State v. Collins ( 2020 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    12/11/2020 09:08 AM CST
    - 581 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    State of Nebraska, appellee, v.
    Miranda M. Collins, appellant.
    ___ N.W.2d ___
    Filed October 23, 2020.   No. S-19-959.
    1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
    case from the county court, the district court acts as an intermediate
    court of appeals, and its review is limited to an examination of the
    record for error or abuse of discretion.
    2. Courts: Appeal and Error. Both the district court and a higher appel-
    late court generally review appeals from the county court for error
    appearing on the record.
    3. Judgments: Appeal and Error. When reviewing a judgment for errors
    appearing on the record, an appellate court’s inquiry is whether the deci-
    sion conforms to the law, is supported by competent evidence, and is
    neither arbitrary, capricious, nor unreasonable.
    4. Appeal and Error. An appellate court independently reviews questions
    of law in appeals from the county court.
    5. Criminal Law: Courts: Appeal and Error. When deciding appeals
    from criminal convictions in county court, an appellate court applies the
    same standards of review that it applies to decide appeals from criminal
    convictions in district court.
    6. 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.
    7. ____: ____. Absent an abuse of discretion by the trial court, an appellate
    court will not disturb a sentence imposed within the statutory limits.
    8. 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.
    - 582 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    9. Statutes: Appeal and Error. Statutory interpretation presents a question
    of law, which an appellate court reviews independently.
    10. 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.
    11. Effectiveness of Counsel: Appeal and Error. An appellate court
    determines as a matter of law whether the record conclusively shows
    that (1) a defense counsel’s performance was deficient or (2) a defend­
    ant was or was not prejudiced by a defense counsel’s alleged defi-
    cient performance.
    12. 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.
    13. 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) moti-
    vation 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.
    14. ____. 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.
    15. Statutes: Legislature: Intent. Components of a series or collection of
    statutes pertaining to a certain subject matter are in pari materia and
    should be conjunctively considered and construed to determine the
    intent of the Legislature, so that different provisions are consistent, har-
    monious, and sensible.
    16. Statutes. To the extent there is a conflict between two statutes, the spe-
    cific statute controls over the general statute.
    17. Statutes: Legislature: Presumptions: Intent. In enacting a statute, the
    Legislature must be presumed to have knowledge of all previous legis-
    lation upon the subject. The Legislature is also presumed to know the
    language used in a statute, and if a subsequent act on the same or similar
    subject uses different terms in the same connection, the court must pre-
    sume that a change in the law was intended.
    18. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
    assistance of counsel, the defendant must show that his or her counsel’s
    - 583 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    performance was deficient and that this deficient performance actually
    prejudiced the defendant’s defense.
    19. ____: ____. 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.
    20. ____: ____. To show prejudice in a claim of ineffective assistance of
    counsel, the defendant must demonstrate a reasonable probability that
    but for counsel’s deficient performance, the result of the proceeding
    would have been different.
    21. Words and Phrases. A reasonable probability is a probability sufficient
    to undermine confidence in the outcome.
    Appeal from the District Court for Lancaster County, Susan
    I. Strong, Judge, on appeal thereto from the County Court for
    Lancaster County, Timothy C. Phillips, Judge. Judgment of
    District Court affirmed.
    Stephanie Flynn, of Stephanie Flynn Law, P.C., L.L.O., and
    Toni Wilson, of Leija Wilson Law, for appellant.
    Douglas J. Peterson, Attorney General, and Kimberly A.
    Klein for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Miller-Lerman, J.
    NATURE OF CASE
    Miranda M. Collins appeals the order of the district court
    for Lancaster County which affirmed her convictions and sen-
    tences in the county court for Lancaster County for operating
    a motor vehicle to avoid arrest and obstructing a police officer.
