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Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. MILLER

Cite as 315 Neb. 951

State of Nebraska, appellee, v. 

Jordon J. Miller, appellant.

___ N.W.2d ___

Filed February 16, 2024. No. S-23-124.

1. Pleas: Courts. A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas before sentencing.

2. Pleas: Appeal and Error. An appellate court will not disturb the trial 

court’s ruling on a presentencing motion to withdraw a guilty or no contest plea absent an abuse of discretion.

3. 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 

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

interpretation of a statute or constitutional requirement.

4. Effectiveness of Counsel: Appeal and Error. In reviewing a claim 

of ineffective assistance of trial counsel on direct appeal, an appellate 

court determines as a matter of law whether the record conclusively 

shows that (1) a defense counsel’s performance was deficient or (2) 

a defendant was or was not prejudiced by a defense counsel’s alleged 

deficient performance.

5. Sentences: Appeal and Error. A sentence imposed within statutory 

limits will not be disturbed on appeal absent an abuse of discretion by 

the trial court.

6. ____: ____. An abuse of discretion takes place when the sentencing 

court’s reasons or rulings are clearly untenable and unfairly deprive a 

litigant of a substantial right and a just result.

7. Pleas. When a defendant moves to withdraw his or her plea before 

sentencing, a court, in its discretion, may sustain the motion for any fair 

and just reason, provided that such withdrawal would not substantially 

prejudice the prosecution.

Nebraska Supreme Court Online Library

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

02/16/2024 08:09 AM CST
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STATE V. MILLER

Cite as 315 Neb. 951

8. Pleas: Proof. A defendant moving to withdraw his or her plea before 

sentencing has the burden to show the grounds for withdrawal by clear 

and convincing evidence.

9. Pleas. A defendant’s change of mind alone is not a fair and just reason 

to withdraw a guilty or no contest plea.

10. Effectiveness of Counsel: Postconviction: 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; otherwise, the issue will be 

procedurally barred in a subsequent postconviction proceeding.

11. ____: ____: ____: ____. An ineffective assistance of counsel claim is 

raised on direct appeal when the claim alleges deficient performance 

with enough particularity for (1) an appellate court to make a determination of whether the claim can be decided upon the trial record and (2) 

a district court later reviewing a petition for postconviction relief to 

recognize whether the claim was brought before the appellate court.

12. Effectiveness of Counsel: Proof: Appeal and Error. When a claim of 

ineffective assistance of counsel is raised in a direct appeal, the appellant is not required to allege prejudice; however, an appellant must make 

specific allegations of the conduct that he or she claims constitutes deficient performance by trial counsel.

13. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an 

appellate court will determine whether the record on appeal is sufficient 

to review the merits of the ineffective performance claims. 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 as 

a matter of law, or that trial counsel’s actions could not be justified as a 

part of any plausible trial strategy.

14. 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 

counsel’s performance was deficient and that this deficient performance 

actually prejudiced the defendant’s defense.

15. ____: ____. To show that counsel’s performance was deficient, the 

defendant must show counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law.

16. ____: ____. To show prejudice from counsel’s deficient performance, 

the defendant must demonstrate a reasonable probability that but for 

counsel’s deficient performance, the result of the proceeding would have 

been different.
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Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. MILLER

Cite as 315 Neb. 951

17. Convictions: Effectiveness of Counsel: Pleas: Proof. When a conviction is based upon a plea of no contest, 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 no contest.

18. Effectiveness of Counsel. The viability of any defense goes to the 

likelihood of whether a rational defendant would have insisted on going 

to trial.

19. Double Jeopardy: Speedy Trial: Indictments and Informations.

When an amended information is filed, the relevant question for statutory speedy trial purposes under Neb. Rev. Stat. § 29-1207 (Reissue 

2016) is whether any count charged in the amended information is 

the same “offense” charged in the original information (and therefore 

whether the speedy trial clock should run from the filing of the original information) or whether it is a new “offense” charged for the first 

time in the amended information (and therefore whether the speedy 

trial clock should run from the filing of the amended information). 

The question whether a count in an amended information is a new 

“offense” should be determined based on principles applied to determine whether it would violate double jeopardy if a new prosecution on 

the count were commenced after completion of the prosecution for a 

count charged in the original information.

20. Double Jeopardy. The Double Jeopardy Clauses of the U.S. and 

Nebraska Constitutions are coextensive and protect against three distinct 

abuses: (1) a second prosecution for the same offense after acquittal, 

(2) a second prosecution for the same offense after conviction, and (3) 

multiple punishments for the same offense.

21. Double Jeopardy: Statutes: Proof. Where the same act or transaction 

constitutes a violation of two distinct statutory provisions, the test to be 

applied to determine whether, for double jeopardy purposes, there are 

two offenses or only one, is whether each provision requires proof of a 

fact which the other does not.

22. Sentences. When imposing a sentence, a sentencing judge should consider 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, (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.

23. ____. The sentencing court is not limited to any mathematically applied 

set of factors, but the appropriateness of the sentence is necessarily a 

subjective judgment that includes the sentencing judge’s observations 
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of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.

Appeal from the District Court for Douglas County: Peter 

C. Bataillon, Judge. Affirmed.

Gregory A. Pivovar for appellant.

Michael T. Hilgers, Attorney General, and Teryn Blessin for 

appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Jordon J. Miller appeals his plea-based conviction and sentence in the district court for Douglas County for second 

degree murder. Miller generally claims that the district court 

erred when it overruled his motion to withdraw his plea, that 

his statutory right to a speedy trial was violated, and that the 

court imposed an excessive sentence. He also contends that he 

was provided ineffective assistance of trial counsel in various 

respects. We affirm Miller’s conviction and sentence.

STATEMENT OF FACTS

On May 6, 2020, the State filed an information charging 

Miller with one count of criminal conspiracy to promote or 

facilitate the commission of the felony of discharging a firearm 

at an occupied motor vehicle. The charge against Miller arose 

from an incident that occurred on March 9 after a codefendant 

fired shots from an address in Omaha, Nebraska, at a passing black Dodge Dart occupied by Jade Lea. Miller and other 

codefendants entered a black Jeep that had just pulled up to the 

address in a hurried fashion. The Jeep took off in pursuit of 

the Dart. After the Jeep caught up to the Dart, shots were fired 

from the Jeep toward the Dart. Lea suffered a gunshot wound, 

and he later died from the injury.
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Cite as 315 Neb. 951

On May 20, 2020, Miller filed a plea in abatement requesting dismissal of the information on the basis that the State 

adduced insufficient evidence at the preliminary hearing to 

show probable cause to support the charge. After a hearing, on 

September 24, the court overruled Miller’s plea in abatement. 

On November 30, Miller filed a motion for a bill of particulars, 

and the court overruled the motion on December 17.

