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31 Nebraska Appellate Reports

STATE V. SINACHAC

Cite as 31 Neb. App. 187

State of Nebraska, appellee, v. 

Mark Sinachack, appellant.

___ N.W.2d ___

Filed July 19, 2022. No. A-21-569.

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: Judgments: Appeal and Error. Whether a claim raised 

in a postconviction proceeding is procedurally barred is a question of 

law. When reviewing a question of law, an appellate court reaches a 

conclusion independent of the lower court’s ruling.

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. 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.

5. Postconviction: Judgments: Proof. In a postconviction proceeding, 

an evidentiary hearing is not required when (1) the motion does not 

contain factual allegations which, if proved, constitute an infringement 

of the movant’s constitutional rights, rendering the judgment void or 

voidable; (2) the motion alleges only conclusions of fact or law without 

supporting facts; or (3) the records and files affirmatively show that the 

defendant is entitled to no relief.

6. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 

Nebraska Supreme Court Online Library

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

08/02/2022 09:07 AM CDT
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Cite as 31 Neb. App. 187

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.

7. Effectiveness of Counsel: Proof: Appeal and Error. To show that 

counsel’s performance was deficient under Strickland v. Washington, 

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

must show counsel’s performance did not equal that of a lawyer with 

ordinary training and skill in criminal law. 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.

8. Postconviction: Effectiveness of Counsel: Appeal and Error. A 

motion for postconviction relief asserting ineffective assistance of trial 

counsel is procedurally barred when (1) the defendant was represented 

by a different attorney on direct appeal than at trial, (2) an ineffective 

assistance of trial counsel claim was not brought on direct appeal, and 

(3) the alleged deficiencies in trial counsel’s performance were known 

to the defendant or apparent from the record.

9. ____: ____: ____. Claims of ineffective assistance of appellate counsel 

may be raised for the first time on postconviction review.

10. Effectiveness of Counsel: Appeal and Error. When a claim of ineffective assistance of appellate counsel is based on the failure to raise a 

claim on appeal of ineffective assistance of trial counsel, an appellate 

court will first look at whether trial counsel was ineffective under the 

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

Ed. 2d 674 (1984).

11. Appeal and Error. Absent plain error, an appellate court ordinarily will 

not address an issue that was not raised in the trial court.

12. Right to Counsel: Plea Bargains. The plea-bargaining process presents 

a critical stage of a criminal prosecution to which the right to counsel applies.

Appeal from the District Court for Buffalo County: John H. 

Marsh, Judge. Affirmed.

Thomas S. Stewart for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.
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STATE V. SINACHAC

Cite as 31 Neb. App. 187

Moore, Riedmann, and Arterburn, Judges.

Arterburn, Judge.

INTRODUCTION

Mark Sinachack appeals from the order of the district court 

for Buffalo County, which denied his motion for postconviction relief without an evidentiary hearing. For the reasons set 

forth herein, we affirm.

BACKGROUND

In 2017, the State charged Sinachack in an amended information with first degree sexual assault of a child, a Class IB 

felony, and enticement by an electronic communication device, 

a Class IV felony. Each of these charges related to Sinachack’s 

relationship with a 15-year-old girl during the summer of 2016. 

Immediately prior to a bench trial on the two criminal charges, 

Sinachack indicated to the court that he wished to plead no 

contest to the charge of enticement by an electronic communication device. The district court accepted the plea.

At the close of the bench trial on the charge of first degree 

sexual assault of a child, the court found Sinachack guilty, 

noting that the evidence against him was “overwhelming.” 

The court subsequently sentenced Sinachack to 20 to 30 years’ 

imprisonment on that conviction and to 3 to 6 months’ imprisonment on his conviction for enticement by an electronic communication device.

Sinachack attempted to file a pro se notice of appeal from 

his convictions and sentences. However, the appeal was dismissed because he neither paid the required docket fee nor 

requested to proceed in forma pauperis.

Sinachack later filed a motion for postconviction relief. 

In the motion, he alleged, among other things, that his trial 

counsel had provided ineffective assistance when counsel 

failed to perfect his direct appeal. Ultimately, the district court 

granted Sinachack’s motion for postconviction relief, in part. 

Specifically, the court granted his request for a new direct 
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Cite as 31 Neb. App. 187

appeal. The court did not reach any of the other allegations in 

Sinachack’s motion for postconviction relief.

