State v. Loding, 296 Neb. 670

Background

Defendant Bashir V. Loding was charged with first-degree sexual assault of a child based on allegations that between May 1 and September 17, 2015, he sexually penetrated A.B., a child under 12. Trial occurred April 2016.
A.B. testified with corroboration from an older sister; experts described the disclosure as consistent with child-sexual-assault victims.
Loding did not testify or call witnesses; a jury convicted him of first-degree sexual assault of a child. He was sentenced to 35–50 years’ imprisonment (within statutory limits).
Trial counsel team included licensed attorney James Schaefer and his son Robert Schaefer. Robert, a recent law graduate, participated in voir dire and delivered opening and closing statements believing he remained a senior certified law student.
Record showed Robert had passed the UBE but failed the MPRE before trial; under Nebraska rules this termination of the “bar examination” meant his senior certification had ended and he was an unlicensed nonlawyer at trial.
On direct appeal Loding raised ineffective-assistance claims (including that unlicensed representation was per se ineffective), insufficiency of the evidence, and that the sentence was excessive. The Nebraska Supreme Court affirmed.

Issues

Issue	Loding's Argument	State/Defense Argument	Held
Whether representation at trial by a former senior certified law student (Robert), who was unlicensed at trial, is per se ineffective assistance of counsel	Robert’s participation (opening/closing) though unlicensed violated Loding’s Sixth Amendment right and is per se ineffective	Because licensed attorney James was present and actively participated at all critical stages, there was not a per se violation; effective licensed cocounsel can cure unlicensed participation	No per se violation; presence/active participation of licensed counsel means claim must be assessed under Strickland
Whether Robert’s failure to have valid senior certification (failure of MPRE) terminated his ability to practice under the senior law-student rule	Robert remained competent; MPRE is a technical/licensing formality not affecting competence	MPRE is a substantive admission requirement; failure terminates senior certification and renders participant an unlicensed nonlawyer	Robert’s failure of the MPRE terminated his senior certification; he was an unlicensed nonlawyer at trial
Whether counsel’s conduct (including absence of written consent for Robert, statements about calling A.B.’s mother, and opening/closing performance) was ineffective under Strickland	Counsel made prejudicial remarks, failed to obtain written consent for unlicensed participation, and acted deficiently in witness strategy and argument	Defense strategy (attack credibility; theory that A.B. fabricated) was reasonable; record shows closing and voir dire were adequate; written-consent/rule violations implicate disciplinary process but Strickland review is limited by the record	Some claims (lack of written consent; reason for counsel’s comment about calling mother) raise serious issues but record is insufficient for Strickland resolution; other challenged aspects (closing, failure to mention other alleged perpetrators) were not deficient
Whether the evidence was insufficient to convict or to identify which incident jury found proven	A.B.’s youth, confusion, prior victimization, and alleged inconsistencies undercut credibility and sufficiency; need clarity on which incident supported conviction	Credibility/resolution of conflicts are for the jury; State may present multiple incidents within a timeframe to support one charge	Sufficient evidence viewed in light most favorable to State; jury could find guilt beyond reasonable doubt; presenting multiple incidents within timeframe is permissible
Whether the 35–50 year sentence was excessive	Court failed to consider appropriate mitigating factors	Sentence within statutory range; court reviewed presentence report addressing required factors; broad sentencing discretion	No abuse of discretion; sentence affirmed

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing two-prong test for ineffective assistance of counsel)
State v. Parnell, 294 Neb. 551 (standard for deciding ineffective-assistance claims on direct appeal)
State v. Draper, 295 Neb. 88 (procedural rules for raising ineffective-assistance claims on direct appeal)
State v. Ely, 295 Neb. 607 (cited for Strickland burden and analysis)
U.S. v. Rosnow, 981 F.2d 970 (8th Cir.) (licensed cocounsel’s active participation can avert per se rule)
U.S. v. Novak, 903 F.2d 883 (2d Cir.) (examples of courts finding unlicensed representation per se ineffective)