State v. Jim

did not err in finding that street successfully proved a case of
fraudulent misrepresentation. similarly, the district court did
not err in finding that defendants engaged in a civil conspir-
acy. the district court properly considered street’s testimony
regarding his home’s fair market value in calculating street’s
damages. Finally, as with Welton, the district court provided
a proper basis for street’s attorney fee award in a valid order
nunc pro tunc.
Having concluded that the district court did not err in resolv-
ing either Welton’s or street’s claims against defendants, we
affirm the district court’s judgment.
affirMed .
S tate of N ebraSka , appellee aNd croSS- appellaNt , v .
rickey l. J iM, appellaNt aNd croSS- appellee .
747 N.W.2d 410
Filed april 18, 2008. 	No. s-06-1217.
1. Statutes: Appeal and Error. statutory interpretation presents a question of
law, and an appellate court resolves such issues independently of the lower
court’s conclusions.
2. Postconviction: Constitutional Law. the Nebraska postconviction act, Neb.
rev. stat. §§ 29-3001 to 29-3004 (reissue 1995), is available to a defendant
to show that his or her conviction was obtained in violation of his or her
constitutional rights.
3. Postconviction: Constitutional Law: Proof. In a motion for postconviction
relief, the defendant must allege facts which, if proved, constitute a denial or
violation of his or her rights under the U.s. or Nebraska Constitution, causing the
judgment against the defendant to be void or voidable.
4. Postconviction: Constitutional Law: Proof: Records. an evidentiary hear-
ing 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. 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.
5. Postconviction: Evidence. If the court grants an evidentiary hearing in a postcon-
viction proceeding, it is obligated to determine the issues and make findings of
fact and conclusions of law with respect thereto.
6. Appeal and Error. an appellate court may, at its discretion, discuss issues unnec-
essary to the disposition of an appeal where those issues are likely to recur during
further proceedings.
state v. JIM 	481
Cite as 275 Neb. 481
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

482 	275 Nebraska reports
7. Postconviction: Effectiveness of Counsel: Appeal and Error. Where a defen-
dant is denied his or her right to appeal because counsel fails to perfect an
appeal, the proper vehicle for the defendant to seek relief is through the Nebraska
postconviction act.
8. Postconviction: Jurisdiction: Effectiveness of Counsel: Appeal and Error.
the power to grant a new direct appeal is implicit in Neb. rev. stat. § 29-3001
(reissue 1995), and the district court has jurisdiction to exercise such a power
where the evidence establishes a denial or infringement of the right to effective
assistance of counsel at the direct appeal stage of the criminal proceedings.
9. Right to Counsel: Effectiveness of Counsel: Presumptions: Appeal and Error.
If counsel deficiently fails to file or perfect an appeal after being so directed by the
criminal defendant after a trial, conviction, and sentence, prejudice to the defen-
dant will be presumed under the test articulated in United States v. Cronic, 466
U.s. 648, 104 s. Ct. 2039, 80 L. ed. 2d 657 (1984), and need not be proved under
the two-pronged test for determining ineffective assistance of counsel under
Strickland v. Washington, 466 U.s. 668, 104 s. Ct. 2052, 80 L. ed. 2d 674 (1984).
this is so because the failure to perfect an appeal results in a complete denial of
the assistance of counsel at a critical stage of the criminal proceeding.
10. Postconviction: Effectiveness of Counsel: Records: Appeal and Error. In order
to raise the issue of ineffective assistance of trial counsel where appellate counsel
is different from trial counsel, a defendant must raise on direct appeal any issue of
ineffective assistance of trial counsel which is known to the defendant or is apparent
from the record, or the issue will be procedurally barred on postconviction review.
11. Postconviction: Effectiveness of Counsel: Appeal and Error. a new direct
appeal is not an appropriate postconviction remedy where a criminal defendant
claims that appellate counsel was ineffective in failing to raise and thus preserve a
claim of ineffective assistance of trial counsel. rather, such “layered claims” must
be fully adjudicated in the postconviction proceeding using the test in Strickland
v. Washington, 466 U.s. 668, 104 s. Ct. 2052, 80 L. ed. 2d 674 (1984), for deter-
mining the effectiveness of counsel.
appeal from the District Court for Douglas County: patricia
a. 	laMberty, 	Judge. 	reversed 	and 	remanded 	for 	further
proceedings.
Deborah D. Cunningham for appellant.
Jon bruning, attorney General, and James D. smith for
appellee.
heavicaN, 	c.J., 	W right , 	coNNolly , 	gerrard , 	S tephaN,
M ccorMack , and M iller -lerMaN, JJ.
S tephaN, J.
Following a jury trial in the district court for Douglas
County, rickey L. Jim was convicted of child abuse resulting in

