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304 Nebraska Reports

STATE v. IDDINGS

Cite as 304 Neb. 759

State of Nebraska, appellee, v. 

Matthew P. Iddings, appellant.

___ N.W.2d ___

Filed January 3, 2020. No. S-19-304.

1. Judgments: Appeal and Error. When issues on appeal present questions of law, an appellate court has an obligation to reach an independent 

conclusion irrespective of the decision of the court below.

2. Constitutional Law: Waiver: Appeal and Error. In determining 

whether a defendant’s waiver of a statutory or constitutional right was 

voluntary, knowing, and intelligent, an appellate court applies a clearly 

erroneous standard of review.

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. Plea Bargains: Waiver: Appeal and Error. Where no objection was 

made to the sentencing judge for a plea bargain violation, the defendant 

has waived the error and it has not been preserved for appellate review.

5. Effectiveness of Counsel: Proof. 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.

6. Courts: Plea Bargains. Courts enforce only those terms and conditions 

actually agreed upon by the parties to a plea agreement.

7. Plea Bargains. A party breaches a plea agreement either by (1) violating an express term of the agreement or (2) acting in a manner not specifically prohibited by the agreement but still incompatible with explicit 

promises made therein.

8. Plea Bargains: Sentences. A sentencing recommendation need not be 

enthusiastic in order to fulfill a promise made in a plea agreement.

9. Appeal and Error. It is a fundamental rule of appellate practice that an 

alleged error must be both specifically assigned and specifically argued 

Nebraska Supreme Court Online Library

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

03/27/2020 08:08 AM CDT
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in the brief of the party asserting the error to be considered by an appellate court.

10. ____. A generalized and vague assignment of error that does not advise 

an appellate court of the issue submitted for decision will not be 

considered.

11. Presentence Reports: Waiver. The statutory right to have a presentence 

investigation completed prior to being sentenced may be waived so long 

as that waiver was knowingly and intelligently made.

12. Waiver. No formalistic litany of warnings is required to show that a 

waiver was knowingly and intelligently made.

13. Presentence Reports: Waiver: Appeal and Error. The appropriate 

standard to apply in the case of a waiver of the right to a presentence 

investigation under Neb. Rev. Stat. § 29-2261 (Cum. Supp. 2014) is 

whether it is apparent from the totality of the circumstances reflected in 

the record that the defendant, when waiving the right, was sufficiently 

aware of his or her right to a presentence investigation and the possible 

consequences of his or her decision to forgo that right.

14. Criminal Law: Waiver. A knowing and intelligent waiver may be demonstrated by or inferred from the defendant’s conduct.

15. Courts: Presentence Reports: Waiver. It is the better practice for a 

sentencing court to issue a more direct advisement of the statutory right 

to a presentence investigation, conduct an explicit inquiry into the voluntariness of a defendant’s waiver of that right, and make explicit findings with respect to a waiver.

16. Sentences: Appeal and Error. Absent an abuse of discretion by the trial 

court, an appellate court will not disturb a sentence imposed within the 

statutory limits.

17. Judgments: Words and Phrases. 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.

18. Sentences. 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.

19. Plea Bargains: Judges: Sentences. A judge is in no manner bound to 

give a defendant the sentence recommended by the prosecutor under a 

plea agreement.

20. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. Whether a claim of ineffective assistance of trial 

counsel can be determined on direct appeal presents a question of law, 

which turns upon the sufficiency of the record to address the claim 
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STATE v. IDDINGS

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without an evidentiary hearing or whether the claim rests solely on the 

interpretation of a statute or constitutional requirement.

21. Effectiveness of Counsel: Records: Appeal and Error. When 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.

Appeal from the District Court for Hall County: John H. 

Marsh, Judge. Affirmed.

Jonathan M. Hendricks, of Dowding, Dowding, Dowding & 

Urbom Law Offices, for appellant.

