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10/31/2024 09:06 AM CDT
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
State of Nebraska, appellee, v.
Mark A. Haas II, appellant.
___ N.W.3d ___
Filed October 31, 2024. No. S-23-365.
1. Pleas: Appeal and Error. A trial court is given discretion as to whether
to accept a guilty or no contest plea, and an appellate court will overturn
that decision only where there is an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in matters submitted for disposition.
3. Courts: Trial: Mental Competency: Appeal and Error. The question
of competency to stand trial is one of fact to be determined by the court,
and the means employed in resolving the question are discretionary with
the court. The trial court’s determination of competency will not be disturbed unless there is insufficient evidence to support the finding.
4. Sentences: Appeal and Error. A sentence imposed within statutory
limits will not be disturbed on appeal absent an abuse of discretion by
the trial court.
5. Trial: Pleas: Mental Competency. 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.
6. Trial: Mental Competency. The competency standard includes both (1)
whether the defendant has a rational as well as factual understanding of
the proceedings against him or her and (2) whether the defendant has
sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding.
7. Pleas: Mental Competency. A court is not required to make a competency determination in every case in which a defendant seeks to plead
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
guilty. A competency determination is necessary only when a court has
reason to doubt the defendant’s competence.
8. Effectiveness of Counsel: Proof. 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.
9. ____: ____. 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.
10. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice in a claim of ineffective assistance of counsel, the defendant must
demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different.
11. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. 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.
12. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
13. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. 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.
14. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of
ineffective assistance of counsel 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.
15. Effectiveness of Counsel: Pleas. When a defendant enters a no contest
plea, 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.
16. Constitutional Law: Statutes: Sentences. An ex post facto law is a
law which purports to apply to events that occurred before the law’s
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
enactment and which disadvantages a defendant by creating or enhancing penalties that did not exist when the offense was committed.
17. Constitutional Law: Criminal Law: Limitations of Actions. Extending
a statute of limitations which has not yet run does not violate the ex post
facto clauses.
18. Effectiveness of Counsel. Counsel is not deficient for failing to file a
meritless motion.
Appeal from the District Court for Sarpy County, Stefanie
A. Martinez, Judge. Affirmed.
Ann C. Addison-Wageman, of Law Office of Ann C.
Addison-Wageman, P.C., L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Jacob M.
Waggoner for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Mark A. Haas II appeals his plea-based conviction for first
degree sexual assault and his sentence of imprisonment for
40 to 50 years. Haas claims that his trial counsel was ineffective in various respects and that the district court erred
when it accepted his no contest plea and abused its discretion
by imposing an excessive sentence. Finding no merit to his
claims, we affirm.
I. BACKGROUND
1. Initial Charges
The State charged Haas by direct information with four
counts of first degree sexual assault, alleged to have occurred
between January 1, 2004, and June 1, 2008. Haas filed a
motion to quash and to dismiss the charges, claiming that the
statute of limitations had expired.
Following a hearing, the district court denied Haas’ motions
to quash and dismiss. In a written order, the district court
found that “the statute of limitations likely ha[d] not run on the
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
counts charged in the Direct Information.” The district court
stated, however, that a preliminary hearing was necessary to
ascertain the ages of the victims to make a final determination
on the statute of limitations defense.
2. Amended Direct Information
Prior to the preliminary hearing, the State, with leave from
the district court, filed an amended direct information charging Haas with the same four counts of first degree sexual
assault. The amended direct information expanded the timeframe for the alleged offenses to between January 1, 2000, and
June 1, 2008.
3. Plea Hearing
Haas and the State eventually reached a plea agreement.
Pursuant to the agreement, Haas pled no contest to a second
amended direct information that charged him with one count
of first degree sexual assault, alleged to have occurred between
January 1, 2000, and June 1, 2008.
At the plea hearing, the district court asked Haas if he
understood the charge against him and understood that the
charge was punishable by a maximum of 50 years in prison.
