Volume 236 — Nebraska Reports

1. Postconviction: Appeal and Error. If a defendant is denied his right to appeal because his lawyer fails, when requested, to timely file a notice of appeal, the proper means to attack that denial is by a postconviction relief action. 2. Judgments: Appeal and Error. Partial disposition of the issues in a lawsuit by the trial court, resulting in piecemeal appeals, is disfavored. 3. Sentences: Waiver: Appeal and Error. Where no objection is made at a sentencing hearing when a defendant is provided an opportunity to do so, generally, any claimed error is waived and is not preserved for appellate review. 4. Final Orders: Appeal and Error. Generally, when multiple issues are presented to a trial court for simultaneous disposition in the same proceeding and the court decides some of the issues, while reserving some issues for later determination, the court's determination of less than all the issues is an interlocutory order and is not a final order for the purpose of an appeal. 5. Postconviction: Constitutional Law: Effectiveness of Counsel: Proof. In a postconviction relief action, to sustain a claim of ineffective assistance of counsel as a violation of the sixth amendment to the U.S. Constitution or article I, 11, of the Nebraska Constitution, and thereby obtain reversal of a defendant's conviction, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defense, that is, a demonstration of reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. 6. Effectiveness of Counsel: Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome. 7. Effectiveness of Counsel: Proof. A criminal defendant must demonstrate prejudice was suffered from ineffectiveness of counsel. 8. ___: ___. The defendant has the burden of demonstrating ineffective assistance of counsel, and the record must affirmatively support the claim. 9. Effectiveness of Counsel: Conflict of Interest: Proof. A defendant must show that his counsel actively represented conflicting interests and that the actual conflict of interest adversely affected the performance of the defendant's lawyer. 10. ___: ___: ___. A defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. 11. ___: ___: ___. A conflict of interest must be actual rather than speculative or hypothetical before a conviction can be overturned on the ground of ineffective assistance of counsel. 12. Sentences: Appeal and Error. An order imposing a sentence within the statutorily prescribed limits will not be disturbed on appeal in the absence of an abuse of discretion. 13. Sentences. The seriousness of the offense is an important factor in the setting of the sentence, and information as to a defendant's life,<page_number>Page 657</page_number> character, or previous conduct is highly relevant to the determination of a proper sentence. 14. ___. In imposing a sentence, a sentencing court may consider the effects of the crime upon the victim.

1. Due Process. A claim that one is being deprived of a liberty interest without due process of law is typically examined in three stages. The question in the first stage is whether there is a protected liberty interest at stake. If so, the analysis proceeds to the second stage, in which it is determined what procedural protections are required. Upon the resolution of that issue, the analysis moves on to the third and final stage, in which the facts of the case are examined to ascertain whether there was a denial of that process which was due. 2. Constitutional Law: Mentally Disordered Sex Offender. A liberty interest is at stake in the determination of whether a defendant is a mentally disordered sex offender under Nebraska's mentally disordered sex offender statutes. 3. Mentally Disordered Sex Offender: Sentences. Under Nebraska's mentally disordered sex offender statutes, a defendant must first be sentenced for the sexual offense of which he was convicted. It is only after a mentally disordered sex offender defendant has been sentenced that the court may commit him to a regional center for treatment. 4. Constitutional Law: Mentally Disordered Sex Offender: Sentences. The liberty interest a mentally disordered sex offender has, after being sentenced for the sexual crime he or she committed, is the same as that of a prisoner who is transferred from a prison to a mental hospital. 5. Prisoners: Mental Health: Due Process. The transfer of a prisoner from a prison to a mental hospital must be accompanied by appropriate procedural protections. 6. Mentally Disordered Sex Offender: Proof. For a court to commit a criminal defendant to a regional center under Nebraska's mentally disordered sex offender act, the State must prove by clear and convincing evidence (1) that the defendant is a mentally disordered sex offender, (2) that the defendant is treatable, and (3) that treatment is available in this state. 7. Mentally Disordered Sex Offender. Whether a defendant is a mentally disordered sex offender is a question of fact to be determined by the trial court. There is no statutory requirement that the opinion of the<page_number>Page 784</page_number> examiners be unanimous. 8. Sentences: Appeal and Error. An order imposing a sentence within statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.