Sinachack, through new counsel, filed a direct appeal of his 

convictions and sentences. On appeal, he assigned as error that 

his trial counsel was ineffective. The State filed a motion for 

summary affirmance, arguing that Sinachack had insufficiently 

raised his assertions of ineffective assistance of trial counsel pursuant to State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 

(2019). This court agreed with the State’s contention and summarily affirmed Sinachack’s convictions and sentences, finding: “Appellant did not specifically assign as error his claims 

of ineffective assistance of trial counsel. See State v. Mrza, 302 

Neb. 931, 926 N.W.2d 79 (2019).” Our mandate was issued on 

August 11, 2020.

Following our order of summary affirmance, Sinachack 

obtained a third attorney. Sinachack’s new counsel sought leave 

to file an amended motion for postconviction relief in order 

to remove some of the claims raised in Sinachack’s original 

motion for postconviction relief as to trial counsel, but to also 

add claims of ineffective assistance of counsel with regard to 

his representation on direct appeal. The district court allowed 

Sinachack to file an amended motion for postconviction relief. 

That motion is the operative pleading in the current appeal.

In his amended motion for postconviction relief, Sinachack 

alleged that his appellate counsel was ineffective for failing to 

properly raise on direct appeal the claim that his trial counsel 

provided ineffective assistance in the context of plea negotiations. Specifically, Sinachack contended that trial counsel’s 

decision to provide the State with the report from his forensic 

psychosexual evaluation “torpedoed what had been up to that 

point a viable chance for Sinachack to avoid a 15-year mandatory minimum sentence by pleading to a lesser offense than the 

top count in the Information.” Sinachack alleged that but for 

trial counsel’s ineffective assistance, he would have pled guilty 

to a lesser offense and received a much lower sentence.
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Cite as 31 Neb. App. 187

Sinachack made clear in his amended motion for postconviction relief that he was only contending that trial counsel 

was ineffective in terms of plea negotiations: “Sinachack does 

not here allege [trial counsel’s] deficient preparation and performance prejudiced Sinachack at trial. Sinachack’s postconviction investigation revealed no sound basis to [assert any 

other allegation of ineffective assistance of trial counsel].” 

(Emphasis in original.)

The district court ultimately entered an order denying 

Sinachack’s amended motion for postconviction relief without 

an evidentiary hearing. The court explained its judgment as 

follows:

Regarding claims that trial counsel’s trial strategy is 

ineffective the analysis is viewed with the strong presumption that counsel’s actions were reasonable and appellate 

courts generally do not second-guess reasonable strategic 

decisions by counsel. . . . The fact that a calculated trial 

tactic or strategy fails to work out as planned will not 

establish that counsel was ineffective. . . .

Had appellate counsel properly assigned the error, 

the claim depends on the hypothetical and speculative position that but for disclosing the psychosexual 

evaluation the prosecutor would have offered a plea 

bargain to an offense without the 15 year mandatory 

minimum and that [Sinachack] would have accepted that 

offer. 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. . . .

The Court finds that [Sinachack’s] contention regarding disclosure of the psychosexual evaluation is a mere 

conclusion of fact. Such conclusion is insufficient to 

rebut the presumption of reasonableness of trial counsel strategy. The Court denies [Sinachack’s] request for 
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STATE V. SINACHAC

Cite as 31 Neb. App. 187

an evidentiary hearing and the Amended Motion for 

Postconviction Relief is dismissed.

(Citations omitted.)

Sinachack appeals from the district court’s denial of his 

amended motion for postconviction relief here.

ASSIGNMENT OF ERROR

Sinachack, now represented by his fourth attorney, asserts 

that the district court erred in overruling his motion for postconviction relief without an evidentiary hearing.

STANDARD OF REVIEW

[1] In appeals from postconviction proceedings, an appellate 

court reviews de novo a determination that the defendant failed 

to allege sufficient facts to demonstrate a violation of his or her 

constitutional rights or that the record and files affirmatively 

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

310 Neb. 69, 963 N.W.2d 533 (2021).

[2] Whether a claim raised in a postconviction proceeding 

is procedurally barred is a question of law. State v. Stelly, 308 

Neb. 636, 955 N.W.2d 729 (2021). When reviewing a question 

of law, an appellate court reaches a conclusion independent of 

the lower court’s ruling. Id.

ANALYSIS

[3] 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. 

Britt, supra. Thus, 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. Id.

[4,5] 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 
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infringement of the defendant’s rights under the Nebraska 

or federal Constitution. State v. Newman, 310 Neb. 463, 966 

N.W.2d 860 (2021). In a postconviction proceeding, an evidentiary hearing is not required when (1) the motion does 

not contain factual allegations which, if proved, constitute an 

infringement of the movant’s constitutional rights, rendering 

the judgment void or voidable; (2) the motion alleges only 

conclusions of fact or law without supporting facts; or (3) 

the records and files affirmatively show that the defendant is 

entitled to no relief. State v. Stelly, supra.

