Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/20/2018 01:08 AM CDT




                                                        - 159 -
                                  Nebraska Supreme Court A dvance Sheets
                                          300 Nebraska R eports
                                                 STATE v. VANNESS
                                                 Cite as 300 Neb. 159




                                        State of Nebraska, appellee, v.
                                         K elly A. Vanness, appellant.
                                                   ___ N.W.2d ___

                                          Filed June 8, 2018.     No. S-17-687.

                1.	 Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
                     fective assistance of trial counsel may be determined on direct appeal is
                     a question of law.
                 2.	 ____: ____. 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 deter-
                     mine whether counsel did or did not provide effective assistance and
                     whether the defendant was or was not prejudiced by counsel’s alleged
                     deficient performance.
                3.	 Appeal and Error. Plain error may be found on appeal when an error
                     unasserted or uncomplained of at trial, but plainly evident from the
                     record, prejudicially affects a litigant’s substantial right and, if uncor-
                     rected, would result in damage to the integrity, reputation, and fairness
                     of the judicial process.
                4.	 Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
                     counsel is different from his or her counsel on direct appeal, the defend­
                     ant 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.
                5.	 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.
                 6.	 ____: ____: ____. An appellate court can determine whether the record
                     proves or rebuts the merits of a claim of ineffective assistance of trial
                     counsel only if it has knowledge of the specific conduct alleged to con-
                     stitute deficient performance.
                7.	 Effectiveness of Counsel: Postconviction: Records: Appeal and
                     Error. An ineffective assistance of counsel claim is raised on direct
                                    - 160 -
             Nebraska Supreme Court A dvance Sheets
                     300 Nebraska R eports
                             STATE v. VANNESS
                             Cite as 300 Neb. 159

     appeal when allegations of deficient performance are made with
     enough particularity for (1) an appellate court to make a determina-
     tion of whether the claim can be decided upon the trial record and (2)
     a district court later reviewing a petition for postconviction relief to
     be able to recognize whether the claim was brought before the appel-
     late court.
 8.	 Constitutional Law: Effectiveness of Counsel: Conflict of Interest.
     The fact of multiple representation alone is not a per se violation of the
     Sixth Amendment.
 9.	 Effectiveness of Counsel: Conflict of Interest: Proof. A defendant
     who raised no objection at trial must show that an actual conflict of
     interest existed. When an actual conflict exists, there is no need to show
     that the conflict resulted in actual prejudice to the defendant.
10.	 Effectiveness of Counsel: Conflict of Interest: Presumptions: Proof.
     If the defendant shows that his or her defense counsel faced a situation
     in which conflicting loyalties pointed in opposite directions and that
     his or her counsel acted for the other client’s interests or the counsel’s
     own personal interests and against the defendant’s interests, prejudice
     is presumed.
11.	 Sentences: Appeal and Error. Where a sentence imposed within the
     statutory limits is alleged on appeal to be excessive, the appellate court
     must determine whether the sentencing court abused its discretion in
     considering and applying the relevant factors as well as any applicable
     legal principles in determining the sentence to be imposed.
12.	 Sentences. When imposing a sentence, the sentencing court is to con-
     sider the defendant’s (1) age, (2) mentality, (3) education and experi-
     ence, (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.
13.	 ____. Generally, it is within a trial court’s discretion to direct that
     sentences imposed for separate crimes be served either concurrently
     or consecutively. This is so even when offenses carry a mandatory
     minimum sentence, unless the statute requires that consecutive sentences
     be imposed.
14.	 ____. A court’s failure to advise a defendant of the correct statu-
     tory minimum and maximum penalties does not automatically warrant
     reversal.
15.	 ____. A determinate sentence is imposed when the defendant is sen-
     tenced to a single term of years.
16.	 ____. When imposing an indeterminate sentence, a sentencing court
     ordinarily articulates either a minimum term and maximum term or a
     range of time for which a defendant is to be incarcerated.
                                  - 161 -
            Nebraska Supreme Court A dvance Sheets
                    300 Nebraska R eports
                            STATE v. VANNESS
                            Cite as 300 Neb. 159

17.	 ____. In Nebraska, the fact that the minimum term and maximum term
     of a sentence are the same does not affect the sentence’s status as an
     indeterminate sentence.

