State v. Jennings ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. JENNINGS
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
BRANDON L. JENNINGS, APPELLANT.
Filed December 8, 2020. No. A-20-224.
Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge. Affirmed.
Candice C. Wooster, of Brennan & Nielsen Law Offices, P.C., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
MOORE, Chief Judge, and BISHOP and WELCH, Judges.
BISHOP, Judge.
I. INTRODUCTION
Brandon L. Jennings pled no contest to five misdemeanors, and the Lancaster County
District Court sentenced him to consecutive sentences of 365 days’ imprisonment on each count.
Jennings claims that the district court imposed excessive sentences and that he was denied his right
to effective assistance of counsel. We affirm.
II. BACKGROUND
On December 5, 2019, the State filed an information charging Jennings with three counts
stemming from an incident that took place on September 29: count 1, “Domestic Assault, 3rd
degree - prior,” a Class IIIA felony, pursuant to Neb. Rev. Stat. § 28-323 (Reissue 2016); count 2,
violation of a protection order, a Class I misdemeanor, pursuant to Neb. Rev. Stat. § 42-924 (Cum.
Supp. 2018); and count 3, child abuse, a Class I misdemeanor, pursuant to Neb. Rev. Stat. § 28-707(Supp. 2019).
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Pursuant to a plea agreement, the State filed an amended information on January 30, 2020,
charging Jennings with five counts: count 1, third degree domestic assault, a Class I misdemeanor,
pursuant to § 28-323; count 3, child abuse, a Class I misdemeanor, pursuant to § 28-707; count 4,
attempted tampering with a witness or informant, a Class I misdemeanor, pursuant to Neb. Rev.
Stat. §§ 28-201 (Reissue 2016) and 28-919 (Supp. 2019); and counts 2 and 5, violation of a
protection order, each a Class I misdemeanor, pursuant to § 42-924. At a hearing that same day,
further details of the plea agreement were set forth on the record. As part of the plea agreement,
the State agreed to dismiss a separate criminal case charging Jennings with “felony tampering,” a
“Class 4 felony,” and further agreed not to file any additional protection order violations or
potential tampering charges from incidents that may have occurred between September 29, 2019,
and January 30, 2020. Additionally, Jennings agreed to plead no contest to the five charges in the
amended information in the current case and he agreed to admit or plead no contest to a petition
in a separate juvenile court case.
Pursuant to the plea agreement, Jennings pled no contest to the five counts in the amended
information in the current case. According to the factual basis provided by the State,
On September 29th, 2019, officers were dispatched to [a specific address] referencing a
domestic disturbance. They made contact with . . . [M.S.]. She states that . . . Jennings is
the . . . father of one of her children.
On that day they had an argument. Uh, he became upset; then began striking her in
the head . . . with open and closed hands. During this argument . . . she was holding her
8-month-old minor child, RCS . . . .
At one point she was shoved by [Jennings] . . . against the wall causing both her
head and RCS’s head to strike the wall. She did have marks on her chest and a lump starting
on her forehead. Uh, did cause pain consistent with what she was reporting, as well -- a
minor laceration on her . . . right jaw.
[Jennings] was arrested that same day and has been in Lancaster County Jail since
then. On January 7th, 2020, Investigator Deluby . . . with the Lincoln Police Department
began to monitor . . . phone calls made by Mr. Jennings . . . to [M.S.’] phone number.
He identified one call in particular from October 11th, 2019 . . . where [Jennings]
tells [M.S.] to put all this beside us -- uh -- if I were you I would try and contact somebody.
He goes on to say, please tell me that you will help me out.
[M.S.] says, I’m not doing all that. Mr. Jennings then says, I’m going to have some
people talk to you. Put your pride aside and help me. So you’re going to leave me here for
years. You have the power to help me out. You have to get a hold of the main people and
tell them. Can you dumb down the situation and -- uh -- tell them -- uh -- essentially
referring to the assault.
And he tells her that she has a big part in this now and that she needs to help him
out. He wants her to tell people, let them know that all the shit is a big misunderstanding
and that she should make it seem like she was just mad and saying these things out of anger.
. . . [D]oes feel like she was . . . being . . . persuaded or induced to change her
testimony about what happened. In addition . . . there was a protection order in place at
both the time of the . . . incidents in Counts 1, 2, and 3, as well as the . . . phone calls that
were made . . . subject of Counts 4 and 5.
