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Nebraska Supreme Court Advance S

299 Nebraska Report

STATE v. LANE

Cite as 299 Neb. 170

State of Nebraska, appellee, v.

Michael E. Lane, appe

___ N.W.2d ___

Filed March 2, 2018. No. S-17-150.

1. Pleas: Appeal and Error. A trial court is given discretion as to whether 

to accept a guilty plea, and an appellate court will overturn that decision 

only where there is an abuse of discretion.

2. Appeal and Error. Plain error may be found on appeal when an error 

unasserted or uncomplained of at trial, but plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness 

of the judicial process.

3. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is 

a question of law.

4. ____: ____. In reviewing claims of ineffective assistance of counsel on 

direct appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and 

whether the defendant was or was not prejudiced by counsel’s alleged 

deficient performance.

5. Pleas. To support a finding that a defendant has entered a guilty 

plea freely, intelligently, voluntarily, and understandingly, a court must 

inform a defendant concerning (1) the nature of the charge, (2) the 

right to assistance of counsel, (3) the right to confront witnesses against 

the defendant, (4) the right to a jury trial, and (5) the privilege against 

self-incrimination. The record must also establish a factual basis for 

the plea and that the defendant knew the range of penalties for the 

crime charged.

6. Convicted Sex Offender: Sentences. A defendant’s duties to register 

as a sex offender are a collateral consequence to a defendant’s sentence. Because registration duties under the Sex Offender Registration 

Nebraska Supreme Court Online Library

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

04/04/2018 12:19 AM CDT
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299 Nebraska Report

STATE v. LANE

Cite as 299 Neb. 170

Act are not punitive, a trial court may inform a defendant of the duties 

imposed under the act before accepting pleas of guilty or no contest, 

but is not required to do so, and a plea is not rendered involuntary or 

unintelligent because a defendant was not aware of his or her registration duties.

7. Convicted Sex Offender. The notification requirements of Neb. Rev. 

Stat. § 29-4007 (Reissue 2016) are mandatory.

8. Sentences: Appeal and Error. An appellate court has the power on 

direct appeal to remand a cause for the imposition of a lawful sentence 

where an erroneous one has been pronounced.

9. Effectiveness of Counsel: 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.

10. Effectiveness of Counsel: Records: Appeal and Error. The fact that 

an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. The determining factor is 

whether the record is sufficient to adequately review the question.

11. ____: ____: ____. An appellate court can determine whether the record 

proves or rebuts the merits of a claim of ineffective assistance of trial 

counsel only if it has knowledge of the specific conduct alleged to 

constitute deficient performance.

12. Effectiveness of Counsel: Postconviction: Records: Appeal and 

Error. An ineffective assistance of counsel claim is raised on direct 

appeal when allegations of deficient performance are made 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 

be able to recognize whether the claim was brought before the appellate court.

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirmed in part, and in part vacated an

remanded for resentencing.

Nathan S. Lab, of McGough Law, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.
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Nebraska Supreme Court Advance S

299 Nebraska Report

STATE v. LANE

Cite as 299 Neb. 170

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

Funke, J

Miller-Lerman,

I. NATURE OF CASE

Michael E. Lane accepted a plea agreement and entered a 

no contest plea to incest, a Class III felony, on October 31, 

2016. At the sentencing hearing, the district court for Douglas 

County pronounced that Lane was sentenced to 4 to 4 years’ 

imprisonment, with credit for 11 days served, and a term of 

2 years’ postrelease supervision. Lane appeals. Lane claims 

that he should be able to withdraw his plea, because at the 

plea hearing, the State and the district court misinformed 

him that he would not need to register as a sex offender. As 

explained below, we reject this assignment of error. Lane challenges his sentence in certain respects. However, because, as 

we explain below, we are vacating his sentence due to plain 

error, we do not reach these assignments of error. Finally, Lane 

alleges ineffectiveness of trial counsel. We do not reach the 

merits of Lane’s ineffectiveness of counsel claims. We affirm 

Lane’s conviction, but because we find error in the sentencing, we vacate Lane’s sentence and remand the cause for 

resentencing.

