State v. Chairez , 302 Neb. 731 ( 2019 )


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    05/17/2019 09:07 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    STATE v. CHAIREZ
    Cite as 
    302 Neb. 731
    State   of Nebraska, appellee, v. H abacuc
    Quintero Chairez, appellant.
    ___ N.W.2d ___
    Filed March 29, 2019.    No. S-18-646.
    1. Effectiveness of Counsel: Appeal and Error. Appellate review of a
    claim of ineffective assistance of counsel is a mixed question of law and
    fact. When reviewing a claim of ineffective assistance of counsel, an
    appellate court reviews the factual findings of the lower court for clear
    error. With regard to the questions of counsel’s performance or prejudice
    to the defendant as part of the two-pronged test articulated in Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984),
    an appellate court reviews such legal determinations independently of
    the lower court’s decision.
    2. ____: ____. 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 deter-
    mine whether counsel did or did not provide effective assistance and
    whether the defendant was or was not prejudiced by counsel’s alleged
    deficient performance.
    3. 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.
    4. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
    counsel is different from his or her counsel on direct appeal, the defend­
    ant must raise on direct appeal any issue of trial counsel’s ineffective
    performance which is known to the defendant or is apparent from the
    record, in order to preserve such claim. Once raised, the appellate court
    will determine whether the record on appeal is sufficient to review the
    merits of the ineffective performance claims.
    5. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
    ineffective assistance of counsel claim will not be addressed on direct
    appeal if it requires an evidentiary hearing.
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    STATE v. CHAIREZ
    Cite as 
    302 Neb. 731
    6. 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 violence involved in the
    commission of the crime.
    Appeal from the District Court for Lancaster County: Darla
    S. Ideus, Judge. Affirmed.
    Timothy S. Noerrlinger for appellant.
    Douglas J. Peterson, Attorney General, Erin E. Tangeman,
    and, on brief, Joe Meyer for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    I. NATURE OF CASE
    Pursuant to a plea agreement with the State, the defendant
    entered no contest pleas and was subsequently convicted of
    possession of a firearm by a prohibited person, a Class ID
    felony, in violation of Neb. Rev. Stat. § 28-1206(3) (Supp.
    2017); attempted first degree assault, a Class IIA felony, in
    violation of Neb. Rev. Stat. §§ 28-201 and 28-308 (Reissue
    2016); and use of a firearm to commit a felony, a Class IC
    felony, in violation of Neb. Rev. Stat. § 28-1205(1) (Reissue
    2016). The lower court imposed an aggregate sentence of 42 to
    55 years in prison. The central issues on appeal are whether the
    defend­ant’s sentences were excessive and whether his assist­
    ance of trial counsel was ineffective for failing to meet with
    the defendant with an interpreter present, investigate witnesses
    and exculpatory evidence, and file a motion to suppress the
    defendant’s statements to law enforcement officers.
    II. FACTS
    On June 11, 2017, at approximately 12:20 p.m., Habacuc
    Quintero Chairez, while driving on Interstate 80 in Lancaster
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    STATE v. CHAIREZ
    Cite as 
    302 Neb. 731
    County, Nebraska, used a firearm to shoot at another vehicle
    four times, hitting the targeted vehicle at least twice. The
    vehicle was occupied by Nicholas Pearson and his 15-year-
    old son; however, no one was injured. Pearson called the 911
    emergency dispatch service and provided an account of the
    incident, including a description of the vehicle that Chairez
    was driving.
    State troopers located Chairez in his vehicle on Interstate 80,
    partially blocking one lane of traffic. When the state troopers
    initiated contact with Chairez, he displayed a handgun outside
    of the driver’s-side window. He was then ordered out of his
    vehicle at gunpoint and taken into custody.
    Chairez was eventually advised of his Miranda rights and
    interviewed by a member of the Nebraska State Patrol with the
    assistance of an interpreter. Chairez admitted to having fired
    the gun at Pearson’s vehicle, stating that he thought the vehicle
    was following him. During the interview, he further admitted
    that he purchased the firearm and acknowledged that he was a
    convicted felon on federal parole.
    Chairez was originally charged with possession of a fire-
    arm by a prohibited person under § 28-1206(3), discharge of
    a firearm near a vehicle under Neb. Rev. Stat. § 28-1212.04
    (Reissue 2016), attempted first degree assault under §§ 28-201
    and 28-308, and use of a firearm to commit a felony under
    § 28-1205(1). Pursuant to a plea agreement with the State,
    Chairez appeared with counsel and entered pleas of no con-
    test to the charges of possession of a firearm by a prohibited
    person, attempted first degree assault, and use of a firearm to
    commit a felony. In exchange for the pleas, the State agreed to
    dismiss the charge of discharge of a firearm near a vehicle. The
    State also agreed to not file additional charges in the matter or
    seek any habitual criminal enhancements, which would have
    exposed Chairez to several significant mandatory minimum
    sentences if he were convicted.
