State v. Iddings

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/27/2020 09:07 AM CDT
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. IDDINGS
Cite as 304 Neb. 759
State of Nebraska, appellee, v.
Matthew P. Iddings, appellant.
___ N.W.2d ___
Filed January 3, 2020. No. S-19-304.
1. Judgments: Appeal and Error. When issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent
conclusion irrespective of the decision of the court below.
2. Constitutional Law: Waiver: Appeal and Error. In determining
whether a defendant’s waiver of a statutory or constitutional right was
voluntary, knowing, and intelligent, an appellate court applies a clearly
erroneous standard of review.
3. 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.
4. Plea Bargains: Waiver: Appeal and Error. Where no objection was
made to the sentencing judge for a plea bargain violation, the defendant
has waived the error and it has not been preserved for appellate review.
5. 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 his
or her counsel’s performance was deficient and that this deficient per­
formance actually prejudiced the defendant’s defense.
6. Courts: Plea Bargains. Courts enforce only those terms and conditions
actually agreed upon by the parties to a plea agreement.
7. Plea Bargains. A party breaches a plea agreement either by (1) violat-
ing an express term of the agreement or (2) acting in a manner not spe-
cifically prohibited by the agreement but still incompatible with explicit
promises made therein.
8. Plea Bargains: Sentences. A sentencing recommendation need not be
enthusiastic in order to fulfill a promise made in a plea agreement.
9. Appeal and Error. It is a fundamental rule of appellate practice that an
alleged error must be both specifically assigned and specifically argued
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304 Nebraska Reports
STATE v. IDDINGS
Cite as 304 Neb. 759
in the brief of the party asserting the error to be considered by an appel-
late court.
10. ____. A generalized and vague assignment of error that does not advise
an appellate court of the issue submitted for decision will not be
considered.
11. Presentence Reports: Waiver. The statutory right to have a presentence
investigation completed prior to being sentenced may be waived so long
as that waiver was knowingly and intelligently made.
12. Waiver. No formalistic litany of warnings is required to show that a
waiver was knowingly and intelligently made.
13. Presentence Reports: Waiver: Appeal and Error. The appropriate
standard to apply in the case of a waiver of the right to a presentence
investigation under Neb. Rev. Stat. § 29-2261 (Cum. Supp. 2014) is
whether it is apparent from the totality of the circumstances reflected in
the record that the defendant, when waiving the right, was sufficiently
aware of his or her right to a presentence investigation and the possible
consequences of his or her decision to forgo that right.
14. Criminal Law: Waiver. A knowing and intelligent waiver may be dem-
onstrated by or inferred from the defendant’s conduct.
15. Courts: Presentence Reports: Waiver. It is the better practice for a
sentencing court to issue a more direct advisement of the statutory right
to a presentence investigation, conduct an explicit inquiry into the vol-
untariness of a defendant’s waiver of that right, and make explicit find-
ings with respect to a waiver.
16. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
court, an appellate court will not disturb a sentence imposed within the
statutory limits.
17. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
18. Sentences. The appropriateness of a sentence is necessarily a subjec-
tive 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.
19. Plea Bargains: Judges: Sentences. A judge is in no manner bound to
give a defendant the sentence recommended by the prosecutor under a
plea agreement.
20. 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
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304 Nebraska Reports
STATE v. IDDINGS
Cite as 304 Neb. 759
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
21. Effectiveness of Counsel: Records: Appeal and Error. When review-
ing claims of ineffective assistance of counsel on direct appeal, an
appellate court decides only whether the undisputed facts contained
within the record are sufficient to conclusively determine whether
counsel did or did not provide effective assistance, and whether the
defendant was or was not prejudiced by counsel’s alleged deficient
performance.
Appeal from the District Court for Hall County: John H.
Marsh, Judge. Affirmed.