  Appeal from the District Court for Holt County: M ark D.
Kozisek, Judge. Affirmed as modified.
   Martin V. Klein, of Carney Law, P.C., for appellant.
  Douglas J. Peterson, Attorney General, Joe Meyer, and
Nathan A. Liss for appellee.
   Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Strong, District Judge.
   Miller-Lerman, J.
                     I. NATURE OF CASE
   Kelly A. Vanness accepted a plea agreement and entered
pleas to four charges in the district court for Holt County,
for which she was convicted and sentenced to a combined
22 to 22 months’ imprisonment with periods of postrelease
supervision. Vanness claims that trial counsel was ineffective
in various respects. She also appeals her sentences, claiming
they are excessive and an abuse of discretion. The State notes
two possible points of plain error in connection with the sen-
tencing. The State notes that (1) the district court incorrectly
advised Vanness that conviction of a Class IV felony carries
a maximum of 5 years in prison, whereas the actual sentence
maximum was 2 years, and (2) the district court “may” have
imposed an indeterminate sentence, whereas the applicable
statutes for the convictions on three of the counts require deter-
minate sentences. We affirm Vanness’ convictions and modify
certain sentences, as we explain below.
                II. STATEMENT OF FACTS
   In an information filed December 22, 2015, in the district
court for Holt County, Vanness was charged with four counts
consisting of the following: operating a motor vehicle dur-
ing a time of suspension, Neb. Rev. Stat. § 60-4,108 (Cum.
                              - 162 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                        STATE v. VANNESS
                        Cite as 300 Neb. 159

Supp. 2016), a Class III misdemeanor (Count 1); possession
of a controlled substance (methamphetamine), Neb. Rev. Stat.
§ 28-416(3) (Supp. 2015), a Class IV felony (Count 2); pos-
session of a controlled substance (hydrocodone), § 28-416(3),
a Class IV felony (Count 3); and possession of drug parapher-
nalia, Neb. Rev. Stat. § 28-441 (Reissue 2016), an infraction
(Count 4).
   On February 8, 2016, Vanness pled guilty to all counts
alleged in the information. At the plea hearing, Vanness stated
that she was present in Holt County on September 13, 2015,
operating a motor vehicle with a driver’s license which had
been suspended for the reason that the insurance had expired.
She stated that she was in possession of methamphetamine and
hydrocodone which was not prescribed to her, and a pipe rec-
ognized as drug paraphernalia. The district court found that a
factual basis existed for the pleas of guilty.
   At the plea hearing, the district court informed Vanness of
her constitutional rights and that by pleading, she would be
giving up these enumerated rights; Vanness stated that she
understood and still wished to plead. The district court also
inquired about Vanness’ satisfaction with her trial counsel,
which we recite in greater detail below. The district court
found that Vanness understood her constitutional and statutory
rights and that her pleas were made freely, voluntarily, know-
ingly, and intelligently. The court accepted the pleas of guilty
and found Vanness guilty of all charges.
   The district court postponed sentencing pending Vanness’
participation in the “North Central Problem Solving Court.”
However, her participation in the problem-solving court was
terminated on April 10, 2017.
   On June 6, 2017, following preparation of a presentence
investigation report, the district court pronounced the sentence
of 60 to 60 days’ imprisonment for the conviction on Count 1,
to run concurrently with all sentences imposed. For the convic-
tion on Count 2, she was sentenced to 12 to 12 months’ impris-
onment with 9 months of postrelease supervision, with credit
for 26 days served, to run consecutively to other sentences.
                               - 163 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                         STATE v. VANNESS
                         Cite as 300 Neb. 159

For the conviction on Count 3, the district court sentenced
Vanness to 10 to 10 months’ imprisonment, to run consecu-
tively to other sentences, with a period of 9 months of succes-
sive and additional postrelease supervision. Vanness was fined
$100 for the conviction on Count 4.
   This appeal followed.
              III. ASSIGNMENTS OF ERROR
  Vanness claims that her trial counsel was ineffective in
various respects and that the district court erred by imposing
excessive sentences.
                IV. STANDARDS OF REVIEW
   [1,2] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question of
law. State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017). 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 preju-
diced by counsel’s alleged deficient performance. Id.
   [3] Plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputa-
tion, and fairness of the judicial process. State v. Ramirez, 287
Neb. 356, 842 N.W.2d 694 (2014).
                         V. ANALYSIS
   As we explain below, with regard to Vanness’ claims of
ineffectiveness of trial counsel, we are unable to reach the
merits of her claim that trial counsel had a conflict of inter-
est, but we determine that her other claims of ineffectiveness
are refuted by the record. We determine that the sentences
imposed on Vanness’ convictions did not exceed the statu-
tory limits, and we find no abuse of discretion in connection
with the district court’s rationale in sentencing. However, we
                              - 164 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                        STATE v. VANNESS
                        Cite as 300 Neb. 159

