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STATE v. AVINA-MURILLO

Cite as 301 Neb. 185

State of Nebraska, appellee, v. Veronica

P. Avina-Murillo, appellant.

___ N.W.2d ___

Filed September 28, 2018. No. S-17-1302.

1. Motions for New Trial: Time. Where there is no factual dispute, the 

timeliness of a motion for new trial presents a question of law.

2. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is 

a question of law.

3. ____: ____. In reviewing claims of ineffective assistance of counsel on 

direct appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and 

whether the defendant was or was not prejudiced by counsel’s alleged 

deficient performance.

4. Motions for New Trial: Verdicts: Time. According to Neb. Rev. 

Stat. § 29-2103(3) (Reissue 2016), a motion for new trial based on the 

grounds set forth in Neb. Rev. Stat. § 29-2101(1) through (4) or (7) 

(Reissue 2016) shall be filed within 10 days after the verdict was rendered unless such filing is unavoidably prevented.

5. Trial: Juries: Verdicts. A jury’s action cannot become a verdict until 

it is finally rendered in open court and received and accepted by the 

trial judge.

6. Motions for New Trial: Verdicts: Time. Unless one of the two statutory exceptions applies, a motion for new trial filed more than 10 days 

after the verdict has no effect.

7. Motions for New Trial: Words and Phrases. “[U]navoidably prevented” as used in Neb. Rev. Stat. § 29-2103 (Reissue 2016) refers 

to circumstances beyond the control of the party filing the motion for 

new trial.

8. Motions for New Trial: Time: Appeal and Error. A motion for new 

trial not filed in conformity with the statutory requirements as to time 

may not be considered by an appellate court on review.

Nebraska Supreme Court Online Library

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

10/19/2018 01:11 AM CDT
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Cite as 301 Neb. 185

9. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial 

counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective 

performance which is known to the defendant or is apparent from the 

record. Otherwise, the issue will be procedurally barred.

10. Effectiveness of Counsel: Records: Appeal and Error. The fact that 

an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. The determining factor is 

whether the record is sufficient to adequately review the question.

11. Effectiveness of Counsel: Conflict of Interest. The right to effective 

assistance of counsel entitles the accused to his or her counsel’s undivided loyalties, free from conflicting interests.

12. Effectiveness of Counsel: Proof. Generally, 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.

13. ____: ____. To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer 

with ordinary training and skill in criminal law.

14. Effectiveness of Counsel: Proof: Words and Phrases. 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 reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

15. Effectiveness of Counsel: Conflict of Interest: Presumptions. 

Prejudice is presumed only if the defendant demonstrates that counsel 

actively represented conflicting interests and that an actual conflict of 

interest adversely affected his lawyer’s performance.

16. Effectiveness of Counsel: Conflict of Interest: Presumptions: Case 

Disapproved. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018); 

State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015); and State 

v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012), are disapproved

to the extent they can be read to always require a presumption of 

prejudice where counsel’s conflict of interest does not involve multiple representation.

17. Trial: Effectiveness of Counsel: Presumptions. In determining whether 

trial counsel’s performance was deficient, there is a strong presumption 

that counsel acted reasonably.

Appeal from the District Court for Douglas County: Duane

C. Dougherty, Judge. Affirmed.
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Cite as 301 Neb. 185

Christopher J. Roth, of Forney Roth, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

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

Freudenberg, JJ.

Cassel, J.

INTRODUCTION

After being convicted by a jury and sentenced in a criminal 

case, Veronica P. Avina-Murillo brings this direct appeal. We 

cannot review the denial of her motion for new trial, because 

the motion was not timely. We review her ineffective assistance claims, stemming from her initial trial counsel’s allegedly unethical conduct—which she characterizes as a conflict of interest. A central question is whether the Strickland 

v. Washington1 standard applies or whether prejudice should 

be presumed. On these facts, we conclude that Strickland

applies and that the record is insufficient to resolve her claims. 

We affirm.

BACKGROUND

The State charged Avina-Murillo with negligent child abuse 

resulting in serious bodily injury based on events occurring 

on April 2, 2015. On that day, J.P.’s mother took 6-month-old 

J.P. to Avina-Murillo’s house to be watched. While there, J.P. 

began to act abnormally. A doctor later diagnosed J.P. with 

abusive head trauma.

The district court conducted a jury trial. Prior to the introduction of evidence, the court sustained the State’s motion to 

sequester all of the witnesses.

