State v. Morton

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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. MORTON
Cite as 29 Neb. App. 624
State of Nebraska, appellee, v. Natavian
Q. Morton, appellant.
___ N.W.2d ___
Filed March 23, 2021. 	No. A-19-1168.
1. Pleas: Appeal and Error. A trial court is afforded discretion in deciding
whether to accept guilty pleas, and an appellate court will reverse the
trial court’s determination only in the case of an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
3. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
4. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
5. ____: ____. 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 deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
6. Convictions: Weapons: Intent. Under Neb. Rev. Stat. § 28-1205
(Reissue 2016), when a felony which serves as the basis of the weapon
charge is an unintentional crime, the accused cannot be convicted of the
weapon charge.
7. Pleas: Waiver. The voluntary entry of a guilty plea or a plea of no con-
test waives every defense to a charge, whether the defense is procedural,
statutory, or constitutional.
8. Pleas. A sufficient factual basis is a requirement for finding that a plea
was entered into understandingly and voluntarily.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. MORTON
Cite as 29 Neb. App. 624
9. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
10. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation 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.
11. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment 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.
12. Sentences: Probation and Parole: Appeal and Error. Denial of proba-
tion and imposition of a sentence within statutorily prescribed limits will
not be disturbed on appeal absent an abuse of discretion.
13. Sentences: Statutes. Neb. Rev. Stat. § 29-2260 (Reissue 2016) is a
directive to the trial court as to certain factors to be considered in impos-
ing the sentence, but § 29-2260 does not control the trial court’s discre-
tion in its conclusion reached as to the proper sentence to be imposed,
after weighing the statutory factors.
14. Sentences: Statutes: Appeal and Error. An appellate court’s review of
an alleged abuse of the sentencing judge’s discretion in refusing to with-
hold imprisonment under Neb. Rev. Stat. § 29-2260 (Reissue 2016) must
recognize the statutory guidelines set out in § 29-2260 for the direction
of the sentencing judge in imposing or withholding imprisonment, but
the factors are not mathematically applied.
15. Pleas: Waiver. Generally, a voluntary guilty plea or plea of no contest
waives all defenses to a criminal charge.
16. Effectiveness of Counsel: Pleas. When a defendant pleads guilty or
no contest, he or she is limited to challenging whether the plea was
understandingly and voluntarily made and whether it was the result of
ineffective assistance of counsel.
17. Effectiveness of Counsel: Records: Appeal and Error. When a defend-
ant’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.
18. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under Strickland v. Washington, 466

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Nebraska Court of Appeals Advance Sheets
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STATE v. MORTON
Cite as 29 Neb. App. 624
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must
show that his or her counsel’s performance was deficient and that this
deficient performance actually prejudiced the defendant’s defense.
19. ____: ____. 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.
20. Effectiveness of Counsel: Pleas. In a plea context, deficiency depends
on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
21. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
tion is based upon a guilty or no contest plea, the prejudice requirement
for an ineffective assistance of counsel claim is satisfied if the defend-
ant shows a reasonable probability that but for the errors of counsel,
the defendant would have insisted on going to trial rather than plead-
ing guilty.
22. Effectiveness of Counsel: Proof. The two prongs of the ineffective
assistance of counsel test under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), may be addressed in
either order.
23. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
24. ____: ____: ____. The record on direct appeal is sufficient if it estab-
lishes 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.
25. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffec-
tive for failing to raise a meritless argument.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed as modified.
Jonathan M. Braaten, of Anderson, Creager & Wittstruck,
P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Pirtle, Bishop, and Welch, Judges.

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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. MORTON
Cite as 29 Neb. App. 624
Pirtle, Judge.
I. INTRODUCTION
Natavian Q. Morton appeals from his plea-based convictions
and sentences in the district court for Lancaster County for one
count of manslaughter and one count of possession of a firearm
during the commission of a felony. He claims there was not a
sufficient factual basis to support his no contest plea and con-
viction for the weapon charge, that the district court imposed
excessive sentences, and that his trial counsel provided ineffec-
tive assistance. For the reasons that follow, we affirm Morton’s
convictions, but determine that Morton’s sentence on count II,
possession of a firearm during the commission of a felony, was
an abuse of discretion. Accordingly, we reduce the sentence
on count II.
II. BACKGROUND
On May 31, 2018, the State charged Morton with second
degree murder, a Class IB felony; unlawful discharge of a fire-
arm, a Class ID felony; and two counts of use of a firearm to
commit a felony, both Class IC felonies.
On July 22, 2019, pursuant to a plea agreement, the State
amended the count of second degree murder to manslaughter
and amended one of the counts of use of a firearm to commit
a felony to possession of a firearm during the commission of
a felony. The State dismissed the remaining counts. Morton
agreed to plead no contest to the amended charges.
At the plea hearing, before accepting Morton’s no contest
pleas, the district court advised him that he was giving up
certain constitutional rights by entering a plea, which included
the right to confront witnesses against him, the right to a
jury trial, and the right against self-incrimination. The court
advised him of the charges against him and the range of pen-
alties. The court advised Morton of the civil consequences
of a felony conviction. Morton stated that he understood the
rights he was giving up, as well as the charges against him.
Morton indicated to the court that he had sufficient time to

