State v. Rocha , 286 Neb. 256 ( 2013 )


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  •     Nebraska Advance Sheets
    256	286 NEBRASKA REPORTS
    adjudication order concerning Moses and Elijah and remand
    the cause with directions to dismiss the petition as to Moses
    and Elijah. As conceded by the parties, we affirm the adjudica-
    tion order of the juvenile court as to Sylissa and Justine.
    Affirmed in part, and in part reversed
    and remanded with directions.
    State of Nebraska, appellee, v.
    Eric O. Rocha, Sr., appellant.
    ___ N.W.2d ___
    Filed July 19, 2013.   No. S-12-411.
    1.	 Effectiveness of Counsel: Appeal and Error. Appellate review of a claim of
    ineffective assistance of counsel is a mixed question of law and fact.
    2.	 ____: ____. When reviewing a claim of ineffective assistance of counsel, an
    appellate court reviews the factual findings of the lower court for clear error.
    3.	 ____: ____. With regard to the questions of counsel’s performance or preju-
    dice to the defendant as part of the two-pronged test articulated in Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), an
    appellate court reviews such legal determinations independently of the lower
    court’s decision.
    4.	 Appeal and Error. Absent plain error, an appellate court ordinarily will not
    address an issue that was not raised in the trial court.
    5.	 Effectiveness of Counsel: Postconviction: Records: Appeal and Error.
    Ineffective assistance of counsel claims are generally addressed through a post-
    conviction action. This is frequently because the record is insufficient to review
    the issue on direct appeal.
    6.	 Effectiveness of Counsel: Postconviction. Where no plausible explanation for
    an attorney’s actions exists, to require the defendant to file a postconviction
    action can only be a waste of judicial time.
    7.	 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.
    8.	 ____: ____. To show deficient performance, a defendant must show that coun-
    sel’s performance did not equal that of a lawyer with ordinary training and skill
    in criminal law in the area.
    9.	 Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice under
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984), the petitioner must demonstrate a reasonable probability that but for his
    or her counsel’s deficient performance, the result of the proceeding would have
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    been different. A reasonable probability is a probability sufficient to undermine
    confidence in the outcome.
    10.	    Effectiveness of Counsel: Appeal and Error. In addressing the “prejudice”
    component of the test in Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    ,
    