    Collins claims on appeal that the district court erred when it
    affirmed what she asserts was an excessive sentence imposed
    by the county court and when it affirmed the county court’s
    order directing that her appearance bond be applied to fines
    and costs. She also claims that trial counsel provided inef-
    fective assistance because counsel failed to present sufficient
    evidence and information at the sentencing hearing. We affirm
    - 584 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    the order of the district court which affirmed Collins’ convic-
    tions and sentences.
    STATEMENT OF FACTS
    On March 22, 2019, Collins was arrested, and the State filed
    a complaint in the county court charging her with operating a
    motor vehicle to avoid arrest in violation of Neb. Rev. Stat.
    § 28-905 (Reissue 2016). The State alleged, inter alia, that the
    offense was committed “in willful reckless operation of the
    motor vehicle,” and the State therefore charged the offense as
    a Class IV felony pursuant to § 28-905(3). The factual basis
    presented by the State indicates that the charge arose from an
    incident in which, during a traffic stop of a vehicle driven by
    Collins, the officer detected the odor of marijuana and asked
    Collins to step out of the vehicle so that the officer could
    conduct a search. Collins refused to step out of the vehicle,
    and instead, she rolled up her windows, locked the doors, and
    sped off in the vehicle. The county court found probable cause
    to detain Collins and set an appearance bond of “$7,500.00
    Ten Percent.” On March 25, Collins filed an appearance bond
    which stated that $750 had been deposited “in cash 90% of
    which shall be returned to the defendant upon appearance as
    required above and 10% of which shall be retained by the
    Clerk for bond costs.”
    On April 3, 2019, pursuant to a plea agreement, the State
    filed an amended complaint in which it reduced the charge of
    operating a motor vehicle to avoid arrest to a Class I misde-
    meanor under § 28-905(2) and added a charge of obstructing
    a peace officer, a Class I misdemeanor, in violation of Neb.
    Rev. Stat. § 28-906 (Reissue 2016). Collins pled guilty to both
    charges, and the county court found a factual basis and found
    Collins guilty of both charges. That same day, after grant-
    ing Collins a sentencing allocution, the county court ordered
    Collins to pay a fine of $750 on the conviction for operating
    a motor vehicle to avoid arrest and to pay a fine of $250 on
    the conviction for obstructing a peace officer. In connection
    with the conviction for operating a motor vehicle to avoid
    - 585 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    arrest, the county court also ordered that Collins’ driver’s
    license be revoked for 1 year. The court ordered Collins to
    pay costs, and the court further ordered that after the $75
    (representing 10 percent of the deposit) had been retained by
    the clerk, the $675 balance held on Collins’ appearance bond
    be applied to payment of the fines and costs imposed as part
    of her sentence.
    On April 5, 2019, Collins’ counsel filed a motion for new
    trial in which he asserted that subsequent to the April 3 sen-
    tencing hearing, he had learned new information that, if he had
    known of it at the time of Collins’ sentencing, he would have
    offered for the court’s consideration. Counsel characterized
    such information as “newly discovered evidence,” which he
    alleged required a new trial. That same day, counsel also filed a
    motion to reconsider sentence in which counsel alleged that the
    “newly discovered evidence” required the court to reconsider
    the sentence imposed. Counsel’s particular objection to the
    sentence focused on the revocation of Collins’ driver’s license
    for 1 year.
    In his affidavit, Collins’ counsel stated that in a separate
    case, Collins anticipated being bonded into drug court; that
    she risked losing her housing if she could not demonstrate
    participation in a drug treatment program; and that a prompt
    resolution of the present case was necessary to avoid delaying
    her entry into drug court in the other case. Counsel stated that
    the urgency to resolve the present case limited the time he had
    to prepare with Collins for sentencing and that therefore, he did
    not learn certain relevant information about Collins before the
    April 3, 2019, plea and sentencing hearing. Counsel asserted
    the new information was generally that Collins was a single
    mother and a student who had no family or friends who could
    help her with transportation and that if her driver’s license
    were revoked, she would not be able to transport her children
    to school or transport herself to attend classes.
