State of Nebraska v. Bashir V. Loding

Loding was charged with first degree sexual assault of a

child. The information filed alleged that on or about May 1

through September 17, 2015, Loding, a man at least 19 years

old or older, subjected A.B., a child less than 12 years old, to

sexual penetration.

1. Evidenc e at Trial

Trial was held in April 2016, at which A.B. testified that she

was born in 2006 and lived in Douglas County, Nebraska. She

testified that Loding was her mother’s friend and that he was

43 years old. She testified that Loding would visit her home

and that beginning in May 2015, he penetrated her anus with

his penis on multiple occasions. He also penetrated her anus

and vagina with his fingers on multiple occasions. She was

able to describe events in detail, what his penis looked like,

and how after he penetrated her anus, “sometimes [her] pee

would be brown.” Her older sister corroborated her testimony

and confirmed that Loding had access to A.B. without her

mother’s direct supervision.

Several expert witnesses testified as to A.B.’s initial disclosure

and explained that her allegations were consistent

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with her testimony and not unusual for child victims of

sexual assault.

Loding did not testify in his own behalf or call any

witnesses.

2. Conviction and Sentenc e

The jury convicted Loding of first degree sexual assault of

a child, and the district court sentenced Loding to 35 to 50

years’ imprisonment with credit for 129 days served.

Loding timely appealed, and we granted the State’s petition

to bypass review by the Nebraska Court of Appeals.

III. ASSIGNMENTS OF ERROR

Loding assigns, reordered and restated, that (1) he received

ineffective assistance of counsel when (a) a former senior certified

law student, who was not yet an admitted member of the

Nebraska bar, participated in critical stages of the proceedings,

(b) he did not validly consent to representation by a certified

law student, and (c) trial counsel made prejudicial remarks

during opening statement and closing argument; (2) there was

insufficient evidence to sustain a guilty verdict; and (3) his

sentence was excessive.

IV. STANDARD OF REVIEW

[1,2] Whether a claim of ineffective assistance of trial

counsel may be determined on direct appeal is a question of

law.1 In reviewing claims of ineffective assistance of counsel

on direct appeal, an appellate court decides only questions of

law: Are the undisputed facts contained within the record 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?2

1 State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).

2 Id.

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[3] In reviewing a sufficiency of the evidence claim, whether

the evidence is direct, circumstantial, or a combination thereof,

the standard is the same: An appellate court does not resolve

conflicts in the evidence, pass on the credibility of witnesses,

or reweigh the evidence; such matters are for the finder

of fact.3

[4,5] We will not disturb a sentence imposed within the

statutory limits absent an abuse of discretion by the trial court.4

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.5

V. ANALYSIS

1. Ineffective Assistanc e

of Counsel

[6,7] Loding is represented on direct appeal by different

counsel than the counsel who represented him at trial. When

a defendant’s trial counsel is different from his or her counsel

on direct appeal, the defendant must raise on direct appeal

any issue of trial counsel’s ineffective performance which

is known to the defendant or is apparent from the record.

Otherwise, the issue will be procedurally barred.6 An ineffective

assistance of counsel claim is raised on direct appeal

when the claim alleges deficient performance with enough

particularity for (1) an appellate court to make a determination

of whether the claim can be decided upon the trial record

and (2) a district court later reviewing a petition for postconviction

relief will recognize whether the claim was brought

before the appellate court.7

3 State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016).

4 Id.

5 Id.

6 See State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).

7 See id.

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[8] The fact that an ineffective assistance of counsel claim

is raised on direct appeal does not necessarily mean that

it can be resolved.8 The determining factor is whether the

record is sufficient to adequately review the question.9

[9] To establish a right to postconviction relief because of

counsel’s ineffective assistance, the defendant has the burden,

in accordance with Strickland v. Washington,10 to show that

counsel’s performance was deficient; that is, counsel’s performance

did not equal that of a lawyer with ordinary training

and skill in criminal law.11 Next, the defendant must show that

counsel’s deficient performance prejudiced the defense in his

or her case.12 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.13 A court may address the two prongs of this test,

deficient performance and prejudice, in either order.14

(a) Per Se Ineffective Assistance

of Counsel

Loding alleges that he received ineffective assistance of

counsel because he was represented by a law school graduate

who was not a certified senior law student or an admitted

member of the Nebraska bar. He invites this court to find per

se ineffective assistance of counsel.

