State v. Collins , 307 Neb. 581 ( 2020 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. COLLINS
Cite as 307 Neb. 581
State of Nebraska, appellee, v.
Miranda M. Collins, appellant.
___ N.W.2d ___
Filed October 23, 2020. No. S-19-959.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Appeal and Error. An appellate court independently reviews questions
of law in appeals from the county court.
5. Criminal Law: Courts: Appeal and Error. When deciding appeals
from criminal convictions in county court, an appellate court applies the
same standards of review that it applies to decide appeals from criminal
convictions in district court.
6. 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 con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
7. ____: ____. Absent an abuse of discretion by the trial court, an appellate
court will not disturb a sentence imposed within the statutory limits.
8. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
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9. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, which an appellate court reviews independently.
10. 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
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
11. Effectiveness of Counsel: Appeal and Error. An appellate court
determines as a matter of law whether the record conclusively shows
that (1) a defense counsel’s performance was deficient or (2) a defend­
ant was or was not prejudiced by a defense counsel’s alleged defi-
cient performance.
12. 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 con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
13. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law abiding conduct, and (6) moti-
vation 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.
14. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment 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.
15. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
16. Statutes. To the extent there is a conflict between two statutes, the spe-
cific statute controls over the general statute.
17. Statutes: Legislature: Presumptions: Intent. In enacting a statute, the
Legislature must be presumed to have knowledge of all previous legis-
lation upon the subject. The Legislature is also presumed to know the
language used in a statute, and if a subsequent act on the same or similar
subject uses different terms in the same connection, the court must pre-
sume that a change in the law was intended.
18. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that his or her counsel’s
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STATE v. COLLINS
Cite as 307 Neb. 581
performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense.
19. ____: ____. To show that counsel’s performance was deficient, a defend­
ant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
20. ____: ____. To show prejudice in a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding
would have been different.
21. Words and Phrases. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
Appeal from the District Court for Lancaster County, Susan
I. Strong, Judge, on appeal thereto from the County Court for
Lancaster County, Timothy C. Phillips, Judge. Judgment of
District Court affirmed.
Stephanie Flynn, of Stephanie Flynn Law, P.C., L.L.O., and
Toni Wilson, of Leija Wilson Law, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Miranda M. Collins appeals the order of the district court
for Lancaster County which affirmed her convictions and sen-
tences in the county court for Lancaster County for operating
a motor vehicle to avoid arrest and obstructing a police officer.
Collins claims on appeal that the district court erred when it
affirmed what she asserts was an excessive sentence imposed
by the county court and when it affirmed the county court’s
order directing that her appearance bond be applied to fines
and costs. She also claims that trial counsel provided inef-
fective assistance because counsel failed to present sufficient
evidence and information at the sentencing hearing. We affirm
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307 Nebraska Reports
STATE v. COLLINS
Cite as 307 Neb. 581
the order of the district court which affirmed Collins’ convic-
tions and sentences.
STATEMENT OF FACTS
On March 22, 2019, Collins was arrested, and the State filed
a complaint in the county court charging her with operating a
motor vehicle to avoid arrest in violation of Neb. Rev. Stat.
§ 28-905 (Reissue 2016). The State alleged, inter alia, that the
offense was committed “in willful reckless operation of the
motor vehicle,” and the State therefore charged the offense as
a Class IV felony pursuant to § 28-905(3). The factual basis
presented by the State indicates that the charge arose from an
incident in which, during a traffic stop of a vehicle driven by
Collins, the officer detected the odor of marijuana and asked
Collins to step out of the vehicle so that the officer could
conduct a search. Collins refused to step out of the vehicle,
and instead, she rolled up her windows, locked the doors, and
sped off in the vehicle. The county court found probable cause
to detain Collins and set an appearance bond of “$7,500.00
Ten Percent.” On March 25, Collins filed an appearance bond
which stated that $750 had been deposited “in cash 90% of
which shall be returned to the defendant upon appearance as
required above and 10% of which shall be retained by the
Clerk for bond costs.”
