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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. COMBS

Cite as 308 Neb. 587

State of Nebraska, appellee, v. 

Patrick J. Combs, appellant.

___ N.W.2d ___

Filed March 5, 2021. No. S-20-335.

1. Effectiveness of Counsel: Appeal and Error. Appellate review of a 

claim of ineffective assistance of counsel is 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 independently of 

the lower court’s decision.

2. Postconviction: Evidence. In an evidentiary hearing on a motion for 

postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact.

3. Postconviction: Constitutional Law. Postconviction relief is a very 

narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable.

4. Postconviction: Effectiveness of Counsel: Appeal and Error. To 

establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance 

with Strickland v. Washington, 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. Next, the defendant must show 

that counsel’s deficient performance prejudiced the defense in his or 

her case.

5. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and 

Error. After a trial, conviction, and sentencing, if counsel deficiently 

fails to file or perfect an appeal after being so directed by the criminal 

defendant, prejudice will be presumed and counsel will be deemed ineffective, thus entitling the defendant to postconviction relief.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/07/2021 08:11 AM CDT
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. COMBS

Cite as 308 Neb. 587

6. Effectiveness of Counsel: Appeal and Error. Where the defendant 

has provided specific instructions to his or her counsel to file a notice 

of appeal, counsel’s failure to follow those instructions is deficient 

performance. On the other hand, where the defendant has explicitly 

instructed his or her counsel not to file an appeal, the defendant cannot 

later complain that, by following his or her instructions, counsel performed deficiently.

7. Effectiveness of Counsel: Intent: Appeal and Error. Where the 

defendant has not conveyed his or her intent with respect to an appeal 

either way, it must first be determined whether trial counsel consulted 

with the defendant about the appeal before a determination can be made 

about deficient performance.

8. Effectiveness of Counsel: Appeal and Error: Words and Phrases. In 

the context of a claim of ineffectiveness of counsel, the term “consult” 

means advising the defendant about the advantages and disadvantages of 

taking an appeal and making a reasonable effort to discover the defend

ant’s wishes.

9. Effectiveness of Counsel: Appeal and Error. If counsel has consulted 

with the defendant, then counsel performed deficiently only by failing to 

follow the defendant’s express instructions regarding an appeal.

Appeal from the District Court for Lancaster County: Robert 

R. Otte, Judge. Affirmed.

Candice C. Wooster, of Brennan & Nielsen Law Offices, 

P.C., for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and 

Funke, JJ.

Heavican, C.J.

INTRODUCTION

Patrick J. Combs appeals from the district court’s denial, following an evidentiary hearing, of his motion seeking postconviction relief. In that motion, Combs alleged that his counsel 

was ineffective for failing to file a direct appeal when directed 

to do so. We affirm.
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. COMBS

Cite as 308 Neb. 587

BACKGROUND

Combs was convicted in March 2018 for one count of theft 

by unlawful taking, one count of attempted theft by unlawful 

taking, and one count of abuse of a vulnerable adult. On May 

14, he was sentenced to 5 years’ probation. No direct appeal 

was filed.

Combs subsequently filed a motion seeking postconviction 

relief, alleging that his trial counsel was ineffective for failing 

to file an appeal. An evidentiary hearing was held on Combs’ 

motion on the question of whether counsel was ineffective 

for failing to file an appeal. At that hearing, depositions 

of both Combs and his trial counsel, Robert Creager, were 

offered into evidence. Those depositions reveal the following 

timeline relevant to the issues raised by Combs’ postconviction motion.

On May 15, 2018, Creager emailed a billing statement to 

Combs. In his email, Creager stated that “[w]ith 20K still in 

trust, the balance due would be around $16k. I would accept 

a $5k discount if we do the appeal for a flat fee of $10k. The 

[$]5k would be payable now, and the $10K would be payable 

when the Appellant’s brief date is set.”

On May 29, 2018, Combs emailed Creager, indicating that 

he was “inclined to pursue an appeal,” but that his wife had 

reservations. Combs then asked several questions relating to 

the appeal. Combs ended the email by stating that “[w]e are 

sending you $5000 this week. Our schedule is pretty hectic this 

week[,] and we will be out of town next week[,] so coming 

down to your office might be tough, but we can certainly talk 

by phone when you are available.”

Combs and Creager agree that they spoke on June 8, 2018. 

Combs testified that during the conversation, he told Creager 

that he wanted to appeal. Combs indicated in his deposition 

that after telling Creager to appeal, he and his wife “cele

brated” that decision.

Conversely, Creager testified that he received no direction to appeal during that call, but simply answered more 
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STATE v. COMBS

Cite as 308 Neb. 587

questions regarding the appeal process, including informing 

Combs that he could file the appeal and later withdraw it if 

he no longer wanted to pursue the appeal. Creager alleges that 

he ended the conversation by asking Combs to let him know 

by the following Monday, June 11, 2018, whether he wanted 

to appeal and that he, Creager, checked his email and phone 

messages multiple times on that Monday to ensure he did not 

miss a message from Combs. Receiving none, Creager did not 

file an appeal.

