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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. BLACKWELL

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

DENOTTA M. BLACKWELL, APPELLANT.

Filed January 31, 2023. No. A-22-421.

Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge, on appeal 

thereto from the County Court for Lancaster County: MATTHEW L. ACTON, Judge. Judgment of 

District Court affirmed.

Tyler A. Egenes, of Glasz Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

MOORE, RIEDMANN, and BISHOP, Judges.

RIEDMANN, Judge.

INTRODUCTION

Denotta M. Blackwell appeals her plea-based conviction and sentence entered in the county 

court for Lancaster County and affirmed by the district court. On appeal, Blackwell challenges 

whether her plea was made understandingly and voluntarily. She also claims ineffective assistance 

of counsel and that her sentence is excessive. We affirm.

BACKGROUND

On January 3, 2020, Lincoln Police Department officers arrested Blackwell for theft by 

shoplifting ($0-$500). The employees of Ash & Ash Co. showed officers security footage of 

Blackwell holding up a shirt to conceal her putting another shirt into a green, reusable shopping 
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bag. Although Blackwell told officers she had purchased the shirt at JCPenney, employees 

confirmed it was from Ash & Ash Co. and valued it at $30.

On January 6, 2020, the State filed a complaint in the county court charging Blackwell with 

theft by shoplifting ($0-$500), second offense. After the State confirmed to the county court that 

it would be pursuing jail time for Blackwell, the court appointed counsel for Blackwell. It then 

accepted Blackwell’s plea of not guilty to the charge, set bond, and continued the case.

A jury docket call hearing was scheduled for June 15, 2020. Blackwell did not appear, so 

her counsel requested a continuance since he had not spoken with her since prior to the beginning 

of the COVID-19 pandemic. The county court set a hearing for the following week.

Blackwell was not present for the June 23, 2020, hearing. Her counsel chose to remain 

silent but did tell the court that he knew Blackwell had been in Illinois the week prior at a shelter 

fleeing domestic violence. The county court responded that while it would consider Blackwell’s 

situation, she also had a felony warrant for violating post-release supervision by failing to report. 

The county court ultimately issued a bench warrant and granted the State leave to add a failure to 

appear count to the complaint.

Plea Agreement.

On October 19, 2021, Blackwell appeared and agreed to enter into a plea agreement with 

the State. In return for her plea of no contest and stipulating that the theft by shoplifting would be 

a second offense enhancement, the State would dismiss the failure to appear charge and, according 

to Blackwell’s counsel, would not “consider amending the charge to a felony.” In response, the 

county court asked Blackwell if it was her “understanding that if you plead to the second offense, 

that [the State is] going to dismiss the failure to appear and they won’t make this a felony.”

Blackwell responded affirmatively.

The county court then explained that by pleading no contest to theft by shoplifting 

($0-$500), second offense, Blackwell could face up to 1 year imprisonment, $1,000 fine, or any 

combination of the two. It asked if Blackwell understood the possible penalties, and Blackwell 

responded affirmatively. The court continued by asking Blackwell if she understood that she was 

giving up several rights under both the U.S. and Nebraska Constitutions by pleading no contest, 

including her right of presumption of innocence, right to confront and cross-examine witnesses, 

the right against incrimination, the right to remain silent, and the right to a jury or bench trial. She 

responded affirmatively.

Blackwell confirmed that she had enough time to consult with her attorney, and maintained 

she wished to plead no contest. The court then repeated its understanding of the plea agreement, 

by stating the “State’s going to dismiss Count 2 and agree not to enhance it to a third offense felony 

in exchange for her plea and her stipulation that it’s a valid prior.” It asked Blackwell again if this 

was her understanding of the entire plea agreement, which Blackwell affirmed.

The State then provided the factual basis that officers were dispatched to Ash & Ash Co.

on January 3, 2020, to investigate a report of two females concealing items in the store. After 

contacting the two women in a different store, the officers found Blackwell with a green, reusable 

shopping bag with a tan shirt in it. Despite Blackwell’s claim that she bought the shirt at JCPenney, 

officers confirmed with security footage that Blackwell took the shirt from Ash & Ash Co.and it 

was valued at $30.
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After Blackwell affirmed to the court that she still wished to plead no contest, the court 

accepted her plea. Following the terms of the plea agreement, the county court then accepted the 

parties’ stipulation, found Blackwell guilty of theft by shoplifting, second offense, and the State 

dismissed the failure to appear charge.