    80 L. Ed. 2d 674
     (1984), an appellate court focuses on whether a trial counsel’s
    deficient performance renders the result of the trial unreliable or the proceeding
    fundamentally unfair.
    11.	    Trial: Joinder. Offenses are properly joinable under Neb. Rev. Stat. § 29-2002(1)
    (Reissue 2008) if they are of the same or similar character or are based on the
    same act or transaction or on two or more acts or transactions connected together
    or constituting parts of a common scheme or plan.
    12.	    ____: ____. Charges arise out of the same act or transaction if they are so closely
    linked in time, place, and circumstance that a complete account of one charge
    cannot be related without relating details of the other charge.
    13.	    Trial: Joinder: Evidence. To be part of the same act or transaction, there must
    be substantially the same facts; i.e., one charge cannot be proved without present-
    ing evidence of the other charge.
    Appeal from the District Court for Scotts Bluff County: Leo
    Dobrovolny, Judge. Reversed, sentences vacated, and cause
    remanded for further proceedings.
    James R. Mowbray and Todd W. Lancaster, of Nebraska
    Commission on Public Advocacy, for appellant.
    Jon Bruning, Attorney General, and Stacy M. Foust for
    appellee.
    Wright, Connolly, Stephan, Miller-Lerman, and Cassel,
    JJ., and Riedmann, Judge.
    P er Curiam.
    I. NATURE OF CASE
    Eric O. Rocha, Sr., was convicted of first degree sexual
    assault of a child and four counts of child abuse. In this direct
    appeal, Rocha claims trial counsel was ineffective in failing to
    move to sever the sexual assault charge from the child abuse
    charges and in failing to request an instruction limiting the
    jury’s consideration of the evidence of one crime to that par-
    ticular crime. He also alleges trial error in failing to instruct the
    jury on the lesser-included offense of negligent child abuse and
    in failing to instruct the jury on the defense of parental justifi-
    cation of use of force. For the reasons set forth, we reverse the
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    judgments of conviction, vacate the sentences, and remand the
    cause for further proceedings.
    II. FACTS
    On March 8, 2011, an officer with the Nebraska State
    Patrol conducted an interview of J.S., a young girl, who was
    8 years old at the time of trial. After the interview, the officer
    obtained a search warrant for Rocha’s residence in Scottsbluff,
    Nebraska. At the residence, a slipper and a belt were retrieved
    and photographs were taken of the residence, including a pho-
    tograph of a bedroom door which could be locked from the
    outside of the room.
    Rocha was charged with one count of first degree sexual
    assault of a child and four counts of felony child abuse. J.S.
    was the alleged victim of the sexual assault and one of the
    alleged victims of child abuse. Her three brothers, J.C., A.R.,
    and A.S., were the other alleged child abuse victims. A second
    amended information alleged that Rocha committed sexual
    assault from October 14, 2009, through February 2011 and
    that Rocha committed child abuse from June 11, 2008, through
    February 2011.
    At trial, the evidence showed that Rocha and Jessica S.
    were married and lived together. J.S., J.C., A.R., and A.S. are
    Jessica’s children, but Rocha is not their biological father. He
    supervised the children while Jessica was at work and the chil-
    dren were at home.
    J.S. testified that during the evenings, Rocha came into her
    bedroom, which she shared with her brothers. He took her into
    the living room and forced her to perform oral sex. She gave
    her story as to what occurred during the assaults. The assaults
    allegedly occurred in the living room, in her mother’s bed-
    room, in the bathrooms, and in the car.
    In the car, Rocha allegedly made J.S. sit on his lap with her
    pants and underwear partially off. Rocha’s “private area” went
    “in [her] bottom,” and she said that hurt. Rocha also allegedly
    touched her vaginal area with his finger.
    J.S. claimed Rocha hit her with a slipper on her arm. She
    claimed Rocha hit her bottom with a belt, which hurt. Rocha
    also blew marijuana smoke into her mouth. She said she did
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    not get enough to eat at dinner because the children did not
    get “seconds.” She said that on one occasion, Rocha made her
    drink beer and then made her perform oral sex.
    J.S. was afraid of Rocha because he hurt her brothers. She
    said Rocha choked A.R. by “dragging him up in the wall”
    with his hands around his throat. She also saw Rocha push his
    fingernail into A.R.’s ear. Rocha spanked A.R. and A.S. with
    the belt and the slipper. And J.S. saw Rocha choke A.S. in
    the bathroom.
    J.C. explained that the bedroom he shared with J.S., A.R.,
    and A.S. locked from the outside and that sometimes the boys
    were locked in the bedroom while J.S. was in the living room
    with Rocha. J.C. testified he did not always get enough food
    to eat. He saw Rocha smoke something green in color, and the
    smoke hurt the boys’ eyes.
    Rocha did not hit J.C., but J.C. saw Rocha hit the other
    children. Rocha spanked J.S. with his hand, sometimes with
    her pants down. Rocha spanked A.R.’s bottom with his hand
    or with a sandal. Rocha also hit A.R.’s bottom and hands
    with a wooden stick and hit A.R.’s bottom with the tube of a
    vacuum cleaner. He made A.R. stand in a corner, and one time,
    J.C. saw Rocha push A.R.’s head into the wall, giving A.R. a
    bloody nose. On another occasion, Rocha threw A.R. across the
    kitchen floor. He “thump[ed]” A.R. on the head with his finger
    or a wooden spoon. Rocha hit A.R. on his side if he was not
    behaving. J.C. testified that Rocha spanked A.S. with his hand,
    but never used anything else to hit A.S.
    J.S.’ kindergarten teacher testified that until November
    2009, J.S. was a “bubbly” 5-year-old, who then became very
    agitated and nervous, cried a lot, and did not want to go
    home. J.S. refused to take an art project home. The teacher
    explained that J.S. wanted to be perfect in doing everything
    at school and would erase her papers repeatedly. When col-
    oring, J.S. was afraid to go outside the lines. She would cry
    at school because she was hungry or afraid to go home. The
    teacher gave J.S. and the other students in the class snacks
    twice a day to address J.S.’ hunger. J.S. was frightened and
    uneasy when she talked with the teacher about her home. She
    was afraid to go home if her new shoes were dirty, so she
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    “spit clean[ed]” them. After the teacher observed this behav-
    ior, she helped J.S. clean her shoes with a rag, and did so
    regularly after J.S. sobbed for fear she would get in trouble
    at home.
    J.S.’ kindergarten teacher said that toward the end of
    November 2009, J.S. used the bathroom 15 or 20 times each
    day to wash her hands, arms, legs, hair, and face. The teacher
    testified that this behavior was different for J.S. and unusual
    for any kindergarten student. J.S.’ first grade teacher during the
    2010-11 school year also testified to similar behavior.
    A licensed medical health practitioner and certified profes-
    sional counselor, Jeanna Townsend, provided therapy to J.S.
