                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. JOHNSON


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                               V.

                              KENNETH B. JOHNSON, APPELLANT.


                             Filed June 30, 2015.   No. A-15-110.


       Appeal from the District Court for Clay County: VICKY L. JOHNSON, Judge. Affirmed.
       Benjamin H. Murray, of Germer, Murray & Johnson, for appellant.
       Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.


       MOORE, Chief Judge, and IRWIN and RIEDMANN, Judges.
       MOORE, Chief Judge.
                                       INTRODUCTION
        Pursuant to a plea agreement, Kenneth B. Johnson pled guilty to two counts of
manslaughter. The district court for Clay County sentenced Johnson to consecutive terms of
imprisonment. In this appeal, Johnson argues that he received excessive sentences and also raises
various claims of ineffective assistance of counsel. We find no merit to Johnson’s arguments and
affirm.
                                 FACTUAL BACKGROUND
        In the early morning hours of August 28, 2014, Johnson operated a semi-truck which
carried a load of sand to be delivered to a town in Oklahoma. While driving southbound on
Highway 14, Johnson failed to stop at the intersection of Highway 14 and Highway 6, despite the
presence of various warnings. Johnson’s semi-truck collided with another vehicle and three of the
vehicle’s occupants sustained fatal injuries. The fourth occupant suffered serious injuries, but



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survived the accident. Subsequent accident reconstructions revealed that Johnson did not attempt
to stop before the intersection and Johnson admitted to law enforcement that he failed to recognize
the stop signs posted at the intersection. Johnson was placed under arrest at the scene of the
accident.
        On October 8, 2014, the State filed an information charging Johnson with three counts of
manslaughter. The State also alleged that Johnson was a habitual criminal. Pursuant to a written
plea agreement, Johnson pled no contest to two counts of manslaughter in exchange for the
dismissal of the third manslaughter charge and the habitual criminal allegation.
        The district court sentenced Johnson to two consecutive terms of not less than 20 years nor
more than 20 years’ imprisonment for the manslaughter convictions. Johnson received credit for
139 days for time served. Johnson has filed a timely appeal.
                                   ASSIGNMENTS OF ERROR
        Johnson claims the district court erred in imposing excessive sentences. He also asserts that
he received ineffective assistance of counsel.
                                    STANDARD OF REVIEW
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014). 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. State v.
Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
        Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014). 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? State v. Castillo-Zamora,
289 Neb. 382, 855 N.W.2d 14 (2014).
                                            ANALYSIS
Excessive Sentence.
        Johnson’s primary argument on appeal focuses on his claim that he received excessive
sentences. As noted above, Johnson received two consecutive prison sentences of 20 to 20 years
as a result of his manslaughter convictions. He does not contend that these sentences exceed the
statutory limits for manslaughter, but, rather, asserts that the court incorrectly applied numerous
factors when determining the sentences. Johnson particularly argues that the court should have
considered that his prior criminal history is remote in time and the fact that his truck had an exhaust
leak as mitigating factors against lengthy sentences. He also contends that the court placed undue
weight on the probation officer’s recommendation for maximum jail sentences. Johnson claims
the probation officer’s report contains misleading statements related to his remorse and acceptance
of responsibility.



