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STATE v. MORTON

Cite as 29 Neb. App. 624

State of Nebraska, appellee, v. Natavian 

Q. Morton, appellant.

___ N.W.2d ___

Filed March 23, 2021. No. A-19-1168.

1. Pleas: Appeal and Error. A trial court is afforded discretion in deciding 

whether to accept guilty pleas, and an appellate court will reverse the 

trial court’s determination only in the case of an abuse of discretion.

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

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

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

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

by the trial court.

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

a question of law.

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

direct appeal, an appellate court decides only whether the undisputed 

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

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

deficient performance.

6. Convictions: Weapons: Intent. Under Neb. Rev. Stat. § 28-1205 

(Reissue 2016), when a felony which serves as the basis of the weapon 

charge is an unintentional crime, the accused cannot be convicted of the 

weapon charge.

7. Pleas: Waiver. The voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge, whether the defense is procedural, 

statutory, or constitutional.

8. Pleas. A sufficient factual basis is a requirement for finding that a plea 

was entered into understandingly and voluntarily.

Nebraska Supreme Court Online Library

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

03/30/2021 08:08 AM CDT
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9. 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 a 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.

10. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied are 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. Sentences: Probation and Parole: Appeal and Error. Denial of probation and imposition of a sentence within statutorily prescribed limits will 

not be disturbed on appeal absent an abuse of discretion.

13. Sentences: Statutes. Neb. Rev. Stat. § 29-2260 (Reissue 2016) is a 

directive to the trial court as to certain factors to be considered in imposing the sentence, but § 29-2260 does not control the trial court’s discretion in its conclusion reached as to the proper sentence to be imposed, 

after weighing the statutory factors.

14. Sentences: Statutes: Appeal and Error. An appellate court’s review of 

an alleged abuse of the sentencing judge’s discretion in refusing to withhold imprisonment under Neb. Rev. Stat. § 29-2260 (Reissue 2016) must 

recognize the statutory guidelines set out in § 29-2260 for the direction 

of the sentencing judge in imposing or withholding imprisonment, but 

the factors are not mathematically applied.

15. Pleas: Waiver. Generally, a voluntary guilty plea or plea of no contest 

waives all defenses to a criminal charge.

16. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or 

no contest, he or she is limited to challenging whether the plea was 

understandingly and voluntarily made and whether it was the result of 

ineffective assistance of counsel.

17. Effectiveness of Counsel: 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.

18. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of 

ineffective assistance of counsel under Strickland v. Washington, 466 
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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.

19. ____: ____. 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.

20. Effectiveness of Counsel: Pleas. In a plea context, deficiency depends 

on whether counsel’s advice was within the range of competence 

demanded of attorneys in criminal cases.

21. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is based upon a guilty or no contest plea, the prejudice requirement 

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

the defendant would have insisted on going to trial rather than pleading guilty.

22. Effectiveness of Counsel: Proof. The two prongs of the ineffective 

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

668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be addressed in 

either order.

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

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

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

whether the record is sufficient to adequately review the question.

24. ____: ____: ____. The record on direct appeal is sufficient 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.

25. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffective for failing to raise a meritless argument.

Appeal from the District Court for Lancaster County: Lori 

A. Maret, Judge. Affirmed as modified.

Jonathan M. Braaten, of Anderson, Creager & Wittstruck, 

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

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Pirtle, Bishop, and Welch, Judges.
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Cite as 29 Neb. App. 624

Pirtle, Judge.

I. INTRODUCTION

Natavian Q. Morton appeals from his plea-based convictions 

and sentences in the district court for Lancaster County for one 

count of manslaughter and one count of possession of a firearm 

during the commission of a felony. He claims there was not a 

sufficient factual basis to support his no contest plea and conviction for the weapon charge, that the district court imposed 

excessive sentences, and that his trial counsel provided ineffective assistance. For the reasons that follow, we affirm Morton’s 

convictions, but determine that Morton’s sentence on count II, 

possession of a firearm during the commission of a felony, was 

an abuse of discretion. Accordingly, we reduce the sentence 

on count II.

II. BACKGROUND

On May 31, 2018, the State charged Morton with second 

degree murder, a Class IB felony; unlawful discharge of a firearm, a Class ID felony; and two counts of use of a firearm to 

commit a felony, both Class IC felonies.

On July 22, 2019, pursuant to a plea agreement, the State 

amended the count of second degree murder to manslaughter 

and amended one of the counts of use of a firearm to commit 

a felony to possession of a firearm during the commission of 

a felony. The State dismissed the remaining counts. Morton 

agreed to plead no contest to the amended charges.

At the plea hearing, before accepting Morton’s no contest 

pleas, the district court advised him that he was giving up 

certain constitutional rights by entering a plea, which included 

the right to confront witnesses against him, the right to a 

jury trial, and the right against self-incrimination. The court 

advised him of the charges against him and the range of penalties. The court advised Morton of the civil consequences 

of a felony conviction. Morton stated that he understood the 

rights he was giving up, as well as the charges against him. 

