                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                          STATE V. SCOTT


  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.

                                 MICKY J. SCOTT, JR., APPELLANT.


                             Filed January 28, 2020.    No. A-19-563.


       Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed.
       Jim K. McGough, of McGough Law, P.C., L.L.O., for appellant.
       Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.


       PIRTLE, RIEDMANN, and WELCH, Judges.
       RIEDMANN, Judge.
                                        INTRODUCTION
        Micky J. Scott, Jr., appeals his plea-based conviction and sentence for one count of criminal
possession of financial transaction devices. On appeal, he challenges his sentence and claims that
he received ineffective assistance of counsel. We affirm.
                                         BACKGROUND
        In February 2018, Scott was charged in the district court for Douglas County with one
count of criminal possession of a financial transaction device (2 or 3 devices), in violation of Neb.
Rev. Stat. § 28-621(1) and (3) (Reissue 2016), a Class IV felony. In March, Scott reached a plea
agreement with the State, whereby Scott agreed to plead no contest to the charge. In exchange for
his plea, the State agreed to recommend that Scott receive probation.
        After the court questioned Scott regarding the voluntariness of his plea, the State presented
the following factual basis. Scott was a passenger in a vehicle that was lawfully stopped. He



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provided officers with a false name, and after his real identity was determined, officers learned
that Scott had several warrants against him. Officers searched the vehicle and a backpack located
next to Scott in which they found multiple credit cards belonging to at least three different people.
Scott admitted to possessing the credit cards with the intent of possibly using them or using them
as leverage against someone else. The court accepted Scott’s plea of no contest and found him
guilty. It sentenced him to 18 months of probation.
         In June 2018, the State filed a motion in the district court seeking to revoke Scott’s
probation. The State alleged that Scott violated his probation by having an active warrant for
charges he received in Sarpy County in January 2018 for aiding and abetting, failing to report to
probation on May 7, failing to provide a valid address to the probation office, failing to maintain
employment, testing positive for methamphetamine, failing to report to drug testing, failing to
obtain a chemical dependency evaluation, failing to attend AA meetings, and absconding from
probation supervision.
         In December 2018, Scott admitted to violating the terms of his probation. In exchange for
his admission, the State agreed to dismiss other charges pending against him. The court questioned
Scott regarding the voluntariness of his plea and informed him of the ways in which he violated
his probation. The court then accepted Scott’s plea and found him guilty of violating the terms of
his probation. The court set a sentencing date and ordered a presentence investigative report (PSR).
         At the sentencing hearing, Scott’s attorney requested the court sentence Scott to 321 days’
imprisonment. The court informed Scott that it had considered his “file” prior to imposing its
sentence. It then sentenced him to 2 years’ imprisonment and 12 months’ postrelease supervision
on the original charge of criminal possession of financial transaction devices, a Class IV felony.
Scott timely appealed.
                                   ASSIGNMENTS OF ERROR
        Scott assigns, restated, that the district court abused its discretion in sentencing him and
that his counsel was ineffective for failing to argue mitigating factors.
                                    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. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018).
        Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017). In
reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides
only questions of law: Are the undisputed facts contained within the record sufficient to
conclusively determine whether counsel did or did not provide effective assistance and whether
the defendant was or was not prejudiced by counsel’s alleged deficient performance? Id.
                                            ANALYSIS
Appropriateness of Sentence.
       Scott argues that the district court abused its discretion in sentencing him because it did not
consider the appropriate sentencing factors prior to sentencing him. We disagree.



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         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. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
When imposing a sentence, the 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 violence involved in the commission of the offense. Id. 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.
         Scott was convicted of possession of financial transaction devices, a Class IV felony, and
was sentenced to 2 years in prison and 12 months’ postrelease supervision. Class IV felonies carry
a penalty of 0 to 2 years’ imprisonment and 9 to 12 months’ postrelease supervision. Neb. Rev.
Stat. § 28-105(1) (Reissue 2016). However, when the criminal offense is a Class IV felony, the
court should impose a sentence of probation unless there are substantial and compelling reasons
why the defendant cannot effectively and safely be supervised in the community, including the
criteria in subsections (2) and (3) of Neb. Rev. Stat. § 29-2260 (Reissue 2016). Neb. Rev. Stat.
§ 29-2204.02 (Reissue 2016). Scott alleges that the district court did not consider his PSR or
properly consider the factors enunciated in § 29-2260 prior to imposing its sentence. We disagree.
         Section 29-2260(2) states that a court may withhold a sentence of imprisonment for a
misdemeanor or felony unless the court finds that imprisonment is necessary because:
                 (a) The risk is substantial that during the period of probation the offender will
         engage in additional criminal conduct;
                 (b) The offender is in need of correctional treatment that can be provided most
         effectively by commitment to a correctional facility; or
                 (c) A lesser sentence will depreciate the seriousness of the offender’s crime or
         promote disrespect for law.

