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STATE v. HAYNES

Cite as 299 Neb. 249

State of Nebraska, appellee, v.

Dammon T. Haynes, appe

___ N.W.2d ___

Filed March 9, 2018. No. S-17-031.

1. Postconviction: Judgments: Appeal and Error. Whether a claim 

raised in a postconviction proceeding is procedurally barred is a question of law which is reviewed independently of the lower court’s ruling.

2. Postconviction: Constitutional Law. A trial court’s ruling that the 

petitioner’s allegations are refuted by the record or are too conclusory 

to demonstrate a violation of the petitioner’s constitutional rights is not 

a finding of fact—it is a determination, as a matter of law, that the petitioner has failed to state a claim for postconviction relief.

3. 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.

4. Postconviction: Right to Counsel: Appeal and Error. The failure of 

the district court to provide court-appointed counsel in a postconviction 

proceeding is reviewed for an abuse of discretion.

5. Postconviction: Constitutional Law. Postconviction relief is a very 

narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable.

6. Postconviction: Sentences: Appeal and Error. The Nebraska 

Postconviction Act is intended to provide relief in those cases where 

a miscarriage of justice may have occurred; it is not intended to be a 

procedure to secure a routine review for any defendant dissatisfied with 

his or her sentence.

7. Postconviction: Pleas: Waiver. The Nebraska Postconviction Act does 

not provide a procedure whereby the defendant can avoid the waiver 

inherent to a voluntary entry of a guilty plea or plea of no contest.

Nebraska Supreme Court Online Library

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

04/13/2018 08:36 AM CDT
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8. Pleas: Waiver: Indictments and Informations: Effectiveness of 

Counsel: Jurisdiction. The voluntary entry of a guilty plea or a plea 

of no contest waives every defense to a charge, whether the defense is 

procedural, statutory, or constitutional. The only exceptions are for the 

defenses of insufficiency of the indictment, information, or complaint; 

ineffective assistance of counsel; and lack of jurisdiction.

9. Postconviction: Appeal and Error. On appeal from the denial of 

postconviction relief without an evidentiary hearing, the question is not 

whether the movant was entitled to relief by having made the requisite 

showing. Instead, it must be determined whether the allegations were 

sufficient to grant an evidentiary hearing.

10. Postconviction. The allegations in a motion for postconviction relief 

must be sufficiently specific for the district court to make a preliminary 

determination as to whether an evidentiary hearing is justified.

11. Postconviction: Pleadings: Proof: Constitutional Law. In a proceeding under the Nebraska Postconviction Act, the application is required 

to allege facts which, if proved, constitute a violation or infringement 

of constitutional rights, and the pleading of mere conclusions of fact 

or of law are not sufficient to require the court to grant an evidentiary hearing.

12. Postconviction: Proof: Constitutional Law. An evidentiary hearing 

must be granted when the facts alleged, if proved, would justify relief, 

or when a factual dispute arises as to whether a constitutional right is 

being denied.

13. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not presented to or passed upon by the trial court.

14. Postconviction: Effectiveness of Counsel: Proof. In order to establish 

a right to postconviction relief based on a claim of ineffective assistance 

of counsel, the defendant has the burden first 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 in the area. 

Next, the defendant must show that counsel’s deficient performance 

prejudiced the defense in his or her case.

15. Effectiveness of Counsel: Pleas. In a plea context, deficiency depends 

on whether counsel’s advice was within the range of competence 

demanded of attorneys in criminal cases.

16. ____: ____. The prejudice requirement in a plea context is satisfied if 

the defendant shows a reasonable probability that but for the errors of 

counsel, the defendant would have insisted on going to trial rather than 

pleading guilty.

17. ____: ____. In determining the prejudice component of alleged ineffective assistance of counsel in a plea context, the likelihood of the 
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defense’s success had the defendant gone to trial should be considered 

along with other factors, such as the likely penalties the defendant 

would have faced if convicted at trial, the relative benefit of the plea 

bargain, and the strength of the State’s case.

18. Postconviction: Effectiveness of Counsel. In a motion for postconviction relief, self-serving declarations that fail to allege specific facts that 

will be presented in an evidentiary hearing will not be sufficient on their 

own to raise a question of prejudice in an allegation of ineffective assistance of counsel.

19. Postconviction: Pleas: Effectiveness of Counsel. A motion for postconviction relief seeking to set aside a conviction pursuant to a plea on 

the grounds that it was the result of ineffective assistance of counsel 

must allege objective facts that raise a question of whether a rational 

defendant would have insisted on going to trial.

20. Postconviction: Appeal and Error. When considering whether the district court correctly denied a motion for postconviction relief without an 

evidentiary hearing, an appellate court will not consider factual allegations made for the first time on appeal.

21. Trial: Pleas: Mental Competency. A person is competent to plead or 

stand trial if he or she has the capacity to understand the nature and 

object of the proceedings against him or her, to comprehend his or her 

own condition in reference to such proceedings, and to make a rational defense.

22. ____: ____: ____. The test of mental capacity to plead is the same as 

that required to stand trial.

23. Postconviction: Witnesses. A significant degree of specificity is 

required in postconviction motions for claims relating to potential 

witnesses.

24. Right to Counsel: Effectiveness of Counsel. A defendant representing himself or herself pro se cannot thereafter assert his or her own 

incompetency.

25. Postconviction: Appeal and Error. Plain error cannot be asserted in a 

postconviction proceeding to raise claims of error by the trial court.

26. Effectiveness of Counsel: Appeal and Error. Counsel’s failure to raise 

an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the 

result of the appeal.

Appeal from the District Court for Douglas County: Shell

R. Stratman, Judge. Affirm

Dammon T. Haynes, pro se.
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STATE v. HAYNES

Cite as 299 Neb. 249

Douglas J. Peterson, Attorney General, and Sarah E. Marfisi 

for appellee.