    5 times in February 2010 and approximately 14 times begin-
    ning in June 2011. During her five sessions with J.S. in 2010,
    J.S. did not answer questions and “shut down.” Townsend
    testified that child victims of sexual abuse exhibit certain
    behaviors. These include taking responsibility for many things
    and feeling that they are bad or dirty. Townsend stated that
    constant washing of body parts was consistent with sexual
    abuse because the child tends to feel dirty. Excessive use of
    the bathroom was consistent with sexual abuse. Townsend
    testified to other activities that could be consistent with
    sexual abuse.
    The children’s mother, Jessica, testified Rocha disciplined
    the children by sending them to their room, giving them a
    “time out,” or not letting them go outside to play. She did not
    see any marks or bruises on the children that caused concern
    that the children were improperly disciplined, and she did not
    see Rocha hit A.R. or A.S. on the head with a wooden spoon
    during mealtime. She did not hear any complaints from the
    children that Rocha spanked or treated them inappropriately;
    hit them with a belt, stick, or sandal; or choked them. But
    Jessica admitted she found little bruises on the children after
    Rocha had been alone with them and stated she had concerns
    about how Rocha treated the children.
    Jessica did not expose J.S. to anything sexual, and Jessica
    claimed J.S. did not tell her that she was sexually abused by
    Rocha. She said J.S. had an imagination and made up stories.
    Jessica said she did not see Rocha smoke marijuana in the
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    home and did not find or smell marijuana in the home. She
    denied that the children were deprived of food at dinner.
    Rocha denied the allegations of sexual assault and child
    abuse. He denied taking J.S. to the living room or exposing
    himself to her. He denied having done anything to J.S. for
    sexual gratification.
    Rocha said he disciplined J.S., A.R., and A.S. by scolding
    them, yelling at them, giving them “timeouts,” and sending
    them to their room. He said he spanked them with an open
    hand on the bottom but denied pinching, choking, hitting
    them in the face, or striking them with anything other than
    his hands. Rocha disciplined J.C. by “grounding” him. He
    denied using marijuana in front of the children, offering it to
    the children, or forcing them to consume it. He said that he
    and Jessica made them meals and that the children were not
    denied food.
    After the evidentiary portion of the trial, Rocha’s counsel
    requested that a proposed jury instruction on the term “cruel
    punishment” be given to the jury. The court denied the instruc-
    tion. It determined the instruction was not necessary to accu-
    rately state the law. During its rebuttal argument, the State
    asserted that J.S. had been “absolutely honest in everything she
    told [the jury] that happened.”
    The jury found Rocha guilty on all counts. He was sentenced
    to prison for 40 years to life on the sexual assault conviction,
    with credit for 264 days served, and 3 to 5 years on each child
    abuse conviction. All sentences were to run consecutively.
    He appealed. This court has a statutory obligation to hear all
    appeals in cases in which the sentence of life imprisonment
    is imposed.1
    III. ASSIGNMENTS OF ERROR
    Rocha assigns, summarized and restated, that (1) his trial
    counsel was ineffective in failing to move to sever the sexual
    assault charge from the child abuse charges, (2) his trial coun-
    sel was ineffective in failing to request a limiting instruction
    preventing the jury from considering the evidence of sexual
    1
    See Neb. Rev. Stat. § 24-1106(1) (Reissue 2008).
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    assault to convict him of the child abuse charges and vice
    versa, (3) the trial court erred in failing to instruct the jury on
    the lesser-included offense of negligent child abuse, and (4)
    the trial court erred in failing to instruct the jury on the paren-
    tal justification for use of force as set forth in Neb. Rev. Stat.
    § 28-1413 (Reissue 2008). Rocha raises a hearsay claim and
    other ineffective assistance of counsel claims which are not
    necessary for our analysis.
    IV. STANDARD OF REVIEW
    [1-3] Appellate review of a claim of ineffective assistance
    of counsel is a mixed question of law and fact.2 When review-
    ing a claim of ineffective assistance of counsel, an appellate
    court reviews the factual findings of the lower court for clear
    error.3 With regard to the questions of counsel’s performance
    or prejudice to the defendant as part of the two-pronged test
    articulated in Strickland v. Washington,4 an appellate court
    reviews such legal determinations independently of the lower
    court’s decision.5
    IV. ANALYSIS
    1. Trial Counsel Was Ineffective in
    Failing to Move to Sever Sexual
    Assault Charge From Child
    Abuse Charges
    [4] Rocha first takes issue with his charges being joined in a
    single trial. Rocha did not object to the alleged misjoinder and
    did not move to sever one or several of the charges. Absent
    plain error, we ordinarily will not address an issue that was
    not raised in the trial court.6 Other courts have held that a trial
    court may raise the issue of misjoinder and sever joint charges
    2
    State v. Poe, 
    284 Neb. 750
    , 
    822 N.W.2d 831
     (2012).
    3
    Id.
    4
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    5
    State v. Poe, supra note 2.
    6
    See, e.g., State v. Simnick, 
    279 Neb. 499
    , 
    779 N.W.2d 335
     (2010).
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    or defendants on its own motion.7 But a court’s failure to exer-
    cise that power is reviewable only for plain error.8 Rocha has
    not argued plain error here.
    However, the alleged misjoinder and failure to sever may
    also be addressed through the prism of ineffective assistance
    of counsel, which is what Rocha has done here. He argues that
    his counsel was ineffective in failing to object to the misjoinder
    of his charges and in failing to move to sever the charges. He
    argues that his counsel’s inaction resulted in a fundamentally
    unfair trial and that his convictions must be reversed. We can
    conceive of no strategic reason for his counsel’s failure to act,
    and that failure undermines our confidence in the outcome of
    the trial.
    (a) Addressing Ineffective Assistance of
    Counsel Claim on Direct Appeal
    [5] Obviously, this is Rocha’s direct appeal, and ineffective
    assistance of counsel claims are generally addressed through
    a postconviction action. This is frequently because the record
    is insufficient to review the issue on direct appeal.9 There is
    a strong presumption that counsel acted reasonably, and an
    appellate court will not second-guess reasonable strategic deci-
    sions.10 But where the record on direct appeal rebuts that pre-
    sumption, we may address the issue. Essentially, that presump-
    tion is rebutted when counsel’s decision cannot be justified as a
    part of any plausible trial strategy.11 As will be discussed more
    fully below, such is the case here.
    7
    See, e.g., U.S. v. McManus, 
    23 F.3d 878
     (4th Cir. 1994); United States
    v. De Diego, 
    511 F.2d 818
