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State of Nebraska, appellee, v. 

Nicholas J. Ely, appellant.

___ N.W.2d ___

Filed July 10, 2020. No. S-19-850.

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. With regard to 

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 

conclusion.

3. Postconviction: Evidence: Appeal and Error. 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. An 

appellate court upholds the trial court’s factual findings unless they are 

clearly erroneous.

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

In order to establish a right to postconviction relief based on a claim 

of ineffective assistance of counsel, the defendant has the burden, in 

accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984), to show that counsel’s performance was 

deficient; that is, counsel’s performance did not equal that of a lawyer 

with ordinary training and skill in criminal law. Next, the defendant 

must show that counsel’s deficient performance prejudiced the defense 

in his or her case.

5. Effectiveness of Counsel: Proof. 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.

Nebraska Supreme Court Online Library

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

08/14/2020 01:09 AM CDT
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6. Trial: Constitutional Law: Testimony. A defendant has a fundamental 

constitutional right to testify.

7. Trial: Attorney and Client: Testimony. Defense counsel bears the primary responsibility for advising a defendant of his or her right to testify 

or not to testify, of the strategic implications of each choice, and that the 

choice is ultimately for the defendant to make.

8. Constitutional Law: Right to Counsel: Waiver. A criminal defendant 

has a constitutional right to waive the assistance of counsel and conduct 

his or her own defense under the Sixth Amendment and Neb. Const. 

art. I, § 11.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Affirmed.

Brian S. Munnelly for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust 

for appellee.

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

and Papik, JJ.

Papik, J.

Nicholas J. Ely appeals from an order denying him postconviction relief. The district court determined, after holding an evidentiary hearing, that there was no merit to Ely’s 

claims that his counsel was ineffective at the trial court level 

in failing to advise him of his right to testify and ineffective on direct appeal in failing to argue that his right to selfrepresentation was violated at trial. We find no reversible error 

and thus affirm.

BACKGROUND

Trial and Direct Appeal.

Ely was tried for his role in an attempted robbery in which 

the target was killed. The details that led to the charges and 

trial can be found in our opinion on Ely’s direct appeal. See 

State v. Ely, 287 Neb. 147, 841 N.W.2d 216 (2014).
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Ely’s trial was scheduled to commence on October 1, 2012. 

On August 21, Ely filed a motion styled as “Motion to Dismiss 

Current Counsel and Appoint Myself Pro Se.” In it, he asserted 

that the “issues involved in this case are complex and beyond 

the scope of [his] legal knowledge.” He then listed various 

complaints regarding his attorneys and the amount of time he 

had been able to review discovery produced in his case. He 

asked the court to “appoint” him as his own counsel, but also 

asked that he “have counsel appointed to me for help/advisory 

for when I have questions [about] my own counsel.” On the 

same day, Ely filed a motion to continue the trial. In the motion 

to continue, he referred to his motion to dismiss his counsel 

and represent himself, and he claimed that he needed more 

time to prepare for trial.

On August 28, 2012, the district court held a hearing on 

Ely’s motions. When asked about his motion to dismiss his 

counsel and represent himself, Ely said that he did not feel he 

had had enough time to prepare for trial and that he believed 

if he represented himself, he would be able to work on the 

case more. Ely indicated that he wished to spend more time 

reviewing discovery in his case, but that he did not believe 

there was enough time remaining prior to trial for him to do 

so. “So,” as he put it, “I feel like I need to go pro se and to get 

a continuance.”

After Ely’s counsel responded, the district court said, “I 

don’t see any benefit to you proceeding pro se . . . . [T]hese 

are serious charges. And I still think you need the advice of 

counsel. So I’m going to deny your motion.”

The district court then heard argument on Ely’s motion to 

continue. In support of this motion, Ely again referred to his 

motion to dismiss his counsel. He said, “I feel I’m not ready 

to go to trial in 30 days. That’s why I’m in here putting in a 

motion to dismiss my counsel.” The district court denied the 

motion to continue.

The week before trial was to commence, Ely filed another 

motion, styled as “Motion to Dismiss Counsel.” In this motion, 
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he asked the district court to dismiss his current counsel and 

reappoint new counsel. He listed numerous reasons why he 

was not satisfied with his current counsel, but made no mention of desiring to represent himself. On the same day, Ely filed 

another motion to continue, in which he referred to his recently 

filed motion to dismiss counsel and stated that his “new lawyer 

needs time to go over [d]iscovery and put in motions.” The 

district court denied both motions.