find plain error in the sentences imposed for the convictions
on Counts 1, 2, and 3, because the district court pronounced
indeterminate sentences where determinate sentences were
required by statutes. Accordingly, we affirm Vanness’ convic-
tions and modify her sentences for the convictions on Counts
1, 2, and 3.
                     1. Ineffective Assistance
                             of Counsel
   [4,5] Vanness is represented on direct appeal by counsel
different from the counsel who represented her at trial. 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. State v. Lane,
299 Neb. 170, 907 N.W.2d 737 (2018). Otherwise, the issue
will be procedurally barred. Id. The fact that an ineffective
assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved. Id. The determining
factor is whether the record is sufficient to adequately review
the question. Id.
   [6,7] An appellate court can determine whether the record
proves or rebuts the merits of a claim of ineffective assistance
of trial counsel only if it has knowledge of the specific conduct
alleged to constitute deficient performance. Id. An ineffective
assistance of counsel claim is raised on direct appeal when
allegations of deficient performance are made with enough
particularity for (1) an appellate court to make a determination
of whether the claim can be decided upon the trial record and
(2) a district court later reviewing a petition for postconviction
relief to be able to recognize whether the claim was brought
before the appellate court. Id.
                  (a) Trial Counsel’s Alleged
                      Conflict of Interest
   Vanness asserts that she was denied effective assistance of
trial counsel because of an actual conflict of interest arising
                               - 165 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                         STATE v. VANNESS
                         Cite as 300 Neb. 159

out of counsel’s representation of another individual. Vanness
specifically notes that her trial counsel also represented another
person who was arrested with Vanness and that their cases were
consolidated for purposes of their plea hearings. Vanness con-
tends that because the other defendant sold the drugs involved
in this case and the drugs belonged to the other defendant, an
actual conflict existed.
   [8-10] The fact of multiple representation alone is not a per
se violation of the Sixth Amendment. State v. Narcisse, 260
Neb. 55, 615 N.W.2d 110 (2000). A defendant who raised no
objection at trial must show that an actual conflict of interest
existed. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
When an actual conflict exists, there is no need to show that
the conflict resulted in actual prejudice to the defendant. Id. If
the defendant shows that his or her defense counsel faced a sit-
uation in which conflicting loyalties pointed in opposite direc-
tions and that his or her counsel acted for the other client’s
interests or the counsel’s own personal interests and against the
defendant’s interests, prejudice is presumed. Id. A conflict of
interest must be actual, rather than speculative or hypothetical,
before a court can overturn a conviction because of ineffective
assistance of counsel. Id.
   Although Vanness’ allegation regarding an alleged conflict
of interest of her trial counsel due to multiple representation is
sufficiently stated, the record is insufficient to review it in this
direct appeal.
            (b) Trial Counsel’s Failure to Investigate
               Innocence Defense and Advisement
                      of Lenient Sentencing
   On appeal, Vanness claims that drugs found at the scene
of the arrest belonged to another individual and that her trial
counsel failed to investigate a possible defense of innocence.
The files and records of the case affirmatively show that
this allegation of ineffectiveness of counsel has no merit. At
the plea hearing, the trial judge specifically asked whether
Vanness explained to her trial counsel all theories of defense
                              - 166 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                        STATE v. VANNESS
                        Cite as 300 Neb. 159

