Nebraska Advance Sheets

18 290 NEBRASKA REPORTS

State of Nebraska, appellee, v. 

Terry J. Sellers, appellant.

___ N.W.2d ___

Filed February 6, 2015. No. S-13-1049.

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: Constitutional Law: Proof. An evidentiary hearing on a motion 

for postconviction relief must be granted when the motion contains factual allegations which, if proved, constitute an infringement of the movant’s rights under 

the Nebraska or federal Constitution. However, if the motion alleges only conclusions of fact or law, or the records and files in the case affirmatively show that 

the movant is entitled to no relief, no evidentiary hearing is required.

3. Appeal and Error. An appellate court does not consider errors which are argued 

but not assigned.

4. Effectiveness of Counsel. A pro se party is held to the same standards as one 

who is represented by counsel.

5. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. To establish a right to postconviction relief because of counsel’s ineffective assistance, 

the defendant has the burden, under 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. To 

show prejudice, the defendant must demonstrate a reasonable probability that but 

for counsel’s deficient performance, the result of the proceeding would have been 

different. A court may address the two prongs of this test, deficient performance 

and prejudice, in either order.

6. Postconviction: Appeal and Error. A motion for postconviction relief cannot 

be used to secure review of issues which were or could have been litigated on 

direct appeal.

7. Postconviction: Effectiveness of Counsel: Appeal and Error. A claim of ineffective assistance of appellate counsel which could not have been raised on direct 

appeal may be raised on postconviction review.

8. Effectiveness of Counsel: Appeal and Error. When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin by determining 

whether appellate counsel failed to bring a claim on appeal that actually prejudiced the defendant. That is, courts begin by assessing the strength of the claim 

appellate counsel failed to raise.

9. ____: ____. Counsel’s failure to raise an issue on appeal could be ineffective 

assistance only if there is a reasonable probability that inclusion of the issue 

would have changed the result of the appeal.
Nebraska Advance Sheets

STATE v. SELLERS 19

Cite as 290 Neb. 18

10. ____: ____. When a case presents layered ineffectiveness claims, an appellate 

court determines the prejudice prong of appellate counsel’s performance by 

focusing on 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 suffered no prejudice when appellate counsel failed to bring an ineffective assistance of trial counsel claim.

11. Postconviction: Effectiveness of Counsel: Proof. A petitioner’s postconviction 

claims that his or her trial counsel was ineffective in failing to investigate possible defenses are too speculative to warrant relief if the petitioner fails to allege 

what exculpatory evidence that the investigation would have procured and how it 

would have affected the outcome of the case.

12. Postconviction: Appeal and Error. In a postconviction motion, an appellate 

court will not consider as an assignment of error a claim that was not presented 

to the district court.

Appeal from the District Court for Douglas County: Peter

C. Bataillon, Judge. Affirmed.

Terry J. Sellers, pro se.

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

appellee.

Heavican, C.J., Connolly, Stephan, McCormack, MillerLerman, and Cassel, JJ.

Cassel, J.

I. INTRODUCTION

This appeal follows the denial, without an evidentiary hearing, of Terry J. Sellers’ motion for postconviction relief. With 

one exception, our analysis breaks no new ground. Sellers 

asserted a claim that the separation of the jury without his 

consent created a rebuttable presumption of prejudice which 

entitled him to an evidentiary hearing. But we conclude that 

this type of presumed prejudice is not the kind of prejudice 

necessary to establish a claim of ineffective assistance of counsel. We affirm.

II. BACKGROUND

Sellers was convicted by a jury of two counts of first degree 

murder, one count of attempted first degree murder, and three 

counts of use of a deadly weapon to commit a felony. Sellers 

was represented by counsel at trial and was provided with 
Nebraska Advance Sheets

20 290 NEBRASKA REPORTS

different counsel on direct appeal, where we affirmed his convictions and sentences.1

 The facts surrounding Sellers’ convictions are contained in State v. Sellers2

 and are not repeated 

herein, except as otherwise indicated.

