State v. Johnson

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STATE v. JOHNSON
Cite as 33 Neb. App. 194
State of Nebraska, appellee, v.
Chance R. Johnson, appellant.
___ N.W.3d___
Filed September 24, 2024. 	No. A-23-1058.
1. 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 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.
2. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. 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.
3. Effectiveness of Counsel: Appeal and Error. In reviewing claims of
ineffective assistance of counsel on direct appeal, an appellate court
decides only whether the undisputed facts contained within the record
are sufficient to conclusively determine whether counsel did or did not
provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance.
4. Sentences: Appeal and Error. The first step in analyzing whether sen-
tences are excessive is to examine the statutory limits for each offense.
An appellate court will not disturb a sentence imposed within the statu-
tory limits unless the trial court abused its discretion.
5. ____: ____. In reviewing whether an abuse of discretion occurred during
sentencing, an appellate court determines whether the sentencing court
considered and applied the relevant factors and any applicable legal
principles in determining the sentence to be imposed.
6. Effectiveness of Counsel: Postconviction: Appeal and Error. 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
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www.nebraska.gov/apps-courts-epub/
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STATE v. JOHNSON
Cite as 33 Neb. App. 194
counsel’s ineffective performance which is known to the defendant or
is apparent from the record; otherwise, the issue will be procedurally
barred in a subsequent postconviction proceeding.
7. Effectiveness of Counsel: Postconviction: Records: Appeal and
Error. An ineffective assistance of counsel claim is raised on direct
appeal when the claim alleges deficient performance with enough par-
ticularity 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 to recognize whether
the claim was brought before the appellate court.
8. Effectiveness of Counsel: Records: Appeal and Error. Once raised, an
appellate court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims. 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 prejudice as
a matter of law, or that trial counsel’s actions could not be justified as a
part of any plausible trial strategy.
Appeal from the District Court for Lancaster County: Ryan
S. Post, Judge. Affirmed.
Christopher Eickholt, of Eickholt Law, L.L.C., for appellant.
Michael 	T. 	Hilgers, 	Attorney 	General, 	and 	Jacob 	M.
Waggoner for appellee.
Moore, Arterburn, and Welch, Judges.
Per Curiam.
I. INTRODUCTION
Chance R. Johnson appeals his plea-based convictions for
attempted child enticement with an electronic communication
device, a Class II felony; three counts of attempted first degree
sexual assault, each a Class IIA felony; and one count of
attempted second degree sexual assault, a Class IIIA felony. On
appeal, he contends that the sentences imposed by the district
court were excessive and that he received ineffective assistance
of trial counsel in various respects. Upon our review, we affirm
Johnson’s convictions and sentences.

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STATE v. JOHNSON
Cite as 33 Neb. App. 194
II. BACKGROUND
In September 2022, the State filed an information charging
Johnson with four felony offenses as a result of his inappro-
priate relationships and sexual contact with multiple under-
age girls during the spring and summer of 2022. The charges
included child enticement with an electronic communication
device, a Class ID felony; first degree sexual assault, a Class
II felony; and two counts of child abuse, each a Class IIIA
felony. Subsequently, in October, the State filed an amended
information that alleged additional charges and additional vic-
tims. The amended information charged Johnson with eight
felony offenses: child enticement with an electronic commu-
nication device, a Class ID felony; three counts of first degree
sexual assault, each a Class II felony; and four counts of child
abuse, each a Class IIIA felony.
In October 2023, Johnson entered into a plea agreement
with the State. Pursuant to this plea agreement, Johnson pled
no contest to five felony offenses alleged by the State in an
amended information: attempted child enticement with an
electronic communication device, a Class II felony; three
counts of attempted first degree sexual assault, each a Class
IIA felony; and attempted second degree sexual assault, a
Class IIIA felony. Each charge related to a separate female
victim. Also as part of the plea agreement, the State agreed to
withdraw a pending motion to revoke Johnson’s post-release
supervision in a different case; to not bring further charges
associated with Johnson’s actions toward 12 young females
between February 15 and September 6, 2022; and to dismiss a
case with similar facts that had occurred in Cass County.
During the plea hearing, upon the district court’s inquiry,
Johnson indicated that no one had threatened him or made
promises to compel him to plead no contest to the amended
charges. In addition, he affirmed that he understood both
the constitutional rights he was waiving by pleading to the
charges and the possible consequences of his pleas. Johnson
informed the district court that he had been provided with

