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State of Nebraska, appellee, v. Jose C.

Oliveira-Coutinho, appella

___ N.W.2d ___

Filed October 4, 2019. No. S-17-1262.

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: Right to Counsel: Appeal and Error. An appellate 

court reviews the failure of the district court to provide court-appointed 

counsel in a postconviction proceeding for an abuse of discretion.

3. Postconviction: Constitutional Law: Judgments. Postconviction relief 

is available to a prisoner in custody under sentence who seeks to be 

released on the ground that there was a denial or infringement of his or 

her constitutional rights such that the judgment was void or voidable.

4. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska 

Constitution, causing the judgment against the defendant to be void 

or voidable.

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

the claims in a postconviction motion when the motion contains factual 

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

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

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

to grant an evidentiary hearing.

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

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

Nebraska Supreme Court Online Library

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

11/22/2019 01:06 AM CST
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8. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and 

Error. To prevail on a claim of ineffective assistance of counsel under 

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

674 (1984), the defendant must show that his or her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. To show prejudice under the prejudice 

component of the Strickland test, the defendant must demonstrate a reasonable probability that but for his or her counsel’s deficient performance, the result of the proceeding would have been different. A reasonable probability does not require that it be more likely than not that 

the deficient performance altered the outcome of the case; rather, the 

defendant must show a probability sufficient to undermine confidence in 

the outcome.

9. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the 

ineffective assistance of counsel test under Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be addressed 

in either order, and the entire ineffectiveness analysis should be viewed 

with a strong presumption that counsel’s actions were reasonable.

10. Effectiveness of Counsel. Counsel’s failure to raise novel legal theories or arguments or to make novel constitutional challenges in 

order to bring a change in existing law does not constitute deficient 

performance.

11. Aiding and Abetting: Indictments and Informations: Notice. An 

information charging a defendant with a specific crime gives the defendant adequate notice that he or she may be prosecuted for the crime 

specified or as having aided and abetted the commission of the crime 

specified.

12. Constitutional Law: Criminal Law: Right to Counsel. A criminal 

defendant’s Sixth Amendment right to the assistance of counsel attaches 

only after the initiation of adversary judicial criminal proceedings—

whether by way of formal charge, preliminary hearing, indictment, 

information, or arraignment.

13. Lesser-Included Offenses: Jury Instructions: Evidence. A court must 

instruct on a lesser-included offense if (1) the elements of the lesser 

offense for which an instruction is requested are such that one cannot 

commit the greater offense without simultaneously committing the lesser 

offense and (2) the evidence produces a rational basis for acquitting the 

defendant of the greater offense and convicting the defendant of the 

lesser offense.

14. Postconviction: Right to Counsel. Under the Nebraska Postconviction 

Act, it is within the discretion of the trial court to decide whether counsel shall be appointed to represent the defendant.
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15. Postconviction: Justiciable Issues: Right to Counsel: Appeal and 

Error. Where the alleged errors in the postconviction petition before 

the district court are either procedurally barred or without merit, thus 

establishing that the postconviction proceeding contained no justiciable 

issue of law or fact, it is not an abuse of discretion to fail to appoint 

postconviction counsel for an indigent defendant.

Appeal from the District Court for Douglas County: Thoma

A. Otepka, Judge. Affirme

Jose C. Oliveira-Coutinho, pro se.

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

for appellee.

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

Papik, JJ

Miller-Lerman,

NATURE OF CASE

Jose C. Oliveira-Coutinho appeals the order of the district 

court for Douglas County which denied his motion for postconviction relief. Oliveira-Coutinho, who is serving sentences 

of life imprisonment for three first degree murder convictions 

and 20 years’ imprisonment for a theft by deception conviction, 

set forth numerous claims for postconviction relief. The district 

court determined that all of Oliveira-Coutinho’s claims were 

either insufficiently pled, affirmatively refuted by the record, 

or procedurally barred, and the court therefore denied his 

motion for postconviction relief without an evidentiary hearing 

and without appointing counsel. We affirm the order denying 

postconviction relief.

STATEMENT OF FACTS

Oliveira-Coutinho was convicted of three counts of first 

degree murder in connection with the 2009 deaths of Vanderlei 

and Jaqueline Szczepanik and their son, Christopher Szczepanik. 

Oliveira-Coutinho lived with the Szczepaniks and worked for 

Vanderlei. He was also convicted of theft by deception based 
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on evidence that after their deaths, he withdrew money from 

the Szczepaniks’ bank account. Oliveira-Coutinho’s convictions and sentences were affirmed on direct appeal. Further 

details regarding the crimes are provided in our opinion on 

direct appeal. State v. Oliveira-Coutinho, 291 Neb. 294, 865 

N.W.2d 740 (2015).

On June 27, 2016, Oliveira-Coutinho filed a pro se motion 

for postconviction relief in which he set forth numerous claims 

of ineffective assistance of counsel both at trial and on direct 

appeal. Oliveira-Coutinho had the same counsel at trial and on 

direct appeal, and he alleged that this postconviction action 

was his first opportunity to raise issues of ineffective assistance 

of trial counsel. Oliveira-Coutinho requested an evidentiary 

hearing and appointment of postconviction counsel. OliveiraCoutinho filed an amended motion for postconviction relief on 

June 26, 2017, in which he repeated his original claims and 

set forth several new claims. In the amended motion, OliveiraCoutinho included almost 50 separate claims.

On November 14, 2017, the district court overruled OliveiraCoutinho’s amended motion for postconviction relief without 

an evidentiary hearing. Generally, the court determined that 

each of Oliveira-Coutinho’s claims was either not pled with 

specificity, refuted by the record, or procedurally barred. In 

its order overruling the motion, the court stated that OliveiraCoutinho’s numerous claims fell into two categories—claims 

of ineffective assistance of counsel and claims of prosecutorial misconduct prior to the appointment of trial counsel. 

Regarding all the claims of ineffective assistance of counsel, 

the court determined generally that even if counsel’s performance was deficient in any of the ways alleged, the record 

refuted any claim that Oliveira-Coutinho suffered prejudice 

as a result of such deficient performance. The court stated, “if 

counsel were deficient in any of the claims alleged, the decision in this case would not have been any different in light 

of the evidence adduced at trial, which is thoroughly outlined 

in the direct appeal opinion.” The court further stated that in 
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reviewing Oliveira-Coutinho’s motion, it “was unable to find 

any specific facts relating to prejudice and instead could only 

locate generic statements.”

Although it determined that the failure to specifically allege 

prejudice was in itself reason to overrule the motion, the court 

addressed Oliveira-Coutinho’s specific claims of ineffective 

assistance of counsel. The court stated the claims were “at 

times confusing and somewhat overlapping,” and it therefore addressed the claims in the following 11 categories: (i) 

failure to challenge the competency of codefendant Valdeir 

Goncalves-Santos to be a witness against Oliveira-Coutinho, 

(ii) failure to object to a jury instruction regarding a potential 

mistrial if jurors violated rules set forth by the court, (iii) failure to challenge the court’s suppression ruling on appeal, (iv) 

failure to challenge the court’s refusal to sequester the jury, 

(v) failure to challenge the aiding and abetting instruction, (vi) 

failure to challenge the instruction on first degree murder, (vii) 

failure to file a motion to discharge on speedy trial grounds, 

(viii) failure to object to the testimony of Oliveira-Coutinho’s 

wife on grounds of hearsay and marital privilege, (ix) failure 

to object to portions of the State’s opening statements, (x) 

failure to object to the testimony of various witnesses based 

on hearsay and other bases, and (xi) failure to investigate certain witnesses and evidence. The court addressed these claims 

as follows.

(i) Failure to challenge competency of codefendant. As 

discussed further in our opinion on direct appeal, State v. 

Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015), 

Goncalves-Santos testified at Oliveira-Coutinho’s trial, and 

he generally testified that he and another individual helped 

Oliveira-Coutinho kill the Szczepaniks. In his amended motion 

for postconviction relief, Oliveira-Coutinho claimed that counsel was ineffective for failing to challenge Goncalves-Santos’ 

competency to testify and for failing to raise the issue on 

appeal. The district court determined that these claims were 

refuted by the record, which showed that counsel filed a 
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motion challenging Goncalves-Santos’ competency, the trial 

court overruled the motion after a hearing, and counsel asked 

for a reconsideration, which the trial court denied. The court 

also stated that this court had affirmed the trial court’s rulings 

on these matters on direct appeal.

