Decisions of the Nebraska Court of Appeals

STATE v. DETERMAN 683

Cite as 22 Neb. App. 683

State of Nebraska, appellee, v. 

Aaron L. Determan, appellant.

___ N.W.2d ___

Filed January 27, 2015. No. A-13-756.

1. Appeal and Error. In order to be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the brief of the 

party asserting the error.

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

an appellate court independently resolves questions of law.

3. 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.

4. 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.

5. Effectiveness of Counsel: Appeal and Error. Determinations regarding 

whether counsel was deficient and whether the defendant was prejudiced are 

questions of law that an appellate court reviews independently of the lower 

court’s decision.

6. Postconviction: Final Orders. Within a postconviction proceeding, an order 

granting an evidentiary hearing on some issues and denying a hearing on others 

is a final order as to the claims denied without a hearing. In other words, an order 

denying an evidentiary hearing on a postconviction claim is a final judgment as 

to that claim.

7. Postconviction: Effectiveness of Counsel: Appeal and Error. Where a defendant alleges multiple postconviction claims of ineffective assistance of counsel 

including a claim that counsel was deficient in failing to timely file, or otherwise 

timely perfect, a direct appeal, the district court shall make its determination 

regarding the claim regarding the direct appeal, including holding an evidentiary 

hearing if the court determines that an evidentiary hearing is necessary, prior to 

addressing the defendant’s other postconviction claims.

Appeal from the District Court for Saline County: Vicky L. 

Johnson, Judge. Judgment vacated, and cause remanded for 

further proceedings.

Jeffrey A. Gaertig, of Carlson, Schafer & Davis, P.C., L.L.O., 

for appellant, and Aaron L. Determan, pro se.
Decisions of the Nebraska Court of Appeals

684 22 NEBRASKA APPELLATE REPORTS

Jon Bruning, Attorney General, and Melissa R. Vincent 

for appellee.

Inbody, Riedmann, and Bishop, Judges.

Inbody, Judge.

INTRODUCTION

Aaron L. Determan appeals the portion of the decision of 

the Saline County District Court denying his motion for postconviction relief without an evidentiary hearing on his claims 

that trial counsel failed to object to the State’s breach of a plea 

agreement, failed to properly effectuate a continuance of the 

sentencing hearing, failed to advise him of the requirement of 

corroboration for a plea-based drug conviction, and stipulated 

to corroboration. The court determined that an evidentiary 

hearing was required regarding Determan’s remaining claim, 

that his trial counsel was ineffective for failing to timely perfect his direct appeal.

STATEMENT OF FACTS

Previous Case.

Determan was charged with unlawful manufacture or distribution of a controlled substance, a Class III felony. A jury 

trial was set for February 27 and 28, 2013; however, on 

February 26, Determan appeared with counsel and waived 

his right to a jury trial. The following day, Determan entered 

a plea of guilty to the charged offense. The only plea agreement in this case was that the State would not make a 

sentencing recommendation other than to submit the matter based on the information contained in the presentence 

investigation report (PSR). The State provided the following 

factual basis: On June 14, 2011, Determan made contact with 

an informant who had been cooperating with the Nebraska 

State Patrol regarding drug investigative matters. Determan 

and the informant had been texting back and forth during the 

afternoon hours of June 14, and an agreement was reached 

for Determan to deliver 2 grams of hashish to the informant. 

The informant, in cooperation with the Nebraska State Patrol, 

was transported by a State Patrol investigator to a location 
Decisions of the Nebraska Court of Appeals

STATE v. DETERMAN 685

Cite as 22 Neb. App. 683

in Wilber, Saline County, Nebraska, at which point he proceeded to the door of a residence and had a brief discussion 

with Determan. At that point, there was an exchange where 

Determan provided to the informant a plastic baggie containing a brown substance which looked like hashish. Hashish is 

a derivative of a Schedule I drug that also has tetrahydrocannabinol (THC) in it. The informant provided $60 to Determan 

for the transaction. The informant then got back into the State 

Patrol vehicle and delivered the substance to the State Patrol 

investigator. The substance was analyzed by the Nebraska 

State Patrol laboratory, which showed the substance to be 

THC, a Schedule I drug, which is a controlled substance 

under Nebraska law.

Upon the reading of the factual basis, the following colloquy occurred among the district court, defense counsel, and 

Determan:

THE COURT: Anything to add as far as the facts are 

concerned, [defense counsel]?

[Defense counsel]: No, Your Honor.

THE COURT: Do you stipulate there was sufficient 

corroboration?

