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State of Nebraska, appellee, v. 

Susan M. DeJong, appellant.

___ N.W.2d ___

Filed December 18, 2015. No. S-15-028.

1. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

2. Effectiveness of Counsel: Appeal and Error. 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: Constitutional Law: Appeal and Error. In appeals 

from postconviction proceedings, an appellate court reviews de novo 

a determination that the defendant failed to allege sufficient facts to 

demonstrate a violation of his or her constitutional rights or that the 

record and files affirmatively show that the defendant is entitled to 

no relief.

5. Postconviction: Appeal and Error. Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law.

6. Judgments: Appeal and Error. When reviewing questions of law, 

an appellate court resolves the questions independently of the lower 

court’s conclusion.

7. 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.

8. ____: ____: ____. A court must grant an evidentiary hearing to resolve 

the claims in a postconviction motion when the motion contains factual 
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allegations which, if proved, constitute an infringement of the defendant’s rights under the Nebraska or federal Constitution.

9. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively 

show that the defendant is entitled to no relief, the court is not required 

to grant an evidentiary hearing.

10. Constitutional Law: Effectiveness of Counsel. A proper ineffective 

assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

11. Effectiveness of Counsel: Proof: Appeal and Error. To prevail 

on a claim of ineffective assistance of counsel under Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

the defendant must show that his or her counsel’s performance was 

deficient and that this deficient performance actually prejudiced the 

defendant’s defense.

12. Effectiveness of Counsel: Proof: Words and Phrases: Appeal 

and Error. To show prejudice under the prejudice component of the 

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

674 (1984), test, the defendant must demonstrate a reasonable probability that but for his or her counsel’s deficient performance, the result of 

the proceeding would have been different. A reasonable probability does 

not require that it be more likely than not that the deficient performance 

altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome.

13. Effectiveness of Counsel. A court may address the two prongs of the 

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

674 (1984), test, deficient performance and prejudice, in either order.

14. Postconviction. The need for finality in the criminal process requires 

that a defendant bring all claims for relief at the first opportunity.

15. Postconviction: Appeal and Error. It is fundamental that a motion 

for postconviction relief cannot be used to secure review of issues 

which were known to the defendant and could have been litigated on 

direct appeal.

16. ____: ____. A motion for postconviction relief cannot be used to secure 

review of issues which were or could have been litigated on direct 

appeal, no matter how those issues may be phrased or rephrased.

17. Postconviction: Due Process. A postconviction motion asserting a persuasive claim of actual innocence might allege a constitutional violation, 

in that such a claim could arguably amount to a violation of a movant’s 

procedural or substantive due process rights.

18. Postconviction: Constitutional Law: Presumptions: Proof. In order to 

trigger a court’s consideration of whether continued incarceration could 
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give rise to a constitutional claim that can be raised in a postconviction motion, there must be a strong demonstration of actual innocence, 

because after a fair trial and conviction, a defendant’s presumption of 

innocence disappears.

Appeal from the District Court for Jefferson County: Paul

W. Korslund, Judge. Affirmed.

Susan M. DeJong, pro se.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman 

for appellee.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, Cassel, and Stacy, JJ.

Miller-Lerman, J.

NATURE OF CASE

Susan M. DeJong was convicted after a jury trial of first 

degree murder and use of a deadly weapon to commit a felony 

for the death of her husband, Thomas DeJong (Tom). She was 

sentenced to a term of life imprisonment for the first degree 

murder conviction and a term of 50 to 50 years’ imprisonment 

for the use of a deadly weapon to commit a felony conviction, 

to be served consecutively. On direct appeal, we affirmed 

Susan’s convictions and sentences. See State v. DeJong, 287 

Neb. 864, 845 N.W.2d 858 (2014). On September 26, 2014, 

Susan filed a pro se motion for postconviction relief in the 

district court for Jefferson County. On December 18, the 

district court filed an order in which it denied the motion 

without holding an evidentiary hearing. Susan appeals. Upon 

our review, including Susan’s motion, her brief, and the files 

and records of this case, we determine that there is no merit 

to Susan’s assignments of error, and we therefore affirm 

the decision of the district court in which it denied Susan’s 

motion for postconviction relief without holding an evidentiary hearing.
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STATEMENT OF FACTS

The events underlying Susan’s convictions and sentences 

involve the death of her husband, Tom. In our opinion regarding Susan’s direct appeal, we set forth the facts as follows:

BACKGROUND

On March 11, 2011, Susan called the 911 emergency 

dispatch service at approximately 4 p.m. Susan told the 

operator that her husband, Tom, was not breathing and 

was cold to the touch. Susan stated that Tom had gone 

to South Dakota to be with his “whore” and came home 

“all . . . beat up.” The operator had Susan perform cardiopulmonary resuscitation on Tom until the emergency 

units arrived.

When emergency personnel arrived at the DeJong 

home, Susan was hysterical and she repeatedly stated that 

the “whore” had done this to Tom. Emergency personnel immediately began resuscitation efforts. Tom was not 

breathing, and there was no heartbeat. Dried blood was 

around his nostrils and the top of his mouth. His hands, 

arms, feet, legs, torso, and head were visibly scratched, 

cut, and deeply bruised. Emergency personnel were able 

to help Tom regain a heartbeat.

Tom was taken to the Jefferson Community Health 

Center and was later transported by ambulance to Bryan 

Health, west campus trauma center, in Lincoln, Nebraska 

(Bryan hospital). Laboratory reports and blood tests 

indicated a threat of imminent heart and renal failure. 

A chest x ray indicated multiple rib-sided fractures and 

a partially collapsed lung. A CAT scan revealed the following injuries: a swollen brain; a tremendous amount 

of fractures within the chest cavity, including the spine, 

the ribs, and the scapula; a comminuted fracture of 

the nose; and a possible fracture of the hyoid bone in 

the neck.

The treating physicians concluded that Tom would 

not be able to recover from the injuries. The physicians 
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asked Susan for permission to remove Tom from life 

support, and she granted the request. Tom passed away 

shortly thereafter.