The district court held a status hearing on January 29, 2021, 

to set the matter for a jury trial. At the hearing, the State’s 

attorney stated that he had taken “a look at our speedy trial 

clock” and noted “a number of motions by the defense,” 

specifically, the plea in abatement and the motion for a bill 

of particulars. The State’s attorney asserted that his calculations showed that “we have about two and a half months 

left of speedy trial.” The State’s attorney stated that he had 

not “looked at that number exactly” and that it was a “rough 

calculation.” The State’s attorney then noted that although 

the current information charged only a criminal conspiracy, 

“[t]he State has the intention to file murder in the first degree 

and use charges,” and the State’s attorney therefore estimated 

that it would “take about a week to try this case” as a first 

degree murder.

In response, Miller’s counsel stated that “given the State’s 

intention to amend the information” from a conspiracy charge 

to premeditated murder and firearm charges, it was premature 

to schedule the case for trial. Miler’s counsel stated that if the 

State amended the information, Miller intended to request a 

preliminary hearing, as well as file pretrial motions and conduct additional discovery related to the new charges in the 

amended information. Miller’s counsel noted that there would 

likely be new discovery materials related to potential testimony of alleged coconspirators and that the “defense would 

need to analyze and investigate those materials.”

The district court responded that “the clock’s still running” 

and that “we’ve got to have a trial.” The court therefore 
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Cite as 315 Neb. 951

stated that it would set a jury trial for April 5, 2021. Miller’s 

counsel inquired whether the court was setting a trial on the 

current information rather than on the expected amended 

information. The court stated that it was “setting this for trial 

whatever it may be” and that “even if [the State] files an 

amended information putting it at first degree murder, if there 

are no motions thereafter the clock still runs.” Miller’s counsel asked whether the court would be “willing to entertain 

defense motions that relate to pretrial litigation as well as the 

likely need to continue the April 5th trial date” in the event 

the State filed an amended information. The court stated that 

if Miller “want[ed] to file some type of motion,” the court 

would change the trial date but that “until a motion is filed, 

it’s set for trial April 5th.” The hearing concluded, and the 

court filed an order setting a jury trial for April 5.

The State filed an amended information on February 26, 

2021. The State again charged the count of criminal conspiracy 

and added charges of first degree murder based on a theory of 

deliberate and premeditated malice, discharging a firearm at 

an occupied motor vehicle, and two counts of use of a deadly 

weapon (firearm) to commit a felony.

The court held a preliminary hearing on the amended 

information on April 1, 2021. In support of the amended 

information, the State presented testimony by a detective who 

had investigated the shooting of Lea, which testimony supplemented testimony the detective had provided in support of the 

original information. Regarding the new charges, the detective testified that investigators had obtained video surveillance related to the incident, including video from the address 

where Miller and his codefendants entered the Jeep and video 

from the address where shots were fired from the Jeep at the 

Dart. The detective testified that the videos showed that when 

Miller and his codefendants entered the Jeep, “Miller entered 

into the rear passenger seat behind the driver,” and that when, 

less than 10 minutes later, shots were fired from the Jeep at 

the Dart, the shooter’s position in the Jeep was “the driver’s 
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side rear passenger.” The detective further testified that she 

had interviewed one of Miller’s codefendants, Trevian Harris, 

who identified Miller as the shooter. Harris told her that he 

had given a gun to Miller and that “Miller then came out of 

the window” and “up over the vehicle and fired at what ended 

up being . . . Lea.”

At the conclusion of the April 1, 2021, preliminary hearing, the court ruled that probable cause was shown for each 

count in the amended information, and it therefore stated that 

the matter should be bound over for further hearings or for 

trial. Miller’s counsel then made an oral motion to continue 

the trial from the previously set date of April 5 “based on the 

volume of materials that we received in this case and the circumstances surrounding the limitations that Douglas County 

Corrections has placed on attorneys in terms of communication directly with clients, sharing media directly with clients, 

and the restrictions that have impeded that.” Miller’s counsel 

stated that the first available date that had been given that 

would allow sufficient time to prepare was October 25. The 

court questioned Miller’s counsel and then addressed Miller 

directly and asked whether it was his request to continue the 

trial until October 25. Miller replied that it was. The court 

then asked Miller whether he understood that “this will take 

the trial period out of the six-month period for a speedy public trial,” and Miller replied that he did. Miller also stated in 

response to questioning by the court that no one was forcing 

or coercing him to request a continuance and that he believed 

the continuance was in his best interests. The court granted 

Miller’s request and continued the trial to October 25.

At a hearing on October 19, 2021, the parties announced 

that a plea agreement had been reached pursuant to which 

the State would file an amended information charging Miller 

with one count of second degree murder and Miller would 

plead no contest to that charge. Prior to accepting Miller’s 

plea, the court engaged in a colloquy with Miller regarding 

his understanding of his constitutional rights. Miller generally 
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STATE V. MILLER

Cite as 315 Neb. 951

indicated that he understood his rights and the nature of 

the plea and that he wished to enter a plea of no contest. 

However, after Miller responded affirmatively that he had 

sufficient time to discuss the plea and his available defenses 

with his attorney, the court asked Miller whether he was satisfied with his attorney and whether he believed that his attorney had properly represented him throughout the case. Miller 

responded, “No.” When the court asked Miller the reason 

for his response, Miller stated, “Because I haven’t seen any 

of my discovery,” and he specifically stated that he had not 

seen the videos or “any statements made against” him. Miller 

stated that “this stuff is coming fast” and that he was “really 

getting rushed.” The court then told Miller that he did not 

have to enter a plea that day, but “[i]f you don’t enter a plea 

to the amended charge, the State of Nebraska can withdraw 

the plea agreement and you would be proceeding to trial on 

the original charges.” The court asked Miller what he wanted 

to do, and Miller stated he wanted to “[p]lead no contest.” 

Miller indicated in response to questioning by the court that 

no one was forcing or coercing him to enter the plea and that 

it was his voluntary act.

The plea hearing continued with the State’s presentation of 

a factual basis for the plea to second degree murder. After the 

factual basis had been presented, the court again asked Miller 

how he wanted to plead, and Miller replied, “Not guilty.” The 

court responded that the plea of not guilty would conclude 

the hearing and that “[w]e will proceed then with the trial on 

Monday then.” The State’s attorney stated that the amended 

information charging only second degree murder would be 

withdrawn and that the State would add a new charge of possession of a weapon by a prohibited person to the charges in 

the first amended information.

