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STATE v. BLAHA

Cite as 303 Neb. 415

State of Nebraska, appellee, v.

Ryan W. Blaha, appell

___ N.W.2d ___

Filed June 21, 2019. No. S-18-912.

1. 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.

2. Judgments: Words and Phrases: Appeal and Error. An abuse of discretion occurs when a trial court’s decision is based upon reasons that 

are untenable or unreasonable or if its action is clearly against justice or 

conscience, reason, and evidence.

3. 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. 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.

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 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.

5. 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.

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

Nebraska Supreme Court Online Library

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

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demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

7. Trial: Judges: Sentences. The law invests a trial judge with a wide 

discretion as to the sources and types of information used to assist 

him or her in determining the sentence to be imposed within statutory limits.

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

waives all defenses to a criminal charge.

9. 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.

10. 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.

11. Effectiveness of Counsel: Proof. 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.

12. ____: ____. 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.

13. 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.

14. 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.

15. 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.

16. 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. General allegations that trial counsel 
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performed deficiently or that trial counsel was ineffective are insufficient to raise an ineffective assistance claim on direct appeal.

17. Presentence Reports. A defendant has a qualified right to review his or 

her presentence report, and the defendant may, with his or her attorney, 

examine the presentence report subject to the court’s supervision.

18. Presentence Reports: Waiver: Notice. A defendant waives his or her 

qualified right to review the presentence investigation report by not notifying the trial court that he or she has not personally reviewed the report 

and that he or she wishes to do so.

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirme

Thomas C. Riley, Douglas County Public Defender, and 

Katie L. Jadlowski for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Cassel, J.

I. INTRODUCTION

Through new counsel, Ryan W. Blaha appeals his criminal 

convictions and sentences, attacking the sentences imposed 

and asserting ineffective assistance of trial counsel. Regarding 

his sentences, we (1) again reject the premise that sentences 

within statutory limits are never excessive, (2) dispel the 

notion that sentencing factors have not been adequately considered without specific discussion, and (3) reiterate that 

a sentencing court may consider a defendant’s conduct 

underlying dismissed charges. Although the record does not 

allow us to reach one of his four ineffectiveness claims, we 

find no merit to the others, which are, respectively, refuted 

by the record, not prejudicial, and insufficiently alleged. 

We affirm.
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II. BACKGROUND

In March 2017, the State charged Blaha with eight counts, 

including assault in the first degree and use of a deadly weapon 

to commit a felony. From that time until the plea hearing in 

July 2018, no pretrial motions were filed. At the hearing, the 

parties announced a plea agreement, in which Blaha would 

plead no contest to those two charges and in exchange the State 

would dismiss the remaining charges. After the district court 

informed Blaha of his constitutional rights and received his 

pleas of no contest, the State set forth a factual basis for the 

charges. The district court accepted Blaha’s pleas of no contest, 

found him guilty beyond a reasonable doubt, and dismissed the 

remaining charges.

When the court asked trial counsel at the sentencing hearing whether he had any additions or corrections to the presentence investigation report, he directed the court to the documents which already had been shared with the court. Before 

the sentences were pronounced, trial counsel and the State 

made arguments. Blaha exercised his right to allocution and 

expressed remorse and responsibility for his actions. When 

pronouncing its sentences, the district court discussed mainly 

the nature of the offense and the amount of violence involved, 

but also mentioned Blaha’s age and mental illness as mitigating factors. It sentenced Blaha to consecutive sentences of 30 

to 40 years’ imprisonment for assault in the first degree and 

15 to 30 years’ imprisonment for use of a deadly weapon to 

commit a felony.

Blaha filed a timely appeal, which we moved to our docket.1

III. ASSIGNMENTS OF ERROR

Blaha assigns, restated and reordered, that (1) the district 

court abused its discretion by imposing excessive sentences 

and (2) he received ineffective assistance of trial counsel 

where counsel (a) failed to advise Blaha of the statutory 

1 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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sentencing ranges, (b) failed to correct the State’s factual basis 

for the pleas, (c) failed to engage in pretrial litigation, and 

(d) failed to allow Blaha to review the presentence investigation report.

IV. STANDARD OF REVIEW

[1,2] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court.2 An abuse of discretion occurs when a trial court’s 

decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence.3

[3] Whether a claim of ineffective assistance of trial counsel 

may be determined on direct appeal is a question of law. 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.4

V. ANALYSIS

1. Excessive Sen

Although Blaha does not dispute that the sentences were 

within the statutory limits, he contends that the district court 

abused its discretion by imposing excessive sentences. Before 

turning to his two arguments, we recall general principles 

of law.