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sufficient time to discuss the case with his attorney and that
together they had discussed his options. He denied that his
counsel had refused or neglected to do anything asked of him.
Johnson entered pleas of no contest to the charges contained
in the amended information.
The State provided a factual basis for Johnson’s pleas.
As to count 1 in the amended information, attempted child
enticement with an electronic communication device, the State
indicated that in August 2022, 15-year old L.H. met Johnson
through a social media site. During their conversations, L.H.
explicitly told Johnson, who was 22 years old, that she was
only 15. Despite Johnson’s knowing L.H.’s young age, their
conversations became sexual, including Johnson’s sending
L.H. photographs of his naked genitals and videos of him mas-
turbating. Johnson also told L.H. in explicit language that he
wanted to have sexual intercourse with her. The two arranged
to meet in person on August 30. Prior to this meeting, they
discussed whether Johnson needed to bring a condom or
whether L.H. was taking any form of birth control medica-
tion. During their meeting, Johnson kissed L.H., but they did
not have sexual intercourse because Johnson’s friends were
with him. Johnson admitted to law enforcement that he had
engaged in inappropriate, sexual conversations with L.H. over
social media.
As to count 2 in the amended information, attempted first
degree sexual assault, the State indicated that during the spring
of 2022, 13-year-old K.G. began spending time with 22-year-
old Johnson, who was acquainted with some of her friends.
During that time period, Johnson came over to K.G.’s home
by himself. While K.G. was lying on her side on her bed,
Johnson began punching her in the back without warning or
explanation. He then climbed on top of her and punched her
multiple times all over her body. She told him to stop, and he
held his hand over her mouth. Johnson then pinned K.G. to
the bed, put his hand down her pants, and digitally penetrated
her for approximately 5 minutes. When Johnson finished, he

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told K.G. that if she told anyone about what he had done, he
would “seriously fucking kill [her].” He also told her that no
one would believe her. In an interview with law enforcement,
Johnson admitted to digitally penetrating K.G.
As to the second count of attempted first degree sexual
assault alleged in the amended information, the State indi-
cated that during the summer of 2022, 14-year-old K.J.M. met
Johnson at a fast-food restaurant where they both worked.
Eventually, they began seeing each other outside of work.
In August, K.J.M. accompanied Johnson to a public park in
Waverly, Nebraska. At the park, Johnson provided K.J.M.
with marijuana, which she smoked to the point of intoxica-
tion. Johnson then engaged in penile-vaginal intercourse with
K.J.M. in the park’s restroom. K.J.M. told law enforcement
that she verbally consented to the sexual contact, but that she
had not wanted to. She also explained that at one point during
the encounter, she attempted to push Johnson away from her,
but he grabbed her leg so hard it left a bruise. In an interview
with law enforcement, Johnson admitted to having penile-
vaginal intercourse with K.J.M.
As to the third and final count of attempted first degree
sexual assault alleged in the amended information, the State
provided the following factual basis. During the spring of
2022, 16-year-old C.K. worked with Johnson at a fast-food
restaurant. She and Johnson had mutual friends and, as a
result, would often see each other at parties. C.K. engaged
in consensual sex with Johnson. However, during their rela-
tionship, Johnson began to physically hurt C.K., including
punching her so hard it would leave bruises on her body and
choking her to the point that she was unable to breathe. C.K.
reported that at one point in the relationship, Johnson started
to have penile-vaginal sexual intercourse with her, but she told
him to stop. Johnson refused to stop and continued to have
sex with her. Afterward, he threatened her and told her not to
report his behavior. Johnson admitted to law enforcement that

