State v. Theisen , 306 Neb. 591 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/02/2020 09:09 AM CDT
- 591 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
State of Nebraska, appellee, v.
Christine A. Theisen, appellant.
___ N.W.2d ___
Filed July 24, 2020. No. S-19-911.
1. Pleas: Appeal and Error. A trial court is afforded discretion in deciding
whether to accept guilty pleas, and an appellate court will reverse the
trial court’s determination only in case of an abuse of discretion.
2. Judges: Appeal and Error. An abuse of discretion exists if the reasons
or rulings of a trial judge are clearly untenable, unfairly depriving a liti-
gant of a substantial right and denying just results in matters submitted
for disposition.
3. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the claim
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
4. Effectiveness of Counsel: Appeal and Error. In reviewing a claim of
ineffective assistance of trial counsel on direct appeal, an appellate court
determines as a matter of law whether the record conclusively shows
that (1) a defense counsel’s performance was deficient or (2) a defend­
ant was or was not prejudiced by a defense counsel’s alleged deficient
performance.
5. Indictments and Informations. An information must inform the accused
with reasonable certainty of the crime charged so that the accused may
prepare a defense to the prosecution and, if convicted, be able to plead
the judgment of conviction on such charge as a bar to a later prosecution
for the same offense.
6. ____. An information must allege each statutorily essential element of
the crime charged, expressed in the words of the statute which prohibits
the conduct charged as a crime or in language equivalent to the statutory
terms defining the crime charged.
- 592 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
7. ____. Where an information alleges the commission of a crime using
language of the statute defining that crime or terms equivalent to such
statutory definition, the charge is sufficient.
8. Indictments and Informations: Due Process. When the charging of a
crime in the language of the statute leaves the information insufficient
to reasonably inform the defendant as to the nature of the crime charged,
additional averments must be included to meet the requirements of
due process.
9. Indictments and Informations: Appeal and Error. An information
first questioned on appeal must be held sufficient unless it is so defec-
tive that by no construction can it be said to charge the offense for
which the accused was convicted.
10. Indictments and Informations. A complaint or information is fatally
defective only if its allegations can be true and still not charge a crime.
11. ____. No information shall be deemed invalid for any defect or imper-
fection which does not prejudice the substantial rights of the defendant
upon the merits.
12. Conspiracy. Expressly alleging an overt act in furtherance of a con-
spiracy cannot simply be stating that the parties committed an overt act.
13. ____. The expressed overt act in furtherance of a conspiracy cannot be
the act of conspiring.
14. Indictments and Informations: Conspiracy. A proper information
charging conspiracy should indicate the offense which is the object of
the conspiracy and expressly allege an overt act conducted in further-
ance thereof.
15. Pleas. To support a plea of guilty or no contest, the record must establish
that (1) there is a factual basis for the plea and (2) the defendant knew
the range of penalties for the crime with which he or she is charged.
16. Criminal Law: Proof. A sufficient factual basis requires that the State
present sufficient facts to support the elements of the crime charged.
17. Conspiracy. Wharton’s Rule, applied when evaluating conspiracy
charges, stands for the principle that an agreement by two persons to
commit a particular crime cannot be prosecuted as a conspiracy when
the crime is of such a nature as to necessarily require the participation
of two persons for its commission.
18. ____. The application of Wharton’s Rule is limited to instances where
the number and identity of persons involved in the conspiracy are the
same as the number and identity of persons required to commit the
underlying substantive offense.
19. ____. There is an exception to Wharton’s Rule that provides a con-
spiracy charge may be filed if more or different people participate in the
conspiracy than are necessary to commit the substantive offense.
- 593 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
20. Effectiveness of Counsel: Records: Appeal and Error. Whether a
claim of ineffective assistance of trial counsel can be determined on
direct appeal depends upon the sufficiency of the record to address
the claim to determine whether a defense counsel’s performance was
deficient and whether the defendant was prejudiced by the alleged defi-
cient performance.
21. ____: ____: ____. The record on direct appeal is sufficient if it estab-
lishes 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.
22. Effectiveness of Counsel: Appeal and Error. The fact that an inef-
fective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved.
23. Effectiveness of Counsel: Records: Appeal and Error. The deter-
mining factor in deciding whether an ineffective assistance claim can
be resolved on direct appeal is whether the record is sufficient to
adequately review the question.
