Decisions of the Nebraska Court of Appeals

124 22 NEBRASKA APPELLATE REPORTS

younger son to Iowa in April 2013. This evidence was uncontroverted. Thus, it is apparent from the record that Nebraska 

was the home state of the children. The record presented on 

appeal indicates that the current proceeding was the first to 

establish paternity of the children, and there is no indication of 

any prior custody order concerning the children.

Under § 43-1238, the district court in the present case 

had jurisdiction to make an initial custody determination. 

Nebraska was the home state, and there is no indication that 

any other court had jurisdiction under the UCCJEA to make an 

initial custody determination. The initial custody determination of the district court would then supersede any temporary 

order entered by the Iowa court. See § 43-1241. The district 

court erred in concluding that it lacked jurisdiction to make 

an initial custody determination, and we remand for further proceedings.

V. CONCLUSION

We conclude that Nebraska was the home state of the children under the UCCJEA and that the district court erred in 

concluding it lacked jurisdiction to make an initial custody 

determination. We remand for further proceedings.

Remanded for further proceedings.

State of Nebraska, appellee, v. 

Kenneth W. Clark, appellant.

___ N.W.2d ___

Filed July 8, 2014. No. A-13-545.

1. Jury Instructions. Whether jury instructions given by a trial court are correct is 

a question of law.

2. Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

3. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence 

is direct, circumstantial, or a combination thereof, and regardless of whether the 

issue is labeled as a failure to direct a verdict, insufficiency of the evidence, 

or failure to prove a prima facie case, the standard is the same: In reviewing a 

criminal conviction, an appellate court does not resolve conflicts in the evidence, 
Decisions of the Nebraska Court of Appeals

STATE v. CLARK 125

Cite as 22 Neb. App. 124

pass on the credibility of witnesses, or reweigh the evidence; such matters are for 

the finder of fact, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most favorably to 

the State, is sufficient to support the conviction.

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

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

whether the sentencing court abused its discretion in considering and applying 

the relevant factors as well as any applicable legal principles in determining the 

sentence to be imposed.

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

the reasons or rulings of a trial judge are clearly untenable, unfairly depriving 

a litigant of a substantial right and denying a just result in matters submitted 

for disposition.

6. Effectiveness of Counsel: Records: Trial: Evidence: Appeal and Error. A 

claim of ineffective assistance of counsel need not be dismissed merely because 

it is made on direct appeal. Rather, the determining factor is whether the record 

is sufficient to adequately review the question.

7. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective 

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

evidentiary hearing.

8. Jury Instructions: Proof: Appeal and Error. To establish reversible error from 

a court’s refusal to give a requested instruction, an appellant has the burden to 

show that (1) the tendered instruction is a correct statement of the law, (2) the 

tendered instruction is warranted by the evidence, and (3) the appellant was 

prejudiced by the court’s refusal to give the tendered instruction.

9. Words and Phrases. The word “or,” when used properly, is disjunctive.

10. 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.

11. ____. 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.

12. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a claim of 

ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or 

her counsel’s performance was deficient and that this deficient performance actually prejudiced the defendant’s defense. An appellate court may address the two 

prongs of this test, deficient performance and prejudice, in either order.

13. Effectiveness of Counsel: Proof. 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.

14. ____: ____. To show prejudice on 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.
Decisions of the Nebraska Court of Appeals

126 22 NEBRASKA APPELLATE REPORTS

15. Proof: Words and Phrases. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.

16. 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.

17. Attorneys at Law: Conflict of Interest. Appointed counsel may be removed 

because of a potential conflict of interest, and such a conflict could, in effect, 

render a defendant’s counsel incompetent to represent the defendant and warrant 

appointment of new counsel.

18. Attorney and Client: Conflict of Interest: Words and Phrases. The phrase 

“conflict of interest” denotes a situation in which regard for one duty tends to 

lead to disregard of another or where a lawyer’s representation of one client is 

rendered less effective by reason of his or her representation of another client.

19. Effectiveness of Counsel: Proof: Appeal and Error. An appellant must make 

specific allegations of the conduct that he or she claims constitutes deficient 

performance by trial counsel when raising an ineffective assistance claim on 

direct appeal.

Appeal from the District Court for Lancaster County: Robert

R. Otte, Judge. Affirmed.

Lisa F. Lozano for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for 

appellee.

Inbody, Chief Judge, and Moore and Pirtle, Judges.

Moore, Judge.

