- 368 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

State of Nebraska, appellee, v. 

Mark A. Brunsen, appellant.

___ N.W.2d ___

Filed April 15, 2022. No. S-21-354.

1. Convictions: Appeal and Error. An appellate court reviews decisions 

of whether to set aside an eligible conviction under Neb. Rev. Stat. 

§ 29-2264 (Cum. Supp. 2020) for an abuse of discretion.

2. Convictions: Courts: Public Health and Welfare. Neb. Rev. Stat. 

§ 29-2264 (Cum. Supp. 2020) allows a sentencing court to set aside an 

eligible conviction if it finds doing so is in the “best interest” of the 

offender and consistent with the public welfare.

3. 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.

4. Judges. The proper administration of the law demands not only that 

judges refrain from actual bias, but that they avoid all appearances 

of unfairness.

5. Judges: Recusal. A judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances 

of the case would question the judge’s impartiality under an objective 

standard of reasonableness, even though no actual bias or prejudice 

was shown.

6. Judges: Appeal and Error. A trial judge on occasion will misspeak, 

and every ill-advised word will not be the basis for reversible error.

7. Judges: Recusal: Waiver. Failing to request a judge’s recusal when 

aware for an adequate period of time of the court’s conduct or beliefs 

forming the alleged basis for the recusal operates as a waiver of 

that right.

8. Judges: Recusal: Time. The issue of judicial disqualification is timely 

if submitted at the earliest practicable opportunity after the disqualifying 

facts are discovered.

Nebraska Supreme Court Online Library

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

05/13/2022 01:06 AM CDT
- 369 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

9. Courts: Convictions. The statutory mandate of Neb. Rev. Stat. 

§ 29-2264 (Cum. Supp. 2020) that the court consider “[a]ny other 

information the court considers relevant” does not empower the court 

to rest its decision on irrelevant or erroneous facts or misperceptions of 

the law.

10. Courts: Convictions: Prosecuting Attorneys. The court may, in its 

discretion, give weight to the county attorney’s recommendation with 

respect to a petition under Neb. Rev. Stat. § 29-2264 (Cum. Supp. 2020), 

but it is not obliged to do so.

11. Statutes: Appeal and Error. An appellate court gives statutory language its plain and ordinary meaning and will not read into a statute a 

meaning that is not there.

Appeal from the District Court for Lancaster County: Lori 

A. Maret, Judge. Affirmed.

Kevin Ruser and Ryan P. Sullivan, of University of Nebraska 

Civil Clinical Law Program, and Jayden Barth and Rachel T. 

Dick, Senior Certified Law Students, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ., and Meismer, District Judge.

Freudenberg, J.

I. INTRODUCTION

This case presents an appeal from the denial of a petition to 

set aside a conviction pursuant to Neb. Rev. Stat. § 29-2264 

(Cum. Supp. 2020). The petitioner, with the assistance of a publicly funded pro bono program at the University of Nebraska 

College of Law, has been pursuing set asides of several eligible 

convictions. All preceding petitions had been successful, and 

the State supported the present set aside request.

The district court expressed concern at the hearing regarding a recent weapons conviction. It also voiced certain misunderstandings, corrected by the State, about the effects of 
- 370 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

setting aside convictions and whether other judges had fully 

reviewed the petitioner’s criminal record. The court hypothesized that as a result of the petitioner’s crimes being set aside, 

he could, ultimately, commit a future act of domestic terrorism 

and the media would direct blame upon the courts for having 

simply “signed off” on the process. The court also questioned 

whether the petitioner’s representation by a publicly funded 

educational program was a good use of taxpayer money. The 

petitioner asserts the court’s ruling was based upon untenable 

and unreasonable reasoning and impermissible bias and, thus, 

was an abuse of discretion.

II. BACKGROUND

Mark A. Brunsen appeals from the denial of his motion 

to set aside, pursuant to § 29-2264, his 1988 conviction of 

the Class I misdemeanor of theft by receiving a stolen item, 

$100 to $300. He was sentenced to 4 months in jail, which 

he served.

1. Prior History and Behavior 

After Sentencing

At the hearing, Brunsen’s attorney, from the civil clinic at 

the University of Nebraska College of Law, pointed out that 

Brunsen, who was then 51 years of age, has, since a conviction in 2017, committed no crimes other than minor traffic 

offenses. Brunsen had “turned [his] life around,” is gainfully 

employed, and is involved with the local community through 

volunteering.

