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STATE v. WARBURTON

Cite as 30 Neb. App. 315

State of Nebraska, appellee, v. 

Bryan Warburton, appellant.

___ N.W.2d ___

Filed October 26, 2021. No. A-21-035.

1. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to 

suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error. But whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

2. Constitutional Law: Search and Seizure: Police Officers and 

Sheriffs: Evidence: Proof. Both the U.S. and Nebraska Constitutions 

guarantee an individual the right to be free from unreasonable searches 

and seizures. If the State shows by a preponderance of the evidence 

that the police would have obtained the disputed evidence by proper 

police investigation entirely independent of the illegal investigative 

conduct, then such evidence is admissible under the inevitable discovery doctrine.

3. Probable Cause: Words and Phrases. Probable cause means a fair 

probability that contraband or evidence of a crime will be found.

4. Constitutional Law: Arrests: Search and Seizure: Probable Cause. A 

valid arrest based on probable cause that a person is engaged in criminal 

activity is allowed by the Fourth Amendment, and if an arrest is made 

based upon probable cause, a full search of the person may be made 

incident to that arrest.

5. Sentences: Appeal and Error. Absent an abuse of discretion by the trial 

court, an appellate court will not disturb a sentence imposed within the 

statutory limits.

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

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

Nebraska Supreme Court Online Library

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

11/02/2021 08:08 AM CDT
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unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence.

7. Sentences. When imposing a sentence, a sentencing judge should customarily 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, 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. However, the sentencing court is not limited to any mathematically applied set of factors.

8. ____. 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.

9. 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.

10. Effectiveness of Counsel: Records: Appeal and Error. 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.

11. Effectiveness of Counsel: Appeal and Error. When an ineffective 

assistance of counsel claim 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.

12. Effectiveness of Counsel: Proof. 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.

13. Motions for New Trial: Verdicts: Time. A motion for new trial premised upon Neb. Rev. Stat. § 29-2101(1), (4), and (7) (Reissue 2016) 

must be filed within 10 days after the verdict was rendered unless such 

filing is unavoidably prevented.

14. ____: ____: ____. The language of Neb. Rev. Stat. § 25-2221 (Reissue 

2016) clearly indicates that the day the verdict was rendered should be 

excluded from the calculation of the 10-day period to file a motion for 

new trial and that instead, the period should begin the day after the verdict was rendered.

Appeal from the District Court for Buffalo County: Ryan C. 

Carson, Judge. Affirmed.
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STATE v. WARBURTON

Cite as 30 Neb. App. 315

John D. Icenogle, of Bruner, Frank, Schumacher & Husak, 

L.L.C., and Jerad Murphy, Buffalo County Public Defender, for 

appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Riedmann and Arterburn, Judges.

Arterburn, Judge.

I. INTRODUCTION

After a bench trial, Bryan Warburton was convicted by the 

district court for Buffalo County of possession of more than 10 

grams but less than 28 grams of methamphetamine, with intent 

to distribute, and possession of money used or intended to be 

used to facilitate the manufacture, distribution, or delivery 

of a controlled substance. The court subsequently sentenced 

Warburton to a prison term of 15 to 30 years. Warburton 

appeals from his convictions and sentences. On appeal, he 

challenges the district court’s failure to suppress the evidence 

seized during a traffic stop of his vehicle. He also alleges that 

the court imposed excessive sentences and that he received 

ineffective assistance of trial counsel. Following our review of 

the record, we affirm Warburton’s convictions and sentences.

II. BACKGROUND

On March 2, 2020, the State filed an information charging 

Warburton with possession of more than 10 grams but less than 

28 grams of methamphetamine, with intent to distribute, in 

violation of Neb. Rev. Stat. § 28-416(1) (Cum. Supp. 2020), a 

Class ID felony, and with possession of money used or intended 

to be used to facilitate the manufacture, distribution, or delivery of a controlled substance, in violation of § 28-416(17), a 

Class IV felony. Both of the charges against Warburton stem 

from a traffic stop of his vehicle which occurred on the afternoon of January 29, 2020.

