                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                       STATE V. REINHARDT


  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.

                                 TODD A. REINHARDT, APPELLANT.


                          Filed July 9, 2019.   Nos. A-18-949, A-18-952.


       Appeals from the District Court for Lancaster County: LORI A. MARET, Judge. Affirmed.
       Matthew K. Kosmicki, of Kosmicki Law, for appellant.
       Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.


       MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
       MOORE, Chief Judge.
                                         INTRODUCTION
        Todd A. Reinhardt appeals from his plea-based convictions for delivery or possession with
intent to deliver a controlled substance - methamphetamine (case No. A-18-952) and violation of
a protection order - 1st offense (case No. A-18-949). The district court for Lancaster County
accepted Reinhardt’s pleas and sentenced him to a term of 4 to 6 years’ imprisonment on the drug
charge and to a term of 1 to 1 year’s imprisonment on the violation of protection order charge. The
sentences were ordered to be served consecutively. On appeal, Reinhardt contends that his two
trial counsel were ineffective in connection with the sentencing hearing and that the district court
imposed excessive sentences. Based on the following, we affirm.
                                         BACKGROUND
      The factual basis in case No. A-18-952 shows that on September 8, 2016, a deputy sheriff
conducted a traffic stop on a vehicle with expired registration and no rear license plate. The driver,



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Reinhardt, consented to a search of the vehicle to look for the license plate. While searching the
vehicle, the deputy found a loaded handgun and two plastic baggies which contained
methamphetamine of more than user quantity, approximately 13 grams. As a result of this incident,
Reinhardt was charged with possession of a firearm with felony 1D drug violation, a Class IC
felony, and carrying a concealed weapon - first offense, a Class I misdemeanor.
        The factual basis in case No. A-18-949 shows that on January 9, 2018, Reinhardt’s ex-wife
called law enforcement to report that Reinhardt had attempted to talk to her despite an active
domestic abuse protection order that she had against him. As a result of this incident, Reinhardt
was charged with violation of a protection order - prior, a Class IV felony.
        A plea hearing was held on July 16, 2018, with respect to both matters. Under the plea
agreement, Reinhardt pled no contest to an amended information in case No. A-18-952, whereby
the firearm charge was reduced to delivery or possession with intent to deliver a controlled
substance - methamphetamine, a Class II felony. The carrying a concealed weapon charge was
dismissed. Reinhardt also pled no contest to an amended information in case No. A-18-949, which
reduced the violation of a protection order charge to a first offense, a Class I misdemeanor.
Reinhardt was arraigned on the amended charges and following the court’s advisement of rights
and possible penalties, Reinhardt waived his rights, and the court accepted his pleas, finding him
guilty of the amended charges. The court ordered a presentence investigation (PSI).
        A sentencing hearing was held on September 4, 2018. The district court indicated that it
had received, reviewed, and considered the PSI, a letter from Reinhardt’s attorney with attached
tax returns, Reinhardt’s “statement,” and an email from Reinhardt’s ex-wife. Reinhardt’s attorneys
filed a motion to continue the sentencing in case No. A-18-952 and made an oral motion to
continue in case No. A-18-949 for the reason that Reinhardt wished to have additional time to
develop character references. The court overruled the motions; however, Reinhardt’s attorney did
advise the court that an individual who worked for Reinhardt for 6 years in his “very successful
business” would have written a statement.
        The court heard argument from Reinhardt’s attorneys and the State, as well as allocution
from Reinhardt. Before imposing sentences, the court indicated that it was taking into
consideration the comments from Reinhardt and his counsel; his statement; the PSI; the generous
plea agreement that he received; his past history and “the history that you’ve had with probation
in the past;” his LS/CMI score, which indicated a high risk; and the evaluation on a domestic
violence screen, which indicated a high risk. Having considered the nature and circumstances of
the crime, the history, character, and condition of Reinhardt, the court found in both cases that
imprisonment was necessary for the protection of the public. The court reasoned that there was a
substantial risk that Reinhardt would engage in additional criminal conduct during any period of
probation and that a lesser sentence would depreciate the seriousness of the crimes and promote
disrespect for the law. The district court then sentenced Reinhardt to a term of 4 to 6 years’
imprisonment in case No. A-18-952 and to 1 to 1 year’s imprisonment in case No. A-18-949, with
the sentences to run consecutively to each other and to any other sentence Reinhardt might be
currently serving. Reinhardt received 8 days’ credit for time served.
        Reinhardt, represented by different counsel, appeals.




