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Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. PRIVETT

Cite as 303 Neb. 404

State of Nebraska, appellee, v.

Phillip M. Privett, appell

___ N.W.2d ___

Filed June 21, 2019. No. S-18-775.

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. 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.

3. Postconviction: Pleadings. A defendant is required to make specific 

allegations instead of mere conclusions of fact or law in order to receive 

an evidentiary hearing for postconviction relief.

4. Postconviction: Appeal and Error. When a district court denies postconviction relief without conducting an evidentiary hearing, an appellate court must determine whether the petitioner has alleged facts that 

would support the claim and, if so, whether the files and records affirmatively show that he or she is entitled to no relief.

5. Effectiveness of Counsel: Pleas: Waiver. Generally, a voluntary guilty 

plea or plea of no contest waives all defenses to a criminal charge. Thus, 

when a defendant pleads guilty or no contest, he or she is limited to 

challenging whether the plea was understandingly and voluntarily made 

and whether it was the result of ineffective assistance of counsel.

6. Postconviction: Effectiveness of Counsel: Pleas. In a postconviction 

proceeding brought by a defendant convicted because of a guilty plea 

or a plea of no contest, a court will consider an allegation that the plea 

was the result of ineffective assistance of counsel.

Nebraska Supreme Court Online Library

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

07/19/2019 08:08 AM CDT
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STATE v. PRIVETT

Cite as 303 Neb. 404

7. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. 

In order 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. Next, the defendant 

must show that counsel’s deficient performance prejudiced the defense 

in his or her case.

8. Convictions: Effectiveness of Counsel: Pleas: Proof. 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.

9. Effectiveness of Counsel: Appeal and Error. The two prongs of the 

ineffective assistance of counsel test under Strickland v. Washington, 

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), deficient performance and prejudice, may be addressed in either order.

10. Effectiveness of Counsel: Proof. In the context of a claim of ineffectiveness of counsel for failure to investigate, allegations 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.

11. Effectiveness of Counsel: Pleas: Proof. Self-serving declarations that 

a defendant would have gone to trial are not enough to warrant a hearing; a defendant must present objective evidence showing a reasonable 

probability that he or she would have insisted on going to trial.

Appeal from the District Court for Knox County: James G. 

Kube, Judge. Affirmed

Michael J. Wilson, of Schaefer Shapiro, L.L.P., for 

appellant.

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

Duffy for appellee.

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

Papik, JJ
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STATE v. PRIVETT

Cite as 303 Neb. 404

Cassel, J.

INTRODUCTION

Phillip M. Privett appeals from an order denying his motion 

for postconviction relief without an evidentiary hearing. He 

raises two claims of ineffective assistance of trial counsel. 

Although he asserts that counsel failed to investigate and 

advise him of a viable defense, his motion failed to allege 

sufficient facts. He also claims that in response to his hearing 

impairment, counsel failed to request the court to amplify its 

voice or employ a telecommunications device. But, the record 

affirmatively refutes his claim. We affirm.

BACKGROUND

The State charged Privett with first degree murder and use 

of a firearm to commit a felony. Two attorneys were appointed 

to represent him. Pursuant to a plea agreement, the State 

amended the first count to second degree murder and Privett 

pled no contest to both counts. The district court sentenced 

him to 30 to 50 years’ imprisonment for second degree murder 

and not less than or more than 10 years’ imprisonment for use 

of a firearm to commit a felony.

On direct appeal, Privett assigned that he received excessive 

sentences. The Nebraska Court of Appeals summarily affirmed 

his sentences.

Represented by different counsel, Privett filed an amended 

motion for postconviction relief, asserting two claims of ineffective assistance of trial counsel. First, he claimed that trial 

counsel were ineffective when they failed “to adequately investigate and advise Privett as to ‘the available options and possible consequences’ prior to pleading no contest.” Second, 

he asserted that trial counsel were ineffective for failing “to 

request continued amplification of the words of [the district 

court] and the parties at the plea hearing [or] provid[e] a telecommunications device for the deaf.”

The district court denied postconviction relief without 

an evidentiary hearing, finding that Privett did not allege 
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303 Nebraska Report

STATE v. PRIVETT

Cite as 303 Neb. 404

sufficient facts and that the record affirmatively disproved 

the claims.

Privett filed a timely appeal, which we moved to our docket.1

ASSIGNMENTS OF ERROR

Privett assigns that the district court erred in denying an 

evidentiary hearing on his claims for ineffective assistance of 

trial counsel where counsel (1) failed to advise Privett concerning a viable defense that he lacked capacity to form the intent 

required to commit murder and (2) failed to request additional 

amplification or a telecommunications device for the deaf during the proceedings.

We note that in Privett’s amended motion for postconviction relief, he claimed counsel were ineffective for failing to 

advise on a defense of sudden quarrel manslaughter. On appeal, 

Privett does not assign error to or argue that claim. Therefore, 

we do not address it.2

STANDARD OF REVIEW

[1] 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.3

ANALYSIS

Privett contends that the district court erred in dismissing his 

claims for ineffective assistance of counsel without an evidentiary hearing. Generally, he argues that his claims did not allege 

mere conclusions of fact and that the record did not affirmatively disprove his claims. We first recite the general principles 

1 See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018); Neb. Rev. Stat. 

§ 29-3002 (Reissue 2016).

