                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                    STATE V. MCCOLLISTER


  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.

                             CALEB D. MCCOLLISTER, APPELLANT.


                           Filed September 24, 2019.    No. A-18-889.


       Appeal from the District Court for Sarpy County: GEORGE A. THOMPSON, Judge. Affirmed.
       Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.
        Douglas J. Peterson, Attorney General, Melissa R. Vincent, and Derek T. Bral, Senior
Certified Law Student, for appellee.


       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       BISHOP, Judge.
                                      I. INTRODUCTION
       Caleb D. McCollister entered a guilty plea to and was convicted of one count of driving
under the influence of alcohol or drugs (fifth or subsequent offense) in the Sarpy County District
Court. He was sentenced to 12 to 16 years’ imprisonment, and his license was revoked for a period
of 15 years. He appeals his conviction and sentence and claims his trial counsel was ineffective.
We affirm.
                                      II. BACKGROUND
       In May 2017, the State filed an information charging McCollister with one count each of
driving under the influence of alcohol or drugs (fifth or subsequent offense), driving under
revocation, violation of a stop sign, possession of marijuana (1 ounce or less) or synthetically
produced cannabinoids, and possession of drug paraphernalia.



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         In July 2017, McCollister, by and through his attorney Mandy M. Gruhlkey of the Sarpy
County Public Defender’s Office (public defender’s office), filed a “Motion to Suppress
Statements.” At the hearing on that motion in August, Gruhlkey represented McCollister. After
evidence was adduced by each party, the district court overruled McCollister’s motion to suppress.
In October, Thomas P. Strigenz, from the same public defender’s office, entered his appearance in
the matter as counsel for McCollister.
         At a hearing on December 7, 2017, the parties indicated they had reached a plea agreement
on which they intended to proceed. McCollister entered a plea of guilty to the count of driving
under the influence of alcohol or drugs (fifth or subsequent offense), and in exchange, the State
dismissed the other charges. The State provided the following factual basis. On April 8, just before
1:30 p.m., a police officer was dispatched to a two-vehicle crash at a certain intersection in Sarpy
County, Nebraska. When officers arrived, several individuals were at that location, including two
members of the armed forces who had witnessed what had taken place “minutes earlier” and had
directed a “neighbor” to call “911.” According to witnesses, McCollister was driving “extremely
erratically, coming down the hill, made a right-hand turn, very wide turn, which caused him to
crash into a vehicle that was . . . travelling perpendicular to [McCollister’s] vehicle before
[McCollister] made that right-hand turn.” McCollister’s vehicle crashed into “this vehicle.”
McCollister then drove his vehicle away from the scene but returned within a few minutes and
parked in a driveway about three to four houses down from where the collision took place.
Members of the military and the victim of the crash were still at the scene. Law enforcement
arrived moments later. Witnesses told the police that McCollister appeared to be heavily under the
influence of “something, either alcohol or drugs.” The officer asked McCollister what happened
at the scene and “detected an odor of alcohol coming from [McCollister’s] person.” McCollister
had slurred speech. McCollister told the officer that he was taking several medications, including
two specific types of medications. He also said he had alcohol to drink before driving that day. He
later told the drug recognition expert officer that he smoked marijuana that morning and also had
a cookie that had marijuana baked into it. McCollister refused to submit to field sobriety
“maneuvers” or to a preliminary breath test. Later, a breath test “turned up the presence of alcohol
within [McCollister’s] person.” Laboratory tests of McCollister’s urine, which he submitted to that
day, confirmed the presence of one of the medications he told the officer about earlier. A drug
recognition expert conducted a drug recognition evaluation on McCollister and opined through
observations that McCollister was impaired to the extent to “appreciably impair his ability to
operate a motor vehicle.”
         The State also asserted that there were several small empty bottles of vodka and one partial
bottle of vodka found inside McCollister’s vehicle at the scene. Two broken glass pipes with
marijuana residue inside and a pill bottle with a small amount of suspected marijuana were also
found inside that vehicle. McCollister was arrested for driving under the influence of alcohol.
         According to the State, McCollister had the following prior convictions for driving under
the influence of alcohol or drugs: two convictions from January 2015 (Sarpy County), one
conviction from February 2015 (Dodge County, Nebraska), one conviction from March 2013
(Douglas County, Nebraska), and one conviction from May 2013 (Sarpy County). The State
offered five exhibits of certified copies of filings reflecting the same. McCollister objected to the



