                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         STATE V. BUSCH


  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.

                                  JUSTIN D. BUSCH, APPELLANT.


                            Filed January 15, 2019.    No. A-17-996.


       Appeal from the District Court for Johnson County: RICKY A. SCHREINER, Judge.
Affirmed.
       Gregory C. Scaglione and Michele E. Young, of Koley Jessen, P.C., L.L.O., for appellant.
       Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.


       PIRTLE, RIEDMANN, and BISHOP, Judges.
       BISHOP, Judge.
                                       INTRODUCTION
        Justin D. Busch appeals from his plea-based conviction in the Johnson County District
Court for arson in the first degree. He was sentenced to 30 to 50 years’ imprisonment to run
consecutive to his other sentences currently being served. Busch challenges the district court’s
denial of his plea in abatement and he contends his sentence is excessive. He also claims his trial
counsel was ineffective. We affirm his conviction and sentence.
                                        BACKGROUND
       On July 8, 2016, the State charged Busch with four counts of arson in the first degree, each
a Class II felony, related to events occurring on May 10, 2015. At a preliminary hearing in the
county court for Johnson County, the State called a Nebraska State Patrol criminal investigator
who said he was assigned as the lead investigator for the May 10 riot at Tecumseh State



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Correctional Institution (TSCI), and he testified about fires alleged to have been started by Busch
during that riot. At the conclusion of the hearing, the county court was satisfied there was probable
cause to believe that all charged counts were committed and that Busch was the person who
committed those offenses; the case was bound over to the Johnson County District Court.
        After an information was filed in the district court, Busch filed a “Plea in Abatement”
pursuant to Neb. Rev. Stat. § 29-1809 (Reissue 2016). Busch alleged that there was “a defect in
the record which [was] shown by facts extrinsic thereto” and “insufficient evidence adduced at the
preliminary hearing to support a finding of probable cause to believe that a crime was committed
or that [he] committed a crime.” In support, Busch incorporated by reference the transcript of the
preliminary hearing before the county court. Busch requested that the district court issue an order
to abate the proceedings and dismiss the action.
        At the hearing on his plea in abatement in October 2016, Busch argued that the evidence
would not support four separate counts of arson in the first degree, understanding the statutory
definition of arson to be “not that a fire is set but that a building or property within that building is
damaged by fire.” He claimed that because “all of these fires occurred within the same building,”
then “it would be one count of arson for damaging property within that one building or damaging
that building itself.” But the State contended that the damage to property was caused by four
separate fires started by Busch and that there was evidence the fires were “sufficiently far apart in
time [allegedly at least an hour between each fire’s start] and location [2 separate doors, a table,
and a laundry cart] as to be separate counts” and that Busch “admitted to setting multiple fires.”
After taking the matter under advisement, the district court denied Busch’s plea in abatement. It
summarized the testimony presented at the preliminary hearing before the county court and found
that the county court’s finding of probable cause was supported by the evidence. The district court
concluded:
        This [district] court is aware of [Busch’s] position that the charges should be for one arson
        and not four in housing unit 2. The [district] court finds that it will depend on the evidence[]
        ultimately submitted by the State at trial. If the State’s evidence reflects that it was one
        arson and not four it will be the [district] court’s ruling at the close of the State’s case and
        not before.

        Busch initially pled not guilty to all four counts in the State’s information. At a plea hearing
on July 27, 2017, however, the State informed the district court of a plea agreement reached with
Busch for a guilty or no contest plea to one count of arson in the first degree in exchange for the
State’s dismissal of the other three counts of arson in the first degree, along with an agreement not
to enhance the charge as a habitual criminal offense. Busch and his trial counsel separately agreed
that this was their understanding of the plea agreement. The district court found beyond a
reasonable doubt that Busch understood his rights and waived them freely, voluntarily, knowingly,
and intelligently. It accepted Busch’s waiver and permitted withdrawal of the previous pleas of not
guilty. Thereafter, Busch pled no contest to one count of arson in the first degree. The State moved
to dismiss the remaining counts of the information (its amended information reflecting the same
was filed that day).
        The factual basis for Busch’s plea of no contest, as provided by the State, was as follows.
On May 10, 2015, there was a riot at TSCI resulting in “extensive damages” to the prison structure