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        Pursuant to a plea agreement, Johnson was convicted of two counts of manslaughter, a
Class III felony. Neb. Rev. Stat. § 28-305 (Reissue 2008). Class III felonies are punishable by a
minimum of 1 year imprisonment and a maximum of 20 years’ imprisonment, a $25,000 fine, or
both. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014). Although Johnson’s sentences are at the
maximum limit for Class III felonies, a sentence at the maximum limit is still within the statutory
limits and only when the sentence exceeds the statutory limits does it become “excessive” as a
matter of law. See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011). Because Johnson’s sentences
are within the statutory limits, we review them for an abuse of discretion.
        When imposing a sentence, the 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 violence involved in the commission of the offense. State v.
Stevens, 290 Neb. 460, 860 N.W.2d 717 (2015). The sentencing court is not limited to any
mathematically applied set of factors. Id. 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.
        At the sentencing hearing, the district court discussed the factors it had considered when
determining the sentences to impose. The court considered Johnson’s age and prior criminal
history, the probation officer’s recommendation, Johnson’s familial situation, the specific factors
of the accident, the benefit Johnson received from the plea agreement, and the effect the accident
had on the victims. After weighing these factors, the court concluded that lengthy sentences were
necessary to reflect the serious nature of Johnson’s offenses. This conclusion was not an abuse of
discretion.
        At the time of sentencing, Johnson was 53 years old and had a lengthy criminal history. He
has served prison terms in Oregon for first degree burglary and theft and for possessing a firearm
as a felon. In addition to those prison terms, Johnson has also received terms of probation for
driving while his license was suspended or revoked and for driving under the influence.
Additionally, at the time of the accident, Johnson was on federal probation for possession of a
firearm/ammunition by a prohibited person. Johnson’s criminal history does not serve as a
mitigating factor against his lengthy sentences.
        Similarly, the fact that Johnson’s semi-truck had an exhaust leak at the time of the accident
does not mitigate against his sentences. The presentence investigation report demonstrates this
leak did not contribute to the crash. Trooper Okamoto with the Nebraska State Patrol completed
an inspection report following the accident. Okamoto’s report indicates an exhaust leak under the
truck’s sleeper existed prior to the crash. However, Okamoto concluded this exhaust leak did not
constitute an “out of service violation” and he did not discover any vehicle violations which could
have contributed to the crash. Because there was no evidence this leak was an intervening factor
in the accident, the district court did not err when it stated Johnson’s semi-truck was fully
functional and mechanical failure did not contribute to the accident.
        Finally, the district court did not place improper weight on the probation officer’s
recommendation that Johnson receive maximum sentences. The record shows that the probation
officer’s recommendation that Johnson receive maximum sentences was only one of the factors



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the court considered when imposing its sentences. The probation officer reported that Johnson
disliked probation and wanted no part of probation or parole. In addition, the probation officer
noted that Johnson did not show any remorse for the victims and did not take accountability for
his actions. Johnson argues the probation officer’s conclusions are misleading because he sent a
letter after the interview in which he claims he expressed remorse for the accident and accepted
responsibility for his actions. In the same letter, Johnson also stated that his reservations toward
probation were related to his prior experiences in Wisconsin. This letter was included within the
presentence report which the court stated it had reviewed prior to the sentencing hearing. There is
nothing in the record to show that the court placed improper weight on the probation officer’s
recommendation.
         Because Johnson’s sentences are supported by competent evidence and fall within the
statutory guidelines, we conclude the district court did not abuse its discretion in imposing the
sentences.
Ineffective Assistance of Counsel.
         Johnson has obtained new, different counsel for this direct appeal. 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. State v. Newman, 290
Neb. 572, 861 N.W.2d 123 (2015).
         A plea of guilty generally embodies a waiver of every defense to the charge, whether
procedural, statutory, or constitutional. State v. Payne, 289 Neb. 467, 855 N.W.2d 783 (2014).
When a defendant pleads guilty, he or she is limited to challenging whether the plea was
understandingly and voluntarily made and whether it was the result of ineffective assistance of
counsel. Id. Johnson has raised various claims of ineffective assistance of counsel including that
his counsel failed to (1) investigate the case thoroughly, (2) review the presentence investigation
report, (3) discuss the presentence investigation report with him prior to sentencing, (4) inform
him of the possibility that he could withdraw his plea before sentencing, and (5) advise him that
his sentencing hearing could be continued in order to obtain further evidence to contradict the
presentence investigation report.
         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. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014). Claims of ineffective
assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto;
the determining factor is whether the record is sufficient to adequately review the question. State
v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
         The record is sufficient to reach the merits of all of Johnson’s claims of ineffective
assistance of counsel in this direct appeal. We conclude that none of these claims entitles him to
relief. First, Johnson’s counsel did not perform deficiently in her investigation of his case. Johnson
seems to argue that his attorney should have more thoroughly investigated the vehicle inspection
report’s conclusion that the exhaust leak was not a contributing factor to the accident. However,



