State v. Burger

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. BURGER
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
MARSHALL D. BURGER, APPELLANT.
Filed June 18, 2019. Nos. A-18-1036 through A-18-1039.
Appeals from the District Court for Gage County: RICKY A. SCHREINER, Judge. Affirmed.
Timothy S. Noerrlinger for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
MOORE, Chief Judge.
INTRODUCTION
Marshall D. Burger appeals from his plea-based convictions in four cases, cases Nos.
A-18-1039 (the burglary/first revocation case), A-18-1038 (the theft/second revocation case),
A-18-1037 (the first 2018 case), and A-18-1036 (the second 2018 case), in the district court for
Gage County. The revocation cases arise from motions filed by the State of Nebraska, seeking to
revoke the terms of postrelease supervision Burger was serving for his convictions for attempted
burglary and theft committed in 2016. The motions were filed after Burger committed additional
thefts in 2018 that led to the charges in the 2018 cases. In all four appeals, Burger asserts that the
court imposed excessive sentences. He also asserts that he received ineffective assistance of trial
counsel. Upon our review, we find the record inadequate to address two of Burger’s assertions
regarding ineffective assistance of counsel; his other assertion fails for the reasons discussed
herein. Additionally, we find that Burger’s sentences in these cases were not excessive.
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BACKGROUND
Sentences Imposed for 2016 Crimes.
On June 1, 2017, Burger was sentenced for his plea-based convictions in the burglary and
theft cases underlying the current revocation cases. For attempted burglary, a Class III felony, the
district court sentenced Burger to 90 days in jail with no credit for time served and 2 years’
postrelease supervision. For theft by taking (value of more than $1,500 but less than $5,000), a
Class IV felony, the court sentenced Burger to 180 days in jail with credit for 102 days’ time served
and 12 months’ postrelease supervision. The court ordered that Burger serve the sentence in the
theft/second revocation case consecutively to the sentence imposed the burglary/first revocation
case. Burger began his period of postrelease supervision on July 18.
Period of Postrelease Supervision.
While on postrelease supervision, Burger tested positive for marijuana 12 times, had 13
unexcused absences from testing, and had 10 administrative sanctions issued against him. In the
burglary/first revocation case, Burger had custodial sanctions imposed on four separate occasions,
and he served a total of 48 days in jail. In the theft/second revocation case, Burger had custodial
sanctions imposed twice, and he served a total of 16 days in jail.
On July 9, 2018, the State file motions to revoke Burger’s postrelease supervision in both
cases, alleging that Burger’s arrest in May for two counts of theft by unlawful taking and one count
of driving under suspension had violated the terms of his orders for postrelease supervision.
First 2018 Case and Plea Hearing.
The first 2018 case was initiated on June 21, 2018, when the State filed an information in
the district court, charging Burger with theft by taking (value more than $5,000), in violation of
Neb. Rev. Stat. § 28-511 (Reissue 2016), a Class IIA felony; second offense theft by taking (value
of $500 or less), in violation of § 28-511, a Class I misdemeanor; and driving under suspension,
in violation of Neb. Rev. Stat. § 60-4,108(2) (Cum. Supp. 2018), a Class III misdemeanor.
On August 2, 2018, a plea hearing was held before the district court, addressing Burger’s
pleas in the first 2018 case and both revocation cases. In exchange for Burger’s admissions to
violating the terms of his postrelease supervision in both of the revocation cases and his plea of no
contest in the first 2018 case, the State reduced the first count in the first 2018 case to a charge of
attempted theft by taking (value more than $5,000), a Class IIIA felony. The State filed a
corresponding amended information in the first 2018 case.
During the August 2018 plea hearing, the district court advised Burger of the allegations
in the revocation cases, his rights, and the possible dispositions if he was found to have violated
the terms and conditions of his postrelease supervision, and Burger indicated his understanding of
the court’s advisement. Burger then informed the court that he wished to admit to the allegations
in both revocation cases.