(ii) Failure to object to jury instruction regarding potential mistrial. Oliveira-Coutinho claimed that counsel was ineffective for failing to object to “Preliminary Jury Instruction 

No. 1,” which he alleged stated in part:

“Any juror who violates these restrictions I have explained 

to you jeopardizes the fairness of these proceedings, and 

a mistrial could result that would require the entire trial 

process to start over. As you can imagine, a mistrial is a 

tremendous expense and inconvenience to the parties, to 

the Court and the taxpayers.”

(Emphasis omitted.) He argued that counsel should have 

objected to this instruction because it was confusing and prejudicial to his case and would discourage jurors from reporting misconduct. The district court determined that the record 

refuted this argument because the first jury instruction “filed 

October 9, 2012,” did not contain the language alleged. The 

court also noted that Oliveira-Coutinho failed to cite any 

authority establishing that an objection to such an instruction 

would have been successful.

(iii) Failure to challenge suppression ruling on appeal.

Oliveira-Coutinho claimed that counsel on direct appeal failed 

“to raise and argue a violation of [his] Fifth Amendment right.” 

In this claim, he refers to a motion to “suppress [his] February 

1st, 2010[,] Stop, Search and Detention under both the 4th

Amendment and the 5th Amendment.” Oliveira-Coutinho stated 

that counsel on appeal failed to assign and argue any Fifth 

Amendment violation, but he asserts that his “illiteracy prevents him from adequately present[ing] the Fifth Amendment 

claim and argu[ing] how this Claim would have changed the 

direct appeal result.” The district court noted that counsel did 

challenge the suppression ruling on direct appeal but that the 
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challenge was not successful. The court determined that its 

review of the trial court’s suppression ruling, “in combination 

with the lack of law supplied by [Oliveira-Coutinho],” revealed 

no additional challenges to the suppression ruling that would 

have changed the result of the direct appeal.

(iv) Failure to challenge refusal to sequester jury. 

Oliveira-Coutinho claimed that counsel on direct appeal failed 

to provide an adequate record for this court to review a claim 

that the trial court erred when it overruled a motion to sequester the jury for the entirety of the trial. He also claimed counsel 

failed to raise an issue on appeal regarding whether the trial 

court should have sequestered the jury at the start of deliberations. The district court determined that the record refuted these 

claims because (1) counsel raised and argued the denial of the 

motion to sequester for the entire trial, but the assignment 

of error was rejected on appeal, and (2) the record showed 

that “the jury was going to be sequestered at the request of 

[Oliveira-Coutinho] during deliberations.”

(v) Failure to challenge aiding and abetting instruction. 

Oliveira-Coutinho claimed that trial counsel was deficient for 

failing to object to the felony murder instruction because the 

instruction allowed the jury to find him guilty if it found that 

the killing occurred during the course of a robbery that he 

committed either alone or while aiding and abetting another. 

He argues that the instruction was in error because he was not 

charged under a theory of aiding and abetting and because the 

instruction failed to include an intent element in connection 

with robbery. In separate but related claims, Oliveira-Coutinho 

asserted that counsel was deficient for failing to inform him 

prior to trial that he could be prosecuted under an aiding and 

abetting theory and for failing to challenge the constitutionality of Neb. Rev. Stat. § 28-206 (Reissue 2016), which provides 

that “[a] person who aids, abets, procures, or causes another 

to commit any offense may be prosecuted and punished as if 

he were the principal offender.” He argued that the statute was 

unconstitutional because it allowed the State to prosecute a 
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defendant under an aiding and abetting theory without giving 

notice to the defendant that it intends to do so. He argued that 

the statute “makes the fatal assumption” that those who are 

subject to it understand they can be prosecuted under an alternative theory, and he asserts that because he does not speak 

English, he was not aware of the possibility of being convicted 

as an aider or abettor.

The district court stated that “the principle of aiding 

and abetting has been a staple in Nebraska law” and that 

“[Oliveira-Coutinho] fails to provide any authority creating 

a realistic constitutional challenged [sic] to the statute.” The 

court cited case law to the effect that an information charging 

a defendant with a specific crime gives the defendant adequate 

notice that he or she may be prosecuted for having aided or 

abetted the crime. The court determined that a challenge to 

the constitutionality of the statute would have been unsuccessful and that an objection to the instruction also would have 

been unsuccessful because the instruction was supported by 

the evidence.

(vi) Failure to challenge instruction on first degree murder. Oliveira-Coutinho claimed that counsel was deficient for 

failing to object to the first degree murder instruction, which 

he asserted was “faulty, unconstitutional and incomplete.” His 

claim focused on the provision in the instruction that the jury 

had to unanimously agree he was guilty of first degree murder 

but that it did not have to be unanimous as to whether he was 

guilty under a felony murder theory or under a premeditated 

murder theory. He argued that the instruction was confusing 

and misleading and that the evidence in this case did not support a premeditated murder theory. Oliveira-Coutinho made 

four additional claims related to this claim: He claimed that 

counsel was deficient for (1) failing on direct appeal to challenge “structural error” in the court’s acceptance of a jury 

verdict that was erroneous because it did not require unanimity 

as to the theory of first degree murder, (2) failing to challenge 

on appeal the sufficiency of the evidence as to each theory, 
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(3) failing to propose a jury verdict form that would have 

required unanimity as to the theory of first degree murder, and 

(4) failing to challenge the constitutionality of a jury verdict 

form that did not require unanimity.

The district court cited case law which, it asserted, had 

rejected Oliveira-Coutinho’s arguments regarding unanimity 

as to alternate theories of first degree murder. The court 

concluded that counsel was not ineffective, because the challenges proposed by Oliveira-Coutinho would not have been 

successful.

(vii) Failure to file motion to discharge on speedy trial 

grounds. Oliveira-Coutinho claimed counsel was deficient for 

failing to move for discharge based on statutory and constitutional speedy trial grounds and for failing to raise both issues 

on appeal. He alleged that he was charged by information on 

September 1, 2011; that trial did not begin until September 

21, 2012; and that nothing extended the time for trial beyond 

6 months.

The district court determined that the record showed that 

discharge would not have been granted even if counsel had 

filed the motion. The court agreed that Oliveira-Coutinho was 

charged on September 1, 2011, but it stated that trial began on 

September 17, 2012. The court further stated that three motions 

filed by Oliveira-Coutinho—a plea in abatement filed October 

28, 2011, and ruled on January 5, 2012; a motion to sequester 

and change venue filed December 22, 2011, and ruled on July 

9, 2012; and a motion to suppress filed March 21, 2012, and 

ruled on August 30, 2012—tolled the speedy trial clock to the 

extent that he was timely brought to trial. The court determined 

that counsel was not deficient, because a motion to discharge 

would have been unsuccessful.

(viii) Failure to object to testimony of Oliveira-Coutinho’s 

wife. Oliveira-Coutinho claimed that counsel was ineffective 

for failing to object to testimony of his wife based on both 

hearsay and marital privilege. He argued that her testimony 

included hearsay because she testified regarding things he had 
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told her. He also argued that she should have been informed 

that she had the right to refuse to testify based on marital privilege.

The postconviction court determined that counsel was not 

deficient, because both objections would have been unsuccessful. The court first noted that Nebraska’s rules of evidence provide a hearsay exception for statements made by the defendant. With regard to the marital privilege, the court noted that 

Neb. Rev. Stat. § 27-505(3)(a) (Reissue 2016) provides that 

the marital privilege may not be claimed in a criminal case 

where the crime charged is “a crime of violence.”

(ix) Failure to object to State’s opening statements.

Oliveira-Coutinho claimed that counsel was deficient for failing to object to “[s]everal instances” within the State’s opening 

statement in which the prosecutor was allegedly “vouching 

for the credibility” of Goncalves-Santos’ testimony. OliveiraCoutinho quoted portions of the opening statement in which 

the prosecutor said that Goncalves-Santos would “tell . . . the 

truth” and that he had taken certain actions because “he wanted 

to tell the truth.”

