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Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE V. BETT

Cite as 31 Neb. App. 737

State of Nebraska, appellee, v. 

Brian M. Betts, appellant.

___ N.W.2d ___

Filed April 11, 2023. Nos. A-22-094, A-22-096.

1. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, 

which turns upon the sufficiency of the record to address the claim 

without an evidentiary hearing or whether the claim rests solely on the 

interpretation of a statute or constitutional requirements.

2. Effectiveness of Counsel: Appeal and Error. In reviewing a claim 

of ineffective assistance of trial counsel on direct appeal, an appellate 

court determines as a matter of law whether the record conclusively 

shows that (1) a defense counsel’s performance was deficient or (2) 

a defendant was or was not prejudiced by a defense counsel’s alleged 

deficient performance.

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

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

S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his 

or her counsel’s performance was deficient and that this deficient per

formance actually prejudiced the defendant’s defense.

4. ____: ____. To show that counsel’s performance was deficient, the 

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

under the prejudice component of the Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) test, the defendant 

must demonstrate a reasonable probability that but for his or her counsel’s deficient performance, the result of the proceeding would have 

been different.

5. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is based upon a plea of no contest, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the 

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Nebraska Court of Appeals Advance Sheets

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STATE V. BETT

Cite as 31 Neb. App. 737

defendant shows a reasonable probability that but for the errors of 

counsel, the defendant would have insisted on going to trial rather than 

pleading no contest.

6. Words and Phrases. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

7. Effectiveness of Counsel: Postconviction: Records: 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; otherwise, the issue will be 

procedurally barred in a subsequent postconviction proceeding.

8. 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. The determining factor is 

whether the record is sufficient to adequately review the question.

9. Effectiveness of Counsel: Appeal and Error. 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.

10. Effectiveness of Counsel: Witnesses: Appeal and Error. When the 

claim of ineffective assistance on direct appeal involves uncalled witnesses, vague assertions that counsel was deficient for failing to call 

“witnesses” are little more than placeholders and do not sufficiently 

preserve the claim. However, the appellate court does not need specific 

factual allegations as to what the person or persons would have said, 

which will not be found in the appellate record.

Appeals from the District Court for Nemaha County: Julie 

D. Smith, Judge. Affirmed.

Lindy L. Mahoney, of Nestor & Mercure Attorneys, for 

appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

Pirtle, Chief Judge, and Riedmann and Arterburn, Judges.

Arterburn, Judge.

INTRODUCTION

Brian M. Betts was charged in the district court for 

Nemaha County with a total of 29 felony counts distributed 
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STATE V. BETT

Cite as 31 Neb. App. 737

between two separate criminal cases. Betts resolved the two 

cases through a global plea agreement in which he entered a 

plea of no contest to five counts of first degree sexual assault 

of a child, each a Class IB felony; six counts of visual depiction of sexually explicit conduct, each a Class ID felony; and 

one count of possession of a deadly weapon by a prohibited 

person, a Class ID felony. In this consolidated appeal, Betts 

asserts that his trial counsel was ineffective for failing to file 

pretrial motions, failing to depose key witnesses, and demonstrating a general inadvertence that, according to Betts, 

pressured him into accepting the global plea agreement. Upon 

our review, we affirm Betts’ convictions and sentences in 

both cases.

BACKGROUND

In case No. A-22-094, on February 4, 2019, Betts was 

originally charged by information with 4 counts of first degree 

sexual assault of a child, each a Class IB felony; 1 count of 

possession of a firearm by a prohibited person, a Class ID 

felony; 10 counts of visual depiction of sexually explicit conduct, each a Class ID felony; and 1 count of possession of a 

controlled substance, a Class IV felony. On April 8, the court 

granted defense counsel’s motion to take depositions of the 

alleged victim in the case, M.C., as well as two other potential trial witnesses. The court granted another defense motion 

to take the depositions of two law enforcement officers on 

October 23.

