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302 Nebraska Reports

STATE v. SPANG

Cite as 302 Neb. 285

State of Nebraska, appellee, v. 

Ross W. Spang, appellant.

___ N.W.2d ___

Filed February 15, 2019. Nos. S-18-450, S-18-451.

1. 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.

2. ____: ____. 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’s performance was deficient and whether the defendant 

was or was not prejudiced by counsel’s alleged deficient performance.

3. Sentences: Appeal and Error. Whether an appellate court is reviewing 

a sentence for its leniency or its excessiveness, a sentence imposed by 

a district court that is within the statutorily prescribed limits will not 

be disturbed on appeal unless there appears to be an abuse of the trial 

court’s discretion.

4. 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. Once raised, the appellate court 

will determine whether the record on appeal is sufficient to review the 

merits of the ineffective performance claims.

5. 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.

Nebraska Supreme Court Online Library

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

03/22/2019 01:06 AM CDT
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STATE v. SPANG

Cite as 302 Neb. 285

6. Effectiveness of Counsel: Records: Appeal and Error. The trial 

record reviewed on appeal is devoted to issues of guilt or innocence; as 

such, it does not usually address issues of counsel’s performance and is 

often insufficient to review on direct appeal an ineffective assistance of 

counsel claim.

7. Effectiveness of Counsel: Records: Proof: Appeal and Error. An 

ineffective assistance of counsel claim made on direct appeal can be 

found to be without merit if the record establishes that trial counsel’s 

performance was not deficient or that the appellant could not establish prejudice.

8. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant has the burden to 

show that his or her counsel’s performance was deficient and that this 

deficient performance actually prejudiced the defendant’s defense.

9. ____: ____. 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 in the area.

10. ____: ____. 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.

11. Issue Preclusion: Words and Phrases. Issue preclusion means that 

when an issue of ultimate fact has once been determined by a valid and 

final judgment, that issue cannot again be litigated between the same 

parties or their privies in any future lawsuit.

12. Issue Preclusion. There are four conditions that must exist before issue 

preclusion may apply: (1) The identical issue was decided in a prior 

action, (2) there was a judgment on the merits which was final, (3) the 

party against whom the rule is applied was a party or in privy with a 

party to the prior action, and (4) there was an opportunity to fully and 

fairly litigate the issue in the prior action.

13. Issue Preclusion: Prior Convictions. Issue preclusion does not apply to 

determinations of whether prior convictions can be used to enhance the 

classification of or sentence imposed on a subsequent conviction.

14. Judgments: Appeal and Error. 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.

15. Sentences. 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 
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STATE v. SPANG

Cite as 302 Neb. 285

well as (7) the nature of the offense, and (8) the violence involved in the 

commission of the crime.

16. ____. 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.

Appeals from the District Court for Lancaster County: John

A. Colborn, Judge. Affirmed.

Joseph D. Nigro, Lancaster County Public Defender, and 

Robert G. Hays for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

These consolidated cases present direct appeals by the 

defendant of his convictions for driving under the influence 

(DUI), fifth offense, a Class IIA felony, and aggravated DUI, 

fifth offense, a Class II felony. The defendant’s convictions 

arise out of a no-contest plea agreement involving two separate criminal cases. The central issue raised by the defendant 

on appeal is whether his trial counsel was ineffective by failing to offer at the enhancement hearing available evidence that 

allegedly would have established that the State was precluded 

from relitigating a Wisconsin court’s determination that a prior 

conviction was invalid for enhancement purposes. The defendant also asserts that his sentences are excessive.

FACTS

DUI Incidents

Ross W. Spang’s DUI convictions that are challenged on 

appeal are based on the following facts occurring in May and 

August 2016 respectively.
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STATE v. SPANG

Cite as 302 Neb. 285

In May 2016, an officer witnessed Spang turn the wrong 

way driving down a one-way street. The officer initiated a traffic stop and immediately noticed that Spang was intoxicated 

based on his slurred speech; red, watery eyes; and a strong 

odor of alcohol coming from him. The officer ordered Spang to 

exit his vehicle, and Spang fell down while exiting. The officer 

testified that Spang showed signs of impairment during his 

field sobriety test and that he failed his preliminary breath test. 

After being arrested and transported to jail, Spang completed 

a Breathalyzer test with a result of 0.190 grams of alcohol per 

0.210 liters of his breath.

