                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                       (Memorandum Web Opinion)

                                     STATE V. CLAIBORNE


  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.

                              ROBERT E. CLAIBORNE, APPELLANT.


                          Filed December 11, 2018.    No. A-18-008.


       Appeal from the District Court for Douglas County: W. RUSSELL BOWIE III, Judge.
Affirmed.
       Mallory N. Hughes, of Dornan, Troia, Howard, Breitkreutz & Conway, 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
        Robert E. Claiborne pled guilty to and was convicted of one count of resisting arrest
(second offense) in the Douglas County District Court. He was sentenced to 3 years’ imprisonment
and 9 months’ postrelease supervision. Claiborne appeals his sentence and claims he received
ineffective assistance of trial counsel. We affirm.
                                       BACKGROUND
       The State filed an information charging Claiborne with one count of resisting arrest as a
second offense, a Class IIIA felony, based on Claiborne’s alleged actions on or about August 25,
2017. The information indicated that Claiborne was previously convicted of resisting arrest in
March.



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        Claiborne initially pled not guilty to the charged offense, but Claiborne’s trial counsel
subsequently informed the district court of Claiborne’s intent to withdraw his initial plea and plead
guilty to the count as charged. Claiborne’s trial counsel added, “We will be stipulating that this is
a second [offense for resisting arrest].” Claiborne entered a plea of guilty to the charge of resisting
arrest, which the district court accepted having found that the plea was made freely, knowingly,
intelligently, and voluntarily, and that it was supported by a factual basis. The State’s factual basis,
to which Claiborne’s trial counsel stipulated, was as follows:
                 [O]n August 25 of 2017, officers with the Douglas County Sheriff’s Department
        were out looking for [Claiborne], who had a felony warrant. The officer being familiar with
        [Claiborne] observed him to walk into a convenience store at [address] here in Douglas
        County.
                 He then made contact with [Claiborne], who then ran from that location. A foot
        pursuit ensued. [Claiborne] ran into a wooded area. A K-9 had to be called. He was then
        apprehended after the K-9 was deployed. He resisted officers several times and them trying
        to cuff him prior to then taking off, and then was combative once he was apprehended by
        the K-9. Those events all occurred in Omaha, Douglas County.
                 He does have the prior conviction just from March 16 of 2017, making this a second
        offense.

        The district court found Claiborne guilty of resisting arrest, second offense. On November
29, 2017, the court entered an order sentencing Claiborne to 3 years’ imprisonment (with credit
for 97 days served) and 9 months’ postrelease supervision. Claiborne appeals.
                                   ASSIGNMENTS OF ERROR
       Claiborne claims (1) the district court abused its discretion by imposing an excessive
sentence and (2) he received 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).
        Appellate review of a claim of ineffective assistance of counsel is a mixed question of law
and fact. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014). When reviewing a claim of
ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court
for clear error. Id. With regard to the questions of counsel’s performance or prejudice to the
defendant as part of the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews such legal determinations
independently of the lower court’s decision. State v. Filholm, supra.
                                             ANALYSIS
                                        EXCESSIVE SENTENCE
       Claiborne claims his sentence is excessive. He was convicted of resisting arrest as a second
offense, a Class IIIA felony. See Neb. Rev. Stat. § 28-904 (Reissue 2016). A Class IIIA felony is



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punishable by up to 3 years’ imprisonment and 18 months’ postrelease supervision, a $10,000 fine,
or both; a minimum of 9 months’ postrelease supervision is required if imprisonment is imposed.
See Neb. Rev. Stat. § 28-105 (Supp. 2017). The district court sentenced Claiborne to serve a term
of 3 years’ imprisonment and 9 months’ postrelease supervision; he was given credit for 97 days
of time served. We will not disturb Claiborne’s sentence given that it was within the statutory
limits, unless we find that the district court abused its discretion. See State v. Dill, supra.
        When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense, and (8) the amount of violence involved in the commission of the crime.
State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016). 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. Id.
        With those legal principles in mind, we address Claiborne’s sentence. Claiborne was 50
years old at the time of sentencing. The presentence investigation report (PSR) shows that
Claiborne’s highest education level completed was ninth grade and Claiborne wishes to pursue his
“GED.” Claiborne’s longest and most recent job of 3½ years was at a convenience store; he
believed he could get the job back if he was given probation. Claiborne did not have any other
significant employment history other than working 1 year at a fast food restaurant prior to being
laid off and 2½ years as a dietary aide at a hospital.
        Claiborne’s fiance, with whom he planned to live upon his release, was reported as having
no criminal record or substance abuse problems. He and his fiance have an 8-year-old daughter
together. Claiborne also has a 6-year-old daughter from a different relationship, as well as a 10- or
11-year-old son with whom he had not spoken in a very long time (the son resides in Mississippi).
Claiborne saw his daughters regularly.
        Claiborne’s prior criminal history was noted in the PSR as “significant” due to the number
of convictions accrued over a lengthy amount of time (his first offense occurred when he was age
27), the number of times he had been sentenced to prison, and the fact that he had never
successfully completed any terms of supervision. His prior convictions include: burglary--two
counts, grand larceny, and larceny (12 years’ prison each count); disturbing the peace; theft by
unlawful taking (3 times); shoplifting (12 times); shoplifting by fraud (1 time); failure to appear
(5 times); destruction of property; possession of drug paraphernalia; trespassing (4 times); theft by
receiving stolen property (2 times); possession of a controlled substance (2 times); possession of
marijuana of less than an ounce; obstructing the administration of the law; resisting arrest (4
times--not including the conviction in the instant case); littering; domestic violence assault in the
third degree; false information (2 times); and felony criminal impersonation. For many of these
convictions, Claiborne was sentenced anywhere from 30 days to 9 months in jail, and there were
five instances in which he was sentenced to 1 year in prison.
        According to the PSR, Claiborne had a term of probation revoked for theft by shoplifting
in 2013. Further, his term of postrelease supervision for resisting arrest in 2017 was terminated
unsatisfactorily; “[Claiborne] was actually on the run and absconding from his post-release