Trial commenced as scheduled, with Ely represented by 

counsel. Ely did not testify in his own defense.

Ely was convicted of first degree murder on a felony murder theory and use of a deadly weapon to commit a felony. He 

was sentenced to life in prison on the murder conviction and 

to a consecutive sentence of 5 to 5 years’ imprisonment on the 

use of a deadly weapon conviction. We affirmed his convictions on direct appeal. State v. Ely, 287 Neb. 147, 841 N.W.2d 

216 (2014).

Initial Postconviction Appeal.

After his convictions were affirmed, Ely filed multiple 

motions for postconviction relief in which he alleged numerous claims of ineffective assistance of trial and appellate 

counsel, as well as several claims of district court error. The 

district court initially denied Ely’s motions without holding an 

evidentiary hearing. Ely appealed, raising 29 different assignments of error.

While we found that the district court correctly denied Ely 

relief without an evidentiary hearing on most of the claims 

asserted, we found that he was entitled to an evidentiary hearing on two of his claims: (1) that his trial counsel was ineffective in failing to advise him of his right to testify and (2) that 

his appellate counsel was ineffective in failing to argue that his 

right to self-representation was violated at trial. Accordingly, 

we reversed, and remanded, in part, with directions to the 

district court to hold an evidentiary hearing on those claims. 

We also directed the district court to grant Ely’s motion for 
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appointment of counsel. See State v. Ely, 295 Neb. 607, 889 

N.W.2d 377 (2017).

Postconviction Proceedings 

on Remand.

The district court held an evidentiary hearing following 

remand. At the evidentiary hearing, the district court received 

depositions of both Ely and an attorney who served as Ely’s 

counsel at trial and on appeal. After the evidentiary hearing, 

Ely successfully moved to reopen the record to introduce a 

motion he filed asking to dismiss his appellate counsel and 

appoint new counsel. Additional details regarding the evidence 

introduced at the evidentiary hearing are discussed in the 

analysis section below.

Following the evidentiary hearing, the district court found 

Ely was not entitled to relief on either of his two remaining claims. With respect to Ely’s claim that his counsel was 

ineffective in failing to advise him of his right to testify, the 

district court found that Ely understood he had a right to testify, that his counsel advised him not to do so, and that this 

advice was reasonable. The district court also found that Ely’s 

counsel did not render ineffective assistance by not arguing 

on appeal that Ely’s right to self-representation was violated 

at trial. The district court reasoned that if that issue had been 

raised on direct appeal, it would not have been successful, 

and that therefore, counsel was not ineffective in failing to 

raise it.

Ely appeals.

ASSIGNMENTS OF ERROR

Ely assigns two errors on appeal. He claims that the district 

court erred (1) in denying relief on his claim that trial counsel 

was ineffective in failing to advise him of his right to testify 

and (2) in denying relief on his claim that his appellate counsel 

was ineffective in failing to assert on appeal that his right to 

self-representation was violated at trial.
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STANDARD OF REVIEW

[1,2] A claim that defense counsel provided ineffective 

assistance presents a mixed question of law and fact. State v. 

Huston, 302 Neb. 202, 922 N.W.2d 723 (2019). 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 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 

conclusion. Huston, supra.

[3] 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. Id. An appellate court 

upholds the trial court’s factual findings unless they are clearly 

erroneous. Id.

ANALYSIS

Ineffective Assistance of 

Counsel Standards.

Both of Ely’s assignments of error pertain to alleged ineffective assistance of counsel. We briefly review the legal 

standards governing such claims before turning to Ely’s specific arguments.

[4,5] In order 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, 

supra, 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. State v. Privett, 

303 Neb. 404, 929 N.W.2d 505 (2019). Next, the defendant 

must show that counsel’s deficient performance prejudiced the 

defense in his or her case. Id. To show prejudice, the defendant must demonstrate a reasonable probability that but for 

counsel’s deficient performance, the result of the proceeding 
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would have been different. State v. Assad, 304 Neb. 979, 938 

N.W.2d 297 (2020).

Right to Testify.

[6,7] We now turn to Ely’s argument that the district court 

erred by rejecting Ely’s claim that his trial counsel ineffectively 

failed to advise him of his right to testify. Here, Ely correctly 

points out that a defendant has a fundamental constitutional 

right to testify. See State v. Iromuanya, 282 Neb. 798, 806 

N.W.2d 404 (2011). Further, he correctly observes that we have 

previously stated defense counsel bears the primary responsibility for advising a defendant of his or her right to testify or 

not to testify, of the strategic implications of each choice, and 

that the choice is ultimately for the defendant to make. Id. In 

this case, however, we do not believe the district court erred by 

concluding that Ely’s trial counsel met this responsibility and 

thus did not perform deficiently.