Appeal from the District Court for Madison County: Mark
A. Johnson, Judge. Affirmed.
Mark E. Rappl for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Christine A. Theisen appeals her plea-based convictions
of conspiracy to distribute or deliver a controlled substance
(hydrocodone), conspiracy to distribute or deliver a controlled
substance (tramadol), and child abuse. Theisen assigns the
district court erred in accepting her guilty pleas, because the
charging information contained insufficient allegations of overt
acts and the factual basis was insufficient under Wharton’s
Rule to support the conspiracy offenses. Theisen also claims
she was denied the right to effective assistance of trial counsel,
based upon a failure to properly inform her of the insufficient
- 594 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
factual basis and application of Wharton’s Rule and upon trial
counsel’s conflict of interest with a material witness for the
State. For the reasons set forth herein, we affirm.
BACKGROUND
Theisen was charged by an amended information with seven
charges, including: conspiracy to distribute or deliver a con-
trolled substance (hydrocodone), conspiracy to distribute or
deliver a controlled substance (oxycodone), conspiracy to dis-
tribute or deliver a controlled substance (tramadol), tampering
with evidence, felony child abuse, and two counts of misde-
meanor child abuse.
Theisen and the State entered into a plea agreement whereby
Theisen would plead guilty to conspiracy to distribute or deliver
hydrocodone and tramadol and to felony child abuse and the
State would dismiss the remaining charges. This dismissal was
noted by an interlineated copy of the amended information
which contained the following remaining allegations:
[Conspiracy to Distribute or Deliver Hydrocodone:]
Theisen, on or about the 1st day of June, 2016, through the
23rd day of August, 2018, in Madison County, Nebraska,
with intent to promote or facilitate the commission of a
felony offense, did agree with another person or persons
that they or one or more of them shall engage in or solicit
the conduct or shall cause or solicit the result specified
by the definition of the offense of delivery or distribution
of the controlled substance hydrocodone. Complainant
further states that [Theisen] or another with whom [she]
conspired with committed an overt act in furtherance of
the conspiracy, to wit: [Theisen] was buying and/or sell-
ing hydrocodone.
....
[Conspiracy to Distribute or Deliver Tramadol:]
Theisen, on or about the 1st day of June, 2016 through the
23rd day of August, 2018, in Madison County, Nebraska,
with the intent to promote or facilitate the commission
of a felony, did agree with another person or persons that
- 595 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
they or one or more of them shall engage in or solicit the
conduct or shall cause or solicit the result specified by the
definition of the offense of the delivery or the distribution
of the controlled substance tramadol. Complainant further
alleges that [Theisen] or another person with whom [she]
conspired with committed an overt act in furtherance of
the conspiracy, to wit: [Theisen] was buying and/or sell-
ing tramadol.
....
[Child Abuse:] Theisen, on or about the 1st day of June,
2016 through the 23rd day of August, 2018, in Madison
County, Nebraska, did knowingly and intentionally cause
or permit a minor child, or minor children, specifically
K.S. to be a) placed in a situation that endangered the
minor child’s or minor children’s life or physical or men-
tal health; and/or b) cruelly confined or cruelly punished;
and/or c) deprived of necessary food, clothing, shelter,
or care; and/or d) placed in a situation to be sexually
exploited by allowing, encouraging, or forcing such minor
child to solicit for or engage in prostitution, debauchery,
public indecency, or obscene or pornographic photog-
raphy, films, or depictions; and/or e) placed in a situa-
tion to be sexually abused as defined in Section 28-319,
28-319.01, or 28-302.01; and/or f) placed in a situation to
be a trafficking victim as defined in Section 28-830[.]
The district court was informed of this agreement at a pre-
trial conference, and the court rearraigned Theisen on the three
remaining counts, to which Theisen pled guilty. Following
an advisement of Theisen’s rights, the court asked Theisen
to explain what gave rise to these charges, to which Theisen
answered:
Last year in August, Department of Health and Human
Services became involved in my life, and my children
were removed because I admitted everything. I — I
guess the painkillers stemmed from a back injury and I
became addicted to them, and I was buying and selling
- 596 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
them to support my habit. There is so much information,
it’s hard to explain.
In response to the court’s questioning regarding whether
Theisen was selling hydrocodone and tramadol between the
dates of June 1, 2016, and August 23, 2018, in Madison
County, Nebraska, Theisen responded, “Yes.”
