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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

STATE V. WARREN

Cite as 312 Neb. 991

State of Nebraska, appellee, v. 

Benjamin J. Warren, appellant.

___ N.W.2d ___

Filed December 2, 2022. No. S-21-1003.

1. Appeal and Error. Where no timely statement of errors is filed in an 

appeal from a county court to a district court, appellate review is limited 

to plain error.

2. Courts: Appeal and Error. In cases where no statement of errors was 

filed, but the record showed that the district court considered an issue 

that was also assigned to a higher appellate court, the Nebraska Supreme 

Court or the Court of Appeals may consider that issue.

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. Rules of the Supreme Court: Appeal and Error. The purpose of Neb. 

Ct. R. § 6‐1518(B) is to specifically direct the attention of the reviewing 

court to precisely what error was allegedly committed by the lower court 

and to advise the nonappealing party of what is specifically at issue in 

the appeal.

5. Records: Appeal and Error. The appellant has the duty to present a 

record supporting the assigned errors.

6. Effectiveness of Counsel: Proof. Generally, 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.

Nebraska Supreme Court Online Library

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

12/09/2022 09:04 AM CST
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7. ____: ____. 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.

Appeal from the District Court for Lancaster County, Ryan 

S. Post, Judge, on appeal thereto from the County Court for 

Lancaster County, Matthew L. Acton, Judge. Judgment of 

District Court affirmed.

Nicholas R. Glasz, of Glasz Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

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

Papik, and Freudenberg, JJ.

Funke, J.

INTRODUCTION

Following a jury trial in the county court for Lancaster 

County, Nebraska, Benjamin J. Warren was convicted of disturbing the peace. Warren’s counsel timely filed an appeal with 

the district court for Lancaster County and later filed a bill of 

exceptions. However, counsel did not file a statement of errors 

within 10 days of filing the bill of exceptions, as is required by 

Neb. Ct. R. § 6‐1518(B). As a result, the district court reviewed 

Warren’s appeal only for plain error. Finding none, it affirmed 

the county court’s judgment. Warren then filed a motion to 

reconsider, which the district court denied after considering 

counsels’ arguments and the record as to Warren’s beliefs 

that he is not guilty and would have been found not guilty 

if his proposed witness had testified at trial. Warren appeals. 

We affirm.

BACKGROUND

In 2020, Warren was charged with obstructing a peace officer, disturbing the peace, and second degree criminal trespass. 

After trial in the matter, Warren was found guilty of disturbing the peace, but not guilty of the remaining charges. At 
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sentencing, Warren was ordered to pay a $300 fine and was 

given credit for time served.

Following sentencing, Warren’s trial attorney timely filed a 

notice of appeal with the district court for Lancaster County. A 

motion for substitute counsel was then sustained by the county 

court, and a new attorney was appointed to represent Warren. 

Counsel caused to be filed a bill of exceptions; however, the 

attorney failed to file a statement of errors within 10 days of 

filing the bill of exceptions or at any time thereafter.

Warren’s appeal came on for hearing before the district 

court on August 24, 2021, at which time, counsel orally moved 

to submit the matter to the court on the parties’ briefs, which 

included Warren’s initial brief, the State’s answer brief, and 

Warren’s reply brief. Warren’s counsel indicated Warren’s 

agreement to this, and the court verified Warren’s consent. 

Warren said “[y]es” when the court asked him whether submission on the briefs was “okay.”

Several days later, the district court affirmed the judgment 

and sentence of the county court. Because no statement of 

errors was timely filed, the district court limited its review to 

plain error per State v. Nielsen.

 1 It found none.

Warren subsequently sought reconsideration from the district court, arguing that he was not guilty of disturbing the 

peace and that he would have been found not guilty if his 

proposed witness had been called to testify at trial. The motion 

for reconsideration also stated that although Warren’s counsel 

advised him that testimony by a single witness that his or her 

peace was disturbed, if believed beyond a reasonable doubt by 

the jury, would suffice to prove guilt, Warren “believes that 

this would be considered plain error” under Nielsen.

Simultaneous with the request for reconsideration, the second attorney to appear on Warren’s behalf moved to withdraw. This motion was granted, and yet another attorney was 

appointed to represent Warren in the matter.

