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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. DALTON

Cite as 307 Neb. 465

State of Nebraska, appellee, v. 

John W. Dalton, Jr., appellant.

___ N.W.2d ___

Filed October 9, 2020. No. S-19-1192.

1. Effectiveness of Counsel: Appeal and Error. Appellate review of a 

claim of ineffective assistance of counsel is a mixed question of law and 

fact. When reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court for clear 

error. With regard to the questions of counsel’s performance or prejudice 

to the defendant as part of the two-pronged test articulated in Strickland 

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

an appellate court reviews such legal determinations independently of 

the lower court’s decision.

2. Postconviction: Evidence. In an evidentiary hearing on a motion for 

postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact.

3. 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.

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

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

assistance of counsel, the defendant has the burden, in accordance with 

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

674 (1984), to show that counsel’s performance was deficient; that is, 

counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. Next, the defendant must show that counsel’s deficient performance prejudiced the defense in his or her case.

5. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and 

Error. After a trial, conviction, and sentencing, if counsel deficiently 

fails to file or perfect an appeal after being so directed by the criminal 

defendant, prejudice will be presumed and counsel will be deemed ineffective, thus entitling the defendant to postconviction relief.

Nebraska Supreme Court Online Library

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

11/06/2020 08:07 AM CST
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307 Nebraska Reports

STATE v. DALTON

Cite as 307 Neb. 465

6. Effectiveness of Counsel: Appeal and Error. Failing to directly 

appeal when the defendant is silent after being informed of the right 

to appeal and the manner to communicate the desire to appeal is not 

analogous to the situation where counsel ignores an express directive by 

the client to file a direct appeal.

7. Postconviction: Effectiveness of Counsel: New Trial: Appeal and 

Error. When a postconviction motion alleges a claim of ineffective 

assistance based on counsel’s failure to file a direct appeal, which has 

as its relief a new direct appeal, alongside other claims of ineffective assistance of counsel that request as relief a new trial, the district 

court must first address the claim that counsel was ineffective for failing to file a direct appeal, including holding an evidentiary hearing, 

if required.

8. Effectiveness of Counsel: Final Orders: Appeal and Error. Upon 

reaching its decision on a claim of ineffective assistance based on counsel’s failure to file a direct appeal, the district court should enter a final 

order on that claim only; only after the resolution of an appeal from the 

order, or, alternatively, the expiration of the defendant’s time to appeal, 

should the district court proceed to consider the remaining claims.

9. Postconviction: Effectiveness of Counsel: Final Orders: Appeal and 

Error. Addressing and waiting for a final mandate on any claims 

of ineffective assistance of counsel for failing to file a direct appeal 

before addressing other postconviction claims of ineffective assistance 

of counsel serve the interests of judicial economy by preventing the 

district court’s determination of the nondirect appeal claims from being 

rendered meaningless.

10. Postconviction: Final Orders: Appeal and Error. When a district 

court disposes of other postconviction claims before there has been a 

final mandate on a disposition of the postconviction claim requesting a 

new direct appeal, the proper disposition in an appeal from the district 

court’s order is to vacate the district court’s disposition of the additional 

claims and remand the cause for further proceedings.

11. Postconviction: Appeal and Error. A motion for postconviction relief 

cannot be used to secure review of issues which were known to the 

defendant and which were or could have been litigated on direct 

appeal.

Appeal from the District Court for Douglas County: Leigh 

Ann Retelsdorf, Judge. Affirmed in part, and in part vacated 

and remanded for further proceedings.

Jerry M. Hug for appellant.
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307 Nebraska Reports

STATE v. DALTON

Cite as 307 Neb. 465

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

for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

John W. Dalton, Jr., appeals from an order denying his 

motion for postconviction relief following an evidentiary hearing on his claim that trial counsel was ineffective for failing to 

file a direct appeal. In the same order, the district court denied 

without an evidentiary hearing Dalton’s separate claim of ineffective assistance of trial counsel, challenging the voluntariness 

of his pleas. For the reasons set forth below, we affirm in part, 

and in part vacate and remand for further proceedings.