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supervision when located and charged with this new offense of Resisting Arrest.” Claiborne scored
26 on the level of service/case management inventory, indicating that Claiborne is a high risk for
rearrest. Claiborne was not considered an appropriate candidate for supervision due to a
“substantial” risk that Claiborne would engage in additional criminal conduct, given his prior
criminal history, history on supervision, and circumstances of the present offense.
        At the sentencing hearing, trial counsel acknowledged that Claiborne “has a drug and
alcohol problem that has not been resolved[,]” and counsel indicated he had obtained admission
for Claiborne “into the Siena/Francis House,” which would be an inpatient opportunity for him.
However, counsel stated the State was “not willing to agree to a change in his bond.” Counsel also
pointed out that Claiborne has children, he took the initiative to get a job, and he has been attending
Bible correspondence courses and relationship classes. Trial counsel stated, “[Claiborne] is very
incredibly sorry about the incident. He did not want a trial. He did not want to fight any of this. He
knew exactly what he did when he sat down with me the first time.” Trial counsel asked that any
incarceration consist of the 97 days for which Claiborne could be credited. Claiborne personally
told the court, “I really do apologize. I got to make a change. I got a job sitting there waiting on
me when I get out.” Claiborne added, “I would hope that you would find it in your heart to give
me another chance.”
        The State pointed out that the PSR showed a high level of risk for rearrest and that this was
Claiborne’s “third resisting arrest” while on postrelease supervision, and that Claiborne had
“absconded from probation.” The State asked for a term of incarceration.
        The district court noted that it had considered the sentencing factors and the fact that
probation was not recommended in this case. The court proceeded to sentence Claiborne as
previously noted.
        On appeal, Claiborne argues his sentence is excessive given the “favorable evidence of
[his] change in attitude and his attempts at rehabilitation while incarcerated.” Brief for appellant
at 8. He directs us to the points made at the sentencing hearing. Claiborne emphasizes the apology
he made at the sentencing hearing, and says he “indicated his desire to turn his life around and
continue to be gainfully employed.” Id. He complains that the district court’s imposition of the
“maximum jail sentence allowable under the law” is contrary to the evidence that he was
“remorseful and determined to be compliant with all terms of supervision.” Id.
        Claiborne has a significant criminal history and has failed to take advantage of
opportunities in the past to put himself on a better path. While it is true that Claiborne’s sentence
was the maximum allowable (although he could have been sentenced to up to 18 months’
postrelease supervision), and while it may also be true that Claiborne intends to genuinely seek
help for his drug and alcohol problems, which is commendable, we cannot say the district court
abused its discretion when sentencing Claiborne based on the record before us.
                               INEFFECTIVE ASSISTANCE OF COUNSEL
        Claiborne claims that he received ineffective assistance of counsel in three ways,
specifically that trial counsel (1) failed to properly advise Claiborne of the likelihood of jail time,
(2) failed to negotiate a favorable plea deal, and (3) stipulated to Claiborne’s prior conviction,
thereby making his conviction a second offense. Claiborne argues that had he been aware of those



