State v. Iddings , 304 Neb. 759 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    02/21/2020 08:06 AM CST
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. IDDINGS
    Cite as 
    304 Neb. 759
    State of Nebraska, appellee, v.
    Matthew P. Iddings, appellant.
    ___ N.W.2d ___
    Filed January 3, 2020.   No. S-19-304.
    1. Judgments: Appeal and Error. When issues on appeal present ques-
    tions of law, an appellate court has an obligation to reach an independent
    conclusion irrespective of the decision of the court below.
    2. Constitutional Law: Waiver: Appeal and Error. In determining
    whether a defendant’s waiver of a statutory or constitutional right was
    voluntary, knowing, and intelligent, an appellate court applies a clearly
    erroneous standard of review.
    3. 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.
    4. Plea Bargains: Waiver: Appeal and Error. Where no objection was
    made to the sentencing judge for a plea bargain violation, the defendant
    has waived the error and it has not been preserved for appellate review.
    5. 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.
    6. Courts: Plea Bargains. Courts enforce only those terms and conditions
    actually agreed upon by the parties to a plea agreement.
    7. Plea Bargains. A party breaches a plea agreement either by (1) violat-
    ing an express term of the agreement or (2) acting in a manner not spe-
    cifically prohibited by the agreement but still incompatible with explicit
    promises made therein.
    8. Plea Bargains: Sentences. A sentencing recommendation need not be
    enthusiastic in order to fulfill a promise made in a plea agreement.
    9. Appeal and Error. It is a fundamental rule of appellate practice that an
    alleged error must be both specifically assigned and specifically argued
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    STATE v. IDDINGS
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    304 Neb. 759
    in the brief of the party asserting the error to be considered by an appel-
    late court.
    10.   ____. A generalized and vague assignment of error that does not advise
    an appellate court of the issue submitted for decision will not be
    considered.
    11.   Presentence Reports: Waiver. The statutory right to have a presentence
    investigation completed prior to being sentenced may be waived so long
    as that waiver was knowingly and intelligently made.
    12.   Waiver. No formalistic litany of warnings is required to show that a
    waiver was knowingly and intelligently made.
    13.   Presentence Reports: Waiver: Appeal and Error. The appropriate
    standard to apply in the case of a waiver of the right to a presentence
    investigation under Neb. Rev. Stat. § 29-2261 (Cum. Supp. 2014) is
    whether it is apparent from the totality of the circumstances reflected in
    the record that the defendant, when waiving the right, was sufficiently
    aware of his or her right to a presentence investigation and the possible
    consequences of his or her decision to forgo that right.
    14.   Criminal Law: Waiver. A knowing and intelligent waiver may be dem-
    onstrated by or inferred from the defendant’s conduct.
    15.   Courts: Presentence Reports: Waiver. It is the better practice for a
    sentencing court to issue a more direct advisement of the statutory right
    to a presentence investigation, conduct an explicit inquiry into the vol-
    untariness of a defendant’s waiver of that right, and make explicit find-
    ings with respect to a waiver.
    16.   Sentences: Appeal and Error. Absent an abuse of discretion by the trial
    court, an appellate court will not disturb a sentence imposed within the
    statutory limits.
    17.   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.
    18.   Sentences. The appropriateness of a sentence is necessarily a subjec-
    tive 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.
    19.   Plea Bargains: Judges: Sentences. A judge is in no manner bound to
    give a defendant the sentence recommended by the prosecutor under a
    plea agreement.
    20.   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
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    304 Nebraska Reports
    STATE v. IDDINGS
    Cite as 
    304 Neb. 759
    without an evidentiary hearing or whether the claim rests solely on the
    interpretation of a statute or constitutional requirement.
    21. Effectiveness of Counsel: Records: Appeal and Error. When review-
    ing 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.
    Appeal from the District Court for Hall County: John H.
    Marsh, Judge. Affirmed.
    Jonathan M. Hendricks, of Dowding, Dowding, Dowding &
    Urbom Law Offices, for appellant.
    Douglas J. Peterson, Attorney General, and Erin E. Tangeman
    for appellee.
    Heavican, C.J., Cassel, Stacy, Funke, Papik, and
    Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    This case presents an appeal from a sentence imposed after
    the defendant pled guilty pursuant to a plea agreement. The
    State and the defendant had jointly agreed to recommend
    an 18-month period of incarceration. The district court ulti-
    mately sentenced the defendant to an indeterminate term of 18
    months’ to 5 years’ incarceration, and the defendant appeals.
