State v. Diego-Antonio ( 2018 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. DIEGO-ANTONIO
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
PEDRO DIEGO-ANTONIO, APPELLANT.
Filed December 18, 2018. No. A-17-817.
Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge.
Affirmed.
Pedro Diego-Antonio, pro se.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.
PIRTLE, BISHOP, and ARTERBURN, Judges.
ARTERBURN, Judge.
I. INTRODUCTION
Pedro Diego-Antonio appeals the district court for Douglas County’s denial of his motion
for postconviction relief without an evidentiary hearing. On appeal, Diego-Antonio contends the
district court erred in failing to grant him postconviction relief because his guilty plea was
involuntary, his trial and appellate counsel was ineffective, the statute under which he was
convicted is unconstitutional, and he was entitled to the appointment of counsel for postconviction
proceedings. For the reasons that follow, we affirm the decision of the district court.
II. BACKGROUND
On June 22, 2014, Diego-Antonio was driving a motor vehicle near the intersection of 38th
and Dodge Streets in Omaha, Nebraska. As Edward Horowitz, M.D., crossed the street in a
crosswalk with the correct traffic control signal, Diego-Antonio drove through the intersection.
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Diego-Antonio hit Horowitz with his automobile, causing Horowitz to become airborne and hit a
moving van before landing. Diego-Antonio left the scene but was located a short time later.
Officers who located Diego-Antonio said he exhibited signs of intoxication and
impairment. Later testing revealed that Diego-Antonio’s blood alcohol content (BAC) was .246.
After officers advised Diego-Antonio of his rights, he stated that he was driving the vehicle that
struck a person in the crosswalk near the intersection of 38th and Dodge Streets. An autopsy
showed that Horowitz died as the result of massive blunt force trauma attributable to the traffic
collision.
Diego-Antonio was charged with motor vehicle homicide with prior driving under the
influence (DUI) conviction, a Class II felony. At the plea hearing on February 25, 2015,
Diego-Antonio stated that he had received a second-grade education in Guatemala, his native
home. In his brief, Diego-Antonio stated that Q’anjob’al is his first language and that Spanish is
his second language. At all times during both the plea hearing and sentencing, a Spanish interpreter
was present for Diego-Antonio.
During the plea hearing, the State offered for enhancement purposes a certified document
from the Douglas County Court that showed Diego-Antonio had been convicted of aggravated
driving under the influence in 2011 under a City of Omaha ordinance for which he was sentenced
to 9 months’ probation. He entered a plea of guilty to the current charge, and the court advised him
of those rights that he would forfeit by entering a guilty plea. The State provided a sufficient factual
basis. The court was satisfied that Diego-Antonio entered his plea freely, knowingly, intelligently,
and voluntarily. Thus, the court found Diego-Antonio guilty of motor vehicle homicide and
ordered that a presentence investigation be conducted before sentencing.
Sentencing occurred on April 22, 2015. During sentencing, one of Horowitz’ brothers read
a victim impact statement to the court. Diego-Antonio spoke as well, asking for forgiveness from
the court and Horowitz’ family. The court found that while Diego-Antonio at times accepted
responsibility for his actions, he also placed blame on alcohol and had not changed his behavior
after his first DUI conviction. After reviewing the presentence investigation report (PSR) and
considering the seriousness of the offense and the possibility of Diego-Antonio’s rehabilitation,
the court sentenced him to 35 to 40 years’ imprisonment and gave him credit for 305 days of time
served.
Diego-Antonio appealed, alleging only that his sentence was excessive. Diego-Antonio’s
counsel was the same at trial and on direct appeal. In response to Diego-Antonio’s appeal, the State
moved for summary affirmance, which this court granted on September 1, 2015.
On August 1, 2016, Diego-Antonio moved for postconviction relief, requested an
evidentiary hearing, and further requested that counsel be appointed to represent him. In his motion
for postconviction relief, Diego-Antonio argued first, that his plea was not made freely, knowingly,
intelligently, and understandingly due to a conflict between the information and the plea hearing
as to whether he was pleading to DUI or motor vehicle homicide; second, that his counsel provided
ineffective assistance for myriad reasons; and third, that Neb. Rev. Stat. § 28-306 (Reissue 2016)
is unconstitutional as applied to his conviction because his prior 2011 DUI conviction under the
Omaha municipal code is not a valid prior conviction.
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The district court denied Diego-Antonio’s motion for postconviction relief without an
evidentiary hearing and without appointing counsel. Although the court examined a few of
Diego-Antonio’s specific arguments related to ineffective assistance of counsel, it noted that he
failed to set forth any facts related to prejudice and that his ineffective assistance of counsel claim
therefore warranted dismissal. The district court also found that Diego-Antonio’s arguments
related to his plea were “simply untrue, inaccurate and . . . not supported by the official court
record.” Thus, after finding Diego-Antonio presented no justiciable issues for postconviction
relief, the district court denied his request for the appointment of counsel and denied his motion
for postconviction relief without an evidentiary hearing.
