State v. Betts , 31 Neb. Ct. App. 737 ( 2023 )

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www.nebraska.gov/apps-courts-epub/
04/18/2023 12:04 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. BETTS
Cite as 31 Neb. App. 737State of Nebraska, appellee, v.
Brian M. Betts, appellant.
___ N.W.2d ___
Filed April 11, 2023. Nos. A-22-094, A-22-096.
1. 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 requirements.
2. Effectiveness of Counsel: Appeal and Error. In reviewing a claim
of ineffective assistance of trial counsel on direct appeal, an appellate
court determines as a matter of law whether the record conclusively
shows that (1) a defense counsel’s performance was deficient or (2)
a defendant was or was not prejudiced by a defense counsel’s alleged
deficient performance.
3. Effectiveness of Counsel: Proof. 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 per­
formance actually prejudiced the defendant’s defense.
4. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a law-
yer with ordinary training and skill in criminal law. To show prejudice
under the prejudice component of the Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) test, the defendant
must demonstrate a reasonable probability that but for his or her coun-
sel’s deficient performance, the result of the proceeding would have
been different.
5. Convictions: Effectiveness of Counsel: Pleas: Proof. When a con-
viction is based upon a plea of no contest, the prejudice require-
ment for an ineffective assistance of counsel claim is satisfied if the
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. BETTS
Cite as 31 Neb. App. 737defendant shows a reasonable probability that but for the errors of
counsel, the defendant would have insisted on going to trial rather than
pleading no contest.
6. Words and Phrases. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
7. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. When a defendant’s trial counsel is different from his or her
counsel on direct appeal, the defendant must raise on direct appeal any
issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record; otherwise, the issue will be
procedurally barred in a subsequent postconviction proceeding.
8. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
9. 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.
10. Effectiveness of Counsel: Witnesses: Appeal and Error. When the
claim of ineffective assistance on direct appeal involves uncalled wit-
nesses, vague assertions that counsel was deficient for failing to call
“witnesses” are little more than placeholders and do not sufficiently
preserve the claim. However, the appellate court does not need specific
factual allegations as to what the person or persons would have said,
which will not be found in the appellate record.
Appeals from the District Court for Nemaha County: Julie
D. Smith, Judge. Affirmed.
Lindy L. Mahoney, of Nestor & Mercure Attorneys, for
appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Pirtle, Chief Judge, and Riedmann and Arterburn, Judges.
Arterburn, Judge.
INTRODUCTION
Brian M. Betts was charged in the district court for
Nemaha County with a total of 29 felony counts distributed
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. BETTS
Cite as 31 Neb. App. 737between two separate criminal cases. Betts resolved the two
cases through a global plea agreement in which he entered a
plea of no contest to five counts of first degree sexual assault
of a child, each a Class IB felony; six counts of visual depic-
tion of sexually explicit conduct, each a Class ID felony; and
one count of possession of a deadly weapon by a prohibited
person, a Class ID felony. In this consolidated appeal, Betts
asserts that his trial counsel was ineffective for failing to file
pretrial motions, failing to depose key witnesses, and dem-
onstrating a general inadvertence that, according to Betts,
pressured him into accepting the global plea agreement. Upon
our review, we affirm Betts’ convictions and sentences in
both cases.
BACKGROUND
In case No. A-22-094, on February 4, 2019, Betts was
originally charged by information with 4 counts of first degree
sexual assault of a child, each a Class IB felony; 1 count of
possession of a firearm by a prohibited person, a Class ID
felony; 10 counts of visual depiction of sexually explicit con-
duct, each a Class ID felony; and 1 count of possession of a
controlled substance, a Class IV felony. On April 8, the court
granted defense counsel’s motion to take depositions of the
alleged victim in the case, M.C., as well as two other poten-
tial trial witnesses. The court granted another defense motion
to take the depositions of two law enforcement officers on
October 23.
