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State v. Blaha

Supreme Court of Nebraska

June 21, 2019

State of Nebraska, appellee,
v.
Ryan W. Blaha, 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. Judgments: Words and Phrases: 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.

         3. 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. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are 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 a 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. In determining a sentence to be imposed, relevant factors customarily considered and applied are 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.

         6. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's [303 Neb. 416] demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

         7. Trial: Judges: Sentences. The law invests a trial judge with a wide discretion as to the sources and types of information used to assist him or her in determining the sentence to be imposed within statutory limits.

         8. Pleas: Waiver. Generally, a voluntary guilty plea or plea of no contest waives all defenses to a criminal charge.

         9. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or no contest, he or she is limited to challenging whether the plea was understanding and voluntarily made and whether it was the result of ineffective assistance of counsel.

         10. Effectiveness of Counsel: Records: 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.

         11. Effectiveness of Counsel: Proof. Generally, 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 his or her counsel's performance was deficient and that this deficient performance actually prejudiced the defendant's defense.

         12. ____: .___. To show that counsel's performance was deficient, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.

         13. Effectiveness of Counsel: Pleas. In a plea context, deficiency depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.

         14. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is based upon a guilty or no contest plea, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty.

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

         16. Effectiveness of Counsel: Proof: Appeal and Error. An appellant must make specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel when raising an ineffective assistance claim on direct appeal. General allegations that trial counsel [303 Neb. 417] performed deficiently or that trial counsel was ineffective are insufficient to raise an ineffective assistance claim on direct appeal.

         17. Presentence Reports. A defendant has a qualified right to review his or her presentence report, and the defendant may, with his or her attorney, examine the presentence report subject to the court's supervision.

         18. Presentence Reports: Waiver: Notice. A defendant waives his or her qualified right to review the presentence investigation report by not notifying the trial court that he or she has not personally reviewed the report and that he or she wishes to do so.

          Appeal from the District Court for Douglas County: Peter C. Bataillon, Judge. Affirmed.

          Thomas C. Riley, Douglas County Public Defender, and Katie L. Jadlowski for appellant.

          Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

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

          CASSEL, J.

         I. INTRODUCTION

         Through new counsel, Ryan W. Blaha appeals his criminal convictions and sentences, attacking the sentences imposed and asserting ineffective assistance of trial counsel. Regarding his sentences, we (1) again reject the premise that sentences within statutory limits are never excessive, (2) dispel the notion that sentencing factors have not been adequately considered without specific discussion, and (3) reiterate that a sentencing court may consider a defendant's conduct underlying dismissed charges. Although the record does not allow us to reach one of his four ineffectiveness claims, we find no merit to the others, which are, respectively, refuted by the record, not prejudicial, and insufficiently alleged. We affirm.

          [303 Neb. 418] II. BACKGROUND

         In March 2017, the State charged Blaha with eight counts, including assault in the first degree and use of a deadly weapon to commit a felony. From that time until the plea hearing in July 2018, no pretrial motions were filed. At the hearing, the parties announced a plea agreement, in which Blaha would plead no contest to those two charges and in exchange the State would dismiss the remaining charges. After the district court informed Blaha of his constitutional rights and received his pleas of no contest, the State set forth a factual basis for the charges. The district court accepted Blaha's pleas of no contest, found him guilty beyond a reasonable doubt, and dismissed the remaining charges.

         When the court asked trial counsel at the sentencing hearing whether he had any additions or corrections to the presentence investigation report, he directed the court to the documents which already had been shared with the court. Before the sentences were pronounced, trial counsel and the State made arguments. Blaha exercised his right to allocution and expressed remorse and responsibility for his actions. When pronouncing its sentences, the district court discussed mainly the nature of the offense and the amount of violence involved, but also mentioned Blaha's age and mental illness as mitigating factors. It sentenced Blaha to consecutive sentences of 30 to 40 years' imprisonment for assault in the first degree and 15 to 30 years' imprisonment for use of a deadly weapon to commit a felony.

         Blaha filed a timely appeal, which we moved to our docket.[1]

         III. ASSIGNMENTS OF ERROR

         Blaha assigns, restated and reordered, that (1) the district court abused its discretion by imposing excessive sentences and (2) he received ineffective assistance of trial counsel where counsel (a) failed to advise Blaha of the statutory [303 Neb. 419] sentencing ranges, (b) failed to correct the State's factual basis for the pleas, (c) failed to engage in pretrial litigation, and (d) failed to allow Blaha to review the presentence investigation report.

         IV. STANDARD OF REVIEW

         An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.[2] 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.[3]

         Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective ...


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