The court then asked the State to provide the balance of the
factual basis for the charges, and the State explained:
In terms of the child abuse, law enforcement officers
interviewed both the victim, [Theisen’s] mother, as well
as [Theisen’s] other daughter. I think, approximately, vic-
tim was age 17, the other daughter was approximately age
15, I believe, at the time.
They all confirmed that [Theisen] physically and psy-
chologically abused one daughter in particular over an
extended period of time. Would hit her, slap her, essen-
tially force her to do, you know, menial tasks around the
home. Giving her deadlines to get things done rather than
doing those tasks herself, those type of things.
....
[As to the conspiracy to distribute or deliver hydroco-
done and tramadol charges, Theisen] would, as she sort
of said, she would buy and get painkillers and then sell
them as well. Additionally, according to her daughter, she
would actually have them text potential buyers ahead of
time that the sales would be taking place.
They reported — the daughters reported actually
receiving threats back from some of those drug dealers
and purchasers about the sales going on. Additionally, she
would work with others involved in this ring to buy and
sell the drugs.
The court found there was a sufficient factual basis and
accepted Theisen’s guilty pleas. Theisen was sentenced to con-
secutive terms of 6 to 12 years’ imprisonment for conspiracy to
distribute or deliver hydrocodone, 1 to 3 years’ imprisonment
- 597 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
for conspiracy to distribute or deliver tramadol, and 1 to 3
years’ imprisonment for child abuse.
ASSIGNMENTS OF ERROR
Theisen assigns that the district court erred in accepting
her guilty pleas to the conspiracy charges, because (1) the
charging information was insufficient to establish overt acts
in furtherance of the conspiracy and (2) the factual basis was
insufficient under Wharton’s Rule to establish participation of
two or more persons beyond those actions which are neces-
sary for the commission of the underlying offenses. Theisen
also assigns she received ineffective assistance, because trial
counsel failed to advise her that under Wharton’s Rule, she
could not be convicted of conspiracy, and trial counsel had a
conflict of interest from previous representation of a State’s
material witness.
STANDARD OF REVIEW
[1,2] A trial court is afforded discretion in deciding whether
to accept guilty pleas, and an appellate court will reverse the
trial court’s determination only in case of an abuse of discre-
tion. 1 An abuse of discretion exists if the reasons or rulings of
a trial judge are clearly untenable, unfairly depriving a litigant
of a substantial right and denying just results in matters sub-
mitted for disposition. 2
[3,4] Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a ques-
tion of law, which turns upon the sufficiency of the record to
address the claim without an evidentiary hearing or whether
the claim rests solely on the interpretation of a statute or
constitutional requirement. 3 We determine as a matter of law
whether the record conclusively shows that (1) a defense
counsel’s performance was deficient or (2) a defendant was
1
State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019).
2
State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).
3
State v. Hood, 301 Neb. 207, 917 N.W.2d 880 (2018).
- 598 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
or was not prejudiced by a defense counsel’s alleged defi-
cient performance. 4
ANALYSIS
Sufficiency of Amended Information
Theisen was charged, by the amended information, with
conspiracy to distribute or deliver hydrocodone and tramadol.
Under Neb. Rev. Stat. § 28-202(1) (Cum. Supp. 2018), a per-
son is guilty of criminal conspiracy if, with intent to promote
or facilitate the commission of a felony:
(a) He [or she] agrees with one or more persons that
they or one or more of them shall engage in or solicit the
conduct or shall cause or solicit the result specified by the
definition of the offense; and
(b) He [or she] or another person with whom he [or
she] conspired commits an overt act in pursuance of the
conspiracy.
Neb. Rev. Stat. § 29-2014 (Reissue 2016) specifies that
the State must allege overt acts in charging conspiracy, by
stating:
In trials for conspiracy, in cases where an overt act is
required by law to consummate the offense, no conviction
shall be had unless one or more overt acts be expressly
alleged in the indictment, nor unless one or more of the
acts so alleged be proved on trial; but other overt acts not
alleged in the indictment may be given in evidence on the
part of the prosecution.
Theisen assigns the amended information failed to suffi-
ciently allege conspiracy to distribute or deliver hydrocodone
and tramadol. Specifically, Theisen claims the amended infor-
mation failed to allege overt acts conducted in furtherance of
the alleged conspiracy.
[5-8] An information must inform the accused with rea-
sonable certainty of the crime charged so that the accused may
4
Id.