Miller’s counsel asked for and was granted a 5-minute 

recess to speak with Miller outside the courtroom. After the 

recess, Miller’s counsel stated Miller now wished to plead 

no contest to the agreed-upon amended information charging 
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STATE V. MILLER

Cite as 315 Neb. 951

second degree murder. The State stated that it was willing 

to proceed with the plea agreement. The court asked Miller 

whether he wished to withdraw his plea of not guilty, and 

Miller responded that he did. The court stated to Miller that if 

he entered a plea of no contest, the court would find him guilty 

of the charge, but that if he did not enter a plea of no contest, 

the court would “enter a plea of not guilty, . . . set this matter 

for a jury trial, [and] start the jury trial on Monday,” with the 

plea agreement being withdrawn. The court then asked Miller 

how he plead to the amended charge of second degree murder, 

and Miller responded, “No contest.” The court then stated its 

findings, including that Miller’s “plea was made freely, knowingly and voluntarily” and that there was a factual basis for 

the plea. The court accepted the plea and found Miller guilty 

of the charge of second degree murder.

On November 1, 2021, Miller filed a pro se motion to 

withdraw his plea. A hearing was held on December 7 to consider the motion and Miller’s motion to appoint new counsel. 

Miller’s counsel appeared at the hearing and stated that he 

and Miller had discussed the motions and the potential legal 

risks of proceeding with the motions, but that Miller had 

advised counsel that he wished to proceed with the motions 

and to do so pro se. Miller’s counsel noted for the record that 

he did not believe that it was in Miller’s best interests to proceed with the motions.

The court then addressed Miller and asked him why he 

should be allowed to withdraw his plea. Miller responded by 

stating, as he had stated at the October 19, 2021, plea hearing, that he had not been allowed to examine the discovery 

evidence, including videos and statements made against him. 

Miller stated that at the time of the October 19 hearing, he did 

not know that it was his right to examine the discovery evidence. The court asked Miller whether it would not be more 

prudent for Miller to examine the discovery evidence before 

he moved to withdraw his plea; the court explained that if 

Miller withdrew his plea but later reviewed the evidence and 
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Cite as 315 Neb. 951

decided it would be better to plead to the amended charge 

of second degree murder, the State might not agree and 

instead decide to go to trial on the various charges in the first 

amended information. Miller generally replied that he could 

not trust his counsel to provide the discovery evidence for 

Miller to review.

The court engaged with Miller’s counsel regarding the extent 

of the discovery evidence Miller would need to review and the 

time it would take for Miller to review it personally. During 

this discussion, Miller’s counsel noted “barriers” that had been 

put into place by the correctional facility “since approximately 

March of 2020” in response to the COVID-19 pandemic and 

that such barriers made it difficult for attorneys to convey 

materials to clients in custody. The court brought the State’s 

attorney into further discussion of this issue.

The court addressed Miller and stated that he had a choice 

to proceed with his motion to withdraw his plea that day but 

that the court strongly suggested that Miller choose to wait 

until he had a chance to review the discovery evidence before 

deciding whether to proceed with the motion. Miller stated 

that he wished to continue consideration of his motion to 

a later date. After further discussion with Miller’s counsel, 

the court ordered the motion continued until the next month 

with the understanding that counsel would remain and assist 

Miller’s review of the discovery evidence.

The court thereafter granted continuances of Miller’s sentencing to allow Miller to review the discovery evidence. 

At a hearing on March 28, 2022, Miller’s counsel informed 

the court that he and Miller had proceeded with, but not 

yet completed, Miller’s review of the discovery evidence. 

Miller’s counsel also informed the court that Miller wished to 

withdraw his motion for appointment of new counsel and for 

counsel to prepare an amended motion to withdraw his plea. 

The court granted Miller leave to amend the motion to withdraw his plea.
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STATE V. MILLER

Cite as 315 Neb. 951

On July 7, 2022, Miller filed an amended motion to withdraw plea prepared by counsel. In the amended motion, Miller 

asserted two bases for withdrawal of the plea: (1) The correctional facility’s COVID-19 protocols had prevented Miller 

from personally reviewing the discovery evidence and from 

adequately preparing for trial, and (2) the prosecution failed 

to disclose to Miller that it had reached a plea agreement with 

one of his codefendants, Harris, and that it intended to have 

Harris testify against Miller.

At a hearing on the amended motion held on August 1, 

2022, in addition to presenting other evidence in support of 

the motion, Miller personally addressed the court to explain 

why he entered the plea. Miller stated that on the day he 

entered his plea he did not want to enter a plea because he 

had not been able to review the discovery evidence. However, 

Miller stated, after he raised that issue to the court in the 

hearing, the court told him he “had probably about six days 

until [he] had to be to trial” and he “knew that wasn’t enough 

time.” Miller thought “it would be stupid . . . to go into this 

trial” without having reviewed the discovery evidence, but 

he knew that the discovery evidence was extensive and that 

“there was no way for [him] to get through it.” Miller stated 

that now that he had reviewed the discovery evidence, it was 

clear that there was “evidence that proves [his] innocence” 

and that it was evidence he had never been able to see before 

he entered his plea because of the COVID-19 restrictions that 

were in place. Miller stated that the only reason he entered a 

plea of no contest was because, after taking the recess with 

his counsel at the October 19, 2021, hearing, he felt it was the 

only thing he could do “because it wouldn’t have been smart 

for [him] to go to trial in five or six days when the county jail 

still at that time was shut down” and he could not “come in 

contact with [counsel] to go over these things.”

After the hearing, on October 21, 2022, the court entered 

an order overruling Miller’s amended motion to withdraw 

his plea. The court found that Miller freely, knowingly, and 
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voluntarily entered his plea of no contest to second degree 

murder. The court reviewed the terms of the plea agreement, 

which included the State’s dismissal of several charges. The 

court determined that Miller’s “reasons for withdrawing his 

plea of no contest [did] not rise to the level of granting his 

request.” The court reasoned that Miller “knew what the circumstances of this crime were as his [sic] was in the vehicle 

from which the shots came, which killed the victim in this 

matter, and he is alleged to be the shooter.”

Thereafter, the court granted Miller’s counsel’s motion to 

withdraw as counsel, and Miller’s new counsel entered an 

appearance. Miller’s new counsel moved for continuance of 

Miller’s sentencing, and the court continued sentencing to 

January 17, 2023. On that day, Miller’s new counsel filed a 

second amended motion to withdraw the plea. In the second 

amended motion, Miller resubmitted the arguments from his 

first amended motion. Miller added allegations that during 

the recess at the October 19, 2021, plea hearing, his original 

counsel advised him that if he proceeded to trial, he would be 

found guilty of all the charges in the first amended information and the additional charge then being offered by the State. 

Miller further alleged that his counsel told him he would 

be sentenced to a mandatory life sentence without the possibility of parole. Miller continued, saying that the reason he 

would receive a life sentence was because his counsel was 

not prepared to go to trial and could not adequately prepare 

for trial in 6 days and that therefore, Miller would be found 

guilty. Miller stated that these facts were not presented by his 

original counsel when his original counsel argued his first 

amended motion to withdraw plea to the court on August 

1, 2022.

