State v. Blaha , 303 Neb. 415 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/05/2019 01:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. BLAHA
Cite as 303 Neb. 415
State of Nebraska, appellee, v.
Ryan W. Blaha, appellant.
___ N.W.2d ___
Filed June 21, 2019. No. S-18-912.
1. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
2. Judgments: Words and Phrases: Appeal and Error. An abuse of dis-
cretion occurs when a trial court’s decision is based upon reasons that
are untenable or unreasonable or if its action is clearly against justice or
conscience, reason, and evidence.
3. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective 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 conclu-
sively determine whether counsel did or did not provide effective assist­
ance and whether the defendant was or was not prejudiced by counsel’s
alleged deficient performance.
4. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
5. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
6. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
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STATE v. BLAHA
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demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
7. Trial: Judges: Sentences. The law invests a trial judge with a wide
discretion as to the sources and types of information used to assist
him or her in determining the sentence to be imposed within statu-
tory limits.
8. Pleas: Waiver. Generally, a voluntary guilty plea or plea of no contest
waives all defenses to a criminal charge.
9. Effectiveness of Counsel: Pleas. When a defendant pleads 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.
10. Effectiveness of Counsel: Records: Appeal and Error. When a defend­
ant’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.
11. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must
show that his or her counsel’s performance was deficient and that this
deficient performance actually prejudiced the defendant’s defense.
12. ____: ____. 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.
13. Effectiveness of Counsel: Pleas. In a plea context, deficiency depends
on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
14. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
tion is based upon a guilty or no contest plea, the prejudice requirement
for an ineffective assistance of counsel claim is satisfied if the defend­
ant shows a reasonable probability that but for the errors of counsel,
the defendant would have insisted on going to trial rather than plead-
ing guilty.
15. Effectiveness of Counsel: Proof. The two prongs of the ineffective
assistance of counsel test under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be addressed in
either order.
16. Effectiveness of Counsel: Proof: Appeal and Error. An appellant must
make specific allegations of the conduct that he or she claims consti-
tutes deficient performance by trial counsel when raising an ineffective
assistance claim on direct appeal. General allegations that trial counsel
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STATE v. BLAHA
Cite as 303 Neb. 415
performed deficiently or that trial counsel was ineffective are insuffi-
cient to raise an ineffective assistance claim on direct appeal.
17. Presentence Reports. A defendant has a qualified right to review his or
her presentence report, and the defendant may, with his or her attorney,
examine the presentence report subject to the court’s supervision.
18. Presentence Reports: Waiver: Notice. A defendant waives his or her
qualified right to review the presentence investigation report by not noti-
fying the trial court that he or she has not personally reviewed the report
and that he or she wishes to do so.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Katie L. Jadlowski for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
Through new counsel, Ryan W. Blaha appeals his criminal
convictions and sentences, attacking the sentences imposed
and asserting ineffective assistance of trial counsel. Regarding
his sentences, we (1) again reject the premise that sentences
within statutory limits are never excessive, (2) dispel the
notion that sentencing factors have not been adequately con-
sidered without specific discussion, and (3) reiterate that
a sentencing court may consider a defendant’s conduct
underlying dismissed charges. Although the record does not
allow us to reach one of his four ineffectiveness claims, we
find no merit to the others, which are, respectively, refuted
by the record, not prejudicial, and insufficiently alleged.
We affirm.
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STATE v. BLAHA
Cite as 303 Neb. 415
II. BACKGROUND
In March 2017, the State charged Blaha with eight counts,
including assault in the first degree and use of a deadly weapon
to commit a felony. From that time until the plea hearing in
July 2018, no pretrial motions were filed. At the hearing, the
parties announced a plea agreement, in which Blaha would
plead no contest to those two charges and in exchange the State
would dismiss the remaining charges. After the district court
informed Blaha of his constitutional rights and received his
pleas of no contest, the State set forth a factual basis for the
charges. The district court accepted Blaha’s pleas of no contest,
found him guilty beyond a reasonable doubt, and dismissed the
remaining charges.