    The defend­ant asserts that the State breached its agreement to
    recommend a sentence of 18 months’ incarceration by remark-
    ing that it “struggled” concerning the sentencing recommen-
    dation. Further, the defendant argues that the court erred by
    failing to order a presentence investigation when, although
    defense counsel below stated that the defendant was waiving
    the presentence investigation, the court only articulated that it
    had found such an investigation to be impractical. The defend­
    ant argues that the court abused its discretion in finding a
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    STATE v. IDDINGS
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    304 Neb. 759
    presentence investigation impractical. The defendant generally
    asserts that the sentence was excessive and was a result of the
    court’s abuse of discretion in failing to consider all of the sen-
    tencing factors, such as mentality, education and experience,
    or social and cultural background, in part as a result of failing
    to conduct a presentence investigation. Finally, the defendant
    argues that defense counsel below was ineffective for failing
    to request the proper amount of jail time credit pertaining to
    alleged time spent in jail in another county under arrest war-
    rants for both the present case and the charges filed in that
    other county.
    BACKGROUND
    In relation to a traffic stop that occurred in July 2015, the
    defendant, Matthew P. Iddings, was originally charged under
    “60-6,196.15” with driving under the influence (DUI), fourth
    offense aggravated, a Class III felony. Defense counsel and
    the State reached a plea agreement pursuant to which the State
    filed an amended information charging Iddings with a nonag-
    gravated DUI, fourth offense, under Neb. Rev. Stat. § 60-6,196
    (Reissue 2010), a Class IIIA felony.
    The amended information described that on July 2, 2015,
    Iddings operated a motor vehicle and had a concentration of
    .08 of 1 gram or more by weight of alcohol per 100 milliliters
    of his blood or .08 of 1 gram or more by weight of alcohol per
    210 liters of his breath. The amended complaint further alleged
    that this was the fourth DUI offense committed by Iddings,
    who had been previously convicted of DUI in Nebraska on or
    about May 26, 2005, and March 15 and December 12, 2007.
    At the plea and sentencing hearing held on March 6, 2019,
    defense counsel and the State explained to the court that they
    had reached a plea agreement under which the State amended
    the information from aggravated DUI, fourth offense, to non-
    aggravated DUI, fourth offense, and agreed to recommend
    jointly with defense counsel that Iddings be sentenced to 18
    months’ incarceration.
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    304 Nebraska Reports
    STATE v. IDDINGS
    Cite as 
    304 Neb. 759
    As the factual basis for the crime, the State recited that on
    July 2, 2015, the “Nebraska State Patrol Help Line” received
    multiple telephone calls about a potential drunk driver on
    Interstate 80. An officer was able to locate the vehicle and
    observed both passenger-side tires drive off the shoulder of the
    roadway two different times. The officer conducted a traffic
    stop and, upon contact with the driver, Iddings, noticed a smell
    of alcoholic beverage. A blood draw was eventually conducted
    on Iddings, which demonstrated .307 grams of alcohol per 100
    milliliters of blood.
    Defense counsel agreed with the factual basis. Defense
    counsel also stated the defense was willing to stipulate to the
    prior DUI offenses alleged in the information and that Iddings
    had been represented by an attorney in each of the three
    prior offenses.
    The court found the factual basis adequate to support the
    plea. After a standard plea colloquy, the court accepted Iddings’
    no contest plea. The court found that the plea was not a result
    of any promise or threat; that the plea was entered knowingly,
    voluntarily, and intelligently; and that Iddings knowingly, vol-
    untarily, and intelligently waived his constitutional rights.
    Defense counsel advised the court that Iddings’ preference
    was to proceed immediately to sentencing, noting that he had
    calculated the jail time credit. The court did so.
    When the court asked about a presentence investigation,
    defense counsel stated, “Your honor, . . . Iddings will waive his
    right to a presentence investigation.” When asked by the court
    for its comments, the State expressed that it had no objection
    to Iddings’ waiver of the presentence investigation. However,
    Iddings was not personally addressed by the court regarding
    such waiver.