Sentencing.

At the sentencing hearing, Blackwell’s counsel argued that the county court should 

consider her circumstances, including that the offense occurred in 2020, only one item valued at 

$30 was taken, and it was recovered. Counsel argued that Blackwell has acknowledged her 

previous theft history and she was trying to do better. She has stable housing in Lincoln. She cares 

for her grandchildren, and her children live nearby. She does suffer from mental illness, but she is 

undergoing medication management and therapy. Blackwell’s counsel ultimately argued that the 

county court should sentence Blackwell to a fine or probation.

The State argued that Blackwell should be sentenced to a term of imprisonment. The State 

provided that Blackwell had 15 local, state statute theft convictions, and 6 of those were felony 

convictions. She also had multiple city theft convictions. The State concluded that Blackwell’s 

significant history of theft merited imprisonment.

The county court stated that it considered comments of counsel, Blackwell’s information 

from the factual basis, and the statutory and case law factors for sentencing. It noted that 

Blackwell’s last conviction was in 2017 and she was given 2 years’ imprisonment followed by 

post-release supervision, but she failed to report for that supervision. It explained that a fine would 

depreciate the seriousness of the offense and promote further disrespect for the law. Furthermore, 

it stated Blackwell cannot be placed on probation again since she failed to report for supervision 

on her last conviction. After considering the nature and circumstances of the crime; Blackwell’s 

history, character, and condition; and that the risk is substantial that during a period of probation 

Blackwell would reoffend, the county court sentenced Blackwell to 9 months’ imprisonment.

District Court Appeal.

Blackwell appealed to the Lancaster County District Court. She argued eight assignments 

of error, all of which she now assigns on appeal. The district court summarily found the assigned 

errors without merit and affirmed the county court’s judgment. Blackwell now appeals to this 

court.

ASSIGNMENTS OF ERROR

Blackwell assigns several errors. She asserts that the county court erred (1) by not properly 

advising Blackwell of her constitutional rights as guaranteed by the U.S. and Nebraska 

Constitutions; (2) by not properly advising Blackwell before accepting her plea of no contest; (3) 

by advising Blackwell that by pleading no contest, the State would not “make this a felony”; (4) 

by determining Blackwell made her no contest plea freely, intelligently, voluntarily, and 

understandingly; and (5) in imposing an excessive sentence. Blackwell also assigns her counsel 

was ineffective (6) in providing effective assistance of counsel; (7) in advising Blackwell of her 

Due Process Rights guaranteed under the U.S. and Nebraska Constitutions; and (8) in advising her 
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to enter into a no contest plea. Lastly, Blackwell assigns (9) the district court erred by affirming 

the county court’s judgment.

STANDARD OF REVIEW

In an appeal of a criminal case from the county court, the district court acts as an 

intermediate court of appeals, and its review is limited to an examination of the record for error or 

abuse of discretion. State v. Collins, 307 Neb. 581, 950 N.W.2d 89 (2020). Both the district court 

and a higher appellate court generally review appeals from the county court for error appearing on 

the record. Id. When reviewing a judgment for errors appearing on the record, an appellate court’s 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable. Id. When deciding appeals from criminal 

convictions in county court, we apply the same standards of review that we apply to decide appeals 

from criminal convictions in district court. Id.

A trial court is given discretion as to whether to accept a guilty plea, and an appellate court 

will overturn that decision only where there is an abuse of discretion. State v. Russell, 291 Neb. 

33, 863 N.W.2d 813 (2015).

Whether a claim of ineffective assistance of trial counsel can be determined on direct 

appeal presents a question of law, which turns upon the sufficiency of the record to address the 

claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a 

statute or constitutional requirement. State v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). An 

appellate court determines as a matter of law whether the record conclusively shows that (1) a 

defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a 

defense counsel’s alleged deficient performance. Id.

A sentence imposed within the statutory limits will not be disturbed on appeal in the 

absence of an abuse of discretion by the trial court. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 

(2022).

