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29 Nebraska Appellate Reports

STATE v. ANTHONY

Cite as 29 Neb. App. 839

State of Nebraska, appellee and cross-appellant, 

v. Ricky Earl Anthony, appellant 

and cross-appellee.

___ N.W.2d ___

Filed May 11, 2021. No. A-20-644.

1. Statutes: Appeal and Error. Statutory interpretation presents a question 

of law, and an appellate court resolves such issues independently of the 

lower court’s conclusions.

2. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

3. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

4. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

5. Postconviction: Constitutional Law: Proof. A trial court must grant 

an evidentiary hearing on a motion for postconviction relief when 

the motion contains factual allegations which, if proved, constitute 

an infringement of the movant’s rights under the Nebraska or federal 

Constitution. If a court grants such an evidentiary hearing, it is obligated 

to determine the issues and make findings of fact and conclusions of law 

with respect thereto.

6. 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.

7. Effectiveness of Counsel: Appeal and Error. If the record is sufficient 

to address the ineffective assistance of counsel claim, an appellate court 

reviews the factual findings of the lower court for clear error.

8. ____: ____. With regard to the questions of counsel’s performance or 

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

Nebraska Supreme Court Online Library

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

05/11/2021 09:10 AM CDT
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STATE v. ANTHONY

Cite as 29 Neb. App. 839

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.

9. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.

To show deficient performance, a defendant must show that counsel’s 

performance did not equal that of a lawyer with ordinary training and 

skill in criminal law in the area.

10. Homicide: Motor Vehicles: Proof: Habitual Criminals: Sentences.

Because the State must prove an additional element in order to convict 

a defendant of felony motor vehicle homicide, rather than misdemeanor 

motor vehicle homicide, there is no impermissible double enhancement 

when a person is convicted of felony motor vehicle homicide and is 

determined to be a habitual criminal.

11. Effectiveness of Counsel. Trial counsel does not provide ineffective 

assistance in failing to raise an unsuccessful argument.

12. Sentences. When imposing a sentence, a sentencing judge should customarily consider the defendant’s (1) age, (2) mentality, (3) education 

and experience, (4) social and cultural background, (5) past criminal 

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

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

violence involved in the commission of the crime.

13. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

Appeal from the District Court for Otoe County: Julie D. 

Smith, Judge. Affirmed.

Julie E. Bear, of Reinsch, Slattery, Bear, Minahan & Prickett, 

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

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Pirtle, Chief Judge, and Arterburn and Welch, Judges.

Arterburn, Judge.

I. INTRODUCTION

Following Ricky Earl Anthony’s motion for postconviction 

relief, the district court for Otoe County granted his motion 
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Cite as 29 Neb. App. 839

in the form of a new direct appeal. Pursuant to that order, 

Anthony has filed this direct appeal of his plea-based convictions of two counts of motor vehicle homicide. On appeal, 

Anthony challenges the district court’s finding that he is a 

habitual criminal. He also asserts that the district court erred in 

imposing excessive sentences and that he received ineffective 

assistance of trial counsel. We affirm Anthony’s convictions 

and sentences.

II. BACKGROUND

On December 10, 2018, an information was filed in the 

district court, charging Anthony with five offenses: two counts 

of motor vehicle homicide, in violation of Neb. Rev. Stat. 

§ 28-306 (Reissue 2016), a Class IIIA felony; one count of 

leaving the scene of an injury accident causing serious bodily 

injury or death, in violation of Neb. Rev. Stat. § 60-698 (Cum. 

Supp. 2020), a Class III felony; one count of willful reckless driving, second offense, in violation of Neb. Rev. Stat. 

§ 60-6,214 (Reissue 2010), a Class II misdemeanor; and one 

count of driving under revocation, third offense, in violation 

of Neb. Rev. Stat. § 60-4,108(1) (Cum. Supp. 2020), a Class II 

misdemeanor. The information also alleged that Anthony was 

a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 

(Reissue 2016).

Subsequently, both Anthony and the State appeared before 

the district court and indicated that they had reached a plea 

agreement. The plea agreement required Anthony to plead 

guilty or no contest to an amended information which charged 

him with only two counts of motor vehicle homicide. In 

exchange for Anthony’s pleas, the State agreed to dismiss 

the other charges contained in the original information. In 

addition, the State agreed to jointly recommend a concurrent sentence for the two counts of motor vehicle homicide. 