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STATE v. MORTON
Cite as 29 Neb. App. 624
discuss the case with his attorney prior to the hearing, that
they had spoken about all possible defenses, and that he was
satisfied with his attorney and felt his counsel had properly
represented him.
The State provided a factual basis to support Morton’s no
contest pleas. In summary, the State would have provided
evidence at trial that on March 26, 2018, Morton and sev-
eral friends drove to a house in Lincoln, Nebraska, intend-
ing to continue a fight that had begun earlier that day. After
they arrived, Morton and his friends exited their vehicles and
stood in the front yard of the residence. At some point, some-
one handed Morton a gun. A verbal fight broke out between
Morton’s friends and individuals standing on the front porch.
When a female from the residence got into a vehicle and
began to drive around the yard in an attempt to run people
over, Morton pulled the gun out of his pocket. He fired in the
direction of the front porch where people were standing, and
the victim was shot and subsequently died from his injuries.
Morton was 16 years old at the time of the offense.
The district court found beyond a reasonable doubt that
Morton understood the nature of the amended charges against
him; that Morton’s pleas were made freely, knowingly, intel-
ligently, and voluntarily; and that there was a sufficient factual
basis to support the pleas. The court accepted Morton’s no
contest pleas and found him guilty on both counts. The court
ordered that a presentence investigation report (PSR) be pre-
pared and scheduled sentencing.
On November 18, 2019, a sentencing hearing was held.
Prior to imposing its sentence, the court stated it had reviewed
the PSR, as well as letters written by counsel. In deciding
upon the sentence, the court took into consideration Morton’s
young age at the time of the offense, Morton’s lack of criminal
history, the “extreme benefit” he received as part of the plea
agreement, and the fact that someone had lost his life as a
result of Morton’s actions. The court sentenced Morton to 15

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STATE v. MORTON
Cite as 29 Neb. App. 624
to 20 years’ imprisonment on the conviction of manslaughter
and 30 to 40 years’ imprisonment on the conviction of pos-
session of a firearm during the commission of a felony, and it
ordered the sentences to be served consecutively. Morton was
given 570 days’ credit for time served.
III. ASSIGNMENTS OF ERROR
Morton assigns, restated and consolidated, that there was
insufficient evidence to sustain his conviction of possession of
a firearm during the commission of a felony; that the district
court imposed excessive sentences; and that his trial counsel
was ineffective.
IV. STANDARD OF REVIEW
[1,2] A trial court is afforded discretion in deciding whether
to accept guilty pleas, and an appellate court will reverse the
trial court’s determination only in the case of an abuse of
discretion. State v. Ettleman, 303 Neb. 581, 930 N.W.2d 538
(2019). A judicial abuse of discretion exists when the reasons
or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. Id.
[3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Manjikian, 303 Neb. 100, 927 N.W.2d
48 (2019).
[4,5] Whether a claim of ineffective assistance of trial coun-
sel may be determined on direct appeal is a question of law.
State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018). 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 preju-
diced by counsel’s alleged deficient performance. Id.

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Nebraska Court of Appeals Advance Sheets
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STATE v. MORTON
Cite as 29 Neb. App. 624
V. ANALYSIS
1. Insufficient Factual Basis
[6] Morton first argues that the State’s factual basis was
insufficient to support his conviction of possession of a fire-
arm during the commission of a felony. Specifically, he claims
that there was no indication from the factual basis that the
underlying felony involved was an intentional crime, because
the court did not clarify during the plea hearing whether the
predicate offense was “sudden quarrel” manslaughter or unin-
tentional manslaughter. Brief for appellant at 8. In support,
Morton cites to State v. Pruett, 263 Neb. 99, 638 N.W.2d
809 (2002), which held that when a felony which serves as
the basis of the weapon charge is an unintentional crime, the
accused cannot be convicted of the weapon charge.
In contrast, the State argues that the Nebraska Supreme
Court’s holding in State v. Burkhardt, 258 Neb. 1050, 607
N.W.2d 512 (2000), applies to this case. In Burkhardt, the
defendant pled guilty to one count of manslaughter and one
count of use of a firearm to commit a felony. On appeal, the
defendant argued that his conviction for the weapon charge
should be vacated because the predicate crime of manslaughter
was unintentional. However, the court in Burkhardt concluded
that by knowingly, intelligently, and voluntarily entering pleas
of guilty, the defendant had waived any arguments related to
the alleged defect. Therefore, the State in this case argues that
even if the factual basis was insufficient to sustain Morton’s
conviction for possession of a firearm during the commission
of a felony, he has waived the argument by failing to object to
the factual basis at the plea hearing and entering his plea of
no contest.
[7,8] It has been held that the voluntary entry of a guilty
plea or a plea of no contest waives every defense to a charge,
whether the defense is procedural, statutory, or constitutional.
State 	v. 	Manjikian, 	supra. 	However, 	a 	sufficient 	factual
basis is a requirement for finding that a plea was entered

