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- IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion)

S TATE V

. T ALIAFERRO

NOTICE : THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P . § 2

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S TATE OF N EBRASKA
, APPELLEE
,

V

.

D ONYAL R. T ALIAFERRO
, APPELLANT

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Filed April 13, 2021 . No. A

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- 474

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Appeal from the District Court for Douglas County: P ATRICIA A. L AMBERTY , Judge.

Affirmed

. Beau Finley, of Law Offices of Beau Finley, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman for appellee.

M OORE
, R IEDMANN , and B ISHOP , Judges.

M OORE , Judge.

INTRODUCTION

Donyal R. Taliaferro appeals from the order of the district court for Douglas County, denying his motion seeking postconviction relief following an evidentiary hearing. In that motion, Taliaferro alleged, among other things, that his counsel was ineffective for failing to provide him

with a witness ’ deposition prior to entering a guilty plea. We affirm.

STATEMENT OF FACTS

Conviction and Direct Appeal.

On April 19, 2013, Taliaferro pled no contest to a charge of robbery, a Class II felony. In exchange for the plea, the State dismissed a second count of robbery, as well as charges of- 2

- possession of a deadly weapon by a prohibited person and second offense carrying a concealed weapon on another docket. The factual basis for the robbery charge to w hich Taliaferro pled shows: Taliaferro and his coperpetrator robbed two individuals at gunpoint in their apartment, in the presence of their young child. During the robbery, the coperpetrator sexually assaulted one of the victims; however, Taliaferro was n ot involved in the assault. The factual basis further recited that police responded to a report of a home invasion and sexual assault and made contact with the victims, a man and his girlfriend. The man advised police that he and his girlfriend had been ex pecting a female acquaintance, Christie Hughes, to spend the evening with them, that they heard a knock, and that when the man went to the door, he observed that she was the person knocking. However, when he opened the door, two male suspects armed with wh at appeared to be handguns forced their way into the apartment. The factual basis proceeded with details of the men ’ s actions while in the apartment, and then indicated that shortly after the men left, a warrant was issued for Hughes ’ arrest for conspiracy to commit robbery. Hughes was arrested, represented by counsel, waived her

Miranda rights, and gave a statement advising that the individuals who forced their way

into the victims ’ apartment were her acquaintances, one being Taliaferro. The factual basis also indicated that Hughes ‘ has given a deposition to that effect. ’

State v. Taliaferro , No. A

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- 098, 2019 WL 1528407 at *1 (Neb. App. Apr. 9, 2019) (selected for posting to court website). The district court accepted Taliaferro ’ s plea, found him guilty, and subsequently sentenced him to 30 to 50 years ’ imprisonment. Taliaferro, represented by his trial counsel, filed a direct appeal, asserting that his sentence was excessive, and this court summarily affirmed his conviction and sentence. See State v. Taliaferro , 21 Neb. App. xxxv (No. A

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- 576, Oct. 22, 2013).

Postconviction Motion and First Postconviction Appeal.

On September 19, 2014, Taliaferro filed a pro se postconviction motion. His asserted

claims included a claim that his trial counsel refused to provide him Hughes ’ deposition, which he argued would have changed his willingness to enter a plea as opposed to going to trial. The district

court denied Taliaferro ’ s motion without an evidentiary hearing, and Taliaferro appealed. In a memorandum opin ion, this court determined that an evidentiary hearing was necessary to

determine whether Taliaferro ’ s allegations with respect to the failure to provide the deposition prior to entry of his plea had merit. Accordingly, we reversed and remanded for an evid entiary hearing on that single claim. See State v. Taliaferro , No. A

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- 098, 2019 WL 1528407 (Neb. App. Apr. 9, 2019) (selected for posting to court website).

Evidentiary Hearing and Present Postconviction Appeal.