The amended information included an allegation that Anthony 

was a habitual criminal. The parties informed the court that 

because Anthony was not stipulating to his status as a habitual 
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criminal as a part of the plea agreement, a hearing would have 

to be held wherein the State would have to prove that he was 

a habitual criminal.

Upon the district court’s inquiry, Anthony indicated that the 

plea agreement described to the court reflected the entirety of 

the agreement between him and the State. He stated that no one 

had threatened him or promised him anything other than what 

was contained in the plea agreement to compel him to change 

his previously entered not guilty pleas. Anthony also affirmed 

that he understood the charges contained in the amended 

information and the possible penalties associated with those 

charges. He indicated an understanding that the court was not 

bound by the joint sentencing recommendation made by the 

State and his counsel. Anthony affirmed that he understood the 

constitutional rights he was waiving by entering a guilty or no 

contest plea. He stated that he had told his attorney everything 

he knew about the case and about any possible defenses he 

might have. He declined an opportunity to speak further with 

his counsel.

Anthony indicated his intention to change his not guilty pleas 

to pleas of no contest. The State then provided a factual basis 

to support Anthony’s no contest pleas. According to that factual basis, during the evening hours of October 21, 2018, law 

enforcement officers were dispatched to a two-vehicle accident 

in rural Otoe County, Nebraska. Upon arrival, law enforcement 

officers observed a gray sport utility vehicle (SUV) and a red 

pickup truck, both of which appeared to have been involved 

in the accident. There was no one inside of the gray SUV, but 

one of the doors was open and there was loud music still playing from it. There were two passengers located inside of the 

red pickup truck, which had rolled onto its top. The front seat 

passenger was pronounced dead at the scene. The back seat 

passenger was transported to a hospital and pronounced dead 

a short time later. The driver of the red pickup truck sustained 

serious injuries and was also transported to the hospital, where 

he was treated and eventually released.
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Witnesses to the accident reported that the gray SUV had 

been traveling northbound on the two-lane highway when 

the driver had suddenly veered into the southbound lane in 

front of the red pickup truck. The red pickup truck apparently 

attempted to avoid colliding with the gray SUV, but the evasive 

attempt was unsuccessful and the vehicles collided head on. 

A subsequent accident reconstruction investigation revealed 

that the northbound gray SUV was traveling partially on the 

southbound shoulder of the highway just prior to the accident. 

The red pickup truck attempted to move to the left to avoid 

the accident, just as the gray SUV attempted to return to the 

northbound lane. The vehicles collided “nearly in the middle 

of the roadway.”

Law enforcement officers were unable to locate the driver 

of the gray SUV at the accident scene. Officers searched a 

cornfield which was adjacent to the highway and employed a 

helicopter in an attempt to find the driver. Officers then utilized the name listed upon the registration of the gray SUV to 

identify its owner. From that investigation, officers learned that 

Anthony had been driving the gray SUV at the time of the accident. Anthony was located a little while later at a motel in Falls 

City, Nebraska. He attempted to hide from law enforcement 

officers, but was ultimately arrested and confessed to being the 

driver of the gray SUV.

The district court found that Anthony understood the nature 

of the charges against him and the possible penalties; that his 

no contest pleas were made freely, voluntarily, knowingly, and 

intelligently; and that the factual basis supported his pleas. The 

court then accepted Anthony’s no contest pleas to two counts 

of motor vehicle homicide. The court ordered that a presentence report be completed.

The presentence report revealed that Anthony was 55 years 

old and obtained his diploma through the GED program during 

a previous period of incarceration. At the time of his arrest for 

the current offense, he was briefly employed at a motel. Before 

that, he was employed as a seasonal construction worker.
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Anthony has a lengthy criminal history, which includes 

numerous traffic-related offenses. His history includes convictions for second degree forgery, theft by receiving stolen 

property, shoplifting, theft by unlawful taking (3 times), driving during a period of suspension (13 times), driving during 

a period of revocation, driving under the influence (3 times), 

leaving the scene of an accident, possession of drug paraphernalia (3 times), reckless driving (2 times), no proof of insurance (2 times), carrying a concealed weapon, trespassing, failure to appear (2 times), and damage to property. As a result of 

his convictions, Anthony has been sentenced to prison on two 

occasions, to jail on numerous occasions, and to a period of 

probation on three occasions. His probation was revoked two 

out of his three probationary periods.