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....
. . . . And these events all occurred in Lancaster County, Nebraska.
The State also offered a certified copy of the protection order into evidence, and it was received
without objection. The district court accepted Jennings’ no contest pleas to the charges in the
amended information and found him guilty of the same. The case was set for sentencing.
After a hearing on February 26, 2020, the district court sentenced Jennings to 365 days’
imprisonment on each count, all sentences to be served consecutively. Jennings was given 150
days’ credit for time served. The court stated that Jennings was not eligible for work release.
Jennings appeals.
III. ASSIGNMENTS OF ERROR
Jennings assigns (1) the district court imposed excessive sentences and (2) he received
ineffective assistance from trial counsel who (a) failed to file a motion to discover, (b) failed to
review all jail calls that were part of the plea agreement and an aggravating factor at sentencing,
(c) failed to identify which statements in the presentence investigation report (PSR) were taken
out of context or missing the full statement made to the probation officer conducting the interview,
(d) failed to offer the guardian ad litem report and court report/case plan which were referenced
during sentencing and were utilized by counsel as mitigating factors, and (e) offered the victim’s
statement to the court for review prior to the sentencing hearing, inciting anger towards Jennings.
IV. STANDARD OF REVIEW
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
Abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). 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. Id.V. ANALYSIS
1. EXCESSIVE SENTENCE
Jennings was convicted of five Class I misdemeanors. A Class I misdemeanor is punishable
by up to 1 year of imprisonment, a $1,000 fine, or both. See Neb. Rev. Stat. § 28-106 (Reissue
2016). Jennings was sentenced to 365 days’ imprisonment on each count, all sentences to be served
consecutively; his sentences were within the statutory range.
When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense and (8) the violence involved in the commission of the crime. State v.
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Lierman, supra. 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. It is within the discretion of the trial
court to impose consecutive rather than concurrent sentences for separate crimes. State v. Mora,
298 Neb. 185, 903 N.W.2d 244 (2017).
Jennings was 21 years old at the time of sentencing. According to the PSR, Jennings was
single and had one child. He had completed high school, had attended some community college
classes, and was employed prior to his arrest.
Jennings had a juvenile history of assaults and terroristic threats. His adult criminal history
includes damage to property in 2016 for which he was sentenced to 7 days in jail; possession of
marijuana twice in 2017 for which he was fined; assault causing bodily injury which was amended
to “Disorderly Conduct - Fighting or Violent Behavior” in 2017 for which he was sentenced to 1
day in jail; and third degree domestic assault of a pregnant woman amended to third degree
domestic assault in both 2018 and 2019 for which he was sentenced to concurrent terms of 1 year
of probation. Both the 2018 and 2019 domestic assaults were of M.S., the victim in the current
case. Jennings’ current offenses were set forth previously.
The probation officer conducted a “Level of Service/Case Management Inventory.”
Jennings was assessed as a “very high risk to re-offend.” He scored “very high” in the criminogenic
risk factor domain for procriminal attitude/orientation. He scored “high” risk in the domains for
criminal history, education/employment, leisure/recreation, companions, and antisocial pattern.
He scored “low” risk in the domain for an alcohol/drug problem. On the Domestic Violence
Offender Matrix, Jennings scored “in the high risk range due to information that [he] had used
weapons or threats in the past with this victim.” Jennings reported having been diagnosed as
bipolar when he was a child. The probation officer noted that Jennings appeared to be taking little
to no responsibility for the present offense and appeared to be “engaging in minimization or denial
related to his involvement in the present offense.”
At the sentencing hearing, Jennings’ counsel argued that Jennings was young and had a
“limited” criminal history. Counsel noted that Jennings was currently on probation in Douglas
County, Nebraska, and “it’s our understanding that . . . Douglas County will come get him . . .
when he is done here,” and then he will “likely be sentenced there, as well.” Counsel stated that
Jennings wanted the district court to know that some of his quotes in the PSR were “taken out of
context a little bit,” some of the communications “were lost in translation,” and “lots of other things
that he said . . . were just left out”; counsel did not elaborate as to which quotes he was referring.