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                                   ASSIGNMENTS OF ERROR
        Reinhardt asserts that (1) both of his trial counsel were ineffective because during the
allocution and sentencing phase they failed to adequately discuss with him the contents of the PSI
and failed to correct inaccuracies in the PSI that were relied upon by the district court at sentencing
and (2) the district court abused its discretion in imposing excessive sentences.
                                    STANDARD OF REVIEW
        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. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019). An
appellate court determines 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.
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). Whether
probation or incarceration is ordered is a choice within the discretion of the trial court, whose
judgment denying probation will be upheld in the absence of an abuse of discretion. State v.
Cerritos-Valdez, 295 Neb. 563, 889 N.W.2d 605 (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. State v. Gibson, 302 Neb. 833, 925
N.W.2d 678 (2019).
                                            ANALYSIS
Ineffective Assistance of Trial Counsel.
        Reinhardt asserts that he received ineffective assistance of counsel on direct appeal in
connection with his sentencing hearing. Reinhardt is represented on direct appeal by different
counsel than trial counsel. 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 in a subsequent postconviction proceeding. State v. Mrza, supra. 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.
        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 were without
merit, or in the rare case 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. State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019). An
ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing. State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019).




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        When an ineffective assistance of counsel 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. 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. State v. Spang, 302 Neb. 285, 923 N.W.2d 59 (2019).
        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 trial counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense. State v. Mrza, supra. To show that counsel’s performance was
deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. Id. When a conviction is based upon a guilty or no
contest plea, the prejudice requirement for an ineffective assistance of counsel claim 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 or no contest. State v. Barrera-Garrido,
296 Neb. 647, 895 N.W.2d 661 (2017). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. State v. Mrza, supra. The two prongs of the ineffective
assistance of counsel test under Strickland v. Washington, supra, may be addressed in either order,
and the entire ineffectiveness analysis should be viewed with a strong presumption that counsel’s
actions were reasonable. State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018).
        Reinhardt argues that his PSI contained inaccurate information that his trial counsel failed
to correct, namely that he had been placed on probation twice previously. Reinhardt claims that
this inaccurate information was relied upon by the district court in determining the sentences in
this case, pointing to the court’s reference to Reinhardt’s history with probation. Reinhardt asserts
that he was never previously placed on probation, but rather that he was once placed on
administrative probation for driving under suspension and that later he was sentenced to
postrelease supervision. He had not yet begun this supervision when he was sentenced for the
current offenses as he was still incarcerated. Finally, Reinhardt argues that the overall LS/CMI
score was tainted due to the inaccurate information that he had been unsuccessful in his previous
terms of probation.
        The record refutes Reinhardt’s claim that the PSI contained inaccurate information. First,
the PSI shows that he was sentenced to a 6-month period of probation in 1996 for driving under
suspension in Hall County. In addition, Reinhardt was sentenced to 90 days of administrative
probation for a speeding offense in 2002. Further, the PSI indicates that he completed these two
“short terms” of probation in the past. The LS/CMI assessment does not reference the prior
probation terms in the summary section where his overall score of 26, which showed he was at a
high risk to reoffend, was discussed. In addition, the LS/CMI assessment is based on several
different factors beyond criminal history in which Reinhardt scored in the very high or high risk
range. Additional testing of Reinhardt included the Domestic Violence Matrix where he also
scored in the high risk range.
        We conclude that Reinhardt has failed to show that his trial counsel was deficient in not
correcting alleged inaccuracies in the PSI as there were none. The record shows that Reinhardt
was, in fact, sentenced to two prior probationary terms. And, as we discuss below, the district court