As noted, the court heard Miller’s second amended motion 

to withdraw plea at the sentencing hearing on January 17, 

2023. Miller’s new counsel stated, inter alia, that after the 

hearing on Miller’s pro se motion to withdraw plea, Miller’s 

original counsel had shown Miller some, but not all, of the 
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evidence. Miller’s new counsel stated that the small amount of 

discovery evidence Miller saw was enough for him to ask original counsel to file the first amended motion to withdraw plea. 

Miller’s new counsel asserted that to date, Miller had “seen 

a smattering of the evidence, [and] he has determined from 

the smattering that he has a defense, a viable defense in this 

case.” In response, the State argued in part that Miller’s claims 

regarding ineffective assistance of original counsel seemed 

“more appropriately placed in a motion for postconviction 

relief” than in a motion to withdraw his plea.

After hearing further argument, the court overruled Miller’s 

second amended motion to withdraw his plea. Before making 

its ruling, the court first noted the felony charges that were 

dismissed by the State pursuant to the plea agreement and the 

potential sentences Miller might have received if convicted 

of those charges. The court also noted the colloquy in which 

it had engaged with Miller at the plea hearing to determine 

whether Miller was freely, knowingly, and voluntarily entering his plea. The court stated that it did not know of “any 

rule that the defendant has to review all the discovery” and 

stated that instead it was “the responsibility of the attorney.” 

The court stated that the facts as presented by the State in its 

factual basis to support the plea to second degree murder were 

not complicated. The court stated that it needed “to rely upon 

the statements by the defendants when they enter their pleas” 

and that Miller either “did or he didn’t do it,” that “he was in 

the car or he wasn’t in the car,” and that “either he shot the 

person or he didn’t shoot the person.” Based on this reasoning, 

the court concluded that Miller’s second amended motion to 

withdraw his plea should be overruled.

Having overruled Miller’s motion to withdraw his plea, 

the court proceeded to sentencing Miller for second degree 

murder. Miller’s counsel stated that because Miller was maintaining that he had a defense and should be allowed to withdraw his plea, Miller’s ability to argue regarding sentencing 

was “kind of handcuffed.” However, Miller’s counsel argued 
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that the court should consider Miller’s “horrible youth” and 

Miller’s limited criminal history as an adult. Miller’s counsel 

also stated that Miller was sorry that the events underlying this case had occurred but also noted that Miller had to 

walk an “ethical tightrope” between showing he was taking 

responsibility for his action but not admitting responsibility 

for crime charged. Miller also spoke to the court and stated 

that he was “sorry something like this happened.”

In response, the State noted Miller’s criminal history, 

including his juvenile history, and it noted that Miller’s earlier 

felony conviction as an adult also involved a shooting. The 

State encouraged the court to consider victim impact statements submitted by Lea’s family and the results of testing 

performed by probation.

After hearing arguments from Miller and the State, the court 

expressed condolences to the victim’s family and generally 

commented on the social implications of violence such as that 

involved in the present case. The court stated that based on 

the evidence in this case, “this is a very serious matter,” and 

that it therefore would sentence Miller to imprisonment for 65 

years to life.

Miller appeals his conviction and sentence.

ASSIGNMENTS OF ERROR

Miller claims that the district court erred when it overruled 

his second amended motion to withdraw his plea. Related to 

this claim, Miller claims that the State’s failure to allow him 

to personally review the discovery evidence constituted prosecutorial misconduct. He further claims that the district court 

abused its discretion when it forced him to enter his plea at 

the October 19, 2021, hearing by threatening that he would 

have to go to trial in 6 days without having personally seen 

the discovery evidence. Miller also claims that his statutory 

right to a speedy trial was violated and that the district court 

imposed an excessive sentence. Miller further claims that his 

original counsel provided ineffective assistance when such 
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counsel (1) failed to request a continuance of the October 

19, 2021, plea hearing to allow him to share the discovery 

evidence with Miller and prepare a defense; (2) recommended 

that Miller plead no contest to second degree murder when 

Miller had not personally reviewed the discovery evidence; 

(3) failed to fully comply with the district court’s order to 

share all the discovery evidence with Miller; and (4) failed 

to calculate the statutory time for speedy trial and to bring a 

timely motion for absolute discharge on speedy trial grounds.

STANDARDS OF REVIEW

[1,2] A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas before sentencing. State v. 

Warner, 312 Neb. 116, 977 N.W.2d 904 (2022). An appellate 

court will not disturb the trial court’s ruling on a presentencing 

motion to withdraw a guilty or no contest plea absent an abuse 

of discretion. Id.

[3,4] 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. State v. Warner, supra. In reviewing a claim of ineffective assistance of trial counsel on direct 

appeal, an appellate court determines as a matter of law 

whether the record conclusively shows that (1) a defense 

counsel’s performance was deficient or (2) a defendant was 

or was not prejudiced by a defense counsel’s alleged deficient 

performance. Id.

[5,6] A sentence imposed within statutory limits will not be 

disturbed on appeal absent an abuse of discretion by the trial 

court. State v. Earnest, ante p. 527, 997 N.W.2d 589 (2023). 

An abuse of discretion takes place when the sentencing court’s 

reasons or rulings are clearly untenable and unfairly deprive a 

litigant of a substantial right and a just result. Id.
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ANALYSIS

District Did Not Abuse Its Discretion 

When It Overruled Miller’s Motion 

to Withdraw His Plea.

Miller first claims that the district court erred when it overruled his second amended motion to withdraw his plea. In 

the absence of evidence of attorney-client communications 

and the theory of Miller’s alleged defense, we conclude that 

based on the record before it, the district court did not abuse 

its discretion.

Miller claims that the State’s failure to allow him to personally review the discovery evidence constituted prosecutorial 

misconduct and that this contributed to the district court’s 

alleged abuse of discretion when the court forced him to enter 

his plea at the October 19, 2021, hearing by threatening that he 

would have to go to trial in 6 days without having personally 

seen the discovery evidence. Miller’s claim of prosecutorial 

misconduct in the nature of limiting his access to investigative materials was not explicitly presented to or ruled on by 

the district court. We therefore do not consider it as a separate 

claim of error, but, instead, we read it as part of Miller’s claim 

that he should have been allowed to withdraw his plea and we 

analyze it in that context.

Concerning the withdrawal of plea, Miller claims that the 

district court forced him to enter his plea when it threatened 

him that he would go to trial the next week. We do not read 

the district court’s comments at the plea hearing as threats; 

rather, it was stating the consequences of Miller’s decision to 

plead or not to plead. The validity of Miller’s plea is considered below in connection with the district court’s consideration of whether Miller had a fair and just reason to withdraw 

the plea.

[7,8] The right to withdraw a plea previously entered is 

not absolute. State v. Warner, 312 Neb. 116, 977 N.W.2d 904 

(2022). When a defendant moves to withdraw his or her plea 

before sentencing, a court, in its discretion, may sustain the 
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motion for any fair and just reason, provided that such withdrawal would not substantially prejudice the prosecution. Id. 

The defendant has the burden to show the grounds for withdrawal by clear and convincing evidence. Id.