On April 3, 2019, pursuant to a plea agreement, the State
filed an amended complaint in which it reduced the charge of
operating a motor vehicle to avoid arrest to a Class I misde-
meanor under § 28-905(2) and added a charge of obstructing
a peace officer, a Class I misdemeanor, in violation of Neb.
Rev. Stat. § 28-906 (Reissue 2016). Collins pled guilty to both
charges, and the county court found a factual basis and found
Collins guilty of both charges. That same day, after grant-
ing Collins a sentencing allocution, the county court ordered
Collins to pay a fine of $750 on the conviction for operating
a motor vehicle to avoid arrest and to pay a fine of $250 on
the conviction for obstructing a peace officer. In connection
with the conviction for operating a motor vehicle to avoid
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STATE v. COLLINS
Cite as 307 Neb. 581
arrest, the county court also ordered that Collins’ driver’s
license be revoked for 1 year. The court ordered Collins to
pay costs, and the court further ordered that after the $75
(representing 10 percent of the deposit) had been retained by
the clerk, the $675 balance held on Collins’ appearance bond
be applied to payment of the fines and costs imposed as part
of her sentence.
On April 5, 2019, Collins’ counsel filed a motion for new
trial in which he asserted that subsequent to the April 3 sen-
tencing hearing, he had learned new information that, if he had
known of it at the time of Collins’ sentencing, he would have
offered for the court’s consideration. Counsel characterized
such information as “newly discovered evidence,” which he
alleged required a new trial. That same day, counsel also filed a
motion to reconsider sentence in which counsel alleged that the
“newly discovered evidence” required the court to reconsider
the sentence imposed. Counsel’s particular objection to the
sentence focused on the revocation of Collins’ driver’s license
for 1 year.
In his affidavit, Collins’ counsel stated that in a separate
case, Collins anticipated being bonded into drug court; that
she risked losing her housing if she could not demonstrate
participation in a drug treatment program; and that a prompt
resolution of the present case was necessary to avoid delaying
her entry into drug court in the other case. Counsel stated that
the urgency to resolve the present case limited the time he had
to prepare with Collins for sentencing and that therefore, he did
not learn certain relevant information about Collins before the
April 3, 2019, plea and sentencing hearing. Counsel asserted
the new information was generally that Collins was a single
mother and a student who had no family or friends who could
help her with transportation and that if her driver’s license
were revoked, she would not be able to transport her children
to school or transport herself to attend classes.
After a hearing, the county court denied both Collins’
motion for new trial and her motion to reconsider sentence.
At the hearing on the motions, the county court stated that if
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STATE v. COLLINS
Cite as 307 Neb. 581
it “had known some of these things beforehand, [it] probably
would have likely ruled differently,” but it did not think that
it could “go back and change it at this point in time based
on these motions the way they’re brought before the Court.”
In response to Collins’ query regarding the bond, the county
court stated that it did not think it could be returned to her
because the bond had “already been applied.” In the order
denying the motions, the county court stated that the appear-
ance bond was to remain applied to fines and costs and not
returned to Collins.
Collins appealed her convictions and sentences to the dis-
trict court. In her statement of errors, Collins claimed that
the county court (1) imposed an excessive sentence when it
revoked her driver’s license and (2) erred when it ordered that
her bond be applied to fines and costs.
After a hearing, the district court entered an order which
affirmed Collins’ convictions and sentences. Regarding Collins’
claim of excessive sentence, the district court noted that the
sentence of a $750 fine and a 1-year license revocation for
operating a motor vehicle to avoid arrest was within the statu-
tory limits. The district court noted that Collins had requested
that she be sentenced to probation rather than imprisonment
to facilitate her participation in drug court in a separate case.
Because the county court had declined to impose either impris-
onment or probation, which would have been within the statu-
tory limits, the district court found the sentence of a fine and
revocation to be lenient considering the nature of the offense.
