State v. Loding
296 Neb. 670
Neb.2017Background
- Defendant Bashir V. Loding was tried and convicted by a jury of first-degree sexual assault of a child based on testimony from the child victim and corroborating witnesses; he was sentenced to 35–50 years' imprisonment.
- Trial counsel team included a licensed attorney (James Schaefer) and his son Robert Schaefer, who had previously been certified as a senior law student but had graduated and failed the MPRE before trial. Robert participated in voir dire, opening statement, and closing.
- The record shows James was present throughout trial and supervised interactions; Robert’s failure of the MPRE terminated any senior certified practice status under Nebraska court rules.
- Loding raised on direct appeal claims of ineffective assistance: (1) per se ineffective assistance because Robert was not licensed; (2) lack of valid written consent to representation by a certified law student; (3) prejudicial opening/closing and witness decisions by counsel. He also challenged sufficiency of the evidence and alleged his sentence was excessive.
- The Nebraska Supreme Court reviewed whether the record allowed resolution on direct appeal, applied Strickland v. Washington standards for ineffective assistance, and assessed sufficiency and sentencing discretion.
Issues
| Issue | Plaintiff's Argument (Loding) | Defendant's Argument (State / Counsel) | Held |
|---|---|---|---|
| Per se ineffective assistance because unlicensed former senior law student participated | Representation by Robert (not admitted; failed MPRE) is a per se denial of effective assistance | James (licensed) actively participated and supervised; co-counsel presence prevents per se rule | No per se violation where licensed counsel actively participated; Robert was a nonlawyer but James’s presence avoids complete denial of counsel |
| Failure to obtain written consent and related Rule violations (Strickland claim) | Counsel failed to secure required written consent for unlicensed student’s participation, rendering assistance ineffective | Rule violation may be disciplinary, but Strickland prejudice must be shown; record insufficient to decide on direct appeal | Record insufficient to resolve on direct appeal whether Strickland prejudice occurred; claim preserved for postconviction review |
| Opening/closing statements and witness decisions (mother not called; other perpetrators not emphasized; short closing) | Counsel’s opening/closing and witness strategy prejudiced defense | Defense pursued a coherent strategy (attack victim credibility; assert fabrication); choices were strategic | No ineffective assistance: record shows reasonable, consistent strategic decisions; specific claims refuted by record |
| Sufficiency of evidence and excessiveness of sentence | Victim not credible; jury verdict ambiguous as to which incident; sentence failed to consider mitigating factors | Evidence (victim testimony, corroboration) suffices; State may prove multiple acts within timeframe; sentence within statutory limits and court considered presentence report | Evidence sufficient when viewed for prosecution; jury could find elements beyond reasonable doubt; sentence not an abuse of discretion and affirmed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- State v. Parnell, 294 Neb. 551 (standard for resolving ineffective-assistance claims on direct appeal)
- State v. Draper, 295 Neb. 88 (procedural rules on raising ineffective-assistance claims on direct appeal)
- United States v. Mouzin, 785 F.2d 682 (9th Cir. 1986) (unlicensed representation can be per se ineffective)
- United States v. Rosnow, 981 F.2d 970 (8th Cir. 1992) (licensed co-counsel’s active participation can prevent per se rule)