State of Nebraska v. Brian P. Robeson

On January 4, 2016, the State filed an information charging

Robeson with two counts of first degree sexual assault

of a child, in violation of Neb. Rev. Stat. § 28-319.01(1)(b)

(Reissue 2016), each a Class IB felony. On September 22, a

hearing was held. At this hearing, defense counsel informed

the district court that a plea agreement had been reached.

Counsel indicated that as a part of the plea agreement, Robeson

would plead guilty to one count of first degree sexual assault,

as alleged in the amended information. The State was granted

leave to file an amended information charging Robeson with

two counts of first degree sexual assault, in violation of Neb.

Rev. Stat. § 28-319(1)(c) (Reissue 2016), each a Class II

felony. The State agreed to dismiss the second count of first

degree sexual assault alleged in the amended information as

a part of the plea agreement. Also as a part of the plea agreement,

Robeson and the State would jointly recommend a sentence

of 40 to 40 years’ imprisonment.

The State provided a factual basis for Robeson’s plea to

first degree sexual assault. According to that factual basis,

Robeson was a teacher who began a romantic relationship

with one of his seventh grade students. Robeson was initially

the victim’s mentor, but the relationship escalated into

their kissing and having sexual intercourse on multiple occasions.

When the victim was interviewed, she said that she

and Robeson were dating and that she planned on marrying

him and having children with him. When Robeson was

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interviewed by law enforcement, he admitted that he loved the

victim and was not ashamed of his relationship with her. He

described that he began talking to the victim when she was

12 years old but did not begin intimate contact with her until

she was 13 years old. He admitted that he engaged in sexual

intercourse with the victim at various locations, including her

house and his car. Robeson was 34 to 35 years old during this

time, and the victim was 13 to 14 years old. The sexual penetration

occurred “[o]n or about” September 1, 2014, through

December 27, 2015.

The district court found that Robeson understood the nature

of the charge against him and the possible sentence; that

his plea was made freely, knowingly, intelligently, and voluntarily;

and that the factual basis supported his plea. The

court then accepted Robeson’s guilty plea to first degree

sexual assault.

After the court accepted Robeson’s guilty plea, defense

counsel indicated to the court that “in light of the plea agreement

we’re asking for an expedited sentencing.” The court then

confirmed with counsel that Robeson was waiving his right to

have a presentence investigation report completed.

A sentencing hearing was held on October 11, 2016. At

the start of this hearing, defense counsel asked the court for

“a short postponement” of sentencing. The court denied this

request. Defense counsel and Robeson then provided statements

to the court wherein each asked for leniency and “mercy” from

the court. In fact, defense counsel specifically asked the court

to consider a minimum sentence that is “slightly less” than the

minimum of 40 years’ imprisonment the parties had agreed to

recommend as part of the plea agreement.

In response to the statements of defense counsel and

Robeson, both the State and the district court questioned

whether Robeson wished to withdraw his plea so that he did

not have to agree to jointly recommend a sentence of 40 to 40

years’ imprisonment. The court indicated to Robeson that it

was “not going to consider less than the plea agreement as that

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was the plea agreement.” Robeson briefly spoke with counsel

and then explicitly indicated that he did not want to withdraw

his plea. He also stated as follows:

Before the sentence I talked at length with my lawyer

about the 40 to 40 and how I just wanted a chance to

parole and how I didn’t agree with it, but I felt stuck. I

felt that that was the best I was going to get. All I did

was come here today to try and plead with you to please

understand the situation and to give me a chance at

parole. I’m not trying to undermine anybody, the State or

anything for [the] family [of the victim]. And I certainly

don’t want to put them through any more.

The court sentenced Robeson to 40 to 40 years’ imprisonment.

Robeson appeals.

III. ASSIGNMENTS OF ERROR

On appeal, Robeson asserts that the district court erred in

(1) sentencing Robeson without first obtaining a presentence

investigation report, (2) imposing an excessive sentence which

did not take into account the mitigating factors present in

the case, and (3) imposing a minimum sentence that was the

same as the maximum sentence. Robeson also asserts that

he received ineffective assistance of counsel when counsel

advised him to enter into the plea agreement with the State

and failed to request the completion of a presentence investigation

report.

IV. STANDARD OF REVIEW

[1] In determining whether a defendant’s waiver of a statutory

or constitutional right was voluntary, knowing, and intelligent,

an appellate court applies a clearly erroneous standard

of review. State v. Qualls, 284 Neb. 929, 824 N.W.2d

362 (2012).