In addition to his prior convictions, 3 months prior to the 

current offense, Anthony was charged with driving under the 

influence (second offense), possession of an open alcohol container, and failure to appear. The disposition of these offenses 

is not clear from our record.

During his interview for the presentence report, Anthony initially denied responsibility for the accident which gave rise to 

his current charges. He stated, “‘I didn’t cause the accident in 

my opinion. It wouldn’t have happened if [the driver of the red 

pickup truck] would have stayed in his lane.’” Anthony denied 

that he was under the influence of either drugs or alcohol at 

the time of the accident. Later during the interview, Anthony 

stated, “‘I feel I’m at fault because I chose to pass the vehicle. 

I am so sorry for them losing their loved ones.’”

Testing conducted by the probation office as a part of the 

presentence report revealed that Anthony posed a “high risk” 

of reoffense.

Immediately prior to the sentencing hearing, the district 

court conducted a hearing to consider the State’s charge that 

Anthony was a habitual criminal. Based on evidence presented 

by the State, the court found that Anthony had two prior convictions, each of which involved a sentence of not less than 
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1 year: a conviction in 1992 for theft by receiving stolen property, for which he was sentenced to 1 year’s imprisonment, and 

a conviction in 1995 for theft, for which he was sentenced to 3 

to 5 years’ imprisonment. The court further found that Anthony 

was represented by counsel in each prior conviction. The court 

found that Anthony was a habitual criminal. The court thereafter sentenced Anthony to 20 to 40 years’ imprisonment on 

each conviction, to be served concurrently. As a part of the sentence, Anthony was required to serve a mandatory minimum of 

10 years in prison.

Anthony, acting pro se, filed a notice of appeal from his convictions and sentences. However, the notice of appeal in case 

No. A-19-1160 was filed more than 30 days after entry of the 

district court’s sentencing order and was, as a result, summarily 

dismissed on December 27, 2019, by this court as having been 

untimely filed.

Anthony then filed a verified motion to vacate and set aside 

his convictions, alleging, among other things, that his trial 

counsel failed to file a direct appeal from his convictions and 

sentences despite Anthony’s explicit request for him to do 

so. Anthony requested he be permitted to file a “‘new direct 

appeal’” from his convictions and sentences.

On August 31, 2020, a hearing was held on Anthony’s 

motion. At the start of the hearing, Anthony’s new counsel 

indicated her belief that the hearing was merely to determine 

whether Anthony was entitled to an evidentiary hearing on 

the allegations raised in his motion. However, the district 

court explained that it was ready to go forward and determine 

whether Anthony was entitled to a new direct appeal based on 

the allegations made in Anthony’s motion. The court stated, 

“So I guess my thought was that you would mark his verified 

motion and offer it, and then I would just rule on whether 

he gets a new direct appeal.” After the motion was marked 

as an exhibit and received by the court, the court inquired of 

counsel whether she wished to offer any additional evidence. 

Anthony’s counsel responded that she had no further evidence. 
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STATE v. ANTHONY

Cite as 29 Neb. App. 839

The county attorney responded “I do not have any, Your 

Honor.” The court then explained:

I agree; . . . Anthony really did do a pretty good job both 

on the motion and the brief. I reviewed the case law that 

he supplied and I do believe that he is entitled to a direct 

appeal. He received a fairly lengthy sentence, and I think 

it would be kind of a shame if he didn’t have the opportunity to appeal that sentence.

And so the Court is going to make a finding that . . . 

Anthony’s trial counsel was ineffective in that he failed to 

withdraw and he failed to file an appeal on behalf of his 

client after his client was sentenced to a lengthy prison 

term, and so I am going to grant . . . Anthony’s requested 

relief and grant him a new direct appeal.

Anthony promptly filed a new notice of appeal from his 

convictions and sentences.

III. ASSIGNMENTS OF ERROR

Anthony asserts that the district court erred in determining 

that he was a habitual criminal and in imposing excessive sentences. Anthony also asserts that he received ineffective assistance of counsel because trial counsel failed to hire or consult 

with an accident reconstructionist and failed to “zealously contest” the habitual criminal enhancement.

On cross-appeal, the State asserts that the district court erred 

in granting Anthony postconviction relief without first conducting an evidentiary hearing and making findings of fact and 

conclusions of law.

IV. STANDARD OF REVIEW

[1] The procedural issues presented by the State’s crossappeal arise under the Nebraska Postconviction Act. Neb. Rev. 

