Decisions of the Nebraska Court of Appeals

536 22 NEBRASKA APPELLATE REPORTS

statute of limitations, in granting Southfork’s motion for summary judgment, and in dismissing the Adamses’ complaint. 

Therefore, we reverse the order of the district court granting 

Southfork’s motion for summary judgment and remand the 

matter as to the Adamses’ complaint against Southfork back 

to the district court for further proceedings consistent with 

this opinion.

 Affirmed in part, and in part reversed and

remanded for further proceedings.

State of Nebraska, appellee, v. 

Agok Arok Agok, appellant.

___ N.W.2d ___

Filed November 10, 2014. No. A-14-141.

1. Postconviction: Proof: Appeal and Error. A defendant requesting postconviction relief must establish the basis for such relief, and the factual findings of the 

district court will not be disturbed unless they are clearly erroneous.

2. Postconviction: Constitutional Law: Proof. A defendant moving for postconviction relief must allege facts which, if proved, constitute a denial or violation 

of his or her rights under the state or federal Constitutions.

3. Attorneys at Law: Appeal and Error. Attorneys of record of the respective parties in the court below shall be deemed the attorneys of the same parties in the 

appellate court, until a withdrawal of appearance has been filed.

4. Criminal Law: Attorneys at Law: Appeal and Error. Counsel in any criminal 

case pending in an appellate court may withdraw only after obtaining permission 

of the appellate court.

5. Criminal Law: Attorneys at Law: Notice: Appeal and Error. Counsel 

appointed in the district court to represent a defendant in a criminal case other 

than a postconviction action shall, upon request by the defendant after judgment, 

file a notice of appeal and continue to represent the defendant unless permitted to 

withdraw by the appellate court.

6. Effectiveness of Counsel: Appeal and Error. A defendant’s desire to argue that 

trial counsel was ineffective gives rise to a potential conflict of interest, precluding trial counsel from continued representation of the defendant on appeal.

7. Right to Counsel: Courts: Appeal and Error. When trial counsel files a motion 

to withdraw in the appellate court due to a conflict of interest, the appellate court 

shall issue an order to the district court directing it to appoint counsel if the 

defendant requests counsel be appointed and shows by affidavit to the district 

court that he is indigent.
Decisions of the Nebraska Court of Appeals

STATE v. AGOK 537

Cite as 22 Neb. App. 536

8. Right to Counsel: Appeal and Error. When an indigent defendant is deprived 

of his constitutional right to counsel by not being furnished an attorney to present his direct appeal to an appellate court, the defendant is not afforded an 

effective appeal, and the decision thereon is deemed a nullity.

Appeal from the District Court for Hall County: James D. 

Livingston, Judge. Reversed and remanded with directions.

Agok Arok Agok, pro se.

Jon Bruning, Attorney General, and George R. Love for 

appellee.

Moore, Chief Judge, and Riedmann and Bishop, Judges.

Riedmann, Judge.

INTRODUCTION

Agok Arok Agok appeals from the order of the district 

court for Hall County dismissing his motion for postconviction relief without an evidentiary hearing. Because we find 

that Agok was denied his constitutional right to be represented 

by counsel on direct appeal, we reverse the dismissal of 

Agok’s motion for postconviction relief and remand the matter to the district court with directions to grant Agok a new 

direct appeal and to appoint new counsel to represent him for 

such appeal.

BACKGROUND

In April 2013, Agok was convicted by a jury of terroristic threats and use of a weapon to commit a felony. He was 

sentenced to concurrent prison terms of 1 to 2 years and 5 to 

8 years, respectively. After sentencing, Agok’s trial counsel, 

a deputy public defender, informed Agok that she would not 

be able to represent him on appeal due to his claim that she 

provided ineffective assistance of counsel. She did, however, 

assist him in preparing and filing the necessary documents to 

perfect his appeal.

Agok, appearing pro se, timely filed a notice of appeal, an 

application to proceed in forma pauperis, and a poverty affidavit, as well as a document titled “Assignment of Errors,” listing 

ineffective assistance of trial counsel as the sole error assigned. 
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538 22 NEBRASKA APPELLATE REPORTS

The district court granted Agok’s application to proceed in 

forma pauperis, and his appeal was docketed in this court as 

case No. A-13-578.

After his appeal was perfected, Agok filed a pro se motion 

for the appointment of new counsel in the district court. The 

district court entered an order the following day stating that 

the appellate court obtained exclusive jurisdiction over the 

case upon the filing of his notice of appeal and that therefore, 

any motions must be made to the appellate court. Accordingly, 

Agok filed a subsequent pro se motion for appointment of 

counsel in this court, which we “[o]verruled without prejudice 

to filing in the sentencing court.” We subsequently dismissed 

Agok’s appeal in case No. A-13-578 on October 18, 2013, due 

to his failure to file a brief.