At approximately 1 p.m. on January 29, 2020, Pat 

McLaughlin, an officer with the Kearney Police Department, 
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Cite as 30 Neb. App. 315

was on duty and driving a marked police cruiser when he 

heard a call over his radio regarding a shoplifting that had just 

occurred at a discount store near his location. The call indicated 

that a female shoplifter had run out of the store and “got into 

a blue Buick LeSabre type vehicle” with a male driver. The 

vehicle had fled from the store’s parking lot. From his location, McLaughlin observed traffic until he observed a “greenish 

four-door vehicle drive by.” The vehicle was being driven by a 

male, and McLaughlin could see “some blond hair in the passenger seat.” McLaughlin began following the vehicle until he 

confirmed that its license plate matched the license plate of the 

vehicle involved in the shoplifting incident.

McLaughlin activated his police cruiser’s emergency lights 

and attempted to initiate a traffic stop of the vehicle. However, 

the vehicle continued for “at least four or five blocks” before 

pulling to the side of the road. During the time that McLaughlin 

was attempting to stop the vehicle, he observed both the driver 

and the passenger to be moving around inside of the vehicle. 

Specifically, McLaughlin observed the driver to be “shifting” 

in his seat. McLaughlin was unable to see the driver’s hands on 

the steering wheel. The female passenger was bent over, moving something around on the floorboard of the vehicle.

Once the vehicle pulled over, McLaughlin approached the 

passenger side of the vehicle with his gun drawn due to the 

“suspicious” movements of the occupants. As McLaughlin 

spoke with the passenger, who readily admitted to having shoplifted items from the store, a second Kearney police officer, 

Jason Garrels, arrived at the scene and approached the driver 

of the vehicle, who was identified as Warburton.

Garrels asked Warburton to step out of the vehicle. Once 

Warburton was outside of the vehicle, Garrels placed him in 

handcuffs and began to pat him down to determine if he had 

any weapons on his person. Garrels explained that such a weapons search was his “regular course of practice” prior to placing 

a person in his police cruiser or prior to conducting a further 

investigation. In particular, Garrels believed that a weapons 
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search was necessary because of Warburton’s involvement in 

the shoplifting incident and because he had failed to immediately pull over after McLaughlin initiated a traffic stop.

Garrels observed that Warburton’s shirt “wasn’t sitting 

right.” After patting down the area, Garrels felt an item under 

Warburton’s shirt which he believed to be a plastic baggie, 

tucked inside his waistband. After he lifted Warburton’s shirt, 

a baggie was visible. Garrels asked Warburton, “What do you 

got in here?” as Garrels pulled out a baggie. Warburton indicated that the baggie contained methamphetamine. Garrels’ 

observation of the baggie revealed it to be mostly empty with 

some possible drug residue. Garrels then asked Warburton if 

he had anything else on his person as Garrels continued to 

pat him down. Warburton indicated that he had more methamphetamine inside of his underwear, hidden under his genitalia. 

McLaughlin retrieved that methamphetamine, which was subsequently determined to weigh almost 15 grams. Shortly thereafter, Garrels conducted a search of Warburton’s person, the 

passenger’s purse, and the interior of the vehicle. Additional 

methamphetamine was located on the driver’s seat of the 

vehicle. A combined total of approximately $1,500 in cash was 

also recovered. Warburton was arrested for possession of a 

controlled substance and transported to jail.

Prior to trial, Warburton filed a motion to suppress all of the 

evidence obtained during the January 29, 2020, traffic stop. In 

his motion, Warburton alleged that the evidence was discovered as a result of an unlawful search and seizure, in violation of his rights under the 4th and 14th Amendments to the 

U.S. Constitution. The motion also requested that Warburton’s 

statements to Garrels during the pat-down search should be 

suppressed. At the suppression hearing, Warburton’s counsel 

also argued that these statements were elicited as a result of 

a custodial interrogation of Warburton that took place prior 

to his being informed of his Miranda rights. No mention 

of a Miranda violation was mentioned in the motion itself, 

however. The motion sought suppression of the statements 
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based only on Warburton’s contention that the search was illegal due to a lack of reasonable suspicion.

