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State of Nebraska, appellee, v. 

Jonathan J. Sierra, appellant.

___ N.W.2d ___

Filed March 13, 2020. No. S-19-180.

1. Appeal and Error. An appellate court may, at its option, notice plain 

error.

2. Right to Counsel: Appeal and Error. An appellate court reviews the 

trial court’s decision on a motion to withdraw as counsel for an abuse 

of discretion.

3. Pretrial Procedure: Appeal and Error. Trial courts have broad discretion with respect to sanctions involving discovery procedures, and 

their rulings thereon will not be reversed in the absence of an abuse 

of discretion.

4. Administrative Law: Statutes: Appeal and Error. The meaning and 

interpretation of statutes and regulations are questions of law for which 

an appellate court has an obligation to reach an independent conclusion 

irrespective of the decision made by the court below.

5. Effectiveness of Counsel: Appeal and Error. Appellate review of a 

claim of ineffective assistance of counsel is a mixed question of law and 

fact. When reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court for clear 

error. With regard to the questions of counsel’s performance or prejudice 

to the defendant as part of the two-pronged test articulated in Strickland 

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

an appellate court reviews such legal determinations independently of 

the lower court’s decision.

6. ____: ____. 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/22/2020 08:09 AM CDT
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7. Constitutional Law: Double Jeopardy. The protection granted by the 

Nebraska Constitution against double jeopardy is coextensive to the 

protection granted by the U.S. Constitution.

8. Theft. Where a theft involves items taken from multiple owners at the 

same time and in the same place, such theft constitutes a single offense.

9. Appeal and Error: Words and Phrases. Plain error exists where there 

is an error, plainly evident from the record but not complained of at 

trial, which prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of 

justice or result in damage to the integrity, reputation, and fairness of the 

judicial process.

10. Effectiveness of Counsel: 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, in order to preserve such claim.

11. ____: ____. Once issues of trial counsel’s ineffective performance are 

properly raised, the appellate court will determine whether the record 

on appeal is sufficient to review the merits of the ineffective performance claims.

12. 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. This is because the 

trial record reviewed on appeal is generally devoted to issues of guilt or 

innocence and does not usually address issues of counsel’s performance. 

The determining factor is whether the record is sufficient to adequately 

review the question.

13. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An 

ineffective assistance of counsel claim will not be addressed on direct 

appeal if it requires an evidentiary hearing.

14. Effectiveness of Counsel: Proof. To show deficient performance, a 

defendant must show that counsel’s performance did not equal that of a 

lawyer with ordinary training and skill in criminal law.

15. ____: ____. To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the 

result of the proceeding would have been different.

16. Rules of Evidence: Words and Phrases. In the context of Neb. Rev. 

Stat. § 27-403 (Reissue 2016), unfair prejudice means an undue tendency to suggest a decision based on an improper basis. Unfair prejudice 

speaks to the capacity of some concededly relevant evidence to lure the 

fact finder into declaring guilt on a ground different from proof specific 

to the offense charged, commonly on an emotional basis.
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17. Jury Instructions: Testimony: Appeal and Error. A defendant is 

clearly entitled to a cautionary instruction on the weight and credibility 

to be given to the testimony of an alleged accomplice, and the failure to 

give such an instruction, when requested, is reversible error.

18. Jury Instructions: Evidence: Witnesses: Testimony. Whenever a 

judge decides that the evidence supports a conclusion that a witness 

is an accomplice and the defendant requests a cautionary instruction, 

the instruction is appropriate and should be given. This is because any 

alleged accomplice testimony should be examined more closely by the 

trier of fact for any possible motive that the accomplice might have to 

testify falsely.

19. Effectiveness of Counsel: Rules of the Supreme Court: Trial: 

Records. When recordation of parts of a trial is not made mandatory by 

the rules, the failure to require recordation cannot be said, ipso facto, to 

constitute negligence or inadequacy of counsel.

Appeal from the District Court for York County: James C. 

Stecker, Judge. Affirmed in part, and in part vacated.

Lisa M. Meyer, of Fillman Law Offices, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. NATURE OF CASE

Jonathan J. Sierra was convicted of burglary, conspiracy to 

commit burglary, and several counts of theft involving a truck, 

a trailer, and several tools from a garage. Sierra’s accomplice, 

Jonathan Mally, entered into a plea agreement with the State 

and testified against Sierra. The majority of Sierra’s claims in 

this direct appeal are ineffective assistance of counsel claims. 

Sierra also claims that his court-appointed trial counsel had a 

personal conflict of interest because she was being investigated 

for and was charged with theft during her representation of 

Sierra. Finally, Sierra asserts that he was charged with separate 

theft charges in violation of the Double Jeopardy Clause of the 

U.S. Constitution.
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II. BACKGROUND

In December 2017, the State filed an eight-count complaint 

against Sierra alleging that Sierra was involved in the theft of 

a truck and trailer which he then used to assist in the theft of 

automotive tools from a mechanic’s garage in York, Nebraska. 

The complaint was based on an incident which occurred in the 

early morning of October 15, 2017, when a window of Extreme 

Automotive in York was broken and tools were stolen from the 

premises. The tools belonged, separately, to a co-owner of the 

garage business and his two employees. The co-owner, Andrew 

Wilkinson, notified the officer investigating the break-in, Sgt. 

Michael Hanke, that his checkbook and debit card had also 

been stolen.

Sierra was charged with eight counts: (1) burglary; (2) conspiracy to commit burglary; (3) three counts of theft by unlawful taking ($5,000 or more), which were related to the tools 

taken; (4) theft by unlawful taking ($5,000 or more) for stealing the truck; (5) theft by unlawful taking (less than $1,500 to 

$5,000) for stealing the trailer; and (6) criminal mischief (less 

than $500).

Upon Sierra’s request, the court appointed an attorney to 

represent him in this matter. During preparation for trial, Sierra 

became frustrated with the lack of action on his attorney’s 

part and requested that she withdraw. Sierra’s attorney moved 

to withdraw. At the hearing on the motion, Sierra’s attorney 

indicated that there was a breakdown of the attorney-client 

relationship. Sierra told the judge that he had stopped speaking with his attorney and that he tried to have his fiance and 

mother talk with his attorney in his stead. Sierra claims that 

he spoke with his attorney only twice prior to the hearing. The 

court denied the motion.