The district court noted that counsel had raised the issue 

on direct appeal to this court and that the assignment of error 

was rejected. To the extent any of the specific statements cited 

by Oliveira-Coutinho were not included in the assignment of 

error on direct appeal, the court determined that this court’s 

reasoning in rejecting the error showed that inclusion of the 

specific statements would not have changed the result. The 

court quoted a portion of this court’s opinion in which we 

noted that by failing to object at trial, “Oliveira-Coutinho [had] 

likely waived any argument that the State erred in directly 

vouching for Goncalves-Santos”; however, we concluded that 

he had “preserved his argument that the State suggested the 

district court was also vouching for Goncalves-Santos.” State 

v. Oliveira-Coutinho, 291 Neb. 294, 345, 865 N.W.2d 740, 777 

(2015). We rejected the assignment of error because whether 

or not the State’s comments amounted to misconduct, “such 
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misconduct was not prejudicial to Oliveira-Coutinho’s right 

to a fair trial.” Id. We concluded that “[t]he comments of the 

prosecutor during his opening statements were isolated in the 

overall context of the trial, [that] the jury was instructed specifically on Goncalves-Santos’ testimony as well as on issues 

relating to arguments of counsel versus evidence presented,” 

and that “the strength of the evidence overall was such that 

any alleged misconduct in opening statements was not prejudicial to Oliveira-Coutinho’s right to a fair trial.” Id. at 346, 865 

N.W.2d at 778.

(x) Failure to make objections. The postconviction court’s 

analysis included a section titled “Failure to make objections” 

in which it stated that Oliveira-Coutinho had made “a variety 

of arguments relating to trial counsel’s failure to object to the 

testimony of different State witnesses based on hearsay and 

other arguments.” By citing to pages of Oliveira-Coutinho’s 

amended motion for postconviction relief, the court appears 

to include in this section several claims in which OliveiraCoutinho claimed that counsel was deficient for (1) failing to 

object based on hearsay to testimony by three witnesses; (2) 

failing to challenge on direct appeal “prosecutorial misconduct by commenting on [Oliveira-Coutinho’s] right to remain 

silent”; (3) failing to challenge on direct appeal prosecutorial misconduct based on the State’s “withholding” notes and 

reports that a witness referred to in his testimony; (4) failing 

to move for a mistrial after the trial court noted on the record 

that during Goncalves-Santos’ testimony, an unidentified person in the courtroom would nod or shake his head in a manner 

Oliveira-Coutinho characterized as “live co[a]ching” of the 

witness; (5) failure to either move for a mistrial or propose and 

request a limiting instruction after a witness “had an outburst” 

and “scream[ed], ‘Why . . . did you kill my family?’”; (6) 

failing to raise on direct appeal the trial court’s overruling an 

objection to evidence of his prior dismissed criminal charge; 

(7) failing to raise on direct appeal the trial court’s overruling 

his hearsay objection to Goncalves-Santos’ testimony regarding 
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a statement made by a victim; (8) failing to request a limiting 

instruction as to certain exhibits and failing to raise on direct 

appeal the court’s failure to provide its own limiting instruction; (9) failing to raise on direct appeal the court’s refusal 

to give a requested instruction regarding the credibility of the 

testimony of an accomplice; and (10) failing to raise on direct 

appeal the trial court’s failure to instruct the jury that OliveiraCoutinho’s “‘mere presence, acquies[c]ence or silence is not 

enough to sustain the State’s burden of proving [OliveiraCoutinho] guilty.’”

The district court stated that it was unnecessary to discuss 

each argument separately and that instead the claims could be 

“dealt with summarily due to the lack of prejudice asserted.”

(xi) Failure to investigate. Oliveira-Coutinho made several 

claims that counsel was deficient for failing to investigate 

aspects of his case, including potential alibi defenses and witnesses. The district court concluded that Oliveira-Coutinho 

was not entitled to an evidentiary hearing on these claims. 

The court cited authority to the effect that postconviction 

claims of failure to investigate were insufficient when the 

defendant failed to allege how undertaking such investigative 

activities would have produced a different outcome at trial 

and that therefore, the allegations were insufficient to establish prejudice.

Finally, although Oliveira-Coutinho characterized all his 

claims as claims of ineffective assistance of counsel, the district court stated that one claim involved purported constitutional violations by the State prior to the appointment of the 

counsel who represented him at trial and on direct appeal. The 

court characterized the claim as “somewhat confusing” but 

stated that Oliveira-Coutinho appeared to claim that “the State 

violated his constitutional rights by assisting in obtaining [an 

attorney’s] help in representing [Oliveira-Coutinho] and also 

by somehow obtaining [his] ‘trial strategy’ during the time 

frame that [the attorney] was appointed.” The court noted that 

this attorney assisted Oliveira-Coutinho only in “determining 
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whether he wanted to provide a statement” to law enforcement 

and that the attorney “was not appointed to represent [him] 

any further in the proceeding.” The court stated that it was 

“hard to see how [the attorney] could have even obtained the 

‘trial strategy’ to reveal to the State,” but that in any event, 

the claim could have been brought on direct appeal and was 

therefore procedurally barred in this postconviction action. The 

court stated that it could not identify a claim of ineffective 

assistance of counsel on direct appeal related to this claim, but 

it determined that any such claim that might have been raised 

on direct appeal was refuted by the record because the trial 

court overruled Oliveira-Coutinho’s motion to suppress challenging, inter alia, the statement he provided to investigators 

after meeting with the attorney. The court stated that in its 

order overruling the motion to suppress, the trial court “found 

there was no error in any of the actions by the State or [the 

attorney] at the time [Oliveira-Coutinho] provided his statement to law enforcement.” The court further noted that the 

State did not offer Oliveira-Coutinho’s statement into evidence 

at his trial, and the court determined that he therefore suffered 

no prejudice.

Oliveira-Coutinho appeals the overruling of his motion for 

postconviction relief.

ASSIGNMENTS OF ERROR

Oliveira-Coutinho claims that the district court erred when it 

denied his claims without an evidentiary hearing. In his assignments of error and in his arguments, he includes most but not 

all of the claims he set forth in his amended motion. OliveiraCoutinho also claims that the court erred when it failed to 

appoint postconviction counsel.

STANDARDS 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 
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show that the defendant is entitled to no relief. State v. Privett, 

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

[2] We review the failure of the district court to provide 

court-appointed counsel in a postconviction proceeding for an 

abuse of discretion. State v. Taylor, 300 Neb. 629, 915 N.W.2d 

568 (2018).

ANALYSIS

As noted above, Oliveira-Coutinho in his amended motion 

for postconviction relief set forth almost 50 separately stated 

claims. The district court analyzed those claims in groupings 

and denied an evidentiary hearing on all claims. On appeal, 

Oliveira-Coutinho makes a general claim that the district court 

erred when it denied his claims without an evidentiary hearing. Oliveira-Coutinho then argues that the court erred when 

it found most but not all of his specific claims to be without 

merit; he argues the claims with varying degrees of depth.

We begin our analysis herein by setting forth standards that 

are applicable to our review of each postconviction claim. We 

then review all the claims Oliveira-Coutinho argues on appeal 

pursuant to those standards, and as discussed below, we determine that the claims were properly denied without an evidentiary hearing. Although we have reviewed each specific claim 

that Oliveira-Coutinho raises on appeal, our analysis below 

discusses in depth only certain claims that warrant such discussion, and we address the remaining claims in a more general 

fashion. Finally, we note that because the district court did not 

err when it denied Oliveira-Coutinho’s claims without an evidentiary hearing, it also did not err when it denied his motion 

for appointment of postconviction counsel.

Postconviction Standards.

[3,4] Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground 

that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable. State 

v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019). Thus, in 
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a motion for postconviction relief, the defendant must allege 

facts which, if proved, constitute a denial or violation of his or 

her rights under the U.S. or Nebraska Constitution, causing the 

judgment against the defendant to be void or voidable. State v. 

Martinez, supra.

[5,6] A court must grant an evidentiary hearing to resolve the 

claims in a postconviction motion when the motion contains 

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

Constitution. State v. Martinez, supra. If a postconviction 

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

and files in the case affirmatively show that the defendant is 

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

Oliveira-Coutinho’s claims for postconviction relief assert 

that he received ineffective assistance of counsel. Because 

Oliveira-Coutinho was represented both at trial and on direct 

appeal by the same lawyers, this motion for postconviction 

relief was his first opportunity to assert ineffective assistance 

of counsel. See id.

[7-9] A proper ineffective assistance of counsel claim alleges 

a violation of the fundamental constitutional right to a fair 

trial. State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018). 

To prevail on a claim of ineffective assistance of counsel under 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 

L. Ed. 2d 674 (1984), the defendant must show that his or her 

counsel’s performance was deficient and that this deficient 

performance actually prejudiced the defendant’s defense. State 

v. Taylor, supra. To show prejudice under the prejudice component of the Strickland test, the defendant must demonstrate 

a reasonable probability that but for his or her counsel’s deficient performance, the result of the proceeding would have 

been different. State v. Taylor, supra. A reasonable probability 

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

defendant must show a probability sufficient to undermine 
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confidence in the outcome. Id. The two prongs of this test 

may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that 

counsel’s actions were reasonable. Id.