Haas replied, “I do, Your Honor.” The district court asked
Haas whether he understood that the charge carried with it
the requirement to register under Nebraska’s Sex Offender
Registration Act. Haas inquired how long the registration
requirement would be. The district court said that it could not
answer that question for him, but granted a recess so that Haas
could speak with his counsel.
Following the recess, the district court asked Haas if he had
an opportunity to speak with his attorney. Haas replied, “I did,
yes, Your Honor.” The court again asked Haas if he understood
the obligation that he would have to register under the Sex
Offender Registration Act if found guilty of this charge. Haas
replied, “I do, Your Honor.”
The district court then informed Haas of his right to an
attorney, the right to a jury trial, the right to confront and
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
cross-examine the State’s witnesses, the right to call his own
witnesses, and the right to testify or to remain silent. The
district court advised Haas that he was presumed innocent
and that he had the right to appeal any final order of the
court. The district court asked Haas if he understood all of his
rights. Haas replied, “I do, Your Honor.” The court then asked
Haas how he intended to plead to the one count of first degree
sexual assault. Haas replied, “No contest.”
Before accepting his plea, the district court asked Haas
about his age and education and whether he had consumed
any alcohol on the day of the plea hearing. The district court
also asked Haas about his mental and emotional condition and
engaged in the following colloquy:
THE COURT: Do you suffer from any mental or emotional condition?
[Haas:] PTSD, Your Honor.
THE COURT: Do you take medication for that?
[Haas:] I do, Your Honor.
THE COURT: Did you take it this morning?
[Haas:] No, but it—
THE COURT: When was the last time you took it?
[Haas:] I had it yesterday. It’s of no effect right now.
THE COURT: Okay. So even taking that medication,
do you believe it affects your ability to understand what’s
happening today or think clearly?
[Haas:] No, I’ll be fine without it, Your Honor.
THE COURT: Okay. Then I’ll find, beyond a reasonable doubt, that the defendant is alert and competent
to plead.
The district court asked Haas if he understood that by virtue
of his pleading no contest, if the State gave a sufficient factual basis, the court would find him guilty as if he had pled
guilty. Haas replied, “I do, Your Honor.” The district court
asked Haas if he understood that he would lose all of his previously enumerated rights, except the right to an attorney and
his right to appeal. Haas again answered, “I do, Your Honor.”
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
The district court then confirmed with Haas that he had spoken with his attorney, discussed all possible defenses with his
attorney, and was satisfied with the job of his attorney.
The district court then asked the State for a factual basis
for the charges. The prosecutor stated, and described in detail,
that between January 1, 2000, and June 1, 2008, Haas sexually assaulted four different victims on numerous occasions
and in various ways. Haas did not object to the factual basis
offered by the State. The district court found that Haas’ plea
and waiver of rights were made “knowingly, intelligently,
and voluntarily” and that there was a factual basis to support
his plea. The district court accepted Haas’ plea of no contest,
found him guilty of one count of first degree sexual assault,
ordered a presentence investigation report (PSR), and set the
matter for sentencing.
4. Sentencing
At the sentencing hearing, the district court stated that it
had reviewed Haas’ PSR and asked both parties whether they
had any additions or corrections to the PSR. Haas offered
additional mitigating documents to be added to his PSR.
The documents, which the district court received, included a
form showing Haas’ honorable military discharge, as well as
certificates of completion of various programs offered by the
Nebraska Department of Correctional Services.
The district court sentenced Haas to 40 to 50 years’ imprisonment and gave Haas credit for time already served.
Haas’ trial counsel did not appeal Haas’ conviction and
sentence. Haas later filed a pro se motion alleging ineffective
assistance of trial counsel because his trial counsel did not
file a direct appeal on his behalf. The district court treated
Haas’ motion as a verified motion for postconviction relief
and ordered an evidentiary hearing. Following the evidentiary
hearing, the district court granted Haas’ motion for postconviction relief and gave Haas 30 days to file a direct appeal. This
is Haas’ direct appeal of his conviction and sentence.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
II. ASSIGNMENTS OF ERROR
Haas assigns that the district court erred in accepting his no
contest plea and abused its discretion by imposing an excessive sentence.
