                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. MCCRAY


  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.

                               SAMUEL D. MCCRAY, APPELLANT.


                           Filed December 5, 2017.     No. A-16-059.


       Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
       Joseph Nigro, Lancaster County Public Defender, and John C. Jorgensen for appellant.
       Douglas J. Peterson, Attorney General, and Joe Meyer for appellee.


       INBODY, PIRTLE, and RIEDMANN, Judges.
       PIRTLE, Judge.
                                       INTRODUCTION
        Samuel D. McCray appeals from his plea-based conviction and sentence for possession of
a controlled substance with a habitual criminal enhancement in the district court for Lancaster
County. He contends that he should have been permitted to withdraw his plea, he was denied
effective assistance of counsel, and his sentence was excessive. Based on the reasons that follow,
we affirm.
                                        BACKGROUND
        McCray was charged in a third amended information with three counts of possession of a
controlled substance, one count of possession of money to be used violating Neb. Rev. Stat.
§ 28-416(1), one count of possession of a firearm by a prohibited person, and one count of
possession of a stolen firearm. Each count carried a habitual criminal enhancement.



                                              -1-
         Pursuant to a plea agreement, McCray pled guilty to one count of possession of a controlled
substance and being a habitual criminal, and the other counts were dismissed. An enhancement
hearing was held and the court found McCray eligible for the habitual criminal enhancement. The
court subsequently sentenced McCray to 10 to 15 years in prison.
         Before sentencing, McCray filed a motion to withdraw his plea and a hearing was held on
the motion. The hearing was held on the day his jury trial was set to begin. McCray testified that
he took the plea agreement instead of going to trial because he was forced to make a decision that
day - either take the plea or go to trial, and because he had no witnesses present to testify on his
behalf. In regard to witnesses, he testified that his brother was not subpoenaed and would have
testified about the shotgun that McCray was charged with possessing in the third amended
information. He testified that he felt like he had no choice but to plead guilty because he was not
leaving court without making a plea or going to trial.
         Timothy Noerrlinger, McCray’s counsel at the time of the plea, testified that he talked to
McCray the night before trial was to begin and they discussed trial strategy, defenses, and what
Noerrlinger expected would happen at trial. Noerrlinger testified that he told McCray he had three
options: (1) move for a continuance, which Noerrlinger did not believe would be successful, (2)
enter a guilty plea based on the plea agreement offered by the State, and (3) go to trial. By the end
of the conversation, McCray indicated that he was leaning toward entering a plea.
         Noerrlinger testified that he had another conversation with McCray prior to going into the
court room on the day McCray took the plea and McCray indicated at that time that he was going
to accept the State’s plea agreement. At the plea hearing, Noerrlinger had several off-the-record
discussions with McCray to answer questions McCray had during the hearing. Before accepting
McCray’s plea, the trial court advised McCray of the rights he was waiving by entering a plea and
made sure he understood what he was being told.
         The trial court denied McCray’s motion to withdraw his plea, finding that McCray had
entered his plea freely, voluntarily, knowingly, and intelligently and that McCray understood the
plea he entered and the consequences of entering it.
                                  ASSIGNMENTS OF ERROR
        McCray assigns that (1) the trial court erred in finding that he failed to demonstrate a
sufficient basis to permit him to withdraw his plea, (2) he was denied effective assistance of
counsel, and (3) the trial court erred in imposing an excessive sentence.
                                    STANDARD OF REVIEW
       A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas
before sentencing. An appellate court will not disturb the trial court’s ruling on a presentencing
motion to withdraw a guilty or no contest plea absent an abuse of discretion. State v. Carr, 294
Neb. 185, 881 N.W.2d 192 (2016).
       A claim of ineffective assistance of counsel need not be dismissed merely because it is
made on direct appeal. The determining factor is whether the record is sufficient to adequately
review the question. If a matter has not been raised or ruled on at the trial level and requires an




                                                -2-
evidentiary hearing, an appellate court will not address the matter on direct appeal. State v. Davis,
276 Neb. 755, 757 N.W.2d 367 (2008).
        Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
        Appellate courts will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. See State v. Dehning, 296 Neb. 537, 894 N.W.2d 331 (2017).
An abuse of discretion occurs when a 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. Id.
                                            ANALYSIS
Motion to Withdraw Plea.
        McCray first assigns that the trial court erred in failing to allow him to withdraw his plea.
He argues that he demonstrated by clear and convincing evidence that his guilty plea was the result
of undue pressure by his counsel and his counsel’s failure to secure the testimony of his brother.
        After the entry of a plea of guilty or no contest, but before sentencing, a court, in its
discretion, may allow a defendant to withdraw his or her plea for any fair and just reason, provided
that the prosecution has not been or would not be substantially prejudiced by its reliance on the
plea entered. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015). The burden is on the
defendant to establish by clear and convincing evidence the grounds for withdrawal of a plea. Id.
        The record shows, as the trial court found, that McCray entered his plea freely, voluntarily,
knowingly, and intelligently and that McCray understood the plea he entered and the consequences
of entering it. There is no evidence that McCray’s attorney coerced him into taking the plea offered
by the State. Rather, the evidence shows that McCray understood his options on the day he pled
guilty. He stated that he could have either pled guilty to one charge pursuant to the plea agreement
or proceeded to trial. Further, his counsel’s failure to subpoena his brother did not force him to
accept the plea agreement and prevent him from going to trial. His brother’s alleged testimony
related to one charge, possession of a firearm, which was dismissed as part of the plea agreement.
In addition to dismissing the possession of a firearm charge, the State also dismissed four other
charges as part of the plea agreement. All of the charges that were dismissed contained a habitual
criminal enhancement. McCray does not allege that his brother would have provided any testimony
in regard to the other charges.
        McCray understood his options and indicated that he took the plea agreement in an effort
to receive the least amount of time in prison possible. Noerrlinger also provided testimony that
accepting the plea agreement was McCray’s idea after they discussed trial strategy, defenses, the
expectations of how trial would go, on the day before trial, and ultimately his decision. McCray
did not prove by clear and convincing evidence that a valid reason existed for the trial court to
allow him to withdraw his plea. McCray’s first assignment of error is without merit.
Ineffective Assistance of Counsel.
       McCray next assigns that he received ineffective assistance of trial counsel. He is
represented by different counsel on appeal. 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