1 State v. Nielsen, 301 Neb. 88, 917 N.W.2d 159 (2018).
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At the hearing on the motion to reconsider, Warren argued 

that, on appeal, he received ineffective assistance of counsel 

and that he should be allowed to file the statement of errors for 

the court to reconsider the appeal.

The district court subsequently overruled Warren’s motion 

to reconsider, which it treated as a motion to alter or amend 

per DeBose v. State 2 and related cases. The district court specifically mentioned Warren’s beliefs regarding his guilt and 

his proposed witness’ testimony. It indicated that “[o]n each 

of these points,” it “considered the arguments of counsel [and] 

reviewed the record,” but it denied the motion.

Warren appealed to the Nebraska Court of Appeals, and we 

moved the matter to our docket.

ASSIGNMENTS OF ERROR

Warren assigns, restated, that (1) the district court erred in 

limiting its review to plain error and (2) counsel was ineffective in failing to file a statement of errors.

STANDARD OF REVIEW

[1,2] Where no timely statement of errors is filed in an 

appeal from a county court to a district court, appellate review 

is limited to plain error. 3 In cases where no statement of errors 

was filed, but the record showed that the district court considered an issue that was also assigned to a higher appellate court, 

the Nebraska Supreme Court or the Court of Appeals may consider that issue. 4

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

counsel is a mixed question of law and fact. 5 When reviewing a claim of ineffective assistance of counsel, an appellate 

court reviews the factual findings of the lower court for clear 

2 DeBose v. State, 267 Neb. 116, 672 N.W.2d 426 (2003).

3 Nielsen, supra note 1.

4 Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018).

5 State v. Ellis, 311 Neb. 862, 975 N.W.2d 530 (2022).
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error. 6 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,

 7 an appellate court 

reviews such legal determinations independently of the lower 

court’s decision. 8

ANALYSIS

Failure to File Statement of Errors

Warren argues that the district court erred by reviewing his 

appeal only for plain error, instead of reviewing the errors 

alleged in his briefs. He maintains that the district court should 

have considered the errors alleged in the briefs, because the 

court “had the matter submitted on [the] briefs.” 9 Warren’s 

arguments, however, are inconsistent with the prior decisions 

of this court and the record on appeal. As such, they are without merit.

[4] Section 6‐1518(B) prescribes that in an appeal from 

the county court to the district court, the appellant shall file 

a statement of errors with the district court within 10 days of 

filing the bill of exceptions. Such statement shall consist of a 

separate, concise statement of each error allegedly made by 

the trial court, and each assignment of error shall be separately 

numbered and paragraphed. 10 This rule is a longstanding one, 

adopted in 1991, 11 and we have recognized that it serves an 

important purpose. The purpose of the rule is to specifically 

direct the attention of the reviewing court to precisely what 

error was allegedly committed by the lower court and to advise 

the nonappealing party of what is specifically at issue in the 

6 Id.

7 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

8 Ellis, supra note 5.

9 Brief for appellant at 7.

10 § 6‐1518(B).

11 See State v. Hanger, 241 Neb. 812, 491 N.W.2d 55 (1992).
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appeal. 12 We and the Court of Appeals have repeatedly held 

that where an appellant fails to comply with this rule, appellate review is limited to plain error under the standard previously noted. 13

Warren would have us disregard these precedents and find 

that the district court should have considered the errors alleged 

in his briefs because the matter was submitted on the briefs. 

We decline to adopt such an approach given the facts and circumstances of this case. The record shows that Warren moved 

for the matter to be submitted to the court on briefs. His counsel indicated that he agreed to submission on the briefs, and 

the court expressly sought and received his consent to proceed 

in this manner. As the party who moved for submission on the 

briefs, Warren cannot now rely on the court’s acceptance of 

such submission as the basis for asserting that the court should 

have considered the arguments in the briefs despite the general 

rule that review is limited to plain error when an appellant fails 

to file a statement of errors.

