- 296 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

State of Nebraska, appellee, v. 

James M. Briggs, Jr., appellant.

___ N.W.3d ___

Filed August 2, 2024. No. S-23-521.

1. Criminal Law: Convictions: Evidence: Appeal and Error. When 

reviewing a criminal conviction for sufficiency of the evidence, whether 

the evidence is direct, circumstantial, or a combination thereof, the 

standard is the same: An appellate court does not resolve conflicts in the 

evidence, pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. The relevant question is whether, 

after viewing the evidence in the light most favorable to the prosecution, 

any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.

2. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

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

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

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

ineffective assistance of 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 defend

ant was or was not prejudiced by a defense counsel’s alleged deficient 

performance.

5. Jury Instructions: Appeal and Error. The failure to object to a jury 

instruction after it has been submitted to counsel for review precludes 

raising an objection on appeal absent plain error.

Nebraska Supreme Court Online Library

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

08/02/2024 09:07 AM CDT
- 297 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

6. Criminal Law: Motions to Dismiss: Directed Verdict. In a criminal 

case, a motion to dismiss at the close of all the evidence has the same 

legal effect as a motion for a directed verdict. And a motion for a 

directed verdict is simply another name for a motion for judgment of 

acquittal. All three motions assert that the defendant should be acquitted 

of the charge because there is no legally sufficient evidentiary basis on 

which a reasonable jury could return a guilty verdict.

7. Motions to Dismiss: Directed Verdict: Convictions. Whether styled 

as a motion to dismiss, a motion for directed verdict, or a motion 

for judgment of acquittal, such a motion made at the close of all the 

evidence challenges the sufficiency of the State’s evidence to sustain 

the conviction.

8. Effectiveness of Counsel: Appeal and Error. 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. Effectiveness of Counsel: Proof. 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.

10. ____: ____. To show prejudice from counsel’s deficient performance, 

the defendant must demonstrate a reasonable probability that but for 

counsel’s deficient performance, the result of the proceeding would have 

been different.

11. Criminal Law: Statutes. When a criminal statute describes an offense 

by using common-law terms without further definition, the offense is to 

be construed with reference to the common law.

12. Battery: Words and Phrases. The phrase “[u]nlawfully strikes or 

wounds another” in Neb. Rev. Stat. § 28-309(1)(c) (Reissue 2016) is 

referring to common-law battery.

13. Criminal Law: Battery: Words and Phrases. In the criminal context, 

common-law battery must be “willful,” meaning the contact was made 

intentionally, recklessly, or with criminal negligence; accidental or inadvertent contact is not sufficient.

14. Jury Instructions: Appeal and Error. All the jury instructions must be 

read together, and if, taken as a whole, they correctly state the law, are 

not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.

15. Criminal Law: Statutes: Sentences: Legislature. Where a criminal 

statute is amended by mitigating the punishment, after the commission 

of a prohibited act but before final judgment, the punishment is that 
- 298 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

provided by the amendatory act unless the Legislature has specifically 

provided otherwise.

Appeal from the District Court for Lancaster County, Kevin 

R. McManaman, Judge. Affirmed in part, and in part sentence 

vacated and cause remanded with directions.

F. Matthew Aerni, of Aerni Law, L.L.C., for appellant.

Michael T. Hilgers, Attorney General, and Jacob M. 

Waggoner for appellee.

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

Papik, and Freudenberg, JJ.

Stacy, J.

In this direct appeal, James M. Briggs, Jr., challenges his 

convictions and sentences for two counts of second degree 

assault. He contends the jury instructions omitted a material 

element of the offenses, and he seeks resentencing based on 

statutory amendments that became effective after the sentencing hearing but while this direct appeal was pending. We 

affirm his convictions but remand the matter for resentencing.

