State v. Dunster

For different reasons from those stated by the Court of Appeals,
we conclude that Kenneth’s application to modify alimony was
properly denied, and we affirm the judgment of the Court of
Appeals to that effect.
A ffirmed.
miller-lermAn, J., participating on briefs.
G errArd, J., not participating.
StAte of nebrASkA, Appellee , v.
dAvid l. dunSter , AppellAnt.
769 N.W.2d 401
Filed August 7, 2009. 	No. S-08-227.
1. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a
postconviction proceeding is procedurally barred is a question of law. When
reviewing a question of law, an appellate court resolves the question indepen-
dently of the lower court’s conclusion.
2. Moot Question: Jurisdiction: Appeal and Error. While mootness does not
prevent appellate jurisdiction, because mootness is a justiciability doctrine that
operates to prevent courts from exercising jurisdiction, an appellate court reviews
mootness determinations under the same standard of review as other jurisdic-
tional questions.
3. Jurisdiction: Appeal and Error. When a jurisdictional question does not involve
a factual dispute, an appellate court determines the issue as a matter of law.
4. 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.
5. Statutes: Time. While procedural statutes apply to pending litigation, new pro-
cedural statutes have no retroactive effect upon any steps that may have been
taken in an action before such statutes were effective.
6. Moot Question. A case becomes moot when the issues initially presented in the
litigation cease to exist, when the litigants lack a legally cognizable interest in the
outcome of litigation, or when the litigants seek to determine a question which
does not rest upon existing facts or rights, in which the issues presented are no
longer alive.
7. Constitutional Law: Right to Counsel. There is no constitutional right to effec-
tive assistance of standby counsel.
268 	278 NEbrASKA rEporTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

8. Right to Counsel: Effectiveness of Counsel. A defendant who elects to proceed
pro se cannot thereafter complain that the quality of his or her own defense
amounted to a denial of effective assistance of counsel.
9. ____: ____. A defendant who elects to proceed pro se may maintain a claim for
ineffective assistance of counsel for any acts or omissions that occurred before
the defendant elected to proceed pro se.
10. 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 at trial or on direct appeal, 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; that is,
counsel’s performance did not equal that of a lawyer with ordinary training and
skill in criminal law in the area. Next, the defendant must show that counsel’s
deficient performance prejudiced the defense in his or her case. In order to show
prejudice, the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have been
different. The two prongs of this test, deficient performance and prejudice, may
be addressed in either order.
11. Postconviction: Pleas: Waiver: Effectiveness of Counsel. While normally a
voluntary guilty plea waives all defenses to a criminal charge, in a postconviction
proceeding brought by a defendant convicted because of a guilty plea or a plea
of no contest, a court will consider an allegation that the plea was the result of
ineffective assistance of counsel.
12. 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 defend-
ant or is apparent from the record, or the issue will be procedurally barred on
postconviction review.
13. Postconviction: Appeal and Error. A defendant cannot secure postconviction
review of issues which were or could have been litigated on direct appeal.
14. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective
assistance of counsel raised for the first time on direct appeal do not require
dismissal ipso facto; the determining factor is whether the record is sufficient to
adequately review the question. When the issue has not been raised or ruled on at
the trial court level and the matter necessitates an evidentiary hearing, an appel-
late court will not address the matter on direct appeal.
15. Effectiveness of Counsel: Time: Appeal and Error. Claims of ineffective assist-
ance of counsel raised on direct appeal by the same counsel who represented the
defendant at trial are premature and will not be addressed on direct appeal.
16. Postconviction: Effectiveness of Counsel: Appeal and Error. When a defendant
was represented both at trial and on direct appeal by lawyers employed by the
same office, the defendant’s first opportunity to assert ineffective assistance of
trial counsel is in a motion for postconviction relief.
Appeal from the District Court for Lancaster County: pAul
d. merritt, Jr ., Judge. Affirmed.
STATE v. DUNSTEr 	269
Cite as 278 Neb. 268