    The State noted with regard to Iddings’ criminal history that
    other than the three prior convictions listed on the information,
    Iddings also had a prior DUI in 1997. Further, he had commit-
    ted a more recent DUI in Sarpy County around the same time
    as the charge he had just pled to and for which in October 2018
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    STATE v. IDDINGS
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    304 Neb. 759
    he had been sentenced to 18 months’ incarceration. Lastly,
    Iddings had a pending DUI charge in Grant County.
    Defense counsel did not contest this history other than
    clarifying that Iddings had just finished serving his sentence
    on the Sarpy County conviction in October 2018, as opposed
    to being sentenced in October 2018. Further, defense counsel
    described that Iddings had already pled guilty to the charge of
    nonaggravated DUI, fourth offense, in Grant County and was
    awaiting sentencing.
    After being so informed of the pending charges in Grant
    County, the district court for Hall County confirmed that
    Iddings was “likely to be transported to another county when
    [Hall County authorities were] done with him.” The court
    found “under those circumstances that a presentence investi-
    gation is impractical.” Defense counsel did not object to this
    conclusion. The court did not make an express finding that the
    presentence investigation had been waived.
    Defense counsel asked the court to adopt the plea agreement
    and sentence Iddings to 18 months’ incarceration with 136
    days’ credit. Defense counsel informed the court that Iddings
    had been in jail from October 23, 2017, to the date of the hear-
    ing, March 6, 2019, and that he had been in jail for 2 additional
    days in 2015.
    Defense counsel asked the court to consider in sentencing
    that Iddings had not been out of jail since 2017 and had thus
    experienced a long period of sobriety. According to defense
    counsel, Iddings fully intended to “walk out of the Department
    of Corrections a better man than when he went in, and he does
    believe that he can maintain long-term sobriety.”
    When asked by the court for its thoughts on sentencing, the
    State said:
    [W]hen negotiating this case with [defense counsel], I
    really struggled on what to agree to. We came down to the
    18 months because that is what he got on a similar charge
    in another county. If he was serving any other sentence,
    I — I don’t know if I would have agreed; but since this
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    304 Nebraska Reports
    STATE v. IDDINGS
    Cite as 
    304 Neb. 759
    will be consecutive to anything else that he was serving
    previously, I agreed to recommend the 18 months.
    I will note in addition to the DUIs that I’ve already
    mentioned, he did fail to appear in this case on June 8th,
    2016, and was not arrested until, I believe, a year later;
    and then he was transported here, I believe, on October
    24th of last year.
    The record reflects that a bench warrant had been issued by
    the district court for Hall County on June 8, 2016, for Iddings’
    failure to appear at a scheduled hearing. The appellate record
    does not reflect an arrest in Sarpy County in 2017. Instead, a
    document filed on October 24, 2018, reflects that Iddings was
    arrested in Hall County on October 23, 2018, on the June 8,
    2016, warrant.
    Having been present for the foregoing, Iddings was asked
    by the court whether he had any legal reason why the court
    should not pronounce its sentence and whether he had anything
    else to bring to the court’s attention before the court sentenced
    him. Iddings responded that he did not have any reason why
    the court should not proceed to sentencing. Iddings apologized
    for not appearing in court on June 8, 2016, explaining, “It was
    a health issue, I was in the hospital.”
    The court sentenced Iddings to a term of incarceration of
    18 months to 5 years, with “credit for 136 days.” Iddings’
    driver’s license was revoked for 15 years. Defense counsel
    raised no objection to the sentence. In its final order, the court
    noted that the parties had agreed to 18 months’ incarceration
    and informed Iddings that it was not bound by the plea nego-
    tiations. The court reiterated its conclusion that a presentence
    investigation would be impractical and did not articulate any-
    thing pertaining to a waiver of the same.
    Iddings appeals his sentence. He has obtained new counsel
    to represent him on appeal.
    ASSIGNMENTS OF ERROR
    Iddings assigns that (1) the district court abused its discre-
    tion by sentencing him to a term of incarceration of 18 months
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    STATE v. IDDINGS
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    304 Neb. 759
    to 5 years without due consideration of established sentencing
    factors, (2) the State violated the plea agreement, (3) he was
    entitled to additional credit for time served, (4) trial counsel
    was ineffective for failing to object to the State’s violation of
    the plea agreement, and (5) trial counsel was ineffective for
    failing to request at the sentencing hearing additional credit for
    time served.
