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STATE v. VANNESS

Cite as 300 Neb. 159

State of Nebraska, appellee, v.

Kelly A. Vanness, appe

___ N.W.2d ___

Filed June 8, 2018. No. S-17-687.

1. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is 

a question of law.

2. ____: ____. In reviewing claims of ineffective assistance of counsel on 

direct appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and 

whether the defendant was or was not prejudiced by counsel’s alleged 

deficient performance.

3. Appeal and Error. Plain error may be found on appeal when an error 

unasserted or uncomplained 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.

4. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial 

counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel’s ineffective 

performance which is known to the defendant or is apparent from the 

record. Otherwise, the issue will be procedurally barred.

5. Effectiveness of Counsel: Records: Appeal and Error. The fact that 

an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. The determining factor is 

whether the record is sufficient to adequately review the question.

6. ____: ____: ____. An appellate court can determine whether the record 

proves or rebuts the merits of a claim of ineffective assistance of trial 

counsel only if it has knowledge of the specific conduct alleged to constitute deficient performance.

7. Effectiveness of Counsel: Postconviction: Records: Appeal and 

Error. An ineffective assistance of counsel claim is raised on direct 

Nebraska Supreme Court Online Library

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

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appeal when allegations of deficient performance are made with 

enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) 

a district court later reviewing a petition for postconviction relief to 

be able to recognize whether the claim was brought before the appellate court.

8. Constitutional Law: Effectiveness of Counsel: Conflict of Interest. 

The fact of multiple representation alone is not a per se violation of the 

Sixth Amendment.

9. Effectiveness of Counsel: Conflict of Interest: Proof. A defendant 

who raised no objection at trial must show that an actual conflict of 

interest existed. When an actual conflict exists, there is no need to show 

that the conflict resulted in actual prejudice to the defendant.

10. Effectiveness of Counsel: Conflict of Interest: Presumptions: Proof. 

If the defendant shows that his or her defense counsel faced a situation 

in which conflicting loyalties pointed in opposite directions and that 

his or her counsel acted for the other client’s interests or the counsel’s 

own personal interests and against the defendant’s interests, prejudice 

is presumed.

11. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether the sentencing court abused its discretion in 

considering and applying the relevant factors as well as any applicable 

legal principles in determining the sentence to be imposed.

12. Sentences. When imposing a sentence, the sentencing court is to consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or 

record of law-abiding conduct, and (6) motivation for the offense, as 

well as (7) the nature of the offense and (8) the amount of violence 

involved in the commission of the crime.

13. ____. Generally, it is within a trial court’s discretion to direct that 

sentences imposed for separate crimes be served either concurrently 

or consecutively. This is so even when offenses carry a mandatory 

minimum sentence, unless the statute requires that consecutive sentences 

be imposed.

14. ____. A court’s failure to advise a defendant of the correct statutory minimum and maximum penalties does not automatically warrant 

reversal.

15. ____. A determinate sentence is imposed when the defendant is sentenced to a single term of years.

16. ____. When imposing an indeterminate sentence, a sentencing court 

ordinarily articulates either a minimum term and maximum term or a 

range of time for which a defendant is to be incarcerated.
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17. ____. In Nebraska, the fact that the minimum term and maximum term 

of a sentence are the same does not affect the sentence’s status as an 

indeterminate sentence.

Appeal from the District Court for Holt County: Mark D

Kozisek, Judge. Affirmed as modified

Martin V. Klein, of Carney Law, P.C., for appellant.

Douglas J. Peterson, Attorney General, Joe Meyer, and 

Nathan A. Liss for appellee.

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

JJ., and Strong, District Judg

Miller-Lerman,

I. NATURE OF CASE

Kelly A. Vanness accepted a plea agreement and entered 

pleas to four charges in the district court for Holt County, 

for which she was convicted and sentenced to a combined 

22 to 22 months’ imprisonment with periods of postrelease 

supervision. Vanness claims that trial counsel was ineffective 

in various respects. She also appeals her sentences, claiming 

they are excessive and an abuse of discretion. The State notes 

two possible points of plain error in connection with the sentencing. The State notes that (1) the district court incorrectly 

advised Vanness that conviction of a Class IV felony carries 

a maximum of 5 years in prison, whereas the actual sentence 

maximum was 2 years, and (2) the district court “may” have 

imposed an indeterminate sentence, whereas the applicable 

statutes for the convictions on three of the counts require determinate sentences. We affirm Vanness’ convictions and modify 

certain sentences, as we explain below.

