Judgments: Appeal and Error. When issues on
appeal present questions of law, an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision of the court below.
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
absent an abuse of discretion by the trial court.
Plea Bargains: Waiver: Appeal and Error. Where no
objection was made to the sentencing judge for a plea bargain
violation, the defendant has waived the error and it has not
been preserved for appellate review.
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 his
or her counsel's performance was deficient and that this
deficient performance actually prejudiced the defendant's
Courts: Plea Bargains. Courts enforce only those
terms and conditions actually agreed upon by the parties to a
Plea Bargains. A party breaches a plea agreement
either by (1) violating an express term of the agreement or
(2) acting in a manner not specifically prohibited by the
agreement but still incompatible with explicit promises made
Plea Bargains: Sentences. A sentencing
recommendation need not be enthusiastic in order to fulfill a
promise made in a plea agreement.
Appeal and Error. It is a fundamental rule of
appellate practice that an alleged error must be both
specifically assigned and specifically argued [304 Neb. 760]
in the brief of the party asserting the error to be
considered by an appellate court.
__. A generalized and vague assignment of error that does not
advise an appellate court of the issue submitted for decision
will not be considered.
Presentence Reports: Waiver. The statutory
right to have a presentence investigation completed prior to
being sentenced may be waived so long as that waiver was
knowingly and intelligently made.
Waiver. No formalistic litany of warnings is
required to show that a waiver was knowingly and
Presentence Reports: Waiver: Appeal and
Error. The appropriate standard to apply in the case
of a waiver of the right to a presentence investigation under
Neb. Rev. Stat. § 29-2261 (Cum. Supp. 2014) is whether
it is apparent from the totality of the circumstances
reflected in the record that the defendant, when waiving the
right, was sufficiently aware of his or her right to a
presentence investigation and the possible consequences of
his or her decision to forgo that right.
Criminal Law: Waiver. A knowing and
intelligent waiver may be demonstrated by or inferred from
the defendant's conduct.
Courts: Presentence Reports: Waiver. It is
the better practice for a sentencing court to issue a more
direct advisement of the statutory right to a presentence
investigation, conduct an explicit inquiry into the
voluntariness of a defendant's waiver of that right, and
make explicit findings with respect to a waiver.
Sentences: Appeal and Error. Absent an abuse of
discretion by the trial court, an appellate court will not
disturb a sentence imposed within the statutory limits.
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
Sentences. 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
Plea Bargains: Judges: Sentences. A judge is
in no manner bound to give a defendant the sentence
recommended by the prosecutor under a plea agreement.
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 [304 Neb.
761] without an evidentiary hearing or whether the claim
rests solely on the interpretation of a statute or
Effectiveness of Counsel: Records: Appeal and Error.
When 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
from the District Court for Hall County: John H. Marsh,
Jonathan M. Hendricks, of Dowding, Dowding, Dowding &
Urbom Law Offices, for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg,
case presents an appeal from a sentence imposed after the
defendant pled guilty pursuant to a plea agreement. The State
and the defendant had jointly agreed to recommend an 18-month
period of incarceration. The district court ultimately
sentenced the defendant to an indeterminate term of 18
months' to 5 years' incarceration, and the defendant
appeals. The defendant asserts that the State breached its
agreement to recommend a sentence of 18 months'
incarceration by remarking that it "struggled"
concerning the sentencing recommendation. Further, the
defendant argues that the court erred by failing to order a
presentence investigation when, although defense counsel
below stated that the defendant was waiving the presentence
investigation, the court only articulated that it had found
such an investigation to be impractical. The defendant argues
that the court abused its discretion in finding a [304 Neb.
762] presentence investigation impractical. The defendant
generally asserts that the sentence was excessive and was a
result of the court's abuse of discretion in failing to
consider all of the sentencing factors, such as mentality,
education and experience, or social and cultural background,
in part as a result of failing to conduct a presentence
investigation. Finally, the defendant argues that defense
counsel below was ineffective for failing to request the
proper amount of jail time credit pertaining to alleged time
spent in jail in another county under arrest warrants for
both the present case and the charges filed in that other
relation to a traffic stop that occurred in July 2015, the
defendant, Matthew P. Iddings, was originally charged under
"60-6, 196.15" with driving under the influence
(DUI), fourth offense aggravated, a Class III felony. Defense
counsel and the State reached a plea agreement pursuant to
which the State filed an amended information charging Iddings
with a nonag-gravated DUI, fourth offense, under Neb. Rev.
