State v. Foster, A-16-027

Foster pled no contest to amended charge of attempted first degree assault under a plea agreement; other charges dismissed.
He was sentenced to 10 to 15 years with credit for 332 days served.
Foster raised claims of ineffective assistance of counsel and an excessive sentence on direct appeal.
State argued that claims of trial counsel ineffectiveness could be waived or improperly raised given counsel status on appeal.
Nebraska Supreme Court addressed whether trial counsel’s withdrawal status allowed review of ineffectiveness claims on direct appeal.
Court ultimately held the ineffectiveness claims were insufficiently pled or not properly assigned and argued.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Can ineffectiveness claims be raised on direct appeal given counsel’s withdrawal status?	Foster argues trial counsel’s failure to withdraw improperly binds him to the appeal.	State says improper for raising trial-counsel ineffectiveness on direct appeal when status is unclear.	Yes; review is allowed due to withdrawal issues, but outcome depends on proper pleading.
Was trial counsel's failure to interview eyewitnesses ineffective assistance?	Counsel failed to interview eyewitnesses Foster identified supporting self-defense.	Record insufficiently specific; Abdullah requires specificity to preserve claim.	Claim not properly pled; insufficient specificity to address on direct appeal.
Did counsel inadequately explain the charged offense to Foster or misadvise about pleading?	Counsel did not adequately explain the charge.	Issue not argued with proper specificity in brief.	Not addressed; not properly assigned or argued.
Did counsel fail to present mitigating information at sentencing that would yield a lesser sentence?	Counsel should have presented additional mitigating information beyond self-defense rationale.	Appellant failed to identify the specific mitigating information.	Not addressed; insufficient pled.

State v. Abdullah, 289 Neb. 123 (Neb. 2014) (lack of specificity in identifying witnesses fatal to ineffectiveness claim)
State v. Parnell, 294 Neb. 551 (Neb. 2016) (show-cause approach when trial counsel status uncertain on appeal)
State v. Becerra, 253 Neb. 653 (Neb. 1998) (direct-appeal review of ineffective-assistance claims when record suffices)
State v. Filholm, 287 Neb. 763 (Neb. 2014) (require specific assignment and argument of errors on appeal)
State v. Casares, 291 Neb. 150 (Neb. 2015) (detail required for deficiency allegations in ineffective assistance)