State v. Thomas

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/26/2022 01:05 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. THOMAS
Cite as 311 Neb. 989State of Nebraska, appellee, v.
Rubin J. Thomas, appellant.
___ N.W.2d ___
Filed July 15, 2022. No. S-21-551.
1. Waiver: Appeal and Error. Whether a party waived his or her right to
appellate review is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
3. Pleas: Waiver. A voluntary guilty plea or plea of no contest waives all
defenses to a criminal charge.
4. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or no
contest, the defendant is limited to challenging whether the plea was
understandingly and voluntarily made and whether it was the result of
ineffective assistance of counsel.
5. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that counsel’s perform­
ance was deficient and that this deficient performance actually preju-
diced his or her defense.
6. ____: ____. To show that counsel’s performance was deficient, a defend­
ant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law.
7. ____: ____. To show prejudice in a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding
would have been different.
8. Words and Phrases. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
9. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
tion is based upon a plea of no contest, the prejudice requirement for an
ineffective assistance of counsel claim is satisfied if the defendant shows
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STATE v. THOMAS
Cite as 311 Neb. 989a reasonable probability that but for the errors of counsel, the defendant
would have insisted on going to trial rather than pleading no contest.
10. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. 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; otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
11. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an
appellate court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims. 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 as
a matter of law, or that trial counsel’s actions could not be justified as a
part of any plausible trial strategy. Conversely, an ineffective assistance
of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing.
12. Right to Counsel: Waiver: Effectiveness of Counsel. Appointed coun-
sel must remain with an indigent accused unless one of the following
conditions is met: (1) The accused knowingly, voluntarily, and intel-
ligently waives the right to counsel and chooses to proceed pro se; (2)
appointed counsel is incompetent, in which case new counsel is to be
appointed; or (3) the accused chooses to retain private counsel.
13. Judgments: Justiciable Issues. Justiciability issues that do not involve
a factual dispute present a question of law.
14. Judges: Recusal. In order to demonstrate that a trial judge should have
recused himself or herself, the moving party must show that a reason-
able person who knew the circumstances of the case would question the
judge’s impartiality under an objective standard of reasonableness, even
though no actual bias or prejudice was shown.
15. Judges: Recusal: Presumptions. A defendant seeking to disqualify a
judge on the basis of bias or prejudice bears the heavy burden of over-
coming the presumption of judicial impartiality.
16. Judges: Recusal. Judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion directed to a trial judge.
17. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance with enough par-
ticularity for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district court
later reviewing a petition for postconviction relief to recognize whether
the claim was brought before the appellate court.
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STATE v. THOMAS
Cite as 311 Neb. 98918. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
19. ____: ____. When sentences imposed within statutory limits are alleged
on appeal to be excessive, the appellate court must determine whether
the sentencing court abused its discretion in considering well-established
factors and any applicable legal principles.
20. Judges: Words and Phrases. A judicial abuse of discretion exists only
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.
21. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (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.
22. ____. The sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a
subjective judgment that includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Christopher Eickholt, of Eickholt Law, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Rubin J. Thomas appeals the convictions and sentences
resulting from his no contest pleas to changes of conspiracy to
commit robbery and conspiracy to commit burglary. Thomas
argues the district court erred by not discharging his appointed
counsel, by revoking his bond, and by not recusing itself prior
to sentencing. He also argues that he received ineffective
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STATE v. THOMAS
Cite as 311 Neb. 989assistance of counsel and that his sentences were excessive.
We affirm.
I. BACKGROUND
In October 2019, the State filed an information charging
Thomas with two counts of first degree murder and one count
of use of a firearm to commit a felony. The murder charge
was based on a felony murder theory: the State alleged that
on July 24, 2019, Audrea S. Craig and Martae Green were
killed during Thomas’ perpetration or attempted perpetration
of a robbery.
The State later filed an amended information, adding an
allegation that Thomas committed attempted burglary on July
11, 2019. This amended information also alleged that, based
on prior convictions, Thomas should be sentenced as a habit-
ual criminal.
