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07/10/2018 08:10 AM CDT




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                                Nebraska Court of A ppeals A dvance Sheets
                                     26 Nebraska A ppellate R eports
                                                  STATE v. ST. CYR
                                                Cite as 26 Neb. App. 61




                                        State of Nebraska, appellee, v.
                                         Luke A. St. Cyr, appellant.
                                                    ___ N.W.2d ___

                                          Filed July 3, 2018.     No. A-17-372.

                1.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
                     tence imposed within the statutory limits absent an abuse of discretion
                     by the trial court.
                2.	 Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
                     fective assistance of trial counsel may be determined on direct appeal is
                     a question of law.
                 3.	 ____: ____. 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?
                4.	 Sentences: Appeal and Error. 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.
                5.	 Sentences. When imposing a sentence, the sentencing judge should
                     consider the defendant’s (1) age, (2) mentality, (3) education and expe-
                     rience, (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.
                 6.	 ____. 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.
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            Nebraska Court of A ppeals A dvance Sheets
                 26 Nebraska A ppellate R eports
                               STATE v. ST. CYR
                             Cite as 26 Neb. App. 61

 7.	 Criminal Law: Restitution: Damages. Neb. Rev. Stat. § 29-2280
     (Reissue 2016) vests trial courts with the authority to order restitu-
     tion for actual damages sustained by the victim of a crime for which a
     defend­ant is convicted.
 8.	 Sentences: Restitution: Damages. After the sentencing court deter-
     mines that a conviction warrants restitution, it then becomes the sentenc-
     ing court’s factfinding responsibility to determine the victim’s actual
     damages and the defendant’s ability to pay.
 9.	 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. Otherwise, the issue will be procedurally barred.
10.	 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
     counsel’s performance was deficient and that this deficient performance
     actually prejudiced his or her defense.
11.	 Effectiveness of Counsel: Pleas: Proof. To show prejudice when the
     alleged ineffective assistance relates to the entry of a plea, the defendant
     must show that there is a reasonable probability that, but for counsel’s
     errors, he or she would not have entered the plea and would have
     insisted on going to trial.
12.	 Effectiveness of Counsel: Proof. The two prongs of the ineffective
     assistance test under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
     2052, 80 L. Ed. 2d 674 (1984), deficient performance and prejudice,
     may be addressed in either order.
13.	 Effectiveness of Counsel: Sentences. Neb. Rev. Stat. §§ 29-2261
     and 29-2204.03 (Reissue 2016) give the court the discretion to order
     further evaluations of the defendant prior to sentencing when it deems
     such evaluations necessary for determining the sentence to be imposed;
     neither statute provides that a defendant can or should request the
     evaluations. Trial counsel cannot be deficient for failing to request
     evaluations that the court itself could have ordered, but in its discretion
     deemed unnecessary.

  Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed in part, sentence of restitution
vacated, and cause remanded with directions.
  Ryan J. Stover, of Stratton, DeLay, Doele, Carlson &
Buettner, P.C., L.L.O., for appellant.
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              26 Nebraska A ppellate R eports
                         STATE v. ST. CYR
                       Cite as 26 Neb. App. 61

  Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
  Moore, Chief Judge, and Bishop and A rterburn, Judges.
  Bishop, Judge.
                      I. INTRODUCTION
   Luke A. St. Cyr pled guilty to one count of first degree
assault pursuant to Neb. Rev. Stat. § 28-308 (Reissue 2016),
and the district court for Madison County sentenced him to 40
to 50 years’ imprisonment and ordered him to pay $100,000
in restitution. St. Cyr argues that his sentence is excessive
and that his counsel was ineffective. For the following rea-
sons, we affirm in part, but because we find the court did
not meaningfully consider St. Cyr’s ability to pay restitution,
we vacate the sentence of restitution and remand the cause
with directions.
                       II. BACKGROUND
   On December 13, 2016, the State filed an information charg-
ing St. Cyr with first degree assault pursuant to § 28-308, a
Class II felony. The offense was alleged to have occurred on
October 28.
   On January 30, 2017, pursuant to a plea agreement, St. Cyr
pled guilty to the charge in the information in exchange for the
State’s agreement to not file additional charges arising from
the incident. The factual basis was derived from statements by
St. Cyr, his attorney, and the State. St. Cyr’s counsel said that
after a “brief verbal altercation,” St. Cyr “punched the victim
several times, knocked the victim out and then [St. Cyr] pro-
ceeded to kick the victim several times in the head and cause
serious bodily injury.” St. Cyr told the court that “I punched
him and I kicked him and I assaulted him.” The State added
that the police responded to a call at a bar in Norfolk, Madison
County, Nebraska. They found the victim bleeding, unable to
talk, and unable to get up. The victim was taken to a hospi-
tal, and
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                          STATE v. ST. CYR
                        Cite as 26 Neb. App. 61