BACKGROUND

On January 31, 2018, Dalton was charged with seven felonies relating to the deaths of three people. On December 10, 

Dalton accepted a plea agreement whereby in exchange for the 

State’s agreeing to not seek the death penalty, he pled guilty 

to three counts of first degree murder; three counts of using a 

firearm to commit a felony; and one count of possession of a 

firearm by a prohibited person, second offense. Dalton entered 

his pleas of guilty. He then waived his right to a presentence 

investigation and requested immediate sentencing. The court 

granted Dalton’s request and sentenced him to three life sentences for the three counts of first degree murder; three terms 

of 49 to 50 years’ imprisonment for the three counts of an 

illegal use of a firearm; and a term of 50 to 80 years’ imprisonment for one count of possession of a firearm by a prohibited person, second offense. Each sentence was ordered to be 

served consecutively. No direct appeal was filed.

On April 8, 2019, Dalton filed a timely verified motion 

for postconviction relief in the district court. In his motion, 

Dalton alleged that counsel was ineffective for failing to file a 
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STATE v. DALTON

Cite as 307 Neb. 465

direct appeal when Dalton requested that counsel do so following the imposition of his sentences. Dalton also made a claim 

of ineffective assistance of counsel based on trial counsel’s 

failure to investigate the case. Dalton asserts that he would 

not have entered into the plea agreement if his attorney would 

have properly investigated his case. Dalton claimed that counsel failed to depose the lone eyewitness and failed to secure 

a mental health evaluation for the purposes of establishing 

a defense or mitigating evidence to be used in plea negotiations. In addition to the ineffective assistance of counsel claim, 

Dalton claimed in his postconviction motion that his sentences 

were excessive and constituted cruel and unusual punishment 

under the Eighth Amendment to the U.S. Constitution.

The court ordered an evidentiary hearing on the first claim, 

regarding the failure to file a direct appeal. The court ordered 

that all other postconviction claims were to remain pending 

until after the evidentiary hearing. Depositions from Dalton 

and Cindy Tate, Dalton’s trial counsel who was employed by 

the Douglas County public defender’s office, were admitted 

into evidence at the evidentiary hearing.

Tate indicated in her deposition that during the 11 months 

between when Dalton was charged and his plea hearing, Dalton 

was very interested in the case and made multiple requests to 

pursue a plea agreement with the State. Tate testified that after 

the plea agreement was reached and Dalton was convicted and 

sentenced, she verbally advised Dalton of the opportunity to 

appeal. Tate testified that after the sentencing on December 10, 

2018, Dalton did not request that a direct appeal be filed. She 

also sent him a standard form letter, which advised him of his 

right to appeal and how to contact her. This letter was admitted 

at the postconviction evidentiary hearing.

Tate testified that she did not receive any written communication from Dalton indicating a desire to appeal. Tate 

also testified that Dalton did not request a direct appeal during any of the conversations she had with him. Tate testified 

that 2 days after the sentencing, Dalton left a voicemail at the 
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STATE v. DALTON

Cite as 307 Neb. 465

public defender’s office. In the voicemail, Dalton complained 

about what the prosecutor’s office had said when talking publicly about his convictions, but he did not indicate a desire 

to appeal.

Dalton testified in his deposition that he wrote a letter to Tate 

requesting a direct appeal. Dalton claims this letter was given 

to a guard to be placed in the mail at the Douglas County jail 

on the evening of December 12, 2018. Dalton did not proffer 

the alleged letter or the guard’s testimony. Dalton indicated in 

his deposition that Tate had made him aware that if he entered 

pleas of guilty, he would be giving up many of the issues that 

could be raised on appeal. He also admitted that when verbally 

discussing the plea agreement with Tate, he did not indicate to 

her that he wanted to appeal.

