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                                                          - 465 -
                               Nebraska Supreme Court Advance Sheets
                                        307 Nebraska Reports
                                                   STATE v. DALTON
                                                   Cite as 307 Neb. 465




                                        State of Nebraska, appellee, v.
                                        John W. Dalton, Jr., appellant.
                                                     ___ N.W.2d ___

                                          Filed October 9, 2020.    No. S-19-1192.

                 1. Effectiveness of Counsel: Appeal and Error. Appellate review of a
                    claim of ineffective assistance of counsel is a mixed question of law and
                    fact. When reviewing a claim of ineffective assistance of counsel, an
                    appellate court reviews the factual findings of the lower court for clear
                    error. With regard to the questions of counsel’s performance or prejudice
                    to the defendant as part of the two-pronged test articulated in Strickland
                    v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
                    an appellate court reviews such legal determinations independently of
                    the lower court’s decision.
                 2. Postconviction: Evidence. In an evidentiary hearing on a motion for
                    postconviction relief, the trial judge, as the trier of fact, resolves con-
                    flicts in the evidence and questions of fact.
                 3. Postconviction: Constitutional Law. Postconviction relief is a very
                    narrow category of relief, available only to remedy prejudicial constitu-
                    tional violations that render the judgment void or voidable.
                 4. Postconviction: Effectiveness of Counsel: Appeal and Error. To
                    establish a right to postconviction relief based on a claim of ineffective
                    assistance of counsel, the defendant has the burden, in accordance with
                    Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
                    674 (1984), to show that counsel’s performance was deficient; that is,
                    counsel’s performance did not equal that of a lawyer with ordinary train-
                    ing and skill in criminal law. Next, the defendant must show that coun-
                    sel’s deficient performance prejudiced the defense in his or her case.
                 5. Postconviction: Effectiveness of Counsel: Presumptions: Appeal and
                    Error. 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 inef-
                    fective, thus entitling the defendant to postconviction relief.
                                      - 466 -
            Nebraska Supreme Court Advance Sheets
                     307 Nebraska Reports
                               STATE v. DALTON
                               Cite as 307 Neb. 465

 6. Effectiveness of Counsel: Appeal and Error. Failing to directly
    appeal when the defendant is silent after being informed of the right
    to appeal and the manner to communicate the desire to appeal is not
    ­analogous to the situation where counsel ignores an express directive by
     the client to file a direct appeal.
 7. Postconviction: Effectiveness of Counsel: New Trial: Appeal and
     Error. When a postconviction motion alleges a claim of ineffective
     assistance based on counsel’s failure to file a direct appeal, which has
     as its relief a new direct appeal, alongside other claims of ineffec-
     tive assist­ance of counsel that request as relief a new trial, the district
     court must first address the claim that counsel was ineffective for fail-
     ing to file a direct appeal, including holding an evidentiary hearing,
     if required.
 8. Effectiveness of Counsel: Final Orders: Appeal and Error. Upon
     reaching its decision on a claim of ineffective assistance based on coun-
     sel’s failure to file a direct appeal, the district court should enter a final
     order on that claim only; only after the resolution of an appeal from the
     order, or, alternatively, the expiration of the defendant’s time to appeal,
     should the district court proceed to consider the remaining claims.
 9. Postconviction: Effectiveness of Counsel: Final Orders: Appeal and
     Error. Addressing and waiting for a final mandate on any claims
     of ineffective assistance of counsel for failing to file a direct appeal
     before addressing other postconviction claims of ineffective assistance
     of counsel serve the interests of judicial economy by preventing the
     district court’s determination of the nondirect appeal claims from being
     rendered meaningless.
10. Postconviction: Final Orders: Appeal and Error. When a district
     court disposes of other postconviction claims before there has been a
     final mandate on a disposition of the postconviction claim requesting a
     new direct appeal, the proper disposition in an appeal from the district
     court’s order is to vacate the district court’s disposition of the additional
     claims and remand the cause for further proceedings.
11. Postconviction: Appeal and Error. A motion for postconviction relief
     cannot be used to secure review of issues which were known to the
     defendant and which were or could have been litigated on direct
     appeal.

  Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Affirmed in part, and in part vacated
and remanded for further proceedings.
   Jerry M. Hug for appellant.
                              - 467 -
         Nebraska Supreme Court Advance Sheets
                  307 Nebraska Reports
                        STATE v. DALTON
                        Cite as 307 Neb. 465

   Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
  Freudenberg, J.
                       NATURE OF CASE
   John W. Dalton, Jr., appeals from an order denying his
motion for postconviction relief following an evidentiary hear-
ing on his claim that trial counsel was ineffective for failing to
file a direct appeal. In the same order, the district court denied
without an evidentiary hearing Dalton’s separate claim of inef-
fective assistance of trial counsel, challenging the voluntariness
of his pleas. For the reasons set forth below, we affirm in part,
and in part vacate and remand for further proceedings.
                         BACKGROUND
    On January 31, 2018, Dalton was charged with seven felo-
nies relating to the deaths of three people. On December 10,
Dalton accepted a plea agreement whereby in exchange for the
State’s agreeing to not seek the death penalty, he pled guilty
to three counts of first degree murder; three counts of using a
firearm to commit a felony; and one count of possession of a
­firearm by a prohibited person, second offense. Dalton entered
 his pleas of guilty. He then waived his right to a presentence
 investigation and requested immediate sentencing. The court
 granted Dalton’s request and sentenced him to three life sen-
 tences for the three counts of first degree murder; three terms
 of 49 to 50 years’ imprisonment for the three counts of an
 illegal use of a firearm; and a term of 50 to 80 years’ impris-
 onment for one count of possession of a firearm by a prohib-
 ited person, second offense. Each sentence was ordered to be
 served consecutively. No direct appeal was filed.
    On April 8, 2019, Dalton filed a timely verified motion
 for postconviction relief in the district court. In his motion,
 Dalton alleged that counsel was ineffective for failing to file a
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         Nebraska Supreme Court Advance Sheets
                  307 Nebraska Reports
                        STATE v. DALTON
                        Cite as 307 Neb. 465

direct appeal when Dalton requested that counsel do so follow-
ing the imposition of his sentences. Dalton also made a claim
of ineffective assistance of counsel based on trial counsel’s
failure to investigate the case. Dalton asserts that he would
not have entered into the plea agreement if his attorney would
have properly investigated his case. Dalton claimed that coun-
sel failed to depose the lone eyewitness and failed to secure
a mental health evaluation for the purposes of establishing
a defense or mitigating evidence to be used in plea negotia-
tions. In addition to the ineffective assistance of counsel claim,
Dalton claimed in his postconviction motion that his sentences
were excessive and constituted cruel and unusual punishment
under the Eighth Amendment to the U.S. Constitution.
   The court ordered an evidentiary hearing on the first claim,
regarding the failure to file a direct appeal. The court ordered
that all other postconviction claims were to remain pending
until after the evidentiary hearing. Depositions from Dalton
and Cindy Tate, Dalton’s trial counsel who was employed by
the Douglas County public defender’s office, were admitted
into evidence at the evidentiary hearing.
   Tate indicated in her deposition that during the 11 months
between when Dalton was charged and his plea hearing, Dalton
was very interested in the case and made multiple requests to
pursue a plea agreement with the State. Tate testified that after
the plea agreement was reached and Dalton was convicted and
sentenced, she verbally advised Dalton of the opportunity to
appeal. Tate testified that after the sentencing on December 10,
2018, Dalton did not request that a direct appeal be filed. She
also sent him a standard form letter, which advised him of his
right to appeal and how to contact her. This letter was admitted
at the postconviction evidentiary hearing.
   Tate testified that she did not receive any written com-
munication from Dalton indicating a desire to appeal. Tate
also testified that Dalton did not request a direct appeal dur-
ing any of the conversations she had with him. Tate testified
that 2 days after the sentencing, Dalton left a voicemail at the
                               - 469 -
          Nebraska Supreme Court Advance Sheets
                   307 Nebraska Reports
                         STATE v. DALTON
                         Cite as 307 Neb. 465

