State v. Drake , 311 Neb. 219 ( 2022 )


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    www.nebraska.gov/apps-courts-epub/
    06/10/2022 01:07 AM CDT
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    311 Nebraska Reports
    STATE v. DRAKE
    Cite as 
    311 Neb. 219
    State of Nebraska, appellee, v.
    John A. Drake, appellant.
    ___ N.W.2d ___
    Filed March 25, 2022.    No. S-21-179.
    1. Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. In reviewing a trial court’s ruling on a motion to
    suppress based on a claimed violation of the Fourth Amendment, an
    appellate court applies a two-part standard of review. Regarding histori-
    cal facts, an appellate court reviews the trial court’s findings for clear
    error, but whether those facts trigger or violate Fourth Amendment
    protections is a question of law that an appellate court reviews indepen-
    dently of the trial court’s determination.
    2. Statutes: Appeal and Error. Statutory interpretation is a question of
    law, which an appellate court resolves independently of the trial court.
    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. Constitutional Law: Police Officers and Sheriffs: Search and
    Seizure. The first tier of police-citizen encounters involves no restraint
    of the liberty of the citizen involved, but, rather, the voluntary coopera-
    tion of the citizen is elicited through noncoercive questioning. This type
    of contact does not rise to the level of a seizure and therefore is outside
    the realm of Fourth Amendment protection.
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    6. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
    Investigative Stops: Search and Seizure: Appeal and Error. The sec-
    ond tier of police-citizen encounters, the investigatory stop, as defined
    by the U.S. Supreme Court in Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
    ,
    
    20 L. Ed. 2d 889
     (1968), is limited to brief, nonintrusive detention dur-
    ing a frisk for weapons or preliminary questioning. This type of encoun-
    ter is considered a seizure sufficient to invoke Fourth Amendment safe-
    guards, but because of its less intrusive character requires only that the
    stopping officer have specific and articulable facts sufficient to give rise
    to reasonable suspicion that a person has committed or is committing
    a crime.
    7. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
    Arrests: Search and Seizure: Probable Cause. The third tier of
    police-citizen encounters, arrests, is characterized by highly intrusive
    or lengthy search or detention. The Fourth Amendment requires that an
    arrest be justified by probable cause to believe that a person has com-
    mitted or is committing a crime.
    8. Sentences: Prior Convictions: Habitual Criminals: Proof. In a habit-
    ual criminal proceeding, the State’s evidence must establish with requi-
    site trustworthiness, based upon a preponderance of the evidence, that
    (1) the defendant has been twice convicted of a crime, for which he or
    she was sentenced and committed to prison for not less than 1 year; (2)
    the trial court rendered a judgment of conviction for each crime; and (3)
    at the time of the prior conviction and sentencing, the defendant was
    represented by counsel or had knowingly and voluntarily waived repre-
    sentation for those proceedings.
    9. Statutes. It is not within the province of the courts to read a meaning
    into a statute that is not there or to read anything direct and plain out of
    a statute.
    10. 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 ineffective assistance of trial counsel issue will be
    procedurally barred.
    11. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an
    appellate court will determine whether the record on appeal is sufficient
    to review the merits of the ineffective performance claims. 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
    as a matter of law, or that trial counsel’s actions could not be justi-
    fied as a part of any plausible trial strategy. Conversely, an ineffective
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    STATE v. DRAKE
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    assistance of counsel claim will not be addressed on direct appeal if it
    requires an evidentiary hearing.
    12. Postconviction: Effectiveness of Counsel: Appeal and Error. The
    necessary specificity of allegations of ineffective assistance of trial
    counsel on direct appeal for purposes of avoiding waiver requires, at a
    minimum, allegations of deficient performance described with enough
    particularity for an appellate court to make a determination of whether
    the claim can be decided upon the trial record and also for a district
    court later reviewing a potential petition for postconviction relief to
    be able to recognize whether the claim was brought before the appel-
    late court.
    13. Effectiveness of Counsel: Appeal and Error. Assignments of error
    on direct appeal regarding ineffective assistance of trial counsel must
    specifically allege deficient performance, and an appellate court will not
    scour the remainder of the brief in search of such specificity.
    Appeal from the District Court for York County: James C.
    Stecker, Judge. Affirmed.
    Jerry D. Clinch and Steven B. Fillman, of Fillman Law
    Offices, L.L.C., for appellant.
    Douglas J. Peterson, Attorney General, and Matthew Lewis
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Heavican, C.J.
    I. INTRODUCTION
    John A. Drake was arrested in December 2018 in York
    County, Nebraska, after methamphetamine and drug parapher-
    nalia were found in his vehicle and on his person. Drake’s
    motion to suppress evidence seized during his arrest was
    denied. After a stipulated bench trial, the district court found
    Drake guilty of possession of a controlled substance and found
    him to be a habitual criminal under 
    Neb. Rev. Stat. § 29-2221
    (Reissue 2016). Due to his enhanced sentence, the court sen-
    tenced Drake to a term of 10 to 12 years’ incarceration. Drake
    appealed, challenging the denial of his motion to suppress,
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    challenging the enhancement of his sentence, and alleging inef-
    fective assistance of trial counsel. We affirm.