The district court determined that the county court’s sentence
was not based on reasons that were untenable or clearly against
the evidence, and it concluded that the sentence imposed by the
county court was not an abuse of discretion.
Regarding the county court’s order to apply the bond to
fines and costs, Collins argued that the order violated Neb.
Rev. Stat. § 29-901 (Cum. Supp. 2018) and case law interpret-
ing that statute, which Collins asserted made it mandatory for
the court to return 90 percent of the bond deposit to her. The
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STATE v. COLLINS
Cite as 307 Neb. 581
district court noted, however, that subsequent to the case law
cited by Collins, the Legislature had amended Neb. Rev. Stat.
§ 29-2206 (Reissue 2016) to allow a court to deduct fines or
costs from a bond posted by the offender. The district court
concluded that the county court appropriately exercised its
discretion when it applied the bond deposit to fines and costs
imposed in Collins’ sentence.
Collins appeals the district court’s order which affirmed
her convictions and sentences in the county court. The district
court appointed new counsel to represent Collins on appeal.
ASSIGNMENTS OF ERROR
Collins claims that the district court erred when it rejected
her claims that (1) the county court imposed an excessive
sentence for operating a motor vehicle to avoid arrest and
(2) the county court erred when it ordered that her bond be
applied to fines and costs. Collins also claims that she received
ineffective assistance of counsel in the county court because
“counsel failed to present sufficient evidence and informa-
tion for the [county court’s] consideration in determining the
proper sentence and thus her right to a fair sentencing hearing
was prejudiced.”
STANDARDS OF REVIEW
[1-5] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals,
and its review is limited to an examination of the record for
error or abuse of discretion. State v. Valentino, 305 Neb. 96,
939 N.W.2d 345 (2020). Both the district court and a higher
appellate court generally review appeals from the county court
for error appearing on the record. Id. When reviewing a judg-
ment for errors appearing on the record, an appellate court’s
inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. Id. But we independently review
questions of law in appeals from the county court. Id. When
deciding appeals from criminal convictions in county court,
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STATE v. COLLINS
Cite as 307 Neb. 581
we apply the same standards of review that we apply to decide
appeals from criminal convictions in district court. Id.
[6-8] 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. State v. Canaday, ante p. 407, ___ N.W.2d ___
(2020). Absent an abuse of discretion by the trial court, an
appellate court will not disturb a sentence imposed within the
statutory limits. State v. Martinez, 306 Neb. 516, 946 N.W.2d
445 (2020). An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. Id.
[9] Statutory interpretation presents a question of law, which
an appellate court reviews independently. State v. Wilson, 306
Neb. 875, 947 N.W.2d 704 (2020).
[10,11] 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 without an evidentiary hearing or whether the claim
rests solely on the interpretation of a statute or constitutional
requirement. State v. Theisen, 306 Neb. 591, 946 N.W.2d 677
(2020). We determine as a matter of law whether the record
conclusively shows that (1) a defense counsel’s performance
was deficient or (2) a defendant was or was not prejudiced by
a defense counsel’s alleged deficient performance. Id.
ANALYSIS
County Court Did Not Abuse
Its Discretion When
Imposing Sentence.
Collins first claims that the district court erred when it
rejected her claim that the county court imposed an excessive
sentence. Collins’ argument focuses on the sentence imposed
for operating a motor vehicle to avoid arrest and specifically
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STATE v. COLLINS
Cite as 307 Neb. 581
on the county court’s order revoking her license for 1 year.
We find no abuse of discretion in the sentencing, and we there-
fore affirm the district court’s order rejecting this claim.
The county court sentenced Collins to pay a fine of $750
for operating a motor vehicle to avoid arrest and a fine of
$250 for obstructing a peace officer. In connection with the
conviction for operating a motor vehicle to avoid arrest, the
court also ordered that Collins’ driver’s license be revoked for
1 year. Collins’ argument focuses on the sentence for operat-
ing a motor vehicle to avoid arrest. She does not appear to
take issue with the $250 fine ordered for obstructing a peace
officer, and we do not discuss that conviction or sentence fur-
ther herein.