Jonathan M. Hendricks, of Dowding, Dowding, Dowding &
Urbom Law Offices, for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
This case presents an appeal from a sentence imposed after
the defendant pled guilty pursuant to a plea agreement. The
State and the defendant had jointly agreed to recommend
an 18-month period of incarceration. The district court ulti-
mately sentenced the defendant to an indeterminate term of 18
months’ to 5 years’ incarceration, and the defendant appeals.
The defend­ant asserts that the State breached its agreement to
recommend a sentence of 18 months’ incarceration by remark-
ing that it “struggled” concerning the sentencing recommen-
dation. Further, the defendant argues that the court erred by
failing to order a presentence investigation when, although
defense counsel below stated that the defendant was waiving
the presentence investigation, the court only articulated that it
had found such an investigation to be impractical. The defend­
ant argues that the court abused its discretion in finding a
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE v. IDDINGS
Cite as 304 Neb. 759
presentence investigation impractical. The defendant generally
asserts that the sentence was excessive and was a result of the
court’s abuse of discretion in failing to consider all of the sen-
tencing factors, such as mentality, education and experience,
or social and cultural background, in part as a result of failing
to conduct a presentence investigation. Finally, the defendant
argues that defense counsel below was ineffective for failing
to request the proper amount of jail time credit pertaining to
alleged time spent in jail in another county under arrest war-
rants for both the present case and the charges filed in that
other county.
BACKGROUND
In relation to a traffic stop that occurred in July 2015, the
defendant, Matthew P. Iddings, was originally charged under
“60-6,196.15” with driving under the influence (DUI), fourth
offense aggravated, a Class III felony. Defense counsel and
the State reached a plea agreement pursuant to which the State
filed an amended information charging Iddings with a nonag-
gravated DUI, fourth offense, under Neb. Rev. Stat. § 60-6,196
(Reissue 2010), a Class IIIA felony.
The amended information described that on July 2, 2015,
Iddings operated a motor vehicle and had a concentration of
.08 of 1 gram or more by weight of alcohol per 100 milliliters
of his blood or .08 of 1 gram or more by weight of alcohol per
210 liters of his breath. The amended complaint further alleged
that this was the fourth DUI offense committed by Iddings,
who had been previously convicted of DUI in Nebraska on or
about May 26, 2005, and March 15 and December 12, 2007.
At the plea and sentencing hearing held on March 6, 2019,
defense counsel and the State explained to the court that they
had reached a plea agreement under which the State amended
the information from aggravated DUI, fourth offense, to non-
aggravated DUI, fourth offense, and agreed to recommend
jointly with defense counsel that Iddings be sentenced to 18
months’ incarceration.
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304 Nebraska Reports
STATE v. IDDINGS
Cite as 304 Neb. 759
As the factual basis for the crime, the State recited that on
July 2, 2015, the “Nebraska State Patrol Help Line” received
multiple telephone calls about a potential drunk driver on
Interstate 80. An officer was able to locate the vehicle and
observed both passenger-side tires drive off the shoulder of the
roadway two different times. The officer conducted a traffic
stop and, upon contact with the driver, Iddings, noticed a smell
of alcoholic beverage. A blood draw was eventually conducted
on Iddings, which demonstrated .307 grams of alcohol per 100
milliliters of blood.
Defense counsel agreed with the factual basis. Defense
counsel also stated the defense was willing to stipulate to the
prior DUI offenses alleged in the information and that Iddings
had been represented by an attorney in each of the three
prior offenses.
The court found the factual basis adequate to support the
plea. After a standard plea colloquy, the court accepted Iddings’
no contest plea. The court found that the plea was not a result
of any promise or threat; that the plea was entered knowingly,
voluntarily, and intelligently; and that Iddings knowingly, vol-
untarily, and intelligently waived his constitutional rights.
Defense counsel advised the court that Iddings’ preference
was to proceed immediately to sentencing, noting that he had
calculated the jail time credit. The court did so.
When the court asked about a presentence investigation,
defense counsel stated, “Your honor, . . . Iddings will waive his
right to a presentence investigation.” When asked by the court
for its comments, the State expressed that it had no objection
to Iddings’ waiver of the presentence investigation. However,
Iddings was not personally addressed by the court regarding
such waiver.