    II. FACTUAL BACKGROUND
    As noted above, Drake was arrested by a York County sher-
    iff’s deputy, Korey Goplin, on December 28, 2018, after meth-
    amphetamine and drug paraphernalia were found in his vehicle
    and on his person. In March 2019, the York County Attorney’s
    office charged Drake with possession of a controlled sub-
    stance with intent to distribute methamphetamine, possession
    of a controlled substance, and being a habitual criminal under
    § 29-2221. The York County public defender was thereafter
    appointed as counsel for Drake. Drake waived his right to
    speedy trial and the matter was set for a jury trial to commence
    on August 20, 2019, in the district court for York County.
    On August 14, 2019, Drake moved to suppress evidence
    obtained as a result of the traffic stop. Drake’s counsel attached
    an affidavit to the motion, stating that he was aware the motion
    to suppress was not filed more than 10 days prior to trial as
    required by law, unless permitted by the court for good cause
    shown. Counsel requested the court find good cause, stating
    that he had previously given verbal notice to the court and to
    the State on August 6 and that the failure to timely file the
    motion to suppress was exclusively counsel’s responsibility due
    to an “inability to adjust [to] an unusually heavy workload.”
    The district court granted such leave and scheduled a hearing
    on the motion to suppress to be held on August 22, with a jury
    trial to immediately follow.
    At the suppression hearing, the State called Goplin, who
    testified that on December 28, 2018, he came upon a green
    Buick traveling northbound on Road E, south of Interstate 80
    between York and Henderson, Nebraska, at very slow speeds.
    Goplin followed the Buick for a short time and “ran its license
    plate” to check whether the it was stolen. During this time,
    the Buick turned southbound down a dead-end road which led
    to a residence. Goplin testified that there had recently been
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    multiple thefts in the county, so he became suspicious of the
    Buick when it stopped in a residential driveway late at night,
    yet no one exited the vehicle.
    Goplin returned to the intersection of Road E and Road 8,
    keeping the Buick in his sight. The Buick left the residence
    and returned to the intersection of Road E and Road 8, turning
    southbound on Road E. Goplin again followed the Buick for a
    short period of time, when suddenly the Buick stopped in the
    middle of Road E. Goplin parked his cruiser behind the Buick
    to make contact with the driver, Drake.
    Upon contact, Goplin asked Drake “what he was doing back
    at the residence because [Goplin] didn’t see anybody get out
    of the vehicle.” Drake informed Goplin that he “just dropped
    off a friend named Candace Powers.” Goplin was familiar with
    Candace Powers and knew she did not live at that residence.
    During this conversation, Drake stated, seemingly unprompted,
    that “it’s been a long time since [I’ve] been in trouble with
    law enforcement.” Goplin returned to his cruiser to check the
    status of Drake’s driver’s license, which indicated that Drake
    had a valid driver’s license and no arrest warrants, but had a
    history of drug possession. Goplin then activated his cruiser’s
    emergency lights before returning to the Buick, stating that he
    did so due to road conditions and the position of the vehicles
    in the middle of the roadway.
    Upon returning to Drake’s vehicle, Goplin reiterated to
    Drake that he was not stopped and that Drake had stopped on
    his own. Goplin continued to question Drake about his activi-
    ties that night, asking individual questions regarding whether
    Drake had any weapons, drugs, or weapons of mass destruc-
    tion in the vehicle. According to Goplin, when Drake was
    specifically asked about drugs, Drake broke eye contact and
    looked down, which indicated to Goplin that Drake may be
    engaged in criminal drug activity.
    During this time, Drake stated he was lost and trying to
    get home. Goplin thought this was suspicious because Drake
    had also said he dropped a friend, Powers, off at her home,
    whom Goplin knew did not live at the home Drake had just
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    visited. Drake also said that he had previously driven from his
    home in Aurora, Nebraska, to Powers’ actual house multiple
    times, and he even described the directions from Aurora to
    Powers’ house. Goplin thought “it was odd that Drake would
    be lost if he knew the route.”
    Goplin asked Drake to exit the vehicle and come to his
    cruiser due to the cold temperature outside. Drake then grabbed
    his jacket in a way which appeared to Goplin “as if he was try-
    ing not to disturb the contents within it, instead of just jumping
    out and picking it up.” Goplin asked if he could search Drake’s
    person, which Drake refused.
    Drake got into the front passenger seat of Goplin’s cruiser,
    at which time Goplin asked Drake about whether drugs were
    in the Buick. Drake would not answer directly, and instead,
    he stated that the vehicle belonged to his boss. Drake refused
    consent to search the vehicle upon that basis. Goplin informed
    Drake that because he was in control of the vehicle, he could
    give consent to search the vehicle, but Drake refused. Goplin
    asked if Drake would be willing to wait for a “drug dog” to do
    a “sniff of the vehicle,” and Drake agreed.
    While waiting for the drug dog to arrive, Goplin did not
    affirmatively tell Drake that he was free to go, but also did
    not inform Drake that he could not leave. Goplin recalled that
    Drake did not ask whether he was being detained and did not
    revoke consent to the search of the vehicle.
    Thirty-nine minutes later, another York County sheriff’s
    deputy, Robert Penner, arrived with the drug dog, which alerted
    that drugs were located in the vehicle. Goplin searched the vehi-
    cle and found multiple small baggies consistent with the distri-
    bution of controlled substances. Goplin then searched Drake’s
    person. Inside Drake’s jacket, Goplin found a sunglasses case
    with 5 grams of suspected methamphetamine, a pipe, and a
    straw. Goplin arrested Drake. Testing later confirmed that the
    substance was methamphetamine.