INTRODUCTION

Kenneth W. Clark appeals from his conviction and sentence 

following a jury trial in the district court for Lancaster County 

of a violation of the Sex Offender Registration Act (SORA). 

The court sentenced Clark to 90 days in jail with credit for 

time served. Clark assigns error to the court’s failure to give 

a requested jury instruction, the overruling of his motion for 

directed verdict, and the sufficiency of the evidence to convict 

him. He also asserts that the court imposed an excessive sentence and that he was denied effective assistance of counsel. 

Finding no merit to the assignments of error, we affirm.
Decisions of the Nebraska Court of Appeals

STATE v. CLARK 127

Cite as 22 Neb. App. 124

BACKGROUND

In 2008, Clark pled no contest to and was convicted of third 

degree sexual assault, a Class I misdemeanor. He was sentenced to 360 days in jail. His conviction and sentence were 

affirmed on appeal. See State v. Clark, 278 Neb. 557, 772 

N.W.2d 559 (2009). As a result of the conviction, Clark was 

subject to the registration requirements of SORA. See, Neb. 

Rev. Stat. § 28-320 (Reissue 2008); Neb. Rev. Stat. § 29-4003 

(Cum. Supp. 2012) (SORA applies to persons who, on or after 

January 1, 1997, plead to or are found guilty of certain listed 

crimes, including sexual assault). The present appeal arises out 

of Clark’s conviction for failure to follow those registration 

requirements in 2012.

On October 5, 2012, the State filed an information in the 

district court, charging Clark with a SORA violation, pursuant to Neb. Rev. Stat. § 29-4011(l) (Cum. Supp. 2012), a 

Class IV felony.

On November 27, 2012, Clark’s attorney filed a motion 

for competency evaluation. A hearing on the motion was held 

on November 28. During the course of the hearing, Clark 

objected to his attorney’s motion and explained the nature 

of his objection to the district court. On November 28, the 

court ordered that a competency evaluation be conducted. On 

January 2, 2013, a hearing was held to determine Clark’s competency following the evaluation, and an order was entered 

on January 3 finding that Clark was not competent to stand 

trial. This order committed Clark to the Lincoln Regional 

Center for treatment until such time as the disability may be 

removed. On February 1, the court found Clark competent to 

stand trial and ordered him to be released from the Lincoln 

Regional Center.

A jury trial was held on April 1 through 3, 2013. Testimony 

was presented from the civilian supervisor for the Nebraska 

State Patrol (NSP) Sex Offender Registry, a Lancaster County 

Department of Corrections officer, the records system supervisor for the Lancaster County sheriff’s office, and a Lincoln 

Police Department officer. In addition, certain documentary 

evidence with respect to Clark’s SORA registration and subsequent verifications was admitted.
Decisions of the Nebraska Court of Appeals

128 22 NEBRASKA APPELLATE REPORTS

The record shows that Clark completed his original registration under SORA in May 2008. Clark’s original registration 

forms list his mother as another occupant at the same address. 

Clark completed a verification form in May 2009, showing no 

changes in his address. In December 2009, Timothy Kennett, a 

Lincoln Police Department sergeant whose duties include the 

investigation of SORA violations, contacted Clark as a part of 

his compliance checks on registered sex offenders. This contact 

was made in an effort to update registrants’ information prior 

to an upcoming change in SORA verification requirements in 

January 2010. Kennett assisted Clark at that time in making 

sure his information was up to date.

Reporting requirements for verification by registrants 

changed in 2010. As of January 1, 2010, offenders were 

required to report to a sheriff’s office for verification annually, biannually, or quarterly, depending on their registration 

duration. Offenders convicted of misdemeanors are required 

to register for 15 years, and as of January 2010, 15-year registrants were required to verify their information annually in 

their birth month. At the end of October 2009, the NSP sent 

a mass mailing to all actively registered offenders, advising them of their registration duration and new verification 

schedule. Clark was sent a letter dated October 26, 2009, via 

certified mail, informing him about the changes in verification requirements and that, beginning in 2010, as a 15-year 

registrant, he would have to verify his registration information every 12 months in his birth month, which is March. The 

October 2009 letter was returned unclaimed to the NSP, even 

though it was sent to Clark’s last known address in the registration database.

On April 8, 2010, Clark was an inmate at a Lancaster County 

correctional facility. Following an inquiry regarding Clark by 

the Lincoln Police Department, a county department of corrections officer asked Clark to fill out a change of address form. 

