State v. Loding, 895 N.W.2d 669

Background

Defendant Bashir V. Loding was convicted by a jury of first‑degree sexual assault of a child (one count alleging multiple incidents between May and Sept. 2015) and sentenced to 35–50 years' imprisonment. Trial evidence included testimony from the victim (A.B.) and corroboration by an older sister; defendant did not testify.
At trial defense was led by licensed attorney James Schaefer; James’s son Robert Schaefer (a recent law graduate) participated in voir dire and delivered opening and closing statements.
Robert had been certified as a senior law student under court rules earlier, but had graduated and failed the MPRE before trial; the court rules treat failure of the MPRE (together with the UBE) as failure of the "bar examination," terminating senior certification.
Loding appealed, raising ineffective assistance of counsel claims (including that representation by an unadmitted former senior law student was per se ineffective and that no written consent was obtained), insufficiency of evidence, and excessive sentence.
The Nebraska Supreme Court concluded Robert was an unauthorized practitioner at trial (certification had terminated), but because licensed cocounsel James was actively present throughout, there was no per se Sixth Amendment violation; some ineffective assistance claims could not be resolved on direct appeal due to an insufficient record, while other claims, and the sufficiency and sentencing claims, were rejected.

Issues

Issue	Plaintiff's Argument (Loding)	Defendant's Argument (State/James)	Held
Whether unadmitted former senior law student participation is per se ineffective assistance	Robert’s active participation (voir dire, opening, closing) while not admitted or properly certified rendered counsel ineffective per se	Licensed lead counsel James was present and actively participated throughout; no per se violation where licensed cocounsel protected defendant’s rights	Not per se ineffective; because licensed counsel actively participated, no automatic Sixth Amendment violation
Whether Robert’s failure of MPRE terminated senior certification and made him an unauthorized practitioner	Robert believed he was certified; participation notwithstanding	Court rules require passing both UBE and MPRE; failure of MPRE after graduation terminates certification	Robert’s certification had terminated (he was an unauthorized practitioner at trial)
Whether trial counsel was ineffective under Strickland for failing to obtain written consent and other trial decisions	No written consent for Robert; counsel made prejudicial remarks/omissions (mother not called, failure to mention other alleged perpetrators, brief closing)	Some actions were legitimate strategy; licensed counsel’s performance should be evaluated under Strickland; record lacks detail on consent and reason for mother not testifying	Record insufficient to resolve written consent and mother‑witness issues on direct appeal; other complaints about opening/closing and failing to mention other perpetrators were refuted by the record (no Strickland deficiency)
Sufficiency of evidence and excessiveness of sentence	A.B. was not credible; jury could not rationally find elements beyond reasonable doubt; sentence excessive for mitigating factors	Credibility is for the jury; evidence viewed in State’s favor supports conviction; sentence within statutory limits and court considered PSI	Conviction supported by sufficient evidence; sentence not an abuse of discretion and therefore not excessive

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing deficient performance and prejudice test for ineffective assistance)
State v. Parnell, 294 Neb. 551 (procedural standards for raising ineffective‑assistance claims on direct appeal)
State v. Draper, 295 Neb. 88 (standards on ineffective‑assistance claims and sufficiency review)
State v. Ely, 295 Neb. 607 (application of Strickland and ineffective‑assistance principles)
United States v. Mouzin, 785 F.2d 682 (per se rule where an unadmitted person unlawfully represents a defendant)
United States v. Novak, 903 F.2d 883 (discussing unauthorized practice and co‑counsel dynamics)
United States v. Rimell, 21 F.3d 281 (finding no per se violation when licensed counsel actively participates)
United States v. Rosnow, 981 F.2d 970 (Eighth Circuit precedent on cocounsel effectiveness)