State v. Thomas, 262 Neb. 138

Summary

The Supreme Court of Nebraska affirmed the denial of Rickey R. Thomas' motion for postconviction relief. The court held that his prosecution and conviction for possession with intent to deliver were not barred by double jeopardy because jeopardy attached in the criminal case when he pleaded guilty before evidence was presented in the related forfeiture proceeding. The court also rejected his ineffective-assistance claim and upheld the denial of postconviction counsel and an evidentiary hearing.

Holdings

1. The criminal prosecution was not barred by double jeopardy because jeopardy attached in the criminal case when the court accepted Thomas's guilty plea on August 14, before evidence was presented in the forfeiture proceeding on August 25. The later forfeiture proceeding could be constitutionally endangered as the subsequent proceeding, but it could not retroactively bar the earlier criminal conviction.
2. Thomas failed to establish ineffective assistance of counsel because he was not prejudiced by counsel's failure to file a plea in bar; such a filing would not have resulted in dismissal of the possession charge.
3. The court would not consider Thomas's arguments that counsel was ineffective for failing to respond to the forfeiture action or plead not guilty, or that the forfeiture judgment should be overturned, because those arguments were not presented to or decided by the district court.
4. The district court did not err in denying postconviction counsel or an evidentiary hearing because Thomas's allegations and arguments did not establish a meritorious constitutional claim.

Questions Presented

1. Whether Thomas was entitled to postconviction relief because prosecution and sentencing on the possession-with-intent-to-deliver conviction violated the Double Jeopardy Clauses of the Fifth Amendment and the Nebraska Constitution.
2. Whether trial counsel rendered ineffective assistance by failing to file a plea in bar based on double jeopardy.
3. Whether the district court erred by denying postconviction counsel and by denying an evidentiary hearing.
4. Whether arguments first raised on appeal concerning counsel's failure to respond to the forfeiture action and the validity of the forfeiture could be considered.

Disposition

affirmed