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exhibit of the alleged prior conviction out of Dodge County (exhibit 5), because it was set aside
based on questionable test results. Exhibit 5 includes an order filed in January 2017 setting aside
that conviction and sentence for driving under the influence in Dodge County. The district court
received exhibit 5 conditionally, noting McCollister’s argument upon it, and received the other
uncontested exhibits (exhibits 1-4).
        The district court found beyond a reasonable doubt that McCollister understood the nature
of the charge and possible sentence. It found McCollister had freely, knowingly, intelligently, and
voluntarily entered his plea. It found that there was a factual basis for the plea. The district court
accepted the plea and found McCollister guilty of driving under the influence of alcohol or drugs
(fifth or subsequent offense). The district court stated that, pursuant to exhibits 1 to 4, it would
determine McCollister’s present conviction a fifth offense. It said that exhibit 5 “would evince
another conviction,” but that it would “take [McCollister’s] argument as true.” It clarified that it
found that exhibits 1 to 4 were prior valid convictions.
        On September 10, 2018, the district court sentenced McCollister to 12 to 16 years’
imprisonment, with 330 days’ credit for time served. Additionally, the district court revoked
McCollister’s license for a period of 15 years.
        McCollister appeals.
                                 III. ASSIGNMENTS OF ERROR
        McCollister claims, restated and reordered, that (1) the district court erred when it
convicted and sentenced him despite a conflict of interest between McCollister and his trial
counsel, (2) the district court imposed an excessive sentence, and (3) his trial counsel provided
ineffective assistance in various ways.
                                  IV. 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. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).
       Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018). In reviewing
claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether
the undisputed facts contained within the record are 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. Id.
                                          V. ANALYSIS
                                     1. CONFLICT OF INTEREST
         McCollister claims it was erroneous for the district court to convict and sentence him due
to an alleged conflict of interest that arose when his attorney Gruhlkey (who appeared on his behalf
regarding his motion to suppress) left the employ of the public defender’s office and joined the
Sarpy County Attorney’s Office (county attorney’s office). McCollister argues that at the time of
his plea and sentencing, he was represented by a conflicted public defender’s office and prosecuted
by an office that was “potentially subject to disqualification due to their employment of



