State v. Pingel ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. PINGEL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
ANTHONY E. PINGEL, APPELLANT.
Filed July 25, 2023. No. A-22-960.
Appeal from the District Court for Adams County: MORGAN R. FARQUHAR, Judge.
Affirmed.
Christopher J. Roth, of Roth Weinstein, L.L.C. for appellant.
Michael T. Hilgers, Attorney General, and Matthew Lewis for appellee.
RIEDMANN, BISHOP, and ARTERBURN, Judges.
BISHOP, Judge.
INTRODUCTION
In the early morning of December 12, 2021, Anthony E. Pingel drove his vehicle in rural
Adams County, Nebraska, while under the influence of alcohol. He failed to stop at an intersection
and struck another vehicle, causing it to roll and burst into flames. Two people died and two others
were injured. Pingel ultimately pled no contest to two counts of manslaughter, two counts of third
degree assault, and one count of driving while under the influence of alcohol. The Adams County
District Court sentenced him to 18 to 20 years’ imprisonment for each manslaughter conviction;
one year of imprisonment for each third degree assault conviction; and 60 days’ imprisonment, a
$500 fine, and a 6-month license revocation, for the driving while under the influence of alcohol
conviction. All sentences were ordered to run consecutively. Pingel claims that the district court
imposed excessive sentences and that his trial counsel was ineffective for recommending he take
an insufficient plea agreement rather than proceed to trial. We affirm.
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BACKGROUND
On January 25, 2022, the State filed an information charging Pingel with six counts: counts
1 and 2, motor vehicle homicide, a Class IIA felony, pursuant to Neb. Rev. Stat. § 28-306(3)(b)
(Reissue 2016); counts 3 and 4, third degree assault, a Class I misdemeanor, pursuant to Neb. Rev.
Stat. § 28-310(1) (Reissue 2016); count 5, driving under the influence of alcohol “(Blood .15 or
greater) - First Offense,” a Class W misdemeanor, pursuant to Neb. Rev. Stat. § 60-6,196 (Reissue
2021); and contempt of court, pursuant to Neb. Rev. Stat. § 25-2121 (Reissue 2016). On January
27, Pingel entered a written plea of not guilty.
On September 23, 2022, the State filed an amended information charging Pingel with five
counts: counts 1 and 2, manslaughter, a Class IIA felony, pursuant to Neb. Rev. Stat. § 28-305;
counts 3 and 4, third degree assault, a Class I misdemeanor; and count 5, driving while under the
influence of alcohol “(Blood <.15) - First Offense,” a Class W misdemeanor. On September 26,
the district court held a hearing where, pursuant to a plea agreement, Pingel changed his plea to no
contest. At the hearing, the State informed the court that the amended information was filed as part
of the plea agreement and that the parties had agreed they would “be free to argue at sentencing.”
The court confirmed with Pingel that this was his understanding of the plea agreement. The court
informed Pingel of the possible penalties for all five counts of the amended information and
informed him that he would be giving up certain rights upon entering a plea of guilty or no contest.
Pingel then entered a plea of no contest on all five charges of the amended information.
The State offered into evidence two affidavits authored by law enforcement “for purposes
of a factual basis.” The district court asked Pingel’s trial counsel whether there was any objection
to receipt of the affidavits into evidence, to which counsel responded, “No, Your Honor.” The
court then received the affidavits into evidence and indicated that it would “take a moment to
review those exhibits.”
Together, the affidavits show that on December 12, 2021, a motor vehicle accident took
place in “the area of 12th Street and Blaine in rural Adams County,” where Pingel, driving a 2015
silver Jeep registered in his name,
violated the northbound [s]top [s]ign on Blaine Ave. [A]nd because of this action he struck
an eastbound Black Dodge Ram . . . occupied by 4 individuals. The resulting accident
caused the Black Dodge Ram to enter the northeast ditch[,] landing on its passenger side.
The accident and ensuing vehicle fire resulted in the deaths of two of the occupants who
had been inside the eastbound Black Dodge Ram.