A hearing was held on Warburton’s motion in June 2020. 

At the hearing, McLaughlin and Garrels testified in detail 

about their interactions with Warburton during the January 

traffic stop. Ultimately, the district court overruled Warburton’s 

motion to suppress. In its order, the court rejected both the 

Fourth Amendment issue raised in Warburton’s motion and the 

Miranda issue raised during the hearing.

In October 2020, a bench trial was held. Prior to the presentation of evidence, Warburton renewed his motion to suppress. 

The district court again overruled the motion.

At the trial, McLaughlin and Garrels testified as detailed 

above. In addition to his testimony about the discovery of 

methamphetamine on Warburton’s person and in his vehicle, 

Garrels, who had recently been promoted to the position of 

drug investigator within the Kearney Police Department, testified regarding his familiarity with methamphetamine “quantities and weights.” Garrels explained that typically, a user of 

methamphetamine would consume .1 to .2 of a gram of methamphetamine in order to achieve a “high.” Garrels indicated 

that he had spoken with some individuals who had admitted to 

using up to 3.5 grams of methamphetamine during a week. This 

amount of methamphetamine is also referred to as “an eightball.” Distributors, or dealers, of methamphetamine typically 

possess methamphetamine in “eightball quantities.” Garrels testified that he and McLaughlin retrieved multiple “eightball[s]” 

of methamphetamine from Warburton. Based upon his training 

and experience, Garrels opined that the 14.99 grams of methamphetamine seized from Warburton is consistent with a quantity for use in distribution of methamphetamine. Garrels indicated that 14.99 grams of methamphetamine is “far in excess of 

[a] user quantity of methamphetamine.”

Garrels also provided further testimony about the cash found 

on Warburton’s person and in his vehicle. Garrels described 

the cash as “not neatly organized. It appeared that he had just 
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received different denominations and stuck it in his pocket.” 

Garrels believed, based upon his training and experience, that 

the cash seized from Warburton was handled in a manner consistent with drug transactions. Garrels further testified to his 

belief that Warburton had obtained the cash from individuals 

who had purchased methamphetamine from him.

At trial, both McLaughlin and Garrels testified as to statements made by Warburton after he was read his Miranda

rights. Warburton admitted that the methamphetamine found 

was his. He told the officers that he was in possession of “a 

couple of eightballs” and that he had been a user of methamphetamine for 35 years. Warburton explained that he had 

attempted to hide the methamphetamine in his underwear after 

McLaughlin initiated the traffic stop of his vehicle. Warburton 

indicated that he had been laid off 1 month prior to January 

29, 2020, and that the money he had on his person and in his 

vehicle was his savings.

The State also called Sgt. Glenn Kemp from the Adams 

County sheriff’s office to testify. Kemp is a drug investigator 

and a member of a drug task force. In January 2020, Kemp 

was investigating Warburton after receiving multiple reports 

of “come-and-go traffic late at night [and] early in the morning” at his rural residence. Kemp indicated that such traffic 

patterns were not typical of Warburton’s rural residence, and 

as a result, Kemp suspected that Warburton was selling drugs. 

After Warburton was arrested on January 29, Kemp obtained 

a search warrant for his residence, which he executed on 

January 31. During the search, Kemp located a large amount 

of small baggies, a digital electronic scale with drug residue, 

and a lockbox with drug paraphernalia inside. He testified that 

all of these items were commonly utilized in drug distribution operations.

Ultimately, the district court found Warburton guilty of possession of more than 10 grams but less than 28 grams of methamphetamine with intent to distribute and possession of money 

used or intended to be used to facilitate the manufacture, 
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distribution, or delivery of a controlled substance. The court 

subsequently sentenced Warburton to 15 to 30 years’ imprisonment on the first count and 2 to 2 years’ imprisonment on the 

second. The sentences were ordered to be served concurrent 

with each other.

