IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

STATE V. RUEGGE

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

LARRY LEE RUEGGE, APPELLANT.

Filed January 13, 2015. No. A-14-197.

Appeal from the District Court for Holt County: MARK D. KOZISEK, Judge. Affirmed.

Larry Lee Ruegge, pro se.

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

IRWIN, RIEDMANN, and BISHOP, Judges.

IRWIN, Judge.

I. INTRODUCTION

Larry Lee Ruegge appeals an order of the district court for Holt County, Nebraska, 

denying Ruegge’s motion for postconviction relief without granting an evidentiary hearing. On 

appeal, Ruegge asserts that the district court erred in denying him postconviction relief, in 

denying him an evidentiary hearing, and in not appointing counsel. We find no merit, and we 

affirm.

II. BACKGROUND

In April 2012, Ruegge was convicted by a jury of burglary. He was found to be a habitual 

criminal and sentenced to 14 to 20 years’ imprisonment. Ruegge filed a direct appeal, and this 

court found no merit to his assertions on appeal and affirmed his conviction in a memorandum 

opinion. See State v. Ruegge, No. A-12-551, 2013 WL 5366332 (Neb. App. July 16, 2013) 

(selected for posting to court Web site).

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As we noted in our opinion rejecting Ruegge’s direct appeal, the incident giving rise to 

Ruegge’s conviction occurred in October 2010, when a swine nursery was burglarized. The 

State’s primary evidence against Ruegge at trial was the testimony of one of Ruegge’s 

acquaintances, Collin O’Connell, who allegedly burglarized the nursery with Ruegge. O’Connell 

testified against Ruegge, and Ruegge’s defense focused almost entirely on discrediting 

O’Connell’s testimony. After hearing all of the evidence, the jury convicted Ruegge.

In November 2013, Ruegge filed a verified motion for postconviction relief. As grounds 

for relief, Ruegge asserted that he had received ineffective assistance of appellate counsel. 

Ruegge alleged that his appellate counsel had “failed to specifically assign and specifically 

argue” certain instances of alleged ineffectiveness by Ruegge’s trial counsel, including failing to 

object to the State’s characterization of O’Connell “as an informant” instead of as an accomplice; 

failing to request an accomplice jury instruction; and failing to call a potential witness to testify 

about O’Connell’s having lied when implicating Ruegge. Ruegge also alleged that his appellate 

counsel had failed “to specifically assign as error the district court erred in the manner in which 

it responded to a question posed by the jury during deliberations.”

The State filed a motion to dismiss Ruegge’s postconviction action without an 

evidentiary hearing. The State alleged that Ruegge had failed to allege facts which would 

constitute a denial or violation of his constitutional rights and that the case files and record 

affirmatively demonstrated that Ruegge was entitled to no relief.

In January 2014, the district court held a telephonic hearing. At that hearing, the State 

offered a copy of the brief filed on direct appeal by Ruegge’s appellate counsel and a copy of this 

court’s opinion rejecting Ruegge’s direct appeal. The State argued that Ruegge’s claims that his 

appellate counsel had failed to specifically assign and specifically argue various issues were 

directly refuted by the brief filed by his counsel and by this court’s opinion, in which this court 

addressed the various assertions concerning trial counsel’s failure to challenge the State’s 

characterization of O’Connell that Ruegge asserts his appellate counsel failed to properly raise. 

The State argued that Ruegge had failed to allege facts showing that he was entitled to relief 

concerning his claim that appellate counsel was ineffective for not asserting that trial counsel had 

been ineffective regarding calling the witness to testify about O’Connell’s credibility because 

O’Connell himself admitted to the same information that the proposed witness would allegedly 

have testified to. The State argued that Ruegge had failed to allege facts showing that there was 

any prejudice related to the court’s response to the jury’s question during deliberations.

