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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. CICHOWSKI

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.

JEREMY R. CICHOWSKI, APPELLANT.

Filed December 26, 2023. No. A-23-256.

Appeal from the District Court for Douglas County: J RUSSELL DERR, Judge, on appeal 

thereto from the County Court for Douglas County: STEPHANIE R. HANSEN, Judge. Judgment of 

District Court affirmed.

Sarah M. Mooney, of Mooney Law Office, for appellant.

Kevin J. Slimp, Omaha City Prosecutor, for appellee.

RIEDMANN, BISHOP, and WELCH, Judges.

RIEDMANN, Judge.

INTRODUCTION

Following a bench trial, Jeremy R. Cichowski was found guilty of disorderly conduct. The 

county court for Douglas County sentenced him to 60 days’ imprisonment. On appeal, the district 

court affirmed the county court’s conviction and sentence. Cichowski now appeals his conviction 

and sentence to this court. Following our review of the record, we affirm the county court’s 

conviction and sentence.

BACKGROUND

Erik Hilton and Jeremy Carnes are both employed by a lawn care and snow removal 

company. On April 18, 2022, Hilton and Carnes arrived at a client’s property, where they work 

weekly, for “spring cleanup.” Spring cleanup meant Hilton and Carnes would blow out the bushes 
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surrounding the property, clean up sticks and leaves, clean off the sidewalks, and mow. Hilton 

described the property as an “apartment-type deal” that is “kind of like a duplex.” The property 

shares a sidewalk with another building that Hilton believed to be apartments or another duplex. 

He estimated they usually spend 25 minutes at this location if they “aren’t doing cleanup.”

Hilton uses a leaf blower that he wears like a backpack. When he operates the leaf blower, 

he usually wears headphones to “drown out the blower,” so he has difficulty hearing his 

surroundings. While Hilton used the leaf blower on April 8, 2022, Cichowski interrupted him to 

ask him how much longer he would be using the leaf blower. After Cichowski interrupted Hilton’s 

work, an altercation ensued between Hilton, Carnes, and Cichowski, and the police were called. 

After the police interviewed Hilton, Carnes, and Cichowski, officers cited Cichowski for two 

counts of assault. Cichowski was later charged with one count of disorderly conduct.

County Court Trial.

At the beginning of the trial, Cichowski moved to sequester the witnesses. The county court 

granted the motion and ordered all witnesses sequestered. Specifically, it admonished the 

witnesses that they were “not allowed to discuss your testimony with anyone until the trial is over.”

Both Hilton and Carnes testified at trial to their own recollections of the incident. Hilton 

recalled arriving at the worksite at 2:45 p.m. Around 3:30 p.m. or 4 p.m., when Hilton was wearing 

a backpack leaf blower and listening to music, Cichowski approached him to get his attention. 

When Hilton turned around, he turned his leaf blower off. Cichowski was screaming and yelling 

at him. Cichowski complained that Hilton was making too much noise and was disturbing his 

girlfriend, who was inside working. Hilton testified Cichowski then pushed him down into the 

bushes, spit on him multiple times, and berated him with insults, calling him “every name you can 

think of in the handbook.”

Carnes testified that while his leaf blower was idle, he heard a commotion coming from 

the other side of the property. He walked around the corner, saw Hilton on the ground, and 

Cichowski standing over him. Carnes recalled that when he stepped in between Cichowski and 

Hilton so Hilton could stand up, Cichowski punched Carnes with his right hand and recorded the 

incident with his phone in his left hand.

Carnes testified that after Cichowski punched him, Cichowski retreated to his home. 

Cichowski later reemerged recording Hilton and Carnes with a different phone. Hilton testified 

that Cichowski continued to “belly bump” him after he pushed him into the bushes. Both men 

testified that Cichowski’s actions instilled fear in them, and Carnes testified he “feared for [his] 

life.”

Officer Mark Keele testified he arrived at the scene to investigate a report of an assault. 

When he arrived at the scene, Cichowski told him that he had an ongoing dispute with the yard 

crew. Cichowski told Keele that the yard crew was spending an excessive amount of time working 

on the yard, and it was distracting his girlfriend from her work. Carnes told Keele that Cichowski 

had punched him, and his teeth hurt, but Keele could not recall if Hilton told him that he was 

pushed. After he spoke with Hilton, Carnes, and Cichowski, Keele issued Cichowski two citations 

for assault.
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As Cichowski began his testimony, he commented “I can—I can see those guys out there 

talking in the hallway. . . . It’s kind of distracting.” His attorney responded, “I’m going to ask that 

you just focus on the questions we ask, okay?”

