ineffective assistance of counsel claim in Nebraska

2026State v. Anderson, 305 Neb. 978 , 943 N.W.2d 690 (2020).

2020Ed. 2d 674 (1984); State v. Avina-Murillo, 301 Neb. 185 , 917 N.W.2d 865 (2018). 7 See State v. Lee, 304 Neb. 252 , 934 N.W.2d 145 (2019). 8 State v. Iddings, 304 Neb. 759 , 936 N.W.2d 747 (2020). - 986 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. ANDERSON Cite as 305 Neb. 978 that of a lawyer with ordinary training and skill in criminal law. 9 To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient per- formance, the result of the proceeding would have been dif- ferent. 10 A reasonable probability is a probability su

2018The fact that an ineffective assistance of counsel claim is raised on direct appeal does - 490 - Nebraska Supreme Court A dvance Sheets 301 Nebraska R eports STATE v. GOLYAR Cite as 301 Neb. 488 not necessarily mean that it can be resolved.

2018When 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 postconvic- tion proceeding.19 [16,17] 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

2022STANDARD OF REVIEW [1] A jurisdictional question which does not involve a fac- tual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court’s decision. 3 [2,3] A sentence imposed within the statutory limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court. 4 A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly unten- able, unfairly depriving a litigant of a substantial right and denying a just result in matte

2022We find the first claim sufficiently raised but not determinable on direct appeal, and we find the second claim is not sufficiently raised. [17] 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 perform­ ance which is known to the defendant or is apparent from the record. 52 Otherwise, the ineffective assistance of trial counsel issue will be procedurally barred. 53 Once raised, the appellate court will determine whether the record on appeal is sufficient to review the merit

2019That said, we emphasize that in the context of direct appeal, like the requirement in postconviction 26 Id. 27 State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014). - 50 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. STELLY Cite as 304 Neb. 33 proceedings, mere conclusions of fact or law are not sufficient.28 [14] 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)

2019Although specific allegations of prejudice are not required to be alleged on direct appeal, see State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014), an ineffective assistance of counsel claim can be found to be without merit if the record establishes that prejudice could not be established, see State v. Sundquist, 301 Neb. 1006 , 921 N.W.2d 131 (2019) (ineffective assistance of counsel claim made on direct appeal can be found to be without merit if - 16 - record establishes that trial counsel’s performance was not deficient or that appellant could not establish prejudice).

2022State v. Mendez-Osorio, 297 Neb. 520 , 900 N.W.2d 776 (2017).

2022State v. Mendez-Osorio, 297 Neb. 520 , 900 N.W.2d 776 (2017).

2019Ed. 2d 674 (1984). 47 State v. Ash, 293 Neb. 583 , 878 N.W.2d 569 (2016). 48 Id. 49 State v. Amaya, 276 Neb. 818 , 758 N.W.2d 22 (2008). - 117 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MANJIKIAN Cite as 303 Neb. 100 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 plead- ing guilty.50 The likelihood of the defense’s success had the defendant insisted on going to trial is relevant to

2019Ed. 2d 674 (1984). 47 State v. Ash, 293 Neb. 583 , 878 N.W.2d 569 (2016). 48 Id. 49 State v. Amaya, 276 Neb. 818 , 758 N.W.2d 22 (2008). - 117 - Nebraska Supreme Court A dvance Sheets 303 Nebraska R eports STATE v. MANJIKIAN Cite as 303 Neb. 100 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 plead- ing guilty.50 The likelihood of the defense’s success had the defendant insisted on going to trial is relevant to

2019That said, we emphasize that in the context of direct appeal, like the requirement in postconviction 26 Id. 27 State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014). - 50 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. STELLY Cite as 304 Neb. 33 proceedings, mere conclusions of fact or law are not sufficient.28 [14] 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)

2019That said, we emphasize that in the context of direct appeal, like the requirement in postconviction 26 Id. 27 State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014). - 50 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. STELLY Cite as 304 Neb. 33 proceedings, mere conclusions of fact or law are not sufficient.28 [14] 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)

2026State v. Hill, 298 Neb. 675 , 905 N.W.2d 668 (2018), disapproved on other grounds, State v. Falcon, 319 Neb. 911 , 25 N.W.3d 462 (2025).