The State noted with regard to Iddings’ criminal history that
other than the three prior convictions listed on the information,
Iddings also had a prior DUI in 1997. Further, he had commit-
ted a more recent DUI in Sarpy County around the same time
as the charge he had just pled to and for which in October 2018
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STATE v. IDDINGS
Cite as 304 Neb. 759
he had been sentenced to 18 months’ incarceration. Lastly,
Iddings had a pending DUI charge in Grant County.
Defense counsel did not contest this history other than
clarifying that Iddings had just finished serving his sentence
on the Sarpy County conviction in October 2018, as opposed
to being sentenced in October 2018. Further, defense counsel
described that Iddings had already pled guilty to the charge of
nonaggravated DUI, fourth offense, in Grant County and was
awaiting sentencing.
After being so informed of the pending charges in Grant
County, the district court for Hall County confirmed that
Iddings was “likely to be transported to another county when
[Hall County authorities were] done with him.” The court
found “under those circumstances that a presentence investi-
gation is impractical.” Defense counsel did not object to this
conclusion. The court did not make an express finding that the
presentence investigation had been waived.
Defense counsel asked the court to adopt the plea agreement
and sentence Iddings to 18 months’ incarceration with 136
days’ credit. Defense counsel informed the court that Iddings
had been in jail from October 23, 2017, to the date of the hear-
ing, March 6, 2019, and that he had been in jail for 2 additional
days in 2015.
Defense counsel asked the court to consider in sentencing
that Iddings had not been out of jail since 2017 and had thus
experienced a long period of sobriety. According to defense
counsel, Iddings fully intended to “walk out of the Department
of Corrections a better man than when he went in, and he does
believe that he can maintain long-term sobriety.”
When asked by the court for its thoughts on sentencing, the
State said:
[W]hen negotiating this case with [defense counsel], I
really struggled on what to agree to. We came down to the
18 months because that is what he got on a similar charge
in another county. If he was serving any other sentence,
I — I don’t know if I would have agreed; but since this
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STATE v. IDDINGS
Cite as 304 Neb. 759
will be consecutive to anything else that he was serving
previously, I agreed to recommend the 18 months.
I will note in addition to the DUIs that I’ve already
mentioned, he did fail to appear in this case on June 8th,
2016, and was not arrested until, I believe, a year later;
and then he was transported here, I believe, on October
24th of last year.
The record reflects that a bench warrant had been issued by
the district court for Hall County on June 8, 2016, for Iddings’
failure to appear at a scheduled hearing. The appellate record
does not reflect an arrest in Sarpy County in 2017. Instead, a
document filed on October 24, 2018, reflects that Iddings was
arrested in Hall County on October 23, 2018, on the June 8,
2016, warrant.
Having been present for the foregoing, Iddings was asked
by the court whether he had any legal reason why the court
should not pronounce its sentence and whether he had anything
else to bring to the court’s attention before the court sentenced
him. Iddings responded that he did not have any reason why
the court should not proceed to sentencing. Iddings apologized
for not appearing in court on June 8, 2016, explaining, “It was
a health issue, I was in the hospital.”
The court sentenced Iddings to a term of incarceration of
18 months to 5 years, with “credit for 136 days.” Iddings’
driver’s license was revoked for 15 years. Defense counsel
raised no objection to the sentence. In its final order, the court
noted that the parties had agreed to 18 months’ incarceration
and informed Iddings that it was not bound by the plea nego-
tiations. The court reiterated its conclusion that a presentence
investigation would be impractical and did not articulate any-
thing pertaining to a waiver of the same.
Iddings appeals his sentence. He has obtained new counsel
to represent him on appeal.