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STATE v. MORTON
Cite as 29 Neb. App. 624
into understandingly and voluntarily. State v. Ettleman, 303
Neb. 581, 930 N.W.2d 538 (2019); State v. Wilkinson, 293 Neb.
876, 881 N.W.2d 850 (2016). The court in Wilkinson made it
clear that a defendant does not waive a challenge to the factual
basis by entering a plea, because a sufficient factual basis is a
prerequisite for a judicial finding that the plea was entered into
understandingly and voluntarily. See, also, State v. Clemens,
300 Neb. 601, 915 N.W.2d 550 (2018); State v. Schiesser, 24
Neb. App. 407, 888 N.W.2d 736 (2016). Additionally, even
though Morton did not object to the factual basis at the plea
hearing, the issue was clearly before the district court, because
the court was required to determine whether a sufficient factual
basis existed prior to accepting Morton’s pleas. See State v.
Workman, 22 Neb. App. 223, 857 N.W.2d 349 (2014) (find-
ing that trial court erred in accepting defendant’s guilty pleas
without factual basis and where issue was raised for first time
on motion for rehearing before appellate court). Therefore, we
determine that Morton has not waived the right to challenge
the sufficiency of the State’s factual basis on direct appeal. We
next analyze whether the factual basis was sufficient.
Morton was convicted of possession of a deadly weapon
(firearm) during the commission of a felony in violation of
Neb. Rev. Stat. § 28-1205(2)(a) (Reissue 2016), which states:
“Any person who possesses a firearm, a knife, brass or iron
knuckles, or a destructive device during the commission of
any felony which may be prosecuted in a court of this state
commits the offense of possession of a deadly weapon during
the commission of a felony.” Possession of a deadly weapon,
which is a firearm, during the commission of a felony is a
Class II felony. § 28-1205(2)(c).
On appeal, Morton does not contest that he was in posses-
sion of a firearm, nor that he has been convicted of manslaugh-
ter, a Class IIA felony. Rather, he argues that under State v.
Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002), the underlying
felony for a weapon charge must be an intentional crime, but
because the State’s factual basis supports that he committed

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STATE v. MORTON
Cite as 29 Neb. App. 624
unintentional manslaughter only, it cannot sustain his con-
viction for possession of a firearm during the commission of
a felony.
The rule that an unintentional crime cannot serve as the
predicate felony for a weapon charge was first articulated by
the Supreme Court in State v. Ring, 233 Neb. 720, 447 N.W.2d
908 (1989), disapproved on other grounds, State v. Irish, 292
Neb. 513, 873 N.W.2d 161 (2016). In Ring, the court explained
that the purposes behind § 28-1205 are to discourage indi-
viduals from employing deadly weapons in order to facilitate
or effectuate the commission of felonies and to discourage
individuals from carrying deadly weapons while they commit
felonies. The court then stated, “It cannot reasonably be said
that § 28-1205 will dissuade a person from using a deadly
weapon to commit an unintentional felony; the two concepts
are logically inconsistent.” State v. Ring, 233 Neb. at 724, 447
N.W.2d at 911. As a result, the court concluded that when the
felony which served as the basis of the use of a weapon charge
was an unintentional crime, the accused could not be convicted
of use of a weapon to commit a felony. Subsequently, in State
v. Pruett, supra, the court held that a manslaughter conviction
for causing the death of another unintentionally while in the
commission of an unlawful act was an unintentional crime and
therefore could not serve as the predicate felony for a charge of
use of a deadly weapon to commit a felony. See Neb. Rev. Stat.
§ 28-305(1) (Reissue 2016). See, also, State v. Sepulveda, 278
Neb. 972, 775 N.W.2d 40 (2009); State v. Rye, 14 Neb. App.
133, 705 N.W.2d 236 (2005).
We point out, however, that State v. Ring, supra; State
v. Pruett, supra; State v. Sepulveda, supra; and State v.
Rye, supra, are legally distinct from Morton’s case. In each
of those cases, the defendant was charged and convicted
of use of a deadly weapon to commit a felony in violation of
§ 28-1205(1)(a). Morton was convicted with possession of a
deadly weapon during the commission of a felony in violation
of § 28-1205(2)(c). Section 28-1205(1)(a) states that “[a]ny
person who uses a [deadly weapon] to commit any felony

