   Decisions of the Nebraska Court of Appeals
124	22 NEBRASKA APPELLATE REPORTS



younger son to Iowa in April 2013. This evidence was uncon-
troverted. Thus, it is apparent from the record that Nebraska
was the home state of the children. The record presented on
appeal indicates that the current proceeding was the first to
establish paternity of the children, and there is no indication of
any prior custody order concerning the children.
   Under § 43-1238, the district court in the present case
had jurisdiction to make an initial custody determination.
Nebraska was the home state, and there is no indication that
any other court had jurisdiction under the UCCJEA to make an
initial custody determination. The initial custody determina-
tion of the district court would then supersede any temporary
order entered by the Iowa court. See § 43-1241. The district
court erred in concluding that it lacked jurisdiction to make
an initial custody determination, and we remand for fur-
ther proceedings.
                     V. CONCLUSION
   We conclude that Nebraska was the home state of the chil-
dren under the UCCJEA and that the district court erred in
concluding it lacked jurisdiction to make an initial custody
determination. We remand for further proceedings.
                        R emanded for further proceedings.



                     State of Nebraska, appellee, v.
                     K enneth W. Clark, appellant.
                                   ___ N.W.2d ___

                         Filed July 8, 2014.   No. A-13-545.

 1.	 Jury Instructions. Whether jury instructions given by a trial court are correct is
     a question of law.
 2.	 Judgments: Appeal and Error. When dispositive issues on appeal present ques-
     tions of law, an appellate court has an obligation to reach an independent conclu-
     sion irrespective of the decision of the court below.
 3.	 Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
     is direct, circumstantial, or a combination thereof, and regardless of whether the
     issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
     or failure to prove a prima facie case, the standard is the same: In reviewing a
     criminal conviction, an appellate court does not resolve conflicts in the evidence,
             Decisions      of the   Nebraska Court of Appeals
	                                  STATE v. CLARK	125
	                               Cite as 22 Neb. App. 124

       pass on the credibility of witnesses, or reweigh the evidence; such matters are for
       the finder of fact, and a conviction will be affirmed, in the absence of prejudicial
       error, if the evidence admitted at trial, viewed and construed most favorably to
       the State, is sufficient to support the conviction.
 4.	   Sentences: Appeal and Error. Where a sentence imposed within the statutory
       limits is alleged on appeal to be excessive, the appellate court must determine
       whether the 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.
 5.	   Judges: Words and Phrases. A judicial abuse of discretion exists only when
       the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
       a litigant of a substantial right and denying a just result in matters submitted
       for disposition.
 6.	   Effectiveness of Counsel: Records: Trial: Evidence: Appeal and Error. A
       claim of ineffective assistance of counsel need not be dismissed merely because
       it is made on direct appeal. Rather, the determining factor is whether the record
       is sufficient to adequately review the question.
 7.	   Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
       assistance of counsel claim will not be addressed on direct appeal if it requires an
       evidentiary hearing.
 8.	   Jury Instructions: Proof: Appeal and Error. To establish reversible error from
       a court’s refusal to give a requested instruction, an appellant has the burden to
       show that (1) the tendered instruction is a correct statement of the law, (2) the
       tendered instruction is warranted by the evidence, and (3) the appellant was
       prejudiced by the court’s refusal to give the tendered instruction.
 9.	   Words and Phrases. The word “or,” when used properly, is disjunctive.
10.	   Sentences. When imposing a sentence, a sentencing judge should consider 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.
11.	   ____. 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.
12.	   Effectiveness of Counsel: Proof: Appeal and Error. 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 actu-
       ally prejudiced the defendant’s defense. An appellate court may address the two
       prongs of this test, deficient performance and prejudice, in either order.
13.	   Effectiveness of Counsel: Proof. To show deficient performance, a defendant
       must show that counsel’s performance did not equal that of a lawyer with ordi-
       nary training and skill in criminal law in the area.
14.	   ____: ____. To show prejudice on 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.
   Decisions of the Nebraska Court of Appeals
126	22 NEBRASKA APPELLATE REPORTS