peter K. blakeslee for appellant.
Jon bruning, Attorney General, and J. Kirk brown for
appellee.
H eAvicAn, 	c.J., 	WriGHt, 	connolly, 	G errArd, 	StepHAn,
mccormAck, and miller-lermAn, JJ.
G errArd, J.
David L. Dunster was convicted of murdering his prison
cellmate and sentenced to death. His convictions and sen-
tences were affirmed on direct appeal. This appeal is taken
from the district court’s denial, without an evidentiary hearing,
of Dunster’s first motion for postconviction relief. because
Dunster was represented by different counsel at trial and
on direct appeal, the primary issue in this appeal is whether
Dunster’s claims are procedurally barred.
bACKGroUND
Dunster was already a convicted murderer when, on May
10, 1997, he strangled his cellmate. Dunster was charged with
first degree murder and use of a weapon to commit a felony.
He stood mute on the charges, and pleas of not guilty were
entered on his behalf. The Lancaster County public defender’s
office was appointed to represent him. Dunster became dis-
satisfied with the public defender and sent a letter to the trial
judge asking that the public defender be discharged. Dunster
asked the trial court to allow him to withdraw his plea and
plead guilty, then sentence him to death. Dunster refused to
consult with the public defender about his decision to represent
himself. The trial court appointed the Nebraska Commission on
public Advocacy (NCpA) for the limited purpose of advising
Dunster on his request to proceed pro se. The NCpA’s appoint-
ment was “to represent [Dunster] solely on [the] issue raised
during [the] hearing regarding how [Dunster] wishes to pro-
ceed in this matter.” After consulting with the NCpA, Dunster
withdrew the issues he had raised “without prejudice” and the
public defender continued to represent him. Counsel from the
NCpA agreed that “the issues that were raised that necessitated
the appointment of the [NCpA]” had been concluded, and the
NCpA was released from the case.
270 	278 NEbrASKA rEporTS

At a pretrial hearing, Dunster’s attorney from the public
defender’s office informed the court that he would be leaving
the public defender’s office and would not be available to try
the case. Dunster asked for the NCpA to be appointed to rep-
resent him. The trial court denied that request and determined
that the case would be reassigned to a different public defender.
Dunster again moved to discharge the public defender and pro-
ceed pro se and moved to withdraw his plea and plead guilty.
The trial court granted Dunster’s motions and appointed the
public defender’s office as standby counsel. Dunster’s plea was
accepted, and he was convicted of first degree murder. before
the sentencing hearing, Dunster indicated to his standby coun-
sel that he would like the public defender’s office reappointed.
Dunster claimed that his previous decisions to proceed pro
se and plead guilty had occurred when he was impaired by
medication. The public defender’s office was reappointed to
represent Dunster.
Dunster, through his counsel, requested a competency hear-
ing. At the outset of the hearing, Dunster again moved to dis-
charge the public defender. The court took the motion under
advisement pending the competency hearing. The court deter-
mined that Dunster was competent and granted Dunster’s motion
to discharge the public defender, who was again appointed as
standby counsel. Dunster appeared pro se at sentencing, with
his standby counsel, and refused to present evidence in his
defense. Dunster was sentenced to death.
The NCpA was appointed to represent Dunster on appeal
to this court. Through counsel, Dunster argued, among other
things, that he was denied effective assistance of counsel from
the public defender. This court found the record sufficient to
address his arguments, and we rejected them.1 We affirmed
Dunster’s convictions and sentences.2 Dunster, represented by
the NCpA, separately filed motions in the trial court for a new
trial and to vacate his death sentence as void, citing Ring v.
1 See State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001), cert. denied
535 U.S. 908, 122 S. Ct. 1210, 152 L. Ed. 2d 147 (2002).
2 See id.
STATE v. DUNSTEr 	271
Cite as 278 Neb. 268