Miller filed three motions to withdraw his plea: a pro 

se motion, a first amended motion prepared by his original 

trial counsel, and a second amended motion prepared by his 

replacement counsel. The district court granted Miller’s request 

to continue consideration of his pro se motion, and the court 

overruled the first amended motion. Miller’s assignment of 

error on appeal relates to the second amended motion, which 

the court also overruled.

The reasons for withdrawal that Miller asserted in support of 

the second amended motion repeated reasons he had asserted 

in his earlier motions to the effect that he had not been able to 

personally review the discovery evidence before he entered his 

plea. Additionally, Miller asserted that he should be allowed 

to withdraw his plea because he had entered the plea based 

on deficient advice given to him by his original counsel and 

that after having personally reviewed some, but not all, of 

the evidence, he had determined that he had a viable defense 

and that therefore, his original counsel’s advice was not in his 

best interests.

When it overruled Miller’s second amended motion, the 

district court generally repeated the reasoning it had given 

when it overruled his first amended motion. The court noted 

the benefit Miller received because of the plea agreement, and 

it also noted its colloquy with Miller at the plea hearing, which 

convinced the court that he was freely, knowingly, and voluntarily entering his plea. The court stated that when accepting 

Miller’s plea, it had to rely on the factual basis presented by 

the State and that it had to rely on Miller’s statements at the 

plea hearing because Miller would have personal knowledge of 

whether the asserted factual basis was accurate.

Miller’s stated reasons for withdrawing his plea were supported only by his own allegations. Without knowing the 
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contents of Miller’s communications with his original counsel, 

the evidence that Miller alleged would provide him a defense, 

or the specific defense Miller alleged he could assert, the 

district court could not assess whether that purported defense 

provided a fair and just reason to allow Miller to withdraw 

his plea. Therefore, the court properly focused on the benefit 

of the plea and Miller’s representations when he made his 

plea. On appeal, the record does not provide us with any more 

information regarding the alleged defense than that which was 

before the district court.

[9] Without a record to support Miller’s assertions that his 

original counsel’s advice to enter a plea was not in Miller’s 

best interests and that he had a viable defense, we can only 

read Miller’s asserted reason to withdraw his plea as being 

that he changed his mind about the plea. We have held that “a 

defendant’s change of mind alone is not a fair and just reason 

to withdraw a guilty or no contest plea,” and we reasoned that 

“[i]f second thoughts alone could constitute a fair and just 

reason to withdraw a plea, the requirement that a defendant 

demonstrate a fair and just reason before being permitted to 

withdraw a plea would be rendered completely hollow.” State 

v. Warner, 312 Neb. 116, 126, 977 N.W.2d 904, 912 (2022). 

Without more than Miller’s bare assertion that he had a viable 

defense, Miller has not demonstrated a fair and just reason to 

withdraw his plea.

We conclude that based on the record before it, the district 

court did not abuse its discretion when it overruled Miller’s 

second amended motion to withdraw his plea. We reject this 

assignment of error.

Miller’s Claims of Ineffective Assistance of 

Counsel Related to Entry of Plea Cannot 

Be Reviewed on Direct Appeal.

Miller makes four claims of ineffective assistance of counsel, three of which relate to the entry of his plea and withdrawal of the plea that we consider in this section of our 
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analysis. These include claims that his original counsel provided ineffective assistance when such counsel (1) failed to 

request a continuance of the October 19, 2021, plea hearing 

to allow him to share the discovery evidence with Miller and 

prepare a defense; (2) recommended that Miller plead no 

contest to second degree murder when Miller had not personally reviewed the discovery evidence; and (3) failed to fully 

comply with the district court’s order to share all the discovery 

evidence with Miller. We conclude that the record on direct 

appeal is not sufficient to review these claims of ineffective 

assistance of counsel.

[10] On direct appeal, Miller has new counsel who is neither his original trial counsel nor the replacement counsel who 

represented Miller in connection with the second amended 

motion to withdraw his plea and at sentencing. 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; otherwise, the issue will be procedurally barred in a subsequent 

postconviction proceeding. State v. Dap, ante p. 466, 997 

N.W.2d 363 (2023).

[11,12] An ineffective assistance of counsel claim is raised 

on direct appeal when the claim alleges deficient performance 

with enough particularity for (1) an appellate court to make 

a determination of whether the claim can be decided upon 

the trial record and (2) a district court later reviewing a petition for postconviction relief to recognize whether the claim 

was brought before the appellate court. Id. When a claim of 

ineffective assistance of counsel is raised in a direct appeal, 

the appellant is not required to allege prejudice; however, an 

appellant must make specific allegations of the conduct that 

he or she claims constitutes deficient performance by trial 

counsel. Id.

[13] Once raised, an appellate court will determine whether 

the record on appeal is sufficient to review the merits of the 
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ineffective performance claims. 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 

as a matter of law, or that trial counsel’s actions could not be 

justified as a part of any plausible trial strategy. Id.

[14-16] 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 the defendant’s defense. 

State v. Dap, supra. To show that counsel’s performance was 

deficient, the defendant must show counsel’s performance did 

not equal that of a lawyer with ordinary training and skill in 

criminal law. Id. To show prejudice from counsel’s deficient 

performance, the defendant must demonstrate a reasonable 

probability that but for counsel’s deficient performance, the 

result of the proceeding would have been different. Id.

[17,18] When a conviction is based upon a plea of no contest, 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 

no contest. State v. Thomas, 311 Neb. 989, 977 N.W.2d 258 

(2022). The viability of any defense goes to the likelihood of 

whether a rational defendant would have insisted on going to 

trial. State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022).

Applying these standards to Miller’s three claims related 

to the entry of his plea, we determine that the record on 

direct appeal is not sufficient to review these claims. Each 

of the claims involves counsel’s advice, actions, or lack of 

action relating to the entry of the plea and counsel’s alleged 

failure to advise Miller accurately or completely regarding 

the evidence against him. The record on direct appeal does 

not contain evidence of the conversations between Miller 

and his counsel, nor does it contain the evidence that Miller 

asserts would have been helpful to his defense. Without such 
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evidence, the record does not inform us regarding the reasoning behind counsel’s advice to Miller or counsel’s actions or 

lack of action regarding the plea. The record also does not 

establish the evidence Miller asserts would have provided 

him a defense and therefore does not allow us to assess the 

viability of such defense and whether it provides a reasonable 

probability that Miller would have insisted on going to trial 

rather than entering the plea.

We cannot conclusively determine on this record whether 

counsel provided deficient performance or whether Miller was 

prejudiced by the alleged deficient performance, and therefore, 

the record is insufficient to review these claims of ineffective 

assistance of counsel on direct appeal.

Miller’s Claim That Trial Counsel Provided Ineffective 

Assistance When Counsel Failed to Move for 

Absolute Discharge on Speedy Trial Grounds 

Cannot Be Reviewed in Its Entirety 

on Direct Appeal.