                                                -3-
[Gruhlkey].” Brief for appellant at 15. However, as explained below, McCollister did not raise this
issue until the same day he filed an appeal with this court, and therefore, the district court no longer
had jurisdiction over the matter to address this claim.
        On September 12, 2018 (2 days after sentencing), McCollister, pro se, filed a notice of
appeal, a motion and affidavit for leave to proceed in forma pauperis on appeal, and a “Motion for
an Order Compelling Withdrawal of Attorney and Request for a Hearing.” He sought an order
from the district court compelling withdrawal of the public defender’s office as his counsel and
appointing new counsel for him. McCollister’s motion alleged that there was a conflict of interest
between him and his court-appointed counsel. On September 17, the district court entered an order
allowing McCollister to pursue his appeal in forma pauperis.
        McCollister’s motion was heard on October 12, 2018. McCollister informed the court that
there was a conflict of interest with the public defender’s office because Gruhlkey “went over” to
the county attorney’s office so he needed a court-appointed attorney “outside of” the public
defender’s office. The district court took judicial notice of the case file and took the matter under
advisement. In its journal entry and order filed that same day, the district court noted some of the
procedural history of the case and said it “normally would schedule a hearing on this matter and
make its findings pursuant to order” but was “concerned” that that would not be accomplished
before McCollister’s appellate brief was due. The district court found that new counsel should be
appointed to represent McCollister on appeal and it proceeded to appoint an attorney for that
purpose. The district court also specifically stated in its order that it was making “no determination
on the merits of [McCollister’s] Motion to Compel Withdraw [sic] nor on whether a conflict
exist[ed].” Subsequently, in response to a show cause order from this court, an order was filed
granting the withdrawal of the public defender’s office. See, State v. Parnell, 294 Neb. 551, 883
N.W.2d 652 (2016) (order to show cause issued by appellate court when record failed to reflect
order granting withdrawal of trial attorneys; clarity in appellate record is necessary when claims
of ineffective assistance of trial counsel are raised on direct appeal).
        While the district court granted McCollister’s request for different counsel on appeal, it
properly elected to not address whether any conflict existed. As noted above, the district court no
longer had jurisdiction to address such a claim since McCollister’s appeal was perfected on
September 12, 2018, when he timely filed a notice of appeal and a motion and affidavit for leave
to proceed in forma pauperis on appeal. If an application to proceed in forma pauperis is timely
filed with the clerk of the district court and granted by the district court, the appellate court acquires
jurisdiction of the case when the notice of appeal is filed with the clerk of the district court. See
Neb. Rev. Stat. § 29-2306 (Reissue 2016). See, also, State v. Battershaw, 220 Neb. 661, 371
N.W.2d 313 (1985) (district court is divested of jurisdiction over particular case when appeal of
case is perfected to appellate court).
        The district court was divested of subject matter jurisdiction over the cause upon perfection
of McCollister’s appeal to this court on September 12, 2018. Accordingly, as a consequence of
McCollister not raising the issue of the alleged conflict of interest issue until he perfected his
appeal, the issue was not timely presented to or passed upon by the district court; therefore, we
will not address it either. See State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016)
(appellate court will not consider issue on appeal that was not presented to or passed upon by trial



                                                  -4-
court). However, McCollister raises this same issue in his claims of ineffective assistance of trial
counsel, and it is addressed later in this opinion in that context.
                                     2. EXCESSIVE SENTENCE
        McCollister claims his sentence is excessive. He was convicted of one count of driving
under the influence of alcohol or drugs (fifth or subsequent offense) in violation of Neb. Rev. Stat.
§ 60-6,196(1) (Reissue 2010), which is a Class IIA felony under Neb. Rev. Stat. § 60-6,197.03(9)
(Cum. Supp. 2016). A Class IIA felony is punishable by a maximum of 20 years’ imprisonment.
Neb. Rev. Stat. § 28-105(1) (Reissue 2016). A Class IIA felony under § 60-6,197.03(9) requires a
minimum sentence of 2 years’ imprisonment. McCollister was sentenced to 12 to 16 years’
imprisonment, with credit for 330 days’ time served. His sentence was within the statutory range.
His license was revoked for a period of 15 years, which is mandatory under § 60-6,197.03(9).
        Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a 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. Leahy, supra. In determining a sentence to be imposed, relevant
factors customarily considered and applied are 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. 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.
        The presentence investigation report (PSR) shows McCollister, age 31 at the time of
sentencing, has numerous charges reported in South Carolina from 2003 to 2011, for which the
disposition was listed as unknown. These charges, excluding those which occurred before he was
19 years’ old, include: burglary, grand larceny of $1,000 to $5,000, damage to property, and
carrying weapon on school grounds (2005); disorderly conduct, open container, and receipt of
stolen goods (2011); domestic violence -- 1st offense (2011); and failure to stop for “[b]lue” light,
open container (two counts), possession of cocaine, and resisting arrest (2011). According to the
PSR, McCollister said he pled to the “youth offender act” and was required to serve “1 to 6 years”;
he spent 14 months in a county jail and 6 months in prison in South Carolina before being paroled
in 2007. He reported that he was on probation for 5 years for possession of cocaine and that his
probation was later transferred to Nebraska and terminated successfully.
        Besides the four prior convictions for driving under the influence of alcohol or drugs noted
previously, McCollister has convictions in Nebraska for open container of alcohol (2015, fine) and
disturbing the peace (2016, fine). For each of his two 2013 convictions (one in Sarpy County, one
in Douglas County) for driving under the influence, McCollister was sentenced to pay a $500 fine
and serve 7 days in jail; also, his license was revoked for a period of 6 months in each case. For
both of his 2015 convictions (in Sarpy County) for driving under the influence, he was sentenced
to 12 to 36 months of jail time in each case. There is also a 2015 conviction for driving under the
influence in Dodge County, and the PSR shows he was sentenced to 18 to 36 months of jail time,



