conviction, could
the failure to move for discharge be deemed ineffective assist-
ance.25 Defense counsel is not ineffective for failing to raise a
meritless argument.26
[17-20] Nebraska’s speedy trial statutes require that those
who are charged with crimes be brought to trial within 6
months, as calculated by the applicable statute.27 to calculate
the deadline for trial under the speedy trial statutes, a court
must exclude the day the State filed the information, count for-
ward 6 months, back up 1 day, and then add any time excluded
under § 29-1207(4).28 If the State does not bring the defendant
to trial within the permissible time, the court must order an
21 See, e.g., State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).
22 See Neb. rev. Stat. § 29-1209 (reissue 2008).
23 See, Sims, supra note 1; State v. Rieger, 270 Neb. 904, 708 N.W.2d 630
(2006).
24 Gibilisco, supra note 14.
25 See, Sims, supra note 1; State v. Meers, 267 Neb. 27, 671 N.W.2d 234
(2003).
26 See Vo, supra note 8.
27 See § 29-1207.
28 See State v. Tamayo, 280 Neb. 836, 791 N.W.2d 152 (2010).
662 	282 NebrASkA repOrtS

absolute discharge from the offense charged.29 For a felony, the
speedy trial clock begins to run on the date that the indictment
is returned or the information is filed, not on the date on which
the complaint is filed.30
Section 29-1207(4) sets out the excludable time periods for
speedy trial purposes.31 As relevant here, these include delays
resulting from pretrial motions of the defendant, such as a
motion to suppress evidence32 or for continuances requested by
or consented to by the defendant or his counsel.33
Lee claims that the speedy trial clock began to run July 18,
2008, the day the State filed the complaint. On this point, Lee is
mistaken. While the record shows that the State filed the com-
plaint on July 18, this is not the operative date. As we noted in
State v. Williams,34 for a felony, the clock begins to run when
the State files the information. this occurred on November 3,
2008. to determine the date, excluding any tolling, by which
the State had to commence trying Lee, we exclude the date the
State filed the information, count forward 6 months, and then
back up 1 day. Applying this methodology, the State had to
commence trying Lee by, at the latest, May 3. Lee did not enter
his plea until May 19. So unless excludable periods extended
the deadline, it would appear that counsel should have moved
for discharge on speedy trial grounds.
but the postconviction court found that there were two
continuances that tolled the speedy trial clock. It found that
the trial court continued a motion to suppress hearing and the
trial, which together added an additional 60 days to the time
in which the State could try Lee. the records, however, do not
show when the court granted the continuances or for how long
the matters were continued. And Lee alleges in his motion that
he never moved for any continuances.
29 Id. See, also, Neb. rev. Stat. § 29-1208 (reissue 2008).
30 See State v. Williams, 277 Neb. 133, 761 N.W.2d 514 (2009).
31 See id.
32 § 29-1207(4)(a).
33 § 29-1207(4)(b).
34 Williams, supra note 30.
StAte v. Lee 	663
Cite as 282 Neb. 652

[21-23] Under the postconviction statutes, a court is not
obligated to hold an evidentiary hearing if the files and records
of the case affirmatively show that the prisoner is entitled to
no relief.35 And the district court has discretion to adopt rea-
sonable procedures for determining what the motion and the
files and records show, and whether the defendant has raised
any substantial issues, before granting a full evidentiary hear-
ing.36 We examine these procedures for abuse of discretion,
which exists only when the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a sub-
stantial right and denying a just result in matters submitted
for disposition.37
In determining whether to hold an evidentiary hearing, we
have previously allowed a court to hold a records hearing to
receive into evidence the relevant files and records that the
court may need to review in considering whether to grant or
deny an evidentiary hearing.38 If a court does not receive into
evidence the relevant files and records at a records hearing,
the court should certify and include in the transcript the files
and records of the earlier proceedings it considered in deny-
ing relief.39
Here, the district court denied an evidentiary hearing because
it had found that Lee had asked for continuances, which tolled
the time in which the State had to commence the trial. because
of this tolling, the court concluded that the State had not vio-
lated Lee’s right to a speedy trial. but the files and records
of the case do not show when the court granted these con-
tinuances or for how long the matters were continued. In other
words, the files and records of the case do not show that Lee
actually moved for continuances and thus do not show that
the State did not violate his speedy trial right. Simply put, the
records do not affirmatively show that Lee is not entitled to
35 State v. Glover, 276 Neb. 622, 756 N.W.2d 157 (2008).
36 See McLeod, supra note 2.
37 Id.
38 See, also, Glover, supra note 35.
39 See, id.; State v. Fugate, 180 Neb. 701, 144 N.W.2d 412 (1966).
664 	282 NebrASkA repOrtS

