- 852 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

State of Nebraska, appellee, v. 

Jonathan J. Sierra, appellant.

___ N.W.2d ___

Filed May 2, 2023. No. A-22-211.

1. Postconviction: Evidence. In an evidentiary hearing on a motion for 

postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact.

2. Appeal and Error. An appellate court upholds the trial court’s findings 

unless they are clearly erroneous.

3. Effectiveness of Counsel: Appeal and Error. Appellate review of a 

claim of ineffective assistance of counsel is a mixed question of law and 

fact. When reviewing a claim of ineffective assistance of counsel, an 

appellate court reviews the factual findings of the lower court for clear 

error. With regard to the questions of counsel’s performance or prejudice 

to the defendant as part of the two-pronged test articulated in Strickland 

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), 

an appellate court reviews such legal determinations independently of 

the lower court’s decision.

4. 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 

performance actually prejudiced the defendant’s defense.

5. ____: ____. 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.

6. Trial: Effectiveness of Counsel: Presumptions. In determining whether 

trial counsel’s performance was deficient, there is a strong presumption 

that counsel acted reasonably.

7. Trial: Effectiveness of Counsel: Evidence. A reasonable strategic decision to present particular evidence, or not to present particular evidence, 

will not, without more, sustain a finding of ineffective assistance of 

Nebraska Supreme Court Online Library

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

05/09/2023 09:05 AM CDT
- 853 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

counsel. Strategic decisions made by trial counsel will not be secondguessed so long as those decisions are reasonable.

8. Effectiveness of Counsel: Proof. 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.

9. Effectiveness of Counsel: Proof: Words and Phrases. A reasonable 

probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the 

outcome. The likelihood of a different result must be substantial, not 

just conceivable.

10. Records: Appeal and Error. It is incumbent upon an appellant to supply a record which supports his or her appeal. Absent such a record, as 

a general rule, the decision of the lower court as to those errors is to be 

affirmed.

11. Criminal Law: Evidence: Proof. An alibi defense requires a defendant 

to establish that (1) he or she was at a place other than where the crime 

was committed and (2) he or she was at such other place for such a 

length of time that it was impossible to have been at the place where and 

when the crime was committed.

12. ____: ____: ____. A defendant asserting an alibi defense bears a heavy 

evidentiary burden.

13. Probation and Parole: Search and Seizure. Generally, Nebraska 

courts uphold warrantless searches pursuant to a condition of a probation order.

14. Appeal and Error. 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.

Appeal from the District Court for York County: James C. 

Stecker, Judge. Affirmed.

Stephen T. Knudsen, of Whitney, Newman, Mersch, Otto & 

Grafton, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Riedmann, Bishop, and Arterburn, Judges.
- 854 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

Arterburn, Judge.

INTRODUCTION

Jonathan J. Sierra was convicted in 2018 in the York County 

District Court of burglary, conspiracy to commit burglary, and 

several counts of theft involving the theft of a truck, trailer, 

and various mechanic’s tools from a local automotive repair 

shop. Sierra filed a motion for postconviction relief in the York 

County District Court asserting several claims that his trial 

counsel was ineffective. Following an evidentiary hearing, the 

district court found that Sierra had not met his burden in proving that his trial counsel was ineffective. Upon our review of 

the record, we affirm.

BACKGROUND

In December 2017, Sierra was charged in an eight-count 

information with one count of burglary, one count of conspiracy to commit burglary, four counts of theft by unlawful 

taking ($5,000 or more), one count of theft by unlawful taking 

($1,500 to $5,000), and one count of criminal mischief (less 

than $500). The Nebraska Supreme Court summarized the 

underlying circumstances of the crimes as follows:

Sierra was involved in the theft of a truck and trailer 

which he then used to assist in the theft of automotive 

tools from a mechanic’s garage in York, Nebraska. The 

complaint was based in an incident which occurred in 

the early morning of October 15, 2017, when a window 

of [an automotive shop] in York was broken and tools 

were stolen from the premises. The tools belonged, 

separately, to a co-owner of the garage business and his 

two employees. The co-owner, Andrew Wilkinson, notified the officer investigating the break-in, Sgt. Michael 

Hanke, that his checkbook and debit card had also 

been stolen.

State v. Sierra, 305 Neb. 249, 252, 939 N.W.2d 808, 816-

17 (2020).
- 855 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

The district court appointed the York County public defender 

as Sierra’s counsel. On April 23, 2018, a hearing was held 

due to Sierra’s request that his counsel withdraw, citing a 

breakdown in the attorney-client relationship. Sierra informed 

the court that his counsel had not spoken to him about any 

of the discovery materials in his case despite his numerous 

requests. Sierra said he eventually just stopped calling her, 

because he was not getting answers. Trial counsel responded 

that Sierra was not willing to accept her advice despite the fact 

that she had provided him a significant amount of discovery 

materials. Ultimately, Sierra’s request was denied and the public defender remained as trial counsel.