     (D.C. Cir. 1975); 5 Wayne R. LaFave et al.,
    Criminal Procedure § 17.3(a) (2007).
    8
    See, e.g., U.S. v. Hart, 
    273 F.3d 363
     (3d Cir. 2001); U.S. v. Iiland, 
    254 F.3d 1264
     (10th Cir. 2001); United States v. Palow, 
    777 F.2d 52
     (1st Cir.
    1985).
    9
    See, e.g., State v. Watt, 
    285 Neb. 647
    , ___ N.W.2d ___ (2013). See, also,
    State v. Faust, 
    265 Neb. 845
    , 
    660 N.W.2d 844
     (2003), disapproved on
    other grounds, State v. McCulloch, 
    274 Neb. 636
    , 
    742 N.W.2d 727
     (2007).
    10
    See, e.g., State v. Huston, 
    285 Neb. 11
    , 
    824 N.W.2d 724
     (2013).
    11
    See Faust, supra note 9.
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    264	286 NEBRASKA REPORTS
    The dissent, however, takes issue with our addressing
    Rocha’s ineffective assistance claim on direct appeal and sug-
    gests that we should never resolve such claims on direct
    appeal. In support of its position, the dissent makes several
    arguments, most of which find support in the U.S. Supreme
    Court’s opinion in Massaro v. United States12; the dissent
    quotes Massaro extensively. But in the final paragraph of
    Massaro, the Court stated:
    We do not go this far. We do not hold that ineffective-
    assistance claims must be reserved for collateral review.
    There may be cases in which trial counsel’s ineffective-
    ness is so apparent from the record that appellate coun-
    sel will consider it advisable to raise the issue on direct
    appeal. There may be instances, too, when obvious defi-
    ciencies in representation will be addressed by an appel-
    late court sua sponte.13
    Clearly, the U.S. Supreme Court disagreed with the dissent’s
    categorical approach. We do too.
    The dissent also poses a litany of questions that, in its view,
    might (on postconviction review) uncover a reasonable strategy
    behind trial counsel’s failure to sever the charges. Putting aside
    whether the dissent’s possible answers are actually probable
    or convincing, this “what if” routine could be done for any
    case on direct appeal. It is just another way for the dissent
    to argue that ineffective assistance claims should always be
    reserved for postconviction review. As noted above, we (and
    the U.S. Supreme Court) reject that position. Here, ineffec-
    tive assistance is plain from the record and may be addressed
    on direct appeal. In fact, if appellate counsel is different from
    trial counsel, claims of ineffective assistance of counsel must
    be raised on direct appeal, or they are waived. The question
    is whether the record is sufficient to address the claim. In this
    case, the majority has determined the record is sufficient to
    address the claim.
    12
    Massaro v. United States, 
    538 U.S. 500
    , 
    123 S. Ct. 1690
    , 
    155 L. Ed. 2d 714
     (2003).
    13
    Id., 538 U.S. at 508.
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    [6] As the analysis will show, the charges were improperly
    joined together, and considering the obvious risks to Rocha of
    proceeding with a joint trial on the charges, we can conceive
    of no justifiable reason for counsel’s failure to object to the
    misjoinder and failure to move to sever. “[W]here no plau-
    sible explanation for an attorney’s actions exists, to require the
    defendant to file a postconviction action can be only a waste of
    judicial time.”14
    The State and the dissent argue that a reasonable explanation
    could exist and that we should wait to address this claim until
    it is on postconviction review. As stated above, we disagree.
    But as an example of such an alleged explanation, the State
    claimed at oral argument that perhaps Rocha’s counsel did not
    object to the joinder of the charges and move to sever because
    Rocha himself requested a single trial. We find this hypotheti-
    cal unpersuasive because, regardless, the decision whether to
    object to the joinder and move to sever was a tactical decision
    for trial counsel to make rather than Rocha.15
    (b) Merits of Rocha’s Ineffective
    Assistance of Counsel Claim
    [7,8] To prevail on a claim of ineffective assistance of coun-
    sel under Strickland,16 the defendant must show that counsel’s
    performance was deficient and that this deficient performance
    actually prejudiced his or her defense.17 To show deficient per-
    formance, a defendant must show that counsel’s performance
    did not equal that of a lawyer with ordinary training and skill
    in criminal law in the area.18
    14
    Faust, supra note 9, 265 Neb. at 876, 660 N.W.2d at 872. See, also, Hills
    v. State, 
    78 So. 3d 648
     (Fla. App. 2012); People v. Karraker, 
    261 Ill. App. 3d
     942, 
    633 N.E.2d 1250
    , 
    199 Ill. Dec. 259
     (1994).
    15
    See, e.g., State v. Fleury, 
    135 Conn. App. 720
    , 
    42 A.3d 499
     (2012); Com.
    v. Hernandez, 63 Mass. App. 426, 
    826 N.E.2d 753
     (2005); Com. v. Clarke,
    44 Mass. App. 502, 
    692 N.E.2d 85
     (1998). See, also, Neb. Ct. R. of Prof.
    Cond. § 3-501.2.
    16
    Strickland, supra note 4.
    17
    Watt, supra note 9.
    18
    Id.
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    [9,10] The petitioner must demonstrate a reasonable prob-
    ability that but for his or her counsel’s deficient performance,
    the result of the proceeding would have been different.19 A
    reasonable probability is a probability sufficient to undermine
    confidence in the outcome.20 In addressing the “prejudice”
    component of the Strickland test, we focus on whether a trial
    counsel’s deficient performance renders the result of the trial
    unreliable or the proceeding fundamentally unfair.21
    [11] Here, whether counsel’s performance was deficient
    initially depends on whether the charges were properly joined
    under Neb. Rev. Stat. § 29-2002(1) (Reissue 2008). Section
    29-2002 states in relevant part:
    (1) Two or more offenses may be charged in the same
    . . . information . . . in a separate count for each offense
    if the offenses charged . . . are of the same or similar
    character or are based on the same act or transaction or
    on two or more acts or transactions connected together or
    constituting parts of a common scheme or plan.
    The language of § 29-2002(1) is similar to the language found
    in Fed. R. Crim. P. 8(a). Offenses are properly joinable under
    § 29-2002(1) if they are of the same or similar character or are
    based on the same act or transaction or on two or more acts or
    transactions connected together or constituting parts of a com-
    mon scheme or plan.22
    At the outset, the exact charges in this case should be made
    clear. The State charged Rocha with first degree sexual assault
    of a child (as to J.S. only) under Neb. Rev. Stat. § 28-319.01
    (Cum. Supp. 2012). The State also charged Rocha with four
    counts of child abuse (as to all four children, including J.S.)
    under Neb. Rev. Stat. § 28-707 (Reissue 2008). Rocha argues
    now on appeal that his trial counsel was ineffective for failing
    to object to the misjoinder of these charges and for failing to
    19
    State v. Robinson, 
    285 Neb. 394
    , 
    827 N.W.2d 292
     (2013).
    20
    Id.
    21
    See, e.g., Strickland, supra note 4; Peralta v. U.S., 
    597 F.3d 74
     (1st Cir.
    2010); Nguyen v. U.S., 487 Fed. Appx. 484 (11th Cir. 2012); Henington v.
