                                    - 263 -
                       Nebraska A dvance Sheets
                        292 Nebraska R eports
                             STATE v. SIDZYIK
                             Cite as 292 Neb. 263




                   State of Nebraska, appellee, v.
                    Donald L. Sidzyik, appellant.
                               ___ N.W.2d ___

                   Filed December 11, 2015.   No. S-14-1130.

 1.	 Postconviction: Effectiveness of Counsel: Appeal and Error. A claim
      of ineffective assistance of counsel in a postconviction proceeding usu-
      ally presents a mixed question of law and fact.
 2.	 Effectiveness of Counsel: Appeal and Error. For “mixed question”
      ineffective assistance claims, an appellate court reviews the lower
      court’s factual findings for clear error but independently determines
      whether those facts show counsel’s performance was deficient and
      prejudiced the defendant.
 3.	 Plea Bargains: Sentences. If the State breaches its promise to remain
      silent at a sentencing hearing, the defendant has two options: (1) with-
      draw the plea or (2) demand specific performance of the plea agreement
      by way of sentencing before a different judge.
 4.	 Effectiveness of Counsel: Proof. 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 per­
      formance actually prejudiced the defendant’s defense.
 5.	 ____: ____. To demonstrate deficient performance, a defendant must
      show that counsel’s performance did not equal that of a lawyer with
      ordinary training and skill in criminal law.
 6.	 Effectiveness of Counsel. A court judges the challenged conduct of
      counsel on the facts of the particular case, viewed at the time of coun-
      sel’s conduct.
  7.	 ____. A court will not second-guess reasonable strategic decisions made
      by counsel.
 8.	 Effectiveness of Counsel: Proof. To demonstrate prejudice, a defendant
      must show a reasonable probability that but for counsel’s deficient per-
      formance, the result of the proceeding would have been different.
                                     - 264 -
                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                               STATE v. SIDZYIK
                               Cite as 292 Neb. 263

 9.	 Words and Phrases. A reasonable probability is one sufficient to under-
     mine confidence in the outcome.
10.	 Plea Bargains: Sentences: Effectiveness of Counsel. To show preju-
     dice from counsel’s failure to object to the State’s breach of a promise
     to remain silent at a sentencing hearing, the defendant must show that
     counsel’s failure to object prevented the defendant from protecting the
     bargain the defendant struck with the State, thereby making the proceed-
     ings fundamentally unfair.

   Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Reversed and remanded with directions.
   Jason E. Troia, of Dornan, Lustgarten & Troia, P.C., L.L.O.,
for appellant.
   Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
  Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
      Connolly, J.
                         SUMMARY
   Donald L. Sidzyik pleaded no contest to second degree
sexual assault under a plea agreement. On direct appeal, he
argued that his trial counsel was ineffective for failing to
object to statements made by the prosecutor at the sentencing
hearing. We concluded that the State had materially breached
the plea agreement, but we could not resolve Sidzyik’s inef-
fectiveness claim on direct appeal because the record did not
show if his trial counsel had a strategic reason for remaining
silent.1 Sidzyik later moved for postconviction relief. The
postconviction court overruled the motion after an evidentiary
hearing because it did not think that the State’s breach of the
plea agreement was significant. Sidzyik appeals. We con-
clude that Sidzyik received ineffective assistance of counsel
when his trial counsel failed to object to the State’s material

 1	
      See State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011).
                                       - 265 -
                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                               STATE v. SIDZYIK
                               Cite as 292 Neb. 263

breach of the plea agreement. We reverse, and remand
with directions.
                          BACKGROUND
   The State charged Sidzyik with first degree sexual assault, a
Class II felony. Under a plea agreement, the State amended the
charge to second degree sexual assault, a Class III felony. The
prosecutor agreed to “stand silent” as part of the agreement.
Sidzyik pleaded no contest to the amended charge.
   At the sentencing hearing, a different prosecutor endorsed
the recommendation in the presentence investigation report.
The report “in no uncertain terms recommended that Sidzyik
receive a substantial period of incarceration.”2 Sidzyik’s trial
counsel did not object to the prosecutor’s comments. The court
sentenced him to 18 to 20 years’ imprisonment.
   Represented by new counsel, Sidzyik appealed. He assigned
that his trial counsel was ineffective for failing to object
to the State’s breach of the plea agreement. We concluded
that the State had materially breached the plea agreement by
not remaining silent at the sentencing hearing.3 Even though
Sidzyik’s trial counsel had not objected, we held out “the pos-
sibility, albeit rare,” that counsel said nothing in order to gain
a tactical advantage.4 The record did not show if Sidzyik’s trial
counsel had a strategic reason for not objecting. So, we could
not resolve the ineffectiveness claim on direct appeal.
   In 2011, Sidzyik moved for postconviction relief. He alleged
that his trial counsel was ineffective for failing to object to the
State’s breach of the plea agreement. Sidzyik asked the court
to allow him to withdraw his plea or have a court sentence him
in a proceeding not tainted by the State’s breach.
   The postconviction court held an evidentiary hearing and
received the deposition of Sidzyik’s trial counsel. Counsel
testified that he did not object because (1) he did not think

