State v. Anthony

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/11/2021 08:09 AM CDT
- 839 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839State of Nebraska, appellee and cross-appellant,
v. Ricky Earl Anthony, appellant
and cross-appellee.
___ N.W.2d ___
Filed May 11, 2021. No. A-20-644.
1. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, and an appellate court resolves such issues independently of the
lower court’s conclusions.
2. Effectiveness of Counsel. A claim that defense counsel provided inef-
fective assistance presents a mixed question of law and fact.
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. 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.
5. Postconviction: Constitutional Law: Proof. A trial court must grant
an evidentiary hearing on a motion for postconviction relief when
the motion contains factual allegations which, if proved, constitute
an infringement of the movant’s rights under the Nebraska or federal
Constitution. If a court grants such an evidentiary hearing, it is obligated
to determine the issues and make findings of fact and conclusions of law
with respect thereto.
6. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
7. Effectiveness of Counsel: Appeal and Error. If the record is sufficient
to address the ineffective assistance of counsel claim, an appellate court
reviews the factual findings of the lower court for clear error.
8. ____: ____. With regard to the questions of counsel’s performance or
prejudice to the defendant as part of the two-pronged test articulated
- 840 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984), an appellate court reviews such legal determinations
independently of the lower court’s decision.
9. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
To show deficient performance, a defendant must show that counsel’s
performance did not equal that of a lawyer with ordinary training and
skill in criminal law in the area.
10. Homicide: Motor Vehicles: Proof: Habitual Criminals: Sentences.
Because the State must prove an additional element in order to convict
a defendant of felony motor vehicle homicide, rather than misdemeanor
motor vehicle homicide, there is no impermissible double enhancement
when a person is convicted of felony motor vehicle homicide and is
determined to be a habitual criminal.
11. Effectiveness of Counsel. Trial counsel does not provide ineffective
assistance in failing to raise an unsuccessful argument.
12. Sentences. When imposing a sentence, a sentencing judge should cus-
tomarily consider 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.
13. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment 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.
Appeal from the District Court for Otoe County: Julie D.
Smith, Judge. Affirmed.
Julie E. Bear, of Reinsch, Slattery, Bear, Minahan & Prickett,
P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Pirtle, Chief Judge, and Arterburn and Welch, Judges.
Arterburn, Judge.
I. INTRODUCTION
Following Ricky Earl Anthony’s motion for postconviction
relief, the district court for Otoe County granted his motion
- 841 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839in the form of a new direct appeal. Pursuant to that order,
Anthony has filed this direct appeal of his plea-based convic-
tions of two counts of motor vehicle homicide. On appeal,
Anthony challenges the district court’s finding that he is a
habitual criminal. He also asserts that the district court erred in
imposing excessive sentences and that he received ineffective
assistance of trial counsel. We affirm Anthony’s convictions
and sentences.
II. BACKGROUND
On December 10, 2018, an information was filed in the
district court, charging Anthony with five offenses: two counts
of motor vehicle homicide, in violation of Neb. Rev. Stat.
§ 28-306 (Reissue 2016), a Class IIIA felony; one count of
leaving the scene of an injury accident causing serious bodily
injury or death, in violation of Neb. Rev. Stat. § 60-698 (Cum.
Supp. 2020), a Class III felony; one count of willful reck-
less driving, second offense, in violation of Neb. Rev. Stat.
§ 60-6,214 (Reissue 2010), a Class II misdemeanor; and one
count of driving under revocation, third offense, in violation
of Neb. Rev. Stat. § 60-4,108(1) (Cum. Supp. 2020), a Class II
misdemeanor. The information also alleged that Anthony was
a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221(Reissue 2016).
Subsequently, both Anthony and the State appeared before
the district court and indicated that they had reached a plea
agreement. The plea agreement required Anthony to plead
guilty or no contest to an amended information which charged
him with only two counts of motor vehicle homicide. In
exchange for Anthony’s pleas, the State agreed to dismiss
the other charges contained in the original information. In
addition, the State agreed to jointly recommend a concur-
rent sentence for the two counts of motor vehicle homicide.
The amended information included an allegation that Anthony
was a habitual criminal. The parties informed the court that
because Anthony was not stipulating to his status as a habitual
- 842 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839criminal as a part of the plea agreement, a hearing would have
to be held wherein the State would have to prove that he was
a habitual criminal.