Pingel’s Jeep was located “just east of the engulfed pickup truck” and had “extensive front
end damage.” Individuals who responded to the accident stated that they saw Pingel walking near
or away from his damaged vehicle. Upon law enforcement’s arrival, a deputy from the Adams
County Sheriff’s Department spoke with Pingel and detected the odor of alcoholic beverage
coming from Pingel. Pingel was observed to have “blood shot eyes, slurred speech[,] and he wasn’t
. . . responding coherently to questions by medical staff or others on the scene.” He was “unable
to keep balance and was stumbling.” Additionally, “[w]hile walking to the medical service unit,”
Pingel was “very clumsy” and “stumbled around until laying down on the stretcher.”
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Pingel was transported to a hospital, where an acquaintance of Pingel was present and made
the statement, “I knew [Pingel] shouldn’t have been driving.” Law enforcement then advised
Pingel that “he was being placed under arrest for [d]riving [u]nder the [i]nfluence” and asked him
to submit to a “Post Arrest Chemical Test.” Pingel refused to submit to such testing. After
obtaining a search warrant, law enforcement again asked Pingel to submit to chemical testing and
was “advised that failure to comply with the [s]earch [w]arrant would result in an additional
charge.” Pingel again refused to consent to chemical testing.
Following the district court’s review of the affidavits received into evidence, Pingel’s trial
counsel stipulated that the accident described in the affidavits “resulted in the injuries and death[s]
of the individuals described or identified in Counts I through IV.” The court found that “the plea
[was] knowingly, intelligently, [and] voluntarily made and the factual basis exist[ed] to find
[Pingel] guilty of Counts I, II, III, IV, and V of the Amended Information” and found Pingel guilty
of the same. The court ordered a presentence investigation, “to include a drug and alcohol
evaluation.”
At a hearing held on December 5, 2022, the district court sentenced Pingel to 18 to 20
years’ imprisonment for each manslaughter conviction; 1 year of imprisonment for each third
degree assault conviction; and 60 days’ imprisonment, a $500 fine, and a 6-month license
revocation (with authorization for an ignition interlock device and, if applicable, credit for any
administrative license revocation) for the driving while under the influence of alcohol conviction.
Pingel received credit for 2 days already served. The court indicated that all sentences were to run
consecutively, “as each crime and each victim deserves their own separate sentence.” A
corresponding file-stamped order was entered the following day.
Pingel appeals.
ASSIGNMENTS OF ERROR
Pingel assigns that (1) the district court abused its discretion by imposing an excessive
sentence and (2) he received ineffective assistance of counsel “by trial counsel recommending an
insufficient plea agreement and not proceeding to trial.”
STANDARD OF REVIEW
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. In reviewing claims of ineffective assistance of counsel on direct
appeal, an appellate court decides only whether the undisputed facts contained within the record
are sufficient to conclusively determine whether counsel did or did not provide effective assistance
and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance.
State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).
ANALYSIS
EXCESSIVE SENTENCE
Pingel claims the district court abused its discretion when it imposed an excessive sentence.
Pingel was convicted of two counts of manslaughter, a Class IIA felony, which is punishable by
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up to 20 years’ imprisonment. See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2022). For those
convictions, the court sentenced Pingel to 18 to 20 years’ imprisonment. Pingel was also convicted
of two counts of third degree assault, a Class I misdemeanor, which is punishable by up to 1 year
of imprisonment. See Neb. Rev. Stat. § 28-106(1) (Cum. Supp. 2022). For each of those
convictions, the court sentenced Pingel to 1 year of imprisonment. Finally, Pingel was convicted
of driving while under the influence of alcohol “(Blood <.15) – First Offense,” a Class W
misdemeanor, which is punishable by up to 60 days’ imprisonment and a $500 fine, and pursuant
to Neb. Rev. Stat. § 60-6,197.03(1) (Reissue 2021), requires a driver’s license revocation for “six
months from the date ordered by the court.” For this offense, Pingel was sentenced to 60 days’
imprisonment, a $500 fine, and had his driver’s license revoked for 6 months. Each of Pingel’s
sentences was within its respective statutory range. As such, we review the court’s sentencing
determination only for an abuse of discretion.
When 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.
State v. Lierman, supra. 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.Pingel was 33 years old at the time of sentencing. According to the presentence
investigation report (PSR), Pingel was single and had no children. He had a bachelor’s degree and
was preparing to begin a new job before the accident took place. Pingel’s criminal history includes
one prior conviction for careless driving in 2021, where he received a $100 fine.