Haas also assigns that he received ineffective assistance
of counsel insofar as his trial counsel failed to (1) challenge
the amended direct information through a motion to quash;
(2) divulge that a health condition impaired counsel’s ability
to represent Haas; (3) truthfully advise Haas of the expected
outcome of his case; (4) properly advise Haas of the consequences of his plea and contend that the plea was not freely,
knowingly, intelligently, and voluntarily made; (5) allow Haas
the opportunity to review his PSR before his sentencing hearing and give Haas the opportunity to file a response or make
necessary revisions before the sentencing hearing; and (6)
submit mitigating documents on Haas’ behalf before the sentencing hearing.
III. STANDARD OF REVIEW
[1,2] A trial court is given discretion as to whether to accept
a guilty or no contest plea, and an appellate court will overturn
that decision only where there is an abuse of discretion. State
v. Jenkins, 303 Neb. 676,
931 N.W.2d 851 (2019). A judicial
abuse of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition.
Id.
[3] The question of competency to stand trial is one of
fact to be determined by the court, and the means employed
in resolving the question are discretionary with the court.
Id.
The trial court’s determination of competency will not be
disturbed unless there is insufficient evidence to support the
finding.
Id.
[4] A sentence imposed within statutory limits will not be
disturbed on appeal absent an abuse of discretion by the trial
court. State v. Miller,
315 Neb. 951, 2 N.W.3d 345 (2024).
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
IV. ANALYSIS
1. Acceptance of No Contest Plea
We begin by addressing Haas’ claim that the district court
erred by accepting his no contest plea. In support of this contention, Haas points to his colloquy with the district court during the plea hearing, particularly his statements that he suffered
from “PTSD,” or post-traumatic stress disorder, and that he
had not taken his medication for that condition on the day of
the plea hearing. Haas asserts he was therefore not competent
to enter a plea. We are unpersuaded.
[5,6] 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. Jenkins, supra. The competency standard includes both (1) whether the defendant has a rational as
well as factual understanding of the proceedings against him or
her and (2) whether the defendant has sufficient present ability
to consult with his or her lawyer with a reasonable degree of
rational understanding.
Id.
[7] A court is not required to make a competency determination in every case in which a defendant seeks to plead
guilty. See State v. Vo,
279 Neb. 964,
783 N.W.2d 416 (2010).
A competency determination is necessary only when a court
has reason to doubt the defendant’s competence.
Id. See, also,
Godinez v. Moran,
509 U.S. 389,
113 S. Ct. 2680,
125 L. Ed.
2d 321 (1993).
We find that the district court did not abuse its discretion
by accepting Haas’ plea, because it had no reason to doubt
Haas’ competence. Our conclusion is informed by our precedent. In State v. Hessler,
274 Neb. 478,
741 N.W.2d 406
(2007), a defendant who had waived his right to counsel prior
to a sentencing hearing argued on appeal that the district court
erred by allowing him to do so. The defendant argued that he
was not competent to waive counsel and, like Haas, based his
argument that he lacked competency on the fact that he had
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
not taken prescribed medications on the day of the hearing at
issue. In determining whether the defendant was competent
to waive counsel, we applied the same standards that govern
whether a defendant is competent to enter a guilty or no contest plea and found that the district court did not err in allowing the defendant to waive counsel. We observed that there
was no indication throughout pretrial proceedings of inability
on the defendant’s part to consult with counsel or understand
the proceedings and that on the day the court considered his
request to waive counsel, the court was “in a position to be
satisfied that any medication [the defendant] was or was not on
did not compromise his present competence to waive counsel.”
Id. at 509,
741 N.W.2d at 429.
Like the trial court in Hessler, the district court here had
the benefit of observing the accused during the plea hearing.
The district court also heard Haas represent that he would be
“fine” without his medication. On this record, the district court
did not have a reason to doubt Haas’ competence and did not
err by finding that his plea was made knowingly, voluntarily,
and intelligently.
