State v. Simnick

to say that Beth could not place herself in a position in the
future to regain custody of Elizabeth after a satisfactory period
of regular visitation and establishment of a parental relation-
ship, together with a showing of stability in Beth’s life.
We find that the county court’s decision conforms to the law,
is supported by competent evidence, and is not arbitrary, capri-
cious, or unreasonable. As such, we find that the county court
did not err when it found that Beth was unfit and granted the
amended petition for guardianship.
CONCLUSION
For the aforementioned reasons, we find that the county
court did not err when it granted the amended petition for
guardianship, and accordingly, we affirm.
A ffirmed.
StAte of NebrASkA, Appellee , v.
keviN A. SimNick , AppellANt.
771 N.W.2d 196
Filed July 21, 2009. 	No. A-08-959.
1. Constitutional Law: Right to Counsel: Effectiveness of Counsel. While a
criminal defendant has a Sixth Amendment right to effective assistance of coun-
sel, when counsel is court appointed, the defendant does not have a constitutional
right to counsel of his or her choice.
2. Right to Counsel: Appeal and Error. A trial court’s denial of a defendant’s
motion to dismiss his or her court-appointed counsel and to appoint substitute
counsel is reviewed on an abuse of discretion standard.
3. Convicted Sex Offender: Pleas. A trial court’s failure to advise a defendant of
the registration requirements of Nebraska’s Sex Offender Registration Act does
not render a no contest plea involuntary or unintelligent.
4. ____: ____. Nebraska’s Sex Offender Registration Act registration requirements
are collateral consequences of convictions, and a trial court is not required to
inform a defendant of such collateral consequences before accepting a plea of
no contest.
5. Convicted Sex Offender: Judgments. A finding that a sexual offense is an
aggravated offense is part of the trial court’s judgment.
6. Convicted Sex Offender: Legislature: Intent. The Legislature’s civil regulatory
scheme to protect the public from the danger imposed by sex offenders, including
lifetime registration for aggravated offenses, was not intended to be punitive.
766 	17 NEBRASkA AppELLATE REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

7. Effectiveness of Counsel: Records: Appeal and Error. 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. When the issue has not been raised or ruled on at
the trial court level and the matter necessitates an evidentiary hearing, an appel-
late court will not address the matter on direct appeal.
8. Effectiveness of Counsel: Proof. Nebraska follows the two-prong test for deter-
mination of the question of whether a criminal defendant received ineffective
assistance of counsel. The first prong is whether counsel performed deficiently,
that is, counsel did not perform at least as well as a criminal lawyer with ordinary
training and skill in the area; and the second is whether the deficient performance
actually prejudiced the criminal defendant in making his or her defense.
9. ____: ____. The prejudice prong of the ineffective assistance of counsel test
requires that the criminal defendant show a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding in question would
have been different.
10. ____: ____. The two-prong test for an ineffective assistance of counsel claim need
not be addressed in order. If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, that course should be followed.
11. Convicted Sex Offender: Words and Phrases. An aggravated offense is defined
by Neb. Rev. Stat. § 29-4005(4)(a) (Reissue 2008) as any registrable offense
under Neb. Rev. Stat. § 29-4003 (Reissue 2008) which involves the penetration of
(1) a victim age 12 years or more through the use of force or the threat of serious
violence or (2) a victim under the age of 12 years.
12. Pleas. The difference between a plea of nolo contendere and a plea of guilty is
that while the latter is a confession or admission of guilt binding the accused in
other proceedings, the former has no effect beyond the particular case.
13. Convicted Sex Offender: Pleas: Presentence Reports. The factual predicates
for lifetime registration under Nebraska’s Sex Offender Registration Act can come
from the factual basis recited at the time of the plea and the presentence report.
14. Sentences: Legislature: Juries. The Legislature cannot remove from the jury
the task of assessing facts which could increase the range of penalties to which a
criminal defendant is exposed, and such enhancing facts must be found to exist
beyond a reasonable doubt.
15. Sentences: Statutes: Verdicts. The statutory maximum is the maximum sentence
a judge may impose solely on the basis of the facts reflected in the jury verdict
or admitted by the defendant.
16. Convicted Sex Offender: Legislature: Intent. The Legislature’s intent in pro-
viding for lifetime community supervision under Neb. Rev. Stat. § 83-174.03
(Reissue 2008) was to establish an additional form of punishment for certain
sex offenders.
17. Convicted Sex Offender: Sentences: Juries. Where the facts necessary to estab-
lish an aggravated offense as defined by Nebraska’s Sex Offender Registration
Act are not specifically included in the elements of the offense of which the
defendant is convicted, such facts must be specifically found by a jury in order
STATE v. SImNICk 	767
Cite as 17 Neb. App. 766