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he had sexual intercourse with C.K., but indicated his belief
that such sex was always consensual.
As to the fifth count of the amended information, attempted
second degree sexual assault, the State indicated that in
August 2022, 15-year-old K.A.M. met Johnson at a mall in
Lincoln, Nebraska. When they met, Johnson told her that he
was a junior in high school, even though he was actually 22
years old. During their relationship, Johnson would routinely
act violently toward K.A.M., including choking her, hitting
her with a belt, slapping her in the face, and hitting her with
closed fists all over her body. On September 3, K.A.M., her
parents, and Johnson went to a movie theater where K.A.M.
and Johnson watched one movie and her parents watched a
different movie. During the movie, Johnson put his hands
down K.A.M.’s pants, underneath her underwear, and digitally
penetrated her vagina. When K.A.M. told Johnson to stop,
he told her to “shut up” and continued penetrating her for
approximately 5 minutes. After he was finished, Johnson told
K.A.M. that he had previously been charged with manslaugh-
ter and “if the cops ever talk to you about me, don’t say any-
thing or I will hurt you worse than before.”
Ultimately, the district court found that Johnson understood
the nature of the charges against him and the possible sen-
tences; that his no contest pleas were made freely, voluntarily,
knowingly, and intelligently; and that the factual basis sup-
ported his pleas. The court then accepted Johnson’s no contest
pleas to attempted child enticement with an electronic com-
munication device; three counts of attempted first degree sex-
ual assault; and attempted second degree sexual assault. The
court ordered that a presentence investigation report (PSR) be
completed prior to sentencing and scheduled the sentencing
hearing for December 2023.
At the sentencing hearing, Johnson’s defense counsel argued
in favor of a “fair” prison sentence, noting that Johnson had
taken responsibility for his actions and felt remorse for what
he had done. To the contrary, the State argued in favor of a

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“substantial period of incarceration,” referring to Johnson as a
“serial rapist” and noting his high risk to reoffend.
In its comments prior to imposing a sentence, the district
court indicated that it had read the PSR “in detail.” The court
found that Johnson posed a high risk to reoffend, agreed with
the State’s characterization of Johnson as a “serial rapist,” and
stated that he was a danger to society. The court explained
that Johnson had abused his position as an adult, had manipu-
lated young girls, and had left an “unspeakable” impact on
his victims’ lives. The court sentenced Johnson to a period of
14 to 30 years’ imprisonment on his conviction for attempted
child enticement with an electronic communication device;
to a period of 19 to 20 years’ imprisonment on the attempted
first degree sexual assault conviction that involved K.G. as his
victim; to a period of 15 to 20 years’ imprisonment on each of
his other two attempted first degree sexual assault convictions;
and to a period of 2 to 3 years’ imprisonment on his attempted
second degree sexual assault conviction. The sentences were
ordered to run consecutive to one another, such that Johnson
was sentenced to a total of 65 to 93 years’ imprisonment.
Johnson was also required to register as a sex offender for life
and was “subject to lifetime community supervision by the
Division of Parole supervision” upon his release.
Johnson appeals here.
III. ASSIGNMENTS OF ERROR
Johnson asserts on appeal that the district court abused its
discretion in imposing excessive sentences. He also asserts that
he received ineffective assistance of trial counsel when counsel
failed to depose any of the alleged victims; continued the pro-
ceedings for a lengthy period of time while Johnson remained
in custody; failed to file a motion to suppress the statement
Johnson made to law enforcement following his arrest; and
promised Johnson he would receive a lenient sentence if he
pled to the amended charges.

