Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/17/2025 09:15 AM CST
- 352 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
State of Nebraska, appellee, v.
Karsen H. Rezac, appellant.
___ N.W.3d ___
Filed January 17, 2025. No. S-24-281.
1. Criminal Law: Motions for Continuance: Appeal and Error. A decision whether to grant a continuance in a criminal case is within the
discretion of the trial court and will not be disturbed on appeal absent
an abuse of discretion.
2. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion
by the trial court.
3. 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.
4. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal
is a question of law. 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 assist
ance and whether the defendant was or was not prejudiced by counsel’s
alleged deficient performance.
5. Motions for Continuance: Appeal and Error. A court does not abuse
its discretion in denying a continuance unless it clearly appears that the
party seeking the continuance suffered prejudice because of that denial.
6. Criminal Law: Motions for Continuance: Appeal and Error. Where
the criminal defendant’s motion for continuance is based upon the
occurrence or nonoccurrence of events within the defendant’s own control, denial of such motion is no abuse of discretion.
7. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
- 353 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
must determine whether a sentencing court abused its discretion in
considering and applying the relevant factors, as well as any applicable
legal principles in determining the sentence to be imposed.
8. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
9. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
10. 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.
11. 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.
12. ____: ____: ____. 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.
13. Effectiveness of Counsel. Counsel’s performance is deficient when it
objectively does not equal that of a lawyer with ordinary training and
skill in criminal law in the area.
14. Confessions. Intoxication is not conclusive on the issue of the voluntariness of a statement.
15. Confessions: Miranda Rights: Waiver. When considering whether
intoxication rendered a waiver of Miranda rights involuntary, the
defendant must be so intoxicated that he or she is unable to understand
the meaning of his or her statements. If the trial judge is satisfied that
under the totality of the circumstances, the defendant was able to reason,
comprehend, or resist, the statements are to be admitted.
16. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffective for failing to raise a meritless argument.
17. Self-Defense. To successfully assert the claim of self-defense, a defend
ant must have a reasonable and good faith belief in the necessity of
- 354 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
using force and the force used in defense must be immediately necessary
and justified under the circumstances.
Appeal from the District Court for Lancaster County, Lori
A. Maret, Judge. Affirmed.
Matthew K. Kosmicki, of Kosmicki Law, L.L.C., for
appellant.
Michael T. Hilgers, Attorney General, Eric J. Hamilton, and
Lincoln J. Korell for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Funke, C.J.
I. INTRODUCTION
In this direct appeal, Karsen H. Rezac challenges his conviction and sentence for second degree murder. Rezac argues that
the district court for Lancaster County, Nebraska, abused its
discretion by declining to continue his sentencing hearing so
that his mental health records could be reviewed and submitted
to the court. Rezac also argues that the court abused its discretion by failing to adequately consider various mitigating factors
when sentencing him. In addition, Rezac argues that his trial
counsel was ineffective in multiple regards. We find the record
insufficient to address two of Rezac’s claims of ineffective
assistance of counsel. Otherwise, finding no merit to Rezac’s
arguments, we affirm his conviction and sentence.
II. BACKGROUND
The following paragraphs briefly describe the underlying
facts, as well as the proceedings below. Where relevant, other
information is discussed later in the opinion.
1. Factual Background
Early on December 23, 2022, two vehicles collided near
the intersection of 20th and Washington Streets in Lincoln,
- 355 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
Nebraska. Audible gunshots followed. Police officers responding to the scene found Kupo Mleya in the driver’s seat of a
sport utility vehicle. Mleya had suffered “gunshot wounds” and
died from his injuries. Mleya’s vehicle had damage consistent
with a collision; there were “numerous bullet holes” in the
driver’s door, and the driver’s window was shattered.
Based on vehicle debris in the area and witness reports,
Rezac was identified as a suspect. Rezac lived nearby and
had a sport utility vehicle whose color and type matched the
debris at the scene. Rezac’s vehicle was located several blocks
away. Damage on the vehicle’s passenger side was consistent
with the debris at the scene, and the rear passenger window
had damage consistent with gunshots being fired through it.
Shell casings were visible inside the vehicle. A subsequent
search of the vehicle located a 9-mm handgun and nine fired
9-mm casings.