Stat. §§ 29-3001 to 29-3005 (Reissue 2016 & Cum. Supp. 

2018). Statutory interpretation presents a question of law, and 

an appellate court resolves such issues independently of the 

lower court’s conclusions. State v. Jim, 275 Neb. 481, 747 

N.W.2d 410 (2008).
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STATE v. ANTHONY

Cite as 29 Neb. App. 839

[2] A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact. State v. Sidzyik, 

281 Neb. 305, 795 N.W.2d 281 (2011). 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.

[3,4] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court. State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 

(2020). An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable 

or if its action is clearly against justice or conscience, reason, 

and evidence. State v. Senteney, 307 Neb. 702, 950 N.W.2d 

585 (2020).

V. ANALYSIS

1. State’s Cross-Appeal

We first address the issue raised in the State’s cross-appeal. 

Essentially, the State argues that the district court erred in 

granting Anthony postconviction relief in the form of a new 

direct appeal without having first held an evidentiary hearing 

to determine whether Anthony could prove the allegations contained in his motion. Ultimately, we conclude that the district 

court did hold an evidentiary hearing, albeit cursory, and that, 

as such, the court did not err in granting Anthony postconviction relief without conducting such a hearing.

[5] Under the Nebraska Postconviction Act:

Unless the motion and the files and records of the case 

show to the satisfaction of the court that the prisoner is 

entitled to no relief, the court shall . . . grant a prompt 

hearing thereon, and determine the issues and make findings of fact and conclusions of law with respect thereto.

§ 29-3001(2). In State v. Jim, supra, the Nebraska Supreme 

Court interpreted this statutory language to require a court to 

grant an evidentiary hearing on a motion for postconviction 
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relief when the motion contains factual allegations which, if 

proved, constitute an infringement of the movant’s rights under 

the Nebraska or federal Constitution. The court held that if a 

lower court grants such an evidentiary hearing, it is obligated 

to determine the issues and make findings of fact and conclusions of law with respect thereto. Id.

In State v. Jim, supra, the district court granted the prisoner’s motion for postconviction relief in the form of a new 

direct appeal without holding any hearing on the motion. 

Instead, 6 months after the motion was filed, the court entered 

an order finding, solely on the basis of its review of the motion 

for postconviction relief, that said motion should be granted. 

On appeal, the Supreme Court reversed the decision of the district court and remanded the cause for further proceedings. Id. 

The court held that the district court “erred in the exercise of 

its jurisdiction by granting postconviction relief without conducting an evidentiary hearing and making findings of fact and 

conclusions of law.” Id. at 488, 747 N.W.2d at 416.

Similarly, in State v. Epting, 276 Neb. 37, 751 N.W.2d 166 

(2008), the Supreme Court reversed the order of the district 

court granting the prisoner postconviction relief in the form of 

a new direct appeal and remanded the cause, because the court 

did not first conduct an evidentiary hearing on the allegations 

raised in the motion.

In State v. Murphy, 15 Neb. App. 398, 727 N.W.2d 730 

(2007), this court addressed a related procedural issue. In that 

case, the defendant did not file a timely appeal following her 

conviction. In a subsequent postconviction proceeding, she 

and the State stipulated that she should be permitted to file 

an appeal, and the district court entered an order granting the 

stipulation and permitting the appeal to be filed. The record on 

appeal included the stipulation and order but did not include 

the motion for postconviction relief. The only record before 

the Nebraska Court of Appeals was a stipulation that provided 

no facts pertaining to any claimed deprivation of constitutional 

rights, but, rather, “only the bare conclusory agreement that 

‘an Appeal’ be allowed,” and the order of the district court 
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implementing the stipulation. Id. at 404, 727 N.W.2d at 735. 

Noting that parties cannot stipulate to matters of law, the 

Court of Appeals held that “the stipulation was not sufficient 

to invoke the district court’s jurisdiction pursuant to the postconviction statute and constituted an invalid attempt to extend 

the time for appeal.” Id. We concluded that we therefore lacked 

appellate jurisdiction, and we dismissed the purported new 

direct appeal.

In this case, the district court held a hearing on Anthony’s 

motion for postconviction relief, and that motion is included 

in our record. Apparently, counsel for Anthony believed that 

the hearing was “just to determine whether or not [Anthony 

is] entitled to [an evidentiary] hearing on his post-conviction 

[motion].” It is possible that the prosecutor may have had a 

similar impression, but the record is not clear on this issue.

