Full Opinion (html_with_citations)

                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                       (Memorandum Web Opinion)

                                      STATE V. KELLOGG


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                              V.

                              DAEVIER K. KELLOGG, APPELLANT.


                          Filed December 20, 2022.    No. A-22-240.


       Appeal from the District Court for Douglas County: KIMBERLY MILLER PANKONIN, Judge.
Affirmed.
       Sandra L. Jarvis, of Jarvis Criminal & Immigration Law, for appellant.
       Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.


       PIRTLE, Chief Judge, and BISHOP and WELCH, Judges.
       BISHOP, Judge.
                                     I. INTRODUCTION
        Daevier K. Kellogg pled no contest to one count of attempted possession of a deadly
weapon by a prohibited person in violation of
Neb. Rev. Stat. §§ 28-1206
(1)(a) and (3)(b) and
28-201(4)(a) (Cum. Supp. 2020). The Douglas County District Court sentenced Kellogg to 22 to
28 years’ imprisonment. Kellogg claims that his sentence was excessive and that he received
ineffective assistance of trial counsel. We affirm.
                                     II. BACKGROUND
       On September 7, 2021, the State filed an information charging Kellogg with one count of
possession of a deadly weapon by a prohibited person, a Class ID felony, and one count of
possession of a stolen firearm, a Class IIA felony. On September 23, the district court accepted
Kellogg’s plea of not guilty.



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        During a hearing held on January 20, 2022, the parties indicated that a plea agreement had
been reached in the case. Pursuant to the agreement, the State moved to dismiss the pending
violation of probation in a separate case, requested that the district court terminate that probation,
and filed an amended information charging Kellogg with one count of attempted possession of a
deadly weapon by a prohibited person, a Class II felony. After the court advised Kellogg of his
constitutional rights and the consequences of entering a plea of no contest, Kellogg pled no contest
to the single count in the amended information.
        According to the factual basis provided by the State:
        [O]n or about August 2nd, 2021, officers respond[ed] to a fight/disturbance. They s[aw]
        [Kellogg] trying to fight another individual. As officers approached, [Kellogg] tried to
        leave the area. They detained him. He resisted arrest. Officers located a firearm concealed
        upon [Kellogg]’s person in his pants. . . . [Kellogg] is a prohibited person preventing him
        from owning or possessing firearms. All events occurr[ed] in Douglas County, Nebraska.

        The parties stipulated that, on August 2, 2021, “Kellogg was a prohibited person by virtue
of a valid felony conviction.” The district court accepted the stipulation and took judicial notice of
a prior case wherein Kellogg was convicted of a felony. The court granted the state’s motion to
dismiss a probation violation in a separate case; Kellogg’s probation in that case was terminated
unsatisfactorily. The court informed Kellogg that it would order a presentence investigation.
        After a hearing held on March 10, 2022, the district court sentenced Kellogg to 22 to 28
years’ imprisonment. Kellogg was given 221 days’ credit for time served.
        Kellogg appeals.
                                 III. ASSIGNMENTS OF ERROR
       Kellogg claims, reordered, (1) that the district court abused its discretion by “failing to
adequately apply the sentencing factors resulting in an excessive sentence” and failing to “compare
ruling with similarly situated defendants,” and (2) that Kellogg received ineffective assistance
when his trial counsel (a) failed to “reasonably explain the allegations and corresponding charges,
plea bargain, and penalty allowing [Kellogg] to make informed decision about pleading to the
amended information,” (b) speculated on sentencing and “planting in [Kellogg] an expectation of
two to four years punishment, leading [Kellogg] to plead,” and (c) failed to “properly advise
[Kellogg] on the sentencing phase, to participate in the pre-sentence investigation process; garner
supporting documents to make a formidable case by casting [Kellogg] in positive light.”
                                  IV. STANDARD OF REVIEW
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Lierman,
305 Neb. 289
,
940 N.W.2d 529
 (2020).
Abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
Id.
        Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. 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


