State v. Loding, 296 Neb. 670

Background

Defendant Bashir V. Loding was tried for first-degree sexual assault of a child based on allegations by the victim, A.B., of multiple incidents between May and September 2015; a jury convicted him and the district court sentenced him to 35–50 years' imprisonment.
Trial counsel team included licensed attorney James Schaefer and Robert Schaefer, James’s son, who previously had been certified as a senior law student but had graduated and failed the MPRE before trial.
Robert participated in voir dire and delivered opening and closing statements; James was present throughout the trial and remained lead counsel.
On appeal Loding claimed (1) ineffective assistance because an unadmitted former senior certified law student participated in critical stages, (2) lack of valid written consent to that representation, (3) other trial counsel errors during opening/closing and witness strategy, (4) insufficient evidence, and (5) excessive sentence.
The Nebraska Supreme Court found Robert’s senior certification had terminated when he failed the MPRE, treated his participation as unauthorized practice, but declined to hold per se Sixth Amendment violation because licensed co-counsel was actively participating; some ineffective-assistance claims could not be resolved on direct appeal for lack of record; sufficiency and sentence claims were rejected.

Issues

Issue	Plaintiff's Argument (Loding)	Defendant's Argument (State)	Held
Whether representation by a former senior certified law student who was not admitted constitutes per se ineffective assistance	Robert’s active participation (opening/closing) as an unadmitted practitioner deprived Loding of counsel per se	Licensed cocounsel (James) actively participated and supervised; no per se violation if licensed counsel protected defendant’s rights	No per se violation; presence and active participation of licensed counsel avoided a complete denial of counsel
Whether Robert’s senior certification had terminated and whether that makes his assistance ineffective	Certification remained or his participation was harmless because he was competent	Certification terminated when he failed the MPRE; unauthorized practice occurred but not automatically prejudicial given licensed counsel’s role	Certification terminated (failure of MPRE counted as failing the “bar examination”); unauthorized practice occurred but not per se ineffective because licensed counsel was active
Whether specific counsel errors (failure to secure written consent; promising mother as witness; omissions in closing) constituted ineffective assistance under Strickland	Failure to obtain written consent and unexplained opening/closing omissions were prejudicial and deficient	Strategic choices justified; record does not show deficient performance or is inadequate to review some claims on direct appeal	Some claims (written consent; reasons for mother not testifying) cannot be resolved on direct appeal due to inadequate record; other complaints about opening/closing refuted by record
Whether evidence was insufficient and whether sentence was excessive	A.B. lacked credibility; jury could not reliably identify specific incidents; sentence failed to consider mitigating factors	Credibility and weight are jury matters; State may prove multiple incidents within timeframe; sentence within statutory limits and considered PSI	Evidence sufficient when viewed in light most favorable to prosecution; multiple incidents may support a single count; sentence not an abuse of discretion

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes deficient performance and prejudice standard 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 requirements for raising ineffective-assistance claims on direct appeal)
United States v. Mouzin, 785 F.2d 682 (treats representation by an unadmitted person as per se ineffective where no licensed counsel effectively participates)
United States v. Rosnow, 981 F.2d 970 (authority that licensed co-counsel’s active participation can avoid a per se deprivation of counsel)