In February 2014, the district court entered an order dismissing Ruegge’s motion for 

postconviction relief without further evidentiary hearing. The court noted that it had specifically 

considered the prior filings made in Ruegge’s criminal case, the opinion of this court on direct 

appeal, and the filings made in the present postconviction action. The court then, in turn, rejected 

each of Ruegge’s asserted grounds for postconviction relief.

With respect to Ruegge’s assertion that his appellate counsel had been ineffective for 

failing to specifically assign and specifically argue trial counsel’s ineffectiveness related to the 

State’s characterization of O’Connell, the district court found that Ruegge had failed to allege 

sufficient facts to demonstrate that trial counsel had been ineffective in the first instance. The 

court specifically noted that, at trial, although the State had referred to O’Connell as an 

informant instead of as an accomplice, O’Connell had also been referred to as a “snitch,” a 

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“co-defendant,” and a “stool pigeon” at various times during voir dire. In addition, there was 

evidence adduced demonstrating that O’Connell had participated in the crime with Ruegge. 

O’Connell’s involvement in the crime, his prior statements and prior unlawful behavior, and the 

fact that the State had promised not to prosecute O’Connell in exchange for his testimony were 

all explored at trial. Thus, the district court concluded, Ruegge failed to demonstrate that the 

outcome of the proceedings would have been any different if his trial counsel had objected to the 

State’s characterization of O’Connell as an informant rather than as an accomplice.

With respect to Ruegge’s claim that his appellate counsel had been ineffective for failing 

to specifically assign and specifically argue trial counsel’s ineffectiveness related to not 

requesting an accomplice jury instruction, the district court concluded that appellate counsel did 

raise that issue on direct appeal. The court concluded that, although this court did not reach the 

ultimate merits of the claim, the record clearly demonstrates that appellate counsel did reach the 

issue and, accordingly, affirmatively refutes Ruegge’s assertion that his appellate counsel was 

ineffective for not raising it.

With respect to Ruegge’s claim that his appellate counsel had been ineffective for failing 

to specifically assign and specifically argue trial counsel’s ineffectiveness related to not calling a 

particular witness, the district court found that Ruegge had failed to allege facts demonstrating 

any prejudice from trial counsel’s failure to call the witness. The court noted that everything 

Ruegge alleged that the potential witness could have presented testimony about was already 

admitted to and testified to by O’Connell and that the potential witness’ testimony would have 

been cumulative. Because O’Connell’s credibility was thoroughly explored and presented to the 

jury, the court concluded, Ruegge failed to allege sufficient facts to demonstrate that calling the 

potential witness would have changed the outcome of the case.

Finally, with respect to Ruegge’s claim that his appellate counsel had been ineffective for 

failing to assign error concerning trial counsel’s ineffectiveness related to the trial court’s 

response to a question posed by the jury during deliberations, the district court concluded that 

Ruegge failed to allege sufficient facts demonstrating how the court’s response was incorrect or 

resulted in any prejudice.

Because the district court concluded that Ruegge had failed to allege sufficient facts 

demonstrating any entitlement to relief and that the record affirmatively demonstrated that he 

was entitled to no relief, the court denied postconviction relief, dismissed Ruegge’s motion 

without further hearing, and denied Ruegge’s request for the appointment of counsel. This appeal 

followed.

III. ASSIGNMENTS OF ERROR

On appeal, Ruegge has assigned three errors, in which he challenges the district court’s 

denial of postconviction relief, denial of an evidentiary hearing, and denial of counsel.

IV. ANALYSIS

The Nebraska Postconviction Act provides relief to a convicted prisoner if that prisoner 

can show that his or her conviction was the result of an infringement of the prisoner’s 

constitutional rights. State v. Fernando-Granados, 289 Neb. 348, 854 N.W.2d 920 (2014). 

Postconviction relief may be denied without an evidentiary hearing if (1) the petitioner fails to 

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allege facts supporting a claim of ineffective assistance of counsel or (2) the files and records 

affirmatively show that he or she is entitled to no relief. Id.

