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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. COLLINS

Cite as 307 Neb. 581

State of Nebraska, appellee, v. 

Miranda M. Collins, appellant.

___ N.W.2d ___

Filed October 23, 2020. No. S-19-959.

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal 

case from the county court, the district court acts as an intermediate 

court of appeals, and its review is limited to an examination of the 

record for error or abuse of discretion.

2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error 

appearing on the record.

3. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

4. Appeal and Error. An appellate court independently reviews questions 

of law in appeals from the county court.

5. Criminal Law: Courts: Appeal and Error. When deciding appeals 

from criminal convictions in county court, an appellate court applies the 

same standards of review that it applies to decide appeals from criminal 

convictions in district court.

6. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal 

principles in determining the sentence to be imposed.

7. ____: ____. Absent an abuse of discretion by the trial court, an appellate 

court will not disturb a sentence imposed within the statutory limits.

8. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

Nebraska Supreme Court Online Library

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

12/18/2020 12:16 AM CST
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STATE v. COLLINS

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9. Statutes: Appeal and Error. Statutory interpretation presents a question 

of law, which an appellate court reviews independently.

10. 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.

11. Effectiveness of Counsel: Appeal and Error. 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.

12. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal 

principles in determining the sentence to be imposed.

13. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, 

(5) past criminal record or record of law abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the 

amount of violence involved in the commission of the crime.

14. ____. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances surrounding 

the defendant’s life.

15. Statutes: Legislature: Intent. Components of a series or collection of 

statutes pertaining to a certain subject matter are in pari materia and 

should be conjunctively considered and construed to determine the 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

16. Statutes. To the extent there is a conflict between two statutes, the specific statute controls over the general statute.

17. Statutes: Legislature: Presumptions: Intent. In enacting a statute, the 

Legislature must be presumed to have knowledge of all previous legislation upon the subject. The Legislature is also presumed to know the 

language used in a statute, and if a subsequent act on the same or similar 

subject uses different terms in the same connection, the court must presume that a change in the law was intended.

18. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective 

assistance of counsel, the defendant must show that his or her counsel’s 
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performance was deficient and that this deficient performance actually 

prejudiced the defendant’s defense.

19. ____: ____. To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer 

with ordinary training and skill in criminal law.

20. ____: ____. To show prejudice in a claim of ineffective assistance of 

counsel, the defendant must demonstrate a reasonable probability that 

but for counsel’s deficient performance, the result of the proceeding 

would have been different.

21. Words and Phrases. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

Appeal from the District Court for Lancaster County, Susan 

I. Strong, Judge, on appeal thereto from the County Court for 

Lancaster County, Timothy C. Phillips, Judge. Judgment of 

District Court affirmed.

Stephanie Flynn, of Stephanie Flynn Law, P.C., L.L.O., and 

Toni Wilson, of Leija Wilson Law, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

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

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Miranda M. Collins appeals the order of the district court 

for Lancaster County which affirmed her convictions and sentences in the county court for Lancaster County for operating 

a motor vehicle to avoid arrest and obstructing a police officer. 

Collins claims on appeal that the district court erred when it 

affirmed what she asserts was an excessive sentence imposed 

by the county court and when it affirmed the county court’s 

order directing that her appearance bond be applied to fines 

and costs. She also claims that trial counsel provided ineffective assistance because counsel failed to present sufficient 

evidence and information at the sentencing hearing. We affirm 
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STATE v. COLLINS

Cite as 307 Neb. 581

the order of the district court which affirmed Collins’ convictions and sentences.

STATEMENT OF FACTS

On March 22, 2019, Collins was arrested, and the State filed 

a complaint in the county court charging her with operating a 

motor vehicle to avoid arrest in violation of Neb. Rev. Stat. 

§ 28-905 (Reissue 2016). The State alleged, inter alia, that the 

offense was committed “in willful reckless operation of the 

motor vehicle,” and the State therefore charged the offense as 

a Class IV felony pursuant to § 28-905(3). The factual basis 

presented by the State indicates that the charge arose from an 

incident in which, during a traffic stop of a vehicle driven by 

Collins, the officer detected the odor of marijuana and asked 

Collins to step out of the vehicle so that the officer could 

conduct a search. Collins refused to step out of the vehicle, 

and instead, she rolled up her windows, locked the doors, and 

sped off in the vehicle. The county court found probable cause 

to detain Collins and set an appearance bond of “$7,500.00

Ten Percent.” On March 25, Collins filed an appearance bond 

which stated that $750 had been deposited “in cash 90% of 

which shall be returned to the defendant upon appearance as 

required above and 10% of which shall be retained by the 

Clerk for bond costs.”

