State v. Sidzyik
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Nebraska Advance Sheets
state v. sidzyik
Cite as 281 Neb. 305
305
cannot address it on appeal. We also do not determine whether
Gary’s Implement is entitled to retain the sums paid at the
trustee’s sale pursuant to its rights granted by the deed of trust.
Such a finding requires inquiry beyond whether Bridgeport
Tractor is owed restitution based on reversal of the original
judgment. Because these matters have not been fully litigated,
we note that our present determination does not preclude the
parties from raising such claims in the case currently pending
in district court.
The facts underlying Bridgeport Tractor’s cross-appeal indicate that this is not a proper case for restitution on the basis
of a judgment subsequently reversed as we have recognized
it. Therefore, the district court did not abuse its discretion in
overruling Bridgeport Tractor’s motion for restitution. For the
foregoing reasons, we find Bridgeport Tractor’s assignments of
error on cross-appeal to be without merit.
VI. Conclusion
We find that jury instruction No. 7 does not amount to prejudicial error and that Wenande’s expert testimony was properly
admitted at trial. We also find that the district court did not
err in denying Bridgeport Tractor’s motion for restitution.
Therefore, we affirm the judgment of the district court.
Affirmed.
State of Nebraska, appellee, v.
Donald L. Sidzyik, appellant.
___ N.W.2d ___
Filed April 1, 2011. No. S-10-278.
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
2. 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.
3. Appeal and Error: Words and Phrases. Plain error will be noted only where
an error is evident from the record, prejudicially affects a substantial right of
a litigant, and is of such a nature that to leave it uncorrected would cause a
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iscarriage of justice or result in damage to the integrity, reputation, and fairness
of the judicial process.
Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the
trial court.
Effectiveness of Counsel: Proof: Appeal and Error. In order to establish a
right to relief based on a claim of ineffective assistance of counsel, the defendant
has the burden, in accordance with Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that counsel’s performance was
deficient and that counsel’s deficient performance prejudiced the defense in his or
her case.
Effectiveness of Counsel: Proof. The two prongs of the ineffective assistance
of counsel test, deficient performance and prejudice, may be addressed in
either order.
Postconviction: Effectiveness of Counsel: Records: Appeal and Error. In
order to raise the issue of ineffective assistance of trial counsel where appellate
counsel is different from trial counsel, a defendant must raise on direct appeal
any issue of ineffective assistance of trial counsel which is known to the defend
ant or is apparent from the record, or the issue will be procedurally barred on
postconviction review.
Trial: Effectiveness of Counsel: Appeal and Error. Appellate courts have generally reached ineffective assistance of counsel claims on direct appeal only in
those instances where it was clear from the record that such claims were without
merit or in the rare case where trial counsel’s error was so egregious and resulted
in such a high level of prejudice that no tactic or strategy could overcome the
effect of the error, which effect was a fundamentally unfair trial.
Plea Bargains. When a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.
Effectiveness of Counsel: Proof. To demonstrate that his or her counsel’s
performance was deficient, a defendant must show that counsel did not perform
at least as well as a criminal lawyer with ordinary training and skill in the area.
Trial: Effectiveness of Counsel: Presumptions. In determining whether trial
counsel’s performance was deficient, there is a strong presumption that counsel
acted reasonably.
Trial: Attorneys at Law: Appeal and Error. An appellate court affords trial
counsel due deference to formulate trial strategy and tactics.
Sentences: Appeal and Error. An abuse of discretion in imposing a sentence
occurs when a sentencing court’s reasons or rulings are clearly untenable and
unfairly deprive the litigant of a substantial right and a just result.
Sentences. In imposing a sentence, the sentencing court is not limited to any
mathematically applied set of factors.
____. The appropriateness of a sentence is necessarily a subjective judgment
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.
____. In imposing a sentence, a judge should consider the defendant’s age, mentality, education, experience, and social and cultural background, as well as his or
Nebraska Advance Sheets
state v. sidzyik
Cite as 281 Neb. 305
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her past criminal record or law-abiding conduct, the motivation for the offense,
the nature of the offense, and the amount of violence involved in the commission
of the crime.
Petition for further review from the Court of Appeals, Irwin,
Sievers, and Carlson, Judges, on appeal thereto from the
District Court for Douglas County, Patricia A. Lamberty,
Judge. Judgment of Court of Appeals affirmed.
Chad M. Brown and Jeremy C. Jorgenson for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
Heavican, C.J., Connolly, Gerrard, Stephan, McCormack,
and Miller-Lerman, JJ.
Miller-Lerman, J.
