State v. Woodruff

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/05/2021 01:08 AM CDT
- 193 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193State of Nebraska, appellee, v.
Johnny R. Woodruff, appellant.
Filed September 28, 2021. Nos. A-20-920, A-20-921.
1. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
court, an appellate court will not disturb a sentence imposed within the
statutory limits.
2. 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.
3. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal presents a question of law,
which turns upon the sufficiency of the record to address the claim
without an evidentiary hearing or whether the claim rests solely on the
interpretation of a statute or constitutional requirement.
4. Effectiveness of Counsel: Appeal and Error. In reviewing claims of
ineffective assistance of counsel on direct appeal, an appellate court
decides only whether the undisputed facts contained within the record
are sufficient to conclusively determine whether counsel did or did not
provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance.
5. Sentences: Appeal and Error. 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 con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
6. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6)
- 194 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193motivation 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.
7. ____. 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.
8. Appeal and Error. An appellate court may, at its option, notice
plain error.
9. ____. Plain error exists where there is an error, plainly evident from
the record but not complained of at trial, which prejudicially affects
a substantial right of a litigant and is of such a nature that to leave it
uncorrected would cause a miscarriage of justice or result in damage to
the integrity, reputation, and fairness of the judicial process.
10. Sentences: Appeal and Error. A sentence that is contrary to the court’s
statutory authority is an appropriate matter for plain error review.
11. Sentences. The trial court’s discretion to direct that sentences be served
either concurrently or consecutively applies equally to terms of impris-
onment and terms of post-release supervision and presumably includes
discretion to make one form consecutive and the other concurrent.
12. ____. Credit for time served is not discretionary, but instead, based on
the record, an absolute and objective number.
13. ____. Whether a defendant is entitled to credit for time served and in
what amount are questions of law.
14. ____. When consecutive sentences are imposed for two or more offenses,
periods of presentence incarceration may be credited only against the
aggregate of all terms imposed.
15. ____. An offender who receives consecutive sentences is entitled to
credit against only the first sentence imposed.
16. Pleas: Waiver. Generally, a voluntary guilty plea or plea of no contest
waives all defenses to a criminal charge.
17. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or
no contest, he or she is limited to challenging whether the plea was
understandingly and voluntarily made and whether it was the result of
ineffective assistance of counsel.
18. Effectiveness of Counsel: Records: Appeal and Error. When a defend­
ant’s counsel is different from his or her counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial counsel’s ineffec-
tive performance which is known to the defendant or is apparent from
the record.
19. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466
- 195 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193U.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.
20. ____: ____. 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.
21. Effectiveness of Counsel: Pleas. In a plea context, deficiency depends
on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
22. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
tion is based upon a guilty or no contest plea, the prejudice requirement
for an ineffective assistance of counsel claim is satisfied if the defend­
ant shows a reasonable probability that but for the errors of counsel,
the defendant would have insisted on going to trial rather than plead-
ing guilty.
23. Effectiveness of Counsel: Proof. The two prongs of the ineffective
assistance of counsel test under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be addressed in
either order.
24. Effectiveness of Counsel: Records: Appeal and Error. Whether a
claim of ineffective assistance of trial counsel can be determined on
direct appeal depends upon the sufficiency of the record to address
the claim to determine whether a defense counsel’s performance was
deficient and whether the defendant was prejudiced by the alleged defi-
cient performance.
25. ____: ____: ____. The record on direct appeal is sufficient if it estab-
lishes either that trial counsel’s performance was not deficient, that the
appellant will not be able to establish prejudice, or that trial counsel’s
actions could not be justified as a part of any plausible trial strategy.
26. Effectiveness of Counsel: Words and Phrases. A claim of ineffective
assistance of counsel that is insufficiently stated is no different than a
claim not stated at all.
27. Effectiveness of Counsel: Appeal and Error. If insufficiently stated,
an assignment of error and accompanying argument will not prevent the
procedural bar accompanying the failure to raise all known or apparent
claims of ineffective assistance of trial counsel.
28. Appeal and Error. Assignments of error regarding ineffective assist­
ance of counsel on direct appeal must be both specifically assigned and
specifically argued.