    On cross-examination, Goplin indicated that detained motor-
    ists typically wait an average of 20 minutes for “arrival of
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    [a] drug dog for a sniff search.” Goplin also stated that although
    the road conditions were hazardous and there was 1 to 2 inches
    of snow on the ground, the road was not completely snow cov-
    ered so it was suspicious that Drake was traveling only about
    25 miles per hour. Goplin testified that during the 39 minutes
    he and Drake waited for the drug dog to arrive, they had short
    conversations about Drake’s job, why he was driving his boss’
    vehicle, and what had happened to his vehicle. Penner testified
    after Goplin, providing a similar account of events.
    Drake then took the stand to testify. Drake stated that he was
    lost when he turned down the driveway and that there had been
    no signs indicating that it was a driveway or a dead end. He
    had seen Goplin following him before turning down the dead-
    end road, and upon returning to the main road, he saw that
    Goplin was following him for a second time, so Drake decided
    to stop “to let him know what was going on.” After Drake gave
    his driver’s license to Goplin, Goplin turned on his cruiser’s
    emergency lights. Drake stated that Goplin returned and told
    Drake “everything was fine there and he just wanted to ask
    [Drake] some questions.” However, Drake testified that after
    Goplin had turned his cruiser’s emergency lights on and asked
    Drake to “join him in his vehicle,” Drake believed he was being
    detained. Drake stated that he did ask if he was free to go, to
    which Goplin “would not reply but changed subjects.”
    The court overruled Drake’s motion to suppress after mak-
    ing specific findings on the record as follows:
    That it was a voluntary stop by [Drake]; that [Drake] then
    violated the law by stopping his vehicle in the middle
    of the road, impeding traffic, a violation of Nebraska
    law. The community caretaker provision with [Drake’s]
    stopping late at night in cold weather is also applicable.
    [Drake’s] behavior by driving slow late at night, driv-
    ing into a dead end and not being a local vehicle was
    suspicious. The contact initially was voluntary. [Drake]
    when meeting with [the] officer gave suspicious answers.
    The [o]fficer knew the residence of Candace Powers,
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    knew that it was not Candace Powers’ residence and that
    he did know Candace Powers and that [Drake] had said
    that he had been to Candace Powers’ many times but yet
    that he was lost. Those [are] suspicious answers. [Drake]
    indicated that [the Buick] was not his vehicle. There was
    no evidence of permission for him to drive the vehicle,
    therefore he had no standing to object to the search.
    [Drake] agreed to wait for the drug dog. He was never
    arrested, not cuffed and never detained. He did consent to
    wait for the drug dog. That consent was never withdrawn.
    The dog was deployed, did alert and indicate, and at that
    point reasonable suspicion existed. . . . During the search
    baggies were found. [Drake] had a drug history. [Drake]
    acted suspiciously by the way he picked up and held his
    jacket. The officer had reasonable suspicion that a crime
    was afoot. The officer had probable cause to search.
    Following a stipulated bench trial, the court found Drake
    not guilty of count I, possession of a controlled substance with
    intent to distribute, and guilty of count II, possession of a con-
    trolled substance. An enhancement hearing was subsequently
    held, after which the court found Drake to be a habitual crimi-
    nal pursuant to § 29-2221. Drake was sentenced to a term of 10
    to 12 years’ imprisonment.
    The record indicates that after sentencing, Drake’s counsel
    failed to perfect an appeal. Drake then submitted a petition
    for postconviction relief, and the district court found that this
    failure had denied Drake an opportunity to appeal the court’s
    October 2019 ruling. The district court reinstated Drake’s right
    to appeal on February 8, 2021, and Drake thereafter perfected
    an appeal. We subsequently moved this case to our docket.
    On appeal, Drake challenges the district court’s denial of his
    motion to suppress on the basis that the stop was not consen-
    sual and that Drake believed he was being detained.
    Drake also challenges the court’s enhancement of his sen-
    tence, arguing that the State must have presented evidence
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    that Drake “was sent to prison for a fixed period of time of
    not less than one year and that at least one year was served in
    prison,” in order to satisfy § 29-2221. 1 According to § 29-2221,
    a defendant must have “been twice convicted of a crime, sen-
    tenced, and committed to prison . . . for terms of not less than
    one year.”
    In addition, Drake’s appellate counsel is different than his
    trial counsel, and Drake alleges several instances of ineffective
    assistance of trial counsel.
    III. ASSIGNMENTS OF ERROR
    On appeal, Drake assigns that the district court erred in (1)
    denying Drake’s motion to suppress; (2) finding Drake to be a
    habitual criminal pursuant to § 29-2221; and (3) finding that
    Drake received ineffective assistance of trial counsel because
    trial counsel (a) failed to file and schedule a timely motion to
    suppress, (b) failed to request certain discovery prior to trial,
    (c) failed to subpoena witnesses necessary to provide founda-
    tion for exhibits, (d) agreed to a stipulated bench trial with
    stipulated facts, and (e) generally lacked the training and expe-
    rience for purposes of acting as public defender.