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

for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

This case presents an appeal from a sentence imposed after 

the defendant pled guilty pursuant to a plea agreement. The 

State and the defendant had jointly agreed to recommend 

an 18-month period of incarceration. The district court ultimately sentenced the defendant to an indeterminate term of 18 

months’ to 5 years’ incarceration, and the defendant appeals. 

The defendant asserts that the State breached its agreement to 

recommend a sentence of 18 months’ incarceration by remarking that it “struggled” concerning the sentencing recommendation. Further, the defendant argues that the court erred by 

failing to order a presentence investigation when, although 

defense counsel below stated that the defendant was waiving 

the presentence investigation, the court only articulated that it 

had found such an investigation to be impractical. The defendant argues that the court abused its discretion in finding a 
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STATE v. IDDINGS

Cite as 304 Neb. 759

presentence investigation impractical. The defendant generally 

asserts that the sentence was excessive and was a result of the 

court’s abuse of discretion in failing to consider all of the sentencing factors, such as mentality, education and experience, 

or social and cultural background, in part as a result of failing 

to conduct a presentence investigation. Finally, the defendant 

argues that defense counsel below was ineffective for failing 

to request the proper amount of jail time credit pertaining to 

alleged time spent in jail in another county under arrest warrants for both the present case and the charges filed in that 

other county.

BACKGROUND

In relation to a traffic stop that occurred in July 2015, the 

defendant, Matthew P. Iddings, was originally charged under 

“60-6,196.15” with driving under the influence (DUI), fourth 

offense aggravated, a Class III felony. Defense counsel and 

the State reached a plea agreement pursuant to which the State 

filed an amended information charging Iddings with a nonaggravated DUI, fourth offense, under Neb. Rev. Stat. § 60-6,196 

(Reissue 2010), a Class IIIA felony.

The amended information described that on July 2, 2015, 

Iddings operated a motor vehicle and had a concentration of 

.08 of 1 gram or more by weight of alcohol per 100 milliliters 

of his blood or .08 of 1 gram or more by weight of alcohol per 

210 liters of his breath. The amended complaint further alleged 

that this was the fourth DUI offense committed by Iddings, 

who had been previously convicted of DUI in Nebraska on or 

about May 26, 2005, and March 15 and December 12, 2007.

At the plea and sentencing hearing held on March 6, 2019, 

defense counsel and the State explained to the court that they 

had reached a plea agreement under which the State amended 

the information from aggravated DUI, fourth offense, to nonaggravated DUI, fourth offense, and agreed to recommend 

jointly with defense counsel that Iddings be sentenced to 18 

months’ incarceration.
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STATE v. IDDINGS

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As the factual basis for the crime, the State recited that on 

July 2, 2015, the “Nebraska State Patrol Help Line” received 

multiple telephone calls about a potential drunk driver on 

Interstate 80. An officer was able to locate the vehicle and 

observed both passenger-side tires drive off the shoulder of the 

roadway two different times. The officer conducted a traffic 

stop and, upon contact with the driver, Iddings, noticed a smell 

of alcoholic beverage. A blood draw was eventually conducted 

on Iddings, which demonstrated .307 grams of alcohol per 100 

milliliters of blood.

Defense counsel agreed with the factual basis. Defense 

counsel also stated the defense was willing to stipulate to the 

prior DUI offenses alleged in the information and that Iddings 

had been represented by an attorney in each of the three 

prior offenses.

The court found the factual basis adequate to support the 

plea. After a standard plea colloquy, the court accepted Iddings’ 

no contest plea. The court found that the plea was not a result 

of any promise or threat; that the plea was entered knowingly, 

voluntarily, and intelligently; and that Iddings knowingly, voluntarily, and intelligently waived his constitutional rights.

Defense counsel advised the court that Iddings’ preference 

was to proceed immediately to sentencing, noting that he had 

calculated the jail time credit. The court did so.