Appeals of postconviction proceedings are reviewed independently if they involve a 

question of law. Id. A trial court’s ruling that a petitioner’s allegations are too conclusory is a 

finding as a matter of law that the petitioner has failed to state a claim for postconviction relief. 

Id. 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. Id.

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

law and fact. Id. When reviewing the claim, an appellate court reviews the factual findings of the 

lower court for clear error; however, with regard to the questions of deficient performance and 

prejudice, an appellate court reviews such determinations independently of the lower court’s 

decision. Id.

1. MERITS OF POSTCONVICTION RELIEF

As noted above, Ruegge sought postconviction relief on the basis of asserting that his 

counsel on direct appeal “was ineffective for failing to specifically assign and specifically argue 

the following ineffective assistance of trial counsel claims on direct appeal”: failing to object to 

the characterization of O’Connell as an informant instead of as an accomplice, failing to request 

an accomplice jury instruction, and failing to call a specific witness for the defense. Ruegge also 

asserted that his appellate counsel “was also ineffective for failing to specifically assign as error 

the district court erred in the manner in which it responded to a question posed by the jury during 

deliberations.” We conclude that Ruegge failed to demonstrate that he was entitled to relief on 

any of these allegations of ineffectiveness of trial counsel, and the district court did not err in so 

finding.

In an ineffective assistance of counsel claim, there must be a finding of both deficiency of 

counsel and prejudice to the defendant’s case. State v. Fernando-Granados, supra. To show 

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984), a defendant must show, first, that counsel was deficient and, second, 

that the deficient performance actually caused prejudice to the defendant’s case. State v. 

Fernando-Granados, supra. 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. Id.

Prejudice caused by counsel’s deficiency is shown when there is a reasonable probability 

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

different. State v. Fernando-Granados, 289 Neb. 348, 854 N.W.2d 920 (2014). A reasonable 

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

determination, a court hearing an ineffectiveness claim must consider the totality of the evidence 

before the judge or jury, and taking factual findings unaffected by any error as a given and taking 

due account of the effect of any error on the remaining findings, a court making the prejudice 

inquiry must ask if the defendant has met the burden of showing that the decision reached would 

reasonably likely have been different absent error. See id.

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(a) Characterization of O’Connell

Ruegge first based his request for postconviction relief on an assertion that his appellate 

counsel had been ineffective for failing to specifically assign and argue that trial counsel was 

ineffective for failing to object to the State’s characterization of O’Connell as an informant 

during voir dire, rather than as an accomplice. We agree with the district court that this claim 

lacks merit.

During voir dire, the State informed the prospective jurors that the case being tried 

involved “an informant.” The State, however, also indicated that “there are a lot of names for 

informants,” including “[s]nitch” and “stool pigeon.” The State also told the prospective jurors 

that the State had “promised . . . O’Connell that [it] won’t prosecute him in exchange for his 

truthful testimony” and that “O’Connell will testify that he was present at the burglary and 

actually walked in and took some things himself.” The State also referred to O’Connell as a 

“codefendant.”

On this claim, the district court found that Ruegge had failed to allege sufficient facts to 

demonstrate that trial counsel was ineffective in the first instance. The court concluded that the 

record and files demonstrated that O’Connell was described by the State as an accomplice, even 

if he was not specifically called one, and Ruegge failed to allege sufficient facts to demonstrate 

that his trial counsel had been ineffective for failing to object to the State’s characterizations of 

O’Connell. The court further concluded that Ruegge had failed to allege facts demonstrating that 

the outcome of the proceedings would likely have been different had his counsel objected. We 

agree.

Having agreed that Ruegge failed to demonstrate that his trial counsel was ineffective or 

that there was any prejudice related to the State’s characterization of O’Connell during voir dire, 

we similarly conclude that Ruegge failed to allege any facts demonstrating that his appellate 

counsel was ineffective for not specifically assigning and arguing about this on direct appeal. It 

was not error to deny Ruegge postconviction relief on his allegation.

