State v. Loding, 296 Neb. 670

Background

Defendant Bashir V. Loding was tried and convicted by a jury of first‑degree sexual assault of a child (charged for offenses between May 1 and Sept 17, 2015); sentence 35–50 years’ imprisonment.
Victim A.B. (born 2006) testified in detail about multiple incidents; corroborating testimony from an older sister and expert witnesses on child disclosure.
Trial team included licensed attorney James Schaefer and his son Robert Schaefer, a recent law school graduate who had participated in voir dire, opening statement, and closing argument.
Robert had been previously certified as a senior law student but, before trial, failed the MPRE after graduation; under Nebraska court rules that terminated his senior certification.
On appeal Loding raised ineffective assistance claims (including that representation by Robert was per se ineffective and that James failed to obtain written consent), challenged evidentiary sufficiency, and argued the sentence was excessive.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether representation by a former senior certified law student (Robert) who was not admitted to the bar is per se ineffective assistance	Loding: representation by Robert (nonadmitted at time of trial) deprived him of effective counsel per se	State: licensed cocounsel James was present throughout and corrected any defects; no per se violation	No per se violation where licensed attorney actively participated throughout; Robert’s participation was unauthorized but cocounsel’s presence avoided a complete denial of counsel
Whether Robert’s failure to be senior‑certified (due to MPRE failure) terminated his certification and matters substantively	Loding: Robert’s status still adequate; MPRE is technical	State: MPRE is substantive prerequisite to admission; failure terminates senior practice	MPRE is part of the bar examination for purposes of senior certification; Robert’s certification had terminated before trial
Whether trial counsel was ineffective under Strickland (including failure to obtain written consent, and alleged deficiencies in opening/closing and calling witnesses)	Loding: James failed to secure written consent and counsel made prejudicial strategic errors (mother not called as promised; closing too brief; failure to name other alleged perpetrators)	State: strategic choices were reasonable; record shows robust closing, and mother’s non‑testimony was known and addressed; some claims cannot be resolved on record	Some Strickland claims (written consent; unexplained opening‑statement promise about mother) raise serious concerns but the record is insufficient to resolve them on direct appeal; other claims are refuted by record (closing argument adequate; strategy consistent)
Sufficiency of evidence and excessiveness of sentence	Loding: A.B. lacked credibility; jury could not identify which act was proved; sentence disproportionate	State: testimony and corroboration suffice; State may present multiple incidents within timeframe; sentence within statutory limits and court considered PSI	Evidence was sufficient when viewed in light most favorable to prosecution; multiple incidents may support one count within timeframe; sentence not an abuse of discretion

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing two‑prong ineffective assistance test) (prejudice and deficient performance standard)
State v. Parnell, 294 Neb. 551 (2016) (standards for deciding ineffective assistance claims on direct appeal)
State v. Ely, 295 Neb. 607 (2017) (application of Strickland in Nebraska postconviction context)
United States v. Mouzin, 785 F.2d 682 (9th Cir. 1986) (representation by nonadmitted person can be per se ineffective)
United States v. Rosnow, 981 F.2d 970 (8th Cir. 1992) (licensed cocounsel’s active participation can avoid a per se violation)