Susan’s Statements

at Hospitals

At the Jefferson Community Health Center, Rebecca 

McClure, a nurse, stayed with Susan while waiting for 

Tom’s prognosis. The two of them waited in a small quiet 

room located outside of the emergency room.

Susan told McClure that she had not seen Tom since 

Wednesday and that he came home that Friday morning. She stated that Tom was “stumbling around in the 

house” and that the noise woke her up. Tom had been 

beaten, was cold, and quickly became unresponsive. 

Susan told McClure that Tom had spent the past days visiting the “whore” in South Dakota. According to Susan, 

the “whore” would beat Tom with tie-down straps from 

Tom’s semi-truck. Susan also stated that the “whore” and 

Tom were trying to kill her by giving her a sexually transmitted disease (STD). McClure personally drove Susan 

home after Tom was transported to Lincoln, and Susan 

then drove herself to Bryan hospital in Lincoln.

Investigator Wendy Ground from the Lincoln Police 

Department arrived at Bryan hospital at approximately 

10:20 p.m. Ground questioned Susan about Tom’s injuries. Susan told Ground that Tom had returned home that 

morning. He looked pale, and he had stated that he did 

not feel well. Susan told Ground that Tom was apologetic and that he had told her he had made a mistake. 

According to Susan, Tom said his alleged mistress did 

not love him and that the mistress went “psycho” and 

wanted to kill him. Susan told Ground that the mistress 

had previously tried to kill Susan by cutting her vehicle’s 

brake lines.

Ground asked Susan about Tom’s medical history. 

Susan stated that Tom had been feeling weak and clumsy 
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for the past 21⁄2 years. Susan stated that he was diagnosed 

with an STD 11⁄2 years ago. Susan also explained that the 

current cut on Tom’s lip was caused by a pipe when Tom 

was working with a cow.

After Tom had been declared dead, Ground asked 

Susan if she was willing to go to the police headquarters 

for an interview. Susan agreed.

Interrogation of Susan at

Police Headquarters

After arriving at the police headquarters at approximately 1 a.m., Ground placed Susan in an interview 

room. Ground left the room, and Susan began working on 

her written statement. Susan was left alone in the interview room from 1:12 to 3:04 a.m.

At approximately 3:04 a.m., Ground reentered the interview room. At 3:08 a.m., Ground read Susan her Miranda

rights and Susan told Ground that she understood her 

rights. Susan proceeded to sign the Miranda waiver.

Ground began the interrogation by asking general questions about Tom’s injuries and his whereabouts for the 

week. Susan repeated the facts as she had stated at 

Bryan hospital.

Susan stated Tom went to Seward, Nebraska, on 

Monday, March 7, 2011, for a job application and from 

there he went directly to South Dakota. Susan told Ground 

that she had talked to him on her cell phone on Monday, 

March 7, for approximately 44 minutes. According to 

Susan, Tom indicated that he wanted to be with “that 

thing.” On March 8, Susan and Tom talked for 5 minutes, 

and Susan told Ground that she likely screamed at him 

because she was not happy.

At approximately 3:22 a.m., Susan told Ground that 

she was exhausted. But she continued to talk. Susan 

explained that the next time she heard from Tom was on 

Friday morning. She again repeated the same story of 

what had occurred that day. At approximately 3:34 a.m., 
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Susan stated that she needed some sleep because she 

was exhausted.

The questioning continued, and Susan stated that she 

had confronted Tom when he came home on Friday 

morning because she was angry. Susan told Ground 

that she cannot say for sure that Tom drove home and 

that she does not know how he could have driven in 

his condition.

At approximately 3:41 a.m., Investigator Robert Farber 

entered the room and silently sat at the table. At 3:42 

a.m., Susan began crying, and at 3:43 a.m., she stated, 

“I’m tired. I wanna go to bed, please. I’m done, I wanna 

go to sleep. I’m tired.” Farber immediately interrupted 

her and introduced himself. Farber then told Susan that he 

had “a couple questions.”

Farber began questioning. He asked Susan when Tom 

and she were married and whether they have common 

children. Farber questioned Susan about her relationship 

with Tom and about Tom’s alleged relationship with his 

mistress. The questions became more directed and intense 

as Farber continued the interrogation.

In response to the questioning, Susan stated that everybody called Tom a “wheeney” and that he took the beatings from his alleged mistress. Susan also stated that Tom 

had slapped her in Minnesota. Susan explained that she 

was arrested for that incident because she decided to not 

tell the police that Tom had slapped her.

At approximately 4 a.m., Susan again stated, “I’m 

getting tired, I’m done, I’m tired.” Farber interjected 

again before Susan completed the statement. Farber asked 

Susan if she had anything to do with the injuries. Susan 

answered no; Farber continued to ask questions, and 

Susan continued to answer. For the next 18 minutes, the 

questions from Farber became more pointed and directed.

At 4:18 a.m., Susan exclaimed, “I want a lawyer, 

please. I’m tired of this.” “I will talk [to] them and they, 

I want some sleep, please.” “I didn’t, I will, I just wanted 
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to live and I loved him so much, and I just wanted to live 

and he wanted a divorce, and I just wanted to live with 

him. . . . I loved him.” Farber said “okay” and left the 

room almost immediately. Ground followed.

Susan laid her head down at the table for approximately 

30 seconds, stood, and grabbed her keys to leave. Susan 

opened the door to the interview room and asked to have 

a cigarette. Ground told her to take a seat. Susan turned 

around and mumbled, “So sorry. I’m sorry.” Ground 

apparently paused to hear what Susan said and then reentered. Ground silently took a seat at the table in the same 

spot she sat during the entire interrogation.