       Section 29-2260(3) lists several factors which should be considered by a court when
considering whether to withhold a sentence of imprisonment and grant probation, including:
                (a) The crime neither caused nor threatened serious harm;
                (b) The offender did not contemplate that his or her crime would cause or threaten
       serious harm;
                (c) The offender acted under strong provocation;
                (d) Substantial grounds were present tending to excuse or justify the crime, though
       failing to establish a defense;
                (e) The victim of the crime induced or facilitated commission of the crime;
                (f) The offender has compensated or will compensate the victim of his or her crime
       for the damage or injury the victim sustained;
                (g) The offender has no history of prior delinquency or criminal activity and has
       led a law-abiding life for a substantial period of time before the commission of the crime;


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             (h) The crime was result of circumstances unlikely to recur;
             (i) The character and attitudes of the offender indicate that he or she is unlikely to
       commit another crime;
             (j) The offender is likely to respond affirmatively to probationary treatment; and
             (k) Imprisonment of the offender would entail excessive hardship to his or her
       dependents.

        The Nebraska Supreme Court has stated that under § 29-2204.02(3), the court is required
to state its reasoning, rather than its reasons, on the record. State v. Baxter, 295 Neb. 496, 888
N.W.2d 726 (2017). Thus, a sentencing court should not simply supply a list of reasons, but
instead, should demonstrate how it reached its determination that there were substantial and
compelling reasons for imprisonment. Id.
        Here, the district court did not abuse its discretion in sentencing Scott. At the outset, we
note that Scott’s attorney requested that he receive a sentence of 321 days’ imprisonment. Now
Scott asserts that he should have received probation, despite the fact that his attorney requested
incarceration and Scott was before the court for violating the terms of his current probation.
        The district court stated that it “looked through [Scott’s] file” prior to sentencing him.
According to the PSR, Scott was 39 at the time of sentencing and had completed high school. His
PSR also detailed the circumstances of his offense, as well as his criminal history.
        Scott has previous charges or convictions in three separate states for failure to appear,
obstructing the judiciary or congress, drunk and disorderly conduct, disturbing the peace, felony
larceny, felony use of a financial transaction device, felony theft, possession of a controlled
substance, and third degree assault. Additionally, Scott has been on probation on previous
occasions and has had his probation revoked multiple times. Scott also scored in the high or very
high risk category in the following domains: criminal history, education/employment,
family/marital, leisure/recreation, companions, alcohol/drug problems, procriminal
attitude/orientation, and antisocial pattern.
        Prior to imposing its sentence, the district court stated:
        Looking at your record, I’m not convinced that, you know, any further efforts through
        probation are going to be of any benefit. It seems like you’ve had multiple opportunities.
        As I look through your file, I find violation, revocation, active warrant, multiple pages,
        multiple states, identity fraud, receiving stolen property, forgery second degree.

        In referencing Scott’s “file” and the information contained therein, the court was obviously
considering his PSR, and we reject Scott’s claim to the contrary. Further, the court noted that Scott
had been on probation multiple times in the past and had his probation revoked in the past. The
court also recounted a portion of Scott’s criminal history. Therefore, the court stated its
“reasoning” for imprisoning Scott rather than placing him on probation. Nothing in the record
indicates that the court failed to consider the appropriate factors in sentencing Scott. Based on the
record before us, we do not find that the district court abused its discretion in sentencing Scott to
2 years’ imprisonment and 12 months’ postrelease supervision for possession of a financial
transaction device.



