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04/12/2019 09:08 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                                    STATE v. SPANG
                                                   Cite as 302 Neb. 285




                                        State of Nebraska, appellee, v.
                                          Ross W. Spang, appellant.
                                                     ___ N.W.2d ___

                                    Filed February 15, 2019.   Nos. S-18-450, S-18-451.

                1.	 Effectiveness of Counsel: Appeal and Error. Appellate review of a
                     claim of ineffective assistance of counsel is a mixed question of law and
                     fact. When reviewing a claim of ineffective assistance of counsel, an
                     appellate court reviews the factual findings of the lower court for clear
                     error. 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.
                 2.	 ____: ____. In reviewing claims of ineffective assistance of counsel on
                     direct appeal, an appellate court decides only whether the undisputed
                     facts contained within the record are sufficient to conclusively determine
                     whether counsel’s performance was deficient and whether the defendant
                     was or was not prejudiced by counsel’s alleged deficient performance.
                3.	 Sentences: Appeal and Error. Whether an appellate court is reviewing
                     a sentence for its leniency or its excessiveness, a sentence imposed by
                     a district court that is within the statutorily prescribed limits will not
                     be disturbed on appeal unless there appears to be an abuse of the trial
                     court’s discretion.
                4.	 Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
                     counsel is different from his or her counsel on direct appeal, the defend­
                     ant 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 in order to preserve such claim. Once raised, the appellate court
                     will determine whether the record on appeal is sufficient to review the
                     merits of the ineffective performance claims.
                5.	 Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
                     ineffective assistance of counsel claim will not be addressed on direct
                     appeal if it requires an evidentiary hearing.
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             Nebraska Supreme Court A dvance Sheets
                     302 Nebraska R eports
                               STATE v. SPANG
                              Cite as 302 Neb. 285

 6.	 Effectiveness of Counsel: Records: Appeal and Error. The trial
      record reviewed on appeal is devoted to issues of guilt or innocence; as
      such, it does not usually address issues of counsel’s performance and is
      often insufficient to review on direct appeal an ineffective assistance of
      counsel claim.
 7.	 Effectiveness of Counsel: Records: Proof: Appeal and Error. 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 estab-
      lish prejudice.
 8.	 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 has the burden to
      show that his or her counsel’s performance was deficient and that this
      deficient performance actually prejudiced the defendant’s defense.
  9.	 ____: ____. To show deficient performance, a defendant must show that
      counsel’s performance did not equal that of a lawyer with ordinary train-
      ing and skill in criminal law in the area.
10.	 ____: ____. To show prejudice, the defendant must demonstrate a rea-
      sonable probability that but for counsel’s deficient performance, the
      result of the proceeding would have been different.
11.	 Issue Preclusion: Words and Phrases. Issue preclusion means that
      when an issue of ultimate fact has once been determined by a valid and
      final judgment, that issue cannot again be litigated between the same
      parties or their privies in any future lawsuit.
12.	 Issue Preclusion. There are four conditions that must exist before issue
      preclusion may apply: (1) The identical issue was decided in a prior
      action, (2) there was a judgment on the merits which was final, (3) the
      party against whom the rule is applied was a party or in privy with a
      party to the prior action, and (4) there was an opportunity to fully and
      fairly litigate the issue in the prior action.
13.	 Issue Preclusion: Prior Convictions. Issue preclusion does not apply to
      determinations of whether prior convictions can be used to enhance the
      classification of or sentence imposed on a subsequent conviction.
14.	 Judgments: Appeal and Error. An abuse of discretion occurs when a
      trial court’s decision is based upon reasons that are untenable or unrea-
      sonable or if its action is clearly against justice or conscience, reason,
      and evidence.
15.	 Sentences. When imposing a sentence, a sentencing judge should con-
      sider the defendant’s (1) age, (2) mentality, (3) education and experi-
      ence, (4) social and cultural background, (5) past criminal record or
      record of law-abiding conduct, and (6) motivation for the offense, as
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             Nebraska Supreme Court A dvance Sheets
                     302 Nebraska R eports
                               STATE v. SPANG
                              Cite as 302 Neb. 285

     well as (7) the nature of the offense, and (8) the violence involved in the
     commission of the crime.
16.	 ____. The appropriateness of a sentence is necessarily a subjective judg-
     ment 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.