Morton indicated to the court that he had sufficient time to 
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discuss the case with his attorney prior to the hearing, that 

they had spoken about all possible defenses, and that he was 

satisfied with his attorney and felt his counsel had properly 

represented him.

The State provided a factual basis to support Morton’s no 

contest pleas. In summary, the State would have provided 

evidence at trial that on March 26, 2018, Morton and several friends drove to a house in Lincoln, Nebraska, intending to continue a fight that had begun earlier that day. After 

they arrived, Morton and his friends exited their vehicles and 

stood in the front yard of the residence. At some point, someone handed Morton a gun. A verbal fight broke out between 

Morton’s friends and individuals standing on the front porch. 

When a female from the residence got into a vehicle and 

began to drive around the yard in an attempt to run people 

over, Morton pulled the gun out of his pocket. He fired in the 

direction of the front porch where people were standing, and 

the victim was shot and subsequently died from his injuries. 

Morton was 16 years old at the time of the offense.

The district court found beyond a reasonable doubt that 

Morton understood the nature of the amended charges against 

him; that Morton’s pleas were made freely, knowingly, intelligently, and voluntarily; and that there was a sufficient factual 

basis to support the pleas. The court accepted Morton’s no 

contest pleas and found him guilty on both counts. The court 

ordered that a presentence investigation report (PSR) be prepared and scheduled sentencing.

On November 18, 2019, a sentencing hearing was held. 

Prior to imposing its sentence, the court stated it had reviewed 

the PSR, as well as letters written by counsel. In deciding 

upon the sentence, the court took into consideration Morton’s 

young age at the time of the offense, Morton’s lack of criminal 

history, the “extreme benefit” he received as part of the plea 

agreement, and the fact that someone had lost his life as a 

result of Morton’s actions. The court sentenced Morton to 15 
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to 20 years’ imprisonment on the conviction of manslaughter 

and 30 to 40 years’ imprisonment on the conviction of possession of a firearm during the commission of a felony, and it 

ordered the sentences to be served consecutively. Morton was 

given 570 days’ credit for time served.

III. ASSIGNMENTS OF ERROR

Morton assigns, restated and consolidated, that there was 

insufficient evidence to sustain his conviction of possession of 

a firearm during the commission of a felony; that the district 

court imposed excessive sentences; and that his trial counsel 

was ineffective.

IV. STANDARD OF REVIEW

[1,2] A trial court is afforded discretion in deciding whether 

to accept guilty pleas, and an appellate court will reverse the 

trial court’s determination only in the case of an abuse of 

discretion. State v. Ettleman, 303 Neb. 581, 930 N.W.2d 538 

(2019). A judicial abuse of discretion exists when the reasons 

or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in 

matters submitted for disposition. Id.

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

within the statutory limits absent an abuse of discretion by 

the trial court. State v. Manjikian, 303 Neb. 100, 927 N.W.2d 

48 (2019).

[4,5] Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. 

State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018). In 

reviewing claims of ineffective assistance of counsel on direct 

appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively 

determine whether counsel did or did not provide effective 

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

1. Insufficient Factual Basis

[6] Morton first argues that the State’s factual basis was 

insufficient to support his conviction of possession of a firearm during the commission of a felony. Specifically, he claims 

that there was no indication from the factual basis that the 

underlying felony involved was an intentional crime, because 

the court did not clarify during the plea hearing whether the 

predicate offense was “sudden quarrel” manslaughter or unintentional manslaughter. Brief for appellant at 8. In support, 

Morton cites to State v. Pruett, 263 Neb. 99, 638 N.W.2d 

809 (2002), which held that when a felony which serves as 

the basis of the weapon charge is an unintentional crime, the 

accused cannot be convicted of the weapon charge.

In contrast, the State argues that the Nebraska Supreme 

Court’s holding in State v. Burkhardt, 258 Neb. 1050, 607 

N.W.2d 512 (2000), applies to this case. In Burkhardt, the 

defendant pled guilty to one count of manslaughter and one 

count of use of a firearm to commit a felony. On appeal, the 

defendant argued that his conviction for the weapon charge 

should be vacated because the predicate crime of manslaughter 

was unintentional. However, the court in Burkhardt concluded 

that by knowingly, intelligently, and voluntarily entering pleas 

of guilty, the defendant had waived any arguments related to 

the alleged defect. Therefore, the State in this case argues that 

even if the factual basis was insufficient to sustain Morton’s 

conviction for possession of a firearm during the commission 

of a felony, he has waived the argument by failing to object to 

the factual basis at the plea hearing and entering his plea of 

no contest.

