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www.nebraska.gov/apps-courts-epub/
01/10/2025 09:10 AM CST
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. DAT
Cite as 318 Neb. 311
State of Nebraska, appellee, v.
Dilang N. Dat, appellant.
___ N.W.3d ___
Filed January 10, 2025. No. S-23-990.
1. Convictions: Appeal and Error. In an appeal of a criminal conviction,
an appellate court reviews the evidence in a light most favorable to the
prosecution.
2. Right to Counsel: Waiver: Appeal and Error. In determining whether
a defendant’s waiver of counsel was voluntary, knowing, and intelligent,
an appellate court applies a clearly erroneous standard of review.
3. Constitutional Law: Right to Counsel: Waiver. A criminal defendant
has a constitutional right to waive the assistance of counsel and conduct
his or her own defense under the Sixth Amendment and Neb. Const.
art. I, § 11.
4. ____: ____: ____. In order to waive the constitutional right to counsel,
the waiver must be made knowingly, voluntarily, and intelligently.
5. Right to Counsel. The right to self-representation is triggered only
when a defendant clearly and unequivocally requests self-representation.
6. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
7. Criminal Law: Words and Phrases. Physical manifestation of an
injury is not required to meet the definition of bodily injury in Neb. Rev.
Stat. § 28-109(4) (Reissue 2016).
8. Evidence: Proof. A fact may be proved by direct evidence alone, by
circumstantial evidence alone, or by a combination of the two.
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. DAT
Cite as 318 Neb. 311
9. Trial: Witnesses: Service of Process: Time: Good Cause.
Neb. Rev.
Stat. § 25-1226(2) (Cum. Supp. 2024) requires a subpoena for a trial to
be served at least 2 days before the person is ordered to appear and testify, unless a party shows good cause to shorten the period for service.
10. Trial: Witnesses: Service of Process: Time: Good Cause: Words and
Phrases. “Good cause,” for purposes of Neb. Rev. Stat. § 25-1226(2)
(Cum. Supp. 2024), refers to all relevant circumstances, including, but
not limited to, the need for the testimony, the burden on the person, and
the reason why the person was not subpoenaed earlier.
11. Trial: Witnesses: Service of Process: Time: Appeal and Error. A trial
court’s determination regarding the period for service of a subpoena for
a trial under Neb. Rev. Stat. § 25-1226(2) (Cum. Supp. 2024) will be
upheld on appeal in the absence of an abuse of discretion.
12. Judgments: Words and Phrases. 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.
13. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of counsel may be determined on direct appeal is a
question of law.
14. ____: ____. 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.
15. 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.
16. 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.
17. ____: ____. 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.
18. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice in a claim of ineffective assistance of counsel, the defendant must
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. DAT
Cite as 318 Neb. 311
demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different.
19. 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.
20. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an
appellate court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims. 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 as
a matter of law, or that trial counsel’s actions could not be justified as a
part of any plausible trial strategy.
21. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
Appeal from the District Court for Hall County, John H.
Marsh, Judge. Affirmed.
Dana DeSimone, of Kearney & DeSimone Law Offices, for
appellant.
Michael T. Hilgers, Attorney General, and Austin N. Relph
for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
In this direct appeal, Dilang N. Dat challenges his conviction, pursuant to jury verdict, for assault by a confined person. 1
A novel issue is whether the district court erred in quashing a
subpoena obtained after a statutory deadline. 2 Dat also assigns
1
See Neb. Rev. Stat. § 28-932 (Reissue 2016).
2
See Neb. Rev. Stat. § 25-1226(2) (Cum. Supp. 2024).
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STATE V. DAT
Cite as 318 Neb. 311
error to the overruling of a motion for self-representation, the
sufficiency of the evidence at trial, and the effectiveness of
trial counsel. Because we find no reversible error or abuse of
discretion, we affirm the district court’s judgment.
II. BACKGROUND
We begin with a brief background. Dat’s conviction flowed
from an altercation between Dat and another inmate, Tilian
Tilian, while Dat was confined in the Hall County jail. We will
discuss the incident, and other relevant background, in more
detail later in the opinion.
After a trial, the jury found Dat guilty of assault by a confined person. The court then sentenced Dat to 1 year of imprisonment, with 228 days’ credit for time served, followed by 9
months of post-release supervision.
