State v. Delgado

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE v. DELGADO
Cite as 322 Neb. 364
State of Nebraska, appellee, v.
James F. Delgado, appellant.
___ N.W.3d ___
Filed September 18, 2026. 	No. S-25-495.
1. Waiver: Appeal and Error. Whether a party has waived his or her right
to appellate review presents a question of law.
2. ____: ____. The validity of an appeal waiver is a question of law.
3. Judgments: Appeal and Error. On questions of law, an appellate court
has an obligation to reach an independent conclusion irrespective of the
decision of the court below.
4. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
5. ____: ____. 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.
6. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
7. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively determine
whether counsel did or did not provide effective assistance and whether
the defendant was or was not prejudiced by counsel’s alleged deficient
performance.
8. Constitutional Law: Waiver: Appeal and Error. A defendant can
waive a constitutional right, including the right to appeal, if done know-
ingly and voluntarily.
9. Waiver: Appeal and Error: Public Policy. Appeal waivers do not vio-
late Nebraska public policy.
10. Waiver: Appeal and Error. When determining whether to enforce a
waiver of the right to appeal, an appellate court should consider three
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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STATE v. DELGADO
Cite as 322 Neb. 364
factors: (1) whether the disputed appeal falls within the scope of the
waiver of appellate rights, (2) whether the defendant knowingly and
voluntarily waived his appellate rights, and (3) whether enforcing the
waiver would result in a miscarriage of justice.
11. Waiver: Proof: Appeal and Error. The burden of proof is on the State
to demonstrate that an agreement clearly and unambiguously waives a
defendant’s right to appeal.
12. Waiver: Appeal and Error. Waivers of the right to appeal are to be
applied narrowly, with any ambiguities construed against the State and
in favor of the defendant’s right to appeal.
13. Effectiveness of Counsel: Waiver: Appeal and Error. A waiver of
the right to appeal may not be knowing or voluntary if, for example,
it is entered into upon the ineffective assistance of counsel or upon
undue coercion.
14. Sentences: Waiver: Appeal and Error. It will generally be considered
a miscarriage of justice to enforce an appeal waiver when the defendant
seeks to appeal an illegal sentence, even though there exists an other-
wise valid waiver.
15. Effectiveness of Counsel: Waiver: Appeal and Error. Ineffective
assistance of counsel claims do not render an appeal waiver invalid
except to the extent deficient representation in negotiating or advising
on the waiver rendered it unknowing or involuntary.
16. Plea Bargains: Contracts. Generally, plea agreements are to be con-
strued and enforced based upon contract principles. Consistent with such
principles, Nebraska courts will not imply terms into plea agreements
and instead will follow the rule that courts implementing plea agree-
ments should enforce only those terms and conditions actually agreed
upon by the parties.
17. Sentences: Appeal and Error. When sentences imposed within statu-
tory limits are alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering well-established factors and any applicable legal principles.
18. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense and (8) the amount of violence
involved in the commission of the crime.
19. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment that includes the sentencing judge’s observations of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.

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STATE v. DELGADO
Cite as 322 Neb. 364
20. Sentences: Appeal and Error. It is not the function of an appellate
court to conduct a de novo review or to reweigh the relevant sentenc-
ing factors.
21. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of
ineffective assistance of counsel under the framework established by
the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his
or her counsel’s performance was deficient and that this deficient per-
formance actually prejudiced the defense.
22. ____: ____. To show that counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law.
23. ____: ____. To show prejudice in a claim of ineffective assistance of
counsel, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding
would have been different.
24. Effectiveness of Counsel: Appeal and Error. When a defendant’s
trial counsel is different from his or her counsel on direct appeal, the
defendant must properly raise on direct appeal any issue of trial coun-
sel’s deficient performance which is either known to the defendant or
is apparent from the record. Any known or apparent issue of deficient
performance not properly raised on direct appeal will be procedurally
barred in a subsequent postconviction proceeding.
25. ____: ____. Defendants seeking to raise an ineffective assistance of
counsel claim must specifically assign and specifically argue the alleged
deficient performance and must do so with sufficient particularity.
26. Effectiveness of Counsel: Records: Appeal and Error. Allegations of
deficient performance must include a description of the specific conduct
alleged to constitute deficient performance, and that description must be
particular enough to (1) allow an appellate court to determine whether
the claim can be decided upon the trial record and (2) allow a district
court reviewing a later postconviction motion to recognize whether the
claim was raised on direct appeal.
27. Effectiveness of Counsel: Appeal and Error. Alleging deficient con-
duct with specificity requires more than generalities of inadequate
preparation or failures to introduce beneficial evidence. An allegation
is sufficiently specific when it addresses a specific issue that does not
require additional information to understand precisely what the assign-
ment attacks.
28. Effectiveness of Counsel: Records: Appeal and Error. The fact that
a claim of ineffective assistance of counsel is properly raised on
direct appeal does not mean it can be resolved on direct appeal. The

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STATE v. DELGADO
Cite as 322 Neb. 364
determining factor is whether all the facts necessary to the analysis are
part of the appellate record.
29. ____: ____: ____. An ineffective assistance of counsel claim will not be
addressed on direct appeal if it requires examination of facts not con-
tained in the record.
30. Trial: Attorneys at Law: Effectiveness of Counsel: Records: Appeal
and Error. If the record on direct appeal conclusively establishes either
that trial counsel’s performance was not deficient or that any deficient
performance did not prejudice the defendant’s defense, an appellate
court can determine trial counsel was not ineffective.
31. Effectiveness of Counsel: Records: Appeal and Error. If the record on
direct appeal does not conclusively establish or refute a claim of inef-
fective assistance, then the issue cannot be resolved on direct appeal and
must be properly raised in a subsequent postconviction proceeding.
Appeal from the District Court for Hall County: Andrew C.
Butler, Judge. Affirmed.
Jerrod Jaeger, of Jaeger Law Office, P.C., L.L.O., for
appellant.
Michael 	T. 	Hilgers, Attorney 	General, 	and 	Melissa 	R.
Vincent for appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Stacy, J.
Pursuant to a plea agreement that included a waiver of the
right to appeal, James F. Delgado entered a no contest plea
to one felony count of distribution of a controlled substance
and was sentenced to an indeterminate prison term of 10 to
20 years. Delgado then filed this appeal, assigning error to the
trial court’s discussion of the appeal waiver during the plea
colloquy and challenging the sentence as excessive. He also
asserts two claims that his trial counsel provided ineffec-
tive assistance.
For reasons we will explain, we reject one of Delgado’s
assigned errors and determine it is unnecessary to reach the
other. 	Regarding 	his 	claims 	of 	ineffective 	assistance, 	we