Brunsen works as a truckdriver and has, for the past 2 years, 

been employed as an owner/operator leased to a transportation 

company. He was trying to set aside all eligible prior convictions in order to obtain a transportation worker card, or “TWIC 

card,” issued by the “TSA and Homeland Security,” which 

would allow him to take shipping containers in and out of 

railyards. He also wished to obtain a “HazMat Safety Permit 

[which] would allow him to haul for local co-ops.”
- 371 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

Brunsen testified that the conviction he was seeking to set 

aside arose from him being “one of the individuals in a stolen car.” Brunsen felt “[a]shamed, terrible” about that conviction and was “hanging with the wrong people.” He acknowledged a number of “run-ins with the law” from his “teen 

years through [his] 30s.” He regretted doing “any of those 

things back then” and wished he “would have got straightened 

out sooner.”

Brunsen explained that he was seeking to set aside the 1988 

conviction “to continue on the successful path that I’ve gotten 

on now and be judged on my character and my merits instead 

of my past criminal history and offenses.” He said, “I’m not 

trying to erase my prior mistakes, but I’m — I don’t want to 

be defined by them.”

Brunsen’s criminal history, entered into evidence at the hearing, shows numerous prior convictions, beginning when he was 

a teenager. These generally involved nonviolent misdemeanor 

crimes of dishonesty and continued largely unabated until 

Brunsen approached his forties. In addition to the 1988 conviction, Brunsen’s record contains the following convictions 

in Nebraska, excluding minor traffic infractions. Brunsen’s 

criminal record reflects that several of these convictions were 

set aside in 2020.

(a) 1980s

In 1986, Brunsen was found guilty of backing against traffic 

and leaving the scene of a property damage accident. In 1987, 

he was found guilty of being a minor in possession of liquor 

and of stealing money or goods less than $300. In 1988, he 

was found guilty of two counts of stealing money or goods less 

than $300. He was also found guilty of making a false statement, liquor consumption in a prohibited place, and minor in 

possession of liquor. In 1989, Brunsen was convicted of felony 

forgery in the second degree, misdemeanor theft by unlawful 

taking, failure to appear on a citation, and three counts of stealing money or goods less than $300.
- 372 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

(b) 1990s

In 1990, Brunsen was convicted of making a false statement. 

In 1991, he was found guilty of unlawful possession or consumption of alcohol by a minor and making a false statement. 

He was also convicted of making a false statement to a police 

officer and of possessing, selling, or discharging an unlawful firearm. In 1992, Brunsen was convicted of two counts of 

theft by unlawful taking. In 1993, Brunsen had misdemeanor 

convictions of insufficient funds check under $100, stealing 

money or goods less than $500, and failing to appear in court. 

In 1994, he was convicted of attempting a Class III or IIIA 

felony, failure to appear, and of an insufficient funds check 

under $100. In 1995, Brunsen was convicted of issuing a bad 

check of less than $100, driving during suspension, possessing 

stolen property, possessing drug paraphernalia, and failure to 

appear in court.

In 1996, Brunsen was convicted of operating a motor vehicle without a license, negligent driving, and failure to appear 

in court. In 1997, he was convicted of injuring or destroying 

property of another and negligent driving. In 1998, Brunsen 

was convicted of false reporting, selling alcohol to a minor, 

shoplifting, fraudulently obtaining property under $100, and 

failure to appear. He was convicted in 1999 of violating 

probation, having fictitious plates/unlawful display, and no 

valid registration.

(c) 2000 to 2012

Brunsen had misdemeanor convictions in 2000 of shoplifting, fraudulently obtaining property under $100, issuing a bad 

check for less than $100, stealing money or goods less than 

$300, failure to appear, and attempt of a Class IV felony. He 

had misdemeanor convictions in 2001 of issuing a bad check 

for less than $100, possessing drug paraphernalia, and operating a motor vehicle with a suspended license. In 2002, Brunsen 

was convicted of driving during revocation, stealing money 

or goods less than $300, and no proof of insurance. In 2003, 
- 373 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

Brunsen was convicted of stealing money or goods less than 

$500 and failure to appear in court. In 2004, he was convicted 

of having fictitious plates/unlawful display. In 2008, he was 

found guilty of driving under the influence, first offense, and 

failing to appear in court. In Colorado, Brunsen was convicted 

in 2012 of theft under $500.