An evidentiary hearing was held before th e district court on May 4, 2020 on the issue of

whether Taliaferro ’ s trial counsel was ineffective for failing to provide Taliaferro a copy of Hughes ’ deposition prior to entry of his plea. The court received into evidence copies of the depositions of Taliaferro and his trial counsel (both taken after the resolution of Taliaferro ’ s first postconviction appeal) and the deposition of Hughes (taken in 2013 prior to the entry of

Taliaferro ’ s plea of no contest).- 3

- In her deposition, Hughes testified that on the evening of the robbery she encountered Ronald Perry (Taliaferro ’ s coperpetrator) and asked him to give her a ride to the victims ’ residence

so she cou ld retrieve her purse, which had been left in the female victim ’ s vehicle on an earlier occasion. Perry drove Hughes to the victims ’ apartment, stopping his vehicle in front of the apartment complex. Perry waited in the vehicle while Hughes went inside, wh ere she observed four or five people (other than the victims) “ manufacturing ” or “ pilling up ” ecstasy at the kitchen table. Hughes obtained her purse from the male victim and spoke with the female victim about potentially spending the night at the apartmen t. Hughes then left the apartment and returned to Perry ’ s vehicle. During their conversation after she reentered the vehicle, Hughes mentioned the ecstasy in the apartment to Perry. After stopping by another location, where Hughes hoped to

retrieve some cl othing, Perry received a phone call from Taliaferro, after which he drove them to

Taliaferro ’ s residence. Hughes had known Taliaferro for several months, and she had a sexual relationship with him. After Taliaferro got into Perry ’ s vehicle, Hughes asked P erry to take her back to the

victims ’ apartment. During the drive, Hughes informed Perry and Taliaferro of her intent to spend the night at the victims ’ apartment. She also mentioned that “ they ’ re . . . pilling up some X and shit, ” “ [t]hey should probably make some money, ” and the female victim might be able to help Hughes return to Arkansas where she had lived previously. According to Hughes, Perry and

Taliaferro talked about “ hitting a lick at a Wendy ’ s ” during the drive (which meant “ getting over

on some one ” and could include a robbery). However, they did not discuss, and she did not participate in any discussions about, robbing the victims. Hughes testified that she did not see either Perry or Taliaferro with a weapon in the vehicle or previously that da y. She was also asked if she saw either of them with masks or bandanas in the vehicle, and she responded, “ They were in the vehicle. They have always been in the vehicles [sic]. It ’ s not the first time I was in the

vehicle. ” When asked to explain further w hat she saw, she testified that “ [Perry] always kept this

black kind of round hat ” and that “ they always kept red bandanas in the [vehicle]. ” Hughes indicated that she had ridden in the vehicle approximately four or five times between February and May 2012

. Hughes indicated that the male victim did not like her to bring anyone to the apartment, that he was upset when she was there previously that evening because Perry “ had pulled up, ” and that he instructed her not to be dropped off in front of the apartme nt when she returned. Accordingly, Hughes had Perry drop her off “ a bit ” to the west of the apartment complex the second time. She estimated that approximately 45 minutes elapsed between when she and Perry left the apartment the first time and when she ret urned the second time. After Hughes got out of the vehicle, Perry drove away, and she walked the rest of the way to the apartment. She explained what happened next as follows: So when I go into the main entrance and I go to go up the stairs, I hear the doo r open behind me. So I turn around, and it was [Perry] in his mask and hat, and then I ’ m assuming with Taliaferro behind him. Taliaferro had on a mask; I didn ’ t see his face. I didn ’ t even

-- when I turned around, it was just in a split second, and then [P erry] grabbed me by my hair and he said that, ‘ Everything would just be cool. It will be okay. Just go and knock on the door. ’- 4

- Hughes indicated that Perry forced her up the stairs and that after she knocked on the door, it was opened by the male victim. A ccording to Hughes, the masked men then rushed past her into the apartment, knocking her down to her knees. After that, Hughes got up and “ took off running ” away from the apartment. Hughes was questioned further about the second masked man, testifying tha t the man behind Perry was wearing “ a Freddy Krueger mask ” and holding a silver “ revolver. ” According to Hughes, she had seen Taliaferro with that same silver gun several times prior to the day of the robbery, indicating that Taliaferro always had the gun with him although she had not seen it in the vehicle prior to arriving at the apartment the second time. She had also seen Perry with a gun previously, testifying that his gun was black, but she indicated that she did not see Perry with a gun on the day of the robbery. Hughes was unable to recall exactly what clothes the second man was wearing, but she testified that she recognized him. When asked if the man ’ s outfit matched the outfit that Taliaferro was wearing in the vehicle, Hughes stated: Yeah, I recognized them. I mean, I knew when

-- I don ’ t know how to explain. When I turned around, I m ean, I knew it, I recognized him. You know, I can ’ t sit here and tell you he had on a red shirt and blue jeans, like I can ’ t recall, but I ’ m

-- I ’ m knowing, you know. . . .