[2,3] An appellate court will not disturb a sentence imposed

within the statutory limits unless the trial court abused its

discretion. State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850

(2016). An appellate court reviews criminal sentences for an

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abuse of discretion, which 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. State v. Collins, 292 Neb. 602, 873 N.W.2d

657 (2016).

[4] Whether a claim of ineffective assistance of trial counsel

can be determined on direct appeal presents a question of

law, which turns upon the sufficiency of the record to address

the claim without an evidentiary hearing or whether the claim

rests solely on the interpretation of a statute or constitutional

requirement. See State v. Burries, 297 Neb. 367, 900 N.W.2d

483 (2017). 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.

V. ANALYSIS

1. Imposing Sentenc e Without

Presentenc e Investigation Report

After the district court accepted Robeson’s guilty plea at the

September 2016 hearing, the following discussion was had:

[The court:] I’m going to continue sentencing, not

order — I think by agreement of the parties, the Court is

not going to order a presentence investigation report, is

that correct?

[The State:] Yes, Your Honor, we would — the State

would just ask for a period of time before sentencing to

allow for victim impact statements to be provided by the

victim and her family.

[Defense counsel:] And Judge, in light of the plea

agreement we’re asking for an expedited sentencing, that

is true.

THE COURT: And your client is waiving his right

to have a presentence investigative report be done, is

that correct?

[Defense counsel:] Yes.

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THE COURT: Okay. I will continue this matter for an

expedited sentencing to allow the State — in order to get

victim impacts. And for . . . Robeson to get anything he

wants the Court to consider for sentencing. And in light

of the plea agreement I think an expedited sentencing

is warranted.

On appeal, Robeson challenges the district court’s decision

to impose a sentence without first requiring Robeson to participate

in a presentence investigation. Specifically, Robeson

alleges that he did not validly waive his right to a presentence

investigation report and that, as a result, the court was required

to order that a presentence investigation report be completed.

Upon our review, we do not find that the district court erred in

concluding that Robeson validly waived his right to a presentence

investigation report.

[5] Neb. Rev. Stat. § 29-2261(1) (Reissue 2016) provides

that unless it is impractical to do so, when an offender has

been convicted of a felony, the court shall not impose sentence

without first ordering a presentence investigation of the

offender and according due consideration to a written report

of such investigation. The plain language of § 29-2261(1) provides

that a presentence investigation is generally required in

felony cases; however, there are exceptions under which such

an investigation is unnecessary.

[6,7] The first such exception is set out in § 29-2261(1)

itself; an investigation is not necessary if it would be “impractical.”

The Nebraska Supreme Court has explained that a

presentence investigation may be impractical where another

investigation had just been completed. See State v. Qualls, 284

Neb. 929, 824 N.W.2d 362 (2012). In addition to the statutory

exception, the Supreme Court has held that such a presentence

investigation may be waived. See id. See, also, State v.

Tolbert, 223 Neb. 794, 394 N.W.2d 288 (1986). A waiver is

defined as

the voluntary and intentional relinquishment of a known

right, privilege, or claim, and may be demonstrated by

or inferred from a person’s conduct. . . . A voluntary

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waiver, knowingly and intelligently made, must affirmatively

appear from the record, before a court may conclude

that a defendant has waived a right constitutionally

guaranteed or granted by statute.

State v. Kennedy, 224 Neb. 164, 170, 396 N.W.2d 722, 726

(1986) (citations omitted).

[8] At the September 2016 hearing, the district court specifically

asked whether it was Robeson’s intention to waive his

right to a presentence investigation report. Robeson’s counsel

answered in the affirmative. We note that contrary to Robeson’s

assertions in his brief on appeal, the fact that Robeson, himself,

did not affirmatively waive his right to the presentence investigation

report is not determinative. The Nebraska Supreme

Court has previously held that a defendant

may waive a right

by silently acquiescing to the waiver given by his counsel,

and by failing to object and raise the issue to a trial court. See

Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533 (1946). See,

also, State v. Sayers, 211 Neb. 555, 319 N.W.2d 438 (1982)

(noting that courts have found implied acquiescence of defendant’s

rights when counsel speaks on defendant’s

behalf and

defendant is present, but remains silent).