I. BACKGROUND

1. Information

Briggs was charged by information in the district court for 

Lancaster County with two counts of second degree assault, 

in violation of Neb. Rev. Stat. § 28-309 (Reissue 2016), both 

Class IIA felonies. In Nebraska, the offense of second degree 

assault is committed if one

(a) Intentionally or knowingly causes bodily injury to 

another person with a dangerous instrument;

(b) Recklessly causes serious bodily injury to another 

person with a dangerous instrument; or

(c) Unlawfully strikes or wounds another (i) while 

legally confined in a jail or an adult correctional or 

penal institution, (ii) while otherwise in legal custody of 
- 299 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

the Department of Correctional Services, or (iii) while 

committed as a dangerous sex offender under the Sex 

Offender Commitment Act. 1

Both counts charged Briggs using the language of 

§ 28-309(1)(c)(i) and alleged that he “did unlawfully strike or 

wound [the victim] while legally confined in a jail or an adult 

correctional or penal institution.” The charges were based on 

an incident that occurred on April 21, 2021, while Briggs was 

confined in what was then called the Lincoln Correctional 

Center (LCC). The alleged victims were two LCC employees. 

The information was subsequently amended to include an allegation that Briggs is a habitual criminal.

Briggs entered pleas of not guilty, and the matter proceeded 

to trial.

2. Trial Evidence

A jury trial was held in May 2023, and both victims testified. One victim, LCC employee Parwiz Masoodi, testified 

that on April 21, 2021, he was working at LCC on unit “C,” 

which housed “mental health inmates.” Briggs was one of the 

inmates in the unit. Masoodi’s job involved direct contact with 

inmates, and he was responsible for escorting them through 

the facility, including escorting inmates to and from a yard 

area for exercise.

Briggs wanted to exercise his yard time that day, so Masoodi 

escorted him through the facility and to the padlocked door 

that opened into the yard. Masoodi testified that as he was 

opening the padlock, Briggs began punching him. Masoodi 

told Briggs to stop and called for help, but Briggs continued 

punching. During the attack, which was captured on LCC’s 

internal security cameras, Masoodi estimated he was punched 

in his face and head approximately 15 to 20 times.

The security camera footage was received into evidence 

and played for the jury. The footage shows Briggs using his 

1 § 28-309(1).
- 300 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

hands and fists to attack Masoodi as they approach the yard. 

It then shows Masoodi restraining Briggs by bringing him to 

the ground while additional LCC employees arrive to assist in 

restraining Briggs.

Another victim, LCC employee Desaray Kerns, testified 

that on April 21, 2021, she was working as a case manager 

on unit “C” at LCC and was Masoodi’s supervisor. She heard 

an inmate yell that a staff member was being assaulted, and 

she observed that Masoodi had Briggs on the ground and was 

trying to control him. Kerns attempted to assist by controlling 

Briggs’ lower body, and when she did, Briggs kicked her at 

least twice in the face.

Both Masoodi and Kerns were photographed after the incident, and the photographs were received into evidence. Both 

Masoodi and Kerns sustained bruising and received emergency 

medical care after the incident, but there is no claim that either 

sustained a serious bodily injury.

3. Motion to Dismiss

After the State rested, Briggs moved at a sidebar to dismiss 

both counts. The entirety of his oral motion was “defense 

would move to dismiss both counts against . . . Briggs on 

the grounds that the State has failed to produce a prima facie 

case as to each charge — as to all of the elements of these 

charges.” The district court overruled the motion, stating it 

had “been attentive in the trial thus far and believe[d] the 

State ha[d] established sufficient evidence” to submit the case 

to the jury. Briggs waived his right to testify and rested without introducing any evidence.

4. Jury Instructions

Jury instruction No. 4 set out the material elements of the 

crime and stated in relevant part:

Regarding the crime of Assault in the Second Degree, 

the State must prove beyond a reasonable doubt that 

[Briggs]:
- 301 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

1. Did intentionally or knowingly strike or wound [the 

victim];

2. He did so on or about April 21, 2021, in Lancaster 

County, Nebraska; and

3. He did so while legally confined in a jail or an adult 

correctional or penal institution, or while otherwise in 

legal custody of the Department of Correctional Services.

At the jury instruction conference, Briggs objected to this 

instruction and asked the court to substitute his proposed 

elements instruction, which provided the State had to prove 

beyond a reasonable doubt the following:

1. [Briggs] struck or wounded another;

2. That he did so intentionally or knowingly;

3. That he did so when [he] was legally confined in 

jail or adult correctional or penal institution or when he 

was otherwise in the legal custody of the Department of 

Correctional Services; and

4. That he did so on or about April 21, 2021, in 

Lancaster County, Nebraska. 

The court stated that it had reviewed Briggs’ proposed elements instruction and had already incorporated some of it 

into instruction No. 4. It otherwise denied Briggs’ request to 

substitute his proposed elements instruction.

