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VI. CONCLUSION

For the reasons discussed, we affirm McGuire’s convictions 

and sentences.

Affirmed

Heavican, C.J., and Cassel, J., not participati

State of Nebraska, appellee, v.

Todd S. Baker, appell

___ N.W.2d ___

Filed August 30, 2013. Nos. S-12-1180, S-12-1181.

1. Postconviction: Appeal and Error. In appeals from postconviction proceedings, 

an appellate court independently resolves questions of law.

2. Postconviction: Constitutional Law. A trial court’s ruling that the petitioner’s 

allegations are refuted by the record or are too conclusory to demonstrate a 

violation of the petitioner’s constitutional rights is not a finding of fact—it is a 

determination, as a matter of law, that the petitioner has failed to state a claim for 

postconviction relief.

3. 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.

4. Postconviction: Constitutional Law: Proof. In a motion for postconviction 

relief, the defendant must allege facts which, if proved, constitute a denial or 

violation of his or her rights under the U.S. or Nebraska Constitution, causing the 

judgment against the defendant to be void or voidable.

5. ____: ____: ____. A court must grant an evidentiary hearing to resolve the claims 

in a postconviction motion when the motion contains factual allegations which, if 

proved, constitute an infringement of the defendant’s rights under the Nebraska 

or federal Constitution.

6. Postconviction: Proof. If a postconviction motion alleges only conclusions of 

fact or law, or if the records and files in the case affirmatively show that the 

defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.

7. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance 

of counsel claim alleges a violation of the fundamental constitutional right to a 

fair trial.

8. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of 

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his 

or her counsel’s performance was deficient and that this deficient performance 
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STATE v. BAKER 525

Cite as 286 Neb. 524

actually prejudiced the defendant’s defense. An appellate court may address the 

two prongs of this test, deficient performance and prejudice, in either order.

9. Effectiveness of Counsel: Appeal and Error. In addressing the “prejudice” 

component of the test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984), an appellate court focuses on whether a trial counsel’s 

deficient performance renders the result of the trial unreliable or the proceeding 

fundamentally unfair.

10. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice under 

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

(1984), the petitioner must demonstrate a reasonable probability that but for his 

or her counsel’s deficient performance, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.

11. Effectiveness of Counsel: Mental Competency: Proof. In order to demonstrate 

prejudice from counsel’s failure to seek a competency hearing, the defendant 

must demonstrate that there is a reasonable probability that he or she was, in fact, 

incompetent and that the trial court would have found the defendant incompetent 

had a competency hearing been conducted.

Appeals from the District Court for Lancaster County: Joh

A. Colborn, Judge. Affirm

Todd S. Baker, pro se.

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

appellee.

Heavican, C.J., Wright, Connolly, Stephan, M

Miller-Lerman, and Cassel,

Miller-Lerman,

NATURE OF CASE

In each of these two cases, Todd S. Baker appeals the order 

of the district court for Lancaster County which denied his 

motion for postconviction relief without an evidentiary hearing. Baker, acting pro se, sought relief with respect to two 

separate convictions for first degree murder, for which he was 

serving consecutive life sentences. Because Baker failed to 

allege facts that show he was entitled to relief and the record 

refutes his claims, we affirm the denials of his motions.

STATEMENT OF FACTS

In 2006, Baker was found by a jury to be guilty of first 

degree murder; he was sentenced to life imprisonment. A 
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notice of appeal was filed, but Baker later withdrew the appeal. 

In 2007, Baker pled guilty to a separate charge of first degree 

murder; he was sentenced to serve a life sentence consecutive 

to the life sentence in his first conviction.

In case No. S-12-1180, Baker filed a pro se motion for postconviction relief with respect to his 2006 murder conviction. 