In his brief on appeal, Robeson acknowledges that counsel

did agree that Robeson was waiving his right to the presentence

investigation report. However, he asserts that such a

waiver was not knowingly and voluntarily given, because he

was not properly informed of certain facts, including that a

presentence investigation report is mandatory prior to a felony

sentencing. In addition, Robeson asserts that the court failed to

“make any inquiry into whether . . . Robeson understood this

right but nonetheless wished to waive it.” Brief for appellant

at 11. To support his assertions, Robeson relies on this court’s

decision in State v. Kellogg, 10 Neb. App. 557, 633 N.W.2d

916 (2001).

In State v. Kellogg, supra, the defendant pled no contest to

a burglary charge and pled guilty to two forgery charges. After

the trial court accepted the pleas, both the State and defense

counsel indicated their request that the defendant undergo a

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“‘90-day evaluation at the Department of Corrections.’” Id. at

558, 633 N.W.2d at 918. The plea hearing was concluded “with

no one ever mentioning ‘presentence report’ or ‘presentence

investigation,’” and no presentence investigation was ever

completed prior to sentencing. Id. at 559, 633 N.W.2d at 919.

On appeal, the defendant argued that he received ineffective

assistance of counsel because trial counsel did not request a

presentence investigation.

In our analysis in Kellogg, we found that the defendant did

not waive his right to a presentence investigation, because “the

record lacks any showing that [he] was aware that a presentence

investigation was mandatory before a felony sentencing

. . . nor does the record show that [he] was aware that

having such an investigation was his ‘right’ . . . .” Id. at 565,

633 N.W.2d at 923. We stated, “The fact that a presentence

investigation was never even discussed in this entire pleataking

and sentencing process is of no small consequence and

also precludes a finding that there was a waiver.” Id. at 566,

633 N.W.2d at 923. Ultimately, we concluded that the court

erred in sentencing the defendant without having a presentence

investigation and without a valid waiver thereof on the record.

State v. Kellogg, supra. We vacated the sentence imposed and

remanded the cause to the district court with directions to have

a presentence investigation completed and then to resentence

the defendant. Id.

We find the facts of State v. Kellogg, supra, to be distinguishable

from the facts presented by this case. In Kellogg,

a presentence investigation was never even mentioned to the

defendant. Accordingly, he was never informed that he had a

right to such an investigation prior to sentencing. Here, during

the September 2016 hearing, the court specifically inquired

whether Robeson was waiving his “right” to a presentence

investigation report. Defense counsel indicated that Robeson

was waiving his right, and Robeson did not contest counsel’s

statement. As such, the record in this case clearly indicates

that, at the least, Robeson knew he had a right to a presentence

investigation report.

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We find the facts of this case to be more akin to the facts in

State v. Qualls, 284 Neb. 929, 824 N.W.2d 362 (2012). In that

case, the defendant pled guilty to theft by deception. After the

court accepted the defendant’s plea, the court inquired about

whether the defendant wished to have a presentence investigation

report completed prior to sentencing:

“I do need to advise you that since this is a felony offense,

you do have a right to have a presentence investigation

report prepared in this case.

“Your attorney has indicated that you wish to waive

that right and have me do sentencing based upon, I

believe, the reports and your criminal history and then

any other information you wish to present.

“Do you wish to waive your right to a presentence

report, sir?”

Id. at 930, 824 N.W.2d at 363. The defendant indicated that

he did wish to waive his right to the presentence investigation

report. He also indicated that no one had threatened him or

promised him anything in order to induce his waiver and that

his waiver was freely and voluntarily given.

On appeal, the defendant argued that the court’s advisory

was insufficient to inform him of his right to a presentence

investigation report. State v. Qualls, supra. Specifically, he

asserted that he was not informed that a presentence investigation

report was mandatory, that the lack of a presentence

investigation report would mean that an appellate court

would not have the benefit of the contents of such a report,

and that the sentencing court was unable to consider all of

the relevant factors without such a report. The Supreme Court

found his assertion to be without merit. The court stated

that “‘a formalistic litany is not required’” to establish the

waiver of a statutory right and that a review of the totality

of the circumstances established that the defendant had been

adequately informed of his right to a presentence investigation

report and had validly waived that right. Id. at 935, 824

N.W.2d at 366.