This was necessary because sex offender registrants who are 

incarcerated for more than 3 working days are required to 

notify the sheriff’s office of the change in address. The officer 

explained to Clark that he needed to complete the form which 

would be sent to the sheriff’s office to correctly designate 
Decisions of the Nebraska Court of Appeals

STATE v. CLARK 129

Cite as 22 Neb. App. 124

Clark’s address for SORA purposes. The officer testified that 

Clark appeared to understand what he needed to do and that 

he completed the form. Clark completed another change of 

address form with the sheriff’s office in May 2010, showing a 

new address in Lincoln. The form lists his brother as another 

occupant at the address.

The NSP sent Clark a letter dated January 21, 2011, again 

informing him of his responsibilities with respect to registration verification and the changes made effective in January 

2010. This letter was sent to the address Clark provided in May 

2010. The evidence shows that the letter was actually delivered 

to Clark on January 28, 2011. Clark signed the notification 

acknowledgment form on January 28.

Clark completed a change of information form providing 

a new address, dated February 18, 2011, which was received 

by the sheriff’s office and NSP in February. This form shows 

Clark again residing with his mother at the same address 

where he resided when he initially registered. The notification acknowledgment form was also returned to the sheriff’s 

office. However, no verification form was completed by 

Clark in March, the month of his birthday. In April, the NSP 

referred Clark’s name to Kennett because Clark had missed 

his sex offender verification in March. On April 18, Kennett 

contacted Clark regarding his failure to register in March. 

In explaining why he had not registered in March, Clark 

told Kennett he had gone to the sheriff’s office in February 

and filled out an updated form because he thought he had to 

register prior to his birthday. Clark also told Kennett that he 

did not understand that he had to come in each year during 

the month of March to register. Kennett explained to Clark 

that he had to come in every year during March to complete 

his verification and told him to go to the sheriff’s office after 

their conversation. Clark told Kennett that he understood and 

that he would not miss any more verifications. Clark completed an updated form on April 18. Kennett subsequently 

advised Clark that the county attorney’s office was not going 

to file any charges with respect to Clark’s failure to register 

in March. Kennett again explained to Clark that he had to 

come in every year during the month of March to complete 
Decisions of the Nebraska Court of Appeals

130 22 NEBRASKA APPELLATE REPORTS

his registration verification. Clark again told Kennett that 

he understood.

Clark completed an additional updated form in June 2011. 

At that time, Clark also signed an acknowledgment form, 

acknowledging that he had read the notification explaining his 

duty to register and that he understood his obligations under 

SORA.

Clark again failed to verify and update his information in 

March 2012, and his name was referred to Kennett by the NSP. 

On May 10, Kennett and another detective contacted Clark at 

his registered address. Kennett explained to Clark that they 

were there because of the sex offender registry and asked him 

if he had registered in March. Clark told Kennett he thought he 

had gone with his mother to register a couple of months before. 

Kennett asked Clark if he thought it had been in March. Clark 

responded that he thought so, but that maybe he had forgotten. 

Kennett then called the sheriff’s office to doublecheck Clark’s 

verification status. While Kennett was on the telephone with 

the sheriff’s office, Clark told Kennett that he might have 

forgotten and that he remembered Kennett contacting him 

the year before on the same issue. After the sheriff’s office 

advised that Clark’s last verification was dated in June 2011, 

Kennett arrested Clark for violating SORA. The NSP received 

an update of Clark’s information from the sheriff’s office in 

May 2012.

After Kennett’s testimony, the State rested, and Clark moved 

for dismissal for failure to prove a prima facie case, which 

motion was overruled by the district court.

Clark then presented testimony from his mother, Linda 

Clark Moore. According to Moore, Clark was 29 years old at 

the time of trial and has lived with her all of his life except for 

a 6-month period when he lived with his brother. She testified 

that Clark has a learning disability; has difficulty reading and 

verbalizing his thoughts; and suffers from schizophrenia, phobias, and paranoia. Moore testified that she reminds Clark of 

things, takes him to appointments, reads his papers, and helps 

him with his paperwork. Clark works with Moore’s father at a 

country club in the “pro shop” and in the kitchen.
Decisions of the Nebraska Court of Appeals

STATE v. CLARK 131

Cite as 22 Neb. App. 124

Moore filled out the information on the notification 

acknowledgment form signed by Clark on January 28, 2011, 

and Clark then signed the form. Moore admitted that the 

verification document states that offenders have to register 

annually in the month of their birth at the sheriff’s office. 

