26-0656/26-0657, State v. Chavez (Appellant)
Lancaster County, District Court Judge Susan I. Strong
Attorney for Appellant: Matthew Kosmicki (Kosmicki Law, L.L.C.
Attorney for Appellee: Michael T. Hilgers, Erin E. Tangeman (Attorney General’s Office)
Civil Action: Motion for Postconviction Relief
Facts: In May 2023, Appellant pled no contest, in two separate dockets, to
attempted possession of child pornography by an individual 19 years of age or older, first degree sexual assault, and enticement by electronic communication device. The district court sentenced Appellant to a cumulative sentence of 27 to 37 years’ imprisonment No direct appeal was filed in either case.
On June 24, 2024, Appellant filed a motion for postconviction relief in each case seeking a new direct appeal and an evidentiary hearing based on the allegation that his trial counsel was ineffective for failing to file a direct appeal. Specifically, Appellant alleged that his “ability to communicate directly with trial counsel while incarcerated was limited” and that “he requested assistance from [his mother] in communicating with trial counsel about filing an appeal.” Appellant alleged that his mother communicated with trial counsel that Appellant wanted to file an appeal, but trial counsel refused. The district court held a hearing and took judicial notice of the case files. The district court denied Appellant’s motions for postconviction relief without an evidentiary hearing. Appellant has timely appealed to this court.
Assignments of Error on Appeal: Appellant contends that the district court: (1) erred in denying him an evidentiary hearing on his motions for postconviction relief despite the motions containing factual allegations which, if true, would have established a denial of his constitutional right to the effective assistance of counsel; (2) erred in interpreting the requirement that counsel file a direct appeal when “directed by the client” to require personal, direct communication from the defendant rather than recognizing that a request through an intermediary acting at the defendant’s direction, in this case the appellant’s mother, satisfied the requirement and triggered counsel’s duty to file a notice of appeal; and (3) violated Appellant’s due process rights by resolving factual disputes on the written record and dismissing his motion for postconviction relief without an evidentiary hearing.