     the doctors that continued to treat the victim would have
     indicated and testified that the injuries sustained by the
     victim fit the definition of serious bodily injury because
     there was a substantial risk from the injuries that . . . the
     victim may have died and it required . . . medical inter-
     vention to keep him alive.
The State said there was a videotape, and the evidence would
show that the victim did nothing wrong and that there was
nothing that would justify the use of force against the victim.
   The district court accepted St. Cyr’s guilty plea to the infor-
mation and later sentenced him to 40 to 50 years’ imprison-
ment, with 111 days’ credit for time served. The court also
ordered him to pay restitution in the amount of $100,000.
St. Cyr appeals.
               III. ASSIGNMENTS OF ERROR
   St. Cyr assigns as error that (1) the district court imposed an
excessive sentence both in the length of incarceration ordered
and by ordering him to pay restitution without considering
his ability to pay and (2) he received ineffective assistance
of counsel.
                  IV. STANDARD OF REVIEW
    [1] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. State v. Dyer, 298 Neb. 82, 902 N.W.2d 687 (2017).
A judicial abuse of discretion exists when the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters
submitted for disposition. Id.
    [2,3] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question of
law. State v. Loding, 296 Neb. 670, 895 N.W.2d 669 (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 suf-
ficient to conclusively determine whether counsel did or did
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         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                         STATE v. ST. CYR
                       Cite as 26 Neb. App. 61

not provide effective assistance and whether the defendant
was or was not prejudiced by counsel’s alleged deficient per-
formance? Id.
                          V. ANALYSIS
                      1. Excessive Sentence
                   (a) Length of Incarceration
   St. Cyr assigns the district court erred by sentencing him to
40 to 50 years’ imprisonment, instead of a lesser term of incar-
ceration. St. Cyr was convicted of first degree assault pursuant
to § 28-308, which is a Class II felony. Under Neb. Rev. Stat.
§ 28-105 (Reissue 2016), a Class II felony is punishable by 1
to 50 years’ imprisonment. St. Cyr’s sentence was therefore
within the statutory limits.
   [4-6] 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. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017).
When imposing a sentence, the sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and
experience, (4) social and cultural background, (5) past crimi-
nal 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. See 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 cir-
cumstances surrounding the defendant’s life. State v. Chacon,
296 Neb. 203, 894 N.W.2d 238 (2017).
   St. Cyr was 32 years old at the time of sentencing. He was
single and had no dependents. He has a high school diploma
and reportedly attended one semester of college. St. Cyr’s
employment history is “inconsistent due to being in and out
of incarceration.” He reports that both of his parents suffered
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              26 Nebraska A ppellate R eports
                        STATE v. ST. CYR
                      Cite as 26 Neb. App. 61