death and sentenced to 40 to 50 years in prison. His conviction
and sentence were affirmed by the Nebraska Court of appeals.1
In this postconviction proceeding, Jim alleged that the attor-
ney who represented him on direct appeal was ineffective in
failing to assign and thereby preserve his claim of ineffective
assistance of trial counsel. Without conducting an evidentiary
hearing, the district court ordered a new direct appeal. We
granted the state’s petition to bypass. We conclude that the dis-
trict court erred in ordering postconviction relief without first
conducting an evidentiary hearing and making findings of fact
and conclusions of law. We also conclude that because of the
nature of Jim’s postconviction claim, a new direct appeal is not
an appropriate form of postconviction relief even if Jim’s claim
is proved to have merit. We therefore reverse, and remand to
the district court for further proceedings.
baCkGroUND
the facts underlying Jim’s conviction are set forth in detail
in the opinion of the Nebraska Court of appeals resolving
Jim’s direct appeal2 and need not be fully reiterated here. We
summarize those facts which relate directly to this postconvic-
tion proceeding.
Jim 	and 	Candice 	bryan 	resided 	together 	with 	bryan’s
two minor children. emergency medical personnel found the
deceased body of the younger child, Layne bryan banik,
on the floor of his bedroom at approximately 10:50 a.m. on
May 8, 2001.
Jim was arrested on august 23, 2001, and charged with child
abuse resulting in death. During its opening statement at Jim’s
trial, the state alluded to injuries Layne suffered in the months
prior to his death. Defense counsel objected, and opening state-
ments were suspended while the court held a hearing on the
admissibility of the prior injuries. the matter was resolved
without a ruling because the state decided not to introduce
evidence of prior injuries.
1 State v. Jim, 13 Neb. app. 112, 688 N.W.2d 895 (2004).
2 Id.
state v. JIM 	483
Cite as 275 Neb. 481

484 	275 Nebraska reports
During the trial, the state presented portions of videotaped
interviews police conducted with Jim. Defense counsel and the
prosecutor had agreed to redact a portion of one of the inter-
views in which Jim mentioned long bone fractures Layne had
previously sustained. the videotape presented to the jury, how-
ever, included the following statement by Jim to police officers,
which should have been redacted pursuant to the parties’ agree-
ment: “Well now that you guys tell me his arm is broke, it’s
something you know, maybe I did pull his arm too hard or you
know, I’ve, if, if something like that happened, I didn’t mean
for it to happen you know.”
Jim’s counsel objected to this portion of the videotape and
moved for a mistrial. He argued that while he believed the
presentation of the redacted passage was inadvertent, it was
nevertheless “extremely prejudicial.” the court stated that it
was not inclined to grant the mistrial but would consider an
appropriate admonition to the jury. after presentation of the
videotaped interview was completed, the court admonished the
jury as follows:
[t]he Court gives the following admonition concerning
audio- and videotaped statements made by the defendant
to police officers.
During the course of the interrogation you heard state-
ments made by the police officers to the defendant, includ-
ing statements attributed to third parties. these statements
are not offered for the truth of the matter contained in
those statements and shall not be considered by you for
that purpose. they’re admitted solely to demonstrate the
method of interrogation of the defendant and to put his
statements in context.
at a bench conference held immediately following this admo-
nition, defense counsel advised the court that he elected to
“rest on my motion for mistrial” and not request an additional
admonishment regarding the inadvertent presentation of the
redacted passage, because he believed that any such admonish-
ment would necessarily highlight the prejudicial information.
the jury returned a verdict of guilty, and Jim was convicted and
sentenced as noted above.

