- 1 -

IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. OGREN

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.

AARON E. OGREN, APPELLANT.

Filed November 30, 2021. No. A-21-127.

Appeal from the District Court for Fillmore County: VICKY L. JOHNSON, Judge. Affirmed.

Michael J. Wilson, of Berry Law, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.

PIRTLE, Chief Judge, and MOORE and WELCH, Judges.

PIRTLE, Chief Judge.

INTRODUCTION

Aaron E. Ogren appeals from his plea-based conviction in the district court for Fillmore 

County. He alleges that his sentences are excessive and that his trial counsel was ineffective. Based 

on the reasons that follow, we affirm.

BACKGROUND

Pursuant to a plea agreement, Ogren pled guilty to the following charges: theft by unlawful 

taking, a Class IIA felony under Neb. Rev. Stat. § 28-511(1) (Reissue 2016) (count I); two counts 

of prohibited sale of livestock, a Class III felony under Neb. Rev. Stat. § 54-1,123 (Reissue 2010) 

(counts II-III); three counts of attempted prohibited sale of livestock, a Class IV felony under 

§ 54-1,123 and Neb. Rev. Stat. § 28-201(1)(b) (Cum. Supp. 2020) (counts IV-VI); and cruelty to 

animals, a Class IV felony under Neb. Rev. Stat. § 54-903 (Reissue 2010) (count VII).
- 2 -

The State alleged that Ogren ran a feedlot where he would care for and feed other ranchers’

cattle. When an investigator visited the feedlot, he found over 220 cattle in various states of decay. 

Necropsies concluded the cattle died of malnutrition, treatable diseases, and exposure to the 

elements. The investigator also found that Ogren failed to return the cattle that were entrusted to 

his care, would swap out the cattle to be returned with other cattle, and failed to purchase cattle for 

ranchers after they would provide him money to do so.

Following the plea hearing, the court ordered that a presentence investigation be 

completed. A sentencing hearing followed. The district court sentenced Ogren as follows: 15 to 20 

years’ imprisonment for count I; 4 years’ imprisonment for count II; 4 years’ imprisonment for 

count III; 2 years’ imprisonment for count IV; 2 years’ imprisonment for count V; 2 years’

imprisonment for count VI; and 2 years’ imprisonment for count VII. The district court ordered 

the sentences to be served concurrently. The court also ordered Ogren not to own or possess any 

livestock for 15 years.

ASSIGNMENTS OF ERROR

Ogren assigns that the district court erred by imposing excessive sentences and that he was 

denied effective assistance of counsel in that his counsel failed to investigate witnesses with 

information relevant to the integrity of the investigation.

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. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). 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 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. Id. 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.

ANALYSIS

Excessive Sentences.

Ogren first assigns that the district court erred by imposing excessive sentences. Ogren was 

convicted of a Class IIA felony, two Class III felonies, and four Class IV felonies. The authorized 

penalty for a Class IIA felony is a maximum of 20 years’ imprisonment and no minimum sentence 

of imprisonment; a Class III felony carries a maximum sentence of 4 years’ imprisonment and 2 

years’ post-release supervision with no minimum sentence of imprisonment, but 9 months’

post-release supervision if imprisonment is imposed; and a Class IV felony carries a maximum 

sentence of 2 years’ imprisonment and 12 months’ post-release supervision with no minimum 

sentence of imprisonment or post-release supervision. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 

2020).
- 3 -

Ogren was sentenced to 15 to 20 years’ imprisonment for the Class IIA felony (count I), 4 

years’ of imprisonment on each Class III felony (counts II and III), and 2 years’ imprisonment on 

each Class IV felony (counts IV, V, VI, and VII). His sentences are all within the statutory limits 

and, therefore, will not be disturbed absent an abuse of discretion. See State v. Blaha, supra.

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. Chairez, 

302 Neb. 731, 924 N.W.2d 725 (2019). 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.

Ogren acknowledges that the sentences fall within the statutory limits but argues that the 

court abused its discretion “by weighing the seriousness of the offense too heavily” and failing to 

consider several mitigating factors, specifically his assessment score showing he was a low risk to 

reoffend and his minimal criminal history. Brief for appellant at 7. Ogren’s criminal history 

consists of only a theft by deception charge that was pending at the time of sentencing. The district 

court noted Ogren’s lack of criminal history, but Ogren argues that the court failed to weigh this 

factor, as well as his low risk to reoffend, as heavily as it should have when determining his 

sentences.

At the sentencing hearing, the district court stated that it had received the presentence 

investigation report. The district court heard comments from the State and counsel for Ogren. It 

also received into evidence exhibit 1, a printout of prior civil proceedings against Ogren involving 

similar issues, and exhibit 2, handwritten accounting notes taken from Ogren’s house. Following 

the parties’ arguments and receipt of exhibits, the district court stated as follows:

The Court will enumerate the circumstances that have led to its decision: [Ogren]’s 

age. His family situation. He was in a relationship with [a woman] for 10 years. According 

to the presentence of [the woman], he’s controlling. It’s clear that he did control the money, 

and she had nothing other than $20 a week. There were allegations of physical abuse. 