Dat filed a timely appeal, which we moved to our docket. 3
He is represented by different counsel on appeal.
III. ASSIGNMENTS OF ERROR
Dat assigns, restated, consolidated, and reordered, that (1)
the district court erred in overruling his motion for self-
representation, (2) the evidence was insufficient to support his
conviction, and (3) the district court erred in quashing a witness
subpoena as untimely, as well as trial counsel was ineffective
in failing to serve the subpoena before the statutory deadline.
IV. STANDARD OF REVIEW
[1] In an appeal of a criminal conviction, an appellate court
reviews the evidence in a light most favorable to the prosecution. 4 Additional standards will be set forth in the analysis.
V. ANALYSIS
We would ordinarily begin with the novel issue. But here,
other claims provide necessary context. Thus, we analyze the
assignments as reordered above.
3
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).
4
State v. Anderson, 317 Neb. 435,
10 N.W.3d 334 (2024).
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. DAT
Cite as 318 Neb. 311
1. Motion for Self-Representation
Dat contends that the court erred in overruling his motion
for self-representation, finding he did not voluntarily waive his
right to counsel.
(a) Additional Background
Because Dat was indigent, counsel was appointed to represent him. During a final pretrial hearing, defense counsel
informed the court that Dat wished to represent himself. The
court engaged in a colloquy with Dat, in which he indicated
that he “d[id] not waive [his] right to be represented by counsel,” but that he was “willing to represent [him]self during
the pretrial stage.” The following exchange took place on
the record:
THE COURT: . . . Dat, is that your desire, to represent
yourself in this matter?
. . . DAT: Your Honor, I do not waive my right to be
represented by counsel, but I had an issue with appointed
counsel not representing arguments in pretrial. I’ve got
the motions that I wanted made prior to trial, and those
weren’t represented in terms of arguments and to expand
the record, present evidence. The [c]ourt has — has not
had an opportunity to review my evidence.
And I was not prepared, I’m not ready for trial yet,
but because counsel has refused to do so, I’m willing to
represent myself during the pretrial stage in order to have
everything; but admitting I’m prepared for trial, I cannot represent myself at trial, no, sir. I’m not waiving my
right to be represented by counsel, but I’m out of options,
Your Honor.
At that point, the court explained that a hybrid system of
representation was not constitutionally mandated and asked
whether Dat was waiving his right to counsel. The colloquy
continued:
THE COURT: Well, my experience in criminal law,
that it’s either one or the other, that we can’t have two
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318 Nebraska Reports
STATE V. DAT
Cite as 318 Neb. 311
steering wheels on the car. And so you’re either — you
know, either it’s a matter of you’re represented by counsel
or not. I don’t believe a hybrid system of you represent
yourself on some things and by counsel on others is constitutionally mandated.
. . . DAT: All right. Then if it pleases the [c]ourt, I would
like to represent myself moving forward. Thank you.
THE COURT: Are you going to be ready for trial on
[the previously scheduled date]?
. . . DAT: No, I will not, but I have pending pretrial
motions. . . .
THE COURT: Well, did anyone make you — make any
threats — well, just to be clear, you’re willing to waive
your right to an attorney in this matter?
. . . DAT: Yes, Your Honor, I’m waiving my right.
THE COURT: Did anyone make any threats or promises to you to get you to waive your right to an attorney?
. . . DAT: Um, the decision was made in duress,
Your Honor.
THE COURT: Excuse me?
. . . DAT: I said the decision was made in duress,
Your Honor.
THE COURT: Well, then I’m not going to accept the
voluntary waiver of counsel. So I overrule your motion to
represent yourself.
Thus, the court overruled Dat’s motion, based on his statements that his decision to waive counsel was made “in duress.”
After the court’s ruling, defense counsel asked whether Dat
understood the court’s reasoning. He said, “[D]o you understand that the reason the [c]ourt didn’t allow you to — to go
forward with that is because you would have to make your
decision freely, knowingly, intelligently and voluntarily, and
you kind of said the opposite and said you were making your
decision under duress?” Dat responded, “Yes, because I — I
have no choice.” Dat reiterated that he was “not prepared for
trial” and that he wished to make an “objection.” The court
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318 Nebraska Reports
STATE V. DAT
Cite as 318 Neb. 311
heard Dat’s objection, which is not at issue on appeal, and
overruled it.
At the close of the hearing, Dat moved to continue the
matter and commented that he was “representing [him]self.”
