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State v. Cardona1/29/2002
icient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000).
Cardona makes this ineffectiveness claim on direct appeal, and there has been no evidentiary hearing on his allegations. Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question. State v. Coleman, 10 Neb. App. 337, 630 N.W.2d 686 (2001).
Because of the plea of no contest and the stipulation to the factual basis of Cardona's refusal to take the chemical test, the record is devoid of evidence concerning the initial stop of Cardona, other than references in the presentence report. The record before this court is therefore insufficient to adequately review the question of effectiveness of counsel. Any deficiencies of counsel or alleged prejudice to Cardona cannot be determined based on the record before us. Accordingly, we do not reach Cardona's claim of ineffective assistance of counsel on this direct appeal.
Excessive Sentence
Lastly, we address whether Cardona's sentence is excessive. The penalty imposed pursuant to § 10.16.040 for refusing to submit to a chemical test of blood, breath, or urine for the determination of alcohol or drug content is imprisonment in the "county jail for not less than seven days nor more than sixty days," and a fine of "not less than $400.00 nor more than $500.00," along with an order "not to drive any motor vehicle . . . for a period of six months" and the "operator's license . . . be revoked for a like period" of time.
Cardona pled no contest to the charge of refusing to submit to a chemical test and was sentenced to serve 7 days in jail and pay a $500 fine. The court also ordered him not to drive a motor vehicle for a period of 6 months and suspended his license for the same period of time. Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of discretion. State v. Powers, 10 Neb. App. 256, 634 N.W.2d 1 (2001). An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. Id. Cardona's sentence was within the statutory limits. Having reviewed the record, including the presentence investigation report, we conclude that the trial court did not abuse its discretion in the sentence imposed.
CONCLUSION
Finding no merit to the assigned errors, we affirm.
Affirmed.
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