The State and Thomas eventually reached a plea agreement
in April 2021. Pursuant to the plea agreement, the State filed a
second amended information charging Thomas with conspiracy
to commit robbery and conspiracy to commit burglary. The
second amended information alleged that Thomas conspired
with others to rob Craig on July 24, 2019, and that he con-
spired with others to commit a burglary on July 11, 2019. As
part of the plea agreement, the State agreed not to pursue other
charges regarding these incidents and to dismiss an unrelated
charge; Thomas agreed to plead no contest to the charges in the
second amended information.
At the plea hearing, the district court asked the State to
explain what the evidence would show if the State proceeded
with the charges at issue. With respect to the conspiracy to
commit burglary charge, the prosecutor stated that on July
11, 2019, Thomas and several other individuals met at a loca-
tion near 27th and South Streets in Lincoln, Nebraska, where
they planned to break into a nearby residence and steal money
and/or marijuana. Thomas had been in the residence previ-
ously and unlocked a window to allow for easy entrance, but
when they arrived at the residence, the window was locked.
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STATE v. THOMAS
Cite as 311 Neb. 989Members of the group tried to pry the window open and
attempted to kick in a door, but when they saw children look-
ing out of a window of the residence, they left the area.
With respect to the conspiracy to commit burglary charge,
the prosecutor summarized evidence that a group of individuals
planned to break into the same residence to commit a robbery.
The group included Thomas; Green; Green’s brother, Charles
Gresham; and two other individuals. The group gathered on
the evening of July 23, 2019, and then in the early morning
hours of the next day, Thomas led the group to the area. Green
and Gresham entered the residence armed with handguns and
threatened Craig and her boyfriend. A struggle ensued and
multiple gunshots were fired. Green and Gresham quickly
departed. Craig died at the scene as a result of multiple gunshot
wounds. Thomas and the others transported Green to a local
hospital where he was pronounced dead as a result of a gunshot
wound a short time later.
The district court accepted Thomas’ no contest pleas to the
conspiracy to commit robbery and conspiracy to commit bur-
glary charges and convicted him on both counts. The district
court later sentenced Thomas to consecutive terms of imprison-
ment of 26 to 32 years for conspiracy to commit robbery and
14 to 20 years for conspiracy to commit burglary.
Additional background regarding the issues Thomas raises
on appeal are discussed in the analysis section below.
II. ASSIGNMENTS OF ERROR
Thomas assigns a number of errors on appeal. We have con-
densed, restated, and divided them into several categories for
ease of analysis. First, Thomas assigns errors concerning the
district court’s response to motions he filed to discharge his
court-appointed trial counsel. Thomas contends that the district
court erred by not discharging trial counsel and by conduct-
ing an off-the-record hearing on one of Thomas’ motions to
discharge. Thomas also asserts that his counsel was ineffective
for failing to withdraw as counsel and for permitting the off-
the-record hearing.
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STATE v. THOMAS
Cite as 311 Neb. 989Thomas’ second category of assigned errors relates to the
district court’s revocation of Thomas’ bond. Here, Thomas
contends that the district court erred by revoking his bond and
by not recusing itself after explaining its decision to revoke
the bond. He also asserts that his counsel was ineffective for
failing to move for the district court’s recusal after the bond
revocation.
In addition to the above assignments of ineffective assist­
ance of counsel, Thomas also assigns that his trial counsel
was ineffective in two other respects. He claims that his coun-
sel was ineffective for failing to investigate an alibi defense
and for failing to subpoena or interview a named potential
witness.
Finally, Thomas assigns that his sentences were excessive.
III. ANALYSIS
1. Attempts to Discharge Trial Counsel
(a) Additional Background
After charges were filed but before Thomas entered his
plea, Thomas filed several pro se motions to discharge his trial
counsel. Thomas filed his first such motion in August 2020. At
a hearing on the motion, however, Thomas’ trial counsel stated
that it was his understanding that Thomas wished to withdraw
the motion. The district court then inquired of Thomas whether
that was correct. Thomas responded, “Yes, ma’am.”