                                                -3-
counsel’s ineffective performance which is known to the defendant or is apparent from the record.
Otherwise, the issue will be procedurally barred. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571
(2014). Thus, because McCray obtained new counsel on direct appeal, he was required to raise
those claims of ineffective assistance known to him or apparent from the record in order to preserve
them for review.
         McCray alleges ineffective assistance of counsel claims against three different attorneys
he had at the trial court level. He was represented by Brett McArthur before he was represented by
Noerrlinger, and he was represented by Jeremy Jorgenson after Noerrlinger. In regard to
McArthur, McCray asserts that McArthur (1) failed to properly represent his interests concerning
the seizure of money by federal law enforcement; (2) failed to subpoena essential defense
witnesses for trial; (3) failed to interview necessary witnesses to permit McCray to be properly
prepared, develop his defense, and be successful on a motion challenging the search warrant issued
in this case; and (4) failed to depose the confidential informant.
         In regard to Noerrlinger, McCray asserts that he (1) failed to obtain and preserve contact
information for McCray’s brother; (2) failed to subpoena McCray’s brother; (3) failed to subpoena
necessary witnesses for trial; (4) coerced McCray into taking a plea deal; (5) failed to properly
confront the confidential informant in a deposition on potential motivation to fabricate; (6) failed
to properly confront the confidential informant on potential motivations to fabricate that would
have been known to law enforcement at the hearing regarding the search warrant; (7) failed to ask
the trial court to reconsider its ruling on the validity of the search warrant and (8) failed to preserve,
address, or otherwise report any ineffective acts of prior trial counsel.
         In regard to Jeremy Jorgenson, McCray asserts that Jorgenson (1) failed to advise him
concerning the effect of having prior trial counsel called as a witness on the motion to withdraw
his plea; (2) failed to properly address a request for an appeal bond; (3) failed to timely surrender
a complete copy of McCray’s file to new counsel upon demand; (4) failed to properly preserve the
record for direct appeal; and (5) failed to preserve, address or otherwise report any ineffective acts
of prior trial counsel.
         A claim of ineffective assistance of counsel need not be dismissed merely because it is
made on direct appeal. The determining factor is whether the record is sufficient to adequately
review the question. If a matter has not been raised or ruled on at the trial level and requires an
evidentiary hearing, an appellate court will not address the matter on direct appeal. State v. Davis,
276 Neb. 755, 757 N.W.2d 367 (2008).
         McCray admits that the record on direct appeal is insufficient to address the merits of his
ineffective assistance of counsel claims. We agree that the record is insufficient to resolve his
claims because the record lacks sufficient evidence regarding trial counsel’s strategy or lack
thereof. To adequately review the actions of McArthur, Noerrlinger, and Jorgenson raised by
McCray would require an evaluation of matters not contained in the record. Accordingly, we
cannot determine on direct appeal whether McCray received ineffective assistance of counsel.




                                                  -4-
Excessive Sentence.
          McCray next assigns that his sentence is excessive and an abuse of the trial court’s
discretion. He contends that the trial court failed to give proper weight to mitigating factors in
determining his sentence. He does not specify what mitigating factors were applicable.
          McCray’s conviction as a habitual criminal carries a mandatory minimum term of ten
years’ imprisonment and a maximum term of not more than sixty years’ imprisonment. Neb. Rev.
Stat. § 29-2221 (Reissue 2016). McCray was sentenced to ten to fifteen years’ imprisonment. His
sentence is clearly within the statutory limits and will not be disturbed absent an abuse of
discretion. See State v. Dehning, 296 Neb. 537, 894 N.W.2d 331 (2017).
          We have stated that 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. However, the sentencing court is not limited to any mathematically applied set of
factors. State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017). The appropriateness of a sentence
is necessarily a subjective judgment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s
life. Id.
          The record reflects that the trial court relied on the presentence investigation report and
considered the appropriate factors when sentencing McCray. There is no evidence that the trial
court abused its discretion in imposing a sentence of 10 to 15 years in prison. McCray’s sentence
is not excessive.
                                          CONCLUSION
        We conclude that the trial court did not err in failing to allow McCray to withdraw his plea
and that his sentence was not excessive. We further conclude that the record on direct appeal is
insufficient to adequately review McCray’s claims of ineffective assistance of counsel.
                                                                                         AFFIRMED.




                                                -5-
