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312 Nebraska Reports

STATE V. BROWN

Cite as 312 Neb. 654

State of Nebraska, appellee, v. 

David B. Brown, appellant.

___ N.W.2d ___

Filed October 21, 2022. No. S-21-097.

1. Appeal and Error. When reviewing a question of law, an appellate court 

resolves the question independently of the lower court’s conclusion.

2. Pleadings: Judgments: Appeal and Error. A trial court’s decision 

to grant or deny a motion to reconsider is reviewed for an abuse of 

discretion.

3. Public Officers and Employees: Negligence: Pleadings: Appeal and 

Error. The appropriate filing procedure when an appeal is lost due to 

official negligence is for the party seeking relief to file a motion in 

the lower court, seeking the ability to establish the basis for obtaining relief.

4. Public Officers and Employees: Negligence: Appeal and Error.

Where a duty is placed upon a public officer to perform acts necessary 

to perfect an appeal, his or her failure to perform cannot be charged to 

the litigant or operate to defeat the appeal; however, if the negligence of 

the appellant or his or her agent concurs with that of the court official, 

it precludes the appeal.

5. Attorney and Client: Agency. The relationship between attorney and 

client is one of agency, and the general agency rules of law apply to the 

relation of attorney and client.

6. Postconviction: Effectiveness of Counsel: Public Officers and 

Employees: Negligence: Appeal and Error. The loss of an appeal on 

collateral review due to postconviction counsel’s negligence does not 

entitle the party seeking relief to the procedural remedy recognized 

when an appeal is lost due to official negligence.

7. Postconviction: Effectiveness of Counsel: Appeal and Error. Where 

a defendant is denied his or her right to a direct appeal because counsel 

fails to perfect an appeal, the proper vehicle for the defendant to seek 

relief is through the Nebraska Postconviction Act.

Nebraska Supreme Court Online Library

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

12/02/2022 01:03 AM CST
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STATE V. BROWN

Cite as 312 Neb. 654

8. Postconviction: Constitutional Law: Effectiveness of Counsel. There 

is no constitutional guarantee of effective assistance of counsel in a 

postconviction action and therefore no claim for ineffective assistance 

of postconviction counsel.

9. Courts: Judgments: Time: Appeal and Error. A motion for reconsideration does not terminate the time for appeal and is considered nothing 

more than an invitation to the court to consider exercising its inherent 

power to vacate or modify its own judgment.

10. Courts: Judgments: Legislature: Time: Appeal and Error. Courts 

have the power to vacate or modify their own judgments and orders at 

any time during the term at which they were pronounced. But this power 

may not be used to circumvent the Legislature’s power to fix the time 

limit to take an appeal.

11. Courts: Judgments: Time: Appeal and Error. A court may not vacate 

an order or judgment and reinstate it at a later date just for the purpose 

of extending the time for appeal.

12. Judgments: Appeal and Error. Where the record adequately demonstrates that the decision of a trial court is correct, although such correctness is based on a ground or reason different from that assigned by the 

trial court, an appellate court will affirm.

Petition for further review from the Court of Appeals, 

Pirtle, Chief Judge, and Riedmann and Welch, Judges, 

on appeal thereto from the District Court for Butler County, 

Christina M. Marroquin, Judge. Judgment of Court of 

Appeals reversed and remanded with direction.

Robert Wm. Chapin, Jr., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

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

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

We granted the State of Nebraska’s petition for further review 

to consider a Nebraska Court of Appeals’ decision 1 extending 

1 State v. Brown, 30 Neb. App. 657, 970 N.W.2d 809 (2022).
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Cite as 312 Neb. 654

the procedural remedy for “claims of official negligence” 2

to an appeal that purportedly was lost due to an appointed 

postconviction counsel’s actions. Because we conclude that 

the Court of Appeals’ decision extends State v. Parnell 3 and 

State v. Jones 4 beyond their applicable scope, we reverse, and 

remand with direction.

BACKGROUND

This case arises from criminal proceedings in the district 

court for Butler County. A jury convicted David B. Brown of 

two counts of first degree sexual assault, and the court sentenced Brown. On direct appeal, the Court of Appeals affirmed 

Brown’s convictions and sentences. 5 Brown filed a timely pro 

se motion for postconviction relief pursuant to Neb. Rev. Stat. 

§ 29-3001 (Reissue 2016). The State moved to dismiss the 

motion, and the district court appointed counsel to represent 

Brown. The court heard arguments from the State and Brown’s 

appointed counsel.