Heavican, C.J., Cassel, Stacy, and Fun

Heavican, C

I. NATURE OF CASE

This is an appeal from the denial of postconviction relief 

without an evidentiary hearing or the appointment of counsel. 

The petitioner makes numerous arguments that his trial counsel, who also represented him on direct appeal, were ineffective. Petitioner also argues that he was sentenced to nonexistent 

crimes of being a habitual criminal, which he asserts resulted 

in void sentences. We affirm the judgment below.

II. BACKGROUND

1. Charges

Dammon T. Haynes was charged with three counts under 

case No. CR14-701. Count I charged him with stalking, second offense, in violation of Neb. Rev. Stat. §§ 28-311.03 and 

28-311.04(2)(a) (Reissue 2008), a Class IV felony. Count II 

charged him with terroristic threats, in violation of Neb. Rev. 

Stat. § 28-311.01(1)(a) (Reissue 2008), a Class IV felony. 

Count III, habitual criminal, described that Haynes has twice 

been convicted of a crime, sentenced, and committed to prison 

for terms of not less than 1 year each and, thus, “is a Habitual 

Criminal as described in Neb. Rev. Stat. §29-2221.”

At the same time, under case No. CR14-1202, Haynes 

was charged with two counts. Under count I, he was charged 

with tampering with a witness, in violation of Neb. Rev. Stat. 

§ 28-919(1) (Reissue 2008), a Class IV felony. Count II, habitual criminal, described that Haynes has twice been convicted 

of a crime, sentenced, and committed to prison for terms of 

not less than 1 year each and, thus, “is a Habitual Criminal as 

described in Neb. Rev. Stat. §29-2221.”

Under other case numbers, Haynes was charged with possession of a controlled substance, witness tampering, and identity theft.
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2. Plea

Haynes entered into a plea agreement with the State. In case 

No. CR14-701, Haynes pled no contest to the charges of count 

I, stalking, second offense, and count II, terroristic threats. In 

case No. CR14-1202, Haynes pled no contest to count I, tampering with a witness.

The pleas were negotiated in exchange for dismissal of the 

other charges, under different case numbers, of possession of 

a controlled substance, witness tampering, and identity theft. 

The State also agreed not to file any further charges based 

on Haynes’ conduct up to the date of the pleas. The State had 

apparently been preparing to charge Haynes with 16 additional 

misdemeanor counts.

The day Haynes pled to the charges, the State entered into 

evidence a psychiatric report demonstrating that Haynes was 

competent and the court specifically found Haynes competent 

to stand trial.

The court considered cases Nos. CR14-701 and CR14-1202 

together during the plea colloquy, as well as during the enhancement and sentencing hearing.

During the plea colloquy, the court confirmed with Haynes 

that he understood the nature of the charges, the terms of the 

plea agreement, the sentencing range for the crimes, and the 

possible habitual criminal enhancement. The court explained 

that the charges of terroristic threats and tampering with a witness were subject to habitual criminal enhancement, while the 

charge of stalking, second offense, was not.

Haynes affirmed that his pleas were freely and voluntarily 

made. Haynes stated that he had been given enough time to 

discuss the case with his counsel and that he was satisfied with 

their representation.

As a factual basis for the pleas, the State provided that it 

would have adduced evidence that on or about January 22 

through February 12, 2014, Haynes harassed and threatened 

the victim, his ex-girlfriend, after she broke off their relationship and moved in with her mother. Haynes continued to call, 

drive by the victim’s house, and send text messages, even after 
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a protection order was in place. Some messages were sent to 

the victim’s mother, advising her to keep the victim away from 

the “back windows,” because “he attempted to get his boys to 

chill,” but “the call was already made.” On one occasion, the 

victim and her mother witnessed Haynes drive by and point 

his fingers out the window as if they were a gun. On another 

occasion, the victim and her mother witnessed Haynes drive by 

and yell, “[H]ey bitch, I’m coming back. This house is going 

to get shot up tonight.” During the same time period, Haynes 

filled out change of address forms for the victim without her 

consent, pretended to be the victim in order to have her cable 

turned off, and sent “jitney cabs” to the victim’s house during 

all hours of the night.

After being jailed on the charges, Haynes made approximately 44 calls to the victim, using another inmate’s telephone 

number. During the conversations, Haynes asked the victim not 

to go to court. Haynes also sent letters through other inmates 

to contacts on the outside, asking them to tell the victim to stop 

talking to law enforcement and prosecutors.

The court found that Haynes’ pleas of no contest were 

entered freely, knowingly, intelligently, and voluntarily. Haynes 

was adjudged guilty of the charges of stalking, terroristic 

threats, and tampering with a witness.

3. Sente

For purposes of habitual criminal enhancement, the State 

entered into evidence prior convictions, and the court found 

the prior convictions valid and supporting enhancement. The 

presentence investigation report (PSI) indicated an extensive 

criminal history, including convictions for assault, terroristic 

threats, stalking, harassment by telephone, intimidation by telephone, and violations of protection orders. The victims were 

past girlfriends and an ex-wife. The PSI reflects that Haynes 

has been arrested 23 times for crimes of domestic violence and 

has had 16 protection orders filed against him by 14 different 

people in the last 18 years. Attached to the PSI were several 

victim impact statements related to prior convictions.
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Defense counsel asked the court to order a new PSI on 

the grounds that the officer who prepared the PSI was biased 

against Haynes. Counsel explained that the investigator had 

been Haynes’ probation officer in 1999 and had prepared a 

PSI in another case in 2009. Counsel suggested that someone 

else would be able to “give a more independent evaluation.” 

The court denied the motion, noting that although the report 

demonstrated familiarity with Haynes, it was mostly a factual 

recitation of past and present charges.