On April 3, 2019, pursuant to a plea agreement, the State 

filed an amended complaint in which it reduced the charge of 

operating a motor vehicle to avoid arrest to a Class I misdemeanor under § 28-905(2) and added a charge of obstructing 

a peace officer, a Class I misdemeanor, in violation of Neb. 

Rev. Stat. § 28-906 (Reissue 2016). Collins pled guilty to both 

charges, and the county court found a factual basis and found 

Collins guilty of both charges. That same day, after granting Collins a sentencing allocution, the county court ordered 

Collins to pay a fine of $750 on the conviction for operating 

a motor vehicle to avoid arrest and to pay a fine of $250 on 

the conviction for obstructing a peace officer. In connection 

with the conviction for operating a motor vehicle to avoid 
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STATE v. COLLINS

Cite as 307 Neb. 581

arrest, the county court also ordered that Collins’ driver’s 

license be revoked for 1 year. The court ordered Collins to 

pay costs, and the court further ordered that after the $75 

(representing 10 percent of the deposit) had been retained by 

the clerk, the $675 balance held on Collins’ appearance bond 

be applied to payment of the fines and costs imposed as part 

of her sentence.

On April 5, 2019, Collins’ counsel filed a motion for new 

trial in which he asserted that subsequent to the April 3 sentencing hearing, he had learned new information that, if he had 

known of it at the time of Collins’ sentencing, he would have 

offered for the court’s consideration. Counsel characterized 

such information as “newly discovered evidence,” which he 

alleged required a new trial. That same day, counsel also filed a 

motion to reconsider sentence in which counsel alleged that the 

“newly discovered evidence” required the court to reconsider 

the sentence imposed. Counsel’s particular objection to the 

sentence focused on the revocation of Collins’ driver’s license 

for 1 year.

In his affidavit, Collins’ counsel stated that in a separate 

case, Collins anticipated being bonded into drug court; that 

she risked losing her housing if she could not demonstrate 

participation in a drug treatment program; and that a prompt 

resolution of the present case was necessary to avoid delaying 

her entry into drug court in the other case. Counsel stated that 

the urgency to resolve the present case limited the time he had 

to prepare with Collins for sentencing and that therefore, he did 

not learn certain relevant information about Collins before the 

April 3, 2019, plea and sentencing hearing. Counsel asserted 

the new information was generally that Collins was a single 

mother and a student who had no family or friends who could 

help her with transportation and that if her driver’s license 

were revoked, she would not be able to transport her children 

to school or transport herself to attend classes.

After a hearing, the county court denied both Collins’ 

motion for new trial and her motion to reconsider sentence. 

At the hearing on the motions, the county court stated that if 
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STATE v. COLLINS

Cite as 307 Neb. 581

it “had known some of these things beforehand, [it] probably 

would have likely ruled differently,” but it did not think that 

it could “go back and change it at this point in time based 

on these motions the way they’re brought before the Court.” 

In response to Collins’ query regarding the bond, the county 

court stated that it did not think it could be returned to her 

because the bond had “already been applied.” In the order 

denying the motions, the county court stated that the appearance bond was to remain applied to fines and costs and not 

returned to Collins.

Collins appealed her convictions and sentences to the district court. In her statement of errors, Collins claimed that 

the county court (1) imposed an excessive sentence when it 

revoked her driver’s license and (2) erred when it ordered that 

her bond be applied to fines and costs.

After a hearing, the district court entered an order which 

affirmed Collins’ convictions and sentences. Regarding Collins’ 

claim of excessive sentence, the district court noted that the 

sentence of a $750 fine and a 1-year license revocation for 

operating a motor vehicle to avoid arrest was within the statutory limits. The district court noted that Collins had requested 

that she be sentenced to probation rather than imprisonment 

to facilitate her participation in drug court in a separate case. 