Before accepting Burger’s admissions in the revocation cases, the district court questioned
him further. The court asked Burger his name, age, and level of education and inquired about his
consumption of alcohol and drugs in the preceding 24 hours. Burger informed the court that he
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had not consumed any alcohol or consumed, ingested, or inhaled any drugs in that period. He also
informed the court that he was not experiencing any confusion and that he believed he understood
the court proceedings. Finally, he affirmed his understanding that if he admitted to the violations
of his postrelease supervision, there would be no trial, and he informed the court that no one had
threatened him or made promises other than those found in the plea agreement to get him to admit
to the allegations. The State provided a factual basis, indicating that the terms of Burger’s
postrelease supervision in both revocation cases required him to obey “the laws of any state” and
that in May 2018 Burger had been arrested for two counts of alleged theft and one count of alleged
driving under suspension in Gage County. The court found that Burger had waived his rights and
entered his admissions freely, voluntarily, knowingly, and intelligently. The court accepted his
admissions, and it found that he did violate the terms of his postrelease supervision in both
revocation cases. The court also ordered a presentence investigation (PSI).
Next, the district court advised Burger of the nature of the charges to which he was pleading
in the first 2018 case and the possible penalties for those charges. Burger indicated his
understanding of the court’s advisement as well as his understanding of the various constitutional
rights he would be waiving by pleading to the amended information. Burger informed the court
that he had had enough time to talk to his attorney about the first 2018 case, had told his attorney
everything he knew about the case, had discussed all possible defenses with his attorney, and was
satisfied with the job his attorney had done for him. Burger then entered pleas of no contest to each
charge of the amended information.
According to the factual basis provided by the State for the first 2018 case, while Burger
was on postrelease supervision in the revocation cases, police investigated reports of two vehicles
that were stolen during the overnight hours of May 5 and 6, 2018. After a car was stolen from a
location in Beatrice, Nebraska and a vehicle accident was reported, the car was recovered with
damage related to the accident. Additionally, a pickup with a missing tailgate was reported stolen
approximately one block away from where the damaged car was left. Police reviewed a video
showing a man walking in the area between where the car was recovered and the pickup was stolen.
Based on previous contacts, an officer suspected the man was Burger.
Police were also advised about a missing tablet computer taken from the parking lot of the
location where the car was stolen during the same period. The owner of the tablet was able to map
the tablet’s location over the course of the period since it was stolen. Police located the stolen
tablet and spoke with the person in possession of it, who advised them that Burger had given it to
her a few hours earlier and had wanted her to sell it. The mapped locations of the tablet during the
period in question matched locations relevant to the vehicle thefts and Burger’s residence. The
woman who was in possession of the tablet when it was recovered positively identified Burger in
the video previously reviewed by police.
Police then contacted Burger and advised him of his Miranda rights. After providing
several contradicting statements, Burger admitted that he knew where the stolen pickup was
located, took an officer to its location, and told the officer where to find the keys. When asked
about the car, Burger advised that “they” were driving it prior to Burger being in the car and that
was when “they” got into the accident. The total value of the two stolen vehicles was $5,992, and
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the value of the tablet was under $500. A records check showed that Burger’s driver’s license was
suspended as of January 2017 with no eligibility date.
The district court then found that Burger had waived his rights and entered his no contest
pleas in the first 2018 case freely, voluntarily, knowingly, and intelligently. The court accepted
Burger’s pleas and found him guilty beyond a reasonable doubt of the counts in the amended
information in the first 2018 case, and it ordered a PSI in that case as well. Before the close of the
hearing, Burger also admitted that the second count of the amended information was a second
offense for purposes of enhancement and waived a separate hearing on that issue.
Second 2018 Case and Plea Hearing.