    During Chairez’ plea hearing, the district court judge and
    Chairez engaged in a thorough colloquy in assessing the
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    validity of his pleas. When questioned by the judge, he admit-
    ted, among other things, that (1) he had no difficulty under-
    standing the proceedings before him, (2) he understood that
    he was waiving his right to present witnesses in his case, (3)
    his attorney spoke to him and he understood the immigration
    consequences of his pleas and convictions, (4) his counsel
    was competent, and (5) his counsel did not refuse or fail to do
    anything Chairez asked of him throughout his representation
    during this case.
    Although an interpreter was present throughout the pro-
    ceeding, Chairez chose not to utilize the interpreter at all,
    immediately answering each question in English when asked
    in English by the judge. The judge further inquired regarding
    Chairez’ responding in English without the use of the inter-
    preter. Chairez indicated that when he answered in English, he
    was doing so because he understood and was comfortable com-
    municating with the judge in English. In an abundance of cau-
    tion, the judge encouraged Chairez to use the interpreter if he
    needed to as they continued through the proceedings. Chairez
    acknowledged the judge’s statement that interpretive service
    would continue to be available and then continued through the
    remainder of the proceedings using English.
    Based on the evidence presented and the answers provided
    by Chairez in the assessment of his pleas, the district court
    found that Chairez had entered his pleas freely, knowingly,
    voluntarily, and intelligently, and found Chairez guilty beyond
    a reasonable doubt on all charges in the amended information.
    After a subsequent sentencing hearing, the court sentenced
    Chairez to an aggregate sentence of 42 to 55 years in prison,
    with credit for 368 days served.
    Chairez appeals. He is represented by different counsel
    on appeal.
    III. ASSIGNMENTS OF ERROR
    Chairez assigns that the district court erred in affirming the
    county court’s excessive sentences. Chairez also assigns on
    appeal that he received ineffective assistance of trial counsel.
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    STATE v. CHAIREZ
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    IV. STANDARD OF REVIEW
    [1] Appellate review of a claim of ineffective assistance of
    counsel is a mixed question of law and fact.1 When review-
    ing a claim of ineffective assistance of counsel, an appellate
    court reviews the factual findings of the lower court for clear
    error.2 With regard to the questions of counsel’s performance
    or prejudice to the defendant as part of the two-pronged test
    articulated in Strickland v. Washington,3 an appellate court
    reviews such legal determinations independently of the lower
    court’s decision.4
    [2] 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.5
    [3] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.6
    V. ANALYSIS
    1. Ineffective Assistance of Counsel
    We first address Chairez’ arguments that he received inef-
    fective assistance of trial counsel. Chairez argues that his trial
    counsel was ineffective because counsel failed to (1) utilize an
    interpreter when meeting with Chairez; (2) investigate, collect
    evidence from, and meet with Chairez’ wife and mother, who
    allegedly had digital evidence to corroborate that Chairez had
    1
    State v. Filholm, 
    287 Neb. 763
    , 
    848 N.W.2d 571
    (2014).
    2
    
    Id. 3 Strickland
    v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
        (1984).
    4
    State v. Filholm, supra note 1.
    5
    State v. Mendez-Osorio, 
    297 Neb. 520
    , 
    900 N.W.2d 776
    (2017).
    6
    State v. Dixon, 
    286 Neb. 334
    , 
    837 N.W.2d 496
    (2013).
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    been recently threatened by members of a Mexican drug car-
    tel; and (3) file a motion to suppress Chairez’ statements made
    to state troopers when he was under the influence of meth-
    amphetamine. We find that the record is sufficient on direct
    appeal to address Chairez’ first two contentions. However, the
    record is insufficient to address his third claim.
    [4] When a defendant’s trial counsel is different from his or
    her counsel on direct appeal, the defendant must raise on direct
    appeal any issue of trial counsel’s ineffective performance
    which is known to the defendant or is apparent from the record,
    in order to preserve such claim.7 Once raised, the appellate
    court will determine whether the record on appeal is sufficient
    to review the merits of the ineffective performance claims.8
    [5] We have said that the fact that an ineffective assistance
    of counsel claim is raised on direct appeal does not necessarily
    mean that it can be resolved.9 This is because the trial record
    reviewed on appeal is generally “‘devoted to issues of guilt or
    innocence’” and does not usually address issues of counsel’s
    performance.10 The determining factor is whether the record is
    sufficient to adequately review the question.11 An ineffective
    assistance of counsel claim will not be addressed on direct
    appeal if it requires an evidentiary hearing.12
    If the record is sufficient to address the ineffective assist­
    ance of counsel claim, an appellate court reviews the factual
    findings of the lower court for clear error.13 With regard to the
    questions of counsel’s performance or prejudice to the defendant
    7
    See, State v. Abdullah, 
    289 Neb. 123
    , 
    853 N.W.2d 858
    (2014); State
    v. Williams, 
    259 Neb. 234
    , 
    609 N.W.2d 313
    (2000). See, also, State v.
