State v. Woodruff , 30 Neb. Ct. App. 193 ( 2021 )


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    10/05/2021 01:08 AM CDT
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    Nebraska Court of Appeals Advance Sheets
    30 Nebraska Appellate Reports
    STATE v. WOODRUFF
    Cite as 
    30 Neb. App. 193
    State of Nebraska, appellee, v.
    Johnny R. Woodruff, appellant.
    Filed September 28, 2021.   Nos. A-20-920, A-20-921.
    1. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
    court, an appellate court will not disturb a sentence imposed within the
    statutory limits.
    2. Judgments: Words and Phrases. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    3. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
    Appeal and Error. Whether a claim of ineffective assistance of trial
    counsel can be determined on direct appeal presents a question of law,
    which turns upon the sufficiency of the record to address the claim
    without an evidentiary hearing or whether the claim rests solely on the
    interpretation of a statute or constitutional requirement.
    4. Effectiveness of Counsel: Appeal and Error. In reviewing claims of
    ineffective assistance of counsel on direct appeal, an appellate court
    decides only whether the undisputed facts contained within the record
    are sufficient to conclusively determine whether counsel did or did not
    provide effective assistance and whether the defendant was or was not
    prejudiced by counsel’s alleged deficient performance.
    5. Sentences: Appeal and Error. Where a sentence imposed within the
    statutory limits is alleged on appeal to be excessive, the appellate court
    must determine whether a sentencing court abused its discretion in con-
    sidering and applying the relevant factors as well as any applicable legal
    principles in determining the sentence to be imposed.
    6. Sentences. In determining a sentence to be imposed, relevant factors
    customarily considered and applied are the defendant’s (1) age, (2) men-
    tality, (3) education and experience, (4) social and cultural background,
    (5) past criminal record or record of law-abiding conduct, and (6)
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    STATE v. WOODRUFF
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    30 Neb. App. 193
    motivation for the offense, as well as (7) the nature of the offense and
    (8) the amount of violence involved in the commission of the crime.
    7.   ____. The appropriateness of a sentence is necessarily a subjective judg-
    ment and includes the sentencing judge’s observation of the defendant’s
    demeanor and attitude and all the facts and circumstances surrounding
    the defendant’s life.
    8.   Appeal and Error. An appellate court may, at its option, notice
    plain error.
    9.   ____. Plain error exists where there is an error, plainly evident from
    the record but not complained of at trial, which prejudicially affects
    a substantial right of a litigant and is of such a nature that to leave it
    uncorrected would cause a miscarriage of justice or result in damage to
    the integrity, reputation, and fairness of the judicial process.
    10.   Sentences: Appeal and Error. A sentence that is contrary to the court’s
    statutory authority is an appropriate matter for plain error review.
    11.   Sentences. The trial court’s discretion to direct that sentences be served
    either concurrently or consecutively applies equally to terms of impris-
    onment and terms of post-release supervision and presumably includes
    discretion to make one form consecutive and the other concurrent.
    12.   ____. Credit for time served is not discretionary, but instead, based on
    the record, an absolute and objective number.
    13.   ____. Whether a defendant is entitled to credit for time served and in
    what amount are questions of law.
    14.   ____. When consecutive sentences are imposed for two or more offenses,
    periods of presentence incarceration may be credited only against the
    aggregate of all terms imposed.
    15.   ____. An offender who receives consecutive sentences is entitled to
    credit against only the first sentence imposed.
    16.   Pleas: Waiver. Generally, a voluntary guilty plea or plea of no contest
    waives all defenses to a criminal charge.
    17.   Effectiveness of Counsel: Pleas. When a defendant pleads guilty or
    no contest, he or she is limited to challenging whether the plea was
    understandingly and voluntarily made and whether it was the result of
    ineffective assistance of counsel.
    18.   Effectiveness of Counsel: Records: Appeal and Error. When a defend­
    ant’s counsel is different from his or her counsel on direct appeal, the
    defendant must raise on direct appeal any issue of trial counsel’s ineffec-
    tive performance which is known to the defendant or is apparent from
    the record.
    19.   Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
    ineffective assistance of counsel under Strickland v. Washington, 466
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    STATE v. WOODRUFF
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    U.S. 668, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant must
    show that his or her counsel’s performance was deficient and that this
    deficient performance actually prejudiced the defendant’s defense.