The court adopted the parties’ reciprocal discovery agreement and set a deadline of March 5, 2018, or “as soon as it 

becomes reasonably discovered, but not less than ten days 

before trial.” Approximately 4 months after the reciprocal 

discovery deadlines and 5 days before trial, Sierra’s attorney 
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filed, for the first time, a witness list identifying five witnesses 

that the defense intended to call. The State responded by filing a motion in limine to preclude undisclosed witnesses, alibi 

defense, and undisclosed exhibits. In the alternative, the State 

asked for a 30-day continuance.

At the hearing to consider the motion, the State pointed out 

that Sierra had failed to comply with the deadline for reciprocal 

discovery and the 30-day deadline for notice of alibi defense 

and had filed the witness list less than 10 days before trial.

Sierra’s attorney responded that all of the witnesses were 

known to the State from its reports and that one witness was 

on the State’s list, but Sierra’s attorney did not provide any 

reason for not complying with the reciprocal discovery order. 

Similarly, Sierra’s attorney also did not provide a reason for 

failing to comply with the statutory notice requirements for an 

alibi defense. Rather, she asked the judge to waive the notice 

requirement in the interest of justice. The district court sustained the State’s motion in limine. As a result, Sierra was able 

to call only one of the five listed witnesses and was precluded 

from pursuing his alibi defense.

At trial, Hanke’s testimony provided a general timeline of 

the investigation. Hanke testified that after Wilkinson called 

the York police about the break-in, police reviewed surveillance videos taken from businesses in the area. The videos 

revealed that two individuals stole a truck from the garage 

parking lot and then drove to a nearby pizza restaurant, where 

they stole a trailer before returning to the garage. Thirty minutes later, the truck and trailer left the garage.

Wilkinson’s bank notified him on October 15, 2017, that 

someone had attempted to use the stolen debit card at a 

Walmart store in Norfolk, Nebraska. Wilkinson notified law 

enforcement of the bank’s report. Hanke used that information to get pictures taken from the Norfolk Walmart’s security cameras, which depicted two individuals using the stolen 

debit card. Hanke testified that, based on information received 

from the Butler County Sheriff’s Department, the investigators 
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eventually identified both of the individuals in the photographs 

as Mally and Sierra.

A Walmart store in York provided photographs of two individuals to law enforcement, after the individuals were suspected 

of shoplifting on the morning of October 15, 2017. Maggie 

Wolfe, an asset protection associate for the York Walmart, and 

Hanke presented identification testimony related to the photographs taken from the Walmarts in York and Norfolk. Wolfe 

provided the authentication for exhibit 1, a collection of photographs taken from the York Walmart on the morning of the 

burglary. During direct examination, Wolfe positively identified Sierra as being depicted in the photographs taken from the 

York Walmart. On cross-examination, Wolfe admitted that her 

identification of Sierra came after she read about the investigation in the newspaper.

Hanke testified that a cell phone traceable to Sierra “pinged 

off [of]” a cell tower in York around the time that Mally’s testimony placed them both in York. Hanke testified that cell phone 

records placed Sierra’s cell phone within 20 miles of York 

on the day of the burglary. Sierra’s attorney did not object to 

Hanke’s testimony about the content of the cell phone records, 

and the records themselves are not in evidence.

Evidence recovered from the search of Sierra’s home was 

admitted based on the testimony provided by Hanke. According 

to Hanke’s testimony at trial, based on the Butler County, 

Nebraska, sheriff’s identification of Sierra in the photographs 

taken from the York Walmart and pursuant to a clause in 

Sierra’s probation order, police searched Sierra’s residence, 

where they found a majority of the tools taken from Extreme 

Automotive. The sheriff who identified Sierra in the photographs did not testify at trial. The law enforcement officers 

who conducted the search did not testify at trial, and the probation order is not in the record.

Hanke testified that the stolen truck was recovered after 

being abandoned on the road north of the York Walmart. The 

stolen trailer was recovered after being abandoned on the road 
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near Genoa, Nebraska. Sierra’s attorney made no objections to 

these portions of Hanke’s testimony. Hanke testified that during his first interview of Sierra, Sierra claimed he had never 

been to York, denied all involvement in the burglary, and said 

that he possessed the tools because he had purchased them 

from Mally.

Sierra’s attorney cross-examined Hanke about the story 

Sierra gave to the York police as to how the tools ended up in 

his possession. Hanke testified that during his first interview, 

Sierra denied ever being in York, and that Sierra claimed he 

had purchased the tools. Hanke testified that during a second interview with Sierra, Sierra admitted to being in York. 

Sierra’s attorney did not object to Hanke’s testimony regarding 

either interview.

Mally was arrested in Columbus, Nebraska, for an unrelated 

incident. A search revealed that Mally had on his person and 

in his vehicle several of the tools and financial items taken 

from Extreme Automotive. A warrant was executed for Mally’s 

residence, where several more items from Extreme Automotive 

were found. Mally subsequently entered into a plea agreement 

with the State and testified against Sierra.

Mally testified as Sierra’s accomplice and provided a general timeline for the events on October 15, 2017, similar to 

that set forth by Hanke. Mally testified that he helped Sierra 

commit the burglary and theft at Extreme Automotive because 

Sierra needed mechanics tools. Mally asserted that the various 

pictures taken at both Walmart locations accurately depicted 

Sierra and him at those locations. Mally also testified that 

he was receiving benefits from the State concerning various 

charges in exchange for his cooperation.

Evidence concerning the value of the tools was presented 

through various sources at trial. Several of the exhibits entered 

into evidence by the State display tools that were recovered 

from the search of Mally’s residence. During the presentation 

of evidence recovered from Mally’s residence, Sierra’s attorney 

made several objections, some of which were sustained. There 
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was also evidence of financial items, including checkbooks 

and a debit card, that were recovered in Mally’s possession and 

testimony by Mally that Sierra attempted to use the stolen debit 

card to buy items. Mally denied the existence of any arrangement with Sierra to buy the tools.

Sierra’s attorney elected to forgo the creation of a record 

of the voir dire, closing arguments, and jury instructions. The 

jury instructions that were given are preserved in the transcript. 