    State, 
    2012 Ark. 181
    , ___ S.W.3d ___ (2012).
    22
    See State v. Hilding, 
    278 Neb. 115
    , 
    769 N.W.2d 326
     (2009).
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    move to sever these charges. Specifically, Rocha argues that
    the sexual assault charge should not have been tried with the
    four child abuse charges. We agree.
    First, we conclude that the sexual assault charge and the
    child abuse charges were not of the same or similar character.
    For one thing, they are different crimes. Most notably, how-
    ever, sexual assault, on its face, is sexual in nature, whereas
    child abuse is not. The sexual assault charge pertained only
    to J.S. and took place over a different period of time than
    the child abuse charges. As such, the sexual assault charge
    and the child abuse charges were not of the same or simi-
    lar character.
    [12,13] Second, the sexual assault charge was not based on
    the same act or transaction as the child abuse charges. Charges
    arise out of the same act or transaction if they are so closely
    linked in time, place, and circumstance that a complete account
    of one charge cannot be related without relating details of the
    other charge.23 To be part of the same act or transaction, there
    must be substantially the same facts; i.e., one charge cannot be
    proved without presenting evidence of the other charge.24 The
    fact that multiple crimes were allegedly committed about the
    same time or overlapped is not enough.25
    Here, the alleged sexual assaults occurred separately and
    apart from the alleged child abuse. As noted above, J.S. was
    allegedly assaulted when the other children were not present.
    The alleged incidents occurred in the living room, Jessica’s
    bedroom, the bathrooms, or the car. J.S. was the only child
    who was sexually assaulted and the only child who testified to
    being sexually assaulted. There was no evidence that the other
    children were sexually assaulted.
    In contrast, many of the alleged incidents of child abuse
    occurred in the presence of more than one child and related
    to the striking of the children with a slipper, belt, or Rocha’s
    23
    State v. Clark, 
    228 Neb. 599
    , 
    423 N.W.2d 471
     (1988) (quoting State v.
    Brehmer, 
    211 Neb. 29
    , 
    317 N.W.2d 885
     (1982)).
    24
    See, Clark, supra note 23; Brehmer, supra note 23; State v. Dandridge, 
    1 Neb. Ct. App. 786
    , 
    511 N.W.2d 527
     (1993).
    25
    See Brehmer, supra note 23.
    Nebraska Advance Sheets
    268	286 NEBRASKA REPORTS
    hand. Rocha allegedly choked two of the children with his
    hands. Evidence of the child abuse did not require evidence of
    the sexual assaults, and vice versa. The charges were not part
    of the same act or transaction.
    Finally, the sexual assault charge and the child abuse charges
    were not connected together or parts of a common scheme or
    plan. The State argues otherwise, on the basis that each of
    the alleged crimes was part of a common scheme or plan to
    exercise control over the children. We find this unpersua-
    sive—Rocha already controlled the children by virtue of being
    a stepparent. And the record does not demonstrate any other
    inferable common scheme or plan.
    Furthermore, these charges are unlike charges in cases
    that we have found sufficiently related under the “connected
    together” or “parts of a common scheme or plan” provi-
    sion of § 29-2002(1). For example, in State v. Hilding,26 we
    allowed the joinder of sexual assault charges and a stalking
    charge because the telephone calls which formed the stalk-
    ing charge included, as a “frequent topic,” the alleged sexual
    assaults. And the defendant “admitted that the threats he made
    in the calls were a response to [the victim’s] allegations that
    he had sexually assaulted her.”27 Such evidence would have
    been admissible in separate trials of the crimes and formed
    a series of connected transactions.28 There is no such nexus
    between the alleged sexual assault and the alleged child abuse
    in Rocha’s case.
    In sum, the sexual assault charge was misjoined with the
    child abuse charges. Under § 29-2002(1), the charges were not
    of the same or similar character, part of the same act or trans-
    action, or connected together or parts of a common scheme or
    plan. As such, the charges were misjoined, and had a proper
    objection been raised by trial counsel, the court would have
    been required to order separate trials.29 That being the case,
    26
    Hilding, supra note 22, 278 Neb. at 131, 769 N.W.2d at 339.
    27
    Id.
    28
    See Hilding, supra note 22.
    29
    See, e.g., U.S. v. Chavis, 
    296 F.3d 450
     (6th Cir. 2002); 5 LaFave et al.,
    supra note 7, § 17.3(b).
    Nebraska Advance Sheets
    STATE v. ROCHA	269
    Cite as 
    286 Neb. 256
    and because of the obvious risks to Rocha of proceeding with
    a joint trial on the charges, we can conceive of no reasonable
    strategic reason for counsel’s failure to object and move to
    sever the charges. This was deficient performance.
    The question remains whether counsel’s deficient perform­
    ance actually prejudiced Rocha. In answering that question,
    and as stated previously, we focus on whether a trial counsel’s
    deficient performance rendered the result of the trial unreliable
    or the proceeding fundamentally unfair. To show prejudice,
    the defendant must demonstrate a reasonable probability that
    but for his or her counsel’s deficient performance, the result
    of the proceeding would have been different.30 A reasonable
    probability is a probability sufficient to undermine confidence
    in the outcome.31
    Because the charges were misjoined under § 29-2002(1),
    evidence of both the alleged sexual assaults and the child
    abuse of the other children was admitted in the joint trial. But
    had the charges been tried separately, evidence of the child
    abuse regarding the other children would have been inadmis-
    sible in a trial on the sexual assault charge, and vice versa,
    under Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2012), which
    provides:
    Evidence of other crimes, wrongs, or acts is not admis-
    sible to prove the character of a person in order to show
    that he or she acted in conformity therewith. It may, how-
    ever, be admissible for other purposes, such as proof of
    motive, opportunity, intent, preparation, plan, knowledge,
    identity, or absence of mistake or accident.
    The reason for the rule is that such evidence, despite its rel-
    evance, creates the risk of a decision by the trier of fact on an
    improper basis.32 That risk is a substantial one.33
    We do not agree with the State’s claim that § 27-404(2)
    would be inapplicable in separate trials, because the evidence
    30
    Robinson, supra note 19.
    31
    Id.
    32
    See State v. Glazebrook, 
    282 Neb. 412
    , 
    803 N.W.2d 767
     (2011).
    33
    See Faust, supra note 9.
    Nebraska Advance Sheets
    270	286 NEBRASKA REPORTS
    of the child abuse charges and of the sexual assault charge
    was inextricably intertwined.34 Here, there was no evidence
    that Rocha sexually assaulted the boys. The boys were not
    present when the alleged sexual assaults occurred. The State
    did not need to present evidence that Rocha abused the chil-