Following the hearing, the district court entered an order 

denying Dalton’s motion as to the direct appeal claim. In the 

same order, the court denied without an evidentiary hearing “any remaining issues in the postconviction.” The court 

explained in this regard that “the motion fails to state sufficient facts regarding counsel being deficient or showing 

prejudice, which would require facts showing [Dalton] would 

have insisted on going to trial and not accept the plea offer.” 

Dalton appeals.

ASSIGNMENTS OF ERROR

Dalton assigns that the district court erred in (1) determining that Dalton was not entitled to reinstatement of his direct 

appeal due to trial counsel’s ineffective assistance and (2) failing to grant an evidentiary hearing on Dalton’s claim that his 

pleas were not knowingly and voluntarily made where counsel 

was ineffective for failing to fully investigate the case prior to 

advising him to enter pleas of guilty.

STANDARD OF REVIEW

[1] Appellate review of a claim of ineffective assistance of 

counsel is a mixed question of law and fact. When reviewing a claim of ineffective assistance of counsel, an appellate 
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STATE v. DALTON

Cite as 307 Neb. 465

court reviews the factual findings of the lower court for clear 

error. With regard to the questions of counsel’s performance 

or prejudice to the defendant as part of the two-pronged test 

articulated in Strickland v. Washington,

 1 an appellate court 

reviews such legal determinations independently of the lower 

court’s decision. 2

[2] In an evidentiary hearing on a motion for postconviction 

relief, the trial judge, as the trier of fact, resolves conflicts in 

the evidence and questions of fact. 3

ANALYSIS

The district court determined that Dalton was entitled to an 

evidentiary hearing on his posconviction claim that counsel 

was ineffective for failing to file a direct appeal. 4 The court 

ultimately found that trial counsel was not deficient in failing 

to file a direct appeal that was not requested, and we hold that 

those findings were not clearly erroneous. However, the district 

court in the same order also addressed and disposed of the 

remaining postconviction claims on the ground that the motion 

alleged insufficient facts. In State v. Determan,

 5 we held that 

there must be a final mandate on the court’s disposition of a 

postconviction claim of ineffective assistance for failing to file 

a direct appeal before the court addresses other postconviction 

ineffective assistance of counsel claims. In accordance with 

Determan, we vacate the part of the order denying Dalton’s 

second ineffective assistance claim and remand the cause for 

further proceedings. We affirm the court’s ruling as to Dalton’s 

claim of excessive sentences for the reason that such claim, 

which was stated apart from any claim of ineffective assist

ance, is procedurally barred.

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

(1984).

2 State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).

3 State v. Beehn, 303 Neb. 172, 927 N.W.2d 793 (2019).

4 See Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016).

5 State v. Determan, 292 Neb. 557, 873 N.W.2d 390 (2016).
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Cite as 307 Neb. 465

[3-5] Postconviction relief is a very narrow category of 

relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable. 6 To establish 

a right to postconviction relief based on a claim of ineffective 

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

ance with Strickland,

 7 to show that counsel’s performance 

was deficient; that is, counsel’s performance did not equal 

that of a lawyer with ordinary training and skill in criminal 

law. Next, the defendant must show that counsel’s deficient 

performance prejudiced the defense in his or her case. 8 After a 

trial, conviction, and sentencing, if counsel deficiently fails to 

file or perfect an appeal after being so directed by the criminal defendant, prejudice will be presumed and counsel will be 

deemed ineffective, thus entitling the defendant to postconviction relief. 9

The evidentiary hearing provided Dalton with the opportunity to present evidence that he directed Tate to file an appeal. 

The court found that Dalton was informed of his right to appeal 

and had not directed Tate to file an appeal. Upon review of the 

record, we cannot say that the district court clearly erred in 

these findings.

Dalton testified in his deposition that he wrote a letter 

approximately 2 days after his sentencing and left it with a 

guard to be mailed to Tate. But Dalton was unable to provide 

any details or other evidence to corroborate that a letter was 

sent to Tate. Tate testified that no one at the public defender’s 

office received a letter from Dalton.

