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Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. RUSSELL

Cite as 308 Neb. 499

State of Nebraska, appellee, v. 

Stephen Russell, appellant.

___ N.W.2d ___

Filed February 26, 2021. No. S-20-283.

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.

2. ____: ____. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for 

clear error.

3. ____: ____. 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.

4. 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.

5. 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.

6. 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.

7. Effectiveness of Counsel: Presumptions. The two prongs of the test 

for ineffective assistance of counsel may be addressed in either order, 

Nebraska Supreme Court Online Library

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

03/12/2021 08:09 AM CST
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STATE v. RUSSELL

Cite as 308 Neb. 499

and the entire ineffectiveness analysis should be viewed with a strong 

presumption that counsel’s actions were reasonable.

8. Effectiveness of Counsel: Proof. To show that counsel’s performance 

was deficient, a defendant must show that counsel’s performance did not 

equal that of a lawyer with ordinary training and skill in criminal law.

9. Effectiveness of Counsel: Proof: Words and Phrases. 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. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

10. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.

In order to obtain a new direct appeal as postconviction relief, the 

defendant must show, by a preponderance of the evidence, that the 

defendant was denied his or her right to appeal due to the negligence or 

incompetence of counsel, and through no fault of his or her own.

11. Effectiveness of Counsel: Appeal and Error. A lawyer who disregards 

specific instructions from the defendant to file a notice of appeal acts in 

a manner that is professionally unreasonable.

12. ____: ____. Counsel is not per se deficient by failing to automatically appeal.

13. ____: ____. For cases where the defendant neither instructs counsel to 

file an appeal nor asks that an appeal not be taken, the U.S. Supreme 

Court has adopted a reasonableness inquiry for the deficiency prong 

that considers whether counsel consulted with the defendant and, if not, 

whether that failure to consult was deficient performance.

14. 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.

15. Effectiveness of Counsel: Appeal and Error. It is a critical requirement that counsel’s deficient performance must actually cause the forfeiture of the defendant’s appeal.

16. ____: ____. It is fundamental to a claim of ineffective assistance of 

counsel based on failure to appeal that the defendant directed that such 

appeal be filed.

17. Evidence: Appeal and Error. Where competent evidence supports the 

district court’s findings, the appellate court will not substitute its factual 

findings for those of the district court.

18. Postconviction: Evidence: Witnesses. In an evidentiary hearing for 

postconviction relief, the postconviction trial judge, as the trier of fact, 

resolves conflicts in evidence and questions of fact, including witness 

credibility and the weight to be given a witness’ testimony.
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STATE v. RUSSELL

Cite as 308 Neb. 499

19. Testimony: Depositions. The weight to be accorded to testimony 

given by deposition, as compared to that given orally in court, must 

depend, not upon its form, but upon all the circumstances affecting 

its credibility.

20. Testimony: Evidence. While testimony is a kind of evidence, a defend

ant who relies upon his or her testimony with little or no supporting 

documentary evidence does so at the risk of nonpersuasion.

21. Trial: Witnesses: Evidence. Triers of fact have the right to test the 

credibility of witnesses by their self-interest and to weigh it against the 

evidence, or the lack thereof.

22. Trial: Evidence. Evidence not directly contradicted is not necessarily 

binding on the triers of fact, and may be given no weight where it is 

inherently improbable, unreasonable, self-contradictory, or inconsistent 

with facts or circumstances in evidence.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirmed.

Sean M. Conway, of Dornan, Troia, Howard, Breitkreutz & 

Conway, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

In an appeal from a motion for postconviction relief, the 

defendant challenges the district court’s denial of his motion 

for postconviction relief after an evidentiary hearing. The 

defendant assigns that the district court erred in finding that 

trial counsel was not ineffective when trial counsel failed to 

file a direct appeal, allegedly at the direction of the defendant. 

We affirm.

BACKGROUND

Pursuant to a plea agreement, Stephen Russell pled no 

contest and was convicted of murder in the second degree, 
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STATE v. RUSSELL

Cite as 308 Neb. 499

a Class IB felony. Russell was sentenced to 60 to 70 years’ 

imprisonment. No direct appeal was filed. Russell filed a motion 

for postconviction relief. In the operative amended motion, 

Russell sought a new direct appeal, alleging that Russell’s trial 

counsel had failed to file a direct appeal on Russell’s behalf, 

despite Russell’s requests to do so. The district court held an 

evidentiary hearing on the amended motion.