to impose lifetime community supervision under Neb. Rev. Stat. § 83-174.03
(Reissue 2008) as a term of the sentence.
18. Sentences: Juries: Appeal and Error. The failure to submit a sentencing factor
to the jury is not structural error and is subject to a harmless error analysis.
19. ____: ____: ____. Where a court errs in failing to require the jury to decide a
factual question pertaining only to the enhancement of the sentence, the appropri-
ate harmless error standard is whether the record demonstrates beyond a reason-
able doubt that a rational jury would have found the existence of the sentencing
enhancement factor.
20. Sentences: Pleas: Jury Trials. While a criminal defendant can plead to the
underlying charge, and still have a jury trial on penalty-enhancing facts, that is
not true if there is a plea which admits the enhancing facts.
21. Convicted Sex Offender: Pleas. What a defendant admits by his or her no
contest plea can be used in determining whether he or she is subject to lifetime
community supervision.
22. Convicted Sex Offender: Sentences: Constitutional Law: Appeal and Error.
The operation of Neb. Rev. Stat. § 83-174.03 (Reissue 2008) is entirely indepen-
dent from the sentence imposed upon a defendant for first degree sexual assault,
and, as such, any claim the defendant might have concerning the constitutional
implications of § 83-174.03 should be raised if and when he or she becomes sub-
ject to its provisions, but not on a direct appeal from his or her underlying sexual
assault conviction.
23. Convicted Sex Offender: Sentences: Constitutional Law. The uncertainty of
whether a defendant will in fact be affected at all by the provisions of lifetime
community supervision counsels against weighing their constitutionality before
their effects are known.
24. Constitutional Law: Courts: Jurisdiction: Statutes. The Nebraska Court of
Appeals cannot determine the constitutionality of a statute, yet when necessary to
a decision in a case before it, the Court of Appeals has jurisdiction to determine
whether a constitutional challenge has properly been raised.
25. Sentences: Appeal and Error. An appellate court will not disturb sentences that
are within statutory limits, unless the district court abused its discretion in estab-
lishing the sentences.
Appeal from the District Court for Lancaster County: Jeffre
cheuvroNt, Judge. Affirmed.
Dennis R. keefe, Lancaster County public Defender, Webb
E. Bancroft, and Yohance L. Christie, Senior Certified Law
Student, for appellant.
Jon Bruning, Attorney General, and kimberly A. klein for
appellee.
iNbody, Chief Judge, and SieverS and cASSel, Judges.
768 	17 NEBRASkA AppELLATE REpORTS

SieverS, Judge.
By an information filed October 5, 2007, in the district
court for Lancaster County, Nebraska, kevin A. Simnick was
charged with count I, first degree sexual assault of a child, see
Neb. Rev. Stat. § 28-319.01 (Reissue 2008), a Class IB felony,
and with count II, first degree sexual assault on a child, see
Neb. Rev. Stat. § 28-319 (Reissue 2008), a Class II felony.
Although there were various pretrial and preplea matters, we
will not detail such except to the extent necessary to address
the issues presented by this appeal.
On June 16, 2008, Simnick entered a no contest plea to
count II in exchange for dismissal of count I and the written
agreement of the Scotts Bluff County Attorney not to prosecute
a potential offense involving the same child in that jurisdiction.
On August 11, the matter came before the district court for sen-
tencing, at which time the court imposed a sentence of 20 to 35
years’ incarceration. Additionally, the court found the offense
made Simnick subject to Nebraska’s Sex Offender Registration
Act (SORA). The court further found that count II was an
aggravated offense as defined in Neb. Rev. Stat. § 29-4005
(Reissue 2008) and that therefore, Simnick was required to
register under SORA for the remainder of his life. Simnick has
timely appealed.
The parties have completed briefing, and under Neb. Ct. R.
App. p. § 2-111(E)(5)(a), the cause is submitted for decision
without oral argument.
FACTUAL BACkGROUND
The victim, A.m., was born October 24, 1996, and she was
the daughter of Simnick’s wife. The child reported a number
of instances of sexual abuse, and Simnick admitted to police
that he had penetrated A.m.’s vagina with his penis, which
occurred when A.m. was less than 12 years of age and living
in Lancaster County.
ASSIGNmENTS OF ERROR
Simnick asserts seven assignments of error, which are as
follows: (1) The district court erred in denying his counsel’s
motion to withdraw; (2) the district court erred in accepting the
STATE v. SImNICk 	769
Cite as 17 Neb. App. 766

no contest plea, because it was not entered into freely, volun-
tarily, knowingly, and intelligently; (3) the district court erred
in failing to inform him regarding the nature of the charge to
which he entered a plea; (4) he received ineffective assistance
of counsel; (5) the district court erred in determining that the
offense was an aggravated offense for purposes of SORA; (6)
the district court erred in determining that he was “subject to
lifetime parole pursuant to Neb. Rev. Stat. §83-174.03, as such
statute violates the ex post facto clause”; and (7) the sentence
imposed was excessive.
STANDARD OF REVIEW
We will set forth the particular standard of review applicable
to each assignment of error in our discussion thereof.
ANALYSIS
Denial of Trial Counsel’s Motion to Withdraw.
Simnick’s trial counsel filed a motion to withdraw approxi-
mately 31⁄2 months after the information was filed in district
court. The motion asserted that Simnick was unable to pay the
remaining attorney fees necessary for counsel to proceed, nor
could he pay for expert witnesses that may be necessary. When
the district court took up the motion, counsel also asserted that
Simnick would be unable to pay for discovery depositions.
The district court denied the motion, commenting that in the
district court, there has been reluctance “to allow attorneys
to withdraw in criminal cases because of the fact that the
appropriate financial arrangements were not made initially,”
and that there was an obligation on the part of counsel when
becoming involved in a case to make financial arrangements
at the time of the involvement. The court did indicate that
if appropriate, the court might authorize expenses from the
county. Accordingly, trial counsel proceeded through sentenc-
ing, and then the district court appointed a public defender for
this appeal.
Simnick argues that “[i]t is clearly an abuse of discretion to
fail to determine what financial arrangements have been made,
what resources are left, and what potential expenses are left
to be incurred to ensure that a criminal defendant receives, in
all stages of his or her case, effective assistance of counsel.”
770 	17 NEBRASkA AppELLATE REpORTS