    STANDARD OF REVIEW
    [1] When issues on appeal present questions of law, an
    appellate court has an obligation to reach an independent con-
    clusion irrespective of the decision of the court below.1
    [2] In determining whether a defendant’s waiver of a statu-
    tory or constitutional right was voluntary, knowing, and intel-
    ligent, an appellate court applies a clearly erroneous standard
    of review.2
    [3] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.3
    ANALYSIS
    Iddings’ fundamental complaint on appeal is that he was
    sentenced to an indeterminate period of incarceration of 18
    months to 5 years rather than 18 months to 18 months. He seeks
    the option of withdrawing his plea or seeking resentencing
    before a different judge on the ground that the State allegedly
    breached its plea agreement by undermining its recommenda-
    tion of an 18-month sentence of incarceration. Alternatively,
    Iddings seeks resentencing under the assertions that the court
    imposed an excessive sentence and that the court’s decision
    to forgo a presentence investigation was plain error. Finally,
    Iddings argues that defense counsel below was ineffective for
    1
    State v. Landera, 
    285 Neb. 243
    , 
    826 N.W.2d 570
    (2013).
    2
    State v. Qualls, 
    284 Neb. 929
    , 
    824 N.W.2d 362
    (2012).
    3
    State v. Montoya, ante p. 96, 
    933 N.W.2d 558
    (2019).
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    STATE v. IDDINGS
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    304 Neb. 759
    failing to request credit for an additional 58 days’ jail time for
    which he was ineffectively given credit against the sentence
    imposed in Sarpy County. We find that Iddings’ claim regard-
    ing credit for time served cannot be determined on direct
    appeal, and we disagree with Iddings’ remaining assignments
    of error. We affirm the judgment below.
    Plea Agreement
    [4] Iddings asserts that the State breached its plea agree-
    ment to recommend 18 months of incarceration by effec-
    tively undermining that sentence in its comments to the court
    at the sentencing hearing. Trial counsel did not object to
    the State’s comments. Where no objection was made to the
    sentencing judge for a plea bargain violation, the defenda­nt
    has waived the error and it has not been preserved for appel-
    late review.4 Iddings argues, however, that trial counsel was
    ineffective by failing to object to the alleged breach and
    either ask the court to allow Iddings to withdraw the plea or
    demand specific performance of the plea agreement before a
    different judge.5
    [5] We agree with Iddings and the State that this ineffec-
    tive assistance of counsel claim can be resolved on direct
    appeal, because the record is sufficient to adequately review
    the question.6 To prevail on a claim of ineffective assistance
    of counsel under Strickland v. Washington,7 the defendant must
    show that his or her counsel’s performance was deficient and
    that this deficient performance actually prejudiced the defend­
    ant’s defense.8
    4
    See State v. Sidzyik, 
    281 Neb. 305
    , 
    795 N.W.2d 281
    (2011).
    5
    See 
    id. 6 See
    State v. Stelly, ante p. 33, 
    932 N.W.2d 857
    (2019).
    7
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
        (1984).
    8
    State v. Oliveira-Coutinho, ante p. 147, 
    933 N.W.2d 825
    (2019).
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    STATE v. IDDINGS
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    [6,7] We enforce only those terms and conditions actu-
    ally agreed upon by the parties to a plea agreement.9 A party
    breaches a plea agreement either by (1) violating an express
    term of the agreement or (2) acting in a manner not specifically
    prohibited by the agreement but still incompatible with explicit
    promises made therein.10 On this latter means of breaching
    an express provision of a plea agreement, we have explained
    that the State must not “effectively undermine the promised
    recommendation.”11
    Thus, in State v. Landera,12 we held that the State had
    breached a plea agreement to recommend probation when it
    stated at sentencing that it could not recommend probation
    and believed the court should impose incarceration instead,
    elaborating upon the danger that the defendant would pose to
    the public if placed immediately on probation. The State had
    also made a “perfunctory recommendation of probation,” but
    we concluded that “the tenor of [the State’s] entire argument
    undermined its purported recommendation, thereby breaching
    the express term of the agreement.”13
    [8] Landera is distinguishable from the present case. At
    Iddings’ sentencing hearing, the State merely expressed
    that it had “struggled” with what to agree to. Nevertheless,
    the State reinforced its agreed-upon sentencing recommen-
    dation by stating that after this “struggle[],” it ultimately
    found 18 months’ incarceration to be reasonable given that
    the sentence would be consecutive to Iddings’ sentence on
    a similar charge in another county. While the State also
    pointed out Iddings’ prior failure to appear, the State did not
    assert or even imply that this fact, or any other, meant that
    9
    See State v. Landera, supra note 1.