[7,8] It has been held that the voluntary entry of a guilty 

plea or a plea of no contest waives every defense to a charge, 

whether the defense is procedural, statutory, or constitutional. 

State v. Manjikian, supra. However, a sufficient factual 

basis is a requirement for finding that a plea was entered 
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into understandingly and voluntarily. State v. Ettleman, 303 

Neb. 581, 930 N.W.2d 538 (2019); State v. Wilkinson, 293 Neb. 

876, 881 N.W.2d 850 (2016). The court in Wilkinson made it 

clear that a defendant does not waive a challenge to the factual 

basis by entering a plea, because a sufficient factual basis is a 

prerequisite for a judicial finding that the plea was entered into 

understandingly and voluntarily. See, also, State v. Clemens, 

300 Neb. 601, 915 N.W.2d 550 (2018); State v. Schiesser, 24 

Neb. App. 407, 888 N.W.2d 736 (2016). Additionally, even 

though Morton did not object to the factual basis at the plea 

hearing, the issue was clearly before the district court, because 

the court was required to determine whether a sufficient factual 

basis existed prior to accepting Morton’s pleas. See State v. 

Workman, 22 Neb. App. 223, 857 N.W.2d 349 (2014) (finding that trial court erred in accepting defendant’s guilty pleas 

without factual basis and where issue was raised for first time 

on motion for rehearing before appellate court). Therefore, we 

determine that Morton has not waived the right to challenge 

the sufficiency of the State’s factual basis on direct appeal. We 

next analyze whether the factual basis was sufficient.

Morton was convicted of possession of a deadly weapon 

(firearm) during the commission of a felony in violation of 

Neb. Rev. Stat. § 28-1205(2)(a) (Reissue 2016), which states: 

“Any person who possesses a firearm, a knife, brass or iron 

knuckles, or a destructive device during the commission of 

any felony which may be prosecuted in a court of this state 

commits the offense of possession of a deadly weapon during 

the commission of a felony.” Possession of a deadly weapon, 

which is a firearm, during the commission of a felony is a 

Class II felony. § 28-1205(2)(c).

On appeal, Morton does not contest that he was in possession of a firearm, nor that he has been convicted of manslaughter, a Class IIA felony. Rather, he argues that under State v. 

Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002), the underlying 

felony for a weapon charge must be an intentional crime, but 

because the State’s factual basis supports that he committed 
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unintentional manslaughter only, it cannot sustain his conviction for possession of a firearm during the commission of 

a felony.

The rule that an unintentional crime cannot serve as the 

predicate felony for a weapon charge was first articulated by 

the Supreme Court in State v. Ring, 233 Neb. 720, 447 N.W.2d 

908 (1989), disapproved on other grounds, State v. Irish, 292 

Neb. 513, 873 N.W.2d 161 (2016). In Ring, the court explained 

that the purposes behind § 28-1205 are to discourage individuals from employing deadly weapons in order to facilitate 

or effectuate the commission of felonies and to discourage 

individuals from carrying deadly weapons while they commit 

felonies. The court then stated, “It cannot reasonably be said 

that § 28-1205 will dissuade a person from using a deadly 

weapon to commit an unintentional felony; the two concepts 

are logically inconsistent.” State v. Ring, 233 Neb. at 724, 447 

N.W.2d at 911. As a result, the court concluded that when the 

felony which served as the basis of the use of a weapon charge 

was an unintentional crime, the accused could not be convicted 

of use of a weapon to commit a felony. Subsequently, in State 

v. Pruett, supra, the court held that a manslaughter conviction 

for causing the death of another unintentionally while in the 

commission of an unlawful act was an unintentional crime and 

therefore could not serve as the predicate felony for a charge of 

use of a deadly weapon to commit a felony. See Neb. Rev. Stat. 

§ 28-305(1) (Reissue 2016). See, also, State v. Sepulveda, 278 

Neb. 972, 775 N.W.2d 40 (2009); State v. Rye, 14 Neb. App. 

133, 705 N.W.2d 236 (2005).

We point out, however, that State v. Ring, supra; State 

v. Pruett, supra; State v. Sepulveda, supra; and State v. 

Rye, supra, are legally distinct from Morton’s case. In each 

of those cases, the defendant was charged and convicted 

of use of a deadly weapon to commit a felony in violation of 

§ 28-1205(1)(a). Morton was convicted with possession of a 

deadly weapon during the commission of a felony in violation 

of § 28-1205(2)(c). Section 28-1205(1)(a) states that “[a]ny 

person who uses a [deadly weapon] to commit any felony
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which may be prosecuted in a court of this state commits 

the offense of use of a deadly weapon to commit a felony.” 

(Emphasis supplied.) The Supreme Court in Ring held that the 

language “to commit any felony” in § 28-1205 is synonymous 

with “‘for the purpose of’” committing any felony and not 

“‘with the result of’” committing a felony. 233 Neb. at 723, 

447 N.W.2d at 910. The court reasoned that a criminal defendant could use a weapon “‘for the purpose of committing’” a 

felony only if the predicate offense was an intentional crime. 