On November 13, 2019, Betts appeared with counsel and 

waived his right to a jury trial. The court accepted his waiver 

and scheduled a bench trial for February 24, 2020. The State 

planned to have a hearing under Neb. Rev. Stat. § 27-414 

(Reissue 2016) to introduce evidence from another alleged 

victim of Betts, L.M.I., on February 12. However, defense 

counsel moved to continue the proceedings and requested 

leave to depose L.M.I. prior to any evidentiary hearing 

being held.
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STATE V. BETT

Cite as 31 Neb. App. 737

On March 11, 2020, the State filed an information in case 

No. A-22-096 charging Betts with six counts of first degree 

sexual assault of a child, each a Class IB felony, and seven 

counts of visual depiction of sexually explicit conduct, each a 

Class ID felony. L.M.I. was the alleged victim in this case.

During the arraignment in case No. A-22-096, the district 

court addressed Betts’ pro se request that he be appointed with 

new counsel. Defense counsel did not contest Betts’ request. 

In fact, counsel made an oral motion to withdraw due to the 

serious nature of the pending charges and the possible penalties that Betts was facing. Defense counsel suggested that the 

Nebraska Commission on Public Advocacy be contacted to see 

if it would be willing to accept Betts’ cases. The court took 

the matter under advisement, instructing counsel to check with 

the Nebraska Commission on Public Advocacy about taking 

the cases.

On April 8, 2020, it was reported to the court that the 

Nebraska Commission on Public Advocacy was unable to 

take Betts’ cases due to a lack of available resources. The 

court determined not to make any changes to Betts’ previously 

appointed defense counsel. Counsel was then granted leave 

to take a deposition of another potential trial witness. At this 

same time, the district court addressed Betts’ pro se motions 

asking that the prosecutor be recused and that he be allowed 

to withdraw his waiver for a jury trial. The court continued the 

cases so Betts could present evidence in support of his recusal 

motion and so that the court could further research the topic 

of rescinding a jury trial waiver before making a decision. The 

cases were continued, and a hearing on Betts’ multiple motions 

was set for June 4.

On June 4, 2020, the parties reported to the court that a 

plea agreement had been reached involving both cases. In 

case No. A-22-094, Betts agreed to enter a plea of guilty 

or no contest to two counts of first degree sexual assault of 

a child, one count of possession of a firearm by a prohibited person, and three counts of visual depiction of sexually 
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Cite as 31 Neb. App. 737

explicit conduct. The State agreed to dismiss two counts of 

first degree sexual assault of a child, seven counts of visual 

depiction of sexually explicit conduct, and one count of possession of a controlled substance. In case No. A-22-096, Betts 

agreed to enter a plea of guilty or no contest to three counts 

of first degree sexual assault of a child and three counts of 

visual depiction of sexually explicit conduct. The State agreed 

to dismiss the remaining counts. Additionally, as a part of the 

plea agreement, the State agreed to jointly recommend that 

the sentence would allow Betts to be eligible for parole at the 

age of 70 and that the victims in both cases would be allowed 

to speak at sentencing. The court then had the following discussion with Betts:

[THE COURT:] Do you understand that if you plead 

guilty or no contest you would not have a trial in either 

case and you would be giving up the rights that I’ve just 

explained?

[BETTS:] Yes, I do.

THE COURT: Is it your intention to give up those 

rights and enter into the plea agreement?

[BETTS:] Yes.

THE COURT: You will retain your right to an attorney, 

your right to a reasonable bail, and your right to appeal 

any final decision of this Court.

If you are not a United States citizen, you are hereby 

advised that conviction of the offenses for which you 

have been charged may have the consequence of removal 

from the United States or denial of naturalization pursuant 

to the laws of the United States.

If I find that someone has suffered a loss as a result of 

your crime, such as medical bills or something like that, 

and I find that you have the ability to pay, the Court could 

order you to pay restitution to reimburse the victims. Do 

you understand that?

[BETTS:] Yes, I do.
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STATE V. BETT

Cite as 31 Neb. App. 737

THE COURT: A guilty or no contest plea to these 

charges will cause you to be subject to the Nebraska Sex 

Offender Registration Act for the period of the rest of 

your life during which you would have lifetime registration and lifetime supervision. It also would subject you 

to the Nebraska Sex Offender Commitment Act. Except 

during any period of incarceration, you would be required 

to register with the county sheriff where you reside within 

three working days of your release from incarceration 

and, again, you would have to report any changes in your 

address for the rest of your life. If you fail to register, you 

could be convicted of another crime.