The court directed Dat to address the motion to continue
with his counsel and repeated that it overruled his motion for
self-representation.
(b) Standard of Review
[2] In determining whether a defendant’s waiver of counsel
was voluntary, knowing, and intelligent, an appellate court
applies a clearly erroneous standard of review. 5
The State suggests that we should also apply a two-part
standard of review to determine whether a defendant has validly asserted his or her right to self-representation, where the
historical facts are reviewed for clear error and the ultimate
question of law is reviewed de novo. Because it would make
no difference here, we decline to do so.
(c) Discussion
Dat’s primary argument is that the court violated his constitutional right to self-representation when it refused to accept
his attempted waiver of counsel without making any further
inquiry. He maintains that his waiver was voluntary, even
though he stated that he made the decision to waive counsel
“in duress.” The State responds that the court did not clearly
err in finding the waiver to be involuntary, because “‘a waiver
made under duress is by definition not a voluntary waiver of
a fundamental constitutional right’” 6 and because Dat never
made a clear and unequivocal request to represent himself.
[3-5] We review the applicable principles. A criminal
defendant has a constitutional right to waive the assistance of
counsel and conduct his or her own defense under the Sixth
5
State v. Warlick, 308 Neb. 656,
956 N.W.2d 269 (2021).
6
Brief for appellee at 20 (quoting U.S. v. Allison, 264 Fed. Appx. 450 (5th
Cir. 2008)).
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. DAT
Cite as 318 Neb. 311
Amendment and Neb. Const. art. I, § 11. 7 In order to waive
the constitutional right to counsel, the waiver must be made
knowingly, voluntarily, and intelligently. 8 As the State correctly points out, the right to self-representation is triggered
only when a defendant clearly and unequivocally requests
self-representation. 9
There are a few problems with Dat’s argument. For example,
the record shows that he informed the court, twice, that his
decision to waive counsel was made “in duress,” and he did
not back away from that assertion when defense counsel asked
him for clarification. During the hearing, defense counsel
stated that Dat was “very intelligent.” We believe that Dat’s
statements cast serious doubt on any notion that his attempted
waiver was voluntary. Moreover, Dat cites no authority to support his contention that a more in-depth inquiry was constitutionally mandated in this situation.
Additionally, Dat’s argument overlooks other statements that
he made to the court. At various points during the colloquy,
Dat stated that he “d[id] not waive [his] right to be represented
by counsel,” that he was “willing to represent [him]self during
the pretrial stage,” that he “would like to represent [him]self
moving forward,” and that he was “representing [him]self.”
Based on Dat’s conflicting statements about waiving his right
to counsel and his equivocal request for self-representation,
we find no error, clear or otherwise, in refusing to accept the
attempted waiver of counsel without further inquiry.
Dat also argues that he was competent to represent himself,
because he did not engage in “obstructional tactics.” 10 This
argument is unavailing. We do not read the court’s decision to
rest on a determination of lack of competency.
7
State v. Ely,
306 Neb. 461,
945 N.W.2d 492 (2020).
8
State v. Jenkins,
303 Neb. 676,
931 N.W.2d 851 (2019).
9
State v.
Ely, supra note 7. See Faretta v. California,
422 U.S. 806,
95 S.
Ct. 2525,
45 L. Ed. 2d 562 (1975).
10
Brief for appellant at 16.
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. DAT
Cite as 318 Neb. 311
On this record, we see no error in the court’s determination
that Dat’s waiver of counsel was involuntary. Therefore, the
court did not err in overruling his motion for self-representation.
2. Sufficiency of Evidence of Bodily Injury
Focusing on one element of the crime, Dat asserts that the
evidence presented at trial was insufficient to support his conviction for assault by a confined person. Dat contends that the
State failed to meet its burden to prove that he caused “bodily
injury” to another person. 11
(a) Additional Background
At trial, the State offered the testimony of a corrections officer, Chad Conklin, who was present at the scene of the altercation between Dat and Tilian. The altercation was also captured
on a surveillance video recording that the court received into
evidence.
Pursuant to our standard, these facts are recited in the light
most favorable to the State. Conklin was preparing to serve a
lunch meal to the inmates, when Dat instigated a fight with
Tilian. The video recording showed Tilian exiting his cell and
turning left to walk toward the lunch area. Shortly thereafter,
Dat exited a nearby cell and approached Tilian from behind.