This is an issue of law, and the record is sufficient to

adequately review this claim. Before we do, we assess the law

school graduate’s senior certified status.

8 State v. Parnell, supra note 1.

9 Id.

10 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).

11 State v. Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).

12 Id.

13 Id.

14 Id.

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(i) Senior Certified Status

Loding was represented at trial by a licensed attorney, James

Schaefer, and the attorney’s son, Robert Schaefer. At one point,

Robert had been certified to practice law under James’ supervision

pursuant to our rules authorizing limited practice of law

by senior law students.15 Believing that he was still certified

to practice, Robert participated during voir dire and gave the

opening statement and closing argument at Loding’s trial in

April 2016.

But Robert’s status had changed. He graduated from law

school in the spring of 2015. After graduation, he took both

the Uniform Bar Examination (UBE)16 and the Multistate

Professional Responsibility Examination (MPRE).17 He passed

the UBE but failed the MPRE. And the record is clear that he

was notified of this failure prior to the April 2016 trial.

The first question is how this affected his senior practice

certification. The relevant senior practice rule provides that

senior certification of a law student “shall terminate if the

student does not take the first bar examination following his

or her graduation, or if the student takes such bar examination

and fails it, or if he or she is admitted to full practice

before this court.”18

Before applying this rule, however, we must determine

whether the rule’s use of the term “bar examination”19 applies

only to the UBE or to both the UBE and the MPRE. The State

suggests that it is unclear whether failure of the MPRE is a

terminating event under the rule and argues that “the passing

of the MPRE is a prerequisite to the ethical practice of law in

this state but it has nothing to do with the legal ability of the

attorney.”20 We disagree.

15 See Neb. Ct. R. §§ 3-701 to 3-706 (rev. 2012).

16 See Neb. Ct. R. § 3-101(L) (rev. 2015).

17 § 3-101(J).

18 § 3-705(A) (emphasis supplied).

19 Id.

20 Brief for appellee at 17.

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[10] Just as statutes relating to the same subject are in pari

materia and should be construed together,21 our rules should

be read and construed together. “Examination applicants are

required to pass the MPRE and are required to pass by a combined

score the [component parts of the UBE].”22 This rule

makes it clear that the “bar examination” consists of both the

UBE and the MPRE and that examination applicants (including

Robert) are required to pass both of them. In other words, a

failure of either the MPRE or the UBE, taken after graduation,

is a failure of the “bar examination.” Because Robert’s failure

to pass the MPRE, and thus, the bar examination, was known

before Loding’s trial, Robert’s certification under the senior

practice rules had terminated before the trial.

The second question is whether, as the State also argues,

Robert still met the substantive requirements to provide effective

assistance of counsel. In making this argument, the State

analogizes the passing of the MPRE to the paying of bar

dues as mere “‘technical licensing requirements’” and argues

that Robert was “otherwise competent and qualified to act as

counsel.”23 We disagree.

[11,12] As we have already explained, a passing score on

the MPRE is a substantive requirement for admittance to the

Nebraska bar.24 The MPRE measures “examinees’ knowledge

and understanding of established standards related to the professional

conduct of lawyers.”25 These standards guide the

Nebraska Rules of Professional Conduct to which all licensed

attorneys within Nebraska are held accountable. Violations of

21 See Alisha C. v. Jeremy C., 283 Neb. 340, 808 N.W.2d 875 (2012).

22 Neb. Ct. R. § 3-117(A) (rev. 2013).

23 Brief for appellee at 17. See, also, State v. Vanderpool, 286 Neb. 111, 835

N.W.2d 52 (2013).

24 See § 3-117(A).

25 Nat. Conf. of Bar Examiners, Multistate Professional Responsibility

Examination, http://www.ncbex.org/exams/mpre/ (last visited May 3,

2017).

