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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. TIMOTHY

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.

MATTHEW J. TIMOTHY, APPELLANT.

Filed September 19, 2023. No. A-23-345.

Appeal from the District Court for Richardson County: JULIE D. SMITH, Judge. Affirmed.

Timothy S. Noerrlinger for appellant.

Michael T. Hilgers, Attorney General, and Erin E. Tangeman, and Emily Doll, Senior 

Certified Law Student, for appellee.

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

MOORE, Judge.

INTRODUCTION

Matthew J. Timothy appeals from his plea-based conviction in the district court for 

Richardson County for two counts of contributing to the delinquency of a child and two counts of 

procuring alcoholic liquor for a minor. Timothy asserts that the district court abused its discretion 

in imposing excessive sentences and that he received ineffective assistance of counsel. We affirm.

STATEMENT OF FACTS

On September 9, 2022, the State charged Timothy by Information with two counts of 

manufacture, distribute, deliver, or possess with intent to manufacture, distribute, deliver a 

controlled substance (marijuana) to a minor, a Class II felony; two counts of contributing to the 

delinquency of a child, a Class I misdemeanor; and two counts of procuring alcoholic liquor for a 

minor, a Class I misdemeanor.
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At an arraignment hearing on September 13, 2022, Timothy’s trial counsel noted that he 

had filed a motion for discovery, which was granted by the district court. Timothy’s discovery 

motion does not appear in our record on appeal. At a pretrial hearing on October 11, Timothy’s 

trial counsel informed the court that though a plea offer had been made by the State, he had only 

just received discovery. Timothy’s trial counsel requested a 30-day continuance so that he could 

review the discovery with Timothy in detail. The court granted the motion, and the matter was 

continued until November 8. Timothy’s trial counsel also motioned to depose A.S. and N.S., who 

were involved in Timothy’s charges of contributing to the delinquency of a child and procuring 

alcoholic liquor for a minor, which the court granted.

At a hearing on December 20, 2022, Timothy’s trial counsel informed the district court that 

a plea agreement had been reached, whereby Timothy would plead guilty to two counts of 

contributing to the delinquency of a child and two counts of procuring alcoholic liquor for a minor 

in return for the State’s dismissal of the two remaining counts. The State confirmed the details of 

the plea agreement and Timothy indicated that he wanted to proceed with the agreement.

The district court advised Timothy of his various rights that he would be waiving by 

entering a plea. Timothy affirmed he had sufficient time to discuss the case with his trial counsel, 

he was satisfied with the agreement his counsel had negotiated on his behalf, and that he did not 

need any additional time to speak with his counsel. The court allowed Timothy to withdraw his 

previous not guilty pleas and plead guilty to two counts of contributing to the delinquency of a 

child and two counts of procuring alcoholic liquor for a minor. Timothy also asserted that he was 

entering his pleas freely and voluntarily and that his pleas were not the result of any threats or 

promises.

The State asked the district court to take judicial notice of the affidavit for probable cause 

to establish a factual basis. The affidavit provided that on July 29, 2022, Officer Juan Ramirez was 

dispatched to a home in Falls City, Nebraska, in response to a call regarding child abuse 

allegations. Upon arrival Ramirez spoke with Rachel S., the mother of A.S. and N.S., who 

informed Ramirez that she had received Facebook messages from Timothy requesting to be 

reimbursed for his purchases of alcohol and marijuana for A.S. and N.S., who were 15 and 12 

years old, respectively. A.S. and N.S. presented Ramirez with cell phone videos of them drinking 

alcohol and smoking marijuana at Timothy’s residence. They also informed Ramirez that they both 

spent time with Timothy at his residence. A.S. provided Ramirez with Facebook messages from 

Timothy agreeing to purchase marijuana for her and N.S. Ramirez and another member of law 

enforcement then spoke with Timothy, who admitted to allowing “the girls” to come over to his 

residence with alcohol and marijuana.

The district court took judicial notice of the affidavit for probable cause and found that 

there was a sufficient factual basis to support Timothy’s guilty pleas. The court also found that 

Timothy understood the charges and possible penalties, that he understood his trial rights, and that 

he knowingly, intelligently, and voluntarily waived each of those rights. The court accepted 

Timothy’s pleas and found him guilty on the four counts and dismissed the remaining two charges 

on the State’s motion.

Sentencing was held on April 4, 2023. Timothy was sentenced to 180 days’ incarceration 

for each of the two counts of contributing to the delinquency of a child and the two counts of 
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procuring alcoholic liquor for a minor. The district court ordered all sentences to run concurrently 

with one another. Timothy was given credit for 8 days served.