The State argued at the sentencing hearing that the court 

should consider Haynes’ past convictions and the domestic 

abuse and stalking of former girlfriends and his ex-wife.

The district court observed that Haynes had an extensive 

criminal history and was “one of the worst” domestic violence offenders the court had ever seen. The court stated that 

it had reached this conclusion based on the factual statements 

in the PSI and the victim statements, not on any commentary 

in the PSI reflecting the investigator’s personal familiarity 

with Haynes.

In case No. CR14-701, the court sentenced Haynes to concurrent sentences of 12 to 24 years’ imprisonment, with 289 

days’ credit for time served. In case No. CR14-1202, the court 

sentenced Haynes to 12 to 24 years’ imprisonment, to be 

served consecutively to the sentences in case No. CR14-701.

4. Direct App

Haynes filed a direct appeal, represented by the same defense 

counsel as at the trial stage. He asserted on appeal that the sentences were excessive.

The Nebraska Court of Appeals, in a memorandum opinion, found that the sentences were not excessive.1

 However, 

it vacated and remanded that portion of the sentence in case 

No. CR14-701 that imposed habitual criminal enhancement 

on the charge of stalking, second offense. The court noted 

1 State v. Haynes, Nos. A-14-1082, A-14-1083, 2015 WL 4626756 (Neb. 

App. Aug. 4, 2015) (selected for posting to court website).
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that because the sentences were concurrent, the error was for 

all practical purposes harmless, but nevertheless needed to 

be corrected.2

5. Motion for Postconvictio

Thereafter, Haynes, representing himself pro se, filed a 

motion for postconviction relief. Haynes asserted 12 acts of 

ineffective assistance of counsel. He generally alleged that but 

for these acts of ineffective assistance of counsel, he would 

have insisted on going to trial.

First, Haynes alleged that counsel was deficient for failing 

to discuss, apprise, or review “any of the discovery turned 

over by the state.” Second, Haynes alleged counsel failed to 

investigate, interview, or depose other “witnesses,” who would 

have testified that his relationship with the victim was “wholesome” and “not the negative transgression or aggression the 

state and police officials deploy.” Third, Haynes alleged that 

counsel should have driven by the victim’s residence to obtain 

more “detailing descriptive streets.” Fourth, Haynes alleged 

that counsel was deficient in failing to locate, interview, or 

depose the victim, who would have given “a very different version of events that [sic] what the state produced” and “would 

have testified that the charges lodged against [Haynes] were 

unfounded, and concocted by her mother.”

Fifth, Haynes alleged that there were several questions that 

he asked counsel, which he listed, to “formulate a defense” in 

Haynes’ favor. Sixth, Haynes alleged that counsel was ineffective by “failing to apprise [Haynes] of the nature of the charges 

lodged against him; the consequences of the charges [Haynes] 

was said to had [sic] committed; and a reasonable explanation as to whether or not he should proceed to trial on those 

charges.” Seventh, Haynes asserted that counsel should have 

challenged law enforcement’s warrantless seizure of his outgoing mail while in jail and use of that mail to contact recipients 

and discourage their continued communication with him.

2 Id.
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Eighth, Haynes alleged that 7 months of “solitary confinement,” and its restrictions, particularly telephone restrictions, 

limited his ability to contact counsel and thereby “impeded 

[Haynes’] participation in his case,” allegedly denying him 

due process. The restrictions also limited his access to outside 

sources who could have allegedly helped him “prepare and 

help counsel’s [sic] with a propper [sic] defense” and rendered it “impossible for [Haynes] to obtain information that 

would have undermined the states [sic] case via the charges.” 

He asserted that counsel was ineffective for failing to challenge these restrictions. Haynes also generally asserted that the 

restrictive confinement rendered his plea involuntary.

Ninth, Haynes alleged under the heading “Failure to 

Investigate and Prepare Defense” that the county attorney 

met with the victim before charges were filed. Tenth, Haynes 

asserted that counsel was deficient in failing to assert on direct 

appeal that the presentence investigator was biased against 

him. Eleventh, Haynes asserted that counsel should have raised 

on appeal the allegation that his plea was not supported by an 

adequate factual basis.

Twelfth, Haynes alleged counsel was ineffective for failing to raise as error on direct appeal the habitual criminal 

count in case No. CR14-701. Haynes theorized, without citation to any relevant authority, that all charges under the same 

information must be subject to habitual criminal enhancement 

in order for the habitual criminal statute to legally apply to 

the case.

Haynes also made several allegations of “plain error” that 

did not appear to relate to an ineffective assistance of counsel claim.

The allegations of Haynes’ motion will be set forth in further 

detail in our opinion.

6. District Court Or

The district court denied the motion for postconviction 

relief without an evidentiary hearing or the appointment 

of counsel.
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With respect to the claims of ineffective assistance of counsel, the court stated that Haynes had failed to set forth specific 

facts relating to prejudice and only generically offered the 

self-serving declaration that but for the deficient performance, 

he would have insisted on going to trial.

The court elaborated that on all claims relating to a failure 

to investigate, Haynes did “not state what additional evidence 

would have been gathered, or how a different result would 

have been obtained.” The court stated that this was reason 

alone to deny the motion without an evidentiary hearing on 

the allegations.

Alternatively to the lack of specificity regarding prejudice, 

the court reasoned, regarding the telephone restrictions during administrative confinement, that Haynes failed to set forth 

how defense counsel could have challenged a decision by the 

Department of Correctional Services. The court noted that 

counsel is not ineffective for failing to bring a motion that 

does not have merit.3 Regarding the claim that counsel failed 

to inform Haynes of the nature of the charges, the court alternatively reasoned that the plea colloquy refuted such a claim.4

As for the allegations of prosecutorial misconduct and the 

presentence investigator’s conflict of interest, the court concluded Haynes had “failed to set forth any facts or law establishing inclusion of such issues would have ‘changed the result 

of the appeal.’”5

With regard to any claim of “plain error,” separate from 

Haynes’ ineffective assistance of counsel claims, the court 

relied on our statement in State v. Sepulveda6 that plain error 

cannot be asserted in a postconviction proceeding to raise 

claims of error by the trial court.