With these principles in mind, we review Oliveira-Coutinho’s 

claims of ineffective assistance of counsel.

Competency of Goncalves-Santos.

Oliveira-Coutinho claims that the district court erred when 

it refused an evidentiary hearing on his claims that counsel 

failed to properly challenge, both at trial and on appeal, the 

competency of Goncalves-Santos as a witness. The district 

court generally found that these claims were refuted by the 

record. We conclude that the record shows that OliveiraCoutinho’s proposed challenges to Goncalves-Santos’ competency would not have been successful and that therefore, the 

district court did not err when it refused an evidentiary hearing 

on the claims.

In three separately stated claims in his amended motion, 

Oliveira-Coutinho generally claimed that counsel failed to 

(1) challenge Goncalves-Santos’ competency at trial, (2) raise 

on direct appeal the trial court’s error in allowing GoncalvesSantos to testify, and (3) “bring to the attention” of the trial 

court the mental competency of Goncalves-Santos. In these 

claims, Oliveira-Coutinho generally alleged that GoncalvesSantos had exhibited behaviors that indicated violent and 

antisocial tendencies that called his mental competency 

into question.

The district court determined that these postconviction 

claims were refuted by the record, which showed that counsel 

filed a motion challenging Goncalves-Santos’ competency, that 

the trial court overruled the motion after a hearing, that counsel asked for a reconsideration, and that the trial court denied 

reconsideration. The court also stated that this court affirmed 

the trial court’s ruling on these matters on direct appeal.

Oliveira-Coutinho argues on appeal that the district court’s 

description of the record is inaccurate because counsel 
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requested an advance ruling only on what questions he might 

ask Goncalves-Santos regarding his competency and that 

counsel did not file a motion to determine Goncalves-Santos’ 

competency. Oliveira-Coutinho claimed in his amended 

motion that counsel should have gone further than seeking 

to cross-examine Goncalves-Santos regarding his behavior 

and that instead, counsel should have asked the court to 

order a competency evaluation of Goncalves-Santos so that 

the court could determine whether he was competent to be 

a witness.

We agree with Oliveira-Coutinho that the district court in its 

postconviction order improperly focused on the motion regarding cross-examination rather than the actual focus of OliveiraCoutinho’s claim, which was that counsel should have moved 

the trial court to order a mental competency evaluation and 

determine whether Goncalves-Santos was mentally competent 

to be a witness. In our opinion in Oliveira-Coutinho’s direct 

appeal, we stated that prior to trial:

Oliveira-Coutinho filed a motion for advance ruling seeking to cross-examine Goncalves-Santos about his sexual 

relations with animals, his killing or harming of animals, 

his threats to kill his wife, and any other violent or antisocial tendencies or behaviors. . . . Oliveira-Coutinho 

argued that this evidence was relevant and went to the 

competency of Goncalves-Santos as a witness under 

rule 601.

State v. Oliveira-Coutinho, 291 Neb. 294, 308-09, 865 N.W.2d 

740, 756 (2015). See Neb. Rev. Stat. § 27-601 (Reissue 2016). 

The trial court determined that Oliveira-Coutinho could not 

pursue the line of questioning because the matters “had no 

bearing on Goncalves-Santos’ competency as a witness.” State 

v. Oliveira-Coutinho, 291 Neb. at 309, 865 N.W.2d at 756. 

On direct appeal, Oliveira-Coutinho assigned error to this 

ruling. We affirmed the ruling on appeal on the basis that 

the competency of a witness was an issue to be determined 

by the court and not by the jury. We noted, however, that 
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“Oliveira-Coutinho did not assign that the district court erred 

in finding that Goncalves-Santos was competent to testify.” Id.

at 332, 865 N.W.2d at 770.

The issue decided by the trial court and affirmed by us on 

direct appeal was whether Oliveira-Coutinho would be allowed 

to cross-examine Goncalves-Santos on matters that allegedly went to his mental competency. But Oliveira-Coutinho’s 

claim for postconvicton relief was that counsel should have 

sought a competency evaluation and should have sought to 

bar Goncalves-Santos’ testimony because he was not mentally competent. It appears that trial counsel did not file such 

a motion, and we specifically stated in our opinion on direct 

appeal that Oliveira-Coutinho did not assign error to the trial 

court’s finding that Goncalves-Santos was competent to testify. 

We therefore think the district court erred when it stated that 

the issue raised in these claims had been presented to the trial 

court and this court on direct appeal.

Nevertheless, we determine that for other reasons, the district court did not err when it refused an evidentiary hearing on 

these claims. In ruling that Oliveira-Coutinho could not crossexamine Goncalves-Santos regarding the matters he alleged 

had a bearing on mental competency, the trial court reasoned 

that such matters had no bearing on Goncalves-Santos’ competency to testify. In its February 10, 2012, order overruling the 

motion, the trial court stated:

Under Nebraska law, every person is competent to be 

a witness except as otherwise provided in the Rules of 

Evidence. Neb.Rev.Stat. § 27-601. Even insanity or mental illness does not automatically render a witness incompetent to testify; only when the witness is unable to comprehend the obligation of an oath, or to understand and 

intelligently answer questions is the witness incompetent. 

Garcia v. State, 159 Neb. 571, 592, 68 N.W.2d 151, 165 

(1955). There is no evidence that [Goncalves-Santos] is 

unable to comprehend the obligation of the oath or unable 

to answer questions asked of him.
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The State argues that the trial court’s reasoning indicates that 

even if counsel had requested a competency evaluation of 

Goncalves-Santos, the trial court would not have ordered such 

an evaluation and would not have determined that GoncalvesSantos was not competent to testify.

Oliveira-Coutinho’s claims regarding Goncalves-Santos 

indicate that he is confusing concepts of competency of witnesses with issues of competency of a defendant to stand trial 

or to represent himself or herself. Oliveira-Coutinho claims 

counsel should have sought a competency evaluation and hearing for Goncalves-Santos, which evaluation and hearing seem 

similar to the type of evaluation and hearing that might be 

required to determine a defendant’s competency. However, 

Oliveira-Coutinho cites no statute, case, or other law that 

would authorize the court to require a witness to submit to a 

psychiatric evaluation to determine his or her mental competency to testify.

Instead, as the trial court indicated, our rules of evidence 

provide, “Every person is competent to be a witness except 

as otherwise provided in these rules.” § 27-601. OliveiraCoutinho asserts no rule of evidence pursuant to which his 

allegations regarding Goncalves-Santos would render him not 

competent to be a witness. Furthermore, the trial court found 

no evidence that Goncalves-Santos was “unable to comprehend the obligation of the oath or unable to answer questions 

asked of him,” and Oliveira-Coutinho points to nothing in 

Goncalves-Santos’ extensive testimony at trial that would indicate otherwise.

The district court erroneously reasoned that the claims 

asserted by Oliveira-Coutinho in this postconviction action 

with regard to Goncalves-Santos’ competency as a witness 

were addressed on direct appeal. Nevertheless, we determine 

that such claims did not allege a valid basis for relief and 

that the record refutes the merits of the claims. We therefore 

conclude that the district court did not err when it refused an 

evidentiary hearing on these claims.
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Jury Instruction Regarding Potential Mistrial.

Oliveira-Coutinho claimed that counsel was ineffective for 

failing to object to “Preliminary Jury Instruction No. 1,” which 

he alleged stated in part,

“Any juror who violates these restrictions I have explained 

to you jeopardizes the fairness of these proceedings, and 

a mistrial could result that would require the entire trial 

process to start over. As you can imagine, a mistrial is a 

tremendous expense and inconvenience to the parties, to 

the Court and the taxpayers.”

(Emphasis omitted.) He argued that counsel should have 

objected to this instruction because it was confusing and 

prejudicial to his case and would discourage jurors from 

reporting misconduct. The district court determined that the 

record refuted this argument because the first jury instruction 

“filed October 9, 2012,” did not contain the language alleged. 

The court also noted that Oliveira-Coutinho failed to cite any 

authority establishing that an objection to such an instruction would have been successful. Although our reasoning 

differs, we conclude that the court did not err when it denied 

this claim.

The district court referred to the instructions “filed October 

9, 2012,” and stated that they did not contain the language 

alleged by Oliveira-Coutinho. The record indicates that the 

instructions filed on October 9 were the instructions given 

at the close of evidence. Oliveira-Coutinho alleged that the 

instruction at issue was a preliminary jury instruction, and 

the record confirms that the language quoted in his amended 

motion was given as a preliminary jury instruction. The district 

court therefore erred when it indicated that the alleged instruction was not given.