When the court asked trial counsel at the sentencing hear-
ing whether he had any additions or corrections to the presen-
tence investigation report, he directed the court to the docu-
ments which already had been shared with the court. Before
the sentences were pronounced, trial counsel and the State
made arguments. Blaha exercised his right to allocution and
expressed remorse and responsibility for his actions. When
pronouncing its sentences, the district court discussed mainly
the nature of the offense and the amount of violence involved,
but also mentioned Blaha’s age and mental illness as mitigat-
ing factors. It sentenced Blaha to consecutive sentences of 30
to 40 years’ imprisonment for assault in the first degree and
15 to 30 years’ imprisonment for use of a deadly weapon to
commit a felony.
Blaha filed a timely appeal, which we moved to our docket.1
III. ASSIGNMENTS OF ERROR
Blaha assigns, restated and reordered, that (1) the district
court abused its discretion by imposing excessive sentences
and (2) he received ineffective assistance of trial counsel
where counsel (a) failed to advise Blaha of the statutory
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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sentencing ranges, (b) failed to correct the State’s factual basis
for the pleas, (c) failed to engage in pretrial litigation, and
(d) failed to allow Blaha to review the presentence investiga-
tion report.
IV. STANDARD OF REVIEW
[1,2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.2 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence.3
[3] 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 preju-
diced by counsel’s alleged deficient performance.4
V. ANALYSIS
1. Excessive Sentences
Although Blaha does not dispute that the sentences were
within the statutory limits, he contends that the district court
abused its discretion by imposing excessive sentences. Before
turning to his two arguments, we recall general principles
of law.
[4,5] The law governing review of criminal sentences is
well settled. Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate
court must determine whether a sentencing court abused its
2
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
3
State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019).
4
Mrza, supra note 2.
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discretion in considering and applying the relevant factors
as well as any applicable legal principles in determining the
sentence to be imposed.5 In determining a sentence to be
imposed, relevant factors customarily considered and applied
are the defendant’s (1) age, (2) mentality, (3) education and
experience, (4) social and cultural background, (5) past crimi-
nal record or record of law-abiding conduct, and (6) motiva-
tion 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.6
[6] We have repeatedly stated that 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.7 With these principles in mind, we turn to
Blaha’s specific arguments.
First, Blaha contends that Neb. Rev. Stat. § 29-2308 (Reissue
2016) has become meaningless. He asserts that effectively,
most appellate courts “hold that almost any sentence that is
within the statutory limits is not an abuse of discretion.”8
Many years ago in State v. Ruisi,9 a divided panel of the
Nebraska Court of Appeals articulated a similar proposition.
But in State v. Decker,10 we rejected that notion. We quoted the
Court of Appeals’ dissent, which stated that this court “‘has
not foreclosed any sentence within statutory limits from being
excessive, but it strongly suggests it is a rare exception.’”11
5
State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
6
Id.
7
See id.
8
Brief for appellant at 20 (emphasis supplied).
9
State v. Ruisi, 9 Neb. Ct. App. 435, 616 N.W.2d 19 (2000), disapproved in
part, State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
10
Decker, supra note 9.
11
Id. at 398, 622 N.W.2d at 917 (quoting Ruisi, supra note 9 (Buckley,
District Judge, Retired, dissenting)).
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Cite as 303 Neb. 415
Eighteen years later, this remains true. Blaha’s first argument
lacks merit.
Second, Blaha asserts that “[t]he district court’s failure
to adequately consider and apply the sentencing factors,”12
including his mentality, motivation for the offense, criminal
history, education and work history, and age, “resulted in an
unjust, excessive sentence and the court abused its discretion
in imposing such a sentence.”13 He relies on his mental dete-
rioration in the preceding days to the events, his mental and
behavioral illnesses, his criminal history and profile, his steady
employment, and his immaturity.