    After a hearing, the county court denied both Collins’
    motion for new trial and her motion to reconsider sentence.
    At the hearing on the motions, the county court stated that if
    - 586 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    it “had known some of these things beforehand, [it] probably
    would have likely ruled differently,” but it did not think that
    it could “go back and change it at this point in time based
    on these motions the way they’re brought before the Court.”
    In response to Collins’ query regarding the bond, the county
    court stated that it did not think it could be returned to her
    because the bond had “already been applied.” In the order
    denying the motions, the county court stated that the appear-
    ance bond was to remain applied to fines and costs and not
    returned to Collins.
    Collins appealed her convictions and sentences to the dis-
    trict court. In her statement of errors, Collins claimed that
    the county court (1) imposed an excessive sentence when it
    revoked her driver’s license and (2) erred when it ordered that
    her bond be applied to fines and costs.
    After a hearing, the district court entered an order which
    affirmed Collins’ convictions and sentences. Regarding Collins’
    claim of excessive sentence, the district court noted that the
    sentence of a $750 fine and a 1-year license revocation for
    operating a motor vehicle to avoid arrest was within the statu-
    tory limits. The district court noted that Collins had requested
    that she be sentenced to probation rather than imprisonment
    to facilitate her participation in drug court in a separate case.
    Because the county court had declined to impose either impris-
    onment or probation, which would have been within the statu-
    tory limits, the district court found the sentence of a fine and
    revocation to be lenient considering the nature of the offense.
    The district court determined that the county court’s sentence
    was not based on reasons that were untenable or clearly against
    the evidence, and it concluded that the sentence imposed by the
    county court was not an abuse of discretion.
    Regarding the county court’s order to apply the bond to
    fines and costs, Collins argued that the order violated Neb.
    Rev. Stat. § 29-901 (Cum. Supp. 2018) and case law interpret-
    ing that statute, which Collins asserted made it mandatory for
    the court to return 90 percent of the bond deposit to her. The
    - 587 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    district court noted, however, that subsequent to the case law
    cited by Collins, the Legislature had amended Neb. Rev. Stat.
    § 29-2206 (Reissue 2016) to allow a court to deduct fines or
    costs from a bond posted by the offender. The district court
    concluded that the county court appropriately exercised its
    discretion when it applied the bond deposit to fines and costs
    imposed in Collins’ sentence.
    Collins appeals the district court’s order which affirmed
    her convictions and sentences in the county court. The district
    court appointed new counsel to represent Collins on appeal.
    ASSIGNMENTS OF ERROR
    Collins claims that the district court erred when it rejected
    her claims that (1) the county court imposed an excessive
    sentence for operating a motor vehicle to avoid arrest and
    (2) the county court erred when it ordered that her bond be
    applied to fines and costs. Collins also claims that she received
    ineffective assistance of counsel in the county court because
    “counsel failed to present sufficient evidence and informa-
    tion for the [county court’s] consideration in determining the
    proper sentence and thus her right to a fair sentencing hearing
    was prejudiced.”
    STANDARDS OF REVIEW
    [1-5] In an appeal of a criminal case from the county court,
    the district court acts as an intermediate court of appeals,
    and its review is limited to an examination of the record for
    error or abuse of discretion. State v. Valentino, 
    305 Neb. 96
    ,
    
    939 N.W.2d 345
    (2020). Both the district court and a higher
    appellate court generally review appeals from the county court
    for error appearing on the record.
    Id. When reviewing a
    judg-
    ment for errors appearing on the record, an appellate court’s
    inquiry is whether the decision conforms to the law, is sup-
    ported by competent evidence, and is neither arbitrary, capri-
    cious, nor unreasonable.
    Id. But we independently
    review
    questions of law in appeals from the county court.
    Id. When deciding appeals
    from criminal convictions in county court,
    - 588 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    we apply the same standards of review that we apply to decide
    appeals from criminal convictions in district court.
