Constitutional Law: Waiver: Appeal and
Error. In determining whether a defendant's
waiver of a statutory or constitutional right was voluntary,
knowing, and intelligent, an appellate court applies a
clearly erroneous standard of review.
Sentences: Appeal and Error. An appellate
court will not disturb a sentence imposed within the
statutory limits unless the trial court abused its
Sentences: Words and Phrases: Appeal and
Error. An appellate court reviews criminal sentences
for an abuse of discretion, which 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.
Effectiveness of Counsel: Constitutional Law:
Statutes: Records: Appeal and Error. Whether a claim
of ineffective assistance of trial counsel can be determined
on direct appeal presents a question of law, which turns upon
the sufficiency of the record to address the claim without an
evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
Criminal Law: Presentence Reports. The plain
language of Neb. Rev. Stat. § 29-2261(1) (Reissue 2016)
provides that a presentence investigation is generally
required in felony cases; however, there are exceptions under
which such an investigation is unnecessary.
Presentence Reports. A presentence
investigation may be impractical where another investigation
had just been completed.
Presentence Reports: Waiver. A presentence
investigation may be waived.
Attorney and Client: Waiver. A defendant may
waive a right by silently acquiescing to the waiver given by
his counsel, and by failing to object and raise the issue to
a trial court.
Neb.App. 139] 9. Sentences. In 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 amount of violence involved in the
commission of the crime.
. Neb. Rev. Stat. § 29-2204 (Reissue 2016) requires a
sentence for a Class II felony to have different minimum and
maximum terms of imprisonment.
Sentences: Time. Neb. Rev. Stat. §
29-2204 (Reissue 2016) is not effective unless the offense
was committed on or after August 30, 2015.
___: ___. When an element of the charged offense occurred
prior to August 30, 2015, Neb. Rev. Stat. § 29-2204
(Reissue 2016) does not apply to the defendant's
Sentences. A sentence with the same minimum
term and maximum term is an indeterminate sentence.
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
Effectiveness of Counsel: Proof. 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
counsel's performance was deficient and that this
deficient performance actually prejudiced his or her defense.
Effectiveness of Counsel: Proof: Appeal and
Error. General allegations that trial counsel
performed deficiently or that trial counsel was ineffective
are insufficient to raise an ineffective assistance claim on
direct appeal and thereby preserve the issue for later
from the District Court for Douglas County: Kimberly Miller
Pankonin, Judge. Affirmed.
C. Riley, Douglas County Public Defender, and Mikki C.
Jerabek for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
Chief Judge, and Bishop and Arterburn, Judges.
Neb.App. 140] Arterburn, Judge.
P. Robeson appeals from his plea-based conviction for first
degree sexual assault. On appeal, Robeson asserts that the
district court erred in imposing an excessive sentence and in
sentencing him without first obtaining a presentence
investigation report. Robeson also asserts that he received
ineffective assistance of counsel. For the reasons set forth
herein, we affirm.
January 4, 2016, the State filed an information charging
Robeson with two counts of first degree sexual assault of a
child, in violation of Neb. Rev. Stat. § 28-319.01(1)(b)
(Reissue 2016), each a Class IB felony. On September 22, a
hearing was held. At this hearing, defense counsel informed
the district court that a plea agreement had been reached.
Counsel indicated that as a part of the plea agreement,
Robeson would plead guilty to one count of first degree
sexual assault, as alleged in the amended information. The
State was granted leave to file an amended information
charging Robeson with two counts of first degree sexual
assault, in violation of Neb. Rev. Stat. § 28-319(1)(c)
(Reissue 2016), each a Class II felony. The State agreed to
dismiss the second count of first degree sexual assault
alleged in the amended information as a part of the plea
agreement. Also as a part of the plea agreement, Robeson and
the State would jointly recommend a sentence of 40 to 40
State provided a factual basis for Robeson's plea to
first degree sexual assault. According to that factual basis,
Robeson was a teacher who began a romantic relationship with
one of his seventh grade students. Robeson was initially the
victim's mentor, but the relationship escalated into
their kissing and having sexual intercourse on multiple
occasions. When the victim was interviewed, she said that she
and Robeson were dating and that she planned on marrying him
and having children with him. When Robeson was [25 Neb.App.
141] interviewed by law enforcement, he admitted that he
loved the victim and was not ashamed of his relationship with
her. He described that he began talking to the victim when
she was 12 years old but did not begin intimate contact with
her until she was 13 years old. He admitted that he engaged
in sexual intercourse with the victim at various locations,
including her house and his car. Robeson was 34 to 35 years
old during this time, and the victim was 13 to 14 years old.
The sexual penetration occurred "[o]n or about"
September 1, 2014, through December 27, 2015.
district court found that Robeson understood the nature of
the charge against him and the possible sentence; that his
plea was made freely, knowingly, intelligently, and
voluntarily; and that the factual basis supported his plea.
The court then accepted Robeson's guilty plea to first
degree sexual assault.
the court accepted Robeson's guilty plea, defense counsel
indicated to the court that "in light of the plea
agreement we're asking for an expedited sentencing."
The court then confirmed with counsel that Robeson was
waiving his right to have a presentence investigation report
sentencing hearing was held on October 11, 2016. At the start
of this hearing, defense counsel asked the court for "a
short postponement" of sentencing. The court denied this
request. Defense counsel and Robeson then provided statements
to the court wherein each asked for leniency and
"mercy" from the court. In fact, defense counsel
specifically asked the court to consider a minimum sentence
that is "slightly less" than the minimum of 40
years' imprisonment the parties had agreed to recommend
as part of the plea agreement.
response to the statements of defense counsel and Robeson,
both the State and the district court questioned whether
Robeson wished to withdraw his plea so that he did not have
to agree to jointly recommend a sentence of 40 to 40
years' imprisonment. The court indicated to Robeson that
it was "not going to consider less than the plea
agreement as that [25 Neb.App. 142] was the plea
agreement." Robeson briefly spoke with ...