Moore took Clark to the sheriff’s office in February 2011 

to complete his registration. Moore testified that if she had 

known Clark had to register in March, she would have taken 

him then. She also testified that she did not think it would 

make a difference to register in February, since it was “almost 

a few days away from his birthday.” Moore took Clark back 

to the sheriff’s office on April 18 after the police visit to register again.

In May 2012, Moore received a telephone call from police 

about Clark’s not registering again and informing her that 

Clark was in jail. Moore was very upset that she had failed 

to take Clark to the sheriff’s office on time. However, Moore 

agreed that it was Clark’s duty to complete his verifications 

as required and that her name only appears on Clark’s registry papers as a person of interest because he was living 

with her.

Following Moore’s testimony, Clark rested, and the State 

had no rebuttal evidence. Clark asked the district court for a 

directed verdict, which motion was denied by the court.

On April 3, 2013, the jury found Clark guilty of a SORA 

violation. The district court accepted the verdict and ordered 

a presentence investigation. On June 20, the court entered an 

order sentencing Clark to a jail term of 90 days and giving him 

credit for time served. Clark subsequently perfected his appeal 

to this court.

ASSIGNMENTS OF ERROR

Clark asserts, combined, that the district court erred in (1) 

overruling his proposed jury instruction No. 3, (2) overruling 

his motion for directed verdict and convicting him based on 

insufficient evidence, and (3) imposing an excessive sentence. 

Clark also asserts that he was denied effective assistance 

of counsel.
Decisions of the Nebraska Court of Appeals

132 22 NEBRASKA APPELLATE REPORTS

STANDARD OF REVIEW

[1,2] Whether jury instructions given by a trial court are 

correct is a question of law. State v. Green, 287 Neb. 212, 842 

N.W.2d 74 (2014). When dispositive issues on appeal present questions of law, an appellate court has an obligation to 

reach an independent conclusion irrespective of the decision 

of the court below. State v. Ely, 287 Neb. 147, 841 N.W.2d 

216 (2014).

[3] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the 

issue is labeled as a failure to direct a verdict, insufficiency of 

the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on 

the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, 

in the absence of prejudicial error, if the evidence admitted at 

trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Collins, 281 Neb. 927, 

799 N.W.2d 693 (2011).

[4,5] Where a sentence imposed within the statutory limits 

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

determine whether the sentencing court abused its discretion 

in considering and applying the relevant factors as well as 

any applicable legal principles in determining the sentence to 

be imposed. State v. Rieger, 286 Neb. 788, 839 N.W.2d 282 

(2013). A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition. State v. Johnson, 

287 Neb. 190, 842 N.W.2d 63 (2014).

[6,7] A claim of ineffective assistance of counsel need not 

be dismissed merely because it is made on direct appeal. State 

v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013). Rather, 

the determining factor is whether the record is sufficient to 

adequately review the question. Id. An ineffective assistance 

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

requires an evidentiary hearing. Id.
Decisions of the Nebraska Court of Appeals

STATE v. CLARK 133

Cite as 22 Neb. App. 124

ANALYSIS

Jury Instruction.

Clark asserts that the district court erred in overruling his 

proposed jury instruction No. 3. Clark’s proposed instruction 

would have required the State to prove that Clark was subject 

to the provisions of SORA; that he was notified of his obligation to report in person to the sheriff’s office every 12 months 

during the month of his birth; that he “knowingly and willfully 

(or intentionally) failed to report every twelve months in the 

month of his birth, in person, to the office of the sheriff of the 

county in which he resides for purposes of accepting verifications”; and that this occurred in Lancaster County between 

March 1 and 31, 2012.

The actual jury instruction given by the district court required 

the State to prove the following elements beyond a reasonable 

doubt in order to convict Clark of a SORA violation:

1. That . . . Clark, was a person subject to [SORA], and

2. That . . . Clark knew of his verification requirements 

under the [a]ct, and

3. That . . . Clark failed to verify his registration in 

person, with the Sheriff . . . , and

4. That he failed to verify his registration during the 

month of his birth, to wit: between March 1, 2012 and 

March 31, 2012, and

5. This failure occurred in Lancaster County, Nebraska.

[8] To establish reversible error from a court’s refusal to 

give a requested instruction, an appellant has the burden to 

show that (1) the tendered instruction is a correct statement 

of the law, (2) the tendered instruction is warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 

refusal to give the tendered instruction. State v. Morgan, 286 

Neb. 556, 837 N.W.2d 543 (2013).