When the court asked about a presentence investigation, 

defense counsel stated, “Your honor, . . . Iddings will waive his 

right to a presentence investigation.” When asked by the court 

for its comments, the State expressed that it had no objection 

to Iddings’ waiver of the presentence investigation. However, 

Iddings was not personally addressed by the court regarding 

such waiver.

The State noted with regard to Iddings’ criminal history that 

other than the three prior convictions listed on the information, 

Iddings also had a prior DUI in 1997. Further, he had committed a more recent DUI in Sarpy County around the same time 

as the charge he had just pled to and for which in October 2018 
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he had been sentenced to 18 months’ incarceration. Lastly, 

Iddings had a pending DUI charge in Grant County.

Defense counsel did not contest this history other than 

clarifying that Iddings had just finished serving his sentence 

on the Sarpy County conviction in October 2018, as opposed 

to being sentenced in October 2018. Further, defense counsel 

described that Iddings had already pled guilty to the charge of 

nonaggravated DUI, fourth offense, in Grant County and was 

awaiting sentencing.

After being so informed of the pending charges in Grant 

County, the district court for Hall County confirmed that 

Iddings was “likely to be transported to another county when 

[Hall County authorities were] done with him.” The court 

found “under those circumstances that a presentence investigation is impractical.” Defense counsel did not object to this 

conclusion. The court did not make an express finding that the 

presentence investigation had been waived.

Defense counsel asked the court to adopt the plea agreement 

and sentence Iddings to 18 months’ incarceration with 136 

days’ credit. Defense counsel informed the court that Iddings 

had been in jail from October 23, 2017, to the date of the hearing, March 6, 2019, and that he had been in jail for 2 additional 

days in 2015.

Defense counsel asked the court to consider in sentencing 

that Iddings had not been out of jail since 2017 and had thus 

experienced a long period of sobriety. According to defense 

counsel, Iddings fully intended to “walk out of the Department 

of Corrections a better man than when he went in, and he does 

believe that he can maintain long-term sobriety.”

When asked by the court for its thoughts on sentencing, the 

State said:

[W]hen negotiating this case with [defense counsel], I 

really struggled on what to agree to. We came down to the 

18 months because that is what he got on a similar charge 

in another county. If he was serving any other sentence, 

I — I don’t know if I would have agreed; but since this 
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Cite as 304 Neb. 759

will be consecutive to anything else that he was serving 

previously, I agreed to recommend the 18 months.

I will note in addition to the DUIs that I’ve already 

mentioned, he did fail to appear in this case on June 8th, 

2016, and was not arrested until, I believe, a year later; 

and then he was transported here, I believe, on October 

24th of last year.

The record reflects that a bench warrant had been issued by 

the district court for Hall County on June 8, 2016, for Iddings’ 

failure to appear at a scheduled hearing. The appellate record 

does not reflect an arrest in Sarpy County in 2017. Instead, a 

document filed on October 24, 2018, reflects that Iddings was 

arrested in Hall County on October 23, 2018, on the June 8, 

2016, warrant.

Having been present for the foregoing, Iddings was asked 

by the court whether he had any legal reason why the court 

should not pronounce its sentence and whether he had anything 

else to bring to the court’s attention before the court sentenced 

him. Iddings responded that he did not have any reason why 

the court should not proceed to sentencing. Iddings apologized 

for not appearing in court on June 8, 2016, explaining, “It was 

a health issue, I was in the hospital.”

The court sentenced Iddings to a term of incarceration of 

18 months to 5 years, with “credit for 136 days.” Iddings’ 

driver’s license was revoked for 15 years. Defense counsel 

raised no objection to the sentence. In its final order, the court 

noted that the parties had agreed to 18 months’ incarceration 

and informed Iddings that it was not bound by the plea negotiations. The court reiterated its conclusion that a presentence 

investigation would be impractical and did not articulate anything pertaining to a waiver of the same.

Iddings appeals his sentence. He has obtained new counsel 

to represent him on appeal.