    20.   ____: ____. To show that counsel’s performance was deficient, a defend­
    ant must show that counsel’s performance did not equal that of a lawyer
    with ordinary training and skill in criminal law.
    21.   Effectiveness of Counsel: Pleas. In a plea context, deficiency depends
    on whether counsel’s advice was within the range of competence
    demanded of attorneys in criminal cases.
    22.   Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
    tion is based upon a guilty or no contest plea, the prejudice requirement
    for an ineffective assistance of counsel claim is satisfied if the defend­
    ant shows a reasonable probability that but for the errors of counsel,
    the defendant would have insisted on going to trial rather than plead-
    ing guilty.
    23.   Effectiveness of Counsel: Proof. The two prongs of the ineffective
    assistance of counsel test under Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), may be addressed in
    either order.
    24.   Effectiveness of Counsel: Records: Appeal and Error. Whether a
    claim of ineffective assistance of trial counsel can be determined on
    direct appeal depends upon the sufficiency of the record to address
    the claim to determine whether a defense counsel’s performance was
    deficient and whether the defendant was prejudiced by the alleged defi-
    cient performance.
    25.   ____: ____: ____. The record on direct appeal is sufficient if it estab-
    lishes either that trial counsel’s performance was not deficient, that the
    appellant will not be able to establish prejudice, or that trial counsel’s
    actions could not be justified as a part of any plausible trial strategy.
    26.   Effectiveness of Counsel: Words and Phrases. A claim of ineffective
    assistance of counsel that is insufficiently stated is no different than a
    claim not stated at all.
    27.   Effectiveness of Counsel: Appeal and Error. If insufficiently stated,
    an assignment of error and accompanying argument will not prevent the
    procedural bar accompanying the failure to raise all known or apparent
    claims of ineffective assistance of trial counsel.
    28.   Appeal and Error. Assignments of error regarding ineffective assist­
    ance of counsel on direct appeal must be both specifically assigned and
    specifically argued.
    29.   Effectiveness of Counsel. Where the record refutes a claim of ineffec-
    tive assistance of trial counsel, no recovery may be had.
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    Nebraska Court of Appeals Advance Sheets
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    STATE v. WOODRUFF
    Cite as 
    30 Neb. App. 193
    Appeals from the District Court for Douglas County:
    Marlon A. Polk, Judge. Judgment in No. A-20-920 affirmed
    as modified, and cause remanded for resentencing. Judgment in
    No. A-20-921 affirmed as modified.
    Jon S. Natvig for appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    Pirtle, Chief Judge, and Moore and Bishop, Judges
    Pirtle, Chief Judge.
    I. INTRODUCTION
    Johnny R. Woodruff appeals from his plea-based convic-
    tions and sentences in two separate cases in the district court
    for Douglas County. The cases were consolidated both in the
    district court and on appeal. Woodruff asserts that the sentences
    imposed are excessive and that his trial counsel provided inef-
    fective assistance. We affirm as modified in both cases and
    remand for resentencing in case No. A-20-920.
    II. BACKGROUND
    The State charged Woodruff with criminal offenses in three
    separate cases. On November 23, 2020, Woodruff agreed to
    plead no contest to the charges in the two cases involved in this
    appeal in exchange for the State’s dismissal of the charges in
    the third case. In case No. A-20-920, Woodruff pled no contest
    to one count of third degree domestic assault (second offense),
    a Class IIIA felony. In case No. A-20-921, Woodruff pled no
    contest to possession of a controlled substance (methamphet-
    amine), a Class IV felony.
    Prior to accepting Woodruff’s pleas, the district court
    advised him that he was giving up certain constitutional
    rights, including the right to a jury trial, the right to confront
    witnesses against him, the right to present evidence in his
    defense, and the right against self-incrimination. The court
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    STATE v. WOODRUFF
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    30 Neb. App. 193
    additionally advised Woodruff of the charges against him and
    the range of penalties. Woodruff stated that he understood
    these advisements.