Dat punched Tilian in the back of the head, and the two
engaged in a scuffle. Dat repeatedly punched Tilian, and at
least one of Dat’s punches “caus[ed Tilian’s] head to go back.”
The fight ended when Dat threw Tilian to the ground.
Following the incident, Conklin placed Dat and Tilian
in handcuffs, and they were separately escorted to an area
off camera.
As part of his testimony, Conklin described his brief interaction with Tilian before Tilian was escorted out by another
officer. Conklin did not recall any visible bruising, scratches,
or blood on Tilian, and he did not know whether Tilian
received subsequent medical treatment. Conklin testified that
11
See § 28-932(1)(b).
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318 Nebraska Reports
STATE V. DAT
Cite as 318 Neb. 311
he “knew [Tilian] wore glasses, but his glasses were not on
him,” and that Tilian looked “shaken up.” He described Tilian
as having a “stunned look on his face.” Conklin represented
that Tilian did not make any statements to him regarding “how
[Tilian] felt or his condition” during their brief interaction.
The State also adduced testimony from Conklin regarding
“something of interest” found after the incident. Conklin testified that there was a “chunk of hair, like, almost like a small
dreadlock type laying on the ground” near where the altercation
took place. He stated it was discovered “probably a half-hour”
after the incident. The State did not offer the “chunk of hair”
or any photographs of it as evidence. But the State did adduce
confirmation from Conklin that Tilian “ha[d] dreadlocks” at
that time and Dat did not. When asked whether the hair color
matched Tilian’s, Conklin responded, “Yes.”
Before deliberations, the court instructed the jury on the
elements of the offense and the definition of bodily injury.
It also tendered the standard Nebraska Jury Instructions on,
among other things, the State’s burden to prove the elements
beyond a reasonable doubt, as well as direct and circumstantial
evidence. Because Dat does not assign error to the jury instructions, we mention them only to note that they were provided.
(b) Standard of Review
[6] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. 12
12
State v. Kalita, 317 Neb. 906,
12 N.W.3d 499 (2024).
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. DAT
Cite as 318 Neb. 311
(c) Discussion
Dat argues that the evidence was insufficient, asserting that
the “only evidence” of bodily injury was Conklin’s testimony,
in response to a question posed by the State, that Tilian seemed
“‘shooken up’” 13 by the incident. He focuses on the fact that
Conklin did not see bruising, scratches, or blood on Tilian. He
also points out that there was no evidence that Tilian had difficulty walking, complained of pain, or received medical attention. These arguments lack merit.
A statutory definition controls. “Bodily injury” is defined
under the Nebraska Criminal Code 14 as “physical pain, illness, or any impairment of physical condition.” 15 The basic
assault statutes 16 and specialized assault statutes, 17 including
the statute applicable here, 18 all depend upon the same definition of bodily injury. 19 Neither that definition, nor the language defining Dat’s offense, 20 requires a particular degree of
bodily injury. 21
[7] Our case law follows that same path. “We have never
required that an assault culminate in visible markings in order
to be labeled as such.” 22 We now explicitly hold that physical
manifestation of an injury is not required to meet the definition of bodily injury in § 28-109(4). The Nebraska Court of
13
Brief for appellant at 11.
14
See Neb. Rev. Stat. § 28-101 (Cum. Supp. 2024) (identifying sections of
Nebraska Criminal Code).
15
Neb. Rev. Stat. § 28-109(4) (Reissue 2016).
16
See
Neb. Rev. Stat. §§ 28-308 to 28-310 (Reissue 2016).
17
See
Neb. Rev. Stat. §§ 28-929 to 28-934 (Reissue 2016 & Cum. Supp.
2024).
18
See § 28-932.
19
See §§ 28-101 and 28-109(4).
20
See § 28-932(1).
21
See, also, State v. Goodon,
219 Neb. 186,
361 N.W.2d 537 (1985).
22
State v. Green,
240 Neb. 639, 641,
483 N.W.2d 748, 750 (1992).
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Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. DAT
Cite as 318 Neb. 311
Appeals previously reached virtually the same conclusion in an
unpublished decision. 23
[8] Also, there are certain circumstances where bodily injury
can be inferred. In a prior case, 24 we reached that conclusion
where a defendant intentionally punched another person in the
face, even though the victim testified that it did not cause him
any pain. This flows from a basic principle: A fact may be
proved by direct evidence alone, by circumstantial evidence
alone, or by a combination of the two. 25 Thus, we reject Dat’s
implicit argument that Tilian’s direct testimony was required to
prove bodily injury.