A jury found Sierra guilty on all counts except the charge of 

criminal mischief.

At some point after the trial, Sierra’s attorney was charged 

with theft by unlawful taking ($5,000 or more) in an unrelated case. Sierra requested new counsel, and the request was 

granted before sentencing. Sierra was sentenced to 16 to 20 

years’ imprisonment on each of the Class IIA felonies and 1 to 

2 years’ imprisonment on the Class IV felony, with orders for 

the sentences to run concurrently. Sierra appeals.

III. ASSIGNMENTS OF ERROR

Three errors Sierra assigns, which are not ineffective assistance of counsel claims, assert that the court erred by (1) denying Sierra’s attorney’s motion to withdraw, (2) granting the 

State’s motion in limine, and (3) sentencing Sierra on multiple 

charges of theft by unlawful taking, in violation of the Double 

Jeopardy Clause of the U.S. Constitution.

Sierra also assigns 14 ineffective assistance of counsel 

claims. Sierra first asserts that his attorney was “per se ineffective” for failing “to maintain her law license and appropriate moral standing.” In his argument, Sierra elaborates that 

his attorney had a personal conflict of interest such that she 

failed to act in Sierra’s best interests because her focus was 

torn between her own pending legal actions and representing Sierra.

Sierra also assigns that his attorney was deficient by failing to (1) comply with discovery; (2) serve notice of Sierra’s 

alibi; (3) move for a continuance at the hearing on the motion 
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in limine; (4) call Sierra’s fiance as a witness for the defense; 

(5) depose Sierra’s brother, mother, and fiance, as well as two 

potential alibi witnesses, prior to trial; (6) communicate with 

Sierra to prepare for trial; (7) assert a double jeopardy claim; 

(8) move to suppress identification evidence and evidence 

found from the search of Sierra’s home; (9) file a motion in 

limine to exclude evidence discovered at Mally’s home; (10) 

object to identification evidence during trial; (11) object to 

“proffer interview” statements admitted in evidence during 

trial; (12) maintain a sufficient record; and (13) request a jury 

instruction on accomplice testimony.

IV. STANDARD OF REVIEW

[1] An appellate court may, at its option, notice plain error. 1

[2] We review the trial court’s decision on a motion to withdraw as counsel for an abuse of discretion. 2

[3] Trial courts have broad discretion with respect to sanctions involving discovery procedures, and their rulings thereon 

will not be reversed in the absence of an abuse of discretion. 3

[4] The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an 

obligation to reach an independent conclusion irrespective of 

the decision made by the court below. 4

[5] Appellate review of a claim of ineffective assistance of 

counsel is a mixed question of law and fact. 5 When reviewing a claim of ineffective assistance of counsel, an appellate 

court reviews the factual findings of the lower court for clear 

error. 6 With regard to the questions of counsel’s performance 

or prejudice to the defendant as part of the two-pronged test 

1 Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).

2 State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).

3 State v. Hatfield, 304 Neb. 66, 933 N.W.2d 78 (2019).

4 In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).

5 State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019).

6 Id.
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articulated in Strickland v. Washington,

 7 an appellate court 

reviews such legal determinations independently of the lower 

court’s decision. 8

[6] 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. 9

V. ANALYSIS

1. Double Jeopardy

[7] We first address Sierra’s claim that he was charged with 

three counts of theft related to the tools taken from Extreme 

Automotive, in violation of the Double Jeopardy Clauses of 

the Nebraska and U.S. Constitutions. The protection granted by 

the Nebraska Constitution against double jeopardy is coextensive to the protection granted by the U.S. Constitution. 10 Both 

clauses are designed to protect against three distinct abuses: (1) 

a second prosecution for the same offense after acquittal, (2) a 

second prosecution for the same offense after conviction, and 

(3) multiple punishments for the same offense. 11

[8] Though we have never been presented with a situation 

where the multiple items belonged to multiple people, we have 

held that an act of theft involving multiple items of property 

stolen simultaneously at the same place constitutes one offense, 

in which the value of the individual stolen items may be considered collectively for the aggregate or total value of the property stolen to determine the grade of the theft offense under 

7 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

8 State v. Chairez, supra note 5.

9 Id.

10 See State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).

11 See State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).
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Neb. Rev. Stat. § 28-518 (Reissue 2016). 12 Moreover, the criminal code forbids the amounts taken pursuant to one scheme or 

course of conduct from being aggregated into more than one 

offense. 13 This principle of considering theft of multiple items 

as one offense has been applied by a majority of jurisdictions, 

even when the property taken has more than one owner. 14 And 

we likewise hold that where a theft involves items taken from 

multiple owners at the same time and in the same place, such 

theft constitutes a single offense.

Where the defendant is charged with and punished for multiple offenses based on each stolen item taken simultaneously 

from the same place, the defendant is subjected to multiple 

punishments for the same offense, in violation of the prohibition against double jeopardy. 15 The State concedes that Sierra 

was improperly charged, convicted, and punished in violation 

of the Double Jeopardy Clauses of the Nebraska and U.S. 

Constitutions. We accordingly find that charging and convicting 

Sierra with three separate offenses for theft by unlawful taking 

($5,000 or more), each a Class IIA felony, violated the Double 

Jeopardy Clauses of the Nebraska and U.S. Constitutions and 

constituted plain error.

[9] Plain error exists where there is an error, plainly evident 

from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a 

nature that to leave it uncorrected would cause a miscarriage of 

justice or result in damage to the integrity, reputation, and fairness of the judicial process. 16 Allowing three convictions for 

the same offense is a clear violation of both the Nebraska and 

12 See State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).

13 § 28-518(7).

14 See, State v. White, 348 Md. 179, 702 A.2d 1263 (1997); People v. Dist. 

Ct., 192 Colo. 355, 559 P.2d 1106 (1977). See, also, Annot., 37 A.L.R.3d 

1407 (1971).

15 See State v. Miner, supra note 10.

16 Mays v. Midnite Dreams, supra note 1.
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U.S. Constitutions. Left uncorrected, this error would be a violation of Sierra’s fundamental rights and damage the integrity 

of the judicial process. 17 The appropriate remedy for this plain 

error is to vacate two of the three convictions and sentences for 

theft by unlawful taking ($5,000 or more) that are based on the 

theft of the tools from Extreme Automotive. 18

2. Exclusion of Witnesses

We next address Sierra’s assignments of error concerning the 

court’s exclusion of defense witnesses who were not disclosed 

by his attorney until 5 days before trial. Sierra asserts that these 

witnesses would have provided alibi testimony and information 

attacking the credibility of Mally.