    dren to tell the entire story of sexual assault, and it did not
    need to present evidence of sexual assault to tell the entire
    story of child abuse.
    Trying the sexual assault and child abuse charges together
    also essentially prohibited Rocha from moving to exclude
    prejudicial evidence based on Neb. Rev. Stat. § 27-403
    (Reissue 2008), which states: “Although relevant, evidence
    may be excluded if its probative value is substantially out-
    weighed by the danger of unfair prejudice, confusion of the
    issues, or misleading the jury, or by considerations of undue
    delay, waste of time, or needless presentation of cumulative
    evidence.” In a separate trial for child abuse, any probative
    value of the sexual assault evidence would be outweighed
    by unfair prejudice; the jury might convict Rocha of child
    abuse because he had sexually assaulted J.S. Similarly, in a
    separate trial for sexual assault, any probative value of child
    abuse evidence would be outweighed by unfair prejudice; the
    jury might convict Rocha of sexual assault because he abused
    the children.
    The risk of undue prejudice, considering the type of evi-
    dence at issue, was high; evidence of sexual assault, by its
    nature, was highly volatile and had the potential to fan the
    jury’s emotions. That risk was exacerbated by the fact that
    the court did not specifically instruct the jury on the impor-
    tance of keeping the charges, and evidence related to those
    charges, separate during its deliberations. For these reasons,
    our confidence in the outcome of this case is undermined and
    we conclude that Rocha was prejudiced by his trial counsel’s
    deficient performance.
    34
    See State v. Freemont, 
    284 Neb. 179
    , 
    817 N.W.2d 277
     (2012).
    Nebraska Advance Sheets
    STATE v. ROCHA	271
    Cite as 
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    2. Failure to R equest
    Limiting Instructions
    Rocha claims trial counsel was ineffective because he failed
    to request a limiting instruction that the jury could not consider
    the evidence of sexual assault to prove the charges of child
    abuse and vice versa.
    At oral argument, the State asserted hypothetically that an
    evidentiary hearing was required to examine counsel’s strategy,
    because Rocha may have insisted on testifying, but in only one
    trial. Assuming for purposes of the State’s assertion that an
    evidentiary hearing was required, the question remains whether
    the record is sufficient to address counsel’s failure to request
    limiting instructions. We conclude that it is.
    In reviewing the admissibility of other crimes evidence
    under § 27-404(2), an appellate court considers (1) whether the
    evidence was relevant for some purpose other than to prove the
    character of a person to show that he or she acted in conform­
    ity therewith, (2) whether the probative value of the evidence
    is substantially outweighed by its potential for unfair preju-
    dice, and (3) whether the trial court, if requested, instructed the
    jury to consider the evidence only for the limited purpose for
    which it was admitted.35
    The charges were not of the same or similar character, were
    not based on the same act, and were not part of a common
    scheme or plan. The evidence of Rocha’s sexual assaults was
    not relevant to the charges of child abuse and vice versa.
    Evidence that Rocha made J.S. perform oral sex and that
    Rocha put his “private area in [her] bottom” would not be
    relevant for any proper purpose under § 27-404 as to the child
    abuse charges. Nor would evidence that Rocha spanked the
    children or allegedly physically abused the children be relevant
    to the sexual assault charges. The admission of this evidence
    without limiting instructions was unfairly prejudicial.
    Once the charges were joined, an attorney with ordinary
    training and skill in criminal law would have requested these
    limiting instructions. We can conceive of no reasonable
    35
    Glazebrook, supra note 32.
    Nebraska Advance Sheets
    272	286 NEBRASKA REPORTS
    explanation why, if Rocha insisted on trying the charges in one
    trial, counsel would not ask for the limiting instructions.
    For the reasons stated above, we conclude that Rocha
    received ineffective assistance of counsel. We therefore reverse
    the judgments of conviction.
    3. Sufficiency of Evidence
    Because we reverse the judgments of conviction, we exam-
    ine whether the evidence admitted by the trial court was suf-
    ficient to sustain Rocha’s convictions. The Double Jeopardy
    Clause does not forbid a retrial so long as the sum of all the
    evidence admitted by a trial court, whether erroneously or not,
    would have been sufficient to sustain a guilty verdict.36 The
    evidence was sufficient to sustain the guilty verdicts.
    VI. CONCLUSION
    For the reasons set forth herein, we reverse the judgments
    of conviction, vacate the sentences, and remand the cause for
    further proceedings.
    R eversed, sentences vacated, and cause
    remanded for further proceedings.
    McCormack, J., participating on briefs.
    Heavican, C.J., not participating.
    36
    See State v. Sorensen, 
    283 Neb. 932
    , 
    814 N.W.2d 371
     (2012).
    Stephan, J., dissenting.
    This is the second time that this court has overturned a
    criminal conviction on the ground of ineffective assistance of
    counsel without a complete factual record to support its con-
    clusion. As in the first instance,1 I respectfully dissent.
    As the majority acknowledges in its statement of the stan-
    dard of review, a claim of ineffective assistance of counsel
    presents a mixed question of law and fact, requiring that we
    review factual findings of the lower court for clear error, but
    reach an independent determination of whether ineffective
    1
    State v. Faust, 
    265 Neb. 845
    , 
    660 N.W.2d 844
     (2003) (Stephan, J.,
    dissenting), disapproved on other grounds, State v. McCulloch, 
    274 Neb. 636
    , 
    742 N.W.2d 727
     (2007).
    Nebraska Advance Sheets
    STATE v. ROCHA	273
    Cite as 
    286 Neb. 256
    assistance of counsel under the Strickland v. Washington2 stan-
    dard has been proved.3 Here, we have no “factual findings of
    the lower court” to review on the issue of defense counsel’s
    performance, because that issue was never tried. The issue
    before the district court was Rocha’s guilt on the charged
    offenses, not counsel’s performance in conducting Rocha’s
    defense. That is precisely why we have held in countless cases
    that the record on direct appeal is insufficient for assessing
    claims of ineffective assist­ nce of counsel.4 The majority does
    a
    not explain how it can review a mixed question of law and fact
    when the requisite factual findings have never been made by
    a trial court.
    The reasons why an appellate court usually cannot and
    should not consider ineffective assistance of counsel claims
    on direct appeal from a criminal conviction were explained
    by the U.S. Supreme Court in Massaro v. United States.5
    2
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    3
    State v. Poe, 
    284 Neb. 750
    , 
    822 N.W.2d 831
     (2012).
    4
    See, e.g., State v. Watt, 
    285 Neb. 647
    , ___ N.W.2d ___ (2013); State
    v. McClain, 
    285 Neb. 537
    , 
    827 N.W.2d 814
     (2013); State v. Ramirez,
    