Because the county court had declined to impose either imprisonment or probation, which would have been within the statutory limits, the district court found the sentence of a fine and 

revocation to be lenient considering the nature of the offense. 

The district court determined that the county court’s sentence 

was not based on reasons that were untenable or clearly against 

the evidence, and it concluded that the sentence imposed by the 

county court was not an abuse of discretion.

Regarding the county court’s order to apply the bond to 

fines and costs, Collins argued that the order violated Neb. 

Rev. Stat. § 29-901 (Cum. Supp. 2018) and case law interpreting that statute, which Collins asserted made it mandatory for 

the court to return 90 percent of the bond deposit to her. The 
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STATE v. COLLINS

Cite as 307 Neb. 581

district court noted, however, that subsequent to the case law 

cited by Collins, the Legislature had amended Neb. Rev. Stat. 

§ 29-2206 (Reissue 2016) to allow a court to deduct fines or 

costs from a bond posted by the offender. The district court 

concluded that the county court appropriately exercised its 

discretion when it applied the bond deposit to fines and costs 

imposed in Collins’ sentence.

Collins appeals the district court’s order which affirmed 

her convictions and sentences in the county court. The district 

court appointed new counsel to represent Collins on appeal.

ASSIGNMENTS OF ERROR

Collins claims that the district court erred when it rejected 

her claims that (1) the county court imposed an excessive 

sentence for operating a motor vehicle to avoid arrest and 

(2) the county court erred when it ordered that her bond be 

applied to fines and costs. Collins also claims that she received 

ineffective assistance of counsel in the county court because 

“counsel failed to present sufficient evidence and information for the [county court’s] consideration in determining the 

proper sentence and thus her right to a fair sentencing hearing 

was prejudiced.”

STANDARDS OF REVIEW

[1-5] In an appeal of a criminal case from the county court, 

the district court acts as an intermediate court of appeals, 

and its review is limited to an examination of the record for 

error or abuse of discretion. State v. Valentino, 305 Neb. 96, 

939 N.W.2d 345 (2020). Both the district court and a higher 

appellate court generally review appeals from the county court 

for error appearing on the record. Id. When reviewing a judgment for errors appearing on the record, an appellate court’s 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. But we independently review 

questions of law in appeals from the county court. Id. When 

deciding appeals from criminal convictions in county court, 
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STATE v. COLLINS

Cite as 307 Neb. 581

we apply the same standards of review that we apply to decide 

appeals from criminal convictions in district court. Id.

[6-8] Where a sentence imposed within the statutory limits 

is alleged on appeal to be excessive, the appellate court must 

determine whether a sentencing court abused its discretion 

in considering and applying the relevant factors as well as 

any applicable legal principles in determining the sentence to 

be imposed. State v. Canaday, ante p. 407, ___ N.W.2d ___ 

(2020). Absent an abuse of discretion by the trial court, an 

appellate court will not disturb a sentence imposed within the 

statutory limits. State v. Martinez, 306 Neb. 516, 946 N.W.2d 

445 (2020). An abuse of discretion occurs when a trial court’s 

decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence. Id.

[9] Statutory interpretation presents a question of law, which 

an appellate court reviews independently. State v. Wilson, 306 

Neb. 875, 947 N.W.2d 704 (2020).

[10,11] 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. Theisen, 306 Neb. 591, 946 N.W.2d 677 

(2020). We determine 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.

ANALYSIS

County Court Did Not Abuse 

Its Discretion When 

Imposing Sentence.

Collins first claims that the district court erred when it 

rejected her claim that the county court imposed an excessive 

sentence. Collins’ argument focuses on the sentence imposed 

for operating a motor vehicle to avoid arrest and specifically 
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STATE v. COLLINS

Cite as 307 Neb. 581

on the county court’s order revoking her license for 1 year. 

We find no abuse of discretion in the sentencing, and we therefore affirm the district court’s order rejecting this claim.

The county court sentenced Collins to pay a fine of $750 

for operating a motor vehicle to avoid arrest and a fine of 

$250 for obstructing a peace officer. In connection with the 

conviction for operating a motor vehicle to avoid arrest, the 

court also ordered that Collins’ driver’s license be revoked for 

1 year. Collins’ argument focuses on the sentence for operating a motor vehicle to avoid arrest. She does not appear to 

take issue with the $250 fine ordered for obstructing a peace 

officer, and we do not discuss that conviction or sentence further herein.

