State v. Pittman

314 	285 NEBRASKA REPORTS
In imposing attorney discipline, we evaluate each case in
light of its particular facts and circumstances. State ex rel.
Counsel for Dis. v. Walocha, 283 Neb. 474, 811 N.W.2d 174
(2012). In his response to our order to show cause, respondent
has consented to the entry of a judgment imposing identical
discipline, or greater or lesser discipline, as we deem appro-
priate. The order of the Arizona Supreme Court publicly
reprimanded the respondent and placed him on probation
for a period of 1 year. We grant the motion for reciprocal
discipline, enter a judgment of public reprimand, and place
respondent on probation for a period of 1 year, effective
March 20, 2012.
CONCLUSION
The motion for reciprocal discipline is granted. It is the
judgment of this court that respondent should be and is pub-
licly reprimanded and placed on probation for a period of 1
year, effective March 20, 2012. Respondent is directed to pay
costs and expenses in accordance with Neb. Ct. R. §§ 3-310(P)
and 3-323(B) of the disciplinary rules within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
Judgment of public reprimand.
State of nebraSka, appellee, v.
ruSSell S. pittman, appellant.
826 N.W.2d 862
Filed March 1, 2013. 	No. S-11-415.
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact, and, in particular, determi-
nations regarding whether counsel was deficient and whether the defendant was
prejudiced are questions of law.
2. Postconviction: Appeal and Error. In appeals from postconviction proceedings,
an appellate court independently resolves questions of law.
3. Kidnapping. Whether a kidnapping victim was voluntarily released without seri-
ous bodily harm should be determined by the trial judge.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

STATE v. PITTMAN 	315
Cite as 285 Neb. 314
4. Kidnapping: Sentences. The provisions of Neb. Rev. Stat. § 28-313(3) (Reissue
2008) are mitigating circumstances which may reduce the penalty for kidnapping
and are therefore a matter for the court at sentencing, not the jury.
5. ____: ____. Neb. Rev. Stat. § 28-313(3) (Reissue 2008) creates a single criminal
offense, even though it is punishable by two different ranges of penalties depend-
ing on the treatment accorded to the victim.
6. Kidnapping. Rescue is not a voluntary release of a kidnapping victim.
7. Constitutional Law: Effectiveness of Counsel. An ineffective assistance of
counsel claim alleges a violation of the fundamental constitutional right to a
fair trial.
8. Effectiveness of Counsel: Proof: Appeal and Error. 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 his or
her counsel’s performance was deficient and that this deficient performance actu-
ally prejudiced the defendant’s defense. An appellate court may address the two
prongs of this test, deficient performance and prejudice, in either order.
Petition for further review from the Court of Appeals,
irwin, moore, and pirtle, Judges, on appeal thereto from the
District Court for Saunders County, mary c. gilbride, Judge.
Judgment of Court of Appeals reversed, and cause remanded
with directions.
Leo J. Eskey, of Leo J. Eskey Law Offices, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
H eavican, 	c.J., 	wrigHt, 	connolly, 	StepHan, 	and
mccormack, JJ.
wrigHt, J.
NATURE OF CASE
Russell S. Pittman was convicted and sentenced for the
Class II felony offense of attempted kidnapping. See State v.
Pittman, 5 Neb. App. 152, 556 N.W.2d 276 (1996) (Pittman I).
His conviction and sentence were affirmed on appeal. On
postconviction, the district court denied Pittman’s claims for
relief, including his claim of ineffective assistance of counsel.
Pittman claimed that for the purpose of determining his sen-
tence, his trial and appellate counsels should have challenged
the classification of the felony. Criminal attempt is currently

316 	285 NEBRASKA REPORTS
a Class II felony when the crime attempted is a Class IA
felony, and it is a Class III felony when the crime attempted is
a Class II felony. See Neb. Rev. Stat. § 28-201(4)(a) and (b)
(Cum. Supp. 2012).
The Nebraska Court of Appeals found that Pittman’s coun-
sel was ineffective for not challenging the classification at
sentencing and remanded the cause to the postconviction
court for resentencing. See State v. Pittman, 20 Neb. App. 36,
817 N.W.2d 784 (2012) (Pittman II). We granted the State’s
petition for further review, but denied Pittman’s petition for
further review. For the reasons stated herein, we reverse the
decision of the Court of Appeals and affirm the decision
of the postconviction court, which denied Pittman’s claims
for relief.
SCOPE OF REVIEW
[1] A claim that defense counsel provided ineffective assist-
ance presents a mixed question of law and fact, and, in par-
ticular, determinations regarding whether counsel was deficient
and whether the defendant was prejudiced are questions of law.
See State v. Diaz, 283 Neb. 414, 808 N.W.2d 891 (2012).
[2] In appeals from postconviction proceedings, an appel-
late court independently resolves questions of law. See State v.
Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012).
FACTS
In the early morning on March 17, 1995, Pittman was
arrested while outside the Czechland Inn in Prague, Nebraska.
Dina F., his estranged wife, was working alone at the Czechland
Inn, a bar, when she noticed an unfamiliar car parked at the
back of the bar. Someone was ducking to the side of the car,
and she believed that the person was Pittman. Pittman later
parked his car by Dina’s and stated that he would not leave
until they talked.
Apparently thinking that Dina had called law enforcement,
Pittman walked to a pay telephone and called the 911 emer-
gency dispatch service. A deputy sheriff advised him to go
home, but, instead, he returned to the bar. Dina then called a
friend, who called law enforcement. A deputy sheriff arrested