Approximately 2 months later, in October 2020, Thomas
filed a second pro se motion to discharge his counsel. In the
motion, Thomas expressed frustration that while he did not
wish to enter a plea deal, his appointed counsel was encour-
aging him to do so. He asked that new counsel be appointed
to represent him. At a hearing on Thomas’ second motion,
his counsel requested that the prosecutors be excused from
the courtroom, so that Thomas could discuss his motion with
the district court. The district court then asked the prosecu-
tors to leave the courtroom, and the record reflects there was
an in camera hearing on the motion. When the prosecutors
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STATE v. THOMAS
Cite as 311 Neb. 989returned, the district court noted that it overruled Thomas’
motion for new counsel.
On April 6, 2021, Thomas filed a third pro se motion to
discharge his counsel. Thomas asserted that his counsel had
told him numerous times that he would be found guilty at trial.
Thomas claimed that he did not trust his counsel and again
asked that new counsel be appointed to represent him.
Just over a week after Thomas filed his third motion to dis-
charge counsel, on April 14, 2021, he entered his no contest
pleas. There is no indication in our record that the district court
took action with respect to the motion to discharge counsel
before accepting Thomas’ pleas.
After the State presented the factual basis for Thomas’ pleas
at the plea hearing, the following exchange took place between
Thomas and the district court:
THE COURT: Have you told your attorney everything
you know about this case?
[Thomas]: Yes, ma’am.
THE COURT: Are you aware of anything that could
help you that you’ve not already discussed with your
attorney?
[Thomas]: No, ma’am.
THE COURT: Are you satisfied with the job your
attorney has done for you?
[Thomas]: Yes, ma’am.
THE COURT: And, insofar as this case is concerned,
do you believe your attorney is competent and knows
what he is doing?
[Thomas]: Yes, ma’am.
THE COURT: Have you had enough time to talk with
your attorney about this case?
[Thomas]: Yes, I have.
THE COURT: And, before we go any further here
today, do you need any more time to talk to him about
anything?
[Thomas]: No, ma’am.
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STATE v. THOMAS
Cite as 311 Neb. 989(b) Standard of Review
[1,2] Whether a party waived his or her right to appellate
review is a question of law. Becher v. Becher, 299 Neb. 206,
908 N.W.2d 12 (2018). When reviewing questions of law, an
appellate court resolves the questions independently of the trial
court’s conclusions. Id.(c) Assigned District Court Error Analysis
Thomas argues that the district court erred by not discharg-
ing his trial counsel and by holding an off-the-record hearing
on Thomas’ second motion to discharge his counsel. But these
arguments have been waived by Thomas’ no contest pleas.
[3,4] A voluntary guilty plea or plea of no contest waives
all defenses to a criminal charge. State v. Jaeger, ante p. 69,
970 N.W.2d 751 (2022). When a defendant pleads guilty or
no contest, the defendant is limited to challenging whether the
plea was understandingly and voluntarily made and whether it
was the result of ineffective assistance of counsel. Id. Thomas’
challenges to the district court’s rulings with respect to his
motions to discharge his trial counsel do not fall into these
limited categories. They have therefore been waived, and we
will not address their merits.
(d) Ineffective Assistance of Counsel Analysis
Thomas also asserts that he received ineffective assistance
of counsel with respect to his attempts to discharge his trial
counsel. He assigns that his counsel was ineffective for failing
to withdraw despite Thomas’ requests that he be discharged
and for permitting the off-the-record hearing on his second
motion to discharge.
[5-9] Before turning to Thomas’ ineffective assistance of
counsel claims, we briefly review the well-established law
governing such claims. To prevail on a claim of ineffective
assistance of counsel, the defendant must show that counsel’s
performance was deficient and that this deficient performance
actually prejudiced his or her defense. Id. To show that
counsel’s performance was deficient, a defendant must show
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STATE v. THOMAS
Cite as 311 Neb. 989that counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. State v. Anderson,
305 Neb. 978, 943 N.W.2d 690 (2020). To show prejudice, the
defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceed-
ing would have been different. Id. A reasonable probability is
a probability sufficient to undermine confidence in the out-
come. Id. When a conviction is based upon a plea of no con-
test, the prejudice 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 no
contest. Id.[10,11] When, as in this case, a defendant’s trial counsel is
different from his or her counsel on direct appeal, the defend­
ant 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; otherwise, the issue will be procedur-
ally barred in a subsequent postconviction proceeding. State v.
Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). Once raised, an
appellate court will determine whether the record on appeal is
sufficient to review the merits of the ineffective performance
claims. State v. Drake, ante p. 219, 971 N.W.2d. 759 (2022).
The record is sufficient if it establishes either that trial coun-
sel’s performance was not deficient, that the appellant will not
be able to establish prejudice as a matter of law, or that trial
counsel’s actions could not be justified as a part of any plau-
sible trial strategy. Id. Conversely, an ineffective assistance
of counsel claim will not be addressed on direct appeal if it
requires an evidentiary hearing. Id.[12] Thomas appears to take the position on appeal that his
appointed trial counsel should have unilaterally withdrawn
as counsel. The record establishes that Thomas’ counsel did
not perform deficiently by remaining as counsel. Appointed
counsel must remain with an indigent accused unless one of
the following conditions is met: (1) The accused knowingly,
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STATE v. THOMAS
Cite as 311 Neb. 989voluntarily, and intelligently waives the right to counsel and
chooses to proceed pro se; (2) appointed counsel is incompe-
tent; or (3) the accused chooses to retain private counsel. State
v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013). Nothing
in our record indicates that Thomas ever expressed a desire
to proceed pro se or to retain private counsel. Absent such a
request from Thomas or an order appointing substitute counsel,
appointed trial counsel could not simply withdraw.
In addition, we find that the record establishes that Thomas
would not be able to establish prejudice as to either of his inef-
fective assistance of counsel claims related to his motion to
discharge his counsel. Because Thomas was convicted based
on his no contest pleas, he must show a reasonable prob-
ability that if counsel had performed adequately, he would
have insisted on going to trial. See State v. Anderson, supra.Our record, however, conclusively undermines any notion that
Thomas would have rejected the plea agreement and proceeded
to trial if his counsel had performed in the manner Thomas
alleges he should have. At the same hearing at which Thomas
entered his pleas, he informed the district court that he was
satisfied with his attorney and believed his attorney was com-
petent. Thomas makes no argument on appeal that he did not
enter his pleas knowingly and voluntarily. The record thus
establishes that despite any disagreements with counsel over
the course of the representation, Thomas decided to accept the
plea agreement and plead no contest to the charges. We find
no reasonable probability that he would have insisted on going
to trial.
Thomas’ assignments of error related to his motions to dis-
charge trial counsel are meritless.
2. Bond Revocation
(a) Additional Background
At Thomas’ plea hearing, after the district court accepted the
pleas, Thomas’ counsel requested that the district court reduce
Thomas’ bond. Thomas’ counsel noted that another individual
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STATE v. THOMAS
Cite as 311 Neb. 989alleged to have been involved in the July 24, 2019, break-in
recently requested and received a bond reduction. The State
did not object to the request and deferred to the district court’s
discretion. The district court agreed to reduce Thomas’ bond.
Two days after the plea hearing, a “Bond Notice” was filed
in Thomas’ case. This document was signed by an individual
who acknowledged that any money she posted for Thomas’
bond would be posted in Thomas’ name and returned to him
upon release of the bond. Later that same day, the district
court entered an order revoking Thomas’ bond. In its order,
the district court stated that “in reconsideration of the status
of the case,” it was vacating the previous order and revoking
Thomas’ bond.
Thomas subsequently filed a motion for bond review. At
a hearing on that motion, Thomas’ counsel argued that the
revocation appeared improper, because the only fact that had
changed after the bond reduction was that Thomas had begun
the process of posting the bond.
At the conclusion of the bond review hearing, the district
court declined to reinstate the bond. The district court explained
that there was no “impropriety” in the decision to revoke the
bond. The district court noted that it had revoked bond for
both Thomas and another individual allegedly involved in the
July 24, 2019, break-in; that Thomas had been convicted of a
Class II felony and Class IIA felony; and that two people had
died in the break-in. The district court observed that probation
or short sentences were “highly unlikely” under the circum-
stances, but also indicated that it had not prejudged the matter,
reviewed the presentence investigation, or decided what the
sentences would be. The district court stated, “I feel that I had
made an error in setting bond for those two individuals, and I
was simply attempting to correct that error.”
