State v. Applehans , 314 Neb. 653 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/07/2023 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. APPLEHANS
Cite as 314 Neb. 653State of Nebraska, appellee, v.
Amanda L. Applehans, appellant.
___ N.W.2d ___
Filed July 7, 2023. No. S-22-864.
1. 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.
2. Appeal and Error. Consideration of plain error occurs at the discretion
of an appellate court.
3. ____. Plain error may be found on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the record, prejudi-
cially affects a litigant’s substantial right and, if uncorrected, would
result in damage to the integrity, reputation, and fairness of the judi-
cial process.
4. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
5. Judgments: 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.
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. Judgments: Justiciable Issues. Justiciability issues that do not involve
a factual dispute present a question of law.
8. Public Officers and Employees: Presumptions. In the absence of
evidence to the contrary, it may be presumed that public officers faith-
fully performed their official duties, and absent evidence showing
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STATE V. APPLEHANS
Cite as 314 Neb. 653misconduct or disregard of the law, the regularity of official acts
is presumed.
9. Words and Phrases. A substantial right is an essential legal right, not
merely a technical right.
Appeal from the District Court for Buffalo County: John H.
Marsh, Judge. Affirmed.
Tana M. Fye, of Fye Law Office, for appellant.
Michael T. Hilgers, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Amanda L. Applehans appeals from sentences imposing
both imprisonment and post-release supervision in a crimi-
nal case. She contends that the district court failed to advise
her of the conditions of her post-release supervision, that it
imposed excessive sentences, and that it failed to consider
the appropriate factors in setting and reviewing her bond. She
also alleges ineffective assistance of trial counsel. Finding no
merit to Applehans’ claims on appeal, we affirm the district
court’s judgment.
BACKGROUND
The district court accepted Applehans’ no contest pleas to
a Class IIIA felony and a Class I misdemeanor. It imposed
a determinate sentence of 6 months’ imprisonment for each
conviction, to be served concurrently, with 106 days’ credit for
time served. It further sentenced Applehans to 1 year of post-
release supervision.
Prior to sentencing, Applehans waived her right to a pre-
sentence investigation. Neither party offered evidence at her
sentencing hearing.
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STATE V. APPLEHANS
Cite as 314 Neb. 653The court pronounced Applehans’ sentences on the record,
referring to “the standard terms of post-release supervision,”
and it entered two orders. In one of these orders, the court out-
lined the specific conditions of Applehans’ post-release super-
vision. That order contained a blank “signature line” in which
the recipient of the order could confirm his or her receipt of
it. Although the signature line was left blank, attached to the
order was a certificate of service by a clerk of the district court,
stating that the order was promptly served upon Applehans’
trial counsel, “Probation,” and two attorneys in the county
attorney’s office.
Applehans filed a timely appeal, which we moved to our
docket. 1
ASSIGNMENTS OF ERROR
Applehans assigns, restated and reordered, that the district
court “committed plain error” by (1) failing to advise her of
the requirements of her post-release supervision and, purport-
edly, not providing her with a copy of the post-release supervi-
sion order; (2) imposing excessive sentences, which amounted
to an abuse of discretion; and (3) failing to consider all
required factors in setting and reviewing her bond. Applehans
further assigns that she “received ineffective assistance of
[trial] counsel.”
[1] Because Applehans’ last assignment of error fails to
specifically allege any deficient performance by her coun-
sel, we do not address it. 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. 2
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
2
State v. Fernandez, 313 Neb. 745, 986 N.W.2d 53 (2023).
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STATE V. APPLEHANS
Cite as 314 Neb. 653STANDARD OF REVIEW
[2,3] Consideration of plain error occurs at the discretion of
an appellate court. 3 Plain error may be found on appeal when
an error unasserted or uncomplained of at trial, but plainly
evident from the record, prejudicially affects a litigant’s sub-
stantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process. 4
[4-6] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. 5 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. 6 Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appel-
late 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. 7
[7] Justiciability issues that do not involve a factual dispute
present a question of law. 8
ANALYSIS
Post-Release Supervision
Applehans assigns that the district court “committed plain
error” by failing to advise her of the requirements of her post-
release supervision and, purportedly, not providing her with
a copy of the post-release supervision order. She argues that
“the specific requirements and expectations of the Court’s
3
State v. Roth, 311 Neb. 1007, 977 N.W.2d 221 (2022).
4
Id.5
State v. Hines, 313 Neb. 685, 985 N.W.2d 625 (2023).
6
State v. Abligo, 312 Neb. 74, 978 N.W.2d 42 (2022).
7
State v. Hines, supra note 5.
8
State v. Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022).