                                                -5-
and a 15-year license revocation (although as previously noted, exhibit 5 showed this conviction
had been set aside). After entering a plea in the present matter, but before sentencing, McCollister
committed the offense of “Driv[ing] While Revoked from DUI” in Stanton County, Nebraska, on
January 5, 2018, for which he was convicted and sentenced with a fine of $3,000 and his license
was revoked for 15 years.
         The overall Level of Service/Case Management Inventory shows McCollister is at a high
risk to reoffend. The PSR indicates that based on his criminal record and own admission,
McCollister displayed problem solving and anger management deficits. McCollister engaged in
denial and minimization techniques, and he “tried to place a majority of the blame on his mental
health concerns” (he said he had diagnoses of “Major Depressive Disorder, Bi-Polar I, and General
Anxiety Disorder”).
         According to the PSR, McCollister acknowledged problems with his alcohol use but denied
having a problem with his drug use. He reported past treatment (for substance abuse) through: a
facility in South Carolina (2011), the Nebraska State Penitentiary “RSP” program (2016), the
Omaha Correctional Center Substance Abuse Unit (2017), and a facility on “13th and Farnam”
(2017). He had attended “AA” meetings daily from May to August 2014, but was then “‘locked
up because [he] relapsed.’” He said that he had recently attended meetings and had a sponsor.
McCollister completed substance use assessments, scoring as follows: moderate to high risk range
for alcohol or drug abuse (Simple Screening Instrument); and maximum risk percentile in areas of
alcohol/substance abuse, driver risk, and stress coping (Nebraska Driver Risk Inventory).
McCollister was assessed to be a high risk to reoffend; his eligibility to be screened for the
Specialized Substance Abuse Supervision Program (SSAS) was noted.
         In McCollister’s letter to the court, attached to the PSR, he asserted that he required
intensive outpatient care rather than the treatment options offered in prison. He asked for another
chance to prove himself and said a “deterrent like even a suspended sentence to hang over [his]
head like 10 years suspended to 3-5 years [of] probation would be more productive than sending
[him] to the big house.” His mother and other individuals wrote letters to the court on his behalf,
all attached to the PSR.
         During sentencing, McCollister’s trial counsel asked for McCollister’s sentence to be to
SSAS “for a long period of time,” because a long period of imprisonment was “not going to solve
[McCollister’s] problem.” Defense counsel said McCollister was “the most sober” he had been in
“a long, long time,” and that McCollister now knew that his recovery, mental status, and
alcoholism was the “most important thing.” Defense counsel also noted the strong support
McCollister received from his mother.
         McCollister personally avowed that he would do “whatever it takes to find the change, and
break the chain.” While on parole, he: worked; attended “AA,” outpatient care, and “sponsoring”;
and wore a “CAM bracelet.” After removal of the “CAM bracelet,” he learned how weak his
willpower was and “lost” to his addiction after a few weeks. He “failed to talk to [his] parole
officer and sponsor.” There was “no good reason” for getting the “DUR” (driving under revocation
conviction) besides wanting to take the risk. His vehicle was in an “undisclosed area to remove
temptation.” He viewed SSAS as something that could help him do the right thing until he had the
“tools and strength” to do it himself.