Warburton appeals his convictions and sentences here.

III. ASSIGNMENTS OF ERROR

On appeal, Warburton asserts that the district court erred in 

overruling his motion to suppress evidence seized as a result of 

the traffic stop and as a result of statements he made prior to 

being read his Miranda rights. He also asserts that the district 

court imposed excessive sentences and that he received ineffective assistance of trial counsel when counsel failed to timely 

file a motion for new trial.

IV. ANALYSIS

1. Motion to Suppress

On appeal, Warburton challenges the district court’s decision to overrule his motion to suppress. He asserts that Garrels 

unlawfully “expanded” his search for weapons on Warburton’s 

person by also searching for controlled substances. Brief for 

appellant at 14. In addition, Warburton asserts that when 

Garrels asked him what was in the baggie in his waistband 

and if he had anything else on his person, such questioning 

constituted a custodial interrogation which occurred prior to 

Warburton’s being advised of his Miranda rights. Warburton 

alleges that as a result of the unlawful search and questioning, 

the methamphetamine found in the course of the traffic stop 

should have been suppressed.

In its brief to this court, the State argues that law enforcement officers acted lawfully in searching Warburton during 

the traffic stop. However, the State also asserts that the methamphetamine found on Warburton’s person would have been 

inevitably discovered after a lawful search of his vehicle 

revealed the presence of methamphetamine on the driver’s 
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seat. Upon our review, we agree with the State’s assertion that 

the methamphetamine on Warburton’s person would have been 

inevitably discovered even if he had not been initially patted 

down for weapons or questioned regarding what was on his 

person. As such, we need not decide the validity of the search 

or questioning challenged by Warburton.

(a) Additional Background

After McLaughlin stopped Warburton’s vehicle, both 

Warburton and his female passenger were asked to step outside 

of the vehicle. The passenger readily admitted to shoplifting 

from the store. And, as we described above, a large amount 

of methamphetamine was found on Warburton’s person after 

he was patted down. As a result of both the passenger’s 

admission to shoplifting and the presence of methamphetamine 

on Warburton, Garrels ultimately undertook a search of the 

vehicle. Garrels’ search of the vehicle was recorded on his 

body camera. It is apparent from the body-camera footage that 

Garrels’ initial search of the vehicle was focused on recovering the items that had been shoplifted. Garrels initially focused 

his search of the vehicle on the passenger side. He searched 

the passenger-side floorboard, the seat, a compartment on the 

inside of the door, and the center console. However, while 

searching the passenger seat, he saw a substance that appeared 

to be methamphetamine in plain view on the driver’s seat. The 

video confirms his observation. Garrels did not immediately 

collect the methamphetamine, but he did inform the other officers on the scene of its presence. Eventually, Garrels continued 

his search of the vehicle on the driver’s side and instructed 

another officer to collect the methamphetamine located on the 

driver’s seat.

Before Warburton was transported to jail, he agreed to have 

McLaughlin move his vehicle to a nearby residential road, 

rather than have the vehicle towed. Before McLaughlin got 

in the vehicle to move it, Garrels again reminded him to first 

collect the methamphetamine on the driver’s seat. McLaughlin 
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testified that the methamphetamine on the seat included “two 

rocks and [some] powder.” He collected the “rocks” and then 

wiped the residue from the seat before driving the vehicle.

(b) Standard of Review

[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. 

Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question 

of law that an appellate court reviews independently of the 

trial court’s determination. State v. Nunez, 299 Neb. 340, 907 

N.W.2d 913 (2018).