Neb. Rev. Stat. § 29-4008 (Cum. Supp. 2012) provides, 

“No person subject to [SORA] shall knowingly and willfully

furnish any false or misleading information in the registration 

or fail to provide or timely update law enforcement of any of 

the information required to be provided by the act.” (Emphasis 

supplied.) Clark argues that a failure to provide or timely 
Decisions of the Nebraska Court of Appeals

134 22 NEBRASKA APPELLATE REPORTS

update information must be knowing and willful and that 

his proposed instruction clarified that requirement. The State 

argues that the phrase “knowingly and willfully” only modifies the phrase “furnish any false or misleading information” 

and does not apply to the requirement to provide or timely 

update information.

[9] We agree with the State. The word “or,” when used properly, is disjunctive. State v. Thacker, 286 Neb. 16, 834 N.W.2d 

597 (2013). Section 29-4008 is worded in the disjunctive with 

an “or” between the two types of violations contained in the 

section. Thus, the “knowingly and willfully” language applies 

only to the furnishing of false and misleading information and 

not to the failure to update information. As such, the district 

court did not err in failing to give Clark’s requested instruction 

as it was not a correct statement of the law.

Further, Clark cannot show that he was prejudiced by the 

district court’s refusal to give his proposed instruction. The 

instruction that was actually given required the jury to find that 

Clark knew of his verification requirements under SORA and 

that he failed to verify his registration. This assignment of error 

is without merit.

Sufficiency of Evidence.

Clark asserts that the district court erred in overruling his 

motion for directed verdict and that the evidence was insufficient to convict him. Section 29-4011(1) provides that “[a]ny 

person required to register under [SORA] who violates the 

act is guilty of a Class IV felony.” Clark was previously 

convicted of third degree sexual assault and thus subject to 

SORA requirements for a period of 15 years, and as a 15-year 

registrant, he was required to report to the sheriff’s office in 

person in his birth month to complete annual verifications. See, 

Neb. Rev. Stat. § 29-4005 (Cum. Supp. 2012); Neb. Rev. Stat. 

§ 29-4006(4) (Cum. Supp. 2012).

There is undisputed evidence in the record that Clark’s 

birthday is in March and that he did not complete his annual 

verification in March 2012. His argument in support of this 

assignment of error again focuses on his lack of a knowing and 

willful violation of SORA, but we have already determined 
Decisions of the Nebraska Court of Appeals

STATE v. CLARK 135

Cite as 22 Neb. App. 124

that § 29-4008 does not require a “knowing and willful” failure to provide or update information required by SORA. In 

any event, there is sufficient evidence in the record to show 

that Clark knew of his obligation to verify his registration in 

person in the sheriff’s office in March each year and that he 

failed to do so in March 2012. This assignment of error is 

without merit.

Excessive Sentence.

Clark asserts that the district court imposed an excessive 

sentence. He argues that, given his unique circumstances, 

including his mental, intellectual, and academic deficiencies, 

the sentence of 90 days in jail is excessive and should be 

reduced or a sentence of probation should be imposed.

Clark was convicted of a Class IV felony, which carries 

a maximum of 5 years in prison and/or a $10,000 fine. See, 

§ 29-4011(1); Neb. Rev. Stat. § 28-105(1) (Reissue 2008). 

Thus, Clark’s sentence of 90 days in jail is well within the 

statutory guidelines.

[10,11] 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. State v. McGuire, 286 Neb. 494, 

837 N.W.2d 767 (2013). 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.

Clark was 29 years old at the time of sentencing. He has a 

10th grade education and has been identified as “mildly mentally handicapped” with “speech/language” impairment. Clark 

told the probation officer conducting the presentence investigation that he is diagnosed as having paranoid schizophrenia with 

a learning disorder. In 1996, he was diagnosed by a mental 

health professional as having oppositional defiant disorder and 

obsessive-compulsive personality features. Clark spent time 
Decisions of the Nebraska Court of Appeals

136 22 NEBRASKA APPELLATE REPORTS

in the Lincoln Regional Center from August 2005 to March 

2006 for purposes of restoration of competency. At that time, 

his final diagnosis was substance abuse, including alcohol, and 

delusional disorder, not otherwise specified. He was also diagnosed as having borderline intellectual functioning.

In addition to the sexual assault that led to his SORA 

obligation, Clark has been convicted of criminal offenses, 

including possession of marijuana less than an ounce, assault, 

possession of drug paraphernalia, resisting arrest, carrying a 

concealed weapon, and disturbing the peace. On the level of 

service/case management inventory, he was assessed as a high 

risk to reoffend and scored in the very high or high ranges 

with respect to criminal history, leisure/recreation, procriminal 

attitude/orientation, and antisocial pattern.