The 438-page PSR includes a case report from the Nebraska State Patrol Division of Traffic
Services, an accident reconstruction report, and a 238-page incident report from the Adams County
Sheriff’s Department, which shows that the two deceased victims of the accident were 16 and 18
years old and the two survivors were also teenagers at the time of the accident. The PSR also
includes numerous character reference letters written in support of Pingel, describing Pingel’s
positive impact on his community, along with victim impact statements from family members of
the victims of the accident. The victim impact statements detail the victims’ families’ experiences
with grief, depression, PTSD, and financial hardship resulting from the accident. They also reveal
that one of the survivors was ejected from the vehicle at the time of the accident and was
hospitalized for a week. This survivor submitted a victim impact statement, indicating that as a
result of the accident, he suffers from a traumatic brain injury, post-traumatic stress disorder, and
depression.
The PSR also includes a written statement by Pingel describing his history of alcohol
dependency. He began drinking in high school to cope with the struggles of being “ashamed of
who [he] was” and he carried this behavior with him to college, where his dependency on alcohol
was exacerbated when he lost a friend to suicide. Following his friend’s death, Pingel “spent a
month just binge drinking to numb the pain.” Pingel relied upon alcohol to “hide [his] insecurities,
pain, and true self from everyone . . . for the next 10 years” and “[d]uring that time, [he] realized
that [he] had a problem with binge drinking.” This “scared [him] because quite a few times [he]’d
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wake up and have no memory of the previous night.” He began taking precautions when he went
out drinking by using a taxi service or having his friends or bar staff drive him home.
According to Pingel, on the night of the accident, he was at an outing with his friends and
he “knew [he] would be drinking so [his] friend who was pregnant at the time was going to be
[his] DD.” He took several shots and drank several beers and “the next thing [he] remember[ed]
was waking up in the hospital.” He wished he “wouldn’t have drank, wouldn’t have driven,” and
that “two kids didn’t die, two others weren’t hurt.” He felt “guilt, shame, and sadness” but hoped
to “make a difference” someday by sharing his story so “others may learn from [his] failures and
make wiser choices than [he] did that night.” He wrote apology letters to the survivors of the
accident, the families of the deceased, and the first responders who were present at the scene of
the accident.
As part of the presentence investigation, the probation officer conducted a “Level of
Service/Case Management Inventory.” Pingel was assessed as a “low” risk to reoffend. He scored
in the “very low” risk range in the criminogenic risk factor domains for criminal history,
education/employment, family/marital, leisure/recreation, companions, pro-criminal attitude, and
antisocial pattern. He scored in the “high” risk range in the domain for alcohol/drug problems.
The probation officer also detailed the results of Pingel’s substance abuse evaluation. It
was found that Pingel “was diagnosed with [a] . . . depressive disorder and moderate alcohol use
disorder in early remission.” The probation officer reported that Pingel began drinking at the age
of 15 and his last drink was the night of the accident. Prior to the accident, Pingel “was drinking
1-2 nights per week and having about 6-8 drinks per episode.” Pingel admitted to the probation
officer that he was a “binge drinker” and had “suffered from quit[e] a few blackouts over the years,
possibly 10.”
At the sentencing hearing, the State described the circumstances of the accident, stating
that, while traveling at a high rate of speed, Pingel failed to yield at a stop sign and struck the
victims’ vehicle. The vehicle rolled into a ditch and was quickly engulfed in flames. Two victims
escaped the vehicle but the two that did not, died from blunt force trauma and thermal trauma. The
deceased victims had to be identified using DNA testing and dental records due to the conditions
of their bodies. The State noted that, according to the accident reconstruction report contained in
the PSR, the Nebraska State Patrol determined that:
Pingel was operating his vehicle with a wanton disregard for public safety when he ignored
a “stop ahead” advanced-warning sign, failed to significantly reduce his speed while
approaching an intersection with an obstructed view, failed to stop at the stop sign, and
failed to yield the right-of-way.
The State further described the impact of the accident on the victims of the incident who
survived, as well as the families of all the victims. The State then recommended that, “based on
the circumstances of the offenses and the wishes of the victims,” Pingel “receive the maximum
sentence permissible on each count: 19-20 years on Counts I and II, 1 year on Counts III and IV,
and 60 days on Count V.” The State further noted that, although “this may have been one incident,
it is important to remember that there are four separate victims” and that “Pingel needs to be held
accountable for what he did to each of them and their families.” As such, the State further
recommended that Pingel’s sentences for each conviction be served consecutively.