29. Effectiveness of Counsel. Where the record refutes a claim of ineffec-
tive assistance of trial counsel, no recovery may be had.
- 196 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193Appeals from the District Court for Douglas County:
Marlon A. Polk, Judge. Judgment in No. A-20-920 affirmed
as modified, and cause remanded for resentencing. Judgment in
No. A-20-921 affirmed as modified.
Jon S. Natvig for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Pirtle, Chief Judge, and Moore and Bishop, Judges
Pirtle, Chief Judge.
I. INTRODUCTION
Johnny R. Woodruff appeals from his plea-based convic-
tions and sentences in two separate cases in the district court
for Douglas County. The cases were consolidated both in the
district court and on appeal. Woodruff asserts that the sentences
imposed are excessive and that his trial counsel provided inef-
fective assistance. We affirm as modified in both cases and
remand for resentencing in case No. A-20-920.
II. BACKGROUND
The State charged Woodruff with criminal offenses in three
separate cases. On November 23, 2020, Woodruff agreed to
plead no contest to the charges in the two cases involved in this
appeal in exchange for the State’s dismissal of the charges in
the third case. In case No. A-20-920, Woodruff pled no contest
to one count of third degree domestic assault (second offense),
a Class IIIA felony. In case No. A-20-921, Woodruff pled no
contest to possession of a controlled substance (methamphet-
amine), a Class IV felony.
Prior to accepting Woodruff’s pleas, the district court
advised him that he was giving up certain constitutional
rights, including the right to a jury trial, the right to confront
witnesses against him, the right to present evidence in his
defense, and the right against self-incrimination. The court
- 197 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193additionally advised Woodruff of the charges against him and
the range of penalties. Woodruff stated that he understood
these advisements.
The State provided a factual basis to support Woodruff’s no
contest pleas. In summary, the State would have provided evi-
dence at trial which showed that Woodruff had been involved
in an altercation with his girlfriend. When the girlfriend took
her belongings and began to walk away from him, Woodruff
struck her in the nose twice with the palm of his hand, and he
subsequently followed her down the street while shouting at
her. Woodruff then attempted to take his girlfriend’s bag from
her. After a struggle, he succeeded in taking possession of the
bag and then ran away. Days later, Woodruff was apprehended
by law enforcement pursuant to a felony warrant which had
been issued following the incident with Woodruff’s girlfriend.
At that time, police searched Woodruff’s person and located a
broken pipe and a small bag of methamphetamine. The State
advised the court that Woodruff had a prior conviction for third
degree domestic assault, and Woodruff agreed to stipulate to
the prior conviction.
Woodruff’s trial counsel informed the court that she had
advised Woodruff not to stipulate to the prior domestic assault
conviction, but that Woodruff preferred to “move forward
. . . so we don’t have to get a continuance.” Nevertheless,
Woodruff’s trial counsel averred that she believed the no con-
test pleas were in his best interests.
The district court found beyond a reasonable doubt that
Woodruff understood the nature of the charges; that he under-
stood the possible penalties; and that the pleas were made
freely, knowingly, intelligently, and voluntarily. The court
accepted Woodruff’s no contest pleas and found him guilty on
both counts.
Following the entry of Woodruff’s pleas, the district court
moved directly into sentencing. Woodruff confirmed to the
court that he wished to proceed with sentencing that day. The
court sentenced Woodruff to a term of 364 days’ incarceration
- 198 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193for the third degree domestic assault conviction in case No.
A-20-920 and to 180 days’ incarceration for the possession of
a controlled substance conviction in case No. A-20-921. The
court ordered that the two sentences run consecutively to each
other. The district court gave Woodruff credit for 171 days’ time
served per offense via a separate order entered in each case.
The court additionally ordered Woodruff to serve a 12-month
term of post-release supervision in case No. A-20-921.
On December 15, 2020, Woodruff filed pro se motions to
withdraw his pleas in both cases, accompanied by a sworn
affidavit. The record presented before this court does not show
whether the district court ruled on the motions to withdraw
Woodruff’s pleas. Subsequently, on December 23, Woodruff
filed a notice of intent to appeal in both cases. We granted
the State’s motion to consolidate the cases for disposition in
this court; however, Woodruff has filed separate (albeit nearly
identical) briefs.