(c) Analysis

In his brief on appeal, Warburton details why he believes 

the search of his person and the questions asked of him by 

Garrels during that search were unlawful. However, Warburton 

does not challenge the search of his vehicle. Instead, he merely 

asserts that “[h]ad the officers not found the narcotics discovered on [Warburton’s] person, they would not have requested 

to move [his] vehicle and would not have found the narcotics 

inside the vehicle.” Brief for appellant at 14. We disagree with 

Warburton’s claim that law enforcement officers discovered 

the methamphetamine on the driver’s seat of the vehicle only 

because of the search of Warburton’s person. Instead, we find 

that the officers at the scene of the traffic stop had probable 

cause to search Warburton’s vehicle after his passenger admitted to shoplifting. Because the search of the vehicle was lawful 

and the methamphetamine was found in plain sight on the seat 

where Warburton was sitting, we find that the methamphetamine found on Warburton’s person would have been inevitably discovered. As such, we need not decide whether the search 

of Warburton’s person or the questions asked of him during 

that search were lawful.
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[2] Both the U.S. and Nebraska Constitutions guarantee an 

individual the right to be free from unreasonable searches and 

seizures. See, U.S. Const. amend. IV; Neb. Const. art. I, § 7. 

But if the State shows by a preponderance of the evidence 

that the police would have obtained the disputed evidence by 

proper police investigation entirely independent of any illegal 

investigative conduct, then such evidence is admissible under 

the inevitable discovery doctrine. See State v. Ball, 271 Neb. 

140, 710 N.W.2d 592 (2006). To overcome its burden, the State 

must demonstrate that some lawful means of discovery would 

have produced the evidence in question; that is, such evidence 

inevitably would have been discovered without any police misconduct. Id.

[3] At the suppression hearing, the State presented evidence 

which demonstrated that apart from finding methamphetamine 

on Warburton’s person after removing him from the vehicle, 

officers had probable cause to search his vehicle. Probable 

cause means a fair probability that contraband or evidence of 

a crime will be found. State v. Sanders, 15 Neb. App. 554, 733 

N.W.2d 197 (2007). Here, officers had probable cause to search 

Warburton’s vehicle. The license plate of the vehicle matched 

the license plate of the vehicle involved in a shoplifting at 

the store. When police contacted Warburton’s passenger, she 

readily admitted to the theft. In addition, the passenger was 

observed moving around in the vehicle while McLaughlin was 

attempting to initiate a traffic stop. Such movement included 

bending down over the floorboard of the vehicle, presumably to 

conceal the stolen items. Given these facts, officers had probable cause to search the vehicle for evidence of Warburton’s 

passenger’s theft.

[4] Once officers searched the vehicle and observed the 

methamphetamine on the driver’s seat, where Warburton had 

just been sitting, and given the amount of methamphetamine 

found, they had probable cause to arrest Warburton for possession of a controlled substance. We further note that after 

Warburton was read his Miranda rights, he acknowledged 
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that all of the methamphetamine in the vehicle was his. 

Incident to Warburton’s arrest, officers could then have lawfully searched Warburton’s person. See State v. Perry, 292 Neb. 

708, 874 N.W.2d 36 (2016) (valid arrest based on probable 

cause that person is engaged in criminal activity is allowed 

by Fourth Amendment, and if arrest is made based upon 

probable cause, full search of person may be made incident 

to that arrest). At that time, they would have discovered the 

additional methamphetamine in Warburton’s waistband and in 

his underwear.

Because law enforcement would have inevitably discovered the methamphetamine on Warburton’s person after they 

executed a valid search of his vehicle, we need not decide the 

propriety of Garrels’ initial search of Warburton for weapons, 

nor of the questions asked of Warburton during this initial 

search. We affirm the decision of the district court to overrule 

Warburton’s motion to suppress.

2. Excessive Sentence

Warburton alleges that the district court imposed excessive 

sentences when it sentenced him to a total of 15 to 30 years’ 

imprisonment. Specifically, he asserts that when imposing the 

sentences, the district court failed to consider such mitigating 

factors as his advanced age, his obvious addiction to methamphetamine, and his complete cooperation with law enforcement 

during the January 29, 2020, traffic stop. Upon our review, we 

find no abuse of discretion in the district court’s sentencing 

determinations.