Brief for appellant at 15. No authority for this proposition is
cited, and we know of none, at least when the trial court does
not have before it a motion to proceed in forma pauperis and a
poverty affidavit, which it did not in this instance. Accordingly,
we reject the proposition quoted above because, as stated, it is
without supporting authority and it is clearly overly broad.
[1] Simnick also argues that the financial interests of the
attorney and those of the defendant were conflicting and that
as a result, counsel had a conflict of interest. Thus, Simnick
argues that the trial court should have employed its broad dis-
cretion in determining whether a conflict warranting disquali-
fication of counsel existed, citing State v. El-Tabech, 225 Neb.
395, 405 N.W.2d 585 (1987). El-Tabech is not very helpful to
Simnick, because it involved a defendant’s claim of error when
the trial court disqualified his counsel. The Nebraska Supreme
Court in El-Tabech pointed out that while a criminal defendant
has a Sixth Amendment right to effective assistance of counsel,
when counsel is court appointed, the defendant does not have
a constitutional right to counsel of his choice. In this instance,
Simnick chose his trial attorney, and there was no indication in
the record that he wanted a different attorney. The trial court
simply denied trial counsel’s motion to withdraw, which was
premised solely on the representation of trial counsel that his
client was unable to pay fees or costs of defense that might
be incurred. No showing by affidavit of Simnick’s financial
status at that time was made. Simnick’s assertion in his brief
that it was an abuse of discretion to deny the motion to with-
draw “without holding an evidentiary hearing to determine the
resources available to [Simnick]” rings somewhat hollow, given
the failure of Simnick, and by extension his trial counsel, to
make any evidentiary showing in support of the motion. Brief
for appellant at 16.
[2] Additionally, a claim of error in denying an attorney’s
motion to withdraw as counsel, as opposed to the defendant’s
request for such relief, can only be characterized as unique.
With respect to the applicable standard of review, we hold
that our review of the trial court’s decision is for an abuse of
discretion by analogy to similar issues. See State v. McPhail,
228 Neb. 117, 421 N.W.2d 443 (1988) (trial court’s denial of
STATE v. SImNICk 	771
Cite as 17 Neb. App. 766

defendant’s motion to dismiss his court-appointed counsel and
to appoint substitute counsel is reviewed on abuse of discre-
tion standard).
The State directs us to authority that courts generally pre-
sume that counsel will subordinate his or her pecuniary inter-
ests in order to honor his or her professional responsibility to
a client. See Caderno v. U.S., 256 F.3d 1213 (11th Cir. 2001).
Any other rule would potentially create havoc in our criminal
justice system, and use of this presumption does not fore-
close a showing of an actual conflict—which is completely
absent here.
Accordingly, reviewing this matter for an abuse of discre-
tion, we do not find any conflict of interest on this record to
require the court to disqualify trial counsel, nor did the trial
court abuse its discretion in denying trial counsel’s request that
he be allowed to withdraw. This assignment of error is with-
out merit.
Was Simnick’s No Contest Plea Entered Voluntarily?
Simnick asserts that the trial court erred in advising him of
the consequences of his plea and that as a result, the plea was
not entered freely, voluntarily, knowingly, and intelligently.
The specific shortcoming alleged in the advisory to Simnick
before the acceptance of his plea was that he was not advised
by the court that the charge to which he was pleading would
subject him to lifetime SORA registration.
Simnick argues that the legal underpinning for the necessity
of such an advisement derives from State v. Irish, 223 Neb.
814, 394 N.W.2d 879 (1986), where the Nebraska Supreme
Court set forth a number of preconditions by way of advise-
ments to the defendant that must occur before the plea is valid
and voluntary. In Irish, one of those preconditions is that the
“defendant knew the range of penalties for the crime with
which he or she is charged.” 223 Neb. at 820, 394 N.W.2d
at 883.
[3-5] Simnick acknowledges that in State v. Schneider, 263
Neb. 318, 640 N.W.2d 8 (2002), the court concluded that the
trial court’s failure to advise the defendant of the registra-
tion requirements of SORA did not render the no contest plea
772 	17 NEBRASkA AppELLATE REpORTS

involuntary or unintelligent. In so concluding, the Schneider
court relied upon State v. Torres, 254 Neb. 91, 574 N.W.2d
153 (1998), which held that SORA registration requirements
are collateral consequences and that thus, the trial court is
not required to inform the defendant of such collateral conse-
quences before accepting a plea of no contest. State v. Worm,
268 Neb. 74, 680 N.W.2d 151 (2004), involved a case in which
James Worm, rather than being subject to the 10-year registra-
tion requirement as in Schneider, was subject to the lifetime
registration requirement associated with an aggravated offense.
The court pointed out that Worm’s lifetime SORA registration
did not arise solely and independently from his conviction,
but, rather, from the fact that the trial court had been required,
as part of the sentence, to determine whether the offense was
aggravated, and that thus, such finding was part of the trial
court’s judgment.
[6] Accordingly, in Worm, the Nebraska Supreme Court
determined that because the finding that the offense was aggra-
vated was part of the judgment for purposes of an appeal, the
constitutional challenge to SORA on the merits was ripe for
appellate review. However, the court did find that Worm’s con-
stitutional challenge to SORA’s notification provisions was not
yet ripe for appellate review, and in discussing the possibility
of a high-risk assessment for persons who have committed an
aggravated offense, the court noted that the Nebraska State
patrol is to assess a registrant based on many factors, including
the offender’s response to treatment and behavior while con-
fined. Thus, in Worm’s case, because he was still incarcerated,
this assessment had not been made, nor had the State patrol
assigned a notification level. Worm further argued that the
finding that he had committed an aggravated offense violated
the ex post facto clause, because an aggravated offense and
its attendant consequences did not exist when he committed
the registrable offense. Worm further argued that the ex post
facto clause was violated because the legislative amendment
establishing “aggravated offenses” resulting in lifetime regis-
tration is punitive, given that he must register for life, rather
than 10 years. After a comprehensive analysis of various fac-
tors that we will not set forth here, the Worm court found that
STATE v. SImNICk 	773
Cite as 17 Neb. App. 766