                                                -2-
and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance.
State v. Blaha,
303 Neb. 415
,
929 N.W.2d 494
 (2019).
                                          V. ANALYSIS
                                     1. EXCESSIVE SENTENCE
         Kellogg claims that the district court imposed an excessive sentence. Kellogg was
convicted of one count of attempted possession of a deadly weapon by a prohibited person, a Class
II felony. A Class II felony is punishable by 1 to 50 years’ imprisonment. See
Neb. Rev. Stat. § 28-105
 (Cum. Supp. 2020). The district court sentenced Kellogg to 22 to 28 years’ imprisonment,
which was within the statutory range. As such, we review the district court’s sentencing
determination only for an abuse of discretion.
         When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense and (8) the violence involved in the commission of the crime. State v.
Lierman, supra.
 The appropriateness 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 surrounding the defendant’s life.
Id.
         Kellogg was 20 years old at the time of sentencing. According to the presentence
investigation report (PSR), Kellogg was unmarried but had a girlfriend with whom he cohabitated
prior to his incarceration. Kellogg had no children. He obtained his high school diploma in 2019
and, prior to his incarceration, worked for a moving company.
         We will not recount Kellogg’s juvenile history, but Kellogg’s adult criminal history
includes convictions for the following: “Possess Drug Paraphernalia” in 2019 ($50 fine); “Robbery
- . . . Felony 2A” in 2019 (4 years’ probation); “Robbery – Felony 2” in 2020 (10 days’ jail);
“Fraud Criminal Impersonation – Felony 4” and “False Reporting” in 2020 ($50 fine and 9 days’
jail; and “Theft Shoplifting” in 2021 (5 days’ jail).
         The probation officer conducted a “Level of Service/Case Management Inventory” as part
of the presentence investigation. Kellogg was assessed as a “very high” risk to reoffend. He scored
in the “medium” risk range in the criminogenic risk factor domain for alcohol/drug problems. He
scored in the “high” risk range in the domains for criminal history, education/employment, and
leisure/recreation. He scored in the “very high” risk range in the domains for family/marital,
companions, procriminal attitude/orientation, and antisocial patterns.
         At the sentencing hearing, Kellogg’s counsel stressed that “there was no use or attempted
use of th[e] firearm during the course of any physical altercation.” Counsel further stated that
Kellogg had “reached a point in his life where he realizes that if he continues to hang out with the
[same] crowd[,] . . . he’s going to end up doing life in prison on [an] installment plan” and that he
would like to “move on with his life.” Counsel requested that the district court impose a sentence
of imprisonment not significantly longer than the minimum followed by a longer term of parole,
where “if he doesn’t comply with the terms and conditions of his parole[,] then he would be facing
substantial additional time.” Counsel argued that such a sentence would allow Kellogg to
demonstrate that “he can behave himself” and provide him with the “motivation necessary [for
him to] stay[] out of trouble.”


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         Kellogg personally informed the district court that he “accepted responsibility for [his]
actions” and “that there’s consequences to [his] actions.” But, being 20 years old, he was “still
learning.” He explained that he had been “sitting around with the wrong crowds” and that was not
what he saw for his future, noting that he “was raised better than this.” He said he was accepting
responsibility and he had taken numerous “mod programs” while incarcerated, “[a]ll the way from
offender accountability to anger management to emotions and regulations.” He further stated that
he was “[t]rying to get set up for school.”
         The State submitted without further argument.
         The district court stated that it had considered all of the information presented at the hearing
and the information in the PSR in determining an appropriate sentence to impose. The court
recounted Kellogg’s violent criminal history, noting that he was on probation for another “violent
offense” at the time of the current offense. The court stated that Kellogg “[o]bviously[] didn’t take
[his] probation seriously.” The court expressed skepticism that supervision would benefit Kellogg
in the future, citing the probation officer’s finding that Kellogg was “at a very high risk for
resistance to rehabilitative guidance and treatment.” The court also stated that Kellogg was
unwilling to accept responsibility for the offense, noting that he had stated during his presentence
investigation interview that “the police planted the gun.” The court acknowledged Kellogg’s young
age, but stated that he poses a “very high risk” to himself and the community. The court then
sentenced Kellogg as previously set forth.
         In his brief on appeal, Kellogg argues that the district court abused its discretion “when it
failed to use like cases for guidance when crafting a sentence.” Brief of appellant at 22. We
disagree. The Nebraska Supreme Court has held that a sentencing court is “under no obligation to
conduct a comparative analysis of similar cases.” State v. Anders,
311 Neb. 958, 988
,
977 N.W.2d 234
, 257 (2022). As such, this argument fails.
         Kellogg also argues that the district court abused its discretion “by affording no weight to
the existing sentencing factors.” Brief for appellant at 19. Specifically, Kellogg argues that the
district court merely considered his “age and that’s all.”
Id. at 21
. He argues that the court failed
to consider that he graduated high school despite growing up “poor” and “in a broken home . . .
[with] no father figure.”
Id. at 20
. He further claims that the district court “gave improper weight
to [his] criminal history.”
Id. at 20
. The record shows otherwise.
         At the sentencing hearing, the district court expressly stated that, in crafting an appropriate
sentence, it had considered “[Kellogg’s] age, mentality, education, experience, . . . background,
past criminal record, [the] nature of the offense, [and the] motivation for the offense.” The court
also stated that it had considered the information in the PSR; the PSR contained almost all of the
information regarding Kellogg’s individual circumstances that he highlighted in his brief on
appeal. To the extent that Kellogg’s individual circumstances may weigh in favor of a more lenient
sentence, our review of a sentencing order is limited to an abuse of discretion standard. See State
v.
Lierman, supra.
 Because the appropriateness 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 surrounding the defendant’s life, a sentencing court is accorded very
wide discretion in imposing a sentence. See State v. Rogers,
297 Neb. 265
,
899 N.W.2d 626
 (2017).
Accordingly, we conclude that while the sentence imposed was severe, we cannot say the district
court abused its discretion.


