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State v. St. Cyr

Court of Appeals of Nebraska

July 3, 2018

State of Nebraska, appellee,
v.
Luke A. St. Cyr, appellant.

         1. 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.

         2. 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.

         3. __:__. 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?

         4. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine 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.

         5. Sentences. When imposing a sentence, the 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 offense.

         6. __ . 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.

         [26 Neb.App. 62] 7. Criminal Law: Restitution: Damages. Neb. Rev. Stat. § 29-2280 (Reissue 2016) vests trial courts with the authority to order restitution for actual damages sustained by the victim of a crime for which a defendant is convicted.

         8. Sentences: Restitution: Damages. After the sentencing court determines that a conviction warrants restitution, it then becomes the sentencing court's factfinding responsibility to determine the victim's actual damages and the defendant's ability to pay.

         9. 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.

         10. 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.

         11. Effectiveness of Counsel: Pleas: Proof. To show prejudice when the alleged ineffective assistance relates to the entry of a plea, the defendant must show that there is a reasonable probability that, but for counsel's errors, he or she would not have entered the plea and would have insisted on going to trial.

         12. Effectiveness of Counsel: Proof. The two prongs of the ineffective assistance test under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), deficient performance and prejudice, may be addressed in either order.

         13. Effectiveness of Counsel: Sentences. Neb. Rev. Stat. §§ 29-2261 and 29-2204.03 (Reissue 2016) give the court the discretion to order further evaluations of the defendant prior to sentencing when it deems such evaluations necessary for determining the sentence to be imposed; neither statute provides that a defendant can or should request the evaluations. Trial counsel cannot be deficient for failing to request evaluations that the court itself could have ordered, but in its discretion deemed unnecessary.

          Appeal from the District Court for Madison County: James G. Kube, Judge.

          Ryan J. Stover, of Stratton, DeLay, Doele, Carlson & Buettner, PC, L.L.O., for appellant.

         [26 Neb.App. 63] Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee. Moore, Chief Judge, and Bishop and Arterburn, Judges.

          Bishop, Judge.

         I. INTRODUCTION

         Luke A. St. Cyr pled guilty to one count of first degree assault pursuant to Neb. Rev. Stat. § 28-308 (Reissue 2016), and the district court for Madison County sentenced him to 40 to 50 years' imprisonment and ordered him to pay $100, 000 in restitution. St. Cyr argues that his sentence is excessive and that his counsel was ineffective. For the following reasons, we affirm in part, but because we find the court did not meaningfully consider St. Cyr's ability to pay restitution, we vacate the sentence of restitution and remand the cause with directions.

         II. BACKGROUND

         On December 13, 2016, the State filed an information charging St. Cyr with first degree assault pursuant to § 28-308, a Class II felony. The ...


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