[10] However, the district court also stated that OliveiraCoutinho failed to cite authority showing that a challenge to 

the instruction would have been successful. We agree with 

the district court that Oliveira-Coutinho alleged no such 

authority. In his amended motion and in his brief on appeal, 
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Oliveira-Coutinho argues that the instruction was inappropriate because it was confusing and could discourage jurors from 

reporting misconduct. But he cites no authority to support his 

contention that it was error for the court to give the instruction, 

and therefore, the argument appears to be a novel legal theory. 

We have held that “counsel’s failure to raise novel legal theories or arguments or to make novel constitutional challenges 

in order to bring a change in existing law does not constitute 

deficient performance.” State v. Sanders, 289 Neb. 335, 343, 

855 N.W.2d 350, 357 (2014). Furthermore, Oliveira-Coutinho 

did not assert any actual prejudice that resulted from the 

instruction, such as juror misconduct that went unreported; he 

only alleged what might have occurred. We therefore conclude 

that the district court did not err when it denied this claim 

without an evidentiary hearing.

Aiding and Abetting.

Oliveira-Coutinho claims that the district court erred when 

it refused an evidentiary hearing on three claims related to the 

felony murder instruction, which allowed the jury to find him 

guilty based on a theory of aiding and abetting. In his amended 

motion, Oliveira-Coutinho claimed that trial counsel was deficient for (1) failing to object to the instruction, on the basis 

that he was not charged under a theory of aiding and abetting; 

(2) failing to challenge the constitutionality of § 28-206, which 

provides that “[a] person who aids, abets, procures, or causes 

another to commit any offense may be prosecuted and punished as if he were the principal offender”; and (3) failing to 

inform him prior to trial that he could be prosecuted under an 

aiding and abetting theory. We conclude that the district court 

addressed the first two of these claims and properly found that 

they did not warrant an evidentiary hearing. We further conclude that while the district court did not appear to explicitly 

address the third claim, the court did not err when it denied an 

evidentiary hearing on the claim, because Oliveira-Coutinho 

failed to adequately allege prejudice.
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Regarding the first claim, Oliveira-Coutinho claimed in 

the amended motion that counsel was deficient for failing to 

object to the felony murder instruction because the instruction 

allowed the jury to find him guilty on an aiding and abetting 

theory when he was not arraigned on an aiding and abetting 

theory. On appeal, Oliveira-Coutinho asserts that the district 

court did not decide the merits of this claim. Without further 

argument regarding the merits of the claim, he contends that 

we should remand the cause for an evidentiary hearing on 

the claim.

[11] However, we find that the district court addressed this 

claim. The district court cited State v. Stark, 272 Neb. 89, 718 

N.W.2d 509 (2006), for the proposition that an information 

charging a defendant with a specific crime gives the defendant 

adequate notice that he or she may be prosecuted for the crime 

specified or as having aided and abetted the commission of the 

crime specified. The district court concluded that because of 

this precedent, a challenge by counsel to the instruction would 

have been unsuccessful and therefore, counsel’s failure to make 

the challenge was not ineffective assistance.

We agree with the district court’s reasoning. In addition to 

State v. Stark, supra, in State v. Contreras, 268 Neb. 797, 803, 

688 N.W.2d 580, 585 (2004), we held that “notwithstanding 

the fact that the information charging the defendant does not 

contain specific aiding and abetting language, an aiding and 

abetting instruction is proper where warranted by the evidence.” We therefore agree with the district court’s conclusion 

that a challenge to the aiding and abetting instruction based on 

the failure to charge the offense under an aiding and abetting 

theory would not have been successful.

We note that as part of this claim, Oliveira-Coutinho also 

asserted that the felony murder instruction omitted elements 

necessary to prove the crime under an aiding and abetting 

theory—specifically that he intended to commit the underlying 

felony or knew that the person he aided or abetted intended to 

commit the crime. He also appeared to assert as part of this 
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claim that the evidence did not support an aiding and abetting 

theory. The State argues on appeal that the trial court instructed 

on the allegedly missing elements in a separate instruction 

relating to aiding and abetting and that there was sufficient 

evidence that Oliveira-Coutinho aided and abetted in the commission of a felony. We agree with the State’s arguments and 

agree that a challenge to the instruction on these bases would 

have been unsuccessful. We conclude that the district court did 

not err when it refused an evidentiary hearing on the claim 

that counsel was ineffective for failing to object to the felony 

murder instruction.

Regarding the second claim, Oliveira-Coutinho alleged in 

the amended motion that counsel was deficient for failing to 

challenge the constitutionality of § 28-206. He asserted that 

the statute was unconstitutionally overbroad, and he argued 

that the statute was unconstitutional because it allowed the 

State to prosecute a defendant under an aiding and abetting 

theory without giving notice to the defendant. He argued 

that the statute “makes the fatal assumption” that those who 

are subject to it understand they can be prosecuted under an 

alternative theory, and he asserted that because he does not 

speak English, he was not aware of the possibility of being 

convicted as an aider or abettor. The district court rejected this 

claim, reasoning that Oliveira-Coutinho “fail[ed] to provide 

any authority creating a realistic constitutional challenged [sic] 

to the statute.”

We agree with the district court that Oliveira-Coutinho provided no authority indicating that a constitutional challenge 

to § 28-206 would have been successful. Oliveira-Coutinho 

referred in his amended motion to an accused’s right to be 

informed of the nature of the charges against him; however, 

as discussed above, an information charging a defendant with 

a crime gives the defendant notice that he or she may be prosecuted for having aided or abetted the crime. In any event, 

the lack of notice argument is better understood as a due 

process challenge to the procedure by which the statute was 
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implemented rather than a challenge to the constitutionality 

of the aiding and abetting statute itself. Similarly, OliveiraCoutinho’s argument that he did not understand the charges 

against him because of a language barrier would not undermine 

the constitutionality of § 28-206; instead, the argument relates 

to whether he received ineffective assistance of counsel in violation of the Sixth Amendment because counsel failed to ensure 

he was aware of the charges against him. That is the subject of 

the third claim discussed below. Because Oliveira-Coutinho did 

not adequately allege how § 28-206 was unconstitutional, we 

conclude that the district court did not err when it refused an 

evidentiary hearing on the claim of ineffective assistance for 

failing to challenge the constitutionality of the statute.

Finally, regarding the third claim, Oliveira-Coutinho claimed 

in the amended motion that counsel was deficient for failing to 

inform him prior to trial that he could be prosecuted under an 

aiding and abetting theory. He asserted that had he known he 

could have been convicted as an aider and abettor, “he would 

have weight [sic] his options prior to proceed [sic] with the 

trial” and “could have insisted to enter into further plea negotiations or he would have opted to plea [sic] guilty to the State’s 

second plea offer.” Oliveira-Coutinho argues on appeal that the 

district court did not address this claim.

We agree with Oliveira-Coutinho that the district court did 

not specifically address the claim that counsel was ineffective 

for failing to advise him that he could be convicted as an aider 

or abettor. Instead, this claim appears among the claims the 

court generally disposed of by stating that Oliveira-Coutinho 

failed to allege prejudice. We conclude that the court did not 

err when it refused an evidentiary hearing on this claim because 

Oliveira-Coutinho failed to adequately allege prejudice.

The State argues on appeal that whether or not counsel’s 

performance was deficient in this respect, Oliveira-Coutinho 

failed to allege a claim of ineffective assistance of counsel, 

because he failed to allege how he was prejudiced by such 

deficient performance. The State argues that he did not allege 
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that if counsel had properly advised him that he could be 

convicted on a theory of aiding and abetting, he would have 

entered pleas to the charges instead of going to trial.

We agree with the State that Oliveira-Coutinho failed to 

adequately allege how he was prejudiced and that to the extent 

he did allege prejudice, the record refutes his allegations of 

prejudice. As quoted above, Oliveira-Coutinho alleged merely 

that if he had been properly advised, he would have weighed 

his options, “could have” insisted on further plea negotiations, 

or would have accepted “the State’s second plea offer.” The 

allegation that he would have weighed his options is too vague 

to establish that he was prejudiced, because it does not allege 

a specific course of action that he would have taken if he had 

been properly advised.