Russell’s Deposition

The only evidence presented by Russell at the evidentiary 

hearing was his deposition, which was entered and marked as 

an exhibit. The deposition was conducted with the intention 

that it be in lieu of live testimony at the evidentiary hearing.

Russell testified in his deposition that it was his recollection 

that his trial counsel discussed only the likely sentence with 

him, but did not discuss his right to appeal. Russell testified 

that leading up to Russell’s plea, trial counsel told him that he 

would get no more than 70 years’ imprisonment as his maximum sentence, but that trial counsel would try to get Russell 

a term of imprisonment of 20 to 40 years or 30 to 50 years. 

Russell testified that he told trial counsel he was not “‘trying to 

do 30 years in prison,” and that trial counsel told him, “‘Well, 

you’re not going to do 30 years. I promise you you’re not.’” 

Russell then decided to enter a plea.

Russell testified that he quickly learned from other inmates 

of his right to a direct appeal within 30 days. Russell testified 

he immediately began attempts to contact trial counsel in order 

to ask him to file an appeal on Russell’s behalf.

Russell testified that he called trial counsel the day after his 

sentencing, leaving an “urgent voicemail.” Russell testified that 

he also timely sent trial counsel a notarized letter asking trial 

counsel to file a direct appeal and to provide Russell with a 

copy of the discovery and his bill of exceptions.

Russell did not separately introduce a copy of this letter at 

the evidentiary hearing, but a copy of the letter was attached 

as an exhibit to the deposition. That attachment did not include 
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STATE v. RUSSELL

Cite as 308 Neb. 499

a photocopy of the envelope the letter was allegedly mailed 

in. Russell asserted in his deposition testimony that he had 

put the letter in the mailslot at his facility, but he did not specifically testify that he had placed the letter in an envelope 

and properly addressed and stamped it. Russell presented no 

other documentary evidence or testimony that the letter was 

properly addressed, stamped, and mailed. And there was no 

evidence presented of official negligence relating to the prison 

mail system.

Russell testified that he again attempted to call trial counsel after the letter was sent and that he was “pretty sure” he 

“left two voicemails,” but knew “for sure” he had left one. 

Although Russell indicated that inmate calls are documented, 

he did not present such records in relation to his alleged calls 

to trial counsel.

Russell testified that he had no contact with trial counsel 

since his sentencing hearing on January 19, 2016.

Trial Counsel’s Deposition

The State submitted the deposition of trial counsel. The 

attorney for the State, inexplicably, was not present at trial 

counsel’s deposition, so Russell’s postconviction counsel did 

all of the questioning. Trial counsel confirmed Russell’s claim 

that he did not discuss the right to appeal with Russell before 

Russell entered his plea. Nor did he do so before Russell 

was sentenced.

Trial counsel testified that it is not his practice to discuss 

the right to appeal prior to the entry of a plea or at the time of 

sentencing, unless a client specifically asks, and that he did not 

advise Russell of his right to appeal, because the only avenue 

available to Russell was an appeal for excessive sentence. Trial 

counsel testified that, typically, for clients convicted pursuant 

to a plea bargain agreement, only if the client sends a letter or 

calls him after sentencing to inquire about an appeal does he 

send a form letter explaining the 30-day timeframe to appeal 

and also explaining that excessive sentences are routinely 

denied by the Nebraska Court of Appeals.
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STATE v. RUSSELL

Cite as 308 Neb. 499

Trial counsel testified that he did not recall receiving any 

telephone calls or written correspondence from Russell within 

the 30-day window after his sentencing. At one point, Russell’s 

postconviction counsel asked, “Is it possible that . . . Russell 

had called and left a message to speak with you during the 

30-day period between when his sentencing was and when it 

expired, or do you know [for] sure?” Trial counsel responded, 

“Sure, it’s possible.”

Trial Record

There was not a trial record prepared in this case. A praecipe 

for a bill of exceptions was filed in August 2016, but a bill of 

exceptions was not prepared or filed. The only bill of exceptions requested and prepared in this case is the one this court 

presently has that covers the evidentiary hearing held by the 

district court on February 5, 2020.