It is clear that the district court considered the relevant factors in sentencing Clark. The court spoke at length about the 

factors it considered. The court rejected a sentence of probation, noting Clark’s failure to take responsibility for the current crime. The court noted Clark’s extensive prior criminal 

history and his failure to be compliant with past court orders. 

Nevertheless, the court rejected a prison sentence and imposed 

a minimal jail sentence in light of Clark’s circumstances. 

We find no abuse of discretion in the sentence imposed 

upon Clark.

Ineffective Assistance of Counsel.

Finally, Clark asserts that he was denied effective assistance 

of counsel, arguing that his trial counsel violated his right to 

a speedy trial by filing a motion for competency evaluation 

and by failing to withdraw as counsel because of a conflict 

of interest.

[12-15] To prevail on a claim of ineffective assistance of 

counsel under Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show 

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

this deficient performance actually prejudiced the defendant’s 

defense. An appellate court may address the two prongs of 

this test, deficient performance and prejudice, in either order. 

State v. Filholm, 287 Neb. 763, ___ N.W.2d ___ (2014). To 
Decisions of the Nebraska Court of Appeals

STATE v. CLARK 137

Cite as 22 Neb. App. 124

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. Hernandez, 22 Neb. App. 62, ___ N.W.2d ___ (2014). To 

show prejudice on 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. State v. Filholm, supra. A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome. State v. Robinson, 287 Neb. 606, 

843 N.W.2d 672 (2014).

With respect to the motion for competency evaluation, the 

record is sufficient to review this claim and reveals that Clark’s 

counsel was not deficient in raising the question about Clark’s 

competency. Following an evaluation of Clark, he was, in fact, 

found incompetent to stand trial. After Clark spent a short 

period of time in the Lincoln Regional Center, the district 

court found him competent to stand trial and he was released 

from the Lincoln Regional Center. Contrary to Clark’s assertions, the motion was not unnecessary. Further, the motion 

delayed the trial time only briefly. The information in this 

case was filed on October 5, 2012, and trial began on April 1, 

2013, within the 6-month period set forth in Neb. Rev. Stat. 

§ 29-1207 (Cum. Supp. 2012). Clark was not denied his statutory right to a speedy trial, and thus, his counsel was not ineffective in this regard.

Clark’s argument with respect to the alleged conflict of 

interest is somewhat unclear but appears to relate, in part, to 

his trial counsel’s having filed the motion for competency 

evaluation against Clark’s wishes. He also argues that trial 

counsel should have withdrawn from his representation of 

Clark because he had been represented by an attorney from 

the public defender’s office in a previous case and that attorney withdrew due to a conflict of interest, after which Clark 

retained private counsel.

[16-18] 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 
Decisions of the Nebraska Court of Appeals

138 22 NEBRASKA APPELLATE REPORTS

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

appointed; or (3) the accused chooses to retain private counsel. State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013). 

Appointed counsel may be removed because of a potential 

conflict of interest, and such a conflict could, in effect, render 

a defendant’s counsel incompetent to represent the defendant 

and warrant appointment of new counsel. Id. The phrase “conflict of interest” denotes a situation in which regard for one 

duty tends to lead to disregard of another or where a lawyer’s 

representation of one client is rendered less effective by reason of his or her representation of another client. Id. In the 

case before us, Clark did not waive his right to counsel, ask 

to proceed pro se, or indicate that he intended to retain private counsel.

As discussed above, Clark’s trial counsel was effectively 

representing Clark when she asked for a competency evaluation and, in fact, may have been ineffective had she failed to 

do so. Trial counsel’s filing of this motion did not amount to a 

conflict of interest.

[19] With regard to the suggestion that some other conflict 

of interest existed based upon a previous conflict with the 

public defender’s office, Clark does not provide sufficient allegations to show that a current conflict of interest existed. An 

appellant must make specific allegations of the conduct that he 

or she claims constitutes deficient performance by trial counsel 

when raising an ineffective assistance claim on direct appeal. 

State v. Filholm, 287 Neb. 763, ___ N.W.2d ___ (2014).

This assignment of error is without merit.

CONCLUSION

The district court did not abuse its discretion in failing to 

give Clark’s requested jury instruction No. 3. The evidence was 

sufficient to sustain Clark’s conviction, and the court did not 

impose an excessive sentence. Clark did not receive ineffective 

assistance of trial counsel.

Affirmed.