State v. Loding , 296 Neb. 670 ( 2017 )


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    www.nebraska.gov/apps-courts-epub/
    07/28/2017 09:09 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    296 Nebraska R eports
    STATE v. LODING
    Cite as 
    296 Neb. 670
    State of Nebraska, appellee, v.
    Bashir V. Loding, appellant.
    ___ N.W.2d ___
    Filed May 12, 2017.     No. S-16-614.
    1.	 Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
    fective assistance of trial counsel may be determined on direct appeal is
    a question of law.
    2.	 ____: ____. In reviewing claims of ineffective assistance of counsel on
    direct appeal, an appellate court decides only questions of law: Are the
    undisputed facts contained within the record 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?
    3.	 Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
    dence claim, whether the evidence is direct, circumstantial, or a com-
    bination thereof, the standard is the same: An appellate court does not
    resolve conflicts in the evidence, pass on the credibility of witnesses, or
    reweigh the evidence; such matters are for the finder of fact.
    4.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
    5.	 Judgments: Appeal and Error. 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.
    6.	 Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
    counsel is different from his or her counsel on direct appeal, the defend­
    ant must raise on direct appeal any issue of trial counsel’s ineffective
    performance which is known to the defendant or is apparent from the
    record. Otherwise, the issue will be procedurally barred.
    7.	 Effectiveness of Counsel: Postconviction: Records: Appeal and
    Error. An ineffective assistance of counsel claim is raised on direct
    appeal when the claim alleges deficient performance with enough
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    STATE v. LODING
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    particularity for (1) an appellate court to make a determination of
    whether the claim can be decided upon the trial record and (2) a district
    court later reviewing a petition for postconviction relief will recognize
    whether the claim was brought before the appellate court.
    8.	 Effectiveness of Counsel: Records: Appeal and Error. The fact that
    an ineffective assistance of counsel claim is raised on direct appeal does
    not necessarily mean that it can be resolved. The determining factor is
    whether the record is sufficient to adequately review the question.
    9.	 Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
    To establish a right to postconviction relief because of counsel’s inef-
    fective assistance, the defendant has the burden, in accordance with
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
     (1984), to show that counsel’s performance was deficient; that is,
    counsel’s performance did not equal that of a lawyer with ordinary train-
    ing and skill in criminal law. Next, the defendant must show that coun-
    sel’s deficient performance prejudiced the defense in his or her case. To
    show prejudice, the defendant must demonstrate a reasonable probability
    that but for counsel’s deficient performance, the result of the proceeding
    would have been different. A court may address the two prongs of this
    test, deficient performance and prejudice, in either order.
    10.	 Statutes: Rules of the Supreme Court. Just as statutes relating to
    the same subject are in pari materia and should be construed together,
    Nebraska Supreme Court rules should be read and construed together.
    11.	 Attorneys at Law. A passing score on the Multistate Professional
    Responsibility Examination is a substantive requirement for admittance
    to the Nebraska bar.
    12.	 Attorneys at Law: Disciplinary Proceedings. Violations of the stan-
    dards and rules of professional conduct can subject an attorney to disci-
    plinary proceedings.
    13.	 Attorneys at Law: Effectiveness of Counsel. An applicant for admit-
    tance to the Nebraska bar who has demonstrated that he or she lacks the
    required knowledge of his or her ethical obligations is incompetent to
    act as counsel.
    14.	 Attorneys at Law: Words and Phrases. A nonlawyer is any person
    not duly licensed or otherwise authorized to practice law in the State
    of Nebraska.
    15.	 Attorneys at Law: Rules of the Supreme Court. The Nebraska
    Supreme Court rules do not allow a nonlawyer to engage in the practice
    of law.
    16.	 Attorneys at Law: Disciplinary Proceedings. Because the Nebraska
    Supreme Court regards the unauthorized practice of law as a serious
    offense, any unauthorized practice is a nullity.
    17.	 Constitutional Law: Right to Counsel. A complete denial of assistance
    of counsel is a per se violation of a defendant’s right to counsel.
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    STATE v. LODING
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    18.	 Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error.
    When reviewing claims of ineffective assistance, an appellate court will
    not second-guess a trial counsel’s reasonable strategic decisions. An
    appellate court must assess the trial counsel’s performance from the
    counsel’s perspective when the counsel provided the assistance.
    19.	 Trial: Attorneys at Law. Defense counsel are not deficient for failing to