During opening statements, Avina-Murillo’s counsel advised 

the jury that it would hear from J.P.’s parents. Counsel outlined 

the parents’ testimonies:

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

(1984).
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[The parents] are going to testify that their child was not 

fine the morning that she was dropped off. The parents 

are going to tell you that they took their child to the hospital multiple times and were given different answers by 

different individuals at the hospitals weeks prior to April 

2nd[, 2015].

. . . .

The parents will testify that . . . Avina[-Murillo] was 

not with the child seconds to minutes before. . . . The 

parents will testify that their child was not with . . . 

Avina[-Murillo] during that time.

The parents will testify contrary to what you just heard, 

actually. The parents will testify that when mother came 

to pick child up, child was sleeping like any other time. 

Mom — Mother spoke to [Avina-Murillo] for some time, 

10, 15 minutes, nothing, child’s sleeping. Mom then 

drives to house. . . . [S]he will tell you 10 to 15 minutes 

more driving. We’re not at 30 minutes.

She will then testify that when she walked into the 

house, Dad wasn’t there. Dad came in shortly thereafter, 

but some more time passed, ten minutes. They then talked 

about their day and about whatever else. They’ll both tell 

you this. More time passes.

Approximately — approximately, 45 minutes to an 

hour later, the baby wakes up. They notice baby is not as 

they would expect at that point. They go to — well, to 

see their — wasn’t the ER, but it was to see a physician 

before they were transferred. The evidence you will hear 

is not like the preview you were just given.

According to the evidence, at approximately 8 a.m. on 

April 2, 2015, J.P.’s mother took J.P. to Avina-Murillo’s house. 

J.P., who is Avina-Murillo’s niece, appeared to be fine. But at 

approximately 10 a.m., Avina-Murillo noticed that J.P. looked 

listless, that “her eyes did not look normal,” and that “[s]he 

was touching her right ear quite a bit.” A detective testified that 

Avina-Murillo told him J.P. “became lethargic, moaning, and 
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. . . the eyes would move in opposite directions.” According 

to the detective, Avina-Murillo indicated to him that she knew 

there was something wrong with J.P. at that point in time. But 

she did not believe it was anything serious or grave.

According to Avina-Murillo, J.P. had exhibited similar 

behavior “[d]ays before.” In mid-March 2015, J.P. experienced 

vomiting and diarrhea. J.P.’s parents took her to the emergency 

room two or three times, and J.P. was diagnosed with a viral 

illness. But during a followup visit 2 to 3 days prior to April 2, 

J.P. looked well and was no longer vomiting.

Avina-Murillo called J.P.’s mother to let her know that J.P. 

“was not acting right.” She told J.P.’s mother that she believed 

J.P. was sick like J.P. had been earlier and that J.P. might have 

“gotten some air in her ear.” In response, J.P.’s mother told 

Avina-Murillo to administer Tylenol for ear pain and to put 

cotton in J.P.’s ear with a little bit of “vapor rub.” After AvinaMurillo did so, J.P. drank her bottle and fell asleep. After noon, 

J.P.’s mother arrived to take J.P. home.

At approximately 4:50 p.m., J.P.’s parents took J.P. to a doctor. At that time, J.P. was lethargic, crying, and inconsolable. 

She had symptoms indicating increased pressure in the brain. 

Intracranial pressure can cause brain damage and is a potentially life-threatening injury. A CT scan revealed a subdural 

hematoma, i.e., bleeding on the inside of the brain. The CT 

scan showed both newer and older bleeding. Newer bleeding is 

bleeding typically within the past 24 hours, while older bleeding is generally 48 to 72 hours old or older.

A child abuse pediatrician believed that J.P. most likely suffered a rotational or shaking injury. A different doctor testified 

that the injury revealed on the CT scan would have required significant force and that symptoms would have appeared “fairly 

shortly after onset of this type of bleeding.” The defense’s 

expert opined that it was not possible to determine the specific 

time that an acute subdural hematoma occurred.

During the trial, the district court made a record after an 

issue arose. The court recounted that there was a no contact 
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order prohibiting Avina-Murillo from communicating with J.P., 

that there was an order of sequestration as to any witnesses, 

and that the State had listed J.P.’s parents as witnesses. The 

prosecutor then stated that over the lunch hour, Avina-Murillo 

and her counsel were observed having lunch together with J.P. 

and J.P.’s parents.

Avina-Murillo’s counsel offered a different version of 

events. He explained that at some point while he, his assistant, Avina-Murillo, and Avina-Murillo’s husband were having lunch, J.P.’s parents entered the restaurant. According to 

counsel, “Nothing between them was discussed.” But counsel 

stated that after talking to Avina-Murillo and in order “to 

essentially keep this clean,” the defense would not call either 

parent to testify.