Diego-Antonio now appeals.
III. ASSIGNMENTS OF ERROR
Diego-Antonio assigns, restated, that the district court erred in finding no merit in his
claims (1) that his guilty plea was involuntary, (2) that his trial and appellate counsel was
ineffective, and (3) that § 28-306(3)(c) is unconstitutional, and erred in denying his motion for
postconviction relief without an evidentiary hearing or the appointment of counsel.
IV. STANDARDS OF REVIEW
In appeals from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirmatively show that the defendant is
entitled to no relief. State v. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018).
Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law. State v. Ross, 296 Neb. 923, 899 N.W.2d 209 (2017). When reviewing a question of law,
an appellate court resolves the question independently of the lower court’s conclusion. Id.We review the failure of the district court to provide court-appointed counsel in a
postconviction proceeding for an abuse of discretion. State v. Taylor, 300 Neb. 629, 915 N.W.2d
568 (2018).
V. ANALYSIS
Postconviction relief is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or her constitutional rights
such that the judgment was void or voidable. State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017).
Thus, in a motion for postconviction relief, the defendant must allege facts which, if proved,
constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing
the judgment against the defendant to be void or voidable. Id.Relief under the Nebraska Postconviction Act is a very narrow category of relief. State v.
Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). In a postconviction proceeding, an evidentiary
hearing is not required when (1) the motion does not contain factual allegations which, if proved,
constitute an infringement of the movant’s constitutional rights; (2) the motion alleges only
conclusions of fact or law; or (3) the records and files affirmatively show that the defendant is
entitled to no relief. Id.-3-
Notably, a petition for postconviction relief is not merely a second direct appeal. “It is well
established that a petition for postconviction relief may not be used to obtain review of issues that
were or could have been reviewed on direct appeal. Any attempts to raise issues at the
postconviction stage that were or could have been raised on direct appeal are procedurally barred.”
State v. Dubray, 294 Neb. 937, 949, 885 N.W.2d 540, 552 (2016).
1. ENTRY OF GUILTY PLEA
In this postconviction appeal, Diego-Antonio first contends that his guilty plea was
involuntary, invalid, void, or voidable and obtained in violation of various constitutional
protections. Diego-Antonio did not raise these claims in his direct appeal, and he does not phrase
this error in terms of ineffective assistance of counsel. The State, like the district court, notes that
Diego-Antonio could have, but did not, raise these issues in his direct appeal, which renders them
procedurally barred for purposes of the present action. See State v. Dubray, supra. We agree and
thus find that the district court did not err when it denied these procedurally barred claims without
an evidentiary hearing
2. INEFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defen[s]e.” The right to counsel has been interpreted to include the right to effective counsel. State
v. Dubray, supra. Under the standard 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), claims of ineffective
assistance of counsel by criminal defendants are evaluated using a two-prong analysis: first,
whether counsel’s performance was deficient, and second, whether the deficient performance was
of such a serious nature so as to deprive the defendant of a fair trial. State v. Dubray, supra.In order to establish a right to postconviction relief based on a claim of ineffective
assistance of counsel at trial or on direct appeal, the defendant has the burden, in accordance with
Strickland v. Washington, supra, to show that counsel’s performance was deficient; that is,
counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal
law in the area. State v. Lopez, 274 Neb. 756, 743 N.W.2d 351 (2008). Next, the defendant must
show that counsel’s deficient performance prejudiced the defense in his or her case. Id. In order to
show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have been different. Id.In determining whether a trial counsel’s performance was deficient, there is a strong
presumption that counsel acted reasonably. State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).
An appellate court gives due deference to defense counsel’s discretion in formulating trial tactics.
Id. Although a motion for postconviction relief cannot be used to secure review of issues which
were or could have been litigated on direct appeal, when a defendant was represented both at trial
and on direct appeal by the same lawyer, the defendant’s first opportunity to assert ineffective
assistance of counsel is in a motion for postconviction relief. State v. Allen, supra.-4-
(a) Failure to Object to Entry of Guilty Plea
Diego-Antonio contends that his attorney and the district court failed to inform him of the
charge he faced and its elements in a manner that he could comprehend due to his second-grade
education, illiteracy, and inability to understand the Spanish language. However, in his motion for
postconviction relief, he stated only generally that he was not advised or informed of the charge in
a manner he could comprehend. In a separate unrelated portion of his motion, he does recite that
Spanish is not his first language but only asserts that he is unable to read, speak, and write English.
When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as
a lower court cannot commit error in resolving an issue never presented and submitted to it for
disposition. State v. Davlin, 265 Neb. 386, 658 N.W.2d 1 (2003). Thus, we disregard
Diego-Antonio’s specific contentions regarding his level of education, literacy, and linguistic
aptitude--and we examine only whether counsel was ineffective because she did not assure that
Diego-Antonio comprehended the offense to which he entered his guilty plea.