On November 13, 2019, Betts appeared with counsel and
waived his right to a jury trial. The court accepted his waiver
and scheduled a bench trial for February 24, 2020. The State
planned to have a hearing under Neb. Rev. Stat. § 27-414(Reissue 2016) to introduce evidence from another alleged
victim of Betts, L.M.I., on February 12. However, defense
counsel moved to continue the proceedings and requested
leave to depose L.M.I. prior to any evidentiary hearing
being held.
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Nebraska Court of Appeals Advance Sheets
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STATE V. BETTS
Cite as 31 Neb. App. 737On March 11, 2020, the State filed an information in case
No. A-22-096 charging Betts with six counts of first degree
sexual assault of a child, each a Class IB felony, and seven
counts of visual depiction of sexually explicit conduct, each a
Class ID felony. L.M.I. was the alleged victim in this case.
During the arraignment in case No. A-22-096, the district
court addressed Betts’ pro se request that he be appointed with
new counsel. Defense counsel did not contest Betts’ request.
In fact, counsel made an oral motion to withdraw due to the
serious nature of the pending charges and the possible penal-
ties that Betts was facing. Defense counsel suggested that the
Nebraska Commission on Public Advocacy be contacted to see
if it would be willing to accept Betts’ cases. The court took
the matter under advisement, instructing counsel to check with
the Nebraska Commission on Public Advocacy about taking
the cases.
On April 8, 2020, it was reported to the court that the
Nebraska Commission on Public Advocacy was unable to
take Betts’ cases due to a lack of available resources. The
court determined not to make any changes to Betts’ previously
appointed defense counsel. Counsel was then granted leave
to take a deposition of another potential trial witness. At this
same time, the district court addressed Betts’ pro se motions
asking that the prosecutor be recused and that he be allowed
to withdraw his waiver for a jury trial. The court continued the
cases so Betts could present evidence in support of his recusal
motion and so that the court could further research the topic
of rescinding a jury trial waiver before making a decision. The
cases were continued, and a hearing on Betts’ multiple motions
was set for June 4.
On June 4, 2020, the parties reported to the court that a
plea agreement had been reached involving both cases. In
case No. A-22-094, Betts agreed to enter a plea of guilty
or no contest to two counts of first degree sexual assault of
a child, one count of possession of a firearm by a prohib-
ited person, and three counts of visual depiction of sexually
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Nebraska Court of Appeals Advance Sheets
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STATE V. BETTS
Cite as 31 Neb. App. 737explicit conduct. The State agreed to dismiss two counts of
first degree sexual assault of a child, seven counts of visual
depiction of sexually explicit conduct, and one count of pos-
session of a controlled substance. In case No. A-22-096, Betts
agreed to enter a plea of guilty or no contest to three counts
of first degree sexual assault of a child and three counts of
visual depiction of sexually explicit conduct. The State agreed
to dismiss the remaining counts. Additionally, as a part of the
plea agreement, the State agreed to jointly recommend that
the sentence would allow Betts to be eligible for parole at the
age of 70 and that the victims in both cases would be allowed
to speak at sentencing. The court then had the following dis-
cussion with Betts:
[THE COURT:] Do you understand that if you plead
guilty or no contest you would not have a trial in either
case and you would be giving up the rights that I’ve just
explained?
[BETTS:] Yes, I do.
THE COURT: Is it your intention to give up those
rights and enter into the plea agreement?
[BETTS:] Yes.
THE COURT: You will retain your right to an attorney,
your right to a reasonable bail, and your right to appeal
any final decision of this Court.
If you are not a United States citizen, you are hereby
advised that conviction of the offenses for which you
have been charged may have the consequence of removal
from the United States or denial of naturalization pursuant
to the laws of the United States.
If I find that someone has suffered a loss as a result of
your crime, such as medical bills or something like that,
and I find that you have the ability to pay, the Court could
order you to pay restitution to reimburse the victims. Do
you understand that?
[BETTS:] Yes, I do.
