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                                          Nebraska A dvance Sheets
                                           292 Nebraska R eports
                                                 STATE v. COLLINS
                                                 Cite as 292 Neb. 602




                                      State of Nebraska, appellee, v.
                                    Fredrick A. Collins, Jr., appellant.
                                                   ___ N.W.2d ___

                                        Filed January 29, 2016.   No. S-15-109.

                1.	 Sentences: Words and Phrases: Appeal and Error. An appellate court
                    reviews criminal sentences for abuse of discretion, which occurs when a
                    trial court’s decision is based upon reasons that are untenable or unrea-
                    sonable or if its action is clearly against justice or conscience, reason,
                    and evidence.
                2.	 Trial: Effectiveness of Counsel: Proof: Appeal and Error. To estab-
                    lish a right to relief because of a claim of ineffective counsel at trial or
                    on direct appeal, the defendant has the burden first to show that coun-
                    sel’s performance was deficient; that is, counsel’s performance did not
                    equal that of a lawyer with ordinary training and skill in criminal law
                    in the area. Next, the defendant must show that counsel’s deficient per­
                    formance prejudiced the defense in his or her case.
                3.	 Constitutional Law: Criminal Law: Attorney and Client. The Sixth
                    Amendment to the U.S. Constitution and Neb. Const. art. I, § 11, give
                    one accused of a crime the right to the assistance of counsel.
                4.	 Courts: Attorney and Client: Appeal and Error. In first appeals as of
                    right, though not discretionary appeals, states must appoint counsel to
                    represent indigent defendants.
                5.	 Postconviction: Jurisdiction: Effectiveness of Counsel: Appeal and
                    Error. The power to grant a new direct appeal is implicit in Neb. Rev.
                    Stat. § 29-3001 (Cum. Supp. 2014), and the district court has jurisdic-
                    tion to exercise such power where the evidence establishes a denial or
                    infringement of the right to effective assistance of counsel at the direct
                    appeal stage of the criminal proceedings.
                6.	 Sentences: Appeal and Error. Where a sentence imposed within the
                    statutory limits is alleged on appeal to be excessive, an 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.
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                       Nebraska A dvance Sheets
                        292 Nebraska R eports
                             STATE v. COLLINS
                             Cite as 292 Neb. 602

 7.	 Sentences. In 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.
 8.	 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.
 9.	 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.

  Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.
 Thomas C. Riley, Douglas County Public Defender, and
Mary Mullin Dvorak for appellant.
   Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
  Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
   Heavican, C.J.
                      I. INTRODUCTION
   Fredrick A. Collins, Jr., was convicted of first degree sexual
assault of a person at least 12 but less than 16 years of age,
pursuant to Neb. Rev. Stat. § 28-319(1)(c) (Reissue 2008).
His direct appeal was dismissed due to the untimely payment
of his docket fee. Collins then filed a motion for postconvic-
tion relief, alleging that his trial counsel was ineffective for
failing to timely file a direct appeal, and also alleging that
trial counsel was ineffective in other ways. The district court
denied most of his motion without a hearing, but, following an
evidentiary hearing, awarded Collins a new direct appeal. This
is that appeal.
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                   Nebraska A dvance Sheets
                    292 Nebraska R eports
                        STATE v. COLLINS
                        Cite as 292 Neb. 602

                 II. FACTUAL BACKGROUND
   Collins was originally charged with first degree sexual
assault of a child and third degree sexual assault of a child.
Pursuant to a plea agreement, Collins pled no contest to first
degree sexual assault, pursuant to § 28-319(1)(c). On June
26, 2013, he was sentenced to 10 to 15 years’ imprisonment,
with credit for 396 days’ time served. The child in question
was Collins’ 12-year-old stepdaughter. The record shows that
various incidents of sexual abuse—including walking around
naked, masturbating in front of the victim, inappropriately
touching the victim, and, eventually, digitally penetrating the
victim—took place for over a year.
   Collins filed a notice of appeal with the Nebraska Court of
Appeals, but it was dismissed due to the lack of payment of a
docket fee or the granting of in forma pauperis status.
   On June 20, 2014, Collins filed a motion seeking post-
conviction relief. In that motion, Collins alleged that his trial
counsel was ineffective (1) for failing to file a direct appeal
and (2) for various actions made or not made at trial. On
September 16, the district court granted Collins’ request for
an evidentiary hearing on his allegation regarding his direct
appeal, and denied a hearing with respect to the remainder of
Collins’ allegations. In so denying, the district court concluded
that either Collins’ allegations were insufficiently pled because
he did not allege how he was prejudiced or the allegations
were not supported by the record.
   Following an evidentiary hearing, on January 7, 2015, the
district court granted Collins a new direct appeal. That appeal
was filed on February 3. In the appeal, Collins assigns that
his sentence was excessive and that his trial counsel was inef-
fective in various ways, all of which were raised in Collins’
original postconviction motion. At no point did Collins appeal
from the district court’s September 16, 2014, denial of his alle-
gations of ineffective assistance of counsel.
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                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                              STATE v. COLLINS
                              Cite as 292 Neb. 602