Over the course of 4 days in late February 2005, Sellers 

and Taiana Matheny engaged in a scheme whereby Matheny 

would lure men to secluded locations so that she and Sellers 

could rob and murder them. Sellers and Matheny successfully 

robbed and shot to death two men and robbed and unsuccessfully attempted to murder another. Sellers was sentenced to 

life imprisonment for each of the murder convictions, 40 to 

50 years’ imprisonment for the attempted murder conviction, 

and varying terms of imprisonment for the use of a deadly 

weapon convictions.

In April 2011, Sellers moved for postconviction relief. His 

motion raised seven principal claims:

• His appellate counsel was ineffective in failing to raise, on

direct appeal, the failure of his trial counsel to conduct a reasonable pretrial investigation.

• His appellate counsel was ineffective in failing to raise,

on direct appeal, the failure of his trial counsel to assert 

Miranda3 violations.

• His appellate counsel was ineffective in failing to raise, on

direct appeal, the failure of his trial counsel to assert a violation of his speedy trial right.

• His appellate counsel was ineffective in arguing significantly

weaker issues on direct appeal.

• His trial counsel was ineffective in failing to object to jury

instructions Nos. 22 and 24.

• His trial counsel was ineffective in failing to make a Batson4

challenge during the selection of the jury.

1 See State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).

2 Id.

3 See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966).

4 See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 

(1986).
Nebraska Advance Sheets

STATE v. SELLERS 21

Cite as 290 Neb. 18

• Because of his actual innocence, his convictions were a fundamental miscarriage of justice.

In addition to the above seven claims, Sellers made numerous allegations concerning the performance of his trial counsel. 

Among these allegations, Sellers asserted that his trial counsel 

was ineffective in:

• failing to call important witnesses;

• failing to investigate the “cross section” jury requirement;

• failing to suppress illegally obtained statements and

confessions;

• failing to object to evidence that limited Sellers’ ability to

present a defense;

• failing to argue and present mitigating evidence, including

expert testimony, at sentencing;

• failing to object to the State’s presentence investigation

report; and

• failing to present “the Constitutionality of the statute” and

specific aggravating circumstances at sentencing.

However, these allegations were not clearly stated as independent claims of ineffective assistance of trial counsel, or as the 

basis for appellate counsel’s ineffectiveness in failing to raise 

them on direct appeal. As explained in more detail below, 

because Sellers had been provided with new counsel for his 

direct appeal, the district court decided to treat each allegation 

as a claim of ineffective assistance of appellate counsel.

Sellers supplemented his motion with a subsequent filing in 

December 2011, raising two additional claims. First, Sellers 

alleged that his appellate counsel was ineffective in failing 

to raise, on direct appeal, the failure of his trial counsel to 

object to the separation of the jury without Sellers’ consent. 

And Sellers further alleged that his trial counsel was ineffective in failing to inform Sellers that such consent was 

required. Second, Sellers asserted that the trial court should 

have instructed the jury on the premeditated murder theory of 

first degree murder and its lesser-included offenses.

The district court denied postconviction relief without an 

evidentiary hearing. The court concluded that all of Sellers’ 

claims of ineffective assistance of counsel failed to include a 

single fact or allegation establishing prejudice. Rather, Sellers’ 
Nebraska Advance Sheets

22 290 NEBRASKA REPORTS

allegations consisted solely of conclusory statements to the 

effect that the outcome of his trial and direct appeal would 

have been different but for the ineffectiveness of his counsel. 

And he failed to identify any specific witness, statement, violation, or evidence forming the basis for his claims.

As to Sellers’ claims regarding instructions Nos. 22 and 24, 

the district court observed that this court analyzed the instructions in Sellers’ direct appeal. In his direct appeal, Sellers 

alleged both that the trial court erred in giving instructions 

Nos. 22 and 24, and that his trial counsel was ineffective in 

failing to object to them. We determined that the record was 

insufficient to address the performance of Sellers’ trial counsel. But we concluded that the instructions were not plainly 

erroneous. Based upon this conclusion, the district court determined that Sellers’ trial counsel was not ineffective in failing 

to object.

