S-20-0335 State of Nebraska v. Patrick J. Combs (Appellant)
Lancaster County District Court, Hon. Robert R. Otte
Attorneys: Candice C. Wooster (Brennan & Nielsen Law Offices, P.C., for Appellant) and Austin N. Relph (Office of the Attorney General, for Appellee)
Criminal procedure: Postconviction relief; Ineffective assistance of counsel; Duties of trial counsel; Constructive notice of desire to appeal
Proceedings below: Appellant filed a motion for postconviction relief on June 11, 2019, asserting that he was denied his right to appeal his conviction and sentence and his right to effective assistance of counsel at the direct appeal stage of the proceedings due to the negligence of his trial counsel. Appellant was convicted of theft by unlawful taking and abuse of a vulnerable adult on March 15, 2018. He requested that his counsel file an appeal, but his counsel failed to timely do so. Appellant’s opportunity to file a direct appeal expired on June 13, 2018. Appellant’s motion for postconviction relief was denied by the district court, which held that Appellant did not expressly request that his trial counsel file an appeal, and that his trial counsel did not have a duty to communicate with him prior to the appeal deadline to determine whether Appellant wanted to appeal.
Issues on Appeal: Whether 1) Appellant received ineffective assistance of counsel when trial counsel failed to timely file a notice of appeal as requested by Appellant; 2) the district court erred by finding that Appellant’s trial counsel had no duty to follow-up regarding his desire to appeal; and 3) Appellant’s trial counsel was not put on constructive notice of Appellant’s desire to appeal by receipt of a $5,000 payment from Appellant.