    defeat their own legitimate defense theory.
    20.	 Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
    dence claim, an appellate court does not pass on the credibility of wit-
    nesses. The relevant question for an appellate court is whether, after
    viewing the evidence in the light most favorable to the prosecution, any
    rational trier of fact could have found the essential elements of the crime
    beyond a reasonable doubt.
    21.	 Indictments and Informations: Evidence: Time. The State can pre­
    sent evidence of several violations within a specific timeframe to secure
    one conviction.
    22.	 Sentences: Appeal and Error. In reviewing a sentence imposed within
    the statutory limits, an appellate court considers whether the sentenc-
    ing court abused its discretion in considering and applying the relevant
    factors as well as any applicable legal principles in determining the
    sentence to be imposed.
    23.	 Sentences. When imposing a sentence, the sentencing court is to con-
    sider the defendant’s (1) age, (2) mentality, (3) education and experi-
    ence, (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 commission of the crime.
    24.	 ____. Traditionally, a sentencing court is accorded very wide discretion
    in determining an appropriate sentence.
    Appeal from the District Court for Douglas County: Gregory
    M. Schatz, Judge. Affirmed.
    Thomas C. Riley, Douglas County Public Defender, W.
    Patrick Dunn, and Andrew J.K. Johnson for appellant.
    Douglas J. Peterson, Attorney General, and Nathan A. Liss
    for appellee.
    H eavican, C.J., Wright, M iller-Lerman, Cassel, Stacy,
    and Funke, JJ.
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    STATE v. LODING
    Cite as 
    296 Neb. 670
    Per Curiam.
    I. INTRODUCTION
    In this direct appeal, Bashir V. Loding challenges his convic-
    tion for first degree sexual assault of a child. He alleges that he
    received ineffective assistance of counsel, that there was insuf-
    ficient evidence to support his conviction, and that he received
    an excessive sentence. He presents one issue of first impres-
    sion: whether representation by a former senior certified law
    student, who was not yet an admitted member of the Nebraska
    bar, although accompanied by an admitted lawyer, constitutes
    per se ineffective assistance of counsel. We conclude that it
    does not. The record is insufficient to address two claims of
    ineffective assistance. Because we find no merit in Loding’s
    other claims, we affirm the judgment of the district court.
    II. BACKGROUND
    Loding was charged with first degree sexual assault of a
    child. The information filed alleged that on or about May 1
    through September 17, 2015, Loding, a man at least 19 years
    old or older, subjected A.B., a child less than 12 years old, to
    sexual penetration.
    1. Evidence at Trial
    Trial was held in April 2016, at which A.B. testified that she
    was born in 2006 and lived in Douglas County, Nebraska. She
    testified that Loding was her mother’s friend and that he was
    43 years old. She testified that Loding would visit her home
    and that beginning in May 2015, he penetrated her anus with
    his penis on multiple occasions. He also penetrated her anus
    and vagina with his fingers on multiple occasions. She was
    able to describe events in detail, what his penis looked like,
    and how after he penetrated her anus, “sometimes [her] pee
    would be brown.” Her older sister corroborated her testimony
    and confirmed that Loding had access to A.B. without her
    mother’s direct supervision.
    Several expert witnesses testified as to A.B.’s initial dis-
    closure and explained that her allegations were consistent
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    STATE v. LODING
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    296 Neb. 670
    with her testimony and not unusual for child victims of
    sexual assault.
    Loding did not testify in his own behalf or call any
    witnesses.
    2. Conviction and Sentence
    The jury convicted Loding of first degree sexual assault of
    a child, and the district court sentenced Loding to 35 to 50
    years’ imprisonment with credit for 129 days served.
    Loding timely appealed, and we granted the State’s petition
    to bypass review by the Nebraska Court of Appeals.
    III. ASSIGNMENTS OF ERROR
    Loding assigns, reordered and restated, that (1) he received
    ineffective assistance of counsel when (a) a former senior cer-
    tified law student, who was not yet an admitted member of the
    Nebraska bar, participated in critical stages of the proceedings,
    (b) he did not validly consent to representation by a certified
    law student, and (c) trial counsel made prejudicial remarks
    during opening statement and closing argument; (2) there was
    insufficient evidence to sustain a guilty verdict; and (3) his
    sentence was excessive.
    IV. STANDARD OF REVIEW
    [1,2] Whether a claim of ineffective assistance of trial
    counsel may be determined on direct appeal is a question of
    law.1 In reviewing claims of ineffective assistance of counsel
    on direct appeal, an appellate court decides only questions of
    law: Are the undisputed facts contained within the record suf-
    ficient 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?2
    1
    State v. Parnell, 
    294 Neb. 551
    , 
    883 N.W.2d 652
     (2016).
    2
    