Haynes appeals.

3 See State v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007).

4 See, State v. Dragon, 287 Neb. 519, 843 N.W.2d 618 (2014); State v. Vo, 

279 Neb. 964, 783 N.W.2d 416 (2010).

5 See State v. Jim, 278 Neb. 238, 768 N.W.2d 464 (2009).

6 State v. Sepulveda, 278 Neb. 972, 775 N.W.2d 40 (2009).
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III. ASSIGNMENTS OF ERROR

Largely verbatim, Haynes asserts that (1) his claims of ineffective assistance of counsel are “meritable,” warranting the 

need of an evidentiary hearing to show cause; (2) the grounds 

and claims submitted for postconviction relief exhibit “colorable claims” worthy of the relief sought; (3) the district court 

erred in denying Haynes’ motion for postconviction relief; (4) 

the district court erred in denying Haynes’ motion to appoint 

counsel; (5) the district court erred in allowing the State to 

use false and highly prejudicial claims that Haynes sexually 

assaulted women in the past; (6) the district court erred when 

overruling Haynes’ request to remove the presentence investigator due to bias; and (7) the district court erred in allowing the 

State to place Haynes in “[s]olitary [c]onfinement” during the 

pretrial stages, prohibiting him from contacting his attorneys 

by telephone.

IV. STANDARD OF REVIEW

[1] Whether a claim raised in a postconviction proceeding 

is procedurally barred is a question of law which is reviewed 

independently of the lower court’s ruling.7

[2,3] A trial court’s ruling that the petitioner’s allegations 

are refuted by the record or are too conclusory to demonstrate 

a violation of the petitioner’s constitutional rights is not a 

finding of fact—it is a determination, as a matter of law, that 

the petitioner has failed to state a claim for postconviction 

relief.8 Thus, 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.9

7 State v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004).

8 State v. Determan, 292 Neb. 557, 873 N.W.2d 390 (2016).

9 Id.
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[4] We review the failure of the district court to provide 

court-appointed counsel in a postconviction proceeding for an 

abuse of discretion.10

V. ANALYSIS

Haynes appeals from the denial of postconviction relief 

without an evidentiary hearing or the appointment of counsel. 

He sought to set aside his convictions, which were entered 

pursuant to pleas of no contest. He also alleged errors in sentencing. The district court concluded that Haynes had failed to 

allege sufficient facts that, even if proved true at an evidentiary 

hearing, would render his judgment void or voidable. As to 

certain allegations, the court also found them to be affirmatively refuted by the record.

[5,6] Postconviction relief is a very narrow category of 

relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable.11 The Nebraska 

Postconviction Act is intended to provide relief in those cases 

where a miscarriage of justice may have occurred; it is not 

intended to be a procedure to secure a routine review for any 

defendant dissatisfied with his or her sentence.12

[7,8] The Nebraska Postconviction Act likewise does not 

provide a procedure whereby the defendant can avoid the 

waiver inherent to a voluntary entry of a guilty plea or plea of 

no contest. The voluntary entry of a guilty plea or a plea of no 

contest waives every defense to a charge, whether the defense 

is procedural, statutory, or constitutional.13 “The only exceptions are for the defenses of insufficiency of the indictment, 

10 See State v. Rehbein, 235 Neb. 536, 455 N.W.2d 821 (1990).

11 See, State v. Barnes, 272 Neb. 749, 724 N.W.2d 807 (2006); State v. Lytle, 

224 Neb. 486, 398 N.W.2d 705 (1987); Neb. Rev. Stat. § 29-3001 (Reissue 

2016).

12 See State v. Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).

13 State v. Trackwell, 250 Neb. 46, 547 N.W.2d 471 (1996); State v. 

Dreimanis, 8 Neb. App. 362, 593 N.W.2d 750 (1999).
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information, or complaint; ineffective assistance of counsel; 

and lack of jurisdiction.”14

[9] On appeal from the denial of postconviction relief without an evidentiary hearing, the question is not whether the 

movant was entitled to relief by having made the requisite 

showing.15 Instead, we must determine whether the allegations were sufficient to grant an evidentiary hearing.16 Section 

29-3001(2) states:

Unless the motion and the files and records of the case 

show to the satisfaction of the court that the prisoner is 

entitled to no relief, the court shall . . . grant a prompt 

hearing thereon, and determine the issues and make 

findings of fact and conclusions of law with respect 

thereto.

[10-12] But the allegations in the motion for postconviction 

relief must be sufficiently specific for the district court to make 

such a preliminary determination as to whether an evidentiary 

hearing is justified.17 In a proceeding under the Nebraska 

Postconviction Act, the application is required to allege facts 

which, if proved, constitute a violation or infringement of 

constitutional rights, and the pleading of mere conclusions of 

fact or of law are not sufficient to require the court to grant an 

evidentiary hearing.18 An evidentiary hearing must be granted 

when the facts alleged, if proved, would justify relief, or when 

a factual dispute arises as to whether a constitutional right 

is being denied.19 In the absence of alleged facts that would 

render the judgment void or voidable, the proper course is to 

14 State v. Start, 239 Neb. 571, 574, 477 N.W.2d 20, 22-23 (1991). See, also, 

State v. Russell, 239 Neb. 979, 479 N.W.2d 798 (1992); State v. Wiemer, 3 

Neb. App. 821, 533 N.W.2d 122 (1995).