Although Ely testified in his deposition that he was not 

advised and did not know he had a right to testify, his counsel 

testified that this was “absolutely incorrect” and was a “bogus 

statement.” She testified that when she met with Ely after he 

decided he wanted to go to trial, “one of the first things [he] 

said to me was, I can’t take the stand because I have seven or 

eight felonies.” She testified that she then would have had a 

conversation with Ely on the risks of testifying as a convicted 

felon. She additionally testified that Ely was the only person 

who made the decision not to testify and that no one talked 

him out of it.

The district court resolved the conflicts between Ely’s testimony and that of his counsel and determined that Ely was 

aware of his right to testify, that his counsel provided advice 

regarding his testifying, and that Ely made the decision not 

to do so. The task of resolving such conflicting testimony is 

within the province of the district court. See State v. AlarconChavez, 295 Neb. 1014, 893 N.W.2d 706 (2017). We can disturb its factual findings only if they are clearly erroneous. See 
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id. We find no clear error here and thus see no basis to disturb 

the district court’s conclusion that Ely’s counsel did not ineffectively fail to advise him of his right to testify.

Self-Representation.

This leaves Ely’s argument that he received ineffective 

assistance of counsel because his counsel failed to argue on 

direct appeal that his rights to self-representation were violated 

at trial. Ely claims that if his counsel had raised this issue on 

appeal, reversal would have been required. He contends that 

under the U.S. and Nebraska Constitutions, he had a right to 

represent himself and the district court could not preclude him 

from doing so based on the fact he faced serious charges or 

based on its belief that it was in his best interests to be represented by counsel. He also emphasizes that the denial of the 

right to self-representation has been held to be structural error, 

not subject to harmless error review. And, according to Ely, if 

raising this issue would have resulted in his obtaining a new 

trial, his counsel was deficient for not raising it.

[8] Much of what Ely contends regarding the right to selfrepresentation is true. He is correct that a criminal defendant 

has a constitutional right to waive the assistance of counsel and 

conduct his or her own defense under the Sixth Amendment 

and Neb. Const. art. I, § 11. State v. Ely, 295 Neb. 607, 889 

N.W.2d 377 (2017). He also rightly points out that while the 

waiver must be made knowingly, voluntarily, and intelligently, 

it need not be prudent. See id. And we have recognized that 

the denial of the right to self-representation is not subject to 

harmless error review. See id. Ely says nothing, however, about 

another crucial aspect of the right to self-representation—the 

requirement that any assertion of the right be made clearly 

and unequivocally.

In Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 

2525, 45 L. Ed. 2d 562 (1975), the case in which the U.S. 

Supreme Court recognized a defendant’s constitutional right 

to self-representation at trial, it noted that the trial court had 
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forced the defendant in that case to accept representation 

from his appointed attorney after the defendant “clearly and 

unequivocally” communicated his desire to represent himself. 

Courts have thereafter uniformly held that the right to selfrepresentation is triggered only when the defendant clearly and 

unequivocally requests self-representation. See, e.g., Williams 

v. Bartlett, 44 F.3d 95, 100 (2d Cir. 1994), quoting Faretta, 

supra (“[t]he right to self-representation does not attach until 

it is asserted ‘clearly and unequivocally’”). See, also, 3 Wayne 

R. LaFave et al., Criminal Procedure § 11.5(d) (4th ed. 2015) 

(collecting cases).

The requirement that a request for self-representation be 

clear and unequivocal has been recognized to serve multiple 

purposes. In one sense, it protects criminal defendants and their 

right to counsel. As one court put it, the requirement

acts as a backstop for the defendant’s right to counsel, 

by ensuring that the defendant does not inadvertently 

waive that right through occasional musings on the benefits of self-representation. . . . Because a defendant 

normally gives up more than he gains when he elects 

self-representation, we must be reasonably certain that he 

in fact wishes to represent himself.

Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989) (citation omitted).