from addiction to alcohol in the past, but that his father had
been sober for 10 to 15 years and his mother had been sober
for 20 years. All of his siblings have suffered from addiction
to alcohol in the past, but they were all sober at the time of
his presentence investigation. St. Cyr first consumed alcohol
at age 11 and reported regular use by age 14. He indicated he
attended substance abuse treatment and relapsed in 2015 or
2016, and he said that each of his convictions originally began
with the use of alcohol. He “described a desire to consume
alcohol in the future because he feels hopeless.” He also uses
marijuana and peyote. St. Cyr “recalled being traumatized by
a combination of his parent[s’] alcoholism and growing up in
Winnebago, which he described as a hostile and violent envi-
ronment.” He “described how ‘retaliation is rampant on the
reservation’” and indicated three of his brothers have “been
injured due to retaliatory assaults”—one of his brothers suf-
fered a gunshot wound to the face, one was started on fire, and
another has been beaten and stabbed. He reported being the
victim of violence or abuse on numerous occasions, includ-
ing being stabbed in the chest twice during fights in 1998 and
2003. He reported being diagnosed with anxiety and depres-
sion during his incarceration in federal prison and attempting
suicide numerous times between the ages of 17 and 21 (since
then his suicidal thoughts “‘come and go’”). St. Cyr “identi-
fied his excessive alcohol consumption and poor choice in
peers as problematic, noting he desires immediate substance
abuse intervention.”
   St. Cyr’s criminal history includes convictions for posses-
sion of marijuana (community service and 1 year’s probation);
attempted robbery (36 months’ probation revoked and subse-
quently sentenced to 14 to 18 months’ imprisonment); third
degree assault (365 days’ jail time); and burglary and assault
with a dangerous weapon resulting in serious injury in “Indian
Country” (“6 years Bureau of Prisons [and] 3 years supervised
release”; probation revoked and subsequently sentenced to “12
months federal prison”).
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               26 Nebraska A ppellate R eports
                          STATE v. ST. CYR
                        Cite as 26 Neb. App. 61

   Regarding his current conviction, St. Cyr told the proba-
tion officer that he went to a friend’s house in Winnebago,
Nebraska, and that two other females he did not know were
there. They were all drinking. The females wanted to go to
Norfolk, and they all headed that way. On the drive, one of
the women received telephone calls which became “heated.”
She told St. Cyr and the others that the caller would often beat
her up. St. Cyr “felt compelled to offer [himself] as her cham-
pion” and said he would “‘kick his ass.’” When they arrived in
Norfolk, they encountered the man, but nothing happened and
they parted ways. St. Cyr and his group went to a bar and got
“kicked out” after a bar fight. After St. Cyr and his friend left
a second bar, a person asked “if [they] were Indians.” St. Cyr
“became offended and started an argument.” St. Cyr believed
that the argument had escalated into a fight and that he had
“made the first move.” He said, “I assaulted a man I never . . .
knew,” and the man received serious injuries. St. Cyr explained
that he assaulted the victim in the current matter so severely
because St. Cyr had been “involved in two past assaults in
which he allowed the victim to regain consciousness, [and as]
a result, those individuals came to and retaliated against [him],
assaulting him severely.” St. Cyr said, “‘This is why I went so
far’”; “‘I would never have done this if sober.’” The record
reflects that the victim suffered extensive injuries as a result of
the assault, including being placed on life support and experi-
encing a coma; due to the extent of the injuries sustained, the
victim has been unable to return to employment and has accu-
mulated a massive amount of medical debt.
   As part of the presentence investigation, the probation officer
conducted a “Level of Service/Case Management Inventory.”
St. Cyr was assessed at a “very high risk level for recidivism.”
The probation officer recommended that St. Cyr be sentenced
to a term of incarceration.
   At the sentencing hearing, the court noted it had read
through the facts and St. Cyr’s statement and still did not
understand what caused the “pretty violent incident.” St. Cyr
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                          STATE v. ST. CYR
                        Cite as 26 Neb. App. 61

said that it was “somewhat motivated by the people [he] was
with, but still that [wasn’t] cause for such a horrible act to hap-
pen to another person.” He said, “I already suffer from a lot
of mental health issues, but when it comes to alcohol, it just
brings out the worse [sic] in me. So I guess I really don’t have
really nothing to say to support it or justify it. It was horrible.
I’m ashamed of it.” He acknowledged that he did not know the
victim and that the victim did not make movements or threat-
ening gestures toward him.
    The State called the victim’s brother to testify at the sen-
tencing hearing. The brother testified that the victim was “life-
flighted” to a medical center, was given a “30-percent chance
of living,” and “was hooked to every machine available, even
for breathing, feeding tubes. Numerous IV’s.” The brother tes-
tified that the victim
      experienced a very heavy head injury, brain trauma. They
      were even talking about doing surgery and putting in
      drains and everything else due to the swelling on his
      brain. He had a fractured skull across his left side. His
      nose was broke[n]. It was pretty extensive, where they
      were so worried about the vertebrae in his neck that they
      left the collar on for an extended period of time.
         They didn’t even try attempting to back off the breath-
      ing machine for approximately ten days. He was in basi-
      cally a medically-induced coma just to see if he would
      even breathe on his own again.
The victim “had no vision at that time” and had broken ribs.
Because of the brain injury, he has short-term memory loss
and did not even recognize his mother. He was in the hospital
for “[a]bout a month.” The victim (25 years old at the time of
St. Cyr’s sentencing hearing) was self-employed as a contrac-
tor and has no insurance, and his Medicaid was denied, so they
could not get him the recovery therapy he needed at any reha-
bilitation facilities.
    The State also played “actual video from behind the bar”
from an outside camera (which video does not appear in our
record).
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               26 Nebraska A ppellate R eports
                         STATE v. ST. CYR
                       Cite as 26 Neb. App. 61