Tate testified further that she was never instructed by Dalton 

to file an appeal, despite the fact that she clearly explained 

his opportunity to appeal and sent him a formal letter explaining that right and how to contact her. The letter was entered 

6 State v. Beehn, supra note 3.

7 Strickland v. Washington, supra note 1.

8 State v. Beehn, supra note 3.

9 State v. Hessler, 295 Neb. 70, 886 N.W.2d 280 (2016); State v. Dunkin, 

283 Neb. 30, 807 N.W.2d 744 (2012).
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Cite as 307 Neb. 465

as an exhibit at the evidentiary hearing. Dalton claims that he 

had limited access to communicate with Tate, but he does not 

contest that he sent a voicemail to Tate approximately 2 days 

after sentencing and did not therein request a direct appeal. 

Dalton did not deny he had been informed by Tate of his right 

to appeal.

The district court indicated in its order that it found Tate 

to be the more credible witness. In an evidentiary hearing for 

postconviction relief, the postconviction trial judge, as the trier 

of fact, resolves conflicts in evidence and questions of fact, 

including witness credibility and the weight to be given a witness’ testimony. 10

We agree with the district court that Tate was not ineffective for failing to file an appeal that was not requested. 

Dalton argues that it is deficient conduct for trial counsel to 

fail to obtain from the client an explicit directive as to the 

desire to pursue or not pursue a direct appeal and that under 

such circumstances, prejudice should be presumed and a new 

direct appeal ordered. According to Dalton, such a rule is 

appropriate in light of the often limited access of defendants to 

their counsel.

[6] We decline to place such a burden on counsel. It is 

simply not under defense counsel’s power to force a client 

to provide an explicit response to inquiries regarding the client’s right to appeal. Furthermore, we disagree that prejudice 

should be presumed in the same manner that it is presumed 

when counsel has been directed to file an appeal. 11 Failing 

to directly appeal when the defendant is silent after being 

informed of the right to appeal and the manner to communicate the desire to appeal is not analogous to the situation where 

counsel ignores an express directive by the client to file a 

direct appeal. 12

10 State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004).

11 See State v. Hessler, supra note 9.

12 See, id; State v. Wagner, 271 Neb. 253, 710 N.W.2d 627 (2006).
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STATE v. DALTON

Cite as 307 Neb. 465

The Sixth Amendment to the U.S. Constitution provides 

that in all criminal proceedings, the accused shall have the 

right to the assistance of counsel in his or her defense. 13 The 

U.S. Supreme Court has also determined that a defendant has 

a fundamental due process right to access the courts and to 

communicate with his or her legal counsel. 14 But Dalton did 

not make a postconviction claim based on an alleged deprivation of his right to access the court or to communicate with 

counsel. As found by the district court, Dalton had several 

opportunities after sentencing to communicate to Tate that 

he wanted an appeal, including a telephone call to the public 

defender’s office.

We agree with the district court that Tate’s failure to elicit 

an explicit directive from Dalton one way or the other was not 

ineffective assistance of counsel. We are unwilling to place an 

increased burden on trial counsel to go beyond informing a 

defendant of the right to appeal and how counsel may be contacted to request that an appeal be filed. The responsibility for 

requesting an appeal remains with the defendant. On Dalton’s 

claim of ineffective assistance of counsel for failure to file a 

direct appeal, we affirm the district court’s denial of postconviction relief.

[7,8] However, precedent requires we vacate that part of 

the district court’s order disposing of Dalton’s postconviction ineffective assistance claim that Tate provided ineffective 

assistance of counsel by failing to depose the lone eyewitness or secure a mental health evaluation for the purposes 

of establishing a defense or mitigating evidence to be used 

in plea negotiations. When a postconviction motion alleges a 

claim of ineffective assistance based on counsel’s failure to 

file a direct appeal, which has as its relief a new direct appeal, 

alongside other claims of ineffective assistance of counsel 

13 See State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated 

on other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

14 See, Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606 

(1996); Ex parte Hull, 312 U.S. 546, 61 S. Ct. 640, 85 L. Ed. 1034 (1941).
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that request as relief a new trial, the district court must first 