II. STATEMENT OF FACTS

In an information filed December 22, 2015, in the district 

court for Holt County, Vanness was charged with four counts 

consisting of the following: operating a motor vehicle during a time of suspension, Neb. Rev. Stat. § 60-4,108 (Cum. 
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Supp. 2016), a Class III misdemeanor (Count 1); possession 

of a controlled substance (methamphetamine), Neb. Rev. Stat. 

§ 28-416(3) (Supp. 2015), a Class IV felony (Count 2); possession of a controlled substance (hydrocodone), § 28-416(3), 

a Class IV felony (Count 3); and possession of drug paraphernalia, Neb. Rev. Stat. § 28-441 (Reissue 2016), an infraction 

(Count 4).

On February 8, 2016, Vanness pled guilty to all counts 

alleged in the information. At the plea hearing, Vanness stated 

that she was present in Holt County on September 13, 2015, 

operating a motor vehicle with a driver’s license which had 

been suspended for the reason that the insurance had expired. 

She stated that she was in possession of methamphetamine and 

hydrocodone which was not prescribed to her, and a pipe recognized as drug paraphernalia. The district court found that a 

factual basis existed for the pleas of guilty.

At the plea hearing, the district court informed Vanness of 

her constitutional rights and that by pleading, she would be 

giving up these enumerated rights; Vanness stated that she 

understood and still wished to plead. The district court also 

inquired about Vanness’ satisfaction with her trial counsel, 

which we recite in greater detail below. The district court 

found that Vanness understood her constitutional and statutory 

rights and that her pleas were made freely, voluntarily, knowingly, and intelligently. The court accepted the pleas of guilty 

and found Vanness guilty of all charges.

The district court postponed sentencing pending Vanness’ 

participation in the “North Central Problem Solving Court.” 

However, her participation in the problem-solving court was 

terminated on April 10, 2017.

On June 6, 2017, following preparation of a presentence 

investigation report, the district court pronounced the sentence 

of 60 to 60 days’ imprisonment for the conviction on Count 1, 

to run concurrently with all sentences imposed. For the conviction on Count 2, she was sentenced to 12 to 12 months’ imprisonment with 9 months of postrelease supervision, with credit 

for 26 days served, to run consecutively to other sentences. 
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For the conviction on Count 3, the district court sentenced 

Vanness to 10 to 10 months’ imprisonment, to run consecutively to other sentences, with a period of 9 months of successive and additional postrelease supervision. Vanness was fined 

$100 for the conviction on Count 4.

This appeal followed.

III. ASSIGNMENTS OF ERROR

Vanness claims that her trial counsel was ineffective in 

various respects and that the district court erred by imposing 

excessive sentences.

IV. STANDARDS OF REVIEW

[1,2] Whether a claim of ineffective assistance of trial 

counsel may be determined on direct appeal is a question of 

law. State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017). In 

reviewing claims of ineffective assistance of counsel on direct 

appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively 

determine whether counsel did or did not provide effective 

assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance. Id.

[3] Plain error may be found on appeal when an error unasserted or uncomplained 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. Ramirez, 287 

Neb. 356, 842 N.W.2d 694 (2014).

V. ANALYSIS

As we explain below, with regard to Vanness’ claims of 

ineffectiveness of trial counsel, we are unable to reach the 

merits of her claim that trial counsel had a conflict of interest, but we determine that her other claims of ineffectiveness 

are refuted by the record. We determine that the sentences 

imposed on Vanness’ convictions did not exceed the statutory limits, and we find no abuse of discretion in connection 

with the district court’s rationale in sentencing. However, we 
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find plain error in the sentences imposed for the convictions 

on Counts 1, 2, and 3, because the district court pronounced 

indeterminate sentences where determinate sentences were 

required by statutes. Accordingly, we affirm Vanness’ convictions and modify her sentences for the convictions on Counts 

1, 2, and 3.