II. STATEMENT OF FACTS

Following the denial of Lane’s motion to suppress, pursuant 

to a plea agreement in which Lane agreed to enter a no contest 

plea, the State filed an amended information charging Lane 

with incest, a Class III felony, under Neb. Rev. Stat. § 28-703 

(Reissue 2016).

At the plea hearing, the State provided a factual basis for the 

charge. In sum, the victim, who is Lane’s niece, reported an 

incident which occurred on or about November 7, 2015. Lane 

had been living with the victim’s family for about a month 

when the events giving rise to the conviction occurred. The 

crime occurred in Douglas County, Nebraska.
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299 Nebraska Report

STATE v. LANE

Cite as 299 Neb. 170

At the plea hearing, the district court informed Lane of 

his constitutional rights and that by pleading, Lane would be 

giving up all of those rights but for the right to appeal and 

the right to counsel, and Lane stated that he understood and 

still wished to plead. While informing Lane of the penalties associated with the crime charged, the court asked the 

State whether the offense required registration under the Sex 

Offender Registration Act (SORA), Neb. Rev. Stat. § 29-4001 

et seq. (Reissue 2016). The State responded that the offense 

did not require registration under SORA. The parties agree 

that this advisement by the State and by the district court was 

incorrect and that an incest conviction requires registration 

under SORA. See § 29-4003(1)(b)(i)(A)(XIV). Lane’s counsel 

did not object or make a statement regarding this erroneous 

statement at the plea hearing.

Lane pled no contest. The district court found that the plea 

was made freely, knowingly, and voluntarily and accepted 

the plea. The district court found Lane guilty of the charge 

and sentenced him to 4 to 4 years’ imprisonment, with 

credit for 11 days served, and a term of 2 years’ postrelease 

supervision.

This appeal followed. On appeal, Lane seeks to withdraw 

his plea, challenges his sentence, and alleges ineffectiveness 

of trial counsel.

III. ASSIGNMENTS OF ERROR

Lane claims that (1) because the district court and the State 

misinformed him that he would not be subject to sex offender 

registration, he should be permitted to withdraw his plea, and 

(2) the district erred in the sentence it imposed. Lane further claims that (3) he was prejudiced by ineffectiveness of 

trial counsel.

IV. STANDARDS OF REVIEW

[1] A trial court is given discretion as to whether to 

accept a guilty plea, and an appellate court will overturn that 
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Nebraska Supreme Court Advance S

299 Nebraska Report

STATE v. LANE

Cite as 299 Neb. 170

decision only where there is an abuse of discretion. State v. 

Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).

[2] Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, if 

uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process. State v. Ramirez, 287 

Neb. 356, 842 N.W.2d 694 (2014).

[3,4] Whether a claim of ineffective assistance of trial 

counsel may be determined on direct appeal is a question of 

law. State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017). In 

reviewing claims of ineffective assistance of counsel on direct 

appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively 

determine whether counsel did or did not provide effective 

assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance. Id.

V. ANALYSIS

As we explain below, we affirm Lane’s conviction. However, 

we find plain error in connection with sentencing, because 

on the record before us, the district court failed to complete 

SORA notification obligations. See § 29-4007. Accordingly, 

we affirm Lane’s conviction but vacate his sentence and 

remand the cause for resentencing. Further, we are unable 

to reach the merits of Lane’s claims of ineffectiveness of 

trial counsel.