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STATE v. DELGADO
Cite as 322 Neb. 364
conclude that one claim was insufficiently alleged and that
the other was sufficiently alleged but cannot be resolved on
the appellate record. We therefore affirm the district court’s
judgment.
I. BACKGROUND
On three separate occasions in the spring of 2024, Delgado
sold 	methamphetamine 	to 	a 	confidential 	informant 	who
was working with law enforcement. In February 2025, he
was charged by information in the district court for Hall
County with three counts of knowingly or intentionally manu-
facturing, distributing, or delivering methamphetamine in vio-
lation of Neb. Rev. Stat. § 28-416(1) (Cum. Supp. 2024). Due
to differences in the amount of methamphetamine at issue,
count I was charged as a Class ID felony, and counts II and III
were charged as Class II felonies. Delgado pled not guilty to
all counts.
1. Change of Plea
At a pretrial conference on May 13, 2025, the parties
advised the court they had reached a plea agreement. When the
court asked defense counsel to state the terms of the agreement
on the record, the following exchange occurred:
[Defense counsel:] Your Honor, the State agrees to
dismiss Counts I and II in exchange for my client pleading
to Count III.
My client waives his right to seek a deferred judgment
in the matter. Additionally, the State agrees to not move
for a habitual [criminal] enhancement.
THE COURT: Is that correct, [prosecutor]?
[Prosecutor:] It is, Judge.
There’s a waiver of appeal on there as well, per the
email. I don’t know if that’s sufficient for the Court’s
liking. I can mark the email as an exhibit after the fact,
but there’s [a] waiver of appeal as part of the conditions
of the plea agreement.
THE COURT: Is that correct, [defense counsel]?

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STATE v. DELGADO
Cite as 322 Neb. 364
[Defense counsel:] That is correct, Your Honor.
THE COURT: All right. So with that, [prosecutor], if
you think it’s necessary to submit that email, I’ll give you
the opportunity to do that.
For today’s purposes, a waiver of appeal is understood
by the Court with that particular language. If you think it
needs to be in the record, I’ll leave that up to you.
[Prosecutor:] Thank you.
It is unclear whether the State ever offered the email, but no
such exhibit was included in the appellate record. During the
plea hearing, neither the prosecutor nor the defense counsel
recited the terms or scope of the appeal waiver. But when
discussing the plea agreement with Delgado, the court stated,
“[I]t’s the Court’s understanding . . . you’re waiving your
right to appeal this conviction[.] Is that the agreement you’ve
reached?” to which Delgado replied, “Yes.”
After a standard plea colloquy that addressed the rights
Delgado was waiving by entering his plea and the possible
penalties that could be imposed if the court were to accept
his plea, the court made express findings that there was a suf-
ficient factual basis for the plea and that Delgado was entering
his plea freely, voluntarily, knowingly, and intelligently. The
court accepted Delgado’s no contest plea, found him guilty of
the Class II felony charged in count III of the information, and
dismissed the remaining counts. The matter was set for sen-
tencing, and the court ordered the preparation of a presentence
investigation report.
2. Sentencing
At the sentencing hearing, defense counsel asked that Delgado
be placed on a term of probation. He argued that Delgado was
a military veteran who served in Vietnam and suffered from
“posttraumatic stress,” which left him unable to work and con-
tributed to his abuse of controlled substances. Defense coun-
sel referenced the Legislature’s 2025 enactment of a veteran

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STATE v. DELGADO
Cite as 322 Neb. 364
justice program 1 and argued that although the legislation was
not yet in effect, 2 placing Delgado on a term of probation
would be consistent with the Legislature’s intent and would
allow him to receive mental health and substance use treatment
through the U.S. Department of Veterans Affairs.
The State opposed a probationary sentence for Delgado and
instead argued for a term of incarceration. It emphasized the
serious nature of Delgado’s convictions and his lengthy crimi-
nal history, which included prior convictions and imprisonment
for distributing controlled substances.
Before pronouncing sentence, the trial judge stated that he
had reviewed the information in the presentence investigation
report and had considered all the relevant sentencing factors.
The judge expressly noted Delgado’s military service but
explained that he did not consider Delgado to be a suitable
candidate for probation, citing his lengthy criminal history,
his prior convictions and prison sentences for distributing
controlled substances, his high recidivism risk, and the fact
that he had “not led a law-abiding life for a substantial period
of time prior [to] this offense.” Stating that a lesser sentence
would depreciate the seriousness of the offense and promote
disrespect for the law, the court imposed a prison sentence of
10 to 20 years, with credit for 140 days previously served.
After pronouncing sentence, the court advised Delgado, “You
do have the right to appeal this sentence,” and no party
objected or sought to clarify this advisement.
Delgado filed this timely appeal, represented by new counsel.
II. ASSIGNMENTS OF ERROR
On appeal, Delgado assigns, restated, that the trial court
erred in (1) failing to inquire about the scope of the appeal
1 See 2024 Neb. Laws, L.B. 253, §§ 1 to 7 (codified at Neb. Rev. Stat.
§§ 29-4801 to 29-4808 (Cum. Supp. 2024 & Supp. 2025)).
2 See § 29-4808 (stating that §§ 29-4801 to 29-4807 will “apply on and after
July 1, 2027”).

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Nebraska Supreme Court Advance Sheets
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STATE v. DELGADO
Cite as 322 Neb. 364
waiver during the plea hearing and (2) imposing an excessive
sentence. Additionally, he asserts that his trial counsel was
constitutionally deficient in two respects: failing to advise
him “on the effect of a waiver of appeal” and “not investigat-
ing mitigation evidence and presenting such to the sentenc-
ing court.”
III. STANDARD OF REVIEW
[1-3] Whether a party has waived his or her right to appel-
late review presents a question of law. 3 Similarly, the valid-
ity of an appeal waiver is also a question of law. 4 On ques-
tions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the
court below. 5
[4,5] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. 6 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. 7
[6,7] Whether a claim of ineffective assistance of trial
counsel may be determined on direct appeal is a question of
law. 8 In reviewing claims of ineffective assistance of counsel
on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to
conclusively determine whether counsel did or did not provide
3 See, State v. Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022); Becher v.
Becher, 299 Neb. 206, 908 N.W.2d 12 (2018).
4 State v. Hamm, 314 Neb. 311, 989 N.W.2d 719 (2023); State v. Dye, 291
Neb. 989, 870 N.W.2d 628 (2015).
5 See id.
6 State v. Liech, 320 Neb. 843, 30 N.W.3d 847 (2026).
7 Id.
8 State v. Wilson, 320 Neb. 728, 30 N.W.3d 165 (2026).