ASSIGNMENTS OF ERROR

Iddings assigns that (1) the district court abused its discretion by sentencing him to a term of incarceration of 18 months 
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Cite as 304 Neb. 759

to 5 years without due consideration of established sentencing 

factors, (2) the State violated the plea agreement, (3) he was 

entitled to additional credit for time served, (4) trial counsel 

was ineffective for failing to object to the State’s violation of 

the plea agreement, and (5) trial counsel was ineffective for 

failing to request at the sentencing hearing additional credit for 

time served.

STANDARD OF REVIEW

[1] When issues on appeal present questions of law, an 

appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.1

[2] In determining whether a defendant’s waiver of a statutory or constitutional right was voluntary, knowing, and intelligent, an appellate court applies a clearly erroneous standard 

of review.2

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

within the statutory limits absent an abuse of discretion by the 

trial court.3

ANALYSIS

Iddings’ fundamental complaint on appeal is that he was 

sentenced to an indeterminate period of incarceration of 18 

months to 5 years rather than 18 months to 18 months. He seeks 

the option of withdrawing his plea or seeking resentencing 

before a different judge on the ground that the State allegedly 

breached its plea agreement by undermining its recommendation of an 18-month sentence of incarceration. Alternatively, 

Iddings seeks resentencing under the assertions that the court 

imposed an excessive sentence and that the court’s decision 

to forgo a presentence investigation was plain error. Finally, 

Iddings argues that defense counsel below was ineffective for 

1 State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013).

2 State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012).

3 State v. Montoya, ante p. 96, 933 N.W.2d 558 (2019).
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failing to request credit for an additional 58 days’ jail time for 

which he was ineffectively given credit against the sentence 

imposed in Sarpy County. We find that Iddings’ claim regarding credit for time served cannot be determined on direct 

appeal, and we disagree with Iddings’ remaining assignments 

of error. We affirm the judgment below.

Plea Agreement

[4] Iddings asserts that the State breached its plea agreement to recommend 18 months of incarceration by effectively undermining that sentence in its comments to the court 

at the sentencing hearing. Trial counsel did not object to 

the State’s comments. Where no objection was made to the 

sentencing judge for a plea bargain violation, the defendant 

has waived the error and it has not been preserved for appellate review.4

 Iddings argues, however, that trial counsel was 

ineffective by failing to object to the alleged breach and 

either ask the court to allow Iddings to withdraw the plea or 

demand specific performance of the plea agreement before a 

different judge.5

[5] We agree with Iddings and the State that this ineffective assistance of counsel claim can be resolved on direct 

appeal, because the record is sufficient to adequately review 

the question.6 To prevail on a claim of ineffective assistance 

of counsel under Strickland v. Washington,

7

 the defendant must 

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

that this deficient performance actually prejudiced the defendant’s defense.8

4 See State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011).

5 See id.

6 See State v. Stelly, ante p. 33, 932 N.W.2d 857 (2019).

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

(1984).

8 State v. Oliveira-Coutinho, ante p. 147, 933 N.W.2d 825 (2019).
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[6,7] We enforce only those terms and conditions actually agreed upon by the parties to a plea agreement.9

 A party 

breaches a plea agreement either by (1) violating an express 

term of the agreement or (2) acting in a manner not specifically 

prohibited by the agreement but still incompatible with explicit 

promises made therein.10 On this latter means of breaching 

an express provision of a plea agreement, we have explained 

that the State must not “effectively undermine the promised 

recommendation.”11

Thus, in State v. Landera,

12 we held that the State had 

breached a plea agreement to recommend probation when it 

stated at sentencing that it could not recommend probation 

and believed the court should impose incarceration instead, 

elaborating upon the danger that the defendant would pose to 

the public if placed immediately on probation. The State had 

also made a “perfunctory recommendation of probation,” but 

we concluded that “the tenor of [the State’s] entire argument 

undermined its purported recommendation, thereby breaching 

the express term of the agreement.”13

[8] Landera is distinguishable from the present case. At 

Iddings’ sentencing hearing, the State merely expressed 

that it had “struggled” with what to agree to. Nevertheless, 

the State reinforced its agreed-upon sentencing recommendation by stating that after this “struggle[],” it ultimately 