Burger committed additional vehicle thefts in July and August 2018 that led to the charges
in the second 2018 case. On September 18, 2018, the State filed an information in the district court,
charging Burger with theft by taking (value more than $5,000), in violation of § 28-511, a Class
IIA felony; theft by taking (value of $1,500 or more, but less than $5,000), in violation of § 28-511,
a Class IV felony; and driving under suspension, in violation of § 60-4,108(2), a Class III
misdemeanor.
A plea hearing in the second 2018 case was held before the district court on September 20,
2018. In exchange for Burger’s pleas of no contest, the first charge in that case was reduced to
attempted theft by taking (value more than $5,000), a Class IIIA felony and the third count of the
original information was dismissed. The State filed a corresponding amended information in the
second 2018 case.
During the hearing, the district court questioned Burger to “determine how well [he]
underst[oo]d the proceedings.” The court asked Burger about his age, education, and employment
history, as well as his recent consumption of any drugs or alcohol. Burger informed the court that
he had not consumed any alcohol or legal or illegal drugs within the preceding 24 hours; however,
he did inform the court that he was taking certain prescription medication. Specifically, he told the
court he was taking “Clonidine for mental” and “something generic for Abilify.” He had taken
these medications the night before the hearing, when he was supposed to take them, and informed
the court that the Clonidine was not affecting his ability to understand or make decisions. The court
did not ask Burger about the effect of the other medication. Burger told the court that he was not
currently under the care of a psychiatrist or psychologist. At the end of this questioning, the court
determined that Burger was following its questions and giving suitable answers and that his “eyes,
speech and bearing” appeared “to be normal.” Accordingly, the court concluded that Burger was
not then affected by alcohol, narcotics, or other controlled substances.
The district court then advised Burger of the rights he would be waiving by entering his
pleas, as well as the nature of the charges in the amended information in the second 2018 case and
the possible penalties, and Burger indicated his understanding of the court’s advisement. Burger
also informed the court he had discussed all defenses with his attorney, had told his attorney
everything he knew about the second 2018 case, and had had enough time to discuss the case and
was satisfied with his attorney’s representation in that case. Following this discussion, Burger
entered no contest pleas to the charges in the amended information in the second 2018 case.
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According to the factual basis provided by the State for the second 2018 case, police were
advised about certain stolen vehicles: a van worth around $2,825, stolen in late July, and a pickup
worth about $2,000 and a trailer worth about $2,000, both stolen in early August. On July 29,
police were dispatched to the location where the van was found. On August 6, the pickup was
located in a parking garage in Beatrice, Nebraska, but because the keys were missing, it had to
remain where it was. A cell phone was seized from the pickup because it did not belong to the
owner of the pickup. On August 7, the same pickup was found in a different location in Beatrice
and a witness recognized the driver as Burger. Police then contacted Burger and advised him of
his Miranda rights. Burger admitted to stealing the van and parking it; he also admitted to stealing
the pickup and trailer and taking them to Lincoln, Nebraska. He also admitted to leaving the trailer
at a location in Lincoln before returning to Beatrice where he parked the pickup in the first location
where it was found, leaving behind the cell phone. Burger told police that he returned later and
stole the pickup again, leaving it where it was found the second time. Beatrice police contacted
Lincoln police officers, who then located the trailer at the location specified by Burger.
The district court accepted Burger’s no contest pleas as being made freely, voluntarily,
knowingly, and intelligently; found sufficient facts to find him guilty of the charges in the amended
information in the second 2018 case; and continued the previously scheduled sentencing hearing
for the other three cases to allow more time to review the PSI, given the fourth case under
consideration.
Sentencing.
A sentencing hearing in all four cases was held on October 5, 2018. After hearing argument
from the parties and allocution from Burger, the district court stated:
THE COURT: Mr. Burger, [your attorney] is correct, and I think in this courtroom
over and over I’ve tried to put people on probation who are nonviolent, because the prison
system is a violent system right now, and those people that society needs protection from
belong in prison if they are convicted.