Contrary to the belief of counsel, the district court indicated 

its intention to immediately proceed to an evidentiary hearing. At the hearing, the district court directed that a copy of 

Anthony’s verified motion for postconviction relief be marked 

and then received it into evidence. The court inquired of both 

defense counsel and the prosecutor regarding whether any 

additional evidence would be presented at the hearing. Notably, 

not only did the State indicate that it had no additional evidence to offer, the State did not object to the district court’s 

holding an evidentiary hearing at that time and did not ask for 

a continuance to obtain further evidence.

We have carefully reviewed the record from the hearing held 

on Anthony’s motion for postconviction relief. Based upon 

this careful review, we find that the district court did hold an 

evidentiary hearing on the motion. The court received the verified motion as an exhibit and inquired of the parties whether 

any other evidence would be offered. The parties declined the 

opportunity to present further evidence, and as a result, the district court based its decision to grant Anthony postconviction 

relief on the recitations contained in his verified motion, the 

sole piece of evidence before it.
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The question that we must resolve is whether the cursory 

procedure followed by the district court runs afoul of the holdings of State v. Jim, 275 Neb. 481, 747 N.W.2d 410 (2008);

State v. Epting, 276 Neb. 37, 751 N.W.2d 166 (2008); and State 

v. Murphy, 15 Neb. App. 398, 727 N.W.2d 730 (2007). While 

we believe that a strong argument can be made that the procedure followed by the district court runs contrary to the holdings 

of these cases, there are distinguishing factors present. Most 

significantly, here, an evidentiary hearing was held. The court 

did direct that a copy of the verified motion be marked and 

then received it into evidence. The court then afforded counsel 

for Anthony and the State the opportunity to present additional 

evidence. Neither chose to do so. In addition, the State made 

no motion for a continuance so as to allow it time to gather 

evidence which may rebut Anthony’s allegations. Therefore, 

we cannot agree with the State’s contention on appeal that the 

court failed to conduct an evidentiary hearing. While we recognize that the court may have surprised counsel for the parties 

with its decision to immediately hold an evidentiary hearing, 

the State had the ability to either present evidence, object to the 

court’s procedure, or ask for a continuance. The State declined 

to utilize any of these options.

We recognize that the more typical procedure under these 

circumstances would involve the district court’s first making 

an explicit determination regarding whether an evidentiary 

hearing is necessary based upon the allegations contained in 

the motion for postconviction relief. The district court could 

then notify the parties of its determination and schedule an evidentiary hearing at some point in the future. See, e.g., State v. 

Combs, 308 Neb. 587, 955 N.W.2d 322 (2021); State v. Russell, 

308 Neb. 499, 954 N.W.2d 920 (2021). This procedure would 

provide the parties with notice and an opportunity to obtain 

more detailed relevant evidence relating to any interactions 

that may have occurred between Anthony and trial counsel 

following sentencing. The summary procedure employed by 

the district court in this case appeared to result in confusion. 
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Here, when the district court failed to announce its determination that an evidentiary hearing was warranted in advance of 

holding an evidentiary hearing, defense counsel and the State 

received no notice that they should be prepared to offer evidence in support of or in opposition to Anthony’s motion for 

postconviction relief. However, in this case, because an evidentiary hearing did occur and because the State did not object 

to the court’s summary procedure or ask for a continuance to 

obtain further evidence, we cannot say that the district court 

erred by granting Anthony a new appeal.

2. Ineffective Assistance of Counsel

We next address Anthony’s claims of ineffective assistance 

of trial counsel. On appeal, Anthony alleges that he received 

ineffective assistance of trial counsel in two respects. First, 

he argues that his trial counsel failed to hire or consult with 

an accident reconstructionist regarding the circumstances surrounding the accident. Second, he argues that his trial counsel 

failed to “zealously contest the Habitual Criminal enhancement 

by raising the issue involving the double enhancement.” Before 

we address Anthony’s specific allegations of ineffective assistance of trial counsel, we recount the law which overlays our 

analysis of these claims.

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, 

in order to preserve such claim. State v. Chairez, 302 Neb. 731, 

924 N.W.2d 725 (2019). Once raised, the appellate court will 

determine whether the record on appeal is sufficient to review 

the merits of the ineffective performance claims. Id.