    Id. [6-8]
    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 considering and applying the relevant factors as well as
    any applicable legal principles in determining the sentence to
    be imposed. State v. Canaday, ante p. 407, ___ N.W.2d ___
    (2020). Absent an abuse of discretion by the trial court, an
    appellate court will not disturb a sentence imposed within the
    statutory limits. State v. Martinez, 
    306 Neb. 516
    , 
    946 N.W.2d 445
    (2020). An abuse of discretion occurs when a trial court’s
    decision is based upon reasons that are untenable or unreason-
    able or if its action is clearly against justice or conscience,
    reason, and evidence.
    Id. [9]
    Statutory interpretation presents a question of law, which
    an appellate court reviews independently. State v. Wilson, 
    306 Neb. 875
    , 
    947 N.W.2d 704
    (2020).
    [10,11] 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. State v. Theisen, 
    306 Neb. 591
    , 
    946 N.W.2d 677
    (2020). We determine as a matter of law whether the record
    conclusively shows that (1) a defense counsel’s performance
    was deficient or (2) a defendant was or was not prejudiced by
    a defense counsel’s alleged deficient performance.
    Id. ANALYSIS County Court
    Did Not Abuse
    Its Discretion When
    Imposing Sentence.
    Collins first claims that the district court erred when it
    rejected her claim that the county court imposed an excessive
    sentence. Collins’ argument focuses on the sentence imposed
    for operating a motor vehicle to avoid arrest and specifically
    - 589 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    on the county court’s order revoking her license for 1 year.
    We find no abuse of discretion in the sentencing, and we there-
    fore affirm the district court’s order rejecting this claim.
    The county court sentenced Collins to pay a fine of $750
    for operating a motor vehicle to avoid arrest and a fine of
    $250 for obstructing a peace officer. In connection with the
    conviction for operating a motor vehicle to avoid arrest, the
    court also ordered that Collins’ driver’s license be revoked for
    1 year. Collins’ argument focuses on the sentence for operat-
    ing a motor vehicle to avoid arrest. She does not appear to
    take issue with the $250 fine ordered for obstructing a peace
    officer, and we do not discuss that conviction or sentence fur-
    ther herein.
    Operating a motor vehicle to avoid arrest had originally
    been charged by the State as a Class IV felony pursuant to
    § 28-905(3), but the State reduced the charge pursuant to
    the plea agreement and Collins pled guilty to operating a
    motor vehicle to avoid arrest as a Class I misdemeanor under
    § 28-905(2). Under Neb. Rev. Stat. § 28-106 (Reissue 2016),
    a Class I misdemeanor may be punished with imprisonment
    for up to 1 year, a fine of up to $1,000, or both. In addition,
    § 28-905(2)(b) provides:
    The court may, as part of the judgment of conviction under
    subdivision (a) of this subsection, order that the opera-
    tor’s license of such person be revoked or impounded
    for a period of not more than one year and order the
    person not to drive any motor vehicle for any purpose in
    the State of Nebraska for a like period. The revocation
    or impoundment shall be administered upon sentencing,
    upon final judgment of any appeal or review, or upon the
    date that any probation is revoked.
    The county court’s imposition of a fine of $750 in this case
    was within the statutory limits, and under § 28-905(2)(b), the
    county court had discretion to revoke Collins’ license for up
    to 1 year. The district court on appeal from the county court
    noted that the county court did not impose a sentence of either
    imprisonment or probation, and the district court concluded
    - 590 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    that imposition of only a fine was a lenient sentence in light
    of the circumstances. We agree that the imposition of a fine of
    $750 was well within the statutory range and was not an abuse
    of discretion given the circumstances of this case.
