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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. TRAN

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.

LONG N. TRAN, APPELLANT.

Filed April 14, 2020. No. A-19-784.

Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed.

Robert M. Williams, of Larson, Kuper & Wenninghoff, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

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

RIEDMANN, Judge.

INTRODUCTION

Long N. Tran appeals his plea-based convictions for theft by receiving, $5,000 or more, 

and criminal possession of a financial transaction device (two or three devices). On appeal, he 

claims that the district court erred in denying his motion to continue sentencing and imposed 

excessive sentences. He also alleges that he received ineffective assistance of trial counsel. We 

affirm.

BACKGROUND

Tran was charged by information in the district court for Douglas County with theft by 

receiving, $5,000 or more, and criminal possession of a financial transaction device (two or three

devices). He pled no contest to the charges, and in exchange, the State agreed to dismiss charges 

filed in a separate case. According to the factual basis provided by the State at the plea hearing, on 

or about April 17, 2018, law enforcement observed a vehicle with out-of-state license plates. An 
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officer approached the driver, later identified as Tran, and asked for the vehicle’s registration and 

information. Tran was unable to provide the information requested and unable to identify the 

owner of the vehicle. Law enforcement ran the vehicle’s information and discovered that the 

vehicle belonged to “Gelco Fleet Trust” and had been reported stolen out of Omaha. The vehicle 

was a 2018 Ford Fusion, valued at more than $19,000.

A duffle bag was located inside the trunk of the vehicle, and Tran claimed ownership of 

the bag. Inside the bag, law enforcement found two credit cards displaying names other than 

Tran’s, and two checkbooks belonging to individuals other than Tran. A debit card was also located 

inside Tran’s wallet, which bore a name other than Tran’s. Tran did not know these individuals 

and did not have permission to be in possession of their financial transaction devices.

The district court accepted Tran’s pleas and found him guilty. The court ordered the 

completion of a presentence investigation (PSI) and scheduled sentencing for February 21, 2019. 

On January 10, the court continued sentencing to February 28 on its own motion. Tran was 

scheduled to be interviewed for the PSI on January 24, but he was incarcerated at that time in 

Sarpy County and could not appear for his interview. Tran then moved to continue sentencing so 

that probation could have additional time to complete the PSI. The court granted the motion and 

rescheduled sentencing for May 23.

Tran’s PSI interview was rescheduled for May 8, 2019, at 8 a.m. A probation officer spoke 

with Tran on April 10 who confirmed the date, time, and location of the interview and stressed to 

Tran the importance of being on time to the appointment because they were using an interpreter. 

When Tran had not appeared for the interview by 8:25 a.m. on May 8, the probation officer 

dismissed the interpreter. Tran called shortly thereafter and indicated that he was pulling into the 

parking lot, but the probation officer informed him that the interpreter had already been dismissed 

and he would need to contact his attorney for direction.

The district court continued sentencing again to July 25, 2019. The probation officer 

communicated with Tran that his PSI interview was scheduled for June 24 at 8 a.m. and again 

arranged for an interpreter to be present. Tran did not present for the interview until 9 a.m., after 

the probation officer had already dismissed the interpreter. The PSI was completed without an 

interview with Tran.

Sentencing was held on July 25, 2019, and at the outset of the hearing, Tran’s counsel 

orally moved to continue sentencing again to give Tran a further opportunity to obtain a PSI 

interview. The district court denied the motion and proceeded with sentencing. Tran was sentenced 

to 6 to 8 years’ imprisonment for theft by receiving and a consecutive term of 2 to 2 years’ 

imprisonment for the criminal possession offense. Tran appeals.

ASSIGNMENTS OF ERROR

Tran assigns that the district court erred in denying his motion to continue sentencing and 

imposed excessive sentences. He also assigns that he received ineffective assistance of counsel.

