State v. Brunsen, 311 Neb. 368

Background

Petitioner Mark A. Brunsen sought to set aside a 1988 misdemeanor theft conviction under Neb. Rev. Stat. § 29-2264 to improve employment prospects (TWIC/HazMat permits); the State supported relief.
Brunsen, age 51 at hearing, has an extensive criminal history spanning decades, including a 2017 conviction for attempted possession of a deadly weapon (probation).
Counsel from a university "Clean Slate" clinic represented Brunsen and documented long-term law-abiding conduct since 2017 apart from minor traffic offenses.
At the hearing the district judge expressed concerns about public safety, hypothetical future violence (invoking Oklahoma City), possible adverse publicity, and whether setting asides would "wipe clean" Brunsen’s record; the State corrected misconceptions about the legal effect.
Four days later the court denied the petition in a one-sentence order without articulated findings; Brunsen appealed claiming abuse of discretion, bias, and reliance on irrelevant/speculative facts.

Issues

Issue	Plaintiff's Argument (Brunsen)	Defendant's Argument (State/District Court)	Held
Did the district court abuse its discretion by denying the §29-2264 set-aside?	Denial was arbitrary, untethered to statutory factors, and based on speculation and error.	Court independently weighed statutory factors (post-sentencing behavior, recidivism risk, other relevant info) and denied as inconsistent with public welfare.	No abuse of discretion; denial affirmed.
Did judge's comments require recusal for bias?	Judge’s remarks (criticizing program, hypotheticals) displayed impermissible bias or appearance of unfairness.	Comments were context-specific, not evidence of bias; no timely recusal motion was made below.	No recusal; comments insufficient to show disqualifying bias and claim waived for lack of timely motion.
Did the court rely on irrelevant or legally erroneous information (e.g., belief set-aside hides convictions)?	Court misunderstood set-aside effects and relied on speculative publicity fears and extreme hypotheticals.	State clarified set-aside does not erase records; judge considered concerns about public welfare and extensive criminal history which are relevant.	Court did not rest decision on erroneous facts; presumed to have considered correct law and record.
Was the court required to defer to the county attorney’s recommendation?	The State had recommended set-aside and that should be given substantial weight.	Court is not bound by county attorney’s recommendation and must independently apply §29-2264 factors.	No obligation to follow State’s recommendation; discretion to weigh it.

Key Cases Cited

State v. Kudlacz, 288 Neb. 656, 850 N.W.2d 755 (Neb. 2014) (abuse-of-discretion standard for set-aside decisions)
Woodward v. Lahm, 295 Neb. 698, 890 N.W.2d 493 (Neb. 2017) (interpretation and application of §29-2264 factors)
In re Interest of Victor L., 309 Neb. 21, 958 N.W.2d 413 (Neb. 2021) (objective recusal standard for appearance of partiality)
State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (Neb. 1998) (due process limits on sentencing information and commentary; comments from bench may be intemperate but not always disqualifying)
United States v. Tucker, 404 U.S. 443 (U.S. 1972) (due process requires sentencing decisions be based on accurate information)