5. Verdict and Sentencing

The jury returned a guilty verdict on both counts of second 

degree assault. The court accepted the verdicts, entered judgment, and scheduled a sentencing hearing for July 6, 2023.

At sentencing, the State offered certified copies of Briggs’ 

prior convictions for the purpose of enhancement, and the 

district court received the exhibits over Briggs’ objections. 

The district court found that Briggs was a habitual criminal 

and, relying on Neb. Rev. Stat. § 29-2221 (Reissue 2016), 

sentenced Briggs on each conviction to an indeterminate term 

of 10 to 12 years’ imprisonment, with a 10-year mandatory minimum on both. It ordered the sentences to be served 
- 302 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

consecutively to each other and to the sentence Briggs was 

already serving.

Briggs filed this timely appeal through newly appointed 

appellate counsel. We moved the appeal to our docket on our 

own motion.

II. ASSIGNMENTS OF ERROR

Briggs assigns, restated and consolidated, that the trial court 

erred in (1) giving jury instruction No. 4 and (2) overruling 

his motion to dismiss. He also asserts that his trial counsel 

was ineffective in failing to object to instruction No. 4 and in 

failing to advise the trial court of amendments to the habitual 

criminal statute.

III. STANDARD OF REVIEW

[1] When reviewing a criminal conviction for sufficiency 

of the evidence, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An 

appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. 2 The relevant question 

is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. 3

[2] Whether jury instructions are correct is a question of law, 

which an appellate court resolves independently of the lower 

court’s decision. 4

[3,4] Whether a claim of ineffective assistance of 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 

2 State v. Npimnee, 316 Neb. 1, 2 N.W.3d 620 (2024).

3 Id.

4 Id.
- 303 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

requirement. 5 In reviewing a claim of ineffective assistance of 

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 defend

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

deficient performance. 6

IV. ANALYSIS

1. Challenge to Elements Instruction

Briggs was charged with two counts of violating 

§ 28-309(1)(c)(i), which provides that a person commits the 

crime of second degree assault if he or she “[u]nlawfully 

strikes or wounds another . . . while legally confined in a 

jail or an adult correctional or penal institution.” In his first 

assignment of error, Briggs argues that the elements instruction 

given to the jury was improper because (1) it did not expressly 

instruct the jury that “an essential element of the seconddegree assault was ‘unlawful’ action” 7 and (2) it did not define 

“‘unlawful’” action. 8

[5] But Briggs did not object to the elements instruction on 

either of these grounds during the instruction conference. Nor 

did his proposed elements instruction include reference to the 

term “unlawfully” or purport to define that term. The failure 

to object to a jury instruction after it has been submitted to 

counsel for review precludes raising an objection on appeal 

absent plain error. 9 We therefore conclude that Briggs has not 

preserved this argument for appellate review, and we decline 

to review it for plain error. We do, however, address the substance of this argument later in the opinion when examining 

Briggs’ claim of ineffective assistance of trial counsel.

5 Id.

6 Id.

7 Brief for appellant at 18.

8 Id.

9 State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016).
- 304 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

2. Motion to Dismiss/Insufficiency 

of Evidence

[6,7] In his second assignment of error, Briggs argues the 

trial court erred in denying his motion to dismiss at the close 

of the State’s evidence. In a criminal case, a motion to dismiss 

at the close of all the evidence has the same legal effect as a 

motion for a directed verdict. 10 And a motion for a directed 

verdict is simply another name for a motion for judgment of 

acquittal. 11 All three motions assert that the defendant should 

be acquitted of the charge because there is no legally sufficient 

evidentiary basis on which a reasonable jury could return a 

guilty verdict. 12 Thus, however styled, this type of motion 

made at the close of all the evidence challenges the sufficiency 

of the State’s evidence to sustain the conviction. 13

Briggs contends that, based on the language of 

§ 28-309(1)(c), “unlawful” 14 conduct is a material element of 

the charged crimes, and he argues the State failed to prove this 

element. But the appellate record demonstrates that the trial 

court was unaware of his contention that “[u]nlawfully” was 

a material element of the crimes charged. That is so because 

when Briggs moved to dismiss, he made only a general argument that the evidence was insufficient to demonstrate a prima 

facie case on all the elements. Briggs did not argue that the 

term “unlawfully” was a material element of the offense, 

nor did he argue—to either the court or the jury—that there 

was insufficient evidence showing his conduct was unlawful. Instead, Briggs’ closing argument referred the jury to the 