address the claim that counsel was ineffective for failing to 

file a direct appeal, including holding an evidentiary hearing, 

if required. 15 Upon reaching its decision, the district court 

should enter a final order on that claim only. 16 If the claim for 

a new direct appeal is denied, a defendant should be permitted to appeal that denial. 17 Only after the resolution of that 

appeal, or, alternatively, the expiration of the defendant’s time 

to appeal, should the district court proceed to consider the 

remaining claims. 18

[9] As we explained in Determan, addressing and waiting 

for a final mandate on any claims of ineffective assistance of 

counsel for failing to file a direct appeal before addressing 

other postconviction claims of ineffective assistance of counsel serve the interests of judicial economy by preventing the 

district court’s determination of the nondirect appeal claims 

from being rendered meaningless. 19 For, if a new direct appeal 

were ultimately granted on the postconviction claims related to 

counsel’s failure to timely file a direct appeal, then any other 

claims of ineffective assistance of counsel could be raised 

in the new direct appeal rather than through a postconviction procedure. 20

[10] We held in Determan that when a district court fails 

to follow this directive and disposes of other postconviction 

claims before there has been a final mandate on a disposition 

of the postconviction claim requesting a new direct appeal, the 

proper disposition in an appeal from the district court’s order 

is to vacate the district court’s disposition of the additional 

15 See State v. Determan, supra note 5.

16 Id.

17 Id.

18 Id.

19 See id.

20 See id.
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Cite as 307 Neb. 465

claims and remand the cause for further proceedings. 21 Thus 

we do so here. Dalton’s assignment of error regarding his second postconviction claim is thereby rendered moot. We do not 

address whether the trial court correctly found that Dalton had 

failed to allege sufficient facts to warrant an evidentiary hearing on this second claim.

Dalton does not assign as error the court’s denial of his postconviction claim based on an alleged violation of the Eighth 

Amendment prohibition against cruel and unusual punishment, 

but we note for the sake of completeness that the court’s order 

disposing of this claim does not fall under Determan. Thus, we 

do not vacate the court’s order insofar as it denied the Eighth 

Amendment claim without an evidentiary hearing.

Dalton did not make such a claim as part of an allegation 

of ineffective assistance of counsel. Determan addresses only 

claims of ineffective assistance of counsel. Such claims, by 

virtue of the absence of a direct appeal with new counsel, 

are not procedurally barred. In such circumstances, it serves 

judicial economy to require that these claims be addressed 

in a new direct appeal if such a direct appeal is ultimately 

ordered. Vacating the order and remanding the cause for further proceedings on such ineffective assistance claims, to be 

held only if a final mandate denies a new direct appeal, serve 

judicial economy.

[11] A postconviction claim that the sentence was unconstitutionally excessive, however, is procedurally barred by the 

failure to directly appeal. A motion for postconviction relief 

cannot be used to secure review of issues which were known 

to the defendant and which were or could have been litigated 

on direct appeal. 22 And while an excessive sentence claim 

could be raised in any new direct appeal ordered on an ineffective assistance claim based on a failure to appeal, this does 

not change the fact that as a stand-alone postconviction claim 

21 See id.

22 State v. Moore, 272 Neb. 71, 718 N.W.2d 537 (2006).
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where there has been no original direct appeal, an excessive 

sentence claim is procedurally barred. It would therefore not 

serve the interests of judicial economy to vacate the court’s 

denial of such excessive sentence claim and remand the cause 

for further proceedings.

CONCLUSION

We affirm the district court’s denial of Dalton’s ineffective 

assistance claim concerning his direct appeal. The portion of 

the district court’s order denying Dalton’s claim of ineffective assistance of counsel related to ineffective assistance for 

failure to investigate is vacated and the cause is remanded for 

further proceedings.

Affirmed in part, and in part vacated and 

remanded for further proceedings.