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STATE v. MORTON
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which may be prosecuted in a court of this state commits
the offense of use of a deadly weapon to commit a felony.”
(Emphasis supplied.) The Supreme Court in Ring held that the
language “to commit any felony” in § 28-1205 is synonymous
with “‘for the purpose of’” committing any felony and not
“‘with the result of’” committing a felony. 233 Neb. at 723,
447 N.W.2d at 910. The court reasoned that a criminal defend-
ant could use a weapon “‘for the purpose of committing’” a
felony only if the predicate offense was an intentional crime.
Id. at 724, 447 N.W.2d at 911.
In contrast, § 28-1205(2)(a) states that “[a]ny person who
possesses a [deadly weapon] during the commission of a
felony which may be prosecuted in a court of this state com-
mits the offense of possession of a deadly weapon during the
commission of a felony.” Completely absent is the “to commit
any felony” language that was the linchpin of the Supreme
Court’s analysis in State v. Ring, 233 Neb. 720, 447 N.W.2d
908 (1989), disapproved on other grounds, State v. Irish, 233
Neb. 720, 447 N.W.2d 908 (1989), and subsequent cases. On
appeal, Morton does not cite to—nor do we locate—Nebraska
precedent that explicitly applies the holdings from State v.
Ring, supra, and State v. Pruett, 263 Neb. 99, 638 N.W.2d 809
(2002), in a case where a defendant was convicted of a “pos-
session” weapon charge rather than a “use” weapon charge.
It is true that in Ring and other cases, the Supreme Court’s
analysis has often referred to § 28-1205 in its entirety, rather
than specifically isolating “use” cases. For instance, the court
summarized its opinions in Ring and Pruett as holding that
“an unintentional crime could not serve as the predicate felony
for a weapons charge under § 28-1205” and did not differenti-
ate between “use” cases and “possession” cases. See State v.
Iromuanya, 272 Neb. 178, 213, 719 N.W.2d 263, 293 (2006).
While it is settled that the predicate offense for a “use” weapon
charge in violation of § 28-1205 must be an intentional crime,
we cannot say that this language alone requires that a predi-
cate offense for a “possession” weapon charge must also be an
intentional crime.

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STATE v. MORTON
Cite as 29 Neb. App. 624
Regardless, in this case, the State’s factual basis did support
a finding that Morton was in possession of a firearm during the
commission of an intentional crime, and therefore, we need not
conclusively determine whether the rule from Ring applies in
both “use” and “possession” cases.
At the plea hearing, the State’s factual basis showed that
during the altercation at the residence, Morton withdrew a
loaded gun from his pocket, pointed it toward the front porch
where several individuals were standing, and fired. Neb. Rev.
Stat. § 28-1212.02 (Reissue 2016) states, in pertinent part,
that a person is guilty of unlawful discharge of a firearm if he
or she “unlawfully and intentionally discharges a firearm at
an inhabited dwelling house” and that such a person shall be
guilty of a Class ID felony. We conclude that the State’s factual
basis was sufficient to prove all of the elements of unlawful
discharge of a firearm in violation of § 28-1212.02. Because it
is an intentional crime, it may serve as the predicate felony for
a weapon charge under § 28-1205.
On appeal, Morton differentiates his case from State v.
Tucker, 278 Neb. 935, 774 N.W.2d 753 (2009). In that case,
the district court found the defendant guilty of manslaughter
by “‘unintentionally causing the death of [the victim] while
in the commission of an unlawful act’” and also found the
defendant guilty of use of a deadly weapon to commit a felony,
explaining that the predicate offense was the intentional crime
of assault against the victim. Id. at 939, 774 N.W.2d at 757. On
a petition for further review, the Supreme Court found no error,
holding that “based on the predicate offense of intentional
assault, the evidence was sufficient to support the trial court’s
judgment that [the defendant] was guilty of use of a weapon to
commit a felony.” Id. at 945, 774 N.W.2d at 760. In this case,
Morton argues that because the district court “made no finding
as to the predicate intentional offense supporting the weapon
charge,” his conviction must be vacated. Brief for appellant
at 9.
Although we agree that it may be the best practice for a
trial court to make specific findings regarding the predicate

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STATE v. MORTON
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offense for a weapon charge, we do not believe that the dis-
trict court’s failure to do so in this case constitutes an abuse
of discretion. As discussed above, the State’s factual basis was
sufficient to show that Morton committed the intentional crime
of unlawful discharge of a firearm. We cannot say that the
reasons or rulings of the district court were clearly untenable
or that Morton was deprived of a just result when the district
court found him guilty of possession of a firearm during the
commission of a felony. Accordingly, we conclude that the dis-
trict court did not abuse its discretion in accepting Morton’s no
contest pleas. This argument fails.
2. Sentencing Errors
Morton argues that the district court abused its discretion
in not imposing terms of probation rather than incarceration.
In the alternative, he argues that the court imposed exces-
sive sentences.
[9-11] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion
in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence to
be imposed. State v. Smith, 302 Neb. 154, 922 N.W.2d 444
(2019). In determining a sentence to be imposed, relevant fac-
tors customarily considered and applied are the defendant’s (1)
age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-
abiding conduct, and (6) motivation for the offense, as well as
(7) the nature of the offense and (8) the amount of violence
involved in the commission of the crime. Id. The appropriate-
ness 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 sur-
rounding the defendant’s life. Id.
[12] Denial of probation and imposition of a sentence within
statutorily prescribed limits will not be disturbed on appeal

