IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. MORRIS
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.
JESEAN T. MORRIS, APPELLANT.
Filed October 3, 2023. No. A-23-142.
Appeal from the District Court for Lancaster County: KEVIN R. MCMANAMAN AND
GREGORY M. SCHATZ, Judges. Affirmed.
Timothy P. Sullivan, of Sullivan Law, for appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne for appellee.
BISHOP, ARTERBURN, and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Jesean T. Morris appeals his plea-based conviction of attempted first degree assault. He
contends that the sentence imposed was excessive and that his trial counsel was ineffective in
failing to adequately investigate and prepare for trial and that Morris would not have accepted the
plea agreement had he believed trial counsel to be adequately prepared. For the reasons set forth
herein, we affirm.
STATEMENT OF FACTS
Morris was charged with first degree assault, a Class II felony; third degree assault on a
pregnant woman, a Class IIIA felony; violating a protection order, a Class I misdemeanor; and
child abuse, a Class I misdemeanor. Pursuant to a plea agreement, Morris pled no contest to an
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amended information charging him with attempted first degree assault, a Class IIA felony, related
to the assault of Patricia Tisdel.
The State provided a factual basis which provided that, on or about June 16, 2021, Tisdel
reported that after she heard her neighbor, identified as Amelia Prochaska, screaming, “Patty,
help,” she opened her apartment door and observed Morris assaulting Prochaska by pulling her
hair and punching her in the face. When Tisdel intervened, Morris struck Tisdel two times with a
closed fist on the right side of her face causing her to fall to the ground. Morris also kicked her on
the left side of her torso near her ribs. Tisdel reported that she was punched at least three times
overall. Tisdel’s jaw was fractured in six places requiring emergency surgery.
At the sentencing hearing, the court stated that it had reviewed the presentence
investigation report (PSR) and that
the victim in this case is a 62-year-old woman who was violently attacked by [Morris]
when she came to the assistance of her neighbor, . . . Prochaska, who was being assaulted
by [Morris] in the hallway between the apartments . . . [of] Prochaska and . . . Tisdel.
. . . Prochaska yelled for help and the victim, . . . Tisdel, attempted to help the victim
of . . . Morris’ assault. And . . . Prochaska, who, again, was screaming for help, screaming
for [Tisdel] in particular to help her. And the victim, [Tisdel], attempted to intervene and
was violently punched in the face by [Morris].
. . . [T]he victim . . . suffered a broken jaw, broken in six places. It required surgery,
which involved a permanent injury and symptoms that [Tisdel] still suffers from, eight
weeks of restricted diet to Jello and sucking her nutrition through a straw because of her
broken jaw.
Second surgery for a torn rotator cuff, third surgery for nerve damage to an elbow,
and possibly a fourth surgery for a neck injury, all sustained in this violent assault by
[Morris].
[Tisdel’s] injuries were clearly serious bodily injuries as defined by the Nebraska
Criminal Code and [Morris] is fortunate that the charges were reduced from first degree
assault, which carries up to 50 years, to just an attempted first degree assault, the maximum
penalty of 20 years’ imprisonment.
The court’s aware of [Morris’] criminal history, dating back to 2009 and 2010.
[Morris] was convicted of a shooting in Sarpy County and was sentenced to prison as a
result of that incident.
His protection order violations began apparently in 2018. . . . I don’t know if all of
these protection orders involved . . . Prochaska, but I know several of them did. . . .
The court is mindful, too, of [Morris’] mental health history. The court has
reviewed medical records from Immanuel Medical Center from July of 2009, at which time
[Morris] was brought there by the Omaha Police regarding a shooting incident. And
[Morris] at that time reported symptoms of bipolar depression.
The Immanuel Medical Center medical records reference treatment of [Morris] for
bipolar disorder in 2006 and in 2007.
In 2009, [Morris] was released to the Douglas County Youth Center with a
recommendation that there be a follow-up psychiatric visit and evaluation, which
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apparently never occurred. And it appears that [Morris] has suffered from this untreated
bipolar depression or disorder since 2006 or 2007.
I agree with the victim in this case, that [Morris] needs to be separated from society
until hopefully his mental problems and his anger management problems can be treated
and dealt with. And I hope that . . . can occur for [Morris].