At the sentencing hearing, the court stated that it did not
believe the maximum punishment of 100 years’ imprisonment
was appropriate, “considering the youth of [Blaha] and his
mental illness problems that he had at that time.” It discussed
the significant tragedy to the victim’s family, how the victim
did not heal, and how the victim’s life changed forever. The
court discussed the fact that Blaha shot at other people in the
parking lot where the incident occurred and how Blaha did not
express remorse to them when issuing its sentences.
We reject the notion that a court does not adequately con-
sider sentencing factors when it does not discuss each one of
them during the sentencing hearing or in its sentencing order.
The record includes the presentence investigation report and
shows that the court reviewed the entire report, which contains
the information necessary to weigh the sentencing factors. In
essence, Blaha quarrels with the weight accorded to these fac-
tors by the sentencing court. We do not review sentences de
novo, but only for an abuse of discretion.
[7] At oral argument, Blaha offered additional reasoning:
that the court improperly considered the facts surrounding the
dismissed charges. In State v. Janis,14 we rejected a similar
12
Brief for appellant at 13 (emphasis supplied).
13
Id.
14
State v. Janis, 207 Neb. 491, 299 N.W.2d 447 (1980).
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argument. There, we stated that the law invests a trial judge
with a wide discretion as to the sources and types of infor-
mation used to assist him or her in determining the sentence
to be imposed within statutory limits.15 Because the court
considered the facts underlying the dismissed charges, it
did not consider improper sentencing factors. Our review of
the record discloses that the court considered relevant fac-
tors and did not consider improper factors. We conclude that
the district court did not abuse its discretion when imposing
the sentences.
2. Ineffective Assistance
of Counsel
We begin by reciting the general principles of law that will
guide our analysis, then turn to Blaha’s specific claims of inef-
fective assistance of counsel.
[8,9] Generally, a voluntary guilty plea or plea of no con-
test waives all defenses to a criminal charge.16 Thus, when a
defend­ant pleads guilty or no contest, he or she is limited to
challenging whether the plea was understandingly and volun-
tarily made and whether it was the result of ineffective assist­
ance of counsel.17 Here, Blaha asserts only the latter.
[10] Blaha has different counsel on direct appeal. 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.18
[11-15] Generally, to prevail on a claim of ineffective
ance of counsel under Strickland v. Washington,19 the
assist­
15
Id.
16
State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).
17
Id.
18
See Mrza, supra note 2.
19
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
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defendant must show that his or her counsel’s performance
was deficient and that this deficient performance actually prej-
udiced the defendant’s defense.20 To show that counsel’s per-
formance was deficient, a defendant must show that counsel’s
performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law.21 In a plea context, deficiency
depends on whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases.22 When a
conviction is based upon a guilty or no contest plea, the preju-
dice requirement for 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.23 The
two prongs of the ineffective assistance of counsel test under
Strickland may be addressed in either order.24
Thus, in reviewing Blaha’s claims of ineffective assistance
of counsel on direct appeal, we decide 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.25
(a) Statutory Sentencing Ranges
Blaha claims that trial counsel was ineffective in failing to
advise him of the statutory sentencing ranges and that counsel
guaranteed a sentence of 12 to 20 years’ imprisonment. He
asserts that he was prejudiced by trial counsel’s deficient per-
formance, because he relied on the sentencing representations
20
Mrza, supra note 2.
21
Id.
22
State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved on
other grounds, State v. Allen, 301 Neb. 560, 919 N.W.2d 500.
23
See State v. Manjikian, ante p. 100, 927 N.W.2d 48 (2019).
24
See State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).
25
See State v. Munoz, ante p. 69, 927 N.W.2d 25 (2019).
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made to him when deciding whether to accept the State’s plea
offer or go to trial.
