State v. Robeson ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/17/2017 09:09 AM CDT
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STATE v. ROBESON
Cite as 25 Neb. App. 138State of Nebraska, appellee, v.
Brian P. Robeson, appellant.
___ N.W.2d ___
Filed October 17, 2017. No. A-16-1056.
1. 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.
2. Sentences: Appeal and Error. An appellate court will not disturb a
sentence imposed within the statutory limits unless the trial court abused
its discretion.
3. Sentences: Words and Phrases: Appeal and Error. An appellate court
reviews criminal sentences for an abuse of discretion, which 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.
4. 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.
5. Criminal Law: Presentence Reports. The plain language of Neb. Rev.
Stat. § 29-2261(1) (Reissue 2016) provides that a presentence investiga-
tion is generally required in felony cases; however, there are exceptions
under which such an investigation is unnecessary.
6. Presentence Reports. A presentence investigation may be impractical
where another investigation had just been completed.
7. Presentence Reports: Waiver. A presentence investigation may be
waived.
8. Attorney and Client: Waiver. A defendant may waive a right by
silently acquiescing to the waiver given by his counsel, and by failing to
object and raise the issue to a trial court.
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Cite as 25 Neb. App. 1389. Sentences. In imposing a sentence, a 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 amount of violence involved in the
commission of the crime.
10. ____. Neb. Rev. Stat. § 29-2204 (Reissue 2016) requires a sentence for
a Class II felony to have different minimum and maximum terms of
imprisonment.
11. Sentences: Time. Neb. Rev. Stat. § 29-2204 (Reissue 2016) is not effec-
tive unless the offense was committed on or after August 30, 2015.
12. ____: ____. When an element of the charged offense occurred prior to
August 30, 2015, Neb. Rev. Stat. § 29-2204 (Reissue 2016) does not
apply to the defendant’s sentence.
13. Sentences. A sentence with the same minimum term and maximum term
is an indeterminate sentence.
14. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant 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.
15. 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.
16. Effectiveness of Counsel: Proof: Appeal and Error. General allega-
tions 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 review.
Appeal from the District Court for Douglas County:
K imberly Miller Pankonin, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Mikki C. Jerabek for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
for appellee.
Moore, Chief Judge, and Bishop and A rterburn, Judges.
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STATE v. ROBESON
Cite as 25 Neb. App. 138A rterburn, Judge.
I. INTRODUCTION
Brian P. Robeson appeals from his plea-based conviction
for first degree sexual assault. On appeal, Robeson asserts
that the district court erred in imposing an excessive sentence
and in sentencing him without first obtaining a presentence
investigation report. Robeson also asserts that he received inef-
fective assistance of counsel. For the reasons set forth herein,
we affirm.
II. BACKGROUND
On January 4, 2016, the State filed an information charg-
ing Robeson with two counts of first degree sexual assault
of a child, in violation of Neb. Rev. Stat. § 28-319.01(1)(b)
(Reissue 2016), each a Class IB felony. On September 22, a
hearing was held. At this hearing, defense counsel informed
the district court that a plea agreement had been reached.
Counsel indicated that as a part of the plea agreement, Robeson
would plead guilty to one count of first degree sexual assault,
as alleged in the amended information. The State was granted
leave to file an amended information charging Robeson with
two counts of first degree sexual assault, in violation of Neb.
Rev. Stat. § 28-319(1)(c) (Reissue 2016), each a Class II
felony. The State agreed to dismiss the second count of first
degree sexual assault alleged in the amended information as
a part of the plea agreement. Also as a part of the plea agree-
ment, Robeson and the State would jointly recommend a sen-
tence of 40 to 40 years’ imprisonment.
The State provided a factual basis for Robeson’s plea to
first degree sexual assault. According to that factual basis,
Robeson was a teacher who began a romantic relationship
with one of his seventh grade students. Robeson was ini-
tially the victim’s mentor, but the relationship escalated into
their kissing and having sexual intercourse on multiple occa-
sions. When the victim was interviewed, she said that she
and Robeson were dating and that she planned on marry-
ing him and having children with him. When Robeson was
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Cite as 25 Neb. App. 138interviewed by law enforcement, he admitted that he loved the
victim and was not ashamed of his relationship with her. He
described that he began talking to the victim when she was
12 years old but did not begin intimate contact with her until
she was 13 years old. He admitted that he engaged in sexual
intercourse with the victim at various locations, including her
house and his car. Robeson was 34 to 35 years old during this
time, and the victim was 13 to 14 years old. The sexual pen-
etration occurred “[o]n or about” September 1, 2014, through
December 27, 2015.