Counsel also noted that there was an ongoing juvenile court case and that Jennings will have to
comply with that court’s orders as well, “so there will be some . . . supervision and things that he
will have to do . . . for that case going forward.”
Trial counsel offered the “actual recording of . . . [M.S.’] statement . . . in this case when
it happened,” and counsel wanted “to take a moment to just note that domestics are complicated.”
Counsel continued by stating that “on the audio recording . . . one of the first things she says is, I
don’t want this to get back to my case worker,” and she says three times that she picked him up
from Omaha; it was not until later in the recording when “she goes on and says . . . he forced
himself into the car.” “Originally she talks about the argument starting in the car.” “Apparently
. . . she said that he left,” “and then he came back . . . and then [the] incident happened.” Counsel
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argues that there are “some things that are . . . hard to understand and some inconsistencies.”
Counsel wanted the court to consider the totality of the circumstances and to consider the incident
in its entirety. Counsel believed “there’s a lot more to the story . . . than was . . . outlined in the
police reports,” and that was his reasoning for offering the audio recording of the interview.
In addressing defense counsel’s comments about M.S.’ statements, the State argued, “of
course she tells law enforcement that she doesn’t want this to get back to her case worker,” because
“[s]he’s involved in a juvenile case and she realizes that the custody of her child was at risk at that
point.” The State noted that M.S. “is caught up in the wheel of domestic violence,” “so that
explains some of the inconsistent statements early on”; “She still had hope at that time that her
child’s father would be in her life.”
Jennings’ trial counsel read a letter from Jennings into the record wherein Jennings stated
he had learned from this experience and was using it to better himself. Jennings also personally
addressed the court stating, “I just want to move forward. Whatever happens, it’s in God’s will.”
Jennings apologized for his actions “because [he] should’ve prevented everything from happening
when [he] had the opportunity to.” He also stated, “I understand I did wrong, but I don’t feel like
I’m the monster I’m being made out to be, at the same time.”
The State argued that Jennings had an assaultive history back when he was a juvenile, and
“this wasn’t just a one-time thing.” The State noted that Jennings was previously convicted in 2018
of third degree domestic assault of M.S and received probation for 1 year; “[i]t was pled down
from assault on a pregnant woman when [M.S.] was pregnant with their child.” Additionally, in
2019 Jennings pled to “another count of third-degree domestic” of M.S., again pled to down from
assault on a pregnant woman, and received a concurrent sentence of probation. And there were
“other multiple assaults that were reported to the police with the same victim.” The State argued
that Jennings received the benefit of a plea bargain in the current case, noting that “between
October 11th, 2019, and January 7, 2020[,] there were 345 calls to the victim from the jail,” and
“[207] of those were completed”; “throughout those calls he repeatedly made attempts to get the
victim to change her story.” Jennings also “reach[ed] out to third parties to try and get them to talk
to [M.S.] and get them to . . . pass messages along to her.” The State asked “for a maximum
sentence period of incarceration, all counts to be consecutive to each other.”
The district court stated that it had reviewed the PSR. The court addressed Jennings and
said, “You have a record that, I suppose you could call minimal in some respects; but it is quite
significant in others [pointing to his history of assaults and terroristic threats].” The court noted
that Jennings was on probation when the current incidents happened. The court also noted that
“[t]here has been a valid protection order in place since June 6th of 2019 that is still in place,” and
“[t]hat has meant absolutely nothing” to Jennings as evidenced “from all of those calls from the
jail.” The court stated that there “was no way” it could consider Jennings for probation based on
the circumstances. The court found that imprisonment was necessary and sentenced Jennings as
set forth previously.
Jennings contends that his sentences were an abuse of discretion because the district court
did not “give proper weight and consideration to relevant sentencing factors.” Brief for appellant
at 8. Jennings argues that the court did not consider mitigating factors such as his mental health
diagnoses and the fact that he entered a plea, saving the time and expense of a trial. He further
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argues that the court failed to consider that a lesser sentence would be better suited to his
rehabilitative needs.
Having considered the relevant factors in this case, we find that Jennings’ sentences were
not excessive or an abuse of discretion and his sentences are therefore affirmed. See, State v.
Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020) (sentence imposed within statutory limits will not
be disturbed on appeal absent abuse of discretion by trial court); State v. Meehan, 7 Neb. App.