15 See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).

16 See id.

17 See State v. Lytle, supra note 11.

18 State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975).

19 See State v. Silvers, 255 Neb. 702, 587 N.W.2d 325 (1998).
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dismiss the motion for postconviction relief for failure to state 

a claim.20

[13] With these principles in mind, we turn to Haynes’ arguments on appeal. We consider only those arguments that were 

both adequately assigned and argued in his appellate brief. 

This court will not consider an issue on appeal that was not 

presented to or passed upon by the trial court.21

1. Alleged Ineffective Assist

Counsel Leading to P

of No Contes

Haynes principally asserts ineffective assistance of counsel. 

He argues that but for these acts of ineffective assistance of 

counsel, there was a “great probability,” sufficient to undermine confidence in the outcome, that Haynes would have 

insisted on going to trial.22 Because Haynes was represented 

both at trial and on direct appeal by the same lawyer or lawyers from the same office, this motion for postconviction 

relief is his first opportunity to assert ineffective assistance 

of counsel.

[14] In order to establish a right to postconviction relief 

based on a claim of ineffective assistance of counsel, the 

defendant has the burden first 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 in the area.23 Next, the defendant must show that 

counsel’s deficient performance prejudiced the defense in his 

or her case. The two prongs of this test, deficient performance 

and prejudice, may be addressed in either order.24

[15,16] In a plea context, deficiency depends on whether 

counsel’s advice was within the range of competence demanded 

20 See State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014).

21 Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 70 (2017).

22 Brief for appellant at 14.

23 State v. McLeod, supra note 3.

24 Id.
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of attorneys in criminal cases.25 The prejudice requirement in 

a plea context is satisfied if the defendant shows a “reasonable 

probability” that but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty.26

[17] The likelihood of the defense’s success had Haynes 

insisted on going to trial is relevant to this prejudice analysis.27 It is relevant to the consideration of whether “‘a rational 

defendant [would have] insist[ed] on going to trial.’”28 The 

likelihood of the defense’s success had the defendant gone to 

trial should be considered along with other factors, such as the 

likely penalties the defendant would have faced if convicted at 

trial, the relative benefit of the plea bargain, and the strength 

of the State’s case.29

[18] At an evidentiary hearing, “[s]elf-serving declarations 

that [the claimant] would have gone to trial will not be enough; 

he must present objective evidence showing a reasonable probability that he would have insisted on going to trial.”30 Neither 

will such self-serving declarations be sufficient on their own to 

state a claim requiring an evidentiary hearing.31

[19] The district court was correct that a motion for postconviction relief seeking to set aside a conviction pursuant 

to a plea on the grounds that it was the result of ineffective 

25 See State v. Zarate, 264 Neb. 690, 651 N.W.2d 215 (2002).

26 State v. Lee, 290 Neb. 601, 602, 861 N.W.2d 393, 395 (2015). See, also, 

e.g., State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015); State v. 

Yos-Chiguil, supra note 15; State v. Glover, 278 Neb. 795, 774 N.W.2d 

248 (2009); State v. McLeod, supra note 3; State v. Barnes, supra note 11; 

State v. Deckard, 272 Neb. 410, 722 N.W.2d 55 (2006); State v. Silvers, 

supra note 19.

27 See State v. Yos-Chiguil, supra note 15.

28 Id. at 631, 798 N.W.2d at 844, quoting Roe v. Flores-Ortega, 528 U.S. 

470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000).

29 See State v. Yos-Chiguil, supra note 15.

30 Id. at 632, 798 N.W.2d at 844.

31 See State v. Barrera-Garrido, 296 Neb. 647, 895 N.W.2d 661 (2017).
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assistance of counsel must allege objective facts that raise a 

question of whether a rational defendant would have insisted 

on going to trial. And we agree with the district court that 

most of Haynes’ claims failed to allege facts raising a question of whether a rational defendant would have insisted on 

going to trial. Other allegations are affirmatively refuted by 

the trial record. None of the allegations warranted an evidentiary hearing.

We address each of the allegations in turn.

(a) Meeting Between Victim 

and County Attorney

Haynes first argues that counsel was ineffective for failing 

to challenge the county attorney’s meeting with the victim 

before charges were filed. In his motion for postconviction relief, Haynes alleged under the heading “Failure to 

Investigate and Prepare Defense” that the county attorney met 

with the victim before charges were filed. He asserted this 

violated due process, because it gave the county attorney firsthand information and gave the county attorney time to “plant 

fear” in the victim.

Haynes did not make factual allegations as to how this 

“fear” affected the truthfulness of the victim’s account to law 

enforcement or how it otherwise impacted his defense. In 

other words, Haynes failed to allege facts raising a dispute as 

to whether a rational defendant would have insisted on going 

to trial.

Haynes’ attempt to focus on counsel’s failure to raise this 

issue on direct appeal does not change our analysis. As stated, 

in an appeal seeking to reverse a conviction pursuant to a plea 

of no contest, the appellate court will consider only claims 

of insufficiency of the indictment, information, or complaint; 

ineffective assistance of counsel; and lack of jurisdiction.32

Haynes’ motion failed to raise the prospect that had the 

32 State v. Start, supra note 14. See, also, State v. Russell, supra note 14; 

State v. Wiemer, supra note 14.
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purported due process issue been raised on direct appeal, it 

would have changed the result.33 But, in fact, Haynes’ allegation amounts simply to an allegation of ineffective assistance 

of counsel at trial, because trial counsel representing the 

defendant on appeal cannot be expected to raise his or her 

own ineffectiveness in failing to present an issue at trial.34

And Haynes’ counsel did not bring this alleged due process 

issue to the attention of the district court before Haynes 

entered his plea.