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Cite as 314 Neb. 653order were not explained to [her] on the record, nor was a copy
provided to [her], even though [it] appears to contemplate this
occurring, due to the signature line on the form.” 9
We begin by recalling statutes from the Nebraska Probation
Administration Act 10—which covers post-release supervi-
sion 11—as well as a specific rule 12 that is particularly relevant.
Under the act, post-release supervision is defined as “the
portion of a split sentence following a period of incarcera-
tion under which a person found guilty of a crime . . . is
released by a court subject to conditions imposed by the
court and subject to supervision by the [Office of Probation
Administration].” 13 All sentences of post-release supervision
are subject to conditions imposed under § 29-2262. 14 When
a court sentences an offender to post-release supervision, the
court shall specify the term of such post-release supervision. 15
Further, it “shall . . . (ii) [a]dvise the offender on the record
the time the offender will serve on his or her term of post-
release supervision.” 16
A specific rule, Neb. Ct. R. § 6-1904, addresses orders
of post-release supervision. Although the parties do not cite
this rule in their briefing, we find it to be relevant to the
assignment of error. The rule dictates that the post-release
supervision be imposed at sentencing. 17 The timing is logical,
9
Brief for appellant at 14.
10
See Neb. Rev. Stat. §§ 29-2246 to 29-2269 (Reissue 2016 & Cum. Supp.
2022).
11
See State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018) (discussing
statutory framework regarding post-release supervision).
12
Neb. Ct. R. § 6-1904 (rev. 2016).
13
§ 29-2246(13). See § 29-2246(3).
14
Neb. Rev. Stat. § 28-105(5) (Cum. Supp. 2022).
15
§ 29-2263(2).
16
Neb. Rev. Stat. § 29-2204.02(7)(a) (Reissue 2016).
17
State v. Dill, supra note 11 (citing § 6-1904(A)).
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STATE V. APPLEHANS
Cite as 314 Neb. 653because post-release supervision is part of the sentence. 18
Under this rule, “the court shall, at the time a sentence is
pronounced, impose a term of incarceration and a term of
post-release supervision . . . , and shall enter a separate post-
release supervision order that includes conditions pursuant to
. . . § 29-2262.” 19 Thus, the imposition of conditions is not
deferred to a later time. 20
Nothing in the parties’ briefing suggests that the district
court failed to meet these requirements when explaining
Applehans’ post-release supervision. In its pronouncement, the
court advised Applehans on the record regarding the time she
would serve on her term of post-release supervision. The same
day, it entered a post-release supervision order that includes
conditions pursuant to § 29-2262.
Importantly, Applehans does not assign error to the specific
conditions imposed.
Applehans instead focuses on the order’s acknowledg-
ment of receipt and the blank signature line that follows it.
We read her argument to suggest that the unsigned order is
proof that she was not advised of the conditions of her post-
release supervision.
[8] Upon our review, the record refutes Applehans’ argu-
ment. The order was accompanied by a certificate of service
by a clerk of the district court, stating that it was promptly
emailed to Applehans’ trial counsel. We have long held that
in the absence of evidence to the contrary, it may be pre-
sumed that public officers faithfully performed their official
duties, and absent evidence showing misconduct or disregard
18
State v. Dill, supra note 11 (citing State v. Phillips, 297 Neb. 469, 900
N.W.2d 522 (2017)).
19
§ 6-1904(A).
20
State v. Dill, supra note 11. See, also, State v. Sullivan, 313 Neb. 293, 983
N.W.2d 541 (2023) (sentence validly imposed takes effect from time it is
pronounced, and any subsequent sentence fixing different term is nullity).
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STATE V. APPLEHANS
Cite as 314 Neb. 653of the law, the regularity of official acts is presumed. 21 There
is no evidence suggesting that the order was not transmit-
ted in the manner specified. Moreover, there is no evidence
that Applehans’ trial counsel failed to explain the order to
Applehans or to provide Applehans with a copy of it. 22
[9] In reality, here, Applehans is asserting a mere techni-
cal right that does not amount to plain error. Therefore, we
cannot conclude that the district court committed plain error.
Plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from
the record, prejudicially affects a litigant’s substantial right
and, if uncorrected, would result in damage to the integrity,
reputation, and fairness of the judicial process. 23 We have
previously stated that a substantial right is an essential legal
right, not merely a technical right. 24 Because any alleged error
did not prejudicially affect Applehans’ substantial rights, we
see no reason to remand the cause for further proceedings on
this issue.