    10
    See 
    id. 11 Id.
    at 
    257, 826 N.W.2d at 579
    .
    12
    State v. Landera, supra note 1.
    13
    
    Id. at 256,
    826 N.W.2d at 578-79.
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    Iddings should be incarcerated more than 18 months. As we
    stated in Landera, “a sentencing recommendation need not
    be enthusiastic in order to fulfill a promise made in a plea
    agreement.”14 The State did not effectively undermine its
    promised recommendation.
    Defense counsel below was not deficient for failing to object
    to the State’s alleged breach of the plea agreement, because the
    State did not commit such a breach.
    Lack of Presentence Investigation
    [9,10] Next, Iddings argues that the district court committed
    plain error by failing to procure a presentence investigation
    before sentencing. The State asserts that this argument was not
    assigned as error. It is a fundamental rule of appellate practice
    that an alleged error must be both specifically assigned and spe-
    cifically argued in the brief of the party asserting the error to
    be considered by an appellate court.15 A generalized and vague
    assignment of error that does not advise an appellate court of
    the issue submitted for decision will not be considered.16
    While we agree with the State that Iddings’ assignment of
    error could have been better crafted, we will consider the fail-
    ure to procure the presentence investigation as encompassed
    by Iddings’ assignment of error that “[t]he district court abused
    its discretion by sentencing [Iddings] to a sentence of eighteen
    months to five years without due consideration of established
    sentencing factors.” Iddings argues that the absence of the
    presentence investigation contributed to the court’s ultimate
    failure to consider all the relevant sentencing factors, which
    constituted the alleged abuse of discretion in reaching the inde-
    terminate 18-month-to-5-year sentence that Iddings asks this
    court to reverse as excessive.
    14
    
    Id. at 257,
    826 N.W.2d at 579.
    15
    State v. Sundquist, 
    301 Neb. 1006
    , 
    921 N.W.2d 131
    (2019).
    16
    
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    Neb. Rev. Stat. § 29-2261(1) (Cum. Supp. 2014) provides
    that “[u]nless it is impractical to do so, when an offender
    has been convicted of a felony other than murder in the first
    degree, the court shall not impose sentence without first order-
    ing a presentence investigation of the offender and according
    due consideration to a written report of such investigation.”
    Section 29-2261(3) explains that, among other things,
    [t]he presentence investigation and report shall include,
    when available, an analysis of the circumstances attend-
    ing the commission of the crime, the offender’s history of
    delinquency or criminality, physical and mental condition,
    family situation and background, economic status, educa-
    tion, occupation, and personal habits, and any other mat-
    ters that the probation officer deems relevant or the court
    directs to be included.
    We have construed the plain language of § 29-2261 as a
    mandate upon the sentencing court to obtain and consider a
    presentence investigation with every felony conviction unless
    applicable exceptions render such an investigation unneces-
    sary.17 The presentence investigation serves several functions,
    including providing information to the court to assist in the
    imposition of an appropriate individualized sentence based on
    knowledge of the convicted person’s background and character
    which may not otherwise be available to the sentencing court,
    especially in a plea-based conviction.18
    [11] The statutory right to have a presentence investiga-
    tion completed prior to being sentenced may, however, be
    waived so long as that waiver was knowingly and intelli-
    gently made.19 We find that Iddings expressly and effectively
    waived his right to a presentence investigation and that thus,
    17
    State v. Tolbert, 
    223 Neb. 794
    , 
    394 N.W.2d 288
    (1986). See, also, e.g.,
    State v. Qualls, supra note 2; State v. Thomas, 
    268 Neb. 570
    , 
    685 N.W.2d 69
    (2004); State v. Jackson, 
    192 Neb. 39
    , 
    218 N.W.2d 430
    (1974).
    18
    State v. Albers, 
    276 Neb. 942
    , 
    758 N.W.2d 411
    (2008).
    19
    State v. Qualls, supra note 2; State v. Tolbert, supra note 17.
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    he cannot assert on appeal that the trial court erred by failing
    to order that a presentence investigation be conducted prior
    to sentencing.