(b) Failure to Discuss 

State’s Discovery

Haynes next asserts on appeal that counsel “failed to discuss, apprise, or review any of the discovery turned over by 

the [S]tate”35 and that had counsel done so, counsel would have 

known the police reports were filed by the victim’s mother.

Haynes did not assert in his motion for postconviction 

relief, however, that counsel would have discovered that the 

police reports were filed by the victim’s mother. We note that 

Haynes fails to explain how the fact that the victim’s mother 

filed the police reports would have undermined the State’s 

case against Haynes and thereby created a reasonable probability that he would have insisted on going to trial. But, 

regardless, we will not consider arguments made for the first 

time on appeal.36

Haynes’ assertion in his motion that counsel failed to discuss 

with him “any of the discovery” turned over by the State was 

insufficiently specific. Without an allegation as to what the 

State’s discovery evidence was, Haynes failed to allege sufficient facts pertaining to whether a rational defendant would 

have insisted on going to trial.

33 See State v. Jim, supra note 5.

34 See, e.g., State v. Payne, 289 Neb. 467, 855 N.W.2d 783 (2014).

35 Brief for appellant at 13.

36 See State v. Thomas, 262 Neb. 138, 629 N.W.2d 503 (2001).
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(c) Questions Presented to 

Defense Counsel

Next, Haynes states in his brief that there were “many questions asked to counsel.”37 He lists these questions as including: 

(1) “Why are all of the imposed restrictions being placed on 

me given the fact that the alleged victim refuses to help prosecution?” (2) “Why is the Habitual Criminal tag being sought 

agains [sic] me even with my charges being the low end class 

4 felonies?” (3) With no physical voilence [sic] associated 

with this case why is the County Attorney not allowing the 

alleged victim and myself communicate [sic] for the well 

being of our young daughter?” and (4) “What are my chance 

[sic] if I proceed to trial given the fact that the alleged victim 

has shown no interest in helping build a case?”38

This list of questions asked is less an argument than a 

statement of purported historical fact. The fact that this list 

was presented somewhere under the heading of “Failure to 

Investigate and Prepare Defense” does not make it an argument. We find this an insufficient argument for this court to be 

able to address it.39

However, we note that this same insufficiency clearly supported the district court’s conclusion that Haynes had failed 

to state a claim warranting an evidentiary hearing.

(d) Administrative Confinement 

and Outgoing Mail

Haynes asserts that counsel was ineffective for failing to 

challenge his administrative confinement. He focuses primarily on restrictions on his ability to make telephone calls. 

Haynes argues that he was prejudiced by telephone restrictions, because they impeded his ability to call counsel and 

prevented him from calling unidentified persons who might 

37 Brief for appellant at 13.

38 Id.

39 See State v. Wagner, 295 Neb. 132, 888 N.W.2d 357 (2016).
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have helped him procure evidence of an alibi. This alibi evidence supposedly would have entailed train tickets and timecards for his job, demonstrating that he was working or out of 

town “during times that several Police reports were filed.”40

Somewhat relatedly, Haynes asserts that counsel should have 

challenged law enforcement officers’ warrantless confiscation 

of his outgoing mail while in jail and their contact with the 

recipients, encouraging them not to have further contact with 

Haynes. Again, Haynes believes this hindered his ability to 

procure evidence for his defense.

As the district court noted, Haynes failed to assert by what 

motion or action his counsel could have challenged such a 

decision of the Department of Correctional Services. While 

Haynes seems to classify these acts as prosecutorial misconduct, he fails to cite to any authority for that characterization.

[20] Haynes likewise failed to raise sufficiently specific 

facts demonstrating that a reasonable person would have 

insisted on going to trial, had counsel successfully challenged 

his administrative confinement. As with other assertions of 

ineffective assistance of counsel, Haynes has attempted to 

add more specific factual allegations for the first time in his 

appellate brief. When considering whether the district court 

correctly denied the motion without an evidentiary hearing, we will not consider factual allegations made for the 

first time on appeal.41 Haynes did not allege in his motion 

that train tickets and timecards would have presented an 

alibi. Rather, he generically alleged that he was hindered in 

his defense.

In any event, Haynes failed to raise a question of prejudice 

from his telephone restrictions or law enforcement’s discouraging mail recipients from further contact with Haynes, because 

he did not allege that counsel was unable to contact him, that 

he was unable to contact counsel through other means, or that 

40 Brief for appellant at 15.

41 See Walters v. Sporer, supra note 21.
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counsel was unable to conduct an adequate discovery without 

Haynes’ direct communication with these unidentified outside 

sources. Finally, whatever train tickets and timecards could 

have been procured, Haynes does not assert that these would 

have demonstrated he was nowhere in the vicinity of the 

crimes at any point from January 22 to February 12, 2014, as 

alleged in the information.

In other words, the allegations relating to counsel’s failure to 

challenge administrative confinement, confiscation of his mail, 

and contact with mail recipients, failed to sufficiently raise a 

triable issue warranting an evidentiary hearing.

Haynes seems to generally argue that counsel failed to 

protect his mental health, noting that “[t]hose surroundings 

with no outside communication can cause serious issues mentally.”42 But Haynes does not assert that he actually suffered 

from such serious mental issues. He merely broadly states that 

“[t]he plea . . . was not done knowingly, willingly, or voluntarily, due to the restrictions placed on [Haynes], along with 

[Haynes’] being placed in solitary confinement for over seven 

months . . . .”43

[21,22] Even if we generously read these arguments as 

asserting that Haynes was incompetent—and that counsel was 

ineffective for failing to seek a competency hearing or moving 

to withdraw Haynes’ plea—Haynes’ motion failed to allege 

facts that would have raised doubts as to his competency. A 

person is competent to plead or stand trial if he or she has the 

capacity to understand the nature and object of the proceedings against him or her, to comprehend his or her own condition in reference to such proceedings, and to make a rational 

defense.44 The test of mental capacity to plead is the same as 

that required to stand trial.45

42 Brief for appellant at 6.

43 Id. at 14.

44 State v. Vo, supra note 4.

45 Id.
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Haynes’ allegations, even if true, would not establish a 

“threshold level of doubt”46 concerning his competency that 

would make counsel’s inaction deficient. Haynes failed to 

allege what facts would have brought to counsel’s attention an 

incapacity to understand the nature and object of the proceedings against him, to comprehend his own condition in reference 

to such proceedings, and to make a rational defense.47 Haynes’ 

allegation that he was in “solitary confinement,” standing 

alone, is not a fact that would cause a criminal lawyer with 

ordinary training and skill in the area to question a defendant’s competency.

