State v. Sidzyik, 871 N.W.2d 803

Donald L. Sidzyik pled no contest to second‑degree sexual assault after the State amended a first‑degree charge and agreed to “stand silent” at sentencing.
At sentencing a different prosecutor relied on the presentence investigation report and recommended a substantial period of incarceration; Sidzyik’s trial counsel did not object.
The court sentenced Sidzyik to 18–20 years’ imprisonment.
On direct appeal this court held the State materially breached the plea agreement but could not resolve ineffective‑assistance claims because the record did not show whether counsel’s silence was strategic.
In a postconviction proceeding, counsel testified he did not object because he did not believe there was a breach and thought withdrawal of the plea was the only remedy; he was unaware of the option to demand specific performance (resentencing before another judge).
The postconviction court denied relief; this appeal followed.

Issue	Sidzyik's Argument	State's Argument	Held
Whether trial counsel’s failure to object to the prosecutor’s remarks was deficient under Strickland	Counsel was ineffective for not objecting to a material breach of the plea bargain	Silence was reasonable because counsel did not believe a breach occurred and thought withdrawal was the only remedy	Counsel’s performance was deficient — strategic silence based on a legal misunderstanding is unreasonable
Whether counsel’s failure to object prejudiced Sidzyik	Prejudice: but for silence Sidzyik would have withdrawn plea or demanded resentencing before a different judge	No prejudice because charge reduction was the main benefit; silence didn’t make proceedings unfair	Prejudice shown — loss of choice (withdrawal or resentencing) made proceedings fundamentally unfair
Appropriate remedy for breach combined with ineffective assistance	Request to allow withdrawal of plea or resentencing before a different judge	Opposed; argued breach not integral and no unfairness	Remanded: give Sidzyik option to (1) withdraw plea or (2) be resentenced by a different judge
Whether a timely objection would have been meritless	Sidzyik: timely objection would have been effective to protect bargain	State: objection would have lacked merit; breach immaterial	Timely objection would have had effect; postconviction court erred in finding objection would lack merit

Strickland v. Washington, 466 U.S. 668 (establishing deficient performance and prejudice test for ineffective assistance of counsel)
State v. Sidzyik, 281 Neb. 305 (holding State’s failure to remain silent was a material breach of plea agreement)
State v. Birge, 263 Neb. 77 (discussing remedies for State’s breach of plea agreements)
State v. Gonzalez‑Faguaga, 266 Neb. 72 (addressing counsel’s duty to object to prosecutorial breach and prejudice inquiry)
State v. Rocha, 286 Neb. 256 (Strickland prejudice analysis precedent)
State v. Crawford, 291 Neb. 362 (standards for reviewing mixed questions of law and fact in ineffective‑assistance claims)
State v. Armstrong, 290 Neb. 991 (standard for assessing counsel performance)
State v. Dubray, 289 Neb. 208 (procedural standards for postconviction ineffective‑assistance claims)