. . . . At the time, whenever I go

-- I go into the building and I turn around an d I look at them, I mean, I ’ ve been around them for months and I ’ m acknowledging that it is them, but, I mean, I can ’ t tell you exactly what he had on today.

Finally, Hughes testified that she did not see the vehicle driven by Perry following her when she walked to the apartment, did not see Perry and Taliaferro walking behind her, and did not see the vehicle parked outside at any point. Hughes acknowledged changing her story during her interview with police in November 2012 after the robbery, initially t elling police that she did not know who the two men were. She also acknowledged initially telling police that she took a “ jitney ” cab to the apartment. In his deposition, Taliaferro ’ s attorney testified that he visited Taliaferro in jail on April 4,

2013. Because this meeting occurred after Hughes was deposed on March 27 but prior to when the attorney received the transcribed deposition on April 12, he was unable to read or discuss

“ verbatim passages ” from the deposition with Taliaferro during their meetin g. The attorney testified, however, that he “ would have gone over the sum and substance ” of Hughes ’ deposition testimony with Taliaferro and would have specifically discussed why he believed that Hughes ’ deposition testimony amounted to an identification o f Taliaferro as one of the perpetrators of the robbery. He indicated that he would have explained to Taliaferro during their meeting why he thought Hughes would not be a good defense witness. According to the attorney, the things he

would have discussed wi th Taliaferro in that regard included what Hughes was doing earlier on the evening in question, the fact that she was at the victims ’ residence previously and had witnessed

“ the cutting up of Ecstasy, ” that she had had “ some sort of beef or disagreement ” w ith the individuals at that residence, that she was dropped off initially by Perry, and that she then left with Perry to pick up Taliaferro.- 5

- The attorney expressed his opinion that Hughes was very familiar with Taliaferro because of their prior sexual rel ationship. According to the attorney, he would have told Taliaferro that Hughes believed that the second man was Taliaferro based upon the fact that he was holding the silver revolver that she had seen Taliaferro with on prior occasions and that “ he was we aring the same clothing that she had seen [Taliaferro] in in the vehicle just minutes before, and matched his description. ” The attorney agreed that Hughes was unable to state specifically in her deposition what clothing Taliaferro was wearing on the eveni ng in question. He testified, however, that she

“ did seem to state that, at least in [the attorney ’ s] understanding of her testimony, that what that [second] individual was wearing matched what . . . Taliaferro was wearing in the [vehicle]. ” The
attorney e xplained that he understood Hughes ’ testimony that she recognized the second man, in response to the attorney ’ s question about whether the man ’ s outfit matched what Taliaferro had been wearing “ to mean that the clothing description generally matched, even though she couldn ’ t testify during the deposition about the exact clothing he was wearing that night. ” According to the attorney, Taliaferro was not surprised by anything the attorney told him about Hughes ’ deposition testimony during the April 4, 2013

, m eeting. The attorney did not recall Taliaferro ever asking for a copy of Hughes ’ deposition during the meeting and did not recall that having a copy was “ a huge issue ” for Taliaferro at the time. The attorney acknowledged that he did not provide a copy of Hughes ’ written deposition to Taliaferro given that he did not receive it until April 12 and they were in the process of setting a plea hearing due to Taliaferro ’ s des ire to enter a plea. The attorney testified that Taliaferro never provided him with any information that

would have established Taliaferro ’ s innocence or conflicted with Hughes ’ deposition testimony and nothing that would have led him to believe that they should have gone to trial. He testified that after having reviewed Hughes ’ deposition in light of Taliaferro ’ s postconviction claims, there was nothing in the deposition that he felt was inconsistent with his recollection of the summary he provided to Tali aferro prior to the plea hearing. After the attorney and Taliaferro discussed Hughes ’ deposition testimony during their April 4, 2013

, meeting, they discussed plea and trial options. The attorney testified that Taliaferro was interested in a plea, particu larly in light of the fact that he had a separate charge on another docket and that there was a possibility of the charges being amended in this case to add a use of a firearm count or other counts on an aiding and abetting theory. The attorney was asked about his recollection of any conversations with Taliaferro during the period between when he received a transcribed copy of Hughes ’ deposition and the plea hearing. The attorney did not recall any specific communications during that period, but he

testifi ed that he presumably would have talked to Taliaferro during that period based upon the fact that they talked fairly regularly. The attorney did not believe that he would have had a specific conversation during that time with Taliaferro about particular se ctions of the transcribed deposition because the transcription reflected what he had already communicated to Taliaferro. According to Taliaferro ’ s deposition testimony, his trial attorney summarized Hughes ’ deposition testimony for him prior to entry of h is plea by stating that Hughes “ said the same thing that she said in the police reports that [Taliaferro] was the perpetrator of the crime. ” His