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these standards and rules of professional conduct can subject

an attorney to disciplinary proceedings.26

[13] In sum, our standards and rules emphasize the importance

of the ethical practice as indicative of an attorney’s legal

ability. An applicant for admittance to the Nebraska bar who

has demonstrated that he or she lacks the required knowledge

of his or her ethical obligations is incompetent to act

as counsel.

Having found that Robert lost his status as a senior certified

law student and failed to meet the substantive requirements to

be a licensed attorney at trial, we now consider the effect of his

participation at trial.

(ii) Robert’s Participation

at Trial

Courts in other jurisdictions have consistently found legal

representation by an unlicensed individual who did not meet

the substantive requirements for admittance to the bar, or

was a layperson posing as an attorney, constitutes per se

ineffective assistance of counsel.27 In such circumstances, an

individual is entitled to postconviction relief without proving

prejudice. As one court explained, “one never admitted to

practice law and therefore who never acquired the threshold

qualification to represent a client in court cannot be allowed

26 See Neb. Ct. R. of Prof. Cond. Scope, comment 19.

27 See, U.S. v. Bergman, 599 F.3d 1142 (10th Cir. 2010), cert. denied 562 U.S.

887, 131 S. Ct. 219, 178 L. Ed. 2d 132; U.S. v. Mitchell, 216 F.3d 1126

(D.C. Cir. 2000); U.S. v. Novak, 903 F.2d 883 (2d Cir. 1990); United States

v. Mouzin, 785 F.2d 682 (9th Cir. 1986), cert. denied sub nom. Carvajal v.

United States, 479 U.S. 985, 107 S. Ct. 574, 93 L. Ed. 2d 577; Solina v.

United States, 709 F.2d 160 (2d Cir. 1983); McKeldin v. Rose, 482 F. Supp.

1093 (E.D. Tenn. 1980), reversed on other grounds 631 F.2d 458 (6th Cir.);

Huckelbury v. State, 337 So. 2d 400 (Fla. App. 1976); In re Denzel W., 237

Ill. 2d 285, 930 N.E.2d 974, 341 Ill. Dec. 460 (2010); Benbow v. State,

614 So. 2d 398 (Miss. 1993); People v Felder, 47 N.Y.2d 287, 391 N.E.2d

1274, 418 N.Y.S.2d 295 (1979). But see Blanton v. U.S., 896 F. Supp. 1451

(M.D. Tenn. 1995), rehearing denied 94 F.3d 227 (6th Cir. 1996).

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to do so, and no matter how spectacular a performance may

ensue, it will not constitute ‘effective representation of counsel’

for purposes of the Sixth Amendment.”28 This is consistent

with our treatment of nonlawyers who engage in the

practice of law.

[14-16] A nonlawyer is “any person not duly licensed or otherwise

authorized to practice law in the State of Nebraska.”29

As we have demonstrated, Robert was a nonlawyer at the time

of trial. Our court rules are clear and firm; they do not allow

a nonlawyer to engage in the practice of law.30 Because we

regard the unauthorized practice of law as a serious offense,

any unauthorized practice is a nullity.31 Obviously, such a nullity

cannot satisfy a defendant’s right to effective representation

of counsel.

[17] We concede that if Loding had been represented only

by Robert, he would have been completely denied the right to

assistance of counsel. A complete denial of assistance of counsel

is a per se violation of his right to counsel.

However, other jurisdictions have declined to find per se

ineffective assistance of counsel when there has been “active

participation of a licensed attorney throughout a defendant’s

trial.”32 As the Eighth Circuit explained, “[i]f co-counsel provides

petitioners with effective assistance at all critical stages

28 United States v. Mouzin, supra note 27, 785 F.2d at 697.

29 Neb Ct. R. § 3-1002(A).

30 Neb Ct. R. § 3-1003.

31 See Kelly v. Saint Francis Med. Ctr., 295 Neb. 650, 889 N.W.2d 613

(2017).