III. ASSIGNMENTS OF ERROR
Woodruff assigns that the district court abused its discretion
in imposing excessive sentences. He also assigns that his trial
counsel was ineffective in four respects.
IV. STANDARD OF REVIEW
[1,2] Absent an abuse of discretion by the trial court, an
appellate court will not disturb a sentence imposed within the
statutory limits. State v. Estrada Comacho, 309 Neb. 494, 960
N.W.2d 739 (2021). An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Id.[3,4] Whether a claim of ineffective assistance of trial coun-
sel 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. Lowman, 308 Neb. 482, 954 N.W.2d
- 199 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193905 (2021). In reviewing claims of ineffective assistance
of counsel on direct appeal, an appellate court decides only
whether the undisputed facts contained within the record are
sufficient to conclusively determine whether counsel did or
did not provide effective assistance and whether the defend­
ant was or was not prejudiced by counsel’s alleged deficient
performance. Id.V. ANALYSIS
1. Sentences
(a) Excessive Sentences
Woodruff first assigns that the district court imposed exces-
sive sentences. He argues that the court did not “seriously and
properly” consider appropriate mitigating factors due to the
lack of a presentence investigation report. Brief for appellant
in case No. A-20-920 at 9. He argues that his sentences exceed
the amount of time necessary to provide rehabilitative training
and/or treatment services through the Nebraska Department of
Correctional Services.
Woodruff was convicted of one count of third degree domes-
tic assault (second offense) in violation of Neb. Rev. Stat.
§ 28-323(1) and (4) (Reissue 2016), a Class IIIA felony, and
of one count of possession of a controlled substance (metham-
phetamine) in violation of Neb. Rev. Stat. § 28-416(3) (Cum.
Supp. 2020), a Class IV felony. A Class IIIA felony carries a
possible penalty of up to 3 years’ imprisonment, and a Class
IV felony carries a possible penalty of up to 2 years’ imprison-
ment. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020). The
district court sentenced Woodruff to 364 days’ incarceration for
the third degree domestic assault conviction and a consecutive
sentence of 180 days’ incarceration for the possession of a con-
trolled substance conviction. These sentences are well within
the statutory limits.
[5-7] 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
- 200 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193in considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
imposed. State v. Estrada Comacho, supra. In determining a
sentence to be imposed, relevant factors customarily consid-
ered 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 com-
mission of the crime. 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.Woodruff argues that the district court erred in imposing a
term of 12 months’ post-release supervision for his possession
of a controlled substance conviction in case No. A-20-921,
stating that “if a term of probation was unrealistic, a term of
Supervised Release is nothing more than an opportunity to
fail.” Brief for appellant in case No. A-20-921 at 10. Woodruff
further argues that the district court failed to give adequate
weight to mitigating factors; however, he does not specify
in his brief what those factors are. Importantly, in this case,
Woodruff advised the court that he wished to proceed to sen-
tencing at the same hearing in which he entered his no contest
pleas. Therefore, Woodruff effectively waived his right for
the probation office to complete a presentence investigation
report which may have provided insight into potential mitigat-
ing factors.
Considering Woodruff’s election to forgo a presentence
investigation report and separate sentencing hearing, the fact
that his sentences in both cases are within the lower part of
the sentencing ranges provided by statute, and our standard
of review, we find no abuse of discretion in the sentences
imposed. There is no indication that the district court took
- 201 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193into consideration any inappropriate factors in reaching its
­sentencing determination. This argument fails.
(b) Post-Release Supervision
On appeal, the State notes that although Woodruff does
not assign it as error, the district court committed plain error
by failing to impose a term of post-release supervision on
Woodruff’s third degree domestic assault conviction in case
No. A-20-920. In that case, Woodruff was sentenced to 364
days’ incarceration, and the sentence was ordered to run con-
secutively to Woodruff’s sentence in case No. A-20-921.