[6] The fact that an ineffective assistance of counsel claim 

is raised on direct appeal does not necessarily mean that it can 

be resolved. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 

(2014). This is because the trial record reviewed on appeal is 

generally “‘devoted to issues of guilt or innocence’” and does 

not usually address issues of counsel’s performance. Id. at 
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769, 848 N.W.2d at 578. The determining factor is whether the 

record is sufficient to adequately review the question. State v. 

Filholm, supra. An ineffective assistance of counsel claim will 

not be addressed on direct appeal if it requires an evidentiary 

hearing. State v. Chairez, supra.

[7-9] If the record is sufficient to address the ineffective 

assistance of counsel claim, 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. 

Filholm, supra. To show deficient performance, a defendant 

must show that counsel’s performance did not equal that of a 

lawyer with ordinary training and skill in criminal law in the 

area. State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013). 

When a conviction is based upon a guilty or no contest plea, 

the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, the defendant would 

have insisted on going to trial rather than pleading guilty. State 

v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).

(a) Failure to Hire or Consult 

Accident Reconstructionist

Anthony asserts that his trial counsel provided ineffective 

assistance in failing to hire or consult with an independent accident reconstructionist regarding the circumstances surrounding 

the accident. Specifically, he alleges that such an expert could 

have shed light on a defect in the gray SUV he was driving at 

the time of the accident which caused it to “jerk violently when 

[the driver] depress[es] or release[s] the accelerator.” He also 

alleges that such an expert could have determined whether the 

accident occurred after Anthony had returned to his proper lane 

of travel.
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We determine that our record is insufficient to review this 

claim of ineffective assistance of trial counsel. Our record does 

not reveal whether trial counsel consulted with an accident 

reconstructionist, or with any other expert, prior to Anthony’s 

entering his pleas of no contest. Our record also does not 

reveal when, or whether, Anthony informed his counsel of any 

possible defect in the gray SUV he was driving at the time of 

the accident.

(b) Failure to Challenge Habitual 

Criminal Enhancement

Anthony also asserts that his trial counsel provided ineffective assistance in failing to adequately defend against the 

habitual criminal enhancement. Specifically, Anthony argues 

that trial counsel should have argued that a habitual criminal 

enhancement was not appropriate given that his offense was 

already “enhanced” pursuant to the language of § 28-306. We 

conclude that the record is sufficient to address this claim. 

We further conclude that Anthony cannot demonstrate he was 

prejudiced in any way by counsel’s failure to raise this argument during the enhancement hearing.

Subject to exceptions not applicable to this case, the habitual 

criminal statute provides:

Whoever has been twice convicted of a crime, sentenced, 

and committed to prison, in this or any other state or by 

the United States or once in this state and once at least 

in any other state or by the United States, for terms of 

not less than one year each shall, upon conviction of a 

felony committed in this state, be deemed to be a habitual 

criminal and shall be punished by imprisonment . . . for 

a mandatory minimum term of ten years and a maximum 

term of not more than sixty years[.]

§ 29-2221(1). In a habitual criminal proceeding, the State’s 

evidence must establish with requisite trustworthiness, based 

upon a preponderance of the evidence, that (1) the defendant 

has been twice convicted of a crime, for which he or she was 

sentenced and committed to prison for not less than 1 year; 
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(2) the trial court rendered a judgment of conviction for each 

crime; and (3) at the time of the prior conviction and sentencing, the defendant was represented by counsel or had knowingly and voluntarily waived representation for those proceedings. State v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012). 

Here, the district court concluded that there were two valid 

and usable convictions for purposes of the habitual criminal 

enhancement. Anthony does not challenge this conclusion, 

which is fully supported by the record. Instead, Anthony argues 

that using his felony motor vehicle homicide convictions to 

trigger a habitual criminal enhancement would result in an 

improper double enhancement.

Motor vehicle homicide is criminalized under § 28-306, 

which provides, in relevant part:

(1) A person who causes the death of another unintentionally while engaged in the operation of a motor vehicle 

in violation of the law of the State of Nebraska or in 

violation of any city or village ordinance commits motor 

vehicle homicide.

(2) Except as provided in subsection (3) of this section, 

motor vehicle homicide is a Class I misdemeanor.

(3)(a) If the proximate cause of the death of another 

is the operation of a motor vehicle in violation of section 60-6,213 or 60-6,214, motor vehicle homicide is a 

Class IIIA felony.