    On appeal, Collins focuses her argument on the revocation
    of her license. When, as in this case, the offense of operat-
    ing a motor vehicle to avoid arrest is a misdemeanor under
    § 28-905(2)(a), then under § 28-905(2)(b), the court “may”
    revoke the defendant’s license for not more than 1 year. The
    use of “may” indicates that license revocation is discretionary
    when the offense is a misdemeanor. Compare § 28-905(3)(b)
    (providing that when offense is felony, court “shall” revoke
    defendant’s license for 2 years).
    [12-14] Collins argues the county court abused its discretion
    when it revoked her license because it did not consider relevant
    factors. 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
    considering and applying the relevant factors as well as any
    applicable legal principles in determining the sentence to be
    imposed. State v. Price, 
    306 Neb. 38
    , 
    944 N.W.2d 279
    (2020).
    In determining a sentence to be imposed, relevant factors cus-
    tomarily considered 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 commission 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. Collins contends that
    the county court failed to consider
    the circumstances of her life when it revoked her license. In
    particular, she notes that a license revocation will affect her
    ability to participate in drug court and her ability to transport
    - 591 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    her children and herself to school. She also directs our attention
    to the county court’s comment at the hearing on her motions
    for new trial and to reconsider sentence to the effect that a dif-
    ferent sentence may have been imposed if the court had known
    some of the facts of Collins’ life before imposing sentence.
    With respect to the county court’s alleged failure to consider
    the facts of Collins’ life, the record shows that after Collins’
    counsel had made arguments regarding sentencing, and before
    it imposed sentence, the county court asked whether there was
    anything Collins wanted to say and she declined to comment.
    We view this as the county court’s having given Collins the
    opportunity to bring relevant information to its attention, and
    the court did not abuse its discretion when it did not question
    her regarding unknown matters she now asserts were relevant
    to her sentencing.
    Further to her excessiveness claim, Collins contends the
    county court “gave excessive weight to the facts and circum-
    stances of the case.” Brief for appellant at 18. We believe this
    contention tends to minimize the nature of the offense. We
    note in this regard that the factual basis provided by the State
    for Collins’ plea indicates that in committing the offense of
    operating a motor vehicle to avoid arrest, Collins “sped away
    from the traffic stop at a high rate of speed,” that she was
    estimated to have driven “about 50 miles an hour through a
    residential neighborhood,” and that she “violate[d] the traffic
    sign . . . without slowing down, crossing traffic.” Such circum-
    stances were relevant to the county court’s decision whether
    to impose a license revocation. Notwithstanding the hardship
    a license revocation invariably imposes on an offender, we
    do not find that the county court abused its discretion when it
    relied on the facts and circumstances of the case and ordered
    license revocation.
    We conclude that the sentence imposed by the county court
    was not an abuse of discretion and that therefore, the district
    court did not err when it rejected Collins’ argument that the
    sentence was excessive.
    - 592 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    County Court Was Allowed by
    Statute to Apply Bond to
    Fines and Costs.
    Collins next claims that the district court erred when it
    rejected her claim that the county court erred when it ordered
    that her bond be applied to pay the fines and costs imposed as
    part of her sentence. We conclude that at the time of the sen-
    tencing, the statutes allowed the county court to so order, and
    that the district court did not err when it rejected this claim.
    Collins contends that the county court’s order to deduct
    fines and costs from the bond deposit violated § 29-901, State
    v. Zamarron, 
    19 Neb. Ct. App. 349
    , 
    806 N.W.2d 128
    (2011), and
    State v. McKichan, 
    219 Neb. 560
    , 
    364 N.W.2d 47
    (1985).
    Section 29-901 provides in part that a deposit of not more
    than 10 percent of the amount of the bond may be made with
    the clerk of the court, with “ninety percent of such deposit
    to be returned to the defendant upon the performance of the
    appearance or appearances and ten percent to be retained by
    the clerk as appearance bond costs.” In 
    Zamarron, supra
    , the
    Nebraska Court of Appeals concluded that the district court
    erred when it applied the defendant’s appearance bond to
    pay court costs that the defendant had been ordered to pay
    as part of his sentence. The Court of Appeals cited § 29-901
    and stated that an “appearance bond must be refunded (less
    any applicable statutory fee) after full compliance with all
    court orders to appear.” 