    IV. STANDARD OF REVIEW
    [1] In reviewing a trial court’s ruling on a motion to sup-
    press based on a claimed violation of the Fourth Amendment,
    an appellate court applies a two-part standard of review. 2
    Regarding historical facts, an appellate court reviews the trial
    court’s findings for clear error, but whether those facts trig-
    ger or violate Fourth Amendment protections is a question of
    law that an appellate court reviews independently of the trial
    court’s determination. 3
    1
    Brief for appellant at 17.
    2
    State v. Lowman, 
    308 Neb. 482
    , 
    954 N.W.2d 905
     (2021); State v. Briggs,
    
    308 Neb. 84
    , 
    953 N.W.2d 41
     (2021).
    3
    
    Id.
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    [2] Statutory interpretation is a question of law, which an
    appellate court resolves independently of the trial court. 4
    [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. 5 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. 6
    V. ANALYSIS
    1. Motion to Suppress
    On appeal, Drake argues that the trial court erred in deny-
    ing his motion to suppress. Drake asserts that the stop which
    occurred on December 28, 2018, was not voluntary and that
    thus, the evidence obtained as a result of that stop was obtained
    in violation of the Fourth Amendment. Drake claims that
    Goplin followed him long enough to “prompt[]” 7 Drake to stop
    his vehicle; that Goplin questioned Drake “in earnest,” 8 which
    intimidated Drake; that Goplin then turned on his cruiser’s
    emergency lights in a manner that led Drake to believe that
    he was being detained; and finally, that as they waited for the
    4
    State v. Lierman, 
    305 Neb. 289
    , 
    940 N.W.2d 529
     (2020); Griffith v.
    Nebraska Dept. of Corr. Servs., 
    304 Neb. 287
    , 
    934 N.W.2d 169
     (2019).
    5
    State v. Lowman, 
    supra note 2
    ; State v. Theisen, 
    306 Neb. 591
    , 
    946 N.W.2d 677
     (2020).
    6
    State v. Lowman, 
    supra note 2
    ; State v. Lang, 
    305 Neb. 726
    , 
    942 N.W.2d 388
     (2020), cert. denied ___ U.S. ___, 
    141 S. Ct. 415
    , 
    208 L. Ed. 2d 119
    .
    7
    Brief for appellant at 12.
    8
    
    Id. at 13
    .
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    drug dog to arrive, Goplin refused to tell Drake whether he was
    free to go.
    [5-7] Under Nebraska law and the law regarding seizures in
    the context of the Fourth Amendment, there are three tiers of
    police-citizen encounters. 9 As we have previously stated:
    The first tier of police-citizen encounters involves no
    restraint of the liberty of the citizen involved, but, rather,
    the voluntary cooperation of the citizen is elicited through
    noncoercive questioning. This type of contact does not
    rise to the level of a seizure and therefore is outside the
    realm of Fourth Amendment protection.
    The second tier, the investigatory stop, as defined by
    the U.S. Supreme Court in Terry v. Ohio, is limited to
    brief, nonintrusive detention during a frisk for weapons
    or preliminary questioning. This type of encounter is con-
    sidered a seizure sufficient to invoke Fourth Amendment
    safeguards, but because of its less intrusive character
    requires only that the stopping officer have specific and
    articulable facts sufficient to give rise to reasonable sus-
    picion that a person has committed or is committing
    a crime.
    The third type of police-citizen encounters, arrests, is
    characterized by highly intrusive or lengthy search or
    detention. The Fourth Amendment requires that an arrest
    be justified by probable cause to believe that a person has
    committed or is committing a crime. 10
    (a) First-Tier Police-Citizen Encounter
    (i) Voluntary Stop
    According to the record, Goplin was on patrol in the area
    when he noticed Drake’s vehicle driving at slow speeds, around
    25 miles per hour, which was slower than Goplin would expect
    given the weather conditions. Goplin followed the vehicle
    9
    See State v. Lowman, 
    supra note 2
    .
    10
    
    Id. at 491-92
    , 954 N.W.2d at 916.
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    to check the license plate, which is standard practice. When the
    vehicle went down a dead-end road, Goplin kept the vehicle
    in his sight but did not follow. Once the vehicle returned to
    the main intersection, Goplin again followed, but did not acti-
    vate his cruiser’s emergency lights or indicate that the vehicle
    needed to stop.
    While Drake says that he stopped only because Goplin’s
    actions “prompt[ed]” 11 him to do so, Drake still chose to stop
    in the middle of the road instead of pulling over or onto the
    shoulder. At this point, Goplin made contact with Drake, but
    informed him that he had not been stopped and that Drake had
    stopped on his own. Goplin questioned Drake about what he
    was doing that night but did not detain Drake, and Goplin even
    told Drake that “everything was fine” and that he just had a
    few questions.
    When Goplin later asked Drake if he would consent to a
    search of his person or of the vehicle, Drake refused both.
    Drake refused consent to the search of the vehicle because he
    claimed it was not his own, and he continued to refuse consent
    even after Goplin explained that he could give consent even
    though it was not his vehicle, if that is what Drake wanted to
    do. Drake’s continued refusal to consent to a search supports
    the district court’s determination that the contact was voluntary,
    and we find that determination to not be clearly erroneous.