ASSIGNMENTS OF ERROR
Iddings assigns that (1) the district court abused its discre-
tion by sentencing him to a term of incarceration of 18 months
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304 Nebraska Reports
STATE v. IDDINGS
Cite as 304 Neb. 759
to 5 years without due consideration of established sentencing
factors, (2) the State violated the plea agreement, (3) he was
entitled to additional credit for time served, (4) trial counsel
was ineffective for failing to object to the State’s violation of
the plea agreement, and (5) trial counsel was ineffective for
failing to request at the sentencing hearing additional credit for
time served.
STANDARD OF REVIEW
[1] When issues on appeal present questions of law, an
appellate court has an obligation to reach an independent con-
clusion irrespective of the decision of the court below.1
[2] In determining whether a defendant’s waiver of a statu-
tory or constitutional right was voluntary, knowing, and intel-
ligent, an appellate court applies a clearly erroneous standard
of review.2
[3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.3
ANALYSIS
Iddings’ fundamental complaint on appeal is that he was
sentenced to an indeterminate period of incarceration of 18
months to 5 years rather than 18 months to 18 months. He seeks
the option of withdrawing his plea or seeking resentencing
before a different judge on the ground that the State allegedly
breached its plea agreement by undermining its recommenda-
tion of an 18-month sentence of incarceration. Alternatively,
Iddings seeks resentencing under the assertions that the court
imposed an excessive sentence and that the court’s decision
to forgo a presentence investigation was plain error. Finally,
Iddings argues that defense counsel below was ineffective for
1
State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013).
2
State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012).
3
State v. Montoya, ante p. 96, 933 N.W.2d 558 (2019).
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304 Nebraska Reports
STATE v. IDDINGS
Cite as 304 Neb. 759
failing to request credit for an additional 58 days’ jail time for
which he was ineffectively given credit against the sentence
imposed in Sarpy County. We find that Iddings’ claim regard-
ing credit for time served cannot be determined on direct
appeal, and we disagree with Iddings’ remaining assignments
of error. We affirm the judgment below.
Plea Agreement
[4] Iddings asserts that the State breached its plea agree-
ment to recommend 18 months of incarceration by effec-
tively undermining that sentence in its comments to the court
at the sentencing hearing. Trial counsel did not object to
the State’s comments. Where no objection was made to the
sentencing judge for a plea bargain violation, the defenda­nt
has waived the error and it has not been preserved for appel-
late review.4 Iddings argues, however, that trial counsel was
ineffective by failing to object to the alleged breach and
either ask the court to allow Iddings to withdraw the plea or
demand specific performance of the plea agreement before a
different judge.5
[5] We agree with Iddings and the State that this ineffec-
tive assistance of counsel claim can be resolved on direct
appeal, because the record is sufficient to adequately review
the question.6 To prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington,7 the defendant must
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend­
ant’s defense.8
4
See State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011).
5
See id.
6
See State v. Stelly, ante p. 33, 932 N.W.2d 857 (2019).
7
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
8
State v. Oliveira-Coutinho, ante p. 147, 933 N.W.2d 825 (2019).
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STATE v. IDDINGS
Cite as 304 Neb. 759
[6,7] We enforce only those terms and conditions actu-
ally agreed upon by the parties to a plea agreement.9 A party
breaches a plea agreement either by (1) violating an express
term of the agreement or (2) acting in a manner not specifically
prohibited by the agreement but still incompatible with explicit
promises made therein.10 On this latter means of breaching
an express provision of a plea agreement, we have explained
that the State must not “effectively undermine the promised
recommendation.”11
Thus, in State v. Landera,12 we held that the State had
breached a plea agreement to recommend probation when it
stated at sentencing that it could not recommend probation
and believed the court should impose incarceration instead,
elaborating upon the danger that the defendant would pose to
the public if placed immediately on probation. The State had
also made a “perfunctory recommendation of probation,” but
we concluded that “the tenor of [the State’s] entire argument
undermined its purported recommendation, thereby breaching
the express term of the agreement.”13
[8] Landera is distinguishable from the present case. At
Iddings’ sentencing hearing, the State merely expressed
that it had “struggled” with what to agree to. Nevertheless,
the State reinforced its agreed-upon sentencing recommen-
dation by stating that after this “struggle[],” it ultimately
found 18 months’ incarceration to be reasonable given that
the sentence would be consecutive to Iddings’ sentence on
a similar charge in another county. While the State also
pointed out Iddings’ prior failure to appear, the State did not
assert or even imply that this fact, or any other, meant that
9
See State v. Landera, supra note 1.