  Appeals from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
  Joseph D. Nigro, Lancaster County Public Defender, and
Robert G. Hays for appellant.
   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Freudenberg, J.
                       NATURE OF CASE
   These consolidated cases present direct appeals by the
defendant of his convictions for driving under the influence
(DUI), fifth offense, a Class IIA felony, and aggravated DUI,
fifth offense, a Class II felony. The defendant’s convictions
arise out of a no-contest plea agreement involving two sepa-
rate criminal cases. The central issue raised by the defendant
on appeal is whether his trial counsel was ineffective by fail-
ing to offer at the enhancement hearing available evidence that
allegedly would have established that the State was precluded
from relitigating a Wisconsin court’s determination that a prior
conviction was invalid for enhancement purposes. The defend­
ant also asserts that his sentences are excessive.
                           FACTS
                       DUI Incidents
  Ross W. Spang’s DUI convictions that are challenged on
appeal are based on the following facts occurring in May and
August 2016 respectively.
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                          STATE v. SPANG
                         Cite as 302 Neb. 285

   In May 2016, an officer witnessed Spang turn the wrong
way driving down a one-way street. The officer initiated a traf-
fic stop and immediately noticed that Spang was intoxicated
based on his slurred speech; red, watery eyes; and a strong
odor of alcohol coming from him. The officer ordered Spang to
exit his vehicle, and Spang fell down while exiting. The officer
testified that Spang showed signs of impairment during his
field sobriety test and that he failed his preliminary breath test.
After being arrested and transported to jail, Spang completed
a Breathalyzer test with a result of 0.190 grams of alcohol per
0.210 liters of his breath.
   In August 2016, a state trooper pulled Spang’s vehicle over
after observing it traveling 82 miles per hour in a 60-mile-per-
hour zone. The trooper initiated a traffic stop. The vehicle was
being driven by Spang and had two passengers. When he made
contact with Spang, the trooper could detect a strong odor
of alcohol.
   When prompted for his identification, Spang identified him-
self as “Reid Alan Spang.” The trooper eventually learned that
Spang had given a false name and that his true identity was
“Ross Wayne Spang” with an address in Wisconsin.
   The trooper later isolated the alcohol odor to Spang and had
him submit to a field sobriety test and a preliminary breath test.
During the field sobriety test, the trooper saw signs of impair-
ment. In addition, the preliminary breath test showed a result
of 0.128. Based on these circumstances, the trooper informed
Spang that he was under arrest. However, when the trooper
attempted to handcuff Spang, Spang ran from the trooper and
escaped arrest. The trooper was unable to locate Spang and put
him into custody at that time.

                 Plea Agreement and Verdict
   Spang was charged in two separate cases. In case No.
S-18-450, Spang was originally charged with aggravated DUI
(in excess of 0.15) with four or more prior convictions, a
Class II felony. In case No. S-18-451, Spang was originally
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                         STATE v. SPANG
                        Cite as 302 Neb. 285