Oliveira-Coutinho’s allegations that he “could have insisted 

to enter into further plea negotiations” and that he would have 

accepted “the State’s second plea offer” are more concrete 

allegations of specific actions he could or would have taken if 

properly advised. However, the record refutes that the alleged 

courses of action were viable. When he alleged in his amended 

motion that he “would have opted to plea [sic] guilty to the 

State’s second plea offer,” Oliveira-Coutinho referenced an 

exhibit attached to the amended motion. That exhibit, however, contradicts his allegation that he would have accepted 

“the State’s second plea offer.” The exhibit includes a letter 

from Oliveira-Coutinho’s trial counsel in which counsel actually stated that “[t]he State never made such an offer” and 

instead that counsel had made an offer that the State rejected. 

Counsel further stated that the State had previously made an 

offer for Oliveira-Coutinho to plead to “multiple counts of 

second degree murder with no sentencing agreement,” but that 

Oliveira-Coutinho had rejected that offer. Oliveira-Coutinho’s 

allegation that he would have accepted “the State’s second 

plea offer” is refuted by his own evidence which shows that 

no “second plea offer” had been made by the State. The 

exhibit further undermines his allegation that he “could have” 
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insisted on further plea negotiations, because it shows that 

prior plea negotiations had resulted in an offer from the State 

that Oliveira-Coutinho did not find acceptable and because the 

State’s rejection of counsel’s counter-offer indicated that the 

State was not open to further plea negotiations that would have 

yielded a better plea deal than that already offered.

This claim of ineffective assistance of counsel failed because 

Oliveira-Coutinho did not sufficiently allege prejudice and 

because his own exhibit undermined the allegations of prejudice that he did make. We therefore conclude that the district 

court did not err when it refused an evidentiary hearing on 

the claim that counsel was ineffective for failing to advise 

Oliveira-Coutinho he could be convicted under an aiding and 

abetting theory.

State Vouching for Goncalves-Santos’ Credibility.

Oliveira-Coutinho claims that the district court erred when 

it refused an evidentiary hearing on his claim that counsel 

was deficient for failing to raise on appeal “[s]everal instances 

throughout the State’s case in chief” in which the prosecutor 

was allegedly “vouching for the credibility” of GoncalvesSantos’ testimony. The district court found that the claim was 

without merit because counsel had raised the issue on direct 

appeal and that the assignment of error had been rejected 

because the error was not properly preserved. On appeal, 

Oliveira-Coutinho attempts to change his claim from counsel’s 

failure to raise the issue on direct appeal to counsel’s failure 

to preserve the issue for appeal by objecting at trial. We agree 

with the district court that the claim alleged in the amended 

motion was refuted by the record.

In his amended motion, Oliveira-Coutinho claimed, 

“Appellate counsel provided deficient performance by failing to assign, raise, and argue during the direct appeal stage 

that the [p]rosecutor committed misconduct by vouching for 

the credibility of Goncalves-Santos.” He then quoted portions of the opening statement in which the prosecutor said 
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that Goncalves-Santos would “tell . . . the truth” and that 

Goncalves-Santos had taken certain actions because “he wanted 

to tell the truth.” Oliveira-Coutinho also cited to portions of 

the trial record in which two homicide investigators who had 

interviewed Goncalves-Santos testified that when they interviewed him, they let him know they expected him to tell the 

truth. Oliveira-Coutinho further cited to portions of the State’s 

closing statement in which the prosecutor made comments 

similar to the quoted comments from the opening statement. 

Oliveira-Coutinho claimed that a competent attorney would 

have “noted, assigned and argued prosecutorial misconduct by 

and when [the] prosecutor vouched for the credibility of [the 

State’s] star witness.”

In its order denying postconviction relief, the district court 

noted that counsel had raised the issue on direct appeal to this 

court and that we rejected this assignment of error, in part 

because counsel failed to object at trial. To the extent any of 

the specific statements cited by Oliveira-Coutinho were not 

included in the assignment of error on direct appeal, the court 

determined that this court’s reasoning in rejecting the assigned 

error showed that inclusion of the specific statements would 

not have changed the result.

The district court quoted a portion of our opinion in which 

we noted that by failing to object at trial, “Oliveira-Coutinho 

[had] likely waived any argument that the State erred in 

directly vouching for Goncalves-Santos.” State v. OliveiraCoutinho, 291 Neb. 294, 345, 865 N.W.2d 740, 777 (2015). 

However, we concluded that he had “preserved his argument 

that the State suggested the district court was also vouching 

for Goncalves-Santos.” Id. We rejected the assignment of error 

because whether or not the State’s comments amounted to 

misconduct, “such misconduct was not prejudicial to OliveiraCoutinho’s right to a fair trial.” Id. We concluded that “[t]he 

comments of the prosecutor during his opening statements 

were isolated in the overall context of the trial, [that] the jury 

was instructed specifically on Goncalves-Santos’ testimony as 
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well as on issues relating to arguments of counsel versus evidence presented,” and that “the strength of the evidence overall 

was such that any alleged misconduct in opening statements 

was not prejudicial to Oliveira-Coutinho’s right to a fair trial.” 

Id. at 346, 865 N.W.2d at 778.

The claim Oliveira-Coutinho set forth in his amended motion 

was that counsel failed to raise the issue on direct appeal. 

In fact, counsel raised the issue on appeal, but this court 

determined that the error had been waived because OliveiraCoutinho failed to object at trial. On appeal, Oliveira-Coutinho 

attempts to recast his claim as a claim that trial counsel was 

ineffective for failing to object and preserve the claim for 

direct appeal. But that is not the claim he made in his amended 

motion, and we will not consider an issue on appeal that was 

not presented to or passed upon by the trial court. See State 

v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved 

on other grounds, State v. Allen, 301 Neb. 560, 919 N.W.2d 

500 (2018).

The claim presented to the district court in this postconviction action was limited to the performance of counsel on direct 

appeal, and the district court did not err when it refused an 

evidentiary hearing on the basis that the record showed that 

counsel had in fact raised the issue on direct appeal.

Issues Related to Attorney’s Representation 

of Oliveira-Coutinho.

Oliveira-Coutinho claims that the district court erred when 

it refused an evidentiary hearing on claims he made related 

to his representation by an attorney, Matthew Kahler, when 

Oliveira-Coutinho was deciding whether to make a statement 

to law enforcement. The court found that the claims were procedurally barred because they were not raised on direct appeal, 

but it further found that the claims were refuted by the record. 

Assuming that the claims were not procedurally barred because 

they were fashioned as claims of failure to raise the issues on 

direct appeal, we conclude the district court did not err when 
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it found that the claims were refuted by the record and that 

Oliveira-Coutinho could not show prejudice.

In two separately stated claims in the amended motion, 

Oliveira-Coutinho alleged that (1) his counsel on direct appeal 

failed to assign and argue “violations of [his] Constitutional 

rights” and (2) “the State violated his Fifth, Sixth and 

Fourteenth Amendment rights in light of the fact that the prosecution had knowledge and possession of [Oliveira-Coutinho’s] 

trial strategy before he was charged and tried.” In the first of 

these two claims, Oliveira-Coutinho simply asserted, without 

further specifying the nature of the alleged constitutional violations, that appellate counsel provided deficient representation. 

In the second of the two claims, Oliveira-Coutinho began with 

the general allegation that the State had violated his constitutional rights, and then over several pages, he set forth how he 

thought the State violated his rights based on its role in finding 

an attorney to advise him at a time when he was considering 

making a statement to law enforcement. He generally alleged 

that after he invoked his right to counsel, the county attorney 

“was informed and personally appointed [Kahler] to represent” 

him, and that thereafter, Kahler disclosed “confidential communications” and “his trial strategy” to prosecutors.

The district court in its postconviction order found that the 

claims related to Kahler were procedurally barred because 

they could have been raised on direct appeal. Apparently, the 

court read the second of the above-described claims in isolation from the preceding claim when it stated that it “could not 

identify an ineffective assistance of counsel argument within 

the claim[]” and therefore determined that the claim was procedurally barred. Although it was not made entirely clear in 

the amended motion that the two claims were meant to be read 

together, we will assume for purposes of review that the two 

claims were intended to be read together and that together, they 

set forth claims of ineffective assistance of counsel for failing 

to raise issues on direct appeal and are therefore not procedurally barred in this postconviction action. However, the district 
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court found that even if the claims were not procedurally 

barred, they were refuted by the record. We agree.

The district court in this postconviction action determined 

that Oliveira-Coutinho’s claim related to Kahler was refuted 

by the record because the trial court overruled OliveiraCoutinho’s suppression motion challenging, inter alia, the 

statement he provided to law enforcement while being represented by Kahler. The court stated in the postconviction order 

that in the order denying the motion to suppress, the trial court 

had specifically “found there was no error in any of the actions 

by the State or . . . Kahler at the time [Oliveira-Coutinho] 

provided his statement to law enforcement.” The court further 

determined that because Oliveira-Coutinho’s statement was not 

offered into evidence at his trial, he suffered no prejudice.