Not only does the clear and unequivocal requirement benefit 

criminal defendants, it also protects the criminal justice system 

as a whole. The need for this protection arises out of the fact 

that the right to counsel and the right to self-representation 

are “mutually exclusive entitlements.” Cain v. Peters, 972 

F.2d 748, 750 (7th Cir. 1992). See, also, U.S. v. Simpson, 

845 F.3d 1039, 1046 (10th Cir. 2017) (stating that right to 

self-representation “lies in tension with the Sixth Amendment 

right to counsel”). Left unchecked, the conflicting nature 

of these rights could be abused. Defendants might waver 

between requests for counsel and self-representation or make 

requests that are unclear as to their desire for representation 
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and thereby manufacture an argument for appellate reversal 

no matter how the trial court rules. See, e.g., Simpson, 845 

F.3d at 1047 (“[w]ithout a clear and unequivocal request, the 

[trial] court would face a dilemma, for an equivocal demand 

creates a potential ground for reversal however the trial court 

rules”); Cross v. U.S., 893 F.2d 1287, 1290 (11th Cir. 1990) 

(“[i]n recognition of . . . the knowledge that shrewd litigants 

can exploit this difficult constitutional area by making ambiguous self-representation claims to inject error into the record, 

this Court has required an individual to clearly and unequivocally assert the desire to represent himself”). The clear and 

unequivocal requirement “resolves this dilemma by forcing 

the defendant to make an explicit choice.” Adams, 875 F.2d 

at 1444. If no such choice is made, the defendant is presumed 

to have invoked the right to counsel and not the right to selfrepresentation. Id.

We discuss the clear and unequivocal requirement at length 

here because we do not believe Ely clearly and unequivocally 

asserted that he wished to represent himself. To be sure, Ely’s 

motion filed August 21, 2012, included a statement that he 

wished to represent himself, a statement he repeated at the 

hearing on that motion. Viewed in context, however, we do 

not believe these statements constitute an unequivocal assertion that Ely wished to waive his right to counsel and represent 

himself at trial. We believe this is the case for multiple reasons 

we will explain below.

First, we believe Ely’s request to represent himself could 

reasonably be understood as expressing a desire to represent 

himself only if the court also continued his trial. Several facts 

lead us to this conclusion. Ely filed the motion in which he 

asked to represent himself on the same day he filed a motion 

to continue the trial date. The motion to continue referred to 

the motion asking for self-representation as a reason for a continuance. Further, at the hearing on the motions, the primary 

reason Ely identified for wanting to represent himself was 

his desire to have more time to work on his case. Because of 
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his belief that he did not have enough time before trial, Ely 

said he felt he “need[ed] to go pro se and to get a continuance.” Later in the hearing, Ely reiterated that he was seeking 

to dismiss his counsel because he felt he was not ready to go 

to trial as scheduled. Finally, Ely did not request to represent 

himself again after the district court denied the motion for a 

continuance of the October 1, 2012, trial date. Given the foregoing, we believe it is, at the very least, reasonable to understand Ely’s request as a request to represent himself only if 

the trial date was also continued and thus not an unequivocal 

assertion of his right to self-representation.

We find support for our determination that Ely did not 

clearly and unequivocally assert the right to self-representation 

in several federal court decisions. Because its facts are so 

similar to this case, we believe U.S. v. Simpson, 845 F.3d 

1039 (10th Cir. 2017), bears mention first. In that case, the 

defendant made two motions on the same day, one to represent 

himself and the other for a continuance of the trial. As the 10th 

Circuit described the motions, “[r]ead together, [they] stated 

that [the defendant] wanted to obtain more time for trial and 

to represent himself at the eventual trial.” Id. at 1047. The trial 

court denied both motions, and the defendant appealed. The 

10th Circuit explained that the defendant’s motions could be 

understood as requesting self-representation even if the motion 

for continuance was denied, but that they could also be understood as a request for self-representation only if the defendant 

obtained additional time. Because the defendant never made 

clear that he wished to represent himself even if the continuance was denied (and it was), the court held that the defendant 

had not clearly and unequivocally asserted a right to selfrepresentation. Like the defendant in Simpson, Ely asked to 

represent himself, but made the request in conjunction with an 

unsuccessful request for continuance of trial and did not make 

clear that he wished to represent himself if he did not obtain 

a continuance.
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Other recent federal decisions have found a defendant did 

not clearly and unequivocally request self-representation for 

reasons similar to those identified in Simpson. In U.S. v. Vanga, 

717 Fed. Appx. 726 (9th Cir. 2018), the U.S. Court of Appeals 

for the Ninth Circuit held that conditions a defendant placed 

on his self-representation request, including obtaining a continuance, rendered his request equivocal. In U.S. v. Edwards, 

535 Fed. Appx. 285 (4th Cir. 2013), the U.S. Court of Appeals 

for the Fourth Circuit held that a defendant did not clearly 

and unequivocally assert the right to self-representation. In 

Edwards, the defendant informed the court that he was “‘reluctantly’” asking the court to represent himself and that he “‘just 

fe[lt] like [he had] to represent [him]self,’” 535 Fed. Appx. at 

287 (emphasis omitted), expressions that are similar to Ely’s 

statement that in light of his belief that he needed more time 

to prepare for trial, “I feel like I need to go pro se and to get 

a continuance.”

