Summary
The Nebraska Supreme Court reviewed Patrick J. Combs’ claim that trial counsel was ineffective for failing to file a direct appeal after his convictions and sentencing. The court held that counsel had consulted with Combs about an appeal, but the evidence supported the district court’s finding that Combs had not expressly instructed counsel to file one. The court affirmed the denial of postconviction relief.
Topics
Practice areas
Questions Presented
- Whether trial counsel provided ineffective assistance by failing to file a direct appeal after allegedly being instructed to do so.
- Whether counsel was ineffective for failing to follow up with Combs to obtain an express decision about filing an appeal.
- Whether Combs's payment of $5,000 for a potential appeal constituted an express instruction requiring counsel to file the appeal.
Holdings
- Counsel's failure to file an appeal after receiving the defendant's specific instruction to do so constitutes deficient performance, and prejudice is presumed; however, the district court did not clearly err in finding that Combs had not given counsel an express instruction to appeal.
- When a defendant has not conveyed an express decision to appeal or not appeal, counsel must consult with the defendant by advising about the advantages and disadvantages of an appeal and making a reasonable effort to discover the defendant's wishes, but counsel is not required to force the defendant to provide an explicit response.
- The payment of $5,000 did not constitute an express instruction to file a direct appeal under the facts of this case.
- Combs was not entitled to postconviction relief because he failed to establish constitutionally deficient performance by counsel.
Key quotations
“After a trial, conviction, and sentencing, if counsel deficiently fails to file or perfect an appeal after being so directed by the criminal defendant, prejudice will be presumed and counsel will be deemed ineffective, thus entitling the defendant to postconviction relief.” (592)
“Where the defendant has not conveyed his or her intent with respect to an appeal either way, it must first be determined whether trial counsel consulted with the defendant about the appeal before a determination can be made about deficient performance.” (592-93)
“It was Combs’ responsibility to request that Creager file an appeal.” (595)
Factual background
Combs was convicted in March 2018 of theft by unlawful taking, attempted theft by unlawful taking, and abuse of a vulnerable adult, and was sentenced to five years' probation on May 14, 2018. He and trial counsel discussed a possible appeal, including fees and the appeal process, but their accounts differed as to whether Combs expressly directed counsel to file an appeal during a June 8 telephone call. Counsel testified that he asked Combs to provide a decision by June 11 and received no further instruction before the appeal deadline. Combs later argued that a $5,000 payment and his communications constituted an instruction to appeal.
Procedural history
Combs was convicted and sentenced to probation in the district court, and no direct appeal was filed. He later sought postconviction relief, alleging ineffective assistance based on counsel's failure to file an appeal. After an evidentiary hearing, the district court credited counsel's testimony, found that Combs had not expressly directed counsel to appeal, and denied relief. The Nebraska Supreme Court affirmed.