found 18 months’ incarceration to be reasonable given that 

the sentence would be consecutive to Iddings’ sentence on 

a similar charge in another county. While the State also 

pointed out Iddings’ prior failure to appear, the State did not 

assert or even imply that this fact, or any other, meant that 

9 See State v. Landera, supra note 1.

10 See id.

11 Id. at 257, 826 N.W.2d at 579.

12 State v. Landera, supra note 1.

13 Id. at 256, 826 N.W.2d at 578-79.
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Iddings should be incarcerated more than 18 months. As we 

stated in Landera, “a sentencing recommendation need not 

be enthusiastic in order to fulfill a promise made in a plea 

agreement.”14 The State did not effectively undermine its 

promised recommendation.

Defense counsel below was not deficient for failing to object 

to the State’s alleged breach of the plea agreement, because the 

State did not commit such a breach.

Lack of Presentence Investigation

[9,10] Next, Iddings argues that the district court committed 

plain error by failing to procure a presentence investigation 

before sentencing. The State asserts that this argument was not 

assigned as error. It is a fundamental rule of appellate practice 

that an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to 

be considered by an appellate court.15 A generalized and vague 

assignment of error that does not advise an appellate court of 

the issue submitted for decision will not be considered.16

While we agree with the State that Iddings’ assignment of 

error could have been better crafted, we will consider the failure to procure the presentence investigation as encompassed 

by Iddings’ assignment of error that “[t]he district court abused 

its discretion by sentencing [Iddings] to a sentence of eighteen 

months to five years without due consideration of established 

sentencing factors.” Iddings argues that the absence of the 

presentence investigation contributed to the court’s ultimate 

failure to consider all the relevant sentencing factors, which 

constituted the alleged abuse of discretion in reaching the indeterminate 18-month-to-5-year sentence that Iddings asks this 

court to reverse as excessive.

14 Id. at 257, 826 N.W.2d at 579.

15 State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).

16 Id.
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Neb. Rev. Stat. § 29-2261(1) (Cum. Supp. 2014) provides 

that “[u]nless it is impractical to do so, when an offender 

has been convicted of a felony other than murder in the first 

degree, the court shall not impose sentence without first ordering a presentence investigation of the offender and according 

due consideration to a written report of such investigation.” 

Section 29-2261(3) explains that, among other things,

[t]he presentence investigation and report shall include, 

when available, an analysis of the circumstances attending the commission of the crime, the offender’s history of 

delinquency or criminality, physical and mental condition, 

family situation and background, economic status, education, occupation, and personal habits, and any other matters that the probation officer deems relevant or the court 

directs to be included.

We have construed the plain language of § 29-2261 as a 

mandate upon the sentencing court to obtain and consider a 

presentence investigation with every felony conviction unless 

applicable exceptions render such an investigation unnecessary.17 The presentence investigation serves several functions, 

including providing information to the court to assist in the 

imposition of an appropriate individualized sentence based on 

knowledge of the convicted person’s background and character 

which may not otherwise be available to the sentencing court, 

especially in a plea-based conviction.18

[11] The statutory right to have a presentence investigation completed prior to being sentenced may, however, be 

waived so long as that waiver was knowingly and intelligently made.19 We find that Iddings expressly and effectively 

waived his right to a presentence investigation and that thus, 

17 State v. Tolbert, 223 Neb. 794, 394 N.W.2d 288 (1986). See, also, e.g., 

State v. Qualls, supra note 2; State v. Thomas, 268 Neb. 570, 685 N.W.2d 

69 (2004); State v. Jackson, 192 Neb. 39, 218 N.W.2d 430 (1974).