10
See id.
11
Id. at 257, 826 N.W.2d at 579.
12
State v. Landera, supra note 1.
13
Id. at 256, 826 N.W.2d at 578-79.
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STATE v. IDDINGS
Cite as 304 Neb. 759
Iddings should be incarcerated more than 18 months. As we
stated in Landera, “a sentencing recommendation need not
be enthusiastic in order to fulfill a promise made in a plea
agreement.”14 The State did not effectively undermine its
promised recommendation.
Defense counsel below was not deficient for failing to object
to the State’s alleged breach of the plea agreement, because the
State did not commit such a breach.
Lack of Presentence Investigation
[9,10] Next, Iddings argues that the district court committed
plain error by failing to procure a presentence investigation
before sentencing. The State asserts that this argument was not
assigned as error. It is a fundamental rule of appellate practice
that an alleged error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error to
be considered by an appellate court.15 A generalized and vague
assignment of error that does not advise an appellate court of
the issue submitted for decision will not be considered.16
While we agree with the State that Iddings’ assignment of
error could have been better crafted, we will consider the fail-
ure to procure the presentence investigation as encompassed
by Iddings’ assignment of error that “[t]he district court abused
its discretion by sentencing [Iddings] to a sentence of eighteen
months to five years without due consideration of established
sentencing factors.” Iddings argues that the absence of the
presentence investigation contributed to the court’s ultimate
failure to consider all the relevant sentencing factors, which
constituted the alleged abuse of discretion in reaching the inde-
terminate 18-month-to-5-year sentence that Iddings asks this
court to reverse as excessive.
14
Id. at 257, 826 N.W.2d at 579.
15
State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).
16
Id.
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STATE v. IDDINGS
Cite as 304 Neb. 759
Neb. Rev. Stat. § 29-2261(1) (Cum. Supp. 2014) provides
that “[u]nless it is impractical to do so, when an offender
has been convicted of a felony other than murder in the first
degree, the court shall not impose sentence without first order-
ing a presentence investigation of the offender and according
due consideration to a written report of such investigation.”
Section 29-2261(3) explains that, among other things,
[t]he presentence investigation and report shall include,
when available, an analysis of the circumstances attend-
ing the commission of the crime, the offender’s history of
delinquency or criminality, physical and mental condition,
family situation and background, economic status, educa-
tion, occupation, and personal habits, and any other mat-
ters that the probation officer deems relevant or the court
directs to be included.
We have construed the plain language of § 29-2261 as a
mandate upon the sentencing court to obtain and consider a
presentence investigation with every felony conviction unless
applicable exceptions render such an investigation unneces-
sary.17 The presentence investigation serves several functions,
including providing information to the court to assist in the
imposition of an appropriate individualized sentence based on
knowledge of the convicted person’s background and character
which may not otherwise be available to the sentencing court,
especially in a plea-based conviction.18
[11] The statutory right to have a presentence investiga-
tion completed prior to being sentenced may, however, be
waived so long as that waiver was knowingly and intelli-
gently made.19 We find that Iddings expressly and effectively
waived his right to a presentence investigation and that thus,
17
State v. Tolbert, 223 Neb. 794, 394 N.W.2d 288 (1986). See, also, e.g.,
State v. Qualls, supra note 2; State v. Thomas, 268 Neb. 570, 685 N.W.2d
69 (2004); State v. Jackson, 192 Neb. 39, 218 N.W.2d 430 (1974).
18
State v. Albers, 276 Neb. 942, 758 N.W.2d 411 (2008).
19
State v. Qualls, supra note 2; State v. Tolbert, supra note 17.