Further, the record shows that the district court actually considered Warren’s beliefs about his guilt and his proposed witness’ testimony in connection with Warren’s motion for reconsideration. The district court limited its review to plain error 

under the precedents previously cited when it initially affirmed 

the judgment and sentence of the county court. However, 

Warren subsequently moved for reconsideration, which the district court treated as a motion to alter or amend. 14 At that point, 

the district court “considered the arguments of counsel [and] 

reviewed the record” as to Warren’s beliefs that he is not guilty 

12 See, e.g., State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005); State v. 

Zimmerman, 19 Neb. App. 451, 810 N.W.2d 167 (2012).

13 See, e.g., North Star Mut. Ins. Co. v. Stewart, 311 Neb. 33, 970 N.W.2d 

461 (2022); Griffin, supra note 12; Zimmerman, supra note 12; State v. 

Harper, 19 Neb. App. 93, 800 N.W.2d 683 (2011).

14 Cf. State v. Lotter, 301 Neb. 125, 135, 917 N.W.2d 850, 858 (2018) 

(motion for reconsideration is “functional equivalent” of motion to alter or 

amend judgment).
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of disturbing the peace and that he would have been found not 

guilty if his proposed witness testified at trial.

[5] It is not apparent from the record what, if any, other 

errors Warren’s briefs may have assigned as to the county court 

proceedings. The briefs are not part of the record on appeal. 

Additionally, he has not provided any indication of other 

alleged errors as to the county court proceedings beyond his 

beliefs about his guilt, his proposed witness’ testimony, and his 

conviction based on the testimony of one witness. The appellant has the duty to present a record supporting the assigned 

errors. 15 Insofar as Warren alleges that the district court erred 

in not considering other issues raised in the briefs, he failed to 

provide a record supporting such error.

Ineffective Assistance of Counsel

Warren argues that his “trial counsel” was ineffective in 

failing to file a statement of errors. 16 He argues that prejudice 

to his defense should be presumed because he “was effectively denied his due process right to appeal.” 17 He maintains 

that his case is “analogous” to Garza v. Idaho 18 and Roe v. 

Flores‐Ortega,

 19 two decisions in which the U.S. Supreme 

Court found that prejudice is presumed where counsel fails to 

file an appeal when requested to do so by the defendant. 20 He 

similarly maintains that he received the same type of cursory 

review that the concurring opinion in State v. Sundquist 21 suggested may warrant a presumption of prejudice. We disagree.

15 See, e.g., Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566 (2015).

16 Brief for appellant at 7.

17 Id.

18 Garza v. Idaho, ___ U.S. ___, 139 S. Ct. 738, 203 L. Ed. 2d 77 (2019).

19 Roe v. Flores‐Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 

(2000).

20 Brief for appellant at 8.

21 State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019) (Cassel, J., 

concurring; Miller‐Lerman, J., joins).
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[6] Generally, to prevail on a claim of ineffective assistance of counsel under Strickland,

 22 the defendant must show 

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

this deficient performance actually prejudiced the defendant’s 

defense. 23 In this case, the State concedes that the failure to file 

a statement of errors was deficient performance. As such, we, 

like Warren, focus on the issue of prejudice.

[7] To show prejudice under Strickland, the defendant generally must demonstrate a reasonable probability that but for 

his or her counsel’s deficient performance, the result of the 

proceeding would have been different. 24 However, Strickland 

also recognized that “[in] certain Sixth Amendment contexts, 

prejudice is presumed.” 25 In these contexts, prejudice is “so 

likely that case‐by‐case inquiry into prejudice is not worth 

the cost.” 26

Strickland and United States v. Cronic,

 27 another ineffective 

assistance of counsel opinion issued the same day as Strickland, 

recognized three such contexts, involving the “actual or constructive denial of the assistance of counsel altogether,” 28 “state 

interference with counsel’s assistance,” 29 and “counsel entirely 

fail[ing] to subject the prosecution’s case to meaningful adversarial testing.” 30 Subsequent opinions of the U.S. Supreme 

Court and this court have also found that a presumption of 

prejudice is warranted where the defendant is left completely 

22 Strickland, supra note 7.

23 State v. Lessley, ante p. 316, 978 N.W.2d 620 (2022).

24 Id.

25 Strickland, supra note 7, 466 U.S. at 692.

26 Id.

27 United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 

(1984).