Oliveira-Coutinho argues on appeal that appellate counsel 

deficiently failed to raise on direct appeal that “the State” violated his rights by “appointing” Kahler to represent him and 

that by “appointing” Kahler, brief for appellant at 18, the State 

“[i]nterfered [w]ith [Oliveira-Coutinho’s] [t]rial [s]trategy and 

. . . [o]btained [i]ncriminating [e]vidence,” id. at 22. OliveiraCoutinho asserts that after he invoked his right to counsel, 

officers who were questioning him contacted the county attorney and the county attorney “appointed” Kahler to represent 

him. Id. at 19. He further asserts that after advising OliveiraCoutinho “to confess everything he knew about the triplehomicide,” Kahler then “debrief[ed]” the prosecutors about 

what Oliveira-Coutinho told him during their conversation. Id.

Oliveira-Coutinho argues he would not have made a statement 

to police if he knew that the attorney was not court appointed 

and that the attorney was acting as an agent for the State with 

the purpose of advising him to confess and then revealing his 

trial strategy to prosecutors.

The district court determined that the record relating to 

Oliveira-Coutinho’s motion to suppress the statement refuted 

these claims. We therefore review the information disclosed in 

the trial record related to the motion to suppress the statement.
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Oliveira-Coutinho was questioned by investigators in this 

case “on February 1 and into February 2, 2010, and again later 

in February and March.” State v. Oliveira-Coutinho, 291 Neb. 

294, 302, 865 N.W.2d 740, 752 (2015). “Oliveira-Coutinho 

was first questioned on February 1 . . . and was placed on 

a U.S. Immigration and Customs Enforcement (ICE) hold 

within 24 hours after the interview.” Id. at 312, 865 N.W.2d 

at 758. Oliveira-Coutinho “was not initially held by the State 

on any charges related to the Szczepanik family’s disappearance, but instead was placed on an ICE hold by the federal 

government.” Id. at 327, 865 N.W.2d at 767. “Between March 

6 and 11, Oliveira-Coutinho contacted an investigator in this 

case and spoke to him, against his attorney’s advice, regarding Goncalves-Santos’ involvement on March 11.” Id. It is 

the March 11 statement that is relevant to Oliveira-Coutinho’s 

claims related to his representation by Kahler.

Prior to trial, Oliveira-Coutinho moved to suppress, inter 

alia, the statement he made to investigators on March 11, 2010. 

With specific regard to the March 11 statement, he alleged 

that he had been interrogated in the presence of Kahler and 

that Kahler was neither appointed by a judge nor retained 

by Oliveira-Coutinho. After an evidentiary hearing, the trial 

court overruled Oliveira-Coutinho’s motion to suppress in an 

order filed August 30, 2012. In the order, the trial court noted 

the following facts relevant to the March 11, 2010, statement: Oliveira-Coutinho had been interviewed by Christopher 

Spencer, an Omaha police detective, a few times between 

February 1 and March 5. On March 11, based on telephone 

calls Oliveira-Coutinho had placed to him, Spencer arranged 

to have Oliveira-Coutinho brought to an interview room. 

Oliveira-Coutinho indicated that he wanted to continue talking with Spencer, but he inquired as to whether he could speak 

with an attorney first. Spencer told Oliveira-Coutinho he could 

retain an attorney, but Oliveira-Coutinho said he could not pay 

for an attorney. Spencer relayed Oliveira-Coutinho’s request 

for an attorney to Teresa Negron, the lead sergeant in charge of 
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the case. Negron first attempted to contact one of the attorneys 

who would eventually become Oliveira-Coutinho’s trial counsel; however, after failing to reach that attorney, she contacted 

the county attorney, who in turn contacted Kahler. Kahler, 

who had previously been employed in the county attorney’s 

office but was now in private practice specializing in criminal 

defense, agreed to help.

Kahler testified at the hearing on Oliveira-Coutinho’s motion 

to suppress. He testified that on the evening of March 11, 

2010, he received two calls—one from Negron and one from 

the county attorney. The two asked him whether he would 

be willing to come to police headquarters to advise a suspect 

who had made statements to the police on whether or not he 

should make any further statements. Kahler’s understanding at 

the time was that a court would appoint him to represent the 

suspect if and when charges were filed. Kahler went to police 

headquarters, where, at his request, police officers briefed 

him about the investigation and previous statements OliveiraCoutinho had made. Kahler then met Oliveira-Coutinho and 

spoke with him through an interpreter. Kahler spoke with 

Oliveira-Coutinho with only the interpreter present for close to 

2 hours. At the suppression hearing, Kahler replied “No” when 

the State’s attorney asked whether there was “anything about 

the answering of the questions or the advice that [he] gave to 

[Oliveira-Coutinho] that was impacted by any other person or 

any agency, whether it be law enforcement, County Attorney’s 

Office, or any other type of agency.” Kahler testified that he 

told Oliveira-Coutinho, inter alia, that Oliveira-Coutinho was 

“obviously considered a suspect by the police” and that therefore, Kahler had “concern about him giving a statement . . . 

about knowing information about what other people had done.” 

After Kahler had so advised him, Oliveira-Coutinho decided to 

continue speaking with officers. Kahler testified that OliveiraCoutinho made the decision on his own and gave the ensuing 

statement voluntarily. Spencer thereafter interviewed OliveiraCoutinho with Kahler and an interpreter present.
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After the interview, Kahler asked the officers whether 

Oliveira-Coutinho was being charged based on admissions 

he had made related to accessing the victims’ bank accounts; 

although officers were not certain, Kahler’s understanding was 

that he would be charged sometime soon. Kahler also spoke 

with the county attorney about being appointed by the court, 

and he assumed he would be formally appointed the next day. 

However, Kahler learned the next morning that no charges had 

been filed against Oliveira-Coutinho. Kahler did not thereafter pursue appointment, and he did not meet with OliveiraCoutinho again. The record shows that the State did not file 

any charge against Oliveira-Coutinho in connection with this 

case until approximately May 24, 2010, and that the court 

appointed different counsel at that time.

In its order overruling Oliveira-Coutinho’s motion to suppress, the trial court stated with regard to the March 11, 2010, 

interview and Kahler’s representation as follows:

[Oliveira-Coutinho’s] contention that . . . Kahler was not 

his attorney “at the time” of his interrogation on March 

11th and in fact was “an agent of law enforcement and 

[the county attorney] and their attempt to get [OliveiraCoutinho] to speak to them” is unfounded. [OliveiraCoutinho] requested an attorney and before he made any 

further statements, a very well-qualified criminal defense 

attorney answered the call and provided him the help and 

legal advice he requested.

After spending almost two hours privately with 

[Oliveira-Coutinho], Kahler then remained with him during the interview conducted by Spencer, whom [OliveiraCoutinho] agreed to speak to, Kahler’s professional advice 

notwithstanding.

[12] With regard to these issues, Oliveira-Coutinho generally 

alleged violations of 5th-, 6th-, and 14th-Amendment rights. A 

criminal defendant’s Sixth Amendment right to the assistance 

of counsel attaches only after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, 
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preliminary hearing, indictment, information, or arraignment. 

State v. Scheffert, 279 Neb. 479, 778 N.W.2d 733 (2010). 

Oliveira-Coutinho was not charged by the State until May 

2010, and therefore, the Sixth Amendment right to counsel was 

not implicated at the time of the March 11 interview. OliveiraCoutinho’s references to the Fifth Amendment are not clear 

as to whether he is alleging a violation of his right to remain 

silent or a violation of his right to due process.

But the crux of his allegation is that Kahler was somehow 

acting as an agent of the prosecution, including the county 

attorney and investigators, and that in that role, Kahler both 

encouraged Oliveira-Coutinho to confess and later disclosed 

Oliveira-Coutinho’s confidential trial strategy to the prosecutors. These allegations, however, are contradicted by the testimony of Kahler at the suppression hearing. Kahler testified that 

he expressed concerns about Oliveira-Coutinho’s providing a 

statement when he was considered a suspect and testified that 

despite such advice, Oliveira-Coutinho made his own decision 

to give a voluntary statement. Furthermore, testimony by Kahler 

and others at the suppression hearing refuted that Kahler shared 

any sort of confidential communications with the prosecution; 

instead, testimony at the suppression hearing indicated that 

Kahler and Oliveira-Coutinho were able to speak outside the 

presence of the investigators, and there is nothing to indicate 

that Kahler shared any confidential communications, much less 

trial strategy, with the prosecutors. Kahler testified to communications with the investigators that were limited to the investigators’ briefing him on what had occurred in the investigation 

of Oliveira-Coutinho. He also testified to communications with 

the county attorney but that such communications were limited 

to discussing how Kahler might be appointed by a court to 

represent Oliveira-Coutinho. Kahler testified that his advice to 

Oliveira-Coutinho was not influenced by law enforcement or 

the county attorney’s office.