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STATE v. JOHNSON
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IV. STANDARD OF REVIEW
[1] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the 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. Dixon, 286 Neb. 334, 837 N.W.2d
496 (2013).
[2,3] Whether a claim of ineffective assistance of trial coun-
sel 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. State v. Lowman, 308 Neb. 482, 954 N.W.2d
905 (2021). 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 defend-
ant was or was not prejudiced by counsel’s alleged deficient
performance. Id.
V. ANALYSIS
1. Excessive Sentences
Johnson argues in his brief on appeal that the district court
imposed excessive sentences because the court improperly
weighed and considered the relevant sentencing factors. He
argues that such a lengthy aggregate prison sentence as was
imposed in this case was not warranted. Upon our review, we
find no abuse of discretion in the district court’s sentencing
determination.
[4] The first step in analyzing whether sentences are exces-
sive is to examine the statutory limits for each offense. State
v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021). An appellate
court will not disturb a sentence imposed within the statu-
tory limits unless the trial court abused its discretion. State v.

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Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016). Johnson
was convicted of attempted child enticement with an electronic
communication device, a Class II felony. A Class II felony is
punishable by 1 to 50 years’ imprisonment. Neb. Rev. Stat.
§ 28-105 (Cum. Supp. 2022). Johnson’s sentence of 14 to
30 years’ imprisonment is clearly within the statutory limits.
Johnson was also convicted of three counts of attempted first
degree sexual assault, each a Class IIA felony punishable by up
to 20 years’ imprisonment. Id. Johnson’s sentences of 19 to 20
years’ imprisonment on one count and 15 to 20 years’ impris-
onment on the other two counts are clearly within the statutory
limits. Finally, Johnson was convicted of attempted second
degree sexual assault, a Class IIIA felony punishable by up to
3 years’ imprisonment. Id. Johnson’s sentence of 2 to 3 years’
imprisonment is clearly within the statutory limits.
[5] Because Johnson’s sentences are within statutory limits,
we review the district court’s sentences for an abuse of dis-
cretion. In reviewing whether an abuse of discretion occurred
during sentencing, an appellate court determines whether the
sentencing court considered and applied the relevant factors
and any applicable legal principles in determining the sen-
tence to be imposed. State v. Starks, supra. Relevant factors
in that analysis may include 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) 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 that
includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all of the facts and circumstances
surrounding the defendant’s life. Id.
The district court ordered Johnson to participate in a PSR
investigation prior to sentencing. That PSR indicates that at
the time of sentencing, Johnson was 23 years old. He had
graduated from high school and had one young child, of whom

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he did not have custody. Johnson suffered from multiple men-
tal health conditions, including depression, anxiety, bipolar
disorder, and attention deficit hyperactivity disorder. He had
attempted suicide multiple times in the past. Johnson reported
that at the time of the current offenses, he was abusing Xanax,
OxyContin, and fentanyl. He desired treatment for his mental
health and for his substance abuse.
In May 2020, Johnson was convicted of first degree false
imprisonment and child abuse as a result of his sexual rela-
tionship with a 15-year-old girl when he was 19 years old.
He was sentenced to 2 years in prison and 18 months of post-
release supervision. He began his prison sentence in May 2022
and was released in July. His current offenses occurred both
immediately before and immediately after he served this sen-
tence. Johnson was still serving his term of post-release super-
vision upon his arrest for the current offenses. In addition to
his prior sexual-related offense, Johnson has also previously
been convicted of possession of marijuana, possession of drug
paraphernalia, being a minor in possession of alcohol, and
driving during a period of suspension.
During Johnson’s PSR interview, he admitted to engaging
in either inappropriate sexual conversations or consensual
sexual contact with each of the victims named in the current
offenses. However, he denied knowing how young the victims
were until after he had started a relationship with them. He
also denied being physically violent or threatening any of
the girls. The PSR indicates testing conducted revealed that
Johnson posed a very high risk of engaging in further criminal
acts. He posed a high risk of committing another sexually-
based criminal act.
Despite Johnson’s assertions to the contrary on appeal, the
record demonstrates that the district court sufficiently con-
sidered all of the relevant sentencing factors in making its
sentencing determination. The court explicitly stated during
the sentencing hearing that it had considered the comments of
defense counsel, Johnson’s statements about the offenses, his