[8-10] An appellate court may, at its option, notice plain
error. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
Plain error exists where there is an error, plainly evident from
the record but not complained of at trial, which prejudicially
affects a substantial right of a litigant and is of such a nature
that to leave it uncorrected would cause a miscarriage of jus-
tice or result in damage to the integrity, reputation, and fair-
ness of the judicial process. State v. Galvan, 305 Neb. 513,
941 N.W.2d 183 (2020), modified on denial of rehearing 306
Neb. 498, 945 N.W.2d 888. A sentence that is contrary to the
court’s statutory authority is an appropriate matter for plain
error review. Id.[11] Neb. Rev. Stat. § 29-2204.02(1)(b) (Reissue 2016) pro-
vides that in imposing a sentence for a Class IIIA felony, the
court shall “[i]mpose a sentence of post-release supervision
. . . within the applicable range in section 28-105.” Section
28-105(1) provides that when a defendant is sentenced to a
term of imprisonment following a conviction for a Class IIIA
felony, the court shall impose a maximum term of post-release
supervision of 18 months and a minimum term of 9 months.
The district court failed to impose a period of post-release
supervision in case No. A-20-920. Accordingly, the district
court’s sentence does not comport with the statutory require-
ments and amounts to plain error. Therefore, we must remand
Woodruff’s sentence in case No. A-20-920 with directions
- 202 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193to resentence him in accordance with § 29-2204.02(1)(b).
Pursuant to § 29-2204.02(7)(c), the court must also state
whether the terms of post-release supervision in the two cases
are to be served concurrently or consecutively. See State v.
Galvan, supra (trial court’s discretion to direct that sentences
be served either concurrently or consecutively applies equally
to terms of imprisonment and terms of post-release supervision
and presumably includes discretion to make one form consecu-
tive and the other concurrent).
(c) Sentencing Credit
[12,13] We additionally find plain error with respect to the
district court’s allotted credit to Woodruff for time served.
Credit for time served is not discretionary, but instead, based
on the record, an absolute and objective number. State v. Bree,
285 Neb. 520, 827 N.W.2d 497 (2013). Whether a defendant
is entitled to credit for time served and in what amount are
questions of law. State v. Wills, 285 Neb. 260, 826 N.W.2d
581 (2013).
[14,15] The district court credited Woodruff 171 days’ time
served per offense, thereby granting him a total of 342 days’
time served. The amount of time credited in each case was for
the same period of incarceration. Pursuant to Neb. Rev. Stat.
§ 83-1,106 (Reissue 2014), “[c]redit against the maximum term
and any minimum term shall be given to an offender for time
spent in custody as a result of . . . the conduct on which such
a charge is based.” However, the Nebraska Supreme Court has
clarified that “when consecutive sentences are imposed for two
or more offenses, periods of presentence incarceration may be
credited only against the aggregate of all terms imposed.” State
v. Custer, 292 Neb. 88, 116-17, 871 N.W.2d 243, 264 (2015).
See, also, State v. Williams, 282 Neb. 182, 802 N.W.2d 421(2011) (offender who receives consecutive sentences is enti-
tled to credit against only first sentence imposed). Therefore,
Woodruff should not have been granted 171 days’ time served
per conviction, because the sentences were ordered to be
served consecutively. See State v. Custer, supra.
- 203 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193The district court erred in granting Woodruff 171 days’
credit for time served in both case No. A-20-920 and case
No. A-20-921. We therefore modify the sentencing orders in
both cases to reflect that 171 days’ time served shall be cred-
ited against Woodruff’s sentence in case No. A-20-920 only
and that no credit shall be applied toward his sentence in case
No. A-20-921.
2. Ineffective Assistance of Counsel
[16,17] Woodruff assigns that his trial counsel provided inef-
fective assistance. Generally, a voluntary guilty plea or plea of
no contest waives all defenses to a criminal charge. State v.
Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). Thus, when a
defendant pleads guilty or no contest, he or she is limited to
challenging whether the plea was understandingly and volun-
tarily made and whether it was the result of ineffective assist­
ance of counsel. Id.[18] Woodruff has different counsel on direct appeal than he
did at trial. When a defendant’s 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 perform­
ance which is known to the defendant or is apparent from the
record. Id.[19-23] Generally, to prevail on a claim of ineffective assist­
ance 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 defend­
ant’s defense. State v. Blaha, supra. To show that counsel’s
performance was deficient, a defendant must show that coun-
sel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law. Id. In a plea context, defi-
ciency depends on whether counsel’s advice was within the
range of competence demanded of attorneys in criminal cases.
Id. When a conviction is based upon a guilty or no contest
plea, the prejudice requirement for an ineffective assistance
- 204 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193of counsel claim is satisfied if the defendant shows a reason-
able probability that but for the errors of counsel, the defend­
ant would have insisted on going to trial rather than pleading
guilty. Id. The two prongs of the ineffective assistance of coun-
sel test under Strickland may be addressed in either order. State
v. Blaha, supra.[24,25] Whether a claim of ineffective assistance of trial
counsel can be determined on direct appeal depends upon the
sufficiency of the record to address the claim to determine
whether a defense counsel’s performance was deficient and
whether the defendant was prejudiced by the alleged deficient
performance. State v. Theisen, 306 Neb. 591, 946 N.W.2d 677(2020). The record is sufficient if it establishes either that trial
counsel’s performance was not deficient, that the appellant
will not be able to establish prejudice, or that trial counsel’s
actions could not be justified as a part of any plausible trial
strategy. Id.Woodruff asserts, reordered, that he received ineffective
assistance of trial counsel when his attorney (a) failed to file
pretrial motions, (b) failed to produce mitigating evidence
at sentencing, (c) failed to review discovery with Woodruff,
and (d) failed to provide competent advice regarding the plea
agreement.
(a) Failure to File Pretrial Motions
Woodruff first claims that his counsel was ineffective when
she failed to file pretrial motions. He argues that “[t]hough
requested, no dispositive motions were filed by Trial Counsel
despite his request . . . .” Brief for appellant in case No.
A-20-920 at 12. However, Woodruff does not specify what
motions he requested his trial counsel to file.
[26,27] This allegation of ineffective assistance of counsel
has not been sufficiently pled. The totality of Woodruff’s argu-
ment in support of this claim consists of a single sentence,
quoted above. He does not identify the type of motions his
trial counsel should have filed or the underlying evidence or
- 205 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193facts which would support such motions. It has been held that
a claim of ineffective assistance of counsel that is insufficiently
stated is no different than a claim not stated at all. State v.
Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014). Therefore, if
insufficiently stated, an assignment of error and accompanying
argument will not prevent the procedural bar accompanying
the failure to raise all known or apparent claims of ineffective
assistance of trial counsel. Id.[28] We note that in case No. A-20-920, the domestic
assault case, Woodruff’s trial counsel filed a motion to depose
the alleged victim. In his argument section, Woodruff asserts
that “no deposition was ever taken” and that his counsel was
ineffective for “not pursuing pretrial motions filed.” Brief for
appellant in case No. A-20-920 at 12. However, because he did
not specifically assign as error that his counsel was ineffective
in this respect, we do not consider this issue on appeal. See
State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019) (assign-
ments of error regarding ineffective assistance of counsel on
direct appeal must be both specifically assigned and specifi-
cally argued). Woodruff’s brief in case No. A-20-921, the
possession of a controlled substance case, does assign as error
that trial counsel “failed to file and or follow up on pretrial
motions.” However, the record before this court does not
show any motions filed in that case which trial counsel could
have pursued.
We determine that Woodruff’s allegation of deficient con-
duct related to the filing of pretrial motions has not been pled
with the specificity necessary to avoid a procedural bar.
(b) Failure to Produce Evidence at Sentencing
Woodruff next assigns in both cases that his trial counsel
was ineffective when she failed to produce “mitigating infor-
mation at sentencing which would have resulted in a lesser sen-
tence.” He argues that “at his plea and sentencing hearing the
State could not certify a necessary prior conviction; trial coun-
sel stipulated to the conviction without consulting [Woodruff]
- 206 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193or the record for completeness.” Brief for appellant in case
No. A-20-920 at 12. Aside from the issue of the prior convic-
tion, Woodruff does not specify any other evidence which his
trial counsel failed to present.