(b) Standard of Review
[13] Justiciability issues that do not involve a factual dispute
present a question of law. Bramble v. Bramble, 303 Neb. 380,
929 N.W.2d 484 (2019).
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STATE v. THOMAS
Cite as 311 Neb. 989(c) Analysis of Assigned District Court Error
Thomas argues that the district court erred by revoking his
bond. Not only, however, does Thomas not offer any authority
in support of this argument, but his counsel acknowledged at
oral argument that we could not effectively remedy any such
error at this stage. We agree and conclude the issue is moot.
Now that Thomas has been sentenced to a term of incar-
ceration, we could not remedy any error with respect to the
bond set by the district court. This situation is akin to that
presented in State v. Harig, 192 Neb. 49, 218 N.W.2d 884(1974). In that case, the defendant argued that the amount of
pretrial bail set by the trial court was excessive. We held that
the issue was not reviewable after a conviction and sentence.
We conclude the same is true here. Because we could not
provide any meaningful relief, the issue is moot. See Chaney
v. Evnen, 307 Neb. 512, 518, 949 N.W.2d 761, 767 (2020)
(“[t]he central question in a mootness analysis is whether
changes in circumstances have forestalled any occasion for
meaningful relief”).
In addition to his argument that the district court erred by
revoking his bond, Thomas presents a related argument that the
bond revocation and the trial judge’s comments explaining that
decision demonstrated that she could not be fair and impartial.
Thomas contends the trial judge should have recused herself at
that point. We find this issue is waived.
The trial judge made the comments that Thomas claims
demonstrated that she could not be fair and impartial at the
bond review hearing in April 2021. Sentencing did not occur
until June 2021. Despite having the opportunity to do so,
Thomas did not seek the trial judge’s disqualification prior to
sentencing. We have held that a litigant waives the issue of
judicial disqualification if it is not presented “at the earliest
practicable opportunity.” State v. Buttercase, 296 Neb. 304,
315-16, 893 N.W.2d 430, 439 (2017). Because Thomas failed
to raise the issue of judicial disqualification at the earliest prac-
ticable opportunity, the issue is waived.
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Cite as 311 Neb. 989(d) Ineffective Assistance of Counsel Analysis
While Thomas has waived any contention that the trial judge
erred by failing to recuse herself, he also contends that his trial
counsel was ineffective for not moving for the trial judge’s
recusal. We find that the record establishes that Thomas would
not be able to establish that his counsel performed deficiently,
because any such motion would have failed.
[14-16] The Nebraska Revised Code of Judicial Conduct
states that a judge must recuse himself or herself from a case if
the judge’s impartiality might reasonably be questioned. Neb.
Rev. Code of Judicial Conduct, § 5-302.11. See, also, State
v. Fuentes, 302 Neb. 919, 926 N.W.2d 63 (2019). In order to
demonstrate that a trial judge should have recused himself or
herself, the moving party must show that a reasonable person
who knew the circumstances of the case would question the
judge’s impartiality under an objective standard of reasonable-
ness, even though no actual bias or prejudice was shown. See
State v. Collins, 283 Neb. 854, 812 N.W.2d 285 (2012). In
addition, a defendant seeking to disqualify a judge on the basis
of bias or prejudice bears the heavy burden of overcoming the
presumption of judicial impartiality. Id. Judicial rulings alone
almost never constitute a valid basis for a bias or partiality
motion directed to a trial judge. State v. Buttercase, supra.Thomas contends that the trial judge’s comments explaining
the decision to revoke Thomas’ bond demonstrated that she
had predetermined the issue of sentencing and that a reason-
able person would question her impartiality. He also contends
that the fact that the trial judge revoked the bond without any
request from the State demonstrates partiality. We disagree
with both arguments.