    [12,13] No formalistic litany of warnings is required to show
    that a waiver was knowingly and intelligently made.20 Instead,
    the appropriate standard to apply in the case of a waiver of the
    right to a presentence investigation under § 29-2261 is whether
    it is apparent from the totality of the circumstances reflected in
    the record that the defendant, when waiving the right, was suf-
    ficiently aware of his or her right to a presentence investigation
    and the possible consequences of his or her decision to forgo
    that right.21 But, as a general matter, being informed of a right
    to a presentence investigation demonstrates that the defendant
    was sufficiently aware of both the right and the possible con-
    sequences of his or her decision to forgo that right,22 because
    the consequences of the failure to procure a presentence inves-
    tigation for the court’s consideration at sentencing are largely
    self-evident.23
    Iddings was present and remained silent when his counsel
    expressly waived what counsel expressly described as Iddings’
    “right” to a presentence investigation. Later, when the court
    asked Iddings if there was any legal reason why the court
    should not proceed to sentencing or anything Iddings would
    like to add, Iddings failed to raise the lack of a presentence
    investigation. Iddings, through his silent acquiescence to his
    counsel’s statement of waiver and failure to object or otherwise
    raise the issue to the court, waived his right to a presentence
    investigation. We have held in various circumstances that a
    defendant may waive a right by silently acquiescing to the
    20
    See State v. Qualls, supra note 2. See, also, State v. Jenkins, 
    303 Neb. 676
    ,
    
    931 N.W.2d 851
    (2019).
    21
    State v. Qualls, supra note 2; State v. Tolbert, supra note 17.
    22
    See, State v. Qualls, supra note 2; State v. Robeson, 
    25 Neb. Ct. App. 138
    , 
    903 N.W.2d 677
    (2017).
    23
    See State v. Qualls, supra note 2.
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    waiver given by his counsel and by failing to object and raise
    the issue to a trial court.24
    We find no merit to any contention that the record fails to
    demonstrate that this waiver was effective because the district
    court did not specifically inquire of Iddings whether he under-
    stood the right and whether anyone had threatened or promised
    him anything to waive the right and did not inform Iddings of
    what a waiver would entail. The facts of this case are similar
    to those presented in State v. Robeson,25 wherein the Court of
    Appeals found that it was apparent from the totality of the
    circumstances reflected in the record that the defendant had
    knowingly, intelligently, and voluntarily waived the right to
    a presentence investigation, despite the lack of any colloquy
    between the court and the defendant.
    In Robeson, sentencing had been expedited and there was
    a jointly recommended sentence pursuant to a plea agree-
    ment. The district court had confirmed with defense counsel
    in the defendant’s presence that the defendant was waiving his
    “right” to a presentence investigation. The defendant did not
    engage in any further discussion or objection with regard to his
    counsel’s statement that he was waiving his right to a presen-
    tence investigation. The defendant and his counsel were given
    the opportunity at the sentencing hearing to present any miti-
    gating factors they wished the court to consider, and defense
    counsel affirmed that there was no other legal reason why the
    court should not impose a sentence at that time.26
    [14] A knowing and intelligent waiver may be demon-
    strated by or inferred from the defendant’s conduct.27 Iddings’
    24
    See, State v. Sayers, 
    211 Neb. 555
    , 
    319 N.W.2d 438
    (1982); Sedlacek
    v. State, 
    147 Neb. 834
    , 
    25 N.W.2d 533
    (1946); State v. Robeson, supra
    note 22.
    25
    State v. Robeson, supra note 22.
    26
    See, State v. Sayers, supra note 24; Sedlacek v. State, supra note 24; State
    v. Robeson, supra note 22.
    27
    See State v. Qualls, supra note 2.
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    defense counsel below, in Iddings’ presence, indicated that
    Iddings wished to proceed immediately to sentencing and
    waive his “right” to a presentence investigation in order to do
    so. Immediately prior to this exchange in which defense coun-
    sel stated that Iddings was waiving his right to a presentence
    investigation, Iddings’ ability to waive his right to trial had
    been evaluated under a standard plea colloquy, the court hav-
    ing found no impediment to his capacity in that regard. And
    Iddings confirmed that he was aware of no legal reason why
    the court should not pronounce its sentence. Both Iddings and
    his defense counsel below were given the opportunity to pre­
    sent any mitigating circumstances or other matters. They both
    highlighted what facts and circumstances they wished the court
    to consider in sentencing—which would have been reflected in
    the presentence investigation, had Iddings not waived it.