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STATE v. DELGADO
Cite as 322 Neb. 364
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. 9
IV. ANALYSIS
1. Waiver of Right to Appeal
As noted, the plea agreement in this case included what
the parties described only as a “waiver of appeal.” The State
argues that we should construe that appeal waiver broadly and
enforce it by limiting our appellate review, and Delgado argues
the appeal waiver is not enforceable.
As the U.S. Supreme Court recently observed, nothing “lit-
erally prevents” 10 a criminal defendant from filing an appeal
after agreeing to waive such right, and the “real-world effect
of a waiver provision turns, and turns only, on whether the
appeals court decides to enforce it.” 11 We therefore address
the enforceability of the appeal waiver as a threshold matter.
We begin by reviewing the case law that governs waivers of
the right to appeal in criminal cases, after which we address
the parties’ arguments.
(a) Case Law on Appeal Waivers
[8] The Nebraska Constitution provides that in both criminal
and civil cases, “an aggrieved party shall be entitled to one
appeal . . . as may be provided by law.” 12 In the 2010 case
of State v. Anderson, 13 we held that a “defendant can waive
a constitutional right, including the right to appeal, if done
knowingly and voluntarily.” We elaborated on that principle in
9 Id.
10 Hunter v. United States, ___ U.S. ___, 146 S. Ct. 1702, 1712, 225 L. Ed.
2d 272 (2026).
11 Id.
12 Neb. Const. art. I, § 23.
13 State v. Anderson, 279 Neb. 631, 637, 781 N.W.2d 55, 60 (2010).

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STATE v. DELGADO
Cite as 322 Neb. 364
the 2015 case of State v. Dye 14 and in the 2023 case of State v.
Hamm, 15 each of which we summarize in turn.
(i) State v. Dye
In Dye, a jury found the defendant guilty of several felo-
nies. Before sentencing, the parties signed a written sentencing
agreement that included a stipulated sentencing recommen-
dation and the defendant’s express waiver of “‘any rights to
appeal this case and to any post-conviction relief that [he] may
otherwise be entitled.’” 16 After the trial court imposed a sen-
tence that was consistent with the sentencing recommendation,
the defendant filed a direct appeal, arguing the waiver was
unenforceable and void as against public policy.
[9,10] Our opinion in Dye expressly held that “appeal waiv-
ers do not violate Nebraska public policy” 17 and went on to
address what appellate courts should review before enforcing
such a waiver. We explained in Dye that when determining
whether to enforce a waiver of the right to appeal, appellate
courts should consider three factors: “‘(1) whether the dis-
puted appeal falls within the scope of the waiver of appellate
rights; (2) whether the defendant knowingly and voluntarily
waived his appellate rights; and (3) whether enforcing the
waiver would result in a miscarriage of justice[.]’” 18
[11,12] The Dye court also explained how an appellate
court is to consider each of the three factors. With respect to
the first factor, the Dye court explained that “the burden of
proof is on the State to demonstrate that an agreement clearly
and unambiguously waives a defendant’s right to appeal.” 19
Additionally, the Dye court adopted the rule that “waivers
14 Dye, supra note 4.
15 Hamm, supra note 4.
16 Dye, supra note 4, 291 Neb. at 992, 870 N.W.2d at 631.
17 Id. at 997, 870 N.W.2d at 633.
18 Id. at 998, 870 N.W.2d at 634.
19 Id. at 999, 870 N.W.2d at 634.

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STATE v. DELGADO
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of the right to appeal are to be applied narrowly, with any
ambiguities construed against the State and in favor of the
defendant’s right to appeal.” 20
[13] With respect to the second factor, the Dye court clari-
fied that a waiver of the right to appeal “may not be know-
ing or voluntary if, for example, it is entered into upon the
ineffective assistance of counsel or upon undue coercion.” 21
Relatedly, we recognized in Dye that “a waiver of appeal rights
does not waive ‘an ineffectiveness [of counsel] claim having
to do with the waiver (or the plea agreement as a whole) and
its negotiation.’” 22
[14] And with respect to the third factor, the Dye court
recognized it will generally be considered a miscarriage of
justice to enforce an appeal waiver when the defendant seeks
“‘to appeal an illegal sentence, even though there exists an
otherwise valid waiver.’” 23 As such, “even when a defendant
has made a valid waiver of appeal rights, an appellate court
may reverse a sentence that is outside of statutory limits or
otherwise not authorized by law.” 24 The U.S. Supreme Court
recently endorsed a similar rule in the context of federal plea
agreements, holding that “an appeal waiver is unenforceable
when it would result in a miscarriage of justice.” 25
In Dye, we ultimately concluded that the issues raised on
direct appeal fell within the scope of the appeal waiver, that the
defendant knowingly waived his appeal rights, and that enforc-
ing the waiver would not result in a miscarriage of justice. We
therefore held “the proper remedy” 26 was to enforce the waiver
and dismiss the appeal.
20 Id.
21 Id. at 999, 870 N.W.2d at 635.
22 Id.
23 Id. at 1000, 870 N.W.2d at 635.
24 Id.
25 Hunter, supra note 10, 146 S. Ct. at 1713.
26 Dye, supra note 4, 291 Neb. at 1001, 870 N.W.2d at 635.