                                               -6-
        The district court said it had spent “quite a bit of time” going through the PSR. It had
McCollister’s letter and said it took into account his thoughts and feelings spoken that day as well
as comments of each party’s counsel. It noted McCollister was a high risk to reoffend and was at
“max risk” on the Nebraska Driver Risk Inventory. The court noted a disagreement between the
parties on whether the present offense was a “7th lifetime.” The court said it was a “5th lifetime
or -- but it’s so many DUIs. And so much driving. And then after getting sentenced for this and
going to prison and getting released on parole, it continues to happen.” The court agreed that
McCollister was taking full responsibility for the present offense but stated that it had to look at
his actions. It believed McCollister was sincere in saying he did not want to “do this” again. But it
had to balance McCollister’s wish with the “concerns of society.” The court found that
imprisonment was necessary for the protection of the public because the risk was substantial that
McCollister would engage in additional criminal conduct if placed under probation and a lesser
sentence would depreciate the seriousness of the offense and promote disrespect for the law.
        On appeal, McCollister claims the district court weighed the seriousness of the offense too
heavily and his potential for rehabilitation too lightly. However, he “does not contest that his
offenses were of a serious nature.” Brief for appellant at 12. He alleges that the court failed to
sufficiently consider “several mitigating factors” in the PSR, including his “excellent family
support system and amenability to treatment.” Id. at 7. He argues that both evaluations completed
for the PSR suggested he had significant substance dependence issues and claims he qualified for
screening for the SSAS had the court placed him on probation.
        All factors relevant to sentencing, as previously set forth from State v. Leahy, 301 Neb.
228, 917 N.W.2d 895 (2018), were covered in the comprehensive and lengthy PSR. The record
reflects that the district court reviewed and considered the PSR’s contents along with statements
made during the sentencing hearing. The record does not show that the court relied on anything
inappropriate. The district court’s finding that imprisonment was necessary in this case was
appropriately based on McCollister’s prior criminal history, testing done in the case, and
consideration of the nature and circumstances of the crime, history, character, and condition
McCollister found himself in, as well as the PSR and statements received in it. The court was
reasonably concerned that this was McCollister’s fifth offense for driving under the influence of
alcohol or drugs and indicated the risk was too high that McCollister would continue to repeat his
behavior underlying his conviction if given probation, despite McCollister’s stated will to do
otherwise. Notably, McCollister drove under revocation within a month after entering a plea in
this case. And while McCollister claimed that he regretted doing so, the record certainly supports
the district court’s concerns regarding McCollister actually changing his behavior given the history
noted above. We conclude the district court did not abuse its discretion in imposing McCollister’s
sentence.
                             3. INEFFECTIVE ASSISTANCE OF COUNSEL
        McCollister raises various claims of ineffective assistance of trial counsel. His counsel for
this direct appeal is different than his trial counsel. 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