Order Denying Postconviction Relief

The district court denied Russell’s motion for postconviction relief. The court noted in its order that in the plea dialogue between the court and Russell, the court had specifically 

advised Russell that he had the right to appeal the conviction, 

but the court did not advise Russell that the appeal must be 

filed within 30 days of sentencing.

The district court found that Russell failed to establish a 

nonfrivolous issue to appeal, because the one potential issue 

to appeal would be that the sentence was excessive. The 

court noted that Russell was aware the court was not likely 

to impose a prison sentence of more than 70 years, that the 

sentence he received did not exceed that number, and that the 

sentence was well below the statutory maximum sentence of 

life imprisonment. The court additionally found that Russell 

failed to prove he informed trial counsel that he was interested 

in an appeal. The court observed there was no evidence, other 

than Russell’s deposition testimony, that a letter directing trial 

counsel to file an appeal was actually mailed. It also relied 
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STATE v. RUSSELL

Cite as 308 Neb. 499

on trial counsel’s testimony that he never received any oral or 

written communication from Russell.

ASSIGNMENT OF ERROR

Russell assigns that the district court erred in denying 

Russell’s amended motion for postconviction relief, because 

counsel was ineffective by failing to file a direct appeal at 

Russell’s request within the 30-day timeframe of Russell’s 

sentencing.

STANDARD OF REVIEW

[1-3] 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

[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

[5,6] Russell seeks postconviction relief in the form of a 

new direct appeal, based on allegations of ineffective assist

ance of trial counsel. Postconviction relief is a very narrow category of relief, available only to remedy prejudicial 

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.
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STATE v. RUSSELL

Cite as 308 Neb. 499

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 performance was deficient; that is, counsel’s performance 

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

in criminal law. 8 Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or 

her case. 9

[7-9] The two prongs of the test for ineffective assistance of 

counsel may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that counsel’s actions were reasonable. 10 To show that 

counsel’s performance was deficient, a defendant must show 

that counsel’s performance did not equal that of a lawyer with 

ordinary training and skill in criminal law. 11 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. 12 A reasonable probability is a probability sufficient to undermine confidence in 

the outcome. 13

[10] In order to obtain a new direct appeal as postconviction 

relief, the defendant must show, by a preponderance of the evidence, that the defendant was denied his or her right to appeal 

due to the negligence or incompetence of counsel, and through 

no fault of his or her own. 14

6 Id.

7 Strickland v. Washington, supra note 3.

8 State v. Dalton, supra note 1.

9 Id.

10 State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).

11 State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).

12 State v. Weathers, supra note 10.

13 Id.

14 State v. Curtright, 262 Neb. 975, 637 N.W.2d 599 (2002).
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STATE v. RUSSELL

Cite as 308 Neb. 499

[11-13] On the deficiency prong, the U.S. Supreme Court 

has said that a lawyer who disregards specific instructions from 

the defendant to file a notice of appeal acts in a manner that 

is professionally unreasonable. 15 But the U.S. Supreme Court 

has rejected a bright-line rule that counsel is per se deficient 

by failing to automatically file a notice of appeal unless the 

defendant specifically instructs counsel not to. 16 Instead, for 

cases where the defendant neither instructs counsel to file an 

appeal nor asks that an appeal not be taken, the Court adopted 

in Roe v. Flores-Ortega 17 a reasonableness inquiry for the deficiency prong that considers whether counsel consulted with 

the defendant and, if not, whether that failure to consult was 

deficient performance.

[14] On the prejudice prong of the ineffective assistance 

analysis seeking a new direct appeal, the U.S. Supreme Court 

has said that when counsel’s constitutionally deficient perform

ance deprives a defendant of an appeal that the defendant 

otherwise would have taken, such a denial of a critical stage 

of the judicial proceedings is one of the extreme failures of 

performance that demands a presumption of prejudice. 18 We 

have similarly articulated that 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. 19

[15] But the U.S. Supreme Court has explained, with regard 

to the prejudice prong in an ineffective assistance claim seeking a new direct appeal, that it is a “critical requirement 

that counsel’s deficient performance must actually cause the 

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

985 (2000).

16 See id.

17 Id.

18 See id. See, also, State v. Assad, supra note 11.

19 State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000).
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Cite as 308 Neb. 499

forfeiture of the defendant’s appeal.” 20 Thus, in Peguero v. 

