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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. THOMAS

Cite as 311 Neb. 989

State of Nebraska, appellee, v. 

Rubin J. Thomas, appellant.

___ N.W.2d ___

Filed July 15, 2022. No. S-21-551.

1. Waiver: Appeal and Error. Whether a party waived his or her right to 

appellate review is a question of law.

2. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the lower court’s 

conclusions.

3. Pleas: Waiver. A voluntary guilty plea or plea of no contest waives all 

defenses to a criminal charge.

4. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or no 

contest, the defendant is limited to challenging whether the plea was 

understandingly and voluntarily made and whether it was the result of 

ineffective assistance of counsel.

5. Effectiveness of Counsel: Proof. 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 actually prejudiced his or her defense.

6. ____: ____. To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer 

with ordinary training and skill in criminal law.

7. ____: ____. To show prejudice in a claim of ineffective assistance of 

counsel, the defendant must demonstrate a reasonable probability that 

but for counsel’s deficient performance, the result of the proceeding 

would have been different.

8. Words and Phrases. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

9. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is based upon a plea of no contest, the prejudice requirement for an 

ineffective assistance of counsel claim is satisfied if the defendant shows 

Nebraska Supreme Court Online Library

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

08/26/2022 01:05 AM CDT
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a reasonable probability that but for the errors of counsel, the defendant 

would have insisted on going to trial rather than pleading no contest.

10. Effectiveness of Counsel: Postconviction: Records: 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 in a subsequent postconviction proceeding.

11. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an 

appellate court will determine whether the record on appeal is sufficient 

to review the merits of the ineffective performance claims. The record 

is sufficient if it establishes either that trial counsel’s performance was 

not deficient, that the appellant will not be able to establish prejudice as 

a matter of law, or that trial counsel’s actions could not be justified as a 

part of any plausible trial strategy. Conversely, an ineffective assistance 

of counsel claim will not be addressed on direct appeal if it requires an 

evidentiary hearing.

12. Right to Counsel: Waiver: Effectiveness of Counsel. Appointed counsel must remain with an indigent accused unless one of the following 

conditions is met: (1) The accused knowingly, voluntarily, and intelligently waives the right to counsel and chooses to proceed pro se; (2) 

appointed counsel is incompetent, in which case new counsel is to be 

appointed; or (3) the accused chooses to retain private counsel.

13. Judgments: Justiciable Issues. Justiciability issues that do not involve 

a factual dispute present a question of law.

14. Judges: Recusal. In order to demonstrate that a trial judge should have 

recused himself or herself, the moving party must show that a reasonable person who knew the circumstances of the case would question the 

judge’s impartiality under an objective standard of reasonableness, even 

though no actual bias or prejudice was shown.

15. Judges: Recusal: Presumptions. A defendant seeking to disqualify a 

judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

16. Judges: Recusal. Judicial rulings alone almost never constitute a valid 

basis for a bias or partiality motion directed to a trial judge.

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

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

appeal when the claim alleges deficient performance 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 recognize whether 

the claim was brought before the appellate court.
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STATE v. THOMAS

Cite as 311 Neb. 989

18. Sentences: Appeal and Error. 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.

19. ____: ____. When sentences imposed within statutory limits are alleged 

on appeal to be excessive, the appellate court must determine whether 

the sentencing court abused its discretion in considering well-established 

factors and any applicable legal principles.

20. Judges: Words and Phrases. A judicial abuse of discretion exists only 

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.

21. Sentences. When imposing a sentence, a sentencing judge should 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.

22. ____. The sentencing court is not limited to any mathematically applied 

set of factors, but the appropriateness of the sentence is necessarily a 

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.

Appeal from the District Court for Lancaster County: Susan 

I. Strong, Judge. Affirmed.

Christopher Eickholt, of Eickholt Law, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman 

for appellee.

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

Papik, and Freudenberg, JJ.

Papik, J.

Rubin J. Thomas appeals the convictions and sentences 

resulting from his no contest pleas to changes of conspiracy to 

commit robbery and conspiracy to commit burglary. Thomas 

argues the district court erred by not discharging his appointed 

counsel, by revoking his bond, and by not recusing itself prior 

to sentencing. He also argues that he received ineffective 
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STATE v. THOMAS

Cite as 311 Neb. 989

assistance of counsel and that his sentences were excessive. 