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STATE v. DELGADO
Cite as 322 Neb. 364
(ii) State v. Hamm
In Hamm, the defendant and the State entered into a “‘Plea
and Sentencing Stipulation’” that included, among other pro-
visions, the defendant’s agreement to “‘waive his right to
appeal all issues, to the extent a waiver is permissible.’” 27 At
the change-of-plea hearing, the trial court confirmed that the
defendant had reviewed, understood, and signed the “‘Plea
and Sentencing Stipulation.’” 28 The court ultimately accepted
the defendant’s plea and imposed a sentence that was con-
sistent with the parties’ agreement. The defendant then filed
a direct appeal, represented by new counsel, asserting that
his trial counsel was ineffective in several respects. The
State sought to enforce the appeal waiver, arguing the appeal
should be dismissed in its entirety because the defendant had
waived his right to appeal “all issues.” 29 The defendant
responded that his appeal waiver was “void because he would
not have entered into it but for such ineffective assistance
of counsel.” 30
[15] The Hamm court reviewed cases from other jurisdic-
tions and ultimately held that “ineffective assistance of counsel
claims do not render an appeal waiver invalid except to the
extent deficient representation in negotiating or advising on
the waiver rendered it unknowing or involuntary.” 31 The U.S.
Supreme Court recently endorsed a similar rule that “[a]n
appeal waiver . . . is not knowing and voluntary if it was the
product of ineffective assistance of counsel.” 32
On the record in Hamm, we concluded the defendant’s
claim of ineffective assistance did not render the appeal waiver
27 Hamm, supra note 4, 314 Neb. at 314, 989 N.W.2d at 723.
28 Id. at 316, 989 N.W.2d at 724.
29 Id. at 317, 989 N.W.2d at 724.
30 Id.
31 Id. at 320, 989 N.W.2d at 726.
32 Hunter, supra note 10, 146 S. Ct. at 1711.

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unenforceable because the allegedly deficient performance
occurred before the appeal waiver was negotiated. We there-
fore enforced the waiver and dismissed the appeal after deter-
mining that the issues raised on appeal fell within the scope
of the appeal waiver, that the defendant knowingly waived his
appeal rights, and that enforcing the waiver would not result in
a miscarriage of justice.
With the holdings from Anderson, Dye, and Hamm in mind,
we turn to the parties’ arguments regarding the enforceability
of the appeal waiver in this case.
(b) Parties’ Arguments
The State argues that all three Dye factors are satisfied
on this record, and it asks us to enforce the appeal waiver.
Regarding the first Dye factor, the State argues that the parties
agreed to an “unqualified” 33 waiver and that all conceivable
appeal rights fall within its scope. Regarding the second fac-
tor, the State argues there was “evidence that the agreement
was knowing and voluntary,” 34 and regarding the third factor,
the State argues that “enforcing the waiver would not result
in a miscarriage of justice since Delgado’s sentence is lawful
and supported by the record.” 35 However, the State concedes
that under Hamm, the appeal waiver cannot be enforced
against a claim that trial counsel’s “alleged ineffectiveness
rendered the appeal waiver invalid,” 36 and because Delgado is
asserting such a claim, the State submits it is “permissible” 37
for us to consider it.
Anticipating the State’s position on appeal, Delgado’s first
assignment of error presents alternative arguments as to why
the appeal waiver is unenforceable. First, he argues “[t]here
33 Brief for appellee at 7.
34 Id.
35 Id.
36 Hamm, supra note 4, 314 Neb. at 323, 989 N.W.2d at 728.
37 Brief for appellee at 7.

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was [an] insufficient record made” 38 regarding the terms and
conditions of the appeal waiver because there is nothing in
the record showing that he agreed to “giv[e] up his right to
appeal the sentence and issues of ineffective assistance.” 39
Alternatively, he argues that if we find that the scope of the
waiver was unqualified, then the trial court erred by “fail[ing]
to determine through inquiry whether [Delgado] knew he was
giving an unqualified waiver of his appeal right.” 40
(c) Resolution
As the party seeking to enforce the appeal waiver, the State
had the burden to prove, among other things, that Delgado
clearly and unambiguously waived his right to appeal and that
the instant appeal “‘falls within the scope of the waiver of
appellate rights.’” 41 As we will explain, because the State has
not presented an appellate record that establishes the scope
of the agreed-upon waiver, it is unable to satisfy the factors
required to enforce the waiver in this direct appeal.
In both Dye and Hamm, the essential terms of the appeal
waiver were placed on the record during the plea hearing. In
Dye, the record established that the defendant agreed to “‘waive
any rights to appeal this case and to any post-conviction relief
that [he] may otherwise be entitled.’” 42 And in Hamm, the
record established that the defendant agreed to “‘waive his right
to appeal all issues, to the extent a waiver is permissible.’” 43
In both cases, because the record established the broad scope
of the agreed-upon waiver, this court was able to determine
whether the issues on appeal fell within that scope.
38 Brief for appellant at 11.
39 Id. at 12.
40 Id. at 11.
41 Dye, supra note 4, 291 Neb. at 998, 870 N.W.2d at 634.
42 Id. at 992, 870 N.W.2d at 631 (emphasis supplied).
43 Hamm, supra note 4, 314 Neb. at 314, 989 N.W.2d at 723 (emphasis
supplied).

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STATE v. DELGADO
Cite as 322 Neb. 364
But in this case, the essential terms of the appeal waiver
were neither recited on the record nor included in the record.
Instead, the State merely advised the trial court “there’s [a]
waiver of appeal as part of the conditions of the plea agree-
ment,” and defense counsel agreed without elaborating. The
appellate record thus shows only that the parties agreed to
some sort of waiver of the right to appeal—it is silent as
to which appellate rights were waived and by whom. Unlike
the express language of the appeal waivers enforced in Dye
and Hamm, which left little doubt that the waivers were
intended to be as broad in scope as permitted by law, the State
here referenced an appeal waiver but never made a record of
its terms or intended scope, even after being given an oppor-
tunity to do so.
At oral argument, the State urged us to broadly construe
the record as establishing a “flat waiver” of all conceivable
appeal rights, reasoning that “if there was a carve out, it was
incumbent on one of the attorneys to say so.” Our concur-
ring colleague urges a similarly broad construction and sug-
gests the appeal waiver agreed to here was “clearly a general
waiver with no restrictions.” We understand both the State
and the concurrence to argue for a rule of construction under
which all appeal waivers are presumed to be unlimited in
scope unless the parties expressly state otherwise, but they do
not cite any authority for such a presumption, and, ordinarily,
“courts indulge every reasonable presumption against waiver
of fundamental constitutional rights.” 44 But, more impor-
tantly, such a presumption is contrary to the specific rule
announced in Dye and is inconsistent with the settled rules
44 State v. Manjikian, 303 Neb. 100, 112-13, 927 N.W.2d 48, 59-60 (2019)
(emphasis supplied) (citing Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct.
1019, 82 L. Ed. 1461 (1938)). See, also, Williams v. State, 164 N.E.3d
724, 725 (Ind. 2021) (applying rule that “a plea agreement’s generalized
statement that the defendant ‘waives [the] right to appeal,’ without more,
[is] insufficient to establish the knowing and voluntary waiver of the
defendant’s right to appeal his sentence”).