If they are -- I try to focus on those people who are physically dangerous who have
caused harm. Otherwise, I trust our probation system and the work that they have done and
they continue to do in trying to solve a problem. You do have a problem. You can’t keep
your hands off other people’s stuff, and we have tried probation.
We had a criminal trespass . . . in [j]uvenile [c]ourt in 20[08], a criminal mischief,
unauthorized use of a propelled vehicle in 2014. They tried a fine in that case. There’s an
amended to disturbing the peace and then in 2014, you had a theft by receiving stolen
property. They tried probation in that case, and your probation was revoked and you were
sentenced to county jail for 30 days to resolve that matter.
In 2016, you had another attempt of a Class II misdemeanor. You had another fine.
I guess they were going to try the fine again and see if that made a difference. In 2017,
possession of controlled substance. The prosecution was declined in that. Your attorney
has [al]luded to some type of substance abuse problem that may be causing you some
issues, and then we have in 2018 . . . . this case -- and then the revocation of post-release
supervision. You may have a substance abuse problem that is causing you problems, but
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it’s causing the community more problems than it’s causing you. Because people’s vehicles
continue to come up missing, and in this case, in two of these cases, we got county time -- is
that right?
DEFENDANT: Yes, Your Honor.
THE COURT: And then put on post-release supervision.
THE COURT: And you were on post-release supervision, which was probation
monitoring to help you not break any more laws, and now we have got two more cases
where you are breaking laws. So you, Mr. Burger, with four cases all involving the same
thing, apparently, county jail, fines, and probation, aren’t working to change your behavior.
The only thing that we haven’t tried is prison. And that’s where you are going today.
In the revocation cases, the district court revoked Burger’s postrelease supervision and
ordered him imprisoned for the remainder of his terms of postrelease supervision, which was 286
days (with 48 days’ credit for time spent in custodial sanctions) in the first revocation case and
365 days (with 16 days’ credit for time served in custodial sanctions) in the second revocation
case. The court ordered that Burger serve the term of imprisonment for the second revocation case
consecutive to the term in the first revocation case.
In sentencing Burger for his convictions in the two 2018 cases, the district court stated that
it had considered all of the factors in Neb. Rev. Stat. § 29-2260 (Reissue 2016) and determined
that probation was not appropriate. In the first 2018 case, the court sentenced Burger to
imprisonment for a term of 2 years for attempted theft, a concurrent term of 1 year for theft, and a
concurrent term of 3 months for driving under suspension. The court gave Burger credit for 26
days’ time served in the first 2018 case, and ordered that the concurrent sentences in that case run
consecutive to the consecutive sentences imposed in the revocation cases. The court also imposed
a period of 18 months’ postrelease supervision in the first 2018 case. In the second 2018 case, the
court imposed concurrent sentences of 2 years’ imprisonment on both counts with credit for 59
days of time served. The court ordered that the sentences in the second 2018 case be consecutive
to the terms imposed in the revocation cases but concurrent with the sentence imposed in the first
2018 case. The court also ordered Burger to serve a period of 18 months’ postrelease supervision
in the second 2018 case to run concurrent with the postrelease supervision period imposed in the
first 2018 case.
Burger subsequently perfected his appeals to this court.
ASSIGNMENTS OF ERROR
In all four cases, Burger asserts that (1) the sentences imposed were excessive and
constituted an abuse of discretion and (2) he received ineffective assistance of trial counsel.
STANDARD OF REVIEW
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). Whether
probation or incarceration is ordered is a choice within the discretion of the trial court, whose
judgment denying probation will be upheld in the absence of an abuse of discretion. State v.
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Cerritos-Valdez, 295 Neb. 563, 889 N.W.2d 605 (2017). 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 conscience, reason, and evidence. State v. Gibson, 302 Neb. 833, 925
N.W.2d 678 (2019).