that she might have or could think of, and whether her
trial counsel investigated the defenses which she thought she
might have to her satisfaction. Vanness responded “[y]es” to
both inquiries.
   Vanness further claims that her trial counsel advised her to
plead guilty because she would receive “a lenient sentence.”
Brief for appellant at 10. This allegation of ineffectiveness of
counsel has no merit. During the colloquy at the plea hear-
ing, Vanness denied that any threats or promises were made
to induce her to enter her pleas of guilty. The record affirma-
tively refutes Vanness’ claim that she was promised lenient
sentencing. See State v. Casares, 291 Neb. 150, 864 N.W.2d
667 (2015).
                     2. Sentencing Errors
                    (a) Excessive Sentences
   Vanness generally claims that the sentences imposed were
excessive and an abuse of discretion. In particular, Vanness
contends that she should have been sentenced to either lesser
sentences or concurrent sentences. We find no merit to Vanness’
claims regarding excessiveness of sentences.
   [11-13] Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discre-
tion in considering and applying the relevant factors as well
as any applicable legal principles in determining the sentence
to be imposed. State v. Hunt, 299 Neb. 573, 909 N.W.2d 363
(2018). When imposing a sentence, the sentencing court is
to consider the defendant’s (1) age, (2) mentality, (3) educa-
tion 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. Generally, it is within a trial
court’s discretion to direct that sentences imposed for sepa-
rate crimes be served either concurrently or consecutively. Id.
This is so even when offenses carry a mandatory minimum
                              - 167 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                        STATE v. VANNESS
                        Cite as 300 Neb. 159

sentence, unless the statute requires that consecutive sentences
be imposed. Id.
   We have reviewed the record which shows that the sentence
imposed on each of Vanness’ convictions was within the statu-
tory limits and that the district court considered and applied
the necessary sentencing factors. The district court expressed
concern for Vanness’ substance abuse history, relapses, and her
lack of success in the problem-solving court. The district court
noted one of “the overriding considerations” was protecting
the public from Vanness, who had recently been in an acci-
dent while reportedly driving under the influence of drugs and
alcohol. Given her relapse in the problem-solving court, the
district court stated that maintaining Vanness in a “controlled
environment” such as prison might allow her to become less
likely to abuse drugs and alcohol and less likely to “harm
someone else or [her]self.” We do not find an abuse of discre-
tion in the court’s consideration of sentencing factors.
                   (b) Incorrect Advisement
   [14] The State notes that when Vanness pleaded guilty,
the district court incorrectly advised her that the potential
maximum penalty for the conviction of a Class IV felony
was 5 years’ imprisonment. However, because the date of the
offenses was in September 2015, after 2015 Neb. Laws, L.B.
605, had become effective on August 30, 2015, the maximum
sentence of imprisonment for the conviction of a Class IV
felony was 2 years. Neb. Rev. Stat. § 28-105 (Supp. 2015).
We have observed that a court’s failure to advise a defend­
ant of the correct statutory minimum and maximum penal-
ties does not automatically warrant reversal. State v. Russell,
291 Neb. 33, 863 N.W.2d 813 (2015). Here, the district court
erroneously advised Vanness that the range of penalties for
the convictions on Counts 2 and 3, possession of metham-
phetamine and hydrocodone, was 0 to 5 years’ imprison-
ment. Although incorrect, this advisement did not prejudice
Vanness. The sentences actually imposed of 12 to 12 months’
imprisonment with 9 months of postrelease supervision, and
                             - 168 -
          Nebraska Supreme Court A dvance Sheets
                  300 Nebraska R eports
                       STATE v. VANNESS
                       Cite as 300 Neb. 159

10 to 10 months’ imprisonment, with a period of 9 months of
successive postrelease supervision were both under the statu-
tory maximum and the maximum articulated by the district
court. See id. Facing a higher, albeit incorrect maximum, it is
“inconceivable” that Vanness would agree to plead guilty to a
higher maximum but not the lesser sentence which was actu-
ally imposed. See id. at 42, 863 N.W.2d at 820.
                  (c) Plain Error in Sentencing
   The State notes a possible error regarding whether
Vanness’ sentences were “determinate” as required by stat-
utes. Specifically, the convictions on Counts 1, 2, and 3
should have been determinate sentences under Neb. Rev. Stat.
§ 29-2204.02(1)(a) (Supp. 2015) (Class IV felonies) and Neb.
Rev. Stat. § 28-106(2) (Supp. 2015) (misdemeanors).
   No error has been assigned with regard to the periods of
postrelease supervision imposed, the credit for time served,
or the consecutive nature of Vanness’ sentencing which we
have not already addressed. However, when the district court
pronounced the sentences of 60 to 60 days’ imprisonment for
the convictions on Count 1, a Class III misdemeanor; 12 to 12
months’ imprisonment on Count 2, a Class IV felony; and 10
to 10 months’ imprisonment on Count 3, a Class IV felony,
such sentences were indeterminate rather than determinate.
The district court plainly erred by failing to pronounce deter-
minate sentences, and such error requires that we modify these
sentences on direct appeal.
   [15-17] We recently clarified the distinction between deter-
minate and indeterminate sentences. See State v. Artis, 296
Neb. 172, 893 N.W.2d 421 (2017), modified on denial of
rehearing 296 Neb. 606, 894 N.W.2d 349. In Artis, we said:
     A determinate sentence is imposed when the defendant
     is sentenced to a single term of years, such as a sentence
     of 2 years’ imprisonment. See State v. White, 256 Neb.
     536, 590 N.W.2d 863 (1999). In contrast, when imposing
     an indeterminate sentence, a sentencing court ordinarily
     articulates either a minimum term and maximum term or
                              - 169 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                        STATE v. VANNESS
                        Cite as 300 Neb. 159