1. Ineffective Assi

of Counse

[4,5] Vanness is represented on direct appeal by counsel 

different from the counsel who represented her at trial. When 

a defendant’s trial counsel is different from his or her counsel 

on direct appeal, the defendant must raise on direct appeal any 

issue of trial counsel’s ineffective performance which is known 

to the defendant or is apparent from the record. State v. Lane, 

299 Neb. 170, 907 N.W.2d 737 (2018). Otherwise, the issue 

will be procedurally barred. Id. The fact that an ineffective 

assistance of counsel claim is raised on direct appeal does not 

necessarily mean that it can be resolved. Id. The determining 

factor is whether the record is sufficient to adequately review 

the question. Id.

[6,7] An appellate court can determine whether the record 

proves or rebuts the merits of a claim of ineffective assistance 

of trial counsel only if it has knowledge of the specific conduct 

alleged to constitute deficient performance. Id. An ineffective 

assistance of counsel claim is raised on direct appeal when 

allegations of deficient performance are made with enough 

particularity for (1) an appellate court to make a determination 

of whether the claim can be decided upon the trial record and 

(2) a district court later reviewing a petition for postconviction 

relief to be able to recognize whether the claim was brought 

before the appellate court. Id.

(a) Trial Counsel’s Alleged 

Conflict of Interest

Vanness asserts that she was denied effective assistance of 

trial counsel because of an actual conflict of interest arising 
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out of counsel’s representation of another individual. Vanness 

specifically notes that her trial counsel also represented another 

person who was arrested with Vanness and that their cases were 

consolidated for purposes of their plea hearings. Vanness contends that because the other defendant sold the drugs involved 

in this case and the drugs belonged to the other defendant, an 

actual conflict existed.

[8-10] The fact of multiple representation alone is not a per 

se violation of the Sixth Amendment. State v. Narcisse, 260 

Neb. 55, 615 N.W.2d 110 (2000). A defendant who raised no 

objection at trial must show that an actual conflict of interest 

existed. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018). 

When an actual conflict exists, there is no need to show that 

the conflict resulted in actual prejudice to the defendant. Id. If 

the defendant shows that his or her defense counsel faced a situation in which conflicting loyalties pointed in opposite directions and that his or her counsel acted for the other client’s 

interests or the counsel’s own personal interests and against the 

defendant’s interests, prejudice is presumed. Id. A conflict of 

interest must be actual, rather than speculative or hypothetical, 

before a court can overturn a conviction because of ineffective 

assistance of counsel. Id.

Although Vanness’ allegation regarding an alleged conflict 

of interest of her trial counsel due to multiple representation is 

sufficiently stated, the record is insufficient to review it in this 

direct appeal.

(b) Trial Counsel’s Failure to Investigate 

Innocence Defense and Advisement 

of Lenient Sentencing

On appeal, Vanness claims that drugs found at the scene 

of the arrest belonged to another individual and that her trial 

counsel failed to investigate a possible defense of innocence. 

The files and records of the case affirmatively show that 

this allegation of ineffectiveness of counsel has no merit. At 

the plea hearing, the trial judge specifically asked whether 

Vanness explained to her trial counsel all theories of defense 
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that she might have or could think of, and whether her 

trial counsel investigated the defenses which she thought she 

might have to her satisfaction. Vanness responded “[y]es” to 

both inquiries.

Vanness further claims that her trial counsel advised her to 

plead guilty because she would receive “a lenient sentence.” 

Brief for appellant at 10. This allegation of ineffectiveness of 

counsel has no merit. During the colloquy at the plea hearing, Vanness denied that any threats or promises were made 

to induce her to enter her pleas of guilty. The record affirmatively refutes Vanness’ claim that she was promised lenient 

sentencing. See State v. Casares, 291 Neb. 150, 864 N.W.2d 

667 (2015).

2. Sentencing 

(a) Excessive Sentences

Vanness generally claims that the sentences imposed were 

excessive and an abuse of discretion. In particular, Vanness 

contends that she should have been sentenced to either lesser 

sentences or concurrent sentences. We find no merit to Vanness’ 

claims regarding excessiveness of sentences.

