State v. Badberg

• Docket Number: A-23-613
• Decision Date: 16 January 2024
• Parties: State of Nebraska, appellee, v. Jered T. Badberg, appellant.
• Court: Nebraska Court of Appeals

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State of Nebraska, appellee,
v.
Jered T. Badberg, appellant.

No. A-23-613

Court of Appeals of Nebraska

January 16, 2024

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).

Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge.

Mark E. Rappl, of Naylor &Rappl Law Office, for appellant.

Michael T. Hilgers, Attorney General, and P. Christian Adamski for appellee.

RIEDMANN, BISHOP, and WELCH, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

RIEDMANN, JUDGE

INTRODUCTION

Jered T. Badberg appeals from his plea-based conviction of attempted first degree sexual assault in the district court for Lancaster County. On appeal, he assigns that the district court imposed an excessive sentence and that trial counsel was ineffective for failing to argue at sentencing that Badberg's conviction for attempted first degree sexual assault was statutory rather than without consent. Following our review, we affirm.

BACKGROUND

Badberg was charged with first degree sexual assault, a Class II felony. In exchange for Badberg's plea, the State agreed to amend the charge to attempted first degree sexual assault, a Class IIA felony. Badberg pled no contest to the charge. The State provided the factual basis which provided that M.J., a 15-year-old, reported that she was assaulted by Badberg, who was 21 years old. M.J. underwent a sexual assault examination and was later interviewed at the Child Advocacy Center. M.J. disclosed that she and Badberg had previously been in a relationship and that she

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wanted closure, so she agreed to walk with him to an area of a trail and told him it was not right for him to follow up with a 15-year-old. Badberg grabbed M.J.'s hair, hit her, and had vaginal-penile sex with her. The vaginal swab from M.J.'s sexual assault examination was tested, and the results showed that Badberg was included as the male contributor of DNA from the sperm fraction from the vaginal swab. Badberg was contacted and denied having sexual intercourse with M.J.

The district court accepted Badberg's plea and found him guilty. The district court ordered a presentence investigation report (PSR). For his conviction of attempted first degree sexual assault, Badberg received a sentence of 15 to 20 years' imprisonment, with credit for 17 days' time served. Badberg appeals.

ASSIGNMENTS OF ERROR

Badberg assigns that the district court imposed an excessive sentence, and that trial counsel was ineffective in failing to argue at sentencing that Badberg's conviction for attempted first degree sexual assault was statutory rather than without consent.

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. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).

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. State v. Warner, 312 Neb. 116, 977 N.W.2d 904 (2022). In reviewing a claim of ineffective assistance of trial counsel on direct appeal, 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. Id.

ANALYSIS

Excessive Sentence.

Badberg assigns that the district court imposed an excessive sentence which constituted an abuse of discretion. Badberg was convicted of attempted first degree sexual assault, a Class IIA felony. A Class IIA felony is punishable by a maximum sentence of 20 years' imprisonment with no minimum sentence required. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022). Badberg received a sentence of 15 to 20 years' imprisonment, which is within the statutory limits. As such, we review for an abuse of discretion.

When imposing a sentence, a sentencing judge should customarily consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background,...