the Legislature’s civil regulatory scheme to protect the public
from the danger imposed by sex offenders, including life-
time registration for aggravated offenses, was not intended to
be punitive.
The Worm court also analyzed the question of whether the
effect of the lifetime registration requirement was so punitive
as to negate the Legislature’s intent. The Worm court answered
that question in the negative. Thus, because the Worm court
found the lifetime registration requirements not to be punitive,
we conclude that the advisement of such is not required by
State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986), which
requires the defendant to know the range of penalties for
the crime with which he is charged. In short, being subject
to lifetime registration is not part of the potential penalties
about which a criminal defendant must be advised under Irish,
supra, in order for the plea to be deemed voluntary and valid.
That being said, at the time of the taking of Simnick’s plea
of no contest during the arraignment process on the amended
information, the prosecutor described the statutory range of
incarceration as 1 to 50 years, said that Simnick could be
ordered to pay restitution, and told Simnick that he “would be
subjected to [SORA,] which would require a lifetime registra-
tion.” Simnick was then asked if he understood “the charge
and the possible penalty,” to which he responded, “Yes, I do.”
Accordingly, although under State v. Worm, 268 Neb. 74, 680
N.W.2d 151 (2004), advisement of the possibility of lifetime
registration is not required to satisfy Irish, supra, Simnick
cannot now claim that he was not aware of, and had not been
advised about, lifetime registration. This assignment of error is
without merit.
Was Simnick Improperly Advised of Nature
of Charges to Which He Was Pleading?
Citing Irish, supra, again, Simnick argues that there was
no adequate advisement regarding the nature of the charges
and that the record did not reveal his understanding thereof.
Although without direct citation of authority, Simnick more
specifically asserts that the district court was required to have
made inquiry “and determine[d] that [Simnick] understood the
774 	17 NEBRASkA AppELLATE REpORTS

material elements of the offense that the [S]tate must prove
beyond a reasonable doubt to convict him.” Brief for appellant
at 28. We are not persuaded. First, this is not required by Irish,
supra. In any event, it seems rather elementary that the recita-
tion of the charged offense during the plea hearing does in fact
include advisement of the elements that the State must prove.
We have found no authority requiring advisement of each and
every element that must be proved by the State. Rather, Irish,
supra, holds simply that the court must inform the defendant
concerning “the nature of the charge” and that the record must
show the defendant understands such. Here, the record reveals
that during the plea hearing, after amendment of the charges
pursuant to the plea agreement, Simnick was told by the county
attorney that the amended information
charges you with first-degree sexual assault, a Class II
felony.
It does allege that on, about, or between January 1,
2003, and July 31, 2006, in Lancaster County, Nebraska,
you did, being a person nineteen years of age or older,
subject A.m., otherwise known as [A.m.], date of birth
October [2]4, 1996, and thus a person less than sixteen
years of age, to sexual penetration.
After 	an 	extensive 	examination 	of 	factors 	bearing 	on
Simnick’s ability to understand, such as medications being
taken, education level, and work history, as well as full and
complete advisement of the various rights possessed and pro-
tected during a trial that are being surrendered by entering a
plea, the court asked: “Do you have any questions about the
charge itself?” Simnick responded: “No, Your Honor.” The
court also inquired as to whether Simnick had had sufficient
time to discuss the matter with counsel and offered him addi-
tional time to do so. Significantly, the court advised Simnick
that he was “presumed to be innocent . . . and that presump-
tion . . . would continue . . . throughout a trial until the State
would prove you guilty beyond a reasonable doubt. By plead-
ing no contest, you are waiving and not having that presump-
tion of innocence in your favor. Do you understand that?”
Simnick responded affirmatively. This assignment of error has
no merit.
STATE v. SImNICk 	775
Cite as 17 Neb. App. 766

Simnick’s Claims of Denial of Effective
Assistance of Counsel.
[7] Simnick claims seven instances of denial of effective
assistance of counsel. The law is clear that claims of ineffec-
tive 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. Brown, 268 Neb. 943, 689 N.W.2d 347
(2004). When the issue has not been raised or ruled on at the
trial court level and the matter necessitates an evidentiary hear-
ing, an appellate court will not address the matter on direct
appeal. Id.
The following five claims of ineffective assistance of coun-
sel are obviously not ripe for review on direct appeal, because
the record simply is lacking information, particularly from trial
counsel, upon which to determine such claims:
• Trial counsel did not prepare to defend the case.
• Trial counsel never informed Simnick of the lifetime parole
supervision under Neb. Rev. Stat. § 83-174.03 (Reissue 2008)
prior to the plea.
• Trial counsel never informed Simnick of his obligation to
submit to a civil commitment evaluation under Neb. Rev. Stat.
§ 29-4018 (Reissue 2008) before he would be released from
incarceration.
• Trial counsel failed to move to withdraw Simnick’s plea prior
to sentencing after being advised that the court had found the
offense to be an aggravated offense.
• Trial counsel failed to inform Simnick of the consequences of
entering his plea of no contest.
The foregoing matters fundamentally involve attorney-client
communications and what counsel did or did not do in investi-
gating and preparing any potential defenses to the charges, as
well as the considerations involved in pleading to one count of
the information rather than proceeding to trial. Resolution of
such claims requires factual allegations, rather than the conclu-
sionary claims set forth in Simnick’s brief, and then supporting
evidence for such claims. For these reasons, the five claims of
ineffectiveness of counsel listed above cannot be reviewed on
direct appeal, and we discuss them no further.
776 	17 NEBRASkA AppELLATE REpORTS

