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State of Nebraska v. Russell S. Pittman

March 1, 2013

STATE OF NEBRASKA, APPELLEE,
v.
RUSSELL S. PITTMAN, APPELLANT.



The opinion of the court was delivered by: wright, J.

Nebraska advaNce sheets 314 285 NEBRASKA REPORTS

In imposing attorney discipline, we evaluate each case in light of its particular facts and circumstances. State ex rel. Counsel for Dis. v. Walocha, 283 Neb. 474, 811 N.W.2d 174 (2012). In his response to our order to show cause, respondent has consented to the entry of a judgment imposing identical discipline, or greater or lesser discipline, as we deem appropriate. The order of the Arizona Supreme Court publicly reprimanded the respondent and placed him on probation for a period of 1 year. We grant the motion for reciprocal discipline, enter a judgment of public reprimand, and place respondent on probation for a period of 1 year, effective March 20, 2012.

CONCLUSION

The motion for reciprocal discipline is granted. It is the judgment of this court that respondent should be and is publicly reprimanded and placed on probation for a period of 1 year, effective March 20, 2012. Respondent is directed to pay costs and expenses in accordance with Neb. Ct. R. §§ 3-310(P) and 3-323(B) of the disciplinary rules within 60 days after an order imposing costs and expenses, if any, is entered by this court.

JudgmeNt of public reprimaNd.

___ N.W.2d ___

Filed March 1, 2013.

1. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact, and, in particular, determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law.

2. Post-conviction: Appeal and Error. In appeals from post-conviction proceedings, an appellate court independently resolves questions of law.

3. Kidnapping. Whether a kidnapping victim was voluntarily released without serious bodily harm should be determined by the trial judge.

4. Kidnapping: Sentences. The provisions of Neb. Rev. Stat. § 28-313(3) (Reissue 2008) are mitigating circumstances which may reduce the penalty for kidnapping and are therefore a matter for the court at sentencing, not the jury.

5. ____: ____.Neb. Rev. Stat. § 28-313(3) (Reissue 2008) creates a single criminal offense, even though it is punishable by two different ranges of penalties depending on the treatment accorded to the victim.

6. Kidnapping. Rescue is not a voluntary release of a kidnapping victim.

7. Constitutional Law: Effectiveness of Counsel. An ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

8. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (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. An appellate court may address the two prongs of this test, deficient performance and prejudice, in either order.

Petition for further review from the Court of Appeals, irwiN, moore, and pirtle, Judges, on appeal thereto from the District Court for Saunders County, mary c. gilbride, Judge.

Judgment of Court of Appeals reversed, and cause remanded ...


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