(d) 2017 Conviction

The most recent conviction, in 2017, was for attempted possession of a deadly weapon by a prohibited person. Brunsen 

was sentenced to 12 months’ probation.

Brunsen testified at the hearing that the plea-based 2017 conviction stemmed from his staying in a bedroom at his father’s 

house in 2016. Brunsen’s brother owned a decorative knife that 

the brother had hung on the wall of the bedroom. Brunsen was 

using another knife, his own, to secure the bedroom door that 

could not have a lock mounted in it. The weapons were discovered during a drug raid served on the house.

Brunsen asserted that he did not know the knives were considered deadly weapons and prohibited. His counsel explained 

that when Brunsen was convicted of the underlying felony 

conviction, they were not. Brunsen described that “[i]t was 

ignorant on my part,” he “should have been smarter and known 

about that,” “[i]t was completely my fault. I — I should have 

known better,” and he regretted it.

2. Discussion at Hearing

The State supported setting aside the 1988 conviction, 

explaining:

Judge, in consideration of the statutory factors, the testimony of . . . Brunsen, the passage of the period of time 

between the subject offense and today’s date, as well as 

the passage of time of law abiding conduct, the State 

believes that the set aside should be granted and that . . . 

Brunsen should be granted the relief sought. State has no 

objection to the Court ordering that relief.
- 374 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

Brunsen’s counsel argued Brunsen was a good candidate for 

set aside because he was “owning up” to his mistakes. But the 

court responded, “Do you not agree that accepting responsibility would also be accepting the consequences of the life you’ve 

led to this point?”

When Brunsen’s counsel suggested that the most recent 

2017 conviction was a “blip” of being “caught in a house that 

had a couple knives,” the court responded that Brunsen was 

caught in a “house that was being raided for drugs.”

(a) Other Set Asides, Legal Effect of Set Asides, and 

Possible Future Bombing and Bad Publicity

The court expressed concern that if it granted the set aside, 

Brunsen’s record would be “wiped clean,” and that employers 

checking his criminal history would no longer see the crime. 

The court then summarized its apprehensions about whether 

Brunsen was “a good person to take a risk on,” in light of 

Brunsen’s ambitions as a truckdriver and the court’s perception that other judges had “just signed off” on setting aside 

Brunsen’s other convictions:

See, because here’s what I think: I go ahead and I set 

this aside and then let’s say, God forbid, . . . Brunsen 

goes out and does something really stupid. And then, you 

know, the Journal Star picks up the story and decides, 

well, geez, this guy, he went to court and he had all these 

several things set aside, including felony convictions. 

And, guess what, no judge even looked at the evidence, 

they just signed off on it, because the County Attorney’s 

Office signed off on it. I mean this — these are the kinds 

of things that play around in my head.

And he’s a — you know, he’s got a CDL. He’s a truck 

driver. He’s an owner/operator. He wants to be able to 

transport hazardous materials. I mean these things are 

like running through my head here, you know, the kinds 

of things that, you know, maybe ended up down in 

Oklahoma City, you know, not too many years ago, when 
- 375 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

I was still a child. You know, these are the things that 

kind of run through my head, and I think, is this really, 

you know, a good person to take a risk on. Those are the 

things the Court has to consider, by State law. The Court 

has to consider those things.

And it appears to me like I’m the only Court that 

has even seen this evidence. And so it kind of lands in 

my lap.

In response, the State clarified that in all the other cases setting aside Brunsen’s eligible prior convictions, the courts had 

before them the “JUSTICE entries,” Brunsen’s criminal history, and the factual basis for the convictions sought to be set 

aside. In at least one case where the court set aside a conviction, there was a hearing where Brunsen testified and the court 

was presented with very similar evidence to that presented in 

the current hearing.

The State also clarified the legal and practical effect of 

the set aside, if granted. It explained that Brunsen’s criminal 

record would still reflect the prior conviction, but that it was 

set aside, and employers would be able to see everything associated with the conviction.

The court did not expressly indicate during the hearing 

whether it accepted these clarifications, but it made no further 

legal assertions indicating disregard for such clarifications.