32 People v. Jacobs, 6 N.Y.3d 188, 190, 844 N.E.2d 1126, 1127, 811 N.Y.S.2d

604, 605 (2005) (emphasis supplied). See, also, U.S. v. Novak, supra note

27; U.S. v. Cocivera, 104 F.3d 566 (3d Cir. 1996); U.S. v. Rimell, 21 F.3d

281 (8th Cir. 1994), cert. denied 513 U.S. 976, 115 S. Ct. 453, 130 L. Ed.

2d 362; The People v. Cox, 12 Ill. 2d 265, 146 N.E.2d 19 (1957); Riggs

v. State, 235 Ind. 499, 135 N.E.2d 247 (1956); State v. Deruy, 143 Kan.

590, 56 P.2d 57 (1936); Higgins v. Parker, 354 Mo. 888, 191 S.W.2d 668

(1945), cert. denied 327 U.S. 801, 66 S. Ct. 902, 90 L. Ed. 1026 (1946).

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of the proceedings, [a defendant’s] Sixth Amendment rights

have been protected.”33 The theory is that effective assistance

of licensed cocounsel would include correcting any error by

the unadmitted cocounsel. And, in finding no per se violation

in circumstances quite similar to those before us, the Eighth

Circuit relied on its earlier decision in U.S. v. Rosnow.34

James, a qualified, licensed attorney in Nebraska, was the

lead attorney for Loding’s trial. It is undisputed that he was

present at all times throughout the trial and for all interactions

between Loding and Robert. Thus, there was no per se violation

of Loding’s constitutional right to counsel. We now turn

to consider whether Loding is entitled to relief on his claims

under Strickland.

(b) Ineffective Assistance

Under Strickland

(i) Lack of Written Consent

Loding alleges that he received ineffective assistance of

counsel because James did not secure his written consent to be

represented by Robert. While this alleges a very serious violation

of our court rules,35 there is a disciplinary process established

to adjudicate rule violations.36 But that is not the matter

before us in this appeal. The question here is whether James

(and Robert, under James’ direction) provided ineffective

assistance

of counsel under Strickland. We conclude that the

record is not adequate to address this matter on direct appeal.

(ii) Opening Statement and

Closing Argument

Loding alleges that he received ineffective assistance of

counsel during opening statement and closing argument. He

33 U.S. v. Rosnow, 981 F.2d 970, 972 (8th Cir. 1992).

34 See U.S. v. Rimell, supra note 32.

35 See § 3-704(C).

36 See Neb. Ct. R. §§ 3-301 to 3-328 (rev. 2016).

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claims that counsel was ineffective in failing (1) to call on

A.B.’s mother to testify or explain her absence after stating

during opening statement she would be called upon, (2) to

mention during closing argument other individuals who had

sexually assaulted A.B., and (3) to give a longer closing argument

or say more than that Loding was not guilty.

[18] When reviewing claims of ineffective assistance, an

appellate court will not second-guess a trial counsel’s reasonable

strategic decisions.37 And an appellate court must assess

the trial counsel’s performance from the counsel’s perspective

when the counsel provided the assistance.38

It is clear from the record that Loding’s trial counsel organized

his defense around the theory that A.B. did not like

Loding and that she made up allegations of sexual assault. This

was a legitimate strategy aimed at acquitting Loding of the

charged offense. Therefore, we review Loding’s claims with

this defense theory in mind.

a. Absence of A.B.’s Mother

as Witness

As Loding conceded at oral argument, his brief misstated

the record when he argued that counsel failed to explain why

A.B.’s mother did not testify. The record shows that Loding’s

counsel explained, “We said we would call the mother . . . we

said that in the beginning because we thought the state would

prove its case, and it has not.”

During closing argument, counsel explained multiple times

that the burden of proof was on the State to prove beyond a reasonable

doubt that Loding was guilty. Counsel then reviewed

the evidence and explained to the jury why the State had not

met its burden. Outside the presence of the jury, Loding confirmed

on the record that the mother did not want to testify and

that he did not want her to testify.