    (ii) Waiting for Drug Dog
    According to the district court, Drake later agreed to wait
    for a drug dog, consented to the drug dog’s performing a
    search of the vehicle, and never withdrew such consent. The
    district court also found that Drake was never detained during
    this time.
    Goplin testified that Drake was seated in Goplin’s cruiser in
    the front seat with an unlocked door and that he asked Drake
    to join him in his cruiser because the cold temperatures did not
    allow Goplin and Drake to wait outside. Drake also testified
    11
    Brief for appellant at 12.
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    that Goplin, after checking Drake’s driver’s license and return-
    ing to Drake’s vehicle, “said that everything was fine” and “he
    just wanted to ask [Drake] some questions.” Drake stated that
    he “had to turn almost at a 45 to talk to [Goplin]” and that
    when Drake did so, the front lights of the cruiser reflected off
    the Buick’s rearview mirror into his eyes. This is when Goplin
    asked Drake if he “would join him in his vehicle.”
    Drake asserts that while he was in Goplin’s cruiser waiting
    for the drug dog to arrive, he asked Goplin if he was free to
    go, and that Goplin “would not reply” or would change sub-
    jects. By contrast, counsel for Drake asked Goplin definitively,
    “[d]id [Drake] ever ask you whether he was free to leave?” to
    which Goplin responded, “No.” Goplin also testified that he
    had informed Drake multiple times he had not been stopped
    and that he “reiterated [he] had not conducted a traffic stop” on
    Drake and “[i]f [Drake] was being detained, I would have told
    him he was detained.”
    Based on this evidence and testimony, the district court
    determined that Drake was never detained, implicitly finding
    Goplin to be a more credible witness than Drake. Regarding
    historical facts, an appellate court reviews the trial court’s
    findings for clear error, but does not resolve conflicts in the
    evidence, pass on the credibility of witnesses, or reweigh the
    evidence. 12 Because these findings are supported by the record
    and testimony, they are not clearly erroneous.
    (iii) 39-Minute Wait
    Drake further argues that his waiting for at least 39 minutes
    for the drug dog to arrive is evidence that he was unreason-
    ably detained. The evidence and testimony within the record
    show that Drake voluntarily consented to wait; thus, Drake’s
    waiting 39 minutes did not transform an otherwise voluntary
    inter­action into a detention. But we note that even if Drake had
    been detained during the 39-minute wait for the drug dog to
    arrive, such period of time would not be unreasonable.
    12
    See State v. Lowman, 
    supra note 2
    .
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    We have previously held that an investigatory stop lasting
    34 to 45 minutes was not unreasonable for purposes of the
    Fourth Amendment. 13 And investigatory stops lasting 50 min-
    utes or longer have been upheld in several federal courts. For
    example, in U.S. v. Hardy, 14 the court determined that a wait of
    50 minutes for the arrival of a drug dog was not unreasonable
    for Fourth Amendment purposes. In U.S. v. White, 15 the court
    determined that a 1-hour-20-minute wait for the arrival of a
    drug dog was not unreasonable for Fourth Amendment pur-
    poses, and in U.S. v. Bloomfield, 16 the court held that a 1-hour
    wait for arrival of a drug dog was not unreasonable for Fourth
    Amendment purposes.
    The testimony of both Goplin and Penner indicates that
    Penner was awoken in the middle of the night and had to
    travel to where Goplin and Drake were located for the drug
    dog to perform the search, each a reasonable explanation for
    this period of delay. Thus, even if Drake had been detained, a
    39-minute wait would not be unreasonable for purposes of the
    Fourth Amendment.
    Because the vehicle stop was voluntary and Drake was not
    detained, the initial interactions between Goplin and Drake
    placed no restraint on Drake’s liberty. Drake’s interaction
    with Goplin was elicited through noncoercive questioning.
    Hence, these early interactions are best defined as a first-tier
    police citizen encounter outside the protections of the Fourth
    Amendment.
    (b) Second-Tier Police-Citizen Encounter
    When the drug dog arrived to perform a “free air sniff” of
    the vehicle, it indicated and alerted to the presence of drugs.
    Drake was detained, and at this time, the interaction evolved
    13
    See   State v. Soukharith, 
    253 Neb. 310
    , 
    570 N.W.2d 344
     (1997).
    14
    See   U.S. v. Hardy, 
    855 F.2d 753
     (11th Cir. 1988).
    15
    See   U.S. v. White, 
    42 F.3d 457
     (8th Cir. 1994).
    16
    See   U.S. v. Bloomfield, 
    40 F.3d 910
     (8th Cir. 1994).
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    into a second-tier police-citizen encounter. Goplin had a rea-
    sonable suspicion to believe a crime had occurred based on
    the totality of the circumstances, as well as probable cause to
    believe that contraband or evidence of a crime would be found
    in Drake’s vehicle. On that basis, Goplin was permitted to
    detain Drake per Terry v. Ohio, 17 and because Drake’s vehicle
    was readily mobile, the automobile exception applied to per-
    mit a warrantless search of the vehicle. 18 Thus, when Goplin
    detained Drake and executed a warrantless search of Drake’s
    vehicle, evidence obtained as a result was not obtained in vio-
    lation of the Fourth Amendment.
    Upon finding contraband and drugs in Drake’s vehicle, a
    search of Drake’s person was permitted pursuant to the excep-
    tion to the warrant requirement for searches incident to a valid
    arrest. 19 Evidence obtained as a result of this search also was
    not obtained in violation of the Fourth Amendment.