Kahler’s testimony and other testimony at the suppression 

hearing refute the claim that Kahler acted as an agent for the 
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prosecution. Furthermore, Oliveira-Coutinho makes only general allegations of “trial strategy” that was disclosed by Kahler 

to the prosecution; he does not allege any specific information 

relevant to his trial strategy that Kahler learned and provided to 

the prosecution. Brief for appellant at 25. As the postconviction 

court noted, the limited involvement of Kahler at a time well 

before trial and before charges had been filed made it highly 

unlikely that he would have become privy to any significant 

trial strategy, which would have later been decided upon by 

Oliveira-Coutinho and his trial counsel, who were appointed 

months after Kahler’s limited involvement in this case.

While we determine that these claims are not sufficiently 

stated and are materially refuted by the record, we take this 

opportunity to disapprove the process by which Kahler was 

apparently brought in to advise Oliveira-Coutinho. The testimony of both Spencer and Negron at the suppression hearing 

indicated that the process by which Kahler was brought in to 

advise Oliveira-Coutinho was not a typical occurrence. We 

think it should not be. The county attorney’s office should 

not be involved in finding an attorney to advise persons 

being questioned by investigators; the county attorney should 

remain independent and impartial in fact and in appearance, 

and any involvement of the county attorney in obtaining 

counsel to advise a suspect damages at least the appearance 

of impartiality.

That having been said, the record refutes Oliveira-Coutinho’s 

claim that Kahler acted as an agent for the prosecution and provided confidential trial strategy to the prosecution. We therefore conclude that the district court did not err when it determined that Oliveira-Coutinho’s postconviction claims related to 

Kahler did not warrant an evidentiary hearing.

Claims Not Addressed by District Court.

In his brief on appeal, Oliveira-Coutinho asserts arguments 

with regard to various claims that he contends the district court 

did not address in its order denying postconviction relief. We 
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find that several of those claims were addressed in connection 

with other related claims in one of the sections we discussed in 

our statement of facts above. However, there are some claims 

we do not think the court specifically addressed in one of 

these sections.

We note that the court stated in its order, prior to addressing 

specific claims, that all of Oliveira-Coutinho’s claims of ineffective assistance of counsel were without merit because he 

failed to adequately plead prejudice or the record refuted any 

allegations of prejudice. Therefore, to the extent the district 

court did not appear to specifically analyze a particular claim, 

we have reviewed that claim on the basis that the district court 

found that the claim failed based on the prejudice prong of an 

ineffective assistance of counsel claim.

There are a few claims set forth in Oliveira-Coutinho’s 

amended motion that we do not think were addressed in one 

of the sections in which the court discussed specific claims 

and instead were addressed only by the court’s general finding regarding prejudice. One of those claims was OliveiraCoutinho’s claim that counsel was deficient for failing to 

inform him he could be convicted under an aiding and abetting theory; we considered that claim in connection with other 

claims related to the aiding and abetting issue in an earlier 

section of our analysis, and we determined that the court properly denied the claim without an evidentiary hearing because 

Oliveira-Coutinho failed to adequately plead prejudice.

Two other claims we do not think were specifically addressed 

by the district court were Oliveira-Coutinho’s claims that counsel was deficient (1) for failing to request a lesser-included 

offense instruction on the charge of accessory to a felony after 

the fact and (2) for failing to raise on appeal an issue related to 

the court’s “[u]nconstitutional interpretation of Neb. Rev. Stat. 

§27-1101.” We determine that the district court properly denied 

each of these claims without an evidentiary hearing.

[13] With regard to the first of these two claims, OliveiraCoutinho claimed that counsel was deficient for failing to 
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request instruction on “a lesser included offense of accessory 

to a felony after the fact pursuant to Neb. Rev. Stat. §28-204.” 

In the amended motion, this claim focused on the charge as 

being a lesser-included offense of first degree murder. But 

Oliveira-Coutinho’s arguments in his brief on appeal focus 

on its being a lesser-included offense of theft by deception. 

In any event, accessory to a felony is not a lesser-included 

offense of either greater offense. A court must instruct on a 

lesser-included offense if (1) the elements of the lesser offense 

for which an instruction is requested are such that one cannot 

commit the greater offense without simultaneously committing 

the lesser offense and (2) the evidence produces a rational basis 

for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense. State v. Rocha, 295 

Neb. 716, 890 N.W.2d 178 (2017). Neb. Rev. Stat. § 28-204(1) 

(Reissue 2008) sets forth various ways in which one could 

“interfere with, hinder, delay, or prevent the discovery, apprehension, prosecution, conviction, or punishment of another for 

an offense” and therefore be guilty of being an accessory to 

a felony. The elements of accessory to a felony are not such 

that one could not commit either first degree murder or theft 

by deception without simultaneously committing accessory to 

a felony. Therefore, Oliveira-Coutinho would not have been 

entitled to a lesser-included offense instruction on accessory 

to a felony and he could not establish prejudice from counsel’s 

failure to request such an instruction. We conclude the district 

court did not err when it denied this claim without an evidentiary hearing.

With regard to the second of these claims, in his amended 

motion, Oliveira-Coutinho claimed counsel on direct appeal 

was ineffective for failing to raise on appeal an issue related to 

the court’s “[u]nconstitutional interpretation of Neb. Rev. Stat. 

§27-1101.” He did not further explain the claim in the amended 

motion, but he cited to a portion of a pretrial hearing on his 

motion to dismiss due to loss of testimonial evidence. The trial 

court sustained the State’s hearsay objection to his question 
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to an investigator which would have required the investigator 

to testify to statements made by Oliveira-Coutinho during the 

investigation. In his brief on appeal, Oliveira-Coutinho does 

not argue this claim beyond the allegations in his amended 

motion. Oliveira-Coutinho failed to allege how the trial court’s 

interpretation of the statute was “unconstitutional” or how 

counsel’s failure to raise the issue on appeal affected the outcome of the direct appeal. Therefore, Oliveira-Coutinho did not 

adequately allege a claim of ineffective assistance of counsel 

and the district court did not err when it denied this claim without an evidentiary hearing.

Remaining Claims.

With regard to the remaining claims that we have not specifically addressed above, we have reviewed such claims and 

the district court’s disposition of those claims. In our statement 

of facts, we described how the district court resolved each of 

these claims. We determine that the district court adequately 

addressed such claims and that its conclusions regarding such 

claims were proper. We conclude that the district court properly 

found that the claims should be denied without an evidentiary 

hearing, and we do not believe such claims warrant further 

discussion herein.

In sum, we conclude that the district court did not err when 

it determined that the claims argued by Oliveira-Coutinho in 

this appeal did not warrant an evidentiary hearing. We therefore reject Oliveira-Coutinho’s assignment of error asserting 

that the district court erred when it determined that the claims 

should be denied without an evidentiary hearing.

Appointment of Postconviction Counsel.

[14,15] Oliveira-Coutinho also claims that the district court 

erred when it denied his motion for appointment of counsel. 

Under the Nebraska Postconviction Act, it is within the discretion of the trial court to decide whether counsel shall be 

appointed to represent the defendant. See State v. Taylor, 300 
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Neb. 629, 915 N.W.2d 568 (2018). Where the alleged errors in 

the postconviction petition before the district court are either 

procedurally barred or without merit, thus establishing that 

the postconviction proceeding contained no justiciable issue of 

law or fact, it is not an abuse of discretion to fail to appoint 

postconviction counsel for an indigent defendant. See id. We 

therefore conclude the district court did not abuse its discretion 

when it denied Oliveira-Coutinho’s motion to appoint postconviction counsel.

CONCLUSION

We conclude that the district court did not err when it denied 

Oliveira-Coutinho’s postconviction claims without an evidentiary hearing, and we further conclude that the court did not err 

when it denied his request to appoint postconviction counsel. 

We reject Oliveira-Coutinho’s assignments of error, and we 

affirm the district court’s order.

Affirmed

Freudenberg, J., not participatin