Prior to trial, the State and trial counsel signed a discovery 

stipulation agreeing to have any discovery materials delivered to opposing counsel by March 5, 2018, or as soon as 

it was reasonably discovered. The parties also agreed that 

the absolute deadline for production of discovery materials 

was 10 days before the start of trial. Despite this agreement, 

trial counsel provided the State just 5 days prior to the trial 

with a list of five witnesses she intended to call at trial. The 

witnesses included Sierra’s brother, Anthony Sierra; Sierra’s 

mother, Cynthia Sierra; Sierra’s girlfriend; and two individuals who were in jail with Sierra. In response, the State filed a 

motion in limine to exclude those witnesses from testifying. At 

the hearing, the State indicated that there was no explanation 

as to the nature of the witnesses’ testimony, but that the State 

suspected defense counsel intended to present an alibi defense. 

However, the State also noted that defense counsel had not 

filed a notice of alibi defense as required by Neb. Rev. Stat. 

§ 29-1927 (Reissue 2016). Sierra’s trial counsel indicated she 

no longer planned on calling Sierra’s girlfriend as a witness. 

Trial counsel stated she did not necessarily intend to present 

exhibits for an alibi defense but asked that the court allow her 

to explore that defense should she choose to do so in the interest of justice. The court granted the State’s motion in limine 

prohibiting defense counsel from calling her witnesses with 
- 856 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

the exception of Anthony, who was also named on the State’s 

list of endorsed witnesses. The prohibition also extended to 

exhibits related to an alibi defense.

At trial, Sgt. Michael Hanke of the York Police Department 

presented a general timeline of the investigation after law 

enforcement was notified of the theft at the automotive shop 

on October 15, 2017. Hanke testified that upon arrival, law 

enforcement first reviewed surveillance video from other businesses in the area. According to Hanke, the videos showed 

that there were two individuals who stole a pickup truck from 

the automotive shop parking lot. At approximately 4:45 a.m., 

the two individuals then took the truck to a nearby pizza 

restaurant, where they stole an enclosed white trailer and 

attached it to the truck before returning to the automotive shop. 

Approximately 30 minutes later, video showed the truck and 

trailer leaving the area.

Hanke testified that the next day, Wilkinson was notified 

that someone had attempted to use the stolen debit card at a 

Walmart store in Norfolk, Nebraska. Wilkinson provided that 

information to the York Police Department. Hanke contacted 

personnel at the Norfolk Walmart and was able to obtain pictures from a security camera showing two individuals using 

the stolen debit card on the afternoon of October 15, 2017. 

Hanke also received photographs taken by surveillance cameras in a Walmart store in York, Nebraska, showing the same 

two individuals within that store at approximately 7:30 a.m. 

on October 15, 2017, the same day as the burglary at the automotive shop. Walmart personnel at the York store suspected 

the individuals in the photographs had shoplifted clothing 

there, given that one of them was wearing clothing when exiting different from what he was wearing on entry.

Maggie Wolfe, an asset protection associate at the York 

Walmart, testified about the process of obtaining the surveillance footage of the two individuals. Wolfe identified the 

individuals in the photograph from the surveillance video 

as Johnathan Mally and Sierra. Defense counsel did not 
- 857 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

object to the identification testimony during direct examination. However, after Wolfe’s identification, the following 

exchange took place when the State offered the photographs 

into evidence:

[Defense counsel:] I would object on foundation, your 

Honor.

THE COURT: What foundation?

[Defense counsel:] She hasn’t identified what the 

two — what led her to believe that one of the suspects 

was . . . Sierra.

THE COURT: Objection overruled. Exhibit 1 will be 

received.

On cross-examination, Sierra’s counsel asked Wolfe how she 

learned the identities of the individuals in the photograph. 

Wolfe admitted that she had only seen information in the 

newspaper and did not independently identify Sierra from 

the photograph.

Hanke testified that after he received the surveillance footage, a notice went out to all law enforcement asking for assistance in identifying the individuals in the pictures. Sgt. Andrew 

Yost of the Butler County Sheriff’s Department testified at 

trial that he and the Butler County Sheriff had seen the surveillance photographs from the York Walmart and recognized one 

of the individuals as Sierra. Based on the information from 

the Butler County Sheriff’s Department, Hanke testified that 

he was able to develop Mally and Sierra as suspects. Initially, 

defense counsel did not object to Hanke’s testimony. However, 

as the testimony regarding the identification of Sierra continued, the following exchange was had:

Q. [Prosecutor:] And [a deputy at the Butler County 

Sheriff’s Department] was able to look at the picture from 

the York Walmart and determine who it was?

A. Yeah, he believed it to be . . . Sierra with . . . Mally.

Q. Okay. Now, was he familiar with . . . Sierra as a 

local probationer?
- 858 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

A. I’m not sure if he was familiar with him that way 

but he did let me know —

[Defense counsel:] I’m going to object on this line of 

questioning. It’s hearsay, your Honor.