Cichowski testified that on the day of the incident, the noise was so excessive that he could 

not hear the television, and although his girlfriend had not commented on the noise, he believed it 

was likely bothering her too. He walked outside, with his cellphone recording, and approached 

Hilton. He testified that he tried using a normal tone of voice with Hilton, but Hilton could not 

hear him over the leaf blower and headphones.

When Hilton turned around, Cichowski recalled they immediately began arguing. 

Cichowski told Hilton he was being too loud and was taking too long to blow the leaves. He 

testified that his voice was raised but attributed it to having to talk over Hilton’s leaf blower, which 

he recalled was on during their argument. He explained that within 15 seconds of Hilton and him 

arguing, Carnes came around the corner, and hit Cichowski’s phone out of his right hand.

Cichowski claimed that after the phone was hit from his hand, he “instinctively went to 

defend himself” and swung with his left hand to throw a punch. He disputed that he punched 

Carnes, as he believed he never contacted Carnes with his swing, except for possibly brushing 

Carnes’ face. Cichowski claimed he never touched anyone during the incident.

At the conclusion of the evidence, the county court stated that it “assessed the credibility 

and demeanor—of all the witnesses, the conduct of all the witnesses, as the trial has gone on.” It 

then found Cichowski guilty of disorderly conduct.

Sentencing.

Prior to sentencing, Cichowski filed a motion to strike portions of the presentence 

investigation report (PSR). Cichowski argued the PSR included inflammatory statements, namely 

that one victim’s impact statement included speculative commentary about Cichowski’s medical 

history and both victims provided sentencing recommendations.

Both Hilton and Carnes submitted victim impact statements. Hilton described the 

emotional impact of the incident, and how since, he feels like he must watch over his back nonstop 

and he feels uncomfortable. He suggested in his statement that the county court sentence 

Cichowski to jail time and emphasized that Cichowski spit on him multiple times, which he 

believed to be especially dangerous since he did not know if Cichowski had any concerning 

medical diagnoses. Carnes also suggested that the county court sentence Cichowski to jail time 

with a year on probation and anger management classes. He wrote the incident “made me scared 

for my life.”

At sentencing, after hearing Cichowski’s argument in support of his motion to strike, the 

county court explained that it would disregard any of the objectionable statements the victims 

made in their statements. It denied Cichowski’s motion, and explained its reasoning:

Like, I didn’t – I – it doesn’t have much impact on me because you didn’t do anything with 

the presentence investigation anyway. So, I mean, I see my role as determining am I going 

to have a punitive-type sentence, or is it going to be a rehabilitative sentence. And when 

you don’t participate, there’s not—I don’t know what the rehabilitation would be. . . . So, 

I didn’t take into consideration any of . . . the victims’ recommendations for sentence, 

because that’s not their province; it’s the Court’s province.
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The county court sentenced Cichowski to 60 days’ imprisonment. It found that the victims 

were credible during trial and noted that the victims appeared afraid of Cichowski. Cichowski 

refused to participate in the presentence investigation and told the probation officer he would 

refuse probation because it would interfere with his ability to maintain employment as a trucker. 

The county court explained that Cichowski was not a suitable candidate for probation because 

there was no information in the PSR that could suggest how to rehabilitate Cichowski, Cichowski 

had a lengthy criminal history, and he refused to participate in probation. It also found that a lesser 

sentence would depreciate the gravity of his offense and promote disrespect for the law. Cichowski 

appealed his conviction and sentence to the district court.

District Court Appeal.

Cichowski failed to file a statement of errors within 10 days after filing the bill of 

exceptions. In his brief, he failed to include an assignments of error section as well. Cichowski 

raised five arguments on appeal to the district court: (1) his trial counsel was ineffective; (2) the 

county court abused its discretion by denying Cichowski’s motion to strike the PSR and order the 

probation office to conduct a new one without the prejudicial statements in the PSR; (3) the county 

court’s sentence was excessive; (4) the county court abused its discretion by failing to address 

“those guys” talking in the hallway during trial; and (5) there was insufficient evidence to convict 

Cichowski.

The district court affirmed Cichowski’s conviction and sentence. It stated its review was 

limited to plain error because Cichowski failed to file a statement of errors. It noted that Cichowski 

raised many ineffective assistance of counsel claims, but only one was preserved for 

postconviction. It found Cichowski’s argument about prejudicial comments in the PSR to be 

without merit because the county court explicitly stated it would not take them into consideration. 