Operating a motor vehicle to avoid arrest had originally
been charged by the State as a Class IV felony pursuant to
§ 28-905(3), but the State reduced the charge pursuant to
the plea agreement and Collins pled guilty to operating a
motor vehicle to avoid arrest as a Class I misdemeanor under
§ 28-905(2). Under Neb. Rev. Stat. § 28-106 (Reissue 2016),
a Class I misdemeanor may be punished with imprisonment
for up to 1 year, a fine of up to $1,000, or both. In addition,
§ 28-905(2)(b) provides:
The court may, as part of the judgment of conviction under
subdivision (a) of this subsection, order that the opera-
tor’s license of such person be revoked or impounded
for a period of not more than one year and order the
person not to drive any motor vehicle for any purpose in
the State of Nebraska for a like period. The revocation
or impoundment shall be administered upon sentencing,
upon final judgment of any appeal or review, or upon the
date that any probation is revoked.
The county court’s imposition of a fine of $750 in this case
was within the statutory limits, and under § 28-905(2)(b), the
county court had discretion to revoke Collins’ license for up
to 1 year. The district court on appeal from the county court
noted that the county court did not impose a sentence of either
imprisonment or probation, and the district court concluded
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STATE v. COLLINS
Cite as 307 Neb. 581
that imposition of only a fine was a lenient sentence in light
of the circumstances. We agree that the imposition of a fine of
$750 was well within the statutory range and was not an abuse
of discretion given the circumstances of this case.
On appeal, Collins focuses her argument on the revocation
of her license. When, as in this case, the offense of operat-
ing a motor vehicle to avoid arrest is a misdemeanor under
§ 28-905(2)(a), then under § 28-905(2)(b), the court “may”
revoke the defendant’s license for not more than 1 year. The
use of “may” indicates that license revocation is discretionary
when the offense is a misdemeanor. Compare § 28-905(3)(b)
(providing that when offense is felony, court “shall” revoke
defendant’s license for 2 years).
[12-14] Collins argues the county court abused its discretion
when it revoked her license because it did not consider relevant
factors. 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. State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020).
In determining a sentence to be imposed, relevant factors cus-
tomarily 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. Id. 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. Id.
Collins contends that the county court failed to consider
the circumstances of her life when it revoked her license. In
particular, she notes that a license revocation will affect her
ability to participate in drug court and her ability to transport
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STATE v. COLLINS
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her children and herself to school. She also directs our attention
to the county court’s comment at the hearing on her motions
for new trial and to reconsider sentence to the effect that a dif-
ferent sentence may have been imposed if the court had known
some of the facts of Collins’ life before imposing sentence.
With respect to the county court’s alleged failure to consider
the facts of Collins’ life, the record shows that after Collins’
counsel had made arguments regarding sentencing, and before
it imposed sentence, the county court asked whether there was
anything Collins wanted to say and she declined to comment.
We view this as the county court’s having given Collins the
opportunity to bring relevant information to its attention, and
the court did not abuse its discretion when it did not question
her regarding unknown matters she now asserts were relevant
to her sentencing.
Further to her excessiveness claim, Collins contends the
county court “gave excessive weight to the facts and circum-
stances of the case.” Brief for appellant at 18. We believe this
contention tends to minimize the nature of the offense. We
note in this regard that the factual basis provided by the State
for Collins’ plea indicates that in committing the offense of
operating a motor vehicle to avoid arrest, Collins “sped away
from the traffic stop at a high rate of speed,” that she was
estimated to have driven “about 50 miles an hour through a
residential neighborhood,” and that she “violate[d] the traffic
sign . . . without slowing down, crossing traffic.” Such circum-
stances were relevant to the county court’s decision whether
to impose a license revocation. Notwithstanding the hardship
a license revocation invariably imposes on an offender, we
do not find that the county court abused its discretion when it
relied on the facts and circumstances of the case and ordered
license revocation.
