Full Opinion (html_with_citations)

                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. CORNELL


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                                 V.

                            CHRISTOPHER J. CORNELL, JR., APPELLANT.


                            Filed December 13, 2022.     No. A-22-160.


       Appeal from the District Court for Buffalo County: JOHN H. MARSH, Judge. Affirmed.
       Christopher J. Cornell, Jr., pro se.
       Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.


       MOORE, RIEDMANN, and BISHOP, Judges.
       BISHOP, Judge.
                                        INTRODUCTION
        The Buffalo County District Court entered an order denying Christopher J. Cornell, Jr.’s
request for in forma pauperis (IFP) status which was filed with the commencement of his action
seeking postconviction relief. The essence of Cornell’s postconviction claim was that his
conviction for possession of a firearm by a prohibited person was void in that “[i]neffective counsel
advised [Cornell] to enter no-contest plea in matter of weapons offense for which [Cornell was]
actually innocent.” In denying IFP status to Cornell, the district court determined Cornell’s action
asserted legal positions which were frivolous since Cornell had failed to timely appeal his
conviction and sentence, and he was not claiming that DNA or forensic evidence would exonerate
him. Cornell appealed and was granted IFP status on appeal. Although for reasons different than
those articulated by the district court, we affirm the court’s February 18, 2022, order denying IFP
status to Cornell in his postconviction action.




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                                          BACKGROUND
                                      CORNELL’S CONVICTIONS
        On October 2, 2020, the State filed an information charging Cornell with six offenses,
including possession of a firearm by a prohibited person, a Class ID felony. The State also gave
notice of its intent to seek forfeiture of $3,130 seized by law enforcement from Cornell. Pursuant
to a plea agreement, an amended information was filed, and Cornell pled no contest to four of the
six offenses originally charged, including possession of a firearm by a prohibited person; the
remaining two charges were dismissed. According to the factual basis provided by the State:
        [O]n August 1st of 2020, at approximately 6:20 p.m., a trooper with the Nebraska State
        Patrol was on duty and observed a silver Jeep driving in excess of the posted speed limit.
        The trooper attempted to initiate a traffic stop on the vehicle, which at that point in time
        was driving in excess of 100 miles per hour.
                 That vehicle began to attempt to evade the trooper, then getting off the Exit 305
        ramp in Hall County at a high rate of speed. When the officer began to try to initiate a
        traffic stop again, the vehicle failed to stop at the stop sign, lost control and crashed into a
        pole on the westbound off ramp. The vehicle then backed up from the pole it had just hit
        and then it continued to flee from the trooper.
                 The pursuit lasted for approximately 30 miles with the vehicle driving recklessly
        throughout traffic, weaving in and out of the left and right lanes, not signalling [sic]
        changes, continuing to drive at speeds in excess of 100 miles an hour, and passing vehicles
        on the shoulder.
                 At approximately 6:40 p.m., officers with the Kearney Police Department were able
        to spike the tires of the vehicle in an attempt to cease the pursuit. The vehicle was
        successfully spiked and then went through the median, across eastbound Interstate 80
        traffic, finally coming to rest in the southbound ditch. When the trooper pulled up behind
        the vehicle, the occupants, which included the defendant, Christopher Cornell, got out and
        fled on foot.
                 The trooper chased the occupants south of the Interstate until Mr. Cornell and his
        co-defendant, . . . Overstreet, fled into a cornfield south of the Kearney Archway. These
        individuals remained hiding and evading law enforcement apprehension for numerous
        hours. It took 32 officers, 3 police service dogs, a drone and an aircraft to be able to finally
        flush Mr. Cornell and his co-defendant out of the field south of the Archway.
                 And numerous times throughout in officers’ attempts to apprehend Mr. Cornell and
        Mr. Overstreet, they would be seen attempting to exit areas of this cornfield until they
        observed officers, at which time they would flee back into the cornfield in attempts to evade
        and obstruct officers.
                 Mr. Cornell was identified by his own admissions as being the driver of the vehicle
        at all times during the pursuit when he knew or should have known officers were trying to
        apprehend him. A search of the vehicle located controlled substances, U.S. currency, drug
        ledgers, and an AR-15.
                 The assault rifle, which was across the backseat in Mr. Cornell’s easy access and
        possession, is a weapon he is prohibited from possessing as Mr. Cornell is a convicted


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       felon, was subject to multiple protection orders and was a fugitive from justice, making
       him prohibited by every possible statutory means from possessing a firearm. Those events
       all occurred in Buffalo County, Nebraska.