 2	
      Id. at 313, 795 N.W.2d at 288.
 3	
      Id.
 4	
      Id. at 314, 795 N.W.2d at 288.
                              - 266 -
                  Nebraska A dvance Sheets
                   292 Nebraska R eports
                        STATE v. SIDZYIK
                        Cite as 292 Neb. 263

the State had breached the plea agreement and (2) he thought
Sidzyik’s only option was to withdraw his plea:
      I didn’t object for a couple of reasons. One, all [the
      prosecutor] said was they would rely on the presentence
      investigation, and I didn’t feel that was a breach of the
      — of our plea agreement. The second one was probably
      — well, not probably. Was a strategy decision that had I
      objected and moved to withdraw the plea, then we would
      have been stuck then going to bat and going to trial on a
      Class II felony as opposed to the negotiated plea agree-
      ment that I was able to achieve for Mr. Sidzyik which was
      an admission to a Class III felony which potentially saved
      him a much more lengthy sentence.
Counsel stated that he did not know Sidzyik could also demand
specific performance of the agreement. He testified that it was
“very common” for the prosecutor to submit on the presen-
tence investigation report.
   The court also received a joint stipulation. The parties
agreed that Sidzyik had relied on the State’s promise to stand
silent and that Sidzyik’s trial counsel had not discussed his
options after the State breached the agreement. They further
stipulated that “[h]ad Sidzyik known of his option of choosing
to withdraw his plea or ask for specific performance of a sen-
tencing with a different judge, Sidzyik would have requested
specific performance with a different judge.”
   The court overruled Sidzyik’s motion for postconviction
relief. It emphasized that Sidzyik’s trial counsel did not think
the State had breached the plea agreement and that Sidzyik
himself had not told his counsel the State had breached the
agreement. The court concluded that the prosecutor’s com-
ments had not made the proceeding “‘fundamentally unfair’”
and that an objection would have had “no merit.”
   Sidzyik appeals.
                 ASSIGNMENT OF ERROR
   Sidzyik assigns that the court erred by overruling his motion
for postconviction relief.
                                      - 267 -
                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                               STATE v. SIDZYIK
                               Cite as 292 Neb. 263

                  STANDARD OF REVIEW
   [1,2] A claim of ineffective assistance of counsel in a
postconviction proceeding usually presents a mixed question
of law and fact.5 For “mixed question” ineffective assist­
ance claims, we review the lower court’s factual findings for
clear error but independently determine whether those facts
show counsel’s performance was deficient and prejudiced
the defendant.6

                           ANALYSIS
   [3] Because the postconviction court’s comment that a timely
objection by Sidzyik’s trial counsel would have had “no merit,”
we start by restating the underlying rules. The State’s failure
to remain silent in violation of a plea agreement is a material
breach of the agreement.7 If the State breaches the agreement,
the defendant has two options: (1) withdraw the plea or (2)
demand specific performance of the plea agreement by way of
sentencing before a different judge.8 Relief is mandatory on a
timely objection.9
   [4] The question here is not if the State materially breached
its plea agreement with Sidzyik. It did. Nor is the question
whether Sidzyik could have withdrawn his plea or obtained
specific performance on a timely objection. He could have. We
answered these questions on Sidzyik’s direct appeal. The issue
now is whether his trial counsel was ineffective for failing to
object to the State’s breach. To prevail on a claim of ineffec-
tive assistance of counsel under Strickland v. Washington,10
the defendant must show that his or her counsel’s performance

