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State v. Loding

Supreme Court of Nebraska

May 12, 2017

State of Nebraska, appellee,
v.
Bashir V. Loding, appellant.

         1. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law.

         2. ___: ___. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only questions of law: Are the undisputed facts contained within the record sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance?

         3. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.

         4. 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.

         5. Judgments: Appeal and Error. 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.

         6. Effectiveness of Counsel: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred.

         7. Effectiveness of Counsel: Postconviction: Records: Appeal and Error. An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges deficient performance with enough [296 Neb. 671] 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 will recognize whether the claim was brought before the appellate court.

         8. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question.

         9. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. To establish a right to postconviction relief because of counsel's ineffective assistance, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. A court may address the two prongs of this test, deficient performance and prejudice, in either order.

         10. Statutes: Rules of the Supreme Court. Just as statutes relating to the same subject are in pari materia and should be construed together, Nebraska Supreme Court rules should be read and construed together.

         11. Attorneys at Law. A passing score on the Multistate Professional Responsibility Examination is a substantive requirement for admittance to the Nebraska bar.

         12. Attorneys at Law: Disciplinary Proceedings. Violations of the standards and rules of professional conduct can subject an attorney to disciplinary proceedings.

         13. Attorneys at Law: Effectiveness of Counsel. An applicant for admittance to the Nebraska bar who has demonstrated that he or she lacks the required knowledge of his or her ethical obligations is incompetent to act as counsel.

         14. Attorneys at Law: Words and Phrases. A nonlawyer is any person not duly licensed or otherwise authorized to practice law in the State of Nebraska.

         15. Attorneys at Law: Rules of the Supreme Court. The Nebraska Supreme Court rules do not allow a nonlawyer to engage in the practice of law.

         16. Attorneys at Law: Disciplinary Proceedings. Because the Nebraska Supreme Court regards the unauthorized practice of law as a serious offense, any unauthorized practice is a nullity.

         17. Constitutional Law: Right to Counsel. A complete denial of assistance of counsel is a per se violation of a defendant's right to counsel.

         [296 Neb. 672] 18. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. When reviewing claims of ineffective assistance, an appellate court will not second-guess a trial counsel's reasonable strategic decisions. An appellate court must assess the trial counsel's performance from the counsel's perspective when the counsel provided the assistance.

         19. Trial: Attorneys at Law. Defense counsel are not deficient for failing to defeat their own legitimate defense theory.

         20. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, an appellate court does not pass on the credibility of witnesses. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

         21. Indictments and Informations: Evidence: Time. The State can present evidence of several violations within a specific timeframe to secure one conviction.

         22. Sentences: Appeal and Error. In reviewing a sentence imposed within the statutory limits, an appellate court considers whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

         23. Sentences. When imposing a sentence, the sentencing court is to 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 amount of violence involved in the commission of the crime.

         24. ___. Traditionally, a sentencing court is accorded very wide discretion in determining an appropriate sentence.

         Appeal from the District Court for Douglas County: Gregory M. Schatz, Judge. Affirmed.

          Thomas C. Riley, Douglas County Public Defender, W. Patrick Dunn, and Andrew J.K. Johnson for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

          Thomas C. Riley, Douglas County Public Defender, W. Patrick Dunn, and Andrew J.K. Johnson for appellant.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and Funke, JJ.

         [296 Neb. 673] PER CURIAM.

         I. INTRODUCTION

         In this direct appeal, Bashir V. Loding challenges his conviction for first degree sexual assault of a child. He alleges that he received ineffective assistance of counsel, that there was insufficient evidence to support his conviction, and that he received an excessive sentence. He presents one issue of first impression: whether representation by a former senior certified law student, who was not yet an admitted member of the Nebraska bar, although accompanied by an admitted lawyer, constitutes per se ineffective assistance of counsel. We conclude that it does not. The record is insufficient to address two claims of ineffective assistance. Because we find no merit in Loding's other claims, we affirm the judgment of the district court.

         II. BACKGROUND

         Loding was charged with first degree sexual assault of a child. The information filed alleged that on or about May 1 through September 17, 2015, Loding, a man at least 19 years old or older, subjected A.B., a child less than 12 years old, to sexual penetration.

         1. EVIDENCE AT TRIAL

         Trial was held in April 2016, at which A.B. testified that she was born in 2006 and lived in Douglas County, Nebraska. She testified that Loding was her mother's friend and that he was 43 years old. She testified that Loding would visit her home and that beginning in May 2015, he penetrated her anus with his penis on multiple occasions. He also penetrated her anus and vagina with his fingers on multiple occasions. She was able to describe events in detail, what his penis looked like, and how after he penetrated her anus, "sometimes [her] pee would be brown." Her older sister corroborated her testimony and confirmed that Loding had access to A.B. without her mother's direct supervision.

         Several expert witnesses testified as to A.B.'s initial disclosure and explained that her allegations were consistent [296 Neb. 674] with her testimony and not unusual for child victims of sexual assault. Loding did not testify in his own behalf or call any witnesses.

         2. CONVICTION AND SENTENCE

         The jury convicted Loding of first degree sexual assault of a child, and the district court sentenced Loding to 35 to 50 years' imprisonment with credit for 129 days served.

         Loding timely appealed, and we granted the State's petition to bypass review by the Nebraska Court of Appeals.

         III. ASSIGNMENTS OF ERROR

         Loding assigns, reordered and restated, that (1) he received ineffective assistance of counsel when (a) a former senior certified law student, who was not yet an admitted member of the Nebraska bar, participated in critical stages of the proceedings, (b) he did not validly consent to representation by a certified law student, and (c) trial counsel made prejudicial remarks during opening statement and closing argument; (2) there was insufficient evidence to sustain a guilty verdict; and (3) his sentence was excessive.

         IV. STANDARD OF REVIEW

         Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law.[1] In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only questions of law: Are the undisputed facts contained within the record sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance?[2]

         [296 Neb. 675] In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of ...


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