Arizona3 and 2002 Neb. Laws, L.b. 1. Dunster’s motions were
denied. We affirmed the denial of his motion for new trial and
dismissed his arguments with respect to the alleged voidness of
his sentence.4
Dunster, through new counsel, filed the present motion for
postconviction relief. Dunster alleged, among other things,
that the trial court had been without authority to make find-
ings of aggravating circumstances and to sentence him to
death, because the Nebraska death penalty statutes in effect at
the time were unconstitutional. Dunster also raised the con-
stitutionality of electrocution as a means of execution. And
Dunster alleged that he was denied effective assistance of trial
and direct appeal counsel. Specifically, Dunster contended that
direct appeal counsel was ineffective in raising ineffective
assistance of trial counsel, because the record was insufficient
to prove the claim. The postconviction court denied Dunster’s
motion for postconviction relief without an evidentiary hear-
ing. The court specifically found that each counsel’s represen-
tation of Dunster had not been deficient and that in any event,
Dunster had not been prejudiced. Dunster appeals.
ASSIGNMENTS oF Error
Dunster assigns that the postconviction court erred in:
(1) failing to find that it lacked jurisdiction to impose a
death sentence, because the Nebraska death penalty statutes
were unconstitutional;
(2) failing to find that it lacked jurisdiction to impose a
death sentence because it was without authority to make factual
findings regarding an aggravating circumstance;
(3) failing to find that the indictment deprived it of jurisdic-
tion to impose a death sentence because the indictment failed
to allege an aggravating circumstance;
(4) failing to find that Dunster’s sentence is void as a result
of 2002 Neb. Laws, L.b. 1;
3 Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556
(2002).
4 See State v. Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005).
272 	278 NEbrASKA rEporTS

(5) determining that the issue of the constitutionality of elec-
trocution was procedurally barred;
(6) failing to grant an evidentiary hearing on whether Dunster
received effective assistance of trial counsel during preparation
for trial and at his competency hearing; and
(7) failing to grant an evidentiary hearing on whether Dunster
received effective assistance of direct appeal counsel.
STANDArD oF rEvIEW
[1-3] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. When reviewing a
question of law, an appellate court resolves the question inde-
pendently of the lower court’s conclusion.5 And while moot-
ness does not prevent appellate jurisdiction, because mootness
is a justiciability doctrine that operates to prevent courts from
exercising jurisdiction, an appellate court reviews mootness
determinations under the same standard of review as other
jurisdictional questions.6 When a jurisdictional question does
not involve a factual dispute, an appellate court determines the
issue as a matter of law.7
[4] 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,8 an appellate court
reviews such legal determinations independently of the lower
court’s decision.9
5 State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008).
6 See In re Interest of Taylor W., 276 Neb. 679, 757 N.W.2d 1 (2008).
7 State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008), cert. denied 555 U.S.
901, 129 S. Ct. 228, 172 L. Ed. 2d 175.
8 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
9 See State v. Hudson, 277 Neb. 182, 761 N.W.2d 536 (2009).
STATE v. DUNSTEr 	273
Cite as 278 Neb. 268