    The State provided a factual basis to support Woodruff’s no
    contest pleas. In summary, the State would have provided evi-
    dence at trial which showed that Woodruff had been involved
    in an altercation with his girlfriend. When the girlfriend took
    her belongings and began to walk away from him, Woodruff
    struck her in the nose twice with the palm of his hand, and he
    subsequently followed her down the street while shouting at
    her. Woodruff then attempted to take his girlfriend’s bag from
    her. After a struggle, he succeeded in taking possession of the
    bag and then ran away. Days later, Woodruff was apprehended
    by law enforcement pursuant to a felony warrant which had
    been issued following the incident with Woodruff’s girlfriend.
    At that time, police searched Woodruff’s person and located a
    broken pipe and a small bag of methamphetamine. The State
    advised the court that Woodruff had a prior conviction for third
    degree domestic assault, and Woodruff agreed to stipulate to
    the prior conviction.
    Woodruff’s trial counsel informed the court that she had
    advised Woodruff not to stipulate to the prior domestic assault
    conviction, but that Woodruff preferred to “move forward
    . . . so we don’t have to get a continuance.” Nevertheless,
    Woodruff’s trial counsel averred that she believed the no con-
    test pleas were in his best interests.
    The district court found beyond a reasonable doubt that
    Woodruff understood the nature of the charges; that he under-
    stood the possible penalties; and that the pleas were made
    freely, knowingly, intelligently, and voluntarily. The court
    accepted Woodruff’s no contest pleas and found him guilty on
    both counts.
    Following the entry of Woodruff’s pleas, the district court
    moved directly into sentencing. Woodruff confirmed to the
    court that he wished to proceed with sentencing that day. The
    court sentenced Woodruff to a term of 364 days’ incarceration
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    STATE v. WOODRUFF
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    for the third degree domestic assault conviction in case No.
    A-20-920 and to 180 days’ incarceration for the possession of
    a controlled substance conviction in case No. A-20-921. The
    court ordered that the two sentences run consecutively to each
    other. The district court gave Woodruff credit for 171 days’ time
    served per offense via a separate order entered in each case.
    The court additionally ordered Woodruff to serve a 12-month
    term of post-release supervision in case No. A-20-921.
    On December 15, 2020, Woodruff filed pro se motions to
    withdraw his pleas in both cases, accompanied by a sworn
    affidavit. The record presented before this court does not show
    whether the district court ruled on the motions to withdraw
    Woodruff’s pleas. Subsequently, on December 23, Woodruff
    filed a notice of intent to appeal in both cases. We granted
    the State’s motion to consolidate the cases for disposition in
    this court; however, Woodruff has filed separate (albeit nearly
    identical) briefs.
    III. ASSIGNMENTS OF ERROR
    Woodruff assigns that the district court abused its discretion
    in imposing excessive sentences. He also assigns that his trial
    counsel was ineffective in four respects.
    IV. STANDARD OF REVIEW
    [1,2] Absent an abuse of discretion by the trial court, an
    appellate court will not disturb a sentence imposed within the
    statutory limits. State v. Estrada Comacho, 
    309 Neb. 494
    , 
    960 N.W.2d 739
     (2021). An abuse of discretion occurs when a trial
    court’s decision is based upon reasons that are untenable or
    unreasonable or if its action is clearly against justice or con-
    science, reason, and evidence. 
    Id.
    [3,4] Whether a claim of ineffective assistance of trial coun-
    sel can be determined on direct appeal presents a question of
    law, which turns upon the sufficiency of the record to address
    the claim without an evidentiary hearing or whether the claim
    rests solely on the interpretation of a statute or constitutional
    requirement. State v. Lowman, 
    308 Neb. 482
    , 954 N.W.2d
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    STATE v. WOODRUFF
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    905 (2021). In reviewing claims of ineffective assistance
    of counsel on direct appeal, an appellate court decides only
    whether the undisputed facts contained within the record are
    sufficient to conclusively determine whether counsel did or
    did not provide effective assistance and whether the defend­
    ant was or was not prejudiced by counsel’s alleged deficient
    performance. 
    Id.
    V. ANALYSIS
    1. Sentences
    (a) Excessive Sentences
    Woodruff first assigns that the district court imposed exces-
    sive sentences. He argues that the court did not “seriously and
    properly” consider appropriate mitigating factors due to the
    lack of a presentence investigation report. Brief for appellant
    in case No. A-20-920 at 9. He argues that his sentences exceed
    the amount of time necessary to provide rehabilitative training
    and/or treatment services through the Nebraska Department of
    Correctional Services.