Applying these principles, we conclude that the State presented sufficient direct and circumstantial evidence to support a finding that Dat caused physical pain to Tilian. The
surveillance video recording showed, and Conklin testified,
that Dat approached Tilian from behind and punched him in
the back of the head. Dat continued punching Tilian and then
threw him to the ground. And, as Conklin described, the video
recording showed that at least one of the punches “caus[ed
Tilian’s] head to go back.” Tilian’s eyeglasses were knocked
off of his face. After viewing the evidence in the light most
favorable to the State, a rational trier of fact could have found
that Dat caused bodily injury to Tilian.
Dat also presents several arguments challenging the testimony regarding the “chunk of hair.” We need not address them.
We have already concluded that there was sufficient evidence
of bodily injury without the challenged testimony, and in any
event, Dat did not object to it below. 26
23
See State v. Galvan, No. A-20-418,
2021 WL 560755 (Neb. App. Feb. 16,
2021) (selected for posting to court website).
24
See State v. Waltrip,
240 Neb. 888,
484 N.W.2d 831 (1992).
25
State v. Brown,
317 Neb. 273,
9 N.W.3d 871 (2024).
26
See State v. Rush,
317 Neb. 622, 662,
11 N.W.3d 394, 428 (2024),
modified on denial of rehearing
317 Neb. 917,
12 N.W.3d 787 (“[f]ailure
to make a timely objection waives the right to assert prejudicial error on
appeal”).
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STATE V. DAT
Cite as 318 Neb. 311
3. Quashing of Subpoena
for Untimely Service
We now turn to the novel issue. Dat argues that the district
court erred in quashing a witness subpoena at trial, finding he
failed to show good cause to shorten the statutory period for
service. Further, he asserts that trial counsel was ineffective in
failing to serve the subpoena before the statutory deadline.
(a) Subpoena Statutes
Two statutes are particularly relevant. The first one—from
Nebraska’s statutes governing criminal procedure—provides,
in part, that “[t]he statutes governing subpoenas in civil actions
and proceedings shall also govern subpoenas in traffic and
criminal cases . . . .” 27
The pertinent civil procedure statute, which is central to
the parties’ arguments, specifies the deadline for service of a
subpoena before a trial. The current version of § 25-1226(2)
states in full:
A subpoena for a trial must be served at least two days
before the day on which the person is commanded to
appear and testify. A court may shorten the period for
service for good cause shown. In determining whether
good cause exists, a court may consider all relevant circumstances, including, but not limited to, the need for the
testimony, the burden on the person, and the reason why
the person was not subpoenaed earlier.
This statutory period for service is relatively new, 28 and this
case presents our first opportunity to consider it. Prior to the
2017 amendment, there was no time limit imposed regarding
a subpoena issued for personal service. 29 We think it is helpful
to summarize the new requirement.
[9,10] Section 25-1226(2) now requires a subpoena for a
trial to be served at least 2 days before the person is ordered
27
Neb. Rev. Stat. § 29-1901(1) (Cum. Supp. 2024).
28
See 2017 Neb. Laws, L.B. 509, § 3.
29
See § 25-1226 (Reissue 2016).
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Cite as 318 Neb. 311
to appear and testify, unless a party shows good cause to
shorten the period for service. And “good cause,” for purposes
of § 25-1226(2), refers to “all relevant circumstances, including, but not limited to, the need for the testimony, the burden
on the person, and the reason why the person was not subpoenaed earlier.”
For completeness, we note that neither party raises any
issue of interpretation or constitutionality of the statute at
issue. The parties’ arguments concern the court’s application of
§ 25-1226(2) to conclude that Dat failed to show good cause.
(b) Additional Background
This is our first occasion to consider the revised version
of § 25-1226. For that reason, we expand the additional
background.
After the State rested its case, Dat’s counsel filed a praecipe for subpoena for a different corrections officer, Darla
Sparr, to testify at trial. The praecipe was filed at 11:54 a.m.
and requested that Sparr be ordered to testify at 1:30 p.m. that
afternoon.