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in Nebraska that govern the construction and enforcement of
plea agreements more generally.
[16] Generally, plea agreements are to be construed and
enforced based upon contract principles. 45 Consistent with
such principles, Nebraska courts will not imply terms into plea
agreements and instead will follow the rule that “‘courts imple-
menting plea agreements should enforce only those terms and
conditions actually agreed upon by the parties.’” 46 This rule of
construction is intended to avoid “expanding the plea agree-
ment by judicial fiat.’” 47 Here, the State advised the court only
that the plea agreement included “a waiver of appeal,” and,
in response to that information, the court stated, “For today’s
purposes, a waiver of appeal is understood by the Court with
that particular language.”
Like the trial court, our understanding of the scope of
the appeal waiver is limited to the particular language used
by the parties when making a record of the agreement they
reached. As such, the question we must answer is whether
an agreement described by the State merely as “a waiver of
appeal” should be construed broadly in favor of the State as
an unlimited waiver of all available appeal rights or narrowly
in favor of Delgado’s right to appeal those issues not already
waived by the entry of his voluntary plea. 48 Existing case law
provides the answer to that question.
45 See State v. Lara, 315 Neb. 856, 2 N.W.3d 1 (2024), cert. denied ___ U.S.
___, 144 S. Ct. 2608, 219 L. Ed. 2d 1256.
46 Id. at 869-70, 2 N.W.3d at 13.
47 Id. at 870, 2 N.W.3d at 13.
48 See, e.g., State v. Dicken, 321 Neb. 301, 34 N.W.3d 97 (2026) (voluntary
entry of guilty or no contest plea waives every defense to charge,
whether procedural, statutory, or constitutional, except those related to
sufficiency of charging document, ineffective assistance of counsel, and
lack of jurisdiction); State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022)
(voluntary entry of guilty or no contest plea does not waive alleged errors
occurring at sentencing).

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In Dye, we announced the rule that “waivers of the right to
appeal are to be applied narrowly, with any ambiguities con-
strued against the State and in favor of the defendant’s right to
appeal.” 49 Applying that rule here, we must reject the State’s
invitation to broadly construe the scope of the waiver in this
case to include every conceivable issue that might permis-
sibly be waived under the law. 50 Instead, because the State’s
description of the appeal waiver was, at best, ambiguous as
to the scope of what was being waived and by whom, we are
required to construe the agreement against the State and in
favor of Delgado’s right to appeal.
For the sake of completeness, we note the trial judge made
remarks on the record during both the plea hearing and the
sentencing hearing that seemed to assume Delgado had waived
the right to appeal his conviction but retained the right to
appeal his sentence, and the State did not object to or correct
such remarks. To the extent Delgado can be understood to
argue that the judge’s remarks and the State’s failure to object
should be considered when construing the scope of the appeal
waiver, we are unpersuaded. As the U.S. Supreme Court
recently emphasized, it is the intent of the parties and the
terms of their agreement that matter when seeking to enforce a
waiver of appeal rights; neither remarks by the trial court, nor
the parties’ silence in response to those remarks, can alter the
terms of the parties’ agreement. 51
In summary, on this record, we must decline the State’s
request to enforce the appeal waiver on direct appeal. We do
so not because of any failure on the part of the trial court, but
49 Dye, supra note 4, 291 Neb. at 999, 870 N.W.2d at 634.
50 See State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007)
(rejecting contention that State agreed to waive its right to appeal sentence
as excessive, reasoning that oral description of parties’ plea agreement did
not include any such condition and court would not imply it based only on
State’s agreement to remain silent at sentencing).
51 See Hunter, supra note 10.

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because the State failed to clearly and unambiguously estab-
lish the terms and conditions of the waiver agreed to by the
parties and, therefore, cannot carry its burden to prove that
the issues Delgado raises on direct appeal plainly fall within
the scope of that waiver. Our ruling in this regard makes it
unnecessary to further address Delgado’s first assignment of
error, which was directed exclusively at the enforceability
of the appeal waiver on direct appeal. 52
2. Excessive Sentence Claim
[17] In Delgado’s second assignment of error, he argues his
prison sentence is “far in excess of that which is reasonable
under the circumstances.” 53 He concedes, however, that the
sentence of 10 to 20 years’ imprisonment is within the statutory
limits for a Class II felony. 54 When sentences imposed within
statutory limits are alleged on appeal to be excessive, the
appellate court must determine whether the sentencing court
abused its discretion in considering well-established factors
and any applicable legal principles. 55
[18,19] Relevant sentencing factors customarily include the
defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation
for the offense, as well as (7) the nature of the offense and
(8) the amount of violence involved in the commission of
the crime. 56 While these factors should instruct a sentencing
court, they do not comprise a mathematical formula that must
be rigidly implemented. 57 Rather, they are among the relevant
52 See Hauxwell v. Middle Republican NRD, 319 Neb. 1, 20, 21 N.W.3d 34,
49 (2025) (“an appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it”).
53 Brief for appellant at 14.
54 See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2024).
55 State v. Jones, 318 Neb. 840, 19 N.W.3d 499 (2025).
56 See id.
57 See id.