    Woodruff was convicted of one count of third degree domes-
    tic assault (second offense) in violation of 
    Neb. Rev. Stat. § 28-323
    (1) and (4) (Reissue 2016), a Class IIIA felony, and
    of one count of possession of a controlled substance (metham-
    phetamine) in violation of 
    Neb. Rev. Stat. § 28-416
    (3) (Cum.
    Supp. 2020), a Class IV felony. A Class IIIA felony carries a
    possible penalty of up to 3 years’ imprisonment, and a Class
    IV felony carries a possible penalty of up to 2 years’ imprison-
    ment. See 
    Neb. Rev. Stat. § 28-105
     (Cum. Supp. 2020). The
    district court sentenced Woodruff to 364 days’ incarceration for
    the third degree domestic assault conviction and a consecutive
    sentence of 180 days’ incarceration for the possession of a con-
    trolled substance conviction. These sentences are well within
    the statutory limits.
    [5-7] Where a sentence imposed within the statutory limits
    is alleged on appeal to be excessive, the appellate court must
    determine whether a sentencing court abused its discretion
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    in considering and applying the relevant factors as well as any
    applicable legal principles in determining the sentence to be
    imposed. State v. Estrada Comacho, 
    supra.
     In determining a
    sentence to be imposed, relevant factors customarily consid-
    ered and applied are the defendant’s (1) age, (2) mentality, (3)
    education and experience, (4) social and cultural background,
    (5) past criminal record or record of law-abiding conduct, and
    (6) motivation for the offense, as well as (7) the nature of the
    offense and (8) the amount of violence involved in the com-
    mission of the crime. 
    Id.
     The appropriateness of a sentence is
    necessarily a subjective judgment and includes the sentencing
    judge’s observation of the defendant’s demeanor and attitude
    and all the facts and circumstances surrounding the defendant’s
    life. 
    Id.
    Woodruff argues that the district court erred in imposing a
    term of 12 months’ post-release supervision for his possession
    of a controlled substance conviction in case No. A-20-921,
    stating that “if a term of probation was unrealistic, a term of
    Supervised Release is nothing more than an opportunity to
    fail.” Brief for appellant in case No. A-20-921 at 10. Woodruff
    further argues that the district court failed to give adequate
    weight to mitigating factors; however, he does not specify
    in his brief what those factors are. Importantly, in this case,
    Woodruff advised the court that he wished to proceed to sen-
    tencing at the same hearing in which he entered his no contest
    pleas. Therefore, Woodruff effectively waived his right for
    the probation office to complete a presentence investigation
    report which may have provided insight into potential mitigat-
    ing factors.
    Considering Woodruff’s election to forgo a presentence
    investigation report and separate sentencing hearing, the fact
    that his sentences in both cases are within the lower part of
    the sentencing ranges provided by statute, and our standard
    of review, we find no abuse of discretion in the sentences
    imposed. There is no indication that the district court took
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    into consideration any inappropriate factors in reaching its
    ­sentencing determination. This argument fails.
    (b) Post-Release Supervision
    On appeal, the State notes that although Woodruff does
    not assign it as error, the district court committed plain error
    by failing to impose a term of post-release supervision on
    Woodruff’s third degree domestic assault conviction in case
    No. A-20-920. In that case, Woodruff was sentenced to 364
    days’ incarceration, and the sentence was ordered to run con-
    secutively to Woodruff’s sentence in case No. A-20-921.
    [8-10] An appellate court may, at its option, notice plain
    error. State v. Guzman, 
    305 Neb. 376
    , 
    940 N.W.2d 552
     (2020).
    Plain error exists where there is an error, plainly evident from
    the record but not complained of at trial, which prejudicially
    affects a substantial right of a litigant and is of such a nature
    that to leave it uncorrected would cause a miscarriage of jus-
    tice or result in damage to the integrity, reputation, and fair-
    ness of the judicial process. State v. Galvan, 
    305 Neb. 513
    ,
    
    941 N.W.2d 183
     (2020), modified on denial of rehearing 
    306 Neb. 498
    , 
    945 N.W.2d 888
    . A sentence that is contrary to the
    court’s statutory authority is an appropriate matter for plain
    error review. 
    Id.