On September 17, 2020, the court entered an order that sustained the State’s motion to dismiss and “dismissed [Brown’s 

motion for postconviction relief] without the necessity of an 

evidentiary hearing.” The court addressed three claims. It 

stated that Brown’s claim for actual innocence was “an attempt 

to relitigate issues decided at trial,” that his ineffective assistance of trial counsel claim for failure to file a motion to 

suppress had “no basis” in light of the jury instructions, and 

that his ineffective assistance of appellate counsel claim for 

failure to challenge the constitutionality of the Sex Offender 

Registration Act 6 had no legal basis.

2 See, State v. Jones, 307 Neb. 809, 950 N.W.2d 625 (2020); State v. 

Parnell, 301 Neb. 774, 919 N.W.2d 900 (2018).

3 State v. Parnell, supra note 2.

4 State v. Jones, supra note 2.

5 See State v. Brown, No. A-18-599, 2019 WL 1492689 (Neb. App. Mar. 25, 

2019) (selected for posting to court website).

6 See Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2016).
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Brown did not file an appeal within 30 days of the court’s 

order. 7

On January 19, 2021, Brown filed a pro se “Verified Motion 

for Reconsideration, Motion to Vacate and Reinstate Order 

Denying Motion for Postconviction Relief.” Brown moved the 

court to reconsider his motion for postconviction relief or, in 

the alternative, to vacate and reinstate the order so that Brown 

could file a timely appeal.

In the motion, Brown asserted that his delay in filing an 

appeal was due to his appointed counsel’s failure to provide 

him with a copy of the court’s order. Brown further alleged 

that his counsel did not notify him of the court’s ruling until 

October 16, 2020, which was 29 days after the court entered 

the order. Brown stated that he did not receive a copy of the 

order until December 14.

On January 22, 2021, the court “dismissed” Brown’s motion. 

The order stated: “The Court has reviewed [Brown’s] Motion 

for Reconsideration. It is untimely filed and the Motion is here 

dismissed.”

On February 3, 2021, Brown filed an appeal from that ruling. He assigned, restated, that (1) the district court erred in 

dismissing the motion for reconsideration and (2) the attorney 

assigned to represent Brown in his postconviction motion was 

ineffective. Brown argued that the court abused its discretion 

in dismissing the motion as untimely in light of his delay in 

receiving a copy of the court’s order. The State argued that 

the court “correctly denied the motion for reconsideration 

because it could not legally vacate and reissue” the initial 

order to circumvent the legislatively created deadline and 

because the court had correctly denied Brown’s postconviction motion. 8

Without addressing the merits of Brown’s motion for reconsideration, the Court of Appeals found that the district court 

7 See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2022).

8 Brief for appellee at 11.
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abused its discretion in dismissing the motion as untimely. It 

reasoned that a motion for reconsideration does not terminate 

the time for appeal and is considered nothing more than an 

invitation to the court to consider exercising its inherent power 

to vacate or modify its own judgment. 9 It further stated:

Although Brown asserts that the delay in receiving 

notice of the court’s dismissal of his postconviction 

motion was due to his counsel’s negligence as opposed 

to negligence of the court or prison officials, State v. 

Parnell[ 10] and State v. Jones[ 11] instruct that Brown’s 

motion to reconsider was not untimely and should not 

have been dismissed as such. 12

The Court of Appeals also cited to one of its decisions 13 which 

addressed the merits of an appeal of the denial of a motion to 

vacate an order denying postconviction relief based on allegedly newly discovered evidence.

The Court of Appeals next reasoned that there is no constitutional guarantee of effective assistance of counsel in a postconviction action and therefore no claim for ineffective assistance 

of postconviction counsel. 14 It reversed the district court’s dismissal of Brown’s motion for reconsideration as untimely and 

remanded the matter for consideration on the merits.

The State filed a timely petition for further review, which 

we granted.

ASSIGNMENTS OF ERROR

The State assigns, restated, that the Court of Appeals erred 

in (1) relying on Parnell and Jones to conclude that Brown’s 

motion for reconsideration was not untimely and (2) remanding 

9 See State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018).

10 State v. Parnell, supra note 2.

11 State v. Jones, supra note 2.

12 State v. Brown, supra note 1, 30 Neb. App. at 660, 970 N.W.2d at 812.

13 State v. Manning, 18 Neb. App. 545, 789 N.W.2d 54 (2010).

14 See State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).
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Cite as 312 Neb. 654

the matter, because the district court could not legally vacate 

and reinstate the order dismissing Brown’s motion for postconviction relief.