18 State v. Albers, 276 Neb. 942, 758 N.W.2d 411 (2008).

19 State v. Qualls, supra note 2; State v. Tolbert, supra note 17.
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he cannot assert on appeal that the trial court erred by failing 

to order that a presentence investigation be conducted prior 

to sentencing.

[12,13] No formalistic litany of warnings is required to show 

that a waiver was knowingly and intelligently made.20 Instead, 

the appropriate standard to apply in the case of a waiver of the 

right to a presentence investigation under § 29-2261 is whether 

it is apparent from the totality of the circumstances reflected in 

the record that the defendant, when waiving the right, was sufficiently aware of his or her right to a presentence investigation 

and the possible consequences of his or her decision to forgo 

that right.21 But, as a general matter, being informed of a right 

to a presentence investigation demonstrates that the defendant 

was sufficiently aware of both the right and the possible consequences of his or her decision to forgo that right,22 because 

the consequences of the failure to procure a presentence investigation for the court’s consideration at sentencing are largely 

self-evident.23

Iddings was present and remained silent when his counsel 

expressly waived what counsel expressly described as Iddings’ 

“right” to a presentence investigation. Later, when the court 

asked Iddings if there was any legal reason why the court 

should not proceed to sentencing or anything Iddings would 

like to add, Iddings failed to raise the lack of a presentence 

investigation. Iddings, through his silent acquiescence to his 

counsel’s statement of waiver and failure to object or otherwise 

raise the issue to the court, waived his right to a presentence 

investigation. We have held in various circumstances that a 

defendant may waive a right by silently acquiescing to the 

20 See State v. Qualls, supra note 2. See, also, State v. Jenkins, 303 Neb. 676, 

931 N.W.2d 851 (2019).

21 State v. Qualls, supra note 2; State v. Tolbert, supra note 17.

22 See, State v. Qualls, supra note 2; State v. Robeson, 25 Neb. App. 138, 903 

N.W.2d 677 (2017).

23 See State v. Qualls, supra note 2.
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waiver given by his counsel and by failing to object and raise 

the issue to a trial court.24

We find no merit to any contention that the record fails to 

demonstrate that this waiver was effective because the district 

court did not specifically inquire of Iddings whether he understood the right and whether anyone had threatened or promised 

him anything to waive the right and did not inform Iddings of 

what a waiver would entail. The facts of this case are similar 

to those presented in State v. Robeson,

25 wherein the Court of 

Appeals found that it was apparent from the totality of the 

circumstances reflected in the record that the defendant had 

knowingly, intelligently, and voluntarily waived the right to 

a presentence investigation, despite the lack of any colloquy 

between the court and the defendant.

In Robeson, sentencing had been expedited and there was 

a jointly recommended sentence pursuant to a plea agreement. The district court had confirmed with defense counsel 

in the defendant’s presence that the defendant was waiving his 

“right” to a presentence investigation. The defendant did not 

engage in any further discussion or objection with regard to his 

counsel’s statement that he was waiving his right to a presentence investigation. The defendant and his counsel were given 

the opportunity at the sentencing hearing to present any mitigating factors they wished the court to consider, and defense 

counsel affirmed that there was no other legal reason why the 

court should not impose a sentence at that time.26

[14] A knowing and intelligent waiver may be demonstrated by or inferred from the defendant’s conduct.27 Iddings’ 

24 See, State v. Sayers, 211 Neb. 555, 319 N.W.2d 438 (1982); Sedlacek 

v. State, 147 Neb. 834, 25 N.W.2d 533 (1946); State v. Robeson, supra 

note 22.

25 State v. Robeson, supra note 22.

26 See, State v. Sayers, supra note 24; Sedlacek v. State, supra note 24; State 

v. Robeson, supra note 22.