Operating a motor vehicle to avoid arrest had originally 

been charged by the State as a Class IV felony pursuant to 

§ 28-905(3), but the State reduced the charge pursuant to 

the plea agreement and Collins pled guilty to operating a 

motor vehicle to avoid arrest as a Class I misdemeanor under 

§ 28-905(2). Under Neb. Rev. Stat. § 28-106 (Reissue 2016), 

a Class I misdemeanor may be punished with imprisonment 

for up to 1 year, a fine of up to $1,000, or both. In addition, 

§ 28-905(2)(b) provides:

The court may, as part of the judgment of conviction under 

subdivision (a) of this subsection, order that the operator’s license of such person be revoked or impounded 

for a period of not more than one year and order the 

person not to drive any motor vehicle for any purpose in 

the State of Nebraska for a like period. The revocation 

or impoundment shall be administered upon sentencing, 

upon final judgment of any appeal or review, or upon the 

date that any probation is revoked.

The county court’s imposition of a fine of $750 in this case 

was within the statutory limits, and under § 28-905(2)(b), the 

county court had discretion to revoke Collins’ license for up 

to 1 year. The district court on appeal from the county court 

noted that the county court did not impose a sentence of either 

imprisonment or probation, and the district court concluded 
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STATE v. COLLINS

Cite as 307 Neb. 581

that imposition of only a fine was a lenient sentence in light 

of the circumstances. We agree that the imposition of a fine of 

$750 was well within the statutory range and was not an abuse 

of discretion given the circumstances of this case.

On appeal, Collins focuses her argument on the revocation 

of her license. When, as in this case, the offense of operating a motor vehicle to avoid arrest is a misdemeanor under 

§ 28-905(2)(a), then under § 28-905(2)(b), the court “may” 

revoke the defendant’s license for not more than 1 year. The 

use of “may” indicates that license revocation is discretionary 

when the offense is a misdemeanor. Compare § 28-905(3)(b) 

(providing that when offense is felony, court “shall” revoke 

defendant’s license for 2 years).

[12-14] Collins argues the county court abused its discretion 

when it revoked her license because it did not consider relevant 

factors. Where a sentence imposed within the statutory limits 

is alleged on appeal to be excessive, the appellate court must 

determine whether a sentencing court abused its discretion in 

considering and applying the relevant factors as well as any 

applicable legal principles in determining the sentence to be 

imposed. State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020). 

In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) age, (2) 

mentality, (3) education and experience, (4) social and cultural 

background, (5) past criminal record or record of law abiding 

conduct, and (6) motivation for the offense, as well as (7) the 

nature of the offense and (8) the amount of violence involved 

in the commission of the crime. Id. The appropriateness of a 

sentence is necessarily a subjective judgment and includes the 

sentencing judge’s observation of the defendant’s demeanor 

and attitude and all the facts and circumstances surrounding the 

defendant’s life. Id.

Collins contends that the county court failed to consider 

the circumstances of her life when it revoked her license. In 

particular, she notes that a license revocation will affect her 

ability to participate in drug court and her ability to transport 
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Cite as 307 Neb. 581

her children and herself to school. She also directs our attention 

to the county court’s comment at the hearing on her motions 

for new trial and to reconsider sentence to the effect that a different sentence may have been imposed if the court had known 

some of the facts of Collins’ life before imposing sentence.

With respect to the county court’s alleged failure to consider 

the facts of Collins’ life, the record shows that after Collins’ 

counsel had made arguments regarding sentencing, and before 

it imposed sentence, the county court asked whether there was 

anything Collins wanted to say and she declined to comment. 

We view this as the county court’s having given Collins the 

opportunity to bring relevant information to its attention, and 

the court did not abuse its discretion when it did not question 

her regarding unknown matters she now asserts were relevant 

to her sentencing.