(a) State’s Motion in Limine

We find no merit to Sierra’s contention that the district court 

erred by granting the State’s motion in limine to exclude latedisclosed defense witnesses.

A discovery stipulation was agreed to on February 12, 2018, 

which designated a deadline to provide all discovery information by March 5 or “as soon as it becomes reasonably discovered, but not less than ten days before trial.” At the hearing 

on the motion in limine, Sierra’s attorney’s only stated reason 

for not complying with the order was that the individuals the 

defense intended to call were named in the State’s reports and 

one was also included in the witness list attached to the State’s 

information filed in this matter.

Neb. Rev. Stat. § 29-1912 (Reissue 2016) describes the 

types of information that are discoverable. Neb. Rev. Stat. 

§ 29-1916 (Reissue 2016) provides the court discretion to 

grant reciprocal discovery. Neb. Rev. Stat. § 29-1919 (Reissue 

2016) specifies that when a party has failed to comply with 

17 See Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 

(1969).

18 See State v. Miner, supra note 10. See, also, State v. McHenry, 250 Neb. 

614, 550 N.W.2d 364 (1996).
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the discovery statutes, the court may (1) order such party to 

permit the discovery or inspection of materials not previously 

disclosed, (2) grant a continuance, (3) prohibit the party from 

calling a witness not disclosed or introducing in evidence 

the material not disclosed, or (4) enter such other order as it 

deems just under the circumstances. In the present case, the 

court prohibited Sierra from calling a witness or introducing 

evidence that had not been disclosed pursuant to the court’s 

discovery order.

Nevertheless, Sierra argues that our holding in State v. 

Woods 19 relieved him of the burden to disclose witnesses 

because he did not request a witness list from the State. In 

Woods, we held that Neb. Rev. Stat. § 29-1927 (Reissue 

2016) does not require disclosure of alibi witnesses and that 

§ 29-1916 (reciprocal discovery) applies only when the defendant requests “‘comparable items or information’” from the 

State. 20 However, the situation in Woods differs from the present case in two important ways.

First, in Woods, the State waived the notice requirement 

for an alibi defense and so the issue on appeal was whether 

§ 29-1919 required the filing of a witness list. Here, the State 

did not waive notice and filed a motion in limine to keep the 

alibi defense evidence from being admitted.

Second, all of the witnesses in Woods were to be used to 

present alibi information. Sierra concedes that at least two of 

the witnesses excluded by the State’s motion in limine were 

intended to offer evidence impeaching Mally’s testimony and 

not an alibi defense.

Thus, our holding in Woods does not shield Sierra from 

the trial court’s sanctions for failing to file a witness list. The 

court considered Sierra’s attorney’s failure to comply with 

the discovery order and applied an authorized remedy under 

§ 29-1919.

19 See State v. Woods, 255 Neb. 755, 587 N.W.2d 122 (1998).

20 See id. at 767, 587 N.W.2d at 130 (quoting § 29-1916).
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We likewise find no merit to Sierra’s alternative argument 

that the use of the definite article in § 29-1919(3), giving the 

trial court discretion to prohibit a party from calling “a witness,” limits the court’s remedy to excluding only one undisclosed witness. Sierra’s reading of § 29-1919 disregards our 

rules for construction and the interchangeability of singular and 

plural words. Neb. Rev. Stat. § 49-802 (Reissue 2010) specifies 

as follows:

Unless such construction would be inconsistent with 

the manifest intent of the Legislature, rules for construction of the statutes of Nebraska hereafter enacted shall be 

as follows:

. . . .

(6) Singular words may extend and be applied to several persons or things as well as to one person or thing.

(7) Plural words may extend and be applied to one person or thing as well as to several persons or things.

Under the plain meaning of § 29-1919, if a party fails to 

comply with discovery and give notice of an intent to call a 

witness, the court may prohibit that witness from being called. 

Nothing in § 29-1919 suggests that the remedy cannot be 

extended to prohibiting multiple witnesses.

Lastly, Sierra contends that the court’s order granting the 

State’s motion in limine violated his constitutional right under 

the Sixth Amendment to have process to compel the attendance 

of witnesses on his behalf. The U.S. Supreme Court has established that the Sixth Amendment does not provide an absolute 

right to call witnesses; rather, the defendant’s right is weighed 

against the concerns of the state to have a fair and efficient 

administration of justice. 21 We have considered the same concerns when determining whether other discovery sanctions 

violate the Nebraska Constitution. 22 Sierra does not have an 

21 Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988).

22 See, State v. Henderson, 289 Neb. 271, 854 N.W.2d 616 (2014); State v. 

McMillion, 23 Neb. App. 687, 875 N.W.2d 877 (2016).
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absolute right to present witnesses and evidence. The State’s 

interest in protecting itself against an 11th-hour defense is 

merely one component of the broader public interest in a full 

and truthful disclosure of critical facts. 23

We find that the trial court did not abuse its discretion in 

granting the State’s motion in limine. Further, we conclude 

that the court’s ruling granting the State’s motion in limine 

did not violate Sierra’s constitutional rights under the Sixth 

Amendment.

(b) Failure to Depose Witnesses, File Witness List, 

and Serve Notice of Alibi

[10] In the alternative to Sierra’s challenge to the court’s ruling granting the State’s motion in limine, Sierra asserts that his 

attorney’s ineffective assistance of counsel led to that ruling. 