“intentionally or knowingly” language included by the court 

in instruction No. 4, and Briggs argued the State’s evidence 

was insufficient to prove beyond a reasonable doubt that he 

10 State v. Dixon, 306 Neb. 853, 947 N.W.2d 563 (2020). 

11 Id. 

12 Id. 

13 Id. 

14 Brief for appellant at 15.
- 305 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

intentionally or knowingly struck or wounded Masoodi and 

Kerns. The jury rejected that argument.

Because Briggs presents an argument on appeal that was 

not presented to, considered by, or ruled upon by the trial 

court in connection with his motion to dismiss, he has failed 

to preserve the issue for appellate review. 15 As explained next, 

however, we address the substance of this argument when considering Briggs’ claim of ineffective assistance of trial counsel.

3. Ineffective Assistance Claims

Briggs argues that his trial counsel was ineffective in two 

respects: (1) failing to object to instruction No. 4 and (2) failing to advise the trial court of amendments to the habitual 

criminal statute at the time of sentencing. Before addressing these claims of ineffective assistance, we recall the general principles that govern our review of such claims on 

direct appeal.

[8-10] 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. 16 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. 17 To show prejudice from counsel’s deficient perform

ance, the defendant must demonstrate a reasonable probability 

that but for counsel’s deficient performance, the result of the 

proceeding would have been different. 18

15 E.g., de Vries v. L & L Custom Builders, 310 Neb. 543, 968 N.W.2d 64 

(2021) (appellate court will not consider issue on appeal that was not 

presented to or passed upon by trial court).

16 State v. Clark, 315 Neb. 736, 1 N.W.3d 487 (2024).

17 State v. Turner, 315 Neb. 661, 998 N.W.2d 783 (2024).

18 Id.
- 306 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

With these principles in mind, we analyze each of Briggs’ 

ineffective assistance claims.

(a) Claim Related to Elements Instruction

Briggs argues his trial counsel performed deficiently 

because (1) he did not object to instruction No. 4 on the 

ground that it failed to instruct that “an essential element of 

the second-degree assault was ‘unlawful’ action” 19 and (2) he 

did not request an instruction defining “‘unlawful’” action. 20

Briggs contends he was prejudiced thereby because instruction No. 4, as given, allowed the jury to convict him of second degree assault “without requiring the jury to consider an 

essential element of the charged offense.” 21

We understand Briggs to argue that because § 28-309(1)(c) 

proscribes “[u]nlawfully” striking or wounding another, the 

State was required to prove that his conduct violated some 

other law, and he contends the State could have done so by 

“something so basic as [introducing] a certified copy of a 

statute criminalizing disturbing the peace.” 22 We think Briggs’ 

singular focus on the term “unlawfully” is misplaced.

Section 28-309(1)(c) uses the phrase “[u]nlawfully strikes 

or wounds,” and we consider the entire statutory phrase in 

context. 23 In State v. Levell,

 24 we recognized that this statutory language is a codification of “the basic law of assault 

and battery.” Similarly, in Wagner v. State,

 25 we explained 

19 Brief for appellant at 18.

20 Id. 

21 Id. at 23.

22 Id. at 17. 

23 McGill Restoration v. Lion Place Condo. Assn., 313 Neb. 658, 664, 986 

N.W.2d 32, 37 (2023) (reciting rule that when construing statutes, “our 

focus is, as always, identifying the plain and ordinary meaning of the 

statutory language, understood in context, and then giving effect to that 

meaning”).

24 State v. Levell, 181 Neb. 401, 404, 149 N.W.2d 46, 49 (1967).

25 Wagner v. State, 43 Neb. 1, 3, 61 N.W. 85, 86 (1894).
- 307 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

that the phrase “‘unlawfully strike or wound another’” is 

“substantially the common[-]law definition of a battery.”

[11,12] It is well settled that when a criminal statute 

describes an offense by using common-law terms without 

further definition, the offense is to be construed with reference to the common law. 26 We apply this principle to construe the phrase “[u]nlawfully strikes or wounds another” in 

§ 28-309(1)(c), and conclude it is referring to common-law 

battery.