    285 Neb. 203
    , 
    825 N.W.2d 801
     (2013); State v. Huston, 
    285 Neb. 11
    ,
    
    824 N.W.2d 724
     (2013); State v. Freemont, 
    284 Neb. 179
    , 
    817 N.W.2d 277
     (2012); State v. Nolan, 
    283 Neb. 50
    , 
    807 N.W.2d 520
     (2012), cert.
    denied ___ U.S. ___, 
    133 S. Ct. 158
    , 
    184 L. Ed. 2d 78
    ; State v. Pullens,
    
    281 Neb. 828
    , 
    800 N.W.2d 202
     (2011); State v. Seberger, 
    279 Neb. 576
    ,
    
    779 N.W.2d 362
     (2010); State v. Sellers, 
    279 Neb. 220
    , 
    777 N.W.2d 779
    (2010); State v. Robinson, 
    278 Neb. 212
    , 
    769 N.W.2d 366
     (2009); State
    v. Davis, 
    276 Neb. 755
    , 
    757 N.W.2d 367
     (2008); State v. Jones, 
    274 Neb. 271
    , 
    739 N.W.2d 193
     (2007); State v. Davlin, 
    272 Neb. 139
    , 
    719 N.W.2d 243
     (2006); State v. Moyer, 
    271 Neb. 776
    , 
    715 N.W.2d 565
     (2006); State
    v. Molina, 
    271 Neb. 488
    , 
    713 N.W.2d 412
     (2006); State v. Gales, 
    269 Neb. 443
    , 
    694 N.W.2d 124
     (2005); State v. King, 
    269 Neb. 326
    , 
    693 N.W.2d 250
     (2005); State v. Brown, 
    268 Neb. 943
    , 
    689 N.W.2d 347
     (2004); State v.
    Cook, 
    266 Neb. 465
    , 
    667 N.W.2d 201
     (2003); State v. Leibhart, 
    266 Neb. 133
    , 
    662 N.W.2d 618
     (2003); State v. Kelley, 
    265 Neb. 563
    , 
    658 N.W.2d 279
     (2003); State v. Long, 
    264 Neb. 85
    , 
    645 N.W.2d 553
     (2002); State v.
    McLemore, 
    261 Neb. 452
    , 
    623 N.W.2d 315
     (2001); State v. Hittle, 
    257 Neb. 344
    , 
    598 N.W.2d 20
     (1999).
    5
    Massaro v. United States, 
    538 U.S. 500
    , 
    123 S. Ct. 1690
    , 
    155 L. Ed. 2d 714
     (2003).
    Nebraska Advance Sheets
    274	286 NEBRASKA REPORTS
    Although the Court acknowledged the possibility that ineffec-
    tive assist­ nce of counsel could be evident from a trial record
    a
    alone, it observed that such cases would be few. The Court’s
    reasons clearly apply to Rocha’s direct appeal and explain
    why this court should decline to address his claims of ineffec-
    tive assistance of counsel. The Court noted that a trial record
    reviewed on direct appeal is “not developed . . . for the object
    of litigating or preserving the [ineffective assistance of coun-
    sel] claim and thus often incomplete or inadequate for this
    purpose.”6 The Court further reasoned that because evidence at
    a criminal trial is “devoted to issues of guilt or innocence, . . .
    the resulting record in many cases will not disclose the facts
    necessary to decide either prong of the Strickland analysis.”7
    For example, the Court noted that
    [i]f the alleged error is one of commission, the record
    may reflect the action taken by counsel but not the
    reasons for it. The appellate court may have no way
    of knowing whether a seemingly unusual or misguided
    action by counsel had a sound strategic motive or was
    taken because the counsel’s alternatives were even
    worse.8
    And the Court reasoned that “[t]he trial record may contain
    no evidence of alleged errors of omission, much less the
    reasons underlying them.”9 Because of the inadequacy of the
    trial record as a basis for adjudicating ineffective assistance
    of counsel claims, the Court concluded that such claims ordi-
    narily should be litigated in the first instance in the district
    court, “the forum best suited to developing the facts neces-
    sary to determining the adequacy of representation during an
    entire trial.”10
    Although this court generally requires ineffective assistance
    of counsel claims to be raised on direct appeal in order to
    6
    Id., 538 U.S. at 505.
    7
    Id.
    8
    Id.
    9
    Id.
    10
    Id.
    Nebraska Advance Sheets
    STATE v. ROCHA	275
    Cite as 
    286 Neb. 256
    be preserved for postconviction review,11 we have steadfastly
    followed the principle that the fact that such a claim may be
    raised on direct appeal does not mean that it can be resolved.12
    The determining factor is whether the record is sufficient to
    adequately review the question.13 And with the exception of
    State v. Faust,14 when the ineffective assistance of counsel
    at issue could involve trial strategy, we have always found a
    trial record reviewed on direct appeal to be insufficient for
    adequate review because it does not tell us the reasons defense
    counsel tried the case in a particular manner.15 We have pru-
    dently followed this course even while expressing skepticism
    as to whether counsel could have been pursuing a reasonable
    trial strategy. For example, in State v. Sidzyik,16 the defendant
    claimed on direct appeal that his trial counsel was ineffective
    in not objecting when the prosecutor made statements at sen-
    tencing after agreeing as a part of the plea agreement to stand
    silent. We concluded that there had been a material breach
    of the plea agreement and noted that “‘it would be a rare
    circumstance when a lawyer with ordinary training and skill
    in the area of criminal law would not inform the court of the
    breach.’”17 But we concluded that the record was insufficient
    to review the ineffective assistance of counsel claim because it
    was “not clear from the record . . . whether [the defendant’s]
    counsel did not object to the breach of the plea agreement
    based on trial strategy.”18
    But in Faust and now in this case, the majority reaches and
    resolves the ineffective assistance of counsel claim on direct
    11
    See, State v. Young, 
    279 Neb. 602
    , 
    780 N.W.2d 28
     (2010); State v.
    Marshall, 
    269 Neb. 56
    , 
    690 N.W.2d 593
     (2005).
    12
    E.g., State v. Watt, supra note 4; State v. Sidzyik, 
    281 Neb. 305
    , 
    795 N.W.2d 281
     (2011).
    13
    Id.
    14
    State v. Faust, supra note 1.
    15
    See, e.g., cases cited supra note 4.
    16
    State v. Sidzyik, supra note 12.
    17
    Id. at 314, 795 N.W.2d at 288-89 (quoting State v. Gonzalez-Faguaga, 
    266 Neb. 72
    , 
    662 N.W.2d 581
     (2003)).
    18
    Id. at 314, 795 N.W.2d at 289.
    Nebraska Advance Sheets
    276	286 NEBRASKA REPORTS
    appeal because it “can conceive of no reasonable strategic
    reason” for the challenged performance of defense counsel. I
    believe that this “we know it when we see it” approach to the
    question of whether counsel had no reasonable trial strategy
    is unsound.
    Here, we simply do not have the information necessary to
    make a principled determination of whether counsel acted,
    or did not act, pursuant to some reasonable trial strategy.
    There is a strong presumption that trial counsel acted reason-
    ably.19 Trial counsel is afforded due deference to formulate
    trial strategy and tactics, and we are not to second-guess
    trial counsel’s reasonable strategic decisions when review-
    ing claims of ineffective assistance of counsel.20 And we are
    required to assess trial counsel’s performance from the coun-
    sel’s perspective when the counsel provided the assistance,21
    not in hindsight. The fact that a calculated trial tactic or
    strategy fails to work out as planned will not establish that
    counsel was ineffective.22
    These sound principles recognize that no one knows more
    about a case than the lawyer who tries it. Before trial, a crimi-
    nal defense lawyer conducts confidential communications with
    his or her client, interviews witnesses, and reviews police
    reports and other information compiled by the State. It is from
    this knowledge base that the lawyer formulates trial strategy
    by application of professional judgment to particular facts and
    circumstances. The trial record tells us how the lawyer elected
    to try the case, but it ordinarily does not disclose counsel’s
    reasons for taking, or not taking, a particular action. Any expe-
    rienced trial lawyer knows that there can be sound strategic
    reasons for not filing a motion, for not making an objection,
    or for not requesting a limiting instruction, even if there are
    grounds to do so. It is impossible to determine whether counsel
    acted or refrained from acting pursuant to a reasonable trial
    19
    State v. Watt, supra note 4; State v. Huston, supra note 4.
    20
    See, e.g., State v. Huston, supra note 4; State v. Edwards, 
    284 Neb. 382
    ,
    
