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respect to the consequences of a criminal conviction for immi-
gration status.”
   Thus, prior to the decision in Padilla, whether counsel
informed a defendant of the potential immigration conse-
quences of a conviction was excluded from analysis under
Strickland. And under Chaidez, the right granted in Padilla is
not retroactive. Thus, if a conviction was final as of the date
of the Court’s decision in Padilla, a criminal defendant cannot
benefit from the Padilla holding.
   Because Merheb did not appeal from his conviction and
sentence, Merheb’s conviction became final in early January
2009—30 days after his sentence was imposed by the trial
court. Padilla was not decided until March 31, 2010. Thus, the
constitutional right under which Merheb seeks relief is inap-
plicable as a matter of law and the procedure set forth under
Gonzalez is unavailable. Merheb’s argument that the district
court erred in denying his motion to set aside his plea is with-
out merit.
                          CONCLUSION
   The district court’s denial of Merheb’s motion to set aside
his plea is affirmed.
                                                   Affirmed.
   Cassel, J., not participating.



                     State of Nebraska, appellee, v.
                       Trent R. Esch, appellant.
                                   ___ N.W.2d ___

                       Filed February 6, 2015.    No. S-14-471.

 1.	 Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
     whether the evidence is direct, circumstantial, or a combination thereof, the stan-
     dard is the same: An appellate court does not resolve conflicts in the evidence,
     pass on the credibility of witnesses, or reweigh the evidence; such matters are for
     the finder of fact. The relevant question for an appellate court is whether, after
     viewing the evidence in the light most favorable to the prosecution, any rational
     trier of fact could have found the essential elements of the crime beyond a rea-
     sonable doubt.
                         Nebraska Advance Sheets
	                                  STATE v. ESCH	89
	                                 Cite as 290 Neb. 88

 2.	 Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double
     Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence
     admitted by a trial court, whether erroneously or not, would have been sufficient
     to sustain a guilty verdict.
 3.	 Sentences: Restitution. In imposing a sentence, the court must state the precise
     terms of the sentence. Such requirement of certainty and precision applies to
     criminal sentences containing restitution orders, and a court’s restitution order
     must inform the defendant whether the restitution must be made immediately, in
     specified installments, or within a specified period of time, not to exceed 5 years,
     as required under Neb. Rev. Stat. § 29-2281 (Reissue 2008).

   Appeal from the District Court for Custer County: Karin
L. Noakes, Judge. Affirmed in part, and in part reversed and
remanded with directions.

   David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson,
P.C., for appellant.

  Jon Bruning, Attorney General, and Austin N. Relph for
appellee.

  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.

    Miller-Lerman, J.
                      NATURE OF CASE
   This appeal was brought by Trent R. Esch in connection with
his convictions and sentences in the district court for Custer
County for felony criminal mischief and use of a weapon to
commit a felony. In a previous appeal, Esch obtained certain
relief which lead to a new trial from which this appeal is taken.
See State v. Esch, No. A-13-241, 2013 WL 6623142 (Neb.
App. Dec. 17, 2013) (selected for posting to court Web site).
He claims that there was insufficient evidence to support his
conviction for use of a weapon to commit a felony and to sup-
port an order to pay $7,500 as restitution for criminal mischief.
Esch stands convicted of criminal mischief, but we reverse
Esch’s conviction for use of a weapon to commit a felony
and order the charge to be dismissed. Regarding the sentence
for felony criminal mischief, we affirm the term of imprison-
ment and the amount of restitution ordered, but we remand the
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90	290 NEBRASKA REPORTS



cause for resentencing with respect to the manner of payment
of restitution.