The court and Avina-Murillo’s counsel then engaged in a 

colloquy regarding the voluntariness of the decision not to call 

the parents as witnesses. Avina-Murillo’s counsel informed the 

court that he had spoken to Avina-Murillo “before Your Honor 

came out” and that the decision not to call J.P.’s parents as witnesses was Avina-Murillo’s free and voluntary act.

Later, while the jury was deliberating, the court held another 

hearing at the State’s request regarding the lunch incident. 

Video acquired from the restaurant contradicted what AvinaMurillo’s counsel reported to the court. The video showed 

defense counsel, his assistant, Avina-Murillo, J.P., and J.P.’s 

parents all surrounding the same table, having lunch together. 

The State requested that sanctions be ordered against defense 

counsel for encouraging the violation of the no contact order 

and for giving the court false information.

On Friday, September 29, 2017, the jury returned a guilty 

verdict, and we describe in more detail below the procedures employed by the court. On that date, the court signed a 

“Judgment on Conviction,” but this document did not impose 

any sentence. It was not filed until October 3.

On Wednesday, October 11, 2017, Avina-Murillo moved 

for a new trial. The motion alleged that irregularities in the 
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proceedings occurred and that Avina-Murillo was prevented 

from having a fair trial.

In November 2017, the court imposed a sanction against 

Avina-Murillo’s counsel for intentionally misleading the court 

as to events occurring during the trial. As a sanction, the court 

filed a formal complaint with the Nebraska Supreme Court’s 

Counsel for Discipline.

On December 14, 2017, Avina-Murillo, through new counsel, 

filed an amended motion for new trial. She alleged an irregularity in the proceedings, including the lunch incident and the 

decision not to call J.P.’s parents as witnesses. Avina-Murillo 

claimed that her right to due process was violated when she 

was unable to present an adequate defense to the jury.

The court held a hearing on the motion and received several affidavits. Avina-Murillo stated in an affidavit that after 

her counsel had a meeting with the judge and the prosecutor, 

her counsel told her that J.P.’s parents were “no longer able 

to testify.” She stated that when, back in the courtroom, the 

court asked her counsel about J.P.’s parents’ testifying, it was 

her understanding J.P.’s parents were unable to testify and she 

was unaware she had the choice to call them as witnesses. She 

stated that she would have called the parents as witnesses if 

she had known she had the option, because she believed their 

testimonies would have helped her case.

The court also received affidavits from J.P.’s parents that 

were nearly identical in substance. J.P.’s parents stated that 

Avina-Murillo’s counsel told them that there would be “problems or a big scandal” if they took the witness stand and 

that “the best thing to do would be to not take the witness 

stand.” They stated that their testimonies would have been 

consistent with prior statements to police and the prosecutor. They would have testified that J.P. was vomiting and 

very sleepy in the 7 days before April 2, 2015. They “would 

have testified about the different statements from the doctors 

regarding the cause of [J.P.’s] conditions and medical issues, 

which includes the fact that two doctors had told [them] 
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that [J.P.’s] issues were not caused by a shaking injury.” 

They would have testified that due to J.P.’s blood condition, 

any shaking of her would have caused bruising where the 

shaker grabbed her. Further, J.P.’s parents would have testified 

that they did not believe Avina-Murillo was responsible for 

J.P.’s condition.

The court denied Avina-Murillo’s motion for new trial. The 

court stated that it did not see any exculpatory evidence in the 

affidavits and that information in the affidavits “appear[ed] 

to be evidence that was presented . . . at the trial.” The 

court then proceeded to sentencing and imposed a sentence 

of probation.

Through the same counsel who filed the amended motion 

for new trial, Avina-Murillo timely appealed. We granted her 

petition to bypass review by the Nebraska Court of Appeals.

ASSIGNMENTS OF ERROR

Avina-Murillo assigns that for several reasons, the district 

court erred in denying her motion for new trial. She also asserts 

that her trial counsel was ineffective when he (1) decided not 

to call J.P.’s parents as witnesses, (2) failed to move for a 

mistrial, (3) failed to withdraw due to an ethical conflict of 

interest, and (4) failed to consult with Avina-Murillo about 

those decisions.

STANDARD OF REVIEW

[1] We have often said that in a criminal case, a motion for 

new trial is addressed to the discretion of the trial court, and 

that unless an abuse of discretion is shown, the trial court’s 

determination will not be disturbed.2 But although we have 

not said so before in so many words, where there is no factual 

dispute, the timeliness of a motion for new trial presents a 

question of law.3

2 See, e.g., State v. Hairston, 298 Neb. 251, 904 N.W.2d 1 (2017).

3 See, State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993); Parker v. 

State, 164 Neb. 614, 83 N.W.2d 347 (1957).
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[2,3] Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law.4

 In 

reviewing claims of ineffective assistance of counsel on direct 

appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively 

determine whether counsel did or did not provide effective 

assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance.5

ANALYSIS

Motion for New Trial

Twelve days after the jury returned its verdict, Avina-Murillo 

filed a motion for new trial. Some 2 months after that, she filed 

an amended motion. As the State correctly argues, neither 

motion was timely.