28 Strickland, supra note 7, 466 U.S. at 683.

29 Id., 466 U.S. at 692.

30 Cronic, supra note 27, 466 U.S. at 659.
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without representation on appeal and where counsel’s failure to 

file or perfect an appeal requested by the defendant results in 

the forfeiture of the proceeding itself. 31

None of the previously recognized contexts are implicated in 

Warren’s case, and his argument that prejudice should nonetheless be presumed because he was “effectively denied his due 

process right to appeal” 32 is inconsistent with the prior decisions of this and other courts.

For example, in Flores‐Ortega, the U.S. Supreme Court distinguished “forfeiture of a proceeding itself” from “a judicial 

proceeding of disputed reliability” when finding that prejudice 

is presumed where counsel fails to file an appeal requested by 

the defendant. 33 The Court opined that this was an “unusual” 

case and that counsel’s deficient performance deprived the 

defendant of “more than a fair judicial proceeding; that deficiency deprived [the defendant] of the appellate proceeding 

altogether.” 34 We drew a similar distinction in State v. Trotter 35

when finding that prejudice is presumed where counsel’s failure to file a proper poverty affidavit resulted in the dismissal of 

the defendant’s appeal. We concluded that the attorney’s failure 

to perfect the appeal “‘essentially waive[d] [the defendant’s] 

opportunity to make a case on the merits.’” 36

Other decisions take a similar approach when discussing 

deficiencies in counsel’s performance that did not result in 

31 Garza, supra note 18; Flores‐Ortega, supra note 19; Penson v. Ohio, 488 

U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); State v. Trotter, 259 

Neb. 212, 609 N.W.2d 33 (2000).

32 Brief for appellant at 7.

33 Flores‐Ortega, supra note 19, 528 U.S. at 483.

34 Id. See, also, Penson, supra note 31, 488 U.S. at 88 (“denial of counsel 

in this case left petitioner completely without representation during the 

appellate court’s actual decisional process. This is quite different” from 

case alleging other defects in counsel’s performance).

35 Trotter, supra note 31.

36 Id. at 222, 609 N.W.2d at 40.
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forfeiture of the proceeding itself. For example, in Cronic, the 

U.S. Supreme Court declined to presume prejudice where an 

inexperienced attorney, whom the court gave little time to prepare, represented the defendant in a complex mail fraud trial, 

because these factors “do not demonstrate that counsel failed 

to function in any meaningful sense as the Government’s 

adversary.” 37 Similarly, in Bell v. Cone,

 38 the U.S. Supreme 

Court distinguished failure to oppose the prosecution “throughout the sentencing proceeding as a whole” from failure to 

oppose the prosecution “at specific points” when rejecting a 

presumption of prejudice where defendant’s counsel failed to 

“‘mount some case for life’” at a capital sentencing hearing. 

The defendant in that case argued that by failing to call witnesses at the hearing and waiving closing arguments, his counsel failed to test the prosecution’s case, as contemplated by 

Cronic. The Court disagreed, emphasizing that under Cronic, 

“the attorney’s failure must be complete.” 39

The Bell Court further explained that “th[e] difference” 

between a case where prejudice must be proved and one where 

it is presumed is “not of degree but of kind.” 40 Likewise, in 

Florida v. Nixon,

 41 the Court opined that the presumption 

of prejudice represents a “narrow exception” to the general 

requirement in Strickland that prejudice must be proved, which 

arises “infrequently,” when declining to presume prejudice 

where counsel conceded defendant’s guilt without defendant’s 

express consent. The defendant in Nixon also argued that 

counsel’s failure was a failure to test the prosecution’s case 

37 Cronic, supra note 27, 466 U.S. at 666.

38 Bell v. Cone, 535 U.S. 685, 696, 697, 122 S. Ct. 1843, 152 L. Ed. 2d 914 

(2002).

39 Id., 535 U.S. at 697.

40 Id.

41 Florida v. Nixon, 543 U.S. 175, 190, 125 S. Ct. 551, 160 L. Ed. 2d 565 

(2004).
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under Cronic. However, the Court again rejected this argument, 

because counsel’s failure must be “‘complete.’” 42

Collectively, these cases show why the circumstances 

alleged by Warren are not tantamount to being denied an 

appeal. Counsel’s failure to file a statement of errors did not 

result in forfeiture of the appeal, unlike in Flores‐Ortega and 

Trotter. Nor did it result in a complete failure to test the prosecution’s case, like that envisioned in Cronic, Bell, and Nixon. 