(a) Additional Background

After finding Warburton guilty of the charged crimes, the 

court ordered him to participate in a presentence investigation. The presentence investigation report revealed that 

Warburton was 55 years old at the time of sentencing. He had 

obtained his diploma through the GED program after having 

dropped out of high school in the 11th grade. While Warburton 

reported he had recently been employed doing asphalt work, 
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he was unemployed by the time of his presentence interview. 

Warburton has never been married, but was in a yearlong relationship with the 25-year-old woman in the vehicle with him 

during the January 29, 2020, traffic stop. He had a son who 

died in a car accident at the age of 17.

Warburton has a lengthy criminal history dating back to 

1984. Most significantly, in 1998, he was convicted in federal 

court of conspiracy to distribute a controlled substance. He 

was sentenced to 9 years 7 months’ imprisonment followed 

by 5 years of supervised release. After beginning his term of 

supervised release in 2006, he violated the terms of his release 

and was ultimately sent back to prison for an additional 45 

months. He was finally released from federal prison in May 

2015. Warburton’s other convictions include possession of a 

controlled substance with intent to deliver, trespassing (three 

times), criminal mischief, disturbing the peace (two times), and 

driving under the influence (three times). Warburton also has a 

pending case stemming from the search warrant executed at his 

home in Adams County in January 2020.

Warburton admitted to being a longtime user of methamphetamine. He indicated that he had used methamphetamine regularly since 1984. He estimated he used between 1 and 2 grams 

of the drug per day. He indicated a desire to stop using methamphetamine, but he also failed to complete a substance abuse 

evaluation despite being provided with a voucher. Warburton 

also admitted to previously using marijuana, cocaine, LSD, and 

alcohol. Warburton denied that he had been involved in selling 

methamphetamine at the time of his arrest. However, he did 

admit to selling methamphetamine in the past.

During the presentence interview, Warburton declined to 

take any responsibility for his actions. Instead, he indicated 

that he was “‘railroaded’” by law enforcement during the traffic stop. His overall score of 33 on the “Level of Service/Case 

Management Inventory” placed him in the “very high risk” 

range for reoffense.
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At the sentencing hearing, Warburton’s counsel argued in 

favor of a minimal prison sentence, citing Warburton’s cooperation with police during the traffic stop and his obvious addiction to methamphetamine. Counsel stated, “I think he would 

most benefit from . . . services that will directly be related to 

his addiction. And that can generally be done through postrelease process, rather than in the facility . . . .” Contrary to 

defense counsel, the State argued in favor of a lengthy prison 

sentence in order to prohibit Warburton from continuing to 

provide dangerous controlled substances to other people in 

the community.

Prior to imposing its sentences, the district court explicitly indicated that it had thoroughly reviewed the presentence investigation report and had considered such factors as 

Warburton’s age, his mentality, his significant criminal history, 

his background, and the circumstances of the current offenses. 

The district court noted that it was clear that Warburton was 

addicted to methamphetamine and had incurred struggles as a 

result of that addiction. However, the court also noted the large 

amount of methamphetamine found on Warburton and indicated its belief that this was not a “user amount[].” The court 

then sentenced Warburton to 15 to 30 years’ imprisonment on 

his conviction for possession of more than 10 but less than 

28 grams of methamphetamine with intent to distribute and 

to 2 to 2 years’ imprisonment for possession of money used 

or intended to be used to facilitate the manufacture, distribution, or delivery of a controlled substance. The sentences were 

ordered to be served concurrent with each other.

(b) Standard of Review

[5,6] Absent an abuse of discretion by the trial court, an 

appellate court will not disturb a sentence imposed within the 

statutory limits. State v. Senteney, 307 Neb. 702, 950 N.W.2d 

585 (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.
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(c) Analysis

[7,8] When imposing a sentence, a sentencing judge should 

customarily 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, 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. State v. Mora, 298 Neb. 185, 903 N.W.2d 

244 (2017). However, the sentencing court is not limited to any 

mathematically applied set of factors. 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.