1. Withdrawal of Pl

On appeal, Lane contends that he should be allowed by 

this court to withdraw his plea on the basis that his plea was 

the product of being wrongly advised by the district court and 

the State that he was not subject to SORA and its registration 

duties. We reject this assignment of error. For completeness, 

we note that our rejection of Lane’s claim regarding the propriety of his plea considers only this basis asserted by Lane.
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299 Nebraska Report

STATE v. LANE

Cite as 299 Neb. 170

[5] To support a finding that a defendant has entered a 

guilty plea freely, intelligently, voluntarily, and understandingly, a court must inform a defendant concerning (1) the 

nature of the charge, (2) the right to assistance of counsel, 

(3) the right to confront witnesses against the defendant, (4) 

the right to a jury trial, and (5) the privilege against selfincrimination. State v. Bol, 294 Neb. 248, 882 N.W.2d 674 

(2016). The record must also establish a factual basis for the 

plea and that the defendant knew the range of penalties for the 

crime charged. Id.

[6] In State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 

(2002), we held that a defendant’s duties to register as a sex 

offender are a collateral consequence to a defendant’s sentence. Because the SORA registration duties at issue are not 

punitive, a trial court may inform a defendant of the duties 

imposed under SORA before accepting pleas of guilty or 

no contest, but is not required to do so, and a plea is not 

rendered involuntary or unintelligent because a defendant 

was not aware of his or her registration duties. See id. See, 

also, State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009). 

Compare Doe v. Nebraska, 734 F. Supp. 2d 882 (D. Neb. 

2010) (noting difference between civil duties and punitive 

consequences). Thus, under Schneider, the district court’s 

incorrect advisement regarding the collateral SORA consequence of Lane’s plea does not invalidate his plea or warrant 

the relief of withdrawal.

2. Sentencing 

We have reviewed the record, and on the record before 

us, we determine that the district court failed to complete the 

SORA notification requirements of § 29-4007, which the court 

is mandated to do in a conviction for an offense triggering 

SORA duties. As a result, we find plain error in sentencing and 

we vacate the sentence and remand for resentencing.

Lane was convicted of incest pursuant to § 28-703, which 

is a registrable offense under § 29-4003(1)(b)(i)(A)(XIV). The 
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299 Nebraska Report

STATE v. LANE

Cite as 299 Neb. 170

State suggests that we vacate the sentence and remand this 

cause for additional sentencing proceedings, because the record 

does not show that the district court complied with its duty 

to inform Lane, in writing, about his duty to register under 

SORA. See § 29-4007. We agree with the State.

Section 29-4007 provides, in relevant part:

(1) When sentencing a person convicted of a registrable offense under section 29-4003, the court shall:

. . . .

(b) Require the defendant to read and sign a form 

stating that the duty of the defendant to register under 

[SORA] has been explained;

(c) Retain a copy of the written notification signed by 

the defendant; and

(d) Provide a copy of the signed, written notification, 

the judgment and sentence, the information or amended 

information, and the journal entry of the court to the 

county attorney, the defendant, the sex offender registration and community notification division of the Nebraska 

State Patrol, and the county sheriff of the county in 

which the defendant resides, has a temporary domicile, 

or has a habitual living location.

. . . .

(3)(a) The Department of Correctional Services or a 

city or county correctional or jail facility shall provide 

written notification of the duty to register pursuant to 

[SORA] to any person committed to its custody for a 

registrable offense under section 29-4003 prior to the person’s release from incarceration.

[7] We have stated that the notification requirements of 

§ 29-4007 are mandatory. State v. Pathod, 269 Neb. 155, 

690 N.W.2d 784 (2005). In Pathod, we noted that the plain 

language of § 29-4007 states that when sentencing a person, 

the court “shall” provide written notification and copies of 

the notification and corresponding journal entry to various parties.
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299 Nebraska Report

STATE v. LANE

Cite as 299 Neb. 170

In Pathod, the sentencing court failed to enter a journal 

entry or notify the defendant at sentencing, but the notice 

signed by the defendant was filed the day after sentencing and 

was included in the record. Given all the facts in Pathod, we 

concluded that the court’s error in SORA compliance did not 

invalidate the sentence.