    Filholm, supra note 1.
    8
    State v. Abdullah, supra note 7.
    9
    State v. Filholm, supra note 1.
    10
    
    Id. at 769,
    848 N.W.2d at 578.
    11
    State v. Filholm, supra note 1.
    12
    State v. Abdullah, supra note 7.
    13
    See State v. Filholm, supra note 1.
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    as part of the two-pronged test articulated in Strickland,14 an
    appellate court reviews such legal determinations indepen-
    dently of the lower court’s decision.15 To show deficient per-
    formance, a defendant must show that counsel’s performance
    did not equal that of a lawyer with ordinary training and skill
    in criminal law in the area.16 To show prejudice, the defendant
    must demonstrate a reasonable probability that but for coun-
    sel’s deficient performance, the result of the proceeding would
    have been different.17
    (a) Failure to Use Interpreter During
    Meetings With Trial Counsel
    First, Chairez argues that his trial counsel was ineffective
    because he neglected to utilize an interpreter when meet-
    ing with Chairez. He contends that although he speaks some
    English, his native language is Spanish. Chairez further con-
    tends that he did not understand many of the legal terms that
    his trial counsel used during their conferences prior to Chairez’
    pleas. In addition, Chairez argues that because of the lan-
    guage barrier, Chairez’ trial counsel failed to comprehend that
    Chairez was asking him to investigate a potential affirmative
    defense and Chairez was not properly advised as to the manda-
    tory minimum charges and immigration consequences of his
    crimes prior to entering his pleas.
    These assertions lack merit. During the plea colloquy,
    Chairez, answering in English, admitted that he had no dif-
    ficulty understanding the judge or the proceedings before him.
    He also admitted that the judge did not use any word or phrase
    that he did not understand throughout the colloquy. Chairez
    expressly acknowledged during the plea colloquy that his
    counsel did not neglect or refuse to do anything that Chairez
    requested him to do during counsel’s representation of Chairez.
    14
    Strickland v. Washington, supra note 3.
    15
    State v. Filholm, supra note 1.
    16
    State v. Vanderpool, 
    286 Neb. 111
    , 
    835 N.W.2d 52
    (2013).
    17
    
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    He further expressly acknowledged to the judge that his trial
    counsel performed competently and advised him of all of his
    rights, including his immigration consequences, as well as the
    mandatory minimum sentence requirements of his charges.
    Even further, the court advised Chairez of both the immigration
    consequences of his pleas, as well as the mandatory minimum
    sentences associated with Chairez’ charges.
    Throughout his plea hearing, Chairez clearly stated that
    counsel did not (1) act incompetently, (2) fail to investigate
    anything that Chairez requested of him, or (3) fail to properly
    advise Chairez as to the mandatory minimum charges and
    immigration consequences of his crimes prior to entering his
    pleas. Because these statements in the record affirmatively
    refute Chairez’ claim that his counsel’s performance did not
    equal that of a lawyer with ordinary training and skill in crimi-
    nal law in the area, we find trial counsel’s performance was
    not deficient for failing to utilize an interpreter during Chairez’
    attorney-client meetings. Chairez does not challenge the know-
    ingness and voluntariness of his admissions and responses dur-
    ing his colloquy with the district court. We conclude the record
    on direct appeal sufficiently shows that Chairez’ counsel’s fail-
    ure to utilize an interpreter during their meetings did not render
    counsel’s performance deficient.
    (b) Failure to Collect Evidence and
    Interview Exculpatory Witnesses
    Second, Chairez contends that trial counsel was ineffective
    because counsel failed to investigate, collect evidence from,
    and meet with exculpatory witnesses regarding an affirmative
    defense. Specifically, Chairez asserts that though he indicated
    to counsel that his wife and mother had digital evidence to cor-
    roborate that a recent threat on Chairez’ life had been made by
    a Mexican drug cartel, counsel failed to investigate this asser-
    tion and interview these witnesses as related to this affirma-
    tive defense. As a result, Chairez was prejudiced because this
    defense could have been used at trial or as a mitigating factor
    in sentencing to explain why he fired into the vehicle.