To the extent that Woodruff argues his trial counsel
performed deficiently by stipulating to the existence of a
prior domestic assault conviction without properly advising
Woodruff of the consequences, this argument is refuted by
the record.
The record reflects that during a scheduled pretrial hear-
ing, Woodruff’s trial counsel informed the court that the State
had relayed a plea offer to her, but that she had not yet had
an opportunity to discuss the offer with Woodruff. A recess
was held so that Woodruff could confer privately with his
trial counsel. After the hearing resumed, Woodruff’s counsel
stated that Woodruff had decided to accept the State’s offer.
Following the plea colloquy and the reading of the State’s fac-
tual basis, the following conversation took place:
THE COURT: [Defense counsel], anything to add to
that factual basis?
[Defense counsel:] Nothing to add, Judge. [F]or pur-
poses of the plea, my understanding is that [the State]
isn’t able to provide a certified copy of his prior. My
understanding is my client wants to move forward and
stipulate to the prior offense so we don’t have to get
a continuance. I would note that it would be generally
against my advice to do that, but my understanding is
that . . . even though I’ve made this information clear to
[him], he still wants to go forward with the plea today, so
that means that he has to stipulate.
THE COURT: Is that what you want to do, sir?
[Woodruff:] Yes, sir.
THE COURT: Okay. Then, [defense counsel], you
believe the no contest pleas are in his best interests, under
the circumstances?
[Defense counsel:] Yes, Judge.
- 207 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193[29] The record shows that Woodruff was specifically
advised by his trial counsel against stipulating to the existence
of a prior conviction and that he nevertheless confirmed his
desire to proceed with the plea and sentencing. We therefore
conclude that Woodruff cannot prove prejudice resulting from
this alleged failure of his trial counsel. And, where the record
refutes a claim of ineffective assistance of trial counsel, no
recovery may be had. See State v. Liner, 24 Neb. App. 311, 886
N.W.2d 311 (2016).
To the extent that Woodruff intended this assignment of
error to encompass other “mitigating information” which his
trial counsel failed to present, he has not pled this claim with
sufficient specificity to avoid a procedural bar. This argu-
ment fails.
(c) Failure to Review Discovery
Woodruff assigns in both cases that his trial counsel was
ineffective when she “failed to share and review discovery”
with him. He argues that he was informed of the existence of
certain exculpatory evidence which his counsel did not discuss
or review with him prior to the plea hearing.
Because it is not clear what the alleged exculpatory evidence
consisted of, nor what communications Woodruff exchanged
with his trial counsel, we determine that the record on direct
appeal is insufficient to address this claim of ineffective assist­
ance of counsel.
(d) Failure to Offer Competent Advice
Finally, in case No. A-20-290, Woodruff assigns that his trial
counsel “provided deficient advice with respect to pleading,
waiving a trial and to sentencing.” This allegation of ineffec-
tive assistance of counsel has not been sufficiently pled. The
allegation is vague, and Woodruff does not allege the conduct
he claims constituted deficient performance.
We determine that Woodruff’s allegation of deficient advice
which related to pleading, waiving trial, and sentencing has
- 208 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. WOODRUFF
Cite as 30 Neb. App. 193not been pled with the specificity necessary to avoid a proce-
dural bar.
VI. CONCLUSION
We affirm Woodruff’s convictions in both cases. However in
case No. A-20-920, we remand the matter to the district court
for resentencing and to determine whether the post-release
supervision is to be served concurrently or consecutively to
the post-release supervision in case No. A-20-921. Further, we
modify the sentencing orders in both cases to reflect that 171
days’ time served shall be credited against Woodruff’s sentence
in case No. A-20-920 only and that no credit shall be applied
toward his sentence in case No. A-20-921. We also conclude
either that all of Woodruff’s claims of ineffective assistance
of counsel fail or that the record on appeal is insufficient to
address them.
Judgment in No. A-20-920 affirmed as modified,
and cause remanded for resentencing.
Judgment in No. A-20-921 affirmed as modified.