ANALYSIS

As a preliminary matter, Blackwell’s assigned errors do not match the arguments in her 

brief. An alleged error must be both specifically assigned and specifically argued in the brief of 

the party asserting the error to be considered by the appellate court. State v. Figures, 308 Neb. 801, 

957 N.W.2d 161 (2021). Blackwell does not argue assigned error (8) that her counsel was 

ineffective by advising her to enter into a no contest plea; thus, we will not consider it.

Additionally, for ineffective assistance of counsel claims made on direct appeal, State v. 

Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019), requires that the assignments of error specifically 

allege deficient performance, and an appellate court will not scour the remainder of the brief in 

search of such specificity. Under Mrza, assigned error (6) is not specifically alleged, as it assigns 

“trial counsel was ineffective in providing effective assistance of counsel,” so we will not consider 

it either. Brief for appellant at 5.

Adequacy of Plea.

Blackwell’s first four assignments of error can be restated into one: Blackwell’s plea of no 

contest was not given freely, intelligently, voluntarily, and understandingly. This iteration mirrors 
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Blackwell’s argument in her brief. She argues that the county court improperly advised her of her 

rights when it told her that the terms of the plea agreement included that the “charge would not be 

‘made’ a felony by the State of Nebraska.” Id. at 10. She claims that the county court’s recitation 

of the plea agreement was “fundamentally different” than the terms of the plea agreement, so it 

confused her and changed the nature of the agreement. Id.

To support a finding that a defendant entered into a guilty or no contest plea freely, 

intelligently, voluntarily, and understandingly, a court must inform the defendant concerning (1)

the nature of the charge, (2) the right to assistance of counsel, (3) the right to confront witnesses 

against the defendant, (4) the right to a jury trial, and (5) the privilege against self-incrimination. 

State v. Lane, 299 Neb. 170, 907 N.W.2d 737 (2018). The record must also establish a factual basis 

for the plea and that the defendant knew the range of the penalties for the crime charged. Id.

The record establishes that the county court informed Blackwell of the nature of the charge 

and the range of the penalties for theft by shoplifting, second offense. It appointed counsel to 

Blackwell, and when asked by the court, Blackwell stated she was satisfied with her counsel’s 

representation. The county court also informed Blackwell that she had the right to confront 

witnesses, the privilege against self-incrimination, and the right to a jury or bench trial. Lastly, the 

record shows that the State provided a factual basis for the crime charged. Therefore, all elements 

are met to find Blackwell entered into her no contest plea freely, intelligently, voluntarily, and 

understandingly.

Even after informing Blackwell of her rights, the county court repeated the plea agreement 

and asked Blackwell a second time if it matched her understanding. Blackwell answered 

affirmatively, which refutes her claims now that the county court’s choice of words confused her. 

Although Blackwell argues there is a fundamental difference between defense counsel’s 

statement—that the State would not consider making her theft a felony and the county court’s 

statement—that the State would not make her theft a felony, we are unable to see a meaningful 

distinction. Altogether, the county court’s recitation of the plea agreement did not alter its 

meaning; thus, it did not abuse its discretion in accepting Blackwell’s plea of no contest, as she 

did so freely, intelligently, voluntarily, and understandingly.

Ineffective Assistance of Counsel.

Blackwell contends that trial counsel was ineffective because her counsel failed to inform 

her that if she was charged with a felony, then she would have the right to a preliminary hearing. 

And at this preliminary hearing, the State would have to establish probable cause for the felony 

charge. Essentially, Blackwell argues without the plea agreement, the State would have charged 

her with a felony, so “by not advising [Blackwell] of her right to a preliminary hearing if the charge 

was amended to a felony, trial counsel effectively deprived [Blackwell] of that right.” Brief for 

appellant at 11. Blackwell’s counsel on appeal is different than her trial counsel.

To prevail on a claim of ineffective assistance of counsel, the defendant must show that 

counsel’s performance was deficient, and that this deficient performance prejudiced their defense. 

State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 (2020). 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 deficient performance and whether the defendant was or was not prejudiced by counsel’s 
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alleged performance. Id. For a conviction based on a plea of no contest, the prejudice requirement 

is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, they 

would have insisted on going to trial instead of pleading no contest. Id.

