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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. BROWN

Cite as 30 Neb. App. 657

State of Nebraska, appellee, v. 

David B. Brown, appellant.

___ N.W.2d ___

Filed February 15, 2022. No. A-21-097.

1. Pleadings: Judgments: Appeal and Error. A trial court’s decision 

to grant or deny a motion to reconsider is reviewed for an abuse of 

discretion.

2. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

3. Courts: Judgments: Time: Appeal and Error. A motion for reconsideration does not terminate the time for appeal and is considered nothing 

more than an invitation to the court to consider exercising its inherent 

power to vacate or modify its own judgment.

4. Negligence: Public Officers and Employees: Pleadings: Appeal and 

Error. The appropriate filing procedure when an appeal is lost due to 

official negligence is for the party seeking relief to file a motion in 

the lower court, seeking the ability to establish the basis for obtaining relief.

5. Postconviction: Constitutional Law: Effectiveness of Counsel. There 

is no constitutional guarantee of effective assistance of counsel in a 

postconviction action and therefore no claim for ineffective assistance 

of postconviction counsel.

Appeal from the District Court for Butler County: Christina 

M. Marroquin, Judge. Reversed and remanded.

Robert Wm. Chapin, Jr., for appellant.

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

Duffy for appellee.

Nebraska Supreme Court Online Library

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

02/15/2022 08:07 AM CST
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. BROWN

Cite as 30 Neb. App. 657

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

David B. Brown appeals the order of the district court for 

Butler County which dismissed his motion for reconsideration 

as untimely. We determine that his motion for reconsideration was not untimely, and therefore, we reverse, and remand 

for consideration on the merits.

BACKGROUND

Brown was convicted on February 2, 2018, of two counts 

of first degree sexual assault. On direct appeal, this court 

affirmed the convictions and sentences. See State v. Brown, 

No. A-18-599, 2019 WL 1492689 (Neb. App. Mar. 25, 2019) 

(selected for posting to court website). A mandate issued on 

May 1, 2019.

Brown filed a verified motion for postconviction relief on 

April 22, 2020, alleging ineffective assistance of trial counsel 

and appellate counsel, as well as actual innocence. At a hearing 

on the motion on May 26, the State moved orally to dismiss the 

motion, counsel was appointed for Brown, and the hearing was 

continued to June 23. At the subsequent hearing, counsel for 

the State and Brown presented arguments, and the matter was 

taken under advisement by the court. The district court issued 

an order on September 17 dismissing Brown’s motion for postconviction relief without an evidentiary hearing.

On January 19, 2021, Brown filed a “Verified Motion 

for Reconsideration, Motion to Vacate and Reinstate Order 

Denying Motion for Postconviction Relief.” On January 20, 

Brown’s postconviction counsel filed a motion for leave to 

withdraw as counsel because Brown alleged in his motion misconduct or ineffective assistance of counsel. The court granted 

the motion to withdraw. In addressing the motion for reconsideration, the court stated, “It is untimely filed and the Motion is 

here dismissed.” Brown timely appealed.
- 659 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. BROWN

Cite as 30 Neb. App. 657

ASSIGNMENTS OF ERROR

Brown assigns, restated, that (1) the court erred in dismissing the motion for reconsideration and (2) the attorney 

assigned to represent Brown in his postconviction motion was 

ineffective.

STANDARD OF REVIEW

[1,2] A trial court’s decision to grant or deny a motion to 

reconsider is reviewed for an abuse of discretion. County of 

Douglas v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 501, 

894 N.W.2d 308 (2017). An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable 

or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.

ANALYSIS

Dismissal of Motion for Reconsideration.

Brown’s motion contained two alternative requests: first, to 

reconsider his initial motion for postconviction relief, and second, in the alternative, to vacate and reinstate its order denying 

the initial motion so that Brown might appeal. The district court 

stated that it reviewed Brown’s “Motion for Reconsideration. 