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noted several appropriate factors in determining the sentences in this case. Reinhardt’s argument
that his sentences would have been more lenient without reference to the prior terms of probation
fails. Reinhardt does not argue that but for his trial counsel’s failure to object to the reference to
his prior probation terms, he would have sought to withdraw his plea and proceed to trial. Reinhardt
received a substantial benefit as a result of the plea agreement, as noted by the district court. Thus,
the record supports a conclusion that Reinhardt is unable to show prejudice as a result of the alleged
deficiencies of his trial counsel.
         Reinhardt’s assignment of error also asserts that both of his trial counsel were ineffective
for failing to adequately discuss with him the contents of the PSI. Reinhardt does not specifically
argue this portion of his assigned error. To be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued in the brief of the party asserting the
error. Diamond v. State, 302 Neb. 892, 926 N.W.2d 71 (2019). As a result, we do not address this
argument.
Excessive Sentence.
        Reinhardt was convicted of delivery or possession with intent to deliver a controlled
substance - methamphetamine, a Class II felony. A Class II felony is punishable by a maximum
sentence of 50 years’ imprisonment and a minimum sentence of 1 year. Neb. Rev. Stat. § 28-105
(Reissue 2016). He was also convicted of violation of a protection order - first offense, a Class I
misdemeanor. A Class I misdemeanor is punishable by a maximum sentence of 1 year’s
imprisonment, a $1,000 fine, or both. Neb. Rev. Stat. § 28-106 (Reissue 2016). Reinhardt was
sentenced to consecutive terms of 4 to 6 years and 1 to 1 year, respectively. These sentences are
clearly within the statutory limits.
        A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse
of discretion by the trial court. State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017). An abuse of
discretion in imposing a sentence occurs when a sentencing court’s reasons or rulings are clearly
untenable and unfairly deprive the litigant of a substantial right and just result. Id. In considering
a sentence to be imposed, the sentencing court is not limited in its discretion to any mathematically
applied set of factors; 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. Factors a judge should consider in
imposing a sentence include the defendant’s age, mentality, education, experience, and social and
cultural background, as well as his or her past criminal record or law-abiding conduct, motivation
for the offense, nature of the offense, and the amount of violence involved in the commission of
the crime. Id. Generally, it is within a trial court’s discretion to direct that sentences imposed for
separate crimes be served either concurrently or consecutively. State v. Stone, 298 Neb. 53, 902
N.W.2d 197 (2017).
        Reinhardt argues that the district court did not properly take into account the circumstances
which he claim led to these charges, namely, his failed marriage, the loss of his successful business,
and his consequent drug use when his life “began to spin out of control.” Brief for appellant at 15.
The PSI shows that Reinhardt’s ex-wife filed for divorce in 2015 after she learned of his drug use.
She obtained a domestic abuse protection order as a result of his verbal and physical aggressiveness
toward her.


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        The PSI shows that Reinhardt was 44 years old at the time of sentencing. He has a high
school education, is divorced, and has two children from his previous marriage. He had been
self-employed; however, he sold his business equipment as a result of the divorce. Reinhardt’s
prior criminal history includes driving during suspension for which he received a fine and 6
months’ probation, theft by shoplifting, littering, possess open alcohol container, disturbing the
peace (amended from indecent exposure), violate protection order, a speeding charge in 2002 for
which he received a fine and 90 days’ administrative probation, and various additional traffic
offenses. Following the charges in case No. A-18-952, Reinhardt was convicted in March 2017 of
two counts of possession of a controlled substance, for which he received 180 days in jail and 12
months’ postrelease supervision. Two additional charges of possession of a controlled substance
in 2017 were dismissed as part of the plea agreement.
        As noted above, Reinhardt scored in the overall high risk to reoffend category on the
LS/CMI assessment, based upon his very high or his risk scores on the Leisure/Recreation,
Companions, Alcohol/Drug Problem, Pro-criminal Attitude/Orientation, and Antisocial Pattern
factors. He also scored in the high risk range on the Domestic Violence Matrix. He has a history
of alcohol, marijuana, and methamphetamine use, and he admits to being in need of treatment.
        Based upon our review of the record, the district court considered the appropriate factors
in sentencing Reinhardt and we find no abuse of discretion in the sentences imposed. We affirm
the convictions and sentences.
                                          CONCLUSION
         The record on direct appeal is sufficient to affirmatively refute Reinhardt’s allegations that
his trial counsel were ineffective in failing to correct alleged inaccuracies in the PSI. The sentences
imposed were not an abuse of discretion.
                                                                                            AFFIRMED.




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