We affirm.

I. BACKGROUND

In October 2019, the State filed an information charging 

Thomas with two counts of first degree murder and one count 

of use of a firearm to commit a felony. The murder charge 

was based on a felony murder theory: the State alleged that 

on July 24, 2019, Audrea S. Craig and Martae Green were 

killed during Thomas’ perpetration or attempted perpetration 

of a robbery.

The State later filed an amended information, adding an 

allegation that Thomas committed attempted burglary on July 

11, 2019. This amended information also alleged that, based 

on prior convictions, Thomas should be sentenced as a habitual criminal.

The State and Thomas eventually reached a plea agreement 

in April 2021. Pursuant to the plea agreement, the State filed a 

second amended information charging Thomas with conspiracy 

to commit robbery and conspiracy to commit burglary. The 

second amended information alleged that Thomas conspired 

with others to rob Craig on July 24, 2019, and that he conspired with others to commit a burglary on July 11, 2019. As 

part of the plea agreement, the State agreed not to pursue other 

charges regarding these incidents and to dismiss an unrelated 

charge; Thomas agreed to plead no contest to the charges in the 

second amended information.

At the plea hearing, the district court asked the State to 

explain what the evidence would show if the State proceeded 

with the charges at issue. With respect to the conspiracy to 

commit burglary charge, the prosecutor stated that on July 

11, 2019, Thomas and several other individuals met at a location near 27th and South Streets in Lincoln, Nebraska, where 

they planned to break into a nearby residence and steal money 

and/or marijuana. Thomas had been in the residence previously and unlocked a window to allow for easy entrance, but 

when they arrived at the residence, the window was locked. 
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STATE v. THOMAS

Cite as 311 Neb. 989

Members of the group tried to pry the window open and 

attempted to kick in a door, but when they saw children looking out of a window of the residence, they left the area.

With respect to the conspiracy to commit burglary charge, 

the prosecutor summarized evidence that a group of individuals 

planned to break into the same residence to commit a robbery. 

The group included Thomas; Green; Green’s brother, Charles 

Gresham; and two other individuals. The group gathered on 

the evening of July 23, 2019, and then in the early morning 

hours of the next day, Thomas led the group to the area. Green 

and Gresham entered the residence armed with handguns and 

threatened Craig and her boyfriend. A struggle ensued and 

multiple gunshots were fired. Green and Gresham quickly 

departed. Craig died at the scene as a result of multiple gunshot 

wounds. Thomas and the others transported Green to a local 

hospital where he was pronounced dead as a result of a gunshot 

wound a short time later.

The district court accepted Thomas’ no contest pleas to the 

conspiracy to commit robbery and conspiracy to commit burglary charges and convicted him on both counts. The district 

court later sentenced Thomas to consecutive terms of imprisonment of 26 to 32 years for conspiracy to commit robbery and 

14 to 20 years for conspiracy to commit burglary.

Additional background regarding the issues Thomas raises 

on appeal are discussed in the analysis section below.

II. ASSIGNMENTS OF ERROR

Thomas assigns a number of errors on appeal. We have condensed, restated, and divided them into several categories for 

ease of analysis. First, Thomas assigns errors concerning the 

district court’s response to motions he filed to discharge his 

court-appointed trial counsel. Thomas contends that the district 

court erred by not discharging trial counsel and by conducting an off-the-record hearing on one of Thomas’ motions to 

discharge. Thomas also asserts that his counsel was ineffective 

for failing to withdraw as counsel and for permitting the offthe-record hearing.
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STATE v. THOMAS

Cite as 311 Neb. 989

Thomas’ second category of assigned errors relates to the 

district court’s revocation of Thomas’ bond. Here, Thomas 

contends that the district court erred by revoking his bond and 

by not recusing itself after explaining its decision to revoke 

the bond. He also asserts that his counsel was ineffective for 

failing to move for the district court’s recusal after the bond 

revocation.

In addition to the above assignments of ineffective assistance of counsel, Thomas also assigns that his trial counsel 

was ineffective in two other respects. He claims that his counsel was ineffective for failing to investigate an alibi defense 

and for failing to subpoena or interview a named potential 

witness.

