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STATE v. HENK

Cite as 299 Neb. 586

State of Nebraska, appellee a

cross-appellant, v. Ivan K. 

appellant and cross-appell

___ N.W.2d ___

Filed April 13, 2018. No. S-17-291.

1. Judgments: Appeal and Error. The construction of a mandate issued 

by an appellate court presents a question of law, on which an appellate 

court is obligated to reach a conclusion independent of the determination 

reached by the court below.

2. Postconviction: Evidence: Witnesses: Appeal and Error. 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. An appellate court upholds the trial court’s findings unless they are 

clearly erroneous. In contrast, an appellate court independently resolves 

questions of law.

3. Postconviction. Postconviction proceedings are civil in nature.

4. Courts: Judgments: Appeal and Error. A district court has an unqualified duty to follow the mandate issued by an appellate court and must 

enter judgment in conformity with the opinion and judgment of the 

appellate court.

5. ____: ____: ____. A lower court may not modify a judgment directed 

by an appellate court; nor may it engraft any provision on it or take any 

provision from it.

6. Judgments: Appeal and Error. No judgment or order different from, or 

in addition to, the appellate mandate can have any effect.

7. Courts: Judgments: Jurisdiction: Appeal and Error. Because a trial 

court is without power to affect rights and duties outside the scope of the 

remand from an appellate court, any order attempting to do so is entered 

without jurisdiction and is void.

8. Courts: Judgments: Appeal and Error. When an appellate court’s 

mandate makes its opinion a part thereof by reference, the lower court 

Nebraska Supreme Court Online Library

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

05/04/2018 08:09 AM CDT
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should examine the opinion with the mandate to determine the judgment 

to be entered or the action to be taken thereon.

9. Waiver: Appeal and Error. Issues that an appellant waives on appeal 

are not part of an appellate court’s mandate on remand.

10. Courts: Appeal and Error. In order to protect the integrity of the 

judicial process, a defendant cannot be allowed to assert new claims 

on remand even when he or she is entitled to an evidentiary hearing on 

other claims.

11. Pleas: Waiver: Effectiveness of Counsel. Normally, a voluntary guilty 

plea waives all defenses to a criminal charge, but a court will consider an allegation that the plea was the result of ineffective assistance 

of counsel.

Appeal from the District Court for Cass County: James T.

Gleason, Judge. Affirmed in part, and in part vacated and

set aside.

Gregory A. Pivovar for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

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

JJ., and Colborn and Samson, District Judg

Cassel, J.

INTRODUCTION

Ivan K. Henk again appeals from an order denying postconviction relief, this time after an evidentiary hearing mandated by our decision in the first appeal.1

 We conclude that 

two of Henk’s claims were outside the scope of our mandate, 

and we vacate and set aside those parts of the district court’s 

order. Because the remaining claim lacked merit, we otherwise 

affirm the order.

1 See State v. Henk, 284 Neb. xix (No. S-09-1160, July 17, 2012) (memorandum opinion).
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BACKGROUND

In October 2003, Henk was charged with first degree murder, with aggravating circumstances, for the death of his son, 

Brendan Gonzalez, which occurred on or about January 6. He 

was initially questioned after his son disappeared, but he did 

not make any admissions. At a subsequent hearing on an unrelated charge, Henk admitted in open court to killing Brendan. 

He was then interviewed and eventually led investigators to the 

dumpster in which he said he had placed Brendan’s body.

Henk ultimately pled guilty to first degree murder in 

exchange for the State’s not pursuing the death penalty. Once 

again, he admitted in open court to the killing as part of the 

factual basis underlying the plea. The court accepted this plea 

and later sentenced Henk to life imprisonment without the possibility of parole.

Henk filed a pro se motion for postconviction relief in May 

2009 alleging that David Kofoed, a crime scene investigator, 

planted blood evidence in the specific dumpster. He claimed 

that the identification of the blood as belonging to Brendan was 

a “critical piece of evidence” for the State and that his choice 

to plead guilty was influenced in part by the strength of this 

DNA evidence.

The district court denied Henk’s motion for postconviction 

relief without an evidentiary hearing after determining that the 

issues were known to Henk at the time of his guilty plea and 

thus that his claim was procedurally barred. The court also 

determined that the arguments were without merit, because 

the blood evidence was not part of the factual basis used at 

the plea hearing. Henk appealed with the assistance of counsel 

who had represented him at trial.

On appeal, we determined that Henk’s claim could not have 

been previously raised and thus was not procedurally barred. 

After finding that Henk had alleged facts which, if proved, 

could constitute an infringement of his rights under the state 

or federal Constitution, we concluded that he was entitled to 
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an evidentiary hearing. Accordingly, we reversed the decision 

and remanded the matter with directions to the district court to 

grant an evidentiary hearing.