Susan talked uninterrupted for nearly 8 minutes with 

a slow delivery, while Ground sat and listened. Susan 

stated: “So sorry. I’m sorry. (inaudible) beat by that 

whore. He used to come home, bruises, bloody nose, 

black eyes. He’s got scars on his back that are not from 

me. He’s got marks on him that are not from me. He’d 

come home and, well, he’d tell his boss (inaudible) on 

the trip. He’d tell me he did it on the truck going to 

(inaudible). Then he’d turn around, go to Sioux Falls 

and that Gloria. Oren called me today and asked if I’d 

seen your face. It’s all bruised up. I told him that fuckin’ 

cunt you’re married to did it. (inaudible) I didn’t ever 

touch him. Didn’t ever touch him. When I slapped him 

in Fairbury, not Fairbury, in (inaudible), what the name 

of that town? I can’t think of it, Burger King, God. The 

car pulls in there, parked, to get a burger but on the way 

in is when he finally admitted he’d been sleeping with 

that thing. Finally admitted it. He got our money, went 

into Burger King. I got out of the truck and proceeded 

to walk across the highway to the other little truck stop 

across the road and he followed me over there. Came 

up to me, grabbed one of the dogs and I picked my leg 

up. Leave it alone. And then I proceeded, I walked, was 

walking, trying to call my son to come get me but he 
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wouldn’t answer his stupid phone. Standing there at the 

back, I’m like I’m going home. I’m going home. Well, 

fine, I’ll take you home. I don’t know. I’m going home. 

That’s when he shoved me into the wall and cracked me 

in the jaw. And I slapped him. Some kid walked out of 

Burger King. So I’m yowling so he called the cops. Next 

thing I know they’re showing up. He said I’ll take you 

home, I’ll take you home. Fine, I’ll take you home. Fine, 

I’ll take you home. Then we got in the truck. Next thing I 

know there’s the cops. Everybody thinks Tom is such an 

innocent man. He used to be. He used to be the most loving, gentle, sweet man you could meet. Till he met that 

(inaudible). Then they started molesting children. I still 

say I think he was on drugs. Cuz you don’t drive 14, 16 

hours with nothing. My Blazer for one hasn’t ever had a 

problem with the brakes. I hit a deer. Well, come to find 

out my front brakes are disconnected. Huh. Excuse me. I 

don’t know. I just know that (inaudible) no more getting 

shoved. (inaudible) I didn’t poison him. He is what he is 

from what he plays with. (inaudible) He told me he was 

going to kill me. (inaudible) kill me. (inaudible) Am I 

under arrest?”

Ground told Susan that the decision for arrest was up 

to the police department in Fairbury, Nebraska. Ground 

answered some questions from Susan, but did not ask 

Susan any questions.

Susan continued: “Self-defense, because I don’t bruise 

and he does. That’s pretty much the way that goes. (inaudible) she did (inaudible) to him. For what she did to 

him. He wasn’t the man I married. What I told you about 

it is all true. It does deal drugs, (inaudible) drugs, go 

psycho. And it went psycho on him more than once. Does 

molest children. Little boy’s name’s Chris. . . . I have to 

be arraigned within 24 hours. I know that, why not. Just 

like the deal in Minnesota. And he’ll walk away scott 

free. And there’s a lot of the injuries he had [that were] 
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not from me. The worse one he get that I can remember 

is falling off the ladder. That one scared me. Why didn’t 

I just leave. Why didn’t I just run. Because he always 

showed up. He always showed up. (inaudible) I need 

some sleep. (inaudible) so tired. I just, I just need somebody to talk for me right now, I’m so tired. I’m too tried. 

I haven’t (inaudible) for two days. Could you? I want 

a cigarette.”

Ground responded: “Okay, just be patient with us.” 

Susan continued: “No, I want a cigarette. I want a cigarette. Then He did take off and go back to S.D. (inaudible) 

either. It’s all partly true. The whole story is partly true. 

I don’t know. He came back beaten up from S.D. too. I 

didn’t hit him in the head. (inaudible) when he fell on it. 

I stepped on it. That was after he threw it at me is how it 

ended up there. I’m not under arrest. I can go outside and 

have a cigarette if I want.”

After a back and forth conversation between Susan 

and Ground, Susan stated, without being questioned: 

“(inaudible) you’ll arrest me because that’s the way it 

always goes. Let’s (inaudible) her and she’s the one 

that always gets in trouble. (inaudible) self defense, self 

preservation. They made sure of it. It takes a heck of 

a hit for me to bruise but . . . make sure that and Tom 

knew it.”

Shortly thereafter, an unidentified female officer 

entered the room. Ground and the female officer took 

pictures of Susan’s bruised hands and forearms. The interrogation video ends. Susan was subsequently arrested 

and charged with first degree murder and use of a deadly 

weapon to commit a felony.

Hearing on Motion to

Suppress Interrogation

On June 13, 2011, Susan filed a motion to suppress her 

statements given on March 12, which she argued were 

obtained in violation of her constitutional rights. Susan 
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argued that there were three different statements made by 

her that invoked her constitutional right to end the interrogation. At 3:43 a.m., Susan stated, “I’m done, I wanna 

go to sleep. I’m tired.” At 4 a.m., Susan stated, “I’m 

getting tired, I’m done, I’m tired.” And the last relevant 

statement was made at 4:18 a.m., when Susan stated, “I 

want a lawyer, please. I’m tired of this.”

At the hearing, the district court accepted a joint stipulation that Susan was in custody at the time of the 

interrogation.

In its order, the district court found Susan’s first 

two statements were not unequivocal and unambiguous 

statements that she wanted to cut off the questioning. 

Additionally, the court found that all of the statements 

made by Susan after exercising her right to counsel were 

voluntarily made and were not the result of the functional 

equivalent of interrogation.

Susan filed a motion to reconsider. Upon reconsideration, the district court suppressed the statements made 

from 4 to 4:18 a.m., because her statement that she 

was “done” was unequivocal and unambiguous. However, 

statements made before 4 a.m. were admissible, because 

Susan had not yet invoked her right to end questioning. 

The district court found that statements made after 4:18 

a.m. were admissible, because they were not the result of 

questioning or the functional equivalent.

Rule 404 Hearing

On January 26, 2012, the State filed an “Amended 

Motion to Conduct Hearing Pursuant to Neb. Rev. Stat. 

§ 27-104 Regarding the Admissibility of § 27-404(2) 

Evidence.” A hearing was held on the same date (rule 

404 hearing), and evidence was accepted. There are three 

prior “bad acts” that the State wanted admitted for limited purposes.