Upon the district court’s inquiry, Anthony indicated that the
plea agreement described to the court reflected the entirety of
the agreement between him and the State. He stated that no one
had threatened him or promised him anything other than what
was contained in the plea agreement to compel him to change
his previously entered not guilty pleas. Anthony also affirmed
that he understood the charges contained in the amended
information and the possible penalties associated with those
charges. He indicated an understanding that the court was not
bound by the joint sentencing recommendation made by the
State and his counsel. Anthony affirmed that he understood the
constitutional rights he was waiving by entering a guilty or no
contest plea. He stated that he had told his attorney everything
he knew about the case and about any possible defenses he
might have. He declined an opportunity to speak further with
his counsel.
Anthony indicated his intention to change his not guilty pleas
to pleas of no contest. The State then provided a factual basis
to support Anthony’s no contest pleas. According to that fac-
tual basis, during the evening hours of October 21, 2018, law
enforcement officers were dispatched to a two-vehicle accident
in rural Otoe County, Nebraska. Upon arrival, law enforcement
officers observed a gray sport utility vehicle (SUV) and a red
pickup truck, both of which appeared to have been involved
in the accident. There was no one inside of the gray SUV, but
one of the doors was open and there was loud music still play-
ing from it. There were two passengers located inside of the
red pickup truck, which had rolled onto its top. The front seat
passenger was pronounced dead at the scene. The back seat
passenger was transported to a hospital and pronounced dead
a short time later. The driver of the red pickup truck sustained
serious injuries and was also transported to the hospital, where
he was treated and eventually released.
- 843 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839Witnesses to the accident reported that the gray SUV had
been traveling northbound on the two-lane highway when
the driver had suddenly veered into the southbound lane in
front of the red pickup truck. The red pickup truck apparently
attempted to avoid colliding with the gray SUV, but the evasive
attempt was unsuccessful and the vehicles collided head on.
A subsequent accident reconstruction investigation revealed
that the northbound gray SUV was traveling partially on the
southbound shoulder of the highway just prior to the accident.
The red pickup truck attempted to move to the left to avoid
the accident, just as the gray SUV attempted to return to the
northbound lane. The vehicles collided “nearly in the middle
of the roadway.”
Law enforcement officers were unable to locate the driver
of the gray SUV at the accident scene. Officers searched a
cornfield which was adjacent to the highway and employed a
helicopter in an attempt to find the driver. Officers then uti-
lized the name listed upon the registration of the gray SUV to
identify its owner. From that investigation, officers learned that
Anthony had been driving the gray SUV at the time of the acci-
dent. Anthony was located a little while later at a motel in Falls
City, Nebraska. He attempted to hide from law enforcement
officers, but was ultimately arrested and confessed to being the
driver of the gray SUV.
The district court found that Anthony understood the nature
of the charges against him and the possible penalties; that his
no contest pleas were made freely, voluntarily, knowingly, and
intelligently; and that the factual basis supported his pleas. The
court then accepted Anthony’s no contest pleas to two counts
of motor vehicle homicide. The court ordered that a presen-
tence report be completed.
The presentence report revealed that Anthony was 55 years
old and obtained his diploma through the GED program during
a previous period of incarceration. At the time of his arrest for
the current offense, he was briefly employed at a motel. Before
that, he was employed as a seasonal construction worker.
- 844 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839Anthony has a lengthy criminal history, which includes
numerous traffic-related offenses. His history includes con-
victions for second degree forgery, theft by receiving stolen
property, shoplifting, theft by unlawful taking (3 times), driv-
ing during a period of suspension (13 times), driving during
a period of revocation, driving under the influence (3 times),
leaving the scene of an accident, possession of drug parapher-
nalia (3 times), reckless driving (2 times), no proof of insur-
ance (2 times), carrying a concealed weapon, trespassing, fail-
ure to appear (2 times), and damage to property. As a result of
his convictions, Anthony has been sentenced to prison on two
occasions, to jail on numerous occasions, and to a period of
probation on three occasions. His probation was revoked two
out of his three probationary periods.
In addition to his prior convictions, 3 months prior to the
current offense, Anthony was charged with driving under the
influence (second offense), possession of an open alcohol con-
tainer, and failure to appear. The disposition of these offenses
is not clear from our record.