ANALySIS
conStitutionAlity of cApitAl SentencinG StAtuteS
Dunster’s first three assignments of error are predicated on
the U.S. Supreme Court’s holding in Ring v. Arizona,10 that the
Sixth Amendment precludes a sentencing judge sitting without
a jury from finding an aggravating circumstance necessary for
imposition of the death penalty, and this court’s holding in
State v. Gales11 that Nebraska’s capital sentencing scheme had
been invalidated by the Ring decision.
but Dunster’s conviction was final before the Court’s deci-
sion in Ring, and we held in State v. Lotter12 that the Ring
decision did not apply retroactively to cases already final on
direct appeal. The U.S. Supreme Court later reached the same
conclusion in Schriro v. Summerlin.13 Given the Court’s deci-
sion in Schriro, we decline to reconsider our conclusion in
Lotter, and find Dunster’s first three assignments of error to be
without merit.
l.b. 1
Dunster’s fourth assignment of error is that his sentence is
void as a result of the Legislature’s enactment of 2002 Neb.
Laws, L.b. 1, which amended Nebraska’s capital sentencing
statutes to comply with Ring. Dunster’s argument seems to be
that his sentence is void because the procedural requirements
of L.b. 1 were not complied with when he was convicted and
sentenced to death.
[5] but Dunster’s conviction and sentence became final well
before L.b. 1 was enacted. The new procedural requirements
of L.b. 1 are simply not applicable to steps taken before the
law was enacted.14 While procedural statutes apply to pending
litigation, new procedural statutes have no retroactive effect
10 Ring, supra note 3.
11 State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
12 State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003).
13 Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442
(2004).
14 See Gales, supra note 11.
274 	278 NEbrASKA rEporTS

upon any steps that may have been taken in an action before
such statutes were effective.15 We explained in State v. Gales
that under such circumstances, “[a]ll things performed and
completed under the old law must stand.”16 And in Dunster’s
case, as in State v. Russell,17 the entire trial had already
been completed in the district court—and here, the appeal
had also become final—before the amendatory procedural act
became effective.
Dunster cites no authority, nor are we aware of any, support-
ing his assertion that his sentence is void because of procedural
requirements that were not imposed until after the judgment in
his criminal trial was final. Therefore, we find no merit to this
assignment of error.
electrocution AS meAnS of execution
Dunster’s fifth assignment of error is that the court erred in
finding that his challenge to the constitutionality of electrocu-
tion, as a means of execution, was procedurally barred. As a
technical matter, the district court’s conclusion was correct.18
but as a practical matter, Dunster’s argument is moot.
[6] A case becomes moot when the issues initially presented
in the litigation cease to exist, when the litigants lack a legally
cognizable interest in the outcome of litigation, or when the
litigants seek to determine a question which does not rest upon
existing facts or rights, in which the issues presented are no
longer alive.19 We held in State v. Mata20 that electrocution
as a method of execution is cruel and unusual punishment in
violation of the Nebraska Constitution. obviously, the State
cannot carry out Dunster’s sentence without a constitutionally
15 See, id.; State v. Russell, 194 Neb. 64, 230 N.W.2d 196 (1975).
16 Gales, supra note 11, 265 Neb. at 635, 658 N.W.2d at 631, citing Russell,
supra note 15.
17 Russell, supra note 15.
18 See State v. Moore, 272 Neb. 71, 718 N.W.2d 537 (2006).
19 See, State v. Woods, 255 Neb. 755, 587 N.W.2d 122 (1998); State v.
Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
20 Mata, supra note 7.
STATE v. DUNSTEr 	275
Cite as 278 Neb. 268

acceptable method of execution.21 And electrocution is no
longer the method of execution under Nebraska law.22 Stated
plainly, Dunster is no longer subject to electrocution. Therefore,
we need not consider this assignment of error.
ineffective ASSiStAnce of triAl counSel
[7-9] Dunster’s sixth assignment of error raises the issue
of effective assistance of trial counsel. Dunster’s allegations
appear to be entirely directed at counsel’s performance while
counsel was appointed to represent him, which is appropriate
as we have held that there is no constitutional right to effec-
tive assistance of standby counsel.23 And although a defendant
who elects to proceed pro se “cannot thereafter complain that
the quality of his [or her] own defense amounted to a denial of
‘effective assistance of counsel,’”24 the defendant may main-
tain a claim for ineffective assistance of counsel for any acts
or omissions that occurred before the defendant elected to
proceed pro se.25 Therefore, the scope of our analysis does not
include Dunster’s self-representation.
[10,11] In order to establish a right to postconviction relief
based on a claim of ineffective assistance of counsel at trial
or on direct appeal, the defendant has the burden, in accord-
ance with Strickland v. Washington,26 to show that counsel’s
performance was deficient; that is, counsel’s performance did
not equal that of a lawyer with ordinary training and skill in
criminal law in the area.27 Next, the defendant must show that
counsel’s deficient performance prejudiced the defense in his
or her case.28 In order to show prejudice, the defendant must
21 See id.
22 See L.b. 36, 101st Leg., 1st Sess.
23 See State v. Gunther, ante p. 173, 768 N.W.2d 453 (2009).
24 Faretta v. California, 422 U.S. 806, 834 n.46, 95 S. Ct. 2525, 45 L. Ed. 2d
562 (1975).
25 See, e.g., Downey v. People, 25 p.3d 1200 (Colo. 2001); Hance v. Kemp,
258 Ga. 649, 373 S.E.2d 184 (1988).
26 Strickland, supra note 8.
27 State v. Rhodes, 277 Neb. 316, 761 N.W.2d 907 (2009).
28 Id.
276 	278 NEbrASKA rEporTS

demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have
been different.29 The two prongs of this test, deficient perform-
ance and prejudice, may be addressed in either order.30 And
while normally a voluntary guilty plea waives all defenses to
a criminal charge, in a postconviction proceeding brought by
a defendant convicted because of a guilty plea or a plea of no
contest, a court will consider an allegation that the plea was the
result of ineffective assistance of counsel.31
[12] but most of Dunster’s claims are procedurally barred.
Dunster was represented by different counsel at trial and on
direct appeal. Under Nebraska law, 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.32
As noted above, Dunster’s direct appeal counsel did raise inef-
fective assistance of trial counsel as an issue, and we rejected
those arguments on the merits. And the record establishes that
the allegations of ineffective assistance of counsel that were
not raised on direct appeal were known to Dunster at trial,
because they formed the basis of many of his disagreements
with the public defender’s office.
[13] A defendant cannot secure postconviction review of
issues which were or could have been litigated on direct
appeal.33 To the extent that Dunster is alleging trial coun-
sel was ineffective in ways that were also raised on direct
appeal, we have rejected those arguments and they cannot be
relitigated here. And to the extent that Dunster’s allegations
of ineffective assistance of the public defender at trial were
not raised on direct appeal, they are procedurally barred,
29 Id.
30 Id.
31 See State v. Amaya, 276 Neb. 818, 758 N.W.2d 22 (2008).
32 State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
33 Bazer, supra note 5.
STATE v. DUNSTEr 	277
Cite as 278 Neb. 268

because they were known to the defendant and apparent on
the record.34
[14] Dunster argues that we erred, on direct appeal, in find-
ing that the record was sufficient to review the claims of inef-
fective assistance of trial counsel that Dunster actually raised.
As Dunster notes, claims of ineffective assistance of counsel
raised for the first time on direct appeal do not require dis-
missal ipso facto; the determining factor is whether the record
is sufficient to adequately review the question. When the issue
has not been raised or ruled on at the trial court level and the
matter necessitates an evidentiary hearing, an appellate court
will not address the matter on direct appeal.35 Dunster alleges
that we should not have considered ineffective assistance of
trial counsel on direct appeal, because contrary to our find-
ing, the record was actually insufficient to adequately review
the question.
but Dunster’s allegation does not prevent his claims from
being procedurally barred. Although Dunster may disagree, we
determined in Dunster’s direct appeal that the record was suf-
ficient.36 The remedy provided by the Nebraska postconviction
Act37 “is cumulative and is not intended to be concurrent
with any other remedy existing in the courts of this state.”38
The phrase “any other remedy” encompasses a direct appeal
when the issue raised in the postconviction proceeding can
be raised in the direct appeal.39 From that principle is derived
the rule that a motion for postconviction relief cannot be used
to secure a further review of issues already litigated on direct
appeal.40 Dunster cannot use a motion for postconviction relief
to collaterally attack issues that were decided against him on
direct appeal.
34 See State v. Thomas, ante p. 248, 769 N.W.2d 357 (2009).
35 State v. Jones, 274 Neb. 271, 739 N.W.2d 193 (2007).
36 See Dunster, supra note 1.
37 Neb. rev. Stat. §§ 29-3001 to 29-3004 (reissue 2008).
38 § 29-3003.
39 Molina, supra note 32.
40 See id.
278 	278 NEbrASKA rEporTS