At the end of your period of incarceration, if it is determined that you qualify as a dangerous sex offender, you 

could be civilly committed for treatment until such time 

as you are determined to be ready for release.

Do you understand that?

[BETTS:] Yes, I do.

THE COURT: . . . Betts, have you had enough time to 

talk to your attorney about these two cases?

[BETTS:] Yes.

THE COURT: Have you told your attorney everything 

you know about these cases and discussed all possible 

defenses you might have?

[BETTS:] Yes.

THE COURT: Do you want any more time to talk to 

your attorney before you change your pleas?

[BETTS:] No.

THE COURT: Are you satisfied with the job that your 

attorney has done for you on these two cases?

[BETTS:] Yeah. I mean, yes.

The court found that Betts entered his pleas of no contest 

freely, voluntarily, knowingly, and intelligently. All motions 

filed in April 2019 were withdrawn.

Factual bases provided for each of the cases explained that 

the Nebraska State Patrol was notified by “Google” about 
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Cite as 31 Neb. App. 737

an account that had inappropriate conduct on it in November 

2018. The account was found to belong to Betts and contained 

nude photographs of a minor. Investigators interviewed Betts 

in Auburn, Nebraska, about the account. During this interview, 

Betts admitted that he had sexual contact with a minor and had 

taken photographs of that contact. Betts identified his victim 

as M.C., born in 2004, with whom he lived with as a parenting figure due to his relationship with her mother. After getting 

a search warrant for Betts’ electronic media information and 

residence, investigators found numerous photographs of pornographic material, including pornographic material involving 

minors and, specifically, pornographic photographs of M.C., 

on a laptop found in his personal shop, on a hard drive, and on 

several cell phones belonging to Betts. Through an investigation, law enforcement officers discovered that the photographs 

also featured L.M.I., another minor who had lived in the home 

with Betts. L.M.I., born in 2006, was Betts’ stepdaughter from 

a previous relationship.

M.C. was interviewed at a child advocacy center. She told 

investigators that Betts had sexually assaulted her multiple 

times when M.C. was 12 and 13 years old and that he took 

photographs of the assaults. L.M.I. was also interviewed at 

the child advocacy center. She reported that she was first 

sexually assaulted by Betts when she was 7 years old in 2013. 

L.M.I. then went to live with another parent until 2018. L.M.I. 

reported that when she returned to Betts’ home in 2018, he 

again sexually assaulted her on several occasions. She also 

stated that Betts took photographs of the sexual assaults.

A handgun was found during a search of Betts’ home. 

Witnesses informed officers that the gun belonged to Betts. 

Officers discovered that Betts was a convicted felon who was 

prohibited from owning a gun. Through all the events reported, 

Betts was over the age of 19, and all the events occurred in 

Nemaha County, Nebraska. As part of the factual basis, the 

State offered three of the pornographic photographs of M.C. 

and six of the pornographic photographs of L.M.I. found 
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STATE V. BETT

Cite as 31 Neb. App. 737

in Betts’ possession. Some of these photographs depicted M.C. 

and L.M.I. involved in sexual acts with adult male genitalia. 

The court received all exhibits under seal.

The court accepted the factual bases, and it found that Betts 

understood the charges, the possible penalties, and his rights 

and that he waived those rights freely, voluntarily, knowingly, 

and intelligently. A presentence investigation, including a sex 

offender specific evaluation and victim impact statements, 

was ordered.

At the sentencing hearing on August 11, 2020, both M.C. 

and L.M.I. provided remarks to the court. The court reviewed 

and considered the circumstances surrounding the offenses, 

Betts’ criminal record, the sex offender specific evaluation, 

and the risk factors within the “LS/CMI index.” The court 

described the photographic exhibits from the factual bases as 

“sexual torture.” The court noted that Betts seemed to act as if 

he were the victim in this case, instead of taking responsibility. 

It was calculated that Betts had 632 days’ credit in case No. 

