State v. Sanders

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amount of time,” that Gabriella deserved permanency sooner
rather than later, and that Gabriella “needs to get out of the
foster care system.” We conclude the juvenile court did not err
in finding that termination of Ricardo’s parental rights was in
Gabriella’s best interests.

                       CONCLUSION
   Upon our de novo review, we conclude that the State
proved by clear and convincing evidence that Ricardo aban-
doned Gabriella and that termination of his parental rights
was in Gabriella’s best interests. We reverse the decision of
the Court of Appeals, and we remand the cause to the Court
of Appeals with direction to affirm the judgment of the juve-
nile court.
                    R eversed and remanded with direction.



                      State of Nebraska, appellee, v.
                       Ricky J. Sanders, appellant.
                                    ___ N.W.2d ___

                       Filed October 24, 2014.     No. S-13-901.

 1.	 Postconviction: Constitutional Law: Appeal and Error. In appeals from post-
      conviction proceedings, an appellate court reviews de novo a determination that
      the defendant failed to allege sufficient facts to demonstrate a violation of his or
      her constitutional rights or that the record and files affirmatively show that the
      defendant is entitled to no relief.
 2.	 Postconviction: Constitutional Law: Proof. The Nebraska Postconviction Act,
      

 et seq. (Reissue 2008 & Cum. Supp. 2012), provides
      that postconviction relief is available to a prisoner in custody under sentence
      who seeks to be released on the ground that there was a denial or infringement
      of his constitutional rights such that the judgment was void or voidable. Thus,
      in a motion for postconviction relief, the defendant must allege facts which, if
      proved, constitute a denial or violation of his or her rights under the U.S. or
      Nebraska Constitution, causing the judgment against the defendant to be void
      or voidable.
  3.	 ____: ____: ____. A court must grant an evidentiary hearing to resolve the claims
      in a postconviction motion when the motion contains factual allegations which, if
      proved, constitute an infringement of the defendant’s rights under the Nebraska
      or federal Constitution. If a postconviction motion alleges only conclusions of
      fact or law, or if the records and files in the case affirmatively show that the
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336	289 NEBRASKA REPORTS


        defendant is entitled to no relief, the court is not required to grant an eviden-
        tiary hearing.
 4.	    Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance
        of counsel claim alleges a violation of the fundamental constitutional right to a
        fair trial.
 5.	    Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of
        ineffective assistance of counsel under Strickland v. Washington, 

,
        

, 

 (1984), the defendant must show that his or her
        counsel’s performance was deficient and that this deficient performance actually
        prejudiced the defendant’s defense. A court may address the two prongs of this
        test, deficient performance and prejudice, in either order.
 6.	    Constitutional Law: Criminal Law: Effectiveness of Counsel. The federal
        Constitution guarantees criminal defendants only a fair trial and a competent
        attorney. It does not ensure that defense counsel will recognize and raise every
        conceivable constitutional claim.
 7.	    Effectiveness of Counsel. The failure to anticipate a change in existing law does
        not constitute deficient performance.
 8.	    ____. Counsel’s failure to raise novel legal theories or arguments or to make
        novel constitutional challenges in order to bring a change in existing law does not
        constitute deficient performance.
 9.	    Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
        Cause. A traffic violation, no matter how minor, creates probable cause for an
        officer to stop the driver of a vehicle.
10.	    Investigative Stops: Police Officers and Sheriffs: Probable Cause. If an offi-
        cer has probable cause to stop a violator, the stop is objectively reasonable and
        any ulterior motivation is irrelevant.
11.	    Search and Seizure: Motor Vehicles: Police Officers and Sheriffs: Arrests:
        Evidence. Police may search a vehicle incident to a recent occupant’s arrest only
        if the arrestee is within reaching distance of the passenger compartment at the
        time of the search or it is reasonable to believe the vehicle contains evidence of
        the offense of arrest.

  Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.

       Jerry L. Soucie for appellant.

       Ricky J. Sanders, pro se.