Sierra has new 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, in order to preserve 

such claim. 24

[11-13] Once such issues are properly raised, the appellate 

court will determine whether the record on appeal is sufficient 

to review the merits of the ineffective performance claims. 25

We have said that the fact that an ineffective assistance of 

counsel claim is raised on direct appeal does not necessarily 

mean that it can be resolved. 26 This is because the trial record 

reviewed on appeal is generally “‘“devoted to issues of guilt or 

innocence”’” and does not usually address issues of counsel’s 

performance. 27 The determining factor is whether the record is 

23 See Taylor v. Illinois, supra note 21.

24 State v. Chairez, supra note 5.

25 Id.

26 Id.

27 Id. at 736, 924 N.W.2d at 730.
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sufficient to adequately review the question. 28 An ineffective 

assistance of counsel claim will not be addressed on direct 

appeal if it requires an evidentiary hearing. 29

[14,15] To show deficient performance, a defendant must 

show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law. 30 To show 

prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, the result 

of the proceeding would have been different. 31

We cannot determine on the appellate record whether the 

witnesses the court prohibited from testifying would have in 

fact supported Sierra’s alibi defense and impeached Mally’s 

testimony. Without such information, we can determine neither 

deficiency nor prejudice. We find that the record is insufficient 

for us to address this claim on direct appeal.

Sierra argues that his attorney’s “agreement” not to call 

his fiance was an additional act of ineffective assistance of 

counsel, separate from her failure to timely disclose defense 

witnesses. 32 We find it indistinguishable from the claim of 

ineffective assistance based on the failure to comply with the 

reciprocal discovery order. Based on the record, it appears 

Sierra’s attorney’s comments that Sierra characterizes as an 

“agreement” were merely a concession of the facts that the 

name of Sierra’s fiance did not appear in the State’s reports 

and that his attorney’s failure to file a separate witness list had 

precluded her from calling his fiance as a witness. Such comments were mere observations of undisputed facts and cannot 

constitute deficient performance. If the deficient performance 

occurred, it was in the failure to timely file the witness list, not 

the acknowledgment of the result of doing so.

28 State v. Chairez, supra note 5.

29 Id.

30 Id.

31 Id.

32 Brief for appellant at 35.
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(c) Failure to Request Continuance 

at Hearing on State’s 

Motion in Limine

We find no merit to Sierra’s assertion that his attorney was 

ineffective for failing to request a continuance at the hearing on 

the State’s motion in limine. During the course of the hearing, 

the State had already raised the possibility of a continuance, 

as § 29-1919 lists a continuance as a possible remedy for an 

untimely witness list. The trial court was fully informed of the 

option to order a continuance and declined to do so. Sierra’s 

attorney was not deficient for failing to bring an optional 

remedy to the court’s attention that had already been raised 

moments earlier by the State.

3. Lack of Communication With 

Sierra’s Attorney

We turn next to Sierra’s assertions relating to his attorney’s 

more generalized failure to communicate with Sierra while 

preparing for trial.

(a) Motion to Withdraw

First, we find no merit to Sierra’s assertion that the district 

court abused its discretion in denying his attorney’s motion 

to withdraw. Appointed counsel must remain with an indigent 

accused unless one of the following occurs: (1) The accused 

knowingly, voluntarily, and intelligently waives the right to 

counsel and chooses to proceed pro se; (2) appointed counsel 

is incompetent; or (3) the accused chooses to retain private 

counsel. 33 We review the trial court’s decision on a motion to 

withdraw as counsel for an abuse of discretion. 34

Sierra argues that the district court had an obligation to 

make a thorough inquiry concerning his attorney’s lack of 

preparation for the trial and that the court would have realized, 

through further inquiry, that trial counsel was incompetent. 

33 State v. McGuire, supra note 2.

34 Id.
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However, the record indicates that the court investigated 

and addressed all of the specific examples of incompetency 

alleged by Sierra at the time of the hearing. At the hearing 

on the motion to withdraw, Sierra’s attorney indicated that 

the reason for the motion was a breakdown of the attorneyclient relationship. Sierra indicated at the hearing that he 

had stopped speaking with his attorney and had tried to have 

his fiance and mother talk with her instead. Sierra’s attorney explained that she did not respond to calls by Sierra’s 

fiance and mother, because doing so would violate attorneyclient privilege.

The court heard each of Sierra’s complaints and determined 

they did not warrant the withdrawal of counsel. The facts 

demonstrated at the hearing do not indicate the district court 

abused its discretion in concluding that under the evidence 

presented, Sierra’s attorney was representing Sierra competently. Therefore, we find no merit to Sierra’s assignment 

that the trial court erred in overruling his attorney’s motion 

to withdraw.

(b) Ineffective Assistance

Relatedly, Sierra raises on direct appeal that the breakdown in communication with his attorney constituted ineffective assistance of counsel. Sierra asserts that he met with 

his attorney only twice before trial. Sierra claims he provided his attorney with information and names of potential 

witnesses at the first meeting. Sierra contends that at the 

second meeting, she took a personal call and then was in a 

hurry to leave. Sierra describes that he had more information that he was attempting to provide his attorney concerning his defense and that she did not consider that information because she was distracted during their second meeting. 

We find that the record is insufficient for us to address this 

claim on direct appeal. The nature and extent of meetings in 

preparation for trial between Sierra and his attorney are not 

in the record.
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4. Evidence of Tools Found in Sierra’s 

and Mally’s Possession

We next address Sierra’s claims that various acts of deficient conduct by his attorney led to the admission at trial of 

prejudicial evidence of his and Mally’s possession of the stolen tools.

(a) Failure to Move to Suppress Search 

of Sierra’s Residence

Sierra first argues that his attorney was ineffective by failing to move to suppress all of the evidence obtained from the 

search of Sierra’s residence, on the ground that he did not 

consent to the search. The record indicates that Sierra’s home 

was searched without a warrant pursuant to a clause in his 

probation order. We have held that certain probation orders 

may contain conditions authorizing warrantless searches under 

specific circumstances when such orders comply with constitutional requirements and contribute to the rehabilitation of 

the offender. 35 Because the probation order and evidence of 

Sierra’s consent to the order are not in the record, we cannot 

determine whether failure to file the motion to suppress was 

deficient or prejudicial. We find that the record is insufficient 

for us to address this claim on direct appeal.

(b) Failure to Move to Suppress Tools 

Found in Mally’s Possession 

as Unfairly Prejudicial

Second, Sierra argues that evidence related to tools found 

in Mally’s possession was inadmissible under Neb. Rev. Stat. 