Whether a claim of ineffective assistance of trial counsel can be determined on direct
appeal presents a question of law, which turns upon the sufficiency of the record to address the
claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a
statute or constitutional requirement. State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019). An
appellate court determines as a matter of law whether the record conclusively shows that (1) a
defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a
defense counsel’s alleged deficient performance. Id.
ANALYSIS
Excessive Sentences.
Burger first asserts that the district court abused its discretion by imposing excessive
sentences in all four cases.
In each of the revocation cases, the district court sentenced Burger to imprisonment for the
remaining period of postrelease supervision, which was 286 days in the first revocation case and
365 days in the second case, to be served consecutively. The court did not abuse its discretion in
doing so.
With respect to revocation of postrelease supervision, Neb. Rev. Stat. § 29-2268(2)
(Reissue 2016) provides, “If the court finds that a probationer serving a term of post-release
supervision did violate a condition of his or her post-release supervision, it may revoke the
post-release supervision and impose on the offender a term of imprisonment up to the remaining
period of post-release supervision.” Because a court has discretion under § 29-2268(2) to impose,
upon revocation, any term of imprisonment up to the remaining period of postrelease supervision,
an appellate court will not disturb that decision absent an abuse of discretion. State v. Phillips, 302
Neb. 686, 924 N.W.2d 699 (2019). The district court did not abuse its discretion by imposing terms
of imprisonment up to the remaining periods of postrelease supervision in the revocation cases.
In the first 2018 case, Burger was convicted of attempted theft by taking (value more than
$5,000), a Class IIIA felony, and sentenced to imprisonment for 2 years; theft by taking (value of
$500 or less), 2d offense, a Class I misdemeanor, and sentenced to imprisonment for 1 year; and
driving under suspension, a Class III misdemeanor, and sentenced to imprisonment for 3 months.
Neb. Rev. Stat. § 28-518 (Reissue 2016); Neb. Rev. Stat. § 28-201 (Cum. Supp. 2018);
§ 60-4,108(2). The court imposed these sentences to run concurrently, but ordered that they be
served consecutively to the sentences in the revocation cases. The court also imposed a period of
18 months’ postrelease supervision. In the second 2018 case, Burger was convicted of attempted
theft by taking (value more than $5,000) and theft by taking (value of $1,500 or more, but less
than $5,000), both Class IIIA felonies, and sentenced to concurrent terms of 2 years’ imprisonment
followed by 18 months’ postrelease supervision. § 28-518. The court ordered that these concurrent
sentences be served consecutively to the sentences in the revocation cases but concurrent with the
sentence in the first 2018 case. Class IIIA felonies are punishable by up to 3 years’ imprisonment
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and 18 months’ postrelease supervision, a $ 10,000 fine, or both; there is no minimum term of
imprisonment, but there is a minimum of 9 months’ postrelease supervision if imprisonment is
imposed. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2018). Class I misdemeanors are punishable by
up to 1 year imprisonment, a $ 1,000 fine, or both; there is no minimum term of imprisonment.
Neb. Rev. Stat. § 28-106 (Reissue 2016). Class III misdemeanors are punishable by up to 3 months’
imprisonment, a $500 fine, or both; there is no minimum term of imprisonment. § 28-106. Thus,
Burger’s sentences in the 2018 cases were within the statutory limits.
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019). In determining a
sentence to be imposed, relevant factors customarily considered and applied are the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past
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. However, the sentencing court is not limited in its discretion to any mathematically applied set
of factors. State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019). 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. State v. Garcia, supra.
Burger acknowledges that the sentences imposed in all of the cases on appeal were within
the statutory limits, but he argues that the court abused its discretion by sentencing him to lengthy
imprisonment rather than imposing probation or lesser periods of incarceration.