STANDARD OF REVIEW

[1,2] When reviewing a question of law, an appellate court 

resolves the question independently of the lower court’s conclusion. 15 A trial court’s decision to grant or deny a motion to 

reconsider is reviewed for an abuse of discretion. 16

ANALYSIS

In its petition for further review, the State assigns that the 

Court of Appeals’ reliance on Parnell 17 and Jones 18 is misplaced. It suggests that the procedural remedy outlined in 

those cases applies only to “claims of official negligence.” 19 It 

points out—and the Court of Appeals recognized—that Brown 

attributes his delay in filing to his appointed counsel’s negligence. The State characterizes the Court of Appeals’ decision 

as “equat[ing] actions of postconviction counsel with that of 

official negligence.” 20

Parnell and Jones Do Not Apply

[3] We begin by analyzing the procedural remedy outlined in 

Parnell and Jones to determine whether it applies in Brown’s 

situation. In both cases, we recognized a narrow exception to 

the 30-day time limit to appeal: The appropriate filing procedure when an appeal is lost due to official negligence is for the 

party seeking relief to file a motion in the lower court, seeking 

the ability to establish the basis for obtaining relief. 21

15 State v. Koch, 304 Neb. 133, 933 N.W.2d 585 (2019).

16 County of Douglas v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 501, 

894 N.W.2d 308 (2017).

17 State v. Parnell, supra note 2.

18 State v. Jones, supra note 2.

19 Brief for appellee in support of petition for further review at 7.

20 Id.

21 State v. Jones, supra note 2; State v. Parnell, supra note 2.
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Cite as 312 Neb. 654

This procedural remedy derives from our earlier holding in 

State v. Smith.

 22 There, a district court overruled a defendant’s 

motion for postconviction relief. The defendant appealed from 

the order, but the Court of Appeals dismissed the appeal as 

untimely. The defendant then filed a second “‘motion for postconviction relief,’” alleging that he filed his notice of appeal 

and accompanying documents within the 30-day period. 23 He 

alleged that the court clerk misplaced the documents he filed, 

depriving him of his right to appeal. Given the circumstances, 

the defendant requested that the court permit him to appeal. 

The district court sustained the motion.

[4] On appeal in Smith, this court distinguished negligence 

that results solely from a public officer’s error from negligence 

that results, at least in part, due to the acts of the appellant or 

his or her agent. We emphasized that where a duty is placed 

upon a public officer to perform acts necessary to perfect an 

appeal, his or her failure to perform cannot be charged to the 

litigant or operate to defeat the appeal; however, if the negligence of the appellant or his or her agent concurs with that of 

the court official, it precludes the appeal. 24 We reasoned that 

the defendant would be entitled to reinstatement of his appeal 

if it was lost solely due to the clerk’s error. Therefore, we held 

that the appropriate procedure for securing a new appeal when 

an appeal is lost due to official negligence is to file a motion 

in the lower court and establish the factual basis for obtaining relief.

We now turn to our analysis in Parnell and Jones. The Court 

of Appeals’ decision recites the facts of both cases, which we 

briefly set forth here.

In Parnell, the defendant alleged that he missed the deadline for appeal, because he did not receive a copy of the district court’s order dismissing his motion for postconviction 

22 State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005).

23 Id. at 777, 696 N.W.2d at 878.

24 State v. Smith, supra note 22.
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Cite as 312 Neb. 654

relief. 25 The court clerk certified that a copy of that dismissal 

was sent to the State and to the defendant. We held that while 

the law presumes that a public officer will faithfully perform his or her official duties and that a letter, once properly 

mailed, will reach its addressee, both are presumptions that 

can be overcome by the showing of evidence to the contrary. 

Under the circumstances, we concluded that the defendant 

was entitled to an evidentiary hearing to offer proof of his 

allegation.

In Jones, the defendant failed to file a timely appeal from 

a district court’s order denying his motion for postconviction 

relief. 26 The defendant alleged that he attempted to appeal the 

denial and that he deposited his paperwork with prison officials 

before the 30-day deadline. But he asserted that due to the negligent acts of the officials, his paperwork did not arrive to the 

court in a timely manner. We held that the defendant alleged a 

claim of official negligence sufficient to entitle him to a hearing under Parnell.

[5] Although Smith, Parnell, and Jones may seem procedurally similar to Brown’s situation, the basis of Brown’s claim 

was fundamentally different. Brown did not attribute his delay 

in filing to the negligence of court or prison officials. Brown 

alleged that his appeal was lost due to his appointed counsel’s 

negligence. Although at oral argument Brown argued that his 

postconviction attorney was an “officer of the court,” the relationship between attorney and client is one of agency, and the 

general agency rules of law apply to the relation of attorney 

and client. 27 Here, Brown was the principal and postconviction 

counsel was his agent.