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factors that may be considered. 58 The appropriateness of a
sentence is necessarily a subjective judgment that includes the
sentencing judge’s observations of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding
the defendant’s life. 59
[20] Delgado does not contend that the court failed to
consider these sentencing factors or that it considered any
improper factors. Instead, he generally argues that the trial
court did not give sufficient weight to several factors, includ-
ing his age and his status as a veteran. But, as we often
observe, it is not the function of an appellate court to conduct
a de novo review or to reweigh the relevant sentencing fac-
tors. 60 Instead, having carefully reviewed the record for an
abuse of discretion, we cannot say that the sentence imposed
was clearly untenable or that it unfairly deprived Delgado of a
substantial right or a just result. There is no merit to Delgado’s
excessive sentence claim.
3. Ineffective Assistance of Counsel
In this direct appeal, Delgado asserts two claims of ineffec-
tive assistance of counsel. First, he contends his trial counsel
performed deficiently by failing to adequately advise him of
the scope and consequences of the appeal waiver. Second,
he contends trial counsel performed deficiently in failing to
investigate and present mitigation evidence for consideration
at sentencing. Before addressing these claims, we review the
framework that guides our analysis of ineffective assistance of
counsel claims raised on direct appeal.
[21-23] Generally, to prevail on a claim of ineffective
assistance of counsel under the framework established by
the U.S. Supreme Court in Strickland v. Washington, 61 the
58 See id.
59 See id.
60 See State v. Starks, 308 Neb. 527, 955 N.W.2d 313 (2021).
61 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).

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defendant must show that his or her counsel’s performance
was deficient and that this deficient performance actually
prejudiced the defense. 62 To show that counsel’s performance
was deficient, a defendant must show that counsel’s per-
formance did not equal that of a lawyer with ordinary training
and skill in criminal law. 63 To show prejudice in a claim of
ineffective assistance of counsel, the defendant must dem-
onstrate a reasonable probability that but for counsel’s defi-
cient performance, the result of the proceeding would have
been different. 64
[24] Our cases hold that when a defendant’s trial coun-
sel is different from his or her counsel on direct appeal, the
defendant must properly raise on direct appeal any issue of
trial counsel’s deficient performance which is either known to
the defendant or is apparent from the record. 65 Any known or
apparent issue of deficient performance not properly raised on
direct appeal will be procedurally barred in a subsequent post-
conviction proceeding. 66
[25-27] Defendants seeking to raise an ineffective assis-
tance of counsel claim must specifically assign and specifi-
cally argue the alleged deficient performance, “and must do
so with sufficient particularity.” 67 Allegations of deficient
performance must “include a ‘description of the specific con-
duct alleged to constitute deficient performance,’” 68 and that
description must be particular enough to (1) allow an appellate
62 Id. See, also, State v. Lopez, 321 Neb. 118, 32 N.W.3d 868 (2026).
63 Lopez, supra note 62.
64 Id.
65 Id.
66 Id.
67 See id. at 149, 32 N.W.3d at 893. Accord State v. Mrza, 302 Neb. 931, 926
N.W.2d 79 (2019), disapproved on other grounds, State v. Hagens, 320
Neb. 65, 26 N.W.3d 174 (2025).
68 Lopez, supra note 62, 321 Neb. at 149, 32 N.W.3d at 893 (quoting State v.
Rupp, 320 Neb. 502, 28 N.W.3d 74 (2025)).

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court to determine whether the claim can be decided upon the
trial record and (2) allow a district court reviewing a later post-
conviction motion to recognize whether the claim was raised
on direct appeal. 69 Alleging deficient conduct with specificity
requires more than generalities of inadequate preparation or
failures to introduce beneficial evidence. 70 An allegation is
sufficiently specific “‘when it addresses a specific issue that
does not require additional information to understand pre-
cisely what the assignment attacks.’” 71
[28-31] The fact that a claim of ineffective assistance of
counsel is properly raised on direct appeal does not mean it
can be resolved on direct appeal. 72 The determining factor is
whether all the facts necessary to the analysis are part of the
appellate record. 73 An ineffective assistance of counsel claim
will not be addressed on direct appeal if it requires examina-
tion of facts not contained in the record. 74 Relatedly, if the
record on direct appeal conclusively establishes either that trial
counsel’s performance was not deficient or that any deficient
performance did not prejudice the defendant’s defense, an
appellate court can determine trial counsel was not ineffec-
tive. 75 However, if the record on direct appeal does not con-
clusively establish or refute a claim of ineffective assistance,
then the issue cannot be resolved on direct appeal and must be
properly raised in a subsequent postconviction proceeding. 76
With this framework in mind, we turn to Delgado’s claims
of ineffective assistance.
69 Id.
70 See id.
71 See id. (quoting Rupp, supra note 68).
72 Lopez, supra note 62.
73 Id.
74 Id.
75 Id.
76 Id.

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(a) Trial Counsel’s Advice
Regarding Appeal Waiver
Delgado first asserts that his trial counsel was ineffective in
failing to properly advise him regarding the scope and effect
of the appeal waiver. Although we have declined to enforce
the appeal waiver on direct appeal for the reasons already
explained above, we nevertheless address this claim of inef-
fective assistance due to the possibility that a more developed
record may show that the scope of the agreed-upon waiver
encompassed more than just a direct appeal. Delgado argues
that his trial counsel did not provide a “complete advisement
. . . about the scope of the appeal waiver described in the plea
hearing.” 77 According to Delgado, his trial counsel advised
him only that he “would not be able to appeal the finding
of guilt” 78 but did not specify whether he could appeal the
sentence or assert claims of ineffective assistance of counsel.
Delgado argues that he relied on this advice when deciding
whether to plead no contest and that if he had “been coun-
seled effectively, he would have either insisted on going to
trial or insisted that the appeal waiver be taken out of any
plea agreement.” 79
We 	conclude 	this 	claim 	of 	ineffective 	assistance 	was
alleged with sufficient particularity, but since the details of
Delgado’s conversations with his trial counsel are not con-
tained in the appellate record, this claim cannot be resolved
on direct appeal.
(b) Failure to Investigate and
Present Mitigating Evidence
For his second claim of ineffective assistance of trial coun-
sel claim, Delgado broadly assigns that “[t]rial counsel per-
formed deficiently by not investigating mitigation evidence
77 Brief for appellant at 12.
78 Id. at 13.
79 Id. at 14.