In support of his contention that the trial judge had prede-
termined the issue of sentencing, Thomas focuses on certain
comments the trial judge made regarding potential sentences,
but he ignores the trial judge’s express statements that she had
not yet decided how Thomas would be sentenced. As for the
absence of a request from the State to revoke Thomas’ bond,
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Cite as 311 Neb. 989the trial judge explained that she “simply felt that [she] had
made an error” in setting the bond. Thomas presents no argu-
ment that the district court lacked authority to reconsider its
bond order as it did here, much less explain how such a ruling,
even if erroneous, would be one of those rare judicial rulings
that constitute a valid basis for a recusal motion. See State v.
Buttercase, supra. Had a motion to recuse the trial judge been
filed on the bases Thomas asserts, he would not have been
able to carry the heavy burden necessary to overcome the pre-
sumption of judicial impartiality. See State v. Collins, supra.
Accordingly, Thomas’ counsel was not ineffective in failing to
seek recusal. See State v. Anderson, 305 Neb. 978, 988, 943
N.W.2d 690, 699 (2020) (“as a matter of law, counsel is not
ineffective for failing to make a meritless objection”).
3. Other Ineffective Assistance of Counsel Claims
(a) Additional Background
Thomas assigns that his counsel was ineffective in two
other respects we have not yet addressed. He first asserts that
his counsel was ineffective for failing to investigate his alibi
defense. Relevant to that claim, Thomas filed a notice of an
intention to rely upon an alibi pursuant to Neb. Rev. Stat.
§ 29-1927 (Reissue 2016). Thomas’ appellate brief does not
provide any details as to his alibi defense.
Thomas also contends that his counsel was ineffective for
failing to subpoena or interview Herschel Bradley, an indi-
vidual Thomas claims had evidence that was helpful to his
defense. Thomas states in his appellate brief that he does not
believe his counsel investigated or interviewed this potential
witness. His appellate brief does not provide details as to what
information Bradley might have possessed.
(b) Analysis
[17] The State suggests that Thomas’ allegations concern-
ing his counsel’s failure to investigate his alibi defense and to
investigate and interview Bradley were not sufficient to raise
those claims. An ineffective assistance of counsel claim is
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Cite as 311 Neb. 989raised on direct appeal when the claim alleges deficient per-
formance with enough particularity for (1) an appellate court
to make a determination of whether the claim can be decided
upon the trial record and (2) a district court later reviewing
a petition for postconviction relief to recognize whether the
claim was brought before the appellate court. State v. Golyar,
301 Neb. 488, 919 N.W.2d 133 (2018).
We find that Thomas’ allegations are not sufficient to raise
the claim relating to the alibi defense but are sufficient to
raise the claim relating to Bradley. In State v. Golyar, supra,a defend­ant asserted that counsel was ineffective for failing to
investigate potential alibis. The defendant did not, however,
identify what the potential alibis were. We found that the
allegations were not sufficient to raise the claim, because a
potential postconviction court would not be able to determine
if a failure to pursue an alibi claim was the same one raised on
direct appeal. As in Golyar, Thomas has not identified any spe-
cific alibis and thus has not sufficiently raised the claim.
The State points out that while Thomas identifies Bradley as
a person his counsel should have interviewed and investigated,
he does not specify what information would have been gained
from Bradley. But our law does not require the specification of
such information on direct appeal. As we recently explained,
an assertion on direct appeal that counsel was ineffective for
failing to investigate unidentified “witnesses” is not sufficient
to preserve the claim, but a claim is preserved if the defend­
ant provides names or descriptions of any such witnesses.
See State v. Blake, 310 Neb. 769, 798, 969 N.W.2d 399, 421
(2022). Thomas has done so here with respect to Bradley.
This leaves the question of whether the record is sufficient
to review Thomas’ claim that his counsel was ineffective for
failing to interview or investigate Bradley. The State contends
that the record is sufficient to reject this claim. The State
argues that given Thomas’ admissions during the plea colloquy
that he told his counsel everything he knew about the case and
that he was satisfied with his counsel’s work, “he cannot now
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Cite as 311 Neb. 989claim that he was actually unsatisfied with his trial counsel
because of counsel’s alleged failure to . . . interview a certain
witness.” Brief for appellee at 25.