The district court similarly found no basis for Sellers’ claim 

of actual innocence or a fundamental miscarriage of justice. 

The court observed that Sellers failed to identify any new 

exculpatory evidence or any constitutional deprivation in violation of the Nebraska or federal Constitution. And the court also 

found no merit to the claims raised in Sellers’ supplemental 

motion. Sellers’ claim regarding the failure of the trial court 

to instruct the jury on the premeditated murder theory of first 

degree murder was procedurally barred. And Sellers failed to 

allege any prejudice resulting from his trial counsel’s failure to 

object to the jury’s separation.

Sellers filed a timely notice of appeal from the denial of 

postconviction relief.

III. ASSIGNMENTS OF ERROR

Sellers assigns, restated and reordered, that the district court 

erred in denying postconviction relief, because his appellate 

counsel was ineffective in failing to raise, on direct appeal, 

(1) trial counsel’s failure to object to the separation of the 

jury without Sellers’ consent, and the corresponding failure to 

inform Sellers that such consent was required; (2) trial counsel’s failure to conduct a reasonable pretrial investigation; (3) 

trial counsel’s failure to object to instructions Nos. 22 and 
Nebraska Advance Sheets

STATE v. SELLERS 23

Cite as 290 Neb. 18

24; and (4) trial counsel’s failure to request that the jury be 

instructed on the premeditated murder theory of first degree 

murder and its lesser-included offenses.

IV. STANDARD OF REVIEW

[1,2] 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.5

 An evidentiary hearing on a motion for postconviction relief must be 

granted when the motion contains factual allegations which, if 

proved, constitute an infringement of the movant’s rights under 

the Nebraska or federal Constitution.6 However, if the motion 

alleges only conclusions of fact or law, or the records and files 

in the case affirmatively show that the movant is entitled to no 

relief, no evidentiary hearing is required.7

V. ANALYSIS

[3,4] We first dispose of a preliminary issue. The arguments 

made in Sellers’ brief are not limited to his assignments of 

error, but extend to many of the claims raised in his postconviction motion. Among others, he makes assertions regarding 

actual innocence, the composition of the jury, and alleged violations of his Miranda rights and speedy trial right. However, 

an appellate court does not consider errors which are argued 

but not assigned.8 We acknowledge that Sellers filed his brief 

pro se. But a pro se party is held to the same standards as one 

who is represented by counsel.9 We restrict our analysis to 

Sellers’ assignments of error.

[5] We next review governing principles of law regarding 

a claim of ineffective assistance of counsel. To establish a 

5 State v. Armendariz, 289 Neb. 896, ___ N.W.2d ___ (2015).

6 State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).

7 Id.

8 State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).

9 See State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994).
Nebraska Advance Sheets

24 290 NEBRASKA REPORTS

right to postconviction relief because of counsel’s ineffective 

assistance, the defendant has the burden, under Strickland v. 

Washington,

10 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.11 Next, 

the defendant must show that counsel’s deficient performance 

prejudiced the defense in his or her case.12 To show prejudice, 

the defendant must demonstrate a reasonable probability that 

but for counsel’s deficient performance, the result of the proceeding would have been different.13 A court may address the 

two prongs of this test, deficient performance and prejudice, in 

either order.14

[6] However, a motion for postconviction relief cannot be 

used to secure review of issues which were or could have 

been litigated on direct appeal.15 As noted above, Sellers 

was represented by new counsel in his direct appeal. He was 

therefore required to assert, on direct appeal, any alleged 

deficiencies in trial counsel’s performance known to him or 

apparent from the record in order to preserve them for postconviction review.16

Sellers raised only one claim of ineffective assistance of trial 

counsel on direct appeal, relating to his trial counsel’s failure 

to object to instructions Nos. 22 and 24. But Sellers’ postconviction motion made numerous allegations concerning the 

performance of his trial counsel. Thus, the majority of Sellers’ 

claims of ineffective assistance of trial counsel were potentially 

barred from postconviction review. However, the ineffective 

assistance claims raised in Sellers’ motion were presented in 

a very confusing manner, making it difficult to distinguish 

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

(1984).