Next, Simnick alleges that at the hearing on the motion to
suppress, his trial counsel failed to adduce expert testimony
regarding sleep deprivation, although counsel indicated at the
time of the motion to withdraw that an expert witness on such
issue may be necessary. The record does not reveal whether
any expert on sleep deprivation could or would have testified
that Simnick was sleep deprived at the time of his incriminat-
ing statement to the police so as to render such statement invol-
untary and therefore inadmissible. Without such evidence, the
claim cannot be considered in this direct appeal.
[8-10] The final claim that counsel was ineffective is that he
failed to object to the State’s request and the court’s determi-
nation that the offense for which Simnick was convicted was
an aggravated offense. Nebraska follows the two-prong test for
determination of the question of whether a criminal defendant
received ineffective assistance of counsel. The first prong is
whether counsel performed deficiently, that is, counsel did
not perform at least as well as a criminal lawyer with ordi-
nary training and skill in the area; and the second is whether
the deficient performance actually prejudiced the criminal
defendant in making his or her defense. See State v. Jackson,
275 Neb. 434, 747 N.W.2d 418 (2008). The prejudice prong
requires that the criminal defendant show a reasonable proba-
bility that but for counsel’s deficient performance, the result of
the proceeding in question would have been different. Id. The
two-prong test need not be addressed in order. If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, that course should be followed. State v.
Hudson, 277 Neb. 182, 761 N.W.2d 536 (2009). Accordingly,
with respect to this particular claim, if the trial court did not err
in finding that the offense was an aggravated offense, Simnick
could not be prejudiced by a failure to object or otherwise
contest the trial court’s finding. Because Simnick assigns as a
separate error the trial court’s finding that the offense was an
aggravated offense, a contention we ultimately reject, we now
turn to our discussion of that assignment of error. Because, as
explained below, the finding of an aggravated offense was cor-
rect, Simnick could not have suffered prejudice from any inac-
tion on the part of his trial counsel in this regard. Accordingly,
STATE v. SImNICk 	777
Cite as 17 Neb. App. 766

this particular claim of ineffectiveness of counsel is ripe for
determination and is adjudicated against Simnick as being
without merit.
Was Offense Aggravated Offense for Purposes of SORA?
Simnick argues that the trial court’s determination that this
offense was an aggravated offense requiring lifetime registra-
tion under SORA was incorrect. His argument relies largely
upon our decision in State v. Mastne, 15 Neb. App. 280, 725
N.W.2d 862 (2006). The State asserts that if Mastne is correct,
then Simnick’s assignment of error is well taken—but that the
Mastne decision is incorrect. The State’s brief also directs us
to the pendency of an appeal in the Nebraska Supreme Court
which challenges the correctness of our decision in Mastne.
That decision, State v. Hamilton, 277 Neb. 593, 763 N.W.2d
731 (2009), was handed down after the parties completed their
briefing. Mastne, supra, held that the Legislature did not intend
for the trial court to make a factual finding or determination
regarding whether an offense is an aggravated offense under
§ 29-4005(2), but, rather, that the trial court’s consideration is
limited to whether the statutory elements of the conviction at
issue fell within the language of § 29-4005(2) and (4)(a).
The Hamilton court agreed with our reasoning in Mastne
that § 29-4005(2) and (3)(a) should be read together, because
both relate to lifetime registration for certain sex offenders.
However, rejecting the reasoning of Mastne, the Nebraska
Supreme Court found:
The use of the word “fact” in the second sentence of
§ 29-4005(2) read in conjunction with the word “also” in
the first sentence of § 29-4005(3)(a) indicates a legislative
intent that there be a factual determination by the sentenc-
ing judge under both statutory provisions.
Applying the reasoning of Mastne to § 29-4005(2)
would, in our view, lead to an absurd result. Sexual
penetration is an element in only three of the registrable
offenses currently listed in § 29-4003: first degree sexual
assault, first degree sexual assault on a child, and incest
of a minor. None of these include an element of “use of
force or the threat of serious violence,” and thus, applying
778 	17 NEBRASkA AppELLATE REpORTS

the reasoning of Mastne, only first degree sexual assault
of a child as currently defined in § 28-319.01 would
meet all requirements for an aggravated offense under
§ 29-4005(4)(a). However, § 28-319.01 was first enacted
in 2006. prior to that time, the offense of sexual assault
of a child did not include penetration as an element. Thus,
in 2002, when the Legislature amended SORA to provide
a lifetime registration requirement for those committing
aggravated offenses, there were no existing offenses with
elements strictly corresponding to the definition of an
aggravated offense in § 29-4005(4)(a)(ii). This indicates
that the Legislature intended the existence of an aggra-
vated offense to be determined on the basis of actual
facts, not statutory elements.
Hamilton, 277 Neb. at 601-02, 763 N.W.2d at 737-38. As a
result, to this extent, the Supreme Court disapproved the hold-
ing of Mastne.
Hamilton is additionally noteworthy because the Supreme
Court noted that the factual basis received at the time of the
defendant’s pleas, as well as “the information included in
the presentence investigation report, supports the finding of
the district court” that the defendant committed aggravated
offenses and that such subjected him to lifetime registration
under SORA. 277 Neb. at 602, 763 N.W.2d at 738.
[11,12] Obviously, Hamilton, supra, eviscerates Simnick’s
argument premised on Mastne. Thus, the only question for us in
this case is simply whether the factual basis and the presentence
investigation report (pSR) support the trial court’s finding of an
aggravated offense, which is defined by § 29-4005(4)(a) as
“any registrable offense under section 29-4003 which involves
the penetration of (i) a victim age twelve years or more through
the use of force or the threat of serious violence or (ii) a victim
under the age of twelve years.” The first element, a conviction
of a registrable offense, is clearly satisfied. See Neb. Rev. Stat.
§ 29-4003 (Reissue 2008). The other two elements necessary
for a finding that this was an aggravated offense, penetration
and a victim under age 12, are a bit more nuanced, given that
this case involves a no contest plea. The rule is that the differ-
ence between a plea of nolo contendere and a plea of guilty
STATE v. SImNICk 	779
Cite as 17 Neb. App. 766