STATE v. PITTMAN 	317
Cite as 285 Neb. 314
Pittman, searched his car, and discovered a sawed-off shotgun,
a pry bar, and a duffelbag which contained wirecutters and
plastic cable ties. In his home, law enforcement found chains
and dog collars attached to Pittman’s bed.
At trial, the State’s theory was that Pittman attempted to
abduct Dina with the intent to commit sexual assault. The evi-
dence demonstrated that Pittman did not succeed in restraining
Dina, and she was not harmed. However, he was prevented
from kidnapping and carrying out his intentions toward Dina
because law enforcement arrived at the scene before Pittman
could follow through with his plan.
After a bench trial, Pittman was convicted of attempted
kidnapping and other related offenses. With respect to the
attempted 	kidnapping, 	the 	court 	sentenced 	Pittman 	for 	a
Class II felony offense. Pittman’s convictions and sentences
were affirmed by the Court of Appeals. See Pittman I. It con-
cluded that the State presented sufficient evidence at trial to
demonstrate that Pittman took a substantial step toward kidnap-
ping his victim. Id.
Pittman sought postconviction relief. He alleged a variety
of claims for postconviction relief, including that his trial
and appellate counsel were ineffective for failing to challenge
the classification of his attempted kidnapping conviction. He
claimed the conviction should have been of a Class III felony,
as opposed to a Class II felony, because Dina was not kid-
napped and did not suffer any bodily injury. Pittman argued,
therefore, that he should have been sentenced for the lesser
Class III offense.
After 	an 	evidentiary 	hearing, 	the 	postconviction 	court
denied and dismissed Pittman’s amended petition for post-
conviction relief. Pittman appealed, alleging that his trial and
appellate counsel were ineffective for failing to challenge
the classification of his crime. At the time he was sentenced,
criminal attempt was a Class II felony offense when the crime
attempted was a Class IA felony offense. Criminal attempt
was a Class III felony offense when the crime attempted
was a Class II felony offense. See § 28-201(4)(b) (Reissue
1995). His sentence of 20 to 25 years’ imprisonment for
attempted kidnapping fell within the limits for conviction

318 	285 NEBRASKA REPORTS
of a Class II felony offense but exceeded the maximum sen-
tence for a Class III felony offense. Neb. Rev. Stat. § 28-105
(Reissue 1995).
The Court of Appeals determined that trial and appellate
counsel were ineffective in failing to challenge the classifica-
tion of Pittman’s crime. It reversed his sentence for attempted
kidnapping and remanded the cause with directions to resen-
tence Pittman based on the then-existing statutory penalties
allowed for a Class III felony offense. It affirmed the district
court’s denial of Pittman’s other claims for postconviction
relief. See Pittman II. We granted the State’s petition for fur-
ther review.
ASSIGNMENT OF ERROR
The State claims, restated, that Pittman’s trial counsel was
not ineffective for failing to challenge Pittman’s sentence for a
Class II felony for the attempted kidnapping.
ANALYSIS
The State claims Pittman’s counsel was not ineffective.
Pittman was convicted of attempted kidnapping, and on direct
appeal, his conviction and sentence were affirmed by the Court
of Appeals. The appellate court concluded the evidence was
sufficient to show that Pittman took a substantial step toward
kidnapping Dina.
Kidnapping is defined in Neb. Rev. Stat. § 28-313 (Reissue
2008), which provided:
(1) A person commits kidnapping if he abducts another
or, having abducted another, continues to restrain him
with intent to do the following:
. . . .
(c) Terrorize him or a third person; or
(d) Commit a felony . . . .
. . . .
(2) Except as provided in subsection (3) of this section,
kidnapping is a Class IA felony.
(3) If the person kidnapped was voluntarily released or
liberated alive by the abductor and in a safe place without
having suffered serious bodily injury, prior to trial, kid-
napping is a Class II felony.

