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Nebraska Advance She

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STATE v. SIDZYIK

Cite as 292 Neb. 263

State of Nebraska, appellee, v.

Donald L. Sidzyik, appel

___ N.W.2d ___

Filed December 11, 2015. No. S-14-1130.

1. Postconviction: Effectiveness of Counsel: Appeal and Error. A claim 

of ineffective assistance of counsel in a postconviction proceeding usually presents a mixed question of law and fact.

2. Effectiveness of Counsel: Appeal and Error. For “mixed question” 

ineffective assistance claims, an appellate court reviews the lower 

court’s factual findings for clear error but independently determines 

whether those facts show counsel’s performance was deficient and 

prejudiced the defendant.

3. Plea Bargains: Sentences. If the State breaches its promise to remain 

silent at a sentencing hearing, the defendant has two options: (1) withdraw the plea or (2) demand specific performance of the plea agreement 

by way of sentencing before a different judge.

4. 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.

5. ____: ____. To demonstrate deficient performance, a defendant must 

show that counsel’s performance did not equal that of a lawyer with 

ordinary training and skill in criminal law.

6. Effectiveness of Counsel. A court judges the challenged conduct of 

counsel on the facts of the particular case, viewed at the time of counsel’s conduct.

7. ____. A court will not second-guess reasonable strategic decisions made 

by counsel.

8. Effectiveness of Counsel: Proof. To demonstrate prejudice, a defendant 

must show a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different.
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Cite as 292 Neb. 263

9. Words and Phrases. A reasonable probability is one sufficient to undermine confidence in the outcome.

10. Plea Bargains: Sentences: Effectiveness of Counsel. To show prejudice from counsel’s failure to object to the State’s breach of a promise 

to remain silent at a sentencing hearing, the defendant must show that 

counsel’s failure to object prevented the defendant from protecting the 

bargain the defendant struck with the State, thereby making the proceedings fundamentally unfair.

Appeal from the District Court for Douglas County: Dua

C. Dougherty, Judge. Reversed and remanded with direction

Jason E. Troia, of Dornan, Lustgarten & Troia, P.C., L.L.O., 

for appellant.

Douglas J. Peterson, Attorney General, and George R. Love 

for appellee.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, Cassel, a

Connolly,

SUMMARY

Donald L. Sidzyik pleaded no contest to second degree 

sexual assault under a plea agreement. On direct appeal, he 

argued that his trial counsel was ineffective for failing to 

object to statements made by the prosecutor at the sentencing 

hearing. We concluded that the State had materially breached 

the plea agreement, but we could not resolve Sidzyik’s ineffectiveness claim on direct appeal because the record did not 

show if his trial counsel had a strategic reason for remaining 

silent.1 Sidzyik later moved for postconviction relief. The 

postconviction court overruled the motion after an evidentiary 

hearing because it did not think that the State’s breach of the 

plea agreement was significant. Sidzyik appeals. We conclude that Sidzyik received ineffective assistance of counsel 

when his trial counsel failed to object to the State’s material 

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

Cite as 292 Neb. 263

breach of the plea agreement. We reverse, and remand 

with directions.

BACKGROUND

The State charged Sidzyik with first degree sexual assault, a 

Class II felony. Under a plea agreement, the State amended the 

charge to second degree sexual assault, a Class III felony. The 

prosecutor agreed to “stand silent” as part of the agreement. 

Sidzyik pleaded no contest to the amended charge.

At the sentencing hearing, a different prosecutor endorsed 

the recommendation in the presentence investigation report. 

The report “in no uncertain terms recommended that Sidzyik 

receive a substantial period of incarceration.”2 Sidzyik’s trial 

counsel did not object to the prosecutor’s comments. The court 

sentenced him to 18 to 20 years’ imprisonment.

Represented by new counsel, Sidzyik appealed. He assigned 

that his trial counsel was ineffective for failing to object 

to the State’s breach of the plea agreement. We concluded 

that the State had materially breached the plea agreement by 

not remaining silent at the sentencing hearing.3 Even though 

Sidzyik’s trial counsel had not objected, we held out “the possibility, albeit rare,” that counsel said nothing in order to gain 

a tactical advantage.4 The record did not show if Sidzyik’s trial 

counsel had a strategic reason for not objecting. So, we could 

not resolve the ineffectiveness claim on direct appeal.