We conclude that the sentence imposed by the county court
was not an abuse of discretion and that therefore, the district
court did not err when it rejected Collins’ argument that the
sentence was excessive.
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County Court Was Allowed by
Statute to Apply Bond to
Fines and Costs.
Collins next claims that the district court erred when it
rejected her claim that the county court erred when it ordered
that her bond be applied to pay the fines and costs imposed as
part of her sentence. We conclude that at the time of the sen-
tencing, the statutes allowed the county court to so order, and
that the district court did not err when it rejected this claim.
Collins contends that the county court’s order to deduct
fines and costs from the bond deposit violated § 29-901, State
v. Zamarron, 19 Neb. Ct. App. 349, 806 N.W.2d 128 (2011), and
State v. McKichan, 219 Neb. 560, 364 N.W.2d 47 (1985).
Section 29-901 provides in part that a deposit of not more
than 10 percent of the amount of the bond may be made with
the clerk of the court, with “ninety percent of such deposit
to be returned to the defendant upon the performance of the
appearance or appearances and ten percent to be retained by
the clerk as appearance bond costs.” In Zamarron, supra, the
Nebraska Court of Appeals concluded that the district court
erred when it applied the defendant’s appearance bond to
pay court costs that the defendant had been ordered to pay
as part of his sentence. The Court of Appeals cited § 29-901
and stated that an “appearance bond must be refunded (less
any applicable statutory fee) after full compliance with all
court orders to appear.” Zamarron, 19 Neb. Ct. App. at 352, 806
N.W.2d at 130. The Court of Appeals also cited McKichan,
supra. In McKichan, this court had held that “the deposit of
cash in lieu of or in support of bail under § 29-901 is for the
purpose only of ensuring the defendant’s appearance in court
when required; and upon full compliance with any such court
orders and release of bail, the statutory refund must be made.”
219 Neb. at 563, 364 N.W.2d at 49. Collins argues that the use
of the word “must” in both McKichan and Zamarron indicates
that the appellate courts have interpreted the refund under
§ 29-901 to be mandatory.
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But as the district court noted in its order which affirmed
Collins’ convictions and sentences subsequent to the decisions
in both McKichan and Zamarron, the Legislature in 2012
amended § 29-2206 by adding subsection (3), which provided
that the court “may deduct fines or costs from a bond posted
by the offender to the extent that such bond is not otherwise
encumbered by a valid lien, levy, execution, or assignment to
counsel of record or the person who posted the bond.” Collins
maintains that § 29-2206 conflicts with § 29-901 and that read-
ing the two statutes in pari materia yields an ambiguity which
must be resolved by applying the language of § 29-901, which
makes a refund mandatory.
[15,16] We disagree with Collins’ reading of the two stat-
utes. Components of a series or collection of statutes pertain-
ing to a certain subject matter are in pari materia and should
be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are con-
sistent, harmonious, and sensible. State v. Street, 306 Neb. 380,
945 N.W.2d 450 (2020). And to the extent there is a conflict
between two statutes, the specific statute controls over the gen-
eral statute. Id. Both § 29-901 and § 29-2206 address disposi-
tion of bonds, and we must read them in a manner such that
they are consistent, harmonious, and sensible when considered
with one another.
Collins proposes that any conflict between the statutes must
be resolved by favoring § 29-901, which she asserts is the
specific statute regarding return of a bond and controls over
§ 29-2206. Because Collins’ reading of the statutes does not
make the statutes consistent, harmonious, and sensible with one
another and under her reading § 29-901 nullifies § 29-2206, we
reject Collins’ proposal.
[17] Instead, we read § 29-901 as providing that generally,
90 percent of the bond deposit is to be returned to the defend­
ant; however, § 29-2206 provides a specific exception to that
general rule in that it allows the court to deduct fines and
costs from the bond deposit prior to return of the remainder,
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if any. This reading of the statutes is bolstered by the fact that
the relevant language in § 29-901 existed at the time the rel-
evant language was added to § 29-2206. In enacting a statute,
the Legislature must be presumed to have knowledge of all
previous legislation upon the subject. In re Estate of Psota,
297 Neb. 570, 900 N.W.2d 790 (2017). The Legislature is
also presumed to know the language used in a statute, and if
a subsequent act on the same or similar subject uses different
terms in the same connection, the court must presume that
a change in the law was intended. Id. See, also, Shipler v.