public defender’s office. In the voicemail, Dalton complained
about what the prosecutor’s office had said when talking pub-
licly about his convictions, but he did not indicate a desire
to appeal.
   Dalton testified in his deposition that he wrote a letter to Tate
requesting a direct appeal. Dalton claims this letter was given
to a guard to be placed in the mail at the Douglas County jail
on the evening of December 12, 2018. Dalton did not proffer
the alleged letter or the guard’s testimony. Dalton indicated in
his deposition that Tate had made him aware that if he entered
pleas of guilty, he would be giving up many of the issues that
could be raised on appeal. He also admitted that when verbally
discussing the plea agreement with Tate, he did not indicate to
her that he wanted to appeal.
   Following the hearing, the district court entered an order
denying Dalton’s motion as to the direct appeal claim. In the
same order, the court denied without an evidentiary hear-
ing “any remaining issues in the postconviction.” The court
explained in this regard that “the motion fails to state suf-
ficient facts regarding counsel being deficient or showing
prejudice, which would require facts showing [Dalton] would
have insisted on going to trial and not accept the plea offer.”
Dalton appeals.
                 ASSIGNMENTS OF ERROR
   Dalton assigns that the district court erred in (1) determin-
ing that Dalton was not entitled to reinstatement of his direct
appeal due to trial counsel’s ineffective assistance and (2) fail-
ing to grant an evidentiary hearing on Dalton’s claim that his
pleas were not knowingly and voluntarily made where counsel
was ineffective for failing to fully investigate the case prior to
advising him to enter pleas of guilty.
                  STANDARD OF REVIEW
   [1] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. When review-
ing a claim of ineffective assistance of counsel, an appellate
                                    - 470 -
            Nebraska Supreme Court Advance Sheets
                     307 Nebraska Reports
                             STATE v. DALTON
                             Cite as 307 Neb. 465

court reviews the factual findings of the lower court for clear
error. With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington, 1 an appellate court
reviews such legal determinations independently of the lower
court’s decision. 2
   [2] In an evidentiary hearing on a motion for postconviction
relief, the trial judge, as the trier of fact, resolves conflicts in
the evidence and questions of fact. 3
                           ANALYSIS
   The district court determined that Dalton was entitled to an
evidentiary hearing on his posconviction claim that counsel
was ineffective for failing to file a direct appeal. 4 The court
ultimately found that trial counsel was not deficient in failing
to file a direct appeal that was not requested, and we hold that
those findings were not clearly erroneous. However, the district
court in the same order also addressed and disposed of the
remaining postconviction claims on the ground that the motion
alleged insufficient facts. In State v. Determan, 5 we held that
there must be a final mandate on the court’s disposition of a
postconviction claim of ineffective assistance for failing to file
a direct appeal before the court addresses other postconviction
ineffective assistance of counsel claims. In accordance with
Determan, we vacate the part of the order denying Dalton’s
second ineffective assistance claim and remand the cause for
further proceedings. We affirm the court’s ruling as to Dalton’s
claim of excessive sentences for the reason that such claim,
which was stated apart from any claim of ineffective assist­
ance, is procedurally barred.
1
    Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
    (1984).
2
    State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).
3
    State v. Beehn, 303 Neb. 172, 927 N.W.2d 793 (2019).
4
    See Neb. Rev. Stat. § 29-3001 et seq. (Reissue 2016).
5
    State v. Determan, 292 Neb. 557, 873 N.W.2d 390 (2016).
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            Nebraska Supreme Court Advance Sheets
                     307 Nebraska Reports
                            STATE v. DALTON
                            Cite as 307 Neb. 465

   [3-5] Postconviction relief is a very narrow category of
relief, available only to remedy prejudicial constitutional viola-
tions that render the judgment void or voidable. 6 To establish
a right to postconviction relief based on a claim of ineffective
assistance of counsel, the defendant has the burden, in accord­
ance with Strickland, 7 to show that counsel’s performance
was deficient; that is, counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. Next, the defendant must show that counsel’s deficient
performance prejudiced the defense in his or her case. 8 After a
trial, conviction, and sentencing, if counsel deficiently fails to
file or perfect an appeal after being so directed by the crimi-
nal defendant, prejudice will be presumed and counsel will be
deemed ineffective, thus entitling the defendant to postconvic-
tion relief. 9
   The evidentiary hearing provided Dalton with the opportu-
nity to present evidence that he directed Tate to file an appeal.
The court found that Dalton was informed of his right to appeal
and had not directed Tate to file an appeal. Upon review of the
record, we cannot say that the district court clearly erred in
these findings.
   Dalton testified in his deposition that he wrote a letter
approximately 2 days after his sentencing and left it with a
guard to be mailed to Tate. But Dalton was unable to provide
any details or other evidence to corroborate that a letter was
sent to Tate. Tate testified that no one at the public defender’s
office received a letter from Dalton.
   Tate testified further that she was never instructed by Dalton
to file an appeal, despite the fact that she clearly explained
his opportunity to appeal and sent him a formal letter explain-
ing that right and how to contact her. The letter was entered
6
    State v. Beehn, supra note 3.
7
    Strickland v. Washington, supra note 1.
8
    State v. Beehn, supra note 3.
9
    State v. Hessler, 295 Neb. 70, 886 N.W.2d 280 (2016); State v. Dunkin,
    283 Neb. 30, 807 N.W.2d 744 (2012).
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             Nebraska Supreme Court Advance Sheets
                      307 Nebraska Reports
                              STATE v. DALTON
                              Cite as 307 Neb. 465