2. Ineffective Assistance of Counsel
Haas, represented by new counsel on direct appeal, also
asserts that his trial counsel was ineffective in various respects.
Before addressing Haas’ ineffective assistance of counsel
claims, we briefly review the well-established law governing
such claims and their resolution on direct appeal.
[8-10] 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 defendant’s defense. State v. Mrza,
302 Neb. 931,
926
N.W.2d 79 (2019). 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
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
in criminal law.
Id. To show prejudice, the defendant must
demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would
have been different.
Id.
[11,12] 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; otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. State v. Miller,
315
Neb. 951, 2 N.W.3d 345 (2024). The fact that an ineffective
assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved. State v.
Mrza, supra.
The determining factor is whether the record is sufficient to
adequately review the question.
Id.
[13,14] 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) a district court later reviewing a petition
for postconviction relief to recognize whether the claim was
brought before the appellate court. State v. Golyar,
301 Neb.
488,
919 N.W.2d 133 (2018). When a claim of ineffective
assistance of counsel 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.
Miller, supra.
(a) Motion to Quash
[15] Haas first argues that his trial counsel was ineffective
because he failed to file a motion to quash the amended direct
information. Before addressing this argument, we note that
Haas entered a no contest plea to the second amended direct
information. When a defendant enters a no contest plea, he or
she is limited to challenging whether the plea was understandingly and voluntarily made and whether it was the result of
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
ineffective assistance of counsel. See State v. Thomas,
311 Neb.
989,
977 N.W.2d 258 (2022). Haas appears to take the position
that his counsel’s failure to file a motion to quash in response
to the amended direct information caused him to ultimately
enter his no contest plea in response to the second amended
direct information. It is not obvious to us that Haas is correct in
this respect, but it is not necessary for us to determine whether
Haas waived this ineffective assistance of counsel claim by
entering his no contest plea. As we will explain, even assuming Haas could assert this claim of ineffective assistance, the
record establishes that trial counsel was not deficient.
Haas offers a number of reasons why his counsel should
have filed a motion to quash. He refers to the approximately
8-year timeframe in which the amended direct information
alleged that Haas committed various sexual assaults. He also
mentions the statute of limitations, the constitutional prohibition on ex post facto laws, and the fact that he had not reached
the age of majority for a portion of the timeframe charged in
the amended direct information. Having considered these reasons, however, we find no basis to conclude that a motion to
quash would have been successful.
Haas has not shown that a motion to quash would have
been successful based on the absence of a specific date for the
alleged offenses in the amended direct information. We have
said that where an information provides a timeframe which
has a distinct beginning and an equally clear end within
which the crimes are alleged to have been committed, it is
sufficient to satisfy the requirements of the Sixth Amendment.
See State v. Martinez
250 Neb. 597,
550 N.W.2d 655 (1996).
Therefore, a motion to quash that relied on the amended
direct information’s use of a timeframe alone would not have
been successful.
Haas fares no better with his suggestion that a motion to
quash based on the statute of limitations would have been
successful. The State’s amended direct information charged
Haas with four counts of first degree sexual assault, in
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
violation of
Neb. Rev. Stat. § 28-319(1)(a) and (b) (Reissue
2016), and alleged that the assaults occurred between January
1, 2000, and June 1, 2008. In 2000, the earliest date alleged
in the amended direct information, the statute of limitations
for first degree sexual assault was 7 years from the date of the
offense, or 7 years from the date the victim turned 16 years
of age, whichever was later. See
Neb. Rev. Stat. § 29-110(2)
(Reissue 1995).
In 2004, however, § 29-110 was amended to eliminate any
statute of limitations for first degree sexual assault when the
victim was under 16 years of age at the time of the offense. See
2004 Neb. Laws, L.B. 943, § 8 (codified at § 29-110 (Cum.
Supp. 2004)). Then, in 2005, the Legislature amended § 29-110
(Supp. 2005) again to provide that “[t]here shall not be any
time limitations for prosecution or punishment for . . . sexual
assault in the first or second degree under section 28-319[.]”