NATURE OF CASE
This case is before us on a petition for further review in
which appellant, Donald L. Sidzyik, claims that the Nebraska
Court of Appeals erred with respect to three sentencing issues.
Sidzyik was convicted in Douglas County District Court of
second degree sexual assault based on a plea agreement. At
the sentencing hearing, the State failed to remain silent as had
been promised in the plea agreement and instead commented
that its position was stated in the presentence investigation
(PSI), which recommended a substantial period of incarceration. Sidzyik was sentenced to 18 to 20 years’ incarceration,
with credit for 33 days served.
On direct appeal to the Court of Appeals, Sidzyik claimed
that he received ineffective assistance of trial counsel based
on his counsel’s failure to object when the State did not stand
silent at sentencing, that the district court committed plain
error when it proceeded with sentencing after the breach of the
plea agreement, and that the sentence imposed was excessive.
The Court of Appeals summarily affirmed Sidzyik’s conviction
and sentence.
Sidzyik petitioned for further review. We granted the petition. We determine that the record is insufficient to determine
the ineffective assistance of counsel claim, that there was no
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plain error, and that the sentence imposed was not an abuse of
discretion. Accordingly, we affirm.
STATEMENT OF FACTS
Sidzyik was originally charged with first degree sexual
assault on a child, his biological daughter. The sexual assault
covered by the amended information is alleged to have occurred
between January 1, 2005, and December 31, 2006, while the
victim was between the ages of 12 and 14. In a plea agreement,
the State had agreed to amend the charge to second degree
sexual assault. At the plea hearing, the prosecutor acknowledged that as part of the plea agreement, he would stand silent
at sentencing. Sidzyik pled no contest.
At the sentencing hearing, a different prosecutor stated:
I am covering the case for [the prosecutor who had previously appeared in the case,] who is on military leave
right now. With regard to the matter, he wanted the Court
to know the State’s position is stated in the PSI and we
would submit on the PSI. I had the opportunity to speak
with the victim and the victim’s family. They will rest
on the documentation they’ve provided to the Court at
this point . . . .
Sidzyik’s counsel did not object to this statement. Sidzyik was
sentenced to 18 to 20 years’ imprisonment for the conviction of
second degree sexual assault, which is a Class III felony.
The PSI was lengthy and, in summary, stated: “Based upon
the seriousness of the original charge, this officer believes
[Sidzyik] is not an appropriate candidate for probation. This
officer would . . . recommend the Court sentence [Sidzyik] to a
substantial period of incarceration under the statutory penalties
for the conviction of Sexual Assault 2nd Degree-III Felony.”
On direct appeal to the Court of Appeals, Sidzyik was
represented by new counsel and claimed that (1) trial counsel
was ineffective when he failed to object to the State’s breach
of the plea agreement, (2) the sentencing court committed
plain error when it sentenced him after the alleged breach of
the plea agreement, and (3) the sentence imposed was excessive. The State moved for summary affirmance pursuant to
Neb. Ct. R. App. P. § 2-107(B)(2) (rev. 2008). The Court of
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Appeals sustained the motion and summarily affirmed without opinion.
Sidzyik petitioned for further review. We granted the
p
etition.
ASSIGNMENTS OF ERROR
On further review, Sidzyik claims that the Court of Appeals
erred when it summarily affirmed his conviction and sentence,
because trial counsel was ineffective when he failed to object
at the sentencing to the State’s breach of the plea agreement,
the district court committed plain error when it proceeded to
sentencing Sidzyik after the State breached the plea agreement,
and the sentence imposed was excessive.
STANDARDS OF REVIEW
[1] A claim that defense counsel provided ineffective assist
ance presents a mixed question of law and fact. State v. Sellers,
279 Neb. 220, 777 N.W.2d 779 (2010).
[2] The fact that an ineffective assistance of counsel claim
is raised on direct appeal does not necessarily mean that it can
be resolved. See State v. Young, 279 Neb. 602, 780 N.W.2d 28
(2010). The determining factor is whether the record is sufficient to adequately review the question. Id.
[3] Plain error will be noted only where an error is evident
from the record, prejudicially affects a substantial right of a
litigant, and is of such a nature that to leave it uncorrected
would cause a miscarriage of justice or result in damage to the
integrity, reputation, and fairness of the judicial process. Id.
[4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Fuller, 278 Neb. 585, 772 N.W.2d
868 (2009).
ANALYSIS
Ineffective Assistance of Counsel: Failure to Object
to Breach of Plea Agreement.