Factors listed in § 29-2260(3) to be considered by a court when considering whether to
withhold a sentence of imprisonment and grant probation, include:
(a) The crime neither caused nor threatened serious harm;
(b) The offender did not contemplate that his or her crime would cause or threaten
serious harm;
(c) The offender acted under strong provocation;
(d) Substantial grounds were present tending to excuse or justify the crime, though
failing to establish a defense;
(e) The victim of the crime induced or facilitated commission of the crime;
(f) The offender has compensated or will compensate the victim of his or her crime
for the damage or injury the victim sustained;
(g) The offender has no history of prior delinquency or criminal activity and has
led a law-abiding life for a substantial period of time before the commission of the crime;
(h) The crime was the result of circumstances unlikely to recur;
(i) The character and attitudes of the offender indicate that he or she is unlikely to
commit another crime;
(j) The offender is likely to respond affirmatively to probationary treatment; and
(k) Imprisonment of the offender would entail excessive hardship to his or her
dependents.
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In these cases, the record indicates that the district court carefully considered relevant
factors and did not abuse its discretion in either declining to impose probation or in the length of
imprisonment imposed. Burger was 22 years old at the time of sentencing, had a high school
education, and was unemployed and on disability. In terms of criminal history, Burger had a
juvenile adjudication for criminal mischief for which he received and successfully completed
probation. As an adult, Burger was previously convicted of criminal mischief, disturbing the peace,
misdemeanor theft by receiving stolen property, and criminal trespass. As an adult, he has
previously been fined, sentenced to probation (which was revoked), or received jail sentences.
Burger had received Social Security disability payments since graduating high school due to
“ADHD, Bipolar Disorder and depression.” He advised the probation officer conducting the PSI
that he attempted to work for a construction company for 2 weeks but was unable to complete the
work required due to his mental health condition.
As part of the PSI, Burger completed various substance use assessments: he scored in the
moderate to high risk range for substance abuse on the Simple Screening Instrument; on the
Substance Abuse Questionnaire he scored in the medium risk range on the truthfulness and stress
coping scales, the problem risk range on the aggressiveness scale, and the maximum risk range on
the drugs, violence, and antisocial scales. On the level of service/case management inventory
Burger scored as a high risk for recidivism in the criminal history, leisure/recreation, antisocial
pattern domains and as medium risk in the companions, alcohol/drug problem, and procriminal
attitude/orientation domains. Due to “the seriousness of this offense and the defendant having a
prior term of Probation revoked,” the probation officer recommended “a short term of
incarceration” and the imposition of various conditions with any term of postrelease supervision.
Burger argues that the district court fashioned sentences to fit the crimes rather than him
as a defendant and that the court placed too much emphasis on his prior criminal history. We
disagree. The court clearly considered the relevant sentencing factors, and in reciting Burger’s
criminal history at the hearing, it was specifically taking note of what sentences had been imposed
previously, which had not deterred Burger from further criminal activity, particularly thefts. In
other words, the court tailored the sentences in this case to the crimes at issue, the protection of
the public, and the particular inclinations of this defendant. Given the failure of previous lesser
sentences to deter Burger’s criminal activity, the court declined to award probation and imposed
sentences of incarceration.
Based upon the record before us, we find no abuse of discretion in the imposition of
sentences of incarceration rather than probation, the length of the sentences imposed, or in the
decision to impose certain sentences consecutively rather than concurrently.
Ineffective Assistance of Trial Counsel.
Burger asserts that he received ineffective assistance of trial counsel in various regards. He
is represented on direct appeal by different counsel than trial counsel. 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. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). The fact that an
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ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it
can be resolved. Id. The determining factor is whether the record is sufficient to adequately review
the question. Id.
Appellate courts have generally reached ineffective assistance of counsel claims on direct
appeal only in those instances where it was clear from the record that such claims were without
merit, or in the rare case where trial counsel’s error was so egregious and resulted in such a high
level of prejudice that no tactic or strategy could overcome the effect of the error, which effect was
a fundamentally unfair trial. State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019). An
ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing. State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019).