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STATE v. IDDINGS
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he cannot assert on appeal that the trial court erred by failing
to order that a presentence investigation be conducted prior
to sentencing.
[12,13] No formalistic litany of warnings is required to show
that a waiver was knowingly and intelligently made.20 Instead,
the appropriate standard to apply in the case of a waiver of the
right to a presentence investigation under § 29-2261 is whether
it is apparent from the totality of the circumstances reflected in
the record that the defendant, when waiving the right, was suf-
ficiently aware of his or her right to a presentence investigation
and the possible consequences of his or her decision to forgo
that right.21 But, as a general matter, being informed of a right
to a presentence investigation demonstrates that the defendant
was sufficiently aware of both the right and the possible con-
sequences of his or her decision to forgo that right,22 because
the consequences of the failure to procure a presentence inves-
tigation for the court’s consideration at sentencing are largely
self-evident.23
Iddings was present and remained silent when his counsel
expressly waived what counsel expressly described as Iddings’
“right” to a presentence investigation. Later, when the court
asked Iddings if there was any legal reason why the court
should not proceed to sentencing or anything Iddings would
like to add, Iddings failed to raise the lack of a presentence
investigation. Iddings, through his silent acquiescence to his
counsel’s statement of waiver and failure to object or otherwise
raise the issue to the court, waived his right to a presentence
investigation. We have held in various circumstances that a
defendant may waive a right by silently acquiescing to the
20
See State v. Qualls, supra note 2. See, also, State v. Jenkins, 303 Neb. 676,
931 N.W.2d 851 (2019).
21
State v. Qualls, supra note 2; State v. Tolbert, supra note 17.
22
See, State v. Qualls, supra note 2; State v. Robeson, 25 Neb. Ct. App. 138, 903
N.W.2d 677 (2017).
23
See State v. Qualls, supra note 2.
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waiver given by his counsel and by failing to object and raise
the issue to a trial court.24
We find no merit to any contention that the record fails to
demonstrate that this waiver was effective because the district
court did not specifically inquire of Iddings whether he under-
stood the right and whether anyone had threatened or promised
him anything to waive the right and did not inform Iddings of
what a waiver would entail. The facts of this case are similar
to those presented in State v. Robeson,25 wherein the Court of
Appeals found that it was apparent from the totality of the
circumstances reflected in the record that the defendant had
knowingly, intelligently, and voluntarily waived the right to
a presentence investigation, despite the lack of any colloquy
between the court and the defendant.
In Robeson, sentencing had been expedited and there was
a jointly recommended sentence pursuant to a plea agree-
ment. The district court had confirmed with defense counsel
in the defendant’s presence that the defendant was waiving his
“right” to a presentence investigation. The defendant did not
engage in any further discussion or objection with regard to his
counsel’s statement that he was waiving his right to a presen-
tence investigation. The defendant and his counsel were given
the opportunity at the sentencing hearing to present any miti-
gating factors they wished the court to consider, and defense
counsel affirmed that there was no other legal reason why the
court should not impose a sentence at that time.26
[14] A knowing and intelligent waiver may be demon-
strated by or inferred from the defendant’s conduct.27 Iddings’
24
See, State v. Sayers, 211 Neb. 555, 319 N.W.2d 438 (1982); Sedlacek
v. State, 147 Neb. 834, 25 N.W.2d 533 (1946); State v. Robeson, supra
note 22.
25
State v. Robeson, supra note 22.
26
See, State v. Sayers, supra note 24; Sedlacek v. State, supra note 24; State
v. Robeson, supra note 22.
27
See State v. Qualls, supra note 2.
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defense counsel below, in Iddings’ presence, indicated that
Iddings wished to proceed immediately to sentencing and
waive his “right” to a presentence investigation in order to do
so. Immediately prior to this exchange in which defense coun-
sel stated that Iddings was waiving his right to a presentence
investigation, Iddings’ ability to waive his right to trial had
been evaluated under a standard plea colloquy, the court hav-
ing found no impediment to his capacity in that regard. And
Iddings confirmed that he was aware of no legal reason why
the court should not pronounce its sentence. Both Iddings and
his defense counsel below were given the opportunity to pre­
sent any mitigating circumstances or other matters. They both
highlighted what facts and circumstances they wished the court
to consider in sentencing—which would have been reflected in
the presentence investigation, had Iddings not waived it.
