Effectiveness of Counsel: Appeal and Error.
Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact.
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
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
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
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
A generalized and vague assignment of error that does not
advise an appellate court of the issue submitted for decision
will not be considered.
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.
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
Effectiveness of Counsel. Where the record
refutes a claim of ineffective assistance of counsel, no
recovery may be had.
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.
Pleas. A sufficient factual basis is a
requirement for finding that a plea was entered into
understandingly and voluntarily.
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
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
Effectiveness of Counsel. Defense counsel
cannot be ineffective for failing to raise an objection or
argument that has no merit.
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.
___. 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
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
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
from the District Court for Buffalo County: John P. Icenogle,
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
Chief Judge, and Inbody ...