State v. Loding

296 Neb. 670

895 N.W.2d 669

STATE of Nebraska, appellee,

v.Bashir V. LODING, appellant.

No. S-16-614

Supreme Court of Nebraska.

Filed May 12, 2017.

Thomas C. Riley, Douglas County Public Defender, W. Patrick Dunn, Omaha, and Andrew J.K. Johnson, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and Funke, JJ.

Per Curiam.

I. INTRODUCTION

In this direct appeal, Bashir V. Loding challenges his conviction for first degree sexual assault of a child. He alleges that he received ineffective assistance of counsel, that there was insufficient evidence to support his conviction, and that he received an excessive sentence. He presents one issue of first impression: whether representation by a former senior certified law student, who was not yet an admitted member of the Nebraska bar, although accompanied by an admitted lawyer, constitutes per se ineffective assistance of counsel. We conclude that it does not. The record is insufficient to address two claims of ineffective assistance. Because we find no merit in Loding's other claims, we affirm the judgment of the district court.

II. BACKGROUND

Loding was charged with first degree sexual assault of a child. The information filed alleged that on or about May 1 through September 17, 2015, Loding, a man at least 19 years old or older, subjected A.B., a child less than 12 years old, to sexual penetration.

1. EVIDENCE AT TRIAL

Trial was held in April 2016, at which A.B. testified that she was born in 2006 and lived in Douglas County, Nebraska. She testified that Loding was her mother's friend and that he was 43 years old. She testified that Loding would visit her home and that beginning in May 2015, he penetrated her anus with his penis on multiple occasions. He also penetrated her anus and vagina with his fingers on multiple occasions.

She was able to describe events in detail, what his penis looked like, and how after he penetrated her anus, "sometimes [her] pee would be brown." Her older sister corroborated her testimony and confirmed that Loding had access to A.B. without her mother's direct supervision.

Several expert witnesses testified as to A.B.'s initial disclosure and explained that her allegations were consistent with her testimony and not unusual for child victims of sexual assault.

Loding did not testify in his own behalf or call any witnesses.

2. CONVICTION AND SENTENCE

The jury convicted Loding of first degree sexual assault of a child, and the district court sentenced Loding to 35 to 50 years' imprisonment with credit for 129 days served.

Loding timely appealed, and we granted the State's petition to bypass review by the Nebraska Court of Appeals.

III. ASSIGNMENTS OF ERROR

Loding assigns, reordered and restated, that (1) he received ineffective assistance of counsel when (a) a former senior certified law student, who was not yet an admitted member of the Nebraska bar, participated in critical stages of the proceedings, (b) he did not validly consent to representation by a certified law student, and (c) trial counsel made prejudicial remarks during opening statement and closing argument; (2) there was insufficient evidence to sustain a guilty verdict; and (3) his sentence was excessive.

IV. STANDARD OF REVIEW

Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law.¹ In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only questions of law: Are the undisputed facts contained within the record 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?²

In reviewing 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.³

We will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.⁴ 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.⁵

V. ANALYSIS

1. INEFFECTIVE ASSISTANCE OF COUNSEL

Loding is represented on direct appeal by different counsel than the counsel who represented him at trial. 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.⁶ 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 will recognize whether the claim was brought before the appellate court.⁷

The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved.⁸ The determining factor is whether the record is sufficient to adequately review the question.⁹

To establish a right to postconviction relief because of counsel's ineffective assistance, the defendant has the burden, in accordance with Strickland v. Washington ,¹⁰ to show that counsel's performance was deficient; that is, counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.¹¹ Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case.¹² To show prejudice, the defend ant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.¹³ A court may address the two prongs of this test, deficient performance and prejudice, in either order.¹⁴

(a) Per Se Ineffective Assistance of Counsel

Loding alleges that he received ineffective assistance of counsel because he was represented by a law school graduate who was not a certified senior law student or an admitted member of the Nebraska bar. He invites this court to find per se ineffective assistance of counsel.

This is an issue of law, and the record is sufficient to adequately review this claim. Before we do, we assess the law school graduate's senior certified status.

(i) Senior Certified Status

Loding was represented at trial by a licensed attorney, James Schaefer, and the attorney's son, Robert Schaefer. At one point, Robert had been certified to practice law under James' supervision pursuant to our rules authorizing limited practice of law by senior law students.¹⁵ Believing that he was still certified to practice, Robert participated during voir dire and gave the opening statement and closing argument at Loding's trial in April 2016.

But Robert's status had changed. He graduated from law school in the spring of 2015. After graduation, he took both the Uniform Bar Examination (UBE)¹⁶ and the Multistate Professional Responsibility Examination (MPRE).¹⁷ He passed the UBE but failed the MPRE. And the record is clear that he was notified of this failure prior to the April 2016 trial.

The first question is how this affected his senior practice certification. The relevant senior practice rule provides that senior certification of a law student "shall terminate if the student does not take the first bar examination following his or her graduation, or if the student takes such bar examination and fails it , or if he or she is admitted to full practice before this court."¹⁸

Before applying this rule, however, we must determine whether the rule's use of the term "bar examination"¹⁹ applies only to the UBE or to both the UBE and the MPRE. The State suggests that it is unclear whether failure of the MPRE is a terminating event under the rule and argues that "the passing of the MPRE is a prerequisite to the ethical practice of law in this state but it has nothing to do with the legal ability of the attorney."²⁰ We disagree.

Just as statutes relating to the same subject are in pari materia and should be construed together,²¹ our rules should be read and construed together. "Examination applicants are required to pass the MPRE and are required to pass by a combined score the [component parts of the UBE]."²² This rule makes it clear that the "bar examination" consists of both the UBE and the MPRE and that examination applicants (including Robert) are required to pass both of them. In other words, a failure of either the MPRE or the UBE, taken after graduation, is a failure of the "bar examination." Because Robert's failure to pass the MPRE, and thus, the bar examination, was known before Loding's trial, Robert's certification under the senior practice rules had terminated before the trial.

The second question is whether, as the State also argues, Robert still met the substantive requirements to provide effective assistance of counsel. In making this argument, the State analogizes the passing of the MPRE to the paying of bar dues as mere " ‘technical licensing requirements' " and argues that Robert was "otherwise competent and qualified to act as counsel."²³ We disagree.

As we have already explained, a passing score on the MPRE is a substantive requirement for admittance to the Nebraska bar.²⁴ The MPRE measures "examinees' knowledge and understanding of established standards related to the professional conduct of lawyers."²⁵ These standards guide the Nebraska Rules of Professional Conduct to which all licensed attorneys within Nebraska are held accountable. Violations of these standards and rules...