    Id.
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    STATE v. LODING
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    296 Neb. 670
    [3] In reviewing a sufficiency of the evidence claim, whether
    the evidence is direct, circumstantial, or a combination thereof,
    the standard is the same: An appellate court does not resolve
    conflicts in the evidence, pass on the credibility of witnesses,
    or reweigh the evidence; such matters are for the finder
    of fact.3
    [4,5] We will not disturb a sentence imposed within the
    statutory limits absent an abuse of discretion by the trial court.4
    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 conscience, reason,
    and evidence.5
    V. ANALYSIS
    1. Ineffective Assistance
    of Counsel
    [6,7] Loding is represented on direct appeal by different
    counsel than the counsel who represented him at trial. When
    a defendant’s trial 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 performance which
    is known to the defendant or is apparent from the record.
    Otherwise, the issue will be procedurally barred.6 An inef-
    fective assistance of counsel claim is raised on direct appeal
    when the claim alleges deficient performance with enough
    particularity for (1) an appellate court to make a determina-
    tion of whether the claim can be decided upon the trial record
    and (2) a district court later reviewing a petition for postcon-
    viction relief will recognize whether the claim was brought
    before the appellate court.7
    3
    State v. Draper, 
    295 Neb. 88
    , 
    886 N.W.2d 266
     (2016).
    4
    
    Id.
    5
    
    Id.
    6
    See State v. Ash, 
    293 Neb. 583
    , 
    878 N.W.2d 569
     (2016).
    7
    See 
    id.
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    STATE v. LODING
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    [8] The fact that an ineffective assistance of counsel claim
    is raised on direct appeal does not necessarily mean that
    it can be resolved.8 The determining factor is whether the
    record is sufficient to adequately review the question.9
    [9] To establish a right to postconviction relief because of
    counsel’s ineffective assistance, the defendant has the burden,
    in accordance with Strickland v. Washington,10 to show that
    counsel’s performance was deficient; that is, counsel’s per­
    formance did not equal that of a lawyer with ordinary training
    and skill in criminal law.11 Next, the defendant must show that
    counsel’s deficient performance prejudiced the defense in his
    or her case.12 To show prejudice, the defend­ant must demon-
    strate a reasonable probability that but for counsel’s deficient
    performance, the result of the proceeding would have been
    different.13 A court may address the two prongs of this test,
    deficient performance and prejudice, in either order.14
    (a) Per Se Ineffective Assistance
    of Counsel
    Loding alleges that he received ineffective assistance of
    counsel because he was represented by a law school gradu-
    ate who was not a certified senior law student or an admitted
    member of the Nebraska bar. He invites this court to find per
    se ineffective assistance of counsel.
    This is an issue of law, and the record is sufficient to
    adequately review this claim. Before we do, we assess the law
    school graduate’s senior certified status.
    8
    State v. Parnell, 
    supra note 1
    .
    9
    
    Id.
    10
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    11
    State v. Ely, 
    295 Neb. 607
    , 
    889 N.W.2d 377
     (2017).
    12
    