639, 585 N.W.2d 459 (1998) (sentencing court has broad discretion in source and type of evidence
it may use in determining kind and extent of punishment to be imposed within limits fixed by
statute; sentencing court in noncapital cases may consider defendant’s nonadjudicated misconduct
in determining appropriate sentence).
2. EFFECTIVENESS OF COUNSEL
Generally, a voluntary guilty plea or plea of no contest waives all defenses to a criminal
charge. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). Thus, when a defendant pleads
guilty or no contest, he or she is limited to challenging whether the plea was understandingly and
voluntarily made and whether it was the result of ineffective assistance of counsel. Id.Jennings has different counsel on direct appeal. When a defendant’s trial counsel is
different from his or her counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the defendant or is apparent
from the record. Id.An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges
deficient performance with enough particularity for (1) an appellate court to make a determination
of whether the claim can be decided upon the trial record and (2) a district court later reviewing a
petition for postconviction relief to be able to recognize whether the claim was brought before the
appellate court. State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019).
Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show
that his or her counsel’s performance was deficient and that this deficient performance actually
prejudiced the defendant’s defense. State v. Blaha, supra. To show that counsel’s performance was
deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. Id. In a plea context, deficiency depends on whether
counsel’s advice was within the range of competence demanded of attorneys in criminal cases. Id.When a conviction is based upon a guilty or no contest plea, the prejudice requirement for an
ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable probability
that but for the errors of counsel, the defendant would have insisted on going to trial rather than
pleading guilty. Id. The two prongs of the ineffective assistance of counsel test under Strickland
may be addressed in either order. State v. Blaha, supra.Thus, in reviewing Jennings’ claims of ineffective assistance of counsel on direct appeal,
we first consider whether the claim is raised with sufficient particularity for this court to make a
determination of whether the claim can be decided upon the trial record, and if so, we must then
consider 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. See State v. Stelly, supra-6-
(appellate court required to consider whether defendant has adequately alleged claim of ineffective
assistance, and if so, must then consider whether record on appeal is sufficient to conclusively
determine deficiency or prejudice).
Jennings claims that his trial counsel failed to file a motion to discover; failed to review all
jail calls that were part of the plea agreement and an aggravating factor at sentencing; failed to
identify which statements in the PSR were taken out of context or missing the full statement made
to the probation officer conducting the interview; failed to offer the guardian ad litem report and
court report/case plan which were referenced during sentencing and were utilized by counsel as
mitigating factors; and offered the victim’s statement to the court for review prior to the sentencing
hearing, inciting anger towards Jennings. As explained below, we conclude the record is sufficient
to address all of Jennings’ claims and further conclude that each claim fails.
(a) Motion to Discover
Jennings argues that his trial counsel was ineffective when counsel failed to file a motion
to discover in district court.
At a bond review hearing on January 3, 2020, Jennings requested that his case be set for
the February jury term. The district court said it could add Jennings’ case to the list for February,
but asked if that meant he was not going to file for discovery. Trial counsel responded, “[A]t this
time I do not intend to file any other motions. Uh, this case started . . . in county court . . . as a
misdemeanor, so . . . we have information about the case.”
Jennings now claims that prior discovery had been granted by the county court, but the
district court “had not issued an order for the delivery of continued discovery, the issuance of
exculpatory evidence, or that any evidence be provided to [his] Trial Counsel,” therefore “[h]ad it
ever been discovered that evidence was not provided to [him], Trial Counsel would not have a way
to enforce a request for additional discovery in District Court.” Brief for appellant at 17. Jennings
specifically states that Officer Deluby did not begin to monitor his jail calls until January 7, 2020,
which was during a time there was no order for discovery in place in the district court.
As noted by the State, Jennings did not make allegations about what evidence was not
provided to him, or why such evidence would have resulted in him refusing the plea agreement.
Because Jennings’ claim regarding trial counsel’s failure to file a discovery motion in district court
is insufficiently stated, and further, is simply conclusory in nature, the claim fails. See, State v.
Stelly, 304 Neb. at 63, 932 N.W.2d at 879 (defendant must allege deficient performance with
sufficient particularity; “claim of ineffective assistance that is insufficiently stated is no different
than a claim not stated at all”); State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014) (in context
of direct appeal, like requirement in postconviction proceedings, mere conclusions of fact or law
are not sufficient).