is that while the latter is a confession or admission of guilt
binding the accused in other proceedings, the former has no
effect beyond the particular case. See State v. Wiemer, 15 Neb.
App. 260, 725 N.W.2d 416 (2006). In State v. Worm, 268 Neb.
74, 80, 680 N.W.2d 151, 158 (2004), the Supreme Court held
that “the registration requirement for an offender convicted of
an aggravated offense under [SORA’s] amended provisions is
part of the sentencing court’s judgment for purposes of filing
an appeal.” The charge, as stated at the plea hearing, was that
Simnick had subjected A.m., who was under age 16 between
the dates of January 1, 2003, and July 31, 2006, and had a birth
date of October 24, 1996, to “sexual penetration.”
[13] State v. Hamilton, 277 Neb. 593, 763 N.W.2d 731
(2009), clearly allows the factual predicates for lifetime SORA
registration to come from the factual basis recited at the time
of the plea and the pSR. According to the factual basis and
the pSR, A.m. was under the age of 12 during the timeframe
encompassed by the charge. Turning to the matter of penetra-
tion, such is described by Neb. Rev. Stat. § 28-318(6) (Reissue
2008) as
sexual intercourse in its ordinary meaning . . . or any
intrusion, however slight, of any part of the actor’s or
victim’s body or any object manipulated by the actor into
the genital or anal openings of the victim’s body which
can be reasonably construed as being for nonmedical or
nonhealth purposes. Sexual penetration shall not require
emission of semen.
The pSR reveals ample evidence of penetration, as statuto-
rily defined, on at least two occasions while A.m. was under
age 12. The pSR reveals that A.m. related to investigators that
Simnick had put his “personal thing” into her “personal thing,”
and she identified her meaning of such terms through anatomi-
cal diagrams and her own drawings, including her drawing of
a penis on which she indicated how far Simnick’s penis had
penetrated her vagina. Simnick’s own statement to police, also
found in the pSR, admits penetrating A.m.’s vagina with his
penis during the course of “tickling and wrestling.” He further
admits that under the guise of showing her how to cleanse
herself, he used his hands to spread her vulva and sprayed
780 	17 NEBRASkA AppELLATE REpORTS

a hand-held shower head in that area and that he “may”
have touched her vagina with it. There is little question after
review of the voluminous pSR that penetration as statutorily
defined occurred.
Accordingly, the predicates for a finding that the offense
is an aggravated offense under § 29-4005(4)(a) are present,
and thus, the trial court did not err in finding that the offense
was aggravated.
Did District Court Err in Ordering That Simnick Is Subject
to Lifetime Community Supervision Upon His Release
From Incarceration or Civil Commitment?
Simnick argues that the district court’s order pursuant to
§ 83-174.03 that upon his release from incarceration or civil
commitment he be subject to lifetime community supervision
by the Office of parole Administration is error because “such
statute violates the ex post facto clause.” In support of this
argument, Simnick cites us to State v. Worm, 268 Neb. 74, 82,
680 N.W.2d 151, 159 (2004), where the court held that “[a] law
which purports to apply to events that occurred before the law’s
enactment, and which disadvantages a defendant by creating
or enhancing penalties that did not exist when the offense was
committed, is an ex post facto law and will not be endorsed
by the courts.” The Worm court determined that the lifetime
registration requirements of SORA did not impose a criminal
punishment, and thus Worm’s constitutional challenge based
on due process and the ex post facto clause failed. However,
the assignment of error now under discussion in the instant
case involves the lifetime community supervision required
for aggravated sexual offenses under § 83-174.03, and since
the parties completed their briefing, the Nebraska Supreme
Court has decided State v. Payan, 277 Neb. 663, 765 N.W.2d
192 (2009).
Payan is directly and significantly applicable to this case.
Abram payan was convicted by a jury of first degree sexual
assault, and then the trial judge made a finding that the offense
was an aggravated offense, making him subject to lifetime
registration under SORA as well as lifetime community super-
vision under § 83-174.03. In his appeal, payan contended that
STATE v. SImNICk 	781
Cite as 17 Neb. App. 766

the trial court erred in determining that he had committed an
aggravated offense. The State alleged that payan committed
oral and anal penetration of C.N., a 14-year-old female, using
a knife and threats to kill her if she did not comply with his
instructions. The Supreme Court noted:
The jury heard two distinct versions of the facts. C.N.
and one eyewitness testified that the assault occurred after
payan displayed a knife and threatened to kill C.N. if she
did not submit to his sexual advances. payan and one
other witness testified that the assault never occurred.
Payan, 277 Neb. at 677, 765 N.W.2d at 204.
[14,15] The key issue was payan’s contention that the fac-
tual finding of an aggravated offense must be made by a jury,
citing Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000), rather than by the court, as was done
in Apprendi—and as was done in Simnick’s case. Apprendi
holds that legislatures cannot remove from the jury the task of
assessing facts which could increase the range of penalties to
which a criminal defendant is exposed, and that such enhanc-
ing facts must be found to exist beyond a reasonable doubt.
The U.S. Supreme Court later held in Blakely v. Washington,
542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004),
that under Apprendi, the statutory maximum is the maximum
sentence a judge may impose “solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.”
(Emphasis omitted.) As a result, the Payan court turned to the
question of whether lifetime registration and lifetime commu-
nity supervision are punitive, and thus enhancing penalties to
which Apprendi applies.
[16,17] The Payan court reiterated its holding in Worm,
supra, that lifetime registration under SORA is not punitive
and that therefore, the constitutional principles of Apprendi and
Blakely were not applicable to such. However, citing author-
ity from other jurisdictions that had considered the issue, and
equating lifetime community supervision to “parole,” the Payan
court held that the Legislature’s intent in providing for lifetime
community supervision under § 83-174.03 was to establish an
additional form of punishment for certain sex offenders. As a
result, the court held:
782 	17 NEBRASkA AppELLATE REpORTS