[Ogren] was engaged in the purchase, care and sales of cattle for investors, many of which 

were forced into -- not forced, but were put into a position that they had little choice but to 

farm out their cattle due to droughts in Colorado, et cetera. He did not sell the cattle when 

instructed to do so. Over 220 dead cattle and the horse. The surviving cattle had very poor 

conditions. This is a matter of astonishment that any person would let this sort of thing 

continue time after time after time, and as Exhibit 1 and other people have noted, shows 

this is an issue that has come to the court system as early as 2013 when there was a replevin 

action filed against [Ogren] to get cows back to the owners. There are civil judgments, as 

noted by [the State], approaching half a million dollars. He does have no prior criminal 

history of note, other than he does have a theft by deception charge pending in York 

County. The LS/CMI of seven. There is no recommendation for probation. The Court finds 

that the restitution figures requested by the State are fair and reasonable, but as the Court 

will enumerate in a few minutes, [Ogren] has no ability to pay even just based upon the 

prior civil cases. He should have figured out a long time ago he couldn’t manage cattle. 

This is one of those cases, other than a couple of murder cases, that this Court finds to be 
- 4 -

egregious. [Ogren] takes no responsibility -- little responsibility in whatever brought him 

to this point, whether it is the fact that he got out of control by taking on too much or he 

was actively engaged in a criminal enterprise. It really doesn’t matter. What we have are 

220 dead cows and a dead horse mired in mud. The Court finds he is not a fit candidate for 

probation. On Count I -- oh, the Court will also say that it understands the financial 

devastation that this placed on the victims, as enumerated previously by [the State]. Some 

parties had to sell real estate that had been in the family for years. Others had to use 

inheritances just to get out of debt. There is no excuse for [Ogren]’s actions.

The district court considered Ogren’s criminal history as well as his risk assessment score 

(LS/CMI score) of seven, indicating a low risk to reoffend. It also found Ogren’s actions were 

“egregious” based on the number of dead cattle and the poor conditions the surviving cattle were 

living in. It considered that Ogren had been engaged in the same or similar conduct for years as 

indicated by a replevin action in 2013 and prior civil actions against Ogren. Further, the court 

found that Ogren’s actions have had severe financial repercussions on the victims and he will never 

be able to compensate them in any significant way, and he has failed to take responsibility for his 

actions. Based on the record before us, the district court took the appropriate factors into 

consideration when sentencing Ogren and there is no indication it considered any inappropriate or 

improper factors. Accordingly, it cannot be said that the district court abused its discretion or that 

the sentences imposed were excessive.

Ineffective Assistance of Counsel.

Ogren next assigns that his trial counsel provided ineffective assistance. Ogren has 

different counsel on direct appeal than he did at trial. When a defendant’s 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.

State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (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. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). 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, 

whether an attorney’s representation was deficient depends on whether counsel’s advice was 

within the range of competence demanded of attorneys in criminal cases. State v. Blaha, supra. 

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.

Whether a claim of ineffective assistance of trial counsel can be determined on direct 

appeal depends upon the sufficiency of the record to address the claim to determine whether a 

defense counsel’s performance was deficient and whether the defendant was prejudiced by the 
- 5 -

alleged deficient performance. State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020). 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. Id. When 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. State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019).

When a claim of ineffective assistance of trial counsel is raised in a direct appeal, the 

appellant is not required to allege prejudice; however, an appellant must make specific allegations 

of the conduct that he or she claims constitutes deficient performance by trial counsel. State v. 

Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020). General allegations that trial counsel performed 

deficiently or that trial counsel was ineffective are insufficient to raise an ineffective assistance 

claim on direct appeal. State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).

Ogren argues that his trial counsel was ineffective in that he “fail[ed] to investigate 

witnesses with information relevant to the integrity of the investigation” that resulted in his arrest. 

Brief for appellant at 3. He claims that “[a]fter entering his pleas in this case, [he] learned 

information concerning undue influence exerted by [the victims] over the investigation” that led 

to his arrest, and that “[t]he influence exerted by these witnesses compromised [the] investigation.”

Id. at 16. As a result, he blames his trial counsel for failing to pursue any corroborating information 

concerning the undue influence prior to Ogren entering his pleas, and that he was denied the 

opportunity to see police reports and other evidence against him that would have allowed him to 

discover the undue influence prior to entering his guilty pleas.

We conclude that Ogren has not sufficiently pled his claim of ineffective assistance of 

counsel. He alleges that his trial counsel should have investigated witnesses regarding the “undue 

influence” they exerted over the investigation. He also alleges that he was not given access to 

certain discovery. However, he fails to explain what information the victims had that was “relevant 

to the integrity of the investigation” or what his counsel would have learned had he pursued any 

corroborating information concerning the undue influence. Further, he does not explain the nature 

of the “undue influence” or how it tainted the investigation. He also failed to state who or why he 

was denied access to discovery and what specific documents or what information was in the 

discovery material that would have made him aware of the undue influence prior to the plea 

hearing. Ogren has failed to allege sufficient factual allegations of conduct to constitute deficient 

performance by trial counsel. See State v. Hill, 298 Neb. 675, 905 N.W.2d 668 (2018).

CONCLUSION

We conclude that the district court did not abuse its discretion in sentencing Ogren and his 

sentences are not excessive. We also conclude that Ogren’s ineffective assistance of counsel claim 

was not sufficiently pled. Accordingly, Ogren’s convictions and sentences are affirmed.

AFFIRMED.