11 See Duncan, supra note 8.

12 Id.

13 Id.

14 Id.

15 See Hessler, supra note 6.

16 See State v. Thomas, 278 Neb. 248, 769 N.W.2d 357 (2009).
Nebraska Advance Sheets

STATE v. SELLERS 25

Cite as 290 Neb. 18

between claims of ineffective assistance of trial and appellate 

counsel. Consequently, the district court decided to treat each 

ineffective assistance claim as a claim of ineffective assistance 

of appellate counsel. We will do likewise.

[7-10] This postconviction proceeding was Sellers’ first 

opportunity to assert that his appellate counsel was ineffective. 

A claim of ineffective assistance of appellate counsel which 

could not have been raised on direct appeal may be raised on 

postconviction review.17 When analyzing a claim of ineffective 

assistance of appellate counsel, courts usually begin by determining whether appellate counsel failed to bring a claim on 

appeal that actually prejudiced the defendant.18 That is, courts 

begin by assessing the strength of the claim appellate counsel 

failed to raise.19 Counsel’s failure to raise an issue on appeal 

could be ineffective assistance only if there is a reasonable 

probability that inclusion of the issue would have changed the 

result of the appeal.20 When a case presents layered ineffectiveness claims, we determine the prejudice prong of appellate 

counsel’s performance by focusing on whether trial counsel 

was ineffective under the Strickland test.21 If trial counsel was 

not ineffective, then the defendant suffered no prejudice when 

appellate counsel failed to bring an ineffective assistance of 

trial counsel claim.22

We now turn to Sellers’ specific allegations of ineffective 

assistance of appellate counsel. And we begin with the primary 

issue presented by this appeal—whether the separation of the 

jury without Sellers’ consent created a presumption of prejudice which entitled him to an evidentiary hearing.

1. Separation of Jury

Sellers assigns that his appellate counsel was ineffective in 

failing to raise, on direct appeal, the failure of his trial counsel 

17 State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).

18 State v. Davlin, 277 Neb. 972, 766 N.W.2d 370 (2009).

19 Id.

20 Id.

21 See id.

22 Id.
Nebraska Advance Sheets

26 290 NEBRASKA REPORTS

to object to the jury’s separation without Sellers’ consent. He 

further alleges that his trial counsel was ineffective in failing to 

advise him that such consent was required.

Nebraska law provides that in a criminal case, “[w]hen a

case is finally submitted to the jury, they must be kept together 

in some convenient place, under the charge of an officer, until 

they agree upon a verdict or are discharged by the court.”23

Although this provision can be waived by agreement of the 

defendant and the State, it is otherwise mandatory.24

Sellers asserts that he was entitled to an evidentiary hearing on this claim, because the separation of the jury without 

his consent created a rebuttable presumption of prejudice. He 

cites to our holding in State v. Robbins25 that in the absence of 

an express agreement or consent by the defendant, the failure 

to comply with § 29-2022 creates a rebuttable presumption of 

prejudice and places the burden upon the prosecution to show 

that no injury resulted.

We first note that in State v. Collins,

26 we overruled the holding of Robbins that a defendant’s express agreement or consent 

is required to waive the right under § 29-2022 to sequester the 

jury. But our ruling in Collins was prospective only.27 Sellers 

was tried before Collins was decided, and the case at bar is 

governed by the rule from Robbins.

Sellers misconstrues the applicability of the presumption 

of prejudice of Robbins to this postconviction proceeding. In 

applying Robbins to a petitioner’s claim of ineffective assistance of counsel in a habeas proceeding, the U.S. Court of 

Appeals for the Eighth Circuit observed that the presumption 

of prejudice created by a violation of § 29-2022 is distinct 

from Strickland prejudice.28 A violation of the statute will not, 

23 Neb. Rev. Stat. § 29-2022 (Reissue 2008). See State v. Barranco, 278 Neb. 

165, 769 N.W.2d 343 (2009).

