IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

STATE V. WIZINSKY

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

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

STATE OF NEBRASKA, APPELLEE,

V.

JOHN M. WIZINSKY, APPELLANT.

Filed December 31, 2013. No. A-13-362.

Appeal from the District Court for Hall County: WILLIAM T. WRIGHT, Judge. Affirmed.

Michael P. Kneale, of Bradley, Elsbernd, Andersen, Kneale & Mues Jankovitz, P.C., for 

appellant.

Jon Bruning, Attorney General, and George R. Love for appellee.

MOORE, PIRTLE, and BISHOP, Judges.

PIRTLE, Judge.

I. INTRODUCTION

John M. Wizinsky pled no contest to one count of felony theft by unlawful taking and 

one count of felony criminal mischief. On appeal, he contends that his counsel was ineffective in 

several respects, that the trial court erred in accepting his plea, and that the trial court erred in 

overruling his motion for discharge. Based on the reasons that follow, we affirm.

II. BACKGROUND

Wizinsky was originally charged with theft by unlawful taking, criminal mischief, and 

possession of burglar tools. Pursuant to a plea agreement, Wizinsky entered no contest pleas to 

theft by unlawful taking and criminal mischief. In exchange for the plea, the State agreed to 

dismiss the charge of possession of burglar tools and a burglary charge in a separate and 

unrelated case. The State also agreed to recommend a sentence of 4 to 6 years’ imprisonment to 

run concurrent with the sentence Wizinsky was then serving, to waive the presentence 

investigation, and to sentence Wizinsky that same day the plea was entered. There was also an 

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agreement to restitution in the amount of $1,360, to be joint and several with any other 

codefendants convicted in the matter.

The State set forth a factual basis for the plea as follows: Ed Stoltenberg of Cairo, Hall 

County, Nebraska, has irrigation pivots with copper wire located on his property. He has an 

alarm system set up to notify him on his telephone if any of the wires are cut. On June 15, 2012, 

at approximately 4 a.m., Stoltenberg received an alarm. He drove to the place where the pivots 

are located and saw a vehicle sitting on the side of the road; the headlights were off but the dome 

light was on. Suspecting the occupants were stealing the copper wire, Stoltenberg called the 911 

emergency dispatch service.

The dome light in the vehicle was turned off, and the vehicle started moving down the 

road. While Stoltenberg was still on the telephone calling 911, he followed the vehicle described 

as a black pickup truck. Deputy sheriffs pulled over the vehicle, and Wizinsky was identified as 

the passenger. The sheriffs noticed there was approximately 200 to 240 feet of cut copper wire in 

the back of the vehicle. The copper wire was identified by Stoltenberg as belonging to him by 

“painting ‘Ed’ with white-out on the copper wire.”

Stoltenberg and the sheriff inspected the pivot. The copper wire had been cut off the top 

of the pivot and the other half of the copper wire was missing. The damage to the pivot was over 

$1,500. Stoltenberg was able to salvage approximately $240, which left a loss to him of $1,360.

After listening to the factual basis, the court accepted Wizinsky’s pleas and found him 

guilty of the two charges. The court then sentenced him to 4 to 6 years’ imprisonment for theft 

by unlawful taking and 20 to 60 months’ imprisonment for criminal mischief. The sentences 

were ordered to be served concurrently to each other and concurrently to the sentence he was 

then serving. Wizinsky was also ordered to pay restitution in the amount of $1,360.

Two days after Wizinsky pled no contest and was sentenced, he filed a pro se motion for 

absolute discharge, asserting that his statutory speedy trial rights had been violated.

A hearing was held on the motion several days later. Wizinsky’s counsel informed the 

court that he had visited with Wizinsky a few days before he entered his plea and that Wizinsky 

told his counsel he had filed the motion for discharge. Wizinsky’s counsel told the court that he 

and Wizinsky discussed the matter, that Wizinsky understood their conversation, that Wizinsky 

entered his plea with the intention of concluding his cases, and that Wizinsky wanted the court to 

disregard his motion for absolute discharge.

The trial court overruled Wizinsky’s motion for absolute discharge, finding that he 

waived his right to a speedy trial when he pled no contest to the charges.

III. ASSIGNMENTS OF ERROR

Wizinsky assigns that his trial counsel was ineffective in (1) motioning for continuances 

despite Wizinsky’s clear request that hearings not be continued, (2) failing to properly 

investigate the State’s evidence to be used at trial, and (3) allowing him to plead when he was 

not competent to enter a plea. Wizinsky also assigns that the trial court erred in (1) accepting his 

no contest plea after inquiring about the bandage on his head and being informed of his recent 

surgery and (2) overruling his motion for discharge.

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IV. STANDARD OF REVIEW

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. Enriquez-Beltran, 

9 Neb. App. 459, 616 N.W.2d 14 (2000). Further, the only exceptions are for the defenses of 

insufficiency of the indictment, information, or complaint; ineffective assistance of counsel; and 

lack of jurisdiction. Id.