THE COURT: Sustained.

Hanke went on to testify that after determining Sierra’s identity, he obtained a search warrant for Sierra’s cell phone data. 

The data he recovered from the cell service provider showed 

that Sierra’s phone “pinged off” of a cell tower in York, which 

indicated that the phone was located within 20 miles of York 

on October 15, 2017, the date of the burglary. Defense counsel 

did not object to Hanke’s testimony about the cell phone data, 

and the records are not in evidence.

In addition to retrieving the cell phone data, Hanke testified that the Butler County Sheriff’s Department conducted a 

search of Sierra’s home. Yost, who participated in the search, 

testified that the search was conducted with the permission 

of Sierra’s probation officer. According to Yost, the probation 

order allowed searches of Sierra’s residence without a warrant. 

A copy of the probation order was not offered into evidence. 

Yost testified that law enforcement officers found and seized 

a majority of the tools that had been taken from the automotive shop in York. Hanke testified that the stolen truck was 

recovered after it was abandoned on a road north of the York 

Walmart and that the stolen trailer was recovered after it was 

abandoned on a road near St. Edward, Nebraska, not far from 

where Sierra resided in Genoa, Nebraska.

Hanke testified that the next step in the investigation was an 

interview with Sierra. According to Hanke, in this first interview, Sierra denied ever being in York, claimed he had nothing to do with the burglary, and stated he possessed the tools 

because he had purchased them from Mally. Hanke testified 

that in a second interview, Sierra admitted to being in York. 

Defense counsel did not object to this line of testimony but 

cross-examined Hanke about Sierra’s story.
- 859 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

Mally was arrested in Columbus, Nebraska. Several of the 

tools and financial items from the automotive shop were found 

in his possession afterward. Mally subsequently entered into 

a plea agreement with the State and testified against Sierra. 

Mally testified that he knew Sierra through their employment at a truck repair shop. He provided a general timeline of 

the events on October 15, 2017. Mally estimated that he had 

met up with Sierra in York “[p]robably” around 11:30 p.m. 

on October 14, 2017. He then recounted a series of events 

wherein the window to the automotive shop had been broken 

by Sierra, followed by his and Sierra’s leaving the area to 

make sure that the window’s breaking did not trigger a burglar alarm. Mally said that he and Sierra then returned to the 

automotive shop, where they stole a truck outside the shop. 

They then went in the stolen truck to the pizza restaurant, 

where they stole the enclosed trailer. After obtaining the trailer, 

they returned to the automotive shop, where they removed 

some large upright toolboxes full of tools, rolled them into 

the trailer, and then drove away. According to Mally, he 

and Sierra stayed in York for a period thereafter, which stay 

included going into the York Walmart, where he put on clothes 

that he shoplifted therefrom and got rid of the clothes he had 

worn during the burglary. Mally identified himself and Sierra 

in the Walmart surveillance photographs taken at 7:30 a.m. 

on October 15. Shortly after leaving the York Walmart, they 

unhooked the trailer from the stolen truck, hooked it up to 

Mally’s pickup truck, and then left. Mally testified that they 

took the tools because Sierra needed the tools for his job as a 

mechanic. The majority of the tools were taken to Sierra’s residence in Genoa, with Mally’s retaining the remainder. Mally 

denied the existence of any arrangement with Sierra to buy 

the tools. On cross-examination, defense counsel emphasized 

the benefits Mally received from the State in exchange for 

his cooperation.

The owners of the tools, the owner of the truck, and the 

owner of the trailer all testified regarding the identity and 
- 860 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

value of the items stolen. Several of the recovered tools, 

along with photographs of other stolen items, were received 

into evidence. Defense counsel made several objections during the State’s presentation of evidence, some of which were 

sustained. Sierra’s brother, Anthony, testified for the defense. 

Anthony testified that he was with Sierra on October 14 

and 15, 2017, but not in York. He further testified that on 

October 15, Mally arrived with a white trailer at a house where 

he helped unload several tools that Sierra had purchased from 

Mally. Finally, Anthony said he did not recognize the person in 

the store surveillance photographs from Walmart.

A jury found Sierra guilty on all counts except for criminal mischief. After the conclusion of the jury trial, but before 

sentencing, defense counsel was charged with theft by unlawful taking ($5,000 or more) in an unrelated case. Sierra was 

granted new counsel for sentencing. Sierra was sentenced 

to 16 to 20 years’ imprisonment on each of the Class IIA 

felony convictions and 1 to 2 years’ imprisonment on the 

Class IV felony conviction. All sentences were ordered to be 

served concurrently.

Sierra filed a direct appeal, which was heard by the 

Supreme Court. On appeal, Sierra alleged the district court 

erred by denying trial counsel’s motion to withdraw prior to 

trial, granting the State’s motion in limine, and sentencing 

Sierra on multiple charges of theft by unlawful taking, in violation of the Double Jeopardy Clause of the U.S. Constitution. 