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                             2. INEFFECTIVE ASSISTANCE OF COUNSEL
        Kellogg alleges three claims of ineffective assistance of trial counsel. 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 voluntarily made and
whether it was the result of ineffective assistance of counsel.
Id.
        Kellogg is represented by different counsel on direct appeal than he was at trial. When a
defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must
raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record.
Id.
 Once raised, the appellate court will determine
whether the record on appeal is sufficient to review the merits of the ineffective performance
claims. State v. Lierman,
305 Neb. 289
,
940 N.W.2d 529
 (2020). A 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, or that trial counsel’s actions could not be justified as a part of any
plausible trial strategy. State v. Theisen,
306 Neb. 591
,
946 N.W.2d 677
 (2020).
        To prevail on a claim of ineffective assistance of counsel, the defendant must show that his
or her counsel’s performance was deficient, and that this deficient performance actually prejudiced
the defendant’s defense. See, Strickland v. Washington,
466 U.S. 668
,
104 S. Ct. 2052
,
80 L. Ed. 2d 674
 (1984); State v. Anderson,
305 Neb. 978
,
943 N.W.2d 690
 (2020). 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. State v.
Blaha, supra.
 In a plea context,
deficiency depends on whether counsel’s advice was within the range of competence demanded
of attorneys in criminal cases.
Id.
 When a conviction is based upon a guilty or no contest plea, the
prejudice requirement of an ineffective assistance 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 guilty.
Id.
 The two prongs of the ineffective assistance of
counsel test under Strickland may be addressed in either order. State v.
Blaha, supra.
        With these governing principles in mind, we turn now to address Kellogg’s three
ineffective assistance of trial counsel claims.
                            (a) Failure to Explain Before Entering Plea
       Kellogg assigns as error that trial counsel failed to “reasonably explain the allegations and
corresponding charges, plea bargain, and penalty allowing [Kellogg] to make informed decision
about pleading to the amended information.” Brief for appellant at 9. In support of that alleged
claim, Kellogg argues that trial counsel “failed to learn [Kellogg’s] objectives, background and
needs to properly advocate on his behalf.” Id. at 16. He contends that trial counsel asked him “to
sign documents filled with legalese which he could not be expected to understand, i.e. waiver of
appearance and written arraignment.” Id. Kellogg claims trial counsel failed to weigh his “age,
maturity, experience or cognitive function and tailor communication in a simplified manner that
would have been more effective and ultimately placing [Kellogg] in the best position to make
informed decisions about his own representation.” Id. Kellogg goes on to describe that he comes
from “a poor social and economic background and has some college education,” and that he
“should not have been expected to know and understand the criminal process and the law sufficient