V. ANALYSIS

1. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

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 counsel’s 

performance was deficient and that this deficient performance actually prejudiced his or her 

defense. State v. Jones, 274 Neb. 271, 739 N.W.2d 193 (2007). The two prongs of this test, 

deficient performance and prejudice, may be addressed in either order. State v. Dunkin, 283 Neb. 

30, 807 N.W.2d 744 (2012).

A trial counsel’s performance was deficient if it did not equal that of a lawyer with

ordinary training and skill in criminal law. State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 

(2012). In determining whether a trial counsel’s performance was deficient, courts give his or her 

acts a strong presumption of reasonableness. Id.

Within the plea context, in order to satisfy the prejudice requirement to establish an 

ineffective assistance of counsel claim, the defendant must show that there is a reasonable 

probability that, but for counsel’s errors, he or she would not have pleaded guilty and would have 

insisted on going to trial. State v. Dunkin, supra.

Claims of ineffective assistance of counsel raised for the first time on direct appeal do not 

require dismissal ipso facto; the determining factor is whether the record is sufficient to 

adequately review the question. When the issue has not been raised or ruled on at the trial court 

level and the matter necessitates an evidentiary hearing, an appellate court will not address the 

matter on direct appeal. State v. Jones, supra.

(a) Trial Counsel’s Motion 

for Continuance

Wizinsky first assigns that he was denied effective assistance of counsel because his 

counsel moved for continuances of the plea hearing and jury trial against his express request to 

not continue any hearing for any reason.

The record shows that Wizinsky’s counsel asked for a continuance on three occasions. He 

first sought a continuance in September 2012 because Wizinsky had just been sentenced to a 

lengthy prison sentence in another case. Counsel told the court that he believed the change in 

Wizinsky’s circumstances created an opportunity for the State and the defense to reevaluate any 

potential plea offers. Wizinsky was present when his counsel asked for the continuance, and 

there is no indication on the record that he opposed the continuance.

Wizinsky’s counsel sought a second continuance in November 2012 because Wizinsky 

was in prison at the time. Counsel told the court that the State had made a plea agreement offer 

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the day before and that he had not been able to convey that offer to Wizinsky because he was in 

prison.

In January 2013, Wizinsky’s counsel made a third motion to continue. At the time, it 

appeared that there would be a trial on the charges at issue in the present case and on an 

unrelated burglary charge. Wizinsky’s counsel asked for a continuance in regard to the unrelated 

burglary charge because he wanted to avoid both cases being tried with the same jury panel. The 

unrelated burglary charge was the charge that was ultimately dismissed pursuant to the plea 

agreement.

When reviewing claims of ineffective assistance, we will not second-guess a trial 

counsel’s reasonable strategic decisions. State v. Edwards, supra. And we must assess the trial 

counsel’s performance from the counsel’s perspective when the counsel provided the assistance. 

Id.

The continuances sought by Wizinsky’s counsel were reasonable strategic decisions, 

which we do not second-guess. Wizinsky has failed to show that his trial counsel’s performance 

in seeking continuances was deficient. Therefore, he has failed to show that counsel was 

ineffective in this regard.

(b) Trial Counsel’s Failure to 

Investigate State’s Evidence

Wizinsky next assigns that his trial counsel was ineffective in failing to investigate the 

State’s evidence to be used at trial. Wizinsky asserts that his trial counsel was aware that the 

copper wire at issue had been returned to Stoltenberg and that the chain of control had been 

broken. Wizinsky further asserts that he was set up by Stoltenberg, that Stoltenberg had made 

false allegations of theft against other individuals, and that his trial counsel failed to investigate 

this issue. Wizinsky contends that 5 weeks after the theft, he gave trial counsel photographs of 

the roads and ditches near Stoltenberg’s home and business. The photographs showed scrap 

metal, including unused copper wire, in the ditches which Wizinsky surmised were left by 

Stoltenberg to entice individuals to pick up the wire, resulting in Stoltenberg’s contacting law 

enforcement and alleging theft. Wizinsky also claims that the value of the stolen property was 

less than the value necessary to prove theft by unlawful taking as a Class III felony, which is the 

charge Wizinsky pled to.

None of the State’s evidence or any of the discussions between counsel and Wizinsky 

regarding the evidence or their theory of defense is on the record before us. Therefore, the record 

is insufficient to adequately review this assignment of error on direct appeal.

(c) Competency to Plead

Wizinsky next assigns that his trial counsel was ineffective for allowing him to plead 

when he was not competent to enter a plea. Wizinsky claims that at the time of his no contest 

plea, he was recovering from surgery and was under the influence of pain medication. He 

contends that because of the medication, he did not fully comprehend what he was doing and his 

plea was not knowingly, intentionally, and voluntarily made.