  Jon Bruning, Attorney General, George R. Love, and James
D. Smith for appellee.

  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Miller-Lerman, JJ., and Bishop, Judge.
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    Miller-Lerman, J.
                       NATURE OF CASE
   Ricky J. Sanders appeals the order of the district court for
Douglas County denying his motion for postconviction relief
without an evidentiary hearing. Sanders had been convicted of
discharging a firearm at a dwelling while in or near a motor
vehicle, in violation of 

 (Cum.
Supp. 2012), and using a firearm to commit a felony. He
contends that an evidentiary hearing should have been held
on his ineffective assistance of counsel claims in which he
asserted that trial counsel was deficient for failing to challenge
the constitutionality of § 28-1212.04 and for failing to move
to suppress evidence obtained from the stop and search of
his vehicle.
   Because counsel could not have been deficient for failing
to raise a novel constitutional challenge to § 28-1212.04, the
court did not err when it rejected Sanders’ claim of ineffective
counsel on this basis. We further conclude that the court did
not err when it determined that the record showed that Sanders
was not entitled to relief on his claim that counsel was defi-
cient for failing to move to suppress evidence obtained from
the stop and search of his vehicle. We therefore affirm the
denial of Sanders’ postconviction motion.

                   STATEMENT OF FACTS
   Sanders was convicted of discharging a firearm, in violation
of § 28-1212.04, and a related charge of use of a firearm to
commit a felony. The evidence at trial indicated that Sanders
was the driver and one of two persons inside a vehicle from
which gunshots were fired at a house in Omaha on May 21,
2011. The evidence included bullets and a shell casing that
were found in a search of Sanders’ vehicle. The jury was given
an aiding and abetting instruction.
   The evidence shows that police officers who responded
to 911 emergency dispatch calls of shots being fired from a
vehicle followed Sanders’ vehicle because it met the descrip-
tion of the suspect vehicle. At one point, Sanders’ vehicle vio-
lated traffic laws, but police awaited backup before stopping
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the vehicle. The officers coordinated with other officers to
block Sanders’ vehicle. Following the stop, Sanders and his
passenger were taken into custody. Officers standing near the
vehicle saw numerous bullets inside the vehicle in plain view.
An officer searched the vehicle and found over 30 bullets and
a spent casing.
   Sanders appealed his convictions to the Nebraska Court of
Appeals, claiming that there was not sufficient evidence to
support his convictions and that the district court had imposed
excessive sentences. Sanders was represented by attorneys
from the Douglas County public defender’s office both at trial
and on appeal. In case No. A-12-050, the Court of Appeals
overruled Sanders’ motions to remove counsel and appoint new
counsel, and on July 9, 2012, the Court of Appeals summarily
affirmed Sanders’ convictions and sentences.
   Sanders filed a pro se motion for postconviction relief. He
asserted several layered claims of ineffective assistance of
trial counsel and appellate counsel. Among the claims Sanders
asserted in his 59-page motion were claims that counsel was
ineffective for failing to challenge the constitutionality of
§ 28-1212.04 and that counsel was ineffective for failing
to move to suppress evidence obtained from the warrantless
search of his vehicle.
   Section 28-1212.04, to which Sanders’ constitutional argu-
ment is directed, was enacted in 2009 and amended in 2010.
The statute is titled “Discharge of firearm in certain cities and
counties; prohibited acts; penalty” and provides as follows:
         Any person, within the territorial boundaries of any
      city of the first class or county containing a city of
      the metropolitan class or primary class, who unlawfully,
      knowingly, and intentionally or recklessly discharges a
      firearm, while in any motor vehicle or in the proximity
      of any motor vehicle that such person has just exited, at
      or in the general direction of any person, dwelling, build-
      ing, structure, occupied motor vehicle, occupied aircraft,
      inhabited motor home as defined in section 71-4603, or
      inhabited camper unit as defined in section 60-1801, is
      guilty of a Class IC felony.
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   With regard to the constitutional challenge, Sanders asserted
in his postconviction motion that § 28-1212.04 violates Neb.
Const. art. III, § 18, which prohibits the enactment of “local or
special laws.” He argued that the statute was facially uncon-
stitutional as a local law because it applies only in certain cit-
ies and counties in the State and it therefore targets only the
citizens of those cities and counties. He also argued that, as
applied, the statute violated constitutional guarantees of equal
protection because it targeted those areas that contain 95 per-
cent of the State’s African-American population.
   With regard to the motion to suppress, Sanders asserted in
his postconviction motion that the stop of his vehicle was not
proper and that under the Fourth Amendment, the subsequent
warrantless search of his vehicle was an illegal search. He
argued that trial counsel should have moved to suppress evi-
dence obtained from the search of the vehicle.
   The district court denied Sanders’ motion for postconviction
relief without an evidentiary hearing and without appointing
counsel. In the order denying postconviction relief, the court
stated that Sanders “failed to show how he was prejudiced
by his attorney’s failure to [challenge the constitutionality
of § 28-1212.04], or how the statute in question is somehow
unconstitutional.” The court further stated that Sanders’ other
claims of ineffective assistance were “conclusory, . . . refuted
by the record, and . . . not pleaded in enough detail to war-
rant an evidentiary hearing.” The court concluded that Sanders
had “not alleged sufficient facts . . . which, if proved, would
establish a reasonable probability that the outcome of his case
would have been different but for his trial counsel’s alleged
deficient performance.” The court therefore denied postcon-
viction relief without an evidentiary hearing and without
appointing counsel.
   Sanders appeals the denial of his postconviction motion.
                ASSIGNMENTS OF ERROR
   Sanders claims, restated, that the district court erred when
it denied postconviction relief without an evidentiary hearing
on his claims that counsel was deficient for (1) failing to chal-
lenge the constitutionality of § 28-1212.04 and (2) failing to
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file a motion to suppress evidence obtained from the warrant-
less search of his vehicle.