[Defense counsel]: Yes.

THE COURT: . . . Determan, have you heard what 

the county attorney believes his evidence would be in 

this case?

[Determan]: Yes, ma’am.

THE COURT: Do you have any disagreement with 

anything that he has said?

[Determan]: No, ma’am.

THE COURT: Did you do the things that he says that 

you did?

[Determan]: Yes, ma’am.

The district court accepted Determan’s plea and found him 

guilty of the charged offense. The court ordered a presentence 

investigation and instructed Determan to contact the probation 

office by no later than 3 p.m. the following Friday to schedule an appointment. The court also advised Determan that if 

he failed to show up for his appointment, it was possible the 
Decisions of the Nebraska Court of Appeals

686 22 NEBRASKA APPELLATE REPORTS

probation office would not be able to complete the PSR in 

time for his sentencing hearing, and that that “[would not] 

help” Determan.

On February 27, 2013, Determan called the probation office 

and left a voice mail indicating that he needed to schedule an 

appointment. Support staff attempted to contact Determan at 

the number provided, but were unable to make contact with 

Determan. The following day, the probation officer assigned 

to conduct Determan’s presentence interview sent a letter to 

Determan advising him that his appointment was scheduled 

for March 11 at 12:30 p.m. Determan failed to appear for his 

appointment and did not call to reschedule it. On March 12, 

the probation officer contacted Determan by telephone to discuss his missed appointment. Determan explained that he had 

been in the emergency room with a toothache and was unable 

to attend his appointment. The probation officer scheduled a 

second appointment, for March 19 at 2 p.m., and reminded 

Determan that he needed to complete his paperwork and bring 

it with him. On March 18, Determan called the probation 

officer and advised her that he was having car problems and 

was attempting to find a ride. The probation officer reminded 

Determan that his appointment was not until 2 p.m. the following day. On the day of his appointment, Determan arrived 

at the probation office 40 minutes late and did not have his 

paperwork with him. The probation officer advised Determan 

that she could not meet with him, due to her other scheduled 

appointments. She further advised Determan to contact his 

attorney, because she would not have time to interview him 

prior to the PSR’s being due. She also provided him with 

another copy of the paperwork that he needed to complete. 

The probation officer completed the PSR without interviewing 

Determan. The PSR included an older PSR prepared in March 

2011 in connection with a different case.

At the sentencing hearing held on April 15, 2013, the court 

noted that it had received and reviewed the PSR prepared by 

the probation department. Although Determan’s counsel stated 

that he had reviewed the PSR, he noted that Determan had 

been unable to complete his portion of the presentence investigation. Determan’s counsel made an oral motion to continue 
Decisions of the Nebraska Court of Appeals

STATE v. DETERMAN 687

Cite as 22 Neb. App. 683

the sentencing hearing to allow Determan to complete the presentence investigation interview. The prosecutor opposed the 

continuance, noting that Determan had substantial opportunities to complete his portion of the presentence investigation, 

that this was not the first time Determan had been required 

to submit to a presentence investigation, and that Determan 

“knows the routine.” The prosecutor further suggested that 

Determan’s request for a continuance was “just another delay 

tactic.” The court denied the motion to continue the sentencing 

hearing, noting:

It is routinely my practice when I take a plea to advise 

defendants that it is their obligation to contact probation 

as soon as possible, that if they don’t appear when they’re 

supposed to, that it can delay the [PSR] preparation. I 

don’t have any specific recollection of doing so with . . . 

Determan, but I am certain that I did.

After his request for a continuance was denied, Determan 

sought and received permission to supplement the PSR 

through testimony. Determan testified that he had attempted 

to check himself into a drug rehabilitation program 3 weeks 

earlier but was denied admission because he had not yet 

obtained an evaluation. He further testified that he had been 

employed by a roofing company since being released from 

incarceration in October 2012, but that he was currently 

unemployed because his boss had passed away the previous 

week. Determan testified that his father had a job for him 

“starting in May and ending in November” and that he was 

prepared to obtain a substance abuse evaluation and to seek 

necessary treatment.