 5	
      See State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
 6	
      Id.
 7	
      State v. Sidzyik, supra note 1.
 8	
      Id.
 9	
      See State v. Birge, 263 Neb. 77, 638 N.W.2d 529 (2002).
10	
      Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
      (1984).
                                    - 268 -
                        Nebraska A dvance Sheets
                         292 Nebraska R eports
                              STATE v. SIDZYIK
                              Cite as 292 Neb. 263

was deficient and that this deficient performance actually
prejudiced the defendant’s defense.11 We will address the two
prongs of this test, deficient performance and prejudice, in
that order.
                      Deficient Performance
   [5-7] To demonstrate deficient performance, a defendant
must show that counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law.12 A
court judges the challenged conduct of counsel on the facts of
the particular case, viewed at the time of counsel’s conduct.13
The function of counsel is to make the adversarial testing
proc­ess work in the defendant’s case, but we will not second-
guess reasonable strategic decisions.14
   We have said that it would be a rare circumstance if a law-
yer with ordinary training and skill in criminal law would not
inform the court of the State’s material breach of a plea agree-
ment.15 We afford counsel due deference to form trial strategy
and tactics, but it is hard to imagine what possible advantage a
defendant could gain from silence.16 Only by pointing out the
breach can counsel protect the benefits the defendant bargained
for in exchange for his or her plea.17
   We conclude that this is not one of those rare cases in which
not objecting to the State’s material breach was a sound strate-
gic choice. The State argues that trial counsel’s silence was a
reasonable trial strategy, because counsel thought that (1) the
State had not breached the plea agreement and (2) Sidzyik’s
only option upon a breach would be to withdraw his plea.

11	
      State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015).
12	
      State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015).
13	
      See id.
14	
      Id.
15	
      State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003).
16	
      Id.
17	
      Id.
                                    - 269 -
                        Nebraska A dvance Sheets
                         292 Nebraska R eports
                              STATE v. SIDZYIK
                              Cite as 292 Neb. 263

Counsel was mistaken on both counts. We realize that even
seasoned criminal attorneys, like Sidzyik’s trial counsel, are
not walking repositories of the entire body of the criminal law.
But trial strategy based on a misunderstanding of the law is
not reasonable. So, the performance of Sidzyik’s trial counsel
was deficient.
                            Prejudice
   [8,9] To demonstrate prejudice, a defendant must show a
reasonable probability that but for counsel’s deficient per-
formance, the result of the proceeding would have been dif-
ferent.18 A reasonable probability is one sufficient to under-
mine confidence in the outcome.19 In addressing the prejudice
requirement in Strickland, we ask whether counsel’s deficient
performance made the result of the trial unreliable or the pro-
ceeding fundamentally unfair.20
   [10] The State argues that Sidzyik was not prejudiced,
because “the main focus of the plea negotiation was on the
reduction of the charge” and the State’s promise to stand silent
was not an “integral part of the plea agreement.”21 To the
extent the State argues that the breach was not material, we
note again that we held on Sidzyik’s direct appeal that it was.
Furthermore, Sidzyik does not have to show that he would
have received a lesser punishment to show prejudice.22 Instead,
the focus is whether counsel’s silence sacrificed Sidzyik’s abil-
ity to protect the bargain he struck with the State, thereby mak-
ing the proceedings fundamentally unfair.23
   We conclude that trial counsel’s failure to object to the
State’s breach of the plea agreement prejudiced Sidzyik. Had

18	
      See State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).
19	
      See id.
20	
      Id.
21	
      Brief for appellee at 9.
22	
      See State v. Gonzalez-Faguaga, supra note 15.
23	
      Id.
                                     - 270 -
                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                               STATE v. SIDZYIK
                               Cite as 292 Neb. 263

trial counsel timely objected, the outcome would have been
different, because Sidzyik would have had the option to
withdraw his plea or seek resentencing before a different
judge.24 The loss of this choice made the proceeding funda-
mentally unfair.25
                        CONCLUSION
   Sidzyik received ineffective assistance of counsel because
his attorney failed to object to the State’s material breach of
the plea agreement. Had his counsel objected, Sidzyik would
have had the choice to withdraw his plea or demand that the
court sentence him in a proceeding not tainted by the breach.
We reverse, and remand with directions to give Sidzyik the
choice to either (1) withdraw his no contest plea or (2) be
resentenced for his second degree sexual assault conviction
by a judge other than the judge who imposed the original sen-
tence and the judge who overruled his motion for postconvic-
tion relief.
                    R eversed and remanded with directions.

24	
      See State v. Sidzyik, supra note 1.
25	
      See State v. Gonzalez-Faguaga, supra note 15.

   Cassel, J., concurring.
   This court has never considered, and this case does not
present, a situation where a trial court, upon the occurrence of
a prosecutor’s breach of a plea-bargained promise to remain
silent at sentencing, promptly and decisively strikes the pros-
ecutor’s offending comments from the record, admonishes the
prosecutor, expressly states that the comments will be entirely
disregarded, and affirmatively offers the defendant with a
choice of (1) withdrawing his or her plea, (2) requesting sen-
tencing before a different judge, or (3) going forward with
sentencing before the current judge.
   Stacy, J., joins in this concurrence.