Finally, Thomas assigns that his sentences were excessive.

III. ANALYSIS

1. Attempts to Discharge Trial Counsel

(a) Additional Background

After charges were filed but before Thomas entered his 

plea, Thomas filed several pro se motions to discharge his trial 

counsel. Thomas filed his first such motion in August 2020. At 

a hearing on the motion, however, Thomas’ trial counsel stated 

that it was his understanding that Thomas wished to withdraw 

the motion. The district court then inquired of Thomas whether 

that was correct. Thomas responded, “Yes, ma’am.”

Approximately 2 months later, in October 2020, Thomas 

filed a second pro se motion to discharge his counsel. In the 

motion, Thomas expressed frustration that while he did not 

wish to enter a plea deal, his appointed counsel was encouraging him to do so. He asked that new counsel be appointed 

to represent him. At a hearing on Thomas’ second motion, 

his counsel requested that the prosecutors be excused from 

the courtroom, so that Thomas could discuss his motion with 

the district court. The district court then asked the prosecutors to leave the courtroom, and the record reflects there was 

an in camera hearing on the motion. When the prosecutors 
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STATE v. THOMAS

Cite as 311 Neb. 989

returned, the district court noted that it overruled Thomas’ 

motion for new counsel.

On April 6, 2021, Thomas filed a third pro se motion to 

discharge his counsel. Thomas asserted that his counsel had 

told him numerous times that he would be found guilty at trial. 

Thomas claimed that he did not trust his counsel and again 

asked that new counsel be appointed to represent him.

Just over a week after Thomas filed his third motion to discharge counsel, on April 14, 2021, he entered his no contest 

pleas. There is no indication in our record that the district court 

took action with respect to the motion to discharge counsel 

before accepting Thomas’ pleas.

After the State presented the factual basis for Thomas’ pleas 

at the plea hearing, the following exchange took place between 

Thomas and the district court:

THE COURT: Have you told your attorney everything 

you know about this case?

[Thomas]: Yes, ma’am.

THE COURT: Are you aware of anything that could 

help you that you’ve not already discussed with your 

attorney?

[Thomas]: No, ma’am.

THE COURT: Are you satisfied with the job your 

attorney has done for you?

[Thomas]: Yes, ma’am.

THE COURT: And, insofar as this case is concerned, 

do you believe your attorney is competent and knows 

what he is doing?

[Thomas]: Yes, ma’am.

THE COURT: Have you had enough time to talk with 

your attorney about this case?

[Thomas]: Yes, I have.

THE COURT: And, before we go any further here 

today, do you need any more time to talk to him about 

anything?

[Thomas]: No, ma’am.
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STATE v. THOMAS

Cite as 311 Neb. 989

(b) Standard of Review

[1,2] Whether a party waived his or her right to appellate 

review is a question of law. Becher v. Becher, 299 Neb. 206, 

908 N.W.2d 12 (2018). When reviewing questions of law, an 

appellate court resolves the questions independently of the trial 

court’s conclusions. Id.

(c) Assigned District Court Error Analysis

Thomas argues that the district court erred by not discharging his trial counsel and by holding an off-the-record hearing 

on Thomas’ second motion to discharge his counsel. But these 

arguments have been waived by Thomas’ no contest pleas.

[3,4] A voluntary guilty plea or plea of no contest waives 

all defenses to a criminal charge. State v. Jaeger, ante p. 69, 

970 N.W.2d 751 (2022). When a defendant pleads guilty or 

no contest, the defendant is limited to challenging whether the 

plea was understandingly and voluntarily made and whether it 

was the result of ineffective assistance of counsel. Id. Thomas’ 

challenges to the district court’s rulings with respect to his 

motions to discharge his trial counsel do not fall into these 

limited categories. They have therefore been waived, and we 

will not address their merits.

(d) Ineffective Assistance of Counsel Analysis

Thomas also asserts that he received ineffective assistance 

of counsel with respect to his attempts to discharge his trial 

counsel. He assigns that his counsel was ineffective for failing 

to withdraw despite Thomas’ requests that he be discharged 

and for permitting the off-the-record hearing on his second 

motion to discharge.