State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020). In 

addition, Sierra assigned 13 ineffective assistance of counsel 

claims. Id. The Supreme Court agreed with Sierra’s double 

jeopardy argument and vacated two of the three convictions 

and sentences for theft by unlawful taking ($5,000 or more) 

that were based on the theft of the tools from the automotive 

shop. Id. The Supreme Court found the district court did not 

abuse its discretion by overruling trial counsel’s motion to 

withdraw. Id. As to Sierra’s ineffective assistance of counsel claims, the Supreme Court found that nine of the claims 
- 861 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

could not be resolved on the record before it. Id. One of the 

claims was determined to be insufficiently pled. Id. The three 

remaining ineffective assistance of counsel claims, as well as 

Sierra’s other assignment of error, were found to be without 

merit. Id.

Sierra filed a timely motion for postconviction relief. Sierra 

was appointed an attorney and subsequently filed a supplemental motion for postconviction relief alleging the same claims 

of ineffective assistance of counsel the Supreme Court was not 

able to resolve on direct appeal. The district court granted the 

State’s motion to dismiss the original motion for postconviction relief and then proceeded to an evidentiary hearing on the 

supplemental motion.

The evidentiary hearing was held on December 1, 2021. 

Sierra testified at the hearing. He stated that he first met with 

his trial counsel 3 or 4 weeks after she was appointed, while 

they were in court. This first meeting lasted only about a 

minute, according to Sierra. Sierra testified that he and trial 

counsel met only once at the jail. Sierra stated that at this meeting, trial counsel brought a laptop computer for them to use 

to review surveillance videos together, but she fast-forwarded 

through the videos. Sierra then said his trial counsel took a 

phone call and left abruptly. According to Sierra, trial counsel did not discuss trial strategy with him, did not take notes, 

and did not return to the jail. Sierra testified that he attempted 

to contact her regarding an alibi defense, but that she did not 

respond. However, he admitted she did respond to him by making the motions he requested to reduce his bond. Finally, Sierra 

testified that he and trial counsel did not meet at all in the 7 

days leading up to his trial.

At the evidentiary hearing, Sierra offered into evidence several exhibits, including a copy of his trial record; a copy of the 

Supreme Court’s opinion from his appeal; a copy of the State’s 

motion in limine, as well as trial counsel’s list of witnesses; 

an affidavit from Cynthia; and a deposition of trial counsel. 

In trial counsel’s deposition, she stated she was suffering 
- 862 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

from what’s called “Long Hauler Syndrome” from COVID19, which meant she was sick for a long period of time and 

which in her case resulted in a loss of memory. Trial counsel 

said she did not recall Sierra or anything about his trial or 

representation. She was able to describe her general process in 

meeting with and representing criminal defendants but could 

not provide details regarding her representation of Sierra. Trial 

counsel responded, “I have no idea,” “I do not remember,” or 

“I don’t recall” to almost every question about Sierra. Trial 

counsel’s case file and notes were also received into evidence 

at the evidentiary hearing.

In Cynthia’s affidavit, she identified herself as Sierra’s 

mother. She stated that she also tried to contact Sierra’s trial 

counsel regarding a possible alibi defense for Sierra to no 

avail. In the affidavit, Cynthia stated that if she had testified 

at trial, she would have said that she, Sierra, Anthony, and 

Sierra’s girlfriend were fixing the walls in the bathroom of 

her house in Genoa until “approximately” 11 p.m. on October 

14, 2017. Cynthia also stated she would have testified that 

Sierra told her that his coworker was going to be bringing 

a load of tools he was purchasing to their house and that 

she saw the coworker coming with the truck and trailer on 

October 15.

The district court took the matter under advisement. In an 

order dated March 4, 2022, the district court denied Sierra’s 

motion for postconviction relief. As to each of the allegations 

of ineffective assistance, the district court found that Sierra 

failed to establish either deficient performance of counsel or 

prejudice. Sierra appeals from the district court’s order denying his motion for postconviction relief.

ASSIGNMENTS OF ERROR

On appeal, Sierra assigns that trial counsel was ineffective 

for failing to (1) file notice of or present alibi evidence, (2) 

file a witness and exhibit list, (3) effectively communicate 

with Sierra, (4) file a motion to suppress evidence obtained 
- 863 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

from Sierra’s residence, (5) object to or make motions regarding the testimony of certain witnesses, (6) request a cautionary 

jury instruction on accomplice testimony, and (7) maintain 

her law license. He argues that the district court should have 

sustained his postconviction motion based on each of the foregoing bases.

STANDARD OF REVIEW

[1,2] In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact, resolves conflicts in the evidence and questions of fact. State v. Stricklin, 

310 Neb. 478, 967 N.W.2d 130 (2021). An appellate court 

upholds the trial court’s findings unless they are clearly erroneous. Id.