as an exhibit at the evidentiary hearing. Dalton claims that he
had limited access to communicate with Tate, but he does not
contest that he sent a voicemail to Tate approximately 2 days
after sentencing and did not therein request a direct appeal.
Dalton did not deny he had been informed by Tate of his right
to appeal.
   The district court indicated in its order that it found Tate
to be the more credible witness. In an evidentiary hearing for
postconviction relief, the postconviction trial judge, as the trier
of fact, resolves conflicts in evidence and questions of fact,
including witness credibility and the weight to be given a wit-
ness’ testimony. 10
   We agree with the district court that Tate was not inef-
fective for failing to file an appeal that was not requested.
Dalton argues that it is deficient conduct for trial counsel to
fail to obtain from the client an explicit directive as to the
desire to pursue or not pursue a direct appeal and that under
such circumstances, prejudice should be presumed and a new
direct appeal ordered. According to Dalton, such a rule is
appropriate in light of the often limited access of defendants to
their counsel.
   [6] We decline to place such a burden on counsel. It is
simply not under defense counsel’s power to force a client
to provide an explicit response to inquiries regarding the cli-
ent’s right to appeal. Furthermore, we disagree that prejudice
should be presumed in the same manner that it is presumed
when counsel has been directed to file an appeal. 11 Failing
to directly appeal when the defendant is silent after being
informed of the right to appeal and the manner to communi-
cate the desire to appeal is not analogous to the situation where
counsel ignores an express directive by the client to file a
direct appeal. 12
10
     State v. Benzel, 269 Neb. 1, 689 N.W.2d 852 (2004).
11
     See State v. Hessler, supra note 9.
12
     See, id; State v. Wagner, 271 Neb. 253, 710 N.W.2d 627 (2006).
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             Nebraska Supreme Court Advance Sheets
                      307 Nebraska Reports
                               STATE v. DALTON
                               Cite as 307 Neb. 465

   The Sixth Amendment to the U.S. Constitution provides
that in all criminal proceedings, the accused shall have the
right to the assistance of counsel in his or her defense. 13 The
U.S. Supreme Court has also determined that a defendant has
a fundamental due process right to access the courts and to
communicate with his or her legal counsel. 14 But Dalton did
not make a postconviction claim based on an alleged depriva-
tion of his right to access the court or to communicate with
counsel. As found by the district court, Dalton had several
opportunities after sentencing to communicate to Tate that
he wanted an appeal, including a telephone call to the public
defender’s office.
   We agree with the district court that Tate’s failure to elicit
an explicit directive from Dalton one way or the other was not
ineffective assistance of counsel. We are unwilling to place an
increased burden on trial counsel to go beyond informing a
defendant of the right to appeal and how counsel may be con-
tacted to request that an appeal be filed. The responsibility for
requesting an appeal remains with the defendant. On Dalton’s
claim of ineffective assistance of counsel for failure to file a
direct appeal, we affirm the district court’s denial of postcon-
viction relief.
   [7,8] However, precedent requires we vacate that part of
the district court’s order disposing of Dalton’s postconvic-
tion ineffective assistance claim that Tate provided ineffective
assistance of counsel by failing to depose the lone eyewit-
ness or secure a mental health evaluation for the purposes
of establishing a defense or mitigating evidence to be used
in plea negotiations. When a postconviction motion alleges a
claim of ineffective assistance based on counsel’s failure to
file a direct appeal, which has as its relief a new direct appeal,
alongside other claims of ineffective assistance of counsel
13
     See State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated
     on other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
14
     See, Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 135 L. Ed. 2d 606
     (1996); Ex parte Hull, 312 U.S. 546, 61 S. Ct. 640, 85 L. Ed. 1034 (1941).
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             Nebraska Supreme Court Advance Sheets
                      307 Nebraska Reports
                              STATE v. DALTON
                              Cite as 307 Neb. 465