[4,5] The law governing review of criminal sentences is 

well settled. 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 

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

3 State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019).

4 Mrza, supra note 2.
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discretion in considering and applying the relevant factors 

as well as any applicable legal principles in determining the 

sentence to be imposed.5 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.6

[6] We have repeatedly stated that 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.7 With these principles in mind, we turn to 

Blaha’s specific arguments.

First, Blaha contends that Neb. Rev. Stat. § 29-2308 (Reissue 

2016) has become meaningless. He asserts that effectively, 

most appellate courts “hold that almost any sentence that is 

within the statutory limits is not an abuse of discretion.”8

Many years ago in State v. Ruisi,

9

 a divided panel of the 

Nebraska Court of Appeals articulated a similar proposition. 

But in State v. Decker,

10 we rejected that notion. We quoted the 

Court of Appeals’ dissent, which stated that this court “‘has 

not foreclosed any sentence within statutory limits from being 

excessive, but it strongly suggests it is a rare exception.’”11

5 State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).

6 Id.

7 See id.

8 Brief for appellant at 20 (emphasis supplied).

9 State v. Ruisi, 9 Neb. App. 435, 616 N.W.2d 19 (2000), disapproved in 

part, State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).

10 Decker, supra note 9.

11 Id. at 398, 622 N.W.2d at 917 (quoting Ruisi, supra note 9 (Buckley, 

District Judge, Retired, dissenting)).
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Eighteen years later, this remains true. Blaha’s first argument 

lacks merit.

Second, Blaha asserts that “[t]he district court’s failure 

to adequately consider and apply the sentencing factors,”12

including his mentality, motivation for the offense, criminal 

history, education and work history, and age, “resulted in an 

unjust, excessive sentence and the court abused its discretion 

in imposing such a sentence.”13 He relies on his mental deterioration in the preceding days to the events, his mental and 

behavioral illnesses, his criminal history and profile, his steady 

employment, and his immaturity.

At the sentencing hearing, the court stated that it did not 

believe the maximum punishment of 100 years’ imprisonment 

was appropriate, “considering the youth of [Blaha] and his 

mental illness problems that he had at that time.” It discussed 

the significant tragedy to the victim’s family, how the victim 

did not heal, and how the victim’s life changed forever. The 

court discussed the fact that Blaha shot at other people in the 

parking lot where the incident occurred and how Blaha did not 

express remorse to them when issuing its sentences.

We reject the notion that a court does not adequately consider sentencing factors when it does not discuss each one of 

them during the sentencing hearing or in its sentencing order. 

The record includes the presentence investigation report and 

shows that the court reviewed the entire report, which contains 

the information necessary to weigh the sentencing factors. In 

essence, Blaha quarrels with the weight accorded to these factors by the sentencing court. We do not review sentences de 

novo, but only for an abuse of discretion.

[7] At oral argument, Blaha offered additional reasoning: 

that the court improperly considered the facts surrounding the 

dismissed charges. In State v. Janis,

14 we rejected a similar 

12 Brief for appellant at 13 (emphasis supplied).

13 Id.

14 State v. Janis, 207 Neb. 491, 299 N.W.2d 447 (1980).
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argument. There, we stated that the law invests a trial judge 

with a wide discretion as to the sources and types of information used to assist him or her in determining the sentence 

to be imposed within statutory limits.15 Because the court 

considered the facts underlying the dismissed charges, it 

did not consider improper sentencing factors. Our review of 

the record discloses that the court considered relevant factors and did not consider improper factors. We conclude that 

the district court did not abuse its discretion when imposing 

the sentences.

2. Ineffective Assi

of Counse

We begin by reciting the general principles of law that will 

guide our analysis, then turn to Blaha’s specific claims of ineffective assistance of counsel.

[8,9] Generally, a voluntary guilty plea or plea of no contest waives all defenses to a criminal charge.16 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.17 Here, Blaha asserts only the latter.