                   STANDARD OF REVIEW
   [1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirma-
tively show that the defendant is entitled to no relief. State v.
Dragon, 

, 

 (2014).

                           ANALYSIS
   As an initial matter, we note that although Sanders asserted
numerous claims of ineffective assistance of counsel in his
postconviction motion, on appeal, he assigns error to the
district court’s denial of only two claims of ineffective assist­
ance of counsel: failure to challenge the constitutionality
of § 28-1212.04 and failure to move to suppress evidence.
The district court’s denial of Sanders’ remaining claims
is affirmed.
   Sanders’ assignments of error on appeal relate to claims of
ineffective assistance of counsel. We therefore review general
propositions relating to postconviction and ineffective assist­
ance of counsel claims before applying those propositions to
the claims asserted by Sanders in this appeal.
   [2] The Nebraska Postconviction Act, 

 et seq. (Reissue 2008 & Cum. Supp. 2012), provides
that postconviction relief is available to a prisoner in custody
under sentence who seeks to be released on the ground that
there was a denial or infringement of his constitutional rights
such that the judgment was void or voidable. State v. 

 Thus, in a motion for postconviction relief, the defend­
ant must allege facts which, if proved, constitute a denial
or violation of his or her rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to be
void or voidable. 

   [3] A court must grant an evidentiary hearing to resolve
the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an
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infringement of the defendant’s rights under the Nebraska or
federal Constitution. 

 If a postconviction motion alleges
only conclusions of fact or law, or if the records and files in
the case affirmatively show that the defendant is entitled to no
relief, the court is not required to grant an evidentiary hear-
ing. 

   [4,5] A proper ineffective assistance of counsel claim alleges
a violation of the fundamental constitutional right to a fair trial.

 To prevail on a claim of ineffective assistance of counsel
under Strickland v. Washington, 

, 

,

 (1984), the defendant must show that his or
her counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense. Id.;
State v. 

 A court may address the two prongs
of this test, deficient performance and prejudice, in either
order. 