[4] Statutes set forth the grounds and time limits for filing 

a motion for new trial.6 Avina-Murillo’s original motion for 

new trial alleged grounds under § 29-2101(1) and (4), and her 

amended motion set forth grounds under § 29-2101(1) and (7). 

According to § 29-2103(3), a motion for new trial based on 

the grounds set forth in § 29-2101(1) through (4) or (7) “shall 

be filed within ten days after the verdict was rendered unless 

such filing is unavoidably prevented . . . .” This court has long 

held that § 29-2103 by its terms is mandatory.7

[5] The time limitation for filing a motion for new trial runs 

from rendition of the verdict. A statute provides that when 

the jury has agreed upon its verdict, the jury must be “conducted into court” and may be polled at the request of either 

the prosecuting attorney or the defendant before the verdict is 

accepted.8 A jury’s action cannot become a verdict until it is 

4 State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).

5 Id.

6 See Neb. Rev. Stat. §§ 29-2101 and 29-2103 (Reissue 2016).

7 State v. Thompson, supra note 3.

8 Neb. Rev. Stat. § 29-2024 (Reissue 2016).
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finally rendered in open court and received and accepted by 

the trial judge.9

With that understanding, we summarize what happened. The 

record shows that on September 29, 2017, the jury returned 

to the courtroom and responded “[y]es” to the court’s question whether it had reached a verdict. The court clerk read the 

verdict in open court. After reading the verdict, the clerk asked 

if it was the jury’s “unanimous, final verdict.” The foreperson responded, “Yes.” The court then asked if there was any 

request to poll the jury. There was not. The court sent the jury 

out and stated that it “will accept the verdict of the jury and 

find and enter a judgment of guilty against [Avina-Murillo] in 

this matter.” It added, “The Court will order [Avina-Murillo] to 

appear for a sentencing” and specified the date and time. The 

court announced the revocation of Avina-Murillo’s bond and 

placed her in the sheriff’s custody.

As this summary demonstrates, the verdict was finally rendered in open court and received and accepted by the trial 

judge on September 29, 2017. On appeal, Avina-Murillo makes 

two arguments to avoid this conclusion.

First, she argues that the verdict was not accepted until the 

filing of the “Judgment on Conviction” on October 3, 2017. 

But despite the court’s use of the word “will,” it is clear that 

the jury rendered its verdict and the court accepted the verdict 

in open court on September 29. On that date, the court also 

completed and signed the “Judgment on Conviction.”

Avina-Murillo’s reliance on the filing date is misplaced. 

Technically, the document was not a “judgment.” We have 

held that the judgment in a criminal case is the sentence.10 The 

document here did not impose a sentence. It merely memorialized what had already transpired. The delay in filing of the 

document did not affect the legal significance of the events 

that already had occurred in open court.

9 State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017).

10 See id.
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[6] Consequently, Avina-Murillo did not file her initial 

motion within 10 days after the verdict was rendered. Unless 

one of the two statutory exceptions applies, a motion for new 

trial filed more than 10 days after the verdict has no effect.11

Second, Avina-Murillo attempts to invoke one of the exceptions. She urges us to find that she was “unavoidably delayed 

in her filing”12 under § 29-2103(3). It does not appear from 

the record that the district court considered the timeliness of 

her motion. We note that neither motion claimed that AvinaMurillo was “unavoidably prevented” from filing it within 10 

days after the verdict was rendered.13

[7] “[U]navoidably prevented” as used in § 29-2103 refers 

to circumstances beyond the control of the party filing the 

motion for new trial.14 The law requires diligence on the part 

of clients and their attorneys, and the mere neglect of either 

will not entitle a party to relief on that ground.15

Nothing in the record would allow us to find that AvinaMurillo was unavoidably prevented from filing her motion on 

time. Thus, her attempt to invoke the statutory exception fails.

[8] Because both of her arguments fail, we cannot address 

the district court’s ruling on the motion. A motion for new 

trial not filed in conformity with the statutory requirements 

as to time may not be considered by an appellate court on 

review.16 Even where a trial court has considered the merits 

of an untimely motion for new trial, we have stated that such 

a motion was not properly before us.17 Because Avina-Murillo 

11 See State v. McCormick and Hall, 246 Neb. 271, 518 N.W.2d 133 (1994), 

abrogated in part on other grounds, State v. Thomas, 262 Neb. 985, 637 

N.W.2d 632 (2002).