The district court found that Robeson understood the nature
of the charge against him and the possible sentence; that
his plea was made freely, knowingly, intelligently, and vol-
untarily; and that the factual basis supported his plea. The
court then accepted Robeson’s guilty plea to first degree
sexual assault.
After the court accepted Robeson’s guilty plea, defense
counsel indicated to the court that “in light of the plea agree-
ment we’re asking for an expedited sentencing.” The court then
confirmed with counsel that Robeson was waiving his right to
have a presentence investigation report completed.
A sentencing hearing was held on October 11, 2016. At
the start of this hearing, defense counsel asked the court for
“a short postponement” of sentencing. The court denied this
request. Defense counsel and Robeson then provided statements
to the court wherein each asked for leniency and “mercy” from
the court. In fact, defense counsel specifically asked the court
to consider a minimum sentence that is “slightly less” than the
minimum of 40 years’ imprisonment the parties had agreed to
recommend as part of the plea agreement.
In response to the statements of defense counsel and
Robeson, both the State and the district court questioned
whether Robeson wished to withdraw his plea so that he did
not have to agree to jointly recommend a sentence of 40 to 40
years’ imprisonment. The court indicated to Robeson that it
was “not going to consider less than the plea agreement as that
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Cite as 25 Neb. App. 138was the plea agreement.” Robeson briefly spoke with counsel
and then explicitly indicated that he did not want to withdraw
his plea. He also stated as follows:
Before the sentence I talked at length with my lawyer
about the 40 to 40 and how I just wanted a chance to
parole and how I didn’t agree with it, but I felt stuck. I
felt that that was the best I was going to get. All I did
was come here today to try and plead with you to please
understand the situation and to give me a chance at
parole. I’m not trying to undermine anybody, the State or
anything for [the] family [of the victim]. And I certainly
don’t want to put them through any more.
The court sentenced Robeson to 40 to 40 years’ imprisonment.
Robeson appeals.
III. ASSIGNMENTS OF ERROR
On appeal, Robeson asserts that the district court erred in
(1) sentencing Robeson without first obtaining a presentence
investigation report, (2) imposing an excessive sentence which
did not take into account the mitigating factors present in
the case, and (3) imposing a minimum sentence that was the
same as the maximum sentence. Robeson also asserts that
he received ineffective assistance of counsel when counsel
advised him to enter into the plea agreement with the State
and failed to request the completion of a presentence investiga-
tion report.
IV. STANDARD OF REVIEW
[1] In determining whether a defendant’s waiver of a statu-
tory or constitutional right was voluntary, knowing, and intel-
ligent, an appellate court applies a clearly erroneous stan-
dard of review. State v. Qualls, 284 Neb. 929, 824 N.W.2d
362 (2012).
[2,3] An appellate court will not disturb a sentence imposed
within the statutory limits unless the trial court abused its
discretion. State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850(2016). An appellate court reviews criminal sentences for an
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Cite as 25 Neb. App. 138abuse of discretion, which occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. State v. Collins, 292 Neb. 602, 873 N.W.2d
657 (2016).
[4] Whether a claim of ineffective assistance of trial coun-
sel 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. See State v. Burries, 297 Neb. 367, 900 N.W.2d
483 (2017). We determine as a matter of law whether the
record conclusively shows that (1) a defense counsel’s per-
formance was deficient or (2) a defendant was or was not
prejudiced by a defense counsel’s alleged deficient perform­
ance. Id.V. ANALYSIS
1. Imposing Sentence Without
Presentence Investigation R eport
After the district court accepted Robeson’s guilty plea at the
September 2016 hearing, the following discussion was had:
[The court:] I’m going to continue sentencing, not
order — I think by agreement of the parties, the Court is
not going to order a presentence investigation report, is
that correct?
[The State:] Yes, Your Honor, we would — the State
would just ask for a period of time before sentencing to
allow for victim impact statements to be provided by the
victim and her family.
[Defense counsel:] And Judge, in light of the plea
agreement we’re asking for an expedited sentencing, that
is true.