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Clearly, in State v. Qualls, supra, the district court’s discussion

of the defendant’s right to a presentence investigation

report prior to sentencing was more thorough than the district

court’s discussion with Robeson at the September 2016

hearing. In fact, we believe that the discussion elicited by

the district court in Qualls is the better practice, as the court

more clearly explained the defendant’s right to a presentence

investigation report and established the defendant’s valid

waiver of that right by eliciting a response directly from the

defendant. However, given the totality of the circumstances

present in this case, we find the district court’s discussion

about Robeson’s right to a presentence investigation report

and defense counsel’s representation that Robeson was waiving

that right was sufficient to establish a valid waiver of

that right. Robeson was clearly informed he had the right to

a presentence investigation report, and his counsel indicated

Robeson’s desire to waive that right without any further discussion

or objection by Robeson. Moreover, Robeson had

previously indicated his desire to have an expedited sentencing

hearing, and as part of his plea agreement, he had jointly

recommended a sentence to the district court. At the sentencing

hearing, Robeson’s counsel asked for a postponement, but

this request did not appear to be based on a desire to obtain

a presentence investigation report. After the request for the

postponement was denied, counsel indicated that he knew

of “no other” legal reason why the court should not impose

a sentence at that time. Robeson remained silent during this

exchange and, as such, appeared to agree with his counsel’s

statement. Later, both Robeson and his counsel were permitted

to provide the court with lengthy statements about the

mitigating factors present in the case and about Robeson’s

present circumstances.

While the district court could have been more thorough in

its discussion with Robeson about his right to a presentence

investigation report, on these facts, we cannot say that the

court clearly erred in finding that Robeson’s waiver of his right

to that report was valid.

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2. Excessive Sentenc e

Robeson asserts that the district court imposed an excessive

sentence because it failed to “seriously consider all of

the mitigating factors” present in this case, brief for appellant

at 17, including his young age and ability to be rehabilitated,

his level of education and his career as a teacher, his difficult

childhood, his struggle with alcoholism, his lack of intent to

harm the victim, his strong relationship with his young children,

his lack of a violent criminal history, and his cooperation

with authorities. Upon our review, we conclude that Robeson’s

assertion has no merit.

Robeson pled guilty to first degree sexual assault, a Class II

felony. A Class II felony is punishable by 1 to 50 years’ imprisonment.

See Neb. Rev. Stat. § 28-105 (Reissue 2016). Robeson

was sentenced to 40 to 40 years’ imprisonment. As such, his

sentence was clearly within the statutory limits.

Where a sentence imposed within the statutory limits is

alleged on appeal to be excessive, an appellate court must

determine whether the 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. Collins, 292 Neb. 602, 873 N.W.2d 657

(2016). An appellate court reviews criminal sentences for an

abuse of discretion, which 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] In imposing a sentence, a sentencing judge should consider

the defendant’s (1) age, (2) mentality, (3) education and

experience, (4) social and cultural background, (5) past criminal

record or record of law-abiding conduct, 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.

At the outset of our analysis, we note that Robeson

jointly recommended that he receive a sentence of 40 to 40

years’ imprisonment as a part of his plea agreement. Given

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Robeson’s decision to recommend the sentence that he is now

challenging as excessive, we do not disagree with the State’s

assertion that Robeson’s argument on appeal is “disingenuous.”

Brief for appellee at 10.

Moreover, our review of the record reveals that both

Robeson and his trial counsel were given the opportunity

to make lengthy statements prior to Robeson’s sentencing.

During these statements, Robeson and his counsel directed

the court’s attention to all of the mitigating factors present in

this case. Prior to imposing sentence, the district court stated,

“In order to determine an appropriate sentence I’ve taken into

consideration all of the information and argument presented

here today . . . .” The court went on to state that based upon its

consideration of Robeson’s “age, mentality, education, experience,

. . . background, past criminal record, nature of this

offense, and motivation for this offense, the Court is going to

go along with the agreement.” The court’s comments during

the sentencing hearing refute Robeson’s assertion on appeal

that the court failed to consider all of the relevant mitigating

factors present in this case.

Upon our review, we find that Robeson’s sentence is not

excessive or an abuse of discretion and is therefore affirmed.

3. Imposing Identical Minimum and

Maximum Terms of Imprisonment

Robeson also asserts that the district court erred in imposing

a sentence of 40 to 40 years’ imprisonment because

the imposition of “a sentence with identical minimum and

maximum terms of imprisonment” violates Neb. Rev. Stat.

§ 29-2204(1) (Reissue 2016) and because such a sentence is

“a de facto determinate sentence,” which does not provide an

opportunity for Robeson to be paroled within a reasonable

time. Brief for appellant at 26.