An ineffective assistance of counsel claim that is raised on direct appeal may not be 

resolvable, as the determining factor is whether the record is sufficient to adequately review the 

question. State v. Warner, 312 Neb. 116, 977 N.W.2d 904 (2022). The record on direct appeal is 

sufficient to review a claim of ineffective assistance of trial counsel if it establishes either that trial 

counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, 

or that trial counsel’s actions could not be justified as a part of any plausible trial strategy. State v. 

Anderson, supra.

Here, trial counsel was not deficient for failing to inform Blackwell of rights she did not 

have under the charges as filed. The right to a preliminary hearing only attaches if the defendant 

is charged with a felony. Neb. Rev. Stat. § 29-504 (Reissue 2016). Since Blackwell was charged 

with a misdemeanor, her counsel had no duty to inform her of rights she did not have yet but may 

attain under different circumstances. Unlike Blackwell’s contention, there is nothing in the record 

to show that it was a foregone conclusion the State would amend the charges if she rejected the 

plea agreement. And if the State amended her charge to a felony, then the right to a preliminary 

hearing would have attached. But Blackwell did not have the right to a preliminary hearing when 

she entered into her plea agreement. Therefore, trial counsel was not ineffective for failing to 

inform Blackwell she had a right to a preliminary hearing if she was charged with a felony.

Additionally, Blackwell’s ineffective assistance of counsel claim for trial counsel not 

requesting a presentence investigation report was not specifically assigned, so we will not consider 

it. See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).

Excessive Sentence.

Blackwell argues that her sentence was excessive. She contends that the county court 

abused its discretion because it did not adequately consider her mental health diagnoses, treatment 

progress, or support system in its sentence.

Blackwell was convicted of theft by shoplifting ($0-$500), second offense, a Class I 

misdemeanor. Neb. Rev. Stat. § 28-511.01 (Reissue 2016); Neb. Rev. Stat. § 28-518 (Reissue 

2016). A Class I misdemeanor carries a maximum sentence of 1 year imprisonment, $1,000 fine, 

or any combination of the two. Neb. Rev. Stat. § 28-106 (Reissue 2016). The county court 

sentenced Blackwell to 9 months’ imprisonment; thus, her sentence is within the statutory limits, 

so we review for an abuse of discretion.

An abuse of discretion in imposing a sentence occurs when a sentencing court’s reasons or 

rulings are clearly untenable and unfairly deprive the litigant of a substantial right and just result. 

State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017).

When imposing a sentence, a sentencing judge should customarily consider the defendant’s 

(1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past 

criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) 

the nature of the offense and (8) the amount of violence involved in the commission of the crime. 

State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). The sentencing court is not limited to any 

mathematically applied set of factors, but the appropriateness of the sentence is necessarily a 
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subjective judgment that includes the sentencing judge’s observations of the defendant’s demeanor 

and attitude and all the facts and circumstances surrounding the defendant’s life. Id.

Here, the county court stated it considered the comments of counsel, Blackwell’s 

information from the factual basis, and the statutory and case law factors for sentencing. Each 

factor could be surmised from the arguments made at the sentencing hearing and the factual basis 

surrounding Blackwell’s conviction. There is no requirement the sentencing court apply the factors 

mathematically or explain its reasoning for each factor on the record. See State v. Greer, 309 Neb. 

667, 962 N.W.2d 217 (2021).

The record establishes that Blackwell was 51 years old at sentencing. She had 15 prior state 

statute theft violations and multiple city theft convictions. She was placed on post-release 

supervision in Sarpy County, but never reported to her probation officer. She is currently 

unemployed and her only source of income is through disability payments. She cares for her 

grandchildren and has stable housing. Blackwell stole a shirt worth $30, and when confronted by 

police, she lied and told them she bought it at JCPenney. It was stipulated by both parties that this 

charge would be treated as a second offense. Accordingly, the county court did not abuse its 

discretion in sentencing Blackwell to 9 months’ imprisonment. And since the county court did not 

abuse its discretion, the district court did not err in affirming the county court’s sentence.

CONCLUSION

For the aforementioned reasons, we affirm Blackwell’s conviction and sentence.

AFFIRMED.