State v. Loding
296 Neb. 670
Neb.2017Background
- Defendant Bashir V. Loding was tried and convicted by a jury of first-degree sexual assault of a child (single count alleging multiple incidents between May 1 and Sept. 17, 2015) and sentenced to 35–50 years' imprisonment.
- The victim, A.B., testified in detail about multiple incidents of digital and penile anal and vaginal penetration; corroborating testimony and expert witnesses supported disclosure-consistency.
- Trial counsel team: licensed attorney James Schaefer (lead counsel) and Robert Schaefer (James’s son). Robert had previously been certified for limited practice as a senior law student but had graduated, passed the UBE, and failed the MPRE prior to trial. Robert participated in voir dire, opening statement, and closing argument.
- Appellant Loding raised ineffective-assistance claims (including a claim that representation by Robert, a now-unadmitted graduate, was per se ineffective), challenged evidentiary sufficiency, and argued his sentence was excessive.
- The Nebraska Supreme Court granted bypass, reviewed the record on direct appeal, and determined (1) Robert’s senior-student certification had terminated when he failed the MPRE; (2) representation by an unlicensed nonlawyer alone is a per se violation, but here licensed counsel was present throughout; and (3) most claims either lacked record support to resolve on direct appeal or were refuted by the record.
Issues
| Issue | Plaintiff's Argument (Loding) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether representation by a former senior certified law student (Robert) who was not admitted to the bar constitutes per se ineffective assistance | Robert’s active participation (voir dire, opening, closing) as an unadmitted practitioner violated Sixth Amendment and is per se ineffective | Licensed counsel James was present and actively participated throughout; no per se violation when licensed cocounsel effectively represents defendant | No per se violation; presence and active participation of licensed counsel precluded automatic reversal |
| Whether counsel’s failure to obtain written consent for Robert’s participation and related rule violations require relief under Strickland | James failed to secure required written client consent for Robert, violating court rules and prejudicing defense | Rule violation is for disciplinary process; need Strickland review to show deficient performance and prejudice | Record insufficient on direct appeal to resolve Strickland claim regarding lack of written consent; requires further development (postconviction) |
| Whether counsel’s opening/closing remarks and witness decisions (mother not called, not naming other alleged perpetrators) were ineffective | Counsel made prejudicial remarks, failed to call mother despite opening statement promise, omitted mentioning other known perpetrators, and gave an inadequate closing | Counsel pursued a deliberate defense strategy (attack credibility; claim A.B. fabricated allegations); record shows counsel addressed mother’s absence and closing was substantive | Most of these claims are refuted by the record or reflect reasonable strategy; ineffective-assistance claim denied on direct appeal except where record is inadequate |
| Sufficiency of evidence and multiplicity (single count alleging multiple incidents) | A.B. was not credible; evidence did not identify which incident jurors unanimously found beyond reasonable doubt | Credible testimony and corroboration were sufficient; State may prove multiple incidents within timeframe for one conviction | Evidence sufficient; appellate court will not reassess witness credibility; multiple-incident theory permissible under one count |
| Excessive sentence | Sentence failed to consider mitigating factors and was excessive | Sentence within statutory limits; court considered PSI and relevant factors; no abuse of discretion | Sentence (35–50 years) within statutory limits and not an abuse of discretion |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard: deficient performance and prejudice)
- State v. Parnell, 294 Neb. 551 (discusses when ineffective-assistance claims may be resolved on direct appeal)
- State v. Draper, 295 Neb. 88 (explains particularity required to raise ineffective-assistance on direct appeal and postconviction review)
- United States v. Mouzin, 785 F.2d 682 (example of courts treating representation by unadmitted persons as per se ineffective when no licensed counsel effectively participated)