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STATE v. COLLINS

Cite as 299 Neb. 160

State of Nebraska, appellee, v. 

Fredrick A. Collins, Jr., appellant.

___ N.W.2d ___

Filed March 2, 2018. No. S-17-147.

1. 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.

2. Postconviction: Proof: Appeal and Error. When a district court denies 

postconviction relief without conducting an evidentiary hearing, an 

appellate court must determine whether the petitioner has alleged facts 

that would support the claim and, if so, whether the files and records 

affirmatively show that he or she is entitled to no relief.

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

To establish a right to postconviction relief because of counsel’s ineffective assistance, 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. To show prejudice, the defendant must demonstrate a reasonable 

probability that but for counsel’s deficient performance, the result 

of the proceeding would have been different. A court may address 

the two prongs of this test, deficient performance and prejudice, in 

either order.

4. Effectiveness of Counsel: Speedy Trial. When a defendant alleges he 

or she was prejudiced by trial counsel’s failure to properly assert the 

defendant’s speedy trial rights, the court must consider the merits of 

the defendant’s speedy trial rights under Strickland v. Washington, 466 

Nebraska Supreme Court Online Library

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

04/26/2018 09:12 AM CDT
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STATE v. COLLINS

Cite as 299 Neb. 160

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Only if a motion 

would have resulted in the defendant’s absolute discharge, thus barring 

a later trial and conviction, could the failure to move for discharge be 

deemed ineffective assistance.

5. Speedy Trial. To calculate the deadline for trial for speedy trial purposes, a court must exclude the day the State filed the information, 

count forward 6 months, back up 1 day, and then add any time excluded 

under Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).

6. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffective for failing to raise a meritless argument.

7. Postconviction: Justiciable Issues: Right to Counsel: Appeal and 

Error. When the defendant’s petition presents a justiciable issue to the 

district court for postconviction determination, an indigent defendant is 

entitled to the appointment of counsel. But, where the assigned errors in 

the postconviction petition before the district court are either procedurally barred or without merit, establishing that the postconviction petition 

contained no justiciable issue of fact or law, it is not an abuse of discretion to fail to appoint counsel for an indigent defendant.

Appeal from the District Court for Douglas County: Gregory

M. Schatz, Judge. Affirmed.

Fredrick A. Collins, Jr., pro se.

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

for appellee.

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

Funke, JJ.

Cassel, J.

I. INTRODUCTION

Fredrick A. Collins, Jr., appeals from an order denying his 

motion for postconviction relief. Collins failed to allege sufficient facts supporting the majority of his claims, and his 

remaining claims are without merit. We affirm.

II. BACKGROUND

Collins was originally charged with first degree sexual 

assault of a child, a Class IB felony, and third degree sexual 
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STATE v. COLLINS

Cite as 299 Neb. 160

assault of a child, a Class IIIA felony. Pursuant to a plea 

agreement, Collins pled no contest to a reduced charge of first 

degree sexual assault, a Class II felony, and the State dismissed 

the third degree sexual assault of a child charge. The district 

court sentenced Collins to 10 to 15 years’ imprisonment with 

credit for 396 days of time served.

On direct appeal, Collins assigned that he received an excessive sentence and that he was denied effective assistance of 

trial counsel. He alleged that his trial counsel was ineffective 

when counsel (1) failed to inform him of the potential penalty 

for a Class II felony, (2) failed to attack the validity of the 

information for lack of jurisdiction, (3) failed to file a motion 

for DNA testing or investigate why a sexual assault evidence 

collection kit was not completed, (4) failed to file a motion to 

discharge or dismiss, (5) failed to move to sever the offenses, 

(6) failed to file a motion seeking to exclude testimony from 

the victim and two witnesses, (7) failed to conduct depositions 

of a police detective and a child advocacy center employee, (8) 

failed to show him transcripts of any depositions, (9) failed to 

object to or correct the factual basis provided at the plea hearing, (10) coerced his acceptance of a plea deal, and (11) failed 

to attend a presentence investigation interview with him or 

review presentence investigation errors with him.

We affirmed Collins’ sentence and determined that he was 

not prejudiced by any failure of trial counsel to inform him of 

the potential penalty for a Class II felony.1 We did not reach 

the remaining claims of ineffective assistance of counsel after 

determining that the record was not sufficient for review of 

those claims.

Collins has now filed a motion for postconviction relief 

reasserting his 2d through 8th and 10th claims of ineffective assistance of counsel which were not reviewed on direct 

appeal. He additionally filed a motion to appoint postconviction counsel.

1 State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).
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STATE v. COLLINS

Cite as 299 Neb. 160

The district court denied postconviction relief without an 

evidentiary hearing after finding Collins’ claims were either 

insufficiently pled or without merit. The court also denied 

Collins’ request for appointment of postconviction counsel.