(a) § 29-2204

[10] The most recent version of § 29-2204 provides, in part,

that when a defendant is sentenced on a Class II felony, the

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sentencing court “shall fix the minimum and the maximum

terms of the sentence to be served within the limits provided

by law” and the minimum sentence “shall be any term of

years less than the maximum term imposed by the court.” This

language was included in § 29-2204 as part of the sentencing

changes made by 2015 Neb. Laws, L.B. 605. Based upon our

reading of the revised language of this section, we agree with

Robeson’s assertion that the most recent version of § 29-2204

requires a sentence for a Class II felony to have different

minimum and maximum terms of imprisonment. However,

we disagree with Robeson’s assertion that the requirements of

§ 29-2204 apply to his sentence in this case.

[11] Neb. Rev. Stat. § 28-116 (Reissue 2016) states in part:

The changes made to the sections listed in this section

by Laws 2015, LB605, shall not apply to any offense

committed prior to August 30, 2015. Any such offense

shall be construed and punished according to the provisions

of law existing at the time the offense was committed.

For purposes of this section, an offense shall

be deemed to have been committed prior to August 30,

2015, if any element of the offense occurred prior to

such date.

The statute then lists sections subject to the provision. Section

29-2204 is one of the sections listed within § 28-116. As such,

the recent revisions made to the language of § 29-2204 are not

effective unless the offense was committed on or after August

30, 2015.

Here, the amended information alleged that “[o]n or about”

September 1, 2014, through December 27, 2015, Robeson

subjected the victim to sexual penetration. It is not clear from

the language of the amended information or from any other

facts provided in our record exactly what dates Robeson subjected

the victim to sexual penetration; although, it is clear

that Robeson engaged in sexual penetration with the victim on

multiple occasions. A careful reading of the language of the

amended information indicates that the multiple acts of sexual

penetration occurred beginning on September 1, 2014, and

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continued through December 27, 2015. As such, we can assume

that an element of the offense Robeson was charged with

occurred prior to August 30, 2015. We note that Robeson did

not challenge the alleged time period of when the penetration

occurred when he entered his plea to the amended charge.

[12] When an element of the charged offense occurred prior

to August 30, 2015, the changes to § 29-2204 do not apply to

the defendant’s sentence. Robeson’s sentence of 40 to 40 years’

imprisonment is a valid sentence under the prior statutory

scheme. See Neb. Rev. Stat. § 29-2204 (Cum. Supp. 2014).

(b) De Facto Determinate Sentence

Robeson also argues that the court’s decision to sentence

him with identical minimum and maximum terms of imprisonment

was an abuse of discretion, because such a sentence is a

de facto determinate sentence which does not provide him with

the opportunity for parole within a reasonable time.

[13] Robeson’s sentence of 40 to 40 years’ imprisonment is

not a de facto determinate sentence. The Nebraska Supreme

Court has previously found that a sentence with the same minimum

term and maximum term is an indeterminate sentence.

The court stated, “In Nebraska, the fact that the minimum term

and maximum term of a sentence are the same does not affect

the sentence’s status as an indeterminate sentence.” State v.

Artis, 296 Neb. 606, 607, 894 N.W.2d 349, 350 (2017) (supplemental

opinion). Moreover, as we discussed above, Robeson

agreed to jointly recommend a sentence of 40 to 40 years’

imprisonment as a part of his plea agreement. Because he

recommended this sentence, it is disingenuous for him to now

argue that the district court erred in accepting his recommendation.

Had Robeson wished to have a meaningful opportunity

to obtain parole in a reasonable period of time, he was free to

reject the plea agreement and not recommend a sentence of 40

to 40 years’ imprisonment.

Robeson’s claims that the district court erred in imposing

identical minimum and maximum terms of imprisonment are

without merit.

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4. Ineffective Assistanc e

of Trial Counsel

[14] Robeson is represented in this direct appeal by different

counsel than the counsel who represented him at the trial

level. When a defendant’s trial counsel is different from his

or her counsel on direct appeal, the defendant must raise on

direct appeal any issue of trial counsel’s ineffective performance

which is known to the defendant or is apparent from the

record. Otherwise, the issue will be procedurally barred. State

v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).

[15] To prevail on a claim of ineffective assistance of counsel

under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), the defendant must show that

counsel’s performance was deficient and that this deficient

performance actually prejudiced his or her defense. State v.

Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).

[16] A claim of ineffective assistance of counsel need not be

dismissed merely because it is made on direct appeal. State v.