15.	 Proof: Words and Phrases. A reasonable probability is a probability sufficient to
     undermine confidence in the outcome.
16.	 Right to Counsel: Waiver: Effectiveness of Counsel. Appointed counsel must
     remain with an indigent accused unless one of the following conditions is met:
     (1) The accused knowingly, voluntarily, and intelligently waives the right to
     counsel and chooses to proceed pro se; (2) appointed counsel is incompetent, in
     which case new counsel is to be appointed; or (3) the accused chooses to retain
     private counsel.
17.	 Attorneys at Law: Conflict of Interest. Appointed counsel may be removed
     because of a potential conflict of interest, and such a conflict could, in effect,
     render a defendant’s counsel incompetent to represent the defendant and warrant
     appointment of new counsel.
18.	 Attorney and Client: Conflict of Interest: Words and Phrases. The phrase
     “conflict of interest” denotes a situation in which regard for one duty tends to
     lead to disregard of another or where a lawyer’s representation of one client is
     rendered less effective by reason of his or her representation of another client.
19.	 Effectiveness of Counsel: Proof: Appeal and Error. An appellant must make
     specific allegations of the conduct that he or she claims constitutes deficient
     performance by trial counsel when raising an ineffective assistance claim on
     direct appeal.

   Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.

   Lisa F. Lozano for appellant.

  Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.

   Inbody, Chief Judge, and Moore and Pirtle, Judges.

   Moore, Judge.
                        INTRODUCTION
   Kenneth W. Clark appeals from his conviction and sentence
following a jury trial in the district court for Lancaster County
of a violation of the Sex Offender Registration Act (SORA).
The court sentenced Clark to 90 days in jail with credit for
time served. Clark assigns error to the court’s failure to give
a requested jury instruction, the overruling of his motion for
directed verdict, and the sufficiency of the evidence to convict
him. He also asserts that the court imposed an excessive sen-
tence and that he was denied effective assistance of counsel.
Finding no merit to the assignments of error, we affirm.
        Decisions   of the  Nebraska Court of Appeals
	                         STATE v. CLARK	127
	                      Cite as 22 Neb. App. 124

                        BACKGROUND
   In 2008, Clark pled no contest to and was convicted of third
degree sexual assault, a Class I misdemeanor. He was sen-
tenced to 360 days in jail. His conviction and sentence were
affirmed on appeal. See State v. Clark, 278 Neb. 557, 772
N.W.2d 559 (2009). As a result of the conviction, Clark was
subject to the registration requirements of SORA. See, Neb.
Rev. Stat. § 28-320 (Reissue 2008); Neb. Rev. Stat. § 29-4003
(Cum. Supp. 2012) (SORA applies to persons who, on or after
January 1, 1997, plead to or are found guilty of certain listed
crimes, including sexual assault). The present appeal arises out
of Clark’s conviction for failure to follow those registration
requirements in 2012.
   On October 5, 2012, the State filed an information in the
district court, charging Clark with a SORA violation, pursu-
ant to Neb. Rev. Stat. § 29-4011(l) (Cum. Supp. 2012), a
Class IV felony.
   On November 27, 2012, Clark’s attorney filed a motion
for competency evaluation. A hearing on the motion was held
on November 28. During the course of the hearing, Clark
objected to his attorney’s motion and explained the nature
of his objection to the district court. On November 28, the
court ordered that a competency evaluation be conducted. On
January 2, 2013, a hearing was held to determine Clark’s com-
petency following the evaluation, and an order was entered
on January 3 finding that Clark was not competent to stand
trial. This order committed Clark to the Lincoln Regional
Center for treatment until such time as the disability may be
removed. On February 1, the court found Clark competent to
stand trial and ordered him to be released from the Lincoln
Regional Center.
   A jury trial was held on April 1 through 3, 2013. Testimony
was presented from the civilian supervisor for the Nebraska
State Patrol (NSP) Sex Offender Registry, a Lancaster County
Department of Corrections officer, the records system supervi-
sor for the Lancaster County sheriff’s office, and a Lincoln
Police Department officer. In addition, certain documentary
evidence with respect to Clark’s SORA registration and subse-
quent verifications was admitted.
   Decisions of the Nebraska Court of Appeals
128	22 NEBRASKA APPELLATE REPORTS