But this court has no choice but to sentence [Morris] to the penitentiary.
The district court sentenced Morris to 18 to 20 years’ imprisonment with credit for 37 days
served. Morris has timely appealed to this court and is represented by different appellate counsel.
ASSIGNMENTS OF ERROR
Morris contends that the sentence imposed was excessive, and Morris further contends that
his trial counsel was ineffective in failing to adequately investigate and prepare for trial and that
Morris would not have accepted the plea agreement had he believed trial counsel to be adequately
prepared.
STANDARD OF REVIEW
A sentence imposed within the statutory limits will not be disturbed on appeal in the
absence of an abuse of discretion by the trial court. State v. Alkazahy, 314 Neb. 406, 990 N.W.2d
740 (2023).
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 requirements. State v. Warner, 312 Neb. 116, 977 N.W.2d 904 (2022);
State v. Betts, 31 Neb. App. 737, 989 N.W.2d 441 (2023). An appellate court determines as a
matter of law whether the record conclusively shows that (1) a defense counsel’s performance was
deficient or (2) a defendant was or was not prejudiced by a defense counsel’s alleged deficient
performance. State v. Warner, supra; State v. Betts, supra.
ANALYSIS
EXCESSIVE SENTENCE
Morris’ first assignment of error is that the sentence imposed was excessive. Morris
contends that there is no indication that the district court considered his education and law-abiding
behavior, or if the sentence imposed exceeded the minimum period consistent with protection of
the public, the gravity of the offense, and Morris’ rehabilitative needs.
Morris was convicted of attempted first degree assault, a Class IIA felony. See, Neb. Rev.
Stat. § 28-201 (Reissue 2016) (criminal attempt); Neb Rev. Stat. § 28-308 (Reissue 2016) (first
degree assault). His sentence of 18 to 20 years’ imprisonment is within the statutory sentencing
range for Class IIA felonies which are punishable by a minimum of no imprisonment and a
maximum of 20 years’ imprisonment. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022). Further,
Morris received a substantial benefit from his plea agreement in which the charged offense of first
degree assault, a Class II felony, punishable by 1 to 50 years’ imprisonment, was reduced to
attempted first degree assault, a Class IIA felony, punishable by a maximum of 20 years’
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imprisonment. Additionally, as part of the plea agreement, three other charges consisting of a Class
IIIA felony and two Class I misdemeanors, were dismissed by the State.
The presentence investigation report noted that Morris was 29 years old, single, with two
dependents. He graduated from high school. Morris’ criminal history includes nine convictions of
violating a protection order, two convictions of criminal mischief ($0-$500), and one conviction
each of attempted second degree assault, use of a firearm to commit a felony, criminal
impersonation, damage to property, assaulting an officer with bodily fluids, assault, intimidation
by phone call, theft by unlawful taking ($500-$1,500), and possession of marijuana (1 oz. or less).
Subsequent to the current offense, Morris was convicted twice of violating a protection order and
was convicted once of trespassing. Morris has a history of mental health issues including bipolar
disorder and schizophrenia. The level of service/case management inventory assessed Morris as a
very high risk to reoffend. The PSR included a victim impact statement in which Tisdel recounts
her serious physical injuries as well as the emotional trauma that she has endured as a result of
Morris’ assault.
Although Morris contends that the there is no indication that the district court considered
several of the statutory factors, the district court stated that it reviewed the presentence
investigation report, which included information concerning all of the factors to be considered by
a sentencing court. State v. Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022). Further, a sentencing
court is not required to articulate on the record that it has considered each sentencing factor nor to
make specific findings as to the facts pertaining to the factors or the weight given them. State v.
Greer, 309 Neb. 667, 962 N.W.2d 217 (2021).
Based upon factors including that the sentence imposed was within the statutory sentencing
range, Morris’ criminal history including numerous convictions for assault and violation of a
protection order, the nature and seriousness of the offense, the violence involved in the commission
of the offense, the substantial physical and emotional injuries sustained by the victim, and the need
to protect society from Morris, the sentence imposed was not an abuse of discretion. This
assignment of error fails.
INEFFECTIVE ASSISTANCE OF COUNSEL
Morris’ second assignment of error is that his trial counsel was ineffective in failing to
adequately investigate and prepare for trial and that Morris would not have accepted the plea
agreement had he believed trial counsel to be adequately prepared.