    Id.
    13
    
    Id.
    14
    
    Id.
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    STATE v. LODING
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    (i) Senior Certified Status
    Loding was represented at trial by a licensed attorney, James
    Schaefer, and the attorney’s son, Robert Schaefer. At one point,
    Robert had been certified to practice law under James’ supervi-
    sion pursuant to our rules authorizing limited practice of law
    by senior law students.15 Believing that he was still certified
    to practice, Robert participated during voir dire and gave the
    opening statement and closing argument at Loding’s trial in
    April 2016.
    But Robert’s status had changed. He graduated from law
    school in the spring of 2015. After graduation, he took both
    the Uniform Bar Examination (UBE)16 and the Multistate
    Professional Responsibility Examination (MPRE).17 He passed
    the UBE but failed the MPRE. And the record is clear that he
    was notified of this failure prior to the April 2016 trial.
    The first question is how this affected his senior practice
    certification. The relevant senior practice rule provides that
    senior certification of a law student “shall terminate if the
    student does not take the first bar examination following his
    or her graduation, or if the student takes such bar examina-
    tion and fails it, or if he or she is admitted to full practice
    before this court.”18
    Before applying this rule, however, we must determine
    whether the rule’s use of the term “bar examination”19 applies
    only to the UBE or to both the UBE and the MPRE. The State
    suggests that it is unclear whether failure of the MPRE is a
    terminating event under the rule and argues that “the passing
    of the MPRE is a prerequisite to the ethical practice of law in
    this state but it has nothing to do with the legal ability of the
    attorney.”20 We disagree.
    15
    See Neb. Ct. R. §§ 3-701 to 3-706 (rev. 2012).
    16
    See Neb. Ct. R. § 3-101(L) (rev. 2015).
    17
    § 3-101(J).
    18
    § 3-705(A) (emphasis supplied).
    19
    Id.
    20
    Brief for appellee at 17.
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    [10] Just as statutes relating to the same subject are in pari
    materia and should be construed together,21 our rules should
    be read and construed together. “Examination applicants are
    required to pass the MPRE and are required to pass by a com-
    bined score the [component parts of the UBE].”22 This rule
    makes it clear that the “bar examination” consists of both the
    UBE and the MPRE and that examination applicants (includ-
    ing Robert) are required to pass both of them. In other words, a
    failure of either the MPRE or the UBE, taken after graduation,
    is a failure of the “bar examination.” Because Robert’s failure
    to pass the MPRE, and thus, the bar examination, was known
    before Loding’s trial, Robert’s certification under the senior
    practice rules had terminated before the trial.
    The second question is whether, as the State also argues,
    Robert still met the substantive requirements to provide effec-
    tive assistance of counsel. In making this argument, the State
    analogizes the passing of the MPRE to the paying of bar
    dues as mere “‘technical licensing requirements’” and argues
    that Robert was “otherwise competent and qualified to act as
    counsel.”23 We disagree.
    [11,12] As we have already explained, a passing score on
    the MPRE is a substantive requirement for admittance to the
    Nebraska bar.24 The MPRE measures “examinees’ knowledge
    and understanding of established standards related to the pro-
    fessional conduct of lawyers.”25 These standards guide the
    Nebraska Rules of Professional Conduct to which all licensed
    attorneys within Nebraska are held accountable. Violations of
    21
    See Alisha C. v. Jeremy C., 
    283 Neb. 340
    , 
    808 N.W.2d 875
     (2012).
    22
    Neb. Ct. R. § 3-117(A) (rev. 2013).
    23
    Brief for appellee at 17. See, also, State v. Vanderpool, 
    286 Neb. 111
    , 
    835 N.W.2d 52
     (2013).
    24
    See § 3-117(A).
    25
    Nat. Conf. of Bar Examiners, Multistate Professional Responsibility
    Examination, http://www.ncbex.org/exams/mpre/ (last visited May 3,
    2017).
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    these standards and rules of professional conduct can subject
    an attorney to disciplinary proceedings.26
    [13] In sum, our standards and rules emphasize the impor-
    tance of the ethical practice as indicative of an attorney’s legal
    ability. An applicant for admittance to the Nebraska bar who
    has demonstrated that he or she lacks the required knowl-
    edge of his or her ethical obligations is incompetent to act
    as counsel.
    Having found that Robert lost his status as a senior certified
    law student and failed to meet the substantive requirements to
    be a licensed attorney at trial, we now consider the effect of his
    participation at trial.
    (ii) Robert’s Participation
    at Trial
    Courts in other jurisdictions have consistently found legal
    representation by an unlicensed individual who did not meet
    the substantive requirements for admittance to the bar, or
    was a layperson posing as an attorney, constitutes per se
    ineffective assistance of counsel.27 In such circumstances, an
    individual is entitled to postconviction relief without proving
    prejudice. As one court explained, “one never admitted to
    practice law and therefore who never acquired the threshold
    qualification to represent a client in court cannot be allowed
    26
    See Neb. Ct. R. of Prof. Cond. Scope, comment 19.
    27
    See, U.S. v. Bergman, 
    599 F.3d 1142
     (10th Cir. 2010), cert. denied 
    562 U.S. 887
    , 
    131 S. Ct. 219
    , 
    178 L. Ed. 2d 132
    ; U.S. v. Mitchell, 
    216 F.3d 1126
    (D.C. Cir. 2000); U.S. v. Novak, 
    903 F.2d 883
     (2d Cir. 1990); United States
    v. Mouzin, 
    785 F.2d 682
     (9th Cir. 1986), cert. denied sub nom. Carvajal v.
    United States, 
    479 U.S. 985
    , 
    107 S. Ct. 574
    , 
    93 L. Ed. 2d 577
    ; Solina v.
    United States, 
    709 F.2d 160
     (2d Cir. 1983); McKeldin v. Rose, 
    482 F. Supp. 1093
     (E.D. Tenn. 1980), reversed on other grounds 
    631 F.2d 458
     (6th Cir.);
    Huckelbury v. State, 
    337 So. 2d 400
     (Fla. App. 1976); In re Denzel W., 
    237 Ill. 2d 285
    , 
    930 N.E.2d 974
    , 
    341 Ill. Dec. 460
     (2010); Benbow v. State,
    