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absent an abuse of discretion. State v. Thomas, 238 Neb. 4,
468 N.W.2d 607 (1991).
(a) Probation
Morton first argues that the district court abused its discre-
tion in not imposing terms of probation, rather than incarcera-
tion. Morton points to Neb. Rev. Stat. § 29-2260(2)(c) (Reissue
2016), which permits a trial court to withhold a sentence
of imprisonment at its discretion unless, inter alia, a lesser
sentence would “depreciate the seriousness of the offender’s
crime or promote disrespect for law.” Morton argues his lack
of criminal history, his mental health issues, and the lack of
evidence that he intended to cause harm to the victim support
a sentence of probation.
Section 29-2260(3) provides a noncontrolling set of factors
that trial courts may give weight to when considering a sen-
tence of probation as opposed to a sentence of imprisonment.
These factors include a consideration of whether
(a) The crime neither caused nor threatened serious
harm;
(b) The offender did not contemplate that his or her
crime would cause or threaten serious harm;
(c) The offender acted under strong provocation;
(d) Substantial grounds were present tending to excuse
or justify the crime, though failing to establish a defense;
(e) The victim of the crime induced or facilitated com-
mission of the crime;
(f) The offender has compensated or will compensate
the victim of his or her crime for the damage or injury the
victim sustained;
(g) The offender has no history of prior delinquency
or criminal activity and has led a law-abiding life for
a substantial period of time before the commission of
the crime;
(h) The crime was the result of circumstances unlikely
to recur;

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(i) The character and attitudes of the offender indicate
that he or she is unlikely to commit another crime;
(j) The offender is likely to respond affirmatively to
probationary treatment; and
(k) Imprisonment of the offender would entail exces-
sive hardship to his or her dependents.
Id.
[13,14] The Supreme Court has stated that § 29-2260 is a
directive to the trial court as to certain factors to be considered
in imposing the sentence, but also that § 29-2260 does not
control the trial court’s discretion in its conclusion reached as
to the proper sentence to be imposed, after weighing the statu-
tory factors. State v. McCulley, 305 Neb. 139, 939 N.W.2d 373
(2020). The specified factors must be “‘accorded weight,’” but
they are neither exclusive of other factors nor “‘controlling the
discretion of the court.’” Id. at 147, 939 N.W.2d at 381. An
appellate court’s review of an alleged abuse of the sentencing
judge’s discretion in refusing to withhold imprisonment under
§ 29-2260 must recognize the statutory guidelines set out in
§ 29-2260 for the direction of the sentencing judge in impos-
ing or withholding imprisonment, but the factors are not math-
ematically applied. State v. McCulley, supra.
Furthermore, § 29-2260 does not require the trial court to
articulate on the record that it has considered each sentenc-
ing factor, and it does not require the court to make specific
findings as to the factors and the weight given them. State v.
McCulley, supra. Thus, the absence of specific findings con-
cerning the factors set forth in § 29-2260 cannot in itself be
error or grounds for reversal. State v. McCulley, supra.
In reviewing a sentence that fails to withhold imprisonment,
the appropriateness of the sentence is necessarily a subjec-
tive 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. We review
a sentence that is within the statutory limits for an abuse of
discretion by examining whether it is supported by the evi-
dence. Id.

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Here, we determine that the district court did not abuse its
discretion in failing to withhold a sentence of imprisonment
on Morton’s convictions. At the sentencing hearing, the court
stated that it had considered Morton’s young age at the time of
the offense and his lack of a prior criminal history. However,
the district court noted that Morton’s actions had been a “seri-
ous offense” that resulted in the death of another person. The
court further found that imprisonment of Morton was necessary
for the protection of the public, that there was a substantial
risk Morton would engage in additional criminal conduct dur-
ing any period of probation, and that a lesser sentence would
depreciate the seriousness of Morton’s crime and promote dis-
respect for the law.
Considering this, we cannot say that the ruling of the district
court denying Morton probation was untenable or deprived him
of a substantial right or just result. The district court did not
abuse its discretion, and this argument fails.
(b) Excessive Sentence
Morton next argues, in the alternative, that the district court
imposed excessive sentences. He claims that while the offenses
he was convicted of were serious, “there is no need for him
to be removed from society in order to protect the public”
because Morton “does not pose a significant risk threat to
society.” Brief for appellant at 15. Because the sentences were
within the statutory limits, the question is whether the district
court abused its discretion.
Prior to pronouncing its sentence, the district court stated it
had reviewed and considered the evaluations and reports from
the probation office, as well as several letters from counsel
and third parties. The court also stated that it had taken into
consideration Morton’s young age at the time of the offense,
his lack of a criminal history, and also the “extreme benefit”
Morton received as a result of the plea agreement, as well as
the fact that Morton caused the victim’s death. In making its
decision, the court considered the nature and circumstances