For the first prior “bad act,” the State offered the 

testimony of then-police officer Nicholas Schwalbe of 
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Jackson, Minnesota. Schwalbe testified that on May 31, 

2010, he received a call of a fight in progress at a truckstop. He identified the driver as Tom and the passenger 

as Susan. Schwalbe observed that Tom had a black eye, 

a fresh wound under that eye, and scabbing on his face, 

ear, and neck, as well as spots of fresh blood rolling 

down his neck. Susan was placed under arrest. Susan 

told Schwalbe that they were fighting because Tom was 

cheating on her.

The second event occurred in August 2010. James 

Platt, Susan’s son, and Sharon Platt, James’ wife, testified 

that Susan and Tom unexpectedly came to live with them 

that August. Susan told them that she and Tom needed to 

get away from their home, which was in South Dakota at 

the time. Both James and Sharon testified that Tom was 

“in bad shape.” Tom’s face was beaten and swollen, and 

he had bloody ears. When asked, Susan told James that 

the injuries were caused by a truckstop robbery. James 

testified that Susan had for years believed Tom was 

unfaithful with someone from work. Shortly thereafter, 

James testified that Susan and Tom moved to Jefferson 

County, Nebraska.

The third event occurred in late 2010. James and 

Sharon visited Susan and Tom at their new home in 

Jefferson County. Both testified that Tom looked “‘terrible.’” He had cuts on his face and a split lip. Sharon 

asked Tom about his facial injuries, and Susan replied for 

Tom that the injuries happened at work when “the pigs 

got him.”

At the hearing, the State also offered the testimony of 

McClure, Brian Bauer, and Ground. McClure testified 

about Susan’s story that Tom had gone to South Dakota 

“probably up visiting his girlfriend.” She testified about 

what Susan had told her at the hospital.

Bauer, who had employed Tom on his farm in Jefferson 

County, testified that Tom would come to work every 2 to 
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3 weeks visibly sore with bruises on his face, black eyes, 

split lips, and marks on his hands. According to Bauer, 

these injuries did not occur at work.

Ground testified that at the hospital, Susan stated that 

Tom’s facial injuries and split lip were caused by working 

on the farm. Susan told her that the split lip was caused 

by a pipe when Tom was working with a cow.

Based on the evidence presented, the district court 

found that the May 31, 2010, incident in Minnesota was 

admissible as it pertains to the injuries observed on Tom 

and to Susan’s statements as to the reason for their altercation, for the specific and limited purposes of demonstrating the existence of motive and intent. The district 

court further ordered that all three incidents were admissible for the specific and limited purposes of negating, 

or demonstrating the existence of, intent, identity of the 

perpetrator, and absence of mistake or accident.

Trial

A jury trial was held on February 21, 2012. The 

State offered the testimony of the 911 dispatcher, the 

responding emergency personnel, the investigating officers, Farber, Ground, McClure, Bauer, Schwalbe, and 

James and Sharon. The State offered the video interrogation of Susan at the police headquarters, with the footage 

from 4 to 4:18 a.m. redacted. The three prior bad acts 

that were the subject of the rule 404 hearing were also 

presented to the jury. In addition, the following evidence 

was presented.

Evidence Found at Home

The DeJong home was searched on March 12, 2011. 

Tom’s Chevrolet Blazer was parked in the detached 

garage. No evidence was found in the garage or either in 

or on the Blazer. Susan’s white pickup truck was processed on March 15. Tom’s blood was found on the hood 

and fender of the truck. Inside the pickup truck, there was 

a red duffelbag and a blue denim bag.
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In the red bag, investigators found women’s clothing, 

a yellow hammer, a blue hammer, toiletry items, men’s 

pajamas, and Tom’s wallet. The blue bag contained a 

computer, a lug wrench, and a cell phone.

DNA tests were conducted on this evidence, and results 

showed that the blue hammer had a mixture of Tom’s and 

Susan’s DNA. Susan’s DNA was found on the handle of 

the yellow hammer, and a mixture of DNA was found in 

a blood sample on the claw area of the yellow hammer. 

Tom was the major contributor of that DNA. Tom’s DNA 

was found in the bloodstains on the men’s pajamas.

In the house, at least 70 blood drops were found 

throughout. No large pools of blood were found. Blood 

was found in the living room, kitchen, bathroom, dining 

room, and the master bedroom. Blood was also found on 

clothing items seized from the laundry room. A forensic 

scientist testified to which stains were left by Tom, by 

Susan, or by a mixture of the two. Tom’s DNA was found 

repeatedly in the bloodstains throughout the house.

Medical Testimony

Dr. Craig Shumard was working in the emergency 

room when Tom was brought by ambulance to the 

Jefferson Community Health Center. Shumard described 

Tom’s injuries to the jury and testified that the injuries 

did not arise from natural causes or accidents. He testified that Tom’s injuries were inconsistent with typical 

farmwork injuries.

Dr. Stanley Okosun, a trauma surgeon at Bryan hospital, testified to his treatment and care of Tom. Okosun 

testified that Tom’s high levels of myoglobin indicated 

that the trauma inflicted on Tom occurred 12 to 24 hours 

prior to his arrival at Bryan hospital. Okosun testified 

that Susan told him that Tom’s bruising was caused by 

working on a pig farm. Okosun testified that the explanation was highly unlikely. He further testified that with the 

injuries suffered, Tom could not have driven home on the 
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Friday morning before his death. According to Okosun, 

Tom’s injuries could not have been caused by natural 

causes or a car accident. He attributed Tom’s injuries to 

blunt force trauma caused by an assault.

Dr. Juris Purins was the radiologist who reviewed the 

CAT scan performed on Tom at Bryan hospital. The CAT 

scan revealed unusually severe head and brain injuries 

which are typically associated with a patient’s not breathing. Tom’s nose had a comminuted fracture, which means 

it was fractured in multiple places. Tom had a dislocation 

of the lens in his right eye, which was another unusual 

injury. Purins described a tremendous number of fractures within the chest cavity, including the spine, ribs, 

and scapula. One of the fractures was an old injury but 

the rest were recent. Purins also identified a fracture of 

the hyoid bone in the neck. Purins testified that the fractured hyoid bone, along with subcutaneous emphysema, 

indicated a potential choking injury. Purins opined that 

the injuries were the result of a “pretty severe beating,” 

maybe from a hammer, and that the injuries would have 

prevented Tom from driving or walking.