[6] The loss of an appeal on collateral review due to postconviction counsel’s negligence does not entitle the party seeking 

25 State v. Parnell, supra note 2.

26 State v. Jones, supra note 2.

27 Thomas & Thomas Court Reporters v. Switzer, 283 Neb. 19, 810 N.W.2d 

677 (2012).
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Cite as 312 Neb. 654

relief to the procedural remedy recognized when an appeal is 

lost due to official negligence. Under Smith, mere concurring 

negligence of an appellant’s agent is sufficient to preclude an 

appeal. 28 Where negligence is attributed solely to an appellant’s 

agent, the same outcome follows. We agree with the State that 

the procedural remedy recognized in Parnell and Jones does 

not apply in Brown’s situation. The Court of Appeals erred in 

applying that remedy here.

Appointed Postconviction 

Counsel’s Alleged Negligence

[7] We have previously held that where a defendant is 

denied his or her right to a direct appeal because counsel fails 

to perfect an appeal, the proper vehicle for the defendant to 

seek relief is through the Nebraska Postconviction Act. 29 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. 30 The U.S. Supreme Court has held that a criminal 

defendant has a constitutional right to effective assistance of 

counsel in his or her first appeal as of right. 31

[8] But this procedural remedy is not available when counsel 

fails to file an appeal in a postconviction proceeding. Brown’s 

constitutional right to effective assistance of counsel ended 

when the Court of Appeals decided his direct appeal. There is 

no constitutional guarantee of effective assistance of counsel in 

a postconviction action and therefore no claim for ineffective 

28 State v. Smith, supra note 22.

29 See State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001) (citing State v. 

Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000)).

30 Id. See, also, State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016); State 

v. Halsey, 195 Neb. 432, 238 N.W.2d 249 (1976).

31 See Halbert v. Michigan, 545 U.S. 605, 125 S. Ct. 2582, 162 L. Ed. 2d 

552 (2005) (citing Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 

L. Ed. 2d 811 (1963)).
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assistance of postconviction counsel. 32 We express no opinion 

regarding any other avenue for relief which might be available 

to Brown.

No Abuse of Discretion in 

Denying Reconsideration

[9] The Court of Appeals correctly distinguished an appeal 

from the district court’s order denying reconsideration from an 

appeal from the order denying postconviction relief. A motion 

for reconsideration does not terminate the time for appeal and 

is considered nothing more than an invitation to the court to 

consider exercising its inherent power to vacate or modify 

its own judgment. 33 The district court had jurisdiction to consider the reconsideration motion, and the Court of Appeals 

had jurisdiction to review denial of that motion for abuse of 

discretion. 34

But the Court of Appeals erred in finding an abuse of discretion based upon Parnell and Jones. And here, there was no 

other basis for doing so.

[10,11] Courts have the power to vacate or modify their own 

judgments and orders at any time during the term at which 

they were pronounced. But this power may not be used to circumvent the Legislature’s power to fix the time limit to take 

an appeal. 35 A court may not vacate an order or judgment and 

reinstate it at a later date just for the purpose of extending the 

time for appeal. 36

[12] Here, Brown did not claim official negligence, and 

the court had no power to vacate its denial of postconviction 

relief merely for the purpose of extending the time for appeal. 

32 State v. Hessler, supra note 14.

33 State v. Lotter, supra note 9.

34 See Rules of Dist. Ct. of Fifth Jud. Dist. 5-1 (rev. 2001) (term coextensive 

with calendar year).

35 In re Interest of Luz P. et al., 295 Neb. 814, 891 N.W.2d 651 (2017).

36 Id.
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While the district court may have inaccurately described the 

reconsideration motion as untimely, it could not have used that 

motion as a vehicle to extend the time for appeal. Where the 

record adequately demonstrates that the decision of a trial court 

is correct, although such correctness is based on a ground or 

reason different from that assigned by the trial court, an appellate court will affirm. 37 The Court of Appeals should have done 

so here.

CONCLUSION

We conclude that Parnell and Jones do not apply in 

Brown’s situation. The appropriate procedural remedy when 

an appeal purportedly was lost due to an appointed counsel’s 

actions is for the defendant to seek relief through the Nebraska 

Postconviction Act. But that remedy is not available where 

the claim is based on ineffective assistance of postconviction counsel. Because we conclude that the Court of Appeals 

erred in its application of Parnell and Jones, we reverse its 

decision and remand with direction to affirm the order of the 

district court.

Reversed and remanded with direction.

37 State v. Grant, 310 Neb. 700, 968 N.W.2d 837 (2022).