   The record shows that Clark completed his original registra-
tion under SORA in May 2008. Clark’s original registration
forms list his mother as another occupant at the same address.
Clark completed a verification form in May 2009, showing no
changes in his address. In December 2009, Timothy Kennett, a
Lincoln Police Department sergeant whose duties include the
investigation of SORA violations, contacted Clark as a part of
his compliance checks on registered sex offenders. This contact
was made in an effort to update registrants’ information prior
to an upcoming change in SORA verification requirements in
January 2010. Kennett assisted Clark at that time in making
sure his information was up to date.
   Reporting requirements for verification by registrants
changed in 2010. As of January 1, 2010, offenders were
required to report to a sheriff’s office for verification annu-
ally, biannually, or quarterly, depending on their registration
duration. Offenders convicted of misdemeanors are required
to register for 15 years, and as of January 2010, 15-year reg-
istrants were required to verify their information annually in
their birth month. At the end of October 2009, the NSP sent
a mass mailing to all actively registered offenders, advis-
ing them of their registration duration and new verification
schedule. Clark was sent a letter dated October 26, 2009, via
certified mail, informing him about the changes in verifica-
tion requirements and that, beginning in 2010, as a 15-year
registrant, he would have to verify his registration informa-
tion every 12 months in his birth month, which is March. The
October 2009 letter was returned unclaimed to the NSP, even
though it was sent to Clark’s last known address in the regis-
tration database.
   On April 8, 2010, Clark was an inmate at a Lancaster County
correctional facility. Following an inquiry regarding Clark by
the Lincoln Police Department, a county department of correc-
tions officer asked Clark to fill out a change of address form.
This was necessary because sex offender registrants who are
incarcerated for more than 3 working days are required to
notify the sheriff’s office of the change in address. The officer
explained to Clark that he needed to complete the form which
would be sent to the sheriff’s office to correctly designate
        Decisions   of the  Nebraska Court of Appeals
	                         STATE v. CLARK	129
	                      Cite as 22 Neb. App. 124

Clark’s address for SORA purposes. The officer testified that
Clark appeared to understand what he needed to do and that
he completed the form. Clark completed another change of
address form with the sheriff’s office in May 2010, showing a
new address in Lincoln. The form lists his brother as another
occupant at the address.
   The NSP sent Clark a letter dated January 21, 2011, again
informing him of his responsibilities with respect to registra-
tion verification and the changes made effective in January
2010. This letter was sent to the address Clark provided in May
2010. The evidence shows that the letter was actually delivered
to Clark on January 28, 2011. Clark signed the notification
acknowledgment form on January 28.
   Clark completed a change of information form providing
a new address, dated February 18, 2011, which was received
by the sheriff’s office and NSP in February. This form shows
Clark again residing with his mother at the same address
where he resided when he initially registered. The notifica-
tion acknowledgment form was also returned to the sheriff’s
office. However, no verification form was completed by
Clark in March, the month of his birthday. In April, the NSP
referred Clark’s name to Kennett because Clark had missed
his sex offender verification in March. On April 18, Kennett
contacted Clark regarding his failure to register in March.
In explaining why he had not registered in March, Clark
told Kennett he had gone to the sheriff’s office in February
and filled out an updated form because he thought he had to
register prior to his birthday. Clark also told Kennett that he
did not understand that he had to come in each year during
the month of March to register. Kennett explained to Clark
that he had to come in every year during March to complete
his verification and told him to go to the sheriff’s office after
their conversation. Clark told Kennett that he understood and
that he would not miss any more verifications. Clark com-
pleted an updated form on April 18. Kennett subsequently
advised Clark that the county attorney’s office was not going
to file any charges with respect to Clark’s failure to register
in March. Kennett again explained to Clark that he had to
come in every year during the month of March to complete
   Decisions of the Nebraska Court of Appeals
130	22 NEBRASKA APPELLATE REPORTS