- 599 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
prepare a defense to the prosecution and, if convicted, be able
to plead the judgment of conviction on such charge as a bar to
a later prosecution for the same offense. 5 As such, an informa-
tion must allege each statutorily essential element of the crime
charged, expressed in the words of the statute which prohibits
the conduct charged as a crime or in language equivalent to
the statutory terms defining the crime charged. 6 Where an
information alleges the commission of a crime using language
of the statute defining that crime or terms equivalent to such
statutory definition, the charge is sufficient. 7 However, when
the charging of a crime in the language of the statute leaves the
information insufficient to reasonably inform the defendant as
to the nature of the crime charged, additional averments must
be included to meet the requirements of due process. 8
[9-11] We have held that an “‘information first questioned
on appeal must be held sufficient unless it is so defective that
by no construction can it be said to charge the offense for
which the accused was convicted.’” 9 And “‘a complaint or
information is fatally defective only if its allegations can be
true and still not charge a crime.’” 10 In addition, “‘[n]o infor-
mation shall be deemed invalid for any defect or imperfection
which does not prejudice the substantial rights of the defendant
upon the merits.’” 11
Under each conspiracy charge, the amended informa-
tion alleged Theisen “did agree with another person or per-
sons” to “engage in or solicit the conduct or shall cause or
solicit the result specified by the definition of the offense of
[delivery or distribution of hydrocodone and tramadol].” The
5
In re Interest of Jordan B., 300 Neb. 355, 913 N.W.2d 477 (2018).
6
Id.
7
Id.
8
Id.
9
Peterson v. Houston, 284 Neb. 861, 868, 824 N.W.2d 26, 33 (2012).
10
Id.
11
Id.
- 600 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
information further alleged Theisen “or another [person] with
whom [Theisen] conspired with committed an overt act in fur-
therance of the conspiracy, to wit: [Theisen] was buying and/
or selling [hydrocodone and tramadol].”
The language used in the charging information modeled
the statutory language of § 28-202(1)(a) in alleging Theisen
“did agree” with another person or persons to “engage in or
solicit the conduct or shall cause or solicit the result specified
by the definition of the offense.” The information continued
by naming distribution or delivery of hydrocodone and tra-
madol as each count’s underlying offense. The information
likewise modeled the language of § 28-202(1)(b) in alleging
Theisen “or another [person] with whom [Theisen] conspired”
committed “an overt act in furtherance of the conspiracy.”
Accordingly, the information was sufficient to inform Theisen
that the State was charging her with conspiracy under § 28-202
and alleging she engaged with others for the distribution or
delivery of hydrocodone and tramadol.
Theisen further argues that the information was insufficient
to reasonably inform her as to the nature of the crime by
operation of § 29-2014. As quoted above, § 29-2014 requires
a charging document “expressly” allege one or more overt acts
in furtherance of a conspiracy. Theisen contends that § 29-2014
required the State to allege an overt action other than the
underlying offense of distribution or delivery of a controlled
substance. In support of this proposition, Theisen cites State
v. Marco 12 and State v. McKay, 13 a Nebraska Court of Appeals
unpublished opinion.
[12] Contrary to this argument, neither of these opinions
held § 29-2014 requires that the expressed overt acts cannot
be allegations of the underlying crime for which the parties
conspired. Instead, Marco held that an allegation the defend­
ant “‘or another person with whom he conspired did commit
12
State v. Marco, 230 Neb. 355, 432 N.W.2d 1 (1988).
13
State v. McKay, No. A-92-057, 1993 WL 13458 (Neb. App. Jan. 26, 1993)
(not approved for permanent publication).
- 601 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
an overt act,’” without more, failed to expressly allege an
overt act. 14 The case explained that “expressly” alleging an
overt act cannot simply be stating that the parties committed
an overt act. 15
[13,14] Similarly, in McKay, the defendant was charged with
criminal conspiracy. The State’s information alleged that the
defendant
“‘agree[d] with one or more persons that they or one or
more of them would harvest more than one pound of mar-
ijuana and he or another person with whom he conspired
did commit an overt act in pursuance of the conspiracy,
to-wit: Defendant along with [another person] conspired
together to harvest and possess more than one pound
of marijuana.’” 16
The Court of Appeals explained that “[i]t is axiomatic that the
open, manifest, and apparent conduct or overt act of a conspir-
acy which tends to show a preexisting conspiracy . . . cannot
be [the defendant’s and conspirator’s] conspiring together.” 17
Stated another way, the expressed overt act in furtherance of
the conspiracy cannot be the act of conspiring. 18 Instead, a
proper information charging conspiracy should indicate the
offense which is the object of the conspiracy and expressly
allege an overt act conducted in furtherance thereof. 19
Here, the information explicitly alleged overt acts. In addi-
tion to its language mirroring § 28-202(1)(a) and (b) and
alleging Theisen agreed with others to engage in the underly-
ing offenses, the information also alleged “overt act[s] in fur-
therance of the conspiracy, to wit: [Theisen] was buying and/
or selling [hydrocodone and tramadol].” These allegations are
14
Marco, supra note 12, 230 Neb. at 357, 432 N.W.2d at 3.