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and presenting such to the sentencing court.” 80 Under our case
law, this conclusory allegation lacks the specificity required to
raise a claim of ineffective assistance on direct appeal. 81
Delgado’s generalized reference to “mitigation evidence”
does not describe with any specificity the allegedly beneficial
evidence trial counsel failed to obtain or present. And although
the argument section of Delgado’s appellate brief provides
some limited information about the allegedly deficient conduct,
our cases “have been clear that the argument section should not
be used to set forth, for the first time, what the allegedly defi-
cient conduct was.” 82 Because this allegation is insufficiently
specific to raise a claim of ineffective assistance of counsel, we
will not address it further.
V. CONCLUSION
For the foregoing reasons, the judgment of the district court
is affirmed.
Affirmed.
80 Id. at 19.
81 See Lopez, supra note 62.
82 Id. at 153, 32 N.W.3d at 895.
Freudenberg, J., concurring.
I concur in the result of the majority opinion but write
separately to respectfully disagree with the majority’s position
invalidating James F. Delgado’s waiver of his appeal rights as
part of his plea agreement with the State.
Delgado was originally charged with three drug distribution
offenses, one Class ID felony and two Class II felonies. Each
offense was apparently at risk to have its sentence enhanced
pursuant to Nebraska’s habitual criminal statute. However,
before trial, Delgado and the State reached a plea agreement
where Delgado agreed to enter a plea to one Class II felony,
not seek a deferred judgment, and enter a “waiver of appeal.”
In exchange, the State agreed to dismiss the remaining crimi-
nal charges and not seek a habitual criminal enhancement of

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Delgado’s sentence. Trial counsel for Delgado and counsel for
the State jointly set forth the terms of the plea agreement to the
trial court. Delgado acknowledged he was “waiving [his] right
to appeal this conviction” as part of the plea colloquy.
Pursuant to the terms of the plea agreement, Delgado entered
a plea of no contest to one Class II felony. The trial court
accepted the plea and dismissed the remaining counts as agreed
to by the State. At the subsequent sentencing hearing, Delgado
did not request a deferred sentence, and the State did not seek
a habitual criminal sentencing enhancement.
With new counsel, Delgado filed an appeal, despite his
waiver of such right as part of the consideration he pro-
vided in the plea agreement. The issue presented is whether
Delgado’s “waiver of appeal” encompassed his present claims
that his sentence was excessive and trial counsel was ineffec-
tive by not presenting mitigation evidence at the sentencing
hearing. It is noted that appeal waivers do not apply to claims
challenging the process by which the waiver agreement was
entered 	into, 	including 	ineffective 	assistance 	of 	counsel
claims. 1 Thus, to the extent Delgado’s third assignment of
error falls into this category, it was not waived regardless
of the appeal waiver.
The majority opinion “decline[s] the State’s request to
enforce the appeal waiver on direct appeal[,] because the
State failed to clearly and unambiguously establish the terms
and conditions of the waiver . . . and, therefore, cannot . . .
prove that the issues Delgado raises on direct appeal plainly
fall within the scope of that waiver.” The majority opinion
then goes on to address each of the issues raised in Delgado’s
appeal. To support its position, the majority relies on our prior
holdings in State v. Dye 2 and State v. Hamm. 3
1 See State v. Hamm, 314 Neb. 311, 989 N.W.2d 719 (2023).
2 State v. Dye, 291 Neb. 989, 870 N.W.2d 628 (2015).
3 State v. Hamm, supra note 1.

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In Dye, this court found that appeal waivers do not violate
public policy and adopted the three-step inquiry described in
the majority opinion. In doing so, the Dye court relied on a
case from the 10th Circuit Court of Appeals, U.S. v. Hahn. 4
The Hahn court emphasized the importance of enforcing plea
bargains in criminal matters as a matter of public policy:
Given the importance of plea bargaining to the criminal
justice system, we generally enforce plea agreements and
their concomitant waivers of appellate rights. . . . We do
so, in large part, because public policy strongly supports
such waivers as they benefit defendants, the government,
and society at large. 5
According to the Hahn court, the appeal waiver is an essential
term of most plea bargain agreements. The court explained,
“[A]ppellate waivers benefit the government by saving the
costs of prosecuting appeals; and ‘[o]nly through the [effi-
cient] dismissal of [an] appeal will the government receive the
benefit of its bargain.’” 6
In the present matter, there are no indications in the record
that Delgado, at the time he entered the plea agreement, had
any understanding other than he was waiving his appeal rights
in exchange for the significant plea and sentencing benefits
that he was to, and did in fact, receive. The “scope” of the
waiver is clearly a general waiver with no restrictions. If any
restrictions were to be included, Delgado, his trial counsel,
and the State all had the opportunity to set them forth during
their joint recitation of the plea agreement. No one attempted
to claim anything less than a general waiver of appeal.
As the majority opinion recognizes, plea agreements are to
be construed and enforced based upon contract principles. 7
4 U.S. v. Hahn, 359 F.3d 1315 (10th Cir. 2004).
5 Id. at 1318.
6 Id. at 1325.
7 State v. Lara, 315 Neb. 856, 2 N.W.3d 1 (2024), cert. denied ___ U.S. ___,
144 S. Ct. 2608, 219 L. Ed. 2d 1256.

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But our prohibition against expanding plea agreements by
judicial fiat has been in the context of refusing to supply
unmentioned terms to give the defendant the benefit of a con-
dition he failed to negotiate before the fact. 8 As quoted by the
Nebraska Court of Appeals in State v. Thompson, 9 “‘Under
traditional contract principles, we should . . . treat[ ] a plea
agreement as a fully integrated contract and enforce[e] it
according to its tenor, unfestooned with covenants the parties
did not see fit to mention.’”
The majority opinion does not treat Delgado’s plea agree-
ment as a fully integrated contract to be enforced according to
its broad tenor. Instead, it concludes that it is the very lack of
festoons that renders Delgado’s appeal waiver too vague to be
enforceable.
In essence, the majority believes the appeal waiver in
the plea agreement was so indefinitely described that its
terms and conditions cannot now be determined to permit its
enforcement. The majority then severs this waiver from the
plea agreement, giving Delgado the benefit of the dismissal
of two charges and avoiding habitual criminal enhancement at
sentencing, while depriving the State of its benefit from the
parties’ bargain.
The relevant question, however, should be whether the par-
ties reached a mutual understanding on the terms of the agree-
ment. On the record before us, there is no question that at the
time Delgado entered his plea of no contest in this matter, he,
his trial counsel, the State, and the trial court were comfortable
that they understood the terms of the plea agreement, including
his waiver of appeal. Delgado entered his plea in accordance
with this understanding and received the benefits for which he
bargained. It is unreasonable for this court to now disregard
8 See State v. Landera, 285 Neb. 243, 826 N.W.2d 570 (2013) (and cases
cited therein).
9 State v. Thompson, 15 Neb. App. 764, 775-76, 735 N.W.2d 818, 828
(2007), quoting U.S. v. Anderson, 921 F.2d 335 (1st Cir. 1990).