(b) Alleged Commentary on 

“Clean Slate Program”

During the course of the hearing, Brunsen’s counsel noted 

that of the approximately 200 clients he had worked with 

through the “Clean Slate Program,” Brunsen was one of the best 

candidates for setting aside prior convictions. This led to the 

court’s inquiring about the program, which counsel explained 

usually involved referrals from veterans organizations and 

vocational rehabilitation counselors to work with prior criminals to rehabilitate their records, through the “mechanisms that 

our Legislature has given” in order to “incentivize people to 

stay on the right path and to reduce recidivism.”
- 376 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

Brunsen’s counsel, in arguing for set aside, pointed out 

it had been 32 years since the crime in question. The court 

pointed out that Brunsen has had a lot of convictions since the 

crime he was seeking to set aside. Counsel responded he did 

not disagree. The court then said, “And this is — this is how 

we’re spending our tax dollars in education, as well.” When 

Brunsen’s counsel responded with his belief these were tax 

dollars “really well spent,” the court interjected that “reasonable minds could differ.”

3. Court’s Order

The court did not pronounce its decision at the hearing. 

Four days after the hearing, the court issued its written disposition. The court’s order stated simply, “The Court, being fully 

advised in the premises, now finds that the requested relief 

should be and hereby is denied.”

Thus, it overruled Brunsen’s motion to set aside his 1988 

conviction. The court did not make any explicit findings of fact 

or articulate its reasoning in the order.

III. ASSIGNMENT OF ERROR

Brunsen assigns that the district court abused its discretion 

by refusing to grant his petition to set aside his conviction.

IV. STANDARD OF REVIEW

[1] An appellate court reviews decisions of whether to set 

aside an eligible conviction under § 29-2264 for an abuse 

of discretion. 1

V. ANALYSIS

[2] Section 29-2264 allows a sentencing court to set aside 

an eligible conviction if it finds doing so is in the “best 

interest” of the offender and consistent with the public welfare. 2 Subsection (4) of § 29-2264 sets forth that in determining whether to set aside the conviction, the court “shall 

1 See State v. Kudlacz, 288 Neb. 656, 850 N.W.2d 755 (2014).

2 See Woodward v. Lahm, 295 Neb. 698, 890 N.W.2d 493 (2017).
- 377 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

consider” (a) the behavior of the offender after sentencing; 

(b) the likelihood that the offender will not engage in further 

criminal activity; and (c) any other information the court considers relevant. Subsection (5) of § 29-2264 states that “[t]he 

court may grant the offender’s petition and issue an order setting aside the conviction when in the opinion of the court the 

order will be in the best interest of the offender and consistent 

with the public welfare.”

Other provisions of subsection (5) of § 29-2264 describe 

the positive effects for the applicant of having a conviction set 

aside. The order setting aside the conviction shall nullify the 

conviction, remove all civil disabilities and disqualifications 

imposed as a result of the conviction, and notify the offender 

to consult with any attorney regarding the effect of the order, 

if any, on the offender’s ability to possess a firearm under state 

or federal law.

However, subsection (6) of § 29-2264 provides that setting 

aside a conviction shall not preclude the use of the conviction 

for numerous other matters expressly set forth therein, including determining the sentence on any subsequent conviction of 

a criminal offense; proving the conviction as evidence of the 

commission of the offense in the event an offender is charged 

with a subsequent offense and the penalty provided by law is 

increased if the prior conviction is proved; using the conviction 

as evidence of commission of the offense for purposes of determining whether an application filed or a license issued under 

childcare laws should be denied, suspended, or revoked; and 

determining eligibility for, or obligations relating to, a commercial driver’s license.