15
Id.
16
McKay, supra note 13, 1993 WL 13458 at *1.
17
Id. at *2.
18
See id.
19
Id.
- 602 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
sufficient to satisfy the requirement under § 29-2014 that the
charging document expressly allege an overt act in furtherance
of the conspiracy.
Because the information sufficiently alleged conspiracy
under § 28-202 and expressly alleged overt acts pursuant to
§ 29-2014, the information was sufficient to reasonably inform
Theisen as to the nature of the crime charged and the district
court did not err in accepting Theisen’s pleas.
Sufficiency of Factual Basis
Theisen challenges the sufficiency of the factual basis to
support her convictions of conspiracy to distribute or deliver
hydrocodone and tramadol. On this assignment, Theisen argues
the State failed to establish conspiracy under Wharton’s Rule
by failing to allege participation of two or more persons
beyond those necessary for the commission of the underly-
ing crimes.
[15,16] To support a plea of guilty or no contest, the record
must establish that (1) there is a factual basis for the plea and
(2) the defendant knew the range of penalties for the crime
with which he or she is charged. 20 A sufficient factual basis
requires that the State present sufficient facts to support the
elements of the crime charged. 21
One criminal statute regarding controlled substances explains
that “it shall be unlawful for any person knowingly or inten-
tionally: (a) To manufacture, distribute, deliver, dispense, or
possess with intent to manufacture, distribute, deliver, or dis-
pense a controlled substance.” 22 Under Neb. Rev. Stat. § 28-401
(Supp. 2019), subsection (9) currently defines “[d]istribute” as
“to deliver other than by administering or dispensing a con-
trolled substance” and subsection (12) defines “[d]eliver” as
“the actual, constructive, or attempted transfer from one person
20
State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).
21
See id.
22
See Neb. Rev. Stat. § 28-416(1)(a) (Cum. Supp. 2018).
- 603 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
to another of a controlled substance, whether or not there is an
agency relationship.”
Under § 28-202(1), all that is required for a conviction is
proof that the agreement was entered into and an overt act in
furtherance of the conspiracy was committed. 23 The criminal
act is the agreement itself, and the ultimate act agreed to by the
conspirators need never take place. 24
[17] In evaluating conspiracy charges, we have applied
Wharton’s Rule as an exception to conspirator liability. 25 This
exception stands for the principle that an agreement by two
persons to commit a particular crime cannot be prosecuted as a
conspiracy when the crime is of such a nature as to necessarily
require the participation of two persons for its commission. 26
[18,19] The application of Wharton’s Rule is limited to
instances where the number and identity of persons involved in
the conspiracy are the same as the number and identity of per-
sons required to commit the underlying substantive offense. 27
As such, there is an exception to Wharton’s Rule that provides
a conspiracy charge may be filed if more or different people
participate in the conspiracy than are necessary to commit the
substantive offense. 28
Theisen contends that distributing and delivering controlled
substances necessarily involves multiple people, including the
sellers and buyers of the product. Because of that necessary
involvement, Theisen suggests that she could not be convicted
23
See §§ 28-202 and 29-2014.
24
See id.
25
State v. Utterback, 240 Neb. 981, 485 N.W.2d 760 (1992), disapproved on
other grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999).
26
Id. See Iannelli v. United States, 420 U.S. 770, 95 S. Ct. 1284, 43 L. Ed.
2d 616 (1975).