STANDARD OF REVIEW

A decision whether to grant a continuance in a criminal case is within the discretion of the 

trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Baxter, 295 
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Neb. 496, 888 N.W.2d 726 (2017). A judicial abuse of discretion exists only when the reasons or 

rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and 

denying a just result in matters submitted for disposition. Id.

An appellate court will not disturb a sentence imposed within the statutory limits absent an 

abuse of discretion by the trial court. State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).

ANALYSIS

Motion to Continue.

Tran assigns that the district court erred in denying his motion to continue the sentencing 

hearing. He acknowledges that he missed three appointments with the probation officer to 

complete a PSI interview, but he argues that considering his actual efforts to attend the meetings 

combined with his language barrier, the court should have allowed him one final continuance so 

that he could complete the interview. We find no abuse of discretion in the court’s refusal to 

continue sentencing.

A court does not abuse its discretion in denying a continuance unless it clearly appears that 

the party seeking the continuance suffered prejudice because of that denial. State v. Baxter, supra. 

Where the criminal defendant’s motion for continuance is based upon the occurrence or 

nonoccurrence of events within the defendant’s own control, denial of such motion is no abuse of 

discretion. Id.

In facts similar to this case, the defendant in State v. Baxter, supra, pled no contest to her 

charges and was found guilty. Prior to sentencing, she filed a motion to continue sentencing to 

allow her sufficient time to obtain a drug and alcohol evaluation and time for the probation office 

to complete a PSI. The trial court denied the motion. The defendant appealed, and on appeal, she 

argued that the trial court erred in denying her motion to continue sentencing because without the 

evaluation, the court did not have all available and relevant information about her substance abuse 

issues before it imposed a sentence. Id.

The Nebraska Supreme Court determined that both of the principles detailed above militate 

against a finding that the court abused its discretion. Id. With respect to prejudice, the Supreme 

Court found that the PSI report contained ample information regarding the defendant’s substance 

abuse issues and that the defendant did not specify what information the court was lacking or how 

it might have affected the court’s sentencing decision. The court further noted that at the sentencing 

hearing, the defendant had the opportunity to present information or argument regarding her 

substance abuse issues. Id.

The Supreme Court additionally found that the defendant missed three appointments for 

the PSI interview before finally reporting, at which time she was referred for a substance abuse 

evaluation. Id. Given her inaction before she finally appeared for the PSI appointment, the 

Supreme Court determined that the delay in completion of the evaluation was due to events within 

the defendant’s own control. Moreover, the court concluded that the defendant had not shown that 

she suffered prejudice as a result of the denial of her motion to continue sentencing. Id.

Likewise, in the present case, Tran missed three appointments he had scheduled to 

complete his PSI interview. He was unable to attend the first appointment due to incarceration, but 

the district court continued sentencing at Tran’s request after that to allow him additional time to 
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complete the interview. Nevertheless, he failed to appear on time for either of the followup 

appointments, and because the interpreter had already been dismissed, the interview was not able 

to be completed. Appearing for the appointments in May and June 2019, on time, was within 

Tran’s control. The probation officer reminded him on each occasion of the details of his 

appointment and emphasized the importance of being on time.

In addition, Tran makes no argument as to how he was prejudiced by the denial of his 

motion to continue. Like the defendant in State v. Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017), 

he does not specify what information the court was lacking without the benefit of a PSI interview 

with Tran or how it might have affected the court’s sentencing decision. He alludes to substance 

abuse issues in his brief, but as the Supreme Court observed in State v. Baxter, supra, Tran had the 

opportunity to present information or argument regarding his substance abuse issues at sentencing, 

and he did so. The State countered Tran’s argument by reminding the court that there are substance 

abuse treatment programs available through the Nebraska Department of Corrections.

Based on the foregoing, we conclude that the failure to complete the PSI interview was 

within Tran’s own control and that he has not shown that he suffered prejudice as a result of the 

denial of his motion to continue. Consequently, the denial of Tran’s oral motion to continue 

sentencing was not an abuse of discretion.

Excessive Sentences.