During his interview for the presentence report, Anthony ini-
tially denied responsibility for the accident which gave rise to
his current charges. He stated, “‘I didn’t cause the accident in
my opinion. It wouldn’t have happened if [the driver of the red
pickup truck] would have stayed in his lane.’” Anthony denied
that he was under the influence of either drugs or alcohol at
the time of the accident. Later during the interview, Anthony
stated, “‘I feel I’m at fault because I chose to pass the vehicle.
I am so sorry for them losing their loved ones.’”
Testing conducted by the probation office as a part of the
presentence report revealed that Anthony posed a “high risk”
of reoffense.
Immediately prior to the sentencing hearing, the district
court conducted a hearing to consider the State’s charge that
Anthony was a habitual criminal. Based on evidence presented
by the State, the court found that Anthony had two prior con-
victions, each of which involved a sentence of not less than
- 845 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 8391 year: a conviction in 1992 for theft by receiving stolen prop-
erty, for which he was sentenced to 1 year’s imprisonment, and
a conviction in 1995 for theft, for which he was sentenced to 3
to 5 years’ imprisonment. The court further found that Anthony
was represented by counsel in each prior conviction. The court
found that Anthony was a habitual criminal. The court there­
after sentenced Anthony to 20 to 40 years’ imprisonment on
each conviction, to be served concurrently. As a part of the sen-
tence, Anthony was required to serve a mandatory minimum of
10 years in prison.
Anthony, acting pro se, filed a notice of appeal from his con-
victions and sentences. However, the notice of appeal in case
No. A-19-1160 was filed more than 30 days after entry of the
district court’s sentencing order and was, as a result, summarily
dismissed on December 27, 2019, by this court as having been
untimely filed.
Anthony then filed a verified motion to vacate and set aside
his convictions, alleging, among other things, that his trial
counsel failed to file a direct appeal from his convictions and
sentences despite Anthony’s explicit request for him to do
so. Anthony requested he be permitted to file a “‘new direct
appeal’” from his convictions and sentences.
On August 31, 2020, a hearing was held on Anthony’s
motion. At the start of the hearing, Anthony’s new counsel
indicated her belief that the hearing was merely to determine
whether Anthony was entitled to an evidentiary hearing on
the allegations raised in his motion. However, the district
court explained that it was ready to go forward and determine
whether Anthony was entitled to a new direct appeal based on
the allegations made in Anthony’s motion. The court stated,
“So I guess my thought was that you would mark his verified
motion and offer it, and then I would just rule on whether
he gets a new direct appeal.” After the motion was marked
as an exhibit and received by the court, the court inquired of
counsel whether she wished to offer any additional evidence.
Anthony’s counsel responded that she had no further evidence.
- 846 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839The county attorney responded “I do not have any, Your
Honor.” The court then explained:
I agree; . . . Anthony really did do a pretty good job both
on the motion and the brief. I reviewed the case law that
he supplied and I do believe that he is entitled to a direct
appeal. He received a fairly lengthy sentence, and I think
it would be kind of a shame if he didn’t have the oppor-
tunity to appeal that sentence.
And so the Court is going to make a finding that . . .
Anthony’s trial counsel was ineffective in that he failed to
withdraw and he failed to file an appeal on behalf of his
client after his client was sentenced to a lengthy prison
term, and so I am going to grant . . . Anthony’s requested
relief and grant him a new direct appeal.
Anthony promptly filed a new notice of appeal from his
convictions and sentences.
III. ASSIGNMENTS OF ERROR
Anthony asserts that the district court erred in determining
that he was a habitual criminal and in imposing excessive sen-
tences. Anthony also asserts that he received ineffective assist­
ance of counsel because trial counsel failed to hire or consult
with an accident reconstructionist and failed to “zealously con-
test” the habitual criminal enhancement.
On cross-appeal, the State asserts that the district court erred
in granting Anthony postconviction relief without first con-
ducting an evidentiary hearing and making findings of fact and
conclusions of law.
IV. STANDARD OF REVIEW
[1] The procedural issues presented by the State’s cross-
appeal arise under the Nebraska Postconviction Act. Neb. Rev.