In 2011, Sidzyik moved for postconviction relief. He alleged 

that his trial counsel was ineffective for failing to object to the 

State’s breach of the plea agreement. Sidzyik asked the court 

to allow him to withdraw his plea or have a court sentence him 

in a proceeding not tainted by the State’s breach.

The postconviction court held an evidentiary hearing and 

received the deposition of Sidzyik’s trial counsel. Counsel 

testified that he did not object because (1) he did not think 

2 Id. at 313, 795 N.W.2d at 288.

3 Id.

4 Id. at 314, 795 N.W.2d at 288.
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STATE v. SIDZYIK

Cite as 292 Neb. 263

the State had breached the plea agreement and (2) he thought 

Sidzyik’s only option was to withdraw his plea:

I didn’t object for a couple of reasons. One, all [the 

prosecutor] said was they would rely on the presentence 

investigation, and I didn’t feel that was a breach of the 

— of our plea agreement. The second one was probably 

— well, not probably. Was a strategy decision that had I 

objected and moved to withdraw the plea, then we would 

have been stuck then going to bat and going to trial on a 

Class II felony as opposed to the negotiated plea agreement that I was able to achieve for Mr. Sidzyik which was 

an admission to a Class III felony which potentially saved 

him a much more lengthy sentence.

Counsel stated that he did not know Sidzyik could also demand 

specific performance of the agreement. He testified that it was 

“very common” for the prosecutor to submit on the presentence investigation report.

The court also received a joint stipulation. The parties 

agreed that Sidzyik had relied on the State’s promise to stand 

silent and that Sidzyik’s trial counsel had not discussed his 

options after the State breached the agreement. They further 

stipulated that “[h]ad Sidzyik known of his option of choosing 

to withdraw his plea or ask for specific performance of a sentencing with a different judge, Sidzyik would have requested 

specific performance with a different judge.”

The court overruled Sidzyik’s motion for postconviction 

relief. It emphasized that Sidzyik’s trial counsel did not think 

the State had breached the plea agreement and that Sidzyik 

himself had not told his counsel the State had breached the 

agreement. The court concluded that the prosecutor’s comments had not made the proceeding “‘fundamentally unfair’” 

and that an objection would have had “no merit.”

Sidzyik appeals.

ASSIGNMENT OF ERROR

Sidzyik assigns that the court erred by overruling his motion 

for postconviction relief.
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STATE v. SIDZYIK

Cite as 292 Neb. 263

STANDARD OF REVIEW

[1,2] A claim of ineffective assistance of counsel in a 

postconviction proceeding usually presents a mixed question 

of law and fact.5 For “mixed question” ineffective assistance claims, we review the lower court’s factual findings for 

clear error but independently determine whether those facts 

show counsel’s performance was deficient and prejudiced 

the defendant.6

ANALYSIS

[3] Because the postconviction court’s comment that a timely 

objection by Sidzyik’s trial counsel would have had “no merit,” 

we start by restating the underlying rules. The State’s failure 

to remain silent in violation of a plea agreement is a material 

breach of the agreement.7 If the State breaches the agreement, 

the defendant has two options: (1) withdraw the plea or (2) 

demand specific performance of the plea agreement by way of 

sentencing before a different judge.8 Relief is mandatory on a 

timely objection.9

[4] The question here is not if the State materially breached 

its plea agreement with Sidzyik. It did. Nor is the question 

whether Sidzyik could have withdrawn his plea or obtained 

specific performance on a timely objection. He could have. We 

answered these questions on Sidzyik’s direct appeal. The issue 

now is whether his trial counsel was ineffective for failing to 

object to the State’s breach. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,

10

the defendant must show that his or her counsel’s performance 

5 See State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).

6 Id.

7 State v. Sidzyik, supra note 1.

8 Id.

9 See State v. Birge, 263 Neb. 77, 638 N.W.2d 529 (2002).

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

(1984).
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STATE v. SIDZYIK

Cite as 292 Neb. 263

was deficient and that this deficient performance actually 

prejudiced the defendant’s defense.11 We will address the two 

prongs of this test, deficient performance and prejudice, in 

that order.