2 See State v. Munoz, ante p. 69, 927 N.W.2d 25 (2019).

3 State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).
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of law regarding postconviction motions and ineffective assistance of counsel; we then turn to Privett’s specific claims.

General Principles o

[2-4] 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.4 A defendant is required to make specific allegations instead of mere conclusions of fact or law in order to 

receive an evidentiary hearing for postconviction relief.5 When 

a district court denies postconviction relief without conducting an evidentiary hearing, an appellate court must determine 

whether the petitioner has alleged facts that would support the 

claim and, if so, whether the files and records affirmatively 

show that he or she is entitled to no relief.6

[5,6] Generally, a voluntary guilty plea or plea of no contest waives all defenses to a criminal charge.7

 Thus, when a 

defendant pleads guilty or no contest, he or she is limited to 

challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel.8

 In a postconviction proceeding brought by a 

defendant convicted because of a guilty plea or a plea of no 

contest, a court will consider an allegation that the plea was 

the result of ineffective assistance of counsel.9 Because Privett 

pled no contest to the charges, we will consider his allegations that the plea was the result of ineffective assistance of 

trial counsel.

4 Id.

5 State v. Fox, 286 Neb. 956, 840 N.W.2d 479 (2013).

6 State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018).

7 State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).

8 Id.

9 Id.
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STATE v. PRIVETT

Cite as 303 Neb. 404

[7-9] In order 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,

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. Next, 

the defendant must show that counsel’s deficient performance 

prejudiced the defense in his or her case.11 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.12 The two prongs 

of the ineffective assistance of counsel test under Strickland, 

deficient performance and prejudice, may be addressed in 

either order.13

Defen

Responding to the district court’s reasoning, Privett’s brief 

on appeal argues that the district court erred in dismissing 

his claim without an evidentiary hearing, “because trial counsel’s comments during sentencing demonstrate that they knew 

Privett had no ability to form the necessary intent to commit 

murder, and that effective assistance required additional investigation from experts other than the State’s forensic [psychiatrist, Dr.] Y. Scott Moore.”14

Privett argues that trial counsel were deficient for failing to 

investigate into his “unique personal circumstances.”15 But, as 

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

(1984).

11 State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015).

12 Id.

13 Id.

14 Brief for appellant at 7.

15 Id. at 11.
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STATE v. PRIVETT

Cite as 303 Neb. 404

the district court correctly determined, trial counsel did conduct a diligent investigation when they filed a notice of intent 

to rely on the insanity defense and a motion for a psychological examination of Privett. The court granted the motion for a 

psychological evaluation, which was performed by Dr. Y. Scott 

Moore. The record shows that Moore is a forensic psychiatrist 

with the Lincoln Regional Center.

Candidly, Privett’s remaining arguments that trial counsel were ineffective for failing to investigate a defense of an 

inability to form intent, to advise Privett about that defense, 

and to obtain an evaluation from someone other than Moore 

are intertwined. We separate them for discussion.

Privett argues that counsel were ineffective for failing to 

investigate, premising this argument upon counsel’s purported 

knowledge that he could not have formed the requisite intent. 

To establish counsel’s knowledge, Privett relies on two statements made by trial counsel at the sentencing hearing. First, 

counsel stated, “I think that the post-traumatic stress disorder 

may have played a role in that as might have the medications 

he’s on.” Second, counsel stated, “[W]e won’t know exactly 

what happened and we won’t know why it happened.” Privett 

argues that these statements alone dictated that it was necessary for trial counsel to investigate further and, specifically, to 

hire an independent forensic psychologist.

[10] In the context of a claim of ineffectiveness of counsel 

for failure to investigate, allegations 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.16 Privett 

broadly alleged that further investigation required an independent forensic psychologist, but he did not allege what exculpatory evidence would have been discovered by the forensic 

psychologist or how that evidence would have affected the 

outcome of the case. We agree with the district court that the 

16 State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).
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STATE v. PRIVETT

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facts alleged were insufficient to show deficient conduct by 

trial counsel.

Privett argues that trial counsel were ineffective for failing 

to advise him on a defense where his post-traumatic stress disorder (PTSD) and medications caused him to enter a dissociative state and prevented him from forming the requisite intent. 

Trial counsel appropriately relied on Moore’s evaluations when 

advising Privett on viable defenses. In Moore’s evaluation of 

Privett’s competency for trial, Moore remarked:

When I talk to [Privett] about the symptoms of PTSD, 

he tells me that it is mostly a matter of being a little bit 

“jumpy” and he tells me that if he hears a loud noise, he 

still has a tendency to “hit the dirt” until he knows what 

it is.