The record shows that counsel filed briefs and a motion for 

reconsideration on Warren’s behalf. It is true that the record 

does not establish what arguments counsel made in those 

briefs. However, the record does show that counsel advanced 

and the district court actually considered Warren’s beliefs that 

he is not guilty and that he would have been found not guilty if 

his proposed witness had been called at trial.

Warren has not indicated any other assignments of error—

beyond his beliefs about his guilt, his proposed witness’ testimony, and his conviction based on the testimony of one 

witness—that he made as to the county court proceedings. 

However, even assuming that there were other assigned errors, 

any inability to raise them due to counsel’s failure to file a 

statement of error would constitute a failure to raise particular 

issues, or to oppose the prosecution on specific points, as in 

Bell and Nixon. It would not demonstrate a complete failure 

under Cronic.

Our earlier decision in State v. Assad 43 illustrates this point. 

The defendant in that case also argued that he “‘effectively 

received no direct appeal’” where his appellate counsel initially assigned only errors pertaining to issues that were not 

preserved for appellate review. 44 We rejected this argument, 

42 Id. See, also, Smith v. Robbins, 528 U.S. 259, 286, 120 S. Ct. 746, 145 L. 

Ed. 2d 756 (2000) (distinguishing “denial of counsel altogether on appeal” 

from “mere ineffective assistance of counsel”).

43 State v. Assad, 304 Neb. 979, 938 N.W.2d 297 (2020).

44 Id. at 988‐89, 938 N.W.2d at 303.
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because the substance of his complaint was that counsel raised 

some issues, and not others, and this type of alleged error is 

subject to the general requirement in Strickland that prejudice 

be proved, rather than a presumption of prejudice. 45 We see no 

reason to adopt a different view here.

Warren’s argument that his appeal received the same type of 

cursory review that was of concern to the concurring justices in 

Sundquist is similarly unavailing. 46 The defendant in Sundquist 

also alleged ineffective assistance of counsel based on his 

counsel’s failure to file a statement of errors when appealing 

a county court criminal case to the district court. However, 

the record showed that counsel had actually raised the same 

argument regarding the reoffer of a plea agreement that the 

defendant advanced on appeal, and the district court considered 

the merits of this argument, instead of reviewing only for plain 

error. 47 The concurring justices found these factors significant 

and suggested that a presumption of prejudice might otherwise be warranted if “counsel files no statement of errors and 

advances no arguments for reversal, which results in a cursory 

review by the district court for plain error.” 48

In Warren’s case, however, it cannot be said that counsel 

“advance[d] no arguments for reversal,” as contemplated by 

the Sundquist concurrence. 49 As we previously observed, the 

record on appeal shows that Warren’s counsel filed initial 

and reply briefs, as well as a motion for reconsideration. As 

such, the facts of this case are not tantamount to the denial 

of appellate counsel contemplated by the concurrence in 

Sundquist.

45 Assad, supra note 43.

46 See Sundquist, supra note 21 (Cassel, J., concurring; Miller‐Lerman, J., 

joins).

47 Sundquist, supra note 21.

48 Id. at 1025, 921 N.W.2d at 146 (Cassel, J., concurring; Miller‐Lerman, J., 

joins).

49 See id.
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As to the merits of Warren’s claim of ineffective assistance 

of counsel absent a presumption of prejudice, we note that 

appellate courts have generally reached ineffective assistance 

of counsel claims on direct appeal only in those instances 

where it was clear from the record that such claims were without merit or in the rare case where trial counsel’s error was so 

egregious and resulted in such a high level of prejudice that 

no tactic or strategy could overcome the effect of the error, 

which effect was a fundamentally unfair trial. 50 This is not such 

a case.

CONCLUSION

Warren’s argument that the district court erred by limiting its 

review to plain error is without merit. As to Warren’s argument 

that trial counsel was ineffective for failing to file a statement 

of errors, the record is insufficient to reach that argument. 

Accordingly, the judgment of the district court is affirmed.

Affirmed.

50 State v. Kipple, 310 Neb. 654, 968 N.W.2d 613 (2022).