[10] Blaha has different counsel on direct appeal. 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

[11-15] Generally, to prevail on a claim of ineffective 

assistance of counsel under Strickland v. Washington,

19 the 

15 Id.

16 State v. Payne, 298 Neb. 373, 904 N.W.2d 275 (2017).

17 Id.

18 See Mrza, supra note 2.

19 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).
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defendant must show that his or her counsel’s performance 

was deficient and that this deficient performance actually prejudiced the defendant’s defense.20 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.21 In a plea context, deficiency 

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

competence demanded of attorneys in criminal cases.22 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.23 The 

two prongs of the ineffective assistance of counsel test under 

Strickland may be addressed in either order.24

Thus, in reviewing Blaha’s claims of ineffective assistance 

of counsel on direct appeal, we decide 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.25

(a) Statutory Sentencing Ranges

Blaha claims that trial counsel was ineffective in failing to 

advise him of the statutory sentencing ranges and that counsel 

guaranteed a sentence of 12 to 20 years’ imprisonment. He 

asserts that he was prejudiced by trial counsel’s deficient performance, because he relied on the sentencing representations 

20 Mrza, supra note 2.

21 Id.

22 State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018), disapproved on 

other grounds, State v. Allen, 301 Neb. 560, 919 N.W.2d 500.

23 See State v. Manjikian, ante p. 100, 927 N.W.2d 48 (2019).

24 See State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).

25 See State v. Munoz, ante p. 69, 927 N.W.2d 25 (2019).
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made to him when deciding whether to accept the State’s plea 

offer or go to trial.

But the record shows otherwise. At the plea hearing, the 

district court informed Blaha that the maximum possible sentence for each offense was 50 years’ imprisonment. The court 

informed Blaha that the sentence for use of a deadly weapon 

must run consecutively to the sentence for assault. Blaha 

denied that “anyone made any promises to [him] in exchange 

for [his] pleas of no contest other than the plea agreement [that 

was] already set forth.” Blaha confirmed that he understood 

that the court alone would decide his sentences. From these 

statements, the record affirmatively refutes Blaha’s claim that 

he was not advised of the statutory sentencing ranges and was 

promised 12 to 20 years’ imprisonment. We conclude that this 

argument is without merit.

(b) Factual Basis

For many years, we have stated that the record necessary 

to support a plea of guilty or no contest must establish that 

there is a factual basis for the plea.26 “The purpose of requiring arraigning judges to inquire into . . . the factual basis lies 

in ensuring that the defendant has, according to the acts the 

defendant admits, committed an offense as charged or a lesser 

included offense.”27

Before discussing Blaha’s claim regarding his counsel’s 

alleged deficiencies in failing to correct a misstatement and 

an inaccurate statement, we quote extensively from the State’s 

factual basis recited at the plea hearing, emphasizing the portions Blaha challenges.

[On] January 11th, 2017, . . . officers with the Omaha 

Police Department were dispatched to the parking lot of 

[a furniture store] to investigate a shooting.

26 See State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).

27 Alan G. Gless, Nebraska Plea-Based Convictions Practice: A Primer and 

Commentary, 79 Neb. L. Rev. 293, 323 (2000).
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Upon arrival officers located the victim, . . . who was 

suffering from multiple gunshot wounds to his back. 

The victim . . . indicated that he had been shot by an 

unknown white male suspect who was armed with a 

shotgun, had demanded his wallet, and fled in a green 

Ford Explorer.

. . . .

On [the following day], detectives with the homicide 

unit had received a tip that an individual by the name of 

James White (sic) had spoken to an individual who was 

identified as the defendant, . . . Blaha, and . . . Knight 

indicated that . . . Blaha had admitted to shooting the 

victim . . . .

Officers with the Omaha Police Department were 

granted permission to search [Blaha’s] residence. Inside 

of that residence officers located a cell phone belonging 

to [Blaha]. A search of that cell phone revealed a video 

which showed [Blaha] burning the wallet that was taken 

from [the victim], and all of those events occurred here in 

Douglas County, Nebraska.

Blaha argues that “[t]he State mistakenly interchanged the 

name of two individuals—White and Knight—and the mistake 

went uncorrected.”28 Further, he challenges the accuracy of the 

statement that a video of a burning wallet was found on his 

cell phone.

The record conclusively establishes that Blaha suffered no 

prejudice from the prosecutor’s misstatement of the informant’s name. He challenged the informant’s name, which 

was not an element of either offense. At oral argument, the 

State correctly pointed out that the informant could have been 

identified as “informant number 1” and it would have made 

no difference. Moreover, the record makes it clear that the 

prosecutor simply misspoke the name in the first instance and 

corrected it in the same sentence. Blaha did not challenge 

28 Brief for appellant at 11.
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the statement that he admitted to the shooting, which was the 

essential substance of the factual basis. Blaha was not prejudiced by this mistake.

Likewise, the record conclusively establishes that no prejudice flowed from the other alleged inaccuracy of the factual 

basis. The statement that police found the video was not necessary to establish the factual basis. Blaha did not challenge 

how the statement was inaccurate or how it was necessary to 

establish an element of either crime. The statement was mere 

surplusage. With or without it, the factual basis was sufficient. 