The State moved to quash the subpoena, asserting that
Dat failed to comply with the statutory period for service
in § 25-1226(2). The State argued that Sparr was named in
discovery and in the information—which listed “DARLA E
SPARR” as a witness—and that she was a person known to
the defense. It also argued that Sparr was at work at the time
and that requiring her to testify with such little notice was
inappropriate and unfair to her.
Dat’s counsel urged the court to shorten the period for
service for good cause. He argued that the burden on Sparr
“[wa]sn’t that great to travel five minutes from the [c]orrections facility.” He also asserted that his cocounsel had already
spoken with Sparr on the telephone and that Sparr “did not
indicate that it would be any problem for her to appear and
pick up [the] subpoena.” Counsel further argued that the
defense “had no idea” what evidence the State would present
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Cite as 318 Neb. 311
at trial. Finally, counsel added that Sparr’s last name was listed
as “Dowty” in a report, so “it took us until yesterday, in fact,
to put together that was, in fact, the same person.”
The State responded that there was no explanation for why
the defense failed to seek a subpoena for Sparr—under either
last name—until the day of trial, roughly an hour before
she would be ordered to appear and testify. The State also
disputed the contention that the defense had no idea what
evidence would be at issue at trial. At that point, defense
counsel argued:
However, I would note that we did not know how . . .
Conklin was going to be testifying specifically to the
medical attention received by . . . Tilian and his — the
lack of their knowledge thereof, where . . . Sparr could
testify that she was the one that escorted [Tilian] out of
the facility, that he did not see anyone and where he went
after that.
The State countered that the defense failed to take steps during discovery to ascertain what information the two officers
possessed.
The court sustained the State’s motion to quash the subpoena as untimely, agreeing with the State that Dat failed to
show good cause to shorten the period for service. Defense
counsel then moved for a continuance to “properly” serve the
subpoena, which the court overruled. No error is assigned to
that ruling.
(c) Standard of Review
Prior to the 2017 amendment of § 25-1226, a ministerial
duty was imposed on the court clerk to issue a subpoena with
no deadline being provided for seeking issuance. 30 Since that
time, we have not had the opportunity to settle the standard of
review for a ruling regarding the deadline for service of a subpoena before a trial. The parties seem to agree that the question
is whether the trial court abused its discretion. We agree.
30
See Neb. Rev. Stat. § 25-1223 (Reissue 2016).
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[11,12] We hold that a trial court’s determination regarding the period for service of a subpoena for a trial under
§ 25-1226(2) will be upheld on appeal in the absence of an
abuse of discretion. 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. 31
[13,14] Whether a claim of ineffective assistance of counsel
may be determined on direct appeal is a question of law. 32 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. 33
(d) Discussion
(i) Failure to Show Good Cause
Dat contends that the court erred in failing to find there was
good cause to shorten the period for service upon Sparr. He
again attacks the sufficiency of the evidence showing bodily
injury, arguing the defense was “forced to call an impeachment witness for the purpose of contradicting the notion that
Ti[l]ian reported pain.” 34 He claims that the burden of proof
was improperly shifted to the defense. He also argues, mistakenly, that the information did not name Sparr as a witness.
He maintains that the burden on Sparr to testify was minimal
and that there would have been minimal, if any, delay in the
trial, had the court permitted Dat to serve the subpoena. These
arguments fail.
31
State v. Rivera-Meister, ante p. 164, 14 N.W.3d 1 (2024).
32
State v. Clark,
315 Neb. 736,
1 N.W.3d 487 (2024).
33
State v. Briggs,
317 Neb. 296,
9 N.W.3d 632 (2024).
34
Brief for appellant at 12.
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We agree with the State that the court did not abuse its discretion in quashing the subpoena for lack of timely service.
In rejecting Dat’s good cause argument, the court considered
the relevant factors. Regarding the need for the testimony, the
court noted that there had not been “much of a showing” of
what the testimony would be or that it could not have been
adduced from Conklin. And while the burden on Sparr may
have been minimal, the court also considered the burden on
her employer. Moreover, it found that there was no valid reason why Sparr was not subpoenaed earlier. We see nothing in
the court’s reasoning that was untenable or unreasonable, and
its action was not clearly against justice or conscience, reason,
and evidence.