(b) Accomplice Instruction

Ruegge next based his request for postconviction relief on an assertion that his appellate 

counsel had been ineffective for failing to specifically assign and argue that trial counsel was 

ineffective for not requesting an accomplice jury instruction. We agree with the district court that 

this claim lacks merit.

In our opinion on Ruegge’s direct appeal, we addressed his appellate counsel’s claim that 

trial counsel had been ineffective in a variety of ways. One of the assertions we addressed was 

appellate counsel’s claim that trial counsel had been ineffective “for failing to request a jury 

instruction concerning how the testimony of a ‘co-defendant’ should be ‘interpreted.’” See brief 

for appellant on direct appeal at 19. We specifically concluded that “to the extent that Ruegge is 

asserting that trial counsel should have requested a specific instruction about how the jury is to 

consider the testimony of an accomplice, we find that the record is insufficient to review whether 

counsel was ineffective.” State v. Ruegge, No. A-12-551, 2013 WL 5366332 at *8 (Neb. App. 

July 16, 2013) (selected for posting to court Web site). We concluded that the record was 

insufficient to address whether trial counsel had requested an accomplice jury instruction or, if 

not, why he had not done so or whether not doing so might have been a reasonable trial strategy.

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Ruegge did not make any claims in this postconviction action to assert directly that his 

trial counsel had been ineffective or requesting an evidentiary hearing on matters that we had 

previously held the record insufficient to address. Rather, he specifically alleged in this 

postconviction action that his appellate counsel was ineffective for not specifically raising this 

issue. But appellate counsel did specifically raise this issue, and the records and files of this case 

affirmatively demonstrate that there is no merit to the assertion that appellate counsel failed to 

raise this issue.

The district court specifically held that the record demonstrated that appellate counsel did 

raise the issue on appeal and therefore that Ruegge was entitled to no relief on this claim that 

appellate counsel was ineffective. We agree.

(c) Calling of Witness

Ruegge next based his request for postconviction relief on an assertion that his appellate 

counsel had been ineffective for failing to specifically assign and argue that trial counsel was 

ineffective for not calling a particular witness. We agree with the district court that this claim 

lacks merit.

Ruegge alleged that his trial counsel was ineffective for failing to call an attorney to 

whom O’Connell had made admissions indicating that he had lied to law enforcement when he 

had implicated Ruegge in the crimes at issue at trial. Ruegge alleged that if the attorney had been 

called, he could have testified about whether he or O’Connell had initiated the conversation and 

could have testified to the fact that O’Connell admitted that he lied to investigators concerning 

Ruegge’s involvement. He alleged that the testimony of an attorney would have been more 

reliable than that of a “meth addict who [was] trying to save his own skin.”

The district court noted that at trial, O’Connell had testified on cross-examination about 

the statements that he had made to the attorney. O’Connell had admitted during 

cross-examination that he had told the attorney a number of things, including that he did not 

know who had been involved in the burglary, that he had lied to law enforcement when he 

implicated Ruegge in the burglary, that he had felt coerced into making statements implicating 

Ruegge, and that he had never seen Ruegge burglarize anything.

The testimony that Ruegge has alleged in his motion that could have been presented by 

the attorney was presented in O’Connell’s own testimony. O’Connell admitted to making the 

very statements that Ruegge alleges his trial counsel was ineffective for not calling the attorney 

to testify about. Ruegge has not demonstrated why there was any need to have another witness 

present the same testimony, why failing to present cumulative evidence could be considered 

deficient performance, or how he might have been prejudiced by the failure of trial counsel to 

present such cumulative evidence. We agree with the district court that Ruegge was not entitled 

to postconviction relief on this assertion.

(d) Response to Jury Question

Ruegge finally based his request for postconviction relief on an assertion that his 

appellate counsel had been ineffective for failing to specifically assign as error that the trial court 

had erred in the manner in which it responded to a question posed by the jury during 

deliberations. We agree with the district court that this claim lacks merit.

