1. Double Jeopardy: Lesser-Included
Offenses: Appeal and Error. Whether two provisions
are the same offense for double jeopardy purposes presents a
question of law, on which an appellate court reaches a
conclusion independent of the court below.
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: Appeal and Error.
Whether a claim of ineffective assistance of trial counsel
may be determined on direct appeal is a question of law.
Judgments: Appeal and Error. When reviewing
questions of law, an appellate court resolves the questions
independently of the lower court's conclusion.
Double Jeopardy. The Double Jeopardy Clauses
of the federal and Nebraska constitutions protect against
three distinct abuses: (1) a second prosecution for the same
offense after acquittal, (2) a second prosecution for the
same offense after conviction, and (3) multiple punishments
for the same offense.
Constitutional Law: Double Jeopardy. The
protection provided by Nebraska's double jeopardy clause
is coextensive with that provided under the U.S.
Criminal Law: Conspiracy: Double Jeopardy.
Under the Double Jeopardy Clause, the subdivision of a single
criminal conspiracy into multiple violations of one
conspiracy statute is prohibited.
9. Double Jeopardy. The traditional test
used to determine whether two charged offenses constitute
only one offense is the Blockburger v. United
States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932),
or "same evidence, " test.
Under the Blockburger v. United States, 284 U.S.
299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), or "same
evidence, " test, the offenses are considered identical
for double jeopardy purposes where the evidence required to
support conviction on one offense is sufficient to support
conviction on the other offense.
.A totality of the circumstances test for purposes of double
jeopardy considers five factors: (1) time, (2) identity of
the alleged coconspirators, (3) the specific offenses
charged, (4) the nature and scope of the activity, and (5)
Conspiracy. The principal element of a
conspiracy is an agreement or understanding between two or
more persons to inflict a wrong against or injury upon
another, although an overt act is also required.
.A conspiracy is ongoing until the central purposes of the
conspiracy have either failed or been achieved.
Conspiracy: Proof: Presumptions. Upon proof
of participation in a conspiracy, a conspirator's
continuing participation is presumed unless the conspirator
demonstrates affirmative withdrawal from the conspiracy.
Conspiracy. Withdrawal from a conspiracy
must be effectuated by more than ceasing, however
definitively, to participate in the conspiracy.
16. _ .
A coconspirator must make an affirmative action either by
making a clean break to the authorities or by communicating
abandonment in a manner calculated to reach coconspirators
and must not resume participation in the conspiracy.
17. _ .
In order to constitute multiple conspiracies, the agreements
must be distinct and independent from each other.
18. _ .
There may be a continuing conspiracy with changing
coconspirators so long as there are never fewer than two
19. _ .
A gap wherein there are fewer than two coconspirators breaks
the continuity and the subsequent appearance of a new and
different coconspirator creates a new and separate
20. _ .
It is necessary for one conspiracy to end before a second
distinct and separate conspiracy can be formed; the question
is whether there was a break, for an appreciable time, in the
sequence of events, in order to categorize the agreements as
separate and distinct.
21. _ .
As a practical matter, the fact that a conspirator in a
two-person conspiracy seeks a replacement for a departed
would-be cohort is a strong indication of the failure of one
conspiracy and the creation of another.
Neb.App. 354] 22. Sentences. When imposing a
sentence, the sentencing court is to consider factors such as
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. However, the sentencing court is not
limited to any mathematically applied set of factors.
23. _ .
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.
Traditionally, a sentencing court is accorded very wide
discretion in determining an appropriate 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: 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
Trial: Effectiveness of Counsel: Evidence: Appeal and
Error. An ineffective assistance of counsel claim
will not be addressed on direct appeal if it requires an
from the District Court for Hamilton County: Rachel A.
Daugherty, Judge. Affirmed.
Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom &
Stehlik, PC, L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. ...