27 See State v. Qualls, supra note 2.
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defense counsel below, in Iddings’ presence, indicated that 

Iddings wished to proceed immediately to sentencing and 

waive his “right” to a presentence investigation in order to do 

so. Immediately prior to this exchange in which defense counsel stated that Iddings was waiving his right to a presentence 

investigation, Iddings’ ability to waive his right to trial had 

been evaluated under a standard plea colloquy, the court having found no impediment to his capacity in that regard. And 

Iddings confirmed that he was aware of no legal reason why 

the court should not pronounce its sentence. Both Iddings and 

his defense counsel below were given the opportunity to present any mitigating circumstances or other matters. They both 

highlighted what facts and circumstances they wished the court 

to consider in sentencing—which would have been reflected in 

the presentence investigation, had Iddings not waived it.

While appellate counsel points out that the district court did 

not actually articulate as a finding that Iddings had waived 

his right to a presentence investigation, that is not dispositive. 

There is no indication that the court found that Iddings had 

failed to effectively waive his right to a presentence investigation; the court merely focused on its conclusion that a presentence investigation “is found to be impractical.” A silent record 

is insufficient for a court on appeal to conclude a knowing, 

intelligent, and voluntary waiver of a constitutional or statutory right,28 but the record here is not silent. The record need 

not affirmatively contain the lower court’s express finding of 

a knowing, intelligent, and voluntary waiver in order for this 

court to observe that the record affirmatively demonstrates that 

a knowing, intelligent, and voluntary waiver has been made. 

Again, the appropriate standard to apply in the case of a waiver 

of a right to a presentence investigation under § 29-2261 is 

whether it is apparent from the record that the defendant’s 

28 See, State v. Porchia, 221 Neb. 327, 376 N.W.2d 800 (1985); State v. 

Morford, 192 Neb. 412, 222 N.W.2d 117 (1974); State v. Balvin, 18 Neb. 

App. 690, 791 N.W.2d 352 (2010).
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relinquishment of the right was knowingly and intelligently 

made.29 The record in this case affirmatively demonstrates that 

Iddings knowingly, intelligently, and voluntarily waived his 

statutory right to a presentence investigation.

[15] We agree with the Court of Appeals’ statement in 

Robeson that it is “the better practice” for a sentencing court 

to issue a more direct advisement of the statutory right to a 

presentence investigation, conduct an explicit inquiry into the 

voluntariness of a defendant’s waiver of that right, and make 

explicit findings with respect to a waiver.30 We encourage 

courts to adopt this better practice. Conducting a colloquy for 

a waiver of a presentence investigation ensures that the record 

will affirmatively demonstrate that the defendant has knowingly, intelligently, and voluntarily waived that right. While the 

record in this case is adequate without such a colloquy, it may 

not be in another case.

Having concluded that the court did not err in failing to 

order a presentence investigation, because Iddings expressly 

waived that statutory right, we need not consider whether the 

court abused its discretion in determining that a presentence 

investigation was impractical because Iddings was likely to be 

transported to another county immediately after sentencing.

Excessive Sentence

[16,17] Next, we address Iddings’ excessive sentence argument. Absent an abuse of discretion by the trial court, an 

appellate court will not disturb a sentence imposed within the 

statutory limits.31 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.32

29 State v. Qualls, supra note 2.

30 State v. Robeson, supra note 22, 25 Neb. App. at 148, 903 N.W.2d at 686.

31 State v. Montoya, supra note 3.

32 Id.
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A Class IIIA felony under Neb. Rev. Stat. § 28-105 (Cum. 

Supp. 2014), in effect at the time the offense was committed, 

was punishable with a maximum of 5 years’ imprisonment, 

a $10,000 fine, or both. There was no minimum. Where, as 

here, 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.33

[18] 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. 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.34

Appellate counsel asserts that the district court abused its 

discretion by rendering its sentence without any “real consideration” of the above sentencing factors other than Iddings’ 

criminal history and the factual basis for the crime.35 But, as 

already noted, the court gave defense counsel and Iddings the 

opportunity to present anything they wished the court to consider before reaching its sentencing decision.