On remand, Henk was represented by new counsel and 

requested leave to file an amended motion for postconviction 

relief in order to raise a third “cause of action,” for ineffective 

assistance of trial counsel. The State objected and argued that 

pursuant to this court’s mandate, the issues should be limited to 

those in the original motion for postconviction relief.

A hearing was held, after which the court granted Henk 

leave to file an amended motion. In doing so, the court interpreted the following statement from our opinion, “[t]he purpose of that evidentiary hearing will be to determine whether a 

constitutional violation occurred and, if so, whether Henk was 

prejudiced by such violation,”2 as broad enough to allow the 

new claim of ineffective assistance of counsel.

Henk then filed an amended motion for postconviction 

relief in which he alleged that his constitutional rights were 

violated by (1) the planting of evidence or false reports of 

Brendan’s blood in the dumpster Henk identified to law 

enforcement, (2) the prosecution’s failure to disclose Kofoed’s 

misconduct to Henk, and (3) ineffective assistance of trial 

counsel when counsel failed to challenge the DNA evidence 

at issue.

The district court conducted an evidentiary hearing and 

afterward denied Henk’s amended motion for postconviction relief for failure to meet his burden of proof. The court 

adopted the test applied in State v. Lee 3 for analysis of an 

ineffective assistance of counsel claim and held that “[w]hen 

a defendant has pled guilty and alleges a constitutional violation in his [motion for] postconviction relief, and the court 

determines that an evidentiary hearing for a constitutional 

2 Id.

3 State v. Lee, 290 Neb. 601, 861 N.W.2d 393 (2015).
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claim is necessitated by the facts, the court will apply a ‘butfor’ analysis to determine the merits of the claim.” In limiting the issue to whether but for the intentional fabrication of 

evidence Henk would have rejected the plea offer, the court 

found that there was “ample evidence that [he] would have 

accepted the plea offer, regardless of the blood evidence from 

the dumpster.” Therefore, it concluded that Henk suffered no 

actual prejudice. The court applied the same analysis to find 

that Henk’s other claims were without merit.

Henk now appeals.

ASSIGNMENTS OF ERROR

Henk assigns, restated, that the district court erred in denying his amended motion for postconviction relief when (1) 

his constitutional rights were violated by an investigator falsifying evidence, (2) the prosecution knowingly or recklessly 

disregarded the falsified evidence, and (3) his trial counsel was ineffective in advising him to take the proffered 

plea agreement.

The State cross-appeals and assigns that the district court 

erred in granting Henk’s motion for leave to file an amended 

motion for postconviction relief.

STANDARD OF REVIEW

[1] The construction of a mandate issued by an appellate 

court presents a question of law, on which an appellate court is 

obligated to reach a conclusion independent of the determination reached by the court below.4

[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.5 An appellate court upholds 

the trial court’s findings unless they are clearly erroneous.6

4 State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).

5 State v. Glass, 298 Neb. 598, 905 N.W.2d 265 (2018).

6 Id.
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In contrast, an appellate court independently resolves questions of law.7

ANALYSIS

Jurisdi

[3] Because postconviction proceedings are civil in nature,8

some principles of jurisdiction derived from civil cases may be 

applicable to proceedings under the Nebraska Postconviction 

Act.9 We turn to the State’s jurisdictional argument.

The State argues that granting Henk’s motion for leave to 

file an amended motion for postconviction relief and holding a 

hearing on the additional claim were outside the scope of the 

mandate from this court and, thus, outside the district court’s 

authority. We agree. But for reasons discussed below, we also 

conclude that holding a hearing on the claim of prosecutorial 

misconduct was outside the scope of our mandate.

[4-7] A district court has an unqualified duty to follow the 

mandate issued by an appellate court and must enter judgment 

in conformity with the opinion and judgment of the appellate 

court.10 A lower court may not modify a judgment directed by 

an appellate court; nor may it engraft any provision on it or 

take any provision from it.11 No judgment or order different 

from, or in addition to, the appellate mandate can have any 

effect.12 Because a trial court is without power to affect rights 

and duties outside the scope of the remand from an appellate 

court, any order attempting to do so is entered without jurisdiction and is void.13

7 Id.

8 See State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).

9 Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).

10 State v. Payne, supra note 4.

11 Id.

12 Id.

13 Id.
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[8] In Henk’s original appeal from postconviction proceedings, we remanded the cause for an evidentiary hearing “to 

determine whether a constitutional violation occurred and, if 

so, whether Henk was prejudiced by such violation.”14 Our 

mandate directed the district court “to enter judgment in conformity with the judgment and opinion of this court.” When an 

appellate court’s mandate makes its opinion a part thereof by 

reference, the lower court should examine the opinion with the 

mandate to determine the judgment to be entered or the action 

to be taken thereon.15

In our previous opinion, this court passed on only one 

issue—whether Henk was entitled to an evidentiary hearing 

on his claim that his due process rights were violated when 

Kofoed planted evidence and falsified official reports. Though 

Henk had initially also asserted a claim of prosecutorial misconduct, he affirmatively abandoned it on appeal and assigned 

error only to the court’s denial of an evidentiary hearing on his 

first claim. Relying on this sole assignment of error, we did 

not consider whether Henk was entitled to an evidentiary hearing on the prosecutorial misconduct claim.