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We first note that in Ruegge’s postconviction motion he has not presented any indication 

of what question was asked by the jury during deliberations, what answer was given by the trial 

court, or why that answer was erroneous. He merely indicates that because his appellate counsel 

failed to specifically assign this as error, this court “declined to address counsel’s contention 

concerning the answer to the jury’s question on appeal.”

The district court, in the present postconviction proceeding, noted that at trial the jury had 

posed two questions to the court during its deliberations and that Ruegge’s “brief indicates that 

[he] complains about the court’s response to the jury question” concerning the State’s charging 

Ruegge with burglary during the month of October, rather than on a specific date during the 

month. Ruegge’s brief on appeal to this court does not address his assertion that the trial court 

erred in its handling of any jury question or that his appellate counsel had been ineffective for 

failing to raise such an issue.

Ruegge alleged no facts in his postconviction motion to demonstrate that the trial court 

committed any error, that any such error prejudiced him in any way, or that his appellate counsel 

was ineffective in any way related to this matter. His motion does not allege facts from which we 

can even discern what the alleged error by the trial court actually was. We agree with the district 

court that Ruegge was not entitled to postconviction relief on this matter.

(e) Conclusion

As such, we find no error in the district court’s conclusion that with respect to each 

asserted basis for postconviction relief Ruegge failed to allege sufficient facts to demonstrate any 

violation of his constitutional rights or any entitlement to postconviction relief and that the 

record affirmatively demonstrated that he was not entitled to relief. We find no merit to Ruegge’s 

assignment of error that the district court erred in dismissing his motion for postconviction relief.

2. DENIAL OF EVIDENTIARY HEARING

Ruegge also assigns as error the district court’s dismissal of his motion for postconviction 

relief without granting an evidentiary hearing. We find this claim to be without merit.

An evidentiary hearing on a motion for postconviction relief must be granted when the 

motion contains factual allegations which, if proved, constitute an infringement of the movant’s 

rights under the Nebraska or federal Constitution. State v. McGhee, 280 Neb. 558, 787 N.W.2d 

700 (2010). However, if the motion alleges only conclusions of fact or law, or the records and 

files in the case affirmatively show that the movant is entitled to no relief, no evidentiary hearing 

is required. Id.

In this case, the district court held a telephonic hearing. At the commencement of the 

hearing, the court asked the State if it had “[a]ny evidence” to adduce. The State then offered, 

and the court received without objection, Ruegge’s brief on direct appeal and this court’s opinion 

affirming Ruegge’s conviction on direct appeal. The court then asked Ruegge if he had any 

evidence, and Ruegge indicated that he had “[n]one that I can think of.”

As we have concluded above, this is a case where Ruegge’s motion failed to include 

sufficient facts to demonstrate an entitlement to relief and the record affirmatively demonstrated 

that he was not entitled to relief. Thus, we find no error in the district court’s failure to conduct 

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any further evidentiary hearing beyond the opportunity it gave to Ruegge to present evidence and 

which Ruegge failed to avail himself. This assigned error is meritless.

3. DENIAL OF COUNSEL

Finally, Ruegge has assigned as error that the district court erred in denying his request 

for postconviction relief without appointing counsel to represent him. We find no merit to this 

claim.

Under the Nebraska Postconviction Act, it is within the discretion of the trial court as to 

whether counsel shall be appointed to represent the defendant. State v. McGhee, supra. When the 

assigned errors in a postconviction petition before the district court contain no justiciable issues 

of law or fact, it is not an abuse of discretion to fail to appoint counsel. Id.

As we have concluded above, Ruegge’s motion for postconviction relief did not contain 

any justiciable issues of law or fact. Thus, we conclude there was no abuse of discretion by the 

district court in failing to appoint counsel. This assigned error is meritless.

V. CONCLUSION

We find no merit to Ruegge’s appeal. We affirm.

AFFIRMED.

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