   The State asked for a “significant amount of incarceration.”
St. Cyr’s counsel noted his client’s background and said “it
doesn’t justify anything,” but “[i]t just explains an unfortunate
convergence of everything that was brought in where he was
that night.” And St. Cyr apologized to the victim’s family on
the record.
   The court said, “I don’t know if I’ve ever seen anybody
beaten this bad before.” The court further said:
      [W]atching that video was pretty shocking. . . . I don’t
      know if I’ve ever seen anything like that before and I
      don’t think I ever want to. It’s just a brutal attack. . . .
      [C]learly this victim was unconscious. When you contin-
      ued to kick and stomp at his head and, you know, that’s
      just something I just don’t understand. . . .
         . . . It seemed to me, at least from what I understand
      from the police reports and from watching the video and
      the comments that have been made, that this was pretty
      much non-provoked. . . .
         You may not have killed this victim . . . but you
      definitely have altered his life in a very negative way
      and who knows whether he will fully recover ever from
      these injuries.
The court found that St. Cyr was not a qualified candidate for
probation and that there was a substantial likelihood of his
reoffending in a similar manner. The court determined that
“the most effective recourse” was incarceration and sentenced
him to 40 to 50 years’ imprisonment.
   In his brief, St. Cyr argues that the district court “did not
properly consider [his] rehabilitative needs in light of his back-
ground, his acknowledgment of responsibility, and his willing-
ness to enter a plea of guilty, saving the State the expense of
and the victim the trauma of trial.” Brief for appellant at 14.
He argued a reduced sentence would have been more appropri-
ate. However, upon our review of the record and consideration
of the relevant sentencing factors in this case, we find the
district court did not abuse its discretion in the length of the
prison sentence ordered.
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               26 Nebraska A ppellate R eports
                          STATE v. ST. CYR
                        Cite as 26 Neb. App. 61

                            (b) Restitution
    St. Cyr argues that the district court erred in ordering
him to pay restitution in the amount of $100,000, without
conducting a meaningful examination of his ability to pay
that amount. The State asserts, “While no one objected to
the imposition of restitution even when it was imposed, . . .
actions which would ordinarily waive the argument on appeal,
it is still plain error since the imposition of restitution did not
comply with state statutes.” Brief for appellee at 13. Plain
error may be found on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and
fairness of the judicial process. State v. Kidder, 299 Neb. 232,
908 N.W.2d 1 (2018).
    [7] A sentencing court may order the defendant to make
restitution for the actual physical injury or property damage
or loss sustained by the victim as a direct result of the offense
for which the defendant has been convicted. Neb. Rev. Stat.
§ 29-2280 (Reissue 2016). Section 29-2280 vests trial courts
with the authority to order restitution for actual damages sus-
tained by the victim of a crime for which the defendant is con-
victed. State v. Ramirez, 285 Neb. 203, 825 N.W.2d 801 (2013).
According to Neb. Rev. Stat. § 29-2281 (Reissue 2016):
          To determine the amount of restitution, the court may
       hold a hearing at the time of sentencing. The amount
       of restitution shall be based on the actual damages sus-
       tained by the victim and shall be supported by evidence
       which shall become a part of the court record. The court
       shall consider the defendant’s earning ability, employ-
       ment status, financial resources, and family or other legal
       obligations and shall balance such considerations against
       the obligation to the victim. In considering the earning
       ability of a defendant who is sentenced to imprisonment,
       the court may receive evidence of money anticipated to
       be earned by the defendant during incarceration. . . . The
       court may order that restitution be made immediately,
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                         STATE v. ST. CYR
                       Cite as 26 Neb. App. 61