Collins appealed, and we moved the case to our docket.2

III. ASSIGNMENTS OF ERROR

Collins assigns, restated, that the district court erred in 

failing to (1) conduct an evidentiary hearing on his claims of 

ineffective assistance of counsel and (2) assign counsel for the 

postconviction proceeding.

IV. STANDARD OF REVIEW

[1] 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.3

V. ANALYSIS

1. Motion for Postconviction Relief

[2] When a district court denies postconviction relief without conducting an evidentiary hearing, an appellate court must 

determine whether the petitioner has alleged facts that would 

support the claim and, if so, whether the files and records 

affirmatively show that he or she is entitled to no relief.4 If 

none of Collins’ allegations were sufficiently alleged, no evidentiary hearing was required. Likewise, no evidentiary hearing would be necessary even if some claims were sufficiently 

alleged, so long as the files and records affirmatively showed 

that he was entitled to no relief.

2 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

3 State v. Johnson, 298 Neb. 491, 904 N.W.2d 714 (2017).

4 See id.
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STATE v. COLLINS

Cite as 299 Neb. 160

All of Collins’ allegations are grounded in claims of ineffective assistance of counsel. The standard governing such 

claims is well settled.

[3] To establish a right to postconviction relief because of 

counsel’s ineffective assistance, the defendant has the burden, in accordance with Strickland v. Washington,

5

 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.6 Next, the defendant must 

show that counsel’s deficient performance prejudiced the 

defense in his or her case.7 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.8

 A court may address the two 

prongs of this test, deficient performance and prejudice, in 

either order.9

With these standards in mind, we turn to Collins’ specific claims. As explained below, none required an evidentiary hearing.

(a) Failure to Attack Validity 

of Information

Collins alleged that he received ineffective assistance of 

counsel when trial counsel failed to attack the validity of 

the original information filed, because “the dates alleged 

concerning the offenses clearly posed a jurisdictional issue.” 

However, he did not specify how the dates constituted a jurisdictional issue or how he was prejudiced when the dates were 

modified in the amended information.

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

(1984).

6 State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).

7 Id.

8 Id.

9 Id.
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STATE v. COLLINS

Cite as 299 Neb. 160

Collins argues in his brief on appeal that the court lacked 

jurisdiction, because some of the alleged actions took place in 

a different county and the victim lived in a different county 

from January 1, 2009, to June 30, 2010. But, the amended 

information alleged that Collins committed first degree sexual 

assault between June 25, 2011, and June 12, 2012, in Douglas 

County, Nebraska. Therefore, his allegations and conclusions 

concerning the time between January 1, 2009, and June 30, 

2010, are irrelevant. Collins failed to identify any jurisdictional issue with the operative information and thus cannot 

show either deficient performance or prejudice.

(b) Failure to Move for DNA Testing and 

Investigate Lack of Sexual Assault 

Evidence Collection Kit

Collins alleged that trial counsel was ineffective in failing 

to move for DNA testing and in failing to investigate why a 

sexual assault evidence collection kit was not completed. He 

argues that if such actions had been taken, evidence against 

him would have been suppressed or evidence exonerating him 

would have been admitted.

However, Collins did not allege what evidence a DNA test 

or collection kit would have discovered. Because this case 

involved various incidents of sexual abuse which recurred 

over a long period of time and included digital—but not 

penile—penetration,10 his failure may well have resulted from 

an absence of evidence to test or collect. Accordingly, counsel 

could not be ineffective for failing to request such testing or 

investigate the lack of an evidence collection kit.

(c) Failure to Move to Discharge 

on Speedy Trial Grounds

Collins alleged that trial counsel failed to move to discharge 

the information on speedy trial grounds. He maintains that the 

speedy trial clock had expired before entry of his plea.

10 See State v. Collins, supra note 1.
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STATE v. COLLINS

Cite as 299 Neb. 160

[4] When a defendant alleges he or she was prejudiced 

by trial counsel’s failure to properly assert the defendant’s 

speedy trial rights, the court must consider the merits of 

the defendant’s speedy trial rights under Strickland.

11 Only 

if a motion would have resulted in the defendant’s absolute 

discharge, thus barring a later trial and conviction, could 

the failure to move for discharge be deemed ineffective 

assistance.12

[5] To calculate the deadline for trial for speedy trial purposes, a court must exclude the day the State filed the information, count forward 6 months, back up 1 day, and then 

add any time excluded under Neb. Rev. Stat. § 29-1207(4) 

(Reissue 2016).13 The original information was filed July 30, 

2012. Therefore, the speedy trial deadline before adding any 

excluded time was January 30, 2013.

The State argues that there were two periods of excludable time pursuant to § 29-1207(4). First, it argues that the 

time between Collins’ pretrial motion to produce certain evidence, filed November 1, 2012, and the district court’s order 

sustaining the motion on November 28, 2012 (27 days), 

was excludable. Second, it suggests that Collins’ motion to 

continue the scheduled trial, filed January 16, 2013, was 

one of indefinite duration. Therefore, it argues that the time 

between the filing of the motion and the trial rescheduled 

for March 18, 2013 (61 days), was excludable. We agree on 

both counts.