    [11] 
    Neb. Rev. Stat. § 29-2204.02
    (1)(b) (Reissue 2016) pro-
    vides that in imposing a sentence for a Class IIIA felony, the
    court shall “[i]mpose a sentence of post-release supervision
    . . . within the applicable range in section 28-105.” Section
    28-105(1) provides that when a defendant is sentenced to a
    term of imprisonment following a conviction for a Class IIIA
    felony, the court shall impose a maximum term of post-release
    supervision of 18 months and a minimum term of 9 months.
    The district court failed to impose a period of post-release
    supervision in case No. A-20-920. Accordingly, the district
    court’s sentence does not comport with the statutory require-
    ments and amounts to plain error. Therefore, we must remand
    Woodruff’s sentence in case No. A-20-920 with directions
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    to resentence him in accordance with § 29-2204.02(1)(b).
    Pursuant to § 29-2204.02(7)(c), the court must also state
    whether the terms of post-release supervision in the two cases
    are to be served concurrently or consecutively. See State v.
    Galvan, 
    supra
     (trial court’s discretion to direct that sentences
    be served either concurrently or consecutively applies equally
    to terms of imprisonment and terms of post-release supervision
    and presumably includes discretion to make one form consecu-
    tive and the other concurrent).
    (c) Sentencing Credit
    [12,13] We additionally find plain error with respect to the
    district court’s allotted credit to Woodruff for time served.
    Credit for time served is not discretionary, but instead, based
    on the record, an absolute and objective number. State v. Bree,
    
    285 Neb. 520
    , 
    827 N.W.2d 497
     (2013). Whether a defendant
    is entitled to credit for time served and in what amount are
    questions of law. State v. Wills, 
    285 Neb. 260
    , 
    826 N.W.2d 581
     (2013).
    [14,15] The district court credited Woodruff 171 days’ time
    served per offense, thereby granting him a total of 342 days’
    time served. The amount of time credited in each case was for
    the same period of incarceration. Pursuant to 
    Neb. Rev. Stat. § 83-1
    ,106 (Reissue 2014), “[c]redit against the maximum term
    and any minimum term shall be given to an offender for time
    spent in custody as a result of . . . the conduct on which such
    a charge is based.” However, the Nebraska Supreme Court has
    clarified that “when consecutive sentences are imposed for two
    or more offenses, periods of presentence incarceration may be
    credited only against the aggregate of all terms imposed.” State
    v. Custer, 
    292 Neb. 88
    , 116-17, 
    871 N.W.2d 243
    , 264 (2015).
    See, also, State v. Williams, 
    282 Neb. 182
    , 
    802 N.W.2d 421
    (2011) (offender who receives consecutive sentences is enti-
    tled to credit against only first sentence imposed). Therefore,
    Woodruff should not have been granted 171 days’ time served
    per conviction, because the sentences were ordered to be
    served consecutively. See State v. Custer, supra.
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    STATE v. WOODRUFF
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    The district court erred in granting Woodruff 171 days’
    credit for time served in both case No. A-20-920 and case
    No. A-20-921. We therefore modify the sentencing orders in
    both cases to reflect that 171 days’ time served shall be cred-
    ited against Woodruff’s sentence in case No. A-20-920 only
    and that no credit shall be applied toward his sentence in case
    No. A-20-921.
    2. Ineffective Assistance of Counsel
    [16,17] Woodruff assigns that his trial counsel provided inef-
    fective assistance. Generally, a voluntary guilty plea or plea of
    no contest waives all defenses to a criminal charge. State v.
    Blaha, 
    303 Neb. 415
    , 
    929 N.W.2d 494
     (2019). Thus, when a
    defendant pleads guilty or no contest, he or she is limited to
    challenging whether the plea was understandingly and volun-
    tarily made and whether it was the result of ineffective assist­
    ance of counsel. 
    Id.
    [18] Woodruff has different counsel on direct appeal than he
    did at trial. When a defendant’s counsel is different from his
    or her counsel on direct appeal, the defendant must raise on
    direct appeal any issue of trial counsel’s ineffective perform­
    ance which is known to the defendant or is apparent from the
    record. 
    Id.
    [19-23] Generally, to prevail on a claim of ineffective assist­
    ance of counsel under Strickland v. Washington, 
    466 U.S. 668
    ,
    
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), the defendant must
    show that his or her counsel’s performance was deficient and
    that this deficient performance actually prejudiced the defend­
    ant’s defense. State v. Blaha, 
    supra.