[6,7] In this case, Sinachack assigns that the district court 

erred by overruling his motion for postconviction relief without an evidentiary hearing, arguing that he received ineffective assistance of trial and appellate counsel. 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. Newman, supra. To show that counsel’s performance was 

deficient under Strickland v. Washington, supra, the defend

ant must show counsel’s performance did not equal that of a 

lawyer with ordinary training and skill in criminal law. State 

v. Newman, supra. To show prejudice under the prejudice 

component of the Strickland v. Washington, supra, 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. Newman, 

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 confidence in the outcome. Id. 

A court may examine the two prongs of the ineffective assist

ance of counsel test, deficient performance and prejudice, in 

any order and need not examine both prongs if a defendant 

fails to demonstrate either. Id.
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Cite as 31 Neb. App. 187

In his brief on appeal, Sinachack raises multiple issues of 

ineffective assistance of trial counsel, including that trial counsel was ineffective for disclosing the report from his forensic 

psychosexual evaluation to the State during plea negotiations, 

for failing to disclose to him a plea offer made by the State, for 

failing to investigate the allegations that he had sexual contact 

with the 15-year-old victim at a certain storage unit, for failing to file a motion to suppress evidence gained from his and 

the victim’s cellular telephones, and for failing to move for a 

mistrial due to the State’s acts of prosecutorial misconduct. 

Each of Sinachack’s assertions of ineffective assistance of trial 

counsel are procedurally barred.

[8] A motion for postconviction relief asserting ineffective 

assistance of trial counsel is procedurally barred when (1) the 

defendant was represented by a different attorney on direct 

appeal than at trial, (2) an ineffective assistance of trial counsel claim was not brought on direct appeal, and (3) the alleged 

deficiencies in trial counsel’s performance were known to the 

defendant or apparent from the record. State v. Newman, 300 

Neb. 770, 916 N.W.2d 393 (2018). Our record is clear that 

Sinachack was represented by different counsel during his 

direct appeal than at trial. In addition, our record indicates that 

the alleged deficiencies in trial counsel’s performance were 

known at the time of the direct appeal because Sinachack’s 

appellate counsel attempted to raise such issues. However, 

appellate counsel failed to properly preserve the issue of 

ineffective assistance of trial counsel by providing a generalized assignment of error in contravention of the Nebraska 

Supreme Court’s clear directive in State v. Mrza, 302 Neb. 

931, 926 N.W.2d 79 (2019). Accordingly, Sinachack is now 

precluded from raising any issues of ineffective assistance of 

trial counsel.

[9,10] However, claims of ineffective assistance of appellate counsel may be raised for the first time on postconviction review. State v. Newman, 300 Neb. 770, 916 N.W.2d 393 

(2018). When a claim of ineffective assistance of appellate 
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Cite as 31 Neb. App. 187

counsel is based on the failure to raise a claim on appeal of 

ineffective assistance of trial counsel, an appellate court will 

first look at whether trial counsel was ineffective under the test 

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

L. Ed. 2d 674 (1984). If trial counsel was not ineffective then 

the defendant was not prejudiced by appellate counsel’s failure 

to raise the issue.

In his brief on appeal, Sinachack asserts that his appellate 

counsel was ineffective in failing “to properly or specifically 

assign as error and argue each claim of ineffectiveness of 

Sinachack’s trial counsel.” Brief for appellant at 20. We read 

Sinachack’s argument as incorporating each of the alleged 

deficiencies by trial counsel into his argument about appellate counsel’s ineffective assistance. However, in Sinachack’s 

amended motion for postconviction relief, he alleged only that 

appellate counsel was ineffective in failing to raise on direct 

appeal trial counsel’s decision to provide the report from his 

forensic psychosexual evaluation to the State during plea negotiations: “Sinachack’s formal claim of ineffective assistance of 

counsel arises . . . from [trial counsel’s] actions and inactions 

in the context of plea negotiations.”

[11] Sinachack did not incorporate into his amended motion 

any other allegation of ineffective assistance of appellate counsel. As such, his assertions that appellate counsel was ineffective in failing to raise on appeal trial counsel’s failure to 

disclose to him a plea offer made by the State, investigate 

the allegations that he had sexual contact with the 15-yearold victim at a certain storage unit, file a motion to suppress 

evidence gained from his and the victim’s cellular telephones, 

and move for a mistrial due to the State’s acts of prosecutorial 

misconduct are raised for the first time in this appeal. Absent 

plain error, an appellate court ordinarily will not address an 

issue that was not raised in the trial court. See, e.g., State v. 

Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013). Accordingly, 

the only issue of ineffective assistance of appellate counsel we 

address in this appeal is the assertion that appellate counsel 
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was ineffective in failing to raise on direct appeal trial counsel’s decision to provide the report from Sinachack’s forensic 

psychosexual evaluation to the State during plea negotiations.

In his amended motion for postconviction relief, Sinachack 

alleged that his trial counsel provided ineffective assistance 

in allowing the State to review the report from his forensic 

psychosexual evaluation during plea negotiations. Sinachack 

contended that prior to the State reading the report, “the State 

was willing to amend the Information to permit Sinachack to 

plead to a lesser sex offense requiring registration but without 

the 15-year mandatory minimum prison sentence.” Sinachack 

further contended that after reviewing the report, the State was 

no longer willing to offer him a plea agreement, and that such 

decision was directly tied to the information contained in the 

report. In support of his claim, Sinachack filed simultaneously 

with his amended motion an index of evidence. Such index 

included copies of email correspondence between the prosecutor and trial counsel.

The district court considered the email correspondence in its 

analysis of Sinachack’s postconviction claim. We also consider 

such evidence in our analysis, as prior case law demonstrates 

that attaching relevant documents to a postconviction motion 

has been an accepted practice. See, e.g., State v. Starks, 294 

Neb. 361, 365, 883 N.W.2d 310, 315 (2016) (postconviction 

motion denied without evidentiary hearing; defendant claimed 

that “‘years after the trial,’” he came into possession of report 

wherein police crime laboratory technician’s statement showed 

one of State’s witnesses lied; Supreme Court noted that “[t]he 

relevant portion of the report was attached to [the defendant’s] 

postconviction motion”; and Supreme Court considered report 

when concluding district court properly rejected defendant’s 

postconviction claim); State v. McHenry, 268 Neb. 219, 226, 

682 N.W.2d 212, 220 (2004) (postconviction motion denied 

without evidentiary hearing; defendant “attached a copy of 

[a private] pathologist’s letter . . . as an exhibit to his postconviction motion” and alleged that prior to his trial, his trial 
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counsel had received that letter which cast doubt on State’s 

expert testimony; and defendant attached letter considered 

by Supreme Court in rejecting defendant’s claim that trial 

counsel was ineffective for failing to investigate defense of 

alcohol poisoning).

We pause in our analysis to note that Sinachack did not 

include a copy of the psychosexual report in his index of 

evidence filed simultaneously with his amended motion for 

postconviction relief. He did, however, file a copy of the report 

with the district court at the time he filed his original motion 

for postconviction relief. While the district court’s order is 

not completely clear, it appears that the district court probably did not consider the substance of the report in denying 

Sinachack’s amended motion without an evidentiary hearing. Assuming without deciding that the content of the report 

could be considered in our analysis, we simply note that we 

have read the report, but do not reiterate the details included 

therein, other than to mention that the content addressed issues 

which in some cases strengthened and in some cases weakened Sinachack’s plea-bargaining position. The content of 

the report, thus, does not support Sinachack’s contention that 

trial counsel’s decision to turn over the report to the State was 

entirely prejudicial. Certain aspects of the report supported 

trial counsel’s position that Sinachack should be considered 

for probation.

Moreover, the email correspondence provided in the evidence index and exchanged between the prosecutor and trial 

counsel prior to the prosecutor’s reading the report from 

Sinachack’s psychosexual evaluation provides no indication 

that the prosecutor offered or considered any sort of plea 

agreement as it related to Sinachack’s charges. In fact, none of 

the emails refer to any sort of plea negotiations; rather, they 

discuss trial preparation. The only email that could be read 

to mention plea negotiations was one sent by the prosecutor, 

asking trial counsel for a meeting, because there might be a 

“resolution” to discuss.
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STATE V. SINACHAC

Cite as 31 Neb. App. 187

The email correspondence exchanged between the prosecutor and trial counsel after the prosecutor read the psychosexual 

evaluation report indicates that the prosecutor did not believe 

that a sentence of probation was appropriate for Sinachack: 

“And, I have had an opportunity to talk with the victim as 

well as review the file again based upon the information 

presented through the evaluation. Long story short, I don’t 

see a probation recommendation heading your client’s way.” 