The district court held that there was sufficient evidence to convict Cichowski. Finally, it found 

that the county court did not abuse its discretion in sentencing Cichowski to 60 days’

imprisonment. Cichowski now appeals to this court.

ASSIGNMENTS OF ERROR

Cichowski assigns four errors. Reordered and restated, he assigns (1) the district court erred 

by failing to address his argument that the county court plainly erred by not acknowledging a 

possible violation of the sequestration order; (2) the county court erred by failing to grant his 

motion to strike portions of the PSR and order the probation office to conduct a new PSR, (3) his 

sentence was excessive, and (4) his trial counsel was ineffective.

STANDARD OF REVIEW

An appellate court may find plain error on appeal when an error unasserted or complained 

of at trial, but plainly evident from the record, prejudicially affects a litigant’s substantial right, 

and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial 

process. State v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021). Plain error should be resorted to 

only in those rare instances where it is warranted, and it is warranted only when a miscarriage of 

justice would otherwise occur. Id. Plain error is not a vehicle that should be routinely used to save 

an issue for appeal where a proper objection should have been, but was not, made at trial. Id.
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ANALYSIS

As a preliminary issue, our review, like that of the district court, is limited to plain error 

review. See North Star Mut. Ins. Co. v. Stewart, 311 Neb. 33, 970 N.W.2d 461 (2022) (in appeals 

where district court reviewed for plain error, a higher appellate court likewise reviews for plain 

error only). As noted by the district court, Cichowski never filed a statement of errors, thus limiting 

the district court’s review to plain error. Consequently, our review is also limited to plan error 

review. See State v. Warren, 312 Neb. 991, 982 N.W.2d 207 (2022).

Sequestration Order.

Although Cichowski assigns as error the district court’s failure to address his claim that the 

county court erred in failing to address a possible violation of the sequestration order, he argues 

only the county court’s failure to address the possible violation. Because we are conducting only 

a plain error review, we will review the county court’s actions for plain error.

Cichowski contends that the county court had a duty to control its courtroom by clarifying 

on the record whether Cichowski identified a violation of the sequestration order when he noted 

“those guys” were speaking in the hallway during his testimony. Brief for appellant at 10. He 

concludes “it’s very plausible and reasonable” that “those guys” were Hilton and Carnes. Id.

Our review of the record does not reveal any plain error. To establish reversible error due 

to a violation of a sequestration order, the defendant must make a showing of prejudice. State v. 

DeGroot, 230 Neb. 101, 430 N.W.2d 290 (1988). It is for the trial court to determine the extent to 

which a sequestration order will be applied in a given case. State v. Trail, 312 Neb. 843, 981 

N.W.2d 269 (2022). Here, the judge admonished the witnesses that they were not to discuss their 

testimony with anyone until the trial was over.

Cichowski claims that it was plain error for the county court not to address a potential 

violation of the sequestration order after he remarked there were people in the hallway talking. He 

accurately observes that the district court did not address this argument in its opinion. However, 

Cichowski has failed to allege any prejudice. He argues that “it is very plausible and reasonable to 

argue that . . . Cichowski is stating that . . . Hilton and . . . Barnes are talking to each other while 

the trial is still going on,” but he makes no assertion that they were discussing trial testimony. Brief 

for appellant at 11. Even assuming that “those guys” were Hilton and Carnes, the sequestration 

order prevented discussion only regarding trial testimony. Cichowski fails to allege that was the 

substance of their conversation or that their discussion prejudiced him. Absent any showing of 

prejudice, we cannot find plain error that prejudicially affects one of Cichowski’s substantial 

rights. See State v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021).

Motion to Strike.

Cichowski argues that the county court erred when it denied his motion to strike portions 

of the PSR. He contends that the PSR contained inflammatory and prejudicial comments made by 

the victims in their victim impact statements, so the county court should have ordered a new PSR 

without the victims’ statements.

Cichowski argues that because the county court stated the victim’s statements did not have 

“‘much impact’ instead of stating that they had ‘zero impact’ or ‘no impact,’” then it abused its 

discretion by relying on such statements. Brief for appellant at 16. But this argument 
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mischaracterizes the county court’s entire explanation for why it denied Cichowski’s motion to 

strike. It stated:

Like, I didn’t – I – it doesn’t have much impact on me because you didn’t do anything with 

the presentence investigation anyway. . . . So, you know, it would just be arguing . . .

inappropriateness of – of just a basic sentence. So, I didn’t take into consideration any of 

. . . the victims’ recommendations for sentence, because that’s not their province; it’s the 

Court’s province.