[15,16] The only specifications of ineffective assistance of
trial counsel that are not procedurally barred are the few allega-
tions that relate to the performance of the NCpA, which repre-
sented Dunster in a limited capacity at trial, then represented
him fully on direct appeal. Claims of ineffective assistance
of counsel raised on direct appeal by the same counsel who
represented the defendant at trial are premature and will not
be addressed on direct appeal.41 Therefore, when a defendant
was represented both at trial and on direct appeal by lawyers
employed by the same office, the defendant’s first opportunity
to assert ineffective assistance of trial counsel is in a motion
for postconviction relief.42
but Dunster’s allegation is that the NCpA should have inves-
tigated the performance of the public defender’s office and
filed a motion to discharge the public defender and that it was
ineffective in not doing so. In fact, the NCpA did not act defi-
ciently, as the alleged omissions were outside the limited scope
of the NCpA’s appointment to advise Dunster.
In that regard, Dunster’s argument is somewhat akin to a
claim of ineffective assistance of standby counsel. There is no
constitutional right to effective assistance of standby counsel.43
but some courts have held that where counsel is appointed to
act in some sort of limited capacity, a defendant can maintain a
claim that counsel provided ineffective assistance—within the
limited scope of the duties assigned to or assumed by counsel.44
This occurs when, for instance, “standby” counsel ceases to
stand by and actually steps in and assumes formal control of
some aspect of the defendant’s legal representation.45 but a
self-represented defendant may not claim ineffective assistance
on account of counsel’s failure to perform an act within the
41 State v. Tucker, 17 Neb. App. 487, 764 N.W.2d 137 (2009).
42 State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004).
43 Gunther, supra note 23.
44 See, People v. Blair, 36 Cal. 4th 686, 115 p.3d 1145, 31 Cal. rptr. 3d 485
(2005); Downey, supra note 25.
45 See id.
STATE v. DUNSTEr 	279
Cite as 278 Neb. 268

scope of duties the defendant voluntarily undertook to per-
form personally.46
In this case, Dunster elected to proceed pro se, and the
district court appointed the NCpA in the limited capacity of
advising him with respect to that election. Dunster alleges that
the NCpA provided ineffective assistance of counsel, because
it did not investigate the representation provided by the public
defender to that point or act to remedy the public defender’s
allegedly deficient representation. but that was beyond the
scope of the duties with which the NCpA was charged. Dunster
neither alleges nor argues that the NCpA performed deficiently
within the limited scope of the duties it was assigned.
Nor was Dunster prejudiced by the alleged failure to inves-
tigate the public defender or move that the public defender be
discharged. Multiple motions to discharge the public defender
were filed and, eventually, sustained. Ineffective assistance of
counsel arguments with respect to the public defender were
raised and rejected on direct appeal.47 And the underlying alle-
gation that the public defender failed to investigate Dunster’s
medical condition at the time of the killing was an aspect of
defense strategy that Dunster personally assumed when he
undertook to represent himself.48
Dunster contended at oral argument that the NCpA was
“complicit” in the public defender’s alleged ineffectiveness.
As we understand Dunster’s argument, it is that the NCpA
could not raise certain ineffective assistance of trial counsel
claims on direct appeal because it would be tantamount to
arguing the NCpA’s own ineffectiveness, which it could not
do. Therefore, Dunster asserted that his claims of ineffective
assistance of the public defender are not procedurally barred
because the NCpA could not raise them on direct appeal. but
this conclusion rests on the claim that the NCpA was ineffec-
tive at trial—a claim we have already rejected. In other words,
the NCpA’s ability to raise issues on appeal was not fettered by
46 See People v. Bloom, 48 Cal. 3d 1194, 774 p.2d 698, 259 Cal. rptr. 669
(1989).
47 See Dunster, supra note 1.
48 See, Blair, supra note 44; Downey, supra note 25; Bloom, supra note 46.
280 	278 NEbrASKA rEporTS