    Zamarron, 19 Neb. Ct. App. at 352
    , 806
    N.W.2d at 130. The Court of Appeals also cited 
    McKichan, supra
    . In McKichan, this court had held that “the deposit of
    cash in lieu of or in support of bail under § 29-901 is for the
    purpose only of ensuring the defendant’s appearance in court
    when required; and upon full compliance with any such court
    orders and release of bail, the statutory refund must be 
    made.” 219 Neb. at 563
    , 364 N.W.2d at 49. Collins argues that the use
    of the word “must” in both McKichan and Zamarron indicates
    that the appellate courts have interpreted the refund under
    § 29-901 to be mandatory.
    - 593 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    But as the district court noted in its order which affirmed
    Collins’ convictions and sentences subsequent to the decisions
    in both McKichan and Zamarron, the Legislature in 2012
    amended § 29-2206 by adding subsection (3), which provided
    that the court “may deduct fines or costs from a bond posted
    by the offender to the extent that such bond is not otherwise
    encumbered by a valid lien, levy, execution, or assignment to
    counsel of record or the person who posted the bond.” Collins
    maintains that § 29-2206 conflicts with § 29-901 and that read-
    ing the two statutes in pari materia yields an ambiguity which
    must be resolved by applying the language of § 29-901, which
    makes a refund mandatory.
    [15,16] We disagree with Collins’ reading of the two stat-
    utes. Components of a series or collection of statutes pertain-
    ing to a certain subject matter are in pari materia and should
    be conjunctively considered and construed to determine the
    intent of the Legislature, so that different provisions are con-
    sistent, harmonious, and sensible. State v. Street, 
    306 Neb. 38
    0,
    
    945 N.W.2d 450
    (2020). And to the extent there is a conflict
    between two statutes, the specific statute controls over the gen-
    eral statute.
    Id. Both § 29-901
    and § 29-2206 address disposi-
    tion of bonds, and we must read them in a manner such that
    they are consistent, harmonious, and sensible when considered
    with one another.
    Collins proposes that any conflict between the statutes must
    be resolved by favoring § 29-901, which she asserts is the
    specific statute regarding return of a bond and controls over
    § 29-2206. Because Collins’ reading of the statutes does not
    make the statutes consistent, harmonious, and sensible with one
    another and under her reading § 29-901 nullifies § 29-2206, we
    reject Collins’ proposal.
    [17] Instead, we read § 29-901 as providing that generally,
    90 percent of the bond deposit is to be returned to the defend­
    ant; however, § 29-2206 provides a specific exception to that
    general rule in that it allows the court to deduct fines and
    costs from the bond deposit prior to return of the remainder,
    - 594 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    if any. This reading of the statutes is bolstered by the fact that
    the relevant language in § 29-901 existed at the time the rel-
    evant language was added to § 29-2206. In enacting a statute,
    the Legislature must be presumed to have knowledge of all
    previous legislation upon the subject. In re Estate of Psota,
    
    297 Neb. 570
    , 
    900 N.W.2d 790
    (2017). The Legislature is
    also presumed to know the language used in a statute, and if
    a subsequent act on the same or similar subject uses different
    terms in the same connection, the court must presume that
    a change in the law was intended.
    Id. See, also, Shipler
    v.
    General Motors Corp., 
    271 Neb. 194
    , 216, 
    710 N.W.2d 807
    ,
    829 (2006) (“last expression of legislative will is the law”).
    Therefore, we presume that when it amended § 29-2206
    in 2012 to allow a court to deduct fines and costs from a
    bond, the Legislature was aware of the language of § 29-901
    requiring the return of 90 percent of the bond deposit to the
    defendant. We therefore presume the Legislature specifically
    intended that the deduction of fines and costs was an excep-
    tion to the general rule that the bond deposit is to be returned
    to the defendant.