Further to her excessiveness claim, Collins contends the 

county court “gave excessive weight to the facts and circumstances of the case.” Brief for appellant at 18. We believe this 

contention tends to minimize the nature of the offense. We 

note in this regard that the factual basis provided by the State 

for Collins’ plea indicates that in committing the offense of 

operating a motor vehicle to avoid arrest, Collins “sped away 

from the traffic stop at a high rate of speed,” that she was 

estimated to have driven “about 50 miles an hour through a 

residential neighborhood,” and that she “violate[d] the traffic 

sign . . . without slowing down, crossing traffic.” Such circumstances were relevant to the county court’s decision whether 

to impose a license revocation. Notwithstanding the hardship 

a license revocation invariably imposes on an offender, we 

do not find that the county court abused its discretion when it 

relied on the facts and circumstances of the case and ordered 

license revocation.

We conclude that the sentence imposed by the county court 

was not an abuse of discretion and that therefore, the district 

court did not err when it rejected Collins’ argument that the 

sentence was excessive.
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STATE v. COLLINS

Cite as 307 Neb. 581

County Court Was Allowed by 

Statute to Apply Bond to 

Fines and Costs.

Collins next claims that the district court erred when it 

rejected her claim that the county court erred when it ordered 

that her bond be applied to pay the fines and costs imposed as 

part of her sentence. We conclude that at the time of the sentencing, the statutes allowed the county court to so order, and 

that the district court did not err when it rejected this claim.

Collins contends that the county court’s order to deduct 

fines and costs from the bond deposit violated § 29-901, State 

v. Zamarron, 19 Neb. App. 349, 806 N.W.2d 128 (2011), and 

State v. McKichan, 219 Neb. 560, 364 N.W.2d 47 (1985). 

Section 29-901 provides in part that a deposit of not more 

than 10 percent of the amount of the bond may be made with 

the clerk of the court, with “ninety percent of such deposit 

to be returned to the defendant upon the performance of the 

appearance or appearances and ten percent to be retained by 

the clerk as appearance bond costs.” In Zamarron, supra, the 

Nebraska Court of Appeals concluded that the district court 

erred when it applied the defendant’s appearance bond to 

pay court costs that the defendant had been ordered to pay 

as part of his sentence. The Court of Appeals cited § 29-901 

and stated that an “appearance bond must be refunded (less 

any applicable statutory fee) after full compliance with all 

court orders to appear.” Zamarron, 19 Neb. App. at 352, 806 

N.W.2d at 130. The Court of Appeals also cited McKichan, 

supra. In McKichan, this court had held that “the deposit of 

cash in lieu of or in support of bail under § 29-901 is for the 

purpose only of ensuring the defendant’s appearance in court 

when required; and upon full compliance with any such court 

orders and release of bail, the statutory refund must be made.” 

219 Neb. at 563, 364 N.W.2d at 49. Collins argues that the use 

of the word “must” in both McKichan and Zamarron indicates 

that the appellate courts have interpreted the refund under 

§ 29-901 to be mandatory.
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But as the district court noted in its order which affirmed 

Collins’ convictions and sentences subsequent to the decisions 

in both McKichan and Zamarron, the Legislature in 2012 

amended § 29-2206 by adding subsection (3), which provided 

that the court “may deduct fines or costs from a bond posted 

by the offender to the extent that such bond is not otherwise 

encumbered by a valid lien, levy, execution, or assignment to 

counsel of record or the person who posted the bond.” Collins 

maintains that § 29-2206 conflicts with § 29-901 and that reading the two statutes in pari materia yields an ambiguity which 

must be resolved by applying the language of § 29-901, which 

makes a refund mandatory.

[15,16] We disagree with Collins’ reading of the two statutes. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should 

be conjunctively considered and construed to determine the 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible. State v. Street, 306 Neb. 380, 

945 N.W.2d 450 (2020). And to the extent there is a conflict 

between two statutes, the specific statute controls over the general statute. Id. Both § 29-901 and § 29-2206 address disposition of bonds, and we must read them in a manner such that 

they are consistent, harmonious, and sensible when considered 

with one another.

Collins proposes that any conflict between the statutes must 

be resolved by favoring § 29-901, which she asserts is the 

specific statute regarding return of a bond and controls over 

§ 29-2206. Because Collins’ reading of the statutes does not 

make the statutes consistent, harmonious, and sensible with one 

another and under her reading § 29-901 nullifies § 29-2206, we 

reject Collins’ proposal.