        The district court specifically asked whether the defense wished to be heard regarding the
factual basis; the response was “No.” The court found an adequate factual basis was established
for each plea; the pleas were not the result of any promise or threat; the pleas were entered
knowingly, voluntarily, and intelligently; and Cornell knowingly, voluntarily, and intelligently
waived his constitutional rights. The court accepted Cornell’s plea of no contest to the charges in
the amended information and found him guilty of the same. A presentence investigation was
ordered and the case was set for sentencing.
        On March 11, 2021, a sentencing hearing took place. The State pointed out that Cornell
and his passenger hid for hours in a cornfield; it took “35 officers from 6 agencies, a drone, 3
police service dogs, [and] a fixed-wing aircraft to hunt them through the field.” Cornell
acknowledged that “[t]rying to hide, all that, was not the right decision.” Cornell apologized for
putting people in danger and stated that he would make better decisions in the future. The district
court sentenced Cornell to 1 to 2 years’ imprisonment for count I (operating motor vehicle to avoid
arrest, Class IV felony), 3 to 10 years’ imprisonment for count II (possession of firearm by
prohibited person, Class ID felony), 1 year of imprisonment for count III (obstructing peace
officer, Class I misdemeanor), and 30 days’ imprisonment for count IV (leaving scene of accident,
Class II misdemeanor). The sentences for counts I, III, and IV were to run concurrently to each
other, but consecutively to the sentence for count II. Cornell was given 223 days’ credit for time
served. The court further ordered that Cornell’s operator’s license be revoked for 2 years, Cornell
forfeit $3,130 in U.S. currency seized by law enforcement, and Cornell submit a DNA sample.
The court also found that costs were uncollectible.
        No direct appeal was filed following the entry of the March 11, 2021, sentencing order.
According to the State, at the time Cornell entered his no contest pleas, Cornell waived his right
to a direct appeal as part of the plea agreement.
                                  POSTCONVICTION PROCEEDING
        On February 16, 2022, Cornell filed a pro se “Verified Motion to Vacate and Set Aside
Convictions” pursuant to the “Nebraska State Postconviction Relief Act,
Neb. Rev. Stat. §§ 29-3001
 to 29-3004.” (Emphasis in original.) He alleged that his trial counsel was ineffective
because he advised Cornell to enter a no contest plea for Count II, possession of a deadly weapon
by a prohibited person, even though Cornell was “actually innocent.”
        On February 18, 2022, the district court entered an order on its own motion denying
Cornell’s application to proceed IFP. (A copy of Cornell’s initial application to proceed IFP is not
in our record.) The court’s order stated the following:
        [T]he Court on it’s [sic] own motion denies the defendants’ [sic] application to proceed
        [IFP] on the grounds that the applicant is asserting legal positions which are frivolous or
        malicious. The Court’s reasons, findings and conclusions follow.




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               The defendant failed to timely appeal his conviction and sentence. The action is
       captioned as a Petition to Vacate and Set Aside Conviction but makes no claim that DNA
       or forensic evidence would exonerate him. See Neb. Rev. Stat. Section 29-4123.
               The defendant’s request to proceed [IFP] is denied.