In August 2016, a state trooper pulled Spang’s vehicle over 

after observing it traveling 82 miles per hour in a 60-mile-perhour zone. The trooper initiated a traffic stop. The vehicle was 

being driven by Spang and had two passengers. When he made 

contact with Spang, the trooper could detect a strong odor 

of alcohol.

When prompted for his identification, Spang identified himself as “Reid Alan Spang.” The trooper eventually learned that 

Spang had given a false name and that his true identity was 

“Ross Wayne Spang” with an address in Wisconsin.

The trooper later isolated the alcohol odor to Spang and had 

him submit to a field sobriety test and a preliminary breath test. 

During the field sobriety test, the trooper saw signs of impairment. In addition, the preliminary breath test showed a result 

of 0.128. Based on these circumstances, the trooper informed 

Spang that he was under arrest. However, when the trooper 

attempted to handcuff Spang, Spang ran from the trooper and 

escaped arrest. The trooper was unable to locate Spang and put 

him into custody at that time.

Plea Agreement and Verdict

Spang was charged in two separate cases. In case No. 

S-18-450, Spang was originally charged with aggravated DUI 

(in excess of 0.15) with four or more prior convictions, a 

Class II felony. In case No. S-18-451, Spang was originally 
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STATE v. SPANG

Cite as 302 Neb. 285

charged with DUI with four or more prior convictions, a 

Class IIA felony, and felony escape.

A plea agreement was eventually reached between Spang 

and the State wherein Spang agreed to plead no contest to the 

DUI charges in exchange for dismissal of the felony escape 

charge. The district court advised Spang of the rights he was 

waiving by entering his pleas, and a factual basis was provided. 

The district court accepted the pleas and found Spang guilty of 

both DUI charges.

Enhancement Hearing and Sentencing

An enhancement hearing was held, and the State offered 

certified copies of Spang’s four prior DUI convictions from 

Wisconsin in 2004, 2006, 2007, and 2012. Spang’s trial counsel did not object to the introduction or receipt of the evidence of the prior convictions. However, Spang’s trial counsel 

argued that the 2006 conviction was invalid for enhancement 

purposes, because it did not reflect that Spang had effectively 

waived counsel in that case. Spang’s counsel pointed out that 

this deficient waiver led to a subsequent Wisconsin decision in 

2012, for an offense committed in 2011, holding that this prior 

2006 conviction was not valid for enhancement purposes in 

Wisconsin. And counsel asserted that the State was precluded 

from relitigating the Wisconsin court’s determination.

Spang’s trial counsel offered into evidence, and the court 

received, a copy of the Wisconsin circuit court’s 2012 judgment of conviction and docket entries for Spang’s 2011 offense. 

These 2011-12 records reflect that the Wisconsin circuit court 

granted Spang’s motion to preclude the use of a 2006 prior 

conviction for enhancement purposes in that case and that 

Spang’s 2012 conviction was amended to a third offense rather 

than a fourth offense based on that preclusion. However, these 

records did not reflect on what basis the prior conviction was 

found invalid for enhancement purposes.

At the enhancement hearing, the State did not dispute that 

the 2006 conviction was the same conviction found defective 

and invalid for enhancement purposes in Wisconsin. However, 
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STATE v. SPANG

Cite as 302 Neb. 285

the State argued that such fact alone did not render it invalid 

in Nebraska for enhancement purposes. The State noted that 

there were different requirements for effective waiver of 

counsel between the two states and that the 2006 conviction 

document entered into evidence by the State reflected that 

Spang was advised of his rights and affirmatively waived 

his right to counsel in relation to the 2006 conviction. The 

State then argued that any attempt by Spang to challenge the 

validity of the waiver of counsel that occurred in the 2006 

Wisconsin case would be an impermissible collateral attack 

under Nebraska law.

The district court found that the 2006 conviction, as well 

as the three other prior convictions, were valid prior convictions for enhancement purposes in Nebraska. The court found 

that the records entered into evidence by the State reflected 

that the defendant had counsel in three of his four convictions 

and that the State had demonstrated a sufficiently clear waiver 

under Nebraska law of his right to counsel in relation to the 

2006 conviction.

In case No. S-18-451, the district court sentenced Spang to 5 

to 10 years’ imprisonment and a 15-year license revocation for 

DUI, fifth offense. In case No. S-18-450, the aggravated DUI, 

fifth offense conviction, Spang was sentenced 10 to 15 years’ 

imprisonment and a 15-year license revocation. The sentences 

were ordered to run consecutively, resulting in an aggregate 

sentence of 15 to 25 years’ imprisonment.