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young age, his mentality, his criminal history, his background,
and the motivation involved in the current offenses. The court
then went on to explain that any mitigating factors present
were outweighed by the heinous nature of his serious offenses
and by the fact that the offenses were committed so soon
after he was released from prison for his prior sexually-based
offense. Considering all of the relevant sentencing factors and
the applicable law, we conclude that the sentences imposed
by the district court were not excessive and that the court did
not abuse its discretion when it sentenced Johnson within the
statutory limits.
2. Ineffective Assistance of Counsel
[6] Through different counsel, Johnson contends that his
trial counsel provided ineffective assistance in four ways.
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 in a
subsequent postconviction proceeding. State v. German, 316
Neb. 841, 7 N.W.3d 206 (2024).
Whether a claim of ineffective assistance of counsel may be
determined on direct appeal is a question of law. State v. Clark,
315 Neb. 736, 1 N.W.3d 487 (2024). In reviewing claims of
ineffective assistance of counsel on direct appeal, an appel-
late court decides only whether the undisputed facts contained
within the record are sufficient to conclusively determine
whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s
alleged deficient performance. Id.
[7,8] 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

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for postconviction relief to recognize whether the claim was
brought before the appellate court. State v. German, supra.
When a claim of ineffective assistance of counsel is raised in
a direct appeal, the appellant is not required to allege preju-
dice; however, an appellant must make specific allegations
of the conduct that he or she claims constitutes deficient per-
formance by trial counsel. Id. Once raised, an appellate court
will determine whether the record on appeal is sufficient to
review the merits of the ineffective performance claims. Id.
The record is sufficient if it establishes either that trial coun-
sel’s performance was not deficient, that the appellant will not
be able to establish prejudice as a matter of law, or that trial
counsel’s actions could not be justified as a part of any plau-
sible trial strategy. Id.
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 the defendant’s defense. State
v. Miller, 315 Neb. 951, 2 N.W.3d 345 (2024). To show that
counsel’s performance was deficient, the defendant must show
counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. Id. To show preju-
dice from counsel’s deficient performance, the defendant must
demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have
been different. Id. When a conviction is based upon a plea of
no contest, the prejudice requirement for an ineffective assist-
ance of counsel claim is satisfied if the defendant shows a
reasonable probability that but for the errors of counsel, the
defendant would have insisted on going to trial rather than
pleading no contest. Id.
(a) Failure to Depose Victims
Johnson alleges that he received ineffective assistance of
trial counsel because counsel failed to depose any of the

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girls named as victims in the charged offenses. He asserts
that “deposing the girls involved would have revealed sig-
nificantly exculpatory and mitigating evidence in [his] favor,”
particularly because he was friends with the girls. Brief for
appellant at 12. We find that the record refutes Johnson’s
assertion of dissatisfaction with counsel’s failure to depose
the victims.
During the plea colloquy, the district court and Johnson
engaged in the following discussion:
THE COURT: Have you told your attorney everything
you know about this case?
[Johnson:] Yes.
THE COURT: Are you aware of anything that could
help you in your case that you’ve not discussed with
your lawyer?
[Johnson:] No.
THE COURT: Are you satisfied with the job your law-
yer’s done for you in this case?
[Johnson:] Yes.
THE COURT: Do you believe he’s a competent lawyer
and knows what he’s doing?
[Johnson:] Yes.
THE COURT: Has he refused or neglected to do any-
thing you’ve asked him to do?
[Johnson:] No.
THE COURT: And have you had enough time to talk
with your lawyer about this case?
[Johnson:] Yes.
Such discussion indicates that Johnson and his trial counsel
discussed “anything” that could help in defending Johnson
from the charges, which would include the possibility of
deposing the victims. The discussion also indicates that trial
counsel did not neglect or refuse to do anything asked of
him. As such, Johnson clearly did not ask counsel to pursue
the depositions and, instead, chose to enter a plea agreement
regarding the amended charges. Johnson cannot now claim, in