Id. at 724, 447 N.W.2d at 911.

In contrast, § 28-1205(2)(a) states that “[a]ny person who 

possesses a [deadly weapon] during the commission of a 

felony which may be prosecuted in a court of this state commits the offense of possession of a deadly weapon during the 

commission of a felony.” Completely absent is the “to commit 

any felony” language that was the linchpin of the Supreme 

Court’s analysis in State v. Ring, 233 Neb. 720, 447 N.W.2d 

908 (1989), disapproved on other grounds, State v. Irish, 233 

Neb. 720, 447 N.W.2d 908 (1989), and subsequent cases. On 

appeal, Morton does not cite to—nor do we locate—Nebraska 

precedent that explicitly applies the holdings from State v. 

Ring, supra, and State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 

(2002), in a case where a defendant was convicted of a “possession” weapon charge rather than a “use” weapon charge. 

It is true that in Ring and other cases, the Supreme Court’s 

analysis has often referred to § 28-1205 in its entirety, rather 

than specifically isolating “use” cases. For instance, the court 

summarized its opinions in Ring and Pruett as holding that 

“an unintentional crime could not serve as the predicate felony 

for a weapons charge under § 28-1205” and did not differentiate between “use” cases and “possession” cases. See State v. 

Iromuanya, 272 Neb. 178, 213, 719 N.W.2d 263, 293 (2006). 

While it is settled that the predicate offense for a “use” weapon 

charge in violation of § 28-1205 must be an intentional crime, 

we cannot say that this language alone requires that a predicate offense for a “possession” weapon charge must also be an 

intentional crime.
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Regardless, in this case, the State’s factual basis did support 

a finding that Morton was in possession of a firearm during the 

commission of an intentional crime, and therefore, we need not 

conclusively determine whether the rule from Ring applies in 

both “use” and “possession” cases.

At the plea hearing, the State’s factual basis showed that 

during the altercation at the residence, Morton withdrew a 

loaded gun from his pocket, pointed it toward the front porch 

where several individuals were standing, and fired. Neb. Rev. 

Stat. § 28-1212.02 (Reissue 2016) states, in pertinent part, 

that a person is guilty of unlawful discharge of a firearm if he 

or she “unlawfully and intentionally discharges a firearm at 

an inhabited dwelling house” and that such a person shall be 

guilty of a Class ID felony. We conclude that the State’s factual 

basis was sufficient to prove all of the elements of unlawful 

discharge of a firearm in violation of § 28-1212.02. Because it 

is an intentional crime, it may serve as the predicate felony for 

a weapon charge under § 28-1205.

On appeal, Morton differentiates his case from State v. 

Tucker, 278 Neb. 935, 774 N.W.2d 753 (2009). In that case, 

the district court found the defendant guilty of manslaughter 

by “‘unintentionally causing the death of [the victim] while 

in the commission of an unlawful act’” and also found the 

defendant guilty of use of a deadly weapon to commit a felony, 

explaining that the predicate offense was the intentional crime 

of assault against the victim. Id. at 939, 774 N.W.2d at 757. On 

a petition for further review, the Supreme Court found no error, 

holding that “based on the predicate offense of intentional 

assault, the evidence was sufficient to support the trial court’s 

judgment that [the defendant] was guilty of use of a weapon to 

commit a felony.” Id. at 945, 774 N.W.2d at 760. In this case, 

Morton argues that because the district court “made no finding 

as to the predicate intentional offense supporting the weapon 

charge,” his conviction must be vacated. Brief for appellant 

at 9.

Although we agree that it may be the best practice for a 

trial court to make specific findings regarding the predicate 
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offense for a weapon charge, we do not believe that the district court’s failure to do so in this case constitutes an abuse 

of discretion. As discussed above, the State’s factual basis was 

sufficient to show that Morton committed the intentional crime 

of unlawful discharge of a firearm. We cannot say that the 

reasons or rulings of the district court were clearly untenable 

or that Morton was deprived of a just result when the district 

court found him guilty of possession of a firearm during the 

commission of a felony. Accordingly, we conclude that the district court did not abuse its discretion in accepting Morton’s no 

contest pleas. This argument fails.

2. Sentencing Errors

Morton argues that the district court abused its discretion 

in not imposing terms of probation rather than incarceration. 

In the alternative, he argues that the court imposed excessive sentences.

[9-11] Where a sentence imposed within the statutory limits 

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

determine whether a 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. Smith, 302 Neb. 154, 922 N.W.2d 444 

(2019). In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) 

age, (2) mentality, (3) education and experience, (4) social and 

cultural background, (5) past criminal record or record of lawabiding 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 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.