[6] After adding the excluded time, the deadline for trial 

was April 28, 2013. Collins entered his plea of no contest on 

March 20. Because the deadline for speedy trial purposes had 

not run, defense counsel could not have been ineffective for 

failing to file a motion to discharge on speedy trial grounds. 

11 Strickland v. Washington, supra note 5; State v. Betancourt-Garcia, 295 

Neb. 170, 887 N.W.2d 296 (2016).

12 See State v. Betancourt-Garcia, supra note 11.

13 See id.
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Cite as 299 Neb. 160

As a matter of law, counsel cannot be ineffective for failing to 

raise a meritless argument.14

(d) Failure to Move for Severance

Collins alleged that trial counsel was ineffective for failing to sever the charges against him. He argued that “[h]ad 

[he] had separate trials, he would not have agreed to the plea 

agreement reached in this case.”15 However, Collins did not 

allege how he was prejudiced given that the third degree 

sexual assault of a child charge was dismissed pursuant to the 

plea agreement. In fact, it is impossible to see how two trials 

would have benefited Collins more than the plea agreement 

when he had previously admitted his wrongdoing to two witnesses for the State. Consequently, Collins has failed to allege 

prejudice on this claim.

(e) Failure to Move to Exclude Testimony

Collins alleged that counsel was ineffective for failing to 

move to exclude testimony of the victim and two adult witnesses. He claimed, “Trial Counsel was aware or should have 

been aware that portions of the alleged victim’s statements 

were perjurious when she lied and fabricated in her deposition 

. . . .”16 However, Collins did not specify which statements 

were fabricated or provide any detail of the deposition. He 

also failed to identify the legal basis on which trial counsel 

could have excluded any of the testimony. Without more 

specificity, Collins failed to adequately allege this claim. 

Thus, the district court was correct in denying it without an 

evidentiary hearing.

(f) Allegations Concerning Discovery

Collins alleged that trial counsel failed to conduct depositions of two State witnesses and review other deposition 

14 State v. Schwaderer, supra note 6.

15 Brief for appellant at 14.

16 Id.
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transcripts with him. He generally claimed that, had counsel 

deposed the witnesses and shared all deposition transcripts 

with him, he “would not have agreed to the plea agreement in 

this matter.”17 But, without more, these are merely conclusory 

statements. Collins has not alleged any facts that the depositions may have revealed that would have prevented his acceptance of the plea deal. Because these claims were insufficiently 

pled, the district court was correct in denying the claims without an evidentiary hearing.

(g) Coerced Acceptance 

of Plea Agreement

Collins alleged that trial counsel coerced his acceptance of 

the plea agreement by withholding discovery; admitting that 

counsel had never tried a case like his; failing to inform him 

of the rights he would waive by pleading guilty and how the 

proceedings would go; prompting him to answer the court’s 

questions at the plea hearing; and suggesting that he would be 

imprisoned for at least 35 years if he did not plead guilty, but 

would likely get probation or a light sentence if he accepted 

the plea deal. However, these allegations are directly refuted 

by the record.

The district court informed Collins of the rights he would 

retain and the rights he would waive by entering his plea, 

which Collins stated he understood. The court also explained 

the range of penalties which Collins would be subject to as a 

result of his plea, which Collins again stated he understood. 

Collins asserted that “[t]here’s been no promises” on whether 

he would receive a particular sentence or be placed on probation and affirmed that he had enough time to talk to his attorney before the hearing. This record affirmatively shows that 

Collins is entitled to no relief on this claim, because he freely, 

knowingly, intelligently, and voluntarily entered his plea pursuant to the plea agreement.

17 Id.
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STATE v. COLLINS

Cite as 299 Neb. 160

2. Motion to Appoint Counsel

[7] Collins assigns and argues that the district court erred 

when it denied his motion for appointment of postconviction 

counsel. When the defendant’s petition presents a justiciable 

issue to the district court for postconviction determination, an 

indigent defendant is entitled to the appointment of counsel.18

But, where the assigned errors in the postconviction petition before the district court are either procedurally barred 

or without merit, establishing that the postconviction petition contained no justiciable issue of fact or law, it is not 

an abuse of discretion to fail to appoint counsel for an indigent defendant.19

As we have noted, Collins has not alleged facts sufficient 

to entitle him to an evidentiary hearing on his postconviction 

claim, and thus has raised no justiciable issue of fact or law. 

Therefore, the district court did not abuse its discretion in 

declining to appoint counsel.

VI. CONCLUSION

For the reasons set forth above, we affirm the final order of 

the district court.

Affirmed.

Kelch, J., participating on briefs.

Wright, J., not participating.

18 State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).

19 See, State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016); State v. Phelps, 

286 Neb. 89, 834 N.W.2d 786 (2013).