    We conclude that when the county court entered its order on
    April 3, 2019, § 29-2206 allowed it to deduct fines and costs
    from the bond deposit and § 29-901 did not prohibit it from
    doing so. We therefore conclude that the district court did not
    err when it affirmed the county court’s order to deduct fines
    and costs from Collins’ appearance bond deposit.
    Collins Has Not Shown
    Ineffective Assistance
    of Counsel.
    Collins finally claims that she received ineffective assistance
    of counsel in the county court because at the sentencing hear-
    ing, “counsel failed to present sufficient evidence and informa-
    tion for the [county court’s] consideration in determining the
    proper sentence and thus her right to a fair sentencing hearing
    was prejudiced.” We conclude that the record on direct appeal
    does not show ineffective assistance.
    - 595 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    Whether a claim of ineffective assistance of trial counsel
    can be determined on direct appeal depends upon the suffi-
    ciency 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.
    See State v. Theisen, 
    306 Neb. 591
    , 
    946 N.W.2d 677
    (2020).
    We have said 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. [18-21]
    To prevail on a claim of ineffective assistance of
    counsel, the defendant must show that his or her counsel’s
    performance was deficient and that this deficient performance
    actually prejudiced the defendant’s defense. State v. Anderson,
    
    305 Neb. 978
    , 
    943 N.W.2d 690
    (2020). 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. To show prejudice,
    the
    defendant must demonstrate a reasonable probability that but
    for counsel’s deficient performance, the result of the proceed-
    ing would have been different.
    Id. A reasonable probability
    is
    a probability sufficient to undermine confidence in the out-
    come.
    Id. We note as
    an initial matter that in her brief, Collins argues
    in part that counsel provided ineffective assistance because
    counsel “failed to ask for [her] bond to be released to her.”
    Brief for appellant at 28. We do not think this argument is
    encompassed within Collins’ assignment of error in which she
    alleges that “counsel failed to present sufficient evidence and
    information for the [county court’s] consideration in determin-
    ing the proper sentence.” See State v. Mrza, 
    302 Neb. 931
    ,
    
    926 N.W.2d 79
    (2019) (providing that assignments of error
    on direct appeal regarding ineffective assistance of trial coun-
    sel must specifically allege deficient performance). In any
    event, this claim is unavailing because as we discussed above,
    at the time the county court ordered that fines and costs be
    - 596 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    deducted from Collins’ bond, the county court had statutory
    authority to do so whether or not Collins requested return of
    the bond, and therefore, counsel’s alleged failure to ask that the
    bond be released to her did not prejudice Collins.
    As quoted above, Collins primarily asserts that counsel pro-
    vided ineffective assistance when “counsel failed to present
    sufficient evidence and information for the [county court’s]
    consideration in determining the proper sentence.” She spe-
    cifically argues that at sentencing, counsel failed to present the
    evidence that counsel later asserted in the motions for new trial
    or to reconsider sentence all to the effect that newly discov-
    ered evidence would show that a license revocation would be
    a hardship for Collins. We determine that the record on direct
    appeal does not show that counsel’s performance was deficient
    in this regard and that the record refutes a finding that any such
    deficiency was prejudicial.
    Regarding deficient performance, a defendant must show
    that counsel’s performance did not equal that of a lawyer with
    ordinary training and skill in criminal law. 
    Anderson, supra
    .
    The record on direct appeal does not contain evidence which
    would assist this court in assessing what factors a lawyer with
    ordinary training and skill would have presented at the sentenc-
    ing, nor does it indicate that Collins’ counsel behaved unrea-
    sonably when he focused on avoiding a sentence of imprison-
    ment at the expense of other features of the sentence.
