State v. Sims

761 N.W.2d 527, 277 Neb. 192
CourtNebraska Supreme Court
DecidedFebruary 20, 2009
DocketS-08-432
StatusPublished
Cited by100 cases

This text of 761 N.W.2d 527 (State v. Sims) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sims, 761 N.W.2d 527, 277 Neb. 192 (Neb. 2009).

Opinion

761 N.W.2d 527 (2009)
277 Neb. 192

STATE of Nebraska, appellee,
v.
Michael J. SIMS, appellant.

No. S-08-432.

Supreme Court of Nebraska.

February 20, 2009.

*530 Michael J. Sims, pro se.

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

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF THE CASE

This case involves appeals by Michael J. Sims from two different rulings which we have combined in one opinion. The first ruling pertains to Sims' second motion for postconviction relief. The second ruling pertains to a sentence-related motion for an order nunc pro tunc which Sims filed in his original criminal case.

With respect to the second postconviction motion, the district court for Douglas County denied Sims' motion to alter or amend the district court's judgment which had denied his second motion for postconviction relief. After a jury trial, Sims was found guilty of the charges in a four-count information: count I, murder in the first degree; count II, use of a deadly weapon to commit a felony; count III, attempted murder in the first degree; and count IV, use of a deadly weapon to commit a felony. This court affirmed the convictions in State v. Sims, 258 Neb. 357, 603 N.W.2d 431 (1999) (Sims I). This court also affirmed the denial of Sims' first postconviction motion in State v. Sims, 272 Neb. 811, 725 N.W.2d 175 (2006) (Sims II). In his second postconviction motion, Sims claims that he received ineffective assistance of counsel at trial and on appeal and that there was insufficient evidence to convict him.

In a separate motion filed in district court in the original criminal case, Sims asked the district court for an order nunc pro tunc to correct a discrepancy between the sentence that was orally pronounced on count III, attempted murder, and the written sentence on count III in a journal entry titled "Judgment and Sentence."

The district court denied both motions. Sims appeals each of these rulings. We affirm the denial of relief related to Sims' second postconviction motion, reverse the order denying his motion for an order nunc pro tunc, and remand with directions.

STATEMENT OF FACTS

After a jury trial, Sims was found guilty of murder in the first degree, attempted murder in the first degree, and two counts of use of a deadly weapon to commit a felony. On November 24, 1998, the district court for Douglas County pronounced Sims' sentences as life in prison for count I, murder; 10 to 12 years in prison for count II, use of a deadly weapon to commit a felony; 10 to 25 years in prison for count III, attempted murder; and 10 to 12 years in prison for count IV, use of a deadly weapon to commit a felony. However, the written journal entry titled "Judgment and Sentence" states that with respect to count III, attempted murder, Sims was sentenced to 20 to 25 years in prison, rather than 10 to 25 years as had been orally pronounced.

Sims appealed his convictions and sentences to this court. On direct appeal in Sims I, Sims argued that the evidence was insufficient to sustain his convictions, that the trial court erred in not granting his motion for a new trial, and that it was plain error for the trial court not to instruct the jury on self-defense or on uncorroborated accomplice testimony. *531 Sims also argued that he received ineffective assistance of trial counsel based on his trial counsel's failure to (1) move for discharge due to alleged violations of his right to speedy trial under state statutes and the state and federal Constitutions, (2) request a jury instruction regarding uncorroborated accomplice testimony, and (3) request a jury instruction on the issue of self-defense. On direct appeal, Sims' counsel was different from his trial counsel.

In Sims I, this court determined that the record afforded an insufficient basis upon which to resolve Sims' claims of ineffective assistance of trial counsel and declined to review the issue on direct appeal. On the remaining claims, the court affirmed Sims' sentences and convictions.

After this court's disposition in Sims I, Sims filed a verified motion for postconviction relief alleging claims of ineffective assistance of counsel. After holding an evidentiary hearing on Sims' claims, the district court denied Sims' motion, concluding that Sims failed to show that his counsel's performance was constitutionally deficient.

In Sims II, Sims appealed the district court's denial of his first motion for postconviction relief to this court, and on postconviction appeal, Sims claimed that his trial counsel was ineffective for (1) failure to file a motion for discharge on statutory and constitutional speedy trial grounds and (2) failure to assert an objection under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). He also claimed as error the failure of the postconviction trial judge to recuse himself. In Sims II, Sims did not argue a claim of ineffective assistance of appellate counsel on direct appeal. In Sims II, this court upheld the district court's denial of Sims' first motion for postconviction relief.

On April 2, 2007, Sims filed a petition for a writ of habeas corpus in the U.S. District Court for the District of Nebraska. Sims v. Houston, 562 F.Supp.2d 1066 (D.Neb. 2008). In his petition, Sims argued that he received ineffective assistance of trial and appellate counsel. Id. On May 21, 2008, the federal district court entered an order denying Sims' petition, finding that with the exception of his ineffective assistance of counsel claims based on his right to speedy trial, all of his claims were procedurally defaulted because he did not exhaust his remedies in state court prior to bringing the claims in his federal habeas action. Id. Furthermore, with respect to the speedy trial claim, the federal district court concluded that Sims' trial counsel was not ineffective for seeking additional time to prepare. Id.

On June 29, 2007, Sims filed a second motion for postconviction relief in the district court for Douglas County. That motion alleges that Sims' trial counsel was ineffective on the following grounds, which we quote:

[C]ounsel: (1) failed to object, motion to strike, motion for mistrial, request curative instruction and preserve for appellate review that trial court committed plain error by reading instructions to jury prior to final argument; (2) failed to object, motion to strike, motion for mistrial, request curative instruction and preserve for appellate review prosecutor's variance to alternative theory that [Sims] assisted perpetrator of crime of Murder in the First Degree; (3) failed to object, motion to strike, request curative instruction and preserve for appellate review failure to give adequate notice of alternative theory that [Sims] only assisted perpetrator of crime of Murder in the First Degree; (4) failed to object, request proper instruction, and preserve for appellate review request that Instruction 5 instruct only as *532

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Cite This Page — Counsel Stack

Bluebook (online)
761 N.W.2d 527, 277 Neb. 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sims-neb-2009.