THE COURT: And your client is waiving his right
to have a presentence investigative report be done, is
that correct?
[Defense counsel:] Yes.
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Cite as 25 Neb. App. 138THE COURT: Okay. I will continue this matter for an
expedited sentencing to allow the State — in order to get
victim impacts. And for . . . Robeson to get anything he
wants the Court to consider for sentencing. And in light
of the plea agreement I think an expedited sentencing
is warranted.
On appeal, Robeson challenges the district court’s decision
to impose a sentence without first requiring Robeson to par-
ticipate in a presentence investigation. Specifically, Robeson
alleges that he did not validly waive his right to a presentence
investigation report and that, as a result, the court was required
to order that a presentence investigation report be completed.
Upon our review, we do not find that the district court erred in
concluding that Robeson validly waived his right to a presen-
tence investigation report.
[5] Neb. Rev. Stat. § 29-2261(1) (Reissue 2016) provides
that unless it is impractical to do so, when an offender has
been convicted of a felony, the court shall not impose sen-
tence without first ordering a presentence investigation of the
offender and according due consideration to a written report
of such investigation. The plain language of § 29-2261(1) pro-
vides that a presentence investigation is generally required in
felony cases; however, there are exceptions under which such
an investigation is unnecessary.
[6,7] The first such exception is set out in § 29-2261(1)
itself; an investigation is not necessary if it would be “imprac-
tical.” The Nebraska Supreme Court has explained that a
presentence investigation may be impractical where another
investigation had just been completed. See State v. Qualls, 284
Neb. 929, 824 N.W.2d 362 (2012). In addition to the statutory
exception, the Supreme Court has held that such a presen-
tence investigation may be waived. See id. See, also, State v.
Tolbert, 223 Neb. 794, 394 N.W.2d 288 (1986). A waiver is
defined as
the voluntary and intentional relinquishment of a known
right, privilege, or claim, and may be demonstrated by
or inferred from a person’s conduct. . . . A voluntary
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Cite as 25 Neb. App. 138waiver, knowingly and intelligently made, must affirma-
tively appear from the record, before a court may con-
clude that a defendant has waived a right constitutionally
guaranteed or granted by statute.
State v. Kennedy, 224 Neb. 164, 170, 396 N.W.2d 722, 726
(1986) (citations omitted).
[8] At the September 2016 hearing, the district court spe-
cifically asked whether it was Robeson’s intention to waive his
right to a presentence investigation report. Robeson’s counsel
answered in the affirmative. We note that contrary to Robeson’s
assertions in his brief on appeal, the fact that Robeson, himself,
did not affirmatively waive his right to the presentence inves-
tigation report is not determinative. The Nebraska Supreme
Court has previously held that a defend­ant may waive a right
by silently acquiescing to the waiver given by his counsel,
and by failing to object and raise the issue to a trial court. See
Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (1946). See,
also, State v. Sayers, 211 Neb. 555, 319 N.W.2d 438 (1982)
(noting that courts have found implied acquiescence of defend­
ant’s rights when counsel speaks on defend­ ant’s behalf and
defendant is present, but remains silent).
In his brief on appeal, Robeson acknowledges that counsel
did agree that Robeson was waiving his right to the presen-
tence investigation report. However, he asserts that such a
waiver was not knowingly and voluntarily given, because he
was not properly informed of certain facts, including that a
presentence investigation report is mandatory prior to a felony
sentencing. In addition, Robeson asserts that the court failed to
“make any inquiry into whether . . . Robeson understood this
right but nonetheless wished to waive it.” Brief for appellant
at 11. To support his assertions, Robeson relies on this court’s
decision in State v. Kellogg, 10 Neb. App. 557, 633 N.W.2d
916 (2001).
In State v. Kellogg, supra, the defendant pled no contest to
a burglary charge and pled guilty to two forgery charges. After
the trial court accepted the pleas, both the State and defense
counsel indicated their request that the defendant undergo a
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Cite as 25 Neb. App. 138“‘90-day evaluation at the Department of Corrections.’” Id. at
558, 633 N.W.2d at 918. The plea hearing was concluded “with
no one ever mentioning ‘presentence report’ or ‘presentence
investigation,’” and no presentence investigation was ever
completed prior to sentencing. Id. at 559, 633 N.W.2d at 919.