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Nebraska Court of Appeals Advance Sheets
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STATE V. BETTS
Cite as 31 Neb. App. 737THE COURT: A guilty or no contest plea to these
charges will cause you to be subject to the Nebraska Sex
Offender Registration Act for the period of the rest of
your life during which you would have lifetime registra-
tion and lifetime supervision. It also would subject you
to the Nebraska Sex Offender Commitment Act. Except
during any period of incarceration, you would be required
to register with the county sheriff where you reside within
three working days of your release from incarceration
and, again, you would have to report any changes in your
address for the rest of your life. If you fail to register, you
could be convicted of another crime.
At the end of your period of incarceration, if it is deter-
mined that you qualify as a dangerous sex offender, you
could be civilly committed for treatment until such time
as you are determined to be ready for release.
Do you understand that?
[BETTS:] Yes, I do.
THE COURT: . . . Betts, have you had enough time to
talk to your attorney about these two cases?
[BETTS:] Yes.
THE COURT: Have you told your attorney everything
you know about these cases and discussed all possible
defenses you might have?
[BETTS:] Yes.
THE COURT: Do you want any more time to talk to
your attorney before you change your pleas?
[BETTS:] No.
THE COURT: Are you satisfied with the job that your
attorney has done for you on these two cases?
[BETTS:] Yeah. I mean, yes.
The court found that Betts entered his pleas of no contest
freely, voluntarily, knowingly, and intelligently. All motions
filed in April 2019 were withdrawn.
Factual bases provided for each of the cases explained that
the Nebraska State Patrol was notified by “Google” about
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. BETTS
Cite as 31 Neb. App. 737an account that had inappropriate conduct on it in November
2018. The account was found to belong to Betts and contained
nude photographs of a minor. Investigators interviewed Betts
in Auburn, Nebraska, about the account. During this interview,
Betts admitted that he had sexual contact with a minor and had
taken photographs of that contact. Betts identified his victim
as M.C., born in 2004, with whom he lived with as a parent-
ing figure due to his relationship with her mother. After getting
a search warrant for Betts’ electronic media information and
residence, investigators found numerous photographs of por-
nographic material, including pornographic material involving
minors and, specifically, pornographic photographs of M.C.,
on a laptop found in his personal shop, on a hard drive, and on
several cell phones belonging to Betts. Through an investiga-
tion, law enforcement officers discovered that the photographs
also featured L.M.I., another minor who had lived in the home
with Betts. L.M.I., born in 2006, was Betts’ stepdaughter from
a previous relationship.
M.C. was interviewed at a child advocacy center. She told
investigators that Betts had sexually assaulted her multiple
times when M.C. was 12 and 13 years old and that he took
photographs of the assaults. L.M.I. was also interviewed at
the child advocacy center. She reported that she was first
sexually assaulted by Betts when she was 7 years old in 2013.
L.M.I. then went to live with another parent until 2018. L.M.I.
reported that when she returned to Betts’ home in 2018, he
again sexually assaulted her on several occasions. She also
stated that Betts took photographs of the sexual assaults.
A handgun was found during a search of Betts’ home.
Witnesses informed officers that the gun belonged to Betts.
Officers discovered that Betts was a convicted felon who was
prohibited from owning a gun. Through all the events reported,
Betts was over the age of 19, and all the events occurred in
Nemaha County, Nebraska. As part of the factual basis, the
State offered three of the pornographic photographs of M.C.
and six of the pornographic photographs of L.M.I. found
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Nebraska Court of Appeals Advance Sheets
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STATE V. BETTS
Cite as 31 Neb. App. 737in Betts’ possession. Some of these photographs depicted M.C.
and L.M.I. involved in sexual acts with adult male genitalia.
The court received all exhibits under seal.
The court accepted the factual bases, and it found that Betts
understood the charges, the possible penalties, and his rights
and that he waived those rights freely, voluntarily, knowingly,
and intelligently. A presentence investigation, including a sex
offender specific evaluation and victim impact statements,
was ordered.