relief. Under the rule articulated in State v. Glover,40 the court
should have certified and included in the transcript any files or
records, which would have included any documents related to
the supposed continuances, that it considered in denying Lee
an evidentiary hearing.
the reason for this rule should be obvious. When the court
denies an evidentiary hearing based upon documents it does
not certify and include in the transcript, it effectively denies the
movant a meaningful appeal. We are left with only the option
of taking the district court’s word for the matter. this we refuse
to do.
the State’s contention—that Lee had the burden of produc-
ing a record including all materials relevant to the issue—is
contrary to the petitioner’s burden in postconviction cases,
and we reject it. We have repeatedly stated that the petitioner
must only allege facts that, if proved, show that the petitioner’s
constitutional rights were violated. the petitioner is obviously
not required to disprove his or her own allegations or to make
the State’s case for it. If the records and files are sufficient to
refute the petitioner’s claim, the statutes allow the postconvic-
tion court to notice those facts, or the State can offer them as
evidence in a records hearing. but because the statutes per-
mit judicial notice of records and files, we require a court to
include those files and records that illustrate why it denied an
evidentiary hearing.
because the court failed to certify and include in the record
the documents that it considered in denying an evidentiary
hearing, the record does not affirmatively show that Lee is not
entitled to relief. We remand for further proceedings.
CONCLUSION
We conclude that Lee’s claim regarding the voluntariness of
his plea and the related ineffective assistance of counsel claim
are meritless. the records before us, however, do not affirma-
tively show that Lee’s ineffective assistance of counsel claim
regarding his speedy trial rights is without merit. Accordingly,
40 Glover, supra note 35.
StAte v. Lee 	665
Cite as 282 Neb. 652

we affirm in part, and in part reverse and remand for further
proceedings.
affiRmed in paRt, and in paRt ReveRsed and
Remanded foR fuRtheR pRoceedings.
daRlene hoWsden, appellant, v. RopeR’s
R eal estate company, a nebRaska
coRpoRation, appellee .
805 N.W.2d 640
Filed October 28, 2011. 	No. S-11-174.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s granting of summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Workers’ Compensation. If an injury arises out of and in the course of employ-
ment, the Nebraska Workers’ Compensation Act is the injured employee’s exclu-
sive remedy against his or her employer.
3. Corporations: Fraud. A court will disregard a corporation’s identity, or pierce
the corporate veil, only where the corporation has been used to commit fraud,
violate a legal duty, or perpetrate a dishonest or unjust act in contravention of the
rights of another.
4. Corporations: Courts: Equity. A court exercises its equitable power when it
disregards the corporate form.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
JeffRe cheuvRont, Judge. reversed and remanded for further
proceedings.
Jefferson Downing and Joel bacon, of keating, O’Gara,
Nedved & peter, p.C., L.L.O., for appellant.
James A. Snowden and Joseph M. Aldridge, of Wolfe,
Snowden, Hurd, Luers & Ahl, L.L.p., for appellee.
heavican, 	c.J., 	WRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmack , and milleR-leRman, JJ.
geRRaRd, J.
the plaintiff in this case was injured on premises that were
leased to her employer by a legally distinct entity that is owned
666 	282 NebrASkA repOrtS