his registration verification. Clark again told Kennett that
he understood.
   Clark completed an additional updated form in June 2011.
At that time, Clark also signed an acknowledgment form,
acknowledging that he had read the notification explaining his
duty to register and that he understood his obligations under
SORA.
   Clark again failed to verify and update his information in
March 2012, and his name was referred to Kennett by the NSP.
On May 10, Kennett and another detective contacted Clark at
his registered address. Kennett explained to Clark that they
were there because of the sex offender registry and asked him
if he had registered in March. Clark told Kennett he thought he
had gone with his mother to register a couple of months before.
Kennett asked Clark if he thought it had been in March. Clark
responded that he thought so, but that maybe he had forgotten.
Kennett then called the sheriff’s office to doublecheck Clark’s
verification status. While Kennett was on the telephone with
the sheriff’s office, Clark told Kennett that he might have
forgotten and that he remembered Kennett contacting him
the year before on the same issue. After the sheriff’s office
advised that Clark’s last verification was dated in June 2011,
Kennett arrested Clark for violating SORA. The NSP received
an update of Clark’s information from the sheriff’s office in
May 2012.
   After Kennett’s testimony, the State rested, and Clark moved
for dismissal for failure to prove a prima facie case, which
motion was overruled by the district court.
   Clark then presented testimony from his mother, Linda
Clark Moore. According to Moore, Clark was 29 years old at
the time of trial and has lived with her all of his life except for
a 6-month period when he lived with his brother. She testified
that Clark has a learning disability; has difficulty reading and
verbalizing his thoughts; and suffers from schizophrenia, pho-
bias, and paranoia. Moore testified that she reminds Clark of
things, takes him to appointments, reads his papers, and helps
him with his paperwork. Clark works with Moore’s father at a
country club in the “pro shop” and in the kitchen.
         Decisions   of the  Nebraska Court of Appeals
	                          STATE v. CLARK	131
	                       Cite as 22 Neb. App. 124

   Moore filled out the information on the notification
acknowledgment form signed by Clark on January 28, 2011,
and Clark then signed the form. Moore admitted that the
verification document states that offenders have to register
annually in the month of their birth at the sheriff’s office.
Moore took Clark to the sheriff’s office in February 2011
to complete his registration. Moore testified that if she had
known Clark had to register in March, she would have taken
him then. She also testified that she did not think it would
make a difference to register in February, since it was “almost
a few days away from his birthday.” Moore took Clark back
to the sheriff’s office on April 18 after the police visit to reg-
ister again.
   In May 2012, Moore received a telephone call from police
about Clark’s not registering again and informing her that
Clark was in jail. Moore was very upset that she had failed
to take Clark to the sheriff’s office on time. However, Moore
agreed that it was Clark’s duty to complete his verifications
as required and that her name only appears on Clark’s reg-
istry papers as a person of interest because he was living
with her.
   Following Moore’s testimony, Clark rested, and the State
had no rebuttal evidence. Clark asked the district court for a
directed verdict, which motion was denied by the court.
   On April 3, 2013, the jury found Clark guilty of a SORA
violation. The district court accepted the verdict and ordered
a presentence investigation. On June 20, the court entered an
order sentencing Clark to a jail term of 90 days and giving him
credit for time served. Clark subsequently perfected his appeal
to this court.