[3] The parties agree that the decision of whether to set 

aside a conviction pursuant to § 29-2264 is discretionary, and 

in exercising its discretion, the court must consider the factors 

specified therein. 3 An abuse of discretion occurs when a trial 

court’s decision is based upon reasons that are untenable or 

3 See, State v. Kudlacz, supra note 1; State v. Wester, 269 Neb. 295, 691 

N.W.2d 536 (2005).
- 378 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

unreasonable or if its action is clearly against justice or conscience, reason, and evidence. 4

Brunsen argues that the district court’s decision was arbitrary and capricious, and untethered from statutory factors, and 

that it violated due process and deprived him of a just result 

and substantial rights. He elaborates that the district court 

impermissibly relied on a “fear of personal backlash from 

the press” and a biased belief that the “Clean Slate Program 

was a misuse of taxpayer money.” 5 He asserts the court also 

made an unwarranted comparison of Brunsen to a violent mass 

murderer rather than conducting a realistic analysis, based on 

the objective evidence before it, of whether Brunsen might 

reoffend in the future. Further, Brunsen asserts the court’s 

decision was influenced by a misunderstanding of the function 

of a set aside, conflating it with record sealing and believing 

employers would no longer be able to see it, as well as by a 

misapprehension that other courts setting aside Brunsen’s other 

convictions had not fully considered Brunsen’s record. Finally, 

Brunsen argues courts should give substantial weight to the 

State’s recommendations with respect to petitions to set aside 

convictions, and the court in this case did not.

1. Bias

[4,5] We first address Brunsen’s claims of bias. The proper 

administration of the law demands not only that judges refrain 

from actual bias, but that they avoid all appearances of unfairness. 6 A judge should recuse himself or herself when a litigant 

demonstrates that a reasonable person who knew the circumstances of the case would question the judge’s impartiality 

under an objective standard of reasonableness, even though no 

actual bias or prejudice was shown. 7

4 In re Interest of Victor L., 309 Neb. 21, 958 N.W.2d 413 (2021).

5 Brief for appellant at 8.

6 See Franks v. Franks, 181 Neb. 710, 150 N.W.2d 252 (1967). See, also, 

State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).

7 State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
- 379 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

[6] We have recognized that certain comments made from 

the bench are “‘too intemperate to be ignored.’” 8 On the other 

hand, “‘a trial judge on occasion will misspeak’” and “‘every 

ill-advised word will not be the basis for reversible error.’” 9

While some of the judge’s commentary in this case was ill 

advised, we do not read the record as reflecting a bias against 

the “Clean Slate Program” or the law that the judge was called 

upon to implement.

The judge’s commentary was made in the context of 

Brunsen’s particular circumstance of having a lengthy criminal record. In other words, the judge was questioning the use 

of tax dollars to bring the petition at issue, not such petitions 

generally. The extent of the petitioner’s criminal history is a 

relevant and proper consideration in determining the likelihood that the offender will not engage in further criminal 

activity and whether the order will be consistent with the public welfare. The comments were insufficient to question the 

judge’s impartiality.

[7,8] In any event, failing to request a judge’s recusal when 

aware for an adequate period of time of the court’s conduct or 

beliefs forming the alleged basis for the recusal operates as a 

waiver of that right. 10 The issue of judicial disqualification is 

timely if submitted at the earliest practicable opportunity after 

the disqualifying facts are discovered. 11 Here, there was adequate time, between the commentary now complained of and 

the court’s issuance of its ruling, for Brunsen’s counsel to have 

moved for the judge to recuse herself. Because no timely issue 

of disqualification was submitted below, it was waived.

8 State v. Pattno, supra note 6, 254 Neb. at 741, 579 N.W.2d at 508, quoting 

U.S. v. Bakker, 925 F.2d 728 (4th Cir. 1991).

9 Id.

10 See, In re Interest of J.K., 300 Neb. 510, 915 N.W.2d 91 (2018); State v. 

McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004); State v. Lotter, 255 Neb. 

456, 586 N.W.2d 591 (1998), modified on denial of rehearing 255 Neb. 

889, 587 N.W.2d 673 (1999).

11 In re Interest of J.K., supra note 10.
- 380 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

2. Irrelevant, Erroneous, or 

Speculative Information

[9] The greater part of Brunsen’s argument is that the court’s 

decision was based on misinformation and unjustified, imaginary scenarios. We have said that due process requires that 

sentencing judges consider only constitutionally acceptable 

and relevant information as the basis for a sentence. 12 This is 

consistent with precedent of the U.S. Supreme Court that due 

process protections against arbitrary government decisions give 

the offender a right to a rational procedure of selecting a sentence based upon relevant considerations and accurate information. 13 In other contexts, we have said that judicial discretion 

is not an absolute to be exercised arbitrarily, but is a legal discretion. 14 We conclude the statutory mandate of § 29-2264 that 

the court consider “[a]ny other information the court considers 

relevant” does not empower the court to rest its decision on 

irrelevant or erroneous facts or misperceptions of the law. And 

the parties do not suggest otherwise.

