State v. Thomas, 977 N.W.2d 258

Background

Rubin J. Thomas was originally charged with two counts of first-degree murder and a firearm enhancement arising from events of July 11 and July 24, 2019; the State later amended charges to include attempted burglary and alleged habitual criminal status.
In April 2021 Thomas accepted a plea agreement and entered no contest pleas to conspiracy to commit robbery (July 24) and conspiracy to commit burglary (July 11); other charges were dismissed.
The prosecutor summarized a factual basis: a planned burglary on July 11 that was aborted; and a July 24 break-in/robbery in which two people were shot and died, with Thomas alleged to have led and supplied masks for the group.
At the plea colloquy Thomas stated he had told his attorney everything, was satisfied with counsel, and entered pleas knowingly and voluntarily; the court accepted the pleas and convicted him.
Thomas filed pro se motions to discharge appointed counsel before pleading; after plea the court revoked a post-plea bond reduction and made comments Thomas later argued required judicial recusal; Thomas also alleged several ineffective-assistance claims (failure to withdraw, permitting an off-the-record hearing, failure to investigate an alibi, and failure to interview/subpoena witness Herschel Bradley).
The district court sentenced Thomas to consecutive terms of 26–32 years (conspiracy to commit robbery) and 14–20 years (conspiracy to commit burglary); Thomas appealed and the Nebraska Supreme Court affirmed.

Issues

Issue	Thomas' Argument	State's Argument	Held
District court erred by denying motions to discharge appointed counsel and by holding an off-the-record in camera hearing	Court should have removed appointed counsel; off-the-record hearing improper	These arguments were waived by the no-contest pleas	Waived by plea; merits not reached
Trial court revoked bond and then should have recused	Bond revocation was improper and judge’s comments showed lack of impartiality requiring recusal	Bond issue is moot post-sentencing; recusal claim was not timely raised	Bond revocation claim moot; recusal waived for failure to seek disqualification at earliest opportunity
IAC for counsel failing to withdraw and allowing off-the-record hearing	Counsel was deficient for not withdrawing and for permitting the in camera hearing	Counsel had no duty to withdraw; even if deficient, Thomas cannot show prejudice because he affirmed satisfaction at plea	No deficient performance shown; no prejudice (Thomas stated satisfaction at plea)
IAC for failure to investigate alibi	Counsel failed to investigate alibi defense	Defendant’s allegation lacks specifics; cannot be resolved on direct appeal	Claim inadequately pleaded for direct appeal (not preserved)
IAC for failure to interview/subpoena witness (Herschel Bradley)	Counsel failed to pursue a named witness whose testimony could have affected plea decision	Record does not show what Bradley would have said; State points to plea colloquy where Thomas said he told counsel everything	Claim sufficiently raised to preserve for postconviction review but record is insufficient to resolve on direct appeal; requires evidentiary development
Sentences excessive	Court over-weighted criminal history and failed to consider other factors	Sentences within statutory limits and court considered presentence report and sentencing factors	Sentences are within statutory limits and not an abuse of discretion; affirmed

Key Cases Cited

Becher v. Becher, 299 Neb. 206 (waiver of defenses by guilty/no-contest plea)
State v. Anderson, 305 Neb. 978 (ineffective assistance standard; prejudice for pleas requires showing defendant would have gone to trial)
State v. McGuire, 286 Neb. 494 (appointed counsel must remain unless defendant waives, counsel incompetent, or defendant retains private counsel)
State v. Golyar, 301 Neb. 488 (particularity required to raise IAC claims on direct appeal)
State v. Blake, 310 Neb. 769 (names/descriptions of witnesses preserve failure-to-investigate claims; insufficiency of vague allegations)
State v. Buttercase, 296 Neb. 304 (timely presentation required to avoid waiver of judicial disqualification)
State v. Collins, 283 Neb. 854 (standard and heavy burden for judicial recusal; judicial rulings rarely alone justify recusal)
State v. Harig, 192 Neb. 49 (post-conviction appellate review of pretrial bail issues is generally moot)
Chaney v. Evnen, 307 Neb. 512 (mootness central question is availability of meaningful relief)
State v. Greer, 309 Neb. 667 (sentencing court not required to articulate on-record findings for each statutory factor)