12 Reply brief for appellant at 2.

13 See § 29-2103(3).

14 State v. Thompson, 246 Neb. 752, 523 N.W.2d 246 (1994).

15 State v. Hawkman, 198 Neb. 578, 254 N.W.2d 90 (1977).

16 State v. Thompson, supra note 3.

17 See id.
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did not file a timely motion for new trial, we do not consider her assignments of error relating to the overruling of 

the motion.

Ineffective Assistance of Counsel

Through different counsel, Avina-Murillo argues that in several respects, her initial trial counsel was ineffective. Her arguments all relate to the lunch incident and its aftermath.

[9,10] The law requires her to assert these issues now, but 

we may not be able to decide them on direct appeal. When a 

defendant’s trial counsel is different from his or her counsel 

on direct appeal, the defendant must raise on direct appeal any 

issue of trial counsel’s ineffective performance which is known 

to the defendant or is apparent from the record. Otherwise, the 

issue will be procedurally barred.18 The fact that an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. The determining 

factor is whether the record is sufficient to adequately review 

the question.19

[11] Avina-Murillo’s claims are premised on her trial 

counsel’s having a conflict of interest. The right to effective assistance of counsel entitles the accused to his or her 

counsel’s undivided loyalties, free from conflicting interests.20

Specifically, she claims that counsel performed deficiently 

when he (1) decided not to call J.P.’s parents as witnesses after 

informing the jury of those witnesses’ testimonies during opening statements, (2) failed to move for a mistrial, (3) failed to 

withdraw due to an ethical conflict of interest, and (4) failed 

to consult with Avina-Murillo about those decisions. According 

to Avina-Murillo, her counsel was placed in a situation in 

which he had divided loyalties and had to choose between loyalty to himself and loyalty to his client.

18 State v. Vanness, supra note 4.

19 Id.

20 State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
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[12-14] Generally, to prevail on a claim of ineffective assistance of counsel under Strickland,

21 the defendant must show 

that his or her counsel’s performance was deficient and that 

this deficient performance actually prejudiced the defendant’s 

defense.22 To show that counsel’s performance was deficient, a 

defendant must show that counsel’s performance did not equal 

that of a lawyer with ordinary training and skill in criminal 

law.23 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 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.24 The two prongs of this test may 

be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that counsel’s 

actions were reasonable.25

[15] But the Strickland Court recognized that prejudice is 

presumed in some situations. “Actual or constructive denial 

of the assistance of counsel altogether is legally presumed to 

result in prejudice. So are various kinds of state interference 

with counsel’s assistance.”26 In such situations, prejudice “is 

so likely that case-by-case inquiry into prejudice is not worth 

the cost” and the impairments to the right to counsel “are easy 

to identify.”27 The Strickland Court then cited to Cuyler v. 

Sullivan28 and stated that “a similar, though more limited, presumption of prejudice” applies “when counsel is burdened by 

21 Strickland v. Washington, supra note 1.

22 State v. Cotton, supra note 20.

23 Id.

24 Id.

25 Id.

26 Strickland v. Washington, supra note 1, 466 U.S. at 692.

27 Id.

28 Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 

(1980).
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an actual conflict of interest.”29 In that situation, “it is difficult 

to measure the precise effect on the defense of representation corrupted by conflicting interests.”30 The Strickland Court 

specified that “[p]rejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely 

affected his lawyer’s performance.’”31

At this juncture, it is necessary to recognize that there 

are several types of conflicts of interest that could arise. An 

attorney may concurrently represent clients with conflicting 

interests (multiple representation). An attorney could successively represent clients with conflicting interests (successive 

representation). Or the interests of the client may conflict with 

the attorney’s personal interests (personal interest conflict). 

“Not all conflicts of interest that affect the attorney’s ‘duty 

of loyalty’ have the same consequences, and they are not all 

suited to Cuyler’s stringent rule.”32 Multiple representation 

conflicts tend to present the most problems, because whatever 

path the attorney takes will likely harm the interests of at least 

one client. On the other hand, when the attorney has a personal 

conflict, the attorney can still fulfill his or her duty of loyalty 

to the client, although doing so may be to the detriment of the 

attorney’s personal interest.

Where a conflict of interest involves multiple representation, the U.S. Supreme Court has provided clear guidance. 