    While appellate counsel points out that the district court did
    not actually articulate as a finding that Iddings had waived
    his right to a presentence investigation, that is not dispositive.
    There is no indication that the court found that Iddings had
    failed to effectively waive his right to a presentence investiga-
    tion; the court merely focused on its conclusion that a presen-
    tence investigation “is found to be impractical.” A silent record
    is insufficient for a court on appeal to conclude a knowing,
    intelligent, and voluntary waiver of a constitutional or statu-
    tory right,28 but the record here is not silent. The record need
    not affirmatively contain the lower court’s express finding of
    a knowing, intelligent, and voluntary waiver in order for this
    court to observe that the record affirmatively demonstrates that
    a knowing, intelligent, and voluntary waiver has been made.
    Again, the appropriate standard to apply in the case of a waiver
    of a right to a presentence investigation under § 29-2261 is
    whether it is apparent from the record that the defendant’s
    28
    See, State v. Porchia, 
    221 Neb. 327
    , 
    376 N.W.2d 800
    (1985); State v.
    Morford, 
    192 Neb. 412
    , 
    222 N.W.2d 117
    (1974); State v. Balvin, 18 Neb.
    App. 690, 
    791 N.W.2d 352
    (2010).
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    relinquishment of the right was knowingly and intelligently
    made.29 The record in this case affirmatively demonstrates that
    Iddings knowingly, intelligently, and voluntarily waived his
    statutory right to a presentence investigation.
    [15] We agree with the Court of Appeals’ statement in
    Robeson that it is “the better practice” for a sentencing court
    to issue a more direct advisement of the statutory right to a
    presentence investigation, conduct an explicit inquiry into the
    voluntariness of a defendant’s waiver of that right, and make
    explicit findings with respect to a waiver.30 We encourage
    courts to adopt this better practice. Conducting a colloquy for
    a waiver of a presentence investigation ensures that the record
    will affirmatively demonstrate that the defendant has know-
    ingly, intelligently, and voluntarily waived that right. While the
    record in this case is adequate without such a colloquy, it may
    not be in another case.
    Having concluded that the court did not err in failing to
    order a presentence investigation, because Iddings expressly
    waived that statutory right, we need not consider whether the
    court abused its discretion in determining that a presentence
    investigation was impractical because Iddings was likely to be
    transported to another county immediately after sentencing.
    Excessive Sentence
    [16,17] Next, we address Iddings’ excessive sentence argu-
    ment. Absent an abuse of discretion by the trial court, an
    appellate court will not disturb a sentence imposed within the
    statutory limits.31 An 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 con-
    science, reason, and evidence.32
    29
    State v. Qualls, supra note 2.
    30
    State v. Robeson, supra note 
    22, 25 Neb. Ct. App. at 148
    , 903 N.W.2d at 686.
    31
    State v. Montoya, supra note 3.
    32
    
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    A Class IIIA felony under Neb. Rev. Stat. § 28-105 (Cum.
    Supp. 2014), in effect at the time the offense was committed,
    was punishable with a maximum of 5 years’ imprisonment,
    a $10,000 fine, or both. There was no minimum. Where, as
    here, a sentence imposed within the statutory limits is alleged
    on appeal to be excessive, the appellate court must determine
    whether a sentencing court abused its discretion in considering
    and applying the relevant factors as well as any applicable legal
    principles in determining the sentence to be imposed.33
    [18] In determining a sentence to be imposed, relevant fac-
    tors customarily considered and applied are the defendant’s (1)
    age, (2) mentality, (3) education and experience, (4) social and
    cultural background, (5) past criminal record or record of law-
    abiding conduct, and (6) motivation for the offense, as well as
    (7) the nature of the offense and (8) the amount of violence
    involved in the commission of the crime. 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.34
    Appellate counsel asserts that the district court abused its
    discretion by rendering its sentence without any “real consid-
    eration” of the above sentencing factors other than Iddings’
    criminal history and the factual basis for the crime.35 But, as
    already noted, the court gave defense counsel and Iddings the
    opportunity to present anything they wished the court to con-
    sider before reaching its sentencing decision.