[17] Instead, we read § 29-901 as providing that generally, 

90 percent of the bond deposit is to be returned to the defendant; however, § 29-2206 provides a specific exception to that 

general rule in that it allows the court to deduct fines and 

costs from the bond deposit prior to return of the remainder, 
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if any. This reading of the statutes is bolstered by the fact that 

the relevant language in § 29-901 existed at the time the relevant language was added to § 29-2206. In enacting a statute, 

the Legislature must be presumed to have knowledge of all 

previous legislation upon the subject. In re Estate of Psota, 

297 Neb. 570, 900 N.W.2d 790 (2017). The Legislature is 

also presumed to know the language used in a statute, and if 

a subsequent act on the same or similar subject uses different 

terms in the same connection, the court must presume that 

a change in the law was intended. Id. See, also, Shipler v. 

General Motors Corp., 271 Neb. 194, 216, 710 N.W.2d 807, 

829 (2006) (“last expression of legislative will is the law”). 

Therefore, we presume that when it amended § 29-2206 

in 2012 to allow a court to deduct fines and costs from a 

bond, the Legislature was aware of the language of § 29-901 

requiring the return of 90 percent of the bond deposit to the 

defendant. We therefore presume the Legislature specifically 

intended that the deduction of fines and costs was an exception to the general rule that the bond deposit is to be returned 

to the defendant.

We conclude that when the county court entered its order on 

April 3, 2019, § 29-2206 allowed it to deduct fines and costs 

from the bond deposit and § 29-901 did not prohibit it from 

doing so. We therefore conclude that the district court did not 

err when it affirmed the county court’s order to deduct fines 

and costs from Collins’ appearance bond deposit.

Collins Has Not Shown 

Ineffective Assistance 

of Counsel.

Collins finally claims that she received ineffective assistance 

of counsel in the county court because at the sentencing hearing, “counsel failed to present sufficient evidence and information for the [county court’s] consideration in determining the 

proper sentence and thus her right to a fair sentencing hearing 

was prejudiced.” We conclude that the record on direct appeal 

does not show ineffective assistance.
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Whether a claim of ineffective assistance of trial counsel 

can be determined on direct appeal depends upon the sufficiency of the record to address the claim to determine whether 

a defense counsel’s performance was deficient and whether the 

defendant was prejudiced by the alleged deficient performance. 

See State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020). 

We have said the record is sufficient if it establishes either that 

trial counsel’s performance was not deficient, that the appellant 

will not be able to establish prejudice, or that trial counsel’s 

actions could not be justified as a part of any plausible trial 

strategy. Id.

[18-21] To prevail on a claim of ineffective assistance of 

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

performance was deficient and that this deficient performance 

actually prejudiced the defendant’s defense. State v. Anderson, 

305 Neb. 978, 943 N.W.2d 690 (2020). To show that counsel’s 

performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary 

training and skill in criminal law. Id. To show prejudice, the 

defendant must demonstrate a reasonable probability that but 

for counsel’s deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is 

a probability sufficient to undermine confidence in the outcome. Id.

We note as an initial matter that in her brief, Collins argues 

in part that counsel provided ineffective assistance because 

counsel “failed to ask for [her] bond to be released to her.” 

Brief for appellant at 28. We do not think this argument is 

encompassed within Collins’ assignment of error in which she 

alleges that “counsel failed to present sufficient evidence and 

information for the [county court’s] consideration in determining the proper sentence.” See State v. Mrza, 302 Neb. 931, 

926 N.W.2d 79 (2019) (providing that assignments of error 

on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance). In any 

event, this claim is unavailing because as we discussed above, 

at the time the county court ordered that fines and costs be 
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deducted from Collins’ bond, the county court had statutory 

authority to do so whether or not Collins requested return of 

the bond, and therefore, counsel’s alleged failure to ask that the 

bond be released to her did not prejudice Collins.

As quoted above, Collins primarily asserts that counsel provided ineffective assistance when “counsel failed to present 

sufficient evidence and information for the [county court’s] 

consideration in determining the proper sentence.” She specifically argues that at sentencing, counsel failed to present the 

evidence that counsel later asserted in the motions for new trial 

or to reconsider sentence all to the effect that newly discovered evidence would show that a license revocation would be 

a hardship for Collins. We determine that the record on direct 

appeal does not show that counsel’s performance was deficient 

in this regard and that the record refutes a finding that any such 

deficiency was prejudicial.