As charged by the State, Anthony pled no contest to two 

Class IIIA felonies under § 28-306(3)(a), based on his willful reckless operation of his vehicle at the time of the accident which resulted in two deaths pursuant to § 60-6,214. 

Anthony argues that he was improperly sentenced as a habitual 

criminal because the “enhancement” from a misdemeanor to a 

felony under § 28-306(3)(a) results in an impermissible double 

enhancement.

Anthony’s argument is definitively refuted by the Supreme 

Court’s holding in State v. Kinser, supra. In that case, the court 

concluded that the defendant’s conviction for felony flight to 
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avoid arrest coupled with his status as a habitual criminal did 

not constitute an impermissible double enhancement. The court 

explained that a reading of the flight to avoid arrest statute, 

see Neb. Rev. Stat. § 28-905 (Reissue 2016), clearly indicates 

that “the offense of flight to avoid arrest is a misdemeanor 

if it involves fleeing in a motor vehicle in an effort to avoid 

arrest, whereas the offense becomes a felony . . . if the State 

alleges and proves the additional element of willful reckless 

operation of a motor vehicle.” State v. Kinser, 283 Neb. at 

568, 811 N.W.2d at 233. Because the State was required to 

prove an additional element in order to convict the defendant 

of felony flight to avoid arrest, there was no “enhancement” 

to the defendant’s sentence. Accordingly, there was no double 

enhancement when the defendant was sentenced as a habitual criminal.

[10] We find that the Supreme Court’s holding in Kinser

is directly applicable to this case. Anthony’s convictions for 

motor vehicle homicide were enhanced to felonies by virtue 

of the State’s allegation of the additional element that Anthony 

was operating the vehicle in a willful and reckless manner. 

Because the State was required to prove an additional element 

in order to convict Anthony of felony motor vehicle homicide, 

there was no “enhancement” to his sentence. As such, Anthony 

was not subjected to an impermissible double enhancement 

when he was sentenced as a habitual criminal.

[11] Because the district court properly found Anthony to 

be a habitual criminal and sentenced him accordingly, Anthony 

cannot demonstrate that he was prejudiced by his counsel’s 

failure to raise the issue of “double enhancement” before the 

district court. Counsel did not provide ineffective assistance by 

failing to raise an unsuccessful argument.

For completeness, we note that in Anthony’s brief to this 

court, he acknowledges the Supreme Court’s holding in State 

v. Kinser, 283 Neb. 560, 811 N.W.2d 227 (2012). However, he 

encourages this court to “reexamine” the holding in Kinser. 

Brief for appellant at 12. We decline Anthony’s invitation 
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to reexamine Kinser. It is not in this court’s purview to reexamine explicit precedent established by the Supreme Court.

3. Sentencing

Anthony argues on appeal that the district court imposed 

excessive sentences. He argues, inter alia, that he should not 

have been sentenced as a habitual criminal, because such an 

enhancement to his sentences resulted in an impermissible 

double enhancement. We conclude that Anthony was properly 

classified as a habitual criminal and that the court did not 

otherwise abuse its discretion in sentencing him.

(a) Habitual Criminal Enhancement

Anthony argues that the district court erred in enhancing his 

sentences based on his status as a habitual criminal because, 

when coupled with the enhancement of his convictions for 

motor vehicle homicide to felonies based upon the language 

of § 28-306, he was subjected to an impermissible double 

enhancement. We addressed Anthony’s assertions in this regard 

above, in connection with his assertion of ineffective assistance of trial counsel. As such, we do not revisit the issue here. 

However, we do note that Anthony failed to raise this issue 

before the district court. As such, he is barred from now asserting any such error by the district court. See State v. Nadeem, 

284 Neb. 513, 822 N.W.2d 372 (2012) (when issue is raised for 

first time in appellate court, it will be disregarded inasmuch as 

lower court cannot commit error in resolving issue never presented and submitted to it for disposition).

(b) Excessiveness in General

Having determined that the district court did not err when it 

found Anthony to be a habitual criminal, we consider his argument that his sentences were excessive. We first note that, as 

charged by the State, motor vehicle homicide is a Class IIIA 

felony pursuant to § 28-306(3)(a). The sentencing range for a 

Class IIIA felony is up to 3 years’ imprisonment in addition 

to a term of postrelease supervision. Neb. Rev. Stat. § 28-105 
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(Cum. Supp. 2018). However, because Anthony was found to 

be a habitual criminal, § 29-2221(1) sets the sentencing ranges 

for Anthony’s convictions as imprisonment for a mandatory 

minimum of 10 years and a maximum of 60 years. Therefore, 

Anthony’s sentence of imprisonment for 20 to 40 years for 

each motor vehicle homicide conviction was within statutory limits.