In this case, the imposition of lifetime community
supervision was triggered by the finding of the trial judge,
not the jury, that payan had committed an aggravated
offense as defined by SORA. This constitutes error under
Apprendi and Blakely, because the punishment imposed on
the basis of this finding is beyond that which would have
been permissible on the basis of the jury verdict alone,
i.e., imprisonment for a maximum of 50 years. We hold
that where the facts necessary to establish an aggravated
offense as defined by SORA are not specifically included
in the elements of the offense of which the defendant is
convicted, such facts must be specifically found by the
jury in order to impose lifetime community supervision
under § 83-174.03 as a term of the sentence.
State v. Payan, 277 Neb. 663, 675-76, 765 N.W.2d 192,
204 (2009).
[18,19] In payan’s case, the trial court therefore erred in
making the finding that the offense was aggravated, which,
given that the victim was older than age 12, had to be based
on penetration through the use of force or the threat of serious
violence. Nonetheless, recalling that most constitutional errors
can be harmless, and citing the U.S. Supreme Court’s holding
in Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165
L. Ed. 2d 466 (2006), that an Apprendi/Blakely error in fail-
ing to submit a sentencing factor to the jury is not structural
error and is subject to a harmless error analysis, the Nebraska
Supreme Court did a harmless error analysis in Payan. The
court defined the standard for such analysis as follows: “We
hold that the appropriate harmless error standard in this cir-
cumstance is whether the record demonstrates beyond a reason-
able doubt that a rational jury would have found the existence
of the sentencing enhancement factor.” Payan, 277 Neb. at 676,
765 N.W.2d at 204.
We referenced earlier the fact that the Payan jury heard
two different material versions of the events. In the State’s
evidence, the victim and a witness testified that the victim was
sexually assaulted as result of threats of death with a knife. In
payan’s defense, he and his supporting witness claimed that
no assault took place whatsoever. Therefore, the Payan court
STATE v. SImNICk 	783
Cite as 17 Neb. App. 766

found there was no evidence that if the assault occurred, it was
done without violence or the threat thereof. Accordingly, the
Payan court concluded:
On this record, any rational jury which convicted payan
of the sexual assault would have also concluded that it
was committed through the use of force or the threat of
serious violence. Accordingly, we conclude that the mak-
ing of this finding by the trial judge instead of the jury
was harmless error.
277 Neb. at 677, 765 N.W.2d at 204-05.
[20,21] When we apply Payan to Simnick’s challenge to the
requirement that he is subject, by operation of § 83-174.03, to
lifetime community supervision upon his release from incarcer-
ation, there are two glaring differences. First, Simnick pled no
contest to the charge, and second, his exposure to a finding of
an aggravated offense flows from an immutable fact, that A.m.
was under age 12 at the time of the offense. These differences
are important, because while a criminal defendant can plead
to the underlying charge, and still have a jury trial on penalty-
enhancing facts, that is not true if there is a plea which admits
the enhancing facts. See Blakely v. Washington, 542 U.S. 296,
124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Blakely holds that
the maximum statutory sentence for the purposes of Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000), is the maximum which the judge can impose based
on facts admitted in the guilty plea. Here, there is a no contest
plea, but as discussed earlier, the facts admitted via a no con-
test plea can be used only in the proceeding involving the no
contest plea. And because under State v. Worm, 268 Neb. 74,
680 N.W.2d 151 (2004), lifetime community supervision is
part of the judgment and sentence, it is clear that what Simnick
admitted by his no contest plea can be used in determining
whether he is subject to lifetime community supervision.
There are two factual admissions necessarily included in his
plea—that he sexually penetrated A.m. and that, at the time,
she was under 16 years of age. However, Simnick’s plea did
not admit that A.m. was under 12 years of age at the time he
sexually penetrated her. Accordingly, Simnick was entitled to
784 	17 NEBRASkA AppELLATE REpORTS

an Apprendi “mini trial” to a jury on whether the offense to
which he pled no contest was an aggravated offense.
It is clear under State v. Payan, 277 Neb. 633, 765 N.W.2d
192 (2009), that the failure to have a jury decide a factual ques-
tion to support the imposition of lifetime community supervi-
sion is subject to harmless error analysis. Here, the record
demonstrates beyond a reasonable doubt that any rational jury
would have found the existence of the sentencing enhancement
factor, i.e., that A.m. was under the age of 12 at the times of
the offense. Based on A.m.’s recited date of birth, which was
never disputed at any time, no rational jury could conclude
that she was anything but under 12 years of age at the times of
the offense.
Finally, Simnick challenges lifetime community supervision
as a violation of the ex post facto clause. In this regard, State v.
Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008), informs our
decision. paul Schreiner was convicted of first degree sexual
assault on a child, based on a sexual encounter that occurred
with k.G., a 14-year-old girl, when Schreiner was 22 years old;
but unlike Payan and the instant case, the offense was not an
aggravated offense. Schreiner was convicted after a jury trial,
and in addition to his sentence of 6 to 9 years’ imprisonment,
he was given a “‘Notice of Lifetime parole Supervision’”
informing him that he was subject to lifetime community
supervision by the Office of parole Administration. Id. at 398,
754 N.W.2d at 750. Schreiner assigned as error the finding
that he was subject to lifetime community supervision under
§ 83-174.03, because such statute was an ex post facto law
and violated his right of due process. The Schreiner court first
said that the issue presented a question of law, on which an
appellate court is obligated to reach a conclusion independent
of the determination reached by the court below. We apply that
standard of review here.
After 	noting 	that 	Schreiner 	argued 	the 	application 	of
§ 83-174.03(1) to him was unconstitutional, the court noted
that the initial question was whether the issue was properly
before the court upon direct appeal. The Schreiner court noted
its decision in Worm, supra, which found that lifetime SORA
STATE v. SImNICk 	785
Cite as 17 Neb. App. 766