charged with DUI with four or more prior convictions, a
Class IIA felony, and felony escape.
  A plea agreement was eventually reached between Spang
and the State wherein Spang agreed to plead no contest to the
DUI charges in exchange for dismissal of the felony escape
charge. The district court advised Spang of the rights he was
waiving by entering his pleas, and a factual basis was provided.
The district court accepted the pleas and found Spang guilty of
both DUI charges.
             Enhancement Hearing and Sentencing
   An enhancement hearing was held, and the State offered
certified copies of Spang’s four prior DUI convictions from
Wisconsin in 2004, 2006, 2007, and 2012. Spang’s trial coun-
sel did not object to the introduction or receipt of the evi-
dence of the prior convictions. However, Spang’s trial counsel
argued that the 2006 conviction was invalid for enhancement
purposes, because it did not reflect that Spang had effectively
waived counsel in that case. Spang’s counsel pointed out that
this deficient waiver led to a subsequent Wisconsin decision in
2012, for an offense committed in 2011, holding that this prior
2006 conviction was not valid for enhancement purposes in
Wisconsin. And counsel asserted that the State was precluded
from relitigating the Wisconsin court’s determination.
   Spang’s trial counsel offered into evidence, and the court
received, a copy of the Wisconsin circuit court’s 2012 judg-
ment of conviction and docket entries for Spang’s 2011 offense.
These 2011-12 records reflect that the Wisconsin circuit court
granted Spang’s motion to preclude the use of a 2006 prior
conviction for enhancement purposes in that case and that
Spang’s 2012 conviction was amended to a third offense rather
than a fourth offense based on that preclusion. However, these
records did not reflect on what basis the prior conviction was
found invalid for enhancement purposes.
   At the enhancement hearing, the State did not dispute that
the 2006 conviction was the same conviction found defective
and invalid for enhancement purposes in Wisconsin. However,
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                          STATE v. SPANG
                         Cite as 302 Neb. 285

the State argued that such fact alone did not render it invalid
in Nebraska for enhancement purposes. The State noted that
there were different requirements for effective waiver of
counsel between the two states and that the 2006 conviction
document entered into evidence by the State reflected that
Spang was advised of his rights and affirmatively waived
his right to counsel in relation to the 2006 conviction. The
State then argued that any attempt by Spang to challenge the
validity of the waiver of counsel that occurred in the 2006
Wisconsin case would be an impermissible collateral attack
under Nebraska law.
   The district court found that the 2006 conviction, as well
as the three other prior convictions, were valid prior convic-
tions for enhancement purposes in Nebraska. The court found
that the records entered into evidence by the State reflected
that the defendant had counsel in three of his four convictions
and that the State had demonstrated a sufficiently clear waiver
under Nebraska law of his right to counsel in relation to the
2006 conviction.
   In case No. S-18-451, the district court sentenced Spang to 5
to 10 years’ imprisonment and a 15-year license revocation for
DUI, fifth offense. In case No. S-18-450, the aggravated DUI,
fifth offense conviction, Spang was sentenced 10 to 15 years’
imprisonment and a 15-year license revocation. The sentences
were ordered to run consecutively, resulting in an aggregate
sentence of 15 to 25 years’ imprisonment.
                      Postconviction R elief
   Spang’s trial counsel did not file a direct appeal for this mat-
ter. Following his sentencing, Spang initiated a timely postcon-
viction action challenging trial counsel as ineffective for failing
to object to the introduction and receipt of the 2006 conviction,
offer necessary evidence regarding the 2006 conviction, and
file a direct appeal.
   The district court concluded that Spang’s trial counsel was
ineffective for not advising Spang about his right to appeal
and the 30-day time limit for filing an appeal. The district
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                Nebraska Supreme Court A dvance Sheets
                        302 Nebraska R eports
                                STATE v. SPANG
                               Cite as 302 Neb. 285

court found this warranted a reinstatement of Spang’s direct
appeal right but declined to address the remaining postconvic-
tion claims.
                  ASSIGNMENTS OF ERROR
   Spang assigns that (1) he was denied due process and the
effective assistance of counsel when his trial counsel failed to
offer at the enhancement hearing a Wisconsin motion to pre-
clude the consideration of a prior conviction and (2) the district
court erred in imposing excessive sentences.
                   STANDARD OF REVIEW
   [1] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact.1 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.2 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,3 an appellate court
reviews such legal determinations independently of the lower
court’s decision.4
   [2] In reviewing claims of ineffective assistance of counsel
on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel’s performance was
deficient and whether the defendant was or was not prejudiced
by counsel’s alleged deficient performance.5
   [3] Whether an appellate court is reviewing a sentence for
its leniency or its excessiveness, a sentence imposed by a