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

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

court reviews the factual findings of the lower court for clear 

error. Id. With regard to the questions of counsel’s performance 

or prejudice to the defendant as part of the two-pronged test 

articulated in Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews 

such legal determinations independently of the lower court’s 

decision. State v. Stricklin, supra.

ANALYSIS

General Principles of Ineffective 

Assistance of Counsel.

[4-7] To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington, supra, 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. Stricklin, supra. 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. In determining 

whether trial counsel’s performance was deficient, there is 
- 864 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

a strong presumption that counsel acted reasonably. State v. 

Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022). A reasonable 

strategic decision to present particular evidence, or not to 

present particular evidence, will not, without more, sustain a 

finding of ineffective assistance of counsel. State v. Newman, 

310 Neb. 463, 966 N.W.2d 860 (2021). Strategic decisions 

made by trial counsel will not be second-guessed so long as 

those decisions are reasonable. Id.

[8,9] 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. Stricklin, supra. A reasonable probability 

does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the 

defendant must show a probability sufficient to undermine 

confidence in the outcome. Id. The likelihood of a different 

result must be substantial, not just conceivable. See id. (quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 178 L. 

Ed. 2d 624 (2011)).

[10] In an evidentiary hearing for postconviction relief, 

the postconviction trial judge, as the trier of fact, resolves 

conflicts in evidence and questions of fact, including witness 

credibility and the weight to be given a witness’ testimony. 

State v. Stricklin, supra. Where competent evidence supports 

the district court’s findings, the appellate court will not substitute its factual findings for those of the district court. Id. It is 

incumbent upon an appellant to supply a record which supports 

his or her appeal. State v. Britt, 310 Neb. 69, 963 N.W.2d 533 

(2021). Absent such a record, as a general rule, the decision of 

the lower court as to those errors is to be affirmed. Id.

Failing to File Notice of or Present Alibi 

Evidence and Failing to Timely File 

Witness and Exhibit List.

Sierra first assigns and argues that trial counsel was ineffective for failing to file notice of or present alibi evidence. 
- 865 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

He further argues that trial counsel was ineffective by failing 

to timely file witness and exhibit lists. As part of a discovery 

agreement with the State, trial counsel was required to provide 

any discovery, including a list of witnesses and exhibits the 

defense intended to use at trial, no later than 10 days prior 

to trial. Despite this, trial counsel did not present her witness 

list until 5 days prior to the first day of trial. As a result, trial 

counsel was prohibited from presenting the listed witnesses. 

Similarly, Sierra was prohibited from putting on an alibi 

defense due to trial counsel’s failure to file a notice of alibi.

The witness list produced by Sierra’s counsel for trial 

named five witnesses: Anthony, Cynthia, Sierra’s girlfriend, 

and two individuals who were in jail with Sierra prior to his 

trial. Of those, one witness, Anthony, still testified for the 

defense because he was on the State’s witness list. At the hearing on the motion in limine, trial counsel informed the court 

that she no longer intended to call Sierra’s girlfriend as a witness. Due to trial counsel’s failure to meet the discovery deadline, the court prohibited the defense from calling Cynthia, 

as well as the two other individuals. In his postconviction 

motion, Sierra has presented evidence relative only to what 

Cynthia’s testimony would be. As such, we will not consider 

the other witnesses Sierra, through trial counsel, sought to 

add. We do, however, consider the testimony of Anthony 

regarding Sierra’s whereabouts on the days in question which 

was given at trial. In her deposition, trial counsel stated that 

she could not remember any specifics regarding Sierra and 

his trial due to memory loss from COVID-19. Therefore, we 

have no evidence as to what reasons trial counsel may have 

had for failing to file a notice of alibi and witness list in a 

timely fashion.

It is clear that trial counsel was deficient in failing to meet 

the foregoing deadlines. However, Sierra has not established 

that he was prejudiced. Based on the record presented, the 

only impact of trial counsel’s deficiency was that Cynthia 

was prevented from testifying. According to Sierra, and the 
- 866 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

affidavit provided by Cynthia at the evidentiary hearing, had 

Cynthia been called as a witness, she would have testified that 

Sierra was working at their home in Genoa until approximately 

11 p.m. on the night preceding the burglary at the automotive 

shop. At trial, Mally testified that he met up with Sierra in 

York at around 11:30 p.m. on October 14, 2017. The district 

court agreed with the State’s argument that Cynthia’s testimony did not contradict the evidence presented at trial. In its 

order, the district court explained:

The evidence presented indicated that the crime was committed sometime after working hours on Friday, October 

13, 2017 but before Sunday, October 15, 2017. Given 

the testimony of . . . Mally, Sergeant Hanke, [and the 

victims], there is no reasonable probability the outcome 

would have been different. [Sierra] failed to establish 

a viable alibi through the evidence at the trial on the 

Motion for Post-Conviction Relief. Cynthia . . . does not 

place [Sierra] at a location other than where the crime 

was committed at the time the crime was committed. 