“ take

- away ” from his attorney ’ s characterization of Hughes ’ deposition testimony was that it was

consistent wit h her prior statements made to law enforcement. He indicated that his attorney did not provide him with any specific details of Hughes ’ deposition testimony. Taliaferro verified that- 6

- he did not have either a copy of the deposition or the police reports to review at that time. He testified that the only discussion he had with his attorney about the deposition was an in

- person meeting prior to the plea hearing. According to Taliaferro, although he did have phone conversations with his attorney between the tim e Hughes ’ deposition was taken and the plea hearing, they did not discuss the contents of Hughes ’ deposition during any phone conversations. Taliaferro reviewed a copy of Hughes ’ deposition in September 2013, following his sentencing. He testified that af ter doing so, he felt that Hughes ’ testimony was “ insufficient ” and

that she was not “ credible. ” Taliaferro also testified that he would not have entered a plea had he been given a copy of Hughes ’ deposition testimony prior to the plea hearing, again stati ng that he

felt “ her testimony wasn ’ t credible and her identifications were equivocal of anybody, let alone [Taliaferro]. ” He affirmed that if he had been given a copy of Hughes ’ deposition, he would not have entered into a plea agreement, even considering the fact that certain charges against him were dropped and other charges were not filed. On June 4, 2020, the district court entered an order denying Taliaferro ’ s claim for postconviction relief. The court reviewed the evidence before it, noting that the result hinged on Hughes ’ deposition and whether the characterization of the deposition by Taliaferro ’ s trial counsel, specifically relating to Hughes ’ identification of Taliaferro, was accurate. The court found that

Taliaferro ’ s trial counsel was not defi cient in his summarization of Hughes ’ deposition testimony with respect to her identification of Taliaferro, stating that “ [w]hen you compare what trial counsel relayed to [Taliaferro] prior to his plea compared to the deposition of Hughes, it reflects tha t Hughes would identify [Taliaferro] at trial. ” The court concluded that Taliaferro ’ s allegation that the deposition does not reflect an identification of him was unfounded, stating that “ [a]lthough counsel did not provide the actual deposition to [Taliafe rro] prior to the plea, his performance did equal that of a lawyer with ordinary training and skill in criminal law when he summarized the critical parts of the deposition. ” Finally, the court found that Taliaferro failed to prove prejudice

“ in light of the plea agreement and [Taliaferro ’ s] testimony regarding prejudice. ” Specifically, the court found that Taliaferro did not offer any legitimate evidence relating to prejudice, aside from his claim that he would have insisted on going to trial “ if he knew Hughes could not identify him, ”
which the court stated “ is not accurate. ” Taliaferro then perfected the present appeal to this court.

ASSIGNMENT OF ERROR

Taliaferro asserts that the district court erred by denying his request for postconviction

relief.

STANDARD OF REVIEW

Appellate review of a claim of ineffective assistance of counsel is a mixed question of law

and fact. State v. Combs , 308 Neb. 587, 955 N.W.2d 322 (2021). When reviewing a claim of ineffective assistance of counsel, an appellate court r eviews the factual findings of the lower court

for clear error. Id. With regard to the questions of counsel ’ s performance or prejudice to the defendant as part of the two

- pronged test articulated in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations independently of the lower court ’ s decision. State v. Combs, supra . In an evidentiary hearing for- 7

- postconviction relief, the postconviction trial judge, as the trier of fact, res olves conflicts in evidence and questions of fact, including witness credibility and the weight to be given a witness ’ testimony. State v. Russell , 308 Neb. 499, 954 N.W.2d 920 (2021).