At the sentencing hearing on August 11, 2020, both M.C.
and L.M.I. provided remarks to the court. The court reviewed
and considered the circumstances surrounding the offenses,
Betts’ criminal record, the sex offender specific evaluation,
and the risk factors within the “LS/CMI index.” The court
described the photographic exhibits from the factual bases as
“sexual torture.” The court noted that Betts seemed to act as if
he were the victim in this case, instead of taking responsibility.
It was calculated that Betts had 632 days’ credit in case No.
A-22-094 and 183 days’ credit in case No. A-22-096 for time
served. Both cases involved a combination of Class IB and
Class ID felonies. For each Class IB felony conviction, Betts
was sentenced to 23 to 100 years’ imprisonment with a manda-
tory minimum of 15 years’ imprisonment. For each Class ID
felony conviction, Betts was sentenced to a mandatory mini-
mum 3 years to 10 years’ imprisonment. All sentences were
ordered to run concurrently.
Betts filed these appeals following an order entitling him to
postconviction relief in the form of a new direct appeal after
trial counsel failed to perfect the appeals within 30 days of the
imposition of his sentences.
ASSIGNMENTS OF ERROR
Betts assigns that his trial counsel was ineffective for (1)
failing to file pretrial motions, (2) failing to depose key wit-
nesses, and (3) exhibiting a general inadvertence that pressured
Betts to enter into a plea agreement to resolve his cases.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. BETTS
Cite as 31 Neb. App. 737STANDARD OF REVIEW
[1,2] 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
requirements. State v. Warner, 312 Neb. 116, 977 N.W.2d
904 (2022). An appellate court determines as a matter of law
whether the record conclusively shows that (1) a defense coun-
sel’s performance was deficient or (2) a defendant was or was
not prejudiced by a defense counsel’s alleged deficient per­
formance. Id.ANALYSIS
[3-6] 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. Lessley, 312 Neb. 316, 978 N.W.2d 620(2022). To show that counsel’s performance was deficient,
the defendant must show counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. Id. To show prejudice under the prejudice component
of the Strickland test, the defendant must demonstrate a
reasonable probability that but for his or her counsel’s defi-
cient performance, the result of the proceeding would have
been different. State v. Lessley, supra. When a conviction is
based upon a plea of no contest, 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 no contest. State v. Anderson, 305
Neb. 978, 943 N.W.2d 690 (2020). A reasonable probability
is a probability sufficient to undermine confidence in the out-
come. Id.- 746 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. BETTS
Cite as 31 Neb. App. 737[7-9] 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
record; otherwise, the issue will be procedurally barred in a
subsequent postconviction proceeding. State v. Warner, supra.The fact that an ineffective assistance of counsel claim is
raised on direct appeal does not necessarily mean that it can
be resolved. Id. The determining factor is whether the record
is sufficient to adequately review the question. Id. 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. State v. Blake, 310 Neb. 769, 969
N.W.2d 399 (2022).
Failure to File Pretrial Motions
and General Inadvertence.
Betts’ first assignment of error claims his trial counsel
was ineffective “by failing to adequately prepare for trial
by utilizing pre-trial motions.” His third assignment of error
alleges trial counsel was ineffective by “demonstrating overall
inadvertence that caused legitimate concerns about . . . Betts’
likelihood of success at trial.” The Nebraska Supreme Court
has held that when raising an ineffective assistance claim on
direct appeal, an appellant must make specific allegations of
the conduct that he or she claims constitutes deficient per-
formance by trial counsel. State v. Mrza, 302 Neb. 931, 926
N.W.2d 79 (2019). An appellate court should not have to
scour the argument section of an appellant’s brief to extract
specific allegations of deficient performance. Id. Assignments
of error on direct appeal regarding ineffective assistance of
trial counsel must specifically allege deficient performance.
Id. Betts’ first and third assignments of error both fail to meet
this requirement.