As this court recently stated in State v. Betts, 31 Neb. App. 737, 745-46, 989 N.W.2d 441,
448 (2023):
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 actually prejudiced the defendant’s defense. State v. Lessley, 312 Neb. 316,
978 N.W.2d 620 (2022). 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 prejudice under the prejudice component of the
Strickland test, the defendant must demonstrate a reasonable probability that but for his or
her counsel’s deficient performance, the result of the proceeding would have been
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different. State v. Lessley, supra. When a conviction is based upon a plea of no contest, the
prejudice requirement for 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 no contest. State v. Anderson,
305 Neb. 978, 943 N.W.2d 690 (2020). A reasonable probability is a probability sufficient
to undermine confidence in the outcome. Id.
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.
Warner, supra. The fact that an ineffective assistance of counsel claim is raised on direct
appeal does not necessarily mean that it can be resolved. Id. The determining factor is
whether the record is sufficient to adequately review the question. Id. Assignments of error
on direct appeal regarding ineffective assistance of trial counsel must specifically allege
deficient performance, and an appellate court will not scour the remainder of the brief in
search of such specificity. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
Here, we find that Morris’ general allegation that his counsel was ineffective in failing to
adequately investigate and prepare for trial fails for two reasons. First, in State v. Privett, 303 Neb.
404, 410, 929 N.W.2d 505, 511-12 (2019), the Nebraska Supreme Court stated that “[i]n the
context of a claim of ineffectiveness of counsel for failure to investigate, allegations are too
speculative to warrant relief if the petitioner fails to allege what exculpatory evidence that the
investigation would have procured and how it would have affected the outcome of the case.”
Accord State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013). Applying that principle of law
to the allegations in Vanderpool, the Nebraska Supreme Court held that the defendant “did not
identify what exculpatory evidence investigation would have uncovered, which witnesses [defense
counsel] should have interviewed, or what testimony those witnesses would have provided.” State
v. Vanderpool, 286 Neb. at 120, 835 N.W.2d at 59. Similarly, Morris’ general allegation that his
counsel was ineffective for failing to adequately investigate and prepare for trial is lacking in
specificity and is too speculative to warrant relief.
In addition, the record affirmatively refutes Morris’ claim that his trial counsel was
ineffective in failing to adequately investigate and prepare for trial and that Morris would not have
accepted the plea agreement had he believed trial counsel to be adequately prepared. During the
plea hearing, the following colloquy occurred between the court and Morris:
THE COURT: Have you gone over all of the facts and possible defenses you have
with your attorney?
[Morris]: Yeah.
THE COURT: Do you need any more time to discuss this case with your attorney
before I accept your plea?
[Morris]: No.
THE COURT: Are you satisfied with the advice and representation given to you by
your lawyer in this case?
[Morris]: Yes.
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THE COURT: Do you have a complete understanding, then, of what it means to
offer your plea?
[Morris]: Yes.
THE COURT: Are you entering this plea of your own free will and without any
reservations?
[Morris]: Yes.
Allegations of ineffective assistance of trial counsel which are affirmatively refuted by a
defendant’s assurances to the sentencing court do not constitute a basis for postconviction relief.
State v. Vanderpool, supra. As the Nebraska Supreme Court noted in State v. Vanderpool, 286
Neb. at 118-19, 835 N.W.2d at 58:
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 . . . and whether it is true that defendant was not
improperly influenced by threats or promises . . . all done during the sanctity of a full and
formal court proceeding, 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.
Morris, in response to the district court’s questions, indicated that he had shared all
information regarding defenses with his trial counsel, that he did not need any additional time to
consult with his trial counsel regarding his plea, that he was satisfied with his trial counsel’s
representation and advice, that he understood of what it meant to plead in this case, and that he
was entering his plea voluntarily and of his own free will. He cannot now complain to the contrary.
Because Morris’ general allegation that his trial counsel did not adequately investigate or prepare
for trial is lacking in specificity and because the record affirmatively refutes that claim, this
assignment of error fails.
CONCLUSION
Having considered and rejected Morris’ assigned errors, we affirm his conviction and
sentence.
AFFIRMED.
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