[5-9] Before turning to Thomas’ ineffective assistance of 

counsel claims, we briefly review the well-established law 

governing such claims. 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 

actually prejudiced his or her defense. Id. To show that 

counsel’s performance was deficient, a defendant must show 
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STATE v. THOMAS

Cite as 311 Neb. 989

that counsel’s performance did not equal that of a lawyer with 

ordinary training and skill in criminal law. State v. Anderson,

305 Neb. 978, 943 N.W.2d 690 (2020). 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. Id. A reasonable probability is 

a probability sufficient to undermine confidence in the outcome. Id. When a conviction is based upon a plea of no contest, 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 no 

contest. Id.

[10,11] When, as in this case, 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 in a subsequent postconviction proceeding. State v. 

Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019). Once raised, an 

appellate court will determine whether the record on appeal is 

sufficient to review the merits of the ineffective performance 

claims. State v. Drake, ante p. 219, 971 N.W.2d. 759 (2022). 

The record is sufficient if it establishes either that trial counsel’s performance was not deficient, that the appellant will not 

be able to establish prejudice as a matter of law, or that trial 

counsel’s actions could not be justified as a part of any plausible trial strategy. Id. Conversely, an ineffective assistance 

of counsel claim will not be addressed on direct appeal if it 

requires an evidentiary hearing. Id.

[12] Thomas appears to take the position on appeal that his 

appointed trial counsel should have unilaterally withdrawn 

as counsel. The record establishes that Thomas’ counsel did 

not perform deficiently by remaining as counsel. Appointed 

counsel must remain with an indigent accused unless one of 

the following conditions is met: (1) The accused knowingly, 
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STATE v. THOMAS

Cite as 311 Neb. 989

voluntarily, and intelligently waives the right to counsel and 

chooses to proceed pro se; (2) appointed counsel is incompetent; or (3) the accused chooses to retain private counsel. State 

v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013). Nothing 

in our record indicates that Thomas ever expressed a desire 

to proceed pro se or to retain private counsel. Absent such a 

request from Thomas or an order appointing substitute counsel, 

appointed trial counsel could not simply withdraw.

In addition, we find that the record establishes that Thomas 

would not be able to establish prejudice as to either of his ineffective assistance of counsel claims related to his motion to 

discharge his counsel. Because Thomas was convicted based 

on his no contest pleas, he must show a reasonable probability that if counsel had performed adequately, he would 

have insisted on going to trial. See State v. Anderson, supra. 

Our record, however, conclusively undermines any notion that 

Thomas would have rejected the plea agreement and proceeded 

to trial if his counsel had performed in the manner Thomas 

alleges he should have. At the same hearing at which Thomas 

entered his pleas, he informed the district court that he was 

satisfied with his attorney and believed his attorney was competent. Thomas makes no argument on appeal that he did not 

enter his pleas knowingly and voluntarily. The record thus 

establishes that despite any disagreements with counsel over 

the course of the representation, Thomas decided to accept the 

plea agreement and plead no contest to the charges. We find 

no reasonable probability that he would have insisted on going 

to trial.

Thomas’ assignments of error related to his motions to discharge trial counsel are meritless.

2. Bond Revocation

(a) Additional Background

At Thomas’ plea hearing, after the district court accepted the 

pleas, Thomas’ counsel requested that the district court reduce 

Thomas’ bond. Thomas’ counsel noted that another individual 
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STATE v. THOMAS

Cite as 311 Neb. 989

alleged to have been involved in the July 24, 2019, break-in 

recently requested and received a bond reduction. The State 

did not object to the request and deferred to the district court’s 

discretion. The district court agreed to reduce Thomas’ bond.

Two days after the plea hearing, a “Bond Notice” was filed 

in Thomas’ case. This document was signed by an individual 

who acknowledged that any money she posted for Thomas’ 

bond would be posted in Thomas’ name and returned to him 

upon release of the bond. Later that same day, the district 

court entered an order revoking Thomas’ bond. In its order, 

the district court stated that “in reconsideration of the status 

of the case,” it was vacating the previous order and revoking 

Thomas’ bond.

Thomas subsequently filed a motion for bond review. At 

a hearing on that motion, Thomas’ counsel argued that the 

revocation appeared improper, because the only fact that had 

changed after the bond reduction was that Thomas had begun 

the process of posting the bond.