Stat. §§ 29-3001 to 29-3005 (Reissue 2016 & Cum. Supp.
2018). Statutory interpretation presents a question of law, and
an appellate court resolves such issues independently of the
lower court’s conclusions. State v. Jim, 275 Neb. 481, 747
N.W.2d 410 (2008).
- 847 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839[2] A claim that defense counsel provided ineffective assist­
ance presents a mixed question of law and fact. State v. Sidzyik,
281 Neb. 305, 795 N.W.2d 281 (2011). The fact that an ineffec-
tive assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. Id. The determin-
ing factor is whether the record is sufficient to adequately
review the question. Id.[3,4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. State v. Clausen, 307 Neb. 968, 951 N.W.2d 764(2020). An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. State v. Senteney, 307 Neb. 702, 950 N.W.2d
585 (2020).
V. ANALYSIS
1. State’s Cross-Appeal
We first address the issue raised in the State’s cross-appeal.
Essentially, the State argues that the district court erred in
granting Anthony postconviction relief in the form of a new
direct appeal without having first held an evidentiary hearing
to determine whether Anthony could prove the allegations con-
tained in his motion. Ultimately, we conclude that the district
court did hold an evidentiary hearing, albeit cursory, and that,
as such, the court did not err in granting Anthony postconvic-
tion relief without conducting such a hearing.
[5] Under the Nebraska Postconviction Act:
Unless the motion and the files and records of the case
show to the satisfaction of the court that the prisoner is
entitled to no relief, the court shall . . . grant a prompt
hearing thereon, and determine the issues and make find-
ings of fact and conclusions of law with respect thereto.
§ 29-3001(2). In State v. Jim, supra, the Nebraska Supreme
Court interpreted this statutory language to require a court to
grant an evidentiary hearing on a motion for postconviction
- 848 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839relief when the motion contains factual allegations which, if
proved, constitute an infringement of the movant’s rights under
the Nebraska or federal Constitution. The court held that if a
lower court grants such an evidentiary hearing, it is obligated
to determine the issues and make findings of fact and conclu-
sions of law with respect thereto. Id.In State v. Jim, supra, the district court granted the pris­
oner’s motion for postconviction relief in the form of a new
direct appeal without holding any hearing on the motion.
Instead, 6 months after the motion was filed, the court entered
an order finding, solely on the basis of its review of the motion
for postconviction relief, that said motion should be granted.
On appeal, the Supreme Court reversed the decision of the dis-
trict court and remanded the cause for further proceedings. Id.The court held that the district court “erred in the exercise of
its jurisdiction by granting postconviction relief without con-
ducting an evidentiary hearing and making findings of fact and
conclusions of law.” Id. at 488, 747 N.W.2d at 416.
Similarly, in State v. Epting, 276 Neb. 37, 751 N.W.2d 166(2008), the Supreme Court reversed the order of the district
court granting the prisoner postconviction relief in the form of
a new direct appeal and remanded the cause, because the court
did not first conduct an evidentiary hearing on the allegations
raised in the motion.
In State v. Murphy, 15 Neb. App. 398, 727 N.W.2d 730(2007), this court addressed a related procedural issue. In that
case, the defendant did not file a timely appeal following her
conviction. In a subsequent postconviction proceeding, she
and the State stipulated that she should be permitted to file
an appeal, and the district court entered an order granting the
stipulation and permitting the appeal to be filed. The record on
appeal included the stipulation and order but did not include
the motion for postconviction relief. The only record before
the Nebraska Court of Appeals was a stipulation that provided
no facts pertaining to any claimed deprivation of constitutional
rights, but, rather, “only the bare conclusory agreement that
‘an Appeal’ be allowed,” and the order of the district court
- 849 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839implementing the stipulation. Id. at 404, 727 N.W.2d at 735.
Noting that parties cannot stipulate to matters of law, the
Court of Appeals held that “the stipulation was not sufficient
to invoke the district court’s jurisdiction pursuant to the post-
conviction statute and constituted an invalid attempt to extend
the time for appeal.” Id. We concluded that we therefore lacked
appellate jurisdiction, and we dismissed the purported new
direct appeal.