Dr. Jean Thomsen was the pathologist who performed 

Tom’s autopsy. Thomsen stated that she had “never seen 

someone so extensively injured.” After the autopsy, 

Thomsen found the cause of death to be “[b]lunt force 

trauma to the head, neck, chest and extremities.” In her 

opinion, Tom’s death was a homicide.

In her autopsy report, Thomsen found defects on Tom’s 

hands and arms that she described as defensive wounds. 

Thomsen found that the injuries were caused by some 

type of instrument. Thomsen testified that the injuries 

were C-shaped and semicircular and may have been 

caused by a hammer. The autopsy also confirmed a fracture of the hyoid bone in the neck, but she did not find 

other signs usually associated with manual strangulation 

beyond neck bruising.
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Defense counsel offered the expert testimony of Dr. 

Robert Bux, a forensic pathologist. Bux agrees that this 

case was a homicide caused by multiple instances of blunt 

force trauma. He stated that he has “never personally seen 

a case like this with so much soft tissue contusion.” Tom 

was “really beaten.” Bux opined that the injuries occurred 

at least 24 hours prior to death, and maybe as many as 36 

hours prior. He agrees that the wounds on Tom’s hands 

and arms indicate that Tom was attempting to ward off 

an attack.

Bux disagreed that a clawhammer was used, because 

there were no circle bruises from the hammerhead, no 

raking marks from the claw, and no pattern of contusions consistent with the side of a hammer. He opined 

that based on a lack of hemorrhaging around the hyoid 

bone, the bone had been fractured during the autopsy. 

He argued that the brain injuries were caused not by the 

blunt force trauma but by Tom’s not breathing while still 

at home. Bux also testified that Tom would have been 

able to walk and talk immediately after the beating he 

suffered, but that his condition would have continued to 

deteriorate. Bux also opined that because of the relatively 

small amounts of blood found in the home, the assaults 

that caused Tom’s facial injuries likely did not occur in 

the home.

Instant Messenger Chats

An investigator seized Susan’s computer and found 

relevant Internet instant messenger chats. James, Susan’s 

son, confirmed the messages were sent to him from Susan 

under her handle “the_piglady.” On September 24, 2010, 

“the_piglady” wrote in reference to Tom, “i can’t do 

this . . . staying here anymore,” “i’ve come to realize i 

literally hate him.” She continued, “now i wish he was 

dead . . . i really hate him more than i have ever hated 

ANYONE.” On February 14, “the_piglady” wrote that 

“i’m looking at getting rid of tom” and “i can’t take or do 

this anymore.”
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Tom’s Whereabouts

Week of His Death

Beyond testifying about Tom’s injuries while working 

at the farm, Bauer testified that on the Tuesday before his 

death, Tom worked a full day. Tom was bruised and had 

trouble getting around. On Wednesday and Thursday, Tom 

called in sick. On Thursday, Bauer drove by the house 

and noticed that both vehicles owned by the DeJongs 

were at the house, including Tom’s Blazer.

James testified that he had a telephone conversation 

with Susan on the Thursday morning before Tom’s death. 

James asked Susan what size tires were on Susan’s white 

pickup truck. James testified that Susan asked someone 

else in the house. James assumed that the person was Tom 

and was surprised that Tom was not working. James testified that Susan did not mention in that telephone call that 

Tom was in South Dakota.

Cell phone records were also introduced into evidence. 

On March 8, 2011, the Tuesday before Tom’s death, there 

were four calls from Susan’s cell phone to Tom’s cell 

phone and the calls “hit” or “pinged” off the nearby cell 

towers in the Fairbury and Hebron, Nebraska, areas. On 

Wednesday and Thursday, there were calls from Tom’s 

cell phone to Bauer’s cell phone. Both calls “hit” off cell 

towers in the Fairbury and Hebron areas.

Alleged Mistress

The woman who Susan alleged was Tom’s mistress 

also testified at trial. The woman worked as a dispatcher 

for a small trucking company in South Dakota. Tom had 

been a truckdriver for that company. The woman testified 

that she and Tom had a working relationship only. She 

never spent time with Tom socially. She never had any 

type of sexual contact with Tom. She testified that she 

had no reason to want to hurt Tom or Susan. The woman 

testified that from March 8 to 11, 2011, she was on a trip 

to Minnesota and had no contact with Tom. She testified 

that she did not inflict Tom’s injuries.
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Convictions and Sentences

After deliberation, the jury found Susan guilty on 

count I, murder in the first degree, and guilty on count 

II, use of a deadly weapon to commit a felony. Susan 

was sentenced to life imprisonment for count I and 50 

to 50 years’ imprisonment on count II, to be served 

consecutively.

State v. DeJong, 287 Neb. 864, 867-80, 845 N.W.2d 858, 863-

71 (2014).

Susan was represented both at trial and on direct appeal by 

lawyers from the same office, the Nebraska Commission on 

Public Advocacy. In our opinion on direct appeal, we restated 

and summarized Susan’s assignments of error as follows:

[T]he district court erred by (1) admitting at trial the 

statements she made to investigators between 3:43 to 

4 a.m.; (2) admitting at trial the statements she made 

to investigators after 4:18 a.m.; (3) admitting at trial 

evidence of Tom’s injuries on prior occasions and her 

related statements concerning the injuries, because there 

was no clear and convincing evidence that she had committed a crime, wrong, or act with respect to those 

injuries; and (4) admitting at trial evidence of Tom’s 

injuries on prior occasions and her related statements 

concerning the injuries, because the probative value of 

the evidence was substantially outweighed by the danger 

of unfair prejudice.

Id. at 880, 845 N.W.2d at 871-72.

With respect to Susan’s assignments of error on direct 

appeal, we determined that her statements made from 3:43 

to 4 a.m. should have been suppressed, but we concluded 

that the error was harmless. We further determined that her 

statements made after 4:18 a.m. were not required to be suppressed. With respect to the evidence admitted regarding the 

prior bad acts, for purposes of the direct appeal, we assumed 

without deciding that the admission of the evidence was 

error; however, we found the admission of the evidence to be 
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harmless. Based on these determinations, we affirmed Susan’s 

convictions and sentences on direct appeal.