On December 24, 2022, Rezac was taken into custody for
an interview. Rezac waived his Miranda rights and agreed to
make a statement. Rezac stated that while backing out of his
driveway, he collided with another vehicle. Rezac said that he
then “‘freaked out’” and fired approximately six shots toward
the other vehicle before fleeing the scene. Rezac stated that he
did not know the other driver.
Rezac was charged with second degree murder and use of a
firearm to commit a felony. However, pursuant to a plea agreement, Rezac subsequently pled no contest to second degree
murder and the State dropped the use of a firearm charge and
agreed not to file additional charges against Rezac based on
this investigation. Sentencing was deferred until March 27,
2024, pending the preparation of a presentence investigation report.
2. Motion to Continue Sentencing
The presentence investigation report became available for
counsel to review on March 21, 2024. The next day, Rezac’s
counsel moved to continue sentencing because probation had
- 356 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
not completed the report “in a timely manner” and had “failed
to gather material documents, including historical records
of mental health care” provided to Rezac. Rezac’s counsel
argued that in the 2 business days before trial, he did not have
sufficient time to review the report with Rezac or compile and
present to the court the information that the court would need
to determine an appropriate sentence. Rezac’s counsel also
suggested that the court would not have time to review the
information.
The State objected to the motion to continue and argued that
rescheduling the sentencing would cause unnecessary expense
and inconvenience to Mleya’s “nearest surviving relatives,”
who were coming from South Africa, Zimbabwe, Japan, and
Texas and had already arranged to be in Lincoln for sentencing
on March 27, 2024.
The court heard arguments that same day. At the hearing,
Rezac’s counsel argued that Rezac returned his completed
forms to probation on or around February 18, 2024, but that
probation did not interview Rezac until March 19. Counsel
also argued that the “bulk” of the presentence investigation
report was “police reports”; there were “zero mental health
records.” As such, counsel claimed that the defense needed
more time to figure out, among other things, “what in the
hundreds of pages of mental health care records” available to
the defense would need to be provided to the court. Counsel
also stated that he wanted to “make sure [the] Court ha[d]
enough time to review everything that’s presented to it.”
Counsel maintained that the presentence investigation report
should have been made available more than 6 calendar days
before sentencing in a second degree murder case and that the
State should have provided certain mental health records in
its possession.
The State presented testimony from the probation officer
who completed the presentence investigation report. The probation officer testified that all such reports are “upload[ed]
five business days prior to the sentencing date,” regardless
- 357 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
of the type of case. The probation officer also testified that
Rezac never provided any mental health records for inclusion
or directed her to look at specific records. However, the probation officer admitted that during Rezac’s interview, he told
her a specific provider had previously treated him for suicidal
ideation, that she did not have a release of information form
for that provider at the time of the interview, and that she
“forg[o]t or fail[ed] to go back and have . . . Rezac sign that
release” so she could request those records. The probation
officer indicated that she was willing to do so following the
hearing. Otherwise, the probation officer testified that while
Rezac indicated he “had done counseling in the past,” he did
not indicate where, so she could not obtain those records.
The State then argued that there was “ample time” to review
any records. The State observed that the discovery materials
it provided to Rezac would have included “any medical or
any psychological reports” it had and that Rezac “had those
for a length of time.” The State similarly observed that Rezac
previously identified a psychologist as a potential witness and
that thus, the contents of the missing records “shouldn’t come
as any surprise.”
The district court agreed with the State. The court stated
that “seasoned counsel,” like those here, should know that
if defense counsel wants information included in the presentence investigation report, counsel needs to provide that information to probation. “[I]t’s not up to the County Attorney to
delve into the life of . . . Rezac if he can provide that himself
and if he wants the Court to know about it.” Further, the court
stated that it never received presentence investigation reports
more than 5 to 7 days prior to sentencing, regardless of the
charge. The court indicated that it ordered a presentence
investigation report for its own purposes, that it received
the report, and that it “ha[d] what it needs and . . . the time
it needs in order to do its job.” As such, the court denied
Rezac’s motion to continue sentencing.