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to make informed decisions about his defense.” Id. Kellogg further contends his trial counsel
“failed to learn, or simply ignored, facts” such as Kellogg graduating from public school in 2019
and that he was preparing to enroll in a college course at a community college; he suggests this
demonstrates that he “placed his education before work experience which explains his lack of work
history.” Id. Kellogg also indicates that he has “close family ties in Omaha, particularly his elderly
grandmother, who would like to get his [sic] grandson back as she’s grown dependent on.” Id. In
summary, Kellogg argues, “All these factors and others were entirely missed, overseen or
discarded by trial counsel. [Kellogg] was just another name and case number.” Id.
        The State responds that “[i]t is unclear exactly what Kellogg is asserting here as trial
counsel’s deficient performance.” Brief for appellee at 15. We agree that Kellogg fails to clearly
identify what his trial counsel did or did not explain regarding “the allegations and corresponding
charges, plea bargain, and penalty” that would have better informed Kellogg and caused him to
change his mind about entering a plea rather than proceeding to trial. And to the extent Kellogg
attempts to raise new claims and arguments related to deficient performance in his reply brief, we
decline to consider new alleged errors raised for the first time in a reply brief. See Linscott v.
Shasteen,
288 Neb. 276
,
847 N.W.2d 283
 (2014) (errors not assigned in appellant’s initial brief
are waived and may not be asserted for first time in reply brief).
        Regarding trial counsel’s failure to “reasonably” explain the charges, plea bargain, and
penalty to Kellogg, resulting in Kellogg not making an informed decision about entering a plea,
we find the record affirmatively refutes Kellogg’s claim. We agree with the State’s assertion that
“regardless of whether Kellogg’s trial counsel effectively communicated these things to Kellogg,
[Kellogg] cannot show prejudice because they were explicitly explained to him by the district court
during the plea hearing, and Kellogg affirmatively represented that he understood each of these
concepts and freely and voluntarily entered his plea of no contest.” Brief for appellee at 15-16.
        Notably, before accepting the plea agreement, the district court specifically informed
Kellogg that it was going to ask him questions to make sure that he understood the constitutional
rights he was “giving up” if his plea was accepted, that his plea was being “made freely and
voluntarily,” and that Kellogg was “in fact, guilty of this charge.” Kellogg stated his name and his
age and said that he graduated from a public school in Omaha. He denied being treated for or
having any mental illness or emotional disability. Kellogg then entered a plea of no contest to the
amended information. The court went on to provide further advisements related to: Kellogg’s right
to a speedy jury trial, pointing out that “every one of those jurors would have to find [Kellogg]
guilty beyond a reasonable doubt”; Kellogg’s right to confront witnesses and subpoena witnesses
to “come to court and testify on [Kellogg’s] behalf if [he felt] it would help [him] in [his] case”;
Kellogg’s waiving of his right to have a separate hearing outside the presence of a jury to determine
whether any statements given by Kellogg or evidence seized from him violated Kellogg’s
constitutional rights; Kellogg’s presumption of innocence and right to remain silent; and Kellogg’s
right to be represented by an attorney at all stages of the criminal proceeding, including trial and
appeal. When Kellogg was asked if he understood the rights he was waiving by entering his plea,
Kellogg responded, “Absolutely.”
        The district court proceeded to detail the charge and pointed out that the State claimed
Kellogg had previously been convicted of a felony, thus making Kellogg “a prohibited person.”
When asked if he understood the charge, Kellogg replied, “Yes, Your Honor.” The court explained


                                                -6-
and Kellogg acknowledged that a sentence imposed for a Class II felony would be a minimum of
1 year up to 50 years’ imprisonment. When asked by the court whether anyone told Kellogg or led
him to believe that by entering a plea he would get a “light sentence, be rewarded” or was promised
something to plead no contest, Kellogg replied, “No, Your Honor.” When asked if anyone
threatened him or offered him any leniency, “especially law enforcement” to get him to plead no
contest, Kellogg replied, “No.” When asked if his plea was his “free and voluntary act,” Kellogg
replied, “Absolutely.” He further replied affirmatively when asked if he had enough time to discuss
his case with his attorney and whether he was satisfied his attorney and had been “properly
represented.”
        Given the thorough presentation of the offense being charged and those being dismissed as
part of the plea agreement, the district court’s detailed explanation of and Kellogg’s expressly
stated understanding of the constitutional rights Kellogg was waiving, along with the court’s
questioning of and Kellogg’s expressly stated understanding of the adequacy of Kellogg’s legal
representation and the lack of any outside promises or threats, Kellogg could not establish
prejudice even if his trial counsel was somehow deficient in communicating such matters to him.
As the Nebraska Supreme Court has stated:
                If the dialogue which is required between the court and the defendant whereat, as
        here, the court receives an affirmative answer as to whether the defendant understands the
        specified and full panoply of constitutional rights; whether the defendant is fully aware of
        his surroundings; whether defendant is satisfied as to counsel’s services and representation;
        and whether it is true that defendant was not improperly influenced by threats or promises;
        and whereat the court is further told by the defendant of facts which leave no doubt as to
        the defendant’s guilt and the voluntary and knowledgeable entry of a plea, all done during
        the sanctity of a full and formal court hearing, is to be impugned by a mere recantation
        made after the doors of the prison clang shut, we are wasting our time and that of the trial
        judges, making a mockery out of the arraignment process.