                                                -7-
record in order to preserve such claim. State v. Spang, 302 Neb. 285, 923 N.W.2d 59 (2019). Once
raised, the appellate court will determine whether the record on appeal is sufficient to review the
merits of the ineffective performance claims. Id. An ineffective assistance of counsel claim made
on direct appeal can be found to be without merit if the record establishes that trial counsel’s
performance was not deficient or that the appellant could not establish prejudice. See id.
        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 has the burden to show that
his or her counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense. State v. Spang, supra. In a plea context, deficiency depends
on whether counsel’s advice was within the range of competence demanded of attorneys in
criminal cases. State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018). The prejudice requirement
in a plea context is satisfied if the defendant shows a reasonable probability that but for the errors
of counsel, the defendant would have insisted on going to trial rather than pleading guilty. Id.
        With those principles in mind, we review each of McCollister’s claims.
                         (a) Claims Concerning Alleged Conflict of Interest
        McCollister claims his trial counsel was ineffective by (1) failing to advise him concerning
the alleged conflict of interest created by trial attorney Gruhlkey obtaining employment with the
county attorney’s office and (2) failing to move for disqualification of that office. He argues his
trial counsel did not advise him of the option to waive the conflict or move to disqualify the county
attorney’s office. He asserts that if his trial counsel had advised him about the alleged conflict of
interest and made a motion “before advising [him] to plead no contest,” there was a reasonable
probability that he would have successfully moved to disqualify the county attorney’s office and
sought a different outcome upon the appointment of a new prosecutor. Brief for appellant at 18.
        The Nebraska Supreme Court has rejected a per se rule of requiring disqualification of a
prosecuting office when a conflict of interest with a defendant arises. See State v. McGuire, 286
Neb. 494, 837 N.W.2d 767 (2013). Under the approach taken by the Nebraska Supreme Court, the
trial court evaluates the circumstances of a particular case and then determines whether
disqualification of the entire office is appropriate. See State v. Kinkennon, 275 Neb. 570, 747
N.W.2d 437 (2008). Courts consider, among other things, whether the attorney divulged any
confidential information to other prosecutors or participated in some way in the prosecution of the
defendant. Id. The prosecuting office need not be disqualified from prosecuting the defendant if
the attorney who had a prior relationship with the defendant is effectively isolated from any
participation or discussion of matters concerning which the attorney is disqualified. Id. If
impropriety is found, however, the court will require recusal of the entire office. Id.
        Whether the apparent conflict of interest justified the disqualification of other members of
the office is a matter committed to the discretion of the trial court. Id. In exercising that discretion,
the court should consider all of the facts and circumstances and determine whether the
prosecutorial function could be carried out impartially and without breaching any of the privileged
communications. Id. Whether the State has established an effective screening procedure will be
part of that analysis, and the Nebraska Supreme Court has discussed certain procedures that are
required at a minimum and those procedures that may be appropriate depending on the



                                                  -8-
circumstances of each case. See id. A defendant can waive a conflict of interest that would
disqualify the prosecuting office. See State v. McGuire, supra.
        The record shows that Gruhlkey represented McCollister regarding his motion to suppress.
There is no dispute on appeal that, at some point during the pendency of McCollister’s case
(whether before or after McCollister entered his plea is unknown on our record), Gruhlkey began
working for the county attorney’s office that was prosecuting McCollister. Gruhlkey’s new
employment, in general, presented a conflict of interest. See id. At the hearing on October 12,
2018, McCollister’s trial attorney (Strigenz) told the district court that the public defender’s office
had “always taken the position that that conflict [concerning Gruhlkey] still exists.” Strigenz did
not know if the public defender’s office had ever addressed “that” with McCollister but “thought”
they had.
        Our record is insufficient to address McCollister’s claim regarding whether trial counsel
disclosed a possible conflict of interest that the county attorney’s office may have had once
Gruhlkey obtained employment with that office. Although it was believed to have been discussed,
there was some uncertainty. The record does not reveal whether McCollister was given an option
to waive the conflict of interest or to move to disqualify the county attorney’s office. Had a motion
to disqualify been made, the record is insufficient to determine whether disqualification was
warranted pursuant to the approach set forth in State v. McGuire, supra, and State v. Kinkennon,
supra.
        Although the State reasonably argues that since it already had access to “ample evidence”
to prove McCollister’s guilt beyond a reasonable doubt “long before [Gruhlkey] stopped
representing him,” there was “no reason to believe that McCollister would have entered a different
plea had his trial counsel advised him of the conflict.” Brief for appellee at 15. The State contends
that no prejudice could have resulted from Gruhlkey’s change in employment. While that may be
true, our record is insufficient to fully resolve these claims.
                (b) Claims Concerning Investigation of Defense and Entry of Plea
       McCollister argues that he received ineffective assistance when his trial counsel failed to
adequately investigate his defense and ensure that his plea was voluntary, knowing, and intelligent.
His specific claims are set forth below.
                    (i) Advice About Sentencing and Its Effect on Entry of Plea
        McCollister asserts that his trial counsel repeatedly advised him that the prosecutor would
stand silent at sentencing and, because that did not ultimately happen, his plea was not knowing,
voluntary, or intelligent. He claims trial counsel misrepresented that aspect of the plea agreement
because the prosecutor (at sentencing) stated that “this is a true DUI 7th” and proceeded to ask for
a “straight sentence.” The record of the plea hearing shows that in reciting the intended plea
agreement, prior to McCollister entering his plea, the State said “[t]here’s no sentencing
agreement.” McCollister answered affirmatively when the district court asked him if the State’s
recitation was McCollister’s understanding of the plea agreement. Even if his trial counsel advised
him as alleged, the record shows that McCollister confirmed his understanding of the plea