     To show that counsel’s
    performance was deficient, a defendant must show that coun-
    sel’s performance did not equal that of a lawyer with ordinary
    training and skill in criminal law. 
    Id.
     In a plea context, defi-
    ciency depends on whether counsel’s advice was within the
    range of competence demanded of attorneys in criminal cases.
    
    Id.
     When a conviction is based upon a guilty or no contest
    plea, the prejudice requirement for an ineffective assistance
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    of counsel claim is satisfied if the defendant shows a reason-
    able probability that but for the errors of counsel, the defend­
    ant would have insisted on going to trial rather than pleading
    guilty. 
    Id.
     The two prongs of the ineffective assistance of coun-
    sel test under Strickland may be addressed in either order. State
    v. Blaha, 
    supra.
    [24,25] Whether a claim of ineffective assistance of trial
    counsel can be determined on direct appeal depends upon the
    sufficiency of the record to address the claim to determine
    whether a defense counsel’s performance was deficient and
    whether the defendant was prejudiced by the alleged deficient
    performance. State v. Theisen, 
    306 Neb. 591
    , 
    946 N.W.2d 677
    (2020). The record is sufficient if it establishes either that trial
    counsel’s performance was not deficient, that the appellant
    will not be able to establish prejudice, or that trial counsel’s
    actions could not be justified as a part of any plausible trial
    strategy. 
    Id.
    Woodruff asserts, reordered, that he received ineffective
    assistance of trial counsel when his attorney (a) failed to file
    pretrial motions, (b) failed to produce mitigating evidence
    at sentencing, (c) failed to review discovery with Woodruff,
    and (d) failed to provide competent advice regarding the plea
    agreement.
    (a) Failure to File Pretrial Motions
    Woodruff first claims that his counsel was ineffective when
    she failed to file pretrial motions. He argues that “[t]hough
    requested, no dispositive motions were filed by Trial Counsel
    despite his request . . . .” Brief for appellant in case No.
    A-20-920 at 12. However, Woodruff does not specify what
    motions he requested his trial counsel to file.
    [26,27] This allegation of ineffective assistance of counsel
    has not been sufficiently pled. The totality of Woodruff’s argu-
    ment in support of this claim consists of a single sentence,
    quoted above. He does not identify the type of motions his
    trial counsel should have filed or the underlying evidence or
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    facts which would support such motions. It has been held that
    a claim of ineffective assistance of counsel that is insufficiently
    stated is no different than a claim not stated at all. State v.
    Abdullah, 
    289 Neb. 123
    , 
    853 N.W.2d 858
     (2014). Therefore, if
    insufficiently stated, an assignment of error and accompanying
    argument will not prevent the procedural bar accompanying
    the failure to raise all known or apparent claims of ineffective
    assistance of trial counsel. 
    Id.
    [28] We note that in case No. A-20-920, the domestic
    assault case, Woodruff’s trial counsel filed a motion to depose
    the alleged victim. In his argument section, Woodruff asserts
    that “no deposition was ever taken” and that his counsel was
    ineffective for “not pursuing pretrial motions filed.” Brief for
    appellant in case No. A-20-920 at 12. However, because he did
    not specifically assign as error that his counsel was ineffective
    in this respect, we do not consider this issue on appeal. See
    State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
     (2019) (assign-
    ments of error regarding ineffective assistance of counsel on
    direct appeal must be both specifically assigned and specifi-
    cally argued). Woodruff’s brief in case No. A-20-921, the
    possession of a controlled substance case, does assign as error
    that trial counsel “failed to file and or follow up on pretrial
    motions.” However, the record before this court does not
    show any motions filed in that case which trial counsel could
    have pursued.
    We determine that Woodruff’s allegation of deficient con-
    duct related to the filing of pretrial motions has not been pled
    with the specificity necessary to avoid a procedural bar.
    (b) Failure to Produce Evidence at Sentencing
    Woodruff next assigns in both cases that his trial counsel
    was ineffective when she failed to produce “mitigating infor-
    mation at sentencing which would have resulted in a lesser sen-
    tence.” He argues that “at his plea and sentencing hearing the
    State could not certify a necessary prior conviction; trial coun-
    sel stipulated to the conviction without consulting [Woodruff]
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    or the record for completeness.” Brief for appellant in case
    No. A-20-920 at 12. Aside from the issue of the prior convic-
    tion, Woodruff does not specify any other evidence which his
    trial counsel failed to present.