On September 26, 2014, Susan, acting pro se, filed a 

motion for postconviction relief. As we read her motion, Susan 

alleged that she received ineffective assistance of counsel 

because counsel failed to “investigate further” and question 

more extensively numerous witnesses who testified at trial 

and failed to argue on direct appeal that there was insufficient 

evidence to support her convictions and sentences. Susan also 

alleged, as we read her motion, that the district court erred 

when it admitted evidence related to prior bad acts and other 

evidence. Susan also alleged in her motion that she is actually innocent.

On December 18, 2014, the district court denied Susan’s 

motion for postconviction relief without holding an evidentiary hearing.

Susan appeals.

ASSIGNMENTS OF ERROR

Susan assigns, restated and consolidated, that the district 

court erred when it denied her motion for postconviction relief 

without holding an evidentiary hearing on her claims that (1) 

she received ineffective assistance of counsel when counsel 

failed to further investigate and ask questions of the witnesses 

and failed to argue on direct appeal that the evidence presented 

at trial was insufficient; (2) the district court improperly 

admitted evidence generally and, in particular, evidence of 

prior bad acts; (3) she is actually innocent; and (4) the district 

court improperly denied her motion for new trial.

STANDARDS OF REVIEW

[1-3] A claim that defense counsel provided ineffective 

assistance presents a mixed question of law and fact. State 

v. Thorpe, 290 Neb. 149, 858 N.W.2d 880 (2015). When 

reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court 

for clear error. Id. With regard to the questions of counsel’s 
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performance or prejudice to the defendant as part of the twopronged 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. State v. Thorpe, supra.

[4] In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant 

failed to allege sufficient facts to demonstrate a violation of his 

or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. State v. 

Huston, 291 Neb. 708, 868 N.W.2d 766 (2015).

[5,6] Whether a claim raised in a postconviction proceeding 

is procedurally barred is a question of law. State v. Thorpe, 

supra. When reviewing questions of law, an appellate court 

resolves the questions independently of the lower court’s conclusion. Id.

ANALYSIS

Relevant Postconviction Law.

We begin by reviewing general propositions relating to postconviction relief and ineffective assistance of counsel claims 

before applying those propositions to the claims alleged and 

argued by Susan in this appeal. We note that because Susan 

was represented both at trial and on direct appeal by lawyers 

from the same office, the Nebraska Commission on Public 

Advocacy, this postconviction proceeding is effectively her 

first opportunity to claim that her trial counsel provided ineffective assistance of counsel. See State v. Fox, 286 Neb. 956, 

840 N.W.2d 479 (2013).

[7] The Nebraska Postconviction Act, Neb. Rev. Stat. 

§ 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2014), provides 

that postconviction relief is available to a prisoner in custody 

under sentence who seeks to be released on the ground that 

there was a denial or infringement of his or her constitutional 

rights such that the judgment was void or voidable. State v. 

Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015). Thus, in 

a motion for postconviction relief, the defendant must allege 
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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. 

State v. Crawford, supra.

[8,9] A court must grant an evidentiary hearing to resolve the 

claims in a postconviction motion when the motion contains 

factual allegations which, if proved, constitute an infringement of the defendant’s rights under the Nebraska or federal 

Constitution. State v. Huston, supra. If a postconviction motion 

alleges only conclusions of fact or law, or if the records and 

files in the case affirmatively show that the defendant is 

entitled to no relief, the court is not required to grant an evidentiary hearing. Id.

[10-13] A proper ineffective assistance of counsel claim 

alleges a violation of the fundamental constitutional right 

to a fair trial. State v. Crawford, supra. To prevail on a 

claim of ineffective assistance of counsel under Strickland 

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

674 (1984), the defendant must show that his or her counsel’s 

performance was deficient and that this deficient performance 

actually prejudiced the defendant’s defense. State v. Crawford, 

supra. To show prejudice under the prejudice component of 

the Strickland test, the defendant must demonstrate a reasonable probability that but for his or her counsel’s deficient 

performance, the result of the proceeding would have been 

different. State v. Huston, supra. A reasonable probability 

does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the 

defendant must show a probability sufficient to undermine 

confidence in the outcome. Id. A court may address the two 

prongs of this test, deficient performance and prejudice, in 

either order. Id.

Further Investigation and 

Questioning of Witnesses.

Susan alleges that her counsel was ineffective at trial for 

failing to further investigate and ask more questions of certain 
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witnesses at trial, including Rebecca McClure, the nurse who 

gave Susan a ride home; Dr. Craig Shumard, an emergency 

room physician; Wendy Ground, a police investigator who 

interviewed Susan; James Platt and Sharon Platt, Susan’s son 

and daughter-in-law; and Brian Bauer, Tom’s employer. We 

determine that the district court correctly rejected this claim 

without an evidentiary hearing.

As we read Susan’s motion for postconviction relief and 

her appellate brief, Susan argues that if trial counsel had done 

further investigation or had asked more questions of these 

and other witnesses on cross-examination, it would have been 

shown that on the night Tom was hospitalized, Susan did not 

make statements that she had injured Tom and that there was 

an effort by others to keep Susan from seeing Tom. Susan 

also contends that further questioning would have highlighted 

inconsistencies in the witnesses’ testimony. Susan further 

argues that more intensive questioning of the witnesses would 

have revealed to the jury that she cared for and was concerned 

for Tom and that she had a good relationship with Tom. Thus, 

Susan contends that further questioning would have portrayed 

her in a more sympathetic light or, in any event, cast doubt on 

the degree of credibility to be accorded to the witnesses.

Susan makes no specific allegations of what further investigation would have uncovered or how such investigation and 

further questioning would, with reasonable probability, have 

resulted in her acquittal. Her allegations are speculative and, in 

many cases, pose rhetorical “what if” questions as to how the 

trial might have unfolded if the examinations had been phrased 

differently or, in some cases, proposed lines of questioning. 