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Nebraska Court of Appeals Advance Sheets
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STATE V. BETTS
Cite as 31 Neb. App. 737Betts broadly asserts that his trial counsel was ineffective
for failing to file pretrial motions. In his assignments of error,
Betts fails to specify which pretrial motions his trial counsel
should have filed. We will not scour the argument section of
Betts’ brief in search of the answer. As a result, Betts’ first
assignment of error is insufficiently stated to allow appel-
late review.
Similarly, Betts’ assignment that his trial counsel demon-
strated “overall inadvertence” is little more than an alternative
method of generally stating that trial counsel was ineffective.
This assignment does not specify how trial counsel was inad-
vertent or what alleged inadvertent acts or omissions were
deficient. Again, we will not scour the argument section to
search for the specific acts that are claimed to be deficient.
Betts’ third assignment of error is insufficiently stated to allow
appellate review.
Failure to Depose Witnesses.
[10] Betts also claims that his trial counsel was ineffective
for failing to take depositions of key witnesses. This claim is
sufficiently pled, but cannot be resolved on the record before
us. When the claim of ineffective assistance on direct appeal
involves uncalled witnesses, vague assertions that counsel was
deficient for failing to call “witnesses” are little more than
placeholders and do not sufficiently preserve the claim. State v.
Blake, supra. However, the appellate court does not need spe-
cific factual allegations as to what the person or persons would
have said, which will not be found in the appellate record. Id.It is sufficient that appellate counsel give on direct appeal the
names or descriptions of any uncalled witnesses forming the
basis of a claim of ineffective assistance of trial counsel. Id.Such specificity is necessary so that the postconviction court
may later identify whether a particular claim of failing to
investigate a witness is the same one that was raised on direct
appeal. Id.- 748 -
Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
STATE V. BETTS
Cite as 31 Neb. App. 737In State v. Blake, 310 Neb. 769, 799, 969 N.W.2d 399,
421-22 (2022), the Supreme Court noted that the defendant’s
“assignment of error and supporting argument specified the
names of the witnesses he claims that, if investigated, would
have supported his innocence.” This statement, coupled with
the court’s prior statement that “[i]t is sufficient that appel-
late counsel give on direct appeal the names or descriptions
of any uncalled witnesses forming the basis of a claim of
ineffective assistance of trial counsel,” id. at 798-99, 969
N.W.2d at 421, leads us to conclude that in the scenario of
failure to investigate, depose, or call witnesses, it is not critical
that the uncalled witnesses be named or specifically identi-
fied in the assignment of error. We recognize that in Blake,
the uncalled witnesses were named in the assignment of error
and in the argument. Here, the undeposed witnesses were not
named in an assignment of error. However, they were specifi-
cally named “on direct appeal” in the corresponding argument
section. This argument section is clearly limited to this issue,
and it readily identifies the witnesses that trial counsel did not
depose. Therefore, we find that in this scenario, we are not in
the position of scouring the record to try to define the nature of
the ineffectiveness claim. Unlike the other two claims of inef-
fective assistance stated in appellant’s brief herein, this claim
is readily discernible. See, also, State v. Roebuck, 31 Neb. App.
67, 976 N.W.2d 218 (2022).
Betts asserts that trial counsel took the depositions of M.C.
and M.C.’s mother but failed to take the depositions of any
law enforcement officer, investigator, or forensic analyst who
worked on the case. Betts then lists the names of 10 indi-
viduals that were named as witnesses and subpoenaed by the
State but were not deposed by trial counsel. Trial counsel
was granted leave by the court to depose these witnesses, but
did not conduct the depositions prior to Betts’ entering into
the plea agreement. Though Betts does not articulate what the
depositions of these individuals would have produced, he has
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Nebraska Court of Appeals Advance Sheets
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STATE V. BETTS
Cite as 31 Neb. App. 737identified the witnesses he asserts trial counsel should have
deposed with enough specificity to preserve his claim for
postconviction relief. Because trial counsel’s decision not to
depose these individuals is a matter of trial strategy, we cannot
resolve this issue with the record before us.
CONCLUSION
For the reasons stated above, we affirm Betts’ convictions
and sentences.
Affirmed.