Counsel Could Not Be Found Deficient for Failing
to Raise a Novel Constitutional Challenge, and
Therefore, the District Court Did Not Err
When It Denied the Claim Without
an Evidentiary Hearing.
   Sanders claims that the court erred when it denied relief
without an evidentiary hearing on his claim that trial and
appellate counsel were ineffective for failing to challenge the
constitutionality of § 28-1212.04, the statute under which he
was convicted of discharging a firearm at a dwelling while in
or near a motor vehicle. We conclude that the court did not err
when it denied an evidentiary hearing on this claim, because
counsel could not be found to be deficient for failing to raise a
novel constitutional challenge.
   Sanders’ allegations with regard to this claim were that
counsel failed both at trial and on direct appeal to challenge
§ 28-1212.04 as being unconstitutional as a special or local
law in violation of Neb. Const. art. III, § 18. In order for
Sanders to be granted an evidentiary hearing on this claim,
he needed to show that if his allegations were proved, such
failure infringed his constitutional rights to effective assistance
of counsel.
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   In order to prevail on a constitutional claim of ineffective
assistance of counsel, Sanders needed to show that counsel’s
performance was deficient and that such deficient performance
prejudiced his defense. See 

 The district
court focused on the second prong of the Strickland test when
it concluded that because Sanders failed to show that the stat-
ute was unconstitutional, he failed to show that his defense
was prejudiced. Unlike the district court’s approach, we con-
clude that Sanders’ claim of ineffective assistance of counsel
fails the first prong of the test because counsel’s performance
could not be found to be deficient for failing to raise a novel
constitutional challenge. Although our reasoning differs from
that of the district court, we agree that a purported failure
to challenge the constitutionality of § 28-1212.04 does not
afford relief.
   [6] As we noted above, a claim of ineffective assistance
of counsel alleges a violation of the fundamental constitu-
tional right to a fair trial. State v. Dragon, 

, 

 (2014). The U.S. Supreme Court recognized the
limits of an ineffective assistance of counsel claim when it
stated: “We have long recognized . . . that the Constitution
guarantees criminal defendants only a fair trial and a com-
petent attorney. It does not [e]nsure that defense counsel will
recognize and raise every conceivable constitutional claim.”
Engle v. Isaac, 

, 

, 

 (1982). In Anderson v. U.S., 

 (8th
Cir. 2005), the U.S. Court of Appeals for the Eighth Circuit
cited Engle v. Isaac when it determined that a counsel’s per-
formance was not constitutionally deficient. In Anderson, the
court rejected the defendant’s claim that counsel’s failure to
raise a constitutional challenge to his plea-based conviction
was ineffective assistance of counsel. The Eighth Circuit
Court stated that “[w]hile the argument, in hindsight, may
have had merit, it was a wholly novel claim at the time,” not-
ing that no published opinion had addressed the issue. 

. The court concluded that “[c]ounsel’s failure to raise this
novel argument does not render his performance constitution-
ally ineffective.” 

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   Courts in other jurisdictions have similarly concluded that
“counsel’s failure to advance novel legal theories or argu-
ments does not constitute ineffective performance.” Ledbetter
v. Commissioner of Correction, 

, 

 (2005) (citing various cases). Such novel legal theo-
ries or arguments may include challenges to the constitutional-
ity of the statute pursuant to which the defendant is convicted.
In Hughes v. State, 

, 

 (2004),
the court concluded that trial counsel’s failure to challenge
the statute pursuant to which the defendant was convicted
as unconstitutionally vague was not ineffective assistance,
because counsel was not required to anticipate changes in the
law or pursue novel theories of defense. The court in Hughes
noted that the defendant had not cited, and it had not found,
any case addressing a similar constitutional challenge to the
statute at issue.
   [7,8] In a similar vein, we have stated that the failure to
anticipate a change in existing law does not constitute deficient
performance. State v. Iromuanya, 

