The opinion
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www.nebraska.gov/apps-courts-epub/
02/22/2022 08:06 AM CST
- 657 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. BROWN
Cite as 30 Neb. App. 657
State of Nebraska, appellee, v.
David B. Brown, appellant.
___ N.W.2d ___
Filed February 15, 2022. No. A-21-097.
1. Pleadings: Judgments: Appeal and Error. A trial court’s decision
to grant or deny a motion to reconsider is reviewed for an abuse of
discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Courts: Judgments: Time: Appeal and Error. A motion for reconsid-
eration does not terminate the time for appeal and is considered nothing
more than an invitation to the court to consider exercising its inherent
power to vacate or modify its own judgment.
4. Negligence: Public Officers and Employees: Pleadings: Appeal and
Error. The appropriate filing procedure when an appeal is lost due to
official negligence is for the party seeking relief to file a motion in
the lower court, seeking the ability to establish the basis for obtain-
ing relief.
5. Postconviction: Constitutional Law: Effectiveness of Counsel. There
is no constitutional guarantee of effective assistance of counsel in a
postconviction action and therefore no claim for ineffective assistance
of postconviction counsel.
Appeal from the District Court for Butler County: Christina
M. Marroquin, Judge. Reversed and remanded.
Robert Wm. Chapin, Jr., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. BROWN
Cite as 30 Neb. App. 657
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
David B. Brown appeals the order of the district court for
Butler County which dismissed his motion for reconsideration
as untimely. We determine that his motion for reconsidera-
tion was not untimely, and therefore, we reverse, and remand
for consideration on the merits.
BACKGROUND
Brown was convicted on February 2, 2018, of two counts
of first degree sexual assault. On direct appeal, this court
affirmed the convictions and sentences. See State v. Brown,
No. A-18-599, 2019 WL 1492689 (Neb. App. Mar. 25, 2019)
(selected for posting to court website). A mandate issued on
May 1, 2019.
Brown filed a verified motion for postconviction relief on
April 22, 2020, alleging ineffective assistance of trial counsel
and appellate counsel, as well as actual innocence. At a hearing
on the motion on May 26, the State moved orally to dismiss the
motion, counsel was appointed for Brown, and the hearing was
continued to June 23. At the subsequent hearing, counsel for
the State and Brown presented arguments, and the matter was
taken under advisement by the court. The district court issued
an order on September 17 dismissing Brown’s motion for post-
conviction relief without an evidentiary hearing.
On January 19, 2021, Brown filed a “Verified Motion
for Reconsideration, Motion to Vacate and Reinstate Order
Denying Motion for Postconviction Relief.” On January 20,
Brown’s postconviction counsel filed a motion for leave to
withdraw as counsel because Brown alleged in his motion mis-
conduct or ineffective assistance of counsel. The court granted
the motion to withdraw. In addressing the motion for reconsid-
eration, the court stated, “It is untimely filed and the Motion is
here dismissed.” Brown timely appealed.
- 659 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. BROWN
Cite as 30 Neb. App. 657
ASSIGNMENTS OF ERROR
Brown assigns, restated, that (1) the court erred in dis-
missing the motion for reconsideration and (2) the attorney
assigned to represent Brown in his postconviction motion was
ineffective.
STANDARD OF REVIEW
[1,2] A trial court’s decision to grant or deny a motion to
reconsider is reviewed for an abuse of discretion. County of
Douglas v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 501,
894 N.W.2d 308 (2017). An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Id.
ANALYSIS
Dismissal of Motion for Reconsideration.
Brown’s motion contained two alternative requests: first, to
reconsider his initial motion for postconviction relief, and sec-
ond, in the alternative, to vacate and reinstate its order denying
the initial motion so that Brown might appeal. The district court
stated that it reviewed Brown’s “Motion for Reconsideration.
It is untimely filed and the Motion is here dismissed.” The dis-
trict court did not elaborate further on its reasoning.
Brown argues that the district court abused its discretion
in denying the motion to reconsider in light of the delay in
Brown’s receiving a copy of the initial order denying his post-
conviction motion. The State argues that the district court “cor-
rectly denied the motion for reconsideration because it could
not legally vacate and reissue” the initial order to circumvent
the legislatively created appellate deadline and because the
district court had correctly denied the initial postconviction
motion. Brief for appellee at 11.
[3] Without addressing the merits of Brown’s motion for
reconsideration, we find that the district court abused its discre-
tion in dismissing the motion for reconsideration as untimely.
A motion for reconsideration does not terminate the time for
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. BROWN
Cite as 30 Neb. App. 657
appeal and is considered nothing more than an invitation to
the court to consider exercising its inherent power to vacate or
modify its own judgment. State v. Lotter, 301 Neb. 125, 917
N.W.2d 850 (2018).
[4] In State v. Parnell, 301 Neb. 774, 919 N.W.2d 900
(2018), the defendant filed a motion for postconviction relief
that was dismissed without an evidentiary hearing on August
17, 2017. On March 16, 2018, the defendant filed a motion
to vacate or modify the judgment, contending that he was not
informed of the denial due to official misconduct and was thus
unable to file a timely appeal. The district court denied the
motion to vacate without a hearing. The Nebraska Supreme
Court reversed the district court’s order denying the motion to
vacate. It articulated that the appropriate filing procedure when
an appeal is lost due to official negligence is for the party seek-
ing relief to file a motion in the lower court, seeking the ability
to establish the basis for obtaining relief. Id.
Likewise, in State v. Jones, 307 Neb. 809, 950 N.W.2d
625 (2020), the defendant filed a motion for postconviction
relief that was denied without a hearing. He attempted to
appeal the denial, but his request to proceed in forma pauperis
and poverty affidavit were untimely filed. Consequently, his
appeal was dismissed. Id. He then filed a motion to vacate or
modify in the district court in which he sought reinstatement
of his appeal. He claimed that in order to meet the appellate
deadline, he gave his paperwork to the proper prison authori-
ties to mail but they failed to timely act. Id. The district court
denied the motion without a hearing. The Supreme Court
reversed, citing State v. Parnell, supra, and the procedure set
forth therein.
Although Brown asserts that the delay in receiving notice
of the court’s dismissal of his postconviction motion was due
to his counsel’s negligence as opposed to negligence of the
court or prison officials, State v. Parnell, supra, and State v.
Jones, supra, instruct that Brown’s motion to reconsider was
not untimely and should not have been dismissed as such.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. BROWN
Cite as 30 Neb. App. 657
See, also, State v. Manning, 18 Neb. App. 545, 789 N.W.2d
54 (2010) (addressing merits of appeal of denial of motion to
vacate order denying postconviction relief based on allegedly
newly discovered evidence). We do not address the merits of
Brown’s motion for reconsideration; rather, we find only that
it was an abuse of discretion to deny it as untimely. Therefore,
we reverse, and remand for the district court to review the
motion for reconsideration on the merits.
Ineffective Assistance of Postconviction Counsel.
[5] Brown argues that his postconviction counsel was inef-
fective because he did not timely notify him of the final order
dismissing his postconviction motion. There is no constitu-
tional guarantee of effective assistance of counsel in a postcon-
viction action and therefore no claim for ineffective assistance
of postconviction counsel. State v. Hessler, 288 Neb. 670,
850 N.W.2d 777 (2014). Brown has no claim for ineffective
assistance of postconviction counsel, and his assignment is
without merit.
CONCLUSION
For the foregoing reasons, we reverse the dismissal of
Brown’s motion for reconsideration as untimely and remand the
matter to the district court to review the motion on the merits.
Reversed and remanded.