        Cornell appeals from the district court’s February 18, 2022, order denying him IFP status
related to his underlying postconviction action.
                                    ASSIGNMENT OF ERROR
        Cornell assigns, restated, that the district court erred when it denied his request to proceed
IFP in his postconviction action.
                                    STANDARD OF REVIEW
        A district court’s denial of in forma pauperis status is reviewed de novo on the record based
on the transcript of the hearing or written statement of the court.
Neb. Rev. Stat. § 25-2301.02
(2)
(Reissue 2016); Sabino v. Ozuna,
303 Neb. 318
,
928 N.W.2d 778
 (2019).
                                            ANALYSIS
        This appeal is before us only on the issue of whether the district court properly denied
Cornell’s application to proceed IFP on his underlying postconviction action. There has been no
final order entered as to the postconviction action itself. Nevertheless, Cornell has a right to
interlocutory appellate review of an order denying IFP status to commence a case. See Mumin v.
Frakes,
298 Neb. 381
,
904 N.W.2d 667
 (2017).
                              IFP STATUS IN POSTCONVICTION CASES
        We initially note that no prepayment of a filing fee is required in postconviction cases. See
Mumin v.
Frakes, supra.
 When considering prepayment of filing fees in the context of a habeas
corpus action, the Nebraska Supreme Court pointed out that no prepayment of filing fees and costs
are required when a petition for writ of habeas corpus is filed, and that a “similar rule applies to
filing motions for postconviction relief in criminal cases.”
Id. at 397
, 904 N.W.2d at 679. See, also,
State v. Jackson,
15 Neb. App. 523
,
730 N.W.2d 827
 (2007) (prepayment of fees and costs not
required in postconviction cases). Therefore, Cornell was able to file his postconviction action
without the need to prepay the filing fee and the matter could have proceeded without deciding
Cornell’s IFP status as a threshold matter. As stated in Mumin v. Frakes, “while it was not improper
for the district court to rule on the IFP application as a threshold matter, doing so was not necessary
to allow Mumin to file or proceed with his habeas petition.” Id. at 397,
730 N.W.2d at 679
. “And
once the district court concluded—in the context of its IFP review—that the legal positions
asserted in the habeas petition were frivolous, it would have been more efficient for the district
court to rule directly on the merits of the habeas petition at the same time it ruled on the IFP
application.”
Id.
 “In cases where no prepayment of fees or costs is required, deferring the ruling
on an IFP application would permit the court to reach the merits of the case more quickly and
without potentially lengthy delays caused by interlocutory appeals from orders denying IFP.”
Id.
        We are faced with a similar situation here in that the district court denied Cornell’s
application to proceed IFP without simultaneously entering a final order as to the postconviction


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action. As indicated in
Mumin, supra,
 it was not improper for the district court to do so, but it
would have been more efficient for the court to rule directly on the merits of the postconviction
action at the same time it ruled on the IFP application. However, since addressing the IFP
application as a threshold matter was not improper, we proceed to review the court’s February 18,
2022, order denying Cornell’s request to proceed IFP.
        Under the IFP statutory scheme, § 25-2301.02(1) states in pertinent part:
        An application to proceed in forma pauperis shall be granted unless there is an objection
        that the party filing the application (a) has sufficient funds to pay costs, fees, or security or
        (b) is asserting legal positions which are frivolous or malicious. The objection to the
        application shall be made within thirty days after the filing of the application or at any time
        if the ground for the objection is that the initial application was fraudulent. Such objection
        may be made by the court on its own motion or on the motion of any interested person.
        The motion objecting to the application shall specifically set forth the grounds of the
        objection. An evidentiary hearing shall be conducted on the objection unless the objection
        is by the court on its own motion on the grounds that the applicant is asserting legal
        positions which are frivolous or malicious. If no hearing is held, the court shall provide a
        written statement of its reasons, findings, and conclusions for denial of the applicant’s
        application to proceed in forma pauperis which shall become a part of the record of the
        proceeding.

        When an IFP application is denied, the applicant has two choices: (1) to proceed with the
matter upon payment of fees, costs, or security or (2) to appeal the order denying IFP. Mumin v.
Frakes, supra.
 Cornell timely appealed from the district court’s February 18, 2022, order denying
his request to proceed IFP in his postconviction action. The district court properly granted IFP
status to Cornell on appeal. See Mumin v.
Frakes, supra
 (when IFP application is denied and
applicant seeks leave to proceed IFP to obtain appellate review of that denial, trial court does not
have authority to issue order that would interfere with such appellate review).
                     CORNELL’S INITIAL IFP REQUEST WAS PROPERLY DENIED
        Cornell claims the district court denied him IFP status solely for the reason that he failed
to pursue a direct appeal. While the district court did reference the lack of a direct appeal as a basis
for denying IFP status, the court’s order also stated that it was denying IFP “on the grounds that
the applicant is asserting legal positions which are frivolous or malicious.” We agree with the
district court that Cornell’s underlying postconviction action asserts legal positions that are
frivolous. A frivolous legal position is one wholly without merit, that is, without rational argument
based on the law or on the evidence. State v. Carter,
292 Neb. 16
,
870 N.W.2d 641
 (2015).
        Cornell’s claim of ineffective assistance of trial counsel challenges only his conviction for
possession of a firearm by a prohibited person. Cornell contends that the firearm found in the
backseat of the vehicle he was driving was insufficient evidence to show constructive possession
and that therefore any “conviction premised on it is void.” Brief for appellant at 7. Generally, a
voluntary guilty plea or plea of no contest waives all defenses to a criminal charge. State v. Jaeger,
311 Neb. 69
,
970 N.W.2d 751
 (2022). Thus, when a defendant pleads guilty or no contest, the
defendant is limited to challenging whether the plea was understandingly and voluntarily made