Following Determan’s testimony, the district court sought 

remarks from the State, which offered the following: “Your 

Honor, the State reviewed the [PSR]. It does set forth sufficient information to allow the Court to make an adequate 

and appropriate decision on [Determan], and I will submit it 

based upon that information.” Prior to imposing sentence, the 

district court stated that it had considered the following factors in determining Determan’s sentence: (1) the nature and 

circumstances of the current offense; (2) Determan’s criminal 

history, which included 15 infractions, 28 misdemeanors, and 
Decisions of the Nebraska Court of Appeals

688 22 NEBRASKA APPELLATE REPORTS

three felonies—two of which resulted in incarceration and 

one of which resulted in placement on probation, from which 

he received an unsatisfactory release; (3) his unemployed 

status; and (4) his failure to obtain a substance abuse evaluation when given the opportunity. The court then sentenced 

Determan to 8 to 10 years’ imprisonment with credit for 7 

days served.

Following his sentencing, Determan, assisted by the same 

counsel that represented him during his plea and sentencing, 

timely filed a notice of appeal. However, because Determan’s 

poverty affidavit was not filed under 32 days after his sentencing, we dismissed his direct appeal for lack of jurisdiction on 

June 28, 2013, in case No. A-13-441.

Current Case.

In August 2013, Determan filed a verified motion for postconviction relief alleging, inter alia, that trial counsel was 

ineffective for (1) failing to timely file his direct appeal; (2) 

failing to object when the prosecutor violated the terms of the 

plea agreement; (3) failing to file a written motion to continue 

the sentencing hearing, failing to object when his oral request 

to continue the sentencing hearing was denied, and failing to 

properly present to the court mitigating factors supporting probation or a more lenient sentence; and (4) failing to advise him 

of the deficiencies in the State’s required corroborating evidence, stipulating to an inadequate factual basis, and advising 

him to do the same. He contends that absent the acts and omissions of his trial counsel, he would have chosen to go to trial 

rather than plead guilty to the State’s factual basis premised 

upon inadmissible evidence.

On August 22, 2013, the district court filed an order denying in part, and granting in part, Determan’s request for postconviction relief. The court granted Determan’s request for an 

evidentiary hearing with regard to the untimely filing of his 

appeal. However, the court dismissed the remaining claims 

contained in Determan’s motion for postconviction relief.

Regarding the second allegation, failing to object when 

the prosecutor violated the terms of the plea agreement, the 

court found:
Decisions of the Nebraska Court of Appeals

STATE v. DETERMAN 689

Cite as 22 Neb. App. 683

The record reflects that the prosecutor made an objection when [Determan] moved to continue. He submitted the case for sentencing based on the [PSR]. This 

is in exact accord with his agreement. This portion of 

the Motion [for postconviction relief] is dismissed as 

[Determan] cannot show that the attorney’s performance 

was deficient.

Regarding the third allegation, failing to file a written 

motion to continue the sentencing hearing, failing to object 

when his oral request to continue the sentencing hearing was 

denied, and failing to properly present to the court mitigating 

factors supporting probation or a more lenient sentence, the 

court found:

The record is clear that [Determan’s] counsel moved 

to continue the sentencing hearing. The State objected. 

[That] motion was overruled. This portion of the Motion 

[for postconviction relief] is dismissed as [Determan] cannot show that the attorney’s performance was deficient.

. . . .

The record reflects that [Determan’s] counsel did argue 

mitigating facts. [Determan] testified. This portion of 

the Motion [for postconviction relief] is dismissed as 

[Determan] cannot show that the attorney’s performance 

was deficient.

Regarding the fourth allegation, failing to advise him of the 

deficiencies in the State’s required corroborating evidence and 

stipulating to an inadequate factual basis and advising him to 

do the same, the court found:

In colloquy with the Court, [Determan] stated that 

he understood all of the written information provided 

to him from his counsel. He also stated that he had told 

his attorney everything that he knew about the case, that 

his counsel had discussed trial strategies and defense, 

that he was satisfied with the advice of his attorney. His 

counsel stipulated that there was sufficient corroboration 

when the factual basis was related by the prosecutor. 

[Determan] then indicated that he had no disagreement 

with anything stated by the prosecutor and admitted 

that he had engaged in the acts stated by the prosecutor. 
Decisions of the Nebraska Court of Appeals

690 22 NEBRASKA APPELLATE REPORTS

This portion of the Motion [for postconviction relief] is 

dismissed as [Determan] cannot show that the attorney’s 

performance was deficient.

ASSIGNMENTS OF ERROR

Determan contends the district court erred in denying him an 

evidentiary hearing on his postconviction claims of ineffective 

assistance of trial counsel regarding counsel’s failure to object 

to the State’s breach of the plea agreement, failure to properly 

effectuate a continuance of the sentencing hearing, failure to 

advise him of the requirement of corroboration for a plea-based 

drug conviction, and stipulation to corroboration.