Alternatively, we believe Ely did not clearly and unequivocally assert that he wished to represent himself for another 

reason: It is not clear that Ely wished to represent himself even 

if the district court did not appoint counsel to assist him in 

some fashion.

The Sixth Amendment has been interpreted to confer a right 

to counsel and a right to self-representation, but there is no 

constitutional right to “hybrid” representation, in which the 

defendant both acts as his or her own counsel and is represented by an attorney. See McKaskle v. Wiggins, 465 U.S. 168, 

104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); U.S. v. Callwood, 

66 F.3d 1110 (10th Cir. 1995). While a court has discretion to 

appoint standby counsel to assist a defendant, there is no constitutional right to such an arrangement. See U.S. v. Webster, 84 

F.3d 1056 (8th Cir. 1996).

Because there is no constitutional right to hybrid representation, some courts have held that defendants do not clearly 

and unequivocally assert the right to self-representation when 

requests to serve as their own counsel are accompanied by 
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a request to have appointed counsel serve in an advisory or 

standby capacity. In U.S. v. Kienenberger, 13 F.3d 1354 (9th 

Cir. 1994), the U.S. Court of Appeals for the Ninth Circuit 

held that a defendant did not clearly and unequivocally assert a 

right to self-representation, because when he asked to serve as 

his own counsel, he also asked that advisory or standby counsel be appointed to assist on procedural matters. New York’s 

highest appellate court recently reached the same conclusion. It 

reasoned that because the defendant had consistently requested 

standby counsel—to which he had no constitutional right—

he had not unequivocally asked to proceed without counsel. 

People v. Silburn, 31 N.Y.3d 144, 98 N.E.3d 696, 74 N.Y.S.3d 

781 (2018).

In contrast to Kienenberger and Silburn, some courts have 

held that it is possible for a defendant to request standby 

counsel and nevertheless unequivocally assert the right to selfrepresentation. See, e.g., U.S. v. Baker, 84 F.3d 1263 (10th 

Cir. 1996); People v. Hicks, 259 Mich. App. 518, 675 N.W.2d 

599 (2003). But even assuming that is a possibility, we do not 

believe Ely did so here.

As we have noted, Ely’s motion requesting that he be 

allowed to represent himself also requested that counsel 

be appointed to assist him when he had questions. On its face 

then, Ely’s motion sought some type of hybrid arrangement 

in which he served as his own counsel but appointed counsel 

remained to assist him. Ely did not make clear either in his 

motion or at the hearing that even if his request for such a 

hybrid arrangement was denied, he still wanted to waive his 

right to counsel and represent himself.

Furthermore, in Ely’s motion, he admitted that the issues 

in his case were complex and beyond the scope of his 

legal knowledge. We recognize that the absence of technical legal knowledge is not, in itself, a valid reason to deny 

a properly asserted request for self-representation. See, e.g., 

Jones v. Norman, 633 F.3d 661 (8th Cir. 2011) (holding that 

it was improper to deny defendant’s request to represent 
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himself on grounds that defendant was not familiar with rules 

of criminal procedure). Here, however, we believe Ely’s recognition that he lacked the legal knowledge to effectively represent himself casts considerable doubt on any notion that he 

actually wanted to represent himself in the absence of counsel 

to advise him. Where there is doubt as to whether a defendant 

actually desired to waive his right to counsel and invoke his 

or her right to self-representation, the request cannot be fairly 

described as clear and unequivocal.

Because Ely did not clearly and unequivocally assert his 

right to self-representation, we agree with the district court that 

any argument on appeal that his right to self-representation 

was violated stood no chance of success. Because Ely cannot demonstrate the requisite prejudice, his claim that his 

counsel should have argued on appeal that his right to selfrepresentation was violated at trial was properly rejected.

CONCLUSION

Because we find that the district court did not err in denying 

Ely postconviction relief, we affirm.

Affirmed.

Freudenberg, J., not participating.