State v. Loding
296 Neb. 670
| Neb. | 2017Background
- Bashir V. Loding was tried and convicted by a jury of first‑degree sexual assault of a child (single-count information alleging multiple incidents between May 1 and Sept 17, 2015). The victim testified in detail; corroborating testimony and expert testimony supported the disclosure.
- Loding was represented at trial by licensed attorney James Schaefer and by Robert Schaefer, James’s son, who had previously been certified as a senior law student but had graduated and failed the MPRE before the trial. Robert participated in voir dire, opening statement, and closing argument.
- Robert’s failure of the MPRE terminated his senior‑certified practice status under Nebraska court rules, so he was an unlicensed nonlawyer at trial. James was present throughout and led the defense.
- Loding did not testify or call other witnesses; the jury convicted and the court sentenced him to 35 to 50 years’ imprisonment (within statutory range). Loding appealed directly.
- On appeal Loding argued (reordered): (1) ineffective assistance of counsel — per se because Robert was unlicensed and participated; (2) ineffective assistance for failure to obtain written consent and for alleged deficiencies in opening/closing and witness decisions; (3) insufficiency of the evidence; and (4) excessive sentence.
Issues
| Issue | Plaintiff's Argument (Loding) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether representation in part by a nonlawyer (former senior certified student) is per se ineffective assistance | Robert was not licensed at trial (lost certification after failing MPRE); his active participation rendered Loding’s assistance of counsel constitutionally ineffective per se | No per se violation because a licensed attorney (James) actively participated and was present during all critical stages | No per se violation; presence and active participation of licensed counsel avoided a per se denial of the right to counsel |
| Whether Robert’s MPRE failure terminated his senior certified status and thus made him a nonlawyer | MPRE is part of the "bar examination" under Nebraska rules; failure terminated certification before trial | State argued MPRE is a technical/ethical requirement separate from legal ability | Court: MPRE is substantive to admission; Robert’s certification had terminated and he was an unauthorized practitioner at trial |
| Whether counsel was ineffective under Strickland for failing to obtain written consent, and for conduct in opening/closing and witness decisions | James failed to secure written consent for Robert’s participation; counsel made prejudicial statements and failed to call/explain absence of certain witnesses (mother) and omitted mention of other alleged perpetrators | State: even if rule violations, Strickland standard governs ineffective assistance; licensed counsel’s strategy was reasonable and record does not show prejudice | Court: Record insufficient to resolve the written‑consent claim and the opening‑statement/mother‑witness issue on direct appeal; other Strickland claims refuted by record (defense strategy reasonable; closing adequate) |
| Sufficiency of the evidence and possible variance/multiple‑incident problem | A.B.’s credibility was weak; confusion about timing/identity of prior assaults; jury did not indicate which incident(s) supported verdict | State: victim’s testimony and corroboration were sufficient; State may present multiple incidents within a timeframe to support one charge | Court: Viewing evidence in light most favorable to prosecution, evidence was sufficient; no merit to multi‑incident argument |
| Excessive sentence | Sentence failed to account for mitigating factors | State: sentence within statutory range and sentencing court considered PSI factors | Court: Sentence (35–50 years) within statutory limits; no abuse of discretion found |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong test for ineffective assistance of counsel)
- State v. Parnell, 294 Neb. 551 (direct‑appeal standards for ineffective assistance claims and when record suffices)
- State v. Draper, 295 Neb. 88 (procedural rules on raising ineffective assistance on direct appeal)
- United States v. Rimell, 21 F.3d 281 (Eighth Circuit authority on co‑counsel participation by unlicensed individuals when licensed counsel actively participates)