                 ASSIGNMENTS OF ERROR
   Clark asserts, combined, that the district court erred in (1)
overruling his proposed jury instruction No. 3, (2) overruling
his motion for directed verdict and convicting him based on
insufficient evidence, and (3) imposing an excessive sentence.
Clark also asserts that he was denied effective assistance
of counsel.
   Decisions of the Nebraska Court of Appeals
132	22 NEBRASKA APPELLATE REPORTS



                    STANDARD OF REVIEW
   [1,2] Whether jury instructions given by a trial court are
correct is a question of law. State v. Green, 287 Neb. 212, 842
N.W.2d 74 (2014). When dispositive issues on appeal pre­
sent questions of law, an appellate court has an obligation to
reach an independent conclusion irrespective of the decision
of the court below. State v. Ely, 287 Neb. 147, 841 N.W.2d
216 (2014).
   [3] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suffi-
cient to support the conviction. State v. Collins, 281 Neb. 927,
799 N.W.2d 693 (2011).
   [4,5] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the 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. State v. Rieger, 286 Neb. 788, 839 N.W.2d 282
(2013). A judicial abuse of discretion exists only when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition. State v. Johnson,
287 Neb. 190, 842 N.W.2d 63 (2014).
   [6,7] A claim of ineffective assistance of counsel need not
be dismissed merely because it is made on direct appeal. State
v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013). Rather,
the determining factor is whether the record is sufficient to
adequately review the question. Id. An ineffective assistance
of counsel claim will not be addressed on direct appeal if it
requires an evidentiary hearing. Id.
         Decisions   of the  Nebraska Court of Appeals
	                          STATE v. CLARK	133
	                       Cite as 22 Neb. App. 124

                             ANALYSIS
Jury Instruction.
   Clark asserts that the district court erred in overruling his
proposed jury instruction No. 3. Clark’s proposed instruction
would have required the State to prove that Clark was subject
to the provisions of SORA; that he was notified of his obliga-
tion to report in person to the sheriff’s office every 12 months
during the month of his birth; that he “knowingly and willfully
(or intentionally) failed to report every twelve months in the
month of his birth, in person, to the office of the sheriff of the
county in which he resides for purposes of accepting verifica-
tions”; and that this occurred in Lancaster County between
March 1 and 31, 2012.
   The actual jury instruction given by the district court required
the State to prove the following elements beyond a reasonable
doubt in order to convict Clark of a SORA violation:
         1. That . . . Clark, was a person subject to [SORA], and
         2. That . . . Clark knew of his verification requirements
      under the [a]ct, and
         3. That . . . Clark failed to verify his registration in
      person, with the Sheriff . . . , and
         4. That he failed to verify his registration during the
      month of his birth, to wit: between March 1, 2012 and
      March 31, 2012, and
         5. This failure occurred in Lancaster County, Nebraska.
   [8] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction. State v. Morgan, 286
Neb. 556, 837 N.W.2d 543 (2013).
   Neb. Rev. Stat. § 29-4008 (Cum. Supp. 2012) provides,
“No person subject to [SORA] shall knowingly and willfully
furnish any false or misleading information in the registration
or fail to provide or timely update law enforcement of any of
the information required to be provided by the act.” (Emphasis
supplied.) Clark argues that a failure to provide or timely
   Decisions of the Nebraska Court of Appeals
134	22 NEBRASKA APPELLATE REPORTS