- 358 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
3. Sentencing Hearing
The sentencing hearing was held as scheduled on March 27,
2024. At the hearing, the court indicated that it had reviewed
and considered the presentence investigation report, as well
as several supplemental items dated March 22, 25, and 26,
2024. The records from the provider who had treated Rezac
for suicidal ideation were not among the supplemental items.
However, there was a letter from Rezac’s counsel asking the
court to take into account various mitigating factors, including
Rezac’s “intense mental health issues during the weeks prior to
[the] shooting.”
Exercising his right to allocution, Rezac apologized to
Mleya’s family and took “full responsibility” for the shooting.
Rezac recognized a need to address “[his] demons,” rather than
“suppress them with substance abuse.” Rezac also observed
that the “company [he] kept enabled [him] to make unfavorable decisions.” Rezac stated that he was “aware of the time
[in prison] that [he was] facing” and planned to use it for
“self-improvement.”
The court then stated that it had reviewed “a lot of information” regarding Rezac, including his “mental health information,” but that it was at a loss as to why the shooting occurred.
The court observed:
There are lots of people who have grown up in families
where their parents are divorced. There’s lots of people
who’ve grown up with mental illnesses, diagnoses of
depression and anxiety. There are lots of people who’ve
suffered losses in their lives of loved ones. And there
are lots of people who, frankly, didn’t have access to the
resources that [Rezac] had throughout [his] life. . . .
....
[He] had access to the resources and the medications
. . . and the treatment for [his] mental illness. But yet [he]
still used marijuana and cocaine and other substances . .
. . And that just made [his] bad situation worse.
- 359 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
The court reasoned that insofar as the help Rezac received
had not kept the community safe from harm, “the safest place
for the community [was] with [Rezac] not in it.” Accordingly,
the court found that based on the nature and circumstances
of the crime and Rezac’s history, character, and condition,
imprisonment was necessary for the protection of the public
because there was a substantial risk that Rezac would engage
in additional criminal conduct during any period of probation
and because a lesser sentence would depreciate the seriousness of the crime and promote disrespect for the law. The
court sentenced Rezac to imprisonment for a term of 60 years
to life.
Rezac appeals his conviction and sentence.
III. ASSIGNMENTS OF ERROR
Rezac assigns, restated, that the district court abused its
discretion in denying his request to continue sentencing and
by imposing an excessive sentence. Rezac also assigns that
his trial counsel was ineffective in multiple regards, as set
forth below.
IV. STANDARD OF REVIEW
[1-3] A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will
not be disturbed on appeal absent an abuse of discretion. 1
An appellate court will also not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. 2 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
1
State v. Turner, 315 Neb. 661,
998 N.W.2d 783 (2024).
2
State v. Barnes,
317 Neb. 517,
10 N.W.3d 716 (2024).
3
State v. Haas,
317 Neb. 919,
12 N.W.3d 787 (2024).
- 360 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
[4] Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. 4
In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. 5
V. ANALYSIS
1. Denial of Motion to
Continue Sentencing
Rezac argues that the district court abused its discretion in
declining to continue sentencing so that “[his] counsel could
gather mental health records and provide them to . . . probation” for inclusion in the presentence investigation report. 6
Rezac points to his trial counsel’s statement that counsel
needed more time to “review . . . the enormous amount of
mental health records he had” and determine what was relevant, among other things. 7 Rezac also argues that because
the district court did not have his mental health records, the
court “could not have considered all of the relevant factors,”
as discussed below, when sentencing him. 8 The State counters
that Rezac waived this argument and that the argument is otherwise without merit.
We agree with the State that Rezac forfeited “his right
to argue that the lack of records prejudiced him.” 9 As we
recently explained in State v. Horne, 10 although the terms are
4
See State v. Clark, 315 Neb. 736,
1 N.W.3d 487 (2024).
5
Id.
6
Brief for appellant at 18.
7
Id. at 20.
8
Id. at 21.
9
Brief for appellee at 18.