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and whether it was the result of ineffective assistance of counsel.
Id.
 A motion for postconviction
relief cannot be used to secure review of issues that were or could have been litigated on direct
appeal.
Id.
        In his postconviction pleading, Cornell claimed his trial counsel was ineffective for
advising him to enter a no contest plea “in matter of weapons offense for which [Cornell] is
actually innocent.” He claimed he was “‘actually innocent’” of the weapon possession charge
because he “never acquired either legal, actual or constructive possession of the firearm found in
the vehicle’s rear seat.” He claimed it belonged to his passenger. Cornell claims that his no contest
plea “cannot be said to have waived entitlement to ‘actual innocence protections’ because that plea
itself was accepted unconstitutionally, without the benefit of sufficient evidence to support the
constitutionally required factual basis needed to justify such a waiver.” He also claimed that being
convicted and incarcerated “while actually innocent violates the Eighth Amendment prohibition
against infliction of cruel and unusual punishment,” and this makes his sentence “illegal and void.”
        Cornell’s arguments are wholly without merit and are, therefore, frivolous.
Neb. Rev. Stat. § 28-1212
 (Reissue 2016) provides that the presence of a firearm in a motor vehicle other than a
public vehicle “shall be prima facie evidence that it is in the possession of and is carried by all
persons occupying such motor vehicle at the time such firearm or instrument is found, except that
this section shall not be applicable if such firearm . . . is found upon the person of one of the
occupants therein.” Additionally, constructive possession may be proved by direct or
circumstantial evidence and may be shown by the accused’s proximity to the item at the time of
arrest or by a showing of dominion over it. State v. Warlick,
308 Neb. 656
,
956 N.W.2d 269
 (2021)
(defendant passenger of vehicle convicted of possession of deadly weapon by prohibited person
when drawstring bag containing handgun and drugs were found in rear cargo area of vehicle).
        The factual basis supporting Cornell’s plea and conviction revealed that Cornell admitted
to being the driver of the vehicle during the pursuit, and that a search of the vehicle turned up
controlled substances, U.S. currency, drug ledgers, and an AR-15. The assault rifle was lying
across the backseat and was in Cornell’s “easy access and possession.” A person commits the
crime of possession of a deadly weapon by a prohibited person if he or she possesses a firearm and
he or she has previously been convicted of a felony. See
Neb. Rev. Stat. § 28-1206
 (Cum. Supp.
2022). See, also, State v.
Warlick, supra;
 State v. Sherrod,
27 Neb. App. 435
,
932 N.W.2d 880
(2019) (defendant had constructive possession of firearm found in bedroom; constructive
possession applies to crime of possession of firearm by a felon and means possessor did not have
actual possession but was aware of the presence of the contraband and had dominion and control
over it). Cornell does not dispute having a prior felony and he possessed the assault firearm under
both statutory and constructive possession law.
        As a matter of law, counsel cannot be ineffective for failing to raise a meritless argument
to the trial court. State v.
Jaeger, supra.
 Cornell was seeking postconviction relief based on his
alleged theory that his trial counsel was ineffective because it was “illegal” for Cornell to be
convicted of the firearm possession charge because constructive possession is insufficient to prove
possession of a firearm by a prohibited person. Based on the legal principles set forth above,
Cornell’s claim is wholly without merit, that is, without rational argument based on the law or on
the evidence. See State v.
Carter, supra.
 Cornell’s trial counsel could not be ineffective for failing



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to raise such an argument. Although our reasoning differs from that of the district court, we agree
that Cornell’s postconviction claim asserts legal positions that are frivolous.
                                         CONCLUSION
        We affirm the district court’s February 18, 2022, order denying Cornell IFP status related
to his postconviction action. Additionally, Cornell has filed a “Motion to Remand for Appointment
of Counsel” “for the limited purpose of appointing professional counsel to assist [Cornell] by
representing claims set for oral arguments” in this court. Since we are disposing of this appeal
without oral argument, Cornell’s motion is overruled as moot.
                                                                                       AFFIRMED.




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