    614 So. 2d 398
     (Miss. 1993); People v Felder, 
    47 N.Y.2d 287
    , 
    391 N.E.2d 1274
    , 
    418 N.Y.S.2d 295
     (1979). But see Blanton v. U.S., 
    896 F. Supp. 1451
    (M.D. Tenn. 1995), rehearing denied 
    94 F.3d 227
     (6th Cir. 1996).
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    to do so, and no matter how spectacular a performance may
    ensue, it will not constitute ‘effective representation of coun-
    sel’ for purposes of the Sixth Amendment.”28 This is con-
    sistent with our treatment of nonlawyers who engage in the
    practice of law.
    [14-16] A nonlawyer is “any person not duly licensed or oth-
    erwise authorized to practice law in the State of Nebraska.”29
    As we have demonstrated, Robert was a nonlawyer at the time
    of trial. Our court rules are clear and firm; they do not allow
    a nonlawyer to engage in the practice of law.30 Because we
    regard the unauthorized practice of law as a serious offense,
    any unauthorized practice is a nullity.31 Obviously, such a nul-
    lity cannot satisfy a defendant’s right to effective representa-
    tion of counsel.
    [17] We concede that if Loding had been represented only
    by Robert, he would have been completely denied the right to
    assistance of counsel. A complete denial of assistance of coun-
    sel is a per se violation of his right to counsel.
    However, other jurisdictions have declined to find per se
    ineffective assistance of counsel when there has been “active
    participation of a licensed attorney throughout a defendant’s
    trial.”32 As the Eighth Circuit explained, “[i]f co-counsel pro-
    vides petitioners with effective assistance at all critical stages
    28
    United States v. Mouzin, 
    supra note 27
    , 
    785 F.2d at 697
    .
    29
    Neb Ct. R. § 3-1002(A).
    30
    Neb Ct. R. § 3-1003.
    31
    See Kelly v. Saint Francis Med. Ctr., 
    295 Neb. 650
    , 
    889 N.W.2d 613
    (2017).
    32
    People v. Jacobs, 
    6 N.Y.3d 188
    , 190, 
    844 N.E.2d 1126
    , 1127, 
    811 N.Y.S.2d 604
    , 605 (2005) (emphasis supplied). See, also, U.S. v. Novak, 
    supra note 27
    ; U.S. v. Cocivera, 
    104 F.3d 566
     (3d Cir. 1996); U.S. v. Rimell, 
    21 F.3d 281
     (8th Cir. 1994), cert. denied 
    513 U.S. 976
    , 
    115 S. Ct. 453
    , 
    130 L. Ed. 2d 362
    ; The People v. Cox, 
    12 Ill. 2d 265
    , 
    146 N.E.2d 19
     (1957); Riggs
    v. State, 
    235 Ind. 499
    , 
    135 N.E.2d 247
     (1956); State v. Deruy, 
    143 Kan. 590
    , 
    56 P.2d 57
     (1936); Higgins v. Parker, 
    354 Mo. 888
    , 
    191 S.W.2d 668
    (1945), cert. denied 
    327 U.S. 801
    , 
    66 S. Ct. 902
    , 
    90 L. Ed. 1026
     (1946).
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    of the proceedings, [a defendant’s] Sixth Amendment rights
    have been protected.”33 The theory is that effective assistance
    of licensed cocounsel would include correcting any error by
    the unadmitted cocounsel. And, in finding no per se violation
    in circumstances quite similar to those before us, the Eighth
    Circuit relied on its earlier decision in U.S. v. Rosnow.34
    James, a qualified, licensed attorney in Nebraska, was the
    lead attorney for Loding’s trial. It is undisputed that he was
    present at all times throughout the trial and for all interactions
    between Loding and Robert. Thus, there was no per se viola-
    tion of Loding’s constitutional right to counsel. We now turn
    to consider whether Loding is entitled to relief on his claims
    under Strickland.
    (b) Ineffective Assistance
    Under Strickland
    (i) Lack of Written Consent
    Loding alleges that he received ineffective assistance of
    counsel because James did not secure his written consent to be
    represented by Robert. While this alleges a very serious viola-
    tion of our court rules,35 there is a disciplinary process estab-
    lished to adjudicate rule violations.36 But that is not the matter
    before us in this appeal. The question here is whether James
    (and Robert, under James’ direction) provided ineffective
    assist­ance of counsel under Strickland. We conclude that the
    record is not adequate to address this matter on direct appeal.
    (ii) Opening Statement and
    Closing Argument
    Loding alleges that he received ineffective assistance of
    counsel during opening statement and closing argument. He
    33
    U.S. v. Rosnow, 
    981 F.2d 970
    , 972 (8th Cir. 1992).
    34
    See U.S. v. Rimell, 
    supra note 32
    .
    35
    See § 3-704(C).
    36
    See Neb. Ct. R. §§ 3-301 to 3-328 (rev. 2016).
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    claims that counsel was ineffective in failing (1) to call on
    A.B.’s mother to testify or explain her absence after stating
    during opening statement she would be called upon, (2) to
    mention during closing argument other individuals who had
    sexually assaulted A.B., and (3) to give a longer closing argu-
    ment or say more than that Loding was not guilty.
    [18] When reviewing claims of ineffective assistance, an
    appellate court will not second-guess a trial counsel’s reason-
    able strategic decisions.37 And an appellate court must assess
    the trial counsel’s performance from the counsel’s perspective
    when the counsel provided the assistance.38
    It is clear from the record that Loding’s trial counsel orga-
    nized his defense around the theory that A.B. did not like
    Loding and that she made up allegations of sexual assault. This
    was a legitimate strategy aimed at acquitting Loding of the
    charged offense. Therefore, we review Loding’s claims with
    this defense theory in mind.
    a. Absence of A.B.’s Mother
    as Witness
    As Loding conceded at oral argument, his brief misstated
    the record when he argued that counsel failed to explain why
    A.B.’s mother did not testify. The record shows that Loding’s
    counsel explained, “We said we would call the mother . . . we
    said that in the beginning because we thought the state would
    prove its case, and it has not.”
    During closing argument, counsel explained multiple times
    that the burden of proof was on the State to prove beyond a rea-
    sonable doubt that Loding was guilty. Counsel then reviewed
    the evidence and explained to the jury why the State had not
    met its burden. Outside the presence of the jury, Loding con-
    firmed on the record that the mother did not want to testify and
    that he did not want her to testify.
    37
    State v. Alarcon-Chavez, 
    295 Neb. 1014
    , ___ N.W.2d ___ (2017).
    38
    