[12] Denial of probation and imposition of a sentence within 

statutorily prescribed limits will not be disturbed on appeal 
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absent an abuse of discretion. State v. Thomas, 238 Neb. 4, 

468 N.W.2d 607 (1991).

(a) Probation

Morton first argues that the district court abused its discretion in not imposing terms of probation, rather than incarceration. Morton points to Neb. Rev. Stat. § 29-2260(2)(c) (Reissue 

2016), which permits a trial court to withhold a sentence 

of imprisonment at its discretion unless, inter alia, a lesser 

sentence would “depreciate the seriousness of the offender’s 

crime or promote disrespect for law.” Morton argues his lack 

of criminal history, his mental health issues, and the lack of 

evidence that he intended to cause harm to the victim support 

a sentence of probation.

Section 29-2260(3) provides a noncontrolling set of factors 

that trial courts may give weight to when considering a sentence of probation as opposed to a sentence of imprisonment. 

These factors include a consideration of whether

(a) The crime neither caused nor threatened serious 

harm;

(b) The offender did not contemplate that his or her 

crime would cause or threaten serious harm;

(c) The offender acted under strong provocation;

(d) Substantial grounds were present tending to excuse 

or justify the crime, though failing to establish a defense;

(e) The victim of the crime induced or facilitated commission of the crime;

(f) The offender has compensated or will compensate 

the victim of his or her crime for the damage or injury the 

victim sustained;

(g) The offender has no history of prior delinquency 

or criminal activity and has led a law-abiding life for 

a substantial period of time before the commission of 

the crime;

(h) The crime was the result of circumstances unlikely 

to recur;
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(i) The character and attitudes of the offender indicate 

that he or she is unlikely to commit another crime;

(j) The offender is likely to respond affirmatively to 

probationary treatment; and

(k) Imprisonment of the offender would entail excessive hardship to his or her dependents.

Id.

[13,14] The Supreme Court has stated that § 29-2260 is a 

directive to the trial court as to certain factors to be considered 

in imposing the sentence, but also that § 29-2260 does not 

control the trial court’s discretion in its conclusion reached as 

to the proper sentence to be imposed, after weighing the statutory factors. State v. McCulley, 305 Neb. 139, 939 N.W.2d 373 

(2020). The specified factors must be “‘accorded weight,’” but 

they are neither exclusive of other factors nor “‘controlling the 

discretion of the court.’” Id. at 147, 939 N.W.2d at 381. An 

appellate court’s review of an alleged abuse of the sentencing 

judge’s discretion in refusing to withhold imprisonment under 

§ 29-2260 must recognize the statutory guidelines set out in 

§ 29-2260 for the direction of the sentencing judge in imposing or withholding imprisonment, but the factors are not mathematically applied. State v. McCulley, supra.

Furthermore, § 29-2260 does not require the trial court to 

articulate on the record that it has considered each sentencing factor, and it does not require the court to make specific 

findings as to the factors and the weight given them. State v. 

McCulley, supra. Thus, the absence of specific findings concerning the factors set forth in § 29-2260 cannot in itself be 

error or grounds for reversal. State v. McCulley, supra.

In reviewing a sentence that fails to withhold imprisonment, 

the appropriateness of the 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. We review 

a sentence that is within the statutory limits for an abuse of 

discretion by examining whether it is supported by the evidence. Id.
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Here, we determine that the district court did not abuse its 

discretion in failing to withhold a sentence of imprisonment 

on Morton’s convictions. At the sentencing hearing, the court 

stated that it had considered Morton’s young age at the time of 

the offense and his lack of a prior criminal history. However, 

the district court noted that Morton’s actions had been a “serious offense” that resulted in the death of another person. The 

court further found that imprisonment of Morton was necessary 

for the protection of the public, that there was a substantial 

risk Morton would engage in additional criminal conduct during any period of probation, and that a lesser sentence would 

depreciate the seriousness of Morton’s crime and promote disrespect for the law.

Considering this, we cannot say that the ruling of the district 

court denying Morton probation was untenable or deprived him 

of a substantial right or just result. The district court did not 

abuse its discretion, and this argument fails.

(b) Excessive Sentence

Morton next argues, in the alternative, that the district court 

imposed excessive sentences. He claims that while the offenses 

he was convicted of were serious, “there is no need for him 

to be removed from society in order to protect the public” 

because Morton “does not pose a significant risk threat to 

society.” Brief for appellant at 15. Because the sentences were 

within the statutory limits, the question is whether the district 

court abused its discretion.

Prior to pronouncing its sentence, the district court stated it 

had reviewed and considered the evaluations and reports from 

the probation office, as well as several letters from counsel 

and third parties. The court also stated that it had taken into 

consideration Morton’s young age at the time of the offense, 

his lack of a criminal history, and also the “extreme benefit” 

Morton received as a result of the plea agreement, as well as 

the fact that Morton caused the victim’s death. In making its 

decision, the court considered the nature and circumstances 
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of Morton’s offenses, as well as Morton’s history, character, 

and condition.

