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State v. Liner

Court of Appeals of Nebraska

September 13, 2016

State of Nebraska, appellee
Dee Anne Liner, appellant.

         1. Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact.

         2. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         3. Judgments: Words and Phrases. 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 conscience, reason, and evidence.

         4. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. An ineffective assistance of counsel claim is raised on direct appeal when allegations of deficient performance are made with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) a district court later reviewing a petition for postconviction relief to be able to recognize whether the claim was brought before the appellate court.

         5. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the appellate brief in order to be considered by an appellate court.

         6. ___. A generalized and vague assignment of error that does not advise an appellate court of the issue submitted for decision will not be considered.

         7. Pleas. After the entry of a plea of guilty or no contest, but before sentencing, a court, in its discretion, may allow a defendant to withdraw his or her plea for any fair and just reason, provided that the prosecution has not been or would not be substantially prejudiced by its reliance on the plea entered.

         [24 Neb.App. 312] 8. Effectiveness of Counsel: Proof: Appeal and Error. General allegations that trial counsel performed deficiently or that trial counsel was ineffective are insufficient to preserve the issue for later review.

         9. Effectiveness of Counsel. Where the record refutes a claim of ineffective assistance of counsel, no recovery may be had.

         10. Pleas: Effectiveness of Counsel. When a court accepts a defendant's plea of guilty or no contest, the defendant is limited to challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel.

         11. Pleas. A sufficient factual basis is a requirement for finding that a plea was entered into understandingly and voluntarily.

         12. Criminal Law: Intent. A person is guilty of theft if he or she takes, or exercises control over, movable property of another with the intent to deprive him or her thereof.

         13. Theft: Value of Goods: Words and Phrases. Value to be proved concerning a theft is market value at the time and place where the property was criminally appropriated.

         14. Effectiveness of Counsel. Defense counsel cannot be ineffective for failing to raise an objection or argument that has no merit.

         15. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the violence involved in the commission of the crime.

         16. ___. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

         17. Criminal Law: Controlled Substances: Intent. Unless an exception applies, a person is guilty of a Class II felony if he or she knowingly or intentionally manufactures, distributes, delivers, dispenses, or possesses with intent to manufacture, distribute, deliver, or dispense a Schedule I, II, or III controlled substance which is an exceptionally hazardous drug.

         18. Plea Bargains: Sentences: Appeal and Error. When a charge has been misclassified as part of a plea bargain and the only assignment of error is that the sentence was excessive, appellate analysis is limited to examining the excessiveness.

         Appeal from the District Court for Buffalo County: John P. Icenogle, Judge, Retired.

         [24 Neb.App. 313] Tana M. Fye, Deputy Buffalo County Public Defender, of Fye Law Office, for appellant.

          Douglas J. Peterson, Attorney General, and George R. Love for appellee.

          Moore, Chief Judge, and Inbody ...

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