903 N.W.2d 677
Neb. Ct. App.2017Background
- Defendant Brian P. Robeson, a teacher, pled guilty to one count of first-degree sexual assault of a child (Class II felony) pursuant to a plea agreement that dismissed a second count and jointly recommended a 40-to-40-year sentence.
- The charged sexual conduct occurred repeatedly between Sept. 1, 2014 and Dec. 27, 2015; defendant was in his mid-30s and the victim was 13–14.
- At plea hearing defense counsel indicated Robeson waived a presentence investigation report (PSR) and asked for expedited sentencing; the court continued to an expedited sentencing date.
- At sentencing defense counsel and Robeson made mitigating statements and asked for leniency; the court denied a short postponement and imposed the agreed 40-to-40-year sentence.
- On appeal Robeson challenged (1) validity of the PSR waiver, (2) sentence as excessive, (3) legality of identical minimum and maximum terms, and (4) ineffective assistance of trial counsel (advice to accept plea and failure to request a PSR).
Issues
| Issue | Robeson (appellant) argument | State / District Court argument | Held |
|---|---|---|---|
| Validity of waiver of presentence investigation report | Waiver was not knowing/voluntary; court failed to inquire sufficiently and counsel’s assent alone is insufficient | The court asked about the waiver, defense counsel affirmed Robeson’s waiver, Robeson did not object and sought expedited sentencing | Waiver valid under the totality of circumstances; no clear error in finding waiver valid |
| Sentence excessive | Court failed to seriously consider mitigating factors; 40-to-40 years is excessive | Sentence within statutory limits; court considered factors and parties jointly recommended the term | Not excessive; no abuse of discretion; court considered mitigating factors |
| Legality of identical minimum and maximum (40–40) | Violates amended § 29-2204 and creates de facto determinate sentence denying meaningful parole | The offense included acts before Aug. 30, 2015 so 2015 amendments do not apply; identical terms are an indeterminate sentence under prior law | 2015 amendments do not apply; 40–40 valid under prior statute and is not a de facto determinate sentence |
| Ineffective assistance of counsel (plea advice and PSR waiver) | Counsel deficient for advising acceptance of the plea and failing to request PSR | Plea was knowing, voluntary, and beneficial (reduced charges); record insufficient to evaluate counsel’s advice re: PSR waiver | Claim that counsel advised plea is without merit (no prejudice); claim re: failure to request PSR cannot be resolved on direct appeal (record insufficient) |
Key Cases Cited
- State v. Qualls, 284 Neb. 929 (Neb. 2012) (discusses waiver and advisement regarding presentence investigation report)
- State v. Kellogg, 10 Neb. App. 557 (Neb. Ct. App. 2001) (holding sentencing without a PSR and without on-record waiver was error)
- State v. Collins, 292 Neb. 602 (Neb. 2016) (standard for reviewing alleged excessive sentences)
- State v. Artis, 296 Neb. 606 (Neb. 2017) (holding identical minimum and maximum terms still constitute an indeterminate sentence)
- Casares v. State, 291 Neb. 150 (Neb. 2015) (direct-appeal standards for ineffective-assistance claims when trial counsel differs from appellate counsel)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part test for ineffective assistance of counsel)