 1	
      State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
 2	
      Id.
 3	
      Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
      (1984).
 4	
      State v. Filholm, supra note 1.
 5	
      See, State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017); State
      v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
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                 Nebraska Supreme Court A dvance Sheets
                         302 Nebraska R eports
                                  STATE v. SPANG
                                 Cite as 302 Neb. 285

district court that is within the statutorily prescribed limits will
not be disturbed on appeal unless there appears to be an abuse
of the trial court’s discretion.6
                            ANALYSIS
                Ineffective Assistance of Counsel
   On direct appeal, Spang argues that he was denied due
process and the effective assistance of counsel at trial as a
result of trial counsel’s failure to offer certain evidence at
the enhancement hearing. Specifically, Spang argues that his
trial counsel was ineffective in failing to offer his motion to
preclude from the 2011-12 Wisconsin case, which allegedly
would have explained in sufficient detail the grounds for the
Wisconsin court’s order for purposes of issue preclusion, some-
times referred to as collateral estoppel.
   [4-7] 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 perform­
ance which is known to the defendant or is apparent from
the record in order to preserve such claim.7 Once raised, the
appellate court will determine whether the record on appeal is
sufficient to review the merits of the ineffective performance
claims.8 An ineffective assistance of counsel claim will not be
addressed on direct appeal if it requires an evidentiary hear-
ing.9 The trial record reviewed on appeal is devoted to issues of
guilt or innocence; as such, it does not usually address issues
of counsel’s performance and is often insufficient to review
on direct appeal an ineffective assistance of counsel claim.10

 6	
      State v. Fields, 268 Neb. 850, 688 N.W.2d 878 (2004).
 7	
      See, State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014); State
      v. Williams, 259 Neb. 234, 609 N.W.2d 313 (2000). See, also, State v.
      Filholm, supra note 1.
 8	
      State v. Abdullah, supra note 7.
 9	
      Id.
10	
      See, id.; State v. Filholm, supra note 1. See, also, State v. Williams, supra
      note 7.
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                Nebraska Supreme Court A dvance Sheets
                        302 Nebraska R eports
                               STATE v. SPANG
                              Cite as 302 Neb. 285

However, 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.11
   [8-10] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,12 the defendant has
the burden to show that his or her counsel’s performance
was deficient and that this deficient performance actually
prejudiced the defendant’s defense.13 An appellate court may
address the two prongs of this test, deficient performance and
prejudice, in either order.14 To show 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 in the area.15 To show prejudice, the defendant must
demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have
been different.16
   The record on appeal does not contain the 2011 motion to
preclude, which Spang argues would have established for the
purpose of issue preclusion that the Wisconsin court decided an
identical issue to the one before the trial court in the enhance-
ment hearing. Nevertheless, we are able to determine that trial
counsel’s performance in failing to offer the Wisconsin motion
to preclude did not prejudice Spang, because issue preclusion
does not apply in sentence enhancement proceedings.17
   [11,12] Issue preclusion means that when an issue of ulti-
mate fact has once been determined by a valid and final judg-
ment, that issue cannot again be litigated between the same

11	
      See State v. Filholm, supra note 1.
12	
      Strickland v. Washington, supra note 3.
13	
      See State v. Marks, 286 Neb. 166, 835 N.W.2d 656 (2013).
14	
      State v. Filholm, supra note 1.
15	
      State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).
16	
      Id.
17	
      See State v. Bruckner, 287 Neb. 280, 842 N.W.2d 597 (2014).
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                Nebraska Supreme Court A dvance Sheets
                        302 Nebraska R eports
                                STATE v. SPANG
                               Cite as 302 Neb. 285