A check for $5,000 was apparently received by the bookkeeper at Creager’s law firm on June 11, 2018, though Creager 

testified that he had no personal knowledge of its receipt. 

Neither the check, nor a copy of the canceled check, is part of 

our record.

Combs contacted Creager on June 14, 2018, the day after the 

appeal deadline had passed, to ask whether the appeal had been 

filed. Combs subsequently filed this postconviction motion.

Following the hearing, the district court denied the motion 

for postconviction relief. In so doing, it made findings of fact 

that it believed Creager’s testimony over Combs’ testimony, 

both because it found Creager more credible than Combs 

and because Combs’ wife offered no testimony corroborating 

Combs’ assertion that she was aware Creager had been directed 

to file an appeal. The district court further rejected Combs’ 

claim that Creager had an obligation to confirm his belief that 

Combs did not want to pursue an appeal. It found that the payment of $5,000, particularly on the facts presented, did not 

support an express direction to Creager that an appeal should 

be filed on Combs’ behalf.

Combs appeals.

ASSIGNMENT OF ERROR

On appeal, Combs assigns three assignments of error that 

can be consolidated as one: The district court erred in finding that counsel was not ineffective by failing to file a direct 

appeal.
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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. COMBS

Cite as 308 Neb. 587

STANDARD OF REVIEW

[1,2] Appellate review of a claim of ineffective assistance of 

counsel is a mixed question of law and fact. 1 When reviewing 

a claim of ineffective assistance of counsel, an appellate court 

reviews the factual findings of the lower court for clear error. 2

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,

 3 an appellate court reviews such 

legal determinations independently of the lower court’s decision. 4 In an evidentiary hearing on a motion for postconviction 

relief, the trial judge, as the trier of fact, resolves conflicts in 

the evidence and questions of fact. 5

ANALYSIS

Combs assigns that the district court erred in not finding 

that his counsel was ineffective for failing to file a direct 

appeal. He makes three arguments in support of this conclusion: (1) that counsel erred in not filing an appeal when he 

was requested to do so, (2) that counsel erred in not following 

up with Combs regarding the filing of an appeal, and (3) that 

counsel erred in failing to appeal even after receiving payment 

for such an appeal.

[3-5] Postconviction relief is a very narrow category of 

relief, available only to remedy prejudicial constitutional 

violations that render the judgment void or voidable. 6 To 

establish a right to postconviction relief based on a claim of 

ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland,

 7 to show that counsel’s 

1 State v. Dalton, 307 Neb. 465, 949 N.W.2d 752 (2020).

2 Id.

3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

4 State v. Dalton, supra note 1.

5 Id.

6 Id.

7 Strickland v. Washington, supra note 3.
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STATE v. COMBS

Cite as 308 Neb. 587

performance was deficient; that is, counsel’s performance did 

not equal that of a lawyer with ordinary training and skill in 

criminal law. Next, the defendant must show that counsel’s 

deficient performance prejudiced the defense in his or her 

case. 8 After a trial, conviction, and sentencing, if counsel 

deficiently fails to file or perfect an appeal after being so 

directed by the criminal defendant, prejudice will be presumed and counsel will be deemed ineffective, thus entitling 

the defendant to postconviction relief. 9

[6] Where the defendant has provided specific instructions 

to his or her counsel to file a notice of appeal, counsel’s failure 

to follow those instructions is deficient performance. 10 On the 

other hand, where the defendant has explicitly instructed his 

or her counsel not to file an appeal, the defendant cannot later 

complain that, by following his or her instructions, counsel 

performed deficiently. 11

[7-9] Where the defendant has not conveyed his or her 

intent with respect to an appeal either way, it must first be 

determined whether trial counsel consulted with the defendant 

about the appeal before a determination can be made about 

deficient performance. 12 In this context, the term “consult” 

means advising the defendant about the advantages and dis

advantages of taking an appeal and making a reasonable effort 

to discover the defendant’s wishes. 13 If counsel has consulted 

with the defendant, then counsel performed deficiently only 

by failing to follow the defendant’s “express instructions” 

regarding an appeal. 14

8 State v. Dalton, supra note 1.

9 Id.

10 See Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 

985 (2000).

11 See id.

12 See id.

13 Id.

14 See id., 528 U.S. at 478.
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STATE v. COMBS

Cite as 308 Neb. 587

Failing to File Appeal Upon 

Request to Do So.

Combs first asserts that he instructed Creager to file an 

appeal during their telephone conversation on June 8, 2018, 

and that Creager was ineffective for failing to do so.