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counsel’s investigation of the exhaust leak would not have changed the outcome of the case. The
vehicle inspection report indicated that the exhaust leak did not contribute to the accident. The
accident reconstruction report, also contained in the presentence investigation report, indicated
that Johnson made no attempt to brake prior to the collision. Johnson repeatedly admitted to law
enforcement at the accident scene that he simply missed the stop signs at the intersection and did
not attempt to stop his truck prior to the collision. Because of those admissions, his attorney did
not deficiently perform in her investigation of the exhaust leak.
         Next, Johnson’s claims that his counsel was ineffective for failing to review the
presentence investigation report and discuss that report with him are definitively refuted by the
record. At the sentencing hearing, Johnson’s counsel informed the court that she had reviewed the
presentence investigation report and had done so with Johnson. Johnson also confirmed that he
had reviewed this report with his attorney prior to the sentencing hearing.
         Finally, Johnson’s claims that his counsel was ineffective for failing to inform him of the
options to withdraw his plea prior to sentencing or continue the sentencing hearing are also without
merit. These two claims apparently relate to Johnson’s contention that the presentence
investigation report contained misinformation regarding the lack of any mechanical problems with
his semi-truck which would have contributed to the accident, his adversity to being placed on
probation, and his lack of remorse.
         As we discussed above in regard to the claim of excessive sentences, the vehicle inspection
report indicates that the exhaust leak which Johnson refers to was under the sleeper cab and was
not a contributing cause of the accident. The report stated that there were no violations on the truck
that would have contributed to the accident. In addition, the accident reconstruction report
indicates that Johnson made no attempt to brake prior to the collision which is consistent with
Johnson’s statements to law enforcement immediately after the accident that he did not see the
stop signs and did not attempt to stop. Thus, Johnson’s counsel could not have performed
deficiently in failing to advise Johnson to withdraw his plea or request a continuance of the
sentencing for this reason.
         The probation officer stated that Johnson disliked probation. The letter which Johnson
provided to the court in the presentence investigation report stated that Johnson did not favor
probation because he had a bad experience with probation in Wisconsin and he had trouble
forgetting about this experience. Johnson further wrote in the letter that “he just want[s] to go away
and put this all behind [him]” and that he preferred that probation or parole not be given as a
sentence. This letter supports the probation officer’s conclusion that Johnson did not wish to
receive probation and does not support a conclusion that Johnson’s attorney was deficient in failing
to advise Johnson to withdraw his plea or request a continuance of the sentencing hearing.
         With regard to Johnson’s lack of remorse, the probation officer did state in the presentence
investigation report that Johnson did not show any remorse for having caused the accident or the
deaths and injuries to the other vehicle’s occupants. Instead, he repeatedly indicated that he did
not know how the accident could have happened. In his letter to the probation officer, Johnson
stated: “I just wish this would have never happened and there is no possible way I could ever
express how sorry I am that it did. I just wish I could understand why.” As mentioned previously,
this letter was contained in the materials submitted to and considered by the court at sentencing.



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Finally, Johnson’s trial counsel did argue at sentencing that Johnson was remorseful for the
accident. Thus, the record refutes any claim that Johnson’s counsel was somehow deficient in
failing to advise Johnson to withdraw his plea or seek continuance of the sentencing on this basis.
                                         CONCLUSION
        The district court did not impose excessive sentences and Johnson did not receive
ineffective assistance of counsel.
                                                                               AFFIRMED.




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