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of Morton’s offenses, as well as Morton’s history, character,
and condition.
However, the fact that the district court considered the
appropriate factors when deciding Morton’s sentences does not,
in and of itself, force this court to draw the conclusion that the
district court did not abuse its discretion in sentencing Morton.
In determining whether the district court abused its discretion
in this case, we first analyze the case in light of the relevant
factors set forth in State v. Smith, 302 Neb. 154, 922 N.W.2d
444 (2019).
Prior 	to 	sentencing, 	the 	probation 	office 	conducted 	an
evaluation of Morton utilizing the “Level of Service/Case
Management Inventory” (LS/CMI). The LS/CMI is a validated
“‘risk/need’” assessment tool that is designed specifically to
determine the degree of risk that the offender presents to the
community and risk to recidivate. The results of Morton’s
LS/CMI are contained within the PSR, which was completed
by the probation office.
The PSR reflects that Morton was 16 years old at the time
the offenses were committed. Prior to his arrest, Morton was a
sophomore in high school, and he received mostly A’s and B’s
in his classes. The personal history portion of the PSR showed
that Morton’s father was murdered while Morton was a young
child and that he grew up without a strong male influence in
his life. Both Morton and his mother reported having a close
relationship. Morton’s mother reported that while Morton was
in middle school, he was suspended for a few days due to
fighting. The PSR notes that “[w]hile the present case is seri-
ous, except for [the] fight in middle school, it does not appear
[Morton] has an established pattern of violence over a period
of time.” The PSR further states that Morton may have had
gang affiliations and ongoing problems with anger manage-
ment, as well as a deficit in problem solving and prosocial
skills. The LS/CMI ultimately found that Morton posed a
“Medium Low risk to reoffend” across all of the catego-
ries evaluated.

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It is uncontested that Morton’s offenses involved violence
and resulted in the loss of the victim’s life. The PSR and the
factual basis showed that Morton traveled with other indi-
viduals to the residence for the purpose of fighting with the
occupants of the house. When the altercation intensified and
an individual began using a vehicle to run over Morton and his
companions, Morton withdrew a gun from his pocket and fired
in the direction of the house, where several people were stand-
ing on the front porch. The victim was shot through the neck
and died shortly thereafter. In a statement to police, Morton
reported that he was “not aiming at anyone in particular” and
was merely “pointing the gun in the direction of the house”
because that was “where the other group was standing.”
In addition to our analysis of the customarily considered fac-
tors, we also find instructive the sentences ordered in different
Nebraska cases which involved similarly situated defendants
convicted of like crimes.
In State v. Neuberger, No. A-13-411, 2014 WL 46420 (Neb.
App. Jan. 7, 2014) (selected for posting to court website), a
17-year-old male pled no contest to manslaughter and pos-
session of a firearm during the commission of a felony (the
same charges found in Morton’s case). The district court sen-
tenced the defendant to 20 to 20 years’ imprisonment on the
manslaughter conviction and a consecutive 10 to 15 years’
imprisonment on the possession of the firearm conviction.
The evidence in Neuberger showed that the charges stemmed
from an incident involving a confrontation between the defend-
ant and other individuals, where the defendant obtained a
sawed-off shotgun and shot one of the others involved in the
altercation.
In State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263
(2006), the defendant was convicted of attempted second
degree murder, second degree murder, and two counts of use of
a weapon to commit a felony. The defendant was a 23-year-old
male with no significant criminal history who drew a weapon
and shot the victims when an argument at a party escalated.

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The district court sentenced the defendant to 25 to 35 years’
imprisonment on the attempted second degree murder convic-
tion, life to life imprisonment on the second degree murder
conviction, and 10 to 20 years’ imprisonment on each of the
two weapon convictions; all four sentences were ordered to
be served consecutively. On appeal, the Supreme Court found
that the sentence on the second degree murder conviction was
excessive, modified it to 50 years’ to life imprisonment, and
ordered that the sentence for the attempted murder conviction
and the second degree murder conviction should be served con-
currently, while the sentences for the weapon convictions were
to be served consecutively to the respective underlying felony
and to each other.
In State v. Aragon, No. A-17-450, 2018 WL 1597372 (Neb.
App. Jan. 31, 2018) (selected for posting to court website), a
16-year-old male pled guilty to two counts of robbery and one
count of attempted use of a firearm to commit a felony. The
charges in this case arose when the defendant broke into a resi-
dence, beat the occupants with the butt of a shotgun, and stole
approximately $600 worth of items. At the sentencing hearing,
the district court stated that the violence present in the crime
was “‘really shocking,’” id. at *4, and noted that the defendant
had significant behavioral problems and gang affiliations and
used both marijuana and cocaine. The district court sentenced
him to concurrent terms of imprisonment of 14 to 20 years for
each robbery conviction and a concurrent term of 3 to 5 years’
imprisonment for the weapon conviction.
Finally, in State v. Bradley, No. A-17-644, 2018 WL 3868987
(Neb. App. Aug. 14, 2018) (selected for posting to court web-
site), a 20-year-old male was convicted of possession of a
deadly weapon by a prohibited person, terroristic threats, use
of a deadly weapon to commit a felony, and tampering with
a witness. The charges arose from an incident when the defend-
ant was attempting to strangle his girlfriend in an alley and
then shot at witnesses who attempted to intervene. The record
showed that he had a significant criminal history and was at