(b) Review of Jail Calls
Jennings claims that his trial counsel was ineffective because counsel failed to review all
jail calls that were part of the plea agreement and were an aggravating factor at sentencing. He
argues, “One element of [his] plea agreement [was] that the State would not pursue charges for the
alleged 345 phone calls from jail that [he] made to [M.S.] during the pendency of this case and
while the Protection Order was still in effect,” and that “[a]n attorney with ordinary skill and
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training would have also reviewed the jail calls in order to appropriately respond to the
prosecutor’s information at sentencing regarding those calls.” Brief for appellant at 19. Jennings
states that the PSR only notes three jails calls, and no evidence was offered regarding the remaining
342 jail calls. And at sentencing, trial counsel commented, “I don’t know . . . they did send me a
disc. I don’t know how many [calls] there are. But Mr. Jennings dis - disagrees with that.” Jennings
argues, “[i]t is unclear whether Trial Counsel even reviewed the calls, much less took the time to
discuss them with [him],” and “[d]ue to a lack of knowledge of the content of those phone calls,
Trial Counsel [was] not even able to respond to the accusations.” Brief for appellant at 19. He
further argued that “[t]here [was] no evidence whether [he] was apologetic, inquired about his
child, or spent time trying to work on co-parenting with [M.S.]; “[t]he inference is that all 345 calls
were negative, and although the protection order was in place at the time, the context of those calls
could have been a mitigating factor utilized at sentencing.” Id. at 19-20.
Jennings’ claim that counsel was ineffective for failing to review all jail calls fails because,
even if his counsel was somehow deficient by not reviewing all of the jail calls, Jennings would
be unable to show prejudice. Regardless of the nature of the calls, there was a valid protection
order in place prohibiting Jennings from contacting M.S.; nevertheless, Jennings contacted M.S.
in violation of the protection order. The impact of those calls on sentencing was not based on
whether the substance of the calls was positive or negative; rather, as stated by the district court,
“There has been a valid protection order in place since June 6th of 2019 that is still in place,” and
“[t]hat has meant absolutely nothing” to Jennings as evidenced “from all of those calls from the
jail.” Even if trial counsel had listened to every call and shared some positive information that may
have been contained in them, such shared information would not have impacted the trial court’s
decision in that regard since its focus was not on the substance of the calls themselves; rather, the
court was troubled by the fact that Jennings repeatedly made calls in direct violation of a court
order.
(c) Statements in PSR
Jennings claims that his trial counsel was ineffective during the sentencing hearing because
counsel failed to identify which statements in the PSR were taken out of context or missing the
full statement made to the probation officer conducting the interview.
At the beginning of the sentencing hearing, the district court asked trial counsel if he was
aware of any additions, corrections, or deletions that needed to be made to the PSR. Trial counsel
noted an issue with the calculation of the sentencing credit and that another case had been
dismissed pursuant to the plea agreement, and counsel also offered an audio recording. The court
then asked Jennings if he had an opportunity to talk with his counsel about the PSR, and Jennings
responded in the affirmative. The court also asked Jennings if he was aware of any additions,
corrections or deletions that needed to be made to the PSR other than those mentioned by his trial
counsel, and Jennings responded, “No.”
Trial counsel then proceeded with his argument on sentencing. During his argument,
counsel stated that Jennings wanted the district court to know that some of his quotes in the PSR
were “taken out of context a little bit,” some of the communications “were lost in translation,” and
“lots of other things that he said . . . were just left out”; counsel did not elaborate as to which quotes
he was referring. Trial counsel stated that he (counsel) was not present for the presentence
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interview and that these types of interviews are not recorded. But counsel said he “[did not] think
it’s unusual . . . for . . . someone when they participate in the [presentence interview] process to
say, well, I also said this and I also said that or -- or what I was trying to say was X, Y, Z.”