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Pingel’s trial counsel also addressed the district court, arguing that “Pingel is a good man
who made a mistake.” Counsel noted that Pingel was involved in church activities and had a
bachelor’s degree, a history of gainful employment, and no criminal history. Counsel further
pointed out that numerous individuals submitted character reference letters on Pingel’s behalf. All
of this showed that Pingel had “lived a positive life and that this was something certainly out of
the . . . ordinary for him.” On the night of the accident, “Pingel left . . . with no intention of harming
anyone.” Although “what happened that night was tragic,” it did not change Pingel’s good
character. Counsel argued that “if we didn’t have two deaths and injuries, . . . Pingel [would]
certainly qualif[y] to be . . . placed on probation.” Counsel then asked the court to “impose a
sentence which balances the needs of society with the treatment of a defendant with the
characteristics of” Pingel.
Pingel personally informed the district court that he had been consumed by “[g]uilt, shame,
and regret” since the accident. He promised to honor the victims of the accident by sharing his
story to “hopefully prevent something so tragic from happening to other families.” He apologized
to the families of the victims, his own family, and the court. Finally, he stated that he took
“responsibility for [his] mistake” and would “humbly accept the consequences” and “fulfill[] the
sentence without incident.”
In his brief on appeal, Pingel refers to Neb. Rev. Stat. § 29-2260(3) (Reissue 2016), which
sets out various factors which “shall be accorded weight in favor of withholding [a] sentence of
imprisonment” by a sentencing court. He argues that nearly all of the 11 listed factors weighed in
favor of withholding a sentence of imprisonment in his case. He contends that “if no deaths were
involved,” he would have been “a candidate for probation.” Brief for appellant at 14. He admits
that “factoring in the two deaths, the court certainly was within its discretion to impose
imprisonment.” Id. However, he states that the court inappropriately “treated [him] the same as if
he had an extensive criminal record, showed no remorse[,] and did not [accept] any responsibility”
by “imposing . . . the maximum sentences.” Id. at 14-15.
Pingel goes on to cite to numerous Nebraska cases which affirmed maximum sentences
due in part to the appellants’ lengthy criminal records. In essence, he argues that the district court
abused its discretion in this case by imposing the maximum sentence for each conviction when
there were sentencing factors which weighed in favor of a lesser sentence. He also contends that
by requiring the sentences to run consecutively, the court “is not providing any hope of
rehabilitation to a person who, but for this incident, has led a law abiding life.” Brief for appellant
at 17.
At sentencing, the district court extensively discussed its reasoning, stating that it had
considered Pingel’s age, mentality, education and employment, social and cultural background,
criminal history, prior law-abiding conduct, motivation for his offenses, the nature of each offense,
and whether there was violence, injury, or death as a result of his actions. The court also stated
that it had reviewed “every page of the PSI, all probably 450 pages of it, three times,” which
contained all the information that Pingel contends weighs in favor of a lesser sentence.
The district court specifically acknowledged Pingel’s statement contained in the PSR,
stating that it did not “buy . . . for one second” that Pingel having a “contingency plan of having a
designated driver that night somehow mitigate[d] this at all.” It reasoned that Pingel drove his
vehicle “to this person’s home knowing full well that [he] intended to drink and probably drink to
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excess, and having a designated driver for one portion of what amounted to a fairly long trip where
[he] knew that [he was] going to be drinking -- it’s not good enough. It’s meaningless.” It stated
that Pingel was not “a 19-year-old who had their first sip of alcohol and wasn’t fully aware of the
consequences.” He had been “doing this for 10 years” and it was “reckless and a wanton disregard
for the safety of the public for [him] to knowingly drink to the point of intoxication and to get in
[his] vehicle.” The court characterized Pingel as a “ticking time bomb for the last 10 years . . .
based off of [Pingel’s] own admissions” that he historically “drank to excess to a point where [he
could not] remember what [he] did or where [he was].” And rather than “stop[ping] drinking or
alter[ing] [his] drinking habits,” he simply tried to “find different designated drivers.” The court
concluded that Pingel’s “pattern of drinking [him]self out of reality resulted in a tragedy that killed
two people and injured two more teenagers.”
The district court noted the impact of the accident on not only the families of the victims
and the victims themselves, but also the witnesses to the “carnage and the aftermath of the
collision,” including “the good people that rushed to try and extinguish the fire and to rescue the
people trapped in the vehicle” who would have to “carry the images of what they saw and heard
and smelled for the rest of their lives.”