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a “‘high risk’” to reoffend. Id. at *14. In Bradley, the district
court sentenced the defendant to consecutive sentences totaling
18 to 27 years’ imprisonment across all four convictions.
First, we determine that the district court did not abuse its
discretion in sentencing Morton to 15 to 20 years’ imprison-
ment on count I, manslaughter. The record in this case shows
that the district court considered the appropriate sentencing
factors, outlined above, and that Morton’s crime was one of
violence that resulted in the death of another. Therefore, we
affirm Morton’s conviction and sentence on count I.
We reach the opposite conclusion with respect to Morton’s
sentence for count II. On count II of the State’s amended infor-
mation, Morton was convicted of possession of a firearm dur-
ing the commission of a felony, in violation of § 28-1205(2)(c).
The district court ordered the sentence on count II to be 30 to
40 years’ imprisonment, and the sentence was required by stat-
ute to run consecutively to that on count I. See § 28-1205(3).
We recognize that no two criminal cases are alike and that
unique factors may prove determinative when a district court
considers a sentence. We also recognize that possession of a
firearm during the commission of a felony is a Class II felony
carrying with it a potential sentence of 1 to 50 years’ impris-
onment and that Morton’s sentence was within those statu-
tory limits. However, in comparing the facts and outcome of
Morton’s case to other Nebraska cases (see above), we find
that Morton’s sentence on count II appears to be an extreme
outlier that leads us to closely scrutinize the propriety of the
sentence. Further, we find it incongruous that the sentence
for Morton’s weapons conviction should be double that of his
sentence for manslaughter, a crime of violence that resulted in
the death of another. We believe the disproportionate nature of
the two sentences is logically inconsistent, and we note that the
district court did not take the opportunity to explain this dispar-
ity on the record.
We also consider that there was no evidence in either the
factual basis or the PSR showing that Morton intentionally
shot the victim. Rather, the record demonstrates that Morton’s

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actions took place amid a chaotic, melee-like atmosphere.
There is no suggestion that Morton aimed his gun at the house
with the intent to harm any specific individual. As we discussed
above, the State’s factual basis best supports the conclusion
that the predicate felony for Morton’s weapon conviction was
unlawful discharge of a firearm, not manslaughter or assault.
We do not minimize Morton’s conduct; nor do we overlook
the fact that the victim was killed as a result of that conduct.
However, in light of our above analysis, especially consider-
ing Morton’s young age and background, as well as the fact
that similarly situated defendants (some at a much higher risk
to reoffend) have received significantly lower sentences on
similar charges, we believe that the reasons and rulings of the
district court are untenable and that Morton was denied a just
result in sentencing.
Taking into account all of the relevant circumstances, includ-
ing, but not limited to, Morton’s young age, his lack of a sig-
nificant criminal history, the nature of the offense, and sen-
tences issued in comparable cases, we conclude that the district
court abused its discretion in sentencing Morton to 30 to 40
years’ imprisonment on count II, possession of a firearm during
the commission of a felony, and that the sentence was exces-
sive. As noted, we find no abuse of discretion in sentencing on
the manslaughter conviction.
Neb. Rev. Stat § 29-2308(1) (Reissue 2016) provides in per-
tinent part that in criminal appeals,
the appellate court may reduce the sentence rendered by
the district court against the accused when in its opin-
ion the sentence is excessive, and it shall be the duty
of the appellate court to render such sentence against
the accused as in its opinion may be warranted by the
evidence.
See, also, State v. Iromuanya, 272 Neb. 178, 719 N.W.2d
263 (2006); State v. Etchison, 188 Neb. 134, 195 N.W.2d
498 (1972); State v. Oldenburg, 10 Neb. App. 104, 628
N.W.2d 278 (2001). Based upon our statutory authority, we
reduce Morton’s sentence on count II, possession of a firearm