State v. Scholl,
227 Neb. 572, 580
,
419 N.W.2d 137, 142
 (1988).
        Kellogg’s claim of ineffective assistance of trial counsel related to counsel’s alleged failure
to “reasonably explain the allegations and corresponding charges, plea bargain, and penalty
allowing [Kellogg] to make informed decision about pleading to the amended information,” fails.
                            (b) Alleged Statements Regarding Sentence
        Kellogg further claims that trial counsel improperly led him to believe that he would
receive 2 to 4 years’ imprisonment if he pled no contest. He asserts that “[t]rial counsel failed to
advise [him] that sentencing is entirely discretionary” and that, but for trial counsel’s
misrepresentations, he would have “insisted on going to trial.” Brief for appellant at 17.
        We again find that the record affirmatively refutes Kellogg’s claim. At the plea hearing,
the district court expressly informed Kellogg that the charge against him, a Class II felony, was
punishable by imprisonment for a minimum of 1 year and a maximum of 50 years. Kellogg
affirmatively responded to questions from the district court indicating that he understood the
possible sentence that could be imposed. Kellogg further affirmed that no one had “led [him] to



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believe that if [he] pled no contest . . . [he] would get a light sentence.” Because the record refutes
Kellogg’s claim on appeal, this claim of ineffective assistance of counsel fails.
         Kellogg also appears to be suggesting that trial counsel should have negotiated a plea in
the probation violation case which involved a Class IIA felony (attempted robbery) instead of
negotiating a plea in the present case since a Class IIA felony would have a maximum sentence of
20 years’ imprisonment rather than the 50-year maximum available in the present case. However,
as the State points out, Kellogg “fails to explain how a more favorable agreement would have
materialized.” Brief for appellee at 18. As the State suggests, it is hardly deficient performance
when trial counsel negotiated an agreement where Kellogg avoided being resentenced to prison in
that separate case “following his obvious violation of probation.”
Id.
 “[T]his negotiated provision
removed the possibility of [Kellogg] receiving an additional sentence of up to 20 years in prison
and amounted to an extremely favorable plea bargain for Kellogg.”
Id.
         Kellogg was facing two felony charges in the present case: one count of possession of a
deadly weapon by a prohibited person, a Class ID felony, and one count of possession of a stolen
firearm, a Class IIA felony. Additionally, in a separate criminal case, Kellogg was facing his 4-year
probation sentence being revoked, which could have resulted in a separate sentence of
imprisonment for that Class IIA felony. As part of the plea agreement, the State reduced the Class
ID felony (mandatory minimum 3 years’ imprisonment and up to 50 years’ imprisonment) in the
present case to attempted possession of a deadly weapon by a prohibited person, a Class II felony
(1 to 50 years’ imprisonment). Further, the State agreed to dismiss the stolen firearm charge and
to withdraw its action in the separate case where Kellogg was facing a probation violation. As
indicated by the State, because of the plea agreement in the present case, Kellogg avoided the
potential for a separate sentence of incarceration in the other case. We agree with the State that
this claim of deficient performance fails.
                       (c) Alleged Deficiencies During “Sentencing Phase”
       Kellogg assigns as error that trial counsel “failed to properly advise [Kellogg] on the
sentencing phase, to participate in the pre-sentence investigation process; garner supporting
documents to make a formidable case by casting [Kellogg] in positive light.” Brief for appellant
at 9.
                          (i) Advice Regarding Presentence Investigation
        Kellogg argues that trial counsel “ill advised [Kellogg] not to participate in [sic] with the
probation officer in his evaluation which prevented him from engaging in meaningful reflection
and introspection that the court could consider.” Id. at 17. This claim is puzzling since the record
reflects that Kellogg did participate with a probation officer in developing a PSR. It does appear,
however, that in the PSR, Kellogg provided a limited “Defendant’s Statement,” as follows:
        After speaking with my attorney, I will decide to refrain from speaking about my case per
        his request. I will say that I could’ve chose a better crowd to be around and indulged in
        more positive activities than I chose that night. I do understand that I can’t blame no one
        but myself and I am definitely better than what o[c]curred.