Although the facts we have before us differ, we apply 

an analysis similar to Pathod in the instant case. Here, the 

State notes that on this record, the court failed to provide 

written notification to Lane at sentencing or provide copies 

of the notification and journal entry to the various parties, 

as required by § 29-4007. Unlike Pathod, the record in the 

instant case does not show whether Lane ultimately received 

proper advisements regarding his SORA duties, and we do not 

assume that he did. We agree with the State that the district 

court plainly erred by failing to comply with SORA notification requirements.

[8] An appellate court has the power on direct appeal to 

remand a cause for the imposition of a lawful sentence where 

an erroneous one has been pronounced. State v. Ramirez, 287 

Neb. 356, 842 N.W.2d 694 (2014); State v. Gunther, 271 Neb. 

874, 716 N.W.2d 691 (2006). Accordingly, we vacate Lane’s 

sentence and remand the cause for resentencing compliant with 

§ 29-4007.

3. Ineffective Assi

of Counse

We have reviewed Lane’s allegations concerning claims of 

ineffective assistance of trial counsel, and we determine that 

the record on direct appeal is not sufficient to address them.

[9,10] Lane is represented on direct appeal by counsel different from the counsel who represented him at trial. 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. State v. 
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STATE v. LANE

Cite as 299 Neb. 170

Mora, 298 Neb. 185, 903 N.W.2d 244 (2017). Otherwise, the 

issue will be procedurally barred. Id. The fact that an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. Id. The determining factor is whether the record is sufficient to adequately 

review the question. Id.

[11,12] An appellate court can determine whether the record 

proves or rebuts the merits of a claim of ineffective assistance 

of trial counsel only if it has knowledge of the specific conduct alleged to constitute deficient performance. Id. An ineffective assistance of counsel claim is raised on direct appeal 

when allegations of deficient performance are made 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 be able to recognize whether the claim 

was brought before the appellate court. Id.

(a) Failing to Notify Lane 

of SORA Duties

Lane has brought to our attention alleged deficiencies 

regarding his trial counsel’s advice regarding his SORA duties. 

Lane contends the alleged deficiencies justify withdrawal of 

his plea. Although the record shows Lane’s trial counsel did 

not comment on the question of SORA’s applicability at his 

sentencing hearing, the record is silent regarding whether Lane 

otherwise received advisements from his trial counsel, including compliance features of § 29-4007, at any other time. In this 

direct appeal, the record is incomplete on the matter, and we 

are unable to determine whether Lane’s trial counsel performed 

deficiently regarding advice pertaining to Lane’s SORA duties 

in connection with counsel’s advice to enter the plea.

(b) Waiver of Right to Appeal 

Because of Plea

As noted above, Lane asserts that his plea of no contest 

was the result of ineffective assistance of trial counsel. As 
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STATE v. LANE

Cite as 299 Neb. 170

an additional reason, Lane contends that he was not correctly 

advised that by entering a plea of no contest, he would give up 

his right to appeal the denial of his motion to suppress. See, 

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

Lane argues this is prejudicial because he is now unable to 

challenge the denial of his motion to suppress his confession to 

incest, in which motion he claims that he relied on statements 

by a law enforcement officer implying that to acknowledge the 

facts of the incident was not to confess to a crime.

Upon our review, we determine that the record is insufficient to review Lane’s allegation regarding counsel’s advice 

relative to the plea. The nature of Lane’s claim that it was deficient performance for trial counsel to advise him to waive his 

right to appeal is entwined with his acceptance of a plea deal, 

and on this record, we cannot review the conduct of Lane’s 

trial counsel.

VI. CONCLUSION

We affirm Lane’s conviction for incest. However, because 

the district court failed to comply with its obligation to notify 

Lane of his SORA registration duties, we vacate the sentence 

and remand the cause for resentencing. Finally, in this direct 

appeal, the record is insufficient to resolve Lane’s claims of 

ineffectiveness of trial counsel.

 Affirmed in part, and in part v

and remanded for resente

Wright, J., not participating.