In this case, the district court held a hearing on Anthony’s
motion for postconviction relief, and that motion is included
in our record. Apparently, counsel for Anthony believed that
the hearing was “just to determine whether or not [Anthony
is] entitled to [an evidentiary] hearing on his post-conviction
[motion].” It is possible that the prosecutor may have had a
similar impression, but the record is not clear on this issue.
Contrary to the belief of counsel, the district court indicated
its intention to immediately proceed to an evidentiary hear-
ing. At the hearing, the district court directed that a copy of
Anthony’s verified motion for postconviction relief be marked
and then received it into evidence. The court inquired of both
defense counsel and the prosecutor regarding whether any
additional evidence would be presented at the hearing. Notably,
not only did the State indicate that it had no additional evi-
dence to offer, the State did not object to the district court’s
holding an evidentiary hearing at that time and did not ask for
a continuance to obtain further evidence.
We have carefully reviewed the record from the hearing held
on Anthony’s motion for postconviction relief. Based upon
this careful review, we find that the district court did hold an
evidentiary hearing on the motion. The court received the veri-
fied motion as an exhibit and inquired of the parties whether
any other evidence would be offered. The parties declined the
opportunity to present further evidence, and as a result, the dis-
trict court based its decision to grant Anthony postconviction
relief on the recitations contained in his verified motion, the
sole piece of evidence before it.
- 850 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839The question that we must resolve is whether the cursory
procedure followed by the district court runs afoul of the hold-
ings of State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008);
State v. Epting, 276 Neb. 37, 751 N.W.2d 166 (2008); and State
v. Murphy, 15 Neb. App. 398, 727 N.W.2d 730 (2007). While
we believe that a strong argument can be made that the proce-
dure followed by the district court runs contrary to the holdings
of these cases, there are distinguishing factors present. Most
significantly, here, an evidentiary hearing was held. The court
did direct that a copy of the verified motion be marked and
then received it into evidence. The court then afforded counsel
for Anthony and the State the opportunity to present additional
evidence. Neither chose to do so. In addition, the State made
no motion for a continuance so as to allow it time to gather
evidence which may rebut Anthony’s allegations. Therefore,
we cannot agree with the State’s contention on appeal that the
court failed to conduct an evidentiary hearing. While we rec-
ognize that the court may have surprised counsel for the parties
with its decision to immediately hold an evidentiary hearing,
the State had the ability to either present evidence, object to the
court’s procedure, or ask for a continuance. The State declined
to utilize any of these options.
We recognize that the more typical procedure under these
circumstances would involve the district court’s first making
an explicit determination regarding whether an evidentiary
hearing is necessary based upon the allegations contained in
the motion for postconviction relief. The district court could
then notify the parties of its determination and schedule an evi-
dentiary hearing at some point in the future. See, e.g., State v.
Combs, 308 Neb. 587, 955 N.W.2d 322 (2021); State v. Russell,
308 Neb. 499, 954 N.W.2d 920 (2021). This procedure would
provide the parties with notice and an opportunity to obtain
more detailed relevant evidence relating to any interactions
that may have occurred between Anthony and trial counsel
following sentencing. The summary procedure employed by
the district court in this case appeared to result in confusion.
- 851 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839Here, when the district court failed to announce its determina-
tion that an evidentiary hearing was warranted in advance of
holding an evidentiary hearing, defense counsel and the State
received no notice that they should be prepared to offer evi-
dence in support of or in opposition to Anthony’s motion for
postconviction relief. However, in this case, because an evi-
dentiary hearing did occur and because the State did not object
to the court’s summary procedure or ask for a continuance to
obtain further evidence, we cannot say that the district court
erred by granting Anthony a new appeal.
2. Ineffective Assistance of Counsel
We next address Anthony’s claims of ineffective assistance
of trial counsel. On appeal, Anthony alleges that he received
ineffective assistance of trial counsel in two respects. First,
he argues that his trial counsel failed to hire or consult with
an accident reconstructionist regarding the circumstances sur-
rounding the accident. Second, he argues that his trial counsel
failed to “zealously contest the Habitual Criminal enhancement
by raising the issue involving the double enhancement.” Before
we address Anthony’s specific allegations of ineffective assist­
ance of trial counsel, we recount the law which overlays our
analysis of these claims.