On appeal, the defendant argued that he received ineffective
assistance of counsel because trial counsel did not request a
presentence investigation.
In our analysis in Kellogg, we found that the defendant did
not waive his right to a presentence investigation, because “the
record lacks any showing that [he] was aware that a presen-
tence investigation was mandatory before a felony sentenc-
ing . . . nor does the record show that [he] was aware that
having such an investigation was his ‘right’ . . . .” Id. at 565,
633 N.W.2d at 923. We stated, “The fact that a presentence
investigation was never even discussed in this entire plea-
taking and sentencing process is of no small consequence and
also precludes a finding that there was a waiver.” Id. at 566,
633 N.W.2d at 923. Ultimately, we concluded that the court
erred in sentencing the defendant without having a presentence
investigation and without a valid waiver thereof on the record.
State v. Kellogg, supra. We vacated the sentence imposed and
remanded the cause to the district court with directions to have
a presentence investigation completed and then to resentence
the defendant. Id.We find the facts of State v. Kellogg, supra, to be distin-
guishable from the facts presented by this case. In Kellogg,
a presentence investigation was never even mentioned to the
defendant. Accordingly, he was never informed that he had a
right to such an investigation prior to sentencing. Here, during
the September 2016 hearing, the court specifically inquired
whether Robeson was waiving his “right” to a presentence
investigation report. Defense counsel indicated that Robeson
was waiving his right, and Robeson did not contest counsel’s
statement. As such, the record in this case clearly indicates
that, at the least, Robeson knew he had a right to a presentence
investigation report.
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Cite as 25 Neb. App. 138We find the facts of this case to be more akin to the facts in
State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012). In that
case, the defendant pled guilty to theft by deception. After the
court accepted the defendant’s plea, the court inquired about
whether the defendant wished to have a presentence investiga-
tion report completed prior to sentencing:
“I do need to advise you that since this is a felony offense,
you do have a right to have a presentence investigation
report prepared in this case.
“Your attorney has indicated that you wish to waive
that right and have me do sentencing based upon, I
believe, the reports and your criminal history and then
any other information you wish to present.
“Do you wish to waive your right to a presentence
report, sir?”
Id. at 930, 824 N.W.2d at 363. The defendant indicated that
he did wish to waive his right to the presentence investigation
report. He also indicated that no one had threatened him or
promised him anything in order to induce his waiver and that
his waiver was freely and voluntarily given.
On appeal, the defendant argued that the court’s advisory
was insufficient to inform him of his right to a presentence
investigation report. State v. Qualls, supra. Specifically, he
asserted that he was not informed that a presentence inves-
tigation report was mandatory, that the lack of a presen-
tence investigation report would mean that an appellate court
would not have the benefit of the contents of such a report,
and that the sentencing court was unable to consider all of
the relevant factors without such a report. The Supreme Court
found his assertion to be without merit. The court stated
that “‘a formalistic litany is not required’” to establish the
waiver of a statutory right and that a review of the totality
of the circumstances established that the defendant had been
adequately informed of his right to a presentence investiga-
tion report and had validly waived that right. Id. at 935, 824
N.W.2d at 366.
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Cite as 25 Neb. App. 138Clearly, in State v. Qualls, supra, the district court’s dis-
cussion of the defendant’s right to a presentence investigation
report prior to sentencing was more thorough than the dis-
trict court’s discussion with Robeson at the September 2016
hearing. In fact, we believe that the discussion elicited by
the district court in Qualls is the better practice, as the court
more clearly explained the defendant’s right to a presentence
investigation report and established the defendant’s valid
waiver of that right by eliciting a response directly from the
defendant. However, given the totality of the circumstances
present in this case, we find the district court’s discussion
about Robeson’s right to a presentence investigation report
and defense counsel’s representation that Robeson was waiv-
ing that right was sufficient to establish a valid waiver of
that right. Robeson was clearly informed he had the right to
a presentence investigation report, and his counsel indicated
Robeson’s desire to waive that right without any further dis-
cussion or objection by Robeson. Moreover, Robeson had
previously indicated his desire to have an expedited sentenc-
ing hearing, and as part of his plea agreement, he had jointly
recommended a sentence to the district court. At the sentenc-
ing hearing, Robeson’s counsel asked for a postponement, but
this request did not appear to be based on a desire to obtain
a presentence investigation report. After the request for the
postponement was denied, counsel indicated that he knew
of “no other” legal reason why the court should not impose
a sentence at that time. Robeson remained silent during this
exchange and, as such, appeared to agree with his counsel’s
statement. Later, both Robeson and his counsel were permit-
ted to provide the court with lengthy statements about the
mitigating factors present in the case and about Robeson’s
present circumstances.