Miller’s fourth claim of ineffective assistance of counsel 

asserts that his original counsel provided ineffective assistance 

when counsel failed to calculate the statutory time for speedy 

trial and to bring a timely motion for absolute discharge on 

speedy trial grounds. We conclude that the record on direct 

appeal is not sufficient to review the entirety of this claim 

but that the record shows that Miller cannot show deficient 

performance regarding certain counts that were not subject to 

discharge on speedy trial grounds.

In addition to the claim of ineffective assistance of counsel 

related to speedy trial, Miller separately claims that “speedy 

trial was violated.” He does not and cannot claim that the district court erred with respect to a speedy trial ruling because 

no motion for absolute discharge on speedy trial grounds was 

filed. We cannot find error on an issue that was not presented 

to or ruled on by the district court, and therefore, we do not 

consider this separate claim that “speedy trial was violated.” 
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However, because he has new counsel on appeal, Miller 

can claim ineffective assistance of original trial counsel for 

alleged failure to present the issue to the district court, and 

we therefore consider the speedy trial issue in the context of 

Miller’s claim of ineffective assistance of counsel.

Regarding speedy trial, Miller argues that under the 6-month 

speedy trial statute, Neb. Rev. Stat. § 29-1207 (Reissue 2016), 

the last day that he should have been brought to trial was 

March 25, 2021. Miller calculates this date by starting with 

May 5, 2020, which he asserts was the date the original information was filed. We note for completeness that the original information charging Miller with one count of criminal 

conspiracy was filed on May 6, 2020. Miller contends that, 

without any time being excluded, the last day to bring him 

to trial would have been November 5, 2020. Miller concedes 

that two periods should be excluded: (1) the period from May 

20, when he filed his plea in abatement, until September 24, 

when the court denied his plea in abatement, a total of 123 

days; and (2) the period from November 30, when he filed his 

motion for a bill of particulars, until December 17, when the 

court overruled the motion, a total of 17 days. Miller contends 

that adding the total of 140 days to the 6-month period ending November 5, 2020, results in a last date for trial of the 

original conspiracy charge on March 25, 2021. Miller does 

not refer to the significance of the amended information filed 

February 26, 2021.

Miller claims that he received ineffective assistance of 

counsel because, inter alia, his trial counsel “did not examine 

the issue of speedy trial and bring a motion fo[r] dismissal on 

[s]peedy trial grounds.” Miller generally argues that counsel 

should not have simply accepted the State’s calculation at the 

January 29, 2021, pretrial hearing that there were still “about 

two and a half months” left on the speedy trial clock. Miller 

contends that counsel should have done an independent calculation and that had he done so, he would have realized that 

the time for trial would have run prior to the April 5 date 
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that the court set for trial at that hearing. He also asserts that 

counsel should have filed a motion for absolute discharge at 

or prior to the April 1 hearing rather than asking for a continuance. We observe that, insofar as they relate to the original 

information charging conspiracy, the record is consistent with 

the dates Miller used in his calculation of the speedy trial 

period, including the two excludable periods he identified and 

concedes extended the time for trial.

The State does not directly challenge the March 25, 2021, 

end date asserted by Miller and instead argues that the record 

refutes Miller’s claim related to speedy trial because Miller 

waived his right to speedy trial at the April 1, 2021, hearing. 

The State notes that at that hearing, after the court found probable cause for the new charges added by the State in the first 

amended information, Miller’s counsel requested, and the court 

granted, a continuance from the April 5 date to October 25 to 

allow Miller to prepare a defense to the new charges. The State 

cites § 29-1207(4)(b), which provides in part: “A defendant is 

deemed to have waived his or her right to speedy trial when 

the period of delay resulting from a continuance granted at the 

request of the defendant or his or her counsel extends the trial 

date beyond the statutory six-month period.” The State also 

cites our decision in State v. Mortensen, 287 Neb. 158, 165, 

841 N.W.2d 393, 400 (2014), in which we stated that under 

§ 29-1207(4)(b), “if a defendant requests a continuance that 

moves a trial date which has been set within the statutory 

6-month period to a date that is outside the 6-month period, 

that request constitutes a permanent waiver of the statutory 

speedy trial right.” (Emphasis supplied.)

As noted, the State’s argument does not appear to address 

the circumstance that at the January 29, 2021, hearing, the 

court set a trial date for April 5, which, assuming Miller’s 

calculation of March 25 as the last date for trial is correct, 

was beyond the statutory 6-month period. If Miller’s calculation is correct, his request for a continuance at the April 1 

hearing was a request to move a trial date already outside the 
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6-month period to a later date outside the 6-month period. 

Furthermore, the State’s argument does not explicitly address 

Miller’s claim that counsel was ineffective for failing to 

calculate the speedy trial period and failing to file a timely 

motion for absolute discharge, which under Miller’s calculation should have been filed prior to the April 1 hearing at 

which he requested the continuance.

However, we note that the speedy trial calculation in this 

case requires a determination of whether the same speedy trial 

clock applies to each, some, or all of the charges in the operative information. Miller’s calculation of the speedy trial period 

begins simply with the filing of the May 6, 2020, original 

information and calculates the last day for trial as being March 

25, 2021. The only charge that was set forth in the May 6, 

2020, information was the conspiracy to discharge a firearm 

charge. On February 26, 2021, the State filed an amended 

information in which it alleged conspiracy and added charges 

of first degree murder, discharging a firearm at an occupied 

motor vehicle, and two counts of use of a deadly weapon (firearm) to commit a felony. Resolution of the speedy trial issue 

requires a determination of whether a new speedy trial clock 

began for the new charges when the State added those charges 

in the amended information. See, State v. Hettle, 288 Neb. 288, 

848 N.W.2d 582 (2014); State v. Gibilisco, 279 Neb. 308, 778 

N.W.2d 106 (2010).

In State v. Hettle, supra, we addressed the application of the 

speedy trial statute under circumstances where, as in the present case, an amended information adds new charges but also 

includes charges from the original information. We cited and 

agreed with the reasoning of cases from other jurisdictions to 

state the proposition that “the original and new charges run on 

different speedy trial clocks, so long as the ‘new’ charge was 

not one required to be joined with the original charges under 

double jeopardy principles,” and that the “original charges 

continue with the same speedy trial clock, while the new 
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charges begin with their own new speedy trial clock.” State v. 

Hettle, 288 Neb. at 297, 298, 848 N.W.2d at 591-92.

We elaborated on the reasoning for this proposition as being 

that “as to the charges the government is not required to join 

with the offenses previously charged, the government could 

easily obtain a ‘fresh speedy trial clock’ by simply waiting 

until completion of the prosecution for the original charges 

and beginning a new prosecution of the additional charges.” 