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,
in order to preserve such claim. State v. Chairez, 302 Neb. 731,
924 N.W.2d 725 (2019). Once raised, the appellate court will
determine whether the record on appeal is sufficient to review
the merits of the ineffective performance claims. Id.[6] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that it can
be resolved. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571(2014). This is because the trial record reviewed on appeal is
generally “‘devoted to issues of guilt or innocence’” and does
not usually address issues of counsel’s performance. Id. at
- 852 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839769, 848 N.W.2d at 578. The determining factor is whether the
record is sufficient to adequately review the question. State v.
Filholm, supra. An ineffective assistance of counsel claim will
not be addressed on direct appeal if it requires an evidentiary
hearing. State v. Chairez, supra.[7-9] If the record is sufficient to address the ineffective
assistance of counsel claim, an appellate court reviews the
factual findings of the lower court for clear error. Id. With
regard to the questions of counsel’s performance or prejudice
to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), an appellate court reviews such legal deter-
minations independently of the lower court’s decision. State v.
Filholm, supra. To show deficient performance, a defendant
must show that counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law in the
area. State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).
When a conviction is based upon a guilty or no contest plea,
the prejudice requirement for an ineffective assistance of coun-
sel claim is satisfied if the defendant shows a reasonable prob-
ability that but for the errors of counsel, the defendant would
have insisted on going to trial rather than pleading guilty. State
v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).
(a) Failure to Hire or Consult
Accident Reconstructionist
Anthony asserts that his trial counsel provided ineffective
assistance in failing to hire or consult with an independent acci-
dent reconstructionist regarding the circumstances surrounding
the accident. Specifically, he alleges that such an expert could
have shed light on a defect in the gray SUV he was driving at
the time of the accident which caused it to “jerk violently when
[the driver] depress[es] or release[s] the accelerator.” He also
alleges that such an expert could have determined whether the
accident occurred after Anthony had returned to his proper lane
of travel.
- 853 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839We determine that our record is insufficient to review this
claim of ineffective assistance of trial counsel. Our record does
not reveal whether trial counsel consulted with an accident
reconstructionist, or with any other expert, prior to Anthony’s
entering his pleas of no contest. Our record also does not
reveal when, or whether, Anthony informed his counsel of any
possible defect in the gray SUV he was driving at the time of
the accident.
(b) Failure to Challenge Habitual
Criminal Enhancement
Anthony also asserts that his trial counsel provided inef-
fective assistance in failing to adequately defend against the
habitual criminal enhancement. Specifically, Anthony argues
that trial counsel should have argued that a habitual criminal
enhancement was not appropriate given that his offense was
already “enhanced” pursuant to the language of § 28-306. We
conclude that the record is sufficient to address this claim.
We further conclude that Anthony cannot demonstrate he was
prejudiced in any way by counsel’s failure to raise this argu-
ment during the enhancement hearing.
Subject to exceptions not applicable to this case, the habitual
criminal statute provides:
Whoever has been twice convicted of a crime, sentenced,
and committed to prison, in this or any other state or by
the United States or once in this state and once at least
in any other state or by the United States, for terms of
not less than one year each shall, upon conviction of a
felony committed in this state, be deemed to be a habitual
criminal and shall be punished by imprisonment . . . for
a mandatory minimum term of ten years and a maximum
term of not more than sixty years[.]
§ 29-2221(1). In a habitual criminal proceeding, the State’s
evidence must establish with requisite trustworthiness, based
upon a preponderance of the evidence, that (1) the defendant
has been twice convicted of a crime, for which he or she was
sentenced and committed to prison for not less than 1 year;
- 854 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839(2) the trial court rendered a judgment of conviction for each
crime; and (3) at the time of the prior conviction and sentenc-
ing, the defendant was represented by counsel or had know-
ingly and voluntarily waived representation for those proceed-
ings. State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012).
Here, the district court concluded that there were two valid
and usable convictions for purposes of the habitual criminal
enhancement. Anthony does not challenge this conclusion,
which is fully supported by the record. Instead, Anthony argues
that using his felony motor vehicle homicide convictions to
trigger a habitual criminal enhancement would result in an
improper double enhancement.
Motor vehicle homicide is criminalized under § 28-306,
which provides, in relevant part:
(1) A person who causes the death of another uninten-
tionally while engaged in the operation of a motor vehicle
in violation of the law of the State of Nebraska or in
violation of any city or village ordinance commits motor
vehicle homicide.