While the district court could have been more thorough in
its discussion with Robeson about his right to a presentence
investigation report, on these facts, we cannot say that the
court clearly erred in finding that Robeson’s waiver of his right
to that report was valid.
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Cite as 25 Neb. App. 1382. Excessive Sentence
Robeson asserts that the district court imposed an exces-
sive sentence because it failed to “seriously consider all of
the mitigating factors” present in this case, brief for appellant
at 17, including his young age and ability to be rehabilitated,
his level of education and his career as a teacher, his difficult
childhood, his struggle with alcoholism, his lack of intent to
harm the victim, his strong relationship with his young chil-
dren, his lack of a violent criminal history, and his cooperation
with authorities. Upon our review, we conclude that Robeson’s
assertion has no merit.
Robeson pled guilty to first degree sexual assault, a Class II
felony. A Class II felony is punishable by 1 to 50 years’ impris-
onment. See Neb. Rev. Stat. § 28-105 (Reissue 2016). Robeson
was sentenced to 40 to 40 years’ imprisonment. As such, his
sentence was clearly within the statutory limits.
Where a sentence imposed within the statutory limits is
alleged on appeal to be excessive, an 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. State v. Collins, 292 Neb. 602, 873 N.W.2d 657(2016). An appellate court reviews criminal sentences for an
abuse of discretion, which 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. Id.[9] In imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and
experience, (4) social and cultural background, (5) past crimi-
nal 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.At the outset of our analysis, we note that Robeson
jointly recommended that he receive a sentence of 40 to 40
years’ imprisonment as a part of his plea agreement. Given
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Cite as 25 Neb. App. 138Robeson’s decision to recommend the sentence that he is now
challenging as excessive, we do not disagree with the State’s
assertion that Robeson’s argument on appeal is “disingenu-
ous.” Brief for appellee at 10.
Moreover, our review of the record reveals that both
Robeson and his trial counsel were given the opportunity
to make lengthy statements prior to Robeson’s sentencing.
During these statements, Robeson and his counsel directed
the court’s attention to all of the mitigating factors present in
this case. Prior to imposing sentence, the district court stated,
“In order to determine an appropriate sentence I’ve taken into
consideration all of the information and argument presented
here today . . . .” The court went on to state that based upon its
consideration of Robeson’s “age, mentality, education, expe-
rience, . . . background, past criminal record, nature of this
offense, and motivation for this offense, the Court is going to
go along with the agreement.” The court’s comments during
the sentencing hearing refute Robeson’s assertion on appeal
that the court failed to consider all of the relevant mitigating
factors present in this case.
Upon our review, we find that Robeson’s sentence is not
excessive or an abuse of discretion and is therefore affirmed.
3. Imposing Identical Minimum and
M aximum Terms of Imprisonment
Robeson also asserts that the district court erred in impos-
ing a sentence of 40 to 40 years’ imprisonment because
the imposition of “a sentence with identical minimum and
maximum terms of imprisonment” violates Neb. Rev. Stat.
§ 29-2204(1) (Reissue 2016) and because such a sentence is
“a de facto determinate sentence,” which does not provide an
opportunity for Robeson to be paroled within a reasonable
time. Brief for appellant at 26.
(a) § 29-2204
[10] The most recent version of § 29-2204 provides, in part,
that when a defendant is sentenced on a Class II felony, the
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Cite as 25 Neb. App. 138sentencing court “shall fix the minimum and the maximum
terms of the sentence to be served within the limits provided
by law” and the minimum sentence “shall be any term of
years less than the maximum term imposed by the court.” This
language was included in § 29-2204 as part of the sentencing
changes made by 2015 Neb. Laws, L.B. 605. Based upon our
reading of the revised language of this section, we agree with
Robeson’s assertion that the most recent version of § 29-2204
requires a sentence for a Class II felony to have different
minimum and maximum terms of imprisonment. However,
we disagree with Robeson’s assertion that the requirements of
§ 29-2204 apply to his sentence in this case.