[Her] testimony does not make it impossible for [Sierra] 

to have been in [York] at the time the crimes were committed. Cynthia . . . only accounts for the presence of her 

son up to the time that he could or would have left to 

travel to York to commit the crime.

[11,12] An alibi defense requires a defendant to establish 

that (1) he or she was at a place other than where the crime 

was committed and (2) he or she was at such other place for 

such a length of time that it was impossible to have been at 

the place where and when the crime was committed. State v. 

Stricklin, 310 Neb. 478, 967 N.W.2d 130 (2021). A defendant 

asserting an alibi defense bears a heavy evidentiary burden. 

Id. Section 29-1927 requires a defendant to provide notice to 

the county attorney of the intention to rely on an alibi defense 

at least 30 days prior to trial. Such notice requirement may be 

waived by the presiding judge if necessary in the interests of 

justice. § 29-1927.
- 867 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

We first note that despite the court’s order denying Sierra 

the ability to present an alibi defense, Anthony was allowed 

to testify. Anthony testified that he and Sierra were together 

on the day of the burglary and that he was not in York that 

day. Clearly, the jury did not find Anthony’s testimony placing 

Sierra in another town at the time of the burglary to be credible. Further, Sierra cannot show that the addition of Cynthia’s 

testimony would have created a reasonable probability that the 

result of the trial would have been different. At best, Cynthia’s 

testimony indicates that Sierra left their home around 11 p.m. 

Mally’s testimony was that he met Sierra in York “probably” 

around 11:30 p.m. These times are not necessarily in conflict, particularly given that the times given are approximate. 

Moreover, Mally’s testimony, along with the video evidence, 

establishes that the actual burglary and thefts occurred over 

the course of several hours on the morning of October 15, 

2017. Mally and Sierra are captured in photographs leaving 

the York Walmart at approximately 7:30 a.m. Based on the 

totality of the evidence, we cannot see how the addition of 

Cynthia’s testimony to that of Anthony would have created 

a reasonable probability that the outcome of the trial would 

be different. Her testimony would not make it impossible for 

Sierra to have participated in the burglary and thefts occurring in York over the course of the succeeding few hours. The 

jury rejected Anthony’s testimony which, if believed, would 

have provided an alibi. We cannot see how Cynthia’s testimony would have made Anthony’s testimony more believable. 

Therefore, we agree with the district court that Sierra was not 

prejudiced by the exclusion of Cynthia’s testimony or by trial 

counsel’s failure to timely file a notice of alibi and witness or 

exhibit list.

Failing to Effectively Communicate.

Sierra next argues that his trial counsel was ineffective for 

failing to effectively communicate with him. Sierra asserts 

that trial counsel met with him only twice prior to trial. 
- 868 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

The district court noted that trial counsel also communicated 

with Sierra by responding to messages he sent and that she 

requested recesses during trial at least four times to confer 

with Sierra. The district court held that Sierra failed to demonstrate prejudice based on trial counsel’s level of communication with Sierra. We agree.

During the evidentiary hearing, Sierra indicated that his biggest grievance was that he was unable to communicate with 

trial counsel regarding his alibi defense. As we previously discussed, Sierra’s proffer of additional alibi evidence produced 

at the postconviction hearing is not sufficient to demonstrate 

a reasonable probability that the result of the trial would have 

been different. The district court’s findings that trial counsel 

communicated with Sierra through messages and during his 

trial are supported by the record. Sierra claims that trial counsel refused to answer any of his calls. He states trial counsel 

met with him only twice and that one of those meetings was 

cut short when she received a phone call and left abruptly. 

Unfortunately, in her deposition, trial counsel offered no specific insights into the level of contact she had with Sierra 

either prior to or during trial. However, the record made at 

trial counsel’s first motion to withdraw offers some insight into 

communications between Sierra and herself:

Your Honor, as [Sierra] stated in his attachment on the 

Inmate Request Form, he feels there’s been a breakdown 

in attorney-client relationship with a lack of trust and 

drastically divergent views on best strategies for defense. 

I have tried to talk to him about different things. He 

will not take any of my advice. I provided him with 

500 pages of discovery. He said, “This is all bogus.” So 

it’s pretty hard to talk to somebody about their case and 

about their discovery when they refuse to listen, and it’s 

kind of reached that point.

In addition, in her deposition testimony, trial counsel testified to her standard practices with respect to contact with 

clients who are being held in jail: She first provided an 
- 869 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

information sheet to them to fill out and then provided them 

with copies of discovery materials received from the prosecutor as soon as they were received. She made it a point to meet 

with incarcerated clients within 1 week of court appointment 

after she had a chance to review the initial file. In a first 

meeting, she would explain that conversations with her were 

confidential and that she would not divulge any client communication to other people. She preferred not to talk with 

an incarcerated client on the phone about anything substantive. She always provided materials requested in messages 

from inmates and generally provided her clients with copies 

of pleadings as she received them. Her practice was to meet 

with her clients during the days immediately before hearings. 