[1] We note that in his brief, Determan argues that trial 

counsel was ineffective for failing to object to the district 

court’s reliance on a 2010 PSR; however, he did not assign 

this as error. In order to be considered by an appellate court, 

an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. State v. 

Green, 287 Neb. 212, 842 N.W.2d 74 (2014).

STANDARD OF REVIEW

[2-4] In appeals from postconviction proceedings, we independently resolve questions of law. State v. Dragon, 287 Neb. 

519, 843 N.W.2d 618 (2014); State v. Baker, 286 Neb. 524, 837 

N.W.2d 91 (2013). 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. State v. Dragon, supra; State v. Baker, supra. 

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. Dragon, 

supra; State v. Baker, supra.

[5] Determinations regarding whether counsel was deficient 

and whether the defendant was prejudiced are questions of law 

that we review independently of the lower court’s decision. 
Decisions of the Nebraska Court of Appeals

STATE v. DETERMAN 691

Cite as 22 Neb. App. 683

State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012); State v. 

Hernandez, 22 Neb. App. 62, 847 N.W.2d 111 (2014).

ANALYSIS

[6] Within a postconviction proceeding, an order granting 

an evidentiary hearing on some issues and denying a hearing on others is a final order as to the claims denied without 

a hearing. State v. Alfredson, 287 Neb. 477, 842 N.W.2d 815 

(2014). In other words, an order denying an evidentiary hearing on a postconviction claim is a final judgment as to that 

claim. Id. Thus, Determan’s postconviction claims which were 

denied by the district court are properly before this court 

for review.

[7] However, before addressing Determan’s assigned errors, 

we are compelled to note that we have addressed the issue of 

the preferred procedural practice when a defendant’s motion 

for postconviction relief raises multiple issues regarding ineffective assistance of counsel, one of which is counsel’s failure 

to timely file, or otherwise timely perfect, his direct appeal. 

We previously held in State v. Seeger, 20 Neb. App. 225, 822 

N.W.2d 436 (2012), that where a defendant combines all of his 

claims of ineffective assistance of counsel in a postconviction 

action including a claim that counsel was ineffective in failing 

to timely file a direct appeal, judicial economy may be served 

by deferring ruling on the balance of postconviction claims 

until after an evidentiary hearing on the entitlement to a new 

direct appeal has been held.

If a new direct appeal is granted, the remaining postconviction claims could be dismissed as premature and thereafter raised in the direct appeal. If a new direct appeal 

is not granted, then the court could issue a final order 

addressing all of the claims and the appellant would be 

required to file only one appeal.

Id. at 230-31, 822 N.W.2d at 442. Despite our previous pronouncement on this issue, the piecemeal determination of 

postconviction claims where there is a claim of the ineffectiveness of counsel for failing to timely perfect a direct appeal is 

obviously a continuing issue. Therefore, we are now setting 

forth that where a defendant alleges multiple postconviction 
Decisions of the Nebraska Court of Appeals

692 22 NEBRASKA APPELLATE REPORTS

claims of ineffective assistance of counsel including a claim 

that counsel was deficient in failing to timely file, or otherwise 

timely perfect, a direct appeal, the district court shall make its 

determination regarding the claim regarding the direct appeal, 

including holding an evidentiary hearing if the court determines that an evidentiary hearing is necessary, prior to addressing the defendant’s other postconviction claims. We also note 

that although the issue is not directly presented to us, judicial 

economy would be best served by following this same procedure in all postconviction cases where the district court determines that an evidentiary hearing is needed on one or more of 

the defendant’s claims but not on other claims.

CONCLUSION

Based on our ruling, we find that the district court erred 

in ruling on the balance of Determan’s postconviction claims 

prior to holding an evidentiary hearing on his entitlement 

to a new direct appeal, and therefore, the decision of the 

district court denying Determan’s motion for postconviction 

relief without an evidentiary hearing on his second, third, and 

fourth claims is vacated and this cause is remanded for further proceedings.

Judgment vacated, and cause remanded

for further proceedings.

In re Estate of Mary Ann Clinger, deceased.

Orin M. Clinger et al., appellants, v. 

Shaun Clinger, Personal Representative

of the Estate of Mary Ann Clinger, 

deceased, et al., appellees.

___ N.W.2d ___

Filed January 27, 2015. No. A-13-769.

1. Rules of the Supreme Court: Appeal and Error. A party filing a cross-appeal 

must set forth a separate division of the brief prepared in the same manner and 

under the same rules as the brief of appellant.