Jennings argues that trial counsel should have directed the court to the exact page numbers
and statements in the PSR “to ensure that the District Court was made aware of what was actually
said or meant by those statements” because without that additional information the court had “no
idea” what part of the PSR was being referenced. Brief for appellant at 20-21. Additionally, at the
sentencing hearing, trial counsel said he believed there was “a lot more to the story” than was
outlined in the police reports, but again, counsel did not go on to explain what additional pieces
there were to the story. Id. at 21. Jennings claims he received “a maximum sentence” because the
court “was not aware of all the mitigating factors.” Id.As noted by the State, Jennings fails to explain with any particularity to this court which
statements were taken out of context or what exactly trial counsel failed to state. And as we have
previously noted, allegations of deficient performance must be stated with sufficient particularity
to warrant appellate review. See State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). Further,
Jennings had the opportunity to address any necessary additions, corrections or deletions to the
PSR, but said he was not aware of any. And even though trial counsel did not elaborate as to which
of Jennings’ interview statements were “taken out of context,” “lost in translation,” or “left out,”
Jennings had the opportunity to personally address the district court and could have explained
which statements were taken out of context, but he did not do so. The same can be said about the
missing parts of the “story” in the police reports; Jennings could have told his version of the story
to the sentencing court, but did not do so. Because Jennings personally had the opportunity to clear
up any issues in the PSR, he cannot show that he was prejudiced by his trial counsel’s lack of
specificity at the sentencing hearing. This claim of ineffective assistance of trial counsel fails.
(d) Reports Utilized as Mitigating Factors
Jennings claims that his trial counsel was ineffective during the sentencing hearing because
counsel failed to offer the guardian ad litem report and court report/case plan which were
referenced during sentencing and were utilized by counsel as mitigating factors.
At the sentencing hearing, trial counsel addressed the toxicity of Jennings’ relationship
with M.S. He mentioned a December 2019 guardian ad litem report from the juvenile court case,
and stated, “[O]ne of the things it says in there is that it is concerning that [M.S.] . . . continues to
have contact with him and the phone calls,” and it “goes on to say that they’re concerned
about -- emphasize that -- needed to tell the actual truth because her story has changed multiple
times.” The guardian ad litem report “goes on to say, I’m aware that Mr. Jennings has a lot of
power to control [M.S.], but it is concerning the number of lies she has told to all the parties
throughout the life of this case.” Trial counsel also mentioned a December court report in the
juvenile case that “talks about [M.S.’] [parenting time] . . . remain[ing] fully supervised due to the
uncertainty of [her] interactions with . . . Jennings” and reports that M.S. was accepting phone
calls from Jennings, who was incarcerated, and that “some of those calls have taken place during
[M.S.’] parenting time.”
Although assigned as error, Jennings did not specifically argue that trial counsel was
ineffective for failing to offer the guardian ad litem and court report at sentencing. See State v.
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Denton, 307 Neb. 400, 949 N.W.2d 344 (2020) (to be considered by appellate court, alleged error
must be both specifically assigned and specifically argued in brief of party asserting error).
Instead, Jennings focuses his argument on trial counsel’s statements at sentencing. Jennings
argues that trial counsel “does not identify which information in this case [M.S.] allegedly was
lying about or why it was important to present to the District Court evidence of [her] dishonesty.”
Brief of appellant at 22. Jennings claims that trial counsel “appears to attempt to erase blame from
[Jennings] which prejudiced [him] at sentencing,” because “[a] lack of responsibility is an extreme
aggravating factor when it comes to sentencing.” Id. Jennings does acknowledge that at the
sentencing hearing trial counsel told the court not to construe his comments as Jennings not taking
responsibility. But Jennings argues trial counsel’s comments “are reflective” of Jennings and thus
when counsel “attempt[ed] to shift blame to the victim,” it reflect[ed] poorly on Jennings. Id.Despite his argument to the contrary, we find that Jennings would not be able to show
prejudice by trial counsel’s use of statements from the guardian ad litem report and court report at
sentencing. Jennings focuses his argument on his assertion that trial counsel’s blame shifting
reflected poorly on him. However, trial counsel specifically stated to the court that his comments
were not meant to be construed as Jennings not taking responsibility. Moreover, there was other
evidence from which the court could conclude that Jennings was not taking responsibility for his
actions. In the PSR, the probation officer noted,
[Jennings] said regarding the present offense, “I’m not gonna say I’m completely innocent.
It was an unfortunate situation. DHHS had concerns, so I suggested the protection order.