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contravention to his declaration during the colloquy, that trial
counsel did, in fact, fail to depose the victims contrary to his
wishes. As such, his claim of ineffective assistance of counsel
must fail.
(b) Request to Continue Proceedings
Johnson alleges that he received ineffective assistance of
trial counsel because counsel “repeatedly continued [Johnson’s]
case 	for 	an 	unnecessarily 	lengthy 	period 	of 	time 	while
[Johnson] remained in pretrial custody.” Brief for appellant at
13. Johnson further alleges that such continuances prejudiced
him by forcing him to “plead[] to charges that he may not
have otherwise plead [sic] to, simply so he could be released
from custody, or at a minimum know what his ultimate sen-
tence would be.” Id. We read Johnson’s argument to assert that
given the length of time that he spent incarcerated prior to the
resolution of the case, he was no longer in the right state of
mind to enter a knowing and voluntary plea. Our record refutes
this claim and, as such, demonstrates that Johnson cannot
demonstrate prejudice due to trial counsel’s alleged deficient
performance in requesting continuances.
During the plea colloquy, the district court asked Johnson
about his ability to understand and enter into the plea agree-
ment with the State. Johnson indicated that he suffered from
multiple mental illnesses, but indicated that despite the symp-
toms of these illnesses, he still understood what was occurring
during the plea hearing. Johnson informed the court, in his
own words, that he wished to “tak[e] a plea of no contest to
the amended charges.” Johnson also explicitly indicated that
he was choosing to plead no contest to the amended charges
freely and voluntarily. The court found, through its questioning
and observation of Johnson, that
[Johnson] is following my questions and is giving suit-
able answers to the questions I’ve asked. Physically,
including his eyes, speech, and demeanor, he appears to
be alert and normal. I conclude that he is not under the

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influence of, or being adversely affected by, any alcohol,
drugs, narcotics, or other pills; and I find he is competent
to proceed in this matter.
Johnson’s discussion with the district court during the plea
colloquy demonstrates that he fully understood the effects
and consequences of his no contest pleas and also reflects
that Johnson entered the pleas knowingly and voluntarily.
Johnson’s assertion now that he was not, in fact, in the right
state of mind to enter the pleas directly contradicts his prior
statements to the court. In addition, although given an oppor-
tunity to explain any hesitation with the plea agreement or
with entering his pleas, Johnson offered no indication to the
district court that he was unsure of how to proceed. We con-
clude that the record refutes Johnson’s claim and find that he
cannot show any prejudice as a result of counsel’s alleged
requests for multiple continuances during the proceedings.
(c) Failure to File Motion to Suppress Johnson’s
Statements to Law Enforcement
Johnson next alleges that his trial counsel provided inef-
fective assistance in failing to move to suppress Johnson’s
statements to law enforcement. He asserts that he told counsel
that prior to the statements he “did not knowingly or freely
or intelligently or willfully waive his rights to remain silent”
because he was very anxious and had not been taking his
medication. Brief for appellant at 14. The record on appeal is
insufficient to address this claim. The record does not contain
any information regarding trial counsel’s decision not to file a
motion to suppress or of conversations between counsel and
Johnson regarding the likelihood of success of such a motion.
See, e.g., State v. Anderson, 305 Neb. 978, 943 N.W.2d 690
(2020); State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).
This claim is preserved for postconviction review.
(d) Promise of Lenient Aggregate Sentence
Johnson’s final allegation of ineffective assistance of trial
counsel asserts that counsel induced Johnson to enter into the