    821 N.W.2d 680
     (2012).
    21
    State v. Edwards, supra note 20.
    22
    State v. Iromuanya, 
    282 Neb. 798
    , 
    806 N.W.2d 404
     (2011).
    Nebraska Advance Sheets
    STATE v. ROCHA	277
    Cite as 
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    strategy without knowing what counsel knew at the time of
    the challenged conduct, and why he or she tried the case in a
    particular manner. We simply cannot tell from this record why
    Rocha’s counsel did not file a motion to sever the charges or
    request a limiting instruction. And we should not guess or jump
    to the conclusion that we can “conceive of no strategic reason”
    for a particular action taken by counsel during the course of a
    criminal trial.
    The majority’s willingness to conclude that Rocha’s coun-
    sel could not have been acting pursuant to a reasonable trial
    strategy is at odds with the reasoning of State v. Poe,23 decided
    just last year. In Poe, we reversed an order denying postcon-
    viction relief without an evidentiary hearing because the files
    and records of the case, which are essentially the trial record,
    contained no explanation for trial counsel’s failure to cross-
    examine a key prosecution witness with a prior inconsistent
    statement in which the witness identified someone other than
    the defendant as the perpetrator of the crime. We reasoned
    that “[u]nder these circumstances, trial counsel’s strategy is
    a matter of conjecture.”24 In this case, as in Poe, the record
    does not disclose counsel’s strategy in not taking a particular
    action at trial. Further factfinding was required in Poe in order
    to address that issue, and it is likewise required here. In my
    view, the majority’s bold statement that it can “conceive of no
    strategic reason” for Rocha’s counsel not to move to sever the
    charges or to request a limiting instruction is pure “conjecture,”
    i.e., “the formation or expression of an opinion without suffi-
    cient evidence for proof.”25
    In addition to reaching a result without adequate factual
    support, the majority’s reasoning prevents the relevant facts
    from ever being determined. Had this court followed our nor-
    mal procedure and declined to reach the ineffective assistance
    claim on direct appeal, Rocha could have asserted the same
    claim in a motion for postconviction relief. Because the files
    23
    State v. Poe, supra note 3.
    24
    Id. at 774, 822 N.W.2d at 849.
    25
    Webster’s Encyclopedic Unabridged Dictionary of the English Language
    310 (1989).
    Nebraska Advance Sheets
    278	286 NEBRASKA REPORTS
    and records of the case now before us on direct appeal do not
    affirmatively show that his claim is without merit, he would be
    entitled to an evidentiary hearing26 at which his trial counsel
    would likely be a witness.
    And what if, at a postconviction evidentiary hearing, trial
    counsel testified that Rocha had always insisted that he was
    innocent of all charges and that the children fabricated their
    allegations because he was strict with them and was not their
    biological father? What if counsel testified that after con-
    sultation, Rocha insisted on testifying in his own defense,
    and counsel concluded that under Neb. Ct. R. of Prof. Cond.
    § 3-501.2(a), he was ethically required to abide by that deci-
    sion? What if counsel testified that he determined that the
    mother of the children would testify in Rocha’s defense, spe-
    cifically that the children had never reported physical or sexual
    abuse to her and that the alleged sexual assault victim “had an
    imagination and made up stories”? What if counsel testified
    that given the absence of any physical evidence of sexual or
    physical abuse and Rocha’s insistence on testifying in his own
    defense, counsel concluded that the best strategy for obtaining
    acquittal on all charges was to have a single trial in which he
    would seek to create reasonable doubt as to the credibility of
    the complaining witnesses, rather than moving to sever the
    charges and thus giving the State two opportunities to cross-
    examine Rocha and obtain felony convictions? What if counsel
    testified that he reviewed the pros and cons of severance with
    his client and that Rocha agreed with counsel’s assessment
    that Rocha stood a better chance of acquittal on all charges in
    a single trial? What if counsel testified that he did not request
    a limiting instruction requiring the jury to consider the chil-
    dren’s testimony only for specific purposes because counsel’s
    strategy was to characterize the children’s testimony as totally
    lacking in credibility and therefore unworthy of the jury’s con-
    sideration on any charge? I think it is possible, if not probable,
    that a district court hearing this testimony would conclude that
    this strategy was reasonable from defense counsel’s perspec-
    tive at trial and was therefore not ineffective assistance of
    26
    See Neb. Rev. Stat. § 29-3001 (Cum. Supp. 2012).
    Nebraska Advance Sheets
    STATE v. ROCHA	279
    Cite as 
    286 Neb. 256
    counsel. In such a scenario, Rocha’s otherwise valid criminal
    convictions would not be overturned.
    But because of the majority’s preemptive adjudication of
    the ineffective assistance claim on the trial record alone, we
    will never know the reasons defense counsel did not move to
    sever the charges or request a limiting instruction. I submit
    that the majority cannot “conceive” of a strategic explanation
    for counsel’s performance at trial because it does not know all
    the facts and has eliminated the procedural means of acquiring
    them. The majority’s approach violates a fundamental principle
    of appellate review in criminal cases—a principle codified for
    over 90 years—that no judgment in a criminal case may be set
    aside if the court considers that no substantial miscarriage of
    justice has actually occurred.27 Without having the facts in the
    record, an appellate court cannot assess whether a miscarriage
    of justice has occurred. Despite the absence of necessary facts
    and the existence of a procedure for ascertaining them, the
    majority nonetheless sets these judgments of conviction aside
    in contravention of the statutory mandate.
    Finally, I cannot accept the majority’s conclusion that this is
    a case in which requiring “the defendant to file a postconvic-
    tion action can be only a waste of judicial time.”28 In my view,
    it is never a waste of judicial time to follow standard proce-
    dures designed to ensure that a court has all relevant facts nec-
    essary to decide whether a criminal conviction should stand.
    And I believe that it is the majority’s approach which could,
    in this case or another, lead to what would truly be a waste of
    judicial time: an unnecessary retrial.
    Finding no merit in any of Rocha’s other assignments of
    error, I would affirm his convictions and sentences without
    reaching his ineffective assistance of counsel claim, thereby
    permitting him to pursue his postconviction remedy on
    that issue.
    Cassel, J., joins in this dissent.
    27
    See Neb. Rev. Stat. § 29-2308 (Reissue 2008).
    28
    State v. Faust, supra note 1, 265 Neb. at 876, 660 N.W.2d at 872.
    

Document Info

Docket Number: S-12-411

Citation Numbers: 286 Neb. 256, 2013 WL 3784212

Filed Date: 7/19/2013

Precedential Status: Precedential

Modified Date: 2/18/2020

Authorities (37)

Massaro v. United States , 123 S. Ct. 1690 ( 2003 )

State v. Fleury , 135 Conn. App. 720 ( 2012 )

People v. Karraker , 261 Ill. App. 3d 942 ( 1994 )

united-states-v-janice-mcmanus-united-states-of-america-v-alton-ray , 23 F.3d 878 ( 1994 )

State v. Moyer , 271 Neb. 776 ( 2006 )

State v. Simnick , 279 Neb. 499 ( 2010 )

State v. Robinson , 278 Neb. 212 ( 2009 )

United States v. Sean Hart, Neil White, Joseph Orlando, ... , 273 F.3d 363 ( 2001 )

State v. Brehmer , 211 Neb. 29 ( 1982 )

State v. Long , 264 Neb. 85 ( 2002 )

United States v. Jeremy Lee Chavis , 296 F.3d 450 ( 2002 )

State v. Sellers , 279 Neb. 220 ( 2010 )

State v. Gonzalez-Faguaga , 266 Neb. 72 ( 2003 )

State v. Faust , 265 Neb. 845 ( 2003 )

State v. Molina , 271 Neb. 488 ( 2006 )

State v. McCulloch , 274 Neb. 636 ( 2007 )

State v. Marshall , 269 Neb. 56 ( 2005 )

State v. Clark , 228 Neb. 599 ( 1988 )

State v. McLemore , 261 Neb. 452 ( 2001 )

State v. Watt , 285 Neb. 647 ( 2013 )

View All Authorities »

Cited By (172)

State v. Avina-Murillo , 301 Neb. 185 ( 2018 )

State v. Nolt , 298 Neb. 910 ( 2018 )

State v. Nolt , 298 Neb. 910 ( 2018 )

State v. Avina-Murillo , 301 Neb. 185 ( 2018 )

State v. Hill , 298 Neb. 675 ( 2018 )

State v. Avina-Murillo , 301 Neb. 185 ( 2018 )

State v. Avina-Murillo , 301 Neb. 185 ( 2018 )

State v. Avina-Murillo , 301 Neb. 185 ( 2018 )

State v. Avina-Murillo , 301 Neb. 185 ( 2018 )

State v. Avina-Murillo , 917 N.W.2d 865 ( 2018 )

State v. Avina-Murillo , 301 Neb. 185 ( 2018 )

State v. Nolt , 298 Neb. 910 ( 2018 )

State v. Hill , 298 Neb. 675 ( 2018 )

State v. Nolt , 298 Neb. 910 ( 2018 )

State v. Cotton , 299 Neb. 650 ( 2018 )

State v. Cotton , 299 Neb. 650 ( 2018 )

State v. Manjikian , 303 Neb. 100 ( 2019 )

State v. Mrza , 302 Neb. 931 ( 2019 )

State v. Hill , 298 Neb. 675 ( 2018 )

State v. Mrza , 302 Neb. 931 ( 2019 )

View All Citing Opinions »