(ii) Ineffective Assistance of Counsel
[15] Through different counsel, Dat claims that his trial
counsel provided ineffective assistance in failing to timely
serve the subpoena upon Sparr. 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. 35
[16-18] Generally, to prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 36 the
defendant must show that his or her counsel’s performance
was deficient and that this deficient performance actually
prejudiced the defendant’s defense. 37 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
35
State v. Haas, 317 Neb. 919,
12 N.W.3d 787 (2024).
36
Strickland v. Washington,
466 U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674
(1984).
37
State v.
Haas, supra note 35.
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training and skill in criminal law. 38 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. 39
[19] 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. 40
[20] Once raised, an appellate court will determine whether
the record on appeal is sufficient to review the merits of the
ineffective performance claims. 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
as a matter of law, or that trial counsel’s actions could not be
justified as a part of any plausible trial strategy. 41
On appeal, Dat faults trial counsel’s failure to serve the subpoena upon Sparr before the statutory deadline. He argues that
he was prejudiced by Sparr’s absence from trial, because she
would have testified to Tilian’s “statements or lack thereof and
her first-hand impressions of whether Tilian expressed that he
was in pain or had been injured.” 42
Assuming without deciding that trial counsel’s performance
was deficient, we conclude that as a matter of law, Dat will
not be able to establish prejudice. We have already concluded
that the evidence was sufficient to support Dat’s conviction,
and the record establishes that Sparr’s testimony would not
38
Id.
39
Id.
40
Id.
41
State v. Zitterkopf,
317 Neb. 312,
9 N.W.3d 896 (2024).
42
Brief for appellant at 13.
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have changed the outcome of trial. On this record, there is
no reasonable probability that but for the assumedly deficient
performance, the result of the proceeding would have been
different.
4. State’s Plain Error Argument
[21] In addition to Dat’s assignments, the State argues that
the court plainly erred in applying credit for time served to
Dat’s sentence. Plain error is error plainly evident from the
record and of such a nature that to leave it uncorrected would
result in damage to the integrity, reputation, or fairness of the
judicial process. 43
Section 28-932(2), provides, in part, that a sentence for
assault by a confined person “shall not include any credit for
time spent in custody prior to sentencing unless the time in
custody is solely related to the offense for which the sentence
is being imposed under this section.” (Emphasis supplied.) The
State asserts that Dat’s time in custody before sentencing was
not “‘solely related’” 44 to the instant offense, and therefore,
Dat should not have received credit for that time.
But the appellate record does not establish the time period
or periods from which the specific jail credit was derived.
The parties waived a presentence report. Although a “criminal records investigation” was apparently ordered by the trial
court, it is not included in the record presented here. The record
does show that Dat was already in custody when he committed
the instant offense—indeed, his confinement was an element
of the crime. 45 But it does not show whether Dat remained
in such other custody for all or part of the time between the
date of the instant offense (February 22, 2023) and the date
of sentencing thereon (November 9, 2023)—a period of 260
days. From this record, we cannot determine how the court
43
State v. Rush, supra note 26.
44
Brief for appellee at 21 (quoting § 28-932(2)).
45
See § 28-932(1)(a)(i).
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calculated the credit of 228 days. In the absence of a record
establishing that Dat remained in such other custody, we cannot find an error plainly evident from the record—an essential
predicate of plain error. 46
VI. CONCLUSION
As set forth in the analysis, we conclude the following:
• Physical manifestation of an injury is not required to meet the
definition of bodily injury in § 28-109(4).
• Relying upon the principle that a fact may be proved by direct
evidence alone, by circumstantial evidence alone, or by a
combination of the two, we reject Dat’s implicit argument that
Tilian’s direct testimony was necessary to establish that he suffered bodily injury.
• The Legislature has established a deadline for personal service
of a subpoena before trial, which a trial court may shorten for
good cause shown.
• A trial court’s decision whether to shorten the time for service
of a subpoena will be reviewed for an abuse of discretion.
Dat’s assignments of error lack merit, including his assignment of ineffective assistance of trial counsel. The record fails
to establish plain error in sentencing. The judgment of the district court is affirmed.
Affirmed.
46
See, also, State v. Rivera-Meister, supra note 31, ante p. 176, 14 N.W.3d at
9-10 (“[w]hen a trial court gives a defendant more or less credit for time
served than he or she is entitled to, that portion of the pronouncement of
sentence is erroneous and may be corrected to reflect the accurate amount
of credit as verified objectively by the record” (emphasis supplied)).
