State v. Agok, A-17-200

Background

In August 2012, Agok Arok Agok was accused of pulling a gun on David Choul, threatening to kill him, and pointing the weapon; a jury convicted Agok of terroristic threats (Class IV) and use of a deadly weapon to commit a felony (Class IC).
Key eyewitnesses included David and his two sons; police recovered a black-and-silver pistol from shorts in the trunk of Agok’s car after his arrest.
At trial, Officer Anderson testified he read Miranda warnings and interviewed Agok; the recording(s) of several witness interviews were not preserved.
Agok alleged trial counsel was ineffective for several specific failures (failure to present requested evidence, to file motions to suppress or in limine, and to subpoena certain witnesses).
Following complex postconviction and appellate proceedings, the district court reinstated Agok’s right to a direct appeal; this appeal addresses the ineffective-assistance claims and sentencing errors raised by the State as plain error.
The district court sentenced Agok to concurrent terms (1–2 years for terroristic threats; 5–8 years for the weapon charge) and gave 260 days’ credit; the appellate court found sentencing authority errors requiring vacatur and remand for resentencing.

Issues

Issue	Plaintiff's Argument (Agok)	Defendant's Argument (State)	Held
Whether trial counsel rendered ineffective assistance by failing to highlight testimonial inconsistencies and present requested evidence	Counsel inadequately emphasized witness inconsistencies and omitted evidence (e.g., employment timecard) that would undermine the timeline	Trial counsel’s cross-examination and choices were adequate or strategic; many allegations are general and not record-conclusive	Most such claims fail on direct appeal as either insufficiently specific or implicating trial strategy and thus cannot be resolved on the existing record
Whether counsel was ineffective for failing to move to suppress statements as Miranda violations	A motion to suppress should have excluded Anderson’s testimony about Agok’s post-arrest statements	Officer Anderson read Miranda warnings; the record lacks sufficient facts to resolve the claim without an evidentiary hearing	Claim cannot be resolved on direct appeal; evidentiary hearing required to address Miranda-related ineffectiveness
Whether counsel erred by failing to file a motion in limine regarding unpreserved interview videos	A limine could have prevented prejudice from admission of statements when videos were lost, impairing impeachment	A motion in limine is not the correct vehicle for impeachment issues; no statutory requirement to record these offenses; assertion is speculative	Failure to file a motion in limine was not ineffective assistance under the record; claim fails
Whether sentences were unlawful (plain error)	N/A (Agok did not assign sentencing error)	Sentences ran concurrently and gave duplicate credit contrary to statutory mandates for § 28-1205 weapon convictions and single application of presentence credit	Convictions affirmed; all sentences vacated and remanded for resentencing because the weapon statute mandates consecutive sentences, presentence credit must be applied only once, and mandatory-minimum language was omitted

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance) (establishes deficient performance and prejudice test)
Miranda v. Arizona, 384 U.S. 436 (custodial interrogation warnings requirement)
State v. Mendez-Osorio, 297 Neb. 520 (Neb. 2017) (direct-appeal review of ineffective-assistance claims; plain-error sentencing for weapon-use statute)
State v. Filholm, 287 Neb. 763 (appellate standard that specific allegations are required on direct appeal)
State v. Abdullah, 289 Neb. 123 (direct-appeal vs. postconviction pleading specificity for uncalled witnesses)
State v. Ramirez, 287 Neb. 356 (Neb. 2014) (holding § 28-1205 requires consecutive sentences for weapon-use convictions)