[11] Neb. Rev. Stat. § 28-116 (Reissue 2016) states in part:
The changes made to the sections listed in this section
by Laws 2015, LB605, shall not apply to any offense
committed prior to August 30, 2015. Any such offense
shall be construed and punished according to the provi-
sions of law existing at the time the offense was com-
mitted. For purposes of this section, an offense shall
be deemed to have been committed prior to August 30,
2015, if any element of the offense occurred prior to
such date.
The statute then lists sections subject to the provision. Section
29-2204 is one of the sections listed within § 28-116. As such,
the recent revisions made to the language of § 29-2204 are not
effective unless the offense was committed on or after August
30, 2015.
Here, the amended information alleged that “[o]n or about”
September 1, 2014, through December 27, 2015, Robeson
subjected the victim to sexual penetration. It is not clear from
the language of the amended information or from any other
facts provided in our record exactly what dates Robeson sub-
jected the victim to sexual penetration; although, it is clear
that Robeson engaged in sexual penetration with the victim on
multiple occasions. A careful reading of the language of the
amended information indicates that the multiple acts of sexual
penetration occurred beginning on September 1, 2014, and
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Cite as 25 Neb. App. 138continued through December 27, 2015. As such, we can assume
that an element of the offense Robeson was charged with
occurred prior to August 30, 2015. We note that Robeson did
not challenge the alleged time period of when the penetration
occurred when he entered his plea to the amended charge.
[12] When an element of the charged offense occurred prior
to August 30, 2015, the changes to § 29-2204 do not apply to
the defendant’s sentence. Robeson’s sentence of 40 to 40 years’
imprisonment is a valid sentence under the prior statutory
scheme. See Neb. Rev. Stat. § 29-2204 (Cum. Supp. 2014).
(b) De Facto Determinate Sentence
Robeson also argues that the court’s decision to sentence
him with identical minimum and maximum terms of imprison-
ment was an abuse of discretion, because such a sentence is a
de facto determinate sentence which does not provide him with
the opportunity for parole within a reasonable time.
[13] Robeson’s sentence of 40 to 40 years’ imprisonment is
not a de facto determinate sentence. The Nebraska Supreme
Court has previously found that a sentence with the same mini-
mum term and maximum term is an indeterminate sentence.
The court stated, “In Nebraska, the fact that the minimum term
and maximum term of a sentence are the same does not affect
the sentence’s status as an indeterminate sentence.” State v.
Artis, 296 Neb. 606, 607, 894 N.W.2d 349, 350 (2017) (supple-
mental opinion). Moreover, as we discussed above, Robeson
agreed to jointly recommend a sentence of 40 to 40 years’
imprisonment as a part of his plea agreement. Because he
recommended this sentence, it is disingenuous for him to now
argue that the district court erred in accepting his recommenda-
tion. Had Robeson wished to have a meaningful opportunity
to obtain parole in a reasonable period of time, he was free to
reject the plea agreement and not recommend a sentence of 40
to 40 years’ imprisonment.
Robeson’s claims that the district court erred in imposing
identical minimum and maximum terms of imprisonment are
without merit.
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Cite as 25 Neb. App. 1384. Ineffective Assistance
of Trial Counsel
[14] Robeson is represented in this direct appeal by differ-
ent counsel than the counsel who represented him at the trial
level. 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 perform­
ance which is known to the defendant or is apparent from the
record. Otherwise, the issue will be procedurally barred. State
v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
[15] To prevail on a claim of ineffective assistance of coun-
sel 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. State v.
Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
[16] A claim of ineffective assistance of counsel need not be
dismissed merely because it is made on direct appeal. State v.
Casares, supra. The determining factor is whether the record
is sufficient to adequately review the question. Id. When the
claim is raised in a direct appeal, the appellant is not required
to allege prejudice; however, an appellant must make specific
allegations of the conduct that he or she claims constitutes
deficient performance by trial counsel. Id. General allegations
that trial counsel performed deficiently or that trial counsel
was ineffective are insufficient to raise an ineffective assist­
ance claim on direct appeal and thereby preserve the issue for
later review. Id.