At the conclusion of the bond review hearing, the district 

court declined to reinstate the bond. The district court explained 

that there was no “impropriety” in the decision to revoke the 

bond. The district court noted that it had revoked bond for 

both Thomas and another individual allegedly involved in the 

July 24, 2019, break-in; that Thomas had been convicted of a 

Class II felony and Class IIA felony; and that two people had 

died in the break-in. The district court observed that probation 

or short sentences were “highly unlikely” under the circumstances, but also indicated that it had not prejudged the matter, 

reviewed the presentence investigation, or decided what the 

sentences would be. The district court stated, “I feel that I had 

made an error in setting bond for those two individuals, and I 

was simply attempting to correct that error.”

(b) Standard of Review

[13] Justiciability issues that do not involve a factual dispute 

present a question of law. Bramble v. Bramble, 303 Neb. 380, 

929 N.W.2d 484 (2019).
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STATE v. THOMAS

Cite as 311 Neb. 989

(c) Analysis of Assigned District Court Error

Thomas argues that the district court erred by revoking his 

bond. Not only, however, does Thomas not offer any authority 

in support of this argument, but his counsel acknowledged at 

oral argument that we could not effectively remedy any such 

error at this stage. We agree and conclude the issue is moot.

Now that Thomas has been sentenced to a term of incarceration, we could not remedy any error with respect to the 

bond set by the district court. This situation is akin to that 

presented in State v. Harig, 192 Neb. 49, 218 N.W.2d 884 

(1974). In that case, the defendant argued that the amount of 

pretrial bail set by the trial court was excessive. We held that 

the issue was not reviewable after a conviction and sentence. 

We conclude the same is true here. Because we could not 

provide any meaningful relief, the issue is moot. See Chaney 

v. Evnen, 307 Neb. 512, 518, 949 N.W.2d 761, 767 (2020) 

(“[t]he central question in a mootness analysis is whether 

changes in circumstances have forestalled any occasion for 

meaningful relief”).

In addition to his argument that the district court erred by 

revoking his bond, Thomas presents a related argument that the 

bond revocation and the trial judge’s comments explaining that 

decision demonstrated that she could not be fair and impartial. 

Thomas contends the trial judge should have recused herself at 

that point. We find this issue is waived.

The trial judge made the comments that Thomas claims 

demonstrated that she could not be fair and impartial at the 

bond review hearing in April 2021. Sentencing did not occur 

until June 2021. Despite having the opportunity to do so, 

Thomas did not seek the trial judge’s disqualification prior to 

sentencing. We have held that a litigant waives the issue of 

judicial disqualification if it is not presented “at the earliest 

practicable opportunity.” State v. Buttercase, 296 Neb. 304, 

315-16, 893 N.W.2d 430, 439 (2017). Because Thomas failed 

to raise the issue of judicial disqualification at the earliest practicable opportunity, the issue is waived.
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STATE v. THOMAS

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(d) Ineffective Assistance of Counsel Analysis

While Thomas has waived any contention that the trial judge 

erred by failing to recuse herself, he also contends that his trial 

counsel was ineffective for not moving for the trial judge’s 

recusal. We find that the record establishes that Thomas would 

not be able to establish that his counsel performed deficiently, 

because any such motion would have failed.

[14-16] The Nebraska Revised Code of Judicial Conduct 

states that a judge must recuse himself or herself from a case if 

the judge’s impartiality might reasonably be questioned. Neb. 

Rev. Code of Judicial Conduct, § 5-302.11. See, also, State 

v. Fuentes, 302 Neb. 919, 926 N.W.2d 63 (2019). In order to 

demonstrate that a trial judge should have recused himself or 

herself, the moving party must show that a reasonable person 

who knew the circumstances of the case would question the 

judge’s impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown. See 

State v. Collins, 283 Neb. 854, 812 N.W.2d 285 (2012). In 

addition, a defendant seeking to disqualify a judge on the basis 

of bias or prejudice bears the heavy burden of overcoming the 

presumption of judicial impartiality. Id. Judicial rulings alone 

almost never constitute a valid basis for a bias or partiality 

motion directed to a trial judge. State v. Buttercase, supra.