He claimed that he received ineffective assistance of counsel, 

in that counsel (1) failed to appeal the overruling of his plea 

in abatement, (2) allowed him to waive his right to a speedy 

trial, (3) failed to request a mental evaluation, and (4) allowed 

him to withdraw his appeal. He also generally claimed that 

counsel was ineffective with respect to a motion to recuse the 

trial judge. He further claimed that there was prosecutorial 

misconduct because the prosecution did not call to the court’s 

attention that he was mentally incompetent to stand trial. He 

finally claimed that the court erred when it failed to order a 

competency evaluation.

In case No. S-12-1180, the court sustained the State’s 

motion to deny an evidentiary hearing and dismissed Baker’s 

motion for postconviction relief. The court concluded with 

respect to Baker’s assertions of ineffective assistance of counsel that (1) with respect to the motion to recuse, Baker made 

a mere allegation of ineffective assistance without a showing 

that counsel’s performance was deficient or that Baker was 

prejudiced; (2) the overruling of a plea in abatement is not 

appealable and that therefore, the fact that counsel did not 

attempt to appeal the order was not deficient performance; 

and (3) the record showed the trial court thoroughly inquired 

into Baker’s decision to waive his speedy trial rights and that 

Baker made no showing that counsel’s performance was deficient or that he was prejudiced. With regard to Baker’s claims 

that counsel, the prosecution, and the trial court violated his 

rights by failing to deal with the issue of his competency, 

the postconviction court noted that Baker’s claim was simply 

that he was too medicated to be competent. The postconviction court noted that medication is often necessary to treat a 

defendant’s mental ailments and does not necessarily render 

the defendant incompetent. The postconviction court noted 
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that the trial court had ample opportunity to observe Baker 

over the course of the proceedings and that the record demonstrated Baker had the capacity to understand the nature and 

object of the proceedings against him and could make a rational defense.

In case No. S-12-1181, Baker filed a pro se motion for 

postconviction relief with respect to his 2007 murder conviction. He claimed that he received ineffective assistance of 

counsel, in that counsel (1) allowed his right to a speedy trial 

to be violated and (2) failed to request a mental evaluation. 

He further claimed that there was prosecutorial misconduct 

because the prosecution did not call to the court’s attention 

that Baker was mentally incompetent to stand trial. He finally 

claimed that the court erred when it failed to order a competency evaluation.

In case No. S-12-1181, the court sustained the State’s motion 

to deny an evidentiary hearing and dismissed Baker’s motion 

for postconviction relief. The court noted that there was no 

violation of Baker’s speedy trial rights, because the record 

showed that he was arraigned, pled guilty, and was sentenced 

all in one hearing. The court concluded, therefore, that there 

was no ineffective assistance of counsel with respect to speedy 

trial rights. With regard to Baker’s claims that counsel, the 

prosecution, and the trial court violated his rights by failing 

to deal with the issue of his competency, the postconviction 

court noted that, as in case No. S-12-1180, Baker’s claim 

was simply that he was too medicated to be competent. The 

postconviction court similarly noted that the record showed 

the trial court thoroughly questioned Baker before accepting 

his plea, that his answers were appropriate, and that there was 

nothing that should have caused counsel or the court to doubt 

Baker’s competence.

Baker appeals the denials of his motions for postconviction 

relief without evidentiary hearings in each of these two cases.

ASSIGNMENT OF ERROR

In each case, Baker claims, restated, that the district court 

erred when it denied his motion for postconviction relief without an evidentiary hearing.
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STANDARD OF REVIEW

[1-3] In appeals from postconviction proceedings, we independently resolve questions of law. State v. Edwards, 284 

Neb. 382, 821 N.W.2d 680 (2012). A trial court’s ruling that 

the petitioner’s allegations are refuted by the record or are 

too conclusory to demonstrate a violation of the petitioner’s 

constitutional rights is not a finding of fact—it is a determination, as a matter of law, that the petitioner has failed to state a 

claim for postconviction relief. Id. Thus, 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. State v. Watkins, 284 Neb. 742, 825 

N.W.2d 403 (2012); State v. Edwards, supra.