§ 27-403 (Reissue 2016) and that his attorney was ineffective in failing to object to the evidence on this ground. Sierra 

provides a specific list of exhibits and portions of testimony 

which reflect the fact that stolen tools were found in Mally’s 

possession and which Sierra asserts his attorney should have 

35 See, U.S. v. Brown, 346 F.3d 808 (8th Cir. 2003); State v. Morgan, 206 

Neb. 818, 295 N.W.2d 285 (1980).
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objected to as unfairly prejudicial under § 27-403. Sierra concedes that she objected to several of the exhibits in question 

as lacking foundation or as irrelevant under Neb. Rev. Stat. 

§ 27-402 (Reissue 2016). In fact, the court sustained some of 

her objections to similar evidence.

[16] To show prejudice under Strickland, it must be shown 

that a motion under § 27-403 should have resulted in the evidence in question’s being ruled inadmissible and that, without 

such evidence, there is a reasonable probability of a different 

outcome in the trial. 36 In the context of § 27-403, unfair prejudice means an undue tendency to suggest a decision based on 

an improper basis. 37 Unfair prejudice speaks to the capacity of 

some concededly relevant evidence to lure the fact finder into 

declaring guilt on a ground different from proof specific to the 

offense charged, commonly on an emotional basis. 38

When the State is prosecuting an individual for conspiracy 

to commit burglary, items found in the possession of a coconspirator are undoubtedly relevant to the crime charged. In 

fact, Sierra does not challenge on appeal the fact that the 

district court overruled his attorney’s relevancy objections to 

the evidence.

Sierra makes the conclusory statement that admitting evidence of the tools found in Mally’s possession made it more 

difficult for the jury to weigh Sierra’s defense, but Sierra 

fails to articulate how this evidence could lead a jury to 

convict Sierra for an incorrect reason. Sierra’s defense was 

that he did not take part in the burglary, but bought the tools 

found in his possession from Mally. The fact that Mally had 

stolen tools in his home, which Sierra did not “purchase,” 

is not inconsistent with this defense. It is not deficient conduct to fail to object on grounds that are likely to properly 

be overruled.

36 See, Strickland v. Washington, supra note 7; State v. Chairez, supra note 5.

37 State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018).

38 Id.
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We find no merit to Sierra’s contention that his attorney was 

ineffective for failing to object on § 27-403 grounds to evidence that stolen tools were found in Mally’s possession.

5. Failure to Object to 

Identification Evidence

Sierra asserts that his attorney was also ineffective by failing to make the appropriate motions or objections concerning 

several pieces of identification evidence adduced during the 

testimony of Wolfe and Hanke. Sierra contends that his attorney was ineffective by failing to make hearsay, foundation, and 

Confrontation Clause objections, presumably to each part of 

the testimony and each exhibit specified.

We find that Sierra has failed to sufficiently assign and 

argue any claim related to his attorney’s failure to object on 

Confrontation Clause grounds. The protections afforded by the 

Confrontation Clauses of the Nebraska and U.S. Constitutions 

overlap with the purposes and policies of the rules on hearsay. 

The Nebraska Evidence Rules provide that hearsay is generally 

inadmissible except as provided by these rules, by other rules 

adopted by the statutes of the State, or by the discovery rules 

of the Nebraska Supreme Court. 39 Where testimonial statements are at issue, the Confrontation Clause and the Nebraska 

Constitution demand that hearsay statements be admitted at 

trial only if the declarant is unavailable and there has been a 

prior opportunity for cross-examination; if the statements are 

nontestimonial, then no further Confrontation Clause analysis 

is required. 40

While Sierra provides annotations to several large swaths of 

Wolfe’s and Hanke’s testimony, he fails to describe with any 

specificity even a single statement by either Wolfe or Hanke 

that he alleges to be testimonial. We will not scour the record 

to determine which portions of their testimony, or what portion 

39 Neb. Rev. Stat. § 27-802 (Reissue 2016). See, also, Neb. Rev. Stat. 

§§ 27-801 through 27-806 (Reissue 2016).

40 See State v. Sorensen, 283 Neb. 932, 814 N.W.2d 371 (2012).
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of the exhibits annotated to, Sierra contends were objectionable 

on Confrontation Clause grounds.

We find that Sierra has failed to sufficiently argue his 

attorney’s deficient conduct as to the alleged failure to make 

Confrontation Clause objections. 41 An ineffective assistance 

of counsel claim is raised on direct appeal when allegations of 

deficient performance are made 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. 42 A claim insufficiently stated is no different 

than a claim not stated at all. 43

(a) Photographic Exhibits and 

Identification Statements

We next consider Sierra’s contention that his attorney should 

have raised both foundation and hearsay objections to portions 

of Wolfe’s and Hanke’s testimony identifying Sierra and Mally 

as the individuals depicted in the photographs contained in 

exhibits 1 and 23. Exhibit 1 consists of photographs provided 

by Wolfe to law enforcement after Mally was suspected of 

shoplifting from the York Walmart. During Wolfe’s testimony, 

the State authenticated, picture by picture, each photograph 

contained in exhibit 1. Exhibit 1 was received into evidence 

after the court overruled Sierra’s attorney’s foundation objection. Exhibit 23 was entered into evidence based on the testimony provided by Mally. Sierra does not assign error to the 

admission of exhibits 1 and 23.

The photographs in exhibit 1 depict a person exiting the 

York Walmart with Mally and then that person and Mally getting into separate vehicles in the parking lot. Wolfe identified 

41 See State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).

42 Id.

43 Id.
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the second individual as Sierra. Sierra argues that his attorney 

was ineffective for failing to move to strike Wolfe’s identification of Sierra after evidence was adduced on cross-examination 

that Wolfe identified Sierra based on reading his name in the 

newspaper after the incident. We do not have sufficient evidence on the record to determine deficiency or prejudice. We 

find that the record is insufficient to determine this claim on 

direct appeal.

Similarly, we find the record is insufficient to determine 

Sierra’s assertion that his attorney was ineffective for failing to 

object on foundation and hearsay grounds to Hanke’s identification of Sierra in the photographs contained in exhibits 1 and 

23. Hanke admitted that he did not personally identify Sierra as 

the second person depicted in the photographs. Rather, Hanke 

testified that he received information from the Butler County 

sheriff identifying the second person in the photographs in 

exhibit 1 as Sierra. Hanke also testified that the photographs 

taken from the Norfolk Walmart, exhibit 23, depicted Sierra 

and Mally.