General Motors Corp., 271 Neb. 194, 216, 710 N.W.2d 807,
829 (2006) (“last expression of legislative will is the law”).
Therefore, we presume that when it amended § 29-2206
in 2012 to allow a court to deduct fines and costs from a
bond, the Legislature was aware of the language of § 29-901
requiring the return of 90 percent of the bond deposit to the
defendant. We therefore presume the Legislature specifically
intended that the deduction of fines and costs was an excep-
tion to the general rule that the bond deposit is to be returned
to the defendant.
We conclude that when the county court entered its order on
April 3, 2019, § 29-2206 allowed it to deduct fines and costs
from the bond deposit and § 29-901 did not prohibit it from
doing so. We therefore conclude that the district court did not
err when it affirmed the county court’s order to deduct fines
and costs from Collins’ appearance bond deposit.
Collins Has Not Shown
Ineffective Assistance
of Counsel.
Collins finally claims that she received ineffective assistance
of counsel in the county court because at the sentencing hear-
ing, “counsel failed to present sufficient evidence and informa-
tion for the [county court’s] consideration in determining the
proper sentence and thus her right to a fair sentencing hearing
was prejudiced.” We conclude that the record on direct appeal
does not show ineffective assistance.
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Whether a claim of ineffective assistance of trial counsel
can be determined on direct appeal depends upon the suffi-
ciency of the record to address the claim to determine whether
a defense counsel’s performance was deficient and whether the
defendant was prejudiced by the alleged deficient performance.
See State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020).
We have said the record is sufficient if it establishes either that
trial counsel’s performance was not deficient, that the appellant
will not be able to establish prejudice, or that trial counsel’s
actions could not be justified as a part of any plausible trial
strategy. Id.
[18-21] To prevail on a claim of ineffective assistance of
counsel, the defendant must show that his or her counsel’s
performance was deficient and that this deficient performance
actually prejudiced the defendant’s defense. State v. Anderson,
305 Neb. 978, 943 N.W.2d 690 (2020). To show that counsel’s
performance was deficient, a defendant must show that coun-
sel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. Id. To show prejudice, the
defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceed-
ing would have been different. Id. A reasonable probability is
a probability sufficient to undermine confidence in the out-
come. Id.
We note as an initial matter that in her brief, Collins argues
in part that counsel provided ineffective assistance because
counsel “failed to ask for [her] bond to be released to her.”
Brief for appellant at 28. We do not think this argument is
encompassed within Collins’ assignment of error in which she
alleges that “counsel failed to present sufficient evidence and
information for the [county court’s] consideration in determin-
ing the proper sentence.” See State v. Mrza, 302 Neb. 931,
926 N.W.2d 79 (2019) (providing that assignments of error
on direct appeal regarding ineffective assistance of trial coun-
sel must specifically allege deficient performance). In any
event, this claim is unavailing because as we discussed above,
at the time the county court ordered that fines and costs be
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deducted from Collins’ bond, the county court had statutory
authority to do so whether or not Collins requested return of
the bond, and therefore, counsel’s alleged failure to ask that the
bond be released to her did not prejudice Collins.
As quoted above, Collins primarily asserts that counsel pro-
vided ineffective assistance when “counsel failed to present
sufficient evidence and information for the [county court’s]
consideration in determining the proper sentence.” She spe-
cifically argues that at sentencing, counsel failed to present the
evidence that counsel later asserted in the motions for new trial
or to reconsider sentence all to the effect that newly discov-
ered evidence would show that a license revocation would be
a hardship for Collins. We determine that the record on direct
appeal does not show that counsel’s performance was deficient
in this regard and that the record refutes a finding that any such
deficiency was prejudicial.