See 2005 Neb. Laws, L.B. 713, § 2 (codified at § 29-110(5)
(Supp. 2005)). The 2005 amendments also included a provision that stated, “The changes made to this section by [this
legislative bill] shall apply to offenses committed prior to [the
effective date of this act] for which the statute of limitations
has not expired as of such date and to offenses committed on or
after such date.” See 2005 Neb. Laws, L.B. 713, § 2 (codified
at § 29-110(11) (Supp. 2005)).
As a result of the elimination of the statute of limitations
for first degree sexual assault, Haas could not have shown
that the charges in the amended direct information were
barred by the statute of limitations. The earliest alleged date
in the amended direct information was January 1, 2000. Even
assuming the statute of limitations began running on that date,
the charges would not have been barred. In that scenario, the
7-year statute of limitations would have expired on January
1, 2007, if not for its elimination. But, as we have discussed,
the Legislature did eliminate the statute of limitations for first
degree sexual assault before that date. There was thus no statute of limitations upon which Haas could have successfully
moved to quash.
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Nebraska Supreme Court Advance Sheets
317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
[16,17] This leads to Haas’ invocation of the constitutional
prohibition against ex post facto laws. Here, Haas appears
to suggest that the Legislature’s elimination of the statute of
limitations violates ex post facto principles. An ex post facto
law is a law which purports to apply to events that occurred
before the law’s enactment and which disadvantages a defend
ant by creating or enhancing penalties that did not exist when
the offense was committed. State v. Jenkins,
303 Neb. 676,
931 N.W.2d 851 (2019). We have said, however, that extending a statute of limitations which has not yet run does not
violate the ex post facto clauses. See State v. Hirsch,
245
Neb. 31,
511 N.W.2d 69 (1994) (collecting cases). As we have
already explained, even if it is assumed that the statute of
limitations began running on the earliest date alleged in the
amended direct information, it would not have expired prior
to the Legislature’s elimination of that statute of limitations.
A motion to quash based on an alleged ex post facto violation
would have been meritless.
Lastly, Haas asserts that his counsel was ineffective for
failing to file a motion to quash asserting that he was a juvenile during a portion of the timeframe alleged in the amended
direct information. But the fact that the timeframe alleged in
the amended direct information included time in which Haas
was a juvenile would not have been the basis for a meritorious motion to quash. We have said that the mere fact that
the defendant was a juvenile at the time he or she committed
the offenses does not in itself give the defendant the right to
be tried as a juvenile. See State v. Pauly,
311 Neb. 418,
972
N.W.2d 907 (2022). Instead, we have specified that the relevant date for whether someone is a “juvenile,” for purposes
of juvenile court jurisdiction, is when the person is originally
charged for an offense, whether that person is charged by
complaint in the county court, by information in the district court, or by petition in the juvenile court. See State v.
Aldana Cardenas,
314 Neb. 544,
990 N.W.2d 915 (2023). The
juvenile court has jurisdiction over any individual adjudged
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to be within the provisions of
Neb. Rev. Stat. § 43-247
(Reissue 2016) until that person turns 19 years of age. Aldana
Cardenas, supra. In this case, Haas was well past 19 years of
age when charges were initially filed in this case. A motion
to quash based on his age at the time of the alleged offenses
would not have been successful.
[18] Because Haas has not shown that a motion to quash
would have been successful, we cannot find that his trial counsel was deficient. Counsel is not deficient for failing to file a
meritless motion. State v. Blake,
310 Neb. 769,
969 N.W.2d
399 (2022). This assignment of error is without merit.