Jim’s counsel on direct appeal was not the same attorney
who had represented him at trial. appellate counsel assigned
several trial errors, including a claim that the district court
erred in denying Jim’s motion for a mistrial following the inad-
vertent presentation of the redacted portion of the interview.3
However, appellate counsel did not raise any issue of ineffec-
tive assistance of trial counsel.4
the Court of appeals affirmed the conviction, finding no
merit in any of Jim’s assignments of error.5 In concluding that
the district court did not abuse its discretion in denying Jim’s
motion for mistrial, the court reasoned that “the damaging
effect of the statement was removed by the court’s instruction
to the jury and no substantial miscarriage of justice actually
occurred . . . nor was a fair trial prevented.”6
Jim filed a motion for postconviction relief, arguing that
his trial counsel was ineffective in several respects and also
that his appellate counsel was ineffective in failing to assert
and preserve his claim of ineffective assistance of trial coun-
sel on direct appeal. the record includes no indication that an
evidentiary hearing was held. approximately 6 months after
Jim’s motion was filed, the court entered an order finding,
on the basis of its review of “the applicable pleadings, briefs,
statutes, and case law[,] that said motion for post-conviction
relief should be granted, and that [Jim] should be afforded a
direct appeal to raise the issue of ineffective assistance of trial
counsel.” the order further stated that Jim’s “right to appeal is
reinstated” and gave him 30 days to “submit an appeal.”
Jim 	filed 	a 	timely 	notice 	of 	appeal, 	and 	the 	state
cross-appealed.
assIGNMeNts oF error
Jim proceeds as if he were before this court on a direct appeal.
He assigns, restated, that his trial counsel was constitutionally
3 Id.
4 Id.
5 Id.
6 Id. at 131, 688 N.W.2d at 912.
state v. JIM 	485
Cite as 275 Neb. 481

486 	275 Nebraska reports
ineffective in his handling of the inadvertent presentation of the
redacted portions of his videotaped interview.
the state cross-appeals and assigns, restated and consoli-
dated, that the district court erred in granting postconviction
relief without conducting an evidentiary hearing, in order-
ing a reinstated direct appeal, and in not dismissing Jim’s
postconviction motion.
staNDarD oF reVIeW
[1] the dispositive procedural issues presented by the state’s
cross-appeal arise under the Nebraska postconviction act.7
statutory interpretation presents a question of law, and an
appellate court resolves such issues independently of the lower
court’s conclusions.8
aNaLYsIs
the state’s cross-appeal raises two key procedural issues:
first, whether a district court may grant any form of postconvic-
tion relief without first conducting an evidentiary hearing and
making findings of fact and conclusions of law and, second,
whether a new direct appeal is an appropriate form of postcon-
viction relief where a direct appeal was resolved on its merits,
but the defendant subsequently claims that appellate counsel
was ineffective in not raising certain issues on appeal.
evideNtiary heariNg
[2-5] the Nebraska postconviction act9 is available to a
defendant to show that his or her conviction was obtained in
violation of his or her constitutional rights.10 In a motion for
postconviction relief, the defendant must allege facts which, if
proved, constitute a denial or violation of his or her rights under
the U.s. or Nebraska Constitution, causing the judgment against
7 Neb. rev. stat. §§ 29-3001 to 29-3004 (reissue 1995).
8 State v. Bossow, 274 Neb. 836, 744 N.W.2d 43 (2008); State v. McKinney,
273 Neb. 346, 730 N.W.2d 74 (2007).
9 §§ 29-3001 to 29-3004.
10 State v. Marshall, 272 Neb. 924, 725 N.W.2d 834 (2007); State v. McDermott,
267 Neb. 761, 677 N.W.2d 156 (2004).

