State v. Theisen, 306 Neb. 591

Christine Theisen was charged by amended information with multiple counts, including conspiracy to distribute/deliver hydrocodone and tramadol and child abuse; plea agreement left three counts (two conspiracies and felony child abuse).
The amended information tracked the conspiracy statute and alleged an overt act “to wit: [Theisen] was buying and/or selling [hydrocodone and tramadol].”
At the plea colloquy Theisen admitted buying and selling painkillers, that her daughters sometimes texted potential buyers, that threats were received, and that she "worked with others" in the ring.
The district court found a sufficient factual basis, accepted guilty pleas, and imposed consecutive prison terms.
Theisen appealed, arguing (1) the information insufficiently alleged overt acts, (2) the factual basis failed under Wharton’s Rule (because distribution requires buyer and seller), (3) ineffective assistance for failure to advise about Wharton’s Rule, and (4) ineffective assistance due to counsel’s alleged conflict from prior representation of a material witness.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Theisen)	Held
Sufficiency of information to allege an overt act	Information mirrors statutory conspiracy elements and expressly alleges overt acts (buying/selling), satisfying §29-2014	Overt-act allegation merely restates the underlying offense and fails to expressly allege an act separate from conspiring	Information sufficient; overt-act allegation adequate
Sufficiency of factual basis under Wharton’s Rule	Factual basis (daughters texting buyers, threats, working with others) shows participation beyond simple buyer–seller pairs	Distribution necessarily requires buyer and seller, so conspiracy charge barred by Wharton’s Rule	Factual basis sufficient; Wharton’s Rule inapplicable here
Ineffective assistance for failure to advise on Wharton’s Rule	No prejudice because Wharton’s Rule does not apply; counsel’s advice could not be prejudicial	Counsel failed to advise that Wharton’s Rule barred conspiracy convictions	Claim fails—no prejudice shown; assignment without merit
Ineffective assistance due to conflict of interest (prior representation of material witness)	No record support to resolve on direct appeal	Counsel previously represented material witness (Brooks Boyer), creating an actual conflict that impaired representation	Record insufficient to resolve; claim not decided on direct appeal

State v. Marco, 230 Neb. 355 (1988) (an overt act must be expressly alleged; cannot merely state that the parties committed an overt act)
State v. Utterback, 240 Neb. 981 (1992) (applies Wharton’s Rule; buyer alone cannot be charged with conspiracy to distribute)
Peterson v. Houston, 284 Neb. 861 (2012) (information challenged on appeal is sufficient unless so defective that it cannot charge the offense)
In re Interest of Jordan B., 300 Neb. 355 (2018) (describing required elements and sufficiency of an information)
State v. Jenkins, 303 Neb. 676 (2019) (factual basis requirement for plea; State must present sufficient facts to support elements)
State v. Manjikian, 303 Neb. 100 (2019) (standard for deciding ineffective-assistance claims on direct appeal)
State v. Hood, 301 Neb. 207 (2018) (test for whether ineffective-assistance claims can be resolved on direct appeal)