When an ineffective assistance of counsel claim is raised in a direct appeal, the appellant
is not required to allege prejudice; however, an appellant must make specific allegations of the
conduct that he or she claims constitutes deficient performance by trial counsel. State v. Sundquist,
supra. General allegations that trial counsel performed deficiently or that trial counsel was
ineffective are insufficient to raise an ineffective assistance claim on direct appeal and thereby
preserve the issue for later review. Id. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance 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. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
An ineffective assistance of counsel claim made on direct appeal can be found to be without merit
if the record establishes that trial counsel’s performance was not deficient or that the appellant
could not establish prejudice. State v. Spang, 302 Neb. 285, 923 N.W.2d 59 (2019).
Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show
that his or her counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense. State v. Mrza, supra. To show that counsel’s performance was
deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. Id. When a conviction is based upon a guilty or no
contest plea, 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 guilty or no contest. State v. Barrera-Garrido,
296 Neb. 647, 895 N.W.2d 661 (2017). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). The
two prongs of the ineffective assistance of counsel test under Strickland v. Washington, supra, may
be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong
presumption that counsel’s actions were reasonable. State v. Taylor, 300 Neb. 629, 915 N.W.2d
568 (2018).
Burger first argues that his trial counsel was ineffective for failing to file a motion to contest
his competency to stand trial. In support of his argument, he refers to several instances of confused
behavior. He asserts that members of his family recall several instances during the pendency of
this case where his behavior or responses seemed confused when he was conversing with his trial
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counsel. He argues that this indicates he was struggling with understanding the nature of the
proceedings, comprehending his own condition, and that he was unable to assist his attorney in
making a rational defense. Burger also asserts that more than a month after he was sentenced, his
appellate counsel observed him displaying concerning behavior where Burger indicated a basic
lack of understanding about his sentence or the appellate process. Although the record on appeal
does not include evidence of these instances of alleged confusion, the record from Burger’s plea
hearings is sufficient to address this claim on direct appeal.
A person is competent to plead or stand trial if he or she has the capacity to understand the
nature and object of the proceedings against him or her, to comprehend his or her own condition
in reference to such proceedings, and to make a rational defense. State v. Garcia, 302 Neb. 406,
923 N.W.2d 725 (2019). The test of mental capacity to plead is the same as that required to stand
trial. State v. Hessler, 295 Neb. 70, 886 N.W.2d 280 (2016). In order to demonstrate prejudice
from counsel’s failure to investigate competency and for failing to seek a competency hearing, the
defendant must demonstrate that there is a reasonable probability that he or she was, in fact,
incompetent and that the trial court would have found him or her incompetent had a competency
hearing been conducted. Id.
Here, Burger’s responses to questions from the district court during the plea colloquies at
both the August and September 2018 plea hearings were appropriate and reflected his knowledge
that he was appearing in court for the purpose of no contest and/or guilty pleas and that he
understood the consequences of such actions as they were explained to him by the judge.
At the August 2018 hearing, in response to the court’s inquiries, Burger indicated that he
understood the plea agreement, the nature of the violations alleged, his various rights, and the
possible dispositions in the revocation cases. At that point in the hearing, an attorney had only
been appointed to represent him in the first 2018 case. The court granted Burger’s request to have
the same attorney appointed to represent him in the revocation cases, after which Burger informed
the court that he wished to admit the allegations in the revocation cases. Next, the court asked
Burger a series of questions relevant to his competency to enter admissions and no contest pleas.