    Based on a review of the record, the initial interactions
    between Goplin and Drake were consensual, the “free air sniff”
    by the drug dog was consensual, and the evidence obtained as
    a result of both a search of Drake’s vehicle and his person was
    not obtained in violation of the Fourth Amendment.
    Because the district court’s findings of historical fact
    were not clearly erroneous and because we find no Fourth
    Amendment violation, we conclude the court properly over-
    ruled Drake’s motion to suppress.
    2. Habitual Criminal
    In his second assignment of error, Drake asserts that the dis-
    trict court erred in finding Drake to be a habitual criminal for
    purposes of enhancing his sentence. Drake argues that the plain
    language of the habitual criminal statute, § 29-2221, requires
    that the State’s evidence in a habitual criminal proceeding
    17
    Terry v. Ohio, 
    392 U.S. 1
    , 
    88 S. Ct. 1868
    , 
    20 L. Ed. 2d 889
     (1968).
    18
    See State v. Lowman, 
    supra note 2
    .
    19
    See 
    id.
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    must establish by a preponderance of the evidence that Drake
    “was sent to prison for a fixed period of time of not less than
    one year and that at least one year was served in prison.” 20
    According to § 29-2221:
    (1) Whoever has been twice convicted of a crime, sen-
    tenced, and committed to prison, in this or any other state
    or by the United States or once in this state and once at
    least in any other state or by the United States, for terms
    of not less than one year each shall, upon conviction of a
    felony committed in this state, be deemed to be a habitual
    criminal and shall be punished by imprisonment in a
    Department of Correctional Services adult correctional
    facility for a mandatory minimum term of ten years and a
    maximum term of not more than sixty years[.]
    [8] We have further noted:
    In a habitual criminal proceeding, the State’s evidence
    must establish with requisite trustworthiness, based upon
    a preponderance of the evidence, that (1) the defendant
    has been twice convicted of a crime, for which he or she
    was sentenced and committed to prison for not less than 1
    year; (2) the trial court rendered a judgment of conviction
    for each crime; and (3) at the time of the prior conviction
    and sentencing, the defendant was represented by counsel
    or had knowingly and voluntarily waived representation
    for those proceedings. 21
    In construing § 29-2221, Drake relies on the Black’s Law
    Dictionary definitions of the word “commit”—“[t]o send (a
    person) to prison or to a mental health facility, esp. by court
    order” 22; the word “commitment”—the “act of confining a
    person in a prison, mental hospital, or other institution” 23; and
    20
    Brief for appellant at 17.
    21
    State v. Dixon, 
    286 Neb. 334
    , 350, 
    837 N.W.2d 496
    , 508 (2013).
    22
    Black’s Law Dictionary 340 (11th ed. 2019).
    23
    
    Id.
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    the word “term”—a “fixed period of time; esp., the period for
    which an estate is granted.” 24 Accordingly, Drake understands
    these words as used in § 29-2221 to mean that the State is
    required to prove that Drake “was sent to prison for a fixed
    period of time of not less than one year and that at least one
    year was served in prison” by Drake. 25
    Because the State failed to show that Drake actually served
    at least 1 year on each of those sentences and the trial court
    accordingly made no such finding, Drake asserts that this
    court must vacate the district court’s determination that Drake
    was a habitual criminal, vacate the sentence it imposed, and
    remand the matter for resentencing without a habitual criminal
    enhancement. Drake cites no other authority for his reading of
    the statute, and we are not aware of any such authority.
    [9] Hence, we disagree with Drake’s interpretation of
    § 29-2221 and observe that the term “commitment,” as defined
    by Black’s Law Dictionary, has multiple meanings. Another
    definition for “commitment” is the “order directing an officer
    to take a person to a penal . . . institution.” 26 It is not within the
    province of the courts to read a meaning into a statute that is
    not there or to read anything direct and plain out of a statute. 27
    This alternative definition is consistent with the plain language
    of § 29-2221, and thus, we will apply it here.
    Pursuant to our reading of § 29-2221, for purposes of the
    words “committed to prison,” the State needs to show only that
    the defendant has twice been ordered by the court to be com-
    mitted for at least 1 year to a penal institution. The State is not
    required to produce evidence that Drake actually served a full
    year in prison.
    24
    Id. at 1773.
    25
    Brief for appellant at 17.
    26
    Black’s Law Dictionary at 340.
    27
    Hauptman, O’Brien v. Auto-Owners Ins. Co., 
    310 Neb. 147
    , 
    964 N.W.2d 264
     (2021).
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    As evidence of prior convictions, the State presented exhibits
    4 and 5. Exhibit 4 contains a journal entry from November 1,
    1989, which states that Drake was “sentenced to the Department
    of Correction[s] on Count I, theft, a Class III felony, for a term
    of 1-3 years with credit for 30 days served.” Drake was also
    sentenced on a second conviction, to run concurrently. Exhibit
    5 contains a judgment and sentence from June 29, 2004, which
    states that Drake “shall be incarcerated in an institution under
    the jurisdiction of the Nebraska Department of Correctional
    Services for a period of not less than fifteen (15) months and
    not more than thirty-six (36) months.”