However, this does not appear to be a marked departure from 

the prosecutor’s previous position. The prosecutor indicated 

at one point in the emails that he had previously offered to 

drop the charge of enticement by an electronic communication 

device in exchange for Sinachack’s plea to first degree sexual 

assault of a child. Such a plea agreement would still include a 

mandatory minimum prison sentence. Trial counsel appeared 

intent on obtaining a plea agreement wherein Sinachack would 

not face a mandatory minimum sentence and would therefore 

be eligible for probation. The prosecutor explained, “I am not 

inclined to amend the charge as I have concerns on him being 

placed on a term of probation.” Although trial counsel suggested that the prosecution amend the most serious charge to 

first degree sexual assault, a Class II felony, at one point, the 

prosecutor said: “I guess the question is, what is your client 

willing to serve? For example, I don’t think he would enter a 

plea to a class 2 if the stipulated sentencing recommendation 

was 7-15 years (btw I am NOT offering that, just throwing 

out an example) . . . am I correct?” Trial counsel’s response 

is to again reference the psychosexual evaluation report and 

highlight reasons why Sinachack would be a good candidate 

for probation.

In its review of Sinachack’s postconviction claim, the district court found that the email correspondence did not support 

his claim of ineffective assistance of trial counsel, and thus, his 

claim of ineffective assistance of appellate counsel. The court 

stated: “A fair reading of the prosecutor’s email at best, shows 

that the evaluation is but one of a number of considerations 
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in the prosecutor’s disinclination to amend the charge.” The 

court went on to find that allowing the prosecutor to review 

the report from Sinachack’s psychosexual evaluation was a 

reasonable trial strategy and that Sinachack’s postconviction 

assertion to the contrary was hypothetical and speculative.

[12] Upon our review, we affirm the decision of the district 

court to deny Sinachack’s postconviction claim without an 

evidentiary hearing. Before addressing the present case, we 

review pertinent case law. The plea-bargaining process presents 

a critical stage of a criminal prosecution to which the right 

to counsel applies. As in any other ineffective assistance of 

counsel claim, we begin by reviewing Sinachack’s allegations 

under the two-part framework of Strickland v. Washington, 

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

State v. Alfredson, 287 Neb. 477, 842 N.W.2d 815 (2014). Trial 

counsel’s failure to communicate a plea offer to a defendant is 

deficient performance as a matter of law. Missouri v. Frye, 566 

U.S. 134, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012). See, also, 

State v. Alfredson, supra. In Alfredson, the Nebraska Supreme 

Court addressed the question of whether a purported offer of a 

plea agreement constituted a formal offer. The Supreme Court 

held that defense counsel has a duty to inform the defendant of 

any formal offer of a plea agreement, but agreed with the trial 

court that under the facts of that case, no formal offer had been 

made. Therefore, since there was no offer, trial counsel could 

not be found to be deficient in failing to communicate the purported offer to the defendant.

Here, Sinachack does not contend that there was any offer 

of a plea agreement. Rather, he argues that but for the provision of the psychosexual evaluation report, the prosecutor 

would have made an offer that he would have found acceptable. Sinachack’s claim that trial counsel’s decision to allow 

the State to read the evaluation prejudiced him during the 

plea negotiations is a mere conclusion of fact. Neither the 

email correspondence between trial counsel and the prosecutor nor Sinachack’s claims in his amended motion directly tie 
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trial counsel’s decision to any change in the State’s position on a plea agreement. Instead, the information provided 

by Sinachack indicates that the State was always hesitant to 

amend the charge of first degree sexual assault of a child and 

never considered any sentence other than one requiring a long 

period of incarceration. Sinachack’s claims to the contrary are 

wholly grounded in speculation.

As such, Sinachack’s claim that appellate counsel provided 

ineffective assistance in failing to raise this issue on appeal 

must fail. Because Sinachack has failed to allege sufficient 

facts to support his assertion that trial counsel provided ineffective assistance during plea negotiations, he cannot demonstrate that appellate counsel provided ineffective assistance in 

failing to raise this issue in the direct appeal.

In his brief on appeal, Sinachack also asserts that the cumulative effect of the deficiencies of both his trial counsel and 

appellate counsel deprived him of his right to due process of 

law. We find no support for Sinachack’s assertion. We have 

found a majority of Sinachack’s assertions of ineffective assist

ance of counsel to be procedurally barred, either because he 

did not raise them in his direct appeal or because he raised 

them for the first time in this appeal. We have concluded that 

the one postconviction claim that was not procedurally barred 

is without merit because it amounted to a mere conclusion 

of fact without any support. As such, Sinachack’s cumulative 

error argument is without merit.

CONCLUSION

For the reasons set forth herein, we affirm the decision of 

the district court to deny Sinachack’s amended motion for postconviction relief without an evidentiary hearing.

Affirmed.