In response to these questions, Burger advised the court of his age and educational level and told
the court he had not consumed any alcohol or drugs in the preceding 24 hours. He also told the
court that he was not then experiencing any confusion, that he believed he understood the court
proceedings, and that he understood that his admission to the allegations in the revocation cases
meant there would be no trial and the State would not have to prove he violated his postrelease
supervision. After the State established a factual basis for the revocation cases, the court found
that Burger understood the consequences of admitting to the allegations and his rights and that he
was waiving those rights and his admissions in the revocation cases freely, voluntarily, knowingly,
and intelligently. A similar exchange of questions and answers between Burger and the court took
place during the portion of the August plea hearing devoted to the first 2018 case. Burger again
indicated he understood the terms of the plea agreement, the nature of the charges and possible
penalties in the first 2018 case, his various rights, and the consequences of waiving his rights and
entering no contest pleas. He informed the court that he had had sufficient time to discuss the case
with his attorney and was satisfied with the job his attorney had done. The court found that Burger
fully understood the charges, the possible penalties, and his rights and that he was waiving those
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rights and entering his no contest pleas in the first 2018 case freely, voluntarily, knowingly, and
intelligently.
A similar plea colloquy occurred during the September 2018 hearing where Burger entered
no contest pleas in the second 2018 case. As with the previous plea hearing, Burger’s responses to
the district court’s advisements and inquiries were appropriate and reflected his knowledge that he
was appearing to enter no contest pleas and that he understood the consequences of doing so. The
court again asked Burger questions to determine how well he understood the proceedings. In
response, Burger provided his name, age, and educational level, all of which were consistent with
the responses he provided during the previous hearing. He also told the court about his
unemployment status, receipt of disability payments, and the last time he had been employed. He
informed the court that he had not consumed any alcohol or drugs (other than certain prescription
drugs he discussed with the court) in the preceding 24 hours. With respect to the prescription drugs
he was taking, Burger informed the court that he had taken them the night before, as prescribed,
and that one of the drugs (about which the court inquired) was not affecting his ability to make
decisions or understand the court proceedings. He also informed the court that he was not under
the care of a psychiatrist or psychologist. At the conclusion of this exchange, the court noted that
Burger was following the court’s questions, providing suitable answers, and appeared “to be
normal” physically in terms of “his eyes, speech and bearing.” The court concluded that Burger
was not at that time affected by alcohol, narcotics or other controlled substances. The court then
proceeded with the balance of the plea hearing in the second 2018 case, and the record reflects
Burger’s appropriate responses to the court’s additional inquiries and advisements.
In sum, the record does not demonstrate that Burger’s trial counsel was ineffective for
failing to investigate his competency or for failing to seek a competency hearing.
Next, Burger argues that his trial counsel was ineffective for failing to file a motion to
suppress his statements made on May 6 and August 7, 2018, to officers of the Beatrice Police
Department. Burger claims he was under the influence of alcohol and marijuana at the time he was
interviewed by officers on May 6 in connection with the first 2018 case and that his trial counsel
performed deficiently by failing to schedule depositions of the specific officers who interviewed
him to determine the exact nature of the signs of intoxication he was showing at the time and by
failing to file a motion to suppress Burger’s statement. Burger makes similar allegations about his
counsel’s failures with respect to Burger’s interview by a third police officer after his arrest on
August 7 in the second 2018 case, although in connection with that interview Burger only claims
that he advised his attorney that he was under the influence of alcohol at the time of that interview.
The State asserts that the record affirmatively disproves Burger’s claims to be under the influence
of at least alcohol at the time of either of these statements, given his statements to the probation
officer during the PSI that he has not consumed alcohol since January 2017. The State otherwise
acknowledges that the record is insufficient to review this claim on direct appeal. Burger’s
statements to the probation officer at the time of the PSI do not reveal anything about what he told
his attorney prior to the plea hearings in these cases about being under the influence of alcohol
and/or marijuana at the time of his police interviews. Burger’s second and third claims of
ineffective assistance of trial counsel involve discussions between Burger and his attorney, as well
as his attorney’s strategic decisions about whether to file any suppression motions. Since these
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conversations are not part of the record, the record is insufficient to address these claims on direct
appeal.
CONCLUSION
The district court did not abuse its discretion in sentencing Burger. The record on direct
appeal is insufficient to address two of Burger’s claims of ineffective assistance of trial counsel;
his other claim fails for the reasons discussed above.
AFFIRMED.
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