    The language within both orders shows that the sentencing
    courts in those prior convictions ordered Drake to be taken to a
    penal institution within the control of the Nebraska Department
    of Correctional Services for a period of not less than 1 year on
    both November 1, 1989, and June 29, 2004. In other words,
    these exhibits together show that Drake has twice been com-
    mitted to prison for not less than 1 year.
    Based on a plain language reading of § 29-2221, the evi-
    dence presented by the State as proof of Drake’s prior convic-
    tions was sufficient for purposes of habitual criminal enhance-
    ment. Accordingly, the district court did not err in finding
    Drake to be a habitual criminal.
    3. Ineffective Assistance of Trial Counsel
    In his third through seventh assignments of error, Drake
    asserts that he received ineffective assistance of trial counsel.
    Drake argues that trial counsel failed to schedule a timely
    motion to suppress, to request discovery, and to subpoena wit-
    nesses for the presentation of exhibits at trial; that trial counsel
    was ineffective when he agreed to a stipulated bench trial; and
    that trial counsel generally lacked the training and experience
    needed to act as a public defender.
    [10] 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 perform­
    ance which is known to the defendant or is apparent from the
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    record; otherwise, the ineffective assistance of trial counsel
    issue will be procedurally barred. 28
    [11] Once raised, an appellate court will determine whether
    the record on appeal is sufficient to review the merits of the
    ineffective performance claims. 29 The record is sufficient if it
    establishes either that trial counsel’s performance was not defi-
    cient, that the appellant will not be able to establish prejudice
    as a matter of law, or that trial counsel’s actions could not be
    justified as a part of any plausible trial strategy. 30 Conversely,
    an ineffective assistance of counsel claim will not be addressed
    on direct appeal if it requires an evidentiary hearing. 31
    [12,13] The necessary specificity of allegations of ineffec-
    tive assistance of trial counsel on direct appeal for purposes of
    avoiding waiver requires, at a minimum, allegations of defi-
    cient performance described with enough particularity for an
    appellate court to make a determination of whether the claim
    can be decided upon the trial record and also for a district
    court later reviewing a potential petition for post­conviction
    relief to be able to recognize whether the claim was brought
    before an appellate court. 32 Assignments of error on direct
    appeal regarding ineffective assistance of trial counsel must
    specifically allege deficient performance, and an appellate
    court will not scour the remainder of the brief in search of
    such specificity. 33
    (a) Failure to Timely Schedule
    Motion to Suppress
    Drake first claims that trial counsel provided ineffec-
    tive assistance by failing to schedule a timely hearing for
    28
    State v. Abdullah, 
    289 Neb. 123
    , 
    853 N.W.2d 858
     (2014).
    29
    
    Id.
    30
    State v. Lowman, 
    supra note 2
    .
    31
    State v. Abdullah, supra note 28.
    32
    State v. Blake, 
    310 Neb. 769
    , 
    969 N.W.2d 399
     (2022). See State v. Lee,
    
    304 Neb. 252
    , 
    934 N.W.2d 145
     (2019).
    33
    State v. Mrza, 
    302 Neb. 931
    , 
    926 N.W.2d 79
     (2019).
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    Drake’s motion to suppress. Assuming, without deciding, that
    trial counsel’s performance was deficient, we find that Drake
    cannot establish prejudice. The district court found that trial
    counsel had established good cause for filing the motion past
    the 10-day deadline, and the motion to suppress was thereafter
    set for a hearing and considered on the merits by the court.
    Drake asserts that prejudice arose when the jury trial was
    scheduled to begin immediately after the motion to suppress
    hearing, as this “did not leave any room for any potential
    negotiation with the State . . . depending on the outcome of
    the Motion to Suppress.” 34 Drake contends that if counsel had
    filed a timely hearing, and if the motion to suppress had been
    denied, Drake would have had more opportunity either to bet-
    ter prepare for trial or to work with the prosecutor toward a
    plea deal such that the proceedings at the trial level would have
    gone differently.
    However, the record indicates that Drake was already in
    receipt of a plea offer from the State and chose to proceed with
    trial instead. Even if his motion had been timely filed, a lack of
    success at the suppression hearing does not suggest new lever-
    age by which Drake would be able to secure a different or bet-
    ter deal from the State than was already offered. And the State
    would have little incentive to agree to any offer if it knew that
    Drake was unsuccessful in his motion, regardless of whether
    the trial proceeded immediately after the suppression hearing
    or days later. Accordingly, this assertion is without merit.
    (b) Failure to Request Discovery Information
    Drake also assigns that trial counsel was ineffective in fail-
    ing to request discovery prior to trial in the form of footage
    from the dashboard camera of Goplin’s cruiser or of Goplin’s
    body camera.
    The record on appeal indicates that such performance was
    not deficient. Goplin testified that there was a dashboard
    34
    Brief for appellant at 21.
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    camera on his cruiser, but that there was no footage available
    because that camera had malfunctioned. Goplin also testified
    that he was not wearing a body camera that night. In addition,
    there was a discovery stipulation in place well before trial
    wherein the parties agreed to provide discovery and recipro-
    cal discovery prior to trial and wherein the State additionally
    acknowledged its duty to disclose certain evidence.
    Trial counsel was not deficient for failing to make a spe-
    cific request for discovery that did not exist, and therefore,
    Drake’s allegation of ineffective assistance of counsel is with-
    out merit.