It is untimely filed and the Motion is here dismissed.” The district court did not elaborate further on its reasoning.

Brown argues that the district court abused its discretion 

in denying the motion to reconsider in light of the delay in 

Brown’s receiving a copy of the initial order denying his postconviction motion. The State argues that the district court “correctly denied the motion for reconsideration because it could 

not legally vacate and reissue” the initial order to circumvent 

the legislatively created appellate deadline and because the 

district court had correctly denied the initial postconviction 

motion. Brief for appellee at 11.

[3] Without addressing the merits of Brown’s motion for 

reconsideration, we find that the district court abused its discretion in dismissing the motion for reconsideration as untimely. 

A motion for reconsideration does not terminate the time for 
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. BROWN

Cite as 30 Neb. App. 657

appeal and is considered nothing more than an invitation to 

the court to consider exercising its inherent power to vacate or 

modify its own judgment. State v. Lotter, 301 Neb. 125, 917 

N.W.2d 850 (2018).

[4] In State v. Parnell, 301 Neb. 774, 919 N.W.2d 900 

(2018), the defendant filed a motion for postconviction relief 

that was dismissed without an evidentiary hearing on August 

17, 2017. On March 16, 2018, the defendant filed a motion 

to vacate or modify the judgment, contending that he was not 

informed of the denial due to official misconduct and was thus 

unable to file a timely appeal. The district court denied the 

motion to vacate without a hearing. The Nebraska Supreme 

Court reversed the district court’s order denying the motion to 

vacate. It articulated that the appropriate filing procedure when 

an appeal is lost due to official negligence is for the party seeking relief to file a motion in the lower court, seeking the ability 

to establish the basis for obtaining relief. Id.

Likewise, in State v. Jones, 307 Neb. 809, 950 N.W.2d 

625 (2020), the defendant filed a motion for postconviction 

relief that was denied without a hearing. He attempted to 

appeal the denial, but his request to proceed in forma pauperis 

and poverty affidavit were untimely filed. Consequently, his 

appeal was dismissed. Id. He then filed a motion to vacate or 

modify in the district court in which he sought reinstatement 

of his appeal. He claimed that in order to meet the appellate 

deadline, he gave his paperwork to the proper prison authorities to mail but they failed to timely act. Id. The district court 

denied the motion without a hearing. The Supreme Court 

reversed, citing State v. Parnell, supra, and the procedure set 

forth therein.

Although Brown asserts that the delay in receiving notice 

of the court’s dismissal of his postconviction motion was due 

to his counsel’s negligence as opposed to negligence of the 

court or prison officials, State v. Parnell, supra, and State v. 

Jones, supra, instruct that Brown’s motion to reconsider was 

not untimely and should not have been dismissed as such. 
- 661 -

Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. BROWN

Cite as 30 Neb. App. 657

See, also, State v. Manning, 18 Neb. App. 545, 789 N.W.2d 

54 (2010) (addressing merits of appeal of denial of motion to 

vacate order denying postconviction relief based on allegedly 

newly discovered evidence). We do not address the merits of 

Brown’s motion for reconsideration; rather, we find only that 

it was an abuse of discretion to deny it as untimely. Therefore, 

we reverse, and remand for the district court to review the 

motion for reconsideration on the merits.

Ineffective Assistance of Postconviction Counsel.

[5] Brown argues that his postconviction counsel was ineffective because he did not timely notify him of the final order 

dismissing his postconviction motion. There is no constitutional guarantee of effective assistance of counsel in a postconviction action and therefore no claim for ineffective assistance 

of postconviction counsel. State v. Hessler, 288 Neb. 670, 

850 N.W.2d 777 (2014). Brown has no claim for ineffective 

assistance of postconviction counsel, and his assignment is 

without merit.

CONCLUSION

For the foregoing reasons, we reverse the dismissal of 

Brown’s motion for reconsideration as untimely and remand the 

matter to the district court to review the motion on the merits.

Reversed and remanded.