However, the fact that the district court considered the 

appropriate factors when deciding Morton’s sentences does not, 

in and of itself, force this court to draw the conclusion that the 

district court did not abuse its discretion in sentencing Morton. 

In determining whether the district court abused its discretion 

in this case, we first analyze the case in light of the relevant 

factors set forth in State v. Smith, 302 Neb. 154, 922 N.W.2d 

444 (2019).

Prior to sentencing, the probation office conducted an 

evaluation of Morton utilizing the “Level of Service/Case 

Management Inventory” (LS/CMI). The LS/CMI is a validated 

“‘risk/need’” assessment tool that is designed specifically to 

determine the degree of risk that the offender presents to the 

community and risk to recidivate. The results of Morton’s 

LS/CMI are contained within the PSR, which was completed 

by the probation office.

The PSR reflects that Morton was 16 years old at the time 

the offenses were committed. Prior to his arrest, Morton was a 

sophomore in high school, and he received mostly A’s and B’s 

in his classes. The personal history portion of the PSR showed 

that Morton’s father was murdered while Morton was a young 

child and that he grew up without a strong male influence in 

his life. Both Morton and his mother reported having a close 

relationship. Morton’s mother reported that while Morton was 

in middle school, he was suspended for a few days due to 

fighting. The PSR notes that “[w]hile the present case is serious, except for [the] fight in middle school, it does not appear 

[Morton] has an established pattern of violence over a period 

of time.” The PSR further states that Morton may have had 

gang affiliations and ongoing problems with anger management, as well as a deficit in problem solving and prosocial 

skills. The LS/CMI ultimately found that Morton posed a 

“Medium Low risk to reoffend” across all of the categories evaluated.
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It is uncontested that Morton’s offenses involved violence 

and resulted in the loss of the victim’s life. The PSR and the 

factual basis showed that Morton traveled with other individuals to the residence for the purpose of fighting with the 

occupants of the house. When the altercation intensified and 

an individual began using a vehicle to run over Morton and his 

companions, Morton withdrew a gun from his pocket and fired 

in the direction of the house, where several people were standing on the front porch. The victim was shot through the neck 

and died shortly thereafter. In a statement to police, Morton 

reported that he was “not aiming at anyone in particular” and 

was merely “pointing the gun in the direction of the house” 

because that was “where the other group was standing.”

In addition to our analysis of the customarily considered factors, we also find instructive the sentences ordered in different 

Nebraska cases which involved similarly situated defendants 

convicted of like crimes.

In State v. Neuberger, No. A-13-411, 2014 WL 46420 (Neb. 

App. Jan. 7, 2014) (selected for posting to court website), a 

17-year-old male pled no contest to manslaughter and possession of a firearm during the commission of a felony (the 

same charges found in Morton’s case). The district court sentenced the defendant to 20 to 20 years’ imprisonment on the 

manslaughter conviction and a consecutive 10 to 15 years’ 

imprisonment on the possession of the firearm conviction. 

The evidence in Neuberger showed that the charges stemmed 

from an incident involving a confrontation between the defendant and other individuals, where the defendant obtained a 

sawed-off shotgun and shot one of the others involved in the 

altercation.

In State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 

(2006), the defendant was convicted of attempted second 

degree murder, second degree murder, and two counts of use of 

a weapon to commit a felony. The defendant was a 23-year-old 

male with no significant criminal history who drew a weapon 

and shot the victims when an argument at a party escalated. 
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The district court sentenced the defendant to 25 to 35 years’ 

imprisonment on the attempted second degree murder conviction, life to life imprisonment on the second degree murder 

conviction, and 10 to 20 years’ imprisonment on each of the 

two weapon convictions; all four sentences were ordered to 

be served consecutively. On appeal, the Supreme Court found 

that the sentence on the second degree murder conviction was 

excessive, modified it to 50 years’ to life imprisonment, and 

ordered that the sentence for the attempted murder conviction 

and the second degree murder conviction should be served concurrently, while the sentences for the weapon convictions were 

to be served consecutively to the respective underlying felony 

and to each other.

In State v. Aragon, No. A-17-450, 2018 WL 1597372 (Neb. 

App. Jan. 31, 2018) (selected for posting to court website), a 

16-year-old male pled guilty to two counts of robbery and one 

count of attempted use of a firearm to commit a felony. The 

charges in this case arose when the defendant broke into a residence, beat the occupants with the butt of a shotgun, and stole 

approximately $600 worth of items. At the sentencing hearing, 

the district court stated that the violence present in the crime 

was “‘really shocking,’” id. at *4, and noted that the defendant 

had significant behavioral problems and gang affiliations and 

used both marijuana and cocaine. The district court sentenced 

him to concurrent terms of imprisonment of 14 to 20 years for 

each robbery conviction and a concurrent term of 3 to 5 years’ 

imprisonment for the weapon conviction.