In asserting that his sentences are excessive, Warburton 

does not and cannot dispute that his sentences were within the 

pertinent statutory limits. As charged by the State, possession 

with intent to distribute not less than 10 grams but not more 

than 28 grams of methamphetamine is a Class ID felony. See 

§ 28-416(1) and (10)(c). A Class ID is punishable by a mandatory minimum 3 years’ imprisonment and a maximum of 50 

years’ imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp. 

2020). The district court’s sentence of 15 to 30 years’ imprisonment is clearly within the statutory limits. Similarly, the district 

court’s sentence of 2 to 2 years’ imprisonment for Warburton’s 

conviction of possession of money used or intended to be used 

to facilitate the manufacture, distribution, or delivery of a controlled substance is also within the statutory limits. Possession 

of money used or intended to be used to facilitate the manufacture, distribution, or delivery of a controlled substance is 

a Class IV felony. See § 28-416(17). A Class IV felony is 

punishable by a maximum of 2 years’ imprisonment and 12 

months’ post-release supervision. § 28-105. However in this 

case, imposition of post-release supervision is inapplicable, 

since the sentence was imposed in conjunction with a sentence 

for a Class ID felony.
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Rather than challenging whether his sentences are within the 

statutory limits, Warburton alleges that the district court failed 

to explicitly consider such mitigating factors as his advanced 

age, his addiction to methamphetamine, his level of cooperation with law enforcement during the traffic stop, and the lack 

of violence involved in his offenses.

At the sentencing hearing in this case, the district court 

indicated that it had reviewed the presentence investigation 

report and had considered all of the pertinent factors, including Warburton’s age, his addiction, and the circumstances 

surrounding his offense. Such statement by the court directly 

refutes Warburton’s claim on direct appeal that the court failed 

to consider these mitigating factors. The district court found 

that the seriousness of Warburton’s offenses, coupled with 

his criminal history, which included a lengthy federal prison 

sentence for a similar charge, warranted a significant period of 

imprisonment. Given our review of the record in this case, we 

find no abuse of discretion by the district court in its sentencing determination.

3. Ineffective Assistance of Trial Counsel

In his brief on appeal, Warburton assigns as error that he 

was “denied effective assistance of trial counsel by counsel’s 

failure to file a timely motion for new trial.” In the argument 

section of his brief, Warburton asserts that he was prejudiced 

by counsel’s failure to timely file the motion for new trial 

because the verdict of the district court “was not sustained 

by sufficient evidence” when the State failed to prove beyond 

a reasonable doubt that Warburton possessed methamphetamine with the intent to distribute it. Brief for appellant at 15. 

Warburton contends that the evidence presented merely demonstrated his possession of the controlled substance for his own 

use. He asserts that had counsel filed a timely motion for new 

trial, the district court would have changed its previously rendered verdict. Warburton’s assertion of ineffective assistance 

of counsel is without merit, because counsel did, in fact, timely 

file a motion for new trial.
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Cite as 30 Neb. App. 315

(a) Additional Background

The district court found Warburton guilty of the charged 

offenses immediately following the presentation of evidence 

at the bench trial on October 28, 2020. On November 9, 

Warburton, through his trial counsel, filed a motion for new 

trial. In the motion, he alleged that a new trial was warranted 

pursuant to Neb. Rev. Stat. § 29-2101(1), (4), and (7) (Reissue 

2016). These subsections of § 29-2101 provide that a new trial 

may be granted due to irregularity in the court proceedings 

which resulted in an unfair trial, the verdict not being sustained 

by sufficient evidence, and error of law occurring at the trial, 

respectively.

Prior to a hearing being held on the motion for new trial, the 

State filed a motion to quash. The State’s motion alleged that 

the court should quash the motion for new trial because it had 

been filed more than 10 days after the verdict was rendered 

and was, as a result, not timely filed. On the day of the hearing 

on the motion for new trial, Warburton’s trial counsel filed a 

motion to withdraw the motion for new trial. Warburton’s sentencing hearing proceeded approximately 1 month later.