Automatic reversal is appropriate where defense counsel is 

improperly forced to represent codefendants over counsel’s 

timely objection.33 The Court held in Cuyler that where there 

is no timely objection, “a defendant who shows that a conflict 

29 Strickland v. Washington, supra note 1, 466 U.S. at 692.

30 Id.

31 Id.

32 Beets v. Scott, 65 F.3d 1258, 1269 (5th Cir. 1995).

33 See Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 

(1978).
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of interest actually affected the adequacy of his representation 

need not demonstrate prejudice in order to obtain relief.”34 The 

Court later explained that the purpose of the Cuyler exception 

is “to apply needed prophylaxis in situations where Strickland 

itself is evidently inadequate to assure vindication of the 

defendant’s Sixth Amendment right to counsel.”35

But the law has evolved regarding whether the presumed 

prejudice standard should apply to other conflict of interest 

situations. The Fifth Circuit concluded that the presumed prejudice standard applied only to multiple representation conflicts 

and that a court should apply the Strickland standard when 

the conflict involves counsel’s self-interest.36 Subsequently, in 

dicta contained in Mickens v. Taylor,

37 the U.S. Supreme Court 

observed that federal courts of appeals had applied Cuyler 

“‘unblinkingly’ to ‘all kinds of alleged attorney ethical conflicts.’” But the Mickens Court cautioned that “the language 

of [Cuyler] itself does not clearly establish, or indeed even 

support, such expansive application.”38 In Mickens, the Court 

explicitly left open whether Cuyler should be extended to cases 

of successive representation.

Our own case law post-Mickens does not reveal a clear 

standard for ineffective assistance of counsel claims involving conflicts of interest. In 2006, we discussed Mickens and 

stated that “prejudice will be presumed only if the conflict has 

significantly affected counsel’s performance, thereby rendering 

the verdict unreliable, even though Strickland prejudice cannot 

be shown.”39 In the 2006 case, the alleged conflict involved 

34 Cuyler v. Sullivan, supra note 28, 446 U.S. at 349-50.

35 Mickens v. Taylor, 535 U.S. 162, 176, 122 S. Ct. 1237, 152 L. Ed. 2d 291 

(2002). See Strickland v. Washington, supra note 1.

36 See Beets v. Scott, supra note 32.

37 Mickens v. Taylor, supra note 35, 535 U.S. at 174, quoting Beets v. Scott, 

supra note 32.

38 Mickens v. Taylor, supra note 35, 535 U.S. at 175.

39 State v. Aldaco, 271 Neb. 160, 167-68, 710 N.W.2d 101, 108 (2006).
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defense counsel’s prior representation of the victim’s brother 

(a successive representation) and we determined on direct 

appeal that there was no actual conflict nor any basis for a 

presumption of prejudice. Two years later, in a postconviction 

appeal, we were confronted with a claim that appellate counsel 

had a conflict due to a close personal relationship with trial 

counsel and consequently failed to argue that trial counsel 

provided ineffective assistance.40 We stated: “Ordinarily, such 

a conflict arises when an attorney is representing multiple 

defendants. This court, however, has previously defined ‘actual 

conflict’ broadly. The term therefore encompasses any situation 

in which a defense attorney faces divided loyalties such that 

regard for one duty tends to lead to disregard of another.”41 We 

resolved the issue by determining that the defendant failed to 

show the trial court erred in concluding that the two attorneys 

had no personal relationship.

Two of our decisions, both involving postconviction proceedings, warrant more indepth discussion. In State v. Edwards,

42

Christopher A. Edwards alleged, among other things, that his 

counsel failed to provide a meaningful defense due to his 

friendship with a material prosecution witness. After Edwards’ 

trial, his counsel represented this witness in a criminal prosecution. We stated the following with respect to Mickens:

[T]he U.S. Supreme Court stated that the “actual conflict” inquiry is not separate from a performance inquiry: 

“An ‘actual conflict,’ for Sixth Amendment purposes, 

is a conflict of interest that adversely affects counsel’s 

performance.” Thus, we have stated that when an actual 

conflict exists, there is no need to show that the conflict 

resulted in actual prejudice to the defendant (meaning 

no need to show the outcome of the proceeding was 

affected). But the substantive analysis is the same. If the 

40 See State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).

41 Id. at 442, 747 N.W.2d at 429.

42 State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
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defendant shows that his or her defense counsel faced a 

situation in which conflicting loyalties pointed in opposite 

directions and that his or her counsel acted for the other 

client’s interests and against the defendant’s interests, 

prejudice is presumed.43

We proceeded to discuss conflicts of interest resulting from 

successive representation. Ultimately, we reversed the decision 

and remanded the cause for an evidentiary hearing on the issue.