[13] Nebraska has generally defined the elements of 

common-law battery as “intentional, unlawful physical violence or contact inflicted on a human being without . . . 

consent.” 27 At common law, the crime of battery “consisted 

of ‘the unlawful application of force to the person of another,’ 

including an offensive touching.” 28 Common-law battery thus 

requires “unlawful” 29 or “offensive” 30 contact, which is generally understood to mean intentional physical contact that 

is not consented to and is unwarranted by the social usages 

prevalent at the time and place at which the contact is inflicted. 31 Offensive conduct violates a reasonable sense of personal dignity. 32 We have generally described this as contact 

that is “‘against the wish and will’” of the person contacted. 33

26 Id.

27 State v. Auman, 232 Neb. 341, 344, 440 N.W.2d 254, 257 (1989). 

28 U.S. v. Delis, 558 F.3d 177, 180 (2d Cir. 2009) (quoting 2 Wayne R. 

LaFave, Substantive Criminal Law § 16.2).

29 Id.

30 See 92 Am. Jur. Trials 1, § 16 (2004). See, also, Perez Hernandez v. 

U.S., 286 A.3d 990 (D.C. App. 2022); United States v. Alvarez-Murillo, 

No. EP:23-CR-01095-ATB, 2024 WL 1146139 at *4 (W.D. Tex. Mar. 14, 

2024).

31 See id.

32 92 Am. Jur. Trials, supra note 30. See, also, Alvarez-Murillo, supra note 

30; Auman, supra note 27.

33 Schleif v. State, 131 Neb. 875, 877, 270 N.W. 510, 511 (1936).
- 308 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

In the criminal context, common-law battery must be “‘willful,’” meaning the contact was made intentionally, recklessly, 

or with criminal negligence; accidental or inadvertent contact 

is not sufficient. 34

[14] All the jury instructions must be read together, and if, 

taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings 

and the evidence, there is no prejudicial error necessitating 

reversal. 35 Here, the jury was instructed that in order to convict Briggs of second-degree assault, it had to find beyond a 

reasonable doubt that “[Briggs] [d]id intentionally or knowingly strike or wound [the victim].” A separate instruction 

defined “intentionally” to mean “willfully or purposefully, 

and not accidentally or involuntarily,” and defined “knowingly” to mean “with knowledge or perception of facts requisite to make up the crime.” We conclude these instructions 

drew appropriately from the common-law definition of battery 

and described the elements of the offense in the language of 

the statute. 36

Because the elements instruction and related definitions 

correctly stated the law and encompassed all the material elements of the charged crime, the record on appeal is sufficient 

for us to conclusively determine that Briggs’ trial counsel was 

not deficient either in failing to object to the elements instruction or in failing to request a separate definition of the term 

“unlawfully.”

(b) Claim Related to Habitual Criminal Statute

Briggs’ second claim of ineffective assistance is premised 

on amendments made to the habitual criminal statute in 

34 See Alvarez-Murillo, supra note 30, 2024 WL 1146139 at *2. See, also, 

Perez Hernandez, supra note 30; Auman, supra note 27; Schleif, supra

note 33; 92 Am. Jur Trials, supra note 30.

35 State v. Tvrdy, 315 Neb. 756, 1 N.W.3d 479 (2024).

36 See State v. Swindle, 300 Neb. 734, 744, 915 N.W.2d 795, 805 (2018) 

(“[i]n giving instructions to the jury, it is proper for the court to describe 

the offense in the language of the statute”).
- 309 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

2023, which we discuss in more detail below. Briggs argues 

that his trial counsel was deficient for failing to bring these 

amendments to the attention of the trial court at the time of 

sentencing and for failing to request a sentence in conform

ity with the amendments. He argues that he was prejudiced 

by this deficient performance because the mandatory minimum term required by the amended habitual criminal statute 

is shorter than the mandatory minimum term imposed by 

the court.

Briggs was sentenced on July 6, 2023, and his notice of 

appeal was filed the next day. At the time his sentences were 

imposed, the applicable habitual criminal statute was § 29-2221 

(Reissue 2016). Briggs does not contend that his sentences 

failed to comply with the provisions of § 29-2221 as it existed 

on the date he was sentenced.

However, Briggs correctly notes that effective September 2, 

2023, § 29-2221 was amended to add new provisions in subparagraph (1)(c). 37 Those new provisions of § 29-2221 (Supp. 