the defendant to be void or voidable.11 When a verified motion
for postconviction relief is filed in the court which imposed the
sentence, the act requires a form of judicial triage:
Unless the motion and the files and records of the case
show to the satisfaction of the court that the prisoner is
entitled to no relief, the court shall cause notice thereof to
be served on the county attorney, grant a prompt hearing
thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto.12
Under the act, an evidentiary hearing on a motion for postcon-
viction 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.13
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 hear-
ing is required.14 If the court grants an evidentiary hearing in
a postconviction proceeding, it is obligated to “determine the
issues and make findings of fact and conclusions of law with
respect thereto.”15
Here, the district court granted postconviction relief without
first conducting an evidentiary hearing and making findings of
fact and conclusions of law. that is not permitted by the act and
constitutes reversible error. the state argues on cross-appeal that
the district court erred in not dismissing the motion for postcon-
viction relief on the ground that the files and records established
that Jim was not entitled to postconviction relief because it
contained only conclusory allegations of ineffective assistance
of counsel. Jim replies in his brief that the order granting post-
conviction relief was “submitted by the parties and approved by
11 State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007); State v. Moore, 272
Neb. 71, 718 N.W.2d 537 (2006).
12 § 29-3001.
13 see, id.; State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).
14 State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).
15 § 29-3001; State v. Costanzo, 235 Neb. 126, 454 N.W.2d 283 (1990).
state v. JIM 	487
Cite as 275 Neb. 481

488 	275 Nebraska reports
the District Court.”16 the nature of the submission by the parties
is not apparent from the record, which includes only the bill of
exceptions from the original criminal proceeding.
We note that the Nebraska Court of appeals has recently
decided a case involving a similar procedural issue. In State
v. Murphy,17 the defendant did not file a timely appeal follow-
ing her conviction. In a subsequent postconviction proceeding,
she and the state stipulated that she should be permitted to file
an appeal and the district court entered an order granting the
stipulation and permitting the appeal to be filed. the record on
appeal included the stipulation and order but did not include
the motion for postconviction relief. the only record before the
Court of appeals was a stipulation that provided no facts per-
taining to any claimed deprivation of constitutional rights, but,
rather, “only the bare conclusory agreement that ‘an appeal’
be allowed,” and the order of the district court implementing
the stipulation.18 Noting that parties cannot stipulate to matters
of law, the Court of appeals held that “the stipulation was not
sufficient to invoke the district court’s jurisdiction pursuant to
the postconviction statute and constituted an invalid attempt to
extend the time for appeal.”19 the court concluded that it there-
fore lacked appellate jurisdiction and dismissed the appeal.
this case differs from Murphy in that the record includes
a verified motion for postconviction relief. the filing of this
motion was sufficient to invoke the court’s subject matter juris-
diction under the Nebraska postconviction act. but the court
erred in the exercise of its jurisdiction by granting postconvic-
tion relief without conducting an evidentiary hearing and mak-
ing findings of fact and conclusions of law.
the determination of whether a motion for postconviction
relief alleges facts which, if proved, would entitle the movant
to relief should be made in the first instance by the district
court. because of the unusual procedural route by which this
16 reply brief for appellant at 2.
17 State v. Murphy, 15 Neb. app. 398, 727 N.W.2d 730 (2007).
18 Id. at 404, 727 N.W.2d at 735.
19 Id.

appeal comes before this court, we cannot be certain that this
issue was ever addressed by the district court. thus, on remand,
the district court should determine the sufficiency of Jim’s fac-
tual allegations and whether the files and records of the case
affirmatively show that he is entitled to no relief. If the factual
allegations are sufficient and are not refuted by the files and
records, the court should conduct an evidentiary hearing and
make findings of fact and conclusions of law with respect to
the merits of Jim’s postconviction claims.
N eW direct appeal
[6] an appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues
are likely to recur during further proceedings.20 because we
reverse, and remand this cause for further proceedings which
may result in an order of postconviction relief, we address the
state’s argument that a “reinstated” or “new” direct appeal
would be an inappropriate form of postconviction relief in this
case under any circumstance.
[7-9] Where a defendant is denied his or her right to appeal
because counsel fails to perfect an appeal, the proper vehi-
cle for the defendant to seek relief is through the Nebraska
postconviction act.21 the specific relief in this circumstance is
a “new direct appeal,” rather than a “reinstated appeal.”22 the
power to grant a new direct appeal is implicit in § 29-3001,
and the district court has jurisdiction to exercise such a power
where the evidence establishes a denial or infringement of the
right to effective assistance of counsel at the direct appeal stage
of the criminal proceedings.23 thus, we held in State v. Trotter24
20 State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000).
21 State v. Meers, 267 Neb. 27, 671 N.W.2d 234 (2003); State v. Caddy, 262
Neb. 38, 628 N.W.2d 251 (2001).
22 State v. McCracken, 259 Neb. 1049, 615 N.W.2d 882 (2000) (published
order).
23 see, State v. Bishop, 263 Neb. 266, 639 N.W.2d 409 (2002); State v.
McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000), abrogated on other
grounds, State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).
24 State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000).
state v. JIM 	489
Cite as 275 Neb. 481