Regarding deficient performance, a defendant must show
that counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. Anderson, supra.
The record on direct appeal does not contain evidence which
would assist this court in assessing what factors a lawyer with
ordinary training and skill would have presented at the sentenc-
ing, nor does it indicate that Collins’ counsel behaved unrea-
sonably when he focused on avoiding a sentence of imprison-
ment at the expense of other features of the sentence.
In the affidavit of counsel offered in support of the motions
for new trial and to reconsider sentence, counsel states that
“[d]ue to the urgency” of getting Collins into drug court, coun-
sel “had limited time between plea negotiations and plea entry
to discuss sentencing with [Collins],” and that counsel “was
unaware of certain facts about [Collins] that are material to
sentencing.” But rather than declaring that such circumstance
showed deficient performance, counsel stated to the contrary
that “due to extenuating circumstances, [counsel] could not
have with reasonable diligence discovered and produced [such
evidence] prior to or during sentencing.” Counsel’s affida-
vit, taken as a whole, refutes a determination that counsel’s
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failure to present the evidence at sentencing constituted defi-
cient performance.
Further, we believe that the record also refutes a finding of
prejudice. Regarding prejudice, the defendant must demon-
strate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been dif-
ferent, and a reasonable probability is a probability sufficient
to undermine confidence in the outcome. State v. Anderson,
305 Neb. 978, 943 N.W.2d 690 (2020). Collins gains some
support for her allegation of prejudice from the county court’s
comment at the hearing on the motions for new trial and to
reconsider sentence that if it “had known some of these things
beforehand, [it] probably would have likely ruled differently.”
However, the county court’s comment is vague as to what the
court would have done differently and we cannot presume that
the court would not have imposed a license revocation. We
cannot find that the court’s comment establishes a probability
sufficient to undermine confidence in the outcome.
We have reviewed the record and find that it refutes a find-
ing of prejudice even if counsel had been deficient. At the plea
hearing, the State informed Collins of the sentencing range for
the amended charges and stated that as to the charge of operat-
ing a motor vehicle to avoid arrest, “your driver’s license will
also be revoked for up to one year.” Collins stated that she
understood the charges and possible penalties just recited.
The State’s advisement, such as it was, could only have
alerted Collins and her counsel that license revocation could
follow. Later, in the plea colloquy, the county court asked
Collins whether she had “had enough time to think about [her]
plea and discuss it with [counsel],” and Collins replied that
she had. After accepting Collins’ plea and before pronouncing
sentence, the county court allowed counsel to argue on behalf
of Collins. After Collins’ counsel’s argument, the county court
asked whether Collins had “anything she wishe[d] to say,” and
Collins replied, “No.”
The record of the plea and sentencing hearing shows that
even if counsel was deficient in failing to inform Collins of
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the possibility of a license revocation and to solicit informa-
tion from Collins relevant to that possibility, such deficiency
did not prejudice Collins. After the State stated “your driver’s
license will also be revoked for up to one year,” the court
gave Collins the opportunity to say she had not discussed the
issue of a license revocation with counsel; instead, she said
she had had sufficient time to discuss her plea with counsel.
Also, prior to sentencing and after hearing the argument coun-
sel had made on her behalf, the court provided Collins the
opportunity to inform it of circumstances relevant to sentenc-
ing that had not been presented by counsel, but she chose not
to say anything.
We conclude that the record on direct appeal refutes Collins’
claim of ineffective assistance of counsel. We therefore reject
Collins’ claim on direct appeal that counsel provided ineffec-
tive assistance at sentencing.
CONCLUSION
We conclude that the district court did not err when it
rejected Collins’ claim that the county court imposed exces-
sive sentences and her claim that the county court erred when
it ordered that fines and costs be deducted from her bond. We
further conclude that Collins’ claim of ineffective assistance of
counsel is refuted by the record on direct appeal. We therefore
affirm the district court’s order which affirmed Collins’ convic-
tions and sentences.
Affirmed.