Casares, supra. The determining factor is whether the record

is sufficient to adequately review the question. 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. Id. General allegations

that trial counsel performed deficiently or that trial counsel

was ineffective are insufficient to raise an ineffective assistance

claim on direct appeal and thereby preserve the issue for

later review. Id.

Appellate courts have generally reached ineffective assistance

of counsel claims on direct appeal only in those instances

where it was clear from the record that such claims were without

merit or in the rare case where trial counsel’s error was so

egregious and resulted in such a high level of prejudice that

no tactic or strategy could overcome the effect of the error,

which effect was a fundamentally unfair trial. Id. An ineffective

assistance

of counsel claim made on direct appeal can be

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found to be without merit if the record establishes that trial

counsel’s performance was not deficient or that the appellant

could not establish prejudice. Id. See, also, State v. Filholm,

287 Neb. 763, 848 N.W.2d 571 (2014).

Robeson raises two allegations of ineffective assistance

of trial counsel in this appeal. We address each allegation

in turn.

(a) Advice to Accept Plea Agreement

Robeson asserts his trial counsel rendered deficient performance

by advising him to accept “the terms of the plea

agreement and agreeing to a lengthy and unwarranted recommended

sentence.” Brief for appellant at 14. Although

our record does not contain Robeson’s conversations with

trial counsel prior to the entry of his guilty plea, the record

does affirmatively refute his claim of ineffective assistance

of counsel because it demonstrates that his plea was entered

knowingly, understandingly, intelligently, and voluntarily, and

it establishes the benefit Robeson received by entering this

plea. Given our reading of the record, we conclude that

Robeson cannot demonstrate that he was prejudiced by any

advice counsel gave him regarding accepting the terms of the

plea agreement.

At the plea hearing, Robeson indicated that his guilty plea

was his “own free and voluntary act.” He told the court that he

had discussed the plea with defense counsel and that he was

satisfied with defense counsel’s representation. We also note

that at the sentencing hearing, Robeson repeatedly reaffirmed

his decision to plead guilty to first degree sexual assault and

to accept the terms of the plea agreement, even when he was

given a chance to change his mind.

In addition, in light of the available evidence against him,

the plea agreement benefited Robeson. Initially, Robeson was

charged with two counts of first degree sexual assault of a

child, each a Class IB felony. As a result of the plea agreement,

Robeson was allowed to plead guilty to one count of

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first degree sexual assault, a Class II felony. Robeson had

confessed to the acts which resulted in the charges against him,

and the victim was capable of testifying against him. As such,

if Robeson had gone to trial on the original charges, there was

a strong possibility that he would have been convicted of two

Class IB felonies. His agreement to jointly recommend a sentence

of 40 to 40 years’ imprisonment was arguably based on

his recognition that he could have been sentenced to a much

longer period of incarceration if he chose to go to trial on the

original charges rather than pleading guilty to one, reduced

charge pursuant to the terms of the plea agreement.

We conclude that Robeson cannot show that he was prejudiced

by any advice his trial counsel provided regarding his

acceptance of the plea agreement. As such, we conclude that

this assertion of ineffective assistance of trial counsel is without

merit.

(b) Failure to Request Presentence

Investigation Report

Robeson asserts his trial counsel rendered deficient performance

by failing to request that a presentence investigation

report be completed prior to sentencing. Although our

record does reflect that Robeson waived his right to a presentence

investigation report, the record does not reflect the

conversations Robeson had with trial counsel prior to entering

this waiver. In addition, as we discussed above, the district

court did not specifically ask Robeson on the record if he

was waiving his right to the presentence investigation report

knowingly, voluntarily, and intelligently. The court also did

not ask him if he had a chance to discuss the waiver with his

counsel. Accordingly, we are unable to discern whether or

to what extent counsel’s advice played a role in Robeson’s

decision to waive his right to the presentence investigation

report. Essentially, the record is insufficient for this court to

consider this allegation of ineffective assistance of counsel on

direct appeal.

Upon our review, we conclude that the district court did not

err in accepting the jointly recommended sentence of 40 to

40 years’ imprisonment and sentencing Robeson accordingly.

In addition, we find that Robeson did not receive ineffective

assistance of counsel when counsel advised him to accept

the plea agreement. We find that the record is insufficient to

address Robeson’s claim that his counsel was also ineffective

in advising him to waive his right to a presentence investigation

report.