                III. ASSIGNMENTS OF ERROR
   Collins first assigns that the sentence imposed by the dis-
trict court was excessive. Collins also assigns that he was
denied effective assistance of counsel when his trial counsel
(1) failed to inform Collins of the potential penalty for a
Class II felony, (2) failed to attack the validity of the infor-
mation for lack of jurisdiction, (3) failed to make a motion
for DNA testing or investigate why a sexual assault evidence
collection kit was not completed, (4) failed to file a motion to
discharge or dismiss, (5) failed to move to sever the offense,
(6) failed to file a motion seeking to exclude testimony from
the victim and two witnesses, (7) failed to conduct depositions
of a police detective and a child advocacy center employee,
(8) failed to show Collins transcripts of any depositions, (9)
failed to object to or correct the factual basis provided at
Collins’ plea hearing, (10) coerced Collins into accepting a
plea deal, and (11) failed to attend a presentence investigation
interview with Collins or review presentence investigation
errors with Collins.
                 IV. STANDARD OF REVIEW
   [1] An appellate court reviews criminal sentences for abuse
of discretion, which 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.1
   [2] To establish a right to relief because of a claim of inef-
fective counsel at trial or on direct appeal, the defendant has
the burden first to show that counsel’s performance was defi-
cient; that is, counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law in the
area. Next, the defendant must show that counsel’s deficient
performance prejudiced the defense in his or her case.2

 1	
      State v. Johnson, 290 Neb. 369, 859 N.W.2d 877 (2015).
 2	
      State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006).
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                        Nebraska A dvance Sheets
                         292 Nebraska R eports
                              STATE v. COLLINS
                              Cite as 292 Neb. 602

                           V. ANALYSIS
               1. State’s Jurisdictional A rgument
   Before addressing the issues presented by Collins on appeal,
we must first address the State’s contention that we lack juris-
diction to determine those assignments of error which were
raised before the district court as ineffective assistance of
counsel claims in Collins’ earlier postconviction action. As
noted above, Collins raised an allegation regarding his coun-
sel’s failure to file a direct appeal, as well as other allegations
regarding his trial counsel’s performance. The district court
considered all claims on their merits. Ultimately, the court
granted the request for an evidentiary hearing on the appeal
issue and ordered a new appeal, but denied the remainder of
Collins’ claims.
   Collins did not appeal from the denial. For this reason, the
State argues that this court lacks jurisdiction to decide any
issues raised both in the postconviction action and in the direct
appeal. Collins, though, argues that the Court of Appeals’ deci-
sions in State v. Seeger,3 and State v. Determan4 support the
conclusion that the district court ought not to have decided
those issues.
   As an initial matter, we do not believe that the issue raised
by the State affects this court’s jurisdiction to decide this
appeal. Rather, we read the State as arguing that Collins is pro-
cedurally barred from asserting those issues on direct appeal
because he did not appeal from the district court’s denial of
the claims.
   Under ordinary circumstances, the State would be correct.
Normally, Collins’ failure to appeal from the order of the dis-
trict court denying his other postconviction claims would be
fatal to those claims. Any attempt by Collins to again allege

 3	
      State v. Seeger, 20 Neb. App. 225, 822 N.W.2d 436 (2012).
 4	
      State v. Determan, 22 Neb. App. 683, 859 N.W.2d 899 (2015).
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                        Nebraska A dvance Sheets
                         292 Nebraska R eports
                              STATE v. COLLINS
                              Cite as 292 Neb. 602

error in those particulars would be a collateral attack on the
order denying relief and impermissible.5
   Nor does our recent decision in State v. Determan6 provide
Collins any relief. In Determan, we modified a procedure that
the Court of Appeals had adopted for district courts to fol-
low when deciding postconviction claims that raised both an
allegation that trial counsel was ineffective for failing to file a
direct appeal and other ineffective assistance of counsel claims.
We concluded that the failure to follow this procedure would
result in the vacating and remanding of the district court’s
order denying postconviction relief. But an appellant must still
appeal from that order to obtain relief, and Collins did not
do so.
   [3] We will not apply a procedural bar here. This case
presents an unusual factual circumstance which raises con-
stitutional concerns. The Sixth Amendment to the U.S.
Constitution gives one accused of a crime the right to the
assistance of counsel.7 Similarly, Neb. Const. art. I, § 11, con-
fers on criminal defendants the right to appear and defend in
person or by counsel. The district court’s order recited that at
all pertinent times, Collins was represented by court-appointed
counsel. Thus, the record is clear that Collins was considered
to be indigent.
   [4] On a direct appeal, then, Collins was entitled to the
effective assistance of counsel. In Douglas v. California,8 the
U.S. Supreme Court held that in first appeals as of right, states
must appoint counsel to represent indigent defendants. The
U.S. Supreme Court has since made clear that its holding in

