State v. Loding, 296 Neb. 670

Background

Defendant Bashir V. Loding was tried and convicted by a jury of first degree sexual assault of a child based on testimony from the victim and corroboration; he was sentenced to 35–50 years' imprisonment.
Trial counsel team included a licensed attorney (James Schaefer) and his son Robert Schaefer, who participated in voir dire and delivered opening and closing statements.
Robert had graduated law school and passed the UBE but failed the MPRE before trial; his senior certified student authorization had therefore terminated under Nebraska court rules.
The record shows James was present throughout trial and interactions between defendant and Robert; defendant did not testify and called no witnesses.
On direct appeal Loding raised ineffective-assistance claims (including that unlicensed Robert’s participation was per se ineffective and that James failed to obtain written consent), challenged sufficiency of evidence, and argued his sentence was excessive.
The Nebraska Supreme Court concluded the record was sufficient to decide the per se/unlicensed-practitioner question but insufficient to resolve some Strickland-based claims on direct appeal; it rejected other ineffective-assistance claims, found the evidence sufficient, and affirmed the sentence and conviction.

Issues

Issue	Plaintiff's Argument (Loding)	Defendant's Argument (State / Counsel)	Held
Whether representation involving a former senior certified law student (Robert) who was not admitted to the bar constitutes per se ineffective assistance	Representation by an unlicensed nonlawyer (Robert) who lacked certification was per se ineffective; no need to show prejudice	Licensed co-counsel (James) was present and actively participated; effective licensed cocounsel can cure unlicensed participation	Not per se ineffective where licensed attorney actively participated throughout; no automatic relief
Whether failure to obtain defendant's written consent for Robert’s participation violated right to counsel under Strickland	James failed to secure required written consent; this violated rules and prejudiced Loding	Issue involves Strickland analysis and disciplinary remedies; record may be inadequate on prejudice	Record insufficient on direct appeal to resolve Strickland claim about written consent; requires further review (postconviction)
Whether counsel’s opening/closing and witness decisions were ineffective	Counsel misstated they would call victim’s mother and made prejudicial opening/closing choices; failed to mention other alleged perpetrators	Defense employed a coherent strategy (attack victim credibility; assert fabrication); record shows reasonable, strategic advocacy and explanations given	Majority of these claims refuted by record; not ineffective under Strickland
Sufficiency of the evidence and whether verdict specified which incident proved	Victim’s testimony was unreliable; jury did not clarify which alleged incident it relied on	State presented direct testimony and corroboration; jury may consider multiple incidents within charged timeframe	Evidence sufficient when viewed favorably to prosecution; single-count framing permitted evidence of several incidents
Excessiveness of sentence	Sentencing court failed to weigh mitigating factors properly	Sentence within statutory limits; court reviewed PSI covering relevant factors	No abuse of discretion; sentence affirmed

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing deficient performance and prejudice test 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 (requirements for preserving/pleading ineffective-assistance claims on direct appeal)
State v. Ely, 295 Neb. 607 (application of Strickland in Nebraska context)
United States v. Mouzin, 785 F.2d 682 (finding per se prejudice when unlicensed person posed as counsel)
United States v. Rosnow, 981 F.2d 970 (Eighth Circuit precedent allowing licensed cocounsel’s active participation to avoid per se rule)