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alleged deficiencies, he would not have agreed to plead guilty but would have insisted on
proceeding to trial.
         For this direct appeal, Claiborne is represented by different counsel than his trial counsel.
Our record reflects that trial counsel’s motion to withdraw was sustained by this court in June
2018, and trial counsel does not appear on Claiborne’s appellate brief. 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. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016). 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 on direct appeal. Id. The determining factor is whether the
record is sufficient to adequately review the question. Id. We conclude the record is sufficient to
address all of Claiborne’s claims of ineffective assistance of trial counsel.
         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 counsel’s
performance was deficient and that this deficient performance actually prejudiced his or her
defense. State v. Ash, 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.
         As to Claiborne’s allegation that his trial counsel failed to advise him of the likelihood of
a sentence of imprisonment upon entering a guilty plea, Claiborne argues that he “pleaded guilty
because he was under the impression that he would receive a sentence of time served and be
released.” Brief for appellant at 9. However, the prejudice requirement in a plea context is satisfied
only if Claiborne can show a “reasonable probability” that but for the alleged error of his trial
counsel, he would have insisted on going to trial rather than pleading guilty. The record shows that
any “impression” Claiborne may have had with regard to sentencing should have been dispelled
at the plea hearing. The district court specifically asked Claiborne, “Do you understand the
maximum penalty for this charge is three years imprisonment and 18 months of post-release
supervision or a $10,000 fine or both?” Claiborne responded affirmatively. When asked if any
promises had been made to get him to plead guilty, Claiborne responded, “No, sir.” And when the
district court asked Claiborne if there was anything he did not understand that the court had talked
to him about, Claiborne again responded, “No, sir.” Claiborne cannot show prejudice given his
responses made directly to the district court; this claim of ineffective assistance of counsel fails.
         Claiborne also claims that his trial counsel was deficient in failing to negotiate a favorable
plea deal, and he argues that “the State did not make any concession at sentencing by either



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standing silent or agreeing to recommend time served. Accordingly, it does not appear that
Claiborne received any sort of benefit of the plea bargain.” Brief for appellant at 10. That a plea
agreement existed between the parties is not reflected in the record. As the State points out,
Claiborne does not allege that he instructed trial counsel to seek a plea deal or that he was under
the impression there was a plea agreement when there was not. Claiborne cannot prevail on an
ineffective assistance claim on this allegation given his inability to support it with sufficient facts
or evidence to prove that his trial counsel’s performance was deficient or prejudicial. See, State v.
Ash, supra; State v. Lytle, 224 Neb. 486, 398 N.W.2d 705 (1987) (in claiming ineffective assistance
of counsel because counsel failed to obtain plea concession, defendant must allege facts which, if
true, would establish that such plea negotiation was reasonably possible).
        Finally, Claiborne claims his trial counsel was ineffective for stipulating to his prior
conviction rather than holding the State to its burden of proving such conviction. He argues that
he suffered prejudice because the stipulation “transformed the charge from a Class I Misdemeanor
into a Class IIIA Felony, thereby exposing [him] to significantly more jail time.” Brief for
appellant at 10. As mentioned previously, at the plea hearing, Claiborne’s trial counsel informed
the district court of Claiborne’s intent to withdraw his initial plea and enter a guilty plea to the
count as charged, and his trial counsel stated, “We will be stipulating that this is a second [offense
for resisting arrest].” During the course of the plea hearing, the district court addressed Claiborne
directly, informing him of what the State would have to prove by evidence beyond a reasonable
doubt with regard to the resisting arrest charge, and further indicated that “the State alleges you
have one prior resisting arrest on March 16, 2017.” The court immediately thereafter asked, “Do
you understand that’s what the State would have to prove.” Claiborne responded, “Yes, sir.” After
further advisements by the court, the court asked for the factual basis, wherein the State pointed
out Claiborne’s prior conviction, “making this a second offense.” Claiborne’s trial counsel
stipulated to the factual basis. The district court then asked Claiborne, “[D]o you agree if this case
went to trial, the State would offer that evidence [of the State’s factual basis] against you?”
Claiborne responded, “Yes, sir.”
        Claiborne had an opportunity to disagree with his trial counsel’s statement at the beginning
of the plea hearing that he would be stipulating to the prior conviction of resisting arrest. Claiborne
had another opportunity to challenge the prior conviction when the district court informed him of
the State’s burden of proof, and specifically referenced the prior resisting arrest charge. Finally,
Claiborne had yet another opportunity to disagree with his trial counsel’s stipulation to the State’s
factual basis, which included a reference to the prior conviction “making this a second offense.”
Claiborne agreed to enter his plea despite several opportunities to challenge the stipulation
regarding the prior conviction. Given this record, Claiborne cannot show a “reasonable
probability” that but for the alleged error of trial counsel, he would have insisted on going to trial
rather than pleading guilty. We find no merit to this allegation of ineffective assistance of trial
counsel.
                                          CONCLUSION
       For the reasons stated above, we affirm Claiborne’s conviction and sentence.
                                                                                           AFFIRMED.



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