, 

 (2011), citing State v. Billups, 

, 

 (2002). It logically follows, and we now conclude, that
counsel’s failure to raise novel legal theories or arguments or to
make novel constitutional challenges in order to bring a change
in existing law does not constitute deficient performance. We
apply this proposition in the current case and conclude counsel
were not deficient in their performance.
   In the present case, Sanders asserts that counsel at his trial
and on his direct appeal were deficient when they failed to
challenge the constitutionality of § 28-1212.04. Sanders does
not cite, and we do not find, cases raising similar challenges
to the statute. This court has decided two published cases,
State v. Castillas, 

, 

 (2013),
and State v. Ross, 

, 

 (2012),
which involved an earlier version of § 28-1212.04 that did not
include amendments that were effective July 15, 2010. Neither
case included or hinted at a challenge to the constitutionality
of the statute. We determine that the constitutional challenge
to § 28-1212.04 that Sanders asserts his counsel should have
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made was a novel constitutional challenge at the time of his
trial and direct appeal in 2011 and 2012. This is true whether
the challenge would have related to language that has been in
the statute since its enactment or whether it related to language
that was added by the 2010 amendments.
   We determine that counsel in this case could not have been
shown to be deficient for failing to make a constitutional chal-
lenge to § 28-1212.04 and that therefore, Sanders could not
show ineffective assistance of counsel. Although our reason-
ing differs from that of the district court, we conclude that the
court did not err when it denied this claim without an eviden-
tiary hearing.

The Record Refutes the Claim That Counsel Was
Ineffective for Failing to File a Motion to
Suppress, and Therefore, the District Court
Did Not Err When It Denied the Claim
Without an Evidentiary Hearing.
   Sanders claims that the court erred when it denied relief
without an evidentiary hearing on his claim that trial coun-
sel was ineffective for failing to move to suppress evidence
obtained as a result of the stop and search of his vehicle. We
conclude that the court did not err when it determined that the
record refutes this claim and denied this claim without an evi-
dentiary hearing.
   Sanders asserts two separate bases in support of his claim
that counsel was ineffective for failing to move to suppress evi-
dence. He first asserts that counsel should have moved to sup-
press the evidence on the basis that the stop of his vehicle was
illegal. In this regard, Sanders indicates that the stop was based
on 911 calls and he refers us to cases involving uncorroborated
anonymous calls which proved not sufficiently reliable to jus-
tify a stop. Second, he asserts that counsel should have moved
to suppress the evidence found in the vehicle on the basis that
the warrantless search of his vehicle was illegal because it was
not a proper search incident to arrest.
   With regard to the legality of the stop, in his postconviction
motion, Sanders cites Florida v. J. L., 

, 

, 

 (2000), in which the U.S. Supreme
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Court held that an anonymous tip lacked sufficient indicia of
reliability to establish reasonable suspicion for an investigatory
stop. We recently discussed Florida v. J. L. and anonymous
tips in State v. Rodriguez, 

, 

(2014). Although prior to Rodriguez, we had not extensively
discussed the current state of Fourth Amendment law with
regard to anonymous tips, Florida v. J. L. and other precedent
regarding anonymous tips existed at the time of Sanders’ trial
in this case. Therefore, in contrast to the novelty of a consti-
tutional challenge to § 28-1212.04 discussed above, a Fourth
Amendment challenge to evidence obtained from an illegal
stop based solely on an anonymous tip would not have been a
novel challenge at the time of Sanders’ trial.
   Reading the assertions in Sanders’ motion for postconvic-
tion relief generously, Sanders suggests that the stop of his
vehicle was an illegal stop because it was based on an anony-
mous tip. Even so reading the motion, the claim must fail
because the record indicates that the traffic stop was justified
and, therefore, refutes Sanders’ claim regarding the propriety
of the stop.
   The officer who stopped Sanders testified at trial. The offi-
cer stated that he began following Sanders’ vehicle after he
received a dispatch regarding 911 calls reporting shots fired
and a suspect vehicle that matched the description and loca-
tion of Sanders’ vehicle. The officer testified that while he was
following Sanders’ vehicle, the driver was initially following
traffic laws. However, at a later point, the vehicle executed
an illegal turn. The “short corner” maneuver was described
in part as accelerating through a sharp turn, cutting the turn
short such that the officers lost sight of the vehicle. The offi-
cer testified that thereafter, the vehicle “returned to following
all traffic laws, signaling turns, [and] remain[ing] within the
speed limit” and that no further “erratic driving was observed
at that point.”
   [9,10] The testimony indicates that there was a traffic vio-
lation that gave the officer a basis to make a stop without
regard to the 911 calls. We have said that a traffic violation,
no matter how minor, creates probable cause for an officer to
stop the driver of a vehicle. State v. Nolan, 