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    The record on appeal refutes this contention. As stated
    above, Chairez explicitly stated during his plea colloquy that
    he had told his attorney everything he knew about the cases,
    there was nothing that could help him in connection with the
    case that he had not shared with his attorney, he was satisfied
    with the job of his counsel, and there was nothing that Chairez
    asked him to do that counsel failed or refused to do. Again,
    Chairez does not challenge the knowingness and voluntariness
    of his responses in his plea colloquy. Based on his admis-
    sion that counsel did not neglect or refuse to do anything that
    Chairez asked of him, we must find that Chairez’ counsel was
    not ineffective, because based on Chairez’ clear and unchal-
    lenged admissions in the record, his counsel’s performance was
    not deficient as a matter of law.
    (c) Failure to File Motion to Suppress
    Lastly, Chairez argues that trial counsel was ineffective
    by failing to file a motion to suppress his statements made
    to state troopers. Chairez contends that his Miranda waiver
    was involuntarily made because he was under the influence
    of methamphetamine at the time and that he had informed
    counsel of that fact. The State concedes that the record is not
    sufficient to make a determination on this claim. The record
    on appeal provides no indication of the circumstances and
    facts surrounding Chairez’ Miranda waiver on the day of his
    arrest. Nor is the record indicative of any potential trial strat-
    egy utilized by trial counsel by rejecting to file a motion to
    suppress Chairez’ statements to the state troopers on the day
    of his arrest. In similar circumstances, we have found the trial
    record insufficient to determine the merits of a claim on direct
    appeal that counsel was ineffective for failing to file a motion
    to suppress.18 We find that the record is insufficient to make
    18
    See, State v. Wabashaw, 
    274 Neb. 394
    , 
    740 N.W.2d 583
    (2007); State v.
    Dawn, 
    246 Neb. 384
    , 
    519 N.W.2d 249
    (1994); State v. Balvin, 18 Neb.
    App. 690, 
    791 N.W.2d 352
    (2010); State v. Heslep, 
    17 Neb. Ct. App. 236
    ,
    
    757 N.W.2d 386
    (2008); State v. Greer, 
    7 Neb. Ct. App. 770
    , 
    586 N.W.2d 654
         (1998).
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    a determination as to whether trial counsel was ineffective for
    failing to file a motion to suppress.
    2. Excessive Sentences
    We turn next to Chairez’ contention that the district court
    erred by imposing excessive sentences. When a trial court’s
    sentence is within the statutory guidelines, the sentence will be
    disturbed by an appellate court only when an abuse of discre-
    tion is shown.19
    Chairez admits that the sentences he received were within
    the statutory limits. Therefore, Chairez’ sentences will be dis-
    turbed only upon a finding of abuse of discretion. An abuse of
    discretion occurs when a trial court’s decision is based upon
    reasons that are untenable or unreasonable or if its action is
    clearly against justice or conscience, reason, and evidence.20
    [6] Chairez argues that the court abused its discretion
    because it failed to fashion sentences that fit Chairez, “given
    [his] history, character, and condition.”21 When imposing a
    sentence, a sentencing judge should consider the defendant’s
    (1) age, (2) mentality, (3) education and experience, (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 violence
    involved in the commission of the crime.22 The appropriateness
    of a sentence is necessarily a subjective judgment and includes
    the sentencing judge’s observation of the defendant’s demeanor
    and attitude and all the facts and circumstances surrounding the
    defendant’s life.23
    Based on the record before us, the sentencing court did
    not consider any inappropriate or unreasonable factors in
    19
    State v. Huff, 
    282 Neb. 78
    , 
    802 N.W.2d 77
    (2011).
    20
    State v. Collins, 
    292 Neb. 602
    , 
    873 N.W.2d 657
    (2016).
    21
    Brief for appellant at 15.
    22
    State v. Huff, supra note 19.
    23
    State v. Custer, 
    292 Neb. 88
    , 
    871 N.W.2d 243
    (2015).
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    determining the sentences. The presentence investigation
    revealed that Chairez had a “troubling, violent criminal his-
    tory,” including charges of attempted murder, murder, and
    kidnapping. We find that the court did not make its decision
    based upon reasons that are untenable or unreasonable, nor
    was its action clearly against justice or conscience, reason,
    and evidence.
    VI. CONCLUSION
    For the foregoing reasons, we find that Chairez’ ineffec-
    tive assistance of counsel assertions regarding his counsel’s
    failure to utilize an interpreter when meeting with Chairez and
    counsel’s failure to investigate, collect evidence, and interview
    witnesses are meritless. However, we find that the record is
    insufficient to address whether Chairez’ assistance of trial
    counsel was ineffective for failing to file a motion to suppress
    regarding Chairez’ statements. Lastly, we find that the district
    court did not abuse its discretion when sentencing Chairez.
    Therefore, we affirm the decision of the district court.
    A ffirmed.