While appellate counsel points out that the district court did
not actually articulate as a finding that Iddings had waived
his right to a presentence investigation, that is not dispositive.
There is no indication that the court found that Iddings had
failed to effectively waive his right to a presentence investiga-
tion; the court merely focused on its conclusion that a presen-
tence investigation “is found to be impractical.” A silent record
is insufficient for a court on appeal to conclude a knowing,
intelligent, and voluntary waiver of a constitutional or statu-
tory right,28 but the record here is not silent. The record need
not affirmatively contain the lower court’s express finding of
a knowing, intelligent, and voluntary waiver in order for this
court to observe that the record affirmatively demonstrates that
a knowing, intelligent, and voluntary waiver has been made.
Again, the appropriate standard to apply in the case of a waiver
of a right to a presentence investigation under § 29-2261 is
whether it is apparent from the record that the defendant’s
28
See, State v. Porchia, 221 Neb. 327, 376 N.W.2d 800 (1985); State v.
Morford, 192 Neb. 412, 222 N.W.2d 117 (1974); State v. Balvin, 18 Neb.
App. 690, 791 N.W.2d 352 (2010).
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relinquishment of the right was knowingly and intelligently
made.29 The record in this case affirmatively demonstrates that
Iddings knowingly, intelligently, and voluntarily waived his
statutory right to a presentence investigation.
[15] We agree with the Court of Appeals’ statement in
Robeson that it is “the better practice” for a sentencing court
to issue a more direct advisement of the statutory right to a
presentence investigation, conduct an explicit inquiry into the
voluntariness of a defendant’s waiver of that right, and make
explicit findings with respect to a waiver.30 We encourage
courts to adopt this better practice. Conducting a colloquy for
a waiver of a presentence investigation ensures that the record
will affirmatively demonstrate that the defendant has know-
ingly, intelligently, and voluntarily waived that right. While the
record in this case is adequate without such a colloquy, it may
not be in another case.
Having concluded that the court did not err in failing to
order a presentence investigation, because Iddings expressly
waived that statutory right, we need not consider whether the
court abused its discretion in determining that a presentence
investigation was impractical because Iddings was likely to be
transported to another county immediately after sentencing.
Excessive Sentence
[16,17] Next, we address Iddings’ excessive sentence argu-
ment. Absent an abuse of discretion by the trial court, an
appellate court will not disturb a sentence imposed within the
statutory limits.31 An abuse of discretion 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 con-
science, reason, and evidence.32
29
State v. Qualls, supra note 2.
30
State v. Robeson, supra note 22, 25 Neb. Ct. App. at 148, 903 N.W.2d at 686.
31
State v. Montoya, supra note 3.
32
Id.
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A Class IIIA felony under Neb. Rev. Stat. § 28-105 (Cum.
Supp. 2014), in effect at the time the offense was committed,
was punishable with a maximum of 5 years’ imprisonment,
a $10,000 fine, or both. There was no minimum. Where, as
here, 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 considering
and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.33
[18] In determining a sentence to be imposed, relevant fac-
tors customarily considered and applied are the defendant’s (1)
age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-
abiding conduct, and (6) motivation for the offense, as well as
(7) the nature of the offense and (8) the amount of violence
involved in the commission of the crime. 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.34
Appellate counsel asserts that the district court abused its
discretion by rendering its sentence without any “real consid-
eration” of the above sentencing factors other than Iddings’
criminal history and the factual basis for the crime.35 But, as
already noted, the court gave defense counsel and Iddings the
opportunity to present anything they wished the court to con-
sider before reaching its sentencing decision.