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plea agreement by promising him he would receive an aggre-
gate sentence “of approximately 10 to 20 years imprisonment.”
Brief for appellant at 15. The record refutes Johnson’s claim.
During the plea colloquy, the district court asked Johnson if
anyone had made any promises to him in exchange for his
no contest pleas to the amended charges. Johnson answered,
“No.” The district court also specifically asked him if anyone
had made any promises or representations regarding what
the actual sentences would be upon him entering no contest
pleas. Johnson again answered, “No.” Having unequivocally
represented to the district court on the record that no promises
were made by anyone regarding his sentences, Johnson cannot
now claim otherwise to obtain postconviction relief. His claim
must fail.
VI. CONCLUSION
We do not find that the district court abused its discretion
in sentencing Johnson. In addition, Johnson’s claims of inef-
fective assistance of counsel are directly refuted by the record,
with the exception of his claim that counsel failed to file a
motion to suppress his statement to law enforcement. Our
record is insufficient to review that claim, and, as such, the
claim is preserved for postconviction review. Johnson’s convic-
tions and sentences are affirmed.
Affirmed.
Arterburn, 	Judge, 	concurring 	in 	part, 	and 	in 	part
dissenting.
I agree with the majority’s decision to affirm Johnson’s
convictions and sentences. However, I must respectfully dis-
sent from that portion of the majority opinion that finds there
is an insufficient record to address Johnson’s allegation that
his trial counsel provided ineffective assistance in failing to
file a motion to suppress Johnson’s statement to law enforce-
ment. And, which, accordingly, preserves this issue for post-
conviction review. I believe that our record on direct appeal

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is sufficient to review this allegation of ineffective assistance
and that after such review, the allegation is directly refuted.
In arguing that trial counsel provided ineffective assistance
in failing to file a motion to suppress his statement to law
enforcement, Johnson asserts that he told counsel that prior to
the statements he “did not knowingly or freely or intelligently
or willfully waive his rights to remain silent” because he was
very anxious and had not been taking his medication. Brief
for appellant at 14. As was discussed in the majority opinion,
Johnson affirmatively indicated during the plea colloquy with
the district court that he and his trial counsel discussed “any-
thing” that could help in defending Johnson from the charges.
Presumably, then, Johnson did discuss the possibility of filing
a motion to suppress his statements with trial counsel, given
that he now asserts he discussed his mental condition at the
time of the police interview with trial counsel. Nonetheless,
at the plea hearing, Johnson affirmed to the district court that
trial counsel did not neglect or refuse to do anything asked of
him. This suggests that Johnson did not actually request coun-
sel to file the motion to suppress or that after discussion with
counsel, Johnson agreed that no motion should be filed in light
of all the factors present in the case, including any proffered
plea agreements from the State. During the plea colloquy, the
district court informed Johnson that he had a right to request
a suppression hearing specifically concerning any statements
he had made to law enforcement officials and that by pleading
no contest, he was giving up that right. Johnson affirmatively
indicated that he understood that he was waiving his right to
a suppression hearing regarding the statements he had made
to police.
Given the specificity with which the district court advised
Johnson of his right to challenge his statements to law enforce-
ment via a motion to suppress, coupled with Johnson’s affirma-
tions that he was satisfied with his trial counsel’s performance
and that counsel had done everything Johnson asked, I believe
the record refutes Johnson’s claim of ineffective assistance

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STATE v. JOHNSON
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of trial counsel in this regard. The record demonstrates that
Johnson was aware of his right to challenge his statements to
law enforcement and his understanding that by pleading to the
charges he was waiving such right. That waiver should mean
something. Given the district court’s thorough examination of
Johnson with regard to trial counsel’s efforts to represent him
and carry out his wishes, Johnson’s valid waiver of his right
to seek suppression of his statements to police should preclude
him from being able to change his mind and now challenge
whether a motion to suppress should have been filed.