      in specified installments, or within a specified period of
      time not to exceed five years after the date of judgment or
      defendant’s final release date from imprisonment, which-
      ever is later.
Further, if the offense results in bodily injury, the court may
require payment of necessary medical care, including, but not
limited to, physical or psychological treatment and therapy, and
payment for income lost due to such bodily injury. Neb. Rev.
Stat. § 29-2282 (Reissue 2016).
   [8] After the sentencing court determines that a conviction
warrants restitution, it then becomes the sentencing court’s
factfinding responsibility to determine the victim’s actual dam-
ages and the defendant’s ability to pay. State v. Ramirez, supra.
An evidentiary hearing is required to support a restitution order
under § 29-2281, and restitution should be based on evidence
of both actual damages and the defendant’s ability to pay.
See State v. Holecek, 260 Neb. 976, 621 N.W.2d 100 (2000).
Restitution ordered by a court pursuant to § 29-2280 is a crimi-
nal penalty imposed as a punishment for a crime and is part of
the criminal sentence imposed by the sentencing court. State v.
Holecek, supra.
   The victim’s brother testified at the sentencing hearing. He
testified about the extent of the victim’s injuries and some of
the medical costs, saying it was “well over a hundred thou-
sand.” And the presentence investigation report contains copies
of the victim’s medical bills that total well over $100,000—his
medical center bill alone was over $100,000, his “life-flight”
bill was $59,999, and there were numerous other medical bills
totaling several thousands of dollars.
   However, as noted by the State, there was no consideration
by the court of St. Cyr’s ability to pay. In fact, at the sentenc-
ing hearing, the State indicated St. Cyr “has been incarcerated
. . . and has no financial means. We’re not officially seeking
restitution, but the restitution . . . is clearly in the [presen-
tence investigation report] as to what medical bills are still
owed.” The court asked St. Cyr if he had any money to pay
for the medical bills; his response was no. The court then
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                         STATE v. ST. CYR
                       Cite as 26 Neb. App. 61

asked St. Cyr how he thought the bills would get paid, and he
responded: “[I]f you were to give me the bill for the restitution,
I would try to do my best to pay it off. Day by day, year by
year, however it can be done.”
   The district court stated: “I will also order restitution, even
though I’m sure you won’t ever be able to pay it, but I’m going
to order it, in the amount of $100,000. Clearly the medical bills
that I’ve reviewed add up to more than that.” The court did not
state how restitution of $100,000 would be paid by St. Cyr,
especially given his lengthy term of incarceration.
   Although the district court considered St. Cyr’s ability to
pay the restitution from the standpoint that the court con-
cluded St. Cyr “won’t ever be able to pay it,” the court did
not state when and how the restitution was to be paid or
whether it was to be paid immediately, in installments, or
within a specified period of time. In light of the applicable
law, we find plain error and must vacate the restitution por-
tion of St. Cyr’s sentence, remanding the cause back to the
trial court for proceedings that are consistent with this opin-
ion and the statutory factors set forth in § 29-2281. See State
v. Mick, 19 Neb. App. 521, 808 N.W.2d 663 (2012) (finding
record did not indicate trial court meaningfully considered
factors mandated by § 29-2281 with respect to defendant’s
ability to pay restitution; trial court’s order regarding restitu-
tion vacated and cause remanded to trial court for proceedings
consistent with appellate opinion and statutory factors set
forth in § 29-2281).
                 2. Effectiveness of Counsel
   [9] 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. Otherwise, the issue will be procedurally barred. State
v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
   The fact that an ineffective assistance of counsel claim is
raised on direct appeal does not necessarily mean that it can
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                       Cite as 26 Neb. App. 61