that request as relief a new trial, the district court must first
address the claim that counsel was ineffective for failing to
file a direct appeal, including holding an evidentiary hearing,
if required. 15 Upon reaching its decision, the district court
should enter a final order on that claim only. 16 If the claim for
a new direct appeal is denied, a defendant should be permit-
ted to appeal that denial. 17 Only after the resolution of that
appeal, or, alternatively, the expiration of the defendant’s time
to appeal, should the district court proceed to consider the
remaining claims. 18
   [9] As we explained in Determan, addressing and waiting
for a final mandate on any claims of ineffective assistance of
counsel for failing to file a direct appeal before addressing
other postconviction claims of ineffective assistance of coun-
sel serve the interests of judicial economy by preventing the
district court’s determination of the nondirect appeal claims
from being rendered meaningless. 19 For, if a new direct appeal
were ultimately granted on the postconviction claims related to
counsel’s failure to timely file a direct appeal, then any other
claims of ineffective assistance of counsel could be raised
in the new direct appeal rather than through a postconvic-
tion procedure. 20
   [10] We held in Determan that when a district court fails
to follow this directive and disposes of other postconviction
claims before there has been a final mandate on a disposition
of the postconviction claim requesting a new direct appeal, the
proper disposition in an appeal from the district court’s order
is to vacate the district court’s disposition of the additional
15
     See State v. Determan, supra note 5.
16
     Id.
17
     Id.
18
     Id.
19
     See id.
20
     See id.
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             Nebraska Supreme Court Advance Sheets
                      307 Nebraska Reports
                             STATE v. DALTON
                             Cite as 307 Neb. 465

claims and remand the cause for further proceedings. 21 Thus
we do so here. Dalton’s assignment of error regarding his sec-
ond postconviction claim is thereby rendered moot. We do not
address whether the trial court correctly found that Dalton had
failed to allege sufficient facts to warrant an evidentiary hear-
ing on this second claim.
   Dalton does not assign as error the court’s denial of his post-
conviction claim based on an alleged violation of the Eighth
Amendment prohibition against cruel and unusual punishment,
but we note for the sake of completeness that the court’s order
disposing of this claim does not fall under Determan. Thus, we
do not vacate the court’s order insofar as it denied the Eighth
Amendment claim without an evidentiary hearing.
   Dalton did not make such a claim as part of an allegation
of ineffective assistance of counsel. Determan addresses only
claims of ineffective assistance of counsel. Such claims, by
virtue of the absence of a direct appeal with new counsel,
are not procedurally barred. In such circumstances, it serves
judicial economy to require that these claims be addressed
in a new direct appeal if such a direct appeal is ultimately
ordered. Vacating the order and remanding the cause for fur-
ther proceedings on such ineffective assistance claims, to be
held only if a final mandate denies a new direct appeal, serve
judicial economy.
   [11] A postconviction claim that the sentence was uncon-
stitutionally excessive, however, is procedurally barred by the
failure to directly appeal. A motion for postconviction relief
cannot be used to secure review of issues which were known
to the defendant and which were or could have been litigated
on direct appeal. 22 And while an excessive sentence claim
could be raised in any new direct appeal ordered on an inef-
fective assistance claim based on a failure to appeal, this does
not change the fact that as a stand-alone postconviction claim
21
     See id.
22
     State v. Moore, 272 Neb. 71, 718 N.W.2d 537 (2006).
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         Nebraska Supreme Court Advance Sheets
                  307 Nebraska Reports
                        STATE v. DALTON
                        Cite as 307 Neb. 465

where there has been no original direct appeal, an excessive
sentence claim is procedurally barred. It would therefore not
serve the interests of judicial economy to vacate the court’s
denial of such excessive sentence claim and remand the cause
for further proceedings.

                         CONCLUSION
   We affirm the district court’s denial of Dalton’s ineffective
assistance claim concerning his direct appeal. The portion of
the district court’s order denying Dalton’s claim of ineffec-
tive assistance of counsel related to ineffective assistance for
failure to investigate is vacated and the cause is remanded for
further proceedings.
               Affirmed in part, and in part vacated and
               remanded for further proceedings.