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
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
Trial: Waiver: Appeal and Error. Failure to
make a timely objection waives the right to assert
prejudicial error on appeal.
Sentences: Waiver: Appeal and Error.
Generally, where no objection is made at a sentencing hearing
when a defendant is provided an opportunity to do so, any
claimed error is waived and is not preserved for appellate
Appeal and Error. An appellate court may
find plain error on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant's substantial
right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process.
Rules of the Supreme Court: Interpreters.
Pursuant to Neb. Rev. Stat. § 25-2405 (Reissue 2016), a
court interpreter is not required to recite an [27 Neb.App.
706] oath at the beginning of each proceeding if already
certified under the rules of the Nebraska Supreme Court.
Appeal and Error. An alleged error must be
both specifically assigned and specifically argued in the
brief of the party asserting the error to be considered by an
An appellate court does not consider errors which are argued
but not assigned.
Effectiveness of Counsel. As a matter of
law, counsel cannot be ineffective for failing to raise a
Sentences: Time. A sentence validly imposed
takes effect from the time it is pronounced.
Sentences. When a valid sentence has been
put into execution, the trial court cannot modify, amend, or
revise it in any way, either during or after the term or
session of court at which the sentence was imposed.
Judgments: Records. When there is a conflict
between the record of a judgment and the verbatim record of
the proceedings in open court, the latter prevails.
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
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.
___. 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
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 in order to preserve such claim. Once raised,
the appellate court will determine whether the record on
appeal is sufficient to review the merits of the ineffective
Effectiveness of Counsel: Records: Proof: Appeal and
Error. An ineffective assistance of counsel claim
made on direct appeal can be found to be without merit if the
record establishes that trial counsel's [27 Neb.App.
707]performance was not deficient or that the appellant could
not establish prejudice.
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 has the burden to
show that his or her counsel's performance was deficient
and that this deficient performance actually prejudiced the
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
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.
Pleas. To support a finding that a defendant
has entered a guilty plea freely, intelligently, voluntarily,
and understandingly, a court must inform a defendant
concerning (1) the nature of the charge, (2) the right to
assistance of counsel, (3) the right to confront witnesses
against the defendant, (4) the right to a jury trial, and (5)
the privilege against self-incrimination. The record must
also establish a factual basis for the plea and that the
defendant knew the range of penalties for the crime charged.
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 Sarpy County: George A. Thompson,
Judge. Affirmed as modified, ...