But the record shows otherwise. At the plea hearing, the
district court informed Blaha that the maximum possible sen-
tence for each offense was 50 years’ imprisonment. The court
informed Blaha that the sentence for use of a deadly weapon
must run consecutively to the sentence for assault. Blaha
denied that “anyone made any promises to [him] in exchange
for [his] pleas of no contest other than the plea agreement [that
was] already set forth.” Blaha confirmed that he understood
that the court alone would decide his sentences. From these
statements, the record affirmatively refutes Blaha’s claim that
he was not advised of the statutory sentencing ranges and was
promised 12 to 20 years’ imprisonment. We conclude that this
argument is without merit.
(b) Factual Basis
For many years, we have stated that the record necessary
to support a plea of guilty or no contest must establish that
there is a factual basis for the plea.26 “The purpose of requir-
ing arraigning judges to inquire into . . . the factual basis lies
in ensuring that the defendant has, according to the acts the
defendant admits, committed an offense as charged or a lesser
included offense.”27
Before discussing Blaha’s claim regarding his counsel’s
alleged deficiencies in failing to correct a misstatement and
an inaccurate statement, we quote extensively from the State’s
factual basis recited at the plea hearing, emphasizing the por-
tions Blaha challenges.
[On] January 11th, 2017, . . . officers with the Omaha
Police Department were dispatched to the parking lot of
[a furniture store] to investigate a shooting.
26
See State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).
27
Alan G. Gless, Nebraska Plea-Based Convictions Practice: A Primer and
Commentary, 79 Neb. L. Rev. 293, 323 (2000).
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Upon arrival officers located the victim, . . . who was
suffering from multiple gunshot wounds to his back.
The victim . . . indicated that he had been shot by an
unknown white male suspect who was armed with a
shotgun, had demanded his wallet, and fled in a green
Ford Explorer.
....
On [the following day], detectives with the homicide
unit had received a tip that an individual by the name of
James White (sic) had spoken to an individual who was
identified as the defendant, . . . Blaha, and . . . Knight
indicated that . . . Blaha had admitted to shooting the
victim . . . .
Officers with the Omaha Police Department were
granted permission to search [Blaha’s] residence. Inside
of that residence officers located a cell phone belonging
to [Blaha]. A search of that cell phone revealed a video
which showed [Blaha] burning the wallet that was taken
from [the victim], and all of those events occurred here in
Douglas County, Nebraska.
Blaha argues that “[t]he State mistakenly interchanged the
name of two individuals—White and Knight—and the mistake
went uncorrected.”28 Further, he challenges the accuracy of the
statement that a video of a burning wallet was found on his
cell phone.
The record conclusively establishes that Blaha suffered no
prejudice from the prosecutor’s misstatement of the infor-
mant’s name. He challenged the informant’s name, which
was not an element of either offense. At oral argument, the
State correctly pointed out that the informant could have been
identified as “informant number 1” and it would have made
no difference. Moreover, the record makes it clear that the
prosecutor simply misspoke the name in the first instance and
corrected it in the same sentence. Blaha did not challenge
28
Brief for appellant at 11.
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the statement that he admitted to the shooting, which was the
essential substance of the factual basis. Blaha was not preju-
diced by this mistake.
Likewise, the record conclusively establishes that no preju-
dice flowed from the other alleged inaccuracy of the factual
basis. The statement that police found the video was not nec-
essary to establish the factual basis. Blaha did not challenge
how the statement was inaccurate or how it was necessary to
establish an element of either crime. The statement was mere
surplusage. With or without it, the factual basis was sufficient.
Therefore, Blaha was not prejudiced by counsel’s allegedly
deficient conduct.
Accordingly, this claim also lacks merit.
(c) Pretrial Litigation
[16] Blaha contends that trial counsel was ineffective for
failing to engage in any pretrial litigation in the intervening 16
months between filing the information and the plea hearing.