    To the extent that Woodruff argues his trial counsel
    performed deficiently by stipulating to the existence of a
    prior domestic assault conviction without properly advising
    Woodruff of the consequences, this argument is refuted by
    the record.
    The record reflects that during a scheduled pretrial hear-
    ing, Woodruff’s trial counsel informed the court that the State
    had relayed a plea offer to her, but that she had not yet had
    an opportunity to discuss the offer with Woodruff. A recess
    was held so that Woodruff could confer privately with his
    trial counsel. After the hearing resumed, Woodruff’s counsel
    stated that Woodruff had decided to accept the State’s offer.
    Following the plea colloquy and the reading of the State’s fac-
    tual basis, the following conversation took place:
    THE COURT: [Defense counsel], anything to add to
    that factual basis?
    [Defense counsel:] Nothing to add, Judge. [F]or pur-
    poses of the plea, my understanding is that [the State]
    isn’t able to provide a certified copy of his prior. My
    understanding is my client wants to move forward and
    stipulate to the prior offense so we don’t have to get
    a continuance. I would note that it would be generally
    against my advice to do that, but my understanding is
    that . . . even though I’ve made this information clear to
    [him], he still wants to go forward with the plea today, so
    that means that he has to stipulate.
    THE COURT: Is that what you want to do, sir?
    [Woodruff:] Yes, sir.
    THE COURT: Okay. Then, [defense counsel], you
    believe the no contest pleas are in his best interests, under
    the circumstances?
    [Defense counsel:] Yes, Judge.
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    [29] The record shows that Woodruff was specifically
    advised by his trial counsel against stipulating to the existence
    of a prior conviction and that he nevertheless confirmed his
    desire to proceed with the plea and sentencing. We therefore
    conclude that Woodruff cannot prove prejudice resulting from
    this alleged failure of his trial counsel. And, where the record
    refutes a claim of ineffective assistance of trial counsel, no
    recovery may be had. See State v. Liner, 
    24 Neb. App. 311
    , 
    886 N.W.2d 311
     (2016).
    To the extent that Woodruff intended this assignment of
    error to encompass other “mitigating information” which his
    trial counsel failed to present, he has not pled this claim with
    sufficient specificity to avoid a procedural bar. This argu-
    ment fails.
    (c) Failure to Review Discovery
    Woodruff assigns in both cases that his trial counsel was
    ineffective when she “failed to share and review discovery”
    with him. He argues that he was informed of the existence of
    certain exculpatory evidence which his counsel did not discuss
    or review with him prior to the plea hearing.
    Because it is not clear what the alleged exculpatory evidence
    consisted of, nor what communications Woodruff exchanged
    with his trial counsel, we determine that the record on direct
    appeal is insufficient to address this claim of ineffective assist­
    ance of counsel.
    (d) Failure to Offer Competent Advice
    Finally, in case No. A-20-290, Woodruff assigns that his trial
    counsel “provided deficient advice with respect to pleading,
    waiving a trial and to sentencing.” This allegation of ineffec-
    tive assistance of counsel has not been sufficiently pled. The
    allegation is vague, and Woodruff does not allege the conduct
    he claims constituted deficient performance.
    We determine that Woodruff’s allegation of deficient advice
    which related to pleading, waiving trial, and sentencing has
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    not been pled with the specificity necessary to avoid a proce-
    dural bar.
    VI. CONCLUSION
    We affirm Woodruff’s convictions in both cases. However in
    case No. A-20-920, we remand the matter to the district court
    for resentencing and to determine whether the post-release
    supervision is to be served concurrently or consecutively to
    the post-release supervision in case No. A-20-921. Further, we
    modify the sentencing orders in both cases to reflect that 171
    days’ time served shall be credited against Woodruff’s sentence
    in case No. A-20-920 only and that no credit shall be applied
    toward his sentence in case No. A-20-921. We also conclude
    either that all of Woodruff’s claims of ineffective assistance
    of counsel fail or that the record on appeal is insufficient to
    address them.
    Judgment in No. A-20-920 affirmed as modified,
    and cause remanded for resentencing.
    Judgment in No. A-20-921 affirmed as modified.