Finally, the record refutes any allegation that Haynes was 

incompetent. A medical evaluation established Haynes’ competency, and the district court specifically found Haynes competent before hearing his plea. Haynes’ responses to questions 

from the court during the plea colloquy were appropriate and 

reflected his knowledge that he was appearing in court for the 

purpose of entering a no contest plea and that he understood 

the consequences of such action as they were explained to him 

by the judge.

The district court was correct in denying an evidentiary 

hearing on the claims relating to his administrative confinement and confiscation of his outgoing mail while in jail.

(e) Failure to Visit Apartment Complex

Haynes asserts that counsel was somehow ineffective for 

failing to visit the apartment complex where he, the victim, 

and the victim’s mother all allegedly lived. He asserts that 

counsel should have been able to detail the “descriptive streets 

or locate where [Haynes] was said to venture driving by [the 

victim’s] home.”48 These allegations do not bring into question 

either counsel’s deficiency or any possible prejudice.

46 State v. Griffin, 20 Neb. App. 348, 355, 823 N.W.2d 471, 477 (2012).

47 See, State v. Vo, supra note 4; State v. Johnson, 4 Neb. App. 776, 551 

N.W.2d 742 (1996).

48 Brief for appellant at 13.
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(f) Failure to Interview

 Character Witnesses

Haynes argues that counsel failed to interview “witnesses” 

he informed counsel of, who would have stated that he was 

the sole provider for the household and that “ill feelings” of 

the victim’s mother “caused these issues to happen.”49 His 

allegations in the motion for postconviction relief stated somewhat similarly that “witnesses” would have said Haynes and 

the victim had “a relationship in which [Haynes] was the sole 

provider for the household in wholesome relations and not the 

negative transgression or aggression the state and police officials deploy.”

[23] We require a significant degree of specificity in postconviction motions for claims relating to potential witnesses.50

And, because this case involves a plea, any claim based on 

potential witnesses is all the more hypothetical and subject to 

scrutiny. We have explained:

“The plea process brings to the criminal justice system 

a stability and a certainty that must not be undermined 

by the prospect of collateral challenges in cases not only 

where witnesses and evidence have disappeared, but also 

in cases where witnesses and evidence were not presented 

in the first place.”51

Haynes did not provide the names or descriptions of the 

uncalled witnesses. Haynes describes the general nature of the 

testimony the witnesses would have provided, but this potential testimony generally vouching for the wholesome and nonaggressive nature of Haynes’ relationship with the victim only 

marginally impacts the likelihood of the defense’s success had 

Haynes insisted on going to trial.

49 Id. at 12.

50 See, State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017); State v. 

Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).

51 State v. Yos-Chiguil, supra note 15, 281 Neb. at 634, 798 N.W.2d at 845 

(Heavican, C.J., concurring), quoting Premo v. Moore, 562 U.S. 115, 131 

S. Ct. 733, 178 L. Ed. 2d 649 (2011).
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More to the point, Haynes apparently discussed these potential witnesses with counsel and was able to consider with 

counsel the hypothetical effect of their potential testimony 

before deciding to plead. Thus, counsel determined as a matter 

of strategy that it was unnecessary to depose these witnesses to 

confirm Haynes’ assertion as to what they would say regarding their perception of Haynes’ relationship with the victim. 

The allegation in the motion that counsel had not “call[ed], 

locate[d] and acquire[d] witnesses,” before Haynes decided to 

accept the State’s plea bargain offer, fails to call into question 

whether a reasonable person would have instead insisted on 

going to trial.

(g) Failure to Interview 

and Depose Victim

Lastly, Haynes asserts that had counsel interviewed and 

deposed the victim, she would have said the allegations were 

“unfounded” and revealed that her mother made all the police 

reports. In the motion for postconviction relief, Haynes similarly alleged that counsel was ineffective for failing to “locate, 

interview or depose the said victim” and that “[h]ad she been 

located, interviewed, or deposed, she would have testified 

that the charges lodged against [Haynes] were unfounded, and 

concocted by her mother . . . [w]hich all led to . . . a coerced 

and minipulated [sic] plea . . . at the ill advice and ineffective 

representation of counsel’s.” Haynes concluded that but for 

defense counsel’s ineffectiveness, there was a “great probability” and a “high probability,” “sufficient to undermine confidence in the outcome,” that Haynes would not have pled and 

would have gone to trial.

[24] Haynes had moved, pro se, to depose the victim. But at 

the hearing to accept his plea, Haynes affirmed to the court that 

he wished to withdraw his motion to depose the victim. The 

record is as follows:

[Defense counsel]: . . . At this time we move to withdraw the Notice and Motion to Take Deposition that 

was filed by my client on August 4th. We’ve had an 
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opportunity to talk to my client. It was a pro se motion, 

and he understands what is going on here and shares in 

our wish to withdraw that motion.

THE COURT: Is that correct . . . ?

[Haynes]: Yes, ma’am.