Timothy appeals.

ASSIGNMENTS OF ERROR

Timothy assigns, restated, that (1) the district court abused its discretion in imposing 

excessive sentences, and (2) he received ineffective assistance of counsel.

STANDARD OF REVIEW

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

abuse of discretion by the trial court. State v. Hines, 313 Neb. 685, 985 N.W.2d 625 (2023).

Whether a claim of ineffective assistance of trial counsel may be determined on direct 

appeal is a question of law. State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020). 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. Id.

ANALYSIS

Excessive Sentence.

Timothy assigns that the sentences imposed by the district court were excessive and 

amounted to an abuse of discretion. Timothy was convicted of two counts of contributing to the 

delinquency of a child and two counts of procuring alcoholic liquor for a minor, both Class I 

misdemeanors, punishable by a maximum of 1 years’ imprisonment, a $1,000 fine, or both. See 

Neb. Rev. Stat. § 28-106(1) (Cum Supp. 2022). Timothy was sentenced to concurrent terms of 180 

days’ incarceration on all four Class I misdemeanors. Thus, his sentences were within the statutory 

range.

Nevertheless, Timothy argues that the sentences were excessive and that the district court 

failed to adequately consider all the relevant statutory factors, particularly his “rehabilitative needs, 

his age, his health, his general life circumstances, and his willingness to enter a no contest plea.”

Brief for appellant at 12. Timothy contends that his plea saved the State the expense of a trial and 

evidenced Timothy’s accepting responsibility for his actions. He also claims that the district court 

relied upon a pending criminal case charged after the instant case. Timothy argues that he could 

have received the benefits of probation or a much shorter period of incarceration.

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. Hines, 313 Neb. 685, 985 N.W.2d 625 (2023). When imposing a 

sentence, the sentencing court is to 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 amount of violence involved in the commission of the crime. Id. The sentencing court 

is not limited to any mathematically applied set of factors, but the appropriateness of the sentence 
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is necessarily a subjective judgment that includes the sentencing judge’s observations of the 

defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s 

life. State v. Greer, 312 Neb. 351, 979 N.W.2d 101 (2022).

The presentence investigation report (PSI) indicates that Timothy was 36 years old at the 

time of the offense, had completed high school and some college courses and had served in the 

United States Army from 2005 to 2009, including a deployment to Iraq for 11 months. In roughly 

2017, Timothy was diagnosed with depression, anxiety, schizophrenia, insomnia, and 

post-traumatic stress disorder. At the time of the PSI, Timothy was receiving Social Security 

disability benefits due to severe depression. The overall Level of Service/Case Management 

Inventory placed Timothy in the high risk category to reoffend.

Timothy reported that he first began consuming alcohol at age 16, and his criminal record 

reflects some alcohol-related offenses. In 2010 Timothy was arrested in Kansas for driving under 

the influence of alcohol or drugs and transporting an open container, for which he later completed 

a diversion program. In 2013, Timothy was sentenced in Nebraska to 6 months of probation for 

refusing to submit to a chemical test. His probation was later revoked, and Timothy was sentenced 

to 21 days in jail and a $500 fine. In 2014, Timothy was fined $200 in Nebraska for driving during 

a period of revocation. Also in 2014, Timothy was diagnosed with “alcohol dependence with 

physiological dependence” and his substance use evaluation recommended that he participate in 

8-12 outpatient substance abuse treatment sessions and attend Alcoholics Anonymous meetings 

with a sponsor. The officer conducting Timothy’s PSI was unable to confirm completion of the 

evaluation’s recommendations.

The PSI also noted that Timothy minimized his involvement in the present case. Timothy 

had repeatedly told law enforcement that he did not hurt anyone and that he wanted to be friends 

with the teenage girls to whom he had provided alcohol. At the time of the sentencing hearing, 

Timothy had pending charges from February 2023 of one count of “visual depict[ion]” of sexually 

explicit conduct and one count of possession of child pornography.

At sentencing, the district court stated that it had reviewed the PSI, which contained 

information related to all of the relevant statutory factors as well as the mitigating circumstances 

argued by Timothy. The district court noted that Timothy was not a suitable candidate for 

probation, considering his criminal history and that his term of probation was revoked in 2013. 

The court also noted the pending “serious charge” but acknowledged that Timothy had not been 

yet been convicted. The law invests a trial judge with a wide discretion as to the sources and types 

of information used to assist him or her in determining the sentence to be imposed within statutory 

limits. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). Further, a sentencing court in 

noncapital cases may consider a defendant’s unadjudicated misconduct in determining an 

appropriate sentence. State v. Alford, 6 Neb. App. 969, 578 N.W.2d 885 (1998).