[11-13] Where a sentence imposed within the statutory 

limits is alleged on appeal to be excessive, the appellate court 

must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well 

as any applicable legal principles in determining the sentence 

to be imposed. State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 

(2018). When imposing a sentence, the sentencing court is 

to consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) 

past criminal record or record of law-abiding conduct, and 

(6) motivation for the offense, as well as (7) the nature of 

the offense and (8) the amount of violence involved in the 

commission of the crime. Id. Generally, it is within a trial 

court’s discretion to direct that sentences imposed for separate crimes be served either concurrently or consecutively. Id. 

This is so even when offenses carry a mandatory minimum 
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sentence, unless the statute requires that consecutive sentences 

be imposed. Id.

We have reviewed the record which shows that the sentence 

imposed on each of Vanness’ convictions was within the statutory limits and that the district court considered and applied 

the necessary sentencing factors. The district court expressed 

concern for Vanness’ substance abuse history, relapses, and her 

lack of success in the problem-solving court. The district court 

noted one of “the overriding considerations” was protecting 

the public from Vanness, who had recently been in an accident while reportedly driving under the influence of drugs and 

alcohol. Given her relapse in the problem-solving court, the 

district court stated that maintaining Vanness in a “controlled 

environment” such as prison might allow her to become less 

likely to abuse drugs and alcohol and less likely to “harm 

someone else or [her]self.” We do not find an abuse of discretion in the court’s consideration of sentencing factors.

(b) Incorrect Advisement

[14] The State notes that when Vanness pleaded guilty, 

the district court incorrectly advised her that the potential 

maximum penalty for the conviction of a Class IV felony 

was 5 years’ imprisonment. However, because the date of the 

offenses was in September 2015, after 2015 Neb. Laws, L.B. 

605, had become effective on August 30, 2015, the maximum 

sentence of imprisonment for the conviction of a Class IV 

felony was 2 years. Neb. Rev. Stat. § 28-105 (Supp. 2015). 

We have observed that a court’s failure to advise a defendant of the correct statutory minimum and maximum penalties does not automatically warrant reversal. State v. Russell, 

291 Neb. 33, 863 N.W.2d 813 (2015). Here, the district court 

erroneously advised Vanness that the range of penalties for 

the convictions on Counts 2 and 3, possession of methamphetamine and hydrocodone, was 0 to 5 years’ imprisonment. Although incorrect, this advisement did not prejudice 

Vanness. The sentences actually imposed of 12 to 12 months’ 

imprisonment with 9 months of postrelease supervision, and 
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10 to 10 months’ imprisonment, with a period of 9 months of 

successive postrelease supervision were both under the statutory maximum and the maximum articulated by the district 

court. See id. Facing a higher, albeit incorrect maximum, it is 

“inconceivable” that Vanness would agree to plead guilty to a 

higher maximum but not the lesser sentence which was actually imposed. See id. at 42, 863 N.W.2d at 820.

(c) Plain Error in Sentencing

The State notes a possible error regarding whether 

Vanness’ sentences were “determinate” as required by statutes. Specifically, the convictions on Counts 1, 2, and 3 

should have been determinate sentences under Neb. Rev. Stat. 

§ 29-2204.02(1)(a) (Supp. 2015) (Class IV felonies) and Neb. 

Rev. Stat. § 28-106(2) (Supp. 2015) (misdemeanors).

No error has been assigned with regard to the periods of 

postrelease supervision imposed, the credit for time served, 

or the consecutive nature of Vanness’ sentencing which we 

have not already addressed. However, when the district court 

pronounced the sentences of 60 to 60 days’ imprisonment for 

the convictions on Count 1, a Class III misdemeanor; 12 to 12 

months’ imprisonment on Count 2, a Class IV felony; and 10 

to 10 months’ imprisonment on Count 3, a Class IV felony, 

such sentences were indeterminate rather than determinate. 

The district court plainly erred by failing to pronounce determinate sentences, and such error requires that we modify these 

sentences on direct appeal.