                                                 -8-
Even assuming Kellogg’s trial counsel advised Kellogg to refrain from providing a fuller written
statement for the PSR, we find that Kellogg cannot establish that he was prejudiced by this claimed
deficiency because he did offer “reflection and introspection” in his written statement, as well as
in other aspects of his reporting for the PSR, and at the sentencing hearing. Notably, during his
allocution at the sentencing hearing, Kellogg told the court that he “accepted responsibility for
[his] actions” and “that there’s consequences to [his] actions.” He explained that he had been
“sitting around with the wrong crowds” and that was not what he saw for his future, noting that he
“was raised better than this.” He said he was accepting responsibility and he described programs
he had taken since being incarcerated.
        This alleged claim of ineffective assistance of counsel fails.
                          (ii) Failure to Provide Supporting Documents
        Kellogg further assigns that trial counsel was ineffective by failing to “garner supporting
documents to make a formidable case by casting [Kellogg] in positive light.” Brief for appellant
at 9. Kellogg argues that “trial counsel did not prepare or present any supporting documents
highlighting significant positive factors like attainment of higher education and enrollment at [a
community college] or even letters from family who are dependent on [Kellogg].” Id. at 18. As an
example of the latter, Kellogg refers to his “paternal grandmother, an elderly woman, [who]
depended on [Kellogg] before and continues to need his assistance now.” Id. In summary, Kellogg
claims trial counsel made no attempt to mitigate sentencing by providing evidence of “favorable
factors” which “may have persuaded the court to impose a light sentence.” Id. Kellogg claims that
trial counsel failed to “zealously advocate for [him]” at the sentencing hearing because “[t]rial
counsel made no attempt to identify or present to the court any positive factor[s]” relevant to
sentencing. Id.
        Regarding trial counsel not presenting “positive” evidence related to Kellogg’s interest in
obtaining higher education at the sentencing hearing, we conclude that Kellogg cannot show that
he was prejudiced by this claimed deficiency. Kellogg’s interest in obtaining higher education was
brought to the district court’s attention by the PSR and Kellogg himself. The PSR stated the
following:
        [Kellogg] explained that he is interested in participating in the 180 Re-Entry Assistance
        Program at Metropolitan Community College. This program is designed to provide
        services and support to incarcerated individuals and those transitioning from correctional
        facilities and treatment centers so they can make a successful transition and achieve their
        education and employment goals. 180 RAP is based out of the Fort Omaha Campus of
        Metro Community College. [Kellogg] stated that he is interested in completing a course in
        Business Administration so that he can open a clothing store.

Additionally, during his allocution at sentencing, Kellogg informed the district court that he was
“[t]rying to get set up for school.”
        Regarding the alleged failure to prepare and submit letters from family dependent upon
Kellogg, namely, his paternal grandmother, Kellogg fails to argue this point with sufficient
specificity; he does not explain how his grandmother “need[s] his assistance,” nor how that
relationship would have impacted his sentence given the numerous other factors available for


                                               -9-
consideration by the district court. Regardless, Kellogg cannot show that he was prejudiced by this
alleged deficiency. Kellogg had two opportunities to bring his grandmother’s dependence on him
to the district court’s attention: during allocution at the sentencing hearing and during his
presentence investigation interview. Notably, in the PSR, Kellogg reported to the probation officer
that his grandmother helped raise him, he was living with her, and she was depositing money into
his jail account. There was no reporting by Kellogg that his grandmother required any particular
assistance from him; rather it appeared the other way around.
         Finally, regarding trial counsel not advocating more zealously at sentencing, the record
demonstrates that trial counsel stated that Kellogg’s criminal history was attributable to his young
age and immaturity, but that Kellogg was “committed to change.” Counsel also emphasized the
lack of violence involved in the present offense, stating that “[t]here was no attempt by Mr. Kellogg
to get out the gun, point the gun at anyone, or use the gun.” Trial counsel’s comments spoke
directly to the Lierman sentencing factors of “age,” “mentality,” and “violence involved in the
commission of the crime.” See State v. Lierman,
305 Neb. 289, 308-09
,
940 N.W.2d 529
, 546
(2020). Trial counsel urged that Kellogg was not “a lost cause,” and that he wants to “get away
from the bad influences in Omaha” and “he’s committed to change.”
         We find no deficiency in trial counsel’s advocacy related to Kellogg’s sentencing; this
claim of ineffective assistance of counsel fails.
                                        VI. CONCLUSION
       For the reasons stated above, we affirm Kellogg’s sentence. We further find that all of
Kellogg’s claims of ineffective assistance of trial counsel fail.
                                                                                  AFFIRMED.




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