State v. Loding
296 Neb. 670
| Neb. | 2017Background
- Defendant Bashir V. Loding was tried for first degree sexual assault of a child (alleged offenses May–Sept 2015). A.B., the victim, testified in detail; the jury convicted.
- Loding was represented at trial by licensed attorney James Schaefer and James’s 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.
- Robert’s senior-student certification terminated under Nebraska court rules because he failed the MPRE after graduation; thus he was a nonlawyer at trial. James remained the admitted lead counsel and was present throughout.
- Loding appealed alleging: (1) per se ineffective assistance because an unadmitted former senior law student participated; (2) lack of valid written consent to Robert’s participation; (3) additional Strickland-based ineffective assistance claims (opening/closing, witnesses); (4) insufficient evidence; and (5) excessive sentence.
- The Nebraska Supreme Court held the record sufficed to decide the per se question and concluded there was no per se violation because admitted counsel actively participated; other Strickland claims (consent and some tactical choices) could not be resolved on direct appeal due to an inadequate record; remaining claims (other ineffective-assistance allegations, sufficiency, sentence) were rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Per se ineffective assistance for representation by former senior law student | Loding: representation by Robert (not admitted) is per se ineffective; automatic relief | State: Robert’s participation was harmless because licensed co-counsel James was present and effective | Court: No per se violation where licensed co-counsel actively participates; Robert had lost certification when he failed MPRE, but presence of licensed counsel precludes automatic reversal |
| Written consent to student participation | Loding: James did not obtain required written consent to Robert’s participation | State: disciplinary rule issue; argues counsel still competent | Held: Record insufficient on direct appeal to resolve Strickland prejudice inquiry; disciplinary process exists, but ineffective-assistance question requires more development |
| Opening/closing statements and witness choices (Strickland) | Loding: counsel made prejudicial remarks, failed to call/justify absence of mother, omitted other possible perpetrators, and gave inadequate closing | State: counsel pursued a coherent defense strategy (A.B. fabricated allegations); many criticisms conflict with that strategy | Held: Some points (failure to call/announce mother) not resolvable on record; other claims refuted—counsel’s closing and strategy were reasonable under Strickland |
| Sufficiency of evidence | Loding: A.B. was not credible; evidence did not conclusively prove elements or which incident jurors found | State: testimony and expert corroboration support conviction; State may aggregate incidents within timeframe | Held: Evidence, viewed in light most favorable to prosecution, was sufficient; multiple incidents may be used to support single-count conviction |
| Excessive sentence | Loding: trial court failed to consider mitigating factors; sentence (35–50 years) excessive | State: sentence within statutory limits and court considered presentence report | Held: No abuse of discretion; sentence within statutory range and sentencing factors were considered |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- State v. Parnell, 294 Neb. 551 (Neb. 2016) (standards for resolving ineffective-assistance claims on direct appeal)
- State v. Draper, 295 Neb. 88 (Neb. 2016) (particularity required for raising ineffective-assistance on direct appeal)
- United States v. Mouzin, 785 F.2d 682 (9th Cir. 1986) (representation by unauthorized practitioner can be per se Sixth Amendment deprivation)
- United States v. Rosnow, 981 F.2d 970 (8th Cir. 1992) (no per se violation where licensed co-counsel actively participated)