37 State v. Alarcon-Chavez, 295 Neb. 1014, ___ N.W.2d ___ (2017).

38 Id.

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But the record does not explain why, during opening statement,

counsel elected to tell the jury that A.B.’s mother would

be called to testify. Although the record shows how the problem

was addressed, the record does not show how it came

about. Under these circumstances, we conclude that the record

is not sufficient to address this matter on direct appeal.

b. Other Alleged Assault

Perpetrators

Loding alleges that his trial counsel was ineffective during

their closing argument for failing to mention two other known

individuals who had both allegedly sexually assaulted A.B.

in the past. He does not explain why this should have been

done, but the implication would seem to be that it could have

convinced the jury someone other than Loding committed the

sexual assaults charged in this case. This is in direct conflict

with Loding’s defense that A.B. made up the allegations of

sexual assault.

[19] We conclude that defense counsel were not deficient

for failing to defeat their own legitimate defense theory. As

to this argument, the record affirmatively shows that Loding’s

counsel acted reasonably and consistently in presenting his

defense and were not ineffective.

c. Closing Argument

Loding alleges that his trial counsel was ineffective because

“closing argument was too short and not much was said other

than that [Loding] was not guilty.”39 This, too, is clearly refuted

by the record.

During their closing argument, Loding’s counsel discussed

the State’s burden of proof, the presumption of innocence,

perceived conflicts in the State’s evidence, A.B.’s lack of

credibility, the defense’s theory of the case, the function of

the criminal justice system, the significance of the jury’s

39 Brief for appellant at 16.

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role, the magnitude of the charge, and the standard for reasonable

doubt. Because there was no deficiency in this argument,

the record establishes that Loding’s counsel were not

ineffective.

2. Sufficienc y of Evidenc e

Loding alleges that there was insufficient evidence to support

his conviction. He does not argue that the evidence did

not establish the elements of the crime. He essentially argues

that A.B., the one witness to testify to all the elements of the

crime, was not a credible witness because of her youth, her

prior history as a sexual assault victim, her dislike of Loding,

and because she “admitted she was confused about who had

touched her inappropriately at which times”40 in regard to previous

incidents of sexual assault.

[20] But, in reviewing a sufficiency of the evidence claim,

we do not pass on the credibility of witnesses.41 The relevant

question for an appellate court is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.42

Viewed in the light most favorable to the State, and without

passing on the credibility of the witnesses, there was sufficient

evidence for any rational juror to find Loding guilty

beyond a reasonable doubt.

[21] Loding also alleges that there was insufficient evidence

to determine which of the different circumstances

of sexual assault was found to be proved by a reasonable

doubt by all jurors. He argues that such a finding was necessary

where he was charged with only one count of sexual

assault while the State alleged several different incidents.

Because we have consistently held that the State

40 Id. at 12.

41 See State v. Draper, supra note 3.

42 See id.

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can present evidence of several violations within a specific

timeframe to secure one conviction,43 this argument is without

merit.

3. Excessive Sentenc e

Lastly, Loding alleges that he received an excessive sentence,

because the court failed to consider all the appropriate

mitigating factors in imposing the sentence. He was convicted

of first degree sexual assault of a child—a Class IB felony,44

which is punishable by a mandatory minimum of 15 years’

imprisonment and a maximum of life imprisonment.45 He was

sentenced to 35 to 50 years’ imprisonment with credit for

129 days served. As such, his sentences are within the statutory

limits.

[22,23] In reviewing a sentence imposed within the statutory

limits, an appellate court considers 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.46 When imposing a

sentence, the sentencing court is to 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.47 The

district court reviewed the presentence investigation report,

which addressed all of these matters.

43 See, State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010); State v.

Martinez, 250 Neb. 597, 550 N.W.2d 655 (1996).

44 Neb. Rev. Stat. § 28-319.01(2) (Reissue 2016).

45 Id. See, also, Neb. Rev. Stat. § 28-105 (Reissue 2016); State v. Russell,

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

46 State v. Draper, supra note 3.

47 Id.

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[24] Given that, traditionally, a sentencing court is accorded

very wide discretion in determining an appropriate sentence,48

we find no abuse of discretion in the sentence imposed.