In general, trial counsel stated that she had a lot of contact 

with her clients and that during meetings, she was engaged 

and available to them. She stated that she would file motions, 

such as a motion to suppress, if a client requested it. She also 

testified that she would talk to potential witnesses suggested 

by her clients.

Ultimately, the postconviction trial judge, as the trier of 

fact, resolves conflicts in the evidence and questions of fact, 

including witness credibility and the weight to be given a 

witness’ testimony. See State v. Stricklin, 310 Neb. 478, 967 

N.W.2d 130 (2021). Here, the district court discounted Sierra’s 

testimony and found that Sierra had not demonstrated that 

trial counsel failed to effectively communicate with him. The 

court went on to find that Sierra also failed to demonstrate 

any prejudice in this regard. We will not disturb the district 

court’s finding. While it would be preferable to have trial 

counsel’s testimony directly addressing her communication 

with Sierra, we find that the totality of the record cited herein 

and by the district court supports the court’s finding regarding 

deficient performance.

Finally, Sierra has not established how the outcome of his 

trial would have been different if there had been more communication between him and trial counsel. Other than his 
- 870 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

purported alibi defense, Sierra has not shown what points of 

the trial, defense strategies, or other subject matter he would 

have liked to discuss with his trial counsel. Sierra has failed to 

show how he was prejudiced by the amount of communication 

he had with trial counsel.

Failing to File Motion to Suppress.

Sierra next argues that trial counsel was ineffective for failing to file a motion to suppress the evidence removed from his 

residence in Genoa. A large number of the tools stolen from 

the automotive shop were recovered from Sierra’s residence. 

Law enforcement investigators conducted a warrantless search 

of this residence pursuant to a search clause in Sierra’s probation order in an unrelated case. According to Sierra, it was 

unclear whether the residence searched was his residence. 

However, Sierra does not aver the residence is not his. At the 

evidentiary hearing, Sierra admitted he was on probation at 

the time of the search. At trial, Yost testified that Sierra’s probation officer provided permission for the search of Sierra’s 

residence. At trial, Anthony testified that he lived with Sierra, 

Cynthia, and Sierra’s girlfriend in Genoa. In her affidavit, 

Cynthia states that this very group was working on the bathroom walls in the same residence and that tools were coming 

to that residence. According to Cynthia’s affidavit, Sierra told 

her he would not be able to help pay his share of the bills 

because he was buying the tools from the person who was 

bringing them to the residence. No evidence was presented 

indicating Sierra was living at a place other than the residence 

that was searched.

[13] Nebraska courts have long upheld warrantless searches 

pursuant to a condition of a probation order. See State v. 

Colby, 16 Neb. App. 644, 748 N.W.2d 118 (2008) (citing 

State v. Morgan, 206 Neb. 818, 295 N.W.2d 285 (1980), 

and State v. Lingle, 209 Neb. 492, 308 N.W.2d 531 (1981)). 

Trial counsel will not be found deficient for failing to file a 

frivolous motion to suppress. Because the search of Sierra’s 
- 871 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

residence was a valid search with permission granted by 

Sierra’s probation officer, trial counsel was not ineffective for 

not filing a motion to suppress the evidence obtained from the 

search of the residence.

Failing to Object to Certain 

Testimony at Trial.

Sierra’s next assignment of error is that the court erred in 

finding that trial counsel was not ineffective for “not objecting to or making motions regarding the testimony of certain 

witnesses.” Sierra’s supplemental motion for postconviction 

relief complained of several items of testimony that he alleged 

to be objectionable. Those items included the testimony of 

Wolfe and Hanke with respect to identifications of Mally and 

Sierra in the Walmart surveillance photographs from both 

York and Norfolk. He also alleged ineffective assistance with 

respect to trial counsel’s failure to object to Hanke’s testimony regarding the location where the trailer was recovered, 

the items found in the search of Sierra’s residence, the cell 

phone records that provided location data as to Sierra’s phone 

on October 15, 2017, and statements made by Sierra in a 

“proffer” interview. On appeal, however, Sierra argues only 

that the district court erred in regard to finding no prejudice 

with regard to trial counsel’s failure to object to the identification testimony of Wolfe and Hanke.

We question whether Sierra’s referral to “the testimony of 

certain witnesses” is sufficiently assigned as error. See State v. 

Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). However, assuming without deciding that this assignment of error has been sufficiently stated, we will consider Sierra’s argument regarding 

the identification testimony of Wolfe and Hanke.

Sierra argues that trial counsel was ineffective for failing to object to the identification testimony of Sierra by 

Wolfe and Hanke. Wolfe identified Sierra as being one of 

the persons depicted in the surveillance photographs from 

the York Walmart. Hanke identified Sierra as being one of 
- 872 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

the individuals seen in surveillance photographs taken in the 

Norfolk Walmart. Sierra argues that this testimony was “at 

least objectionable, and lacked the proper foundation and 

hearsay protections which otherwise dissuade such evidence 

from being offered.” Brief for appellant at 15. The district 

court held that Sierra did not establish prejudice from this testimony, because his codefendant, Mally, also identified Sierra 

in the photographs.