(2) Except as provided in subsection (3) of this section,
motor vehicle homicide is a Class I misdemeanor.
(3)(a) If the proximate cause of the death of another
is the operation of a motor vehicle in violation of sec-
tion 60-6,213 or 60-6,214, motor vehicle homicide is a
Class IIIA felony.
As charged by the State, Anthony pled no contest to two
Class IIIA felonies under § 28-306(3)(a), based on his will-
ful reckless operation of his vehicle at the time of the acci-
dent which resulted in two deaths pursuant to § 60-6,214.
Anthony argues that he was improperly sentenced as a habitual
criminal because the “enhancement” from a misdemeanor to a
felony under § 28-306(3)(a) results in an impermissible double
enhancement.
Anthony’s argument is definitively refuted by the Supreme
Court’s holding in State v. Kinser, supra. In that case, the court
concluded that the defendant’s conviction for felony flight to
- 855 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839avoid arrest coupled with his status as a habitual criminal did
not constitute an impermissible double enhancement. The court
explained that a reading of the flight to avoid arrest statute,
see Neb. Rev. Stat. § 28-905 (Reissue 2016), clearly indicates
that “the offense of flight to avoid arrest is a misdemeanor
if it involves fleeing in a motor vehicle in an effort to avoid
arrest, whereas the offense becomes a felony . . . if the State
alleges and proves the additional element of willful reckless
operation of a motor vehicle.” State v. Kinser, 283 Neb. at
568, 811 N.W.2d at 233. Because the State was required to
prove an additional element in order to convict the defendant
of felony flight to avoid arrest, there was no “enhancement”
to the defendant’s sentence. Accordingly, there was no double
enhancement when the defendant was sentenced as a habit-
ual criminal.
[10] We find that the Supreme Court’s holding in Kinser
is directly applicable to this case. Anthony’s convictions for
motor vehicle homicide were enhanced to felonies by virtue
of the State’s allegation of the additional element that Anthony
was operating the vehicle in a willful and reckless manner.
Because the State was required to prove an additional element
in order to convict Anthony of felony motor vehicle homicide,
there was no “enhancement” to his sentence. As such, Anthony
was not subjected to an impermissible double enhancement
when he was sentenced as a habitual criminal.
[11] Because the district court properly found Anthony to
be a habitual criminal and sentenced him accordingly, Anthony
cannot demonstrate that he was prejudiced by his counsel’s
failure to raise the issue of “double enhancement” before the
district court. Counsel did not provide ineffective assistance by
failing to raise an unsuccessful argument.
For completeness, we note that in Anthony’s brief to this
court, he acknowledges the Supreme Court’s holding in State
v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012). However, he
encourages this court to “reexamine” the holding in Kinser.
Brief for appellant at 12. We decline Anthony’s invitation
- 856 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839to reexamine Kinser. It is not in this court’s purview to reexam-
ine explicit precedent established by the Supreme Court.
3. Sentencing
Anthony argues on appeal that the district court imposed
excessive sentences. He argues, inter alia, that he should not
have been sentenced as a habitual criminal, because such an
enhancement to his sentences resulted in an impermissible
double enhancement. We conclude that Anthony was properly
classified as a habitual criminal and that the court did not
other­wise abuse its discretion in sentencing him.
(a) Habitual Criminal Enhancement
Anthony argues that the district court erred in enhancing his
sentences based on his status as a habitual criminal because,
when coupled with the enhancement of his convictions for
motor vehicle homicide to felonies based upon the language
of § 28-306, he was subjected to an impermissible double
enhancement. We addressed Anthony’s assertions in this regard
above, in connection with his assertion of ineffective assist­
ance of trial counsel. As such, we do not revisit the issue here.
However, we do note that Anthony failed to raise this issue
before the district court. As such, he is barred from now assert-
ing any such error by the district court. See State v. Nadeem,
284 Neb. 513, 822 N.W.2d 372 (2012) (when issue is raised for
first time in appellate court, it will be disregarded inasmuch as
lower court cannot commit error in resolving issue never pre-
sented and submitted to it for disposition).
