State v. Loding, 296 Neb. 670

Background

Defendant Bashir V. Loding was tried (April 2016) and convicted by a jury of first degree sexual assault of a child; sentence 35–50 years imprisonment (within statutory limits).
Alleged offense occurred between May 1 and Sept 17, 2015; victim (A.B.) testified in detail and her older sister and experts corroborated aspects of disclosure.
Trial counsel team: licensed attorney James Schaefer (lead) and his son Robert Schaefer, who had previously been certified as a senior law student but had graduated and failed the MPRE before trial; Robert participated in voir dire, opening statement, and closing argument.
Appellant raised ineffective assistance of counsel claims (including that representation by Robert was per se ineffective and that James failed to obtain written consent), insufficiency of the evidence, and excessive sentence.
Court reviewed whether an unadmitted individual’s active role alongside licensed counsel constitutes per se ineffective assistance and whether record sufficed to resolve Strickland claims on direct appeal.

Issues

Issue	Plaintiff's Argument (Loding)	Defendant's Argument (State)	Held
Whether representation by a former senior certified law student (unadmitted) who participated in critical stages is per se ineffective assistance	Robert’s active participation (opening, closing, voir dire) while not admitted or properly certified deprived Loding of effective counsel	Presence and active participation of licensed counsel (James) throughout preserved effective assistance; no per se rule applies	No per se violation; licensed cocounsel’s active participation precluded per se finding
Whether failure to obtain written consent for uncertified counsel rendered assistance ineffective under Strickland	James failed to obtain required written consent for Robert’s participation, violating court rules and prejudicing Loding	Rule violation is disciplinary, but prejudice under Strickland must be shown; record insufficient on direct appeal	Record insufficient to resolve Strickland claim on direct appeal; requires further factfinding/postconviction review
Whether trial counsel’s opening/closing and witness choices were constitutionally deficient	Counsel misstated they would call victim’s mother and gave an allegedly inadequate closing; failed to identify other alleged perpetrators	Defense strategy was consistent (impeach victim, assert fabrication); record shows adequate closing and tactical choices	No ineffective assistance as to closing; record inconclusive regarding why mother was not called, so direct appeal inadequate on that point
Sufficiency of the evidence and alleged multiplicity ambiguity	A.B. was not credible; ambiguity over which alleged incidents formed basis of conviction	Credibility is for jury; State may present multiple incidents within a timeframe to prove one count	Evidence sufficient when viewed for the State; multiplicity argument fails
Excessive sentence	Sentence failed to account for mitigating factors and was excessive	Sentence within statutory range; court considered PSI and relevant factors	No abuse of discretion; sentence affirmed

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing two-prong ineffective assistance standard) (U.S. 1984)
State v. Parnell, 294 Neb. 551 (discussing when ineffective-assistance claims can be resolved on direct appeal) (Neb. 2016)
State v. Draper, 295 Neb. 88 (clarifying particulars for raising ineffective-assistance claims on direct appeal) (Neb. 2016)
U.S. v. Mouzin, 785 F.2d 682 (holding unlicensed representation is per se ineffective in certain circumstances) (9th Cir. 1986)
U.S. v. Rosnow, 981 F.2d 970 (explaining licensed co-counsel’s active participation can negate a per se rule) (8th Cir. 1992)