ANALYSIS

Baker claims in each appeal that the district court erred 

when it denied postconviction relief without conducting an 

evidentiary hearing. We find no merit to Baker’s assignment of 

error in either appeal.

[4] The Nebraska Postconviction Act, Neb. Rev. Stat. 

§ 29-3001 et seq. (Reissue 2008 & Cum. Supp. 2012), provides that postconviction relief is available to a prisoner in 

custody under sentence who seeks to be released on the ground 

that there was a denial or infringement of his constitutional 

rights such that the judgment was void or voidable. State v. 

Molina, 279 Neb. 405, 778 N.W.2d 713 (2010); State v. York, 

278 Neb. 306, 770 N.W.2d 614 (2009). Thus, in a motion for 

postconviction relief, the defendant must allege facts which, 

if proved, constitute a denial or violation of his or her rights 

under the U.S. or Nebraska Constitution, causing the judgment 

against the defendant to be void or voidable. State v. Gunther, 

278 Neb. 173, 768 N.W.2d 453 (2009); State v. Jim, 275 Neb. 

481, 747 N.W.2d 410 (2008).

[5,6] A court must grant an evidentiary hearing to resolve 

the claims in a postconviction motion when the motion 

contains factual allegations which, if proved, constitute an 

infringement of the defendant’s rights under the Nebraska or 
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federal Constitution. State v. Watkins, supra. If a postconviction motion alleges only conclusions of fact or law, or if 

the records and files in the case affirmatively show that the 

defendant is entitled to no relief, the court is not required to 

grant an evidentiary hearing. Id.

[7,8] A proper ineffective assistance of counsel claim alleges 

a violation of the fundamental constitutional right to a fair trial. 

See State v. Robinson, 285 Neb. 394, 827 N.W.2d 292 (2013). 

To prevail on a claim of ineffective assistance of counsel under 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 

L. Ed. 2d 674 (1984), the defendant must show that his or her 

counsel’s performance was deficient and that this deficient 

performance actually prejudiced the defendant’s defense. State 

v. Robinson, supra. An appellate court may address the two 

prongs of this test, deficient performance and prejudice, in 

either order. Id.

[9,10] In addressing the “prejudice” component of the 

Strickland test, an appellate court focuses on whether a trial 

counsel’s deficient performance renders the result of the trial 

unreliable or the proceeding fundamentally unfair. State v. 

Robinson, supra. To show prejudice under the prejudice component of the Strickland test, the petitioner must demonstrate a 

reasonable probability that but for his or her counsel’s deficient 

performance, the result of the proceeding would have been 

different. State v. Robinson, supra. A reasonable probability 

is a probability sufficient to undermine confidence in the outcome. Id.

We note that in case No. S-12-1180, a notice of appeal from 

the underlying conviction in 2006 was filed but the appeal 

was withdrawn. Baker alleged that his counsel was ineffective in allowing him to withdraw the appeal. We read this as 

a claim that counsel, as appellate counsel, provided ineffective 

assistance because, by allowing him to withdraw the appeal, 

counsel failed to raise issues of trial error on appeal. In case 

No. S-12-1181, there is no indication that Baker filed a direct 

appeal from his plea-based conviction in 2007. In his postconviction motion, however, he makes a general claim that he was 

denied effective assistance of counsel on direct appeal. Given 

the lack of clarity in his motion, for purposes of the present 
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analysis only, we will read this as a claim that appellate counsel was ineffective.

Given our interpretation of Baker’s motions, because 

Baker’s trial counsel was also his appellate counsel in each 

case, these postconviction proceedings are his first opportunity to assert claims that his trial counsel provided ineffective 

assistance. See State v. Edwards, 284 Neb. 382, 821 N.W.2d 

680 (2012). These claims are layered ineffectiveness claims—

i.e., a claim that his appellate counsel was ineffective for failing to raise claims of his trial counsel’s ineffective assistance. 

