State v. Warren, 982 N.W.2d 207

Benjamin J. Warren was convicted in county court of disturbing the peace; acquitted of other charges and sentenced to a $300 fine with credit for time served.
Trial counsel timely filed a notice of appeal and a bill of exceptions, but did not file the required statement of errors under Neb. Ct. R. § 6-1518(B).
The district court received briefing and the parties agreed to submission on briefs, but because no statement of errors was filed, the court limited its review to plain error and affirmed the conviction.
Warren moved for reconsideration, arguing ineffective assistance of counsel for failing to file the statement of errors and asserting he would have been found not guilty if a proposed witness had testified; the district court considered these arguments and denied relief.
Warren appealed to the Nebraska Supreme Court, which reviewed (1) whether the district court erred in limiting review to plain error and (2) whether counsel was ineffective for failing to file the statement of errors.

Issue	Warren's Argument	State's Argument	Held
Whether the district court erred by limiting its review to plain error when the case was submitted on briefs	The court should have considered the errors in the briefs because the matter was submitted on briefs	Rule requires a separate statement of errors; absent compliance review is limited to plain error	No error; submission on briefs does not excuse failure to file a statement of errors and plain-error review applies
Whether trial counsel was ineffective for failing to file the statement of errors (and whether prejudice should be presumed)	Counsel’s omission deprived Warren of a meaningful appeal; prejudice should be presumed (analogizing to cases where appeals were forfeited)	State concedes deficiency but argues prejudice is not presumed because the appeal was not forfeited and counsel did advance some arguments	Ineffective assistance not established on record; prejudice must be proved and is not presumed here because the appeal was not wholly forfeited and counsel did file briefs and a motion for reconsideration

Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance: deficient performance and prejudice)
United States v. Cronic, 466 U.S. 648 (1984) (circumstances where prejudice may be presumed due to complete failure of counsel)
Flores‑Ortega v. United States, 528 U.S. 470 (2000) (presumed prejudice when counsel’s failure results in forfeiture of an appeal)
Penson v. Ohio, 488 U.S. 75 (1988) (denial of counsel on appeal may warrant relief)
Bell v. Cone, 535 U.S. 685 (2002) (presumption of prejudice is a narrow exception; failure must be complete)
Florida v. Nixon, 543 U.S. 175 (2004) (presumption of prejudice is infrequent and narrow)
State v. Nielsen, 301 Neb. 88 (2018) (when no statement of errors is filed on appeal from county to district court, review is limited to plain error)
DeBose v. State, 267 Neb. 116 (2003) (procedural treatment of motions to alter or amend and appellate process)
State v. Trotter, 259 Neb. 212 (2000) (presumed prejudice where counsel’s failure to perfect appeal resulted in dismissal)
State v. Sundquist, 301 Neb. 1006 (2019) (concurring opinion noting potential for presumed prejudice where counsel files no statement and advances no arguments)
State v. Assad, 304 Neb. 979 (2020) (ineffective-assistance claims on appeal are generally resolved under Strickland and require proof of prejudice)
State v. Kipple, 310 Neb. 654 (2022) (discussing when appellate ineffective-assistance claims may be resolved on direct appeal)