                                                 -9-
agreement even after hearing the State specifically indicate there was no agreement with regard to
sentencing.
        The requirements to support finding McCollister entered a guilty plea freely, intelligently,
voluntarily, and understandingly were met when the record of the plea hearing shows the district
court informed him concerning (1) the nature of the charge, (2) the right to assistance of counsel,
(3) the right to confront witnesses against the defendant, (4) the right to a jury trial, and (5) the
privilege against self-incrimination, and further informed McCollister of the range of penalties for
the charge and concluded the State had provided a factual basis for the plea. See State v. Lane, 299
Neb. 170, 907 N.W.2d 737 (2018). McCollister does not assert that any of those requirements were
not met. Accordingly, this claim of ineffective assistance of trial counsel is refuted by the record.
            (ii) Consultation About Medications and Investigation of Their Side Effects
         McCollister’s next two claims are related; we discuss them together. He asserts that his
trial counsel failed to adequately consult with him in person or over the telephone when, had his
trial counsel done so, he would have told his trial counsel about the side effects of his psychiatric
mediations (including, but not limited to, “glassy eyes, dry mouth, and dilated/unresponsive
pupils”). Brief for appellant at 20. He believes that those alleged side effects did not impair his
ability to drive. He also argues that his trial counsel failed to investigate his defense that those side
effects “erroneously gave the drug recognition expert the opinion that he was impaired.” Id.
         The investigative report of the drug influence evaluation (investigative report), attached to
the PSR, shows the drug recognition expert’s opinion that McCollister was “under the influence
of alcohol, CNS depressants and cannabis” and was “unable to operate a motor vehicle safely.”
Included in its reasoning was that McCollister stated at the start of the evaluation that he was taking
four types of medications “all used to treat depression and or anxiety disorders and [were] in the
CNS depressant category” and towards the end of the evaluation admitted to taking his “prescribed
antidepressant/antipsychotic medication.” In the body of the report, it was noted that McCollister
had “rebound dilation” in both eyes, his reaction to light was slow, and he had a “white coating”
on his tongue and “excessive cottonmouth.” However, even if those conditions resulted from side
effects of medications and even if McCollister could have informed his trial counsel about those
side effects, the investigative report showed reliance on several other factors beyond those
observations that led to its conclusion.
         The other reasons supporting McCollister being under the influence and unable to operate
a motor vehicle safely which were noted in the investigative report were: (1) McCollister was
involved in a property damage accident where he had violated a stop sign causing a crash; (2) he
had a measurable “BAC” of .082 at the start of the evaluation (taken at about 2:19 p.m.); (3) his
pulse was recorded on three occasions at “82 bpm”; (4) his blood pressure was “140/80 mmHg”;
(5) his body temperature was “98.3 degrees Fahrenheit”; (6) when McCollister was confronted
about abusing cannabis, he “openly admitted that he had smoked marijuana upon waking up at
approximately [6 to 7 a.m.] and also eating marijuana laced cookies that a friend had given him
around noon time”; (7) he was found with marijuana (less than 1 ounce) and marijuana
paraphernalia; (8) he showed “gross psychophysical impairment” during the “Walk and Turn
Testing”; and (9) on the “One Leg Stand Testing,” McCollister was noted to excessively sway