Tran also asserts that the district court imposed excessive sentences. Theft by receiving, 

$5,000 or more, is a Class IIA felony, punishable by up to 20 years’ imprisonment. Neb. Rev. Stat. 

§§ 28-518(1) and 28-105 (Reissue 2016). Criminal possession of a financial transaction device, 

two or three devices, is a Class IV felony, which carries a maximum term of incarceration of 2 

years. Neb. Rev. Stat. § 28-621(3) (Reissue 2016); § 28-105. Because Tran was sentenced to 

imprisonment for a Class IIA felony and sentenced consecutively to imprisonment for a Class IV 

felony, he was not subject to postrelease supervision pursuant to § 28-105(1). See § 28-105(6). 

Tran’s sentences of 6 to 8 years’ imprisonment and 2 to 2 years’ imprisonment, respectively, 

therefore come within the statutory limits and are reviewed for an abuse of discretion.

Where 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. State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018). In determining a 

sentence to be imposed, relevant factors 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.

Id. 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.

Tran acknowledges that his sentences are within the statutory limits, but he argues that they 

are excessive because the district court improperly considered the present offenses coupled with 

his failure to appear for the PSI interview “as an overriding and heavily weighing factor.” Brief 
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for appellant at 13. He claims that the court improperly looked at the current offenses as evidence 

of whether he is likely to reoffend rather than his minimal criminal history and that it was 

inappropriate for the court to do so.

We first note that the district court did not explain its reasoning for the sentence imposed 

on the record, so contrary to Tran’s argument, it is unclear the amount of weight the court placed 

on which factors. However, consideration of Tran’s past criminal record or record of law-abiding 

conduct as well as the nature of the current offenses are factors for the court to consider. See State 

v. Leahy, supra. The weight to accord each factor is left to the sentencing judge’s discretion, and 

there is no indication that the court considered any improper factors.

Although a PSI interview with Tran was never completed, the PSI report was completed. 

It indicates that Tran was 31 years old at the time of sentencing. His criminal history includes 

convictions for failure to appear, forgery, and operating a motor vehicle to avoid arrest. He was 

sentenced to 2 years’ probation for the forgery conviction in Colorado and was on probation at the 

time of the present offenses. Subsequent to the offenses at issue here, Tran was convicted of 

domestic violence assault, shoplifting, and being a fugitive from justice out of Colorado. The 

probation officer who completed the PSI found that even though Tran’s criminal history is not 

extensive, his continued engagement in criminal behavior, which was violent in nature, after the 

current offenses and his failure to follow through with the PSI process appear to warrant a sentence 

of incarceration.

We observe that Tran received the benefit of the dismissal of additional charges in a 

separate case by agreeing to plead no contest to the present offenses. He faced up to a total of 22 

years’ incarceration and received a sentence of 8 to 10 years’ incarceration. In addition, he was 

already on probation at the time he committed the offenses at issue here. Upon our review of the 

record, we find no abuse of discretion in the sentences imposed.

Ineffective Assistance of Counsel.

Tran assigns that he received ineffective assistance of trial counsel. His specific assigned

error lacks the specificity we demand on direct appeal, however. See State v. Mrza, 302 Neb. 931, 

926 N.W.2d 79 (2019). Assignments of error on direct appeal regarding ineffective assistance of 

trial counsel must specifically allege deficient performance, and an appellate court will not scour 

the remainder of the brief in search of such specificity. Id.

The opinion in State v. Mrza, supra, was released on April 19, 2019. Tran’s brief was filed 

on December 31. Tran has not properly assigned his ineffective assistance of counsel claims, and 

we therefore do not address them.

CONCLUSION

We conclude that the district court did not abuse its discretion in denying Tran’s motion to 

continue sentencing or in the sentences imposed. We also find that Tran has not sufficiently 

assigned as error his claims of ineffective assistance of trial counsel. Therefore, his convictions 

and sentences are affirmed.

AFFIRMED.