The first issue for our determination on further review is
whether the Court of Appeals erred when it rejected Sidzyik’s
claim of ineffective assistance of trial counsel and summarily
affirmed Sidzyik’s conviction and sentence. At the Court of
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Appeals and again before this court, Sidzyik claims he received
ineffective assistance of trial counsel at his sentencing hearing when his counsel failed to object when, in contravention
of the State’s plea agreement to stand silent at sentencing, a
prosecutor stated that the State’s position was contained in the
PSI, which included victim impact statements. The PSI recommended a substantial period of incarceration.
Sidzyik indicates that if he is successful in establishing trial
counsel’s ineffectiveness, he would be entitled to withdraw his
plea or to specific performance in the form of a resentencing
before a different judge, at which sentencing the State would
stand silent. The State notes that Sidzyik received a considerable advantage from the plea agreement when the charge was
reduced from first degree to second degree sexual assault,
thereby reducing the range of penalties from a maximum of 50
years’ incarceration to a maximum of 20 years’ incarceration.
See Neb. Rev. Stat. §§ 28-319, 28-320(2), and 28-105 (Reissue
2008). The State also suggests that Sidzyik suffered no prejudice when his counsel did not object and that relief would be
pointless because “there is little hope of a lesser sentence”
before a different judge. The State acknowledges that the
record does not show trial counsel’s reasoning for not objecting. We conclude that the record on appeal is not sufficient to
decide Sidzyik’s claim of ineffective assistance of counsel and
that therefore, the Court of Appeals did not err when it rejected
this assignment of error.
[5,6] In order to establish a right to relief based on a claim
of ineffective assistance of counsel, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that
counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense in his or her case.
See State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010). The two
prongs of this test, deficient performance and prejudice, may
be addressed in either order. Id.
[7] Sidzyik had different counsel on appeal, and in order to
raise the issue of ineffective assistance of trial counsel where
appellate counsel is different from trial counsel, a defendant
must raise on direct appeal any issue of ineffective assistance
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of trial counsel which is known to the defendant or is apparent
from the record, or the issue will be procedurally barred on
postconviction review. See State v. Young, 279 Neb. 602, 780
N.W.2d 28 (2010).
[8] 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. We have
generally reached ineffective assistance of counsel claims on
direct appeal only in those instances where it was clear from
the record that such claims were without merit or in the rare
case where trial counsel’s error was “‘so egregious and resulted
in such a high level of prejudice [that] no tactic or strategy can
overcome the effect of the error, which effect was a fundamentally unfair trial.’” Id. at 607-08, 780 N.W.2d at 34 (quoting
State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003), disapproved on other grounds, State v. McCulloch, 274 Neb. 636,
742 N.W.2d 727 (2007)).
[9] In Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct.
495, 30 L. Ed. 2d 427 (1971), the U.S. Supreme Court stated
that “when a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be fulfilled.” The failure of the State to remain silent in violation of
a plea agreement is a material breach.
We have previously considered Santobello and written about
violations of plea agreements and the redress afforded defend
ants for such violations in State v. Birge, 263 Neb. 77, 638
N.W.2d 529 (2002), and State v. Gonzalez-Faguaga, 266 Neb.
72, 662 N.W.2d 581 (2003). In Birge, the State failed to remain
silent at sentencing as promised in connection with a plea
agreement. The defendant’s attorney objected to the State’s
violation of the plea agreement, but did not move to withdraw
the plea. We explained on direct appeal in Birge that where the
State breaches a plea agreement and defense counsel objects
to the breach, the defendant can seek to withdraw the plea at
the sentencing hearing or seek specific performance of the plea
agreement by way of a sentencing before a different judge.
With respect to the available outcomes on appeal, we concluded
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that where the breach has been preserved by an objection, the
defendant is entitled on appeal to specific performance of the
agreement, which would take the form of resentencing, before
a different judge, wherein the State remains silent. However,
if counsel did not move to withdraw the plea at the time of
the objection, this form of recovery is waived on direct appeal
based on alleged violation of a plea agreement. Id.
In Gonzalez-Faguaga, we addressed a breach of a plea
agreement where no objection had been made at sentencing,
raised in a motion for postconviction relief in the form of a
claim of ineffective assistance of counsel. Accordingly, this
court examined the issue using the two prongs of Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), deficient performance by the defendant’s counsel
and prejudice.
Contrary to the State’s suggestion in its brief in the instant
case, in addressing the prejudice prong of the ineffective assist
ance of counsel claim in Gonzalez-Faguaga, we observed
that the focus should not be on whether the judge would have
imposed a different sentence had the State remained silent.
This observation is derived from Santobello, and we relied in
part on State v. Carrillo, 597 N.W.2d 497 (Iowa 1999).