update information must be knowing and willful and that
his proposed instruction clarified that requirement. The State
argues that the phrase “knowingly and willfully” only modi-
fies the phrase “furnish any false or misleading information”
and does not apply to the requirement to provide or timely
update information.
   [9] We agree with the State. The word “or,” when used prop-
erly, is disjunctive. State v. Thacker, 286 Neb. 16, 834 N.W.2d
597 (2013). Section 29-4008 is worded in the disjunctive with
an “or” between the two types of violations contained in the
section. Thus, the “knowingly and willfully” language applies
only to the furnishing of false and misleading information and
not to the failure to update information. As such, the district
court did not err in failing to give Clark’s requested instruction
as it was not a correct statement of the law.
   Further, Clark cannot show that he was prejudiced by the
district court’s refusal to give his proposed instruction. The
instruction that was actually given required the jury to find that
Clark knew of his verification requirements under SORA and
that he failed to verify his registration. This assignment of error
is without merit.
Sufficiency of Evidence.
   Clark asserts that the district court erred in overruling his
motion for directed verdict and that the evidence was insuf-
ficient to convict him. Section 29-4011(1) provides that “[a]ny
person required to register under [SORA] who violates the
act is guilty of a Class IV felony.” Clark was previously
convicted of third degree sexual assault and thus subject to
SORA requirements for a period of 15 years, and as a 15-year
registrant, he was required to report to the sheriff’s office in
person in his birth month to complete annual verifications. See,
Neb. Rev. Stat. § 29-4005 (Cum. Supp. 2012); Neb. Rev. Stat.
§ 29-4006(4) (Cum. Supp. 2012).
   There is undisputed evidence in the record that Clark’s
birthday is in March and that he did not complete his annual
verification in March 2012. His argument in support of this
assignment of error again focuses on his lack of a knowing and
willful violation of SORA, but we have already determined
        Decisions   of the  Nebraska Court of Appeals
	                         STATE v. CLARK	135
	                      Cite as 22 Neb. App. 124

that § 29-4008 does not require a “knowing and willful” fail-
ure to provide or update information required by SORA. In
any event, there is sufficient evidence in the record to show
that Clark knew of his obligation to verify his registration in
person in the sheriff’s office in March each year and that he
failed to do so in March 2012. This assignment of error is
without merit.
Excessive Sentence.
   Clark asserts that the district court imposed an excessive
sentence. He argues that, given his unique circumstances,
including his mental, intellectual, and academic deficiencies,
the sentence of 90 days in jail is excessive and should be
reduced or a sentence of probation should be imposed.
   Clark was convicted of a Class IV felony, which carries
a maximum of 5 years in prison and/or a $10,000 fine. See,
§ 29-4011(1); Neb. Rev. Stat. § 28-105(1) (Reissue 2008).
Thus, Clark’s sentence of 90 days in jail is well within the
statutory guidelines.
   [10,11] When imposing a sentence, a sentencing judge
should consider 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. State v. McGuire, 286 Neb. 494,
837 N.W.2d 767 (2013). 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. Id.
   Clark was 29 years old at the time of sentencing. He has a
10th grade education and has been identified as “mildly men-
tally handicapped” with “speech/language” impairment. Clark
told the probation officer conducting the presentence investiga-
tion that he is diagnosed as having paranoid schizophrenia with
a learning disorder. In 1996, he was diagnosed by a mental
health professional as having oppositional defiant disorder and
obsessive-compulsive personality features. Clark spent time
   Decisions of the Nebraska Court of Appeals
136	22 NEBRASKA APPELLATE REPORTS



in the Lincoln Regional Center from August 2005 to March
2006 for purposes of restoration of competency. At that time,
his final diagnosis was substance abuse, including alcohol, and
delusional disorder, not otherwise specified. He was also diag-
nosed as having borderline intellectual functioning.
   In addition to the sexual assault that led to his SORA
obligation, Clark has been convicted of criminal offenses,
including possession of marijuana less than an ounce, assault,
possession of drug paraphernalia, resisting arrest, carrying a
concealed weapon, and disturbing the peace. On the level of
service/case management inventory, he was assessed as a high
risk to reoffend and scored in the very high or high ranges
with respect to criminal history, leisure/recreation, procriminal
attitude/­ rientation, and antisocial pattern.
          o
   It is clear that the district court considered the relevant fac-
tors in sentencing Clark. The court spoke at length about the
factors it considered. The court rejected a sentence of proba-
tion, noting Clark’s failure to take responsibility for the cur-
rent crime. The court noted Clark’s extensive prior criminal
history and his failure to be compliant with past court orders.
Nevertheless, the court rejected a prison sentence and imposed
a minimal jail sentence in light of Clark’s circumstances.
We find no abuse of discretion in the sentence imposed
upon Clark.