                    STATEMENT OF FACTS
   Esch was originally tried before a jury on charges of crimi-
nal mischief and use of a weapon to commit a felony. Evidence
at the jury trial indicated that on March 18, 2012, Esch went
to the home of the chief deputy of the Custer County Sheriff’s
Department and repeatedly fired his rifle at the chief deputy’s
patrol car which was parked outside the home. Damage to
the patrol car included several bullet holes to the side of it, a
punctured gas tank, and a flat tire. The company which insured
the patrol car determined that it was a total loss. The jury
found Esch guilty of both counts and determined that the value
of pecuniary loss sustained as a result of the criminal mischief
was $7,500. The court sentenced Esch to imprisonment for 20
to 36 months for felony criminal mischief and to a consecutive
sentence of imprisonment for 5 to 7 years for use of a weapon.
The court also ordered Esch to pay restitution in the amount
of $7,500.
   Esch appealed his convictions and sentences to the Nebraska
Court of Appeals. He claimed, inter alia, that the district court
erred when it refused his proposed jury instruction which
stated that the jury must determine beyond a reasonable doubt
the pecuniary loss sustained as a result of Esch’s criminal mis-
chief. The court had refused Esch’s proposed separate instruc-
tion and instead had combined the pecuniary loss instruction
with the instruction setting forth the elements of criminal mis-
chief. The instruction given by the court stated in part, “If you
find the State has proven the elements of Criminal Mischief
beyond a reasonable doubt, you must also determine what, if
any, pecuniary loss was suffered.”
   The Court of Appeals rejected most of Esch’s assignments
of error, which related to evidentiary rulings and sufficiency
of the evidence. However, the Court of Appeals concluded
that the district court erred when it failed to instruct the
jury more particularly that it must determine pecuniary loss
beyond a reasonable doubt. The Court of Appeals noted that
pecuniary loss is not an element of criminal mischief, which
                  Nebraska Advance Sheets
	                        STATE v. ESCH	91
	                       Cite as 290 Neb. 88

is described in Neb. Rev. Stat. § 28-519 (Reissue 2008), but
the amount of pecuniary loss determines whether the offense
is a felony or a misdemeanor. Under § 28-519, if pecuniary
loss is $1,500 or more, then the offense is a Class IV felony;
if pecuniary loss is less than $1,500, the offense is a mis-
demeanor. The Court of Appeals concluded that the court’s
failure to instruct the jury more particularly that the State
must prove the amount of pecuniary loss beyond a reasonable
doubt was erroneous and prejudicial to Esch.
   Because pecuniary loss is not an element of criminal mis-
chief, and because it rejected Esch’s other assignments of
error, the Court of Appeals affirmed Esch’s conviction for
criminal mischief. However, as a result of its conclusion that
the court erred when it failed to properly instruct the jury
that the amount of pecuniary loss due to the criminal mis-
chief must be proved beyond a reasonable doubt, the Court of
Appeals stated:
      [W]e vacate Esch’s sentence for criminal mischief and
      remand the cause for a new trial on the issue of the
      amount of pecuniary loss caused by Esch’s criminal mis-
      chief on March 18, 2012. Once that determination is
      made, the trial court can properly determine the grade
      of the offense and then resentence Esch accordingly.
      In addition, because the offense of use of a weapon
      to commit a felony is contingent upon the underlying
      crime being a felony, we must also vacate the use of a
      weapon conviction.
State v. Esch, No. A-13-241, 2013 WL 6623142 at *5 (Neb.
App. Dec. 17, 2013) (selected for posting to court Web
site). The Court of Appeals then determined that the Double
Jeopardy Clause did not prohibit a retrial for the charge of use
of a weapon to commit a felony because the evidence admit-
ted in the jury trial was sufficient to sustain a conviction for
that charge. The Court of Appeals concluded its opinion as
follows: “[W]e affirm Esch’s conviction for criminal mischief
but vacate his sentence and remand the cause for a new trial
on the issue of pecuniary loss. We also vacate his conviction
and sentence for use of a weapon to commit a felony.” Id. The
holding of the Court of Appeals’ opinion stated, “Affirmed in
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92	290 NEBRASKA REPORTS