Id. at 298, 848 N.W.2d at 592. We further reasoned that 

there was

“no logical basis for concluding that, when the government chooses to add[,] in a superseding indictment[,] 

charges that it is not required to join with the charges 

contained in the original indictment, it must bring the 

defendant to trial on the added charges within the time 

period remaining on the speedy trial clock applicable to 

the charges contained in the original indictment.”

Id. (quoting U.S. v. Alford, 142 F.3d 825 (5th Cir. 1998)).

We note that the cases we relied on in Hettle were largely 

federal cases that were applying the federal speedy trial statute 

and that were informed by federal statutes regarding joinder 

in criminal cases. Nebraska’s statutes regarding speedy trial 

and joinder differ from their federal counterparts. While the 

federal cases speak in terms of an “original indictment” and 

a “superseding indictment,” under Nebraska law it would be 

more proper to refer to counts in the original information and 

counts added to an amended information.

[19] Nevertheless, in Hettle, we applied the reasoning from 

the federal cases to our speedy trial statute, § 29-1207, which 

generally provides that a “person indicted or informed against 

for any offense shall be brought to trial within six months” 

and that the “six-month period shall commence to run from 

the date the indictment is returned or the information filed.” 

When an amended information is filed, the relevant question for statutory speedy trial purposes is whether any count 

charged in the amended information is the same “offense” 
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charged in the original information (and therefore whether 

the speedy trial clock should run from the filing of the original information) or whether it is a new “offense” charged 

for the first time in the amended information (and therefore 

whether the speedy trial clock should run from the filing of 

the amended information). The reasoning we adopted in Hettle 

was that the question whether a count in an amended information is a new “offense” should be determined based on principles we apply to determine whether it would violate double 

jeopardy if a new prosecution on the count were commenced 

after completion of the prosecution for a count charged in the 

original information.

The reasoning set forth in Hettle guides the procedure that 

we use to determine in this case whether the new charges 

added in the amended information are subject to the speedy 

trial clock of the original information or to a new speedy 

trial clock based on the filing of the amended information. 

Because our reasoning in Hettle focuses on double jeopardy 

principles, particularly those principles related to a subsequent 

prosecution, we apply relevant double jeopardy principles to 

determine that question.

[20] We have recognized that the Double Jeopardy Clauses 

of the U.S. and Nebraska Constitutions are coextensive and 

protect against three distinct abuses: (1) a second prosecution 

for the same offense after acquittal, (2) a second prosecution 

for the same offense after conviction, and (3) multiple punishments for the same offense. State v. Lewis, 313 Neb. 879, 

986 N.W.2d 739 (2023). In certain cases, new counts are not 

the “same offense” for speedy trial purposes because they 

arose from different incidents that occurred on different dates 

from the counts alleged in the original information. See State 

v. Gibilisco, 279 Neb. 308, 778 N.W.2d 106 (2010) (noting 

that additional first degree sexual assault counts contained 

in amended information, which State alleged occurred during same timeframe and against same victim as was alleged 

in original information, nevertheless constituted separate and 
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distinct crimes and required State to present different evidence to prove each crime, so speedy trial clock restarted 

upon filing of amended information).

[21] In the instant case, however, the four counts added in 

the amended information were related to the same incident or 

were committed simultaneously with the conspiracy alleged in 

the original information. In Blockburger v. United States, 284 

U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), the U.S. 

Supreme Court held that “where the same act or transaction 

constitutes a violation of two distinct statutory provisions, the 

test to be applied to determine whether there are two offenses 

or only one, is whether each provision requires proof of a fact 

which the other does not.” See, State v. Lewis, supra; State v. 

Smith, 294 Neb. 311, 883 N.W.2d 299 (2016). The question in 

this case is whether, as to each of the new counts added in the 

amended information, criminal conspiracy and the new charge 

each require proof of a fact which the other does not.

The State initially charged Miller on May 6, 2020, with 

criminal conspiracy to commit the felony of discharging a 

firearm at an occupied motor vehicle. Conspiracy was charged 

as a violation of Neb. Rev. Stat. § 28-202 (Cum. Supp. 2022), 

which provides in part:

(1) A person shall be guilty of criminal conspiracy if, 

with intent to promote or facilitate the commission of 

a felony:

(a) He agrees with one or more persons that they or one 

or more of them shall engage in or solicit the conduct or 

shall cause or solicit the result specified by the definition 

of the offense; and

(b) He or another person with whom he conspired commits an overt act in pursuance of the conspiracy.

In the amended information filed on February 26, 2021, the 

State added a charge of first degree murder, a charge of discharging a firearm at an occupied motor vehicle, and two 

charges of use of a deadly weapon (firearm) to commit a 

felony, one related to each of the new charges.
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Criminal conspiracy requires proof of an agreement with 

one or more persons to engage in the commission of a felony 

and an overt act in furtherance of the conspiracy. None of the 

new charges added in the amended information requires an 

agreement with another person or persons, and therefore, criminal conspiracy requires proof of a fact or element that each 

of the new charges does not. Also, each of the new charges 

requires proof of facts or elements beyond the requirement in 

a conspiracy of committing an overt act toward the commission of a felony. A conviction for the substantive offense of 

discharging a firearm at an occupied motor vehicle requires 

proof that the defendant discharged the firearm, while criminal 

conspiracy to commit that offense requires only proof of an 

overt act toward commission of that offense. Similarly, first 

degree murder requires proof of killing a person with deliberate and premeditated malice, which are facts not required to 

prove criminal conspiracy.

Regarding the two counts of use of a deadly weapon, we 

have stated that “the Blockburger test does not apply when 

there is clear legislative intent regarding whether conduct 

involves a single offense or multiple offenses.” State v. Ballew, 

291 Neb. 577, 590, 867 N.W.2d 571, 582 (2015) (noting 

Blockburger test is aid to statutory interpretation and is not 

controlling where there is clear indication of legislative intent). 

We have held that because Neb. Rev. Stat. § 28-1205 (Reissue 

2016) provides that use of a weapon to commit a felony “shall 

be treated as separate and distinct offenses from the felony 

being committed,” conviction for the offense and for the 

underlying offense does not violate double jeopardy rights. 

See State v. Mata, 273 Neb. 474, 730 N.W.2d 396 (2007). 

Moreover, because the use charges are related to the two new 

counts that we determined are not the same offense as the conspiracy charge, the use charges are also not the same offense 

as conspiracy.

In summary, conspiracy requires proof of a fact that none 

of the new charges requires, and each of the new charges 
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requires proof of a fact or facts that conspiracy does not. 

Therefore, double jeopardy would not bar successive prosecution for any of the new charges, and under our reasoning in 

State v. Hettle, 288 Neb. 288, 848 N.W.2d 582 (2014), a new 

speedy trial clock applies to the four new counts that were 

added to the amended information. That is, as compared to the 

original conspiracy count, the four new counts run on “different speedy trial clocks.” Id. at 297, 848 N.W.2d at 591.