When a case presents layered claims of ineffective assistance 

of counsel, we determine whether the petitioner was prejudiced by his or her appellate counsel’s failure to raise issues 

related to his or her trial counsel’s performance. Id. See, also, 

State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011). If 

the trial counsel did not provide ineffective assistance, then 

the petitioner cannot show prejudice from the appellate counsel’s alleged ineffectiveness in failing to raise the issue on 

appeal. See id.

The bulk of Baker’s claims in both case No. S-12-1180 

and case No. S-12-1181 concerns his assertion that a hearing 

should have been held to determine whether he was competent 

to stand trial. He claims that counsel was ineffective for failing to request a hearing, that it was misconduct for prosecutors 

to fail to request a hearing, and that the trial court erred when 

it failed to order a hearing. Also, his claims that counsel was 

ineffective with respect to allowing him to waive a speedy 

trial and allowing him to withdraw his appeal in case No. 

S-12-1180 are based on his argument that he was not competent to make such decisions.

[11] We have stated that in order to demonstrate prejudice 

from counsel’s failure to seek a competency hearing, the 

defendant must demonstrate that there is a reasonable probability that he or she was, in fact, incompetent and that the 

trial court would have found the defendant incompetent had a 

competency hearing been conducted. See State v. Hessler, 282 

Neb. 935, 807 N.W.2d 504 (2011). No prejudice is evident in 

this case. Baker merely alleged that he was on various medications at the time of his trials and that such medication made 
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him incompetent. He listed various medications he was taking 

and listed the possible side effects of such medications, but he 

made no allegations of fact to the effect that he suffered particular side effects or other narrative to support his claim that 

such medications made him incompetent. As the district court 

noted, Baker’s claims of incompetence are contradicted by the 

record in each case, wherein the trial court observed Baker 

and had no reason to doubt his competence. The trial court 

questioned Baker regarding his competence and specifically 

addressed the effect of the medications on his competence. 

Because the allegations and the record do not show that Baker 

would have been found incompetent, he failed to show that 

counsel was ineffective for failure to request a hearing. For 

the same reason, his allegations surrounding prosecutor misconduct or trial court error with respect to competence are also 

without merit.

Baker made other claims of ineffective assistance of counsel 

in each case, including his claim in case No. S-12-1181 that 

counsel was ineffective with respect to speedy trial issues and 

his claims in case No. S-12-1180 that counsel was ineffective 

with respect to the motion to recuse and the plea in abatement. 

We conclude that the district court did not err when it rejected 

such claims without an evidentiary hearing. In each case, 

Baker’s allegations of ineffective assistance of trial counsel 

are conclusory, are refuted by the record, and are not pleaded 

in enough detail to warrant an evidentiary hearing. We therefore conclude that Baker did not allege sufficient facts which, 

if proved, would establish a reasonable probability that the 

outcome of his case would have been different but for his trial 

counsel’s alleged deficient performance.

As stated above, Baker’s trial counsel was also his appellate 

counsel, and therefore, we must determine whether Baker was 

prejudiced by his appellate counsel’s alleged failure to raise 

on appeal issues related to his trial counsel’s effectiveness at 

trial. Based on our conclusion that Baker’s trial counsel was 

not ineffective, we conclude that Baker cannot show prejudice 

from his appellate counsel’s alleged ineffectiveness in failing 

to raise these issues on direct appeal. See State v. Edwards, 284 

Neb. 382, 821 N.W.2d 680 (2012).
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CONCLUSION

Baker’s motions for postconviction relief in these two cases 

do not allege facts which constitute a denial of his constitutional rights, and, as to certain allegations, the record refutes 

his claims. Therefore, the district court did not err when it 

denied Baker’s motion for postconviction relief in each case 

without an evidentiary hearing.

Affirmed