A person is competent to plead or stand trial if he or she has the capacity to understand 

the nature and object of the proceedings against him or her, to comprehend his or her own 

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condition in reference to such proceedings, and to make a rational defense. State v. Dunkin, 283 

Neb. 30, 807 N.W.2d 744 (2012). The test of mental capacity to plead is the same as that 

required to stand trial. Id.

The record demonstrates that Wizinsky had the capacity to understand the proceedings 

and assist in his defense. Before accepting Wizinsky’s no contest plea, the following colloquy 

took place between the court and Wizinsky:

THE COURT: . . . Wizinsky, are you presently under the influence of any 

alcohol, drug or chemical of any kind that might affect your ability to understand or 

participate in these proceedings?

[Wizinsky]: No, sir.

THE COURT: Are you presently suffering from any mental or emotional illness 

or condition that might affect your ability to understand or to participate in these 

proceedings?

[Wizinsky]: Yes.

THE COURT: All right. You have to listen to me one more time. Are you 

presently suffering from any mental or emotional illness or condition that might affect 

your ability to understand or to participate in these proceedings?

[Wizinsky]: No.

THE COURT: The Court notes that you are wearing a bandage on your head.

[Wizinsky]: I had an operation.

THE COURT: All right. And you’re completely -- at least you are recovered 

sufficiently from that operation to make decisions for yourself today, is that correct?

[Wizinsky]: Yes, sir.

THE COURT: Do you know of any reason why you could not freely, voluntarily, 

knowingly and intelligently make decisions for yourself today?

[Wizinsky]: No.

THE COURT: Do you know of any reason why you could not freely, voluntarily, 

knowingly and intelligently plead guilty or no contest to Counts I and II of the 

information in this case?

[Wizinsky]: No.

The record reflects that Wizinsky was competent to enter his plea and that therefore, his 

counsel was not ineffective for allowing him to plead.

2. COURT’S ACCEPTANCE OF PLEA

In a related argument, Wizinsky assigns that the trial court erred when it accepted his no 

contest plea after inquiring about the bandage on Wizinsky’s head and being informed of his 

recent surgery. Wizinsky argues that the court should have adjourned the proceedings and 

obtained a medical opinion on Wizinsky’s competency.

A court is not required to make a competency determination in every case in which a 

defendant seeks to plead guilty. A competency determination is necessary only when a court has 

reason to doubt the defendant’s competence. See State v. Thoi, 279 Neb. 964, 783 N.W.2d 416 

(2010).

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There was no basis for the court to question Wizinsky’s competency on the date of the 

plea. As set forth above, during the plea hearing, Wizinsky represented to the court that he was 

not suffering from any condition that would affect his ability to understand or participate in the 

proceedings, that he had sufficiently recovered from surgery to make decisions for himself, and 

that he was not under the influence of any drugs that would affect his ability to understand the 

proceedings. Further, throughout the plea hearing, Wizinsky’s responses to questions were 

appropriate and clear.

Based on the record, Wizinsky understood the nature and object of the proceedings 

against him, was able to comprehend his own condition in reference to such proceedings, and

was able to make a rational defense. See State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012). 

There is nothing in the record that would cause the trial court to doubt Wizinsky’s competency to 

plead. This assignment is without merit.

3. MOTION FOR DISCHARGE

Finally, Wizinsky assigns that the trial court erred in overruling his motion for discharge 

that was based on speedy trial grounds. We disagree. By entering his no contest pleas, Wizinsky 

waived his statutory and constitutional right to a speedy trial. 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. Enriquez-Beltran, 9 Neb. App. 459, 616 N.W.2d 14 (2000). 

Further, Neb. Rev. Stat. § 29-1209 (Reissue 2008) specifically provides that “[f]ailure of the 

defendant to move for discharge prior to trial or entry of a plea of guilty or nolo contendere shall 

constitute a waiver of the right to speedy trial.”

Wizinsky’s pro se motion for discharge was filed on March 27, 2013, 2 days after he pled 

no contest and was sentenced. Therefore, based on his plea and his motion being filed after his 

plea, he has waived his right to a speedy trial.

Despite the motion for discharge being filed after Wizinsky pled no contest, the court 

held a hearing on the motion and acknowledged that it had been brought to the court’s attention 

that Wizinsky had prepared the motion for absolute discharge prior to his pleas. Wizinsky’s 

counsel informed the court that he visited with Wizinsky a few days before he entered his pleas 

and that Wizinsky told counsel he had filed the motion for absolute discharge. Counsel told the 

court that he and Wizinsky discussed the matter, that Wizinsky understood their conversation, 

that Wizinsky entered his plea with the intention of concluding his cases, and that Wizinsky 

wanted the court to disregard his motion for absolute discharge.

The trial court did not err in overruling Wizinsky’s motion for absolute discharge based 

on speedy trial grounds.

VI. CONCLUSION

For the reasons stated above, Wizinsky’s convictions and sentences for theft by unlawful 

taking and criminal mischief are affirmed.

AFFIRMED.

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