its own ineffectiveness at trial, because it was not ineffective
at trial. because Dunster was not limited in his ability to argue
on direct appeal that the public defender had been ineffective,
those claims are, as explained above, procedurally barred.
In short, the record from Dunster’s direct appeal49 affirma-
tively contradicts Dunster’s argument that the NCpA should
have investigated the public defender’s performance or that
Dunster was prejudiced by any failure to do so. This is, essen-
tially, a recasting of the ineffective assistance of trial coun-
sel claim that we considered and rejected on direct appeal.
Dunster’s claims of ineffective assistance of counsel are either
procedurally barred or without merit.
ineffective ASSiStAnce of direct A ppeAl counSel
Dunster’s seventh and final assignment of error is that he
was denied effective assistance of counsel on direct appeal.
Dunster generally alleges two ways in which, he claims, direct
appeal counsel was ineffective. one of those is that direct
appeal counsel was ineffective in failing to challenge the con-
stitutionality of electrocution as a method of execution. As
discussed above, Dunster is no longer subject to electrocution.
Therefore, Dunster was not prejudiced by his direct appeal
counsel’s failure to challenge its constitutionality.
Dunster’s other argument is that direct appeal counsel was
ineffective in raising, on direct appeal, the issue of ineffective
assistance of trial counsel. but direct appeal counsel’s perform-
ance was not deficient in that regard. As noted above, 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.50
Dunster’s claim is that ineffective assistance of trial counsel
is now a procedurally barred issue because it was raised on
direct appeal. but direct appeal counsel was required to raise
ineffective assistance of trial counsel in order to preserve it for
49 See Dunster, supra note 1.
50 Molina, supra note 32.
STATE v. DUNSTEr 	281
Cite as 278 Neb. 268

any postconviction review.51 As it happened, this court con-
cluded that the record was sufficient to review the issue and
found it to be without merit. but because the issue was appar-
ent from the record, it would have been procedurally barred
either way. Direct appeal counsel did not act deficiently in rais-
ing the issue, nor was Dunster prejudiced as a result. Dunster’s
final assignment of error is without merit.
CoNCLUSIoN
For the reasons stated above, Dunster’s assignments of error
are either procedurally barred or without merit. because the
files and records affirmatively show that Dunster is entitled to
no relief, there was no need for an evidentiary hearing.52 The
judgment of the district court denying Dunster’s motion for
postconviction relief is affirmed.
A ffirmed.
51 See, e.g., Thomas, supra note 34.
52 See Bazer, supra note 5.
AAron ferer And robin monSky, AppellAntS, And
SHAron monSky, Appellee , v. AAron ferer &
SonS co., A nebrASkA corporAtion,
et Al ., AppelleeS.
770 N.W.2d 608
Filed August 7, 2009. 	No. S-08-534.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, and the court gives that party the benefit of all
reasonable inferences deducible from the evidence.
2. Pleadings: Appeal and Error. permission to amend a pleading is addressed to
the discretion of the trial court, and the trial court’s decision will not be disturbed
absent an abuse of discretion.
3. Standing: Words and Phrases. Standing is the legal or equitable right, title, or
interest in the subject matter of a controversy.
4. Corporations: Actions: Parties. Generally, a shareholder may not bring an
action in his or her own name to recover for wrongs done to the corporation or
its property.
282 	278 NEbrASKA rEporTS