be resolved. State v. Loding, 296 Neb. 670, 895 N.W.2d 669
(2017). The determining factor is whether the record is suf-
ficient to adequately review the question. Id.
   [10-12] 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.
Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010). To show preju-
dice when the alleged ineffective assistance relates to the entry
of a plea, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he or she would not
have entered the plea and would have insisted on going to trial.
State v. Fester, 287 Neb. 40, 840 N.W.2d 543 (2013). The two
prongs of this test, deficient performance and prejudice, may
be addressed in either order. Id.
   St. Cyr contends that his trial counsel was ineffective
because counsel “failed to utilize all means available to place
mitigating evidence before the sentencing court, prior to sen-
tencing.” Brief for appellant at 22. More specifically, he argues
counsel could have offered letters of support for St. Cyr as
mitigating evidence. He also argues that counsel could have
motioned the court to utilize “the evaluations authorized in
§§29-2261 or 29-2204.03.” Brief for appellant at 25. St. Cyr
claims, “It is conceivable that had trial counsel done so,” then
“a more appropriate sentence would have been imposed.” Brief
for appellant at 25 and 26.
   Neb. Rev. Stat. § 29-2261(5) (Reissue 2016) states that
before imposing sentence, the court may order the offender to
submit to psychiatric observation and examination for a period
not exceeding 60 days or such longer period as the court deter-
mines to be necessary for that purpose. And Neb. Rev. Stat.
§ 29-2204.03(1) (Reissue 2016) states:
      When the court is of the opinion that imprisonment may
      be appropriate but desires more detailed information as
      a basis for determining the sentence to be imposed than
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      has been provided by the presentence report required by
      section 29-2261, the court shall commit an offender to
      the Department of Correctional Services for a period not
      exceeding ninety days. The department shall conduct a
      complete study of the offender during that time, inquiring
      into such matters as his or her previous delinquency or
      criminal experience, social background, capabilities, and
      mental, emotional, and physical health and the rehabilita-
      tive resources or programs which may be available to suit
      his or her needs.
   [13] Both §§ 29-2261 and 29-2204.03 give the court the
discretion to order further evaluations of the defendant prior to
sentencing when it deems such evaluations necessary for deter-
mining the sentence to be imposed; neither statute provides
that a defendant can or should request the evaluations. Trial
counsel cannot be deficient for failing to request evaluations
that the court itself could have ordered, but in its discretion
deemed unnecessary.
   Furthermore, St. Cyr does not say who would have provided
letters of support (or what information those letters would have
contained). See, generally, State v. Abdullah, 289 Neb. 123,
133, 853 N.W.2d 858, 867 (2014) (showing witnesses whom
defendant advised counsel would have been “‘beneficial’”
to defendant’s case at trial raises potential issues of deficient
performance and prejudice; but vague assertion referring to
“‘at least two’” witnesses seems little more than placeholder;
“[w]ithout such specific allegations, the postconviction court
would effectively be asked to ‘“conduct a discovery hearing
to determine if anywhere in this wide world there is some evi-
dence favorable to defendant’s position”’”).
   St. Cyr does not say what other information his attorney
should have presented to provide “a more complete picture”
of St. Cyr. Brief for appellant at 25. In his brief, he mentions
that he was the product of dysfunction and violence, that he
had post-traumatic stress disorder, and that alcohol contributed
to the events. However, St. Cyr himself provided all of this
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         Nebraska Court of A ppeals A dvance Sheets
              26 Nebraska A ppellate R eports
                         STATE v. ST. CYR
                       Cite as 26 Neb. App. 61

information during the presentence investigation, and the court
considered that information. We cannot say that St. Cyr’s trial
counsel was deficient. But even if trial counsel was deficient,
St. Cyr cannot establish prejudice based on his counsel’s fail-
ure to offer mitigating factors. The court read the presentence
investigation report which, as set forth previously in this
opinion, went into great detail about St. Cyr’s background and
the struggles he had encountered. Even in light of this infor-
mation, the sentence imposed was not excessive, as we have
concluded. The result of the proceeding would not have been
different had counsel offered additional information regarding
St. Cyr’s social background, capabilities, rehabilitative needs,
and mental, emotional, and physical health. Considering the
circumstances of the offense, St. Cyr’s criminal history, and his
history of alcohol abuse, argument from counsel or other infor-
mation reiterating the same background factors that St. Cyr
himself provided would not have resulted in a lesser sentence.
Because St. Cyr cannot show prejudice, his claim of ineffective
assistance of counsel fails.
                      VI. CONCLUSION
   We affirm the district court’s sentencing order imposing 40
to 50 years’ imprisonment; however, the restitution portion of
the sentence is vacated, and the cause is remanded for pro-
ceedings consistent with this opinion.
	A ffirmed in part, sentence of restitution vacated,
	         and cause remanded with directions.