    In the affidavit of counsel offered in support of the motions
    for new trial and to reconsider sentence, counsel states that
    “[d]ue to the urgency” of getting Collins into drug court, coun-
    sel “had limited time between plea negotiations and plea entry
    to discuss sentencing with [Collins],” and that counsel “was
    unaware of certain facts about [Collins] that are material to
    sentencing.” But rather than declaring that such circumstance
    showed deficient performance, counsel stated to the contrary
    that “due to extenuating circumstances, [counsel] could not
    have with reasonable diligence discovered and produced [such
    evidence] prior to or during sentencing.” Counsel’s affida-
    vit, taken as a whole, refutes a determination that counsel’s
    - 597 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    failure to present the evidence at sentencing constituted defi-
    cient performance.
    Further, we believe that the record also refutes a finding of
    prejudice. Regarding prejudice, the defendant must demon-
    strate a reasonable probability that but for counsel’s deficient
    performance, the result of the proceeding would have been dif-
    ferent, and a reasonable probability is a probability sufficient
    to undermine confidence in the outcome. State v. Anderson,
    
    305 Neb. 978
    , 
    943 N.W.2d 690
    (2020). Collins gains some
    support for her allegation of prejudice from the county court’s
    comment at the hearing on the motions for new trial and to
    reconsider sentence that if it “had known some of these things
    beforehand, [it] probably would have likely ruled differently.”
    However, the county court’s comment is vague as to what the
    court would have done differently and we cannot presume that
    the court would not have imposed a license revocation. We
    cannot find that the court’s comment establishes a probability
    sufficient to undermine confidence in the outcome.
    We have reviewed the record and find that it refutes a find-
    ing of prejudice even if counsel had been deficient. At the plea
    hearing, the State informed Collins of the sentencing range for
    the amended charges and stated that as to the charge of operat-
    ing a motor vehicle to avoid arrest, “your driver’s license will
    also be revoked for up to one year.” Collins stated that she
    understood the charges and possible penalties just recited.
    The State’s advisement, such as it was, could only have
    alerted Collins and her counsel that license revocation could
    follow. Later, in the plea colloquy, the county court asked
    Collins whether she had “had enough time to think about [her]
    plea and discuss it with [counsel],” and Collins replied that
    she had. After accepting Collins’ plea and before pronouncing
    sentence, the county court allowed counsel to argue on behalf
    of Collins. After Collins’ counsel’s argument, the county court
    asked whether Collins had “anything she wishe[d] to say,” and
    Collins replied, “No.”
    The record of the plea and sentencing hearing shows that
    even if counsel was deficient in failing to inform Collins of
    - 598 -
    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    STATE v. COLLINS
    Cite as 
    307 Neb. 581
    the possibility of a license revocation and to solicit informa-
    tion from Collins relevant to that possibility, such deficiency
    did not prejudice Collins. After the State stated “your driver’s
    license will also be revoked for up to one year,” the court
    gave Collins the opportunity to say she had not discussed the
    issue of a license revocation with counsel; instead, she said
    she had had sufficient time to discuss her plea with counsel.
    Also, prior to sentencing and after hearing the argument coun-
    sel had made on her behalf, the court provided Collins the
    opportunity to inform it of circumstances relevant to sentenc-
    ing that had not been presented by counsel, but she chose not
    to say anything.
    We conclude that the record on direct appeal refutes Collins’
    claim of ineffective assistance of counsel. We therefore reject
    Collins’ claim on direct appeal that counsel provided ineffec-
    tive assistance at sentencing.
    CONCLUSION
    We conclude that the district court did not err when it
    rejected Collins’ claim that the county court imposed exces-
    sive sentences and her claim that the county court erred when
    it ordered that fines and costs be deducted from her bond. We
    further conclude that Collins’ claim of ineffective assistance of
    counsel is refuted by the record on direct appeal. We therefore
    affirm the district court’s order which affirmed Collins’ convic-
    tions and sentences.
    Affirmed.