Because the county court expressly stated it did not take into consideration the victims’

recommendations for sentencing, it did not commit plain error in overruling the motion to strike. 

See also State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on other grounds,

State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008) (acknowledging presumption that judge is 

assumed to disregard impermissible statements).

Excessive Sentence.

Cichowski claims his sentence is excessive. He argues that the county court abused its 

discretion by considering Cichowski’s refusal to participate in the presentence investigation and it 

did not properly consider the sentencing factors.

Cichowski was convicted of disorderly conduct under the Omaha Municipal Code. There 

is no minimum term of imprisonment, and the maximum term of imprisonment is 6 months, a $500 

fine, or both. He was sentenced to 60 days’ incarceration; thus, his sentence falls within the 

sentencing guidelines. Generally, when a sentence is within the sentencing guidelines, we review 

for an abuse of discretion. See State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). However, 

because Cichowski failed to file his statement of errors, we now review the county court’s sentence 

for plain error. See State v. Warren, supra.

When imposing a sentence, a sentencing judge should customarily 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. 

State v. Blake, supra. The sentencing court is not required to articulate on the record that it has 

considered each sentencing factor or make specific findings as to the facts pertaining to the factors 

or weight given to them. State v. Greer, 309 Neb. 667, 962 N.W.2d 217 (2021). The sentencing 

court is not limited to any mathematically applied set of factors, but the appropriateness of the 

sentence 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. Id.

Cichowski was 42 years old at the time of sentencing. He has his high school diploma and 

at the time of trial, was working as a truck driver. Cichowski has a lengthy criminal record dating 

back to 1996, which includes convictions for criminal mischief, disorderly conduct, and possession 

of a controlled substance. But in the last 10 years leading up to his trial, he has been convicted of 

only traffic violations and disorderly conduct.

Cichowski refused to participate in the presentence investigation, so there is no information 

to deduce his motivation for his crime. The PSR does indicate that Cichowski has had issues with 
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Hilton for the past 2 years. Cichowski told the probation office he refused to participate in the 

presentence investigation because he “was planning to appeal the case and feels it will be dismissed 

in the end.” He refused to complete either of the mental health questionnaires or answer any 

questions, so it is also difficult to determine his mentality. He told the probation office that he 

would refuse any sentence of probation.

Cichowski was convicted of disorderly conduct. The county court found Cichowski guilty 

after assessing “the credibility and demeanor . . . of all the witnesses, [and] the conduct of the 

witnesses” throughout the duration of the trial. At sentencing, it stated that it found the victims 

credible and told Cichowski “it was very clear that they’re afraid of you and that you scared them.”

The county court also noted that Cichowski laughed at Carnes while Carnes was testifying. 

Overall, the county court did not commit plain error by sentencing Cichowski to 60 days’

imprisonment.

Ineffective Assistance of Counsel.

On appeal to the district court, Cichowski was represented by counsel different from his 

trial counsel. Therefore, he was required to raise on appeal any allegations of ineffective assistance 

of trial counsel. See State v. Painter, 224 Neb. 905, 402 N.W.2d 677 (1987). As noted previously, 

Cichowski failed to submit a statement of errors to the district court identifying how trial counsel 

was ineffective. Although our record contains Cichowski’s appellate brief to the district court, he 

failed to set forth any assignments of error. Pursuant to State v. Mrza, 302 Neb. 931, 935, 926 

N.W.2d 79, 86 (2019), the district court was not required to “scour the remainder of the brief in 

search of” Cichowski’s claims of alleged deficient performance. However, it addressed each claim 

of ineffective assistance of counsel Cichowski argued in his brief and found that only one, trial 

counsel’s failure to preserve a possible violation of the sequestration order, was preserved.

On appeal to this court, Cichowski failed to specifically assign how trial counsel was 

ineffective, nor do we have the benefit of a statement of errors setting forth these claims. Pursuant 

to Mrza, we decline to scour Cichowski’s brief in search of his specific claims that counsel was 

ineffective. Cichowski’s ineffective assistance of counsel claim is not sufficiently assigned for 

appellate review by this court.

CONCLUSION

Finding no plain error, we affirm Cichowski’s conviction and sentence for disorderly 

conduct.

AFFIRMED.