Appellate courts have generally reached ineffective assist­
ance of counsel claims on direct appeal only in those instances
where it was clear from the record that such claims were with-
out merit or in the rare case where trial counsel’s error was so
egregious and resulted in such a high level of prejudice that
no tactic or strategy could overcome the effect of the error,
which effect was a fundamentally unfair trial. Id. An ineffec-
tive assist­ance of counsel claim made on direct appeal can be
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STATE v. ROBESON
Cite as 25 Neb. App. 138found to be without merit if the record establishes that trial
counsel’s performance was not deficient or that the appellant
could not establish prejudice. Id. See, also, State v. Filholm,
287 Neb. 763, 848 N.W.2d 571 (2014).
Robeson raises two allegations of ineffective assistance
of trial counsel in this appeal. We address each allegation
in turn.
(a) Advice to Accept Plea Agreement
Robeson asserts his trial counsel rendered deficient per­
formance by advising him to accept “the terms of the plea
agreement and agreeing to a lengthy and unwarranted rec-
ommended sentence.” Brief for appellant at 14. Although
our record does not contain Robeson’s conversations with
trial counsel prior to the entry of his guilty plea, the record
does affirmatively refute his claim of ineffective assistance
of counsel because it demonstrates that his plea was entered
knowingly, understandingly, intelligently, and voluntarily, and
it establishes the benefit Robeson received by entering this
plea. Given our reading of the record, we conclude that
Robeson cannot demonstrate that he was prejudiced by any
advice counsel gave him regarding accepting the terms of the
plea agreement.
At the plea hearing, Robeson indicated that his guilty plea
was his “own free and voluntary act.” He told the court that he
had discussed the plea with defense counsel and that he was
satisfied with defense counsel’s representation. We also note
that at the sentencing hearing, Robeson repeatedly reaffirmed
his decision to plead guilty to first degree sexual assault and
to accept the terms of the plea agreement, even when he was
given a chance to change his mind.
In addition, in light of the available evidence against him,
the plea agreement benefited Robeson. Initially, Robeson was
charged with two counts of first degree sexual assault of a
child, each a Class IB felony. As a result of the plea agree-
ment, Robeson was allowed to plead guilty to one count of
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STATE v. ROBESON
Cite as 25 Neb. App. 138first degree sexual assault, a Class II felony. Robeson had
confessed to the acts which resulted in the charges against him,
and the victim was capable of testifying against him. As such,
if Robeson had gone to trial on the original charges, there was
a strong possibility that he would have been convicted of two
Class IB felonies. His agreement to jointly recommend a sen-
tence of 40 to 40 years’ imprisonment was arguably based on
his recognition that he could have been sentenced to a much
longer period of incarceration if he chose to go to trial on the
original charges rather than pleading guilty to one, reduced
charge pursuant to the terms of the plea agreement.
We conclude that Robeson cannot show that he was preju-
diced by any advice his trial counsel provided regarding his
acceptance of the plea agreement. As such, we conclude that
this assertion of ineffective assistance of trial counsel is with-
out merit.
(b) Failure to Request Presentence
Investigation Report
Robeson asserts his trial counsel rendered deficient per­
formance by failing to request that a presentence investiga-
tion report be completed prior to sentencing. Although our
record does reflect that Robeson waived his right to a pre-
sentence investigation report, the record does not reflect the
conversations Robeson had with trial counsel prior to entering
this waiver. In addition, as we discussed above, the district
court did not specifically ask Robeson on the record if he
was waiving his right to the presentence investigation report
knowingly, voluntarily, and intelligently. The court also did
not ask him if he had a chance to discuss the waiver with his
counsel. Accordingly, we are unable to discern whether or
to what extent counsel’s advice played a role in Robeson’s
decision to waive his right to the presentence investigation
report. Essentially, the record is insufficient for this court to
consider this allegation of ineffective assistance of counsel on
direct appeal.
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Cite as 25 Neb. App. 138VI. CONCLUSION
Upon our review, we conclude that the district court did not
err in accepting the jointly recommended sentence of 40 to
40 years’ imprisonment and sentencing Robeson accordingly.
In addition, we find that Robeson did not receive ineffective
assistance of counsel when counsel advised him to accept
the plea agreement. We find that the record is insufficient to
address Robeson’s claim that his counsel was also ineffective
in advising him to waive his right to a presentence investiga-
tion report.
A ffirmed