Thomas contends that the trial judge’s comments explaining 

the decision to revoke Thomas’ bond demonstrated that she 

had predetermined the issue of sentencing and that a reasonable person would question her impartiality. He also contends 

that the fact that the trial judge revoked the bond without any 

request from the State demonstrates partiality. We disagree 

with both arguments.

In support of his contention that the trial judge had predetermined the issue of sentencing, Thomas focuses on certain 

comments the trial judge made regarding potential sentences, 

but he ignores the trial judge’s express statements that she had 

not yet decided how Thomas would be sentenced. As for the 

absence of a request from the State to revoke Thomas’ bond, 
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the trial judge explained that she “simply felt that [she] had 

made an error” in setting the bond. Thomas presents no argument that the district court lacked authority to reconsider its 

bond order as it did here, much less explain how such a ruling, 

even if erroneous, would be one of those rare judicial rulings 

that constitute a valid basis for a recusal motion. See State v. 

Buttercase, supra. Had a motion to recuse the trial judge been 

filed on the bases Thomas asserts, he would not have been 

able to carry the heavy burden necessary to overcome the presumption of judicial impartiality. See State v. Collins, supra. 

Accordingly, Thomas’ counsel was not ineffective in failing to 

seek recusal. See State v. Anderson, 305 Neb. 978, 988, 943 

N.W.2d 690, 699 (2020) (“as a matter of law, counsel is not 

ineffective for failing to make a meritless objection”).

3. Other Ineffective Assistance of Counsel Claims

(a) Additional Background

Thomas assigns that his counsel was ineffective in two 

other respects we have not yet addressed. He first asserts that 

his counsel was ineffective for failing to investigate his alibi 

defense. Relevant to that claim, Thomas filed a notice of an 

intention to rely upon an alibi pursuant to Neb. Rev. Stat. 

§ 29-1927 (Reissue 2016). Thomas’ appellate brief does not 

provide any details as to his alibi defense.

Thomas also contends that his counsel was ineffective for 

failing to subpoena or interview Herschel Bradley, an individual Thomas claims had evidence that was helpful to his 

defense. Thomas states in his appellate brief that he does not 

believe his counsel investigated or interviewed this potential 

witness. His appellate brief does not provide details as to what 

information Bradley might have possessed.

(b) Analysis

[17] The State suggests that Thomas’ allegations concerning his counsel’s failure to investigate his alibi defense and to 

investigate and interview Bradley were not sufficient to raise 

those claims. An ineffective assistance of counsel claim is 
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raised on direct appeal when the claim alleges deficient performance 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 recognize whether the 

claim was brought before the appellate court. State v. Golyar, 

301 Neb. 488, 919 N.W.2d 133 (2018).

We find that Thomas’ allegations are not sufficient to raise 

the claim relating to the alibi defense but are sufficient to 

raise the claim relating to Bradley. In State v. Golyar, supra, 

a defendant asserted that counsel was ineffective for failing to 

investigate potential alibis. The defendant did not, however, 

identify what the potential alibis were. We found that the 

allegations were not sufficient to raise the claim, because a 

potential postconviction court would not be able to determine 

if a failure to pursue an alibi claim was the same one raised on 

direct appeal. As in Golyar, Thomas has not identified any specific alibis and thus has not sufficiently raised the claim.

The State points out that while Thomas identifies Bradley as 

a person his counsel should have interviewed and investigated, 

he does not specify what information would have been gained 

from Bradley. But our law does not require the specification of 

such information on direct appeal. As we recently explained, 

an assertion on direct appeal that counsel was ineffective for 

failing to investigate unidentified “witnesses” is not sufficient 

to preserve the claim, but a claim is preserved if the defendant provides names or descriptions of any such witnesses. 

See State v. Blake, 310 Neb. 769, 798, 969 N.W.2d 399, 421 

(2022). Thomas has done so here with respect to Bradley.

This leaves the question of whether the record is sufficient 

to review Thomas’ claim that his counsel was ineffective for 

failing to interview or investigate Bradley. The State contends 

that the record is sufficient to reject this claim. The State 

argues that given Thomas’ admissions during the plea colloquy 

that he told his counsel everything he knew about the case and 

that he was satisfied with his counsel’s work, “he cannot now 
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claim that he was actually unsatisfied with his trial counsel 

because of counsel’s alleged failure to . . . interview a certain 

witness.” Brief for appellee at 25.