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during the commission of a felony, to a term of imprisonment
of not less than 10 years nor more than 15 years. This sentence
will run consecutively to the sentence imposed by the district
court on count I, as required by § 28-1205(3).
3. Ineffective Assistance
of Counsel
[15,16] Morton next assigns that his trial counsel provided
ineffective assistance. Generally, a voluntary guilty plea or plea
of no contest waives all defenses to a criminal charge. State v.
Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019). Thus, when a
defendant pleads guilty or no contest, he or she is limited to
challenging whether the plea was understandingly and volun-
tarily made and whether it was the result of ineffective assist-
ance of counsel. Id.
[17] Morton has different counsel on direct appeal than he
did 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 perform-
ance which is known to the defendant or is apparent from the
record. Id.
[18-22] Generally, to prevail on a claim of ineffective assist-
ance 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 his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend-
ant’s defense. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79
(2019). To show that counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. Id. In a plea context, deficiency depends on whether coun-
sel’s advice was within the range of competence demanded
of attorneys in criminal cases. State v. Blaha, supra. When
a conviction is based upon a guilty or no contest plea, the
prejudice requirement for an ineffective assistance of counsel
claim is satisfied if the defendant shows a reasonable prob-
ability that but for the errors of counsel, the defendant would

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have insisted on going to trial rather than pleading guilty. Id.
The two prongs of the ineffective assistance of counsel test
under Strickland may be addressed in either order. State v.
Blaha, supra.
[23,24] The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean that
it can be resolved. The determining factor is whether the record
is sufficient to adequately review the question. State v. Theisen,
306 Neb. 591, 946 N.W.2d 677 (2020). The record is sufficient
if it establishes either that trial counsel’s performance was not
deficient, that the appellant will not be able to establish preju-
dice, or that trial counsel’s actions could not be justified as a
part of any plausible trial strategy. Id.
(a) Failure to Challenge
State’s Factual Basis
Morton first assigns that his trial counsel was ineffective
when he failed to object to the State’s factual basis as it per-
tained to the predicate offense for the weapon charge. Morton
reiterates his argument that the State’s factual basis was insuf-
ficient to sustain his conviction on the possession of a firearm
charge, that his counsel was deficient for failing to object to
the factual basis, and that he was therefore prejudiced when he
was sentenced to a term of 30 to 40 years’ imprisonment on
that conviction.
[25] We determine that the record conclusively shows that
Morton’s trial counsel was not deficient. As we discuss above,
the State’s factual basis was sufficient to sustain Morton’s
conviction for possession of a firearm during the commission
of a felony on the theory that unlawful discharge of a firearm
was the predicate offense for the weapon charge. Therefore,
even if Morton’s counsel had objected on this basis at the plea
hearing, the objection would have been overruled, or the dis-
trict court may have given the State an opportunity to clarify
its factual basis prior to asking Morton to enter his pleas. As
a matter of law, counsel cannot be ineffective for failing to
raise a meritless argument. State v. Collins, 299 Neb. 160, 907

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N.W.2d 721 (2018). For the same reasons, we determine that
the record shows that Morton would be unable to prove prej-
udice on this claim. This argument fails.
(b) Failure to Request Expert
Witness Evaluation
Finally, Morton assigns that he received ineffective assist-
ance of counsel when his trial counsel did not obtain an expert
“to opine as to the level of Morton’s culpability when taking
into account his age and maturity.” Brief for appellant at 19.
He claims that if such an expert had been retained by his coun-
sel, he would have received a more lenient sentence. Largely,
we find that this claim is speculative and is not supported by
either the record or Morton’s own arguments.
On appeal, Morton has not pled that his counsel’s perform-
ance fell below that of a lawyer with ordinary training and
skill in criminal law. The record reflects, and Morton admits,
that his trial counsel did obtain two separate assessments
from a licensed psychologist prior to the sentencing hearing.
The two evaluations were included within the PSR and were
considered by the district court in determining its sentence.
Information within the PSR (including those assessments)
referenced Morton’s young age at the time of the offense, his
troubled childhood, and his history of mental health issues. On
appeal, Morton does not allege that his counsel’s conduct fell
below appropriate standards expected of criminal attorneys in
this state; rather, he speculates that a different expert’s opin-
ion might have yielded a more desirable outcome at sentenc-
ing. We do not believe that the record before us or Morton’s
arguments on appeal sufficiently establish deficient perform-
ance under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). This claim of ineffective
assistance of counsel fails.
VI. CONCLUSION
We conclude that based on the predicate offense of unlaw-
ful discharge of a firearm, the factual basis was sufficient

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to support the district court’s judgment that Morton was guilty
of possession of a firearm during the commission of a felony.
We affirm Morton’s convictions on both counts, and we also
affirm the sentence on count I. We conclude that the sentence
imposed by the district court of 30 to 40 years’ imprisonment
on count II, possession of a firearm during the commission of
a felony, is excessive, and we modify that sentence to a term of
imprisonment of not less than 10 years nor more than 15 years,
with the sentence on count II to be served consecutively to the
sentence on count I. We further conclude that Morton’s claims
of ineffective assistance of counsel fail.
Affirmed as modified.