Speculative allegations are an insufficient basis for postconviction relief. See State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 

52 (2013). Susan did not allege facts which, if proved, would 

constitute a violation of her constitutional rights.

Accordingly, we determine that Susan’s counsel was not 

deficient for allegedly failing to further investigate or ask more 

questions on cross-examination of the witnesses identified in 
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Susan’s motion. Susan is entitled to no relief on this claim. 

The district court did not err when it denied relief on this claim 

without an evidentiary hearing. We affirm this portion of the 

district court’s order.

Arguing Insufficient Evidence 

on Direct Appeal.

Susan alleges that her counsel was ineffective for failing to 

explicitly argue on direct appeal that the evidence presented at 

trial was insufficient to support her convictions for first degree 

murder and use of a deadly weapon to commit a felony. As we 

read her motion for postconviction relief and appellate briefs, 

Susan argues that there was a lack of sufficient evidence, 

because no one witnessed her kill Tom and little DNA evidence 

was recovered from various items, including items found in 

the search of the DeJong home. The district court correctly 

rejected this claim without an evidentiary hearing.

The records and files in this case refute Susan’s contention 

that there was not sufficient evidence to sustain her convictions. Contrary to Susan’s argument, this court necessarily 

considered the sufficiency of the evidence in our analysis of 

the errors asserted on direct appeal. There was extensive evidence presented at trial that demonstrated Susan’s guilt, and we 

set forth the evidence against Susan in our opinion on direct 

appeal by stating:

The State’s evidence demonstrated that Susan’s story 

that Tom was beaten by his alleged mistress was completely fabricated. The evidence presented at trial showed 

that Tom was home that week and never left for South 

Dakota.

Bauer, Tom’s boss, testified that Susan’s and Tom’s 

vehicles were at the DeJong home the day before Tom 

allegedly returned from South Dakota. Bauer testified 

that Tom had called in sick to work on that Wednesday 

and Thursday. Cell phone records confirm that those 

calls “pinged” off cell towers near the DeJong home and 

not in South Dakota. Susan’s son, James, testified that 
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he believed Tom was at the DeJong home on Thursday 

because of a telephone conversation he had with Susan 

that day. At trial, Susan presented no evidence that Tom 

had actually gone to South Dakota. Additionally, the 

alleged mistress testified that she and Tom never had an 

extramarital relationship, that Tom did not visit her that 

week, and that she did not cause his injuries.

Other evidence demonstrates Susan’s motive for killing Tom. During her hospital interview, Susan ranted 

about Tom and his “whore.” Susan alleged that Tom and 

that “whore” used drugs and molested children. Susan 

blamed the “whore” for ruining her relationship with 

Tom. Additionally, the State introduced Susan’s Internet 

instant messages in which Susan stated that she “hate[d]” 

Tom, that she wished he were dead, and that she was 

“looking at getting rid of” him.

The evidence at trial also showed that Susan may 

have been the only person with the opportunity to inflict 

Tom’s injuries. The medical testimony offered at trial 

established that many of Tom’s injuries were inflicted 

well within 72 hours of his death. That indicates that 

Tom’s injuries may have occurred any time after Tuesday. 

The evidence indicates that during those periods of time, 

Tom was at home with Susan. There was no evidence 

presented, other than Susan’s fabricated statements about 

South Dakota, that Tom left the home on Wednesday, 

Thursday, or Friday. There was no evidence presented 

that someone other than Susan had spent time with Tom 

after Tuesday.

The physical evidence also supported Susan’s guilt. 

All of the medical experts testified that Tom was severely 

assaulted and that his injuries were not caused naturally or by accident. His death was caused by blunt 

force trauma. Tom had defensive wounds on his hands 

and arms. Droplets of blood were found throughout the 

house, including on Susan’s clothes. A red bag containing 
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women’s clothes, men’s pajamas, Tom’s wallet, and two 

hammers and a blue bag containing a computer, a lug 

wrench, and a cell phone were found in Susan’s truck. 

Thomsen, the pathologist who performed Tom’s autopsy, 

testified that the injuries to Tom’s body were caused by 

some type of instrument and that the instrument could 

have been a hammer. After the interrogation, photographs 

and testimony established that Susan had bruises and 

sores on her palms that would be consistent with swinging a hammer. The bloodstained blue hammer recovered 

in Susan’s truck had a mixture of Tom’s and Susan’s 

DNA. Susan’s DNA was found on the handle. Tom’s 

DNA was found on the head of the hammer.

State v. DeJong, 287 Neb. 864, 885-86, 845 N.W.2d 858, 875-

76 (2014).

We have reviewed the record in this case, and given the 

extensive evidence presented at trial against Susan, we determine that the records and files in this case affirmatively show 

that Susan was entitled to no relief on her claim that there 

was insufficient evidence to support her convictions and that 

counsel’s appellate argument failed to present the issue for 

our consideration. In connection with this contention, Susan 

has failed to suggest any facts which, if proved, constitute an 

infringement on her constitutional rights. The record shows 

that Susan was not prejudiced by counsel’s conduct on direct 

appeal, and therefore, the district court did not err when it 

denied relief on this claim without an evidentiary hearing. We 

affirm this portion of the district court’s order.

Admission of Evidence Related 

to Prior Bad Acts.

Susan alleges that the district court erred at trial when it 

admitted evidence of prior bad acts, including evidence of 

Tom’s injuries on prior occasions and Susan’s statements 

related to those injuries. As we read her motion for postconviction relief and her appellate briefs, Susan contends that 
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this error resulted in a violation of her constitutional rights 

of due process, the presumption of innocence, her right to a 

fair trial, and her right to privacy. The district court correctly 

rejected her claim without an evidentiary hearing.

[14-16] To the extent Susan alleges that her constitutional 

rights of due process, the presumption of innocence, her right 

to a fair trial, and her right to privacy were violated when the 

evidence related to the prior bad acts was admitted at trial, 

this claim is procedurally barred. We have stated that the need 

for finality in the criminal process requires that a defendant 

bring all claims for relief at the first opportunity. State v. 