Although Hanke lacked personal knowledge and his statement relaying information from the Butler County sheriff was 

inadmissible hearsay, 44 we do not have information in the record 

concerning Sierra’s attorney’s trial strategy. Furthermore, we 

do not know what theories of prejudice Sierra is alleging relating to this claim because an appellant is only required to allege 

deficient conduct on direct appeal. 45 Accordingly, we find the 

record is insufficient to resolve this claim on direct appeal.

(b) Testimony About Search of Sierra’s 

Residence, Location of Trailer, 

and Cell Phone Records

Sierra asserts that his attorney missed objections to three 

other portions of Hanke’s testimony on foundation and hearsay 

44 See §§ 27-801 and 27-803(23).

45 See, State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014); State v. 

Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
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grounds. Sierra contends that had she made the proper objections, the court would have sustained the objections, which 

would have prevented the admission of several pieces of prejudicial evidence, unless the State called the proper witnesses to 

adduce the evidence. Sierra identifies the testimony at issue 

as statements about the location of the recovered trailer, testimony related to the search of his residence, and cell phone 

location data retrieved from a search warrant. Sierra argues 

that assuming the State would not have called additional witnesses to present such evidence, if Sierra’s attorney had made 

objections that would have been sustained, there would have 

been a void in the circumstantial evidence significant enough 

to raise a reasonable doubt as to whether he committed the 

crimes charged.

(i) Trailer

Hanke testified as to the location of the trailer without 

specifying who recovered the trailer and whether he had personal knowledge of its recovery. We cannot determine whether 

either a hearsay or a foundation objection would have had 

merit without knowing whether Hanke had personal knowledge of the trailer’s recovery. That information is not in the 

trial record. Without being able to determine whether either 

objection had merit, we cannot determine on direct appeal 

whether Sierra’s attorney’s failure to object was deficient and 

whether Sierra was prejudiced by deficient conduct. Thus, 

we find the record is insufficient to resolve this claim on 

direct appeal.

(ii) Tools Found in Sierra’s Residence

Evidence of the physical tools and photographs of tools 

recovered from Sierra’s residence were admitted based upon 

Hanke’s testimony despite the fact that Hanke did not take 

part in the search of Sierra’s residence. Sierra argues that his 

attorney was ineffective for failing to object on foundation and 

hearsay grounds to this evidence, found in exhibits 3 and 14. 

However, she objected to the admission of exhibit 3.
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Exhibit 3 was a series of photographs of items taken from 

Extreme Automotive and recovered during the search of Sierra’s 

residence. Sierra’s attorney objected to exhibit 3 on foundation 

and, after a clarification from the State, made a second objection on relevancy that was overruled. Sierra does not assign 

error to the trial court’s rulings on any of these objections. 

Sierra’s attorney did not object to exhibit 14. The record does 

not reveal any grounds that would have warranted an objection 

to exhibit 14. The record demonstrates Sierra’s attorney repeatedly made the appropriate hearsay and foundation objections 

to the evidence at issue. Thus, we find no deficient conduct by 

her related to Hanke’s testimony about items recovered from 

the search of Sierra’s residence.

(iii) Cell Phone Records

Hanke was the sole source for the content of the cell phone 

records. Hanke testified that he obtained a search warrant for 

the records and that those records indicated Sierra was in York 

on October 15, 2017. Neither the warrant nor the records are 

in evidence, and no cell phone company represetnative testified 

as to the authenticity of the records provided. Sierra’s attorney 

made no objections to this testimony, and Sierra asserts that 

this constituted ineffective assistance of counsel.

Hanke’s testimony about the contents of the cell phone 

records very well may have violated evidence rules for foundation and hearsay. 46 Although Sierra’s attorney’s failure to 

object on these grounds may qualify as deficient conduct, we 

cannot make that determination without information about her 

trial strategy, which is not contained in the appellate record. 

Moreover, we decline to speculate on direct appeal about 

whether the State would have called additional witnesses to 

authenticate the records if she had made the objections and 

they had been sustained. Thus, we find the record is insufficient to resolve this claim on direct appeal.

46 See § 27-802 and Neb. Rev. Stat. § 27-901 (Reissue 2016).
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6. Failure to Object to “Proffer 

Interview” Evidence

Sierra contends that his attorney was also ineffective for 

failing to object to Hanke’s testimony about Sierra’s statements 

made during a “proffer interview.” Hanke testified to a second 

interview that occurred with Sierra where Sierra admitted to 

being in York. No information appears in the record about the 

nature of this second interview. The term “proffer interview” is 

one way of describing interviews that occur in order to arrive 

at a negotiated plea in exchange for a defendant’s cooperation; 

this is also referred to as “plea negotiations” 47 or, in federal 

cases, as “‘cooperation-immunity agreements.’” 48

Typically, “proffer interviews” involve some sort of agreement. The interpretation of such an agreement is governed by 

general contract principles, and an alleged violation by the 

State of the agreement implicates the due process rights of 

the defendant. 49 The record does not contain any information 

about any alleged agreements between the State and Sierra 

prior to the interview. Thus, the record is insufficient to determine this claim on direct appeal.

7. Failure to Request Accomplice 

Jury Instruction

Having addressed all of Sierra’s arguments concerning the 

evidence adduced at trial, we now turn to the jury instructions. Sierra argues his attorney was ineffective because she 

failed to request a cautionary jury instruction on accomplice 

testimony. Sierra claims that she should have requested an 

instruction, patterned from NJI2d Crim 5.6, which would 

have read:

“There has been testimony from . . . Mally, a claimed 

accomplice of [Sierra]. You should closely examine his 

47 See State v. McGee, 282 Neb. 387, 395, 803 N.W.2d 497, 505 (2011).

48 See United States v. Brown, 801 F.2d 352, 354 (8th Cir. 1986).

49 See State v. Wacker, 268 Neb. 787, 688 N.W.2d 357 (2004).
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testimony for any possible motive he might have to testify falsely. You should hesitate to convict [Sierra] if you 

decide that . . . Mally testified falsely about an important 

matter and that there is no other evidence to support his 

testimony. In any event, you should convict [Sierra] only 

if the evidence satisfies you beyond a reasonable doubt of 

his guilt.” 50

Whether Sierra’s attorney was deficient for not requesting 

an instruction on accomplice testimony depends in part on 

whether such an instruction was warranted.