A defendant representing himself or herself pro se cannot 

thereafter assert his or her own incompetency.52 Though he had 

counsel, Haynes acted pro se in moving to depose the victim 

and in withdrawing that motion. Haynes spoke for himself at 

the hearing. He cannot now claim in his motion for postconviction relief that his decision not to depose the victim was 

in error.

2. Sente

We turn now to several arguments Haynes makes concerning his sentencing.

(a) Habitual Criminal Enhancement 

Must Apply to All or None

First, Haynes asserts that counsel was ineffective for failing 

to challenge habitual criminal enhancement on the grounds 

that there can be no enhancement unless all the charges in 

the information are amendable to habitual criminal enhancement. He concludes that because, under case No. CR14-701, 

the stalking charge was not amendable to habitual criminal 

enhancement, neither was count II, terroristic threats. The 

only law cited by Haynes in support of this conclusion is that 

cited by the Court of Appeals in holding that second-offense 

stalking could not be doubly enhanced through the habitual 

criminal statute.

There is simply no merit to Haynes’ legal assertion that 

all charges in an information must be amendable to habitual 

criminal enhancement in order for any charge to be subject to 

enhancement under the habitual criminal statute. We therefore 

52 See State v. Dunster, 278 Neb. 268, 769 N.W.2d 401 (2009).
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agree with the district court that this allegation fails to raise 

any issue of deficient performance or prejudice.

(b) Void Sentence for “Crime” of 

Being Habitual Criminal

Haynes further argues, for the first time on appeal, that his 

sentences were void, suffering the same infirmities as found in 

Meyer v. Frakes.53 Because a void judgment can be attacked 

at any time in any proceeding,54 we will address this argument 

despite Haynes’ failure to raise it below.

The habitual criminal statute states that “the facts with 

reference thereto shall be charged in the indictment or information which contains the charge of the felony upon which 

the accused is prosecuted.”55 Thus, there is no error in setting 

forth habitual criminal status as a count in the information. But 

Haynes asserts that, as in Meyer v. Frakes,

56 he was convicted 

of the crime of being a habitual criminal and was separately 

sentenced for such crime. In Meyer, we said that “a separate 

sentence for the nonexistent crime of being a habitual criminal is void,” because “[t]here is no such offense as being a 

habitual criminal.”57

The record demonstrates that unlike the defendant in Meyer, 

Haynes was not, in fact, convicted and sentenced of being a 

habitual criminal. He did not plead no contest to being a habitual criminal. The court did not convict him of being a habitual 

criminal. And the court did not issue a separate sentence for 

the “crime” of being a habitual criminal. Instead, as is proper, 

the court enhanced Haynes’ sentences for the crimes of terroristic threats and tampering with a witness. We find no merit 

to Haynes’ argument that pursuant to Meyer, his sentences 

were void.

53 Meyer v. Frakes, 294 Neb. 668, 884 N.W.2d 131 (2016).

54 Johnson v. Johnson, 282 Neb. 42, 803 N.W.2d 420 (2011).

55 Neb. Rev. Stat. § 29-2221(2) (Reissue 2016).

56 Meyer v. Frakes, supra note 53.

57 Id. at 673-74, 884 N.W.2d at 136-37.
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(c) Prosecutorial Misconduct and 

Other Alleged Sentencing Errors

Lastly, Haynes argues several points of alleged prosecutorial misconduct or trial error during the sentencing hearing, 

unattached to any claim of ineffective assistance of counsel 

or any claim that his plea was involuntary. He presented these 

below as “plain error.” The allegations relate to the court’s 

consideration of his relationship with past girlfriends, allegedly false letters from past girlfriends, allegedly false accusations by the State of past sexual assaults, and a letter written 

from jail to an adult son. In sum, Haynes argues that the State 

improperly presented and the court improperly considered 

false “prior bad acts.” He also argues that a letter to his son 

should not have been considered, because it had been seized 

without a warrant.

[25] As the district court correctly noted, plain error cannot 

be asserted in a postconviction proceeding to raise claims of 

error by the trial court.58 Haynes cannot avoid the strictures 

of an ineffective assistance of counsel claim by reframing the 

allegation as plain error. Consideration of plain error occurs 

only at the discretion of an appellate court.59

[26] The only allegation of ineffective assistance of counsel raised in terms of sentencing is counsel’s failure to pursue on appeal the objection to the PSI investigator’s alleged 

bias. Counsel’s failure to raise an issue on appeal could be 

ineffective assistance of counsel only if there is a reasonable 

probability that inclusion of the issue would have changed the 

result of the appeal.60 We agree with the district court that a 

claim based on the alleged bias of the PSI investigator would 

not have been successful on appeal. This is especially true 

because the district court stated that it was not considering 

any statement in the PSI report that could have derived from 

58 State v. Sepulveda, supra note 6.

59 See id.

60 State v. Sellers, 290 Neb. 18, 858 N.W.2d 577 (2015).
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the investigator’s prior contact with Haynes. Therefore, this 

allegation, like the others, does not raise a claim warranting an 

evidentiary hearing.

3. Appointment of Counsel

Under the Nebraska Postconviction Act, it is within the 

discretion of the trial court as to whether counsel shall be 

appointed to represent the defendant.61 When the assigned 

errors in a postconviction petition before the district court contain no justiciable issues of law or fact, it is not an abuse of 

discretion to fail to appoint counsel for an indigent defendant.62

Based upon our conclusion that Haynes’ postconviction motion 

presented no justiciable issues for postconviction relief, we 

conclude that the district court did not abuse its discretion in 

denying his motion for appointment of counsel.

VI. CONCLUSION

For the foregoing reasons, we affirm the order of the district 

court denying Haynes’ motion for postconviction relief without an evidentiary hearing or the appointment of counsel.

Affirmed

Kelch, J., participating on brief

Wright and Miller-Lerman, JJ., not participati

61 State v. McLeod, supra note 3.

62 Id.