[12,13] Because the sentences were within statutory limits, 

we review the sentences imposed for an abuse of discretion. 

See State v. Russell, 292 Neb. 501, 874 N.W.2d 8 (2016). 

When imposing a sentence, a sentencing judge should customarily consider the defendant’s (1) age, (2) mentality, (3) 

education and experience, (4) social and cultural background, 

(5) past criminal record or record of law-abiding conduct, and 

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

offense and (8) the amount of violence involved in the commission of the crime. State v. Mora, 298 Neb. 185, 903 N.W.2d 

244 (2017). However, the sentencing court is not limited to any 

mathematically applied set of factors. Id. The appropriateness 

of a sentence is necessarily a subjective judgment and includes 

the sentencing judge’s observation of the defendant’s demeanor 

and attitude and all the facts and circumstances surrounding the 

defendant’s life. Id.

Anthony contends that the district court imposed excessive 

sentences because the court failed to consider such mitigating factors as his “tumultuous” past, brief for appellant at 14, 

including suffering abuse at the hands of his father as a child 

and then later in life, having his pregnant fiance murdered. He 

also cites his mental health struggles and lack of intent to harm 

anyone at the time of the collision. Anthony also reminds this 

court that his habitual criminal status was based upon felony 

offenses which occurred more than 20 years prior to the current offense.

Based upon our review of the record, it is clear that the 

district court was aware of and considered all of the relevant 

factors in imposing Anthony’s sentences. Prior to imposing the 
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sentences, the court explicitly indicated, “I have thoroughly 

reviewed the presentence investigation and the victim impact 

statements and [Anthony’s] statements.” The court then went 

on to give a lengthy statement explaining its sentencing decision. As a part of this statement, the court discussed its consideration of

[Anthony’s] age and . . . what that means as far as a sentence that you would serve with the Nebraska Department 

of Correctional Services. I’ve done a number of different 

calculations in determining what the court sentence is 

going to be. I have considered your education and experience, your social and cultural background, your past 

criminal record, the nature of the offense, and I’ve also 

considered the fact that you qualify as a habitual criminal and that two people lost their lives during the motor 

vehicle accident.

The district court discussed at length Anthony’s criminal history, with particular attention paid to his numerous trafficrelated convictions.

Upon our review, we cannot find that the district court 

abused its discretion in sentencing Anthony to concurrent 

terms of 20 to 40 years’ imprisonment for his motor vehicle 

homicide convictions. There is nothing in the record to suggest 

that the district court failed to consider the relevant statutory 

factors. Instead, the record reflects that the court carefully 

considered all of the information contained in the presentence 

report and presented at the sentencing hearing and ultimately 

decided that, given Anthony’s criminal history, his status as 

a habitual criminal, and the serious nature of his offenses, 

that lengthy prison sentences were warranted. We also note 

that despite the length of time that has passed since the prior 

felony convictions which were the basis of the district court’s 

finding that Anthony was a habitual criminal, these prior convictions support the district court’s determination, and as we 

have stated above, the district court properly found Anthony 

to be a habitual criminal. Moreover, the presentence report 
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displays that between his most recent prison sentence imposed 

in 1995 and the date he was sentenced in this case, Anthony 

has been sentenced in 33 separate cases, some involving multiple convictions. Though none of these sentences were for 

felony offenses, his conduct over the years has demonstrated a 

continual disregard for the law. The sentences in this case are 

within statutory limits and are supported by the serious nature 

of the offenses.

VI. CONCLUSION

We affirm Anthony’s convictions and sentences. The district 

court properly found Anthony to be a habitual criminal based 

upon his two prior felony convictions. The court did not otherwise impose excessive sentences. As to Anthony’s claims of 

ineffective assistance of trial counsel, we find that the record 

on appeal is insufficient to address his claim regarding counsel’s failure to hire an independent accident reconstructionist. 

We find his claim regarding counsel’s failure to adequately 

defend his habitual criminal status to be without merit.

Affirmed.