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and property within it by means of fire. Investigators from the Nebraska State Patrol and the
Nebraska State Fire Marshal investigated the course of the fires. The investigation of the fire
marshal’s office found a vestibule door in “Unit 2” had been burned to the extent that the window
in the door was burned out allowing access to both sides of the door and a door to the “2C Gallery”
burned in a similar fashion, allowing access through an otherwise locked secured door.
Additionally, a laundry cart and property within it, as well as a table on which property was located,
had been burned. They found that for each of the fires, there was no evidence of accidental means
for electrical, mechanical, chemical, or other natural source for the heat or ignition of those fires.
Near the area of the vestibule door, investigators found make-shift torches made of broom handles
and towels, which were materials that would have been accessible to inmates on May 10.
        Further, TSCI staff reviewed a video recording of the area near the vestibule door and were
able to identify Busch, an inmate housed there at the time, among those responsible for starting
the fire to the vestibule door and the remaining fires to the other door, the table, and the laundry
cart. Two investigators from the fire marshal’s office made contact with Busch on May 14 and
May 16, 2015, during which Busch stated to one of the investigators that he had started fires using
a battery and foil and a mop handle wrapped in a sheet. He said he had burned the doors in an
attempt to try to “get at staff members” and “claim[ed] responsibility for all of [the] fires to the
four locations within the prison.” During the events of May 10, the prison was occupied, containing
inmates other than Busch; all events took place in Johnson County, Nebraska.
        Upon these facts, the district court found Busch guilty beyond a reasonable doubt. A
sentencing hearing was held on September 14, 2017. The district court sentenced Busch to 30 to
50 years’ imprisonment to run consecutive to all his other sentences currently being served. Busch
appeals.
                                   ASSIGNMENTS OF ERROR
       Busch claims, restated and reordered, that the district court erred by (1) denying his plea in
abatement and finding there was sufficient evidence for the State to charge him with four counts
of arson and (2) imposing an excessive sentence. He also claims ineffective assistance of trial
counsel.
                                    STANDARD OF REVIEW
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018).
        Whether a claim of ineffective assistance of trial counsel can be determined on direct
appeal presents a question of law, which turns upon the sufficiency of the record to address the
claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a
statute or constitutional requirement. State v. Wells, 300 Neb. 296, 912 N.W.2d 896 (2018). We
determine as a matter of law whether the record conclusively shows that (1) a defense counsel’s
performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel’s
alleged deficient performance. Id.




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                                            ANALYSIS
                       PLEA IN ABATEMENT AND SUFFICIENCY OF EVIDENCE
         Busch claims the district court erred when it did not dismiss “three extraneous arson
charges at the Plea in Abatement stage, which later impacted [his] ability to effectively plea
bargain.” Brief for appellant at 8. He contends that if those other charges were dismissed, he “could
have focused his plea efforts on obtaining a recommendation from the State as to the number of
years for his sentence,” but instead “had to negotiate to get the three charges dismissed, using up
all of his bargaining capital there.” Id. at 10.
         In Nebraska, a plea in abatement “may be made when there is a defect in the record which
is shown by facts extrinsic thereto.” See § 29-1809. A plea in abatement is used to challenge the
sufficiency of the evidence at a preliminary hearing; to resist a challenge by a plea in abatement,
the evidence received need show only that a crime was committed and that there is probable cause
to believe that the accused committed it. See State v. Chauncey, 295 Neb. 453, 890 N.W.2d 453
(2017). As mentioned previously, the district court found that the county court’s finding of
probable cause at a preliminary hearing was supported by the evidence presented by the State.
Following this determination, Busch subsequently entered a no contest plea.
         The voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge,
whether the defense is procedural, statutory, or constitutional. State v. Haynes, 299 Neb. 249, 908
N.W.2d 40 (2018). The only exceptions are for the defenses of insufficiency of the indictment,
information, or complaint; ineffective assistance of counsel; and lack of jurisdiction. Id. See, also,
Neb. Rev. Stat. § 29-1812 (Reissue 2016) (“accused shall be taken to have waived all defects
which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an
indictment or pleading in bar or the general issue”). Busch’s voluntary entry of a no contest plea
waived any alleged defects raised by his plea in abatement, and thus, cannot be directly challenged
on appeal, unless, for example, the charging information failed to allege an essential element of a
crime, or a defect in the information is of such a fundamental character as to make the indictment
wholly invalid. See State v. Golgert, 223 Neb. 950, 395 N.W.2d 520 (1986). Busch does not assert
such claims here; rather, he concedes that “a plea will often waive any previous errors in the
proceedings,” but he maintains that such a waiver would not have resulted but for his trial counsel’s
“improper advice” which allegedly prompted his plea. Brief for appellant at 10. This argument
appears to attack the effectiveness of trial counsel rather than Busch’s assigned error regarding the
district court’s denial of Busch’s plea in abatement. As noted, any such error by the district court
was waived by the entry of Busch’s no contest plea. And although Busch correctly asserts in his
reply brief that a voluntary plea does not waive a claim of ineffective assistance of counsel, we
note that Busch did not assign error to this particular issue in the context of a claim for ineffective
assistance of trial counsel in his initial brief. To the extent Busch seeks to supplement his initial
claims of ineffective assistance of counsel, it cannot be done in a reply brief. See State v. Newman,
300 Neb. 770, 916 N.W.2d 393 (2018) (assignment of error raised for first time in reply brief is
untimely and will not be considered by court).