24 Barranco, supra note 23.

25 State v. Robbins, 205 Neb. 226, 287 N.W.2d 55 (1980), overruled, State v. 

Collins, 281 Neb. 927, 799 N.W.2d 693 (2011). 

26 Collins, supra note 25.

27 See State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013).

28 See Kitt v. Clarke, 931 F.2d 1246 (8th Cir. 1991).
Nebraska Advance Sheets

STATE v. SELLERS 27

Cite as 290 Neb. 18

by itself, justify reversal of a conviction.29 Thus, § 29-2022 

prejudice does not alter the prejudice analysis required by 

Strickland.

30 Under Strickland, a defendant has the burden to 

show that he would have prevailed on appeal because the State 

could not have overcome the rebuttable presumption of prejudice created by the violation of § 29-2022.31

We agree with the conclusion reached by the Eighth Circuit 

and adopt its reasoning. A defendant requesting postconviction relief must establish the basis for such relief.32 In order to 

establish the prejudice prong of the Strickland test, Sellers was 

required to allege sufficient facts to show that he would have 

prevailed on appeal because the State could not have overcome the rebuttable presumption of prejudice created by the 

violation of § 29-2022. But Sellers alleged only that his trial 

counsel did not inform him of the requirement for his consent. 

He failed to allege any facts as to the State’s ability to overcome the presumption. Consequently, Sellers’ allegations were 

insufficient to show that his appellate counsel was ineffective 

in failing to raise the issue on direct appeal. We find no error 

in the denial of postconviction relief on this claim without an 

evidentiary hearing.

2. Reasonable Pretrial Investigation

Sellers asserts that his appellate counsel was ineffective 

in failing to raise, on direct appeal, the failure of his trial 

counsel to conduct a reasonable pretrial investigation. In his 

postconviction motion, he identified several activities that his 

trial counsel failed to undertake. These activities included filing a motion for discovery, hiring an independent investigator, 

reviewing the crime scene, consulting with a ballistics expert, 

and identifying and interviewing potential witnesses.

However, Sellers failed to allege how undertaking the above 

activities would have produced a different outcome at trial. 

More specifically, he did not identify any exculpatory evidence

29 See id.

30 See id.

31 See id.

32 See Hessler, supra note 6.
Nebraska Advance Sheets

28 290 NEBRASKA REPORTS

that the activities would have procured. As the district court 

observed, his allegations consisted solely of conclusory statements, such as, “‘[I]f trial and/or appellate counsel would have 

investigated and hired an investigator to fully investigate the 

case at bar, there surely would have been a different outcome 

in [Sellers’] trial.’”

[11] Such conclusory allegations are insufficient to establish 

the prejudice prong of the Strickland test. We have previously observed that a petitioner’s postconviction claims that 

his or her trial counsel was ineffective in failing to investigate 

possible defenses are too speculative to warrant relief if the 

petitioner fails to allege what exculpatory evidence that the 

investigation would have procured and how it would have 

affected the outcome of the case.33 And in assessing postconviction claims that trial counsel was ineffective in failing to 

call a particular witness, we have upheld dismissal without an 

evidentiary hearing where the motion did not include specific 

allegations regarding the testimony which the witness would 

have given if called.34

There is nothing in Sellers’ motion that would suggest the 

nature of the exculpatory evidence which his trial counsel 

would have obtained through the above activities. And his 

motion neither identified a single witness that was not called to 

testify nor described the testimony that the witness would have 

given. As such, Sellers’ allegations were insufficient to show 

that his appellate counsel was ineffective in failing to raise 

this issue on direct appeal. “If defendant does not choose to

specify what [he] is claiming, a trial court need not conduct a 

discovery hearing to determine if anywhere in this wide world 

there is some evidence favorable to defendant’s position.”35

33 See State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).

34 See, State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010); Davlin, 

supra note 18.