Defense counsel responded to this opportunity by asserting 

that Iddings had been sober since 2017 and planned to remain 

so. Iddings, for his part, explained that he had failed to appear 

at a prior hearing because he had been in the hospital. To the 

extent that the district court did not consider more information 

33 Id. See, also, State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).

34 Id.

35 Brief for appellant at 12.
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pertaining to Iddings’ mentality, education and experience, 

or social and cultural background, this was due to Iddings’ 

waiver of the presentence investigation and his deliberate decision not to otherwise present at the hearing facts pertaining 

to these factors. Under such circumstances, we find no abuse 

of discretion.36

We also agree with the State that it is difficult to find an 

abuse of discretion in an excessive sentence analysis when the 

minimum imposed was the term the defendant agreed to in a 

plea bargain agreement. It is the minimum portion of an indeterminate sentence which measures its severity.37

[19] We find no merit to Iddings’ assertion that the district 

court “abused its discretion by disregarding the joint plea 

recommendation.”38 Assuming without deciding that the joint 

plea recommendation was, as Iddings asserts, for an indeterminate term of incarceration of 18 months to 18 months, a judge 

is in no manner bound to give a defendant the sentence recommended by the prosecutor under a plea agreement.39 Given the 

number of DUI convictions and charges that were undisputed 

below, it was reasonable for the court to conclude that it was 

necessary for Iddings’ safety and the safety of the public to 

impose a higher maximum term in order to ensure proper 

postrelease supervision.

Credit for Time Served

Lastly, appellate counsel argues in this direct appeal that 

defense counsel below was ineffective for failing to request 

58 additional days of jail time credit under Neb. Rev. Stat. 

§ 83-1,106(1) (Reissue 2014), for time spent in jail in Sarpy 

County. He asserts that according to § 83-1,106(1), 336 days 

36 See State v. Qualls, supra note 2.

37 See, e.g., State v. McCaslin, 240 Neb. 482, 482 N.W.2d 558 (1992); State 

v. Haynie, 239 Neb. 478, 476 N.W.2d 905 (1991).

38 Brief for appellant at 11.

39 See State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).
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were simultaneously “as a result of the criminal charge for 

which a prison sentence [was] imposed” below and as a result 

of the charge in Sarpy County. According to appellate counsel, 

although the district court for Sarpy County purported to apply 

all 336 days against the sentence there imposed, 58 days of that 

jail time were not truly applied because they were in excess of 

the 278 days he was sentenced to serve, when calculated with 

mandatory good time.

[20] According to appellate counsel, defense counsel below 

should have been aware that the 58 days’ jail time credit was 

the “result of” the underlying charge in this case and that it had 

not been truly applied in the Sarpy County case. Thus, appellate counsel concludes that defense counsel was ineffective in 

failing to request the proper amount of jail time credit—when 

defense counsel had waived the presentence investigation and 

represented that he was able to accurately inform the court of 

the applicable jail time. Whether a claim of ineffective assistance of trial counsel can be determined on direct appeal presents a question of law, which turns upon the sufficiency of the 

record to address the claim without an evidentiary hearing or 

whether the claim rests solely on the interpretation of a statute 

or constitutional requirement.40

[21] The determining factor is whether the record is sufficient to adequately review the question.41 We have said 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.42

We have also said that when 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 

40 State v. Stelly, supra note 6.

41 Id.

42 Id.
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did or did not provide effective assistance, and whether the 

defendant was or was not prejudiced by counsel’s alleged deficient performance.43

Appellate counsel and the State both suggest that we cannot resolve this claim of ineffective assistance of counsel on 

direct appeal, since it depends upon facts outside the appellate 

record. We agree. The exact credit for time served to which a 

defendant is entitled is objective and not discretionary, and a 

question of law,44 but the necessary facts to conduct such an 

analysis in this case are not contained within the record on 

direct appeal.

CONCLUSION

For the foregoing reasons, we affirm the judgment below.

Affirmed.

Miller-Lerman, J., participating on briefs.

43 Id.

44 See id.