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State of Nebraska, Appellee, V. Natavian Q. Morton, Appellant. ___ N.W.2D ___ Filed March 23, 2021

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State of Nebraska, Appellee, V. Natavian Q. Morton, Appellant. ___ N.W.2D ___ Filed March 23, 2021 Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 10/01/2021 08:06 PM CDT - 624 - 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. - 625 - 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 - 626 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports 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. - 627 - 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 - 628 - Nebraska Court of Appeals Advance Sheets 29 Nebraska Appellate Reports 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.
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