In Gonzalez-Faguaga, we reasoned that instead of focusing
on whether the sentence would have been different, the focus
regarding prejudice should be on whether counsel’s alleged
deficient performance prevented the defendant from protecting the bargain he had struck with the State in exchange for
his plea and thus rendered the proceedings “‘fundamentally
unfair.’” 266 Neb. at 79, 662 N.W.2d at 589. We observed that
a proper objection by counsel would have led to a different
outcome at the trial level in the sense that the defendant would
have had the opportunity at trial to either withdraw his plea or
seek a resentencing in a proceeding not tainted by the State’s
recommendation. State v. Gonzalez-Faguaga, supra. See, similarly, State v. Carrillo, supra.
[10-12] In addressing the deficient performance prong of the
ineffective assistance of counsel claim in State v. GonzalezFaguaga, 266 Neb. 72, 662 N.W.2d 581 (2003), we noted
that to demonstrate that his or her counsel’s performance was
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deficient, a defendant must show that counsel did not perform
at least as well as a criminal lawyer with ordinary training and
skill in the area. See State v. Haas, 279 Neb. 812, 782 N.W.2d
584 (2010). We also noted that in determining whether trial
counsel’s performance was deficient, there is a strong presumption that counsel acted reasonably. State v. Gonzalez-Faguaga,
supra. We afford trial counsel due deference to formulate trial
strategy and tactics. See State v. Sandoval, 280 Neb. 309, 788
N.W.2d 172 (2010). In Gonzalez-Faguaga, we observed that
it is difficult to imagine what possible advantage a defendant
could gain by his or her counsel’s choosing not to object when
the State, contrary to the plea agreement, failed to remain silent
at the sentencing. Nevertheless, we concluded that given the
possibility that not objecting was a deliberate trial strategy, an
evidentiary hearing was needed to establish alleged deficient
performance by the defendant’s counsel.
Unlike the instant case, neither State v. Birge, 263 Neb. 77,
638 N.W.2d 529 (2002), nor Gonzalez-Faguaga, supra, was
a direct appeal asserting ineffective counsel where defense
counsel did not object at sentencing when the State violated
its agreement to stand silent. This is our first opportunity to
address a failure to object to a breach on direct appeal, and we
take guidance from Birge and Gonzalez-Faguaga in resolving
the current appeal.
In this case, the parties agree that as part of the plea agreement, the State agreed to stand silent at sentencing. However, it
is clear from the record that rather than remain silent, the prosecutor at sentencing stated, “[T]he State’s position is stated in
the PSI and we would submit on the PSI” and made other comments referring the court to the PSI for elaboration. The PSI is
lengthy and in no uncertain terms recommended that Sidzyik
receive a substantial period of incarceration. The prosecutor’s
statements therefore articulated a position, and the State thus
failed to stand silent at sentencing. Accordingly, there was a
material breach of the plea agreement. For completeness, we
note that we are cognizant that the prosecutor at sentencing
was different from the prosecutor at the plea hearing. This
change in staffing does not excuse the breach. In Santobello v.
New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427
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(1971), the Court found such circumstances to be of no consequence because “[t]he staff lawyers in a prosecutor’s office
have the burden of ‘letting the left hand know what the right
hand is doing’ or has done.”
The record shows that the State breached its plea agreement
with Sidzyik and that Sidzyik’s counsel did not object to this
breach. In State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d
581 (2003), we left open the possibility, albeit rare, that trial
counsel could choose not to object to the State’s breach to
retain or gain an advantage. We stated: “If the State commits
a material breach of a negotiated plea agreement, it would be
a rare circumstance when a lawyer with ordinary training and
skill in the area of criminal law would not inform the court of
the breach.” Id. at 77, 662 N.W.2d at 588.
It is not clear from the record in the instant case whether
Sidzyik’s counsel did not object to the breach of the plea
agreement based on trial strategy. Accordingly, the record
is not sufficient to adequately review the question of ineffectiveness of trial counsel raised in this appeal. See State v.
Young, 279 Neb. 602, 780 N.W.2d 28 (2010). We cannot say
that the Court of Appeals erred when it did not find counsel
was ineffective.
Plain Error.
Sidzyik claims that the district court committed plain
error when it proceeded with sentencing after the State failed
to stand silent in contravention of the plea agreement. The
Court of Appeals did not err when it rejected this assignment
of error.