(b) Excessiveness in General
Having determined that the district court did not err when it
found Anthony to be a habitual criminal, we consider his argu-
ment that his sentences were excessive. We first note that, as
charged by the State, motor vehicle homicide is a Class IIIA
felony pursuant to § 28-306(3)(a). The sentencing range for a
Class IIIA felony is up to 3 years’ imprisonment in addition
to a term of postrelease supervision. Neb. Rev. Stat. § 28-105- 857 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839(Cum. Supp. 2018). However, because Anthony was found to
be a habitual criminal, § 29-2221(1) sets the sentencing ranges
for Anthony’s convictions as imprisonment for a mandatory
minimum of 10 years and a maximum of 60 years. Therefore,
Anthony’s sentence of imprisonment for 20 to 40 years for
each motor vehicle homicide conviction was within statu-
tory limits.
[12,13] Because the sentences were within statutory limits,
we review the sentences imposed for an abuse of discretion.
See State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016).
When imposing a sentence, a sentencing judge should cus-
tomarily consider 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 com-
mission of the crime. State v. Mora, 298 Neb. 185, 903 N.W.2d
244 (2017). However, the sentencing court is not limited to any
mathematically applied set of factors. Id. 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. Id.Anthony contends that the district court imposed excessive
sentences because the court failed to consider such mitigat-
ing factors as his “tumultuous” past, brief for appellant at 14,
including suffering abuse at the hands of his father as a child
and then later in life, having his pregnant fiance murdered. He
also cites his mental health struggles and lack of intent to harm
anyone at the time of the collision. Anthony also reminds this
court that his habitual criminal status was based upon felony
offenses which occurred more than 20 years prior to the cur-
rent offense.
Based upon our review of the record, it is clear that the
district court was aware of and considered all of the relevant
factors in imposing Anthony’s sentences. Prior to imposing the
- 858 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839sentences, the court explicitly indicated, “I have thoroughly
reviewed the presentence investigation and the victim impact
statements and [Anthony’s] statements.” The court then went
on to give a lengthy statement explaining its sentencing deci-
sion. As a part of this statement, the court discussed its consid-
eration of
[Anthony’s] age and . . . what that means as far as a sen-
tence that you would serve with the Nebraska Department
of Correctional Services. I’ve done a number of different
calculations in determining what the court sentence is
going to be. I have considered your education and expe-
rience, your social and cultural background, your past
criminal record, the nature of the offense, and I’ve also
considered the fact that you qualify as a habitual crimi-
nal and that two people lost their lives during the motor
vehicle accident.
The district court discussed at length Anthony’s criminal his-
tory, with particular attention paid to his numerous traffic-
related convictions.
Upon our review, we cannot find that the district court
abused its discretion in sentencing Anthony to concurrent
terms of 20 to 40 years’ imprisonment for his motor vehicle
homicide convictions. There is nothing in the record to suggest
that the district court failed to consider the relevant statutory
factors. Instead, the record reflects that the court carefully
considered all of the information contained in the presentence
report and presented at the sentencing hearing and ultimately
decided that, given Anthony’s criminal history, his status as
a habitual criminal, and the serious nature of his offenses,
that lengthy prison sentences were warranted. We also note
that despite the length of time that has passed since the prior
felony convictions which were the basis of the district court’s
finding that Anthony was a habitual criminal, these prior con-
victions support the district court’s determination, and as we
have stated above, the district court properly found Anthony
to be a habitual criminal. Moreover, the presentence report
- 859 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. ANTHONY
Cite as 29 Neb. App. 839displays that between his most recent prison sentence imposed
in 1995 and the date he was sentenced in this case, Anthony
has been sentenced in 33 separate cases, some involving mul-
tiple convictions. Though none of these sentences were for
felony offenses, his conduct over the years has demonstrated a
continual disregard for the law. The sentences in this case are
within statutory limits and are supported by the serious nature
of the offenses.
VI. CONCLUSION
We affirm Anthony’s convictions and sentences. The district
court properly found Anthony to be a habitual criminal based
upon his two prior felony convictions. The court did not other­
wise impose excessive sentences. As to Anthony’s claims of
ineffective assistance of trial counsel, we find that the record
on appeal is insufficient to address his claim regarding coun-
sel’s failure to hire an independent accident reconstructionist.
We find his claim regarding counsel’s failure to adequately
defend his habitual criminal status to be without merit.
Affirmed.