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                                       EXCESSIVE SENTENCE
         Busch claims his sentence is excessive. Busch was convicted of arson in the first degree, a
Class II felony, under Neb. Rev. Stat. § 28-502 (Reissue 2016). A Class II felony is punishable by
1 to 50 years’ imprisonment. See Neb. Rev. Stat. § 28-105 (Supp. 2017). The district court
sentenced Busch to serve a term of 30 to 50 years’ imprisonment consecutively to previous
sentences currently being served. Busch’s conviction is within the statutory limits and will be
upheld in the absence of an abuse of discretion of the district court. See State v. Dill, supra.
         When imposing a sentence, the sentencing court should customarily consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the
offense, as well as (7) the nature of the offense and (8) the violence involved in the commission of
the offense. State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017). However, the sentencing court
is not limited to any mathematically applied set of factors. Id. The appropriateness of a sentence
is necessarily a subjective judgment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s
life. Id. It is within the discretion of the trial court to impose consecutive rather than concurrent
sentences for separate crimes. Id.
         A review of the record and presentence investigation report (PSR) show Busch was 24
years old at the time of his offense and 26 years old at the time of sentencing. As part of the PSR,
a Level of Service/Case Management Inventory (LS/CMI) was conducted to assess the risk Busch
presented to the community and his risk to recidivate. The LS/CMI shows scores of “Very Low
risk/need” in the areas of education/employment, family/marital history, and leisure/recreation,
and “Low risk/need” for alcohol/drug problems. However, the LS/CMI shows Busch scored “Very
High risk/need” for companions and he scored “High risk/need” for procriminal
attitude/orientation, antisocial pattern, and criminal history.
         Busch completed high school (he was suspended one time for a fight; otherwise he got
along with others) and planned to attend college. He had worked as a porter in prison since his
incarceration in 2011, and he got along with those with whom he worked. He had a positive
relationship with his father and mother (his adoptive parents) and his siblings. The PSR states
Busch indicated he was “somewhat in a relationship” with a woman he had been talking with since
2012; he denied ever being married or having children. Busch enjoys several recreational activities
and attends “a bible study group, AA, and religion.” On a Simple Screening Instrument
(assessment tool of alcohol and drug usage history within a prior 6-month timeframe), Busch
scored a minimal risk of chemical abuse.
         In the PSR, Busch’s statement read, “I take 100% ownership for my actions, but I truly
believe, had I been treated for my mental [illnesses adequately], I would have never put myself in
this [position] . . . I just made a bad choice and I am truly sorry.” The PSR states Busch was in the
“contemplation stage of change” about his offense and that although he acknowledged his actions
were wrong, he continued to “rationalize his actions, stating that he was trying to help the other
inmates get inside so that they were safe.”
         According to the PSR, Busch’s convictions include: expired operator’s license in
December 2009; minor in possession in June 2011; tampering with witness/informant/juror in