STATE v. PITTMAN 	319
Cite as 285 Neb. 314
The attempted kidnapping charge required application of
§ 28-201 (Reissue 1995): “(1) A person shall be guilty of an
attempt to commit a crime if he: . . . (b) Intentionally engages
in conduct which, under the circumstances as he believes them
to be, constitutes a substantial step in a course of conduct
intended to culminate in his commission of the crime.”
For 	sentencing 	purposes, 	attempted 	kidnapping 	was 	a
Class II felony if the crime attempted was a Class IA felony
offense. It was a Class III felony if the crime attempted
was a Class II felony offense. See § 28-201(4)(a) and (b)
(Reissue 1995).
In this postconviction appeal, the issue is whether the miti-
gating factors in § 28-313(3) should have been applied to
Pittman’s sentence. Section 28-313(3) reduces a Class IA fel-
ony to a Class II felony depending on the treatment afforded
the kidnapping victim.
[3-5] Whether a kidnapping victim was voluntarily released
without serious bodily harm should be determined by the trial
judge. See State v. Becerra, 263 Neb. 753, 642 N.W.2d 143
(2002). The provisions of § 28-313(3) are mitigating circum-
stances which may reduce the penalty for kidnapping and are
therefore a matter for the court at sentencing, not the jury.
Becerra, supra. Section 28-313(3) creates a single criminal
offense, even though it is punishable by two different ranges
of penalties depending on the treatment accorded to the vic-
tim. See Becerra, supra. If the person kidnapped is eventually
released without having suffered serious bodily injury prior to
trial, kidnapping is a Class II felony. See § 28-313(3).
In Becerra, supra, the defendant claimed ineffective assist-
ance of counsel because trial counsel failed to offer jury
instructions on the lesser-included offense of kidnapping as
a Class II felony. Under § 28-313, any factual finding about
whether the person kidnapped was voluntarily released affects
whether the defendant will receive a lesser penalty instead
of an increased penalty. Becerra, supra. Because there was
no evidence to support a finding by the trial court that
the defendant voluntarily released or liberated the victim,
the defendant’s motion for postconviction relief was prop-
erly overruled.

320 	285 NEBRASKA REPORTS
[6] Rescue is not a voluntary release of a kidnapping vic-
tim. State v. Delgado, 269 Neb. 141, 690 N.W.2d 787 (2005).
In Delgado, the defendant kidnapped and sexually assaulted a
young girl. He kept her in his car in a park overnight. When
law enforcement arrived on the scene the next day looking for
the victim, the defendant attempted to hide the victim under a
tree and denied knowledge of her whereabouts. We concluded
that the mitigating factors in § 28-313(3) were not present
because the rescue was not a voluntary release. The defendant
had also physically and sexually abused the victim.
In the case at bar, trial counsel did not argue that the miti-
gating factors in § 28-313(3) should be applied to Pittman’s
sentence. Pittman was not able to kidnap Dina because law
enforcement arrived on the scene and prevented him from
completing his intention to kidnap and sexually assault Dina.
Prevention by law enforcement of Pitman’s attempt to kidnap
Dina is analogous to the rescue in Delgado. In both situa-
tions, the defendant did not voluntarily release the victim.
Law enforcement arrived to rescue the victim. Since law
enforcement authorities prevented Pittman from kidnapping
Dina, he cannot claim he voluntarily released her. The pur-
pose of the mitigating factors is to encourage kidnappers
to release their victims without harm. Such factors are not
meant to benefit Pittman, who was prevented by law enforce-
ment from carrying out his intent to kidnap and sexually
assault Dina.
[7,8] An ineffective assistance of counsel claim alleges a
violation of the fundamental constitutional right to a fair trial.
State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). 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 his or
her counsel’s performance was deficient and that this defi-
cient performance actually prejudiced the defendant’s defense.
Edwards, supra. An appellate court may address the two
prongs of this test, deficient performance and prejudice, in
either order. Id.
The factors in § 28-313(3) are mitigating circumstances.
There 	are 	no 	mitigating 	factors 	applicable 	to 	Pittman’s

STATE EX REL. COUNSEL FOR DIS. v. CRAWFORD 	321
Cite as 285 Neb. 321
sentence. Therefore, his trial and appellate counsel were not
ineffective.
Pittman has failed to establish that trial and appellate coun-
sel were ineffective in failing to raise at sentencing or on
direct appeal that Pittman should have been sentenced for
attempted kidnapping as a Class III felony. The court properly
denied Pittman’s postconviction claim of ineffective assistance
of counsel.
CONCLUSION
We reverse the Court of Appeals’ decision, which reversed
the sentence and remanded the cause to the trial court for
resentencing, and remand the cause to the Court of Appeals
with directions to affirm the postconviction court’s decision
denying Pittman’s claims for relief.
reverSed and remanded witH directionS.
miller-lerman and caSSel, JJ., not participating.
State of nebraSka ex rel. counSel for diScipline
of tHe nebraSka Supreme court, relator, v.
terri l. crawford, reSpondent.
827 N.W.2d 214
Filed March 1, 2013. 	No. S-11-626.
1. Disciplinary Proceedings: Appeal and Error. A proceeding to discipline an
attorney is a trial de novo on the record, in which the Nebraska Supreme Court
reaches a conclusion independent of the findings of the referee; provided, how-
ever, that where the evidence is in conflict on a material issue of fact, the court
considers and may give weight to the fact that the referee heard and observed the
witnesses and accepted one version of the facts rather than another.
2. Disciplinary Proceedings: Attorneys at Law. A license to practice law confers
no vested right, but is a conditional privilege, revocable for cause.
3. ____: ____. The license to practice law is granted on the implied understanding
that the attorney’s conduct will be proper and that the attorney will abstain from
practices that discredit the attorney, the profession, and the courts.
4. ____: ____. Violation of any of the ethical standards relating to the practice of
law or any conduct of an attorney in his or her professional capacity which tends
to bring reproach on the courts or the legal profession constitutes grounds for
suspension or disbarment.