[9,10] Since only one issue was passed upon by this court 

and referenced in our opinion, our mandate was limited to 

require an evidentiary hearing on that claim alone. Issues that 

an appellant waives on appeal are not part of an appellate 

court’s mandate on remand.16 And in order to protect the integrity of the judicial process, a defendant cannot be allowed to 

assert new claims on remand even when he or she is entitled 

to an evidentiary hearing on other claims.17 Because the district 

court did not have the authority to affect rights and duties 

14 State v. Henk, supra note 1.

15 County of Sarpy v. City of Gretna, 276 Neb. 520, 755 N.W.2d 376 (2008).

16 Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).

17 See, e.g., State v. Payne, supra note 4; State v. Edwards, 294 Neb. 1, 880 

N.W.2d 642 (2016) (Stacy, J., concurring; Cassel, J., joins).
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outside the scope of the remand, we vacate and set aside the 

order granting leave to file an amended motion for postconviction relief and that portion of the district court’s order addressing the second and third claims.

We express no opinion as to whether there is a procedural 

bar on Henk’s third claim, because the record on appeal is 

insufficient to determine whether the claim for ineffective 

assistance of counsel could have been asserted at the time that 

he filed the prior motion.18 Assuming without deciding that he 

was not procedurally or time barred from doing so, we note 

that Henk could have filed a second motion for postconviction relief alleging this claim at the time of filing his request 

for leave to amend his first motion.19 However, Henk is judicially estopped from reasserting his second claim, because he 

affirmatively abandoned it in his first appeal.20

Having determined that only one issue is properly before us 

on appeal, we turn to consider the merits of that claim.

Meri

Henk argues that but for the fabricated evidence, he would 

not have agreed to the plea bargain. He suggests that “[h]ad 

the fraudulent conduct of the government official been revealed 

and disclosed it would have tainted the entire process.”21

However, the wrongness of Kofoed’s conduct is not the issue 

in this case. That matter has been settled, and Kofoed has been 

sentenced in consideration of his crimes.22 Here, Henk had the 

18 See State v. Jackson, 296 Neb. 31, 892 N.W.2d 67 (2017).

19 See, e.g., State v. Edwards, supra note 17.

20 See O’Connor v. Kearny Junction, 295 Neb. 981, 987, 893 N.W.2d 684, 

690 (2017) (“[w]hen a party has unequivocally asserted a position in a 

proceeding and a court accepts that position, judicial estoppel can bar that 

party’s inconsistent claim against the same or a different party in a later 

proceeding”).

21 Brief for appellant at 34.

22 See State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).
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burden to prove that there was a constitutional violation and 

that he was prejudiced by the constitutional violation.

[11] Normally, a voluntary guilty plea waives all defenses to 

a criminal charge, but a court will consider an allegation that 

the plea was the result of ineffective assistance of counsel.23

Though this claim was not framed as ineffective assistance 

of counsel in the first appeal, we nonetheless remanded for 

an evidentiary hearing. The sufficiency of this allegation thus 

became the law of the case, and, as neither party addresses it 

on this appeal, we assume without deciding that a constitutional violation occurred.

To establish prejudice in this context, Henk had to show 

that but for the fabricated evidence, he would not have 

accepted the plea bargain.24 Henk did not meet this burden 

of proof.

The record demonstrates that Henk’s main concern in 

pleading guilty was preventing the media from disclosing 

the evidence and his statements detailing the killing to law 

enforcement. In Henk’s own words, he said, “I was very 

interested in getting the statements that I made and confessions that I made not given to the public. So that was a major 

consideration.” During his interviews with law enforcement, 

he had gone into detail about killing Brendan and he had 

made clear even before he was charged that he intended to 

plead guilty. He also admitted to the killing at the hearing on 

his plea. And as the district court noted, Henk offered his own 

deposition into evidence, but it did not state that he would 

not have pled guilty were it not for the dumpster evidence. 

With this record, the district court was not clearly wrong in 

finding that there was ample evidence that Henk would have 

accepted the plea offer, regardless of the blood evidence from 

the dumpster.

23 See State v. Lee, supra note 3.

24 See id.
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Because Henk did not show that but for the fabricated 

evidence, he would not have accepted the plea bargain, he 

failed to establish that he was entitled to postconviction 

relief. Accordingly, the district court did not err in denying 

his motion.

CONCLUSION

We vacate and set aside the district court’s order granting 

leave to file an amended motion for postconviction relief and 

the portion of its order concerning those claims which were 

outside the scope of our mandate. Because Henk’s remaining 

claim is without merit, we affirm in all other respects the district court’s order denying postconviction relief.

 Affirmd in part and

vacated and set asi

Wright, J., not participatin