      a range of time for which a defendant is to be incarcer-
      ated. Neb. Rev. Stat. § 28-105 (Reissue 2016); State v.
      White, supra. In Nebraska, the fact that the minimum
      term and maximum term of a sentence are the same
      does not affect the sentence’s status as an indeterminate
      sentence. See State v. Marrs, 272 Neb. 573, 723 N.W.2d
      499 (2006); State v. Urbano, 256 Neb. 194, 589 N.W.2d
      144 (1999).
296 Neb. at 607, 894 N.W.2d at 349-50.
   In its brief, the State refers to Artis, supra, and maintains
that Vanness’ sentences are “determinate” for the reasons the
sentences are for an identifiable and definite term of years and
the inclusion of postrelease supervision on the sentences for
Vanness’ Class IV felonies shows the district court intended
to impose determinate sentences. See § 29-2204.02(1). The
State’s characterization of the sentences in question is not con-
sistent with our historical or recent jurisprudence.
   Although Vanness’ sentences have the same minimum and
maximum term of years and can be definitely ascertained,
these features do not convert them into determinate sentences.
They were not pronounced as a “single term of years” and
thus are not determinate, and the district court plainly erred.
See Artis, 296 Neb. at 607, 894 N.W.2d at 350. For complete-
ness, we note that to the extent any of our prior cases have
been perceived as characterizing sentences where the mini-
mum and maximum terms were the same number as determi-
nate, these articulations were not a complete statement of the
laws and are disapproved. See, e.g., Johnson v. Clarke, 258
Neb. 316, 603 N.W.2d 373 (1999) (discussing calculation of
credit concerning parole dates). We reaffirm the rule in Artis
that a determinate sentence is a single term of years and an
indeterminate sentence is a minimum term and maximum
term or a range of time for which a defendant is to be incar-
cerated, even if the minimum and maximum number are the
same. See, also, State v. Marrs, 272 Neb. 573, 723 N.W.2d
499 (2006); State v. Urbano, 256 Neb. 194, 589 N.W.2d
144 (1999).
                              - 170 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                        STATE v. VANNESS
                        Cite as 300 Neb. 159

   Because the court’s intended sentences are apparent from
the record, and because we find no other error in sentencing,
as indicated below, we modify each of Vanness’ sentences of
imprisonment for the convictions on Counts 1, 2, and 3 to a
single term of years, in accordance with §§ 29-2204.02(1)(a)
and 28-106(2). We find no error and therefore affirm the sen-
tence for the conviction on Count 4.
                      VI. CONCLUSION
   The record is insufficient to resolve Vanness’ claim that
trial counsel was ineffective due to an actual conflict of inter-
est. Vanness’ claims that she was denied effective assistance
of trial counsel based on potential defenses or promises of
leniency are affirmatively refuted by the record. We affirm
Vanness’ convictions.
   With regard to sentencing, we determine that Vanness’
sentences did not exceed the statutory range and that there
was no error regarding the sentence for the conviction on
Count 4. However, because the district court pronounced
indeterminate sentences instead of determinate sentences
for the convictions on Counts 1, 2, and 3, as required by
§§ 29-2204.02(1)(a) and 28-106(2), we modify Vanness’ sen-
tences as follows: for the conviction on Count 1, 60 days’
imprisonment to run concurrently with all sentences imposed.
For the conviction on Count 2, 12 months’ imprisonment
with 9 months of postrelease supervision, with credit for 26
days served, to run consecutively to other sentences. For the
conviction on Count 3, 10 months’ imprisonment, to run con-
secutively to other sentences, with a period of 9 months of
successive and additional postrelease supervision. We find no
error and therefore affirm the sentence for the conviction on
Count 4.
                                        A ffirmed as modified.