(b) Divulging Health Conditions
Haas next assigns that his trial counsel was ineffective
because his counsel “failed to divulge that [counsel’s] health
condition(s) impaired [counsel’s] ability to represent [Haas]
through the strenuous pretrial proceedings and at trial.” We
find that this assignment of ineffective assistance of trial counsel does not comply with our specificity requirement set forth
in State v. Mrza, 302 Neb. 931,
926 N.W.2d 79 (2019). The rule
announced in Mrza states that “assignments of error on direct
appeal regarding ineffective assistance of trial counsel must
specially allege deficient performance, and an appellate court
will not scour the remainder of the brief in search of such specificity.”
Id. at 935,
926 N.W.2d at 86. A general assignment of
ineffective assistance that does not specify counsel’s deficiency
is insufficient to raise the claim on direct appeal. See, e.g.,
State v. Archie,
305 Neb. 835,
943 N.W.2d 252 (2020); State
v. Guzman,
305 Neb. 376,
940 N.W.2d 552 (2020) (assignment
of error generally alleging ineffective assistance insufficient
to raise claim); State v. Blaha,
303 Neb. 415,
929 N.W.2d 494
(2019) (assignment of error alleging failure to engage in pretrial litigation does not satisfy Mrza rule).
In State v. Golyar,
301 Neb. 488,
919 N.W.2d 133 (2018), the
defendant assigned that trial counsel was ineffective for failing
to investigate potential witnesses or alibis. The defendant,
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317 Nebraska Reports
STATE V. HAAS
Cite as 317 Neb. 919
however, did not identify in the assignment of error any specific potential witnesses or alibis. In Golyar, we found that the
allegations were insufficient to raise the ineffective assistance
claim, because a potential postconviction court would not be
able to determine if a particular claim of failure to call a witness or failure to pursue an alibi was the same one raised on
direct appeal. See, also, State v. Thomas,
311 Neb. 989,
977
N.W.2d 258 (2022).
Likewise, in State v.
Archie, supra, the defendant assigned
generally that he received ineffective assistance of counsel
in violation of his constitutional rights but did not assign
specifically how his counsel was deficient. In that case, the
defendant contended that the specific instances of deficient
performance could be discerned from the argument section of
his initial brief.
Id. Citing State v.
Mrza, supra, we declined
the defendant’s invitation to scour the argument section of
the defendant’s brief for the specific allegations of deficient
performance.
Haas’ assignment of error similarly lacks the requisite specificity. Haas does not identify in his assignment of error how
the unspecified health condition made his counsel ineffective.
We find this assignment of error to be akin to a general assertion that his trial counsel was ineffective. Haas’ claim under
this assignment of error does not satisfy Mrza and will not be
addressed on appeal.
(c) Expected Outcome
Haas next assigns that his trial counsel was ineffective
because his counsel “failed to truthfully advise [him] of the
expected outcome of his case when advising [him] to plead
rather than exercising his right to trial, contrary to [his] intent
that he expressed to counsel.” The record before us contains
no evidence of communications between Haas and his counsel
regarding an advisement to plead, or Haas’ expressed desire
to the contrary. Therefore, we cannot determine whether his
counsel provided deficient performance or whether Haas was
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prejudiced by the alleged advisement. We find that the record
is insufficient to resolve this claim on direct appeal.
(d) Consequences of Plea
and Allowance of Plea
Haas next assigns that his trial counsel was ineffective
because his counsel “failed to properly advise [him] of his
rights, [his] waiver of rights, and both the direct and indirect consequences of his plea of no contest” and “deficiently
allowed the District Court to accept [his] plea that was not
freely, knowingly, intelligently, and voluntarily made.” We
find that the record refutes this assertion of ineffective assist
ance of counsel.
The record demonstrates that Haas understood the consequences of pleading no contest. First, at the plea hearing, the
district court explained the charges against him, the maximum
penalty of the charged offense, and his obligation, if found
guilty, to register under Nebraska’s Sex Offender Registration
Act. The district court also enumerated each of Haas’ rights
that would be waived by a plea of no contest. Haas indicated
that he understood each of the district court’s advisements.
Haas’ colloquy with the district court at the plea hearing thus
demonstrates that Haas was aware of the direct and indirect
consequences of pleading no contest.