To the extent that Pingel implicitly argues the district court placed too much emphasis on
the deaths and injuries of the victims, or not enough emphasis on the factors he contends weigh in
favor of a lesser sentence, we note that it was within the discretion of the court to weigh more
heavily certain sentencing factors over others since 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, and a
sentencing court is accorded very wide discretion in imposing a sentence. See State v. Rogers, 297
Neb. 265, 899 N.W.2d 626 (2017). We further note that, it is generally within a trial court’s
discretion to direct that sentences imposed for separate crimes be served either concurrently or
consecutively. See State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
Accordingly, while we agree there are some mitigating factors which weigh in favor of a
lesser cumulative sentence, we cannot say that the district court abused its discretion in
determining the sentences imposed.
INEFFECTIVE ASSISTANCE OF COUNSEL
Pingel claims he received ineffective assistance of trial counsel “by trial counsel
recommending an insufficient plea agreement and not proceeding to trial.” Brief for appellant at
17. He argues that “the record is clear that by not proceeding to trial,” he was “prejudiced by
receiving additional sentences.” Id. He suggests, “Assuming, arguendo, the evidence was
sufficient for a conviction on each charge of Motor Vehicle Homicide, the best case scenario is to
reduce the risk of [Pingel] on the other charges since probation under these circumstances
involving death was slight.” Id. at 18-19. He contends “an experienced defense attorney would
also know that a lengthy jail sentence was likely” and therefore “the key was to attempt to reduce
the possibility of the number of convictions and the possibility of consecutive sentences.” Id. at
19.
Generally, a voluntary guilty plea or plea of no contest waives all defenses to a criminal
charge. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). Thus, when a defendant pleads
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guilty or no contest, he or she is limited to challenging whether the plea was understandingly and
voluntarily made and whether it was the result of ineffective assistance of counsel. Id.Pingel is represented by different counsel on direct appeal than he was at trial. 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. Id. Once raised, the appellate court will determine
whether the record on appeal is sufficient to review the merits of the ineffective performance
claims. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). A 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. State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020).
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. See, Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); 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 counsel’s performance did not equal that
of a lawyer with ordinary training and skill in criminal law. State v. Blaha, supra. In a plea context,
deficiency depends on whether counsel’s advice was within the range of competence demanded
of attorneys in criminal cases. Id. When a conviction is based upon a guilty or no contest plea, the
prejudice requirement of 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. Id. The two prongs of the ineffective assistance of
counsel test under Strickland may be addressed in either order. State v. Blaha, supra.
Pingel contends that he “gained nothing by the plea agreement” because he “faced two
Class IIA felonies, two Class I [m]isdemeanors[,] and a Class W [m]isdemeanor” under both the
original information and the amended information, and as a result he pled “to the same penalties
just to a different statute.” Brief for appellant at 19. Pingel argues that “[t]he bottom line is that
defense counsel should have held out for the misdemeanor[] charges to [be] dismissed and/or the
State remaining silent at sentencing which probably would have led to less years of incarcerations.”
Id. at 20.
We agree with the State that the record refutes Pingel’s claim. Prior to accepting Pingel’s
plea, the district court explained each of the charges in the amended information, as well as the
sentencing range associated with each charge. The court also confirmed with Pingel that he
understood the terms of the plea agreement. The following colloquy then took place:
THE COURT: Have you had enough time to speak with your attorney about your
intended plea in this case and the plea agreement that has been reached?
DEFENDANT: Yes, Your Honor.
THE COURT: Do you believe that you’ve had sufficient time and are prepared to
enter a plea today?
DEFENDANT: Yes, Your Honor.
THE COURT: Have you and are you generally satisfied with the advice and
services that your attorney has provided to you in this case?
DEFENDANT: Yes, Your Honor.
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THE COURT: Do you wish to take any time to consult with your attorney before I
ask you to enter a plea to the Amended Information?
DEFENDANT: No, Your Honor.
THE COURT: Mr. Pingel, I also have to advise you that if you enter a plea of guilty
or no contest, that you’ll be giving up all the rights that were previously explained to you,
including your right to trial, your right to call and cross-examine any witnesses in this case.
If the plea is entered and the State can provide a sufficient factual basis, you would
be found guilty of the five amended counts contained in the Amended Information without
the necessity of a trial. Do you understand that?