35 State v. Threet, 231 Neb. 809, 813, 438 N.W.2d 746, 749 (1989), 

disapproved on other grounds, State v. Harris, 267 Neb. 771, 677 N.W.2d 

147 (2004). 
Nebraska Advance Sheets

STATE v. SELLERS 29

Cite as 290 Neb. 18

The district court correctly concluded that this claim did not 

entitle Sellers to postconviction relief.

3. Instructions Nos. 22 and 24

Sellers assigns that his appellate counsel was ineffective in 

failing to raise, on direct appeal, the failure of his trial counsel to object to jury instructions Nos. 22 and 24. However, 

as noted above, Sellers’ appellate counsel raised and argued 

this issue on direct appeal, but we determined that the 

record was insufficient to resolve the issue of trial counsel’s 

performance.

Thus, it appears that Sellers assigns that his appellate counsel was ineffective in failing to take an action which his appellate counsel did in fact undertake. But in his postconviction 

motion, Sellers correctly identified this claim as one of ineffective assistance of trial counsel. Given the district court’s decision to treat each ineffective assistance claim raised in Sellers’ 

motion as a claim of ineffective assistance of appellate counsel, 

we overlook the wording of the assigned error and proceed to 

the merits.

(a) Instruction No. 22

Instruction No. 22 provided:

There has been testimony from Taiana Matheny, a 

claimed accomplice of the Defendant. You should closely 

examine her testimony for any possible motive she might 

have to testify falsely. You should hesitate to convict the 

Defendant if you decide that Taiana Matheny testified 

falsely about an important matter and that there is no 

other evidence to support her testimony.

In his postconviction motion, Sellers alleged that instruction No. 22 created an improper presumption that Matheny 

was his accomplice. Thus, he claimed that the instruction 

negated his defense that Matheny was the principal architect 

of the crimes. Finally, he asserted that the instruction was 

erroneous because it omitted a sentence from the pattern jury 

instruction that “[the jury] should convict the defendant only
Nebraska Advance Sheets

30 290 NEBRASKA REPORTS

if the evidence satisfies [the jury] beyond a reasonable doubt 

of (his, her) guilt.”36

However, Sellers’ allegations were insufficient to establish 

a right to postconviction relief. The allegations in his postconviction motion were identical to the assertions we rejected in 

Sellers’ direct appeal. We concluded that no improper presumption was created by instruction No. 22, because the instruction 

“provide[d] in plain English that Matheny was a ‘claimed

accomplice’—nothing more, nothing less.”37 And although 

the instruction deviated from the pattern jury instruction, the 

instructions as a whole charged the jury that the State was 

required to prove each and every element of the offense 

charged beyond a reasonable doubt.

Sellers’ motion failed to establish any prejudice from his 

trial counsel’s failure to object to instruction No. 22. As we 

observed on direct appeal, instruction No. 22 was a cautionary 

instruction in Sellers’ favor regarding the weight to be given to 

Matheny’s testimony. We find no error in the denial of postconviction relief on this claim.

(b) Instruction No. 24

Instruction No. 24 provided: “Evidence of marijuana and

money located at [Jeremiah Brodie’s residence in] Omaha, 

Nebraska, was received only for the limited purpose of the 

credibility of DaWayne Kearney and for no other purpose. You 

may consider this evidence only for the limited purpose and 

for no other.”

DaWayne Kearney was one of Sellers’ victims—he was 

robbed, but escaped before he could be killed. After numerous 

unsuccessful attempts were made to serve Kearney with a subpoena to testify, Kearney was arrested at the home of Jeremiah 

Brodie. During the arrest and a subsequent search of Brodie’s 

residence, police officers found handguns, ammunition, marijuana, and cash. Kearney was not charged with any offense, 

because police did not believe there was any evidence against 

36 See NJI2d Crim. 5.6.

37 Sellers, supra note 1, 279 Neb. at 230, 777 N.W.2d at 788.
Nebraska Advance Sheets

STATE v. SELLERS 31

Cite as 290 Neb. 18

him. Another individual admitted that the handguns belonged 

to her, and there was no evidence that Kearney was in possession of the guns or the marijuana.