Upon our remand in Edwards, the trial court held an evidentiary hearing.44 During the hearing, counsel denied a friendship 

with the witness. Counsel testified that before he agreed to 

represent the witness, he researched whether the representation 

would cause a conflict of interest. He was advised that such 

representation would not affect Edwards’ case, even though 

there were still briefs to be written for Edwards’ direct appeal. 

The trial court determined that counsel did not have an actual 

conflict of interest. Upon Edwards’ appeal, we stated that 

“[t]he record simply does not support a finding that [counsel] 

had such a loyalty to [the witness] that would have tempted 

him at trial to act against Edwards’ interests.”45 We agreed that 

counsel did not have an actual conflict of interest at the time he 

served as Edwards’ trial counsel.

We addressed a personal interest conflict in State v. 

Armstrong.

46 We began by stating that counsel performed deficiently and that “[d]efense counsel’s interest in avoiding criminal or ethical sanctions was in conflict with [the defendant’s] 

interest in presenting the strongest defense possible.”47 With 

regard to the prejudice component, we first set forth the 

Strickland standard of “a reasonable probability that but for 

counsel’s deficient performance, the result of the proceeding 

43 Id. at 406-07, 821 N.W.2d at 701.

44 See State v. Edwards, 294 Neb. 1, 880 N.W.2d 642 (2016).

45 Id. at 22, 880 N.W.2d at 655.

46 State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015).

47 Id. at 1015, 863 N.W.2d at 467.
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would have been different.”48 Next, we stated that prejudice is 

presumed if the defendant shows conflicting loyalties pointed 

in opposite directions and counsel acted against the defendant’s interests. We then stated, “[E]ven if we do not apply 

such presumption, we easily conclude that actual prejudice 

resulted from counsel’s deficient performance.”49 Ultimately, 

we applied Strickland to resolve the prejudice component, 

stating: “Under the totality of the circumstances presented at 

trial, the decision would reasonably likely have been different 

but for counsel’s error leading to the absence of the testimony 

of [the defendant’s] wife and son-in-law.”50 In the conclusion 

portion of our opinion, we stated that the defendant “met both 

prongs of his burden under Strickland.”51

Two of our recent cases presented alleged conflicts of interest raised on direct appeal. In the context of a multiple representation, we determined that the record was insufficient 

to review the claim.52 In a case involving a personal interest 

conflict, we stated that “[i]f the defendant shows that his or her 

defense counsel faced a situation in which conflicting loyalties pointed in opposite directions and that his or her counsel 

acted for the other client’s interests or the counsel’s own personal interests and against the defendant’s interests, prejudice 

is presumed.”53 But in that case, we found that the defendant 

validly waived the conflict of interest.

[16] The State seeks guidance as to the applicable standard, but we decline to adopt a bright-line rule as to whether 

Cuyler or Strickland applies to personal interest conflicts.54

48 Id. at 1016, 863 N.W.2d at 467.

49 Id. at 1016, 863 N.W.2d at 468.

50 Id. at 1020, 863 N.W.2d at 470.

51 Id.

52 See State v. Vanness, supra note 4.

53 State v. Cotton, supra note 20, 299 Neb. at 674-75, 910 N.W.2d at 128.

54 See, Strickland v. Washington, supra note 1; Cuyler v. Sullivan, supra

note 28.
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In most such cases, the more burdensome Strickland standard 

should apply. The Fifth Circuit explained that “[b]ecause the 

scope of the duty of loyalty with respect to attorney selfinterest is inherently vague and overlaps with professional 

effectiveness, Strickland ought to set the constitutional norm 

of adequate representation.”55 But we can envision a situation 

in which the conflict is so serious that the defendant should 

be relieved of the obligation to show a reasonable probability 

that the outcome of the trial would have been different. Thus, 

we think the better approach is to determine the appropriate 

standard on a case-by-case basis. We disapprove of State v. 

Cotton,

56 State v. Armstrong,57 and State v. Edwards 58 to the 

extent they can be read to always require a presumption of 

prejudice where counsel’s conflict of interest does not involve 

multiple representation.

Because the alleged personal interest conflict here does 

not rise to the level of demanding a presumption of prejudice, we apply the Strickland standard. As we recited above, 

in order to prevail under Strickland, Avina-Murillo must show 

that her counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law and a 

reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been 

different.59

Both parties contend, for different reasons, that the record 

on direct appeal is sufficient to resolve Avina-Murillo’s ineffective assistance of counsel claims. They direct us to affidavits received during the hearing on the motion for new trial. 