A-22-094 and 183 days’ credit in case No. A-22-096 for time 

served. Both cases involved a combination of Class IB and 

Class ID felonies. For each Class IB felony conviction, Betts 

was sentenced to 23 to 100 years’ imprisonment with a mandatory minimum of 15 years’ imprisonment. For each Class ID 

felony conviction, Betts was sentenced to a mandatory minimum 3 years to 10 years’ imprisonment. All sentences were 

ordered to run concurrently.

Betts filed these appeals following an order entitling him to 

postconviction relief in the form of a new direct appeal after 

trial counsel failed to perfect the appeals within 30 days of the 

imposition of his sentences.

ASSIGNMENTS OF ERROR

Betts assigns that his trial counsel was ineffective for (1) 

failing to file pretrial motions, (2) failing to depose key witnesses, and (3) exhibiting a general inadvertence that pressured 

Betts to enter into a plea agreement to resolve his cases.
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STATE V. BETT

Cite as 31 Neb. App. 737

STANDARD OF REVIEW

[1,2] Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of 

law, which turns upon the sufficiency of the record to address 

the claim without an evidentiary hearing or whether the claim 

rests solely on the interpretation of a statute or constitutional 

requirements. State v. Warner, 312 Neb. 116, 977 N.W.2d 

904 (2022). An appellate court determines as a matter of law 

whether the record conclusively shows that (1) a defense counsel’s performance was deficient or (2) a defendant was or was 

not prejudiced by a defense counsel’s alleged deficient per

formance. Id.

ANALYSIS

[3-6] To prevail on a claim of ineffective assistance of 

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

Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show 

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

this deficient performance actually prejudiced the defendant’s 

defense. State v. Lessley, 312 Neb. 316, 978 N.W.2d 620 

(2022). To show that counsel’s performance was deficient, 

the defendant must show counsel’s performance did not equal 

that of a lawyer with ordinary training and skill in criminal 

law. Id. To show prejudice under the prejudice component 

of the Strickland test, the defendant must demonstrate a 

reasonable probability that but for his or her counsel’s deficient performance, the result of the proceeding would have 

been different. State v. Lessley, supra. When a conviction is 

based upon a plea of no contest, the prejudice requirement 

for an ineffective assistance of counsel claim is satisfied if 

the defendant shows a reasonable probability that but for the 

errors of counsel, the defendant would have insisted on going 

to trial rather than pleading no contest. State v. Anderson, 305 

Neb. 978, 943 N.W.2d 690 (2020). A reasonable probability 

is a probability sufficient to undermine confidence in the outcome. Id.
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STATE V. BETT

Cite as 31 Neb. App. 737

[7-9] 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 perform

ance which is known to the defendant or is apparent from the 

record; otherwise, the issue will be procedurally barred in a 

subsequent postconviction proceeding. State v. Warner, supra. 

The fact that an ineffective assistance of counsel claim is 

raised on direct appeal does not necessarily mean that it can 

be resolved. Id. The determining factor is whether the record 

is sufficient to adequately review the question. Id. 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. State v. Blake, 310 Neb. 769, 969 

N.W.2d 399 (2022).

Failure to File Pretrial Motions 

and General Inadvertence.

Betts’ first assignment of error claims his trial counsel 

was ineffective “by failing to adequately prepare for trial 

by utilizing pre-trial motions.” His third assignment of error 

alleges trial counsel was ineffective by “demonstrating overall 

inadvertence that caused legitimate concerns about . . . Betts’ 

likelihood of success at trial.” The Nebraska Supreme Court 

has held that when raising an ineffective assistance claim on 

direct appeal, an appellant must make specific allegations of 

the conduct that he or she claims constitutes deficient performance by trial counsel. State v. Mrza, 302 Neb. 931, 926 

N.W.2d 79 (2019). An appellate court should not have to 

scour the argument section of an appellant’s brief to extract 

specific allegations of deficient performance. Id. Assignments 

of error on direct appeal regarding ineffective assistance of 

trial counsel must specifically allege deficient performance. 