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the trial court judge’s acceptance of the plea agreement and
find it lacking and unenforceable against one of the parties.
In Dye, we did not consider the defendant’s waiver of “‘any
rights to appeal this case’” to be ambiguous but, instead,
broad in scope. 10 Likewise, in Hamm, we upheld an agree-
ment with the language “‘waive his right to appeal all issues,
to the extent a waiver is permissible.’” 11 The differences
between the language used in those matters and what the trial
court accepted here is negligible and not substantial enough to
remove a benefit bargained for under the agreement.
Part of the relevant context of an appeal waiver in any plea
agreement—and, thus, part of a reasonable understanding of
its terms—is that, even without an appeal waiver, a voluntary
entry of a guilty plea or a plea of no contest waives every
defense to a charge, whether the defense is procedural, statu-
tory, or constitutional. 12 Waiver of the right to challenge a con-
viction on direct appeal is simply “one of the consequences of
pleading guilty.” 13 Thus, waiving such direct appeal challenges
is an unlikely goal of a broad appeal waiver that is part of a
larger agreement wherein the defendant pleads guilty or no
contest to the charges. Doing so would be redundant. This is
in line with the observation that “there is no mandatory litany
that must be used in order to obtain a valid waiver of appel-
late rights[,] and a waiver will be enforceable if the record
demonstrates that the defendant intentionally relinquishe[d]
or abandon[ed] a known right that would otherwise survive a
guilty plea.” 14 To be meaningful, an express appeal waiver that
is part of a plea agreement must waive something more than
what is already waived by the plea itself.
10 State v. Dye, supra note 2, 291 Neb. at 992, 870 N.W.2d at 631.
11 State v. Hamm, supra note 1, 314 Neb. at 314, 989 N.W.2d at 723.
12 State v. Hamm, supra note 1.
13 Alvey v. State, 911 N.E.2d 1248, 1249 (Ind. 2009).
14 People v. Johnson, 14 N.Y.3d 483, 486, 929 N.E.2d 361, 362, 903
N.Y.S.2d 299, 300 (2010) (internal quotation marks omitted).

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While it is the duty of the party seeking to enforce a term of
a plea agreement to develop the record to support the enforce-
ment for which the party is seeking, it is still very important
for the trial court accepting the plea agreement to have a firm
understanding of all the terms the trial court is promising the
parties it will enforce by accepting their plea agreement. In
the absence of such understanding, a trial court will be unable
to enforce such terms when later asked by one of the par-
ties to do so. However, in the present situation, I believe the
trial court, as well as the parties, fully understood the term
disputed here, but the majority opinion should behoove trial
courts and parties to collectively develop records to ensure
that benefits from the trial courts’ approved plea agreements
are not later negated on subsequent appellate review, as has
happened here. As always, we encourage trial courts and par-
ties to err on the side of clarity when making a record of the
terms of a plea agreement.
Nevertheless, 	under 	the 	circumstances 	of 	this 	case, 	I
respectfully believe the waiver is sufficiently definite in its
breadth. Trial counsel for Delgado and the State set forth
to the trial court the terms of the plea and what Delgado
received in exchange. After the parties both acknowledged
the “waiver of appeal” was part of the plea agreement, the
court explained it would approve the plea agreement with
the understanding of the waiver with the broad language
presented. Neither defense counsel nor Delgado objected or
made any attempt to limit the breadth of the waiver of appeal
when the trial court stated that “a waiver of appeal is under-
stood by the Court with that particular language.” The record
reflects that the agreement was in both parties’ possession and
was not ambiguous to their joint understanding at that time.
Later, during the plea colloquy, the court addressed the rights
Delgado was waiving by entering his plea and the possible
penalties that could be imposed if the court were to accept his
plea. Delgado confirmed to the court that he was “waiving
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If we are too quick to conclude that a broad “waiver
of appeal” lacks any necessary terms and conditions to be
enforceable for challenges like those presented here, then we
threaten to damage the parties’ ability to ascertain their
legal rights when they sit down at the bargaining table
and, more problematically for criminal defendants, [we]
threaten to reduce the likelihood that prosecutors will bar-
gain away counts . . . with the knowledge that the agree-
ment will be immune from challenge on appeal. 15
It appears that everyone present during the entry of Delgado’s
plea fully agreed upon the terms of the plea agreement. But
now the majority opinion unreasonably requires, after the fact,
more words be used to establish a general waiver of appeal,
and it thereby negates a fairly bargained term of the agreement.
Parties to a plea agreement should be held to the terms of their
agreement, especially when such agreement has been approved
by the trial court and one of the parties has already received
their full benefits thereunder. This is contrary to the idea of
fair dealing, and I cannot join the majority opinion’s reasoning
that the parties’ joint recitation of the appeal waiver term was
so insufficient to require such term be negated.
15 U.S. v. Bradley, 400 F.3d 459, 464 (6th Cir. 2005).
Bergevin, J., concurring.
I join the majority opinion of the court. I write separately
because I am also concerned that the State is not receiving
what it thought it bargained for under the plea agreement—to
avoid appellate litigation.
My concurring colleague sets forth the importance of plea
agreements and their concomitant waivers of appellate rights
to our system of criminal justice. 1 I agree with the importance
of these tools, and I think that for these tools to be effective,
the parties, including the State, must be able to trust that the
1 See U.S. v. Hahn, 359 F.3d 1315 (10th Cir. 2004).

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bargain they negotiated will be respected and enforced by
appellate courts.
However, when seeking the benefit of an appeal waiver, it
is incumbent upon the State to provide sufficient detail in the
record on appeal to realize the benefits of its bargain. 2 I agree
with the majority that in this case, the State failed to clearly
and unambiguously establish the terms and conditions of the
appeal waiver. 3 Therefore, I agree with the majority’s resolu-
tion of that issue based on this court’s precedent.
Nevertheless, I think that in subsequent appeals, this court
should strive to provide clear guidance regarding what the
State must include in the record to ensure that it will receive
the benefit of a negotiated appeal waiver.
2 Id. (stating that appeal waivers are to be construed narrowly and that
in determining scope of appeal waiver, ambiguities are read against
government and in favor of defendant’s appellate rights).
3 See State v. Dye, 291 Neb. 989, 870 N.W.2d 628 (2015).