Upon our review of the record, we can find no abuse of discretion in the sentences imposed. 

See State v. Hines, 313 Neb. 685, 985 N.W.2d 625 (2023). This assignment of error fails.

Ineffective Assistance of Trial Counsel Framework.

Timothy argues that his trial counsel was ineffective in two regards. Before addressing 

each claim, we set forth the general legal framework for ineffective assistance of counsel claims.
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To prevail on a claim of ineffective assistance of counsel, the defendant must show that 

counsel’s performance was deficient and that this deficient performance actually prejudiced his or 

her defense. State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022). To show that counsel’s 

performance was deficient, a defendant must show that counsel’s performance did not equal that 

of a lawyer with ordinary training and skill in criminal law. State v. Anderson, 305 Neb. 978, 943 

N.W.2d 690 (2020). 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. Id. A reasonable probability is a probability sufficient to undermine confidence in the 

outcome. Id. 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. Id.

When, as in this case, 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. State v. Mrza, 302 Neb. 

931, 926 N.W.2d 79 (2019). Once raised, an appellate court will determine whether the record on 

appeal is sufficient to review the merits of the ineffective performance claims. State v. Drake, 311 

Neb. 219, 971 N.W.2d 759 (2022). The record is sufficient if it establishes either that trial counsel’s 

performance was not deficient, that the appellant will not be able to establish prejudice as a matter 

of law, or that trial counsel’s actions could not be justified as a part of any plausible trial strategy. 

Id. Conversely, an ineffective assistance of counsel claim will not be addressed on direct appeal if 

it requires an evidentiary hearing. Id.

An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges 

deficient performance with enough particularity for (1) an appellate court to make a determination 

of whether the claim can be decided upon the trial record and (2) a district court reviewing a 

petition for postconviction relief to recognize whether the claim was brought before the appellate 

court. State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018). 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 Depose Witnesses.

Timothy claims that his trial counsel was ineffective for failing to take depositions of 

Rachel S. and other named material witnesses who would have “refuted claims made by A.S. and 

N.S. in their depositions regarding [Timothy’s] contact with them” and would have provided 

“mitigating information that could have been used to his benefit both in plea negotiations with the 

state and as evidence at his sentencing.” Brief for appellant at 15.

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 
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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.

Timothy asserts that trial counsel failed to take the depositions of several material witnesses 

and then lists the names of eight individuals that were endorsed as witnesses by the State but were 

not deposed by trial counsel. Trial counsel was granted leave by the district court to depose A.S. 

and N.S. but does not appear to have moved to depose any additional witnesses prior to Timothy 

entering into the plea agreement. Though Timothy only vaguely articulates what the depositions 

of these individuals would have produced, he has 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.

Failure to Discuss Discovery and Defenses.

Timothy next assigns that his trial counsel was ineffective in failing to consult him 

regarding discovery and potential defenses.

Timothy’s claim that counsel failed to adequately confer with him regarding discovery is 

refuted by the record. During the plea colloquy Timothy affirmed that he had sufficient time to 

discuss the case with his trial counsel and that he did not need any additional time to speak with 

his counsel prior to entering his pleas. Thus, this claim fails.

Additionally, Timothy asserts that trial counsel failed to discuss “potential defenses and 

mitigating information for his sentencing.” Brief for appellant at 16. Timothy does not further 

elaborate the basis for this claimed trial counsel deficiency, such as what specific charges could 

not be proven and what facts would have led Timothy to insist on a trial rather than accepting the 

plea agreement. 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. Drake, 311 Neb. 219, 971 N.W.2d 759 

(2022). Thus, we conclude that Timothy has failed to allege this claim of deficient performance 

with sufficient particularity. This claim fails.

Timothy also briefly argues that trial counsel was deficient for failing to investigate the 

claims that he confessed to law enforcement and that Rachel S. had threatened him prior to his 

arrest. However, because Timothy only argued this allegation and did not assign it as error, this 

allegation has not been properly preserved. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be considered by an appellate 

court. State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).
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CONCLUSION

We affirm Timothy’s convictions and sentences. We conclude that the record before us is 

insufficient to resolve Timothy’s claim that trial counsel was ineffective in failing to depose 

specific witnesses. Timothy’s other ineffective assistance of counsel claims are either refuted by 

the record or insufficiently pled.

AFFIRMED.