Plain error will be noted only when an error is evident from
the record, prejudicially affects a substantial right of a litigant,
and is of such a nature that to leave it uncorrected would cause
a miscarriage of justice or result in damage to the integrity,
reputation and fairness of the judicial process. State v. Young,
supra; State v. Drahota, 17 Neb. App. 678, 772 N.W.2d 96
(2009), reversed on other grounds 280 Neb. 627, 788 N.W.2d
796 (2010). We have concluded above that the record on appeal
is not sufficient to decide Sidzyik’s ineffective assistance of
counsel claim relative to the sentencing hearing. It is not clear
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that the record shows that the error of which Sidzyik complains
resulted in a “‘fundamentally unfair trial.’” See State v. Young,
279 Neb. at 608, 780 N.W.2d at 34. It logically follows that
plain error is not evidenced from the record.
In Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30
L. Ed. 2d 427 (1971), the Court observed that the case with
which it was confronted resulted from the failure of the prosecutor to adhere to the promises made in the negotiation of the
plea. With regard to imposition of a sentence despite the pros
ecutor’s failure to remain silent, the Court said: “[T]he fault
here rests on the prosecutor, not on the sentencing judge.” Id.,
404 U.S. at 263. Similarly, there was no plain error committed by the district court in the instant case, and the Court of
Appeals did not err when it rejected this assignment of error.
Excessive Sentence.
[13] Sidzyik claims that the district court abused its discretion by imposing an excessive sentence. The Court of Appeals
did not err when it rejected this assignment of error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State
v. Fuller, 278 Neb. 585, 772 N.W.2d 868 (2009). An abuse of
discretion in imposing a sentence occurs when a sentencing
court’s reasons or rulings are clearly untenable and unfairly
deprive the litigant of a substantial right and a just result. State
v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
Sidzyik’s sentence is within the statutory limits. Second
degree sexual assault is a Class III felony. § 28-320(2). A Class
III felony is punishable by a maximum of 20 years’ imprisonment, a $25,000 fine, or both and a minimum of 1 year’s
imprisonment. § 28-105(1). Sidzyik was sentenced to a period
of 18 to 20 years’ incarceration with credit for 33 days previously served.
[14-16] In imposing a sentence, the sentencing court is not
limited to any mathematically applied set of factors. State v.
Nelson, 276 Neb. 997, 759 N.W.2d 260 (2009). The appropriateness of a sentence is necessarily a subjective judgment and
includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances
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urrounding the defendant’s life. Id. In imposing a sentence,
a judge should consider the defendant’s age, mentality, education, experience, and social and cultural background, as well
as his or her past criminal record or law-abiding conduct, the
motivation for the offense, the nature of the offense, and the
amount of violence involved in the commission of the crime.
State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009).
The details of Sidzyik’s profile and the crime are amply
set forth in the PSI. To summarize, Sidzyik’s date of birth is
January 14, 1970. The victim was born in 1993. The amended
information alleged first degree sexual assault between January
2005 and December 2006. Sidzyik pled no contest to second
degree sexual assault.
According to the PSI, Sidzyik has used a variety of controlled substances since his teenage years. He indicated he
used methamphetamine while out on bond, 2 days prior to
his evaluation for sentencing purposes. He was assessed as a
moderate to high risk for sexual reoffending and a poor candidate for community-based treatment. He has been the subject
of protective orders and has an extensive history of alcoholrelated offenses. He claims he does not have any recollection
of the offenses. He suggests he may have been on drugs if the
offenses occurred.
Numerous statements from family members are included in
the PSI. The victim indicated that she was sexually assaulted
over a period of years. The victim reports mental health issues
for which she is being treated. Essays written by the victim
reflect her ongoing efforts to cope with these issues.
At the sentencing hearing, the sentencing judge commented
upon and considered the facts and circumstances of Sidzyik’s
life and the crime of which he was convicted. The sentencing
judge remarked: “Frankly, you know, father figure, I mean, this
whole thing offends me. It offends me because you’ve accepted
no responsibility, you’ve done nothing about treatment, and
clearly, even while this matter is — you’re out on bond, you
continue to go use meth.”
The sentencing judge considered the factors, including
Sidzyik’s age, mentality, education, and family; the nature of
the offenses; his criminal history; and statements from the
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victim. The district court did not abuse its discretion in the
sentence imposed. The Court of Appeals did not err when it
rejected this assignment of error.
CONCLUSION
In this case on further review, raising various sentencing
issues, we conclude that the record is insufficient to rule on
Sidzyik’s claim of ineffective assistance of counsel. The record
shows that the sentencing court did not commit plain error
when it proceeded to sentence Sidzyik after the State failed to
remain silent at the sentencing hearing, in breach of the plea
agreement, and that the sentence imposed was not an abuse of
discretion. The Court of Appeals did not err when it affirmed
Sidzyik’s conviction and sentence.
Affirmed.
Wright, J., not participating.
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