part, and in part vacated and remanded for further proceed-
ings.” Id.
   On remand, Esch waived his right to a jury trial and con-
sented to a bench trial. At the bench trial, the State offered
two exhibits into evidence—a “Written Stipulation” signed by
Esch and the State and a “Waiver of Jury Trial, Waiver of Pre-
Sentence Investigation and Acknowledgment of the Written
Stipulation” signed by Esch. Esch did not object to these two
exhibits, and the court received both exhibits. Neither the State
nor Esch offered any other evidence.
   The written stipulation stated, inter alia, that
      the criminal mischief occurring on March 18, 2012, for
      which [Esch] was convicted and which conviction was
      affirmed by the Nebraska Court of Appeals, resulted in
      damage to a 2007 Dodge Durango automobile and . . . the
      pecuniary loss sustained as a result of the damage to the
      2007 Dodge Durango automobile exceeded $1500.
The written stipulation also stated that the parties “jointly rec-
ommend that the Court sentence [Esch] to the sentence previ-
ously entered herein on March 21, 2013.”
   In the waiver, Esch stated, inter alia, that he understood
that
      by executing the written stipulation . . . the District Court
      will find him guilty beyond a reasonable doubt of the
      charge of felony criminal mischief, a class IV felony and
      that the District Court may also find him guilty beyond a
      reasonable doubt on the charge of the use of a weapon to
      commit a felony, a class IC felony.
   The district court found Esch guilty beyond a reasonable
doubt of both criminal mischief, a Class IV felony, and use of
a weapon to commit a felony. The court further found beyond
a reasonable doubt that the pecuniary loss caused by the crimi-
nal mischief was equal to or greater than $1,500. The court
sentenced Esch by imposing the same sentences that had been
pronounced after the jury trial, including the order to pay res-
titution in the amount of $7,500.
   Esch appeals his conviction for use of a weapon to commit
a felony and the restitution portion of his sentence for felony
criminal mischief.
                   Nebraska Advance Sheets
	                         STATE v. ESCH	93
	                        Cite as 290 Neb. 88

                ASSIGNMENTS OF ERROR
   Esch claims that there was insufficient evidence to support
(1) his conviction for use of a weapon to commit a felony
and (2) the order to pay restitution of $7,500 for crimi-
nal mischief.
                   STANDARD OF REVIEW
   [1] In reviewing a sufficiency of the evidence claim, whether
the evidence is direct, circumstantial, or a combination thereof,
the standard is the same: An appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence; such matters are for the finder of fact.
The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt. State v.
Matit, 288 Neb. 163, 846 N.W.2d 232 (2014).
                          ANALYSIS
   We note initially that Esch does not challenge his convic-
tion for criminal mischief and that because he stipulated the
damage was greater than $1,500, he conceded that it was
a felony. Therefore, Esch stands convicted of felony crimi-
nal mischief.
There Was Not Sufficient Evidence in the
New Trial to Support a Conviction for
Use of a Weapon to Commit a Felony.
   In this appeal, Esch first claims that at the new trial, the
State failed to present sufficient evidence to support a con-
viction of use of a weapon to commit a felony. We agree
with Esch’s contentions that the Court of Appeals’ mandate
required a new trial on use of a weapon to commit a felony
and that at the new trial, the State did not offer sufficient evi-
dence to prove this charge. We therefore reverse the convic-
tion for use of a weapon to commit a felony, and we further
conclude that the Double Jeopardy Clause forbids a new trial
on this charge.
   In its opinion in Esch’s first appeal, the Court of Appeals
affirmed his criminal mischief conviction but vacated Esch’s
   Nebraska Advance Sheets
94	290 NEBRASKA REPORTS