10
State v. Horne,
315 Neb. 766, 777,
1 N.W.3d 457, 465 (2024).
- 361 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
sometimes used interchangeably, “‘[w]aiver is different from
forfeiture. Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the intentional relinquishment
. . . of a known right.’” The defendant in Horne argued,
among other things, that the district court erred in sentencing him without first ordering a presentence investigation. 11
We rejected that argument. 12 In so doing, we explained that
“some rights (such as the constitutional rights to counsel and
trial by jury) can be waived, but cannot be given up through
mere forfeiture. . . . Many other rights, however, including
many of constitutional origin, are subject to forfeiture if not
timely asserted.” 13
In Horne, we concluded that the statute requiring presentence investigation reports in certain cases was not “comparable to the constitutional rights to counsel or trial by jury, such
that a party cannot forfeit objections based on [the statute] if
not timely asserted in the trial court.” 14 We also found some
indication that the defendant in that case actually waived the
presentence investigation. 15 “More importantly,” we found that
“this [was] not a case in which the district court lacked critical
information about a defendant at sentencing.” 16
Although Horne involved the failure to complete a presentence investigation report and not just the absence of certain
information from such a report, it makes clear that Rezac forfeited his argument here. At the sentencing hearing, the court
asked Rezac’s counsel whether he had “had an opportunity
to review all of [the presentence] information” and whether
counsel had “[a]ny additions or corrections that need[ed]
11
Id.
12
See
id.
13
Id. at 778, 1 N.W.3d at 466.
14
Id. at 778-79, 1 N.W.3d at 466. See
Neb. Rev. Stat. § 29-2261(1) (Cum.
Supp. 2022).
15
See
Horne, supra note 10.
16
Id. at 780, 1 N.W.3d at 467.
- 362 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
to be made.” Counsel responded that he had the opportunity to review the report and supplemental items and then
proceeded to make certain corrections to the report without
raising the lack of mental health records. Rezac was present
and remained silent when trial counsel made this statement.
Rezac then exercised his right of allocution, without mentioning the missing mental health records or the allegedly
mitigating information contained in them. Thereafter, when
asked if there was any legal reason why sentence should not
be imposed, Rezac’s counsel said, “No.” We have previously
found that a defendant had given up the right to a presentence
investigation report under similar circumstances. 17
However, even if Rezac’s argument were not seen to have
been forfeited, it would still fail under our precedents.
[5,6] As we have previously stated, a court does not abuse
its discretion in denying a continuance unless it clearly appears
that the party seeking the continuance suffered prejudice
because of that denial. 18 Also, where the criminal defendant’s
motion for continuance is based upon the occurrence or non
occurrence of events within the defendant’s own control, denial
of such motion is no abuse of discretion. 19
In his arguments on appeal, Rezac variously references his
mental health history and his mental health records. However,
insofar as his concern is with his mental health history generally, Rezac cannot be seen to have been prejudiced by the
denial of the continuance. Rezac claims that his “mental health
history . . . would have shown that it has been documented
that he has several mental health conditions.” 20 However,
Rezac’s mental health history, including the specific conditions that Rezac notes, were all discussed in the presentence
17
See State v. Iddings,
304 Neb. 759,
936 N.W.2d 747 (2020).
18
State v. Baxter,
295 Neb. 496,
888 N.W.2d 726 (2017).
19
Id.
20
Brief for appellant at 21.
- 363 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
investigation report. 21 The report and supplemental items also
reflected Rezac’s view that his mental health was “spiraling
out of control” at the time of the shooting. 22
It is true that the presentence investigation report did not
include Rezac’s mental health records and, in particular, the
records of the provider who had treated him for suicidal ideation in 2016. However, we reject Rezac’s claim that the lack
of these records was not within his control. Rezac faults probation for both the delay in making the presentence investigation report available and the “failure . . . to gather any mental
health records.” 23 We take a different view. The record shows
that there was no delay in making the presentence investigation report available in this case; instead, the report was made
available at the time when such reports are generally made
available. The record also shows that Rezac failed to provide
probation—or the trial court—with any mental health records,
despite having such records available to him.