United States,

 21 the Court held that the defendant did not 

sustain his burden to demonstrate he was prejudiced by trial 

counsel’s deficient failure to inform him of his right to appeal, 

when the defendant had actual knowledge of the right to appeal 

and did not request that trial counsel file an appeal. Discussing 

Peguero in Flores-Ortega, the Court indicated that in such circumstances, an inquiry into whether counsel was deficient for 

failing to consult with the defendant as to the right to appeal 

is unnecessary. 22

To the extent Russell’s motion attempted to allege that trial 

counsel’s performance was deficient by failing to advise him 

of the right to appeal, he was not prejudiced by this failure, 

because he admitted he had actual knowledge from other 

sources of the right to appeal within 30 days. Russell’s postconviction claim correctly focused instead on trial counsel’s 

alleged failure to timely file an appeal despite Russell’s alleged 

request that trial counsel do so.

[16,17] It is fundamental to a claim of ineffective assist

ance of counsel based on failure to appeal that the defendant 

directed that such appeal be filed. 23 Here, the court found 

that Russell did not direct trial counsel to file a direct appeal. 

Regardless of the form of the evidence presented on that 

question of fact, 24 we review the district court’s findings for 

clear error. 25 Where competent evidence supports the district 

court’s findings, the appellate court will not substitute its 

factual findings for those of the district court. 26 The district 

20 Roe v. Flores-Ortega, supra note 15, 528 U.S. at 484.

21 Peguero v. United States, 526 U.S. 23, 119 S. Ct. 961, 143 L. Ed. 2d 18 

(1999).

22 Roe v. Flores-Ortega, supra note 15.

23 See State v. Trotter, supra note 19.

24 See Quarles v. Fuqua Industries, Inc., 504 F.2d 1358 (10th Cir. 1974).

25 State v. Dalton, supra note 1.

26 Fitzke v. City of Hastings, 255 Neb. 46, 582 N.W.2d 301 (1998).
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court’s finding that Russell did not direct trial counsel to file 

a direct appeal is supported by competent evidence and is not 

clearly wrong.

[18,19] In an evidentiary hearing for postconviction relief, 

the postconviction trial judge, as the trier of fact, resolves 

conflicts in evidence and questions of fact, including witness 

credibility and the weight to be given a witness’ testimony. 27

The weight to be accorded to testimony given by deposition, as compared to that given orally in court, must depend, 

not upon its form, but upon all the circumstances affecting 

its credibility. 28

[20-22] While testimony is a kind of evidence, a defendant 

who relies upon his or her testimony with little or no supporting 

documentary evidence does so at the risk of nonpersuasion. 29

Triers of fact have the right to test the credibility of witnesses 

by their self-interest and to weigh it against the evidence, or 

the lack thereof. 30 Evidence not directly contradicted is not 

necessarily binding on the triers of fact, and may be given 

no weight where it is inherently improbable, unreasonable, 

self-contradictory, or inconsistent with facts or circumstances 

in evidence. 31

The district court, in evaluating Russell’s deposition testimony in lieu of live testimony, found Russell not credible 

in his claims of having left voicemails and sending a letter to trial counsel requesting that trial counsel file a direct 

appeal. The court weighed Russell’s self-interest in making these assertions against the lack of evidence supporting 

them and the surrounding circumstances suggesting that no 

such communications were actually made. While trial counsel 

27 State v. Dalton, supra note 1.

28 Daniel A. Morris, Nebraska Trials § 21:21 (2020).

29 See Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019). See, 

also, State v. Dalton, supra note 1.

30 Burgardt v. Burgardt, supra note 29.

31 Id.
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acknowledged that it was “possible” Russell left a voicemail 

requesting he file an appeal, trial counsel generally did not 

recall such a request, via voicemail or letter, and trial counsel 

did not indicate a reason why he would have no memory of 

such a request had it in fact been made. At the same time, 

Russell failed to produce any record of the alleged telephone 

call, despite the availability of call logs. Russell also failed to 

produce testimony or documentation that the letter attached 

to his deposition had been properly addressed, stamped, and 

mailed, and he gave no explanation for this failure.

Based on the record before us, we conclude that the district 

court did not clearly err in finding that Russell did not direct 

trial counsel to file a direct appeal. Because the court correctly 

found trial counsel was not asked to file an appeal, trial counsel was not deficient in allegedly not doing so. In view of this 

disposition, we need not consider prejudice.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed.