State v. Loding
296 Neb. 670
| Neb. | 2017Background
- Defendant Bashir V. Loding was tried by jury and convicted of first‑degree sexual assault of a child based on testimony from the child victim and corroboration; he did not testify or call witnesses.
- The information alleged repeated sexual penetration of a child under 12 between May 1 and September 17, 2015.
- Trial counsel team included a licensed attorney (James Schaefer) and his son Robert Schaefer, who participated in critical stages (voir dire, opening, closing). Robert had graduated law school but failed the MPRE before trial and therefore no longer qualified under Nebraska’s senior‑student certification rule.
- Loding appealed claiming: (1) per se ineffective assistance because an unadmitted/former senior certified law student participated; (2) lack of valid written consent to that participation; (3) other Strickland‑based deficiencies in opening/closing and witness decisions; (4) insufficient evidence; and (5) excessive sentence.
- The Nebraska Supreme Court held there was no per se Sixth Amendment violation because licensed counsel actively participated throughout; some ineffective‑assistance claims could not be resolved on direct appeal because the record was inadequate; other claimed deficiencies were rejected on the record; evidence sufficed; and the sentence was within statutory limits and not an abuse of discretion.
Issues
| Issue | Plaintiff's Argument (Loding) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Per se ineffective assistance when an unadmitted former senior certified law student participated | Representation by Robert (not admitted; failed MPRE) is per se ineffective, entitling Loding to relief without prejudice showing | No per se violation because licensed attorney James was present and actively participated at all critical stages | No per se rule; presence/active participation of licensed counsel avoided per se deprivation |
| Failure to obtain written consent for participation by nonadmitted counsel | James failed to obtain required written consent for Robert’s participation, violating rules and constituting ineffective assistance | Procedural/disciplinary rule breach does not automatically establish Strickland prejudice; adequacy of record controls review | Record insufficient on direct appeal to resolve under Strickland; requires further fact development (postconviction) |
| Specific trial performance complaints (opening/closing, witness choices) | Counsel misstated they would call victim’s mother, failed to explain absence, omitted other alleged perpetrators, and gave inadequate closing | Counsel pursued a deliberate defense theory (victim fabricated allegations); record shows adequate closing and strategic choices | Most performance claims refuted by record; strategic decisions reasonable; not ineffective |
| Sufficiency of evidence | Child testimony was unreliable due to age, prior abuse, confusion — conviction unsupported | State: testimony + corroboration and expert testimony were sufficient | Evidence sufficient when viewed in light most favorable to the State; jury could find guilt beyond a reasonable doubt |
| Excessive sentence | Trial court failed to consider mitigating factors; sentence (35–50 yrs) excessive | Sentence within statutory range for Class IB and court considered PSI and sentencing factors | Sentence within statutory limits and not an abuse of discretion |
Key Cases Cited
- State v. Parnell, 294 Neb. 551 (discussing standards for resolving ineffective assistance on direct appeal)
- Strickland v. Washington, 466 U.S. 668 (establishing deficient performance and prejudice test for ineffective assistance)
- U.S. v. Mouzin, 785 F.2d 682 (court recognizing representation by unadmitted person can be per se ineffective)
- U.S. v. Rimell, 21 F.3d 281 (Eighth Circuit: licensed co‑counsel active participation can avoid per se rule)
- People v. Jacobs, 6 N.Y.3d 188 (New York Court of Appeals discussing active participation of licensed counsel as limiting per se rule)