An “Insanity Evaluation” of Rezac completed on September
29, 2023, was based, in part, on a review of materials from
six different mental health care providers, including the provider who had treated Rezac for suicidal ideation. On or
about March 24, 2024, a “Sentencing Report” was prepared
by a mitigation specialist working with Rezac’s counsel. The
report was similarly based on records from six different providers, including the “[c]omplete [f]ile” of the provider who
had treated Rezac for suicidal ideation. These documents
show that Rezac clearly had the records from at least those six
21
See, e.g.,
Baxter, supra note 18 (finding no prejudice in denial of
continuance so that defendant could obtain drug and alcohol evaluation
where presentence investigation report included ample information about
defendant’s substance abuse issues). See, also,
Horne, supra note 10
(district court not lacking information about defendant at sentencing).
22
Brief of appellant at 17.
23
Id. at 22.
- 364 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
providers. However, Rezac failed to provide those records to
probation or the court. 24
As to Rezac’s argument that other records, such as his
school records, should also have been provided to the court,
we observe that the presentence investigation report already
included his childhood diagnosis of attention deficit hyperactivity disorder, his difficulties following his parents’ divorce,
and his having been bullied. Beyond those facts, Rezac “does
not specify what information is lacking or how it might have
affected the court’s sentencing decision.” 25
2. Sentence of Imprisonment for
Term of 60 Years to Life
Rezac also argues that the district court abused its discretion
in sentencing him to imprisonment for a term of 60 years to
life. Rezac does not dispute that his sentence was within the
statutory limits. However, Rezac maintains that his sentence
was excessive because the district court “failed to adequately
consider” or “ignored” mitigating factors, including his age,
health, life circumstances, rehabilitative needs, and willingness
to plead no contest. 26 The State, on the other hand, argues that
there was no abuse of discretion here.
[7,8] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion in
considering and applying the relevant factors, as well as any
applicable legal principles in determining the sentence to be
imposed. 27 In determining a sentence to be imposed, relevant
24
See, e.g., Horne, supra note 10, 315 Neb. at 780, 1 N.W.3d at 467 (“if
there was additional information that [the defendant] felt was relevant
to the district court’s sentencing decision, we see no reason why [the
defendant] could not have offered that information prior to sentencing”);
Baxter, supra note 18 (similar).
25
See
Baxter, supra note 18,
295 Neb. at 500,
888 N.W.2d at 731.
26
Brief for appellant at 24, 26.
27
Barnes, supra note 2.
- 365 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
factors customarily considered and applied are the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social
and cultural background, (5) past criminal record or record of
law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime. 28
[9] The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts
and circumstances surrounding the defendant’s life. 29
There is nothing in the record that indicates the district
court failed to consider the relevant mitigating factors. The
record shows that the court considered the presentence investigation report and the supplemental items. Those materials
addressed the various mitigating factors noted by Rezac. In its
comments at sentencing, the court even highlighted several of
those mitigating factors, including Rezac’s parents’ divorce,
his childhood mental health issues, his depression and anxiety,
and the death of his grandmother. However, the court also
considered other factors, such as the nature and circumstances
of the crime, the myriad “resources” that had been available
to Rezac in dealing with his mental health issues, and Rezac’s
resort to illegal drugs. Ultimately, the court determined that
“[no] amount of help” would keep the community “safe from
[Rezac]” and that a relatively lengthy sentence of imprisonment was instead warranted.
Rezac’s real concern appears to be the conclusion reached
by the court based upon its consideration of the mitigating
factors, and not the failure to consider these factors per se.
However, we decline Rezac’s invitation to substitute our judgment of an appropriate sentence for that of the district court.
That is not our role; “it is not our function to conduct a de
28
Id.
29
Id.
- 366 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
novo review of the record to determine what sentence we
would impose.” 30
As to Rezac’s willingness to plead no contest, in particular,
we have long held the view that while a more severe punishment cannot be exacted because a defendant pleads not guilty
and puts the State to the expense of a trial, a defendant nonetheless has no absolute right to a reduced sentence because
he saves the State the expense of going to trial. 31 We do not
understand State v. Lotter 32 to mark a change in this view. In
Lotter, we did opine that “it is proper for a trial court to grant
sentence concessions to defendants who plead guilty when the
interest of the public in the effective administration of criminal
justice would be served.” 33 However, immediately after that
statement, we clarified that “[s]uch concessions should originate with the parties.” 34 Here, the plea agreement merely provided for dismissal of the use of a firearm charge and offered
no sentencing concessions.