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Ineffective Assistance of Counsel.
         Scott asserts his counsel was ineffective for failing to argue mitigating factors. He argues
his counsel failed to cite to any helpful information contained in the PSR, offer evidence of his
drug addiction treatment, present character letters or other information of his remorse, and explain
why he violated the terms of probation. He also claims counsel failed to adequately advise him
regarding his right to provide an “appropriate and thoughtful” allocution. We note that the
argument regarding failure to advise him of his right to provide an allocution was not assigned as
error; therefore we do not address it. See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014)
(errors must be specifically assigned and argued to be considered by appellate court). We address
the remaining assertions below.
         Scott is represented in this court by different counsel than the counsel who represented him
at the district 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; otherwise the issue
will be procedurally barred. State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015). Therefore,
Scott timely raised his claims of ineffective assistance of 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. Casares, supra. A claim of ineffective assistance of counsel need not be dismissed
merely because it is made on direct appeal. Id. The determining factor is whether the record is
sufficient to adequately review the question. Id. When the claim is raised in a direct appeal, the
appellant is not required to allege prejudice; however, an appellant must make specific allegations
of the conduct that he or she claims constitutes deficient performance by trial counsel. Id.
         Appellate courts have generally reached ineffective assistance of counsel claims on direct
appeal only in those instances where it was clear from the record that such claims are without merit
or in the rare cases where trial counsel’s error was so egregious and resulted in such a high level
of prejudice that no tactic or strategy could overcome the effect of the error, which effect was a
fundamentally unfair trial. Id. An ineffective assistance of counsel claim made on direct appeal
can be found to be without merit if the record establishes that trial counsel’s performance was not
deficient or that the appellant could not establish prejudice. Id.
         First, we find that Scott failed to make sufficiently specific allegations of deficient conduct
relating to the failure to cite to any helpful information contained in the PSR, present any character
letters or other information that would have demonstrated his remorse and community support, or
explain the reasons why he violated the terms of his probation. An appellant must make specific
allegations of the conduct that he or she claims constitutes deficient performance by trial counsel.
State v. Filholm, supra. 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. See State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).




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        Here, Scott does not identify what “helpful information” was contained in his PSR or what
the reasons were why he violated the terms of his probation. Additionally, Scott does not indicate
what the contents of any “character letters” would be, who they would be from, or how they would
demonstrate he deserved a lesser sentence. Brief for appellant at 14. We acknowledge that in State
v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014), the Supreme Court stated that in a direct
appeal, a defendant does not need to allege specific factual allegations as to who should have been
called or what that person or persons would have said to be able to conclude that any evidence of
such alleged ineffective assistance would not be found in the trial court. Despite this, the court in
Abdullah found that the defendant’s assertion that his counsel was ineffective for failing to call “at
least two witnesses that [defendant] informed would be beneficial to his case” was not alleged with
sufficient specificity to be addressed. State v. Abdullah, supra at 133-34, 853 N.W.2d at 867. Here,
Scott did not allege any specific information regarding his PSR, the “character letters,” or his
reasons for violating probation. Thus, similar to the court in Abdullah, we find that Scott did not
sufficiently allege these claims of ineffective assistance of counsel.
        Scott’s conclusory statements regarding his counsel’s alleged deficient performance as to
these three issues are insufficient to preserve his claim of ineffective assistance of counsel. See
State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016). A claim insufficiently stated is no different
than a claim not stated at all. State v. Mora, supra.
        Second, the record refutes Scott’s claims that his counsel was deficient for failing to offer
evidence regarding his treatment for drug addiction. Scott’s counsel informed the court prior to
the imposition of its sentence:
        As the court knows, [Scott] has been in the RAP program at Douglas County Corrections
        since April 12th of this year. While in RAP he’s been receiving intensive outpatient
        treatment. This includes participating in nine hours of treatment weekly, which would also
        include one hour of individual therapy. Further, he believes that treatment for drug
        problems is extremely important, and upon his release, would like to continue treatment at
        the Salvation Army.

Thus, the record refutes his claim that his counsel did not provide the court with information about
his drug treatment.
        In summation, Scott failed to allege deficient performance with sufficient particularity as
to his claims regarding the failure to provide the court with helpful information from his PSR,
character letters indicating his remorse and community support, or the reason Scott violated his
probation. We find that his counsel was not deficient for failing to provide information regarding
Scott’s drug treatment. Finally, he failed to assign as error that his counsel failed to inform him of
his right to provide his own allocution to the court.
                                          CONCLUSION
       For the foregoing reasons, we affirm Scott’s conviction and sentence.
                                                                                          AFFIRMED.




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