Agok filed a motion for postconviction relief in the district 

court, alleging that trial counsel was ineffective for failing to 

file an appeal. The district court dismissed the motion without 

an evidentiary hearing. It noted that counsel was not ineffective for failing to file an appeal, because Agok’s appeal had 

been perfected.

Agok timely appeals the district court’s judgment.

ASSIGNMENTS OF ERROR

Agok assigns that the district court erred in dismissing his 

motion for postconviction relief, because his counsel was ineffective for failing to file an appellate brief, and that he was 

denied counsel at a critical stage of the proceedings.

STANDARD OF REVIEW

[1,2] A defendant requesting postconviction relief must 

establish the basis for such relief, and the factual findings of 

the district court will not be disturbed unless they are clearly 

erroneous. State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 

(2000). A defendant moving for postconviction relief must 

allege facts which, if proved, constitute a denial or violation 

of his or her rights under the state or federal Constitutions. Id.

ANALYSIS

[3-5] The Nebraska court rules of appellate practice provide 

that the attorneys of record of the respective parties in the 
Decisions of the Nebraska Court of Appeals

STATE v. AGOK 539

Cite as 22 Neb. App. 536

court below shall be deemed the attorneys of the same parties 

in the appellate court, until a withdrawal of appearance has 

been filed. See Neb. Ct. R. App. P. § 2-101(F)(1) (rev. 2010). 

Counsel in any criminal case pending in an appellate court 

may withdraw only after obtaining permission of the appellate 

court. Id. Counsel appointed in the district court to represent a 

defendant in a criminal case other than a postconviction action 

shall, upon request by the defendant after judgment, file a 

notice of appeal and continue to represent the defendant unless 

permitted to withdraw by the appellate court. Neb. Ct. R. App. 

P. § 2-103(A).

[6] The record before us reflects that trial counsel is a 

deputy public defender that was appointed to represent Agok 

at the trial court level. Although counsel assisted Agok in preparing and filing a notice of appeal, she violated the foregoing rules by ceasing to represent him without filing a motion 

to withdraw in this court after his appeal had been perfected. 

We recognize that trial counsel could not continue to represent 

Agok on appeal due to his claim that she provided ineffective assistance of counsel. See State v. Molina, 271 Neb. 488, 

713 N.W.2d 412 (2006) (defendant’s desire to argue that trial 

counsel was ineffective gave rise to potential conflict of interest, because it placed trial counsel in position of having to 

argue his or her own ineffectiveness). However, Agok’s trial 

counsel was required to file a motion in this court requesting 

permission to withdraw and stating the reason for the request. 

See § 2-103(B).

[7] We note that Agok filed a motion for appointment 

of counsel in this court in August 2013, and we denied the 

motion without prejudice to filing in the trial court. See 

Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 

(2008) (stating that in interwoven and interdependent cases, 

appellate court may examine its own records and take judicial 

notice of proceedings and judgment in former action involving 

party). At that time, although Agok had filed pro se pleadings 

in this court, the transcript revealed that he was represented 

by the Hall County public defender’s office through trial 

and sentencing and that there was no indication of counsel’s 

withdrawal. Had the public defender properly filed a motion 
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540 22 NEBRASKA APPELLATE REPORTS

to withdraw as counsel in our court, we would have issued an 

order directing the district court to appoint counsel to represent Agok on direct appeal, provided he asked that counsel be 

appointed and satisfactorily showed by affidavit to the district 

court that he was indigent. See State v. Dawn, 246 Neb. 384, 

519 N.W.2d 249 (1994).

[8] Because this procedure was not followed in this case, 

Agok was forced to proceed with his direct appeal without 

counsel. When an indigent defendant is deprived of his constitutional right to counsel by not being furnished an attorney 

to present his direct appeal to an appellate court, the defendant 

is not afforded an effective appeal, and the decision thereon 

is deemed a nullity. State v. Dawn, supra. Agok’s indigence 

was established when the district court granted his application to proceed in forma pauperis on appeal. Thus, he had a 

right to appointed counsel for his direct appeal. See, Evitts v. 

Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985); 

Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 

2d 811 (1963).

Because Agok was deprived of his right to be represented by 

counsel on appeal, we reverse the dismissal of Agok’s motion 

for postconviction relief and remand the matter to the district 

court with directions to grant Agok a new direct appeal and to 

appoint new counsel to represent him for such appeal.

CONCLUSION

For the foregoing reasons, we reverse the dismissal of 

Agok’s motion for postconviction relief and remand the matter 

to the district court with directions to grant Agok a new direct 

appeal and to appoint new counsel to represent him.

Reversed and remanded with directions.