We disagree with the State that the record allows us to
resolve this claim on direct appeal. Because our record is
devoid of any information Bradley might have possessed, we
cannot analyze whether counsel’s discovery of such informa-
tion would have had an effect on Thomas’ decision to accept
the plea agreement. And while Thomas may have expressed
satisfaction with his counsel’s efforts during the plea collo-
quy, we do not know from this record what Thomas knew at
that time about any efforts his counsel had made to interview
Bradley. We also note that in State v. Blake, supra, the defend­
ant likewise stated at the plea colloquy that he was satisfied
with his counsel and believed he was competent. Even so, we
held that we could not resolve a claim that counsel was inef-
fective for failing to interview potential witnesses. We reach
the same conclusion here. Thomas’ claim that his counsel was
ineffective for failing to investigate and interview Bradley was
sufficiently raised but cannot be resolved on direct appeal.
4. Excessive Sentences
(a) Additional Background
As noted above, the district court sentenced Thomas to
consecutive terms of imprisonment of 26 to 32 years for con-
spiracy to commit robbery and 14 to 20 years for conspiracy to
commit burglary. Before it issued its sentencing decision, the
district court stated:
We’ve had a lot of inconsistent stories about what hap-
pened that night of July 24th, but really the only constant
was that you were the mastermind behind that failed
robbery.
You set these events in motion. You even supplied the
masks to be used. I’m not clear about who supplied the
guns, but I don’t think it matters. You knew and planned
for . . . Green and . . . Gresham to break down the door
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Cite as 311 Neb. 989at 3 a.m. and enter the house, which you knew was filled
with children, armed with guns, in order to steal mari-
juana and money that you knew were there from your pre-
vious contacts with . . . Craig. . . .
. . . [T]his was a crime of violence based on greed,
and it appears that that was primarily your greed. It was
primarily your idea to do this robbery which led to the
deaths of the two individuals, and I think we’re all sorry
for that.
But . . . as [the prosecutor] points out, your criminal
history does stand out because your crimes have been so
frequent. As he argues, you’re only able to stay out of
trouble when you’re incarcerated.
The district court also observed that a habitual criminal alle-
gation had been dropped pursuant to the plea agreement. The
district court determined that the severity of the crimes and the
need to protect the public warranted lengthy prison sentences.
(b) Standard of Review
[18] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. State v. Blake, 310 Neb. 769, 969 N.W.2d
399 (2022).
(c) Analysis
[19,20] Thomas’ sentences were within statutory limits.
When sentences imposed within statutory limits are alleged
on appeal to be excessive, the appellate court must determine
whether the sentencing court abused its discretion in consider-
ing well-established factors and any applicable legal principles.
Id. A judicial abuse of discretion exists only 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. Id.[21,22] When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
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STATE v. THOMAS
Cite as 311 Neb. 989(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. Id. The sentencing court is not
limited to any mathematically applied set of factors, but the
appropriateness of the sentence is necessarily a subjective
judgment that includes the sentencing judge’s observations of
the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life. Id.Thomas argues the district court abused its discretion by
placing undue weight on his criminal history and failing to
sufficiently consider several of the other relevant sentenc-
ing factors. We see no evidence that the district court abused
its discretion. The district court stated that it reviewed the
presentence investigation report, which included information
concerning all of the factors to be considered by a sentenc-
ing court. See State v. Greer, 309 Neb. 667, 962 N.W.2d 217(2021). Further, we have rejected the notion that a sentencing
court is required to articulate on the record that it has consid-
ered each sentencing factor and to make specific findings as to
the facts that bear on each of those factors. Id.Finally, we disagree that the district court placed undue
weight on Thomas’ criminal history. Thomas’ criminal his-
tory was extensive. Thomas has previously been convicted
multiple times of terroristic threats, theft by unlawful taking,
disturbing the peace, and possession of marijuana. He has also
been convicted of, among other things, second degree assault,
third degree assault, theft by shoplifting, unauthorized use of
a financial transaction device, and attempted burglary.
IV. CONCLUSION
We find no error on the part of the district court and thus
affirm Thomas’ convictions and sentences.
Affirmed.