The speedy trial clock for the four new counts added in 

the amended information began running on the date the district court ruled that probable cause was shown for each of 

the counts in the amended information, April 1, 2021. See 

State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999). That 

same day, Miller requested and was granted a continuance of 

the April 5 date that had been set for trial on all charges so 

that he could prepare for the four new charges. In requesting the continuance to a date in October, Miller knowingly 

requested a continuance to a date outside the expiration of the 

6-month statutory speedy trial clock that, as to the four new 

counts, began running on April 1, and he therefore waived his 

statutory speedy trial right as to those four counts. See State 

v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014). Miller’s 

trial counsel therefore was not ineffective for failing to file 

a motion to discharge the four new counts because such a 

motion would not have been successful in having those four 

counts discharged.

Under the Hettle analysis, however, the speedy trial clock 

for the criminal conspiracy charge would continue to run 

from the filing of the original information in May 2020, 

even though the same charge was included in the amended 

information. Assuming that Miller’s calculation of the speedy 

trial clock for that charge is correct, we determine the last 

day Miller could have been brought to trial on the charge 

was March 25, 2021, and if Miller’s counsel had moved 

for absolute discharge, that count presumably could have 

been discharged.
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Assuming without deciding that the conspiracy count could 

have been discharged and that therefore, counsel’s performance was deficient for failing to move for discharge, under 

the Strickland framework, we consider whether Miller can 

show prejudice. Because Miller’s conviction for second degree 

murder was based upon a plea of no contest, in order to show 

prejudice, Miller needs to show a reasonable probability that 

but for the errors of counsel, he would have insisted on going 

to trial rather than pleading no contest. See State v. Thomas, 

311 Neb. 989, 977 N.W.2d 258 (2022). Viewing Miller’s claim 

of ineffective assistance of counsel relating to speedy trial in 

isolation, we determine it appears unlikely Miller could show 

a reasonable probability that if the conspiracy count had been 

discharged, he would have insisted on going to trial on the 

remaining four counts rather than pleading no contest to second degree murder.

However, as discussed above, Miller makes additional 

claims of ineffective assistance of counsel relating to the 

entry of his plea in which he generally asserts that counsel’s 

advice to accept the plea agreement was in error. It is possible that Miller could show that such advice was in error and 

that part of the reason the advice was in error was because 

the conspiracy count could have been discharged. Because 

discharge of the conspiracy count is potentially relevant to his 

showing of prejudice related to his other claims of ineffective 

assistance of counsel related to the plea, we cannot say on 

this record on direct appeal that Miller cannot show prejudice related to his claim of ineffective assistance of counsel 

for failing to move for discharge of the conspiracy count on 

speedy trial grounds.

In summary, we determine that to the extent Miller’s claim 

of ineffective assistance of trial counsel related to speedy trial 

concerns the four counts added in the amended information, 

the record on direct appeal is sufficient to demonstrate that he 

cannot show that counsel was ineffective for failing to move 

for absolute discharge of those four counts. However, we 
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determine that the record on appeal is not sufficient to review 

the merits of the claim of ineffective assistance of counsel to 

the extent it relates to discharge of the original criminal conspiracy count on speedy trial grounds.

The District Court Did Not Abuse Its 

Discretion When It Sentenced Miller.

Miller finally claims that the district court imposed an 

excessive sentence. We determine that the district court did 

not abuse its discretion in the sentence it imposed.

Miller pled no contest to and was convicted of second degree 

murder, a Class IB felony under Neb. Rev. Stat. § 28-304(2) 

(Reissue 2016). A Class IB felony is punishable by a sentence 

of imprisonment for a minimum of 20 years and a maximum 

of life. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022). Therefore, 

Miller’s sentence of imprisonment for 65 years to life was 

within the statutory limits, and it will not be disturbed on 

appeal absent an abuse of discretion.

[22,23] When imposing a sentence, a sentencing judge 

should consider 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, 

(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. State v. Cooke, 311 Neb. 511, 973 

N.W.2d 658 (2022). The sentencing court is not limited to 

any mathematically applied set of factors, but the appropriateness of the sentence is necessarily a subjective judgment that 

includes the sentencing judge’s observations of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. Id.

Miller generally argues that the district court “should have 

exercised more discretion in fashioning a sentence.” Brief for 

appellant at 26. Miller reviews mitigating factors argued by 

his counsel at the sentencing hearing, including his age and 

background. He also notes that he expressed that he was sorry 
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STATE V. MILLER

Cite as 315 Neb. 951

the victim had been shot, although he did not admit that he had 

fired the shots. Miller contends that the evidence in this case 

indicates that the shooting was done recklessly rather than in 

a “thought out manner,” id., and he argues that this warrants a 

shorter sentence of imprisonment within the range of 20 years 

to life applicable to a Class IB felony.

The district court’s comments at sentencing generally 

focused on the nature of the offense and the loss of the victim’s 

life. While the court did not discuss all the relevant factors or 

the mitigating factors urged by Miller, we have “rejected the 

notion that a sentencing court is required to articulate on the 

record that it has considered each sentencing factor and to 

make specific findings as to the facts that bear on each of those 

factors.” State v. Earnest, ante p. 527, 534, 997 N.W.2d 589, 

595 (2023).

The State notes various factors, in addition to those specifically stated by the court, that were presented to the court in 

the presentence investigation report and that support the sentence imposed. Such factors include Miller’s criminal history, 

which included numerous juvenile incidents and offenses as 

an adult that involved firearms; various rules violations while 

Miller was serving a prison sentence; and risk assessments 

that showed Miller to be at a high or very high risk of recidivism. The State also notes the benefit Miller received from 

the plea agreement, pursuant to which several felony charges 

were dismissed.

We have considered the entire record, and considering all 

the relevant factors, we cannot say the district court abused 

its discretion when it sentenced Miller. There were factors in 

the record to support the sentence, and there was no indication 

that the court relied on irrelevant matters or based its sentence 

on improper factors. The record provides a sound basis for 

the sentence imposed, and we find no abuse of discretion. We 

therefore conclude that the sentence was not excessive.
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STATE V. MILLER

Cite as 315 Neb. 951

CONCLUSION

We determine that the district court did not abuse its discretion when it overruled Miller’s second amended motion 

to withdraw his plea. We further determine that the record on 

direct appeal is not sufficient to consider Miller’s three claims 

of ineffective assistance of trial counsel. We determine that 

Miller’s claim of ineffective assistance of counsel related to 

absolute discharge on speedy trial grounds cannot be reviewed 

based on the record on direct appeal to the extent the claim 

involves the criminal conspiracy count, but we determine 

that the record demonstrates that counsel’s failure to move 

for discharge of the four new counts added in the amended 

information was not deficient performance. We finally determine that the district court did not abuse its discretion in its 

sentencing of Miller. We therefore affirm Miller’s conviction 

and sentence.

Affirmed.