registration was part of the sentence and that such was subject
to challenge on direct appeal.
[22] The Schreiner court then noted Schreiner was “auto-
matically” subject to § 83-174.03 because he had been pre-
viously convicted of an offense requiring registration under
§ 29-4003. 276 Neb. at 423, 754 N.W.2d at 765. The Schreiner
court found that the operation of § 83-174.03 was “entirely
independent 	from 	the 	sentence 	imposed 	upon 	Schreiner”
for first degree sexual assault and that as such, any claim
Schreiner might have concerning the constitutional implica-
tions of § 83-174.03
should be raised if and when he becomes subject to its
provisions, but not on a direct appeal from his underly-
ing sexual assault conviction. Any individual who is sub-
ject to lifetime community supervision may, whenever a
determination or revision of the conditions of community
supervision is made, appeal to the district court.
Schreiner, 276 Neb. at 423-24, 754 N.W.2d at 765-66.
[23] The Schreiner court also cited prudential reasons for
finding that Schreiner’s challenge was unripe. The court said
that while the provisions of SORA are mandatory, the effects
of lifetime community supervision are uncertain until the
defendant is released from incarceration. The court noted that
while conditions of community supervision are imposed to best
protect the public from the risk of reoffense, those conditions
are based on the risk assessment made at the time of release
and can be rather onerous, up to and including electronic moni-
toring. But, there is no requirement that the Office of parole
Supervision monitor the defendant at all. Thus, the Schreiner
court said that the uncertainty of whether the defendant will in
fact be affected at all by the provisions of lifetime community
supervision counsels against weighing their constitutionality
before their effects are known. In conclusion, the court found
that because the issues were not ripe, Schreiner was under
no obligation to object on that basis in the district court and
had not waived his constitutional claims “if and when they
become ripe.” State v. Schreiner, 276 Neb. 393, 424, 754
N.W.2d 742, 766 (2008). Thus, the court did not consider the
786 	17 NEBRASkA AppELLATE REpORTS

ex post facto clause challenge to the application of § 83-174.03
to Schreiner.
[24] Therefore, under Schreiner, we need not examine or
comment on the State’s assertions in this direct appeal, given
that Simnick’s constitutional challenge is unripe. We do note
for the sake of completeness that this court cannot determine
the constitutionality of a statute, yet when necessary to a deci-
sion in a case before us, we do have jurisdiction to determine
whether a constitutional challenge has properly been raised.
See Bartunek v. Geo. A. Hormel & Co., 2 Neb. App. 598, 513
N.W.2d 545 (1994). Although it appears that Simnick’s chal-
lenge is to the application of § 83-174.03 to him, rather than
the unconstitutionality of the statute, in any event, we deter-
mine, consistent with Bartunek, that the challenge is prema-
turely raised in accord with Schreiner, supra.
Did Trial Court Impose Excessive Sentence?
[25] The law is well established that an appellate court will
not disturb sentences that are within statutory limits, unless
the district court abused its discretion in establishing the sen-
tences. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).
Simnick was sentenced to 20 to 35 years’ incarceration. While
there is considerable positive information in the pSR, such as
his education, work history, and lack of a criminal record, the
offense here was committed against his wife’s child. As the
child’s stepfather, he was in a position of trust that he violated
in the worst way. Although the sentence is substantial, it is
within the statutory limits, and considering good time, he actu-
ally could be released in 10 years. Such a sentence is not an
abuse of discretion.
CONCLUSION
Although we did not hear oral argument in this case, we
have fully considered the extensive briefing of the parties, the
applicable authority, including that released since the parties’
briefs were filed, as well as the trial court record. We find
that all but one of Simnick’s assignments of error are without
merit. We conclude that the finding that Simnick committed
an aggravated offense for the purpose of lifetime community
STATE v. SImNICk 	787
Cite as 17 Neb. App. 766

supervision should have been submitted to a jury, but that
this error was harmless. Therefore, we affirm the conviction
and sentence.
A ffirmed.
StAte of NebrASkA, Appellee , v.
Jeremy J. hAmmel , AppellANt.
769 N.W.2d 413
Filed July 21, 2009. 	No. A-08-1061.
1. Pleas. To support a finding that a plea of guilty or nolo contendere has been
voluntarily and intelligently made, the court must (1) inform the defendant con-
cerning (a) the nature of the charge, (b) the right to assistance of counsel, (c)
the right to confront witnesses against the defendant, (d) the right to a jury trial,
and (e) the privilege against self-incrimination; and (2) examine the defendant
to determine that he or she understands the foregoing, including, in the absence
of an express waiver of such rights by the defendant, whether the defendant
understands that by pleading guilty, the defendant waives his or her privilege
against self-incrimination, right to confront witnesses, and right to a jury trial.
Additionally, the record must establish that (1) there is a factual basis for the plea
and (2) the defendant knew the range of penalties for the crime with which he or
she is charged.
Appeal from the District Court for Douglas County: G erAld
e. morAN, Judge. Reversed and remanded with directions.
mary Leanne Wells kendall for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
iNbody, Chief Judge, and SieverS and cASSel, Judges.
iNbody, Chief Judge.
INTRODUCTION
This case comes before this court as Jeremy J. Hammel
appeals the sentence imposed by the Douglas County District
Court, prior to which Hammel pled no contest to one count of
child abuse. pursuant to Neb. Ct. R. App. p. § 2-111(E)(5)(a),
this case was submitted without oral argument.
788 	17 NEBRASkA AppELLATE REpORTS