    Defense counsel responded to this opportunity by asserting
    that Iddings had been sober since 2017 and planned to remain
    so. Iddings, for his part, explained that he had failed to appear
    at a prior hearing because he had been in the hospital. To the
    extent that the district court did not consider more information
    33
    
    Id. See, also,
    State v. Blaha, 
    303 Neb. 415
    , 
    929 N.W.2d 494
    (2019).
    34
    
    Id. 35 Brief
    for appellant at 12.
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    pertaining to Iddings’ mentality, education and experience,
    or social and cultural background, this was due to Iddings’
    waiver of the presentence investigation and his deliberate deci-
    sion not to otherwise present at the hearing facts pertaining
    to these factors. Under such circumstances, we find no abuse
    of discretion.36
    We also agree with the State that it is difficult to find an
    abuse of discretion in an excessive sentence analysis when the
    minimum imposed was the term the defendant agreed to in a
    plea bargain agreement. It is the minimum portion of an inde-
    terminate sentence which measures its severity.37
    [19] We find no merit to Iddings’ assertion that the district
    court “abused its discretion by disregarding the joint plea
    recommendation.”38 Assuming without deciding that the joint
    plea recommendation was, as Iddings asserts, for an indetermi-
    nate term of incarceration of 18 months to 18 months, a judge
    is in no manner bound to give a defendant the sentence recom-
    mended by the prosecutor under a plea agreement.39 Given the
    number of DUI convictions and charges that were undisputed
    below, it was reasonable for the court to conclude that it was
    necessary for Iddings’ safety and the safety of the public to
    impose a higher maximum term in order to ensure proper
    postrelease supervision.
    Credit for Time Served
    Lastly, appellate counsel argues in this direct appeal that
    defense counsel below was ineffective for failing to request
    58 additional days of jail time credit under Neb. Rev. Stat.
    § 83-1,106(1) (Reissue 2014), for time spent in jail in Sarpy
    County. He asserts that according to § 83-1,106(1), 336 days
    36
    See State v. Qualls, supra note 2.
    37
    See, e.g., State v. McCaslin, 
    240 Neb. 482
    , 
    482 N.W.2d 558
    (1992); State
    v. Haynie, 
    239 Neb. 478
    , 
    476 N.W.2d 905
    (1991).
    38
    Brief for appellant at 11.
    39
    See State v. Leahy, 
    301 Neb. 228
    , 
    917 N.W.2d 895
    (2018).
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    were simultaneously “as a result of the criminal charge for
    which a prison sentence [was] imposed” below and as a result
    of the charge in Sarpy County. According to appellate counsel,
    although the district court for Sarpy County purported to apply
    all 336 days against the sentence there imposed, 58 days of that
    jail time were not truly applied because they were in excess of
    the 278 days he was sentenced to serve, when calculated with
    mandatory good time.
    [20] According to appellate counsel, defense counsel below
    should have been aware that the 58 days’ jail time credit was
    the “result of” the underlying charge in this case and that it had
    not been truly applied in the Sarpy County case. Thus, appel-
    late counsel concludes that defense counsel was ineffective in
    failing to request the proper amount of jail time credit—when
    defense counsel had waived the presentence investigation and
    represented that he was able to accurately inform the court of
    the applicable jail time. Whether a claim of ineffective assist­
    ance of trial counsel can be determined on direct appeal pre­
    sents 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.40
    [21] The determining factor is whether the record is suf-
    ficient to adequately review the question.41 We have said the
    record is sufficient if it establishes either that trial counsel’s
    performance was not deficient, that the appellant will not
    be able to establish prejudice, or that trial counsel’s actions
    could not be justified as a part of any plausible trial strategy.42
    We have also said that when reviewing claims of ineffec-
    tive 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
    40
    State v. Stelly, supra note 6.
    41
    
    Id. 42 Id.
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    did or did not provide effective assistance, and whether the
    defendant was or was not prejudiced by counsel’s alleged defi-
    cient performance.43
    Appellate counsel and the State both suggest that we can-
    not resolve this claim of ineffective assistance of counsel on
    direct appeal, since it depends upon facts outside the appellate
    record. We agree. The exact credit for time served to which a
    defendant is entitled is objective and not discretionary, and a
    question of law,44 but the necessary facts to conduct such an
    analysis in this case are not contained within the record on
    direct appeal.
    CONCLUSION
    For the foregoing reasons, we affirm the judgment below.
    Affirmed.
    Miller-Lerman, J., participating on briefs.
    43
    
    Id. 44 See
    id.