Postconviction Relief

Spang’s trial counsel did not file a direct appeal for this matter. Following his sentencing, Spang initiated a timely postconviction action challenging trial counsel as ineffective for failing 

to object to the introduction and receipt of the 2006 conviction, 

offer necessary evidence regarding the 2006 conviction, and 

file a direct appeal.

The district court concluded that Spang’s trial counsel was 

ineffective for not advising Spang about his right to appeal 

and the 30-day time limit for filing an appeal. The district 
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STATE v. SPANG

Cite as 302 Neb. 285

court found this warranted a reinstatement of Spang’s direct 

appeal right but declined to address the remaining postconviction claims.

ASSIGNMENTS OF ERROR

Spang assigns that (1) he was denied due process and the 

effective assistance of counsel when his trial counsel failed to 

offer at the enhancement hearing a Wisconsin motion to preclude the consideration of a prior conviction and (2) the district 

court erred in imposing excessive sentences.

STANDARD OF REVIEW

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

counsel is a mixed question of law and fact.1 When reviewing a claim of ineffective assistance of counsel, an appellate 

court reviews the factual findings of the lower court for clear 

error.2 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,

3

 an appellate court 

reviews such legal determinations independently of the lower 

court’s decision.4

[2] 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’s performance was 

deficient and whether the defendant was or was not prejudiced 

by counsel’s alleged deficient performance.5

[3] Whether an appellate court is reviewing a sentence for 

its leniency or its excessiveness, a sentence imposed by a 

1 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

2 Id.

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

(1984).

4 State v. Filholm, supra note 1.

5 See, State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017); State 

v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).
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STATE v. SPANG

Cite as 302 Neb. 285

district court that is within the statutorily prescribed limits will 

not be disturbed on appeal unless there appears to be an abuse 

of the trial court’s discretion.6

ANALYSIS

Ineffective Assistance of Counsel

On direct appeal, Spang argues that he was denied due 

process and the effective assistance of counsel at trial as a 

result of trial counsel’s failure to offer certain evidence at 

the enhancement hearing. Specifically, Spang argues that his 

trial counsel was ineffective in failing to offer his motion to 

preclude from the 2011-12 Wisconsin case, which allegedly 

would have explained in sufficient detail the grounds for the 

Wisconsin court’s order for purposes of issue preclusion, sometimes referred to as collateral estoppel.

[4-7] 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.7 Once raised, the 

appellate court will determine whether the record on appeal is 

sufficient to review the merits of the ineffective performance 

claims.8 An ineffective assistance of counsel claim will not be 

addressed on direct appeal if it requires an evidentiary hearing.9

 The trial record reviewed on appeal is devoted to issues of 

guilt or innocence; as such, it does not usually address issues 

of counsel’s performance and is often insufficient to review 

on direct appeal an ineffective assistance of counsel claim.10

6 State v. Fields, 268 Neb. 850, 688 N.W.2d 878 (2004).

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

v. Williams, 259 Neb. 234, 609 N.W.2d 313 (2000). See, also, State v. 

Filholm, supra note 1.

8 State v. Abdullah, supra note 7.

9 Id.

10 See, id.; State v. Filholm, supra note 1. See, also, State v. Williams, supra

note 7.
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STATE v. SPANG

Cite as 302 Neb. 285

However, an ineffective assistance of counsel claim made on 

direct appeal can be found to be without merit if the record 

establishes that trial counsel’s performance was not deficient or 

that the appellant could not establish prejudice.11

[8-10] To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington,

12 the defendant has 

the burden to show that his or her counsel’s performance 

was deficient and that this deficient performance actually 

prejudiced the defendant’s defense.13 An appellate court may 

address the two prongs of this test, deficient performance and 

prejudice, in either order.14 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 in the area.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

The record on appeal does not contain the 2011 motion to 

preclude, which Spang argues would have established for the 

purpose of issue preclusion that the Wisconsin court decided an 

identical issue to the one before the trial court in the enhancement hearing. Nevertheless, we are able to determine that trial 

counsel’s performance in failing to offer the Wisconsin motion 

to preclude did not prejudice Spang, because issue preclusion 

does not apply in sentence enhancement proceedings.17

[11,12] Issue preclusion means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same 

