- Associated Press - Friday, December 11, 2015

OMAHA, Neb. (AP) - A Nebraska man who pleaded guilty to sexual assault is getting another chance at his case after the state Supreme Court determined Friday that his trial lawyer was ineffective for not objecting to remarks from a prosecutor at his sentencing hearing.

The court reversed the second-degree sexual assault conviction and 18- to 20-year prison sentence of a 45-year-old Omaha man who had pleaded guilty to the charge in 2009. The plea was part of a deal he made with prosecutors to avoid a first-degree child sexual assault charge after police said he had sexually abused his young daughter for years.

The Associated Press is not naming the man to protect his daughter’s identity.

The man sought post-conviction relief, typically filed by inmates who have exhausted all other appeals. Such motions often claim a lawyer did not provide an effective defense. They rarely succeed, because prisoners must show that their constitutional rights were violated to such an extreme that it renders their convictions void.

The man argued in his motion that a Douglas County prosecutor agreed to “stand silent” and make no recommendation for prison time during sentencing. But at the hearing, a different prosecutor endorsed a presentence investigation report that called for “a substantial period of incarceration.”



The high court agreed that the prosecutor violated the plea agreement, and that the failure of the man’s attorney to object prejudiced his defense.

The trial attorney testified on appeal that he did not object at the time because didn’t think the prosecutor’s support of the presentencing report breached the plea agreement. He also believed his client’s only recourse if he objected was to withdraw his plea - opening the possibility of him being charged and convicted of the more serious count. He was not aware, he said, that he could have insisted on a different sentencing judge.

State attorneys argued that trial lawyer’s silence was a reasonable trial strategy, but the high court found “this is not one of those rare cases in which not objecting to the state’s material breach was a sound strategic choice.”

“We realize that even seasoned criminal attorneys, like (the man’s) trial counsel, are not walking repositories of the entire body of the criminal law,” Justice William Connolly wrote for the court. “But trial strategy based on a misunderstanding of the law is not reasonable.”

The high court ordered the man be given the choice to either withdraw his guilty plea or have a different judge sentence him. His appeal lawyer, Jason Troia of Omaha, said Friday he had not had a chance to discuss the ruling with his client and did not know which option they would pick.

Douglas County Attorney Don Kleine did not immediately return a message seeking comment.

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This story has been corrected to show that the man is from Omaha.

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