3. Alleged Ineffective Assistance of Counsel
Rezac also argues, restated, that his trial counsel was ineffective under the test in Strickland v. Washington 35 in (1) failing to move to suppress Rezac’s statement to law enforcement,
(2) failing to “fully explain” the penalties for second degree
murder, (3) advising Rezac that he could not “present a self-defense argument,” (4) “failing to explain and advise” about
the difference between second degree murder and involuntary
30
Horne, supra note 10, 315 Neb. at 780, 1 N.W.3d at 467.
31
State v. Suffredini,
224 Neb. 220,
397 N.W.2d 51 (1986). See, also, State
v. Moore,
4 Neb. App. 564,
547 N.W.2d 159 (1996).
32
State v. Lotter,
255 Neb. 456,
586 N.W.2d 591 (1998), modified on denial
of rehearing
255 Neb. 889,
587 N.W.2d 673 (1999).
33
Id. at 476,
586 N.W.2d at 611.
34
Id.
35
Strickland v. Washington,
466 U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674
(1984).
- 367 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
manslaughter, and (5) failing to provide Rezac’s mental health
records to probation or the court.
[10] On direct appeal, Rezac has new counsel who was not
his trial counsel. 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. 36
[11-13] However, the fact that an ineffective assistance of
counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. 37 The determining factor is
whether the record is sufficient to adequately review the question. 38 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. 39 Counsel’s performance is deficient
when it objectively does not equal that of a lawyer with ordinary training and skill in criminal law in the area. 40
(a) Not Moving to Suppress Statement
to Law Enforcement
As was noted above, Rezac waived his Miranda rights and
made a statement to law enforcement. However, on appeal,
Rezac argues that his statement was not voluntary because
he had ingested illegal drugs and “was ‘high’” at the time of
the interview. 41 Rezac claims that when he informed his trial
counsel of this, counsel failed to investigate his claim, failed
36
Haas, supra note 3.
37
Id.
38
Id.
39
State v. Zitterkopf,
317 Neb. 312,
9 N.W.3d 896 (2024).
40
State v. Jaeger,
311 Neb. 69,
970 N.W.2d 751 (2022).
41
Brief for appellant at 31.
- 368 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
to advise him that intoxication may invalidate a Miranda
waiver, and failed to move to suppress his statement. Rezac
claims that he was prejudiced by this deficient performance
because, absent his statement, there was “no concrete evidence
placing [him] at the scene as the shooter that killed [Mleya].” 42
The State counters that under our precedents regarding intoxication, trial counsel’s performance was not deficient.
[14,15] As we have stated, intoxication is not conclusive on
the issue of the voluntariness of a statement. 43 Rather, when
considering whether intoxication rendered a waiver of Miranda
rights involuntary, the defendant must be so intoxicated that he
or she is unable to understand the meaning of his or her statements. 44 If the trial judge is satisfied that under the totality of
the circumstances, the defendant was able to reason, comprehend, or resist, the statements are to be admitted. 45
Based on the record before us, trial counsel cannot be said
to have been deficient in failing to move to suppress Rezac’s
statement based on intoxication. Rezac relies on his statements
to law enforcement that he smoked marijuana before the shooting, ingested cocaine before and after the shooting, and was
taking prescribed medications for his mental health. Rezac
claims that from these statements, it is “clear” that he “likely
was under [the] influence” at the time of the interrogation. 46
However, the test stated above requires more than merely
being under the influence. Instead, one must be so intoxicated
that he or she is unable to understand the meaning of his or
her statements.
We see no sign of that here. In the recording of Rezac’s
interview with police, he appeared to be able to reason and
42
Id. at 32.
43
State v. Williams,
269 Neb. 917,
697 N.W.2d 273 (2005).
44
Id.
45
Id. See, also, State v. Melton,
239 Neb. 790,
478 N.W.2d 341 (1992); State
v. Lamb,
213 Neb. 498,
330 N.W.2d 462 (1983).
46
Brief for appellant at 31.