[15-17] We recently clarified the distinction between determinate and indeterminate sentences. See State v. Artis, 296 

Neb. 172, 893 N.W.2d 421 (2017), modified on denial of 

rehearing 296 Neb. 606, 894 N.W.2d 349. In Artis, we said:

A determinate sentence is imposed when the defendant 

is sentenced to a single term of years, such as a sentence 

of 2 years’ imprisonment. See State v. White, 256 Neb. 

536, 590 N.W.2d 863 (1999). In contrast, when imposing 

an indeterminate sentence, a sentencing court ordinarily 

articulates either a minimum term and maximum term or 
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a range of time for which a defendant is to be incarcerated. Neb. Rev. Stat. § 28-105 (Reissue 2016); State v. 

White, supra. In Nebraska, the fact that the minimum 

term and maximum term of a sentence are the same 

does not affect the sentence’s status as an indeterminate 

sentence. See State v. Marrs, 272 Neb. 573, 723 N.W.2d 

499 (2006); State v. Urbano, 256 Neb. 194, 589 N.W.2d 

144 (1999).

296 Neb. at 607, 894 N.W.2d at 349-50.

In its brief, the State refers to Artis, supra, and maintains 

that Vanness’ sentences are “determinate” for the reasons the 

sentences are for an identifiable and definite term of years and 

the inclusion of postrelease supervision on the sentences for 

Vanness’ Class IV felonies shows the district court intended 

to impose determinate sentences. See § 29-2204.02(1). The 

State’s characterization of the sentences in question is not consistent with our historical or recent jurisprudence.

Although Vanness’ sentences have the same minimum and 

maximum term of years and can be definitely ascertained, 

these features do not convert them into determinate sentences. 

They were not pronounced as a “single term of years” and 

thus are not determinate, and the district court plainly erred. 

See Artis, 296 Neb. at 607, 894 N.W.2d at 350. For completeness, we note that to the extent any of our prior cases have 

been perceived as characterizing sentences where the minimum and maximum terms were the same number as determinate, these articulations were not a complete statement of the 

laws and are disapproved. See, e.g., Johnson v. Clarke, 258 

Neb. 316, 603 N.W.2d 373 (1999) (discussing calculation of 

credit concerning parole dates). We reaffirm the rule in Artis

that a determinate sentence is a single term of years and an 

indeterminate sentence is a minimum term and maximum 

term or a range of time for which a defendant is to be incarcerated, even if the minimum and maximum number are the 

same. See, also, State v. Marrs, 272 Neb. 573, 723 N.W.2d 

499 (2006); State v. Urbano, 256 Neb. 194, 589 N.W.2d 

144 (1999).
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Because the court’s intended sentences are apparent from 

the record, and because we find no other error in sentencing, 

as indicated below, we modify each of Vanness’ sentences of 

imprisonment for the convictions on Counts 1, 2, and 3 to a 

single term of years, in accordance with §§ 29-2204.02(1)(a) 

and 28-106(2). We find no error and therefore affirm the sentence for the conviction on Count 4.

VI. CONCLUSION

The record is insufficient to resolve Vanness’ claim that 

trial counsel was ineffective due to an actual conflict of interest. Vanness’ claims that she was denied effective assistance 

of trial counsel based on potential defenses or promises of 

leniency are affirmatively refuted by the record. We affirm 

Vanness’ convictions.

With regard to sentencing, we determine that Vanness’ 

sentences did not exceed the statutory range and that there 

was no error regarding the sentence for the conviction on 

Count 4. However, because the district court pronounced 

indeterminate sentences instead of determinate sentences 

for the convictions on Counts 1, 2, and 3, as required by 

§§ 29-2204.02(1)(a) and 28-106(2), we modify Vanness’ sentences as follows: for the conviction on Count 1, 60 days’ 

imprisonment to run concurrently with all sentences imposed. 

For the conviction on Count 2, 12 months’ imprisonment 

with 9 months of postrelease supervision, with credit for 26 

days served, to run consecutively to other sentences. For the 

conviction on Count 3, 10 months’ imprisonment, to run consecutively to other sentences, with a period of 9 months of 

successive and additional postrelease supervision. We find no 

error and therefore affirm the sentence for the conviction on 

Count 4.

Affirmed as modified