[17,18] A defendant is clearly entitled to a cautionary 

instruction on the weight and credibility to be given to the testimony of an alleged accomplice, and the failure to give such 

an instruction, when requested, is reversible error. 51 We have 

held that whenever a judge decides that the evidence supports 

a conclusion that a witness is an accomplice and the defendant 

requests a cautionary instruction, the instruction is appropriate 

and should be given. 52 This is because any alleged accomplice 

testimony should be examined more closely by the trier of fact 

for any possible motive that the accomplice might have to testify falsely. 53

There is evidence on the record to indicate Mally was an 

accomplice. Sierra’s attorney adduced evidence on crossexamination of the benefits he was receiving from the State in 

exchange for his testimony, and Mally’s plea deal was entered 

into evidence. If she had requested a cautionary instruction on 

accomplice testimony, the instruction should have been given. 

It is unclear on the trial record why Sierra’s attorney did not 

request such an instruction, but we cannot say on the record 

before us that the failure to request a cautionary instruction 

50 Brief for appellant at 45.

51 See State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).

52 See id.

53 Id.
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on accomplice testimony was deficient and prejudicial under 

Strickland.

 54 Thus, we find that the record is insufficient for 

us to address this claim on direct appeal.

8. Failure to Maintain 

Adequate Record

Sierra generally contends that his attorney was ineffective 

for not maintaining a record of certain portions of the trial. 

This contention rests on the idea that there could have been 

potential due process violations during these parts of the trial. 

The portions that went unrecorded included voir dire, closing arguments, and the reading of the instructions to the jury. 

Without a sufficient record, Sierra argues that he is foreclosed 

from assigning such violations as errors on appeal. Sierra 

does not elaborate on what the alleged violations were, except 

as to the error related to the accomplice jury instruction discussed above.

We have long held that both parties can waive the creation 

of the record for nonevidentiary proceedings. 55 The burden 

to create the trial record is on the trial court; however, this 

burden only extends to the evidence offered at trial and other 

evidentiary proceedings, and it may be waived for nonevidentiary proceedings. 56 None of the proceedings omitted from the 

record involved the presentation of evidence at trial.

[19] Raising a claim of ineffective assistance based on 

the mere conjecture that something inappropriate may have 

occurred during these proceedings is not enough. Sierra was 

present during each part of the trial, including those portions 

not on the record. Thus, he has knowledge of what occurred 

and was free to assign on appeal any specific claims of deficiency by his attorney during the proceedings not on the 

54 See Strickland v. Washington, supra note 7.

55 See Gerdes v. Klindt’s, Inc., 247 Neb. 138, 525 N.W.2d 219 (1995).

56 See, id.; Lockenour v. Sculley, 8 Neb. App. 254, 592 N.W.2d 161 (1999). 

See, also, Neb. Ct. R. App. P. § 2-105(A)(2) (rev. 2018).
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record. When recordation of parts of a trial is not made mandatory by the rules, the failure to request recordation cannot 

be said, ipso facto, to constitute negligence or inadequacy of 

counsel. 57 When the defendant was present but does not allege 

what specific deficient conduct was not recorded, the defendant 

fails to allege with sufficient specificity how trial counsel was 

deficient by simply alleging that counsel waived creation of a 

trial record for nonevidentiary proceedings. 58

Other than the allegation relating to the accomplice jury 

instruction, Sierra has not assigned any specific allegations of 

deficient conduct; nor has he made any specific arguments, 

related to voir dire or closing arguments. We do not address 

those claims alleging simply that the failure to create a trial 

record, in itself, constituted ineffective assistance.

Sierra has alleged specifically deficient conduct pertaining 

to the jury instructions. However, the assignment of ineffective assistance is unrelated to the reading of the jury instructions. Rather, Sierra alleges the deficient conduct was in the 

failure to request that the giving of the jury instructions be 

recorded.

Counsel is not required to request a record of the reading of 

the jury instructions, because instructions to the jury, whether 

given or refused, when filed in a cause, are a part of the record 

and need not be embodied in the bill of exceptions. 59 Thus, an 

ineffective assistance claim asserting deficient conduct based 

on a failure to request that a record be made of the reading of 

the jury instructions would need to specifically allege that trial 

counsel was deficient in conduct during the reading of the jury 

instructions. Sierra has failed to specify deficient conduct by 

his trial counsel during the reading of the jury instructions. We 

find this claim to be without merit.

57 State v. Jones, 246 Neb. 673, 522 N.W.2d 414 (1994).

58 See, State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706 (2017); 

State v. Jones, supra note 57.

59 See Bennett v. McDonald, 52 Neb. 278, 72 N.W. 268 (1897).
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9. Failure to Maintain Law License and 

Appropriate Moral Standing

Lastly, Sierra claims that his attorney’s failure to maintain 

her law license and the investigation into her criminal conduct 

rendered his attorney per se ineffective. There is no evidence 

in the record concerning Sierra’s attorney’s personal conduct 

or any potential conflict of interest. At the original sentencing hearing, she made a motion to withdraw, it was granted, 

and the trial court gave a newly appointed public defender 

additional time to prepare for sentencing. No further details 

are provided. We find that the record is insufficient for us to 

address this claim on direct appeal.

VI. CONCLUSION

For the foregoing reasons, we vacate Sierra’s convictions 

and sentences pursuant to counts III and IV of the State’s 

amended information, which each asserted a separate offense 

of theft by unlawful taking ($5,000 or more). Furthermore, we 

find that the district court did not abuse its discretion in denying the motion to withdraw and in granting the State’s motion 

in limine. We find the claims of ineffective assistance of counsel for agreeing not to call Sierra’s fiance as a witness, failure 

to request a continuance, failure to exclude evidence found in 

Mally’s possession, and failure to object to Hanke’s testimony 

about evidence found at Sierra’s residence to be without merit. 

We find the claim of ineffective assistance of counsel for failure to maintain a sufficient record of voir dire, closing arguments, and jury instructions to be insufficiently stated. We find 

the record is insufficient to address the remaining ineffective 

assistance of counsel claims on direct appeal.

Affirmed in part, and in part vacated.