Finally, in State v. Bradley, No. A-17-644, 2018 WL 3868987 

(Neb. App. Aug. 14, 2018) (selected for posting to court website), a 20-year-old male was convicted of possession of a 

deadly weapon by a prohibited person, terroristic threats, use 

of a deadly weapon to commit a felony, and tampering with 

a witness. The charges arose from an incident when the defendant was attempting to strangle his girlfriend in an alley and 

then shot at witnesses who attempted to intervene. The record 

showed that he had a significant criminal history and was at 
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a “‘high risk’” to reoffend. Id. at *14. In Bradley, the district 

court sentenced the defendant to consecutive sentences totaling 

18 to 27 years’ imprisonment across all four convictions.

First, we determine that the district court did not abuse its 

discretion in sentencing Morton to 15 to 20 years’ imprisonment on count I, manslaughter. The record in this case shows 

that the district court considered the appropriate sentencing 

factors, outlined above, and that Morton’s crime was one of 

violence that resulted in the death of another. Therefore, we 

affirm Morton’s conviction and sentence on count I.

We reach the opposite conclusion with respect to Morton’s 

sentence for count II. On count II of the State’s amended information, Morton was convicted of possession of a firearm during the commission of a felony, in violation of § 28-1205(2)(c). 

The district court ordered the sentence on count II to be 30 to 

40 years’ imprisonment, and the sentence was required by statute to run consecutively to that on count I. See § 28-1205(3).

We recognize that no two criminal cases are alike and that 

unique factors may prove determinative when a district court 

considers a sentence. We also recognize that possession of a 

firearm during the commission of a felony is a Class II felony 

carrying with it a potential sentence of 1 to 50 years’ imprisonment and that Morton’s sentence was within those statutory limits. However, in comparing the facts and outcome of 

Morton’s case to other Nebraska cases (see above), we find 

that Morton’s sentence on count II appears to be an extreme 

outlier that leads us to closely scrutinize the propriety of the 

sentence. Further, we find it incongruous that the sentence 

for Morton’s weapons conviction should be double that of his 

sentence for manslaughter, a crime of violence that resulted in 

the death of another. We believe the disproportionate nature of 

the two sentences is logically inconsistent, and we note that the 

district court did not take the opportunity to explain this disparity on the record.

We also consider that there was no evidence in either the 

factual basis or the PSR showing that Morton intentionally 

shot the victim. Rather, the record demonstrates that Morton’s 
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actions took place amid a chaotic, melee-like atmosphere. 

There is no suggestion that Morton aimed his gun at the house 

with the intent to harm any specific individual. As we discussed 

above, the State’s factual basis best supports the conclusion 

that the predicate felony for Morton’s weapon conviction was 

unlawful discharge of a firearm, not manslaughter or assault. 

We do not minimize Morton’s conduct; nor do we overlook 

the fact that the victim was killed as a result of that conduct. 

However, in light of our above analysis, especially considering Morton’s young age and background, as well as the fact 

that similarly situated defendants (some at a much higher risk 

to reoffend) have received significantly lower sentences on 

similar charges, we believe that the reasons and rulings of the 

district court are untenable and that Morton was denied a just 

result in sentencing.

Taking into account all of the relevant circumstances, including, but not limited to, Morton’s young age, his lack of a significant criminal history, the nature of the offense, and sentences issued in comparable cases, we conclude that the district 

court abused its discretion in sentencing Morton to 30 to 40 

years’ imprisonment on count II, possession of a firearm during 

the commission of a felony, and that the sentence was excessive. As noted, we find no abuse of discretion in sentencing on 

the manslaughter conviction.

Neb. Rev. Stat § 29-2308(1) (Reissue 2016) provides in pertinent part that in criminal appeals,

the appellate court may reduce the sentence rendered by 

the district court against the accused when in its opinion the sentence is excessive, and it shall be the duty 

of the appellate court to render such sentence against 

the accused as in its opinion may be warranted by the 

evidence.

See, also, State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 

263 (2006); State v. Etchison, 188 Neb. 134, 195 N.W.2d 

498 (1972); State v. Oldenburg, 10 Neb. App. 104, 628 

N.W.2d 278 (2001). Based upon our statutory authority, we 

reduce Morton’s sentence on count II, possession of a firearm 
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during the commission of a felony, to a term of imprisonment 

of not less than 10 years nor more than 15 years. This sentence 

will run consecutively to the sentence imposed by the district 

court on count I, as required by § 28-1205(3).

3. Ineffective Assistance 

of Counsel

[15,16] Morton next assigns that his trial counsel provided 

ineffective assistance. Generally, a voluntary guilty plea or plea 

of no contest waives all defenses to a criminal charge. State v. 

Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). Thus, when a 

defendant pleads guilty or no contest, he or she is limited to 

challenging whether the plea was understandingly and voluntarily made and whether it was the result of ineffective assistance of counsel. Id.

[17] Morton has different counsel on direct appeal than he 

did at trial. When a defendant’s trial counsel is different from 

his or her counsel on direct appeal, the defendant must raise on 

direct appeal any issue of trial counsel’s ineffective performance which is known to the defendant or is apparent from the 

record. Id.

[18-22] Generally, 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. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 

(2019). 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. Id. In a plea context, deficiency depends on whether counsel’s advice was within the range of competence demanded 

of attorneys in criminal cases. State v. Blaha, supra. When 

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

prejudice requirement for an ineffective assistance of counsel 

claim is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, the defendant would 
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have insisted on going to trial rather than pleading guilty. Id.

The two prongs of the ineffective assistance of counsel test 

under Strickland may be addressed in either order. State v. 

Blaha, supra.

[23,24] The fact that an ineffective assistance of counsel 

claim is raised on direct appeal does not necessarily mean that 

it can be resolved. The determining factor is whether the record 

is sufficient to adequately review the question. State v. Theisen, 

306 Neb. 591, 946 N.W.2d 677 (2020). 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, or that trial counsel’s actions could not be justified as a 

part of any plausible trial strategy. Id.

(a) Failure to Challenge 

State’s Factual Basis

Morton first assigns that his trial counsel was ineffective 

when he failed to object to the State’s factual basis as it pertained to the predicate offense for the weapon charge. Morton 

reiterates his argument that the State’s factual basis was insufficient to sustain his conviction on the possession of a firearm 

charge, that his counsel was deficient for failing to object to 

the factual basis, and that he was therefore prejudiced when he 

was sentenced to a term of 30 to 40 years’ imprisonment on 

that conviction.

[25] We determine that the record conclusively shows that 

Morton’s trial counsel was not deficient. As we discuss above, 

the State’s factual basis was sufficient to sustain Morton’s 

conviction for possession of a firearm during the commission 

of a felony on the theory that unlawful discharge of a firearm 

was the predicate offense for the weapon charge. Therefore, 

even if Morton’s counsel had objected on this basis at the plea 

hearing, the objection would have been overruled, or the district court may have given the State an opportunity to clarify 

its factual basis prior to asking Morton to enter his pleas. As 

a matter of law, counsel cannot be ineffective for failing to 

raise a meritless argument. State v. Collins, 299 Neb. 160, 907 
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N.W.2d 721 (2018). For the same reasons, we determine that 

the record shows that Morton would be unable to prove prejudice on this claim. This argument fails.

(b) Failure to Request Expert 

Witness Evaluation

Finally, Morton assigns that he received ineffective assistance of counsel when his trial counsel did not obtain an expert 

“to opine as to the level of Morton’s culpability when taking 

into account his age and maturity.” Brief for appellant at 19. 

He claims that if such an expert had been retained by his counsel, he would have received a more lenient sentence. Largely, 

we find that this claim is speculative and is not supported by 

either the record or Morton’s own arguments.

On appeal, Morton has not pled that his counsel’s performance fell below that of a lawyer with ordinary training and 

skill in criminal law. The record reflects, and Morton admits, 

that his trial counsel did obtain two separate assessments 

from a licensed psychologist prior to the sentencing hearing. 

The two evaluations were included within the PSR and were 

considered by the district court in determining its sentence. 

Information within the PSR (including those assessments) 

referenced Morton’s young age at the time of the offense, his 

troubled childhood, and his history of mental health issues. On 

appeal, Morton does not allege that his counsel’s conduct fell 

below appropriate standards expected of criminal attorneys in 

this state; rather, he speculates that a different expert’s opinion might have yielded a more desirable outcome at sentencing. We do not believe that the record before us or Morton’s 

arguments on appeal sufficiently establish deficient performance under Strickland v. Washington, 466 U.S. 668, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984). This claim of ineffective 

assistance of counsel fails.

VI. CONCLUSION

We conclude that based on the predicate offense of unlawful discharge of a firearm, the factual basis was sufficient 
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to support the district court’s judgment that Morton was guilty 

of possession of a firearm during the commission of a felony. 

We affirm Morton’s convictions on both counts, and we also 

affirm the sentence on count I. We conclude that the sentence 

imposed by the district court of 30 to 40 years’ imprisonment 

on count II, possession of a firearm during the commission of 

a felony, is excessive, and we modify that sentence to a term of 

imprisonment of not less than 10 years nor more than 15 years, 

with the sentence on count II to be served consecutively to the 

sentence on count I. We further conclude that Morton’s claims 

of ineffective assistance of counsel fail.

Affirmed as modified.