conviction and sentence for use of a weapon to commit a
felony. The Court of Appeals also concluded that the Double
Jeopardy Clause did not forbid a retrial on the use of a weapon
charge. Therefore, to obtain a conviction for use of a weapon,
the Court of Appeals’ opinion anticipates that there could be
a new trial on the charge, at which trial, the State would be
required to prove all elements of the charge of use of a weapon
beyond a reasonable doubt.
   At the new trial, the State offered no evidence other than
the written stipulation and the waiver. Although Esch stipu-
lated to certain facts, including the fact that the damage caused
by his criminal mischief was in excess of $1,500, Esch did
not stipulate to other facts that were necessary to establish
the elements of use of a weapon to commit a felony. The
stipulation was sufficient to establish that Esch’s conviction
for criminal mischief was properly classified as a felony and
that therefore, Esch had committed a felony, but the State pre-
sented no evidence at the new trial to show that Esch used a
weapon to commit the felony criminal mischief of which he
was convicted.
   The State contends that the remand was limited to a trial to
determine the amount of pecuniary loss to determine the grade
of the criminal mischief conviction and that only evidence rel-
evant to that issue could be considered on remand. The State
misperceives the opinion of the Court of Appeals. The Court
of Appeals’ opinion did not impose the limitation urged by the
State on the scope of the proceeding on remand. As noted, with
regard to the criminal mischief charge, the Court of Appeals
affirmed the conviction but vacated the sentence and remanded
the cause for a new trial on the issue of pecuniary loss, which
issue was relevant to sentencing for the criminal mischief
conviction. The Court of Appeals did not similarly limit the
scope of proceedings on remand with respect to the use of a
weapon to commit a felony charge. To the contrary, the Court
of Appeals vacated the conviction and noted that the Double
Jeopardy Clause did not prohibit a new trial on the charge
of use of a weapon. A new trial was at the discretion of the
prosecutor, and a new trial required evidence to establish all
elements of use of a weapon as charged.
                  Nebraska Advance Sheets
	                        STATE v. ESCH	95
	                       Cite as 290 Neb. 88

   The State also argues that there was evidence at the first
trial that Esch had used a gun to commit criminal mischief and
that use of a weapon should be treated as an established fact.
However, the State did not offer evidence from the first trial
into evidence at the new trial and it therefore did not establish
by presentation of evidence the elements of use of a weapon
at the new trial. Although it was established at the new trial
that Esch had committed felony criminal mischief, the use of
a weapon is not an element of felony criminal mischief; estab-
lishing commission of the crime of felony criminal mischief
does not automatically prove the use of a weapon in the com-
mission of the crime of felony criminal mischief.
   The State additionally directs our attention to the writ-
ten stipulation, in which Esch agreed to recommend that the
district court impose the same sentence that it had imposed
previously. The State argues that Esch in effect stipulated to
his guilt on the use of a weapon charge. We do not read the
sentencing feature of the stipulation as a stipulation by Esch
that he agreed to be found guilty of use of a weapon to commit
a felony; it was only an agreement that if he were again con-
victed, he would join a recommendation for the same sentence
that had previously been imposed. By its terms, such agree-
ment with regard to sentencing would necessarily take effect
only if Esch were properly convicted of the crime for which he
was being sentenced.
   Finally, the State argues that Esch invited any error related
to the sufficiency of evidence regarding the use of a weapon
charge when he failed to object to the State’s interpretation
of the Court of Appeals’ opinion as providing that the use of
a weapon conviction would be automatically reinstated once
the criminal mischief conviction was shown to be a felony.
The State’s suggestion is without merit. Esch’s alleged failure
to object did not relieve the State of its duty to introduce suf-
ficient evidence to prove the elements of the crime beyond a
reasonable doubt at the new trial.
   [2] We reject the State’s arguments and conclude that
there was not sufficient evidence presented at the new trial
to support Esch’s conviction of use of a weapon to commit a
felony. The Double Jeopardy Clause does not forbid a retrial
   Nebraska Advance Sheets
96	290 NEBRASKA REPORTS