11 See State v. Filholm, supra note 1.

12 Strickland v. Washington, supra note 3.

13 See State v. Marks, 286 Neb. 166, 835 N.W.2d 656 (2013).

14 State v. Filholm, supra note 1.

15 State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).

16 Id.

17 See State v. Bruckner, 287 Neb. 280, 842 N.W.2d 597 (2014).
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parties or their privies in any future lawsuit.18 There are four 

conditions that must exist before issue preclusion may apply: 

(1) The identical issue was decided in a prior action, (2) there 

was a judgment on the merits which was final, (3) the party 

against whom the rule is applied was a party or in privy with 

a party to the prior action, and (4) there was an opportunity to 

fully and fairly litigate the issue in the prior action.19

[13] In State v. Bruckner,

20 we held that regardless of whether 

these four conditions are met, issue preclusion does not apply 

to determinations of whether prior convictions can be used to 

enhance the classification of or sentence imposed on a subsequent conviction. Indeed, noting prior decisions by our court in 

which we were less than clear as to whether our holding was 

fact dependent, we stated that we were conclusively determining the “broader question of whether [issue preclusion] could 

ever apply in a sentence enhancement proceeding.”21

In the criminal context, issue preclusion is a component of 

the Double Jeopardy Clause, and double jeopardy does not 

bar the use of prior convictions for enhancement purposes.22

While we said this did not conclusively determine the applicability of issue preclusion, we were also persuaded by the 

public policy expressed by other jurisdictions similarly holding that issue preclusion does not apply to sentence enhancement proceedings.23

We were persuaded that concerns of public safety and 

reaching the right result, which are peculiar to the criminal 

process, outweigh the efficiency concerns that might otherwise 

favor application of issue preclusion.24 Further, applying issue 

18 Id.

19 Id.

20 Id.

21 Id. at 284, 842 N.W.2d at 600 (emphasis supplied).

22 See id.

23 See id.

24 Id.
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preclusion to prevent retrial of the validity of a prior conviction would undermine public confidence in the ability of the 

system to apply statutes prescribing increased punishment for 

repeat offenders.25 Finally, allowing retrial of the validity of a 

prior conviction for purposes of enhancement only increases 

the accuracy of the sentencing proceeding for both the State 

and the defendant.26

In order 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. In light of our broad holding in Bruckner that issue 

preclusion does not apply to sentence enhancement proceedings, no amount of proof establishing the four conditions of 

issue preclusion would have made a difference. Thus, upon the 

record, we can conclude that Spang was not prejudiced by his 

trial counsel’s failure to offer into evidence at the enhancement 

hearing the Wisconsin motion to preclude.

Excessive Sentences

Spang next assigns that the district court erred by imposing 

excessive sentences. When a trial court’s sentence is within the 

statutory guidelines, the sentence will be disturbed by an appellate court only when an abuse of discretion is shown.27

DUI, fifth offense, is a Class IIA felony punishable by 2 

to 20 years’ imprisonment and a mandatory 15-year license 

revocation.28 Spang was sentenced to 5 to 10 years’ imprisonment and a 15-year license revocation for this conviction. 

Aggravated DUI, fifth offense, is a Class II felony punishable by 2 to 50 years’ imprisonment and a mandatory 15-year 

license revocation.29 Spang was sentenced to 10 to 15 years’ 

25 Id.

26 See id.

27 State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).

28 See Neb. Rev. Stat. §§ 60-6,197.03(9) (Cum. Supp. 2018) and 28-105 

(Reissue 2016).

29 See §§ 60-6,197.03(10) and 28-105.
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imprisonment and a 15-year license revocation for this conviction. Because each of these sentences is within the statutory 

limitations, Spang’s sentences will be disturbed only upon a 

finding of abuse of discretion.

[14-16] 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.30 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.31 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.32

We find that the sentencing court did not consider any 

inappropriate or unreasonable factors in determining Spang’s 

sentences. Further, having reviewed the 2006 conviction and 

the evidence offered at the sentencing hearing, we find that 

the court did not make its decision based upon reasons that are 

untenable or unreasonable, nor was its action clearly against 

justice or conscience, reason, and evidence.

CONCLUSION

Based on the findings above, we affirm the district court’s 

decision.

Affirmed.

30 State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).

31 State v. Huff, supra note 27.

32 State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).