Sunday, August 27, 2006
Nebraska Court of Appeals dismisses ineffective counsel proceedings where defendant plead to manslaughter and weapons count otherwise invalid under a subsequent change in the law in State v Pruett 263 Neb. 99, 638 N.W.2d 809 (2002) State v. Drinkwalter, A-04-988, 14 Neb. App. 944 Defendant who plea bargained for a manslaughter charge with an accompanying weapons charge after the Nebraska Supreme court reversed his murder conviction sought post conviction relief claiming ineffective counsel for advising him to plead to charges the Nebraska Supreme Court had held invalid in State v Pruett. Nebraska court of appeals overrules motion for post conviction relief because defendant plead guilty to both the manslaughter and weapons charge before the Nebraska Supreme Court made its Pruett decision which definitively prohibited tying use of a weapon to commit a felony with the underlying crime.s a result of the holding in State v. Burkhardt, 258 Neb. 1050, 607 N.W.2d 512 (2000), and the buttressing effect of the "irresistible" Alford plea bargain, Drinkwalter's claim for postconviction relief to set aside his conviction for use of a weapon to commit a felony on the basis of the Ring-Pruett rule fails. He has clearly waived any such argument. Further the defendant failed to show that counsel's failure to advise him of the effect of Ring or faulty advice on Ring prejudiced his guilty plea, as at the time the Supreme court had not decided Pruett.
Posted by stan_sipple at 7:21 AM