Watkins, 284 Neb. 742, 825 N.W.2d 403 (2012). It is fundamental that a motion for postconviction relief cannot be used 

to secure review of issues which were known to the defendant 

and could have been litigated on direct appeal. Id. And in 

this case, the prior bad acts issues were both known to and 

litigated by Susan on direct appeal. We have recently stated: 

“A motion for postconviction relief cannot be used to secure 

review of issues which were or could have been litigated on 

direct appeal, no matter how those issues may be phrased or 

rephrased.” State v. Thorpe, 290 Neb. 149, 156, 858 N.W.2d 

880, 887 (2015).

The issue of the admission at trial of evidence related to 

the prior bad acts was specifically addressed on direct appeal, 

where Susan argued that the district court erred when it admitted evidence of Tom’s injuries on prior occasions and her statements related to those injuries. For the purposes of the direct 

appeal, we assumed, without deciding, that the admission of 

this evidence was error. However, we determined that the erroneous admission of the evidence was harmless.

In the direct appeal, we began our harmless error analysis 

by “noting that the untainted, relevant evidence strongly supports Susan’s guilt.” State v. DeJong, 287 Neb. 864, 895, 845 

N.W.2d 858, 882 (2014). We further stated that “the untainted 

evidence not only provided evidence of guilt but also established Susan’s motive, her intent, her identity as the killer, 
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and the absence of mistake in Tom’s death.” Id. at 896, 845 

N.W.2d at 882. We also stated that “there is cumulative evidence establishing that Tom was often injured prior to his 

death and that the likely perpetrator was Susan.” Id. at 895-

96, 845 N.W.2d at 882. Accordingly, in determining that the 

admission of the evidence regarding the prior bad acts was 

harmless, we stated:

When viewed in relation to the whole record, the evidence erroneously admitted at the rule 404 hearing was 

insignificant. This evidence did not provide a crucial 

link to allow the State to make its case. In that sense, 

the evidence admitted at the rule 404 hearing was largely 

unnecessary. Thus, we hold that the erroneously admitted 

evidence was insignificant and did not materially influence the jury’s verdicts. Any error was harmless.

State v. DeJong, 287 Neb. at 897, 845 N.W.2d at 882-83.

Because the issue of the admission at trial of evidence related 

to the prior bad acts was raised and addressed on direct appeal, 

this claim is now procedurally barred. Therefore, although 

Susan rephrases her claim for postconviction purposes, we 

determine that the district court did not err when it denied postconviction relief on this claim without an evidentiary hearing. 

We affirm this portion of the district court’s order.

Actual Innocence.

Susan alleges that the district court erred when it denied her 

motion for postconviction relief without an evidentiary hearing, because she is actually innocent. The district court correctly rejected her claim without an evidentiary hearing.

[17,18] We have previously acknowledged the possibility 

that a postconviction motion asserting a persuasive claim of 

actual innocence might allege a constitutional violation, in 

that such a claim could arguably amount to a violation of a 

movant’s procedural or substantive due process rights. State 

v. Phelps, 286 Neb. 89, 834 N.W.2d 786 (2013). However, in 

order to trigger a court’s consideration of whether continued 
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incarceration could give rise to a constitutional claim that can 

be raised in a postconviction motion, there must be “‘[a] strong 

demonstration of actual innocence’” “‘because after a fair 

trial and conviction, a defendant’s presumption of innocence 

disappears.’” Id. at 94, 834 N.W.2d at 791, quoting State v. 

Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). Indeed, the 

U.S. Supreme Court has held that the threshold is “‘extraordinarily high.’” Id. at 94, 834 N.W.2d at 791-92, quoting 

Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 

2d 203 (1993).

In support of her claim that she is actually innocent, Susan 

relies heavily on the assertion that there were no direct witnesses to Tom’s murder. She states that “[n]o one ever witnessed anything, verbally or physically, to prove absolutely 

without a doubt” that she murdered Tom. Brief for appellant at 

6. Susan also argues that there was insufficient DNA or other 

physical evidence found in various locations, including the 

DeJong home, to link her to Tom’s murder.

Although there were no direct witnesses to Tom’s murder, 

when viewed in the light of the extensive evidence adduced at 

trial as summarized in our opinion on direct appeal and quoted 

above, Susan’s allegations fall well short of the “extraordinarily high” threshold showing of actual innocence which 

she would be required to make before a court could consider 

whether her continued incarceration would give rise to a constitutional claim. Susan did not allege facts sufficient to necessitate an evidentiary hearing. Therefore, we determine that 

the district court did not err when it denied relief without an 

evidentiary hearing on this claim. We affirm this portion of the 

district court’s order.

Denial of Motion for New Trial.

Susan assigns as error that the district court erred when 

it denied her motion for new trial. We determine that the 

district court correctly denied this claim without an evidentiary hearing.
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The record belies Susan’s allegation. The record establishes 

that Susan withdrew her motion for new trial at the time of sentencing. Accordingly, the district court did not deny her motion 

for new trial. We determine that the district court did not err 

when it denied relief on this claim without an evidentiary hearing. We affirm this portion of the district court’s order.

Admission of Other Evidence and Other 

Claims of Postconviction Relief.

Susan argues on appeal that certain evidence should not 

have been admitted at trial, such as items located during 

searches, including the search of the vehicle and home. She 

also makes allegations in her postconviction motion regarding other evidence she asserts is objectionable, but, other 

than listing a catalog of constitutional provisions, she does 

not necessarily direct our attention to specific constitutional 

errors regarding these claims on appeal. Her allegations of 

conclusions do not require an evidentiary hearing. See State 

v. Huston, 291 Neb. 708, 868 N.W.2d 766 (2015). We have 

reviewed her motion and have determined that her claims 

either are speculative and fail to affirmatively show that she is 

entitled to relief or are refuted by the record and files in this 

case. See id. Accordingly, we determine that Susan did not 

allege facts sufficient to necessitate an evidentiary hearing, 

and the district court did not err when it denied postconviction 

relief without an evidentiary hearing.

CONCLUSION

We find no merit to Susan’s assignments of error. Therefore, 

we determine that the district court did not err when it denied 

her motion for postconviction relief without an evidentiary hearing.

Affirmed.