Stat. § 60-6, 196 (Reissue 2010), a Class IIIA felony.
amended information described that on July 2, 2015, Iddings
operated a motor vehicle and had a concentration of .08 of 1
gram or more by weight of alcohol per 100 milliliters of his
blood or .08 of 1 gram or more by weight of alcohol per 210
liters of his breath. The amended complaint further alleged
that this was the fourth DUI offense committed by Iddings,
who had been previously convicted of DUI in Nebraska on or
about May 26, 2005, and March 15 and December 12, 2007.
plea and sentencing hearing held on March 6, 2019, defense
counsel and the State explained to the court that they had
reached a plea agreement under which the State amended the
information from aggravated DUI, fourth offense, to
non-aggravated DUI, fourth offense, and agreed to recommend
jointly with defense counsel that Iddings be sentenced to 18
Neb. 763] As the factual basis for the crime, the State
recited that on July 2, 2015, the "Nebraska State Patrol
Help Line" received multiple telephone calls about a
potential drunk driver on Interstate 80. An officer was able
to locate the vehicle and observed both passenger-side tires
drive off the shoulder of the roadway two different times.
The officer conducted a traffic stop and, upon contact with
the driver, Iddings, noticed a smell of alcoholic beverage. A
blood draw was eventually conducted on Iddings, which
demonstrated .307 grams of alcohol per 100 milliliters of
counsel agreed with the factual basis. Defense counsel also
stated the defense was willing to stipulate to the prior DUI
offenses alleged in the information and that Iddings had been
represented by an attorney in each of the three prior
court found the factual basis adequate to support the plea.
After a standard plea colloquy, the court accepted
Iddings' no contest plea. The court found that the plea
was not a result of any promise or threat; that the plea was
entered knowingly, voluntarily, and intelligently; and that
Iddings knowingly, voluntarily, and intelligently waived his
counsel advised the court that Iddings' preference was to
proceed immediately to sentencing, noting that he had
calculated the jail time credit. The court did so.
the court asked about a presentence investigation, defense
counsel stated, "Your honor, . . . Iddings will waive
his right to a presentence investigation." When asked by
the court for its comments, the State expressed that it had
no objection to Iddings' waiver of the presentence
investigation. However, Iddings was not personally addressed
by the court regarding such waiver.
State noted with regard to Iddings' criminal history that
other than the three prior convictions listed on the
information, Iddings also had a prior DUI in 1997. Further,
he had committed a more recent DUI in Sarpy County around the
same time as the charge he had just pled to and for which in
October 2018 [304 Neb. 764] he had been sentenced to 18
months' incarceration. Lastly. Iddings had a pending DUI
charge in Grant County.
counsel did not contest this history other than clarifying
that Iddings had just finished serving his sentence on the
Sarpy County conviction in October 2018, as opposed to being
sentenced in October 2018. Further, defense counsel described
that Iddings had already pled guilty to the charge of
nonaggravated DUI, fourth offense, in Grant County and was
being so informed of the pending charges in Grant County, the
district court for Hall County confirmed that Iddings was
"likely to be transported to another county when [Hall
County authorities were] done with him." The court found
"under those circumstances that a presentence
investigation is impractical." Defense counsel did not
object to this conclusion. The court did not make an express
finding that the presentence investigation had been waived.
counsel asked the court to adopt the plea agreement and
sentence Iddings to 18 months' incarceration with 136
days' credit. Defense counsel informed the court that
Iddings had been in jail from October 23, 2017, to the date
of the hearing, March 6, 2019, and that he had been in jail
for 2 additional days in 2015.
counsel asked the court to consider in sentencing that
Iddings had not been out of jail since 2017 and had thus
experienced a long period of sobriety. According to defense
counsel, Iddings fully intended to "walk out of the
Department of Corrections a better man than when he ...