    Id.
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    But the record does not explain why, during opening state-
    ment, counsel elected to tell the jury that A.B.’s mother would
    be called to testify. Although the record shows how the prob-
    lem was addressed, the record does not show how it came
    about. Under these circumstances, we conclude that the record
    is not sufficient to address this matter on direct appeal.
    b. Other Alleged Assault
    Perpetrators
    Loding alleges that his trial counsel was ineffective during
    their closing argument for failing to mention two other known
    individuals who had both allegedly sexually assaulted A.B.
    in the past. He does not explain why this should have been
    done, but the implication would seem to be that it could have
    convinced the jury someone other than Loding committed the
    sexual assaults charged in this case. This is in direct conflict
    with Loding’s defense that A.B. made up the allegations of
    sexual assault.
    [19] We conclude that defense counsel were not deficient
    for failing to defeat their own legitimate defense theory. As
    to this argument, the record affirmatively shows that Loding’s
    counsel acted reasonably and consistently in presenting his
    defense and were not ineffective.
    c. Closing Argument
    Loding alleges that his trial counsel was ineffective because
    “closing argument was too short and not much was said other
    than that [Loding] was not guilty.”39 This, too, is clearly refuted
    by the record.
    During their closing argument, Loding’s counsel discussed
    the State’s burden of proof, the presumption of innocence,
    perceived conflicts in the State’s evidence, A.B.’s lack of
    credibility, the defense’s theory of the case, the function of
    the criminal justice system, the significance of the jury’s
    39
    Brief for appellant at 16.
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    role, the magnitude of the charge, and the standard for rea-
    sonable doubt. Because there was no deficiency in this argu-
    ment, the record establishes that Loding’s counsel were not
    ineffective.
    2. Sufficiency of Evidence
    Loding alleges that there was insufficient evidence to sup-
    port his conviction. He does not argue that the evidence did
    not establish the elements of the crime. He essentially argues
    that A.B., the one witness to testify to all the elements of the
    crime, was not a credible witness because of her youth, her
    prior history as a sexual assault victim, her dislike of Loding,
    and because she “admitted she was confused about who had
    touched her inappropriately at which times”40 in regard to pre-
    vious incidents of sexual assault.
    [20] But, in reviewing a sufficiency of the evidence claim,
    we do not pass on the credibility of witnesses.41 The relevant
    question for an appellate court is whether, after viewing the
    evidence in the light most favorable to the prosecution, any
    rational trier of fact could have found the essential elements
    of the crime beyond a reasonable doubt.42
    Viewed in the light most favorable to the State, and with-
    out passing on the credibility of the witnesses, there was suf-
    ficient evidence for any rational juror to find Loding guilty
    beyond a reasonable doubt.
    [21] Loding also alleges that there was insufficient evi-
    dence to determine which of the different circumstances
    of sexual assault was found to be proved by a reasonable
    doubt by all jurors. He argues that such a finding was nec-
    essary where he was charged with only one count of sex-
    ual assault while the State alleged several different inci-
    dents. Because we have consistently held that the State
    40
    Id. at 12.
    41
    See State v. Draper, 
    supra note 3
    .
    42
    See 
    id.
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    can present evidence of several violations within a specific
    timeframe to secure one conviction,43 this argument is with-
    out merit.
    3. Excessive Sentence
    Lastly, Loding alleges that he received an excessive sen-
    tence, because the court failed to consider all the appropriate
    mitigating factors in imposing the sentence. He was convicted
    of first degree sexual assault of a child—a Class IB felony,44
    which is punishable by a mandatory minimum of 15 years’
    imprisonment and a maximum of life imprisonment.45 He was
    sentenced to 35 to 50 years’ imprisonment with credit for
    129 days served. As such, his sentences are within the statu-
    tory limits.
    [22,23] In reviewing a sentence imposed within the statu-
    tory limits, an appellate court considers whether the sentenc-
    ing court abused its discretion in considering and applying the
    relevant factors as well as any applicable legal principles in
    determining the sentence to be imposed.46 When imposing a
    sentence, the sentencing court is to consider 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 commission of the crime.47 The
    district court reviewed the presentence investigation report,
    which addressed all of these matters.
    43
    See, State v. Fleming, 
    280 Neb. 967
    , 
    792 N.W.2d 147
     (2010); State v.
    Martinez, 
    250 Neb. 597
    , 
    550 N.W.2d 655
     (1996).
    44
    