Id. Betts’ first and third assignments of error both fail to meet 

this requirement.
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STATE V. BETT

Cite as 31 Neb. App. 737

Betts broadly asserts that his trial counsel was ineffective 

for failing to file pretrial motions. In his assignments of error, 

Betts fails to specify which pretrial motions his trial counsel 

should have filed. We will not scour the argument section of 

Betts’ brief in search of the answer. As a result, Betts’ first 

assignment of error is insufficiently stated to allow appellate review.

Similarly, Betts’ assignment that his trial counsel demonstrated “overall inadvertence” is little more than an alternative 

method of generally stating that trial counsel was ineffective. 

This assignment does not specify how trial counsel was inadvertent or what alleged inadvertent acts or omissions were 

deficient. Again, we will not scour the argument section to 

search for the specific acts that are claimed to be deficient. 

Betts’ third assignment of error is insufficiently stated to allow 

appellate review.

Failure to Depose Witnesses.

[10] Betts also claims that his trial counsel was ineffective 

for failing to take depositions of key witnesses. This claim is 

sufficiently pled, but cannot be resolved on the record before 

us. When the claim of ineffective assistance on direct appeal 

involves uncalled witnesses, vague assertions that counsel was 

deficient for failing to call “witnesses” are little more than 

placeholders and do not sufficiently preserve the claim. State v. 

Blake, supra. However, the appellate court does not need specific factual allegations as to what the person or persons would 

have said, which will not be found in the appellate record. Id.

It is sufficient that appellate counsel give on direct appeal the 

names or descriptions of any uncalled witnesses forming the 

basis of a claim of ineffective assistance of trial counsel. Id.

Such specificity is necessary so that the postconviction court 

may later identify whether a particular claim of failing to 

investigate a witness is the same one that was raised on direct 

appeal. Id.
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Nebraska Court of Appeals Advance Sheets

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STATE V. BETT

Cite as 31 Neb. App. 737

In State v. Blake, 310 Neb. 769, 799, 969 N.W.2d 399, 

421-22 (2022), the Supreme Court noted that the defendant’s 

“assignment of error and supporting argument specified the 

names of the witnesses he claims that, if investigated, would 

have supported his innocence.” This statement, coupled with 

the court’s prior statement that “[i]t is sufficient that appellate counsel give on direct appeal the names or descriptions 

of any uncalled witnesses forming the basis of a claim of 

ineffective assistance of trial counsel,” id. at 798-99, 969 

N.W.2d at 421, leads us to conclude that in the scenario of 

failure to investigate, depose, or call witnesses, it is not critical 

that the uncalled witnesses be named or specifically identified in the assignment of error. We recognize that in Blake, 

the uncalled witnesses were named in the assignment of error 

and in the argument. Here, the undeposed witnesses were not 

named in an assignment of error. However, they were specifically named “on direct appeal” in the corresponding argument 

section. This argument section is clearly limited to this issue, 

and it readily identifies the witnesses that trial counsel did not 

depose. Therefore, we find that in this scenario, we are not in 

the position of scouring the record to try to define the nature of 

the ineffectiveness claim. Unlike the other two claims of ineffective assistance stated in appellant’s brief herein, this claim 

is readily discernible. See, also, State v. Roebuck, 31 Neb. App. 

67, 976 N.W.2d 218 (2022).

Betts asserts that trial counsel took the depositions of M.C. 

and M.C.’s mother but failed to take the depositions of any 

law enforcement officer, investigator, or forensic analyst who 

worked on the case. Betts then lists the names of 10 individuals that were named as witnesses and subpoenaed by the 

State but were not deposed by trial counsel. Trial counsel 

was granted leave by the court to depose these witnesses, but 

did not conduct the depositions prior to Betts’ entering into 

the plea agreement. Though Betts does not articulate what the 

depositions of these individuals would have produced, he has 
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Cite as 31 Neb. App. 737

identified the witnesses he asserts trial counsel should have 

deposed with enough specificity to preserve his claim for 

postconviction relief. Because trial counsel’s decision not to 

depose these individuals is a matter of trial strategy, we cannot 

resolve this issue with the record before us.

CONCLUSION

For the reasons stated above, we affirm Betts’ convictions 

and sentences.

Affirmed.