    (c) Failure to Subpoena Witnesses Necessary
    to Provide Foundation for Exhibits
    Drake next asserts that trial counsel’s performance was
    deficient when he failed to subpoena witnesses who could
    offer foundation for the presentation of additional exhibits.
    Specifically, Drake argues that trial counsel made multiple
    attempts to enter exhibits 1 and 2 into evidence without first
    calling foundational witnesses, resulting in the exclusion of
    both exhibits from evidence.
    However, the evidence included in exhibits 1 and 2 is cumu-
    lative of other admissible testimony and evidence. These exhib-
    its included an incident narrative written by Goplin regarding
    the events that took place on December 28, 2018, and a York
    County sheriff’s office incident log. The incident narrative
    reflects the testimony given by Goplin at the suppression hear-
    ing, as does the incident log. Drake has failed to establish that
    counsel was ineffective. Accordingly, his argument is with-
    out merit.
    (d) Stipulated Bench Trial
    Drake also assigns that his trial counsel performed defi-
    ciently by agreeing to a stipulated bench trial. Drake contends
    that his trial counsel, by stipulating to the facts as set forth
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    in exhibit 3, stipulated that 5 grams of methamphetamine
    were found on Drake’s person, as well as some paraphernalia;
    that said items were consistent with the distribution of con-
    trolled substances; and that the suspected methamphetamine
    was tested in a laboratory and confirmed to be methamphet-
    amine. Drake argues that these stipulated facts were guaran-
    teed to secure a conviction against him and would support a
    habitual criminal enhancement of any sentence imposed.
    However, the facts as stipulated for purposes of the bench
    trial merely reflect the evidence already presented at the motion
    to suppress hearing, as well as the prior findings by the district
    court when it denied Drake’s motion to suppress. The facts
    within exhibit 3 did not stipulate to Drake’s express knowledge
    or intent, key elements necessary to obtain a conviction under
    
    Neb. Rev. Stat. § 28-416
     (Cum. Supp. 2020), regardless of the
    facts. Contrary to Drake’s assertions, these stipulated facts did
    not “guarantee[]” his conviction, 35 but, rather, they allowed the
    parties to proceed after the suppression hearing had concluded
    without a need to resubmit evidence or testimony which either
    party had already presented to the court. Consequently, Drake’s
    counsel did not act deficiently.
    Further, the stipulation of facts included a statement that
    the contraband found in Drake’s vehicle was “consistent with
    a ‘small-time’ or ‘local’ drug dealer, used in the distribution
    of controlled substances.” Despite this stipulation, and despite
    the amended information charging Drake at count I with pos-
    session of a controlled substance with intent to distribute, the
    district court found Drake guilty of only count II, possession
    of a controlled substance. That the district court found Drake
    not guilty of count I is evidence that even if Drake’s counsel
    had acted deficiently, Drake will not be able to prove that such
    performance prejudiced Drake. This claim of ineffective assist­
    ance of trial counsel is without merit.
    35
    
    Id. at 24
    .
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    (e) Lack of Training and Experience
    Finally, Drake asserts that he received ineffective assistance
    of counsel because his trial counsel lacked proper training and
    experience for purposes of acting as a public defender.
    Drake reasserts, broadly, the above-described errors and
    claims that the culmination of these errors indicates that his
    trial counsel did not perform as well as a lawyer with ordinary
    training and skill in the area of criminal law. In addition, Drake
    more specifically argues that Drake’s own comments at trial
    and sentencing prove a lack of proper counseling and advice
    from trial counsel. Drake claims that he was not adequately
    informed of the consequences of the habitual criminal sen-
    tencing and that trial counsel was not fully aware of the con-
    sequences of habitual criminal sentencing himself, asking the
    court whether it was going to sentence Drake “on the other
    charge.” Drake contends that counsel’s lack of understanding
    here prejudiced Drake because Drake did not understand the
    nature of what he was agreeing to when he turned down the
    plea deal offered by the State and continued to trial.
    Here, Drake has not sufficiently alleged deficient perform­
    ance. A generalized complaint regarding a lack of proper
    experience, skills, or training might be the standard by which
    this court will review the performance of counsel to determine
    whether their performance was deficient, but it is not specific
    enough, especially as stated here, to be a stand-alone claim.
    Drake does not explain his basis for moving forward with
    trial, nor does he provide insight into how counsel’s advice
    or explanation of the risks or consequences of proceeding to
    trial were either incorrect or deficient. Instead, Drake claims
    that counsel “could not have adequately advised” Drake of the
    consequences because counsel “was out of his depth.” 36 We
    conclude that Drake has failed to allege this claim of defi-
    cient performance with sufficient particularity. A claim of
    36
    Id. at 27.
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    ineffective assistance that is insufficiently stated is no different
    than a claim not stated at all. 37
    VI. CONCLUSION
    We affirm the decision of the district court, which denied
    Drake’s motion to suppress and found him to be a habitual
    criminal for purposes of sentencing.
    We find that Drake’s claims of ineffective assistance of
    trial counsel are either without merit or not alleged with suf-
    ficient particularity.
    Affirmed.
    37
    State v. Stelly, 
    304 Neb. 33
    , 
    932 N.W.2d 857
     (2019).