- 369 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
comprehend the questions, and he answered coherently. Rezac
did not give any indication that he did not understand his
rights or the questions asked of him. Rezac audibly cried
during the interview, including upon hearing that Mleya had
died. Rezac can also be heard prior to the interview telling
himself, “Damn Karsen, this is how you want to live your
life.” However, we do not view these reactions to be the
product of or indicative of intoxication, but, rather, as understandable responses to the circumstances in which Rezac
found himself.
[16] Because the record shows that Rezac was able to
reason, comprehend, or resist at the time of the interview, a
motion to suppress based on intoxication would have been
meritless. As a matter of law, counsel cannot be ineffective for
failing to raise a meritless argument. 47
(b) Not Explaining Penalties for
Second Degree Murder
Rezac also argues that his trial counsel was ineffective
for failing to “fully explain” the penalties for second degree
murder. 48 Specifically, Rezac claims that trial counsel failed to
advise him that “the minimum portion of the sentence could
be more than twenty years” and that “‘life’ meant that he
could be imprisoned for the rest of his natural life.” 49 Rezac
claims that he entered the plea agreement based on the incomplete advice of trial counsel and that had he correctly understood the penalties, he would have insisted on going to trial.
The State, in contrast, asserts that State v. Blaha 50 forecloses
this claim.
In Blaha, the defendant argued that his trial counsel was
ineffective in failing to advise him of the statutory sentencing
47
See State v. Mabior, 314 Neb. 932,
994 N.W.2d 65 (2023).
48
Brief for appellant at 33.
49
Id.
50
State v. Blaha,
303 Neb. 415,
929 N.W.2d 494 (2019).
- 370 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
ranges and that counsel guaranteed a sentence of 12 to 20
years’ imprisonment. 51 We found that the record “show[ed]
otherwise.” 52 In particular, we observed that the record showed
that at the plea hearing, the court informed the defendant that
the maximum possible sentence for each offense was 50 years’
imprisonment; that the defendant denied that anyone had
made any promises to him in exchange for his pleas beyond
the plea agreement; and that the defendant confirmed that he
understood the court alone would decide his sentences. 53 From
these statements, we concluded that the record affirmatively
refuted the defendant’s claim that he was not advised of the
statutory sentencing ranges and was promised 12 to 20 years’
imprisonment. 54 As such, we found that the defendant’s argument was without merit. 55
We agree with the State that in light of Blaha, this claim
of ineffective assistance is meritless. At the plea hearing, the
district court informed Rezac that his offense was punishable
by anywhere from 20 years’ imprisonment up to life imprisonment. Rezac stated that he understood the potential punishments. Rezac also stated that the court had not used any
words he did not understand; that he understood what he was
charged with and did not have any questions; that he understood that within the limits of statute, the determination of an
appropriate sentence was entirely up to the court; and that he
still wished to plead no contest.
(c) Advice That Self-Defense
Was Not Viable Argument
Rezac similarly argues that his trial counsel was ineffective for advising him that self-defense was not a “viable”
51
Id.
52
Id. at 424,
929 N.W.2d at 502.
53
Id.
54
See
id.
55
See
id.
- 371 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
argument and that he should “forget it.” 56 Rezac claims that
shortly before the shooting, he received a death threat. Rezac
claims that considering this threat, he perceived himself to
be in imminent danger when Mleya collided with him and
then “revved his engine after the collision.” 57 As such, Rezac
claims that his counsel should not have discounted a self-defense argument and that had he been correctly advised
regarding self-defense, he would not have pled no contest
and instead would have proceeded to trial. The State, in turn,
argues that counsel’s performance was not deficient because
Rezac could not claim to have acted in self-defense under
Nebraska law.
[17]
Neb. Rev. Stat. § 28-1409(1) (Reissue 2016) provides,
in relevant part, that “the use of force upon or toward another
person is justifiable when the actor believes that such force
is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person
on the present occasion.” We have interpreted § 28-1409 to
mean that to successfully assert the claim of self-defense,
a defendant must have a reasonable and good faith belief
in the necessity of using force. 58 Further, the force used in
defense must be immediately necessary and justified under the
circumstances. 59
We agree with the State that Rezac could not claim to
have acted in self-defense under these authorities. The record
reflects Rezac’s belief that at the time of the accident, “‘[i]t
was [Mleya] or [him].’” However, Rezac’s belief in the necessity of force cannot be seen to have been reasonable under
the circumstances. As the State observes, “Vehicle collisions
are commonplace and are not often intentional attempts to
56
Brief for appellant at 35.