However, we find in this case that the court did not rest its 

decision on irrelevant or erroneous facts. First, whether the 

court misunderstood that other courts had just “signed off” on 

setting other convictions aside is largely irrelevant. The court’s 

obligation, regardless, was to independently consider the petition before it, and the record shows it did so.

As for the court’s concerns about the set aside wiping 

Brunsen’s record clean, such that employers would no longer 

see his prior convictions, the State clarified at length this 

12 See State v. Pattno, supra note 6. See, also, State v. Cerritos-Valdez, 295 

Neb. 563, 889 N.W.2d 605 (2017); State v. Barker, 231 Neb. 430, 436 

N.W.2d 520 (1989).

13 See, United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 

(1972); Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 

(1948). See, also, California v. Ramos, 463 U.S. 992, 103 S. Ct. 3446, 77 

L. Ed. 2d 1171 (1983).

14 See Schleif v. State, 131 Neb. 875, 270 N.W. 510 (1936).
- 381 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

was not the case. Further, while not speaking in terms of 

employers, per se, § 29-2264 itself conveys that set asides do 

not wipe one’s record clean. Finally, Brunsen’s criminal record, 

which had been received by the court as evidence, showed all 

his prior convictions, separately indicating which ones were set 

aside. We will not presume from the judge’s silence that the 

judge did not take the State’s clarifications to heart or carefully 

review Brunsen’s criminal record before issuing the order. Nor 

will we presume the judge failed to read and properly understand § 29-2264 prior to issuing the order. The trial judge is 

presumed to be familiar with and to have applied the proper 

rules of law, unless it clearly appears otherwise. 15

We do not read the court’s discussion of the Oklahoma City 

bombing as a determination that Brunsen has a propensity 

for violence, which was based on an imaginary scenario and 

complete speculation rather than a realistic analysis of whether 

Brunsen might reoffend in the future. Nor do we believe 

the record reflects that the court’s decision was improperly 

influenced by the fear of imagined bad publicity. While we 

discourage such colorful hypothesizing, the court was making 

the point that it felt a serious and independent responsibility to 

evaluate whether granting Brunsen’s set aside of his conviction 

was consistent with the public welfare, which was in doubt 

due to an extensive criminal history. The court’s point was 

dramatized, but it does not appear the court believed, based 

on a loose association of trucks and dangerous materials, that 

Brunsen’s criminal record was predictive of mass murder. And 

we note, further, that this commentary took place before the 

State clarified the set aside would not mean Brunsen’s prior 

convictions were hidden from employers or from the federal 

authorities that would issue the transportation credentials he 

wished to obtain.

15 See, Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011); 

State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003). See, also, United 

States v. Tucker, supra note 13.
- 382 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. BRUNSEN

Cite as 311 Neb. 368

3. State’s Recommendation

[10,11] The court’s point that it was not obliged to simply 

“sign[] off” on the petition to set aside the conviction because 

the county attorney had done so is well taken. While the court 

may, in its discretion, give weight to the county attorney’s 

recommendation, we disagree with Brunsen’s argument that it 

had an obligation to do so. No such obligation is set forth in 

§ 29-2264. We give statutory language its plain and ordinary 

meaning and will not read into a statute a meaning that is 

not there. 16

VI. CONCLUSION

In conclusion, we disagree with Brunsen’s contention that 

the district court’s decision was arbitrary and capricious and 

untethered from statutory factors. Rather, the court implicitly 

found that setting aside Brunsen’s 1988 conviction was inconsistent with the public welfare, after considering the likelihood, 

based upon an extensive criminal history with a conviction as 

recent as 2017, that Brunsen would not engage in further criminal activity. Abuse of discretion is a deferential standard of 

review. 17 And we cannot say that the court abused its discretion 

in denying Brunsen’s petition to set aside his 1988 conviction. 

The district court’s order is affirmed.

Affirmed.

Heavican, C.J., not participating.

16 See, e.g., Lozier Corp. v. Douglas Cty. Bd. of Equal., 285 Neb. 705, 829 

N.W.2d 652 (2013).

17 See, e.g., State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).