On direct appeal, Sellers alleged that instruction No. 24 

negated the inference that Kearney was a drug dealer. And this 

inference was consistent with Sellers’ testimony that he met 

with Kearney to buy marijuana, not to rob and kill him. But 

we concluded that the instruction did not foreclose Sellers’ 

ability to argue that Kearney was a drug dealer. Sellers was 

permitted to question Kearney about the drugs and money 

found at Brodie’s residence and any agreement Kearney had 

made with the State. The instruction did not prevent the 

jury from considering Sellers’ version of the confrontation 

with Kearney.

Sellers’ postconviction motion again made the same allegations that he made on direct appeal. And these allegations 

failed to establish any prejudice resulting from his trial counsel’s failure to object to the instruction. Instruction No. 24 did 

not inhibit Sellers from asserting a claim of self-defense, and 

the jury was given two instructions on that theory. We agree 

that Sellers failed to establish a right to postconviction relief 

on this claim.

4. Premeditated Murder

Theory Instruction

[12] Sellers assigns that his appellate counsel was ineffective in failing to raise, on direct appeal, the failure of his trial 

counsel to request an instruction on the premeditated murder 

theory of first degree murder and its lesser-included offenses. 

However, this claim was not presented to the district court. In 

his supplemental motion, Sellers alleged that the trial court 

erred in instructing the jury. He did not assert a claim of ineffective assistance of counsel. We therefore decline to review 

this assignment of error. In a postconviction motion, an appellate court will not consider as an assignment of error a claim 

that was not presented to the district court.38

38 State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).
Nebraska Advance Sheets

32 290 NEBRASKA REPORTS

VI. CONCLUSION

We find no merit to Sellers’ assigned errors. His assertions 

of ineffective assistance of trial and appellate counsel failed to 

establish any prejudice resulting from the alleged deficiencies 

of his counsel. And his claim of instructional error regarding 

the premeditated murder theory of first degree murder was not 

presented as a claim of ineffective assistance of counsel before 

the district court. We affirm the denial of postconviction relief 

without an evidentiary hearing.

Affirmed.

Wright, J., participating on briefs.

Abigail K. Despain, appellee, v. 

William E. Despain, appellant.

___ N.W.2d ___

Filed February 6, 2015. No. S-13-1133.

1. Judgments: Appeal and Error. An appellate court determines jurisdictional 

questions that do not involve a factual dispute as a matter of law.

2. New Trial: Appeal and Error. Regarding motions for new trial, an appellate court will uphold a trial court’s ruling on such a motion absent an abuse 

of discretion.

3. Divorce: Property Division: Appeal and Error. In actions for the dissolution 

of marriage, the division of property is a matter entrusted to the discretion of the 

trial judge, whose decision will be reviewed de novo on the record and will be 

affirmed in the absence of an abuse of discretion.

4. Judges: Words and Phrases. A judicial abuse of discretion exists when the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving 

a litigant of a substantial right and denying just results in matters submitted 

for disposition.

5. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for 

review, it is the duty of an appellate court to determine whether it has jurisdiction 

over the matter before it.

6. Jurisdiction: Time: Notice: Appeal and Error. To vest an appellate court with 

jurisdiction, a party must timely file a notice of appeal.

7. Statutes: Appeal and Error. Statutory language is to be given its plain and 

ordinary meaning, and interpretation will not be used to ascertain the meaning of 

statutory words which are plain, direct, and unambiguous.

8. Divorce: Property Division. Under Neb. Rev. Stat. § 42-365 (Reissue 2008), 

the equitable division of property is a three-step process. The first step is to classify the parties’ property as marital or nonmarital, setting aside the nonmarital