State v. Robeson, 25 Neb. Ct. App. 138

Background

Robeson, a 34–35-year-old former teacher, pled guilty to one count of first-degree sexual assault of a child (Class II felony) as part of a plea deal that dismissed a second count and jointly recommended a 40-to-40-year sentence.
The charged sexual acts occurred on multiple occasions between Sept. 1, 2014 and Dec. 27, 2015; Robeson admitted the relationship and sexual intercourse with a 13–14-year-old student.
At plea hearing counsel requested expedited sentencing and stated Robeson would waive a presentence investigation (PSI); the court continued sentencing and acknowledged the waiver via counsel’s representation.
At sentencing Robeson and counsel sought leniency; the court declined to consider less than the agreed 40-to-40 recommendation and Robeson affirmed he did not wish to withdraw his plea.
The district court imposed the agreed 40-to-40-year sentence. On appeal Robeson challenged (1) sentencing without a PSI/valid waiver, (2) excessiveness of the sentence, (3) imposition of identical minimum and maximum terms, and (4) ineffective assistance of trial counsel (advice to accept plea and failure to request a PSI).

Issues

Issue	Robeson’s Argument	State’s Argument	Held
Valid waiver of presentence investigation	Waiver was not knowing/voluntary; court failed to personally advise or confirm Robeson’s understanding	Waiver was valid; counsel expressly waived PSI and Robeson did not object; expedited plea context justified waiver	Waiver valid under totality of circumstances; no clear error in accepting waiver
Excessive sentence	Court failed to seriously consider mitigating factors; sentence excessive	Sentence within statutory range; court considered factors and parties jointly recommended sentence	No abuse of discretion; sentence not excessive
Identical minimum and maximum terms (40–40) under §29‑2204	Violates §29‑2204 and denies realistic parole opportunity	§29‑2204 changes don’t apply because offense had elements before Aug 30, 2015; 40–40 valid under prior law	40–40 valid: statute inapplicable here; identical min/max is an indeterminate sentence in Nebraska
Ineffective assistance — advice to accept plea	Counsel rendered deficient advice by urging acceptance of unwarranted lengthy sentence	Plea was knowing/voluntary; plea reduced exposure (two IB felonies to one II); no prejudice from counsel’s advice	Claim without merit: record shows plea was voluntary and beneficial to Robeson
Ineffective assistance — failure to request PSI	Counsel erred by not seeking PSI prior to sentencing	Record shows waiver of PSI; conversations off-record so appellate record insufficient to adjudicate	Record insufficient on direct appeal to resolve this claim; not decided on merits

Key Cases Cited

State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (Neb. 2012) (discusses waiver of PSI and adequacy of court advisories)
State v. Kellogg, 10 Neb. App. 557, 633 N.W.2d 916 (Neb. Ct. App. 2001) (failure to advise of PSI or record waiver required vacatur)
State v. Tolbert, 223 Neb. 794, 394 N.W.2d 288 (Neb. 1986) (PSI may be waived)
Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (Neb. 1946) (waiver may be inferred from silent acquiescence to counsel’s actions)
State v. Sayers, 211 Neb. 555, 319 N.W.2d 438 (Neb. 1982) (defendant present and silent while counsel acts may imply waiver)
State v. Artis, 296 Neb. 606, 894 N.W.2d 349 (Neb. 2017) (same min and max terms do not convert an indeterminate sentence into a determinate one)
State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (Neb. 2016) (appellate standard for reviewing alleged excessive sentence)
State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (Neb. 2015) (preservation and review standards for ineffective assistance claims on direct appeal)
State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (Neb. 2017) (when ineffective-assistance claims can be resolved on direct appeal)
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (Neb. 2014) (ineffective assistance: review when record conclusively shows lack of prejudice)
State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (Neb. 2015) (Strickland standard restated)