so long as the sum of all the evidence admitted by a trial
court, whether erroneously or not, would have been sufficient
to sustain a guilty verdict. State v. Ash, 286 Neb. 681, 838
N.W.2d 273 (2013). However, the evidence admitted at the
new trial was not sufficient to sustain a guilty verdict of use
of a weapon to commit a felony and, therefore, the Double
Jeopardy Clause prohibits a retrial. The use of a weapon con-
viction is reversed, and the cause is remanded with directions
to dismiss the charge.
Esch Stipulated to a Restitution Order in
the Amount of $7,500, but the District
Court Committed Plain Error When
It Failed to Specify the Manner
of Payment of Restitution.
   Esch claims that there was insufficient evidence to support
a restitution order in the amount of $7,500 in connection with
his conviction for felony criminal mischief. Because we con-
clude that Esch stipulated to a restitution order in the amount
of $7,500, we affirm the portion of the sentence which ordered
restitution in the amount of $7,500. However, the district court
failed to specify the manner of payment as required by statute,
and we therefore remand the cause for resentencing to specify
the manner of payment.
   Esch contends that there was not sufficient evidence to sup-
port a restitution order in the amount of $7,500 because the
written stipulation states only that the loss was in excess of
$1,500 and the State presented no evidence to prove damage
of $7,500. However, in the written stipulation, Esch stipulated
that he would join the State in recommending that he be sen-
tenced to the same sentence previously entered. The previous
sentence included a restitution order in the amount of $7,500,
the amount found by the jury at the first trial. We apply the
terms of the written stipulation, which we read as Esch’s
agreement that restitution of $7,500 as previously ordered was
an appropriate amount to compensate for damage caused by
his criminal mischief. Esch also waived his right to a jury trial
at the new trial, and therefore, as a result of the stipulation
and the waiver, the court had a sufficient basis from which it
                  Nebraska Advance Sheets
	                        STATE v. ESCH	97
	                       Cite as 290 Neb. 88

could enter a restitution order in the amount of $7,500, as it
had done after the first trial. We, therefore, affirm the portion
of the sentencing order in which the court ordered restitution
in the amount of $7,500.
   [3] However, the State calls our attention to Neb. Rev. Stat.
§ 29-2281 (Reissue 2008), which is titled “Restitution; determi-
nation of amount; manner of payment.” Relevant to the manner
of payment, § 29-2281 provides in part that “[t]he court may
order that restitution be made immediately, in specified install-
ments, or within a specified period of time not to exceed five
years after the date of judgment or defendant’s final release
date from imprisonment, whichever is later.” The State also
draws our attention to State v. Mettenbrink, 3 Neb. App. 7, 12,
520 N.W.2d 780, 783-84 (1994), in which the Court of Appeals
stated that “in imposing a sentence, the court must state the
precise terms of the sentence” and that such “requirement of
certainty and precision applies to criminal sentences containing
restitution orders.” In Mettenbrink, plain error was committed
when a court’s restitution order failed to inform the defendant
whether the restitution must be made immediately, in specified
installments, or within a specified period of time, not to exceed
5 years, as required under § 29-2281. Thus, although § 29-2281
offers options, one option must be ordered.
   In the present case, the district court failed to specify the
manner of payment of restitution as required under § 29-2281.
We apply the rationale in Mettenbrink, supra, and deter-
mine that it was plain error for the court to fail to specify
the manner of restitution payment. We therefore remand the
cause to the district court for resentencing with regard to the
manner of payment of restitution; we otherwise affirm the
sentence for criminal mischief, including the amount of resti-
tution ordered.
                        CONCLUSION
  Esch was convicted of felony criminal mischief, and the
conviction and sentence of imprisonment therefor stand and are
unaffected by this opinion.
  With respect to the present appeal, we conclude that there
was not sufficient evidence at the new trial to support Esch’s
   Nebraska Advance Sheets
98	290 NEBRASKA REPORTS



conviction for use of a weapon to commit a felony. We there-
fore reverse the conviction and, for reasons based on Double
Jeopardy explained above, remand the cause with directions
to vacate the conviction and dismiss the charge of use of a
weapon to commit a felony. We further conclude that there was
sufficient evidence to support the $7,500 amount of restitution
ordered with respect to the felony criminal mischief convic-
tion. We therefore affirm the $7,500 amount of restitution in
the sentence for felony criminal mischief but we remand the
cause for resentencing with respect to the manner of payment
of restitution.
	Affirmed in part, and in part reversed
	                      and remanded with directions.
