State v. Sidzyik

281 Neb. 305

795 N.W.2d 281

STATE of Nebraska, appellee,

v.Donald L. SIDZYIK, appellant.

No. S–10–278.

Supreme Court of Nebraska.

April 1, 2011.

Syllabus by the Court

1. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

2. 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.

3. Appeal and Error: Words and Phrases. Plain error will be noted only where an error is evident from the record, prejudicially affects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

4. 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.

5. Effectiveness of Counsel: Proof: Appeal and Error. In order to establish a right to relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defense in his or her case.

6. Effectiveness of Counsel: Proof. The two prongs of the ineffective assistance of counsel test, deficient performance and prejudice, may be addressed in either order.

7. Postconviction: Effectiveness of Counsel: Records: Appeal and Error. In order to raise the issue of ineffective assistance of trial counsel where appellate counsel is different from trial counsel, a defendant must raise on direct appeal any issue of ineffective assistance of trial counsel which is known to the defendant or is apparent from the record, or the issue will be procedurally barred on postconviction review.

8. Trial: Effectiveness of Counsel: Appeal and Error. Appellate courts have generally reached ineffective assistance of counsel claims on direct appeal only in those instances where it was clear from the record that such claims were without merit or in the rare case where trial counsel's error was so egregious and resulted in such a high level of prejudice that no tactic or strategy could overcome the effect of the error, which effect was a fundamentally unfair trial.

9. Plea Bargains. When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

10. Effectiveness of Counsel: Proof. To demonstrate that his or her counsel's performance was deficient, a defendant must show that counsel did not perform at least as well as a criminal lawyer with ordinary training and skill in the area.

11. Trial: Effectiveness of Counsel: Presumptions. In determining whether trial counsel's performance was deficient, there is a strong presumption that counsel acted reasonably.

12. Trial: Attorneys at Law: Appeal and Error. An appellate court affords trial counsel due deference to formulate trial strategy and tactics.

13. Sentences: Appeal and Error. An abuse of discretion in imposing a sentence occurs when a sentencing court's reasons or rulings are clearly untenable and unfairly deprive the litigant of a substantial right and a just result.

14. Sentences. In imposing a sentence, the sentencing court is not limited to any mathematically applied set of factors.

15. Sentences. 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.

16. Sentences. In imposing a sentence, a judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, the motivation for the offense, the nature of the offense, and the amount of violence involved in the commission of the crime.

Chad M. Brown and Jeremy C. Jorgenson, Omaha, for appellant.Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.MILLER–LERMAN, J.

NATURE OF CASE

This case is before us on a petition for further review in which appellant, Donald L. Sidzyik, claims that the Nebraska Court of Appeals erred with respect to three sentencing issues. Sidzyik was convicted in Douglas County District Court of second degree sexual assault based on a plea agreement. At the sentencing hearing, the State failed to remain silent as had been promised in the plea agreement and instead commented that its position was stated in the presentence investigation (PSI), which recommended a substantial period of incarceration. Sidzyik was sentenced to 18 to 20 years' incarceration, with credit for 33 days served.

On direct appeal to the Court of Appeals, Sidzyik claimed that he received ineffective assistance of trial counsel based on his counsel's failure to object when the State did not stand silent at sentencing, that the district court committed plain error when it proceeded with sentencing after the breach of the plea agreement, and that the sentence imposed was excessive. The Court of Appeals summarily affirmed Sidzyik's conviction and sentence.

Sidzyik petitioned for further review. We granted the petition. We determine that the record is insufficient to determine the ineffective assistance of counsel claim, that there was no plain error, and that the sentence imposed was not an abuse of discretion. Accordingly, we affirm.

STATEMENT OF FACTS

Sidzyik was originally charged with first degree sexual assault on a child, his biological daughter. The sexual assault covered by the amended information is alleged to have occurred between January 1, 2005, and December 31, 2006, while the victim was between the ages of 12 and 14. In a plea agreement, the State had agreed to amend the charge to second degree sexual assault. At the plea hearing, the prosecutor acknowledged that as part of the plea agreement, he would stand silent at sentencing. Sidzyik pled no contest.

At the sentencing hearing, a different prosecutor stated:

I am covering the case for [the prosecutor who had previously appeared in the case,] who is on military leave right now. With regard to the matter, he wanted the Court to know the State's position is stated in the PSI and we would submit on the PSI. I had the opportunity to speak with the victim and the victim's family. They will rest on the documentation they've provided to the Court at this point....

Sidzyik's counsel did not object to this statement. Sidzyik was sentenced to 18 to 20 years' imprisonment for the conviction of second degree sexual assault, which is a Class III felony.

The PSI was lengthy and, in summary, stated: “Based upon the seriousness of the original charge, this officer believes [Sidzyik] is not an appropriate candidate for probation. This officer would ... recommend the Court sentence [Sidzyik] to a substantial period of incarceration under the statutory penalties for the conviction of Sexual Assault 2^nd Degree–III Felony.”

On direct appeal to the Court of Appeals, Sidzyik was represented by new counsel and claimed that (1) trial counsel was ineffective when he failed to object to the State's breach of the plea agreement, (2) the sentencing court committed plain error when it sentenced him after the alleged breach of the plea agreement, and (3) the sentence imposed was excessive. The State moved for summary affirmance pursuant to Neb. Ct. R.App. P. § 2–107(B)(2) (rev.2008). The Court of Appeals sustained the motion and summarily affirmed without opinion.

Sidzyik petitioned for further review. We granted the petition.

ASSIGNMENTS OF ERROR

On further review, Sidzyik claims that the Court of Appeals erred when it summarily affirmed his conviction and sentence, because trial counsel was ineffective when he failed to object at the sentencing to the State's breach of the plea agreement, the district court committed plain error when it proceeded to sentencing Sidzyik after the State breached the plea agreement, and the sentence imposed was excessive.

STANDARDS OF REVIEW

A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).

The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. See State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010). The determining factor is whether the record is sufficient to adequately review the question. Id.

Plain error will be noted only where an error is evident from the record, prejudicially affects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. Id.

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Fuller, 278 Neb. 585, 772 N.W.2d 868 (2009).

ANALYSIS

Ineffective Assistance of Counsel: Failure to Object to Breach of Plea Agreement.

The first issue for our determination on further review is whether the Court of Appeals erred when it rejected Sidzyik's claim of ineffective assistance of trial counsel and summarily affirmed Sidzyik's conviction and sentence. At the Court of Appeals and again before this court, Sidzyik claims he received ineffective assistance of trial counsel at his sentencing hearing when his counsel failed to object...