parties or their privies in any future lawsuit.18 There are four
conditions that must exist before issue preclusion may apply:
(1) The identical issue was decided in a prior action, (2) there
was a judgment on the merits which was final, (3) the party
against whom the rule is applied was a party or in privy with
a party to the prior action, and (4) there was an opportunity to
fully and fairly litigate the issue in the prior action.19
   [13] In State v. Bruckner,20 we held that regardless of whether
these four conditions are met, issue preclusion does not apply
to determinations of whether prior convictions can be used to
enhance the classification of or sentence imposed on a subse-
quent conviction. Indeed, noting prior decisions by our court in
which we were less than clear as to whether our holding was
fact dependent, we stated that we were conclusively determin-
ing the “broader question of whether [issue preclusion] could
ever apply in a sentence enhancement proceeding.”21
   In the criminal context, issue preclusion is a component of
the Double Jeopardy Clause, and double jeopardy does not
bar the use of prior convictions for enhancement purposes.22
While we said this did not conclusively determine the appli-
cability of issue preclusion, we were also persuaded by the
public policy expressed by other jurisdictions similarly hold-
ing that issue preclusion does not apply to sentence enhance-
ment proceedings.23
   We were persuaded that concerns of public safety and
reaching the right result, which are peculiar to the criminal
process, outweigh the efficiency concerns that might otherwise
favor application of issue preclusion.24 Further, applying issue

18	
      Id.
19	
      Id.
20	
      Id.
21	
      Id. at 284, 842 N.W.2d at 600 (emphasis supplied).
22	
      See id.
23	
      See id.
24	
      Id.
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                       302 Nebraska R eports
                              STATE v. SPANG
                             Cite as 302 Neb. 285

p­ reclusion to prevent retrial of the validity of a prior convic-
 tion would undermine public confidence in the ability of the
 system to apply statutes prescribing increased punishment for
 repeat offenders.25 Finally, allowing retrial of the validity of a
 prior conviction for purposes of enhancement only increases
 the accuracy of the sentencing proceeding for both the State
 and the defendant.26
     In order to show prejudice, the defendant must demon-
 strate a reasonable probability that but for counsel’s deficient
 performance, the result of the proceeding would have been
 different. In light of our broad holding in Bruckner that issue
 preclusion does not apply to sentence enhancement proceed-
 ings, no amount of proof establishing the four conditions of
 issue preclusion would have made a difference. Thus, upon the
 record, we can conclude that Spang was not prejudiced by his
 trial counsel’s failure to offer into evidence at the enhancement
 hearing the Wisconsin motion to preclude.
                       Excessive Sentences
   Spang next assigns that the district court erred by imposing
excessive sentences. When a trial court’s sentence is within the
statutory guidelines, the sentence will be disturbed by an appel-
late court only when an abuse of discretion is shown.27
   DUI, fifth offense, is a Class IIA felony punishable by 2
to 20 years’ imprisonment and a mandatory 15-year license
revocation.28 Spang was sentenced to 5 to 10 years’ impris-
onment and a 15-year license revocation for this conviction.
Aggravated DUI, fifth offense, is a Class II felony punish-
able by 2 to 50 years’ imprisonment and a mandatory 15-year
license revocation.29 Spang was sentenced to 10 to 15 years’

25	
      Id.
26	
      See id.
27	
      State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
28	
      See Neb. Rev. Stat. §§ 60-6,197.03(9) (Cum. Supp. 2018) and 28-105
      (Reissue 2016).
29	
      See §§ 60-6,197.03(10) and 28-105.
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                        302 Nebraska R eports
                                STATE v. SPANG
                               Cite as 302 Neb. 285

imprisonment and a 15-year license revocation for this convic-
tion. Because each of these sentences is within the statutory
limitations, Spang’s sentences will be disturbed only upon a
finding of abuse of discretion.
   [14-16] An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience, rea-
son, and evidence.30 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 violence involved in the commission of the
crime.31 The appropriateness of a sentence is necessarily a sub-
jective judgment and includes the sentencing judge’s observa-
tion of the defendant’s demeanor and attitude and all the facts
and circumstances surrounding the defendant’s life.32
   We find that the sentencing court did not consider any
inappropriate or unreasonable factors in determining Spang’s
sentences. Further, having reviewed the 2006 conviction and
the evidence offered at the sentencing hearing, we find that
the court did not make its decision based upon reasons that are
untenable or unreasonable, nor was its action clearly against
justice or conscience, reason, and evidence.
                      CONCLUSION
  Based on the findings above, we affirm the district court’s
decision.
                                                 A ffirmed.

30	
      State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).
31	
      State v. Huff, supra note 27.
32	
      State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