In an evidentiary hearing for postconviction relief, the postconviction trial judge, as the trier of fact, resolves conflicts 

in the evidence and questions of fact, including witness credibility and the weight to be given a witness’ testimony. 15 And 

when reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court 

for clear error. 16

Combs and Creager are in agreement that they spoke about 

a possible appeal on June 8, 2018. Their testimonies differ in 

that Combs testified he told Creager he wanted to appeal, while 

Creager testified that Combs said he still needed to talk with 

his wife about it.

The record demonstrates there was a conflict between 

Combs’ testimony that he directed Creager to appeal and 

Creager’s testimony that he received no such direction. In this 

instance, the district court explicitly found Creager’s testimony 

to be more credible.

Having reviewed the record, and given deference to the 

district court’s findings of fact, we find no clear error in the 

court’s findings. Creager was not deficient in failing to file 

an appeal that the district court determined Creager was not 

directed to file. Combs’ argument to the contrary is without merit.

Failing to Follow Up Regarding 

Filing of Appeal.

Combs next argues that Creager was ineffective in failing 

to follow up with him regarding whether he wished to file 

an appeal.

15 State v. Dalton, supra note 1.

16 Id.
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STATE v. COMBS

Cite as 308 Neb. 587

We addressed similar facts in State v. Dalton.

 17 There, the 

defendant argued that his counsel was ineffective, not only 

by failing to file a direct appeal, but also by failing to obtain 

an “explicit directive” from defendant regarding an appeal. 18

We rejected such a burden on trial counsel, noting that “[i]t is 

simply not under defense counsel’s power to force a client to 

provide an explicit response to inquiries regarding the client’s 

right to appeal.” 19

Here, Combs argues that Creager should have followed up 

with him between June 8 and 13, 2018, to determine whether 

Combs wanted to appeal. The record shows that Combs and 

Creager had multiple conversations, even prior to his sentencing, regarding a possible appeal and that Combs kept putting 

off the decision, asking more questions, and indicating that 

his wife needed to be convinced. The district court found as 

credible Creager’s testimony that because the deadline was 

approaching, he told Combs to let him know by June 11 if he 

wanted to file an appeal.

These facts show the difficulty with placing such a burden 

on defense counsel. As we recognized in Dalton, it is not 

within counsel’s power to force a defendant to give an explicit 

response on the issue of an appeal. 20 U.S. Supreme Court 

case law explains that the failure to file an appeal after one 

is requested is deficient conduct and that the failure to file an 

appeal after being told the defendant did not wish to appeal is 

not deficient conduct. 21 In such instances where no direction is 

given, as is the situation presented here, counsel must consult with the defendant as to the topic of an appeal, which 

includes “advising the defendant about the advantages and 

17 Id.

18 Id. at 472, 949 N.W.2d at 758.

19 Id.

20 State v. Dalton, supra note 1.

21 See Roe v. Flores-Ortega, supra note 10.
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STATE v. COMBS

Cite as 308 Neb. 587

disadvantages of taking an appeal, and making a reasonable 

effort to discover the defendant’s wishes.” 22

In this case, there is no dispute that Creager consulted with 

Combs about Combs’ right to appeal and that Combs was to 

contact Creager in order to ensure that an appeal was filed. 

It was Combs’ responsibility to request that Creager file an 

appeal. As we noted above, the district court found that Combs 

made no such request.

There is no merit to Combs’ argument that Creager was 

deficient in failing to follow up with Combs with respect to the 

filing of an appeal.

Failing to Appeal After Receipt 

of Payment for Appeal.

Finally, Combs argues that Creager had notice Combs 

wished to file an appeal, because Combs paid $5,000 for an 

appeal, and that the failure to file the appeal after accepting 

payment was deficient performance.

As an initial matter, despite Combs’ assertion to the contrary, 

the record is not clear that the $5,000 paid by Combs was for 

payment of an appeal. The emails between Combs and Creager 

regarding payment are not clear in stating that $5,000 was due 

for the filing of a notice of appeal. A copy of the check is not 

part of the record such that it might indicate on its face that the 

check was for an appeal.

Moreover, Combs indicated in a May 29, 2018, email that 

he would be sending a check for $5,000. But by his own testimony, Combs did not inform Creager until June 8 that he 

wished to appeal. Given this evidence and our standard of 

review, the trial court’s finding of facts regarding the $5,000 

payment are not clear error.

The record establishes that Creager consulted with Combs 

about the appeal. In such an instance, only the failure to comply with the “express instructions” given by Combs would 

22 Id., 528 U.S. at 478.
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STATE v. COMBS

Cite as 308 Neb. 587

constitute deficient conduct. 23 The payment of $5,000, particularly under the facts as noted above, did not qualify as an 

express instruction.

Creager was not deficient in failing to file a direct appeal 

based upon the payment of $5,000 by Combs. Combs’ final 

argument is without merit.

CONCLUSION

The order of the district court dismissing Combs’ motion for 

postconviction relief is affirmed.

Affirmed.

Papik and Freudenberg, JJ., not participating.

23 See id.