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August 2011; robbery (2 counts) and possession or receipt of stolen firearm in August 2011;
shoplifting, false information, and fail to appear or comply with citation in August 2011; and
robbery (2 counts) and use of a firearm to commit a felony (2 counts) in September 2011. As a
result of his convictions in August and September 2011, he was sentenced to multiple terms of
incarceration that were still being served.
         At the sentencing hearing, the State argued that Busch’s procriminal attitude was shown
when he “chose to begin lighting fires during the May 10th incident at [TSCI].” The State listed
the following resulting effects of the riot that day: (1) “significant damages” to the prison property,
(2) endangerment of health of other inmates and staff members at the facility, (3) creation of “chaos
in an already chaotic situation” that prevented staff from being able to lockdown inmates in a
timely manner, and (4) ability of “inmate access for part of the prisoners where inmates were
supposed to be into parts of the prison where inmates were not supposed to be”; “inmates were
separated for protection of some of the other inmates, including two inmates who died as a result
of the riots.”
        The district court stated that it did not hold Busch responsible for “those two deaths,” but
that Busch nevertheless “created an environment that promoted an attitude amongst the rest of the
inmates” and that “[i]t wasn’t just a simple decision” but “a number of decisions over a long period
of time.” The court said two stories had been given and that one story was that Busch “wanted to
open those doors or gain access to the yard so other inmates could get out of the yard and not be
shot.” However, Busch also had “told law enforcement that [he] burned those doors open so [he]
could get at those people, those people being the Department of Corrections officers . . . public
service employees.” The district court said Busch was a “major player in a very serious event.”
The court had reviewed the PSR and emphasized that for a young man, Busch had a “lengthy
criminal history” of “violent offenses.”
        The State requested “a lengthy term of incarceration to run consecutive to his current term,”
which was projected to end in 2028. The district court agreed with the State’s recommendation.
The district court did note “some change in behavior,” but also noted that Busch had received
multiple misconduct reports and that he was in segregation because of a fight at the time of the
presentence investigation interview (which was August 31, 2017, about a week prior to the
sentencing hearing).
        On appeal, Busch submits that his sentence was off by “three to five decades.” Reply brief
for appellant at 5. He contends that proper weight was not given “to reports that [his] behavior had
moderated, that he was denied access to the proper medications for his diagnosed mental health
issues, and [that the district court] failed to fully consider the issues raised by Factor A [a sealed
record].” Id. at 6. He states that he suffered from depression, bipolar disorder, impulsivity,
“ADHD,” “PTSD,” and anxiety (the PSR noted the same diagnoses per evaluations in 2012), and
argues that the district court did not give proper weight that “at the time of the offense, [he] was
not on the appropriate medications.” Brief for appellant at 16. He claims that since the offense and
his move to the Lincoln Correctional Center, he has “been on the proper medications and his
behavior has improved.” Id. Busch also points out that the PSR did not recommend incarceration,
but rather advised certain conditions for supervised parole and a new mental health evaluation and
medication management.