2023), quoted below, effectively reduce the mandatory minimum term of a habitual criminal enhancement from 10 years to 

3 years when certain criteria are met:

(1) Whoever has been twice convicted of a crime, 

sentenced, and committed to prison, in this or any other 

state or by the United States or once in this state and 

once at least in any other state or by the United States, 

for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to 

be a habitual criminal and shall be punished by imprisonment in a Department of Correctional Services adult 

correctional facility for a mandatory minimum term of 

ten years and a maximum term of not more than sixty 

years, except that:

. . . .

37 See 2023 Neb. Laws, L.B. 50.
- 310 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

(c) If the felony committed and at least one of the prior 

felony convictions do not involve sexual contact, sexual 

penetration, the threat to inflict serious bodily injury or 

death on another person, the infliction of serious bodily 

injury on another person, a deadly or dangerous weapon, 

or a firearm, the mandatory minimum term shall be three 

years and the maximum term not more than the maximum 

term for the felony committed or twenty years, whichever 

is greater. For this subdivision (1)(c) to apply, no prior 

felony conviction may be a violation described in subdivision (1)(a) of this section[.]

On appeal, Briggs contends that he meets the requirements 

set out in subsection (c) of § 29-2221(1), and the State does 

not dispute that contention. As stated, Briggs argues that his 

counsel was ineffective because he failed to bring the amended 

provisions of § 29-2221(1)(c) to the attention of the sentencing court and he failed to request sentences in conformity with 

the amendments. Briggs also argues it was plain error for the 

trial court not to sentence him under those amended provisions. 

We disagree.

First, we soundly reject Briggs’ suggestion that the trial 

court plainly erred in not sentencing him under the amended 

version of § 29-2221. It is undisputed that on the date of 

Briggs’ sentencing hearing, the amendments to § 29-2221 were 

not yet in effect. The trial court properly utilized the habitual 

criminal statute in effect at the time of sentencing, imposing 

sentences that were correct under that statute.

We also reject Briggs’ argument that his trial counsel was 

deficient because “[a]t sentencing, trial counsel did not argue 

the changes to Neb. Rev. Stat. [§] 29-2221 . . . limited the 

mandatory minimum sentence on each count of the amended 

information to a maximum mandatory minimum of 3 years.” 38

Because the amended provisions in § 29-2221(1)(c) had not 

yet become effective, defense counsel was not deficient in 

38 Brief for appellant at 23.
- 311 -

Nebraska Supreme Court Advance Sheets

317 Nebraska Reports

STATE V. BRIGG

Cite as 317 Neb. 296

failing to argue that the provisions applied to Briggs at the 

time of his sentencing hearing, and Briggs has not asserted or 

argued that counsel was deficient in failing to seek a continuance of the sentencing hearing to a date after the amendments 

became effective.

[15] That said, we conclude that under the circumstances 

presented here, the law requires that we remand this matter 

for resentencing under the version of § 29-2221 currently in 

effect. In State v. Randolph,

 39 we adopted the rule that “where 

a criminal statute is amended by mitigating the punishment, 

after the commission of a prohibited act but before final judgment, the punishment is that provided by the amendatory act 

unless the Legislature has specifically provided otherwise.”

The State agrees the Randolph rule applies here because the 

amendment to § 29-2221 mitigated Briggs’ punishment, the 

Legislature did not specifically provide that the amendatory 

act was not to apply in cases that had not yet reached final 

judgment, and no final judgment had been entered in this matter. 40 We therefore vacate Briggs’ sentences and remand the 

cause for resentencing under the current version of § 29-2221.

V. CONCLUSION

For the foregoing reasons, we affirm Briggs’ convictions but 

vacate the sentences and remand the cause for resentencing 

under the version of § 29-2221 currently in effect.

Affirmed in part, and in part sentence vacated 

and cause remanded with directions.

39 State v. Randolph, 186 Neb. 297, 301-02, 183 N.W.2d 225, 228 (1971).

40 See, e.g., Shuck v. Jacob, 250 Neb. 126, 548 N.W.2d 332 (1996) 

(recognizing criminal conviction and sentence not considered final 

judgments until after appeal); State v. Schrein, 247 Neb. 256, 526 N.W.2d 

420 (1995) (same).