27
See Utterback, supra note 25. See, also, State v. Clason, 3 Neb. Ct. App. 339,
526 N.W.2d 673 (1994).
28
See Utterback, supra note 25. See, also, Clason, supra note 27, citing
Baker v. United States, 393 F.2d 604 (9th Cir. 1968), and People v. Incerto,
180 Colo. 366, 505 P.2d 1309 (1973).
- 604 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
of conspiracy. In support of her contention, Theisen directs us
to our holding in State v. Utterback. 29
In Utterback, the issue on appeal concerned the reliability
of an informant and analyzed whether an admission by the
informant that he bought marijuana from a specific individual
was against his penal interests. Since purchasing marijuana
was not a statutorily proscribed act in Nebraska, the court
looked at whether such admission could be used to pros-
ecute for conspiracy to distribute or deliver a controlled sub-
stance. Applying Wharton’s Rule, we found that the informant
could not be charged with conspiracy to distribute or deliver,
because he was the buyer, a necessary party to the underly-
ing crime.
The instant case is distinguishable from Utterback. Here, the
factual basis provided by the State sets forth sufficient facts to
find the participation of conspirators beyond the specific sell-
ers and buyers of the drugs. In the court’s receipt of Theisen’s
pleas, Theisen confirmed that she had sold hydrocodone and
tramadol between June 1, 2016, and August 23, 2018. The
State then explained that Theisen “would actually have [her
daughters] text potential buyers ahead of time that the sales
would be taking place,” that “the daughters reported actually
receiving threats back from some of those drug dealers and
purchasers about the sales,” and that Theisen “would work with
others involved in this ring to buy and sell the drugs.” We note
as well that the police reports contained within the presentence
investigation report further detail the participation of Theisen’s
daughters in the overt act of purchasing controlled substances.
Such participation involved more and different people than
necessary for the delivery and distribution of hydrocodone
and tramadol. Accordingly, Wharton’s Rule does not prohibit
Theisen’s conviction for the con­spiracy counts and the district
court did not err in accepting Theisen’s pleas.
29
Utterback, supra note 25.
- 605 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
Failure to Advise Theisen
of Wharton’s Rule
Theisen assigns her trial counsel was ineffective for failing
to properly advise her that Wharton’s Rule prohibited her con-
victions on the conspiracy charges.
[20,21] Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal depends upon the
sufficiency of the record to address the claim to determine
whether a defense counsel’s performance was deficient and
whether the defendant was prejudiced by the alleged deficient
performance. 30 We have said the record is sufficient if it estab-
lishes 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. 31
For the reasons stated above, Wharton’s Rule did not restrict
Theisen from being charged and convicted of conspiracy to
distribute or deliver hydrocodone and tramadol. Therefore,
Theisen cannot show prejudice from trial counsel’s alleged
failure to properly advise her on the application of Wharton’s
Rule and this assignment is without merit.
Conflict of Interest
Theisen assigns she received ineffective assistance due to
her trial counsel’s representation of a material witness for the
State. Under this assignment, Theisen claims her counsel “pre-
viously represented Brooks Boyer who was a defendant against
[Theisen] in a divorce action which was filed by [Theisen].” 32
Theisen alleges Brooks Boyer “played a very large role in the
criminal investigation being initiated against [her], includ-
ing providing statements and documentary evidence against
30
See Hood, supra note 3.
31
State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).
32
Brief for appellant at 24.
- 606 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. THEISEN
Cite as 306 Neb. 591
[Theisen].” 33 Citing a long-term attorney-client relationship
between trial counsel and Boyer, Theisen argues there existed
an actual conflict of interest which compromised trial counsel’s
ability to adequately and properly represent Theisen.
[22,23] The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean that
it can be resolved. 34 The determining factor is whether the
record is sufficient to adequately review the question. 35
The record on appeal contains no information as to trial
counsel’s alleged representation of Boyer or how that previous
relationship could have affected the representation of Theisen.
Thus, the record is insufficient to review this assignment on
direct appeal.
CONCLUSION
The information expressly alleged overt acts in further-
ance of the charged conspiracy to distribute and deliver
hydrocodone and tramadol, and the factual basis was suffi-
cient to satisfy Wharton’s Rule and support Theisen’s guilty
pleas. Accordingly, we affirm Theisen’s convictions and find
Theisen’s assignment of ineffective assistance of trial coun-
sel for failure to advise her of Wharton’s Rule to be without
merit. However, we conclude the record is insufficient to reach
Theisen’s claim of ineffective assistance due to her trial coun-
sel’s alleged conflict of interest.
Affirmed.
33
Id.
34
State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
35
Id.