During oral arguments, the State conceded that such evidence 

can and should be considered for purposes of the ineffective 

55 Beets v. Scott, supra note 32, 65 F.3d at 1271.

56 State v. Cotton, supra note 20.

57 State v. Armstrong, supra note 46.

58 State v. Edwards, supra note 42.

59 See State v. Cotton, supra note 20.
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assistance of counsel claims, regardless of the timeliness of the 

motion for new trial.

But in considering this evidence, we are mindful that it 

was not tested in an adversarial way. Although the court 

received the affidavits, it did not conduct an evidentiary hearing. Thus, the State did not have a chance to cross-examine 

the affiants about their statements. And the affidavits merely 

presented Avina-Murillo’s and the parents’ unchallenged version of events. Conspicuously absent is counsel’s side of 

the story. Thus, we cannot say that the undisputed facts are 

sufficient to conclusively determine whether Avina-Murillo’s 

initial trial counsel did or did not provide effective assistance. 

Too much depends on speculation, assumptions, inferences, or 

untested affidavits. We will not presume prejudice based on 

mere speculation.60

[17] Rarely do we find on direct appeal that a defendant 

established a claim of ineffective assistance of trial counsel. In 

determining whether trial counsel’s performance was deficient, 

there is a strong presumption that counsel acted reasonably.61

On only two occasions have we, on direct appeal, found that 

trial counsel’s actions could not be justified as a part of any 

plausible trial strategy.62 In State v. Rocha,

63 where counsel 

failed to move to sever a sexual assault charge from child 

abuse charges, we stated that we could conceive of no strategic reason for counsel’s failure to act and that such failure 

undermined our confidence in the outcome of the trial. In 

State v. Faust,

64 we concluded that counsel provided ineffective assistance “by failing to object to a significant amount 

60 State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010).

61 State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017).

62 See, State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013); State v. Faust, 

265 Neb. 845, 660 N.W.2d 844 (2003), disapproved on other grounds, 

State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).

63 State v. Rocha, supra note 62.

64 State v. Faust, supra note 62, 265 Neb. at 870, 660 N.W.2d at 868.
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of improper negative character evidence.” Because the jury 

was presented with inadmissible evidence that was inflammatory and had an increased potential for jury confusion, we 

could not ascertain “whether the defendant was convicted for 

committing the elements of the crime charged or whether the 

jury determined guilt because the defendant was a generally 

aggressive or violent person and, thus, more likely to commit 

the crime.”65 But finding ineffective assistance on direct appeal 

is the exceptional case, and for good reason. Failing to call a 

witness promised during opening statement simply does not 

reach that level. There are many legitimate reasons why this 

could occur. Although the record suggests that a personal interest conflict may have been involved, it does not conclusively 

establish cause and effect.

Based on the record before us, we cannot conclusively 

determine as a matter of law that counsel’s alleged deficient 

performance did or did not cause Avina-Murillo prejudice. As 

noted, there is a strong presumption that counsel acted reasonably, and we decline to speculate as to the trial strategy, if 

any, behind counsel’s decisions.

Further, we disagree with the State that evidence of guilt was 

overwhelming. We recognize that because this case involved a 

negligent child abuse charge, the State needed to prove beyond 

a reasonable doubt only that Avina-Murillo negligently caused 

or permitted J.P. to be (1) placed in a situation that endangered 

her life or physical or mental health, (2) cruelly punished, or 

(3) deprived of necessary care.66 But we cannot say conclusively that the outcome would have been the same had the 

jury heard from J.P.’s parents, as it had been told it would. 

Avina-Murillo’s other allegations of ineffectiveness—counsel’s 

failure to move for a mistrial, move to withdraw, or consult 

with Avina-Murillo regarding the actions about which she 

complains—are all premised on the same alleged conflict as 

65 Id. at 871, 660 N.W.2d at 868-69.

66 See Neb. Rev. Stat. § 28-707(1) (Cum. Supp. 2014).
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the decision not to call the parents as witnesses. The claims 

rise or fall together.

Ultimately, we are missing necessary facts to conclusively 

determine whether counsel performed deficiently and whether 

there is a reasonable probability that absent such deficient 

performance, the result of the proceeding would have been 

different. We conclude that the record is insufficient on direct 

appeal to resolve Avina-Murillo’s claims of ineffective assistance of counsel.

CONCLUSION

We do not consider Avina-Murillo’s arguments regarding 

the overruling of her motion for new trial, because the motion 

was untimely. Applying the Strickland standard, we determine 

that the record is insufficient to resolve Avina-Murillo’s claims 

that she received ineffective assistance of counsel due to her 

initial trial counsel’s personal interest conflict. We therefore 

affirm Avina-Murillo’s conviction and sentence.

Affirmed.

Papik, J., not participating.