State v. Loding, 296 Neb. 670

Background

Defendant Bashir V. Loding was tried for first‑degree sexual assault of a child based on allegations that between May 1 and Sept. 17, 2015 he repeatedly anally and vaginally penetrated A.B., a child under 12; the child and an older sister testified for the State.
At trial, lead counsel James Schaefer (a licensed attorney) was assisted by Robert Schaefer, who had previously been authorized to practice as a senior certified law student but had graduated and failed the MPRE before the trial. Robert participated in voir dire, gave opening statement, and gave closing argument.
Robert’s senior certification terminated pretrial because Nebraska rules treat failure of the MPRE (as part of the “bar examination”) as disqualifying. Robert therefore was an unlicensed nonlawyer at trial.
The jury convicted Loding of first‑degree sexual assault of a child; court sentenced him to 35–50 years’ imprisonment. Loding appealed, raising ineffective‑assistance claims (including that unlicensed participation was per se deficient and that written consent for Robert was lacking), insufficiency of the evidence, and that the sentence was excessive.
The Supreme Court considered whether unlicensed participation by Robert was a per se Sixth Amendment violation when licensed cocounsel actively participated, and evaluated multiple ineffective‑assistance claims under Strickland v. Washington.

Issues

Issue	Plaintiff's Argument (Loding)	Defendant's Argument (State)	Held
Whether representation involving a former senior certified law student (unlicensed at trial) constitutes per se ineffective assistance	Robert’s active participation (opening, closing) as a nonlawyer produced a per se denial of counsel	Licensed cocounsel James was present and actively participated; effective assistance can be provided by licensed cocounsel despite unlicensed co‑counsel	No per se violation where licensed cocounsel actively participated; no automatic reversal
Whether counsel’s failure to obtain written consent for Robert and related rule breaches required relief	Lack of written consent and rule violation deprived Loding of effective assistance	Any rule violation is disciplinary but not necessarily ineffectiveness under Strickland; licensed counsel may have provided effective assistance	Record insufficient on direct appeal to resolve the Strickland claim about lack of written consent; requires further postconviction review
Whether other alleged counsel errors (opening/closing, failing to call/explain mother, not naming other alleged perpetrators) were ineffective assistance	Counsel’s statements and omissions were prejudicial and inconsistent	Counsel pursued a coherent defense (A.B. fabricated allegations); strategic choices were reasonable	Most such claims refuted by the record; where record is silent (e.g., why mother was not called after opening note), the record is insufficient to decide on direct appeal
Whether evidence was insufficient to support conviction	A.B. was young, had prior abuse history, and was inconsistent/confused; credibility undermines sufficiency	Trial testimony and expert corroboration support conviction; credibility determinations are for the jury	Evidence, viewed in the light most favorable to the State, was sufficient; appellate court will not reweigh credibility
Whether the sentence (35–50 years) was excessive	Sentencing court failed to weigh mitigating factors properly	Sentence is within statutory range and court considered presentence report/factors	No abuse of discretion; sentence affirmed

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two‑part ineffective assistance test: deficient performance and prejudice)
State v. Parnell, 294 Neb. 551 (standards for reviewing 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 (discusses Strickland burden in Nebraska)
United States v. Mouzin, 785 F.2d 682 (9th Cir. 1986) (holding unlicensed representation can be a per se Sixth Amendment violation)
U.S. v. Rosnow, 981 F.2d 970 (8th Cir. 1992) (licensed cocounsel’s active participation can preclude per se rule)