 5	
      State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005).
 6	
      State v. Determan, ante p. ___, ___ N.W.2d ___ (2016).
 7	
      See Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799
      (1963).
 8	
      Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811
      (1963).
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                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                                STATE v. COLLINS
                                Cite as 292 Neb. 602

Douglas did not extend to discretionary appeals to a state’s
highest court.9
   [5] This court has stated that the power to grant a new
direct appeal is implicit in Neb. Rev. Stat. § 29-3001 (Cum.
Supp. 2014) and that the district court has jurisdiction to exer-
cise such power where the evidence establishes a denial or
infringement of the right to effective assistance of counsel at
the direct appeal stage of the criminal proceedings.10 And in
this case, the district court granted Collins a new direct appeal
after concluding that this right was earlier infringed upon as a
result of the ineffectiveness of counsel.
   But to apply a procedural bar here to limit this court’s
review of assignments of error which would normally have
been reviewed during an appeal immediately after final judg-
ment would deprive Collins of a counseled appeal on those
allegations. Because our postconviction statute allows a district
court to order a new direct appeal where a defendant directs
trial counsel to appeal,11 the direct appeal must have the same
incidents that the ineffectively lost appeal would have had.
And the right to the assistance of counsel is clearly one of
those incidents.
   We therefore turn to the merits of Collins’ direct appeal.
                     2. Excessive Sentence
   [6] On appeal, Collins first assigns that his sentence was
excessive. Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, an appellate court
must determine whether the sentencing court abused its dis-
cretion in considering and applying the relevant factors as
well as any applicable legal principles in determining the sen-
tence to be imposed.12 An abuse of discretion occurs when a

 9	
      Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974).
10	
      State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008).
11	
      See State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000).
12	
      State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
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                        Nebraska A dvance Sheets
                         292 Nebraska R eports
                              STATE v. COLLINS
                              Cite as 292 Neb. 602

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.13
   [7] In imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and
experience, (4) social and cultural background, (5) past crimi-
nal record or record of law-abiding conduct, and (6) motiva-
tion 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.14
   Collins was convicted of a Class II felony, which is punish-
able by 1 to 50 years’ imprisonment.15 Collins was sentenced
to 10 to 15 years’ imprisonment. As such, his sentence was
within the statutory limits.
   The sentence was also not otherwise excessive. In sen-
tencing Collins, the district court noted that it was aware of
Collins’ lack of a criminal history, but explained that a prison
sentence was warranted due to the period of time over which
the abuse took place, as well as the young age of the victim.
In short, a review of the sentencing hearing shows that the
district court appropriately considered the relevant sentenc-
ing factors.
   Collins’ sentence was not excessive. His first assignment of
error is without merit.
             3. Ineffective Assistance of Counsel
   [8,9] On appeal, Collins makes various claims regarding
the ineffectiveness of his trial counsel. The fact that an inef-
fective assistance of counsel claim is raised on direct appeal
does not necessarily mean that it can be resolved.16 The deter-
mining factor is whether the record is sufficient to adequately

13	
      See State v. Johnson, supra note 1.
14	
      State v. Dixon, supra note 12.
15	
      Neb. Rev. Stat. § 28-105 (Reissue 2008 & Cum. Supp. 2014).
16	
      See State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).
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                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                               STATE v. COLLINS
                               Cite as 292 Neb. 602

review the question.17 An ineffective assistance of counsel
claim will not be addressed on direct appeal if it requires an
evidentiary hearing.18
                (a) Failure to Inform Collins of
                  Penalty for Class II Felony
   Collins argues that his counsel was ineffective in failing
to properly inform him of the potential penalty for a Class II
felony. We conclude that we have a sufficient record to review
this claim.
   In order to show that his counsel was ineffective, Collins
must show that his counsel’s performance was deficient and
that he was prejudiced by counsel’s deficiency. But in this case,
a review of the bill of exceptions from Collins’ plea hearing
reveals that the district court accurately informed Collins of
the penalty connected with a Class II felony. For this reason,
Collins cannot show that he was prejudiced by any deficient
conduct on the part of trial counsel. This assignment of error
is without merit.
                  (b) Remaining Allegations
   Collins makes various other allegations of ineffective assist­
ance of counsel. We have reviewed the allegations and con-
clude that the record on direct appeal is not sufficient to
address them. Accordingly, we decline to reach the remainder
of Collins’ assignments of error.
                         VI. CONCLUSION
      The decision of the district court is affirmed.
                                                             A ffirmed.

17	
      Id.
18	
      State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