490 	275 Nebraska reports
that if counsel deficiently fails to file or perfect an appeal after
being so directed by the criminal defendant after a trial, convic-
tion, and sentence, prejudice to the defendant will be presumed
under the test articulated in United States v. Cronic,25 and need
not be proved under the two-pronged test for determining inef-
fective assistance of counsel under Strickland v. Washington.26
this is so because the failure to perfect an appeal results in a
complete denial of the assistance of counsel at a critical stage
of the criminal proceeding.27
[10] but this is not such a case. Jim’s appellate counsel
perfected a direct appeal from his conviction and sentence, and
the Court of appeals resolved all the issues presented by that
appeal. Jim’s postconviction claim is that appellate counsel was
ineffective in failing to raise the additional issue of ineffective
assistance of trial counsel. such a failure can have significant
consequences, because under Nebraska law, in order to raise
the issue of ineffective assistance of trial counsel where appel-
late counsel is different from trial counsel, a defendant must
raise on direct appeal any issue of ineffective assistance of trial
counsel which is known to the defendant or is apparent from
the record, or the issue will be procedurally barred on post-
conviction review.28 Jim does not claim that he was completely
denied the effective assistance of counsel on appeal, only that
counsel failed to raise one specific issue.
In State v. Meers,29 we held that a new direct appeal was not
an appropriate form of relief as to a postconviction claim of
ineffective assistance of trial counsel occurring prior to convic-
tion. We noted that in such cases, a convicted defendant has not
been completely deprived of a direct appeal, and that allowing
25 United States v. Cronic, 466 U.s. 648, 104 s. Ct. 2039, 80 L. ed. 2d 657
(1984).
26 Strickland v. Washington, 466 U.s. 668, 104 s. Ct. 2052, 80 L. ed. 2d 674
(1984).
27 see State v. Trotter, supra note 24. see, also, Castellanos v. U.S., 26 F.3d
717 (7th Cir. 1994) (approved in Roe v. Flores-Ortega, 528 U.s. 470, 120
s. Ct. 1029, 145 L. ed. 2d 985 (2000)).
28 State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
29 see State v. Meers, supra note 21.

a new direct appeal would not achieve the objective of restor-
ing the convicted defendant’s rights and status at the time of
counsel’s deficient performance.
[11] the same reasoning applies here. We hold that a new
direct appeal is not an appropriate postconviction remedy where
a criminal defendant claims that appellate counsel was ineffec-
tive in failing to raise and thus preserve a claim of ineffective
assistance of trial counsel. rather, such “layered claims”30 must
be fully adjudicated in the postconviction proceeding using the
Strickland v. Washington31 test for determining the effectiveness
of counsel. In this type of claim, evaluation of the performance
of appellate counsel necessarily requires an evaluation of the
performance of trial counsel, because appellate counsel could
not have been ineffective in failing to raise a nonmeritorious
claim that trial counsel was ineffective.32 If a court determines
that appellate counsel was ineffective in failing to raise a
meritorious claim of ineffective assistance of trial counsel, the
appropriate postconviction remedy would be to vacate and set
aside the judgment and either discharge, resentence, or grant a
new trial as may be appropriate to the specific claim.33
CoNCLUsIoN
For the reasons discussed, we reverse the judgment of the
district court and remand the cause for further proceedings
consistent with this opinion.
reverSed aNd reMaNded for
further proceediNgS.
30 State v. Jackson, ante p. 434, 747 N.W.2d 418 (2008).
31 Strickland v. Washington, supra note 26.
32 State v. Jackson, supra note 30; State v. Al-Zubaidy, 263 Neb. 595, 641
N.W.2d 362 (2002); State v. Bishop, supra note 23; State v. Williams, 259
Neb. 234, 609 N.W.2d 313 (2000).
33 § 29-3001. see State v. Bishop, supra note 23.
state v. JIM 	491
Cite as 275 Neb. 481