ANALYSIS

Taliaferro asserts that the district court erred by denying h is request for postconviction relief. He argues that Hughes ’ identification of him during her deposition was equivocal and any finding by the court that she recognized him as being the second robber is erroneous. Taliaferro argues that the failure of his t rial attorney “ to provide verbatim accounts of the Hughes deposition, or at least to provide a summarization of said testimony that reflected the equivocal nature of the identification of [Taliaferro], ” constituted a deficient performance. Brief for appell ant at 15. He also argues that he was prejudiced by his attorney ’ s deficient performance because had he “ been advised of Hughes ’ s exact words or been able to read her sworn statement prior to his plea of no

contest, ” he would have rejected the State ’ s plea offer and would have proceeded to trial. Id. at 16. Postconviction relief is a very narrow category of relief, available only to remedy prejudicial constitutional violations that render the judgment void or voidable. State v. Combs,

supra. To establish a right to postconviction relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with 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. State v. Combs, supra

. Next, the defendant must show that counsel ’ s deficient performance prejudiced the defense

in his or her case

. Id. 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. State v. Russell, supra . A reasonable probability is a probability suffic ient to undermine

confidence in the outcome. Id. When a conviction is based upon a guilty plea, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty. State v. Privett , 303 Neb. 404, 929 N.W.2d 505 (2019). The two prongs of the test for ineffective assistance of counsel may be addressed in either order,

and the ent ire ineffectiveness analysis should be viewed with a strong presumption that counsel ’ s actions were reasonable. State v. Russell, supra

. Taliaferro has not shown that his trial counsel ’ s performance was deficient. The district

court found trial counsel ac curately summarized Hughes ’ deposition testimony for Taliaferro and

that Taliaferro ’ s allegation that the deposition did not reflect an identification of him was unfounded. We agree. The attorney ’ s deposition taken for the evidentiary hearing shows that he explained to Taliaferro that Hughes would not be a good defense witness given her identification of Taliaferro as the man with the gun involved in the robbery, her familiarity with Taliaferro due to their sexual relationship, and her contact with him in t he vehicle driven by Perry shortly before robbery. While Hughes ’ deposition shows that she was unable to describe the clothing worn by Taliaferro, she was unequivocal in stating that he was wearing the same clothing as when he was in the vehicle shortly be fore the incident. The court ’ s factual finding that Hughes recognized

Taliaferro ’ s clothing is not clearly erroneous. It is clear from a review of Hughes ’ deposition that- 8

- she recognized Taliaferro as the same person that had just been in the vehicle with h er and that she recognized the silver gun as Taliaferro ’ s gun that she had seen on a number of previous occasions. We do not read Hughes ’ inability to describe Taliaferro ’ s clothing or the fact that she did not see

his face and “ assumed ” he was Taliaferro as an equivocal identification. The court clearly reviewed her testimony as a whole and found her identification credible based on her intimate familiarity with Taliaferro, and her recent contact with him in the vehicle. Taliaferro ’ s trial attorney

appropr iately and adequately summarized Hughes ’ deposition testimony prior to the plea hearing, and Taliaferro has not established deficient performance. Likewise, Taliaferro did not establish prejudice from his trial counsel ’ s failure to provide him with a copy of Hughes ’ deposition prior to entry of his plea. In a claim for ineffective assistance of counsel, the likelihood of the defense ’ s success should be considered with other factors such as the likely penalties the defendant would face if convicted at trial , the relative benefit of the plea bargain, and the strength of the State ’ s case. State v. Beehn , 303 Neb. 172, 927 N.W.2d 793 (2019). At an evidentiary hearing, self

- serving declarations that the claimant would have gone to trial will not be enough; he mu st present objective evidence showing a reasonable probability that he would have insisted on going to trial. State v. Haynes , 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved on other grounds, State v. Allen , 301 Neb. 560, 919 N.W.2d 500 (2018). Taliaferro agreed to plead to one count of robbery in exchange for the State dismissing the second count of robbery charged in this case along with the charges in a separate docket (possession of a deadly weapon by a prohibited person and second offense carrying a c oncealed weapon). In his deposition, Taliaferro acknowledged the possibility that had he proceeded to trial in the current case, the State could have added two additional use of a weapon charges and a felon in possession charge. Clearly, he received a subs tantial benefit from the plea bargain in terms of a significant reduction in possible penalties. And, he has not demonstrated the likelihood of success based on any challenge to Hughes ’ identification of him as one of the perpetrators of the robbery. Altho ugh Hughes did not see Taliaferro ’ s face because he was wearing a mask, she identified Taliaferro as the second robber and the gun held by this man as Taliaferro ’ s gun. She was quite familiar both with Taliaferro and his silver gun. Taliaferro has not show n a reasonable probability that he would have rejected the State ’ s generous plea offer and risked facing hundreds of years in prison but for

his trial counsel ’ s failure to provide him with a copy of Hughes ’ deposition prior to the plea hearing.

CONCLUSION

The district court did not err in denying Taliaferro ’ s motion for postconviction relief.

A FFIRMED

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