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while balancing, using his arms to balance, and putting his foot down so he would not fall over.
Also, McCollister consented to a test of his urine, which was taken the day of his offense (at 3:24
p.m.); the results from the sample showed detection of not only a metabolite of one of the
medications he had reported to taking on the day of the offense, but also a metabolite of marijuana.
McCollister does not dispute these factors or specifically allege that they too resulted from side
effects of his medication.
        Even if McCollister could show he was not impaired by the side effects of his medications,
he has not alleged anything to dispute that he was not impaired by his apparent alcohol or
marijuana use. Because the investigative report’s conclusion was not confined to an opinion that
McCollister was under the influence of “CNS depressants,” but also opined he was under the
influence of alcohol and cannabis, McCollister would not be able to establish prejudice by his trial
counsel’s alleged deficiencies regarding consultation and investigation about the side effects of his
psychiatric medications. These claims of ineffective assistance fail.
                            (iii) Obtaining Forensic Toxicologist Expert
         McCollister asserts that his trial counsel was ineffective for advising him to enter a plea
without obtaining the services of an expert in forensic toxicology. He argues that had his trial
counsel done so, he “would not have pled but insisted on trial where the expert would have testified
that the combination of substances in [his] body did not impair his ability to drive.” Brief for
appellant at 20. This claim is similar to those just discussed in that it is also premised on the notion
that his ability to drive was not impaired. As already discussed, even if McCollister was able to
produce evidence that his prescription drugs did not contribute to any impairment in his driving
ability, there was ample other evidence to support a finding of such an impairment from other
sources; further, he does not allege how an expert in forensic toxicology could conclude that the
evidence of his use of alcohol and marijuana could not have impaired his ability to drive. This
claim of ineffective assistance of trial counsel is without merit.
                       (iv) Raising State’s Coercive Tactics to District Court
        McCollister argues that his trial counsel should have brought the “coercive tactics” of the
State to the district court’s attention “where the prosecutor only agreed to let [him] leave jail on
pretrial release in exchange for his agreement to plead no contest, and the prosecutor knew that
[his] mother had recently had surgery and [he] needed to get back to her.” Id. The record of the
plea hearing shows that pretrial release was part of the plea agreement. The State’s motivation for
agreeing to that term for the plea is not contained in our record, but we cannot see how McCollister
was prejudiced by agreeing to the plea offer that resulted in four out of five charges being
dismissed. The record demonstrates that the district court specifically discussed the plea
negotiations with McCollister in the courtroom. The court noted that by tendering a plea to
“Count I,” then “Counts II, III, IV, and V are dismissed.” The court also noted recommendations
about bond and that there “may or may not be some about sentencing.” He asked McCollister if
that was his understanding; McCollister replied, “Yes, sir.” Trial counsel affirmed on the record
that he believed the plea was in McCollister’s best interests. Despite the opportunity to do so, at
no time did McCollister indicate to the district court that he felt compelled to take the plea offer




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so he could obtain pretrial release. Further, McCollister does not explain how his trial counsel’s
failure to point out the prosecutor’s tying McCollister’s acceptance of the plea to his pretrial release
could possibly have prejudiced him when his acceptance of the plea resulted in the dismissal of
four out of five charges which could have resulted in a substantially longer term of imprisonment
if found guilty. McCollister has failed to show a reasonable probability that but for this aspect of
the plea negotiations and offer, he would have insisted on going to trial on all five charges rather
than pleading guilty to the one. We find no merit to this claim of ineffective assistance of trial
counsel.
                                         VI. CONCLUSION
        For the foregoing reasons, we affirm McCollister’s conviction and sentence. Regarding
McCollister’s claims of ineffective assistance of trial counsel, we conclude all of his claims fail
except for the one claim we cannot resolve because the record is insufficient, specifically whether
McCollister’s trial counsel addressed with McCollister a possible conflict of interest when his first
trial counsel obtained a new position with the county attorney’s office that was prosecuting
McCollister’s case.
                                                                                         AFFIRMED.




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