Therefore, Blaha was not prejudiced by counsel’s allegedly 

deficient conduct.

Accordingly, this claim also lacks merit.

(c) Pretrial Litigation

[16] Blaha contends that trial counsel was ineffective for 

failing to engage in any pretrial litigation in the intervening 16 

months between filing the information and the plea hearing. 

Without more, this allegation would not be sufficiently specific 

to allege deficient performance. 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. General allegations that 

trial counsel performed deficiently or that trial counsel was 

ineffective are insufficient to raise an ineffective assistance 

claim on direct appeal.29

In State v. Mrza,

30 we clarified that the allegations of counsel’s deficient performance must be specifically alleged in the 

assignments of error section of the appellant’s brief. Because 

Blaha’s brief was filed before our opinion in Mrza was released, 

we examine his argument for the necessary specificity. Doing 

so reveals two aspects of his broad allegation.

29 See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

30 Mrza, supra note 2.
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In Blaha’s brief, he first argues that trial counsel did not 

attempt to suppress any evidence found during the search of 

his home or cell phone. But this allegation is also not sufficiently specific. He does not assert any facts to support the 

existence of a basis upon which counsel could have filed a 

motion to suppress.

Second, he argues that trial counsel did not attempt to depose 

two witnesses, whom he identified by name, to “clarif[y] their 

initial statements to police” that they had been shot at by 

Blaha, which, he claims, could have put trial counsel in a better position during plea negotiations.31 But he does not allege 

what these witnesses would have said that would have differed 

from their original statements. Once again, it lacks the necessary specificity.

After utilizing Blaha’s arguments to expand his assignment, 

neither matter specifically states how counsel performed deficiently. This assignment lacks merit.

(d) Presentence Investigation Report

Finally, Blaha claims that trial counsel was ineffective in not 

allowing him to review the presentence investigation report. 

Specifically, Blaha quarrels with a statement in the report 

regarding self-gratification and another statement about inflicting maximum harm. Blaha argues that because the record 

shows that trial counsel received and reviewed the presentence 

investigation report, counsel should have shared and reviewed 

the contents of the report with Blaha. He argues that as a result, 

he was unable to communicate to trial counsel the misrepresentations and erroneous characterizations that the probation 

officer made in the report.

[17,18] A defendant has a qualified right to review his or 

her presentence report, and the defendant may, with his or her 

attorney, examine the presentence report subject to the court’s 

31 Brief for appellant at 11.
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supervision.32 A defendant waives his or her qualified right to 

review the presentence investigation report by not notifying 

the trial court that he or she has not personally reviewed the 

report and that he or she wishes to do so.33

In State v. Moyer,

34 the defendant asserted that trial counsel 

was ineffective when counsel failed to disclose to the defendant the contents of the presentence investigation report. We 

noted that the record contained an affirmation from the sentencing hearing that the defendant had the opportunity to discuss with counsel the contents of the presentence investigation 

report. Although the defendant’s failure to object at sentencing 

effectively waived his right to challenge it on appeal, the question before us was whether the defendant’s trial counsel was 

deficient for failing to disclose the contents of the presentence 

investigation report to the defendant prior to sentencing. Our 

decision in Moyer relied on State v. McDermott,

35 where the 

district court did conduct an evidentiary hearing and had the 

benefit of the testimony from the probation officer and trial 

counsel that they both reviewed the contents of the presentence 

investigation report with the defendant. In Moyer, because we 

did not have the benefit of a record containing evidence of 

any conversations between the defendant and trial counsel, we 

held that the record was insufficient to address the claim on 

direct appeal.

Here, the record is void of any statement by Blaha or trial 

counsel that Blaha either reviewed the presentence investigation 

report or wished to review the report. Nor is there any statement by Blaha that he had the opportunity to review the presentence investigation report. Similar to Moyer, we do not have 

the benefit of a record that contains any conversation about the 

32 State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).

33 State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

34 Moyer, supra note 32.

35 State v. McDermott, 267 Neb. 761, 677 N.W.2d 156 (2004).
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contents of the presentence investigation report between Blaha 

and trial counsel or the probation officer. Therefore, we conclude that the record is insufficient to address the claim on 

direct review.

VI. CONCLUSION

We conclude that there is no merit to the assignments of 

error we can reach on direct appeal. Accordingly, we affirm 

Blaha’s convictions and sentences.

Affirmed