Defense counsel responded to this opportunity by asserting
that Iddings had been sober since 2017 and planned to remain
so. Iddings, for his part, explained that he had failed to appear
at a prior hearing because he had been in the hospital. To the
extent that the district court did not consider more information
33
Id. See, also, State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).
34
Id.
35
Brief for appellant at 12.
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pertaining to Iddings’ mentality, education and experience,
or social and cultural background, this was due to Iddings’
waiver of the presentence investigation and his deliberate deci-
sion not to otherwise present at the hearing facts pertaining
to these factors. Under such circumstances, we find no abuse
of discretion.36
We also agree with the State that it is difficult to find an
abuse of discretion in an excessive sentence analysis when the
minimum imposed was the term the defendant agreed to in a
plea bargain agreement. It is the minimum portion of an inde-
terminate sentence which measures its severity.37
[19] We find no merit to Iddings’ assertion that the district
court “abused its discretion by disregarding the joint plea
recommendation.”38 Assuming without deciding that the joint
plea recommendation was, as Iddings asserts, for an indetermi-
nate term of incarceration of 18 months to 18 months, a judge
is in no manner bound to give a defendant the sentence recom-
mended by the prosecutor under a plea agreement.39 Given the
number of DUI convictions and charges that were undisputed
below, it was reasonable for the court to conclude that it was
necessary for Iddings’ safety and the safety of the public to
impose a higher maximum term in order to ensure proper
postrelease supervision.
Credit for Time Served
Lastly, appellate counsel argues in this direct appeal that
defense counsel below was ineffective for failing to request
58 additional days of jail time credit under Neb. Rev. Stat.
§ 83-1,106(1) (Reissue 2014), for time spent in jail in Sarpy
County. He asserts that according to § 83-1,106(1), 336 days
36
See State v. Qualls, supra note 2.
37
See, e.g., State v. McCaslin, 240 Neb. 482, 482 N.W.2d 558 (1992); State
v. Haynie, 239 Neb. 478, 476 N.W.2d 905 (1991).
38
Brief for appellant at 11.
39
See State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).
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were simultaneously “as a result of the criminal charge for
which a prison sentence [was] imposed” below and as a result
of the charge in Sarpy County. According to appellate counsel,
although the district court for Sarpy County purported to apply
all 336 days against the sentence there imposed, 58 days of that
jail time were not truly applied because they were in excess of
the 278 days he was sentenced to serve, when calculated with
mandatory good time.
[20] According to appellate counsel, defense counsel below
should have been aware that the 58 days’ jail time credit was
the “result of” the underlying charge in this case and that it had
not been truly applied in the Sarpy County case. Thus, appel-
late counsel concludes that defense counsel was ineffective in
failing to request the proper amount of jail time credit—when
defense counsel had waived the presentence investigation and
represented that he was able to accurately inform the court of
the applicable jail time. Whether a claim of ineffective assist­
ance of trial counsel can be determined on direct appeal pre­
sents 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.40
[21] The determining factor is whether the record is suf-
ficient to adequately review the question.41 We have said the
record is sufficient if it establishes either that trial counsel’s
performance was not deficient, that the appellant will not
be able to establish prejudice, or that trial counsel’s actions
could not be justified as a part of any plausible trial strategy.42
We have also said that when reviewing claims of ineffec-
tive 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
40
State v. Stelly, supra note 6.
41
Id.
42
Id.
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did or did not provide effective assistance, and whether the
defendant was or was not prejudiced by counsel’s alleged defi-
cient performance.43
Appellate counsel and the State both suggest that we can-
not resolve this claim of ineffective assistance of counsel on
direct appeal, since it depends upon facts outside the appellate
record. We agree. The exact credit for time served to which a
defendant is entitled is objective and not discretionary, and a
question of law,44 but the necessary facts to conduct such an
analysis in this case are not contained within the record on
direct appeal.
CONCLUSION
For the foregoing reasons, we affirm the judgment below.
Affirmed.
Miller-Lerman, J., participating on briefs.
43
Id.
44
See id.