When Warburton appeared at the sentencing hearing, he 

appeared with new counsel. His new counsel offered into evidence Warburton’s affidavit, in which Warburton stated that he 

had hired new counsel because his previous counsel had withdrawn the motion for new trial without his consent.

On appeal, Warburton is represented by the same counsel 

who represented him at his sentencing hearing. Warburton 

asserts that his original trial counsel provided ineffective assist

ance when counsel failed to file a timely motion for new trial.

(b) Standard of Review

[9-11] Whether a claim of ineffective assistance of trial 

counsel may be determined on direct appeal is a question of 

law. State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020). 

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 
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Cite as 30 Neb. App. 315

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. 

When the claim 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. State v. Sundquist, 

301 Neb. 1006, 921 N.W.2d 131 (2019).

(c) Analysis

[12] 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. See, Strickland 

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

674 (1984); State v. Anderson, 305 Neb. 978, 943 N.W.2d 690 

(2020). The record on direct appeal is sufficient to review a 

claim of ineffective assistance of trial counsel 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.

To show that counsel’s performance was deficient, a defend

ant 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.

Warburton asserts that trial counsel provided ineffective 

assistance by failing to file a timely motion for new trial. 

However, upon our review, we conclude that the motion for 

new trial filed by Warburton’s trial counsel was timely filed 

and that as a result, Warburton cannot demonstrate deficient 

performance.
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STATE v. WARBURTON

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[13] Warburton’s motion for new trial was premised upon 

§ 29-2101(1), (4), and (7). A motion for new trial premised 

upon these subsections must be filed within 10 days after the 

verdict was rendered unless such filing is unavoidably prevented. Neb. Rev. Stat. § 29-2103 (Reissue 2016). Neb. Rev. 

Stat. § 25-2221 (Reissue 2016) details how to calculate the 

10-day period:

Except as may be otherwise more specifically provided, the period of time within which an act is to be 

done in any action or proceeding shall be computed by 

excluding the day of the act, event, or default after which 

the designated period of time begins to run. The last day 

of the period so computed shall be included unless it is a 

Saturday, a Sunday, or a day during which the offices of 

courts of record may be legally closed as provided in this 

section, in which event the period shall run until the end 

of the next day on which the office will be open.

Here, the district court rendered its guilty verdicts on 

October 28, 2020. Pursuant to the language of § 25-2221, the 

10-day period for filing a motion for new trial began to run on 

October 29 and ended on November 7. However, November 7 

was a Saturday, so, pursuant to § 25-2221, the period to file the 

motion for new trial was extended through Monday, November 

9. The motion for new trial was timely filed on November 9.

[14] We note that in the State’s motion to quash the motion 

for new trial, it incorrectly calculated the 10-day period to file 

the motion for new trial. The State based its calculation on its 

erroneous belief that the day the verdict was rendered must 

be included in the 10-day period. The language of § 25-2221 

clearly indicates that the day the verdict was rendered should 

be excluded from the calculation and that instead, the period 

should begin the day after the verdict was rendered.

Because trial counsel timely filed the motion for new trial, 

Warburton cannot show deficient performance in this regard. 

In his brief on appeal, Warburton does not allege or argue that 

his counsel was also ineffective in withdrawing the motion for 
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Cite as 30 Neb. App. 315

new trial without his consent. In addition, he does not assign as 

error that the evidence was insufficient to support his convictions. As such, we do not address these issues further.

V. CONCLUSION

The district court did not err in overruling Warburton’s 

motion to suppress or in sentencing him to 15 to 30 years’ 

imprisonment. In addition, Warburton was not denied effective 

assistance of trial counsel because contrary to his assertion, 

counsel did, in fact, timely file a motion for new trial after the 

district court rendered its verdict.

Affirmed.

Bishop, Judge, participating on briefs.