Regarding deficient performance, a defendant must show 

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

ordinary training and skill in criminal law. Anderson, supra. 

The record on direct appeal does not contain evidence which 

would assist this court in assessing what factors a lawyer with 

ordinary training and skill would have presented at the sentencing, nor does it indicate that Collins’ counsel behaved unreasonably when he focused on avoiding a sentence of imprisonment at the expense of other features of the sentence.

In the affidavit of counsel offered in support of the motions 

for new trial and to reconsider sentence, counsel states that 

“[d]ue to the urgency” of getting Collins into drug court, counsel “had limited time between plea negotiations and plea entry 

to discuss sentencing with [Collins],” and that counsel “was 

unaware of certain facts about [Collins] that are material to 

sentencing.” But rather than declaring that such circumstance 

showed deficient performance, counsel stated to the contrary 

that “due to extenuating circumstances, [counsel] could not 

have with reasonable diligence discovered and produced [such 

evidence] prior to or during sentencing.” Counsel’s affidavit, taken as a whole, refutes a determination that counsel’s 
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failure to present the evidence at sentencing constituted deficient performance.

Further, we believe that the record also refutes a finding of 

prejudice. Regarding prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient 

performance, the result of the proceeding would have been different, and a reasonable probability is a probability sufficient 

to undermine confidence in the outcome. State v. Anderson, 

305 Neb. 978, 943 N.W.2d 690 (2020). Collins gains some 

support for her allegation of prejudice from the county court’s 

comment at the hearing on the motions for new trial and to 

reconsider sentence that if it “had known some of these things 

beforehand, [it] probably would have likely ruled differently.” 

However, the county court’s comment is vague as to what the 

court would have done differently and we cannot presume that 

the court would not have imposed a license revocation. We 

cannot find that the court’s comment establishes a probability 

sufficient to undermine confidence in the outcome.

We have reviewed the record and find that it refutes a finding of prejudice even if counsel had been deficient. At the plea 

hearing, the State informed Collins of the sentencing range for 

the amended charges and stated that as to the charge of operating a motor vehicle to avoid arrest, “your driver’s license will 

also be revoked for up to one year.” Collins stated that she 

understood the charges and possible penalties just recited.

The State’s advisement, such as it was, could only have 

alerted Collins and her counsel that license revocation could 

follow. Later, in the plea colloquy, the county court asked 

Collins whether she had “had enough time to think about [her] 

plea and discuss it with [counsel],” and Collins replied that 

she had. After accepting Collins’ plea and before pronouncing 

sentence, the county court allowed counsel to argue on behalf 

of Collins. After Collins’ counsel’s argument, the county court 

asked whether Collins had “anything she wishe[d] to say,” and 

Collins replied, “No.”

The record of the plea and sentencing hearing shows that 

even if counsel was deficient in failing to inform Collins of 
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the possibility of a license revocation and to solicit information from Collins relevant to that possibility, such deficiency 

did not prejudice Collins. After the State stated “your driver’s 

license will also be revoked for up to one year,” the court 

gave Collins the opportunity to say she had not discussed the 

issue of a license revocation with counsel; instead, she said 

she had had sufficient time to discuss her plea with counsel. 

Also, prior to sentencing and after hearing the argument counsel had made on her behalf, the court provided Collins the 

opportunity to inform it of circumstances relevant to sentencing that had not been presented by counsel, but she chose not 

to say anything.

We conclude that the record on direct appeal refutes Collins’ 

claim of ineffective assistance of counsel. We therefore reject 

Collins’ claim on direct appeal that counsel provided ineffective assistance at sentencing.

CONCLUSION

We conclude that the district court did not err when it 

rejected Collins’ claim that the county court imposed excessive sentences and her claim that the county court erred when 

it ordered that fines and costs be deducted from her bond. We 

further conclude that Collins’ claim of ineffective assistance of 

counsel is refuted by the record on direct appeal. We therefore 

affirm the district court’s order which affirmed Collins’ convictions and sentences.

Affirmed.