That said, we discourage the practice of not pronouncing
the conditions of post-release supervision at the time of sen-
tencing without an appropriate substitute. We have long said
that when a sentence orally pronounced at a sentencing hear-
ing differs from a later written sentence, the former prevails. 25
But Applehans does not rely on that proposition, and in any
event, it does not rise to the level of plain error.
21
State v. Jones, 307 Neb. 809, 950 N.W.2d 625 (2020).
22
See Neb. Ct. R. of Prof. Cond. § 3-501.4 (client communications).
23
State v. Roth, supra note 3.
24
State v. Thalmann, 302 Neb. 110, 921 N.W.2d 816 (2019). See, also, Neb.
Rev. Stat. § 29-2308(1) (Reissue 2016) (“[n]o judgment shall be set aside,
new trial granted, or judgment rendered in any criminal case . . . for error
as to any matter of pleading or procedure if the appellate court, after an
examination of the entire cause, considers that no substantial miscarriage
of justice has actually occurred”).
25
State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).
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STATE V. APPLEHANS
Cite as 314 Neb. 653Finally, we clarify that a word-for-word pronouncement
of the specific conditions imposed may not be necessary. For
example, a sentencing court could orally adopt a document
listing potential supervision conditions, so long as the defend­
ant has an opportunity to review the document with counsel
and lodge any objection prior to imposition of the sentence. 26
We recognize that “standard” conditions of post-release super-
vision may regularly appear in a presentence report provided
to a defendant prior to pronouncement of sentence. Here, of
course, there was no presentence report because Applehans
waived it.
Excessive Sentences
Applehans next assigns that the district court imposed
excessive sentences. Her primary contention is that the court
“could not have considered all required factors” when it did
not receive any evidence at sentencing. 27 This assignment
lacks merit.
Applehans’ sentences were within the statutory limits. 28
There is no evidence that the court failed to consider the
well-established factors and applicable legal principles in its
sentencing decision. We have repeated them so often as not to
require citation.
The record shows that Applehans waived a presentence
investigation and that she declined to present any evidence.
We see no error in that procedure, and even if there were,
she invited it by waiving the presentence report. A party can-
not complain of error which he or she has invited the court
to commit. 29 As a result of her waiver, the court had limited
26
See, e.g., U.S. v. Garcia, 983 F.3d 820 (5th Cir. 2020) (based upon
different statutes and procedural rules).
27
Brief for appellant at 15.
28
See, § 28-105 (penalty provisions for felonies); Neb. Rev. Stat. § 28-106(Reissue 2016) (penalty provisions for misdemeanors).
29
State v. Dixon, 286 Neb. 157, 835 N.W.2d 643 (2013).
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STATE V. APPLEHANS
Cite as 314 Neb. 653evidence to consider, due to Applehans’ decision. But she fails
to show how the court abused its discretion.
Applehans further argues that she was not advised on the
record of the requirements that would be imposed for post-
release supervision and that it is not clear from the record
whether she was given a copy of the post-release supervision
order. This argument is essentially the same as her first assign-
ment of error, which we have already rejected. Seeing no merit
in Applehans’ arguments, we conclude that the district court
did not impose excessive sentences.
Bond
Finally, Applehans assigns that the district court failed
to consider all required factors in setting and reviewing
her bond. More specifically, she argues that the court did
not consider her financial status before denying a requested
modification. 30
We agree with the State that this assignment is moot. We
have previously explained that once an offender has been
sentenced to a term of incarceration, we could not remedy
any error with respect to the bond set by the district court. 31
Because Applehans was already sentenced, we could not pro-
vide any meaningful relief on this issue.
CONCLUSION
On the facts of this case, we conclude that there was no
prejudicial error regarding Applehans’ purported failure to be
advised of the conditions of her post-release supervision. The
record refutes Applehans’ argument that she did not receive
30
See Neb. Rev. Stat. § 29-901(3) (Cum. Supp. 2022).
31
State v. Thomas, supra note 8. See, also, Chaney v. Evnen, 307 Neb. 512,
518, 949 N.W.2d 761, 767 (2020) (“[t]he central question in a mootness
analysis is whether changes in circumstances have forestalled any occasion
for meaningful relief”); State v. Harig, 192 Neb. 49, 218 N.W.2d 884(1974) (issue of excessiveness of pretrial bail is not reviewable after
conviction and sentence).
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STATE V. APPLEHANS
Cite as 314 Neb. 653a copy of the district court’s order. We further conclude that the
court did not impose excessive sentences and that Applehans’
bond assignment of error is moot. Because Applehans failed
to specifically allege deficient performance by her counsel,
we do not address her final assignment of error regarding
ineffective assistance of trial counsel. We affirm the district
court’s judgment.
Affirmed.