Furthermore, as we explained earlier in the opinion, there
was no basis in the record to question Haas’ competence to
plead. Because there was no basis in the record to question
Haas’ competence to plead, there is likewise no basis to find
Haas’ counsel was ineffective for failing to object to the district
court’s acceptance of his plea on grounds of incompetence.
(e) Review of PSR
Haas next assigns that his trial counsel was ineffective
because his counsel “failed to allow [Haas] the opportunity to
review his [PSR] before his sentencing hearing and . . . give
[him] the opportunity to file a response or make necessary
revisions and/or additions before the sentencing hearing.” A
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defendant has a qualified right to review his or her PSR, and
the defendant may, with his or her attorney, examine the PSR
subject to the court’s supervision. See State v. Blaha,
303 Neb.
415,
929 N.W.2d 494 (2019).
In State v. Blaha, supra, the question before us was whether
the defendant’s trial counsel was deficient for failing to disclose the contents of the PSR to the defendant prior to sentencing. In that case, we found the record was insufficient to
address the claim on direct appeal, because the record was
“void of any statement by [the defendant] or trial counsel that
[the defendant] either reviewed the [PSR] or wished to review
[it].”
Id. at 428,
929 N.W.2d at 505.
We reach the same conclusion here. Although Haas alleges
that his counsel did not review or discuss the contents of the
PSR with him, the record before us contains no evidence of
the communications between Haas and his trial counsel regarding the PSR. We therefore conclude that the record on direct
appeal is insufficient to address this claim.
(f) Mitigating Documents
Lastly, Haas assigns that his counsel was ineffective for failing to submit mitigating documents before the sentencing hearing. We conclude that the record refutes Haas’ claim.
Haas’ counsel offered mitigating documents at the sentencing hearing, and the district court received the documents prior
to sentencing him. The district court expressly stated in its
judgment and sentence that it had “considered the information
presented in the [PSR] as well as any further documents presented by the parties and received by the Court for purposes
of sentencing.” Because the district court received and considered Haas’ mitigating documents, he cannot show prejudice.
This claim of ineffective assistance of counsel is refuted by
the record.
3. Excessive Sentence
Haas’ final assignment of error is that the district court
imposed an excessive sentence. Haas concedes that his sentence
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was within statutory limits but argues that the district court
nonetheless abused its discretion in sentencing him. In support
of his claim, Haas argues (1) that the district court did not set
forth an analysis of how it weighed the relevant sentencing factors, or explain the conclusions it reached, and (2) that his case
is distinguishable from State v. McTizic,
31 Neb. App. 675,
988
N.W.2d 197 (2023).
Haas is correct that the district court did not explain how it
weighed each of the relevant sentencing factors, but we have
rejected the notion that a sentencing court does not adequately
consider sentencing factors when it does not discuss each one
of them during the sentencing hearing. See State v. Blaha,
303
Neb. 415,
929 N.W.2d 494 (2019).
Haas also argues that his case is distinguishable from State
v.
McTizic, supra. In McTizic, the Nebraska Court of Appeals
found that the sentencing court did not abuse its discretion
when it sentenced the defendant to imprisonment for an aggregate of 40 to 50 years after convictions of first degree sexual
assault and attempted first degree sexual assault. But the fact
that the Court of Appeals found no abuse of discretion in
McTizic says little about whether the district court abused its
discretion here. To the extent Haas argues that the district court
abused its discretion by not properly tailoring its sentence to
Haas or that it should have weighed the relevant sentencing
factors differently, we reiterate that it is not the function of an
appellate court to conduct a de novo review of the record to
determine what sentence we would have imposed. See, e.g.,
State v. Horne,
315 Neb. 766, 1 N.W.3d 457 (2024); State v.
Pauly,
311 Neb. 418,
972 N.W.2d 907 (2022).
Based on our review of the record and the relevant considerations, we conclude that the district court did not abuse its
discretion in sentencing Haas.
V. CONCLUSION
We find no error and affirm.
Affirmed.