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        Notwithstanding potentially mitigating information related to very low to low risk/need
areas reported in the PSR, along with the information contained in Factor A that this court has
reviewed, there was enough other information presented by the State at sentencing and contained
in the PSR upon which the district court could rely to determine Busch’s sentence. Thus, we cannot
conclude that the district court abused its discretion in imposing Busch’s sentence. See State v.
Mora, supra (abuse of discretion occurs when trial court’s decision is based upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence).
                              INEFFECTIVE ASSISTANCE OF COUNSEL
        Busch claims he received ineffective assistance of counsel, and the record reflects that on
appeal Busch is represented by different counsel than his trial counsel; trial counsel does not appear
on Busch’s appellate brief and trial counsel’s motion to withdraw as counsel on appeal was
sustained by this court. 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.
Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (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.
        Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show
that his or her counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense. State v. Avina-Murillo, 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. The entire ineffectiveness analysis is viewed with a strong presumption that counsel’s
actions were reasonable and that even if found unreasonable, the error justifies setting aside the
judgment only if there was prejudice. State v. Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016).
Deficient performance and prejudice can be addressed in either order. Id. If it is more appropriate
to dispose of an ineffectiveness claim due to lack of sufficient prejudice, that course should be
followed. Id.
        With these principles in mind, we address Busch’s allegations regarding his trial counsel.
Busch claims his trial counsel was ineffective in advising him (1) to plead no contest to one count
of arson because he would likely receive a sentence of 5 to 10 years’ imprisonment and (2) to
answer in the negative when asked by the district court whether anyone made a promise to him in
order for him to give up his rights. Busch argues that an evidentiary hearing would demonstrate
that he would not have pleaded no contest and would have instead insisted on going to trial to
ensure all relevant issues were considered.
        We address these claims together and conclude they are without merit. Busch asserts that
his “plea of no contest was a result of his trial counsel’s assurances that [Busch] would receive a


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much reduced sentence for one count of arson, in the range of 5 to 10 years.” Reply brief for
appellant at 3. Also, Busch claims his trial counsel advised him to answer in the negative when
asked by the district court whether any promises were made to him in order for him to give up his
rights. Regardless of Busch’s assertions as to what his trial counsel may have said, the record
affirmatively refutes his claim of ineffective assistance of counsel because it demonstrates his plea
was entered knowingly, understandingly, intelligently, and voluntarily. At the onset of the plea
hearing, the State informed the court that in exchange for the plea to one count of arson, the State
would be dismissing three other counts and would “not seek to enhance this as a habitual criminal
offense.” Busch personally acknowledged his understanding of the agreement. After setting forth
the many rights Busch was waiving by entering a plea, the district court specifically asked Busch,
“Anyone connected with law enforcement or anyone else made any threat in any manner
whatsoever or used any force or held out any inducement or promise other than the plea agreement
to get you to give up any of the rights I have been explaining to you here now this afternoon?”
Busch answered, “No, sir.” Busch twice responded that he understood the possible penalty he
faced for his offense which the district court had informed him was “a minimum of one year and
a maximum of fifty years.” The district court asked Busch if he believed his attorney was
competent and knew what he was doing, and also asked if Busch was satisfied with the job his
attorney had done. Busch answered, “Yes.” The court specifically asked Busch if he was aware of
the possible penalties he was facing and whether he had discussed those penalties with his attorney.
Busch answered affirmatively. The record from the plea hearing demonstrates that even if Busch’s
trial counsel had made such statements to Busch, there were ample opportunities for Busch to
answer honestly when inquiries were made by the court regarding such matters.
        Notably, the Nebraska Supreme Court has considered and rejected a defendant’s claim on
direct appeal that trial counsel was ineffective based upon the promise of a particular sentence
where the record affirmatively established that the defendant assured the district court on the record
that no one had made any promises to induce the plea and the plea was made of the defendant’s
own free will. See State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018) (defendant claimed
trial counsel advised her to plead guilty because she would receive lenient sentence; Nebraska
Supreme Court held record on direct appeal affirmatively refuted defendant’s claim where
colloquy at plea hearing demonstrated that defendant denied that any threats or promises were
made to induce her to enter guilty pleas).
        Busch was afforded several opportunities before the district court to respond honestly if he
had any concerns about what sentence might be imposed by the court. By his own responses to
questions asked by the court, the record affirmatively refutes that any promises or threats were
made to induce Busch’s plea of no contest. Further, Busch obtained the benefit of the State not
pursuing three other counts, along with a habitual criminal enhancement, all of which could have
resulted in more severe sentencing if convicted. Given Busch’s admission that he started the four
separate fires underlying the charges against him, it is unlikely that but for Busch’s alleged errors
of counsel that there was a “reasonable probability” Busch would have insisted on going to trial
rather than pleading guilty.




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                                CONCLUSION
For the reasons set forth above, we affirm Busch’s conviction and sentence.
                                                                              AFFIRMED.




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