, 807
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N.W.2d 520 (2012). The question before us is not whether
the officer issued a citation for a traffic violation or whether
the State ultimately proved the violation. Instead, a stop of a
vehicle is objectively reasonable when the officer has prob-
able cause to believe that a traffic violation has occurred. State
v. Draganescu, 

, 

 (2008). If an
officer has probable cause to stop a violator, the stop is objec-
tively reasonable and any ulterior motivation is irrelevant. 

The records and files refute Sanders’ assertion that there were
insufficient facts to justify the stop. Thus, we conclude that the
record showed that Sanders was not entitled to relief on this
theory of his claim and that the district court did not err when
it denied an evidentiary hearing on the claim that counsel was
ineffective for failing to file a motion to suppress based on an
illegal stop.
   With regard to the challenge of the warrantless search of
his vehicle as an incident to an arrest, Sanders cited Arizona v.
Gant, 

, 

, 

 (2009),
in his postconviction motion and asserts that it stands for the
proposition that a warrantless search of a defendant’s vehicle
after a defendant has been handcuffed and placed in the back
of a squad car violates the Fourth Amendment’s prohibition
of unreasonable searches and seizures. He argued that under
Arizona v. Gant, the warrantless search of his vehicle after
he had been arrested was illegal because he was not able to
either grab a weapon or destroy evidence from the vehicle and
that therefore, the search was not justified as a search incident
to arrest.
   [11] Sanders’ reference to Arizona v. Gant is incomplete.
The complete holding in Arizona v. Gant was, “Police may
search a vehicle incident to a recent occupant’s arrest only
if the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of arrest.”

 (emphasis supplied). The record in this case
indicates that at trial, officers testified that Sanders’ vehicle
was stopped and that he was subsequently taken into custody.
Sanders was taken into custody on the basis of reports that
shots had been fired at a house from a vehicle matching the
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description of Sanders’ vehicle. Officers looked through the
window of the vehicle and observed loose ammunition in plain
sight. Therefore, it was reasonable for officers to believe that
Sanders’ vehicle contained evidence of the offense for which
Sanders as a recent occupant had been arrested.
   Sanders states in his motion that “[n]o arrest [had been]
made at the time of the search . . . .” He therefore argues that
the warrantless search of his vehicle could not have been a
search incident to arrest. However, Sanders also asserted in
the motion that he had been “stopped, handcuffed, and placed
in the backseat of the police cruiser.” The record contains
testimony at trial that prior to the search, officers had taken
Sanders into custody, handcuffed him, and placed him under
arrest. The record therefore shows that the search was made
incident to Sanders’ arrest and was based on a reasonable belief
that the vehicle contained evidence of the offense for which
Sanders was arrested.
   The records and files in the case affirmatively show that
Sanders was entitled to no relief on this claim, and we there-
fore conclude that the district court did not err when it denied
an evidentiary hearing on Sanders’ claim that counsel was inef-
fective for failing to move to suppress evidence based on the
warrantless search of his vehicle.
                          CONCLUSION
   As explained above, Sanders was not entitled to an eviden-
tiary hearing on any of his claims, and we affirm the district
court’s denial of his motion for postconviction relief.
                                                     Affirmed.
   Cassel, J., not participating.