Without more, this allegation would not be sufficiently specific
to allege deficient performance. An appellant must make spe-
cific allegations of the conduct that he or she claims constitutes
deficient performance by trial counsel when raising an ineffec-
tive assistance claim on direct appeal. General allegations that
trial counsel performed deficiently or that trial counsel was
ineffective are insufficient to raise an ineffective assistance
claim on direct appeal.29
In State v. Mrza,30 we clarified that the allegations of coun-
sel’s deficient performance must be specifically alleged in the
assignments of error section of the appellant’s brief. Because
Blaha’s brief was filed before our opinion in Mrza was released,
we examine his argument for the necessary specificity. Doing
so reveals two aspects of his broad allegation.
29
See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
30
Mrza, supra note 2.
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In Blaha’s brief, he first argues that trial counsel did not
attempt to suppress any evidence found during the search of
his home or cell phone. But this allegation is also not suf-
ficiently specific. He does not assert any facts to support the
existence of a basis upon which counsel could have filed a
motion to suppress.
Second, he argues that trial counsel did not attempt to depose
two witnesses, whom he identified by name, to “clarif[y] their
initial statements to police” that they had been shot at by
Blaha, which, he claims, could have put trial counsel in a bet-
ter position during plea negotiations.31 But he does not allege
what these witnesses would have said that would have differed
from their original statements. Once again, it lacks the neces-
sary specificity.
After utilizing Blaha’s arguments to expand his assignment,
neither matter specifically states how counsel performed defi-
ciently. This assignment lacks merit.
(d) Presentence Investigation Report
Finally, Blaha claims that trial counsel was ineffective in not
allowing him to review the presentence investigation report.
Specifically, Blaha quarrels with a statement in the report
regarding self-gratification and another statement about inflict-
ing maximum harm. Blaha argues that because the record
shows that trial counsel received and reviewed the presentence
investigation report, counsel should have shared and reviewed
the contents of the report with Blaha. He argues that as a result,
he was unable to communicate to trial counsel the misrepre-
sentations and erroneous characterizations that the probation
officer made in the report.
[17,18] A defendant has a qualified right to review his or
her presentence report, and the defendant may, with his or her
attorney, examine the presentence report subject to the court’s
31
Brief for appellant at 11.
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supervision.32 A defendant waives his or her qualified right to
review the presentence investigation report by not notifying
the trial court that he or she has not personally reviewed the
report and that he or she wishes to do so.33
In State v. Moyer,34 the defendant asserted that trial counsel
was ineffective when counsel failed to disclose to the defend­
ant the contents of the presentence investigation report. We
noted that the record contained an affirmation from the sen-
tencing hearing that the defendant had the opportunity to dis-
cuss with counsel the contents of the presentence investigation
report. Although the defendant’s failure to object at sentencing
effectively waived his right to challenge it on appeal, the ques-
tion before us was whether the defendant’s trial counsel was
deficient for failing to disclose the contents of the presentence
investigation report to the defendant prior to sentencing. Our
decision in Moyer relied on State v. McDermott,35 where the
district court did conduct an evidentiary hearing and had the
benefit of the testimony from the probation officer and trial
counsel that they both reviewed the contents of the presentence
investigation report with the defendant. In Moyer, because we
did not have the benefit of a record containing evidence of
any conversations between the defendant and trial counsel, we
held that the record was insufficient to address the claim on
direct appeal.
Here, the record is void of any statement by Blaha or trial
counsel that Blaha either reviewed the presentence investigation
report or wished to review the report. Nor is there any state-
ment by Blaha that he had the opportunity to review the pre-
sentence investigation report. Similar to Moyer, we do not have
the benefit of a record that contains any conversation about the
32
State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).
33
State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).
34
Moyer, supra note 32.
35
State v. McDermott, 267 Neb. 761, 677 N.W.2d 156 (2004).
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contents of the presentence investigation report between Blaha
and trial counsel or the probation officer. Therefore, we con-
clude that the record is insufficient to address the claim on
direct review.
VI. CONCLUSION
We conclude that there is no merit to the assignments of
error we can reach on direct appeal. Accordingly, we affirm
Blaha’s convictions and sentences.
A ffirmed.