DEFENDANT: Yes, Your Honor.
THE COURT: And has anyone threatened you, pressured you, or made any
promises to you to get you to enter into this plea agreement?
DEFENDANT: No, Your Honor.
The plea colloquy shows that Pingel confirmed to the district court that he had discussed
the plea agreement with trial counsel. He declined to further discuss the agreement with his counsel
prior to entering his plea when given the opportunity to do so. Moreover, Pingel affirmatively
responded when asked if he was satisfied with the advice and services provided by his attorney.
Pingel was also informed of the charges and the possible consequences, he confirmed that he
understood the terms of the plea agreement, and he stated that he understood that he was waiving
certain rights, including the right to go to trial, by entering a plea of no contest. Finally, he informed
the court that he had not been threatened, pressured, or made any promises so he would enter the
plea agreement. Having affirmatively represented to the court that he had discussed the plea
agreement with his counsel and that he was satisfied with the advice and services rendered, Pingel
cannot now claim his counsel performed deficiently by recommending he enter the plea agreement.
The terms of the agreement were clear and were precisely what Pingel agreed to; that his plea
resulted in sentences with which he is unhappy does not equate to ineffective assistance of counsel.
Further, with regard to Pingel’s argument that trial counsel should have attempted to reduce
the number of convictions and the possibility of consecutive sentences, the record shows that the
State was not inclined to drop the additional charges because, as the State noted at sentencing when
requesting that Pingel’s sentences run consecutively, “there [we]re four separate victims” and the
State wanted Pingel “to be held accountable for what he did to each [victim] and their families.”
Neither Pingel’s trial counsel nor the State could negotiate regarding whether the sentences would
be served consecutively or concurrently, as such a decision is left entirely to the trial court. See
State v. Canaday, 307 Neb. 407, 949 N.W.2d 348 (2020) (generally, it is within trial court’s
discretion to direct sentences imposed for separate crimes be served either concurrently or
consecutively).
We also conclude that Pingel cannot show that he was prejudiced by trial counsel’s alleged
deficient performance. Pingel was originally charged with two counts of motor vehicle homicide,
two counts of third degree assault, one count of driving while under the influence of alcohol
“(Blood .15 or greater) - First Offense,” and one count of contempt of court. As a result of the plea
agreement, the motor vehicle homicide charges were replaced with manslaughter charges, which
resulted in Pingel no longer facing the possibility of losing his driver’s license for 1 to 15 years.
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See § 28-306(3)(b). There was also a reduction under the amended information for the driving
under the influence charge, which was changed to “(Blood <.15) - First Offense,” meaning Pingel
would not face a 1-year driver’s license revocation. See § 60-6,197.03(2). Pingel argues that
avoiding any license revocation did not actually benefit him because he would be incarcerated
during the revocation period. However, that may not have been true had the district court sentenced
differently, and such a decision is not one that trial counsel could have been expected to predict.
Regardless, Pingel still received a benefit from the plea agreement because the contempt of court
charge was completely dropped and trial counsel was able to argue at sentencing that Pingel should
receive a lesser sentence for “tak[ing] responsibility for what happened that night . . . through his
plea and his participation . . . in . . . the PSI.”
In addition, Pingel does not contest the facts constituting the crimes with which he was
originally charged and there was an abundance of evidence against Pingel, including numerous
witnesses who saw him at the scene of the accident displaying signs of intoxication, the presence
of a vehicle with extensive front-end damage registered in Pingel’s name at scene of the accident,
the availability of two of the victims who survived, and the autopsy reports of the two deceased
victims indicating that the cause of death of the victims was blunt force trauma and thermal trauma
from the accident. Had Pingel gone to trial on the original charges, there was a strong possibility
that he would have been convicted of all the charges and he would still have been at risk for
consecutive sentences, along with the added possibility of having his driver’s license revoked for
up to 15 years on each motor vehicle homicide charge. Given the benefits of the plea agreement
and the ample evidence against him, Pingel cannot show that, but for trial counsel’s performance,
there was a reasonable probability he would have insisted on going to trial. As such, this claim of
ineffective assistance of trial counsel is refuted by the record.
CONCLUSION
We affirm Pingel’s sentences and conclude that his claim of ineffective assistance of trial
counsel fails.
AFFIRMED.
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