Ineffective Assistance of Counsel.
   Finally, Clark asserts that he was denied effective assistance
of counsel, arguing that his trial counsel violated his right to
a speedy trial by filing a motion for competency evaluation
and by failing to withdraw as counsel because of a conflict
of interest.
   [12-15] 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. An appellate court may address the two prongs of
this test, deficient performance and prejudice, in either order.
State v. Filholm, 287 Neb. 763, ___ N.W.2d ___ (2014). To
         Decisions   of the  Nebraska Court of Appeals
	                          STATE v. CLARK	137
	                       Cite as 22 Neb. App. 124

show deficient performance, a defendant must show that
counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law in the area. State
v. Hernandez, 22 Neb. App. 62, ___ N.W.2d ___ (2014). To
show prejudice on 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 pro-
ceeding would have been different. State v. Filholm, supra. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome. State v. Robinson, 287 Neb. 606,
843 N.W.2d 672 (2014).
   With respect to the motion for competency evaluation, the
record is sufficient to review this claim and reveals that Clark’s
counsel was not deficient in raising the question about Clark’s
competency. Following an evaluation of Clark, he was, in fact,
found incompetent to stand trial. After Clark spent a short
period of time in the Lincoln Regional Center, the district
court found him competent to stand trial and he was released
from the Lincoln Regional Center. Contrary to Clark’s asser-
tions, the motion was not unnecessary. Further, the motion
delayed the trial time only briefly. The information in this
case was filed on October 5, 2012, and trial began on April 1,
2013, within the 6-month period set forth in Neb. Rev. Stat.
§ 29-1207 (Cum. Supp. 2012). Clark was not denied his statu-
tory right to a speedy trial, and thus, his counsel was not inef-
fective in this regard.
   Clark’s argument with respect to the alleged conflict of
interest is somewhat unclear but appears to relate, in part, to
his trial counsel’s having filed the motion for competency
evaluation against Clark’s wishes. He also argues that trial
counsel should have withdrawn from his representation of
Clark because he had been represented by an attorney from
the public defender’s office in a previous case and that attor-
ney withdrew due to a conflict of interest, after which Clark
retained private counsel.
   [16-18] Appointed counsel must remain with an indigent
accused unless one of the following conditions is met: (1) The
accused knowingly, voluntarily, and intelligently waives the
right to counsel and chooses to proceed pro se; (2) appointed
   Decisions of the Nebraska Court of Appeals
138	22 NEBRASKA APPELLATE REPORTS



counsel is incompetent, in which case new counsel is to be
appointed; or (3) the accused chooses to retain private coun-
sel. State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
Appointed counsel may be removed because of a potential
conflict of interest, and such a conflict could, in effect, render
a defendant’s counsel incompetent to represent the defendant
and warrant appointment of new counsel. Id. The phrase “con-
flict of interest” denotes a situation in which regard for one
duty tends to lead to disregard of another or where a lawyer’s
representation of one client is rendered less effective by rea-
son of his or her representation of another client. Id. In the
case before us, Clark did not waive his right to counsel, ask
to proceed pro se, or indicate that he intended to retain pri-
vate counsel.
   As discussed above, Clark’s trial counsel was effectively
representing Clark when she asked for a competency evalua-
tion and, in fact, may have been ineffective had she failed to
do so. Trial counsel’s filing of this motion did not amount to a
conflict of interest.
   [19] With regard to the suggestion that some other conflict
of interest existed based upon a previous conflict with the
public defender’s office, Clark does not provide sufficient alle-
gations to show that a current conflict of interest existed. An
appellant must make specific allegations of the conduct that he
or she claims constitutes deficient performance by trial counsel
when raising an ineffective assistance claim on direct appeal.
State v. Filholm, 287 Neb. 763, ___ N.W.2d ___ (2014).
   This assignment of error is without merit.
                         CONCLUSION
   The district court did not abuse its discretion in failing to
give Clark’s requested jury instruction No. 3. The evidence was
sufficient to sustain Clark’s conviction, and the court did not
impose an excessive sentence. Clark did not receive ineffective
assistance of trial counsel.
                                                     Affirmed.