While trial counsel did not object to Wolfe’s testimony, she 

did object to the admission of the photographs. The photographs were received into evidence over trial counsel’s objection. She also exposed on cross-examination that Wolfe had 

no independent basis for her identification of Sierra. After 

hearing Wolfe’s full testimony, including that given under 

cross-examination, the jurors were provided the opportunity 

to review the photographs for themselves and make their 

own judgments regarding the identification of the individuals pictured.

Likewise, trial counsel did not initially object to Hanke’s 

testimony regarding the identification of Sierra in the photographs. We note, as did the district court, that Hanke’s 

testimony was not received as direct identification evidence. 

Rather than offering the identification testimony for the truth 

of the matter, Hanke was explaining the process law enforcement went through to develop Sierra as a suspect, which ultimately led officers to conduct a search of Sierra’s cell phone 

records and his residence, where many of the tools stolen from 

the automotive shop were recovered. As Hanke’s explanation 

continued, trial counsel did make a hearsay objection that 

was sustained.

In any event, the identification testimony of Wolfe and 

Hanke was cumulative given the testimony provided by 

Mally. As a codefendant, Mally provided a full timeline of 

the events he and Sierra participated in throughout the night 

of October 14, 2017, and the morning of October 15. As 

part of that testimony, Mally explained that after stealing the 
- 873 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

tools from the automotive shop, he and Sierra went to the 

York Walmart to get a change of clothes. Mally positively 

identified himself and Sierra in the surveillance photographs. 

He also identified himself in the surveillance photographs 

of the Norfolk Walmart where an attempt was made to use a 

credit card stolen from the automotive shop. Clearly, Mally’s 

testimony was also sufficient for admission of the photographs, which are remarkably clear, into evidence. Given 

Mally’s testimony and the proper admission of the photographs, there is no reasonable probability that the outcome 

of Sierra’s case would have been different had trial counsel 

objected to Wolfe’s and Hanke’s testimony. Therefore, Sierra 

has not established that his trial counsel was ineffective for 

failing to object to the identification testimony.

Failing to Request Cautionary 

Jury Instruction.

[14] Sierra next argues that trial counsel was ineffective 

for failing to request a cautionary jury instruction regarding 

accomplice testimony. We note that Sierra produced no evidence of what the cautionary instruction should have been at 

the evidentiary hearing. We further note that on appeal, Sierra’s 

argument is simply a restatement of his assignment of error 

and an assertion that he was prejudiced. No further argument 

is given. We have long held that 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. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). Therefore, 

we will not address this assignment of error.

Failing to Maintain Her Law License.

Finally, Sierra assigns and argues that trial counsel was 

ineffective for failing to maintain her law license. In support 

of this assignment, Sierra cites to the meeting between trial 

counsel and himself at the jail that was cut short when she 

received a personal phone call. Sierra argues that “it can be 

implied that the phone call was such that the investigation 
- 874 -

Nebraska Court of Appeals Advance Sheets

31 Nebraska Appellate Reports

STATE v. SIERRA

Cite as 31 Neb. App. 852

and/or criminal charges played a role in her leaving” and 

her ongoing criminal investigation affected her overall ability to represent him in this case. Brief for appellant at 16-17. 

We disagree.

There is no evidence that trial counsel was not licensed to 

practice law at the time she was representing Sierra. In fact, 

trial counsel did not surrender her license until August 10, 

2020, well after her representation of Sierra. See State ex rel. 

Counsel for Dis. v. Waldron, 307 Neb. 343, 948 N.W.2d 795 

(2020). The circumstances relating to trial counsel’s legal 

troubles and eventual forfeiture of her law license were unrelated to Sierra’s case. There is absolutely no evidence that 

the phone call trial counsel received at the jail involved her 

criminal investigation. We will not make such an assumption. 

No other evidence was provided showing that trial counsel 

was unable to adequately represent Sierra. In fact, after the 

conclusion of the jury trial when trial counsel was formally 

charged with a felony, she withdrew as Sierra’s attorney and 

he received new counsel for sentencing. Sierra has not shown 

that trial counsel was ineffective for failing to maintain her 

law license after representing him.

CONCLUSION

Upon our review of the record, we hold that the district 

court was not clearly erroneous in overruling Sierra’s supplemental motion for postconviction relief. The evidence presented at the evidentiary hearing demonstrates as to each of 

Sierra’s allegations of ineffective assistance of counsel either 

that he did not demonstrate trial counsel’s actions were deficient or, if deficiency was proved, that he was not prejudiced 

thereby. For the reasons set forth above, we affirm the order 

of the district court denying Sierra’s motion for postconviction relief.

Affirmed.