57
Id.
58
State v. Johnson,
314 Neb. 20,
988 N.W.2d 159 (2023).
59
Id.
- 372 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
injure.” 60 This particular collision arose while Rezac was backing his vehicle out of his driveway onto the street. In other
words, instead of Rezac’s being “struck by a car,” as he
argues, 61 Rezac could be seen to have struck Mleya’s vehicle.
Also, Mleya was going only 21 miles per hour at the time of
impact, and Mleya backed up his vehicle after revving his
engine. There is nothing here that would have prompted a reasonable person to connect the collision or revving the engine
to the threat made to Rezac. To the contrary, Rezac informed
police that he was in an “irrational state of mind” at the time of
the collision and that his judgment was likely affected by his
prior drug use, essentially acknowledging that his belief in the
necessity of force was not reasonable.
Similarly, the force used by Rezac was not immediately
necessary and justified under the circumstances. Within 13
seconds of the collision, Rezac had pulled a gun and fired at
Mleya’s vehicle approximately six times. Rezac did not wait
longer before firing to see if anything further would transpire.
Nor does he appear to have directed his shots consistent with
his claim that he sought only to disable Mleya’s vehicle and
not to injure Mleya. Instead, Rezac’s shots hit the driver’s side
door and window of Mleya’s vehicle.
(d) Not Explaining Difference Between
Second Degree Murder and
Involuntary Manslaughter
Rezac further argues that his trial counsel was ineffective
for failing to explain the difference between second degree
murder and involuntary manslaughter, or “caus[ing] the death
of another unintentionally while in the commission of an
unlawful act.” 62 Rezac claims that counsel dismissed involuntary manslaughter out of hand because it was “impossible to
60
Brief for appellee at 31.
61
Brief for appellant at 37.
62
Neb. Rev. Stat. § 28-305 (Reissue 2016).
- 373 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
argue [that Rezac] acted unintentionally.” 63 Rezac claims that
had the matter been explained to him, he would have rejected
the plea agreement and proceeded to trial. However, Rezac
also argues that the record is insufficient to address this claim.
The State agrees with Rezac as to the sufficiency of the record
on appeal.
We take a similar view. The record before us is devoid of
evidence of Rezac’s conversations with his counsel regarding
this matter or any possible trial strategy that counsel may have
had in recommending the plea agreement.
(e) Not Providing Mental Health Records
Finally, Rezac argues that his trial counsel was ineffective
in failing to provide the “mental health records in his possession” to probation or the trial court. 64 Rezac claims that he
informed counsel of his mental health history and medications and that he repeatedly asked counsel to ensure the court
reviewed this information prior to sentencing. Rezac claims
that counsel failed to do so, even after it was discovered
that the presentence investigation report lacked any mental health records. Rezac claims that he was prejudiced by
counsel’s failure because “[the] records contained mitigating
information.” 65 However, Rezac also claims that the record is
insufficient to review this claim on direct appeal. The State, in
turn, argues that the claim fails because Rezac cannot show he
was prejudiced. Alternatively, the State argues that the record
is insufficient to address this claim.
We reject the State’s argument regarding the lack of prejudice. As we have explained, when a claim of ineffective assist
ance of trial counsel is raised in a direct appeal, the appellant
is not required to allege prejudice. 66 However, we agree with
63
Brief for appellant at 37.
64
Id. at 39.
65
Id. at 41.
66
See Zitterkopf, supra note 39.
- 374 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
STATE V. REZAC
Cite as 318 Neb. 352
the parties that the record is insufficient to review the claim.
The mental health records that trial counsel failed to provide
to probation and the court are obviously not part of the record
on appeal, and there is no indication of trial counsel’s strategy
in not providing such records.
VI. CONCLUSION
The record on direct appeal is insufficient to address two
of Rezac’s claims of ineffective assistance of trial counsel.
Otherwise, finding no merit to Rezac’s arguments, we affirm
his conviction and sentence.
Affirmed.