Deficient Perfor

[5-7] To demonstrate deficient performance, a defendant 

must show that counsel’s performance did not equal that of 

a lawyer with ordinary training and skill in criminal law.12 A 

court judges the challenged conduct of counsel on the facts of 

the particular case, viewed at the time of counsel’s conduct.13

The function of counsel is to make the adversarial testing 

process work in the defendant’s case, but we will not secondguess reasonable strategic decisions.14

We have said that it would be a rare circumstance if a lawyer with ordinary training and skill in criminal law would not 

inform the court of the State’s material breach of a plea agreement.15 We afford counsel due deference to form trial strategy 

and tactics, but it is hard to imagine what possible advantage a 

defendant could gain from silence.16 Only by pointing out the 

breach can counsel protect the benefits the defendant bargained 

for in exchange for his or her plea.17

We conclude that this is not one of those rare cases in which 

not objecting to the State’s material breach was a sound strategic choice. The State argues that trial counsel’s silence was a 

reasonable trial strategy, because counsel thought that (1) the 

State had not breached the plea agreement and (2) Sidzyik’s 

only option upon a breach would be to withdraw his plea. 

11 State v. Crawford, 291 Neb. 362, 865 N.W.2d 360 (2015).

12 State v. Armstrong, 290 Neb. 991, 863 N.W.2d 449 (2015).

13 See id.

14 Id.

15 State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003). 

16 Id.

17 Id.
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STATE v. SIDZYIK

Cite as 292 Neb. 263

Counsel was mistaken on both counts. We realize that even 

seasoned criminal attorneys, like Sidzyik’s trial counsel, are 

not walking repositories of the entire body of the criminal law. 

But trial strategy based on a misunderstanding of the law is 

not reasonable. So, the performance of Sidzyik’s trial counsel 

was deficient.

Prejudi

[8,9] To demonstrate prejudice, a defendant must show a 

reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different.18 A reasonable probability is one sufficient to undermine confidence in the outcome.19 In addressing the prejudice 

requirement in Strickland, we ask whether counsel’s deficient 

performance made the result of the trial unreliable or the proceeding fundamentally unfair.20

[10] The State argues that Sidzyik was not prejudiced, 

because “the main focus of the plea negotiation was on the 

reduction of the charge” and the State’s promise to stand silent 

was not an “integral part of the plea agreement.”21 To the 

extent the State argues that the breach was not material, we 

note again that we held on Sidzyik’s direct appeal that it was. 

Furthermore, Sidzyik does not have to show that he would 

have received a lesser punishment to show prejudice.22 Instead, 

the focus is whether counsel’s silence sacrificed Sidzyik’s ability to protect the bargain he struck with the State, thereby making the proceedings fundamentally unfair.23

We conclude that trial counsel’s failure to object to the 

State’s breach of the plea agreement prejudiced Sidzyik. Had 

18 See State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).

19 See id.

20 Id.

21 Brief for appellee at 9.

22 See State v. Gonzalez-Faguaga, supra note 15.

23 Id.
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STATE v. SIDZYIK

Cite as 292 Neb. 263

trial counsel timely objected, the outcome would have been 

different, because Sidzyik would have had the option to 

withdraw his plea or seek resentencing before a different 

judge.24 The loss of this choice made the proceeding fundamentally unfair.25

CONCLUSION

Sidzyik received ineffective assistance of counsel because 

his attorney failed to object to the State’s material breach of 

the plea agreement. Had his counsel objected, Sidzyik would 

have had the choice to withdraw his plea or demand that the 

court sentence him in a proceeding not tainted by the breach. 

We reverse, and remand with directions to give Sidzyik the 

choice to either (1) withdraw his no contest plea or (2) be 

resentenced for his second degree sexual assault conviction 

by a judge other than the judge who imposed the original sentence and the judge who overruled his motion for postconviction relief.

Reversed and remanded with direc

24 See State v. Sidzyik, supra note 1.

25 See State v. Gonzalez-Faguaga, supra note 15.

Cassel, J., concurring

This court has never considered, and this case does not 

present, a situation where a trial court, upon the occurrence of 

a prosecutor’s breach of a plea-bargained promise to remain 

silent at sentencing, promptly and decisively strikes the prosecutor’s offending comments from the record, admonishes the 

prosecutor, expressly states that the comments will be entirely 

disregarded, and affirmatively offers the defendant with a 

choice of (1) withdrawing his or her plea, (2) requesting sentencing before a different judge, or (3) going forward with 

sentencing before the current judge.

Stacy, J., joins in this concurrence