We disagree with the State that the record allows us to 

resolve this claim on direct appeal. Because our record is 

devoid of any information Bradley might have possessed, we 

cannot analyze whether counsel’s discovery of such information would have had an effect on Thomas’ decision to accept 

the plea agreement. And while Thomas may have expressed 

satisfaction with his counsel’s efforts during the plea colloquy, we do not know from this record what Thomas knew at 

that time about any efforts his counsel had made to interview 

Bradley. We also note that in State v. Blake, supra, the defendant likewise stated at the plea colloquy that he was satisfied 

with his counsel and believed he was competent. Even so, we 

held that we could not resolve a claim that counsel was ineffective for failing to interview potential witnesses. We reach 

the same conclusion here. Thomas’ claim that his counsel was 

ineffective for failing to investigate and interview Bradley was 

sufficiently raised but cannot be resolved on direct appeal.

4. Excessive Sentences

(a) Additional Background

As noted above, the district court sentenced Thomas to 

consecutive terms of imprisonment of 26 to 32 years for conspiracy to commit robbery and 14 to 20 years for conspiracy to 

commit burglary. Before it issued its sentencing decision, the 

district court stated:

We’ve had a lot of inconsistent stories about what happened that night of July 24th, but really the only constant 

was that you were the mastermind behind that failed 

robbery.

You set these events in motion. You even supplied the 

masks to be used. I’m not clear about who supplied the 

guns, but I don’t think it matters. You knew and planned 

for . . . Green and . . . Gresham to break down the door 
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at 3 a.m. and enter the house, which you knew was filled 

with children, armed with guns, in order to steal marijuana and money that you knew were there from your previous contacts with . . . Craig. . . .

. . . [T]his was a crime of violence based on greed, 

and it appears that that was primarily your greed. It was 

primarily your idea to do this robbery which led to the 

deaths of the two individuals, and I think we’re all sorry 

for that.

But . . . as [the prosecutor] points out, your criminal 

history does stand out because your crimes have been so 

frequent. As he argues, you’re only able to stay out of 

trouble when you’re incarcerated.

The district court also observed that a habitual criminal allegation had been dropped pursuant to the plea agreement. The 

district court determined that the severity of the crimes and the 

need to protect the public warranted lengthy prison sentences.

(b) Standard of Review

[18] 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).

(c) Analysis

[19,20] Thomas’ sentences were within statutory limits. 

When sentences imposed within statutory limits are alleged 

on appeal to be excessive, the appellate court must determine 

whether the sentencing court abused its discretion in considering well-established factors and any applicable legal principles. 

Id. A judicial abuse of discretion exists only 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. Id.

[21,22] When imposing a sentence, a sentencing judge 

should consider the defendant’s (1) age, (2) mentality, (3) 

education and experience, (4) social and cultural background, 
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(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. The sentencing court is not 

limited to any mathematically applied set of factors, but the 

appropriateness of the sentence is necessarily a 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.

Thomas argues the district court abused its discretion by 

placing undue weight on his criminal history and failing to 

sufficiently consider several of the other relevant sentencing factors. We see no evidence that the district court abused 

its discretion. The district court stated that it reviewed the 

presentence investigation report, which included information 

concerning all of the factors to be considered by a sentencing court. See State v. Greer, 309 Neb. 667, 962 N.W.2d 217 

(2021). Further, we have rejected the notion that a sentencing 

court is required to articulate on the record that it has considered each sentencing factor and to make specific findings as to 

the facts that bear on each of those factors. Id.

Finally, we disagree that the district court placed undue 

weight on Thomas’ criminal history. Thomas’ criminal history was extensive. Thomas has previously been convicted 

multiple times of terroristic threats, theft by unlawful taking, 

disturbing the peace, and possession of marijuana. He has also 

been convicted of, among other things, second degree assault, 

third degree assault, theft by shoplifting, unauthorized use of 

a financial transaction device, and attempted burglary.

IV. CONCLUSION

We find no error on the part of the district court and thus 

affirm Thomas’ convictions and sentences.

Affirmed.