In the evaluation regarding sanity, Moore stated that Privett 

confessed to a history of alcohol usage and that with “his new 

history . . . of having a great many times of no memory of 

what he had been doing, there is the possibility that . . . Privett 

was in a state of alcohol blackout at the time of the alleged 

murder.” Further, he opined that “[o]ther than some symptoms of sleep difficulties and some startle reactions described 

to me . . . , I cannot find any marked symptoms of PTSD in 

this gentleman.”

Moore’s evaluations refute the allegation that Privett’s PTSD 

and medications caused him to enter into a dissociative state. 

And Privett’s motion fails to allege facts showing that a different forensic psychologist likely would have concluded otherwise. Without facts to show why trial counsel should not 

have relied on Moore’s evaluations, there was no factual basis 

for the existence of such defense. With no basis to support the 

defense’s existence, trial counsel had no obligation to advise 

him of it.17 Therefore, the district court did not err in finding 

that the record affirmatively refuted Privett’s claim.

17 See Armendariz, supra note 11.
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STATE v. PRIVETT

Cite as 303 Neb. 404

Finally, Privett asserts that trial counsel were ineffective for 

failing to obtain an independent forensic psychological evaluation. In a postconviction motion, an allegation that defense 

counsel was ineffective in failing to procure witnesses favorable to the defendant was properly dismissed without an evidentiary hearing where the motion did not specifically identify 

the witnesses or the nature of their testimony.18 Privett failed 

to sufficiently allege whom trial counsel should have obtained 

to perform an independent forensic psychological evaluation 

and what the forensic psychologist would have opined as the 

explanation for his failure to remember the events surrounding the victim’s death. We agree with the district court that 

the facts alleged are insufficient to show deficient conduct by 

trial counsel.

Hearing Impai

Privett contends that trial counsel were ineffective when 

they failed to inform the court that he could not hear or failed 

to provide him with a telecommunications device. He alleged 

that after the court amplified its voice during the sentencing hearing, it then decreased the volume of its voice to a 

point where he could not hear. He argues that this left him 

unable to understand the nature of the proceedings against him, 

which deprived him of his right to due process under the 14th 

Amendment to the U.S. Constitution.

Nebraska courts have yet to discuss whether counsel is ineffective for failing to inform the court when its hard-of-hearing 

client cannot hear. But, an Ohio court discussed the issue in an 

almost identical factual scenario.

In State v. Thomas,

19 the defendant claimed that trial counsel was ineffective for failing to request a hearing device 

for his hearing-impaired client. During the plea hearing, the 

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

19 State v. Thomas, Nos. 25331, 25332, 2014 WL 1339070 (Ohio App. Mar. 

21, 2014) (unpublished opinion).
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court moved the defendant closer to the bench. The defendant 

affirmed his ability to hear the court and counsel. The court 

informed the defendant that if he could not hear clearly, to let it 

know so it could repeat itself. The court inquired several times 

throughout the plea whether the defendant could hear, and in 

each instance, the defendant affirmed that he could. The Ohio 

appellate court determined that the record clearly refuted the 

claim. Thus, the appellate court concluded that trial counsel’s 

performance was not deficient.

Here, the record shows that Privett heard, understood, and 

appropriately responded during the proceedings. At the hearing during which Privett entered his pleas, he did not express 

that he was having any difficulty hearing anything. All of 

his answers to the court’s questions responded directly and 

appropriately. And contrary to Privett’s argument on appeal, 

the only hearing at which Privett expressed any difficulty in 

hearing was the sentencing proceeding. During that event, one 

of Privett’s counsel advised the court that Privett did not have 

any working hearing aids and had told his attorney that he 

was having difficulty hearing. In response, the court instructed 

Privett that if he could not hear, he should inform his attorney 

or raise his hand. Later, Privett did inform the court that he 

could not hear. At that time, the court stated, “All right. Then 

what we’ll do is postpone this and come back when he has a 

hearing aid.” Privett responded, “No, sir, please don’t.” The 

court then asked Privett whether he could tell the court what it 

was trying to do. Privett responded, “Try to decide what [its] 

going to do with me, I guess.” He then stated that he could sufficiently hear the court and answered all the court’s remaining 

questions without issue.

[11] Self-serving declarations that a defendant would have 

gone to trial are not enough to warrant a hearing; a defendant 

must present objective evidence showing a reasonable probability that he or she would have insisted on going to trial.20

20 State v. Barrera-Garrido, 296 Neb. 647, 895 N.W.2d 661 (2017).
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STATE v. PRIVETT

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Privett’s self-serving declaration that the court lowered its 

voice during the proceeding and that he could not hear is 

clearly refuted by the record. The record shows that the district court made every effort to ensure that Privett could hear 

and understand the proceedings, including repeatedly offering 

to continue the hearing to a later date. Privett declined each 

invitation to postpone the sentencing. Accordingly, the district 

court did not err in finding that the record affirmatively disproved Privett’s allegation of not being able to hear.

CONCLUSION

For the reasons set forth above, we affirm the final order of 

the district court.

Affirmed

Freudenberg, J., not participati