She came to get me, I shouldn’t have been in Lincoln. She kind of got irrational, I shouldn’t
have been here. I love her, she loves me. I feel like she had a motive. I don’t expect anyone
to understand the situation. I shouldn’t have been here. She came, picked me up, we had
sex. I didn’t want to be in a relationship, she didn’t like the idea. I was just happy to be out.
It just didn’t go in my favor. I’m not the monster I’m being made out to be. I don’t blame
her for doing what she did. She didn’t have intentions of me going to jail.”
(Emphasis supplied.) In the “procriminal attitude/orientation” section of the PSR, the probation
officer stated:
When asked his thoughts and feelings about the arrest in the present offense, Mr.
Jennings said, “I feel like it’s an unfortunate situation. In all honesty I’ve asked God to get
me out of this situation. I feel hurt about this. I’m trying to take the fall.”
The defendant appears to be taking little to no responsibility for the present offense.
He did appear to be engaging in minimization or denial related to his involvement in the
present offense by stating, “The police didn’t give me a chance. They kind of scared her
into this.”
(Emphasis supplied.) And in his own statements to the district court at sentencing, Jennings stated:
I understand -- you know -- some of my actions wasn’t acceptable and some of my
behaviors wasn’t acceptable and that I should be speaking to her. If I ain’t going on about
my life -- I just want everything to be taken into account that I really -- I’m really -- I
understand I did wrong. I understand I did wrong, but I don’t feel like I’m the monster I’m
being made out to be, at the same time.
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Because I -- two wrongs don’t make a right. And that’s why I shouldn’t have did
what I was doing, but -- I’m not trying to put -- put the blame on nobody else. I understand
that my actions are what caused me to be placed in here, but I don’t completely agree with
everything I’m actually being placed on -- or I just want to -- I just took the plea so I can
get on with my life.
(Emphasis supplied.)
When the district court addressed Jennings at sentencing, it noted Jennings’ previous
assaults of the same victim, the protection order that was in place when the current offenses were
committed, and the fact that Jennings was on probation for assault at the time of the current
offenses. The court stated, “[T]he only way I can protect [M.S.] from your wrath . . . it would
appear, is to incarcerate you” for “the maximum sentence.”
Based on the foregoing, Jennings cannot show he was prejudiced by trial counsel’s use of
statements from the guardian ad litem report and court report at sentencing. This claim of
ineffective assistance of trial counsel fails.
(e) Victim’s Statement
Jennings claims that his trial counsel was ineffective during the sentencing hearing because
counsel offered the victim’s statement to the court for review prior to the sentencing hearing,
inciting anger towards Jennings. Jennings argues that trial counsel offered M.S.’ recorded
statements, the contents of which would only prejudice Jennings because M.S. is “heard crying
and clearly upset” and “[y]ou can also hear the child crying in the background.” He acknowledges
counsel’s attempt to point out that the officer was “putting words into [M.S.’] mouth.” Brief for
appellant at 23. Jennings also acknowledges that trial counsel’s discussion of a visitation worker
was an “appear[ant] attempt to let the Court know that had Mr. Jennings actually forced himself
into the home or had [M.S.] been scared, then [M.S.] had the opportunity to report her concern
about [Jennings’] presence at that time.” Id. Jennings contends that a letter or affidavit from the
visitation worker could have provided the same information. He claims that if the court had not
heard the audio statement, he would have received a lesser sentence.
Although the district court stated it had listened to the audio, it noted many factors it
considered when discussing its reasoning for the sentence. For instance, the court stated that it had
reviewed the PSR and it had “seen the pictures.” The court also noted Jennings’ previous assaults
of the same victim, the protection order that was in place when the current offenses were
committed, and the fact that Jennings was on probation for assault at the time of the current
offenses. The court found that the protection order and probation “meant nothing” to Jennings as
evidenced by his actions. The court found that the only way it could protect M.S. from Jennings
was to incarcerate him for “the maximum sentence.” As noted by the State, “[t]here is no indication
that but for the audio the district court would have imposed a lesser sentence.” Brief for appellee
at 12. Accordingly, Jennings cannot show prejudice and this claim of ineffective assistance of trial
counsel fails.
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VI. CONCLUSION
For the reasons stated above, we affirm Jennings’ sentences. The record is also sufficient
to review all of Jennings’ claims of ineffective assistance of trial counsel, and we conclude that all
claims fail.
AFFIRMED.
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