2018The determining factor is whether the record is sufficient to adequately review the question.55 An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing.56 We conclude that the record is sufficient to address some, but not all, of Hill’s ineffective assistance claims. [14,15] In order to show ineffective assistance of counsel under Strickland v. Washington,57 a defendant must show, first, that counsel was deficient and, second, that the deficient per- formance actually caused prejudice to the defendant’s case.58 The two prongs of t

2019That said, we emphasize that in the context of direct appeal, like the requirement in postconviction 26 Id. 27 State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014). - 50 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. STELLY Cite as 304 Neb. 33 proceedings, mere conclusions of fact or law are not sufficient.28 [14] 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)

2019That said, we emphasize that in the context of direct appeal, like the requirement in postconviction 26 Id. 27 State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014). - 50 - Nebraska Supreme Court A dvance Sheets 304 Nebraska R eports STATE v. STELLY Cite as 304 Neb. 33 proceedings, mere conclusions of fact or law are not sufficient.28 [14] 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)

2019Although specific allegations of prejudice are not required to be alleged on direct appeal, see State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014), an ineffective assistance of counsel claim can be found to be without merit if the record establishes that prejudice could not be established, see State v. Sundquist, 301 Neb. 1006 , 921 N.W.2d 131 (2019) (ineffective assistance of counsel claim made on direct appeal can be found to be without merit if - 16 - record establishes that trial counsel’s performance was not deficient or that appellant could not establish prejudice).

2019Although specific allegations of prejudice are not required to be alleged on direct appeal, see State v. Filholm, 287 Neb. 763 , 848 N.W.2d 571 (2014), an ineffective assistance of counsel claim can be found to be without merit if the record establishes that prejudice could not be established, see State v. Sundquist, 301 Neb. 1006 , 921 N.W.2d 131 (2019) (ineffective assistance of counsel claim made on direct appeal can be found to be without merit if - 16 - record establishes that trial counsel’s performance was not deficient or that appellant could not establish prejudice).

2020State v. Barrera-Garrido, 296 Neb. 647 , 895 N.W.2d 661 (2017).

2020State v. Barrera-Garrido, 296 Neb. 647 , 895 N.W.2d 661 (2017).

2017State v. Collins, 292 Neb. 602 , 873 N.W.2d 657 (2016).

2016Supp. 2014). 16 See State v. Ortega, 290 Neb. 172 , 859 N.W.2d 305 (2015). - 610 - Nebraska A dvance Sheets 292 Nebraska R eports STATE v. COLLINS Cite as 292 Neb. 602 review the question.17 An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing.18 (a) Failure to Inform Collins of Penalty for Class II Felony Collins argues that his counsel was ineffective in failing to properly inform him of the potential penalty for a Class II felony.

2026Id.

2020When 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. 24 [11-13] Once such issues are properly raised, the appellate court will determine whether the record on appeal is sufficient to review the merits of the ineffective performance claims. 25 We have said that the fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean th

2024Id.

2023The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved Id.

2022Id.

2021Otherwise, the issue will be procedurally barred. 33 But the fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved on direct appeal. 34 The determining factor is 30 Id. 31 Strickland v. Washington, 466 U.S. 668 , 104 S. Ct. 2052 , 80 L.

2019State v. Nolt, 298 Neb. 910 , 906 N.W.2d 309 (2018).

2018App. 206 , 508 N.W.2d 305 (1993). 12 See Strickland v. Washington, supra note 5 . - 924 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports STATE v. NOLT Cite as 298 Neb. 910 A “reasonable probability is a probability sufficient to under- mine confidence in the outcome [of the trial].”13 [8,9] The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved.14 The determining factor is whether the record is sufficient to adequately review the question.15 An ineffective assistance of counsel claim will not be addres

2025KRUGER Cite as 320 Neb. 361 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. 68 A claim insufficiently stated is no different than a claim not stated at all. 69 An argu- ment that does little more than restate an assignment of error does not support the assignment, and an appellate court will not address it. 70 Likewise, where an appellant’s brief contains conclu

2022Ed. 2d 674 (1984). 11 State v. Casares, supra note 8 . 12 See State v. Mora, supra note 8 . 13 Id. - 660 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports STATE v. KIPPLE Cite as 310 Neb. 654 [7-9] To make that determination, an appellate court must have knowledge of the specific conduct alleged to consti- tute deficient performance. 14 Thus, an ineffective assistance of counsel claim is raised on direct appeal when allegations of deficient performance are made with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the t