    Neb. Rev. Stat. § 28-319.01
    (2) (Reissue 2016).
    45
    
    Id.
     See, also, 
    Neb. Rev. Stat. § 28-105
     (Reissue 2016); State v. Russell,
    
    291 Neb. 33
    , 
    863 N.W.2d 813
     (2015).
    46
    State v. Draper, 
    supra note 3
    .
    47
    
    Id.
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    [24] Given that, traditionally, a sentencing court is accorded
    very wide discretion in determining an appropriate sentence,48
    we find no abuse of discretion in the sentence imposed.
    VI. CONCLUSION
    We emphasize that we take very seriously Loding’s com-
    plaint that James failed to obtain Loding’s written consent
    to Robert’s participation in the conduct of his trial. Although
    we decline to find a per se violation of the right to effec-
    tive assistance of counsel, it deserves careful scrutiny under
    Strickland. And we conclude that the record is insufficient
    to do so. Loding’s allegation regarding counsel’s actions
    regarding A.B.’s mother also raises a serious claim of inef-
    fective assistance of counsel. But here again, the record
    is insufficient.
    As to Loding’s other allegations of ineffective assistance
    of counsel, the record affirmatively refutes them. And we
    find no merit to his assignments of insufficient evidence and
    excessive sentence. We therefore affirm the judgment of the
    district court.
    A ffirmed.
    K elch, J., not participating.
    48
    See 
    id.