With respect to this argument, we agree with the district court, which pointed out in its
order that Diego-Antonio’s “representations are simply . . . not supported by the official court
record.” The record before us contains the plea colloquy that occurred on February 25, 2015, at
which an interpreter appeared for Diego-Antonio’s benefit. The record shows that Diego-Antonio
properly responded to the district court judge’s numerous questions, indicating his ability to
comprehend--albeit through a court interpreter--the proceedings that occurred.
In his brief on appeal, Diego-Antonio states that he believed the crime to which he pled
was “a class I misdemeanor punishable by a maximum of one year imprisonment, or one thousand
dollars fine, or both and a minimum of none.” Brief for appellant at 16. The record clearly
contradicts this argument. The word “misdemeanor” was never used on the record during the plea
colloquy. Moreover, on the record, the district court advised Diego-Antonio as follows: “the
maximum possible penalty for this charge is 50 years imprisonment and the minimum is one year.
In addition, the Court - part of the sentence could be that your driver’s license be revoked for a
period of 15 years.” When asked, Diego-Antonio confirmed that he understood the possible
penalties.
Based on the foregoing, Diego-Antonio has failed to demonstrate that counsel’s
performance was deficient with respect to his entry of a guilty plea. The record shows no reason
that Diego-Antonio’s counsel, or another lawyer with ordinary training and skill in criminal law,
would have determined Diego-Antonio did not comprehend the charge to which he pled guilty. As
such, we find that the district court did not err in denying Diego-Antonio’s claim without an
evidentiary hearing.
(b) Failure to Withdraw Plea
Diego-Antonio next contends his counsel was ineffective because she did not move to
withdraw his guilty plea. In support of this proposition, Diego-Antonio merely restates much of
his above claim that his plea was to a crime he did not comprehend. We found above that the
record does not support Diego-Antonio’s claim that he failed to comprehend the charge to which
he pled or the ramifications of his entering a guilty plea. The record reflects that Diego-Antonio
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willingly and knowingly entered a guilty plea. Thus, we find that the district court did not err in
denying Diego-Antonio’s claim without an evidentiary hearing.
(c) Ineffective Assistance of Appellate Counsel
Diego-Antonio next argues that his appellate counsel ought to have “argued on appeal that
the district court erred and abused its discretion by allowing [Diego-Antonio] to withdraw his not
guilty plea and enter a plea of guilty without just reason.” Brief for appellant at 18. Diego-Antonio
contends that his “sudden change of plea without receiving any benefit should have raised red
flags.” Id. Absent evidence of coercion or other impropriety, a defendant’s decision to change his
plea rarely raises red flags. See State v. Ditter, 232 Neb. 600, 441 N.W.2d 622 (1989). Moreover,
the district court accepted Diego-Antonio’s guilty plea only after an appropriate plea colloquy. See
State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).
There would be no merit in assigning error on appeal that the district court abused its
discretion in accepting Diego-Antonio’s guilty plea. Counsel cannot be ineffective for failing to
raise meritless claims. As a matter of law, counsel cannot be ineffective for failing to raise a
meritless argument. State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017). Diego-Antonio’s
appellate counsel did not perform deficiently in not assigning error to the district court’s
acceptance of his change of plea. Thus, we find that the district court did not err when it denied
this claim without an evidentiary hearing.
(d) Intoxication Defense
Diego-Antonio next argues that his counsel was ineffective for not advising him that
intoxication was a defense to motor vehicle homicide. Intoxication is not a defense to the charge
Diego-Antonio faced, however, and thus his counsel did not perform deficiently in this regard. As
codified in 2011, intoxication is ordinarily not a defense to criminal responsibility:
A person who is intoxicated is criminally responsible for his or her conduct. Intoxication
is not a defense to any criminal offense and shall not be taken into consideration in
determining the existence of a mental state that is an element of the criminal offense unless
the defendant proves, by clear and convincing evidence, that he or she did not (1) know
that it was an intoxicating substance when he or she ingested, inhaled, injected, or absorbed
the substance causing the intoxication or (2) ingest, inhale, inject, or absorb the intoxicating
substance voluntarily.
Neb. Rev. Stat. § 29-122 (Reissue 2016). The record shows that Diego-Antonio admitted to
drinking approximately 20 beers before the accident, and his BAC was .246 when he was tested
shortly after the accident. Diego-Antonio never argued that he was unaware that beer is an
intoxicating substance, and he acknowledged freely ingesting it. His knowing and voluntary
intoxication is well documented in the record.
Moreover, § 28-306(3)(c) provides that motor vehicle homicide is a Class II felony if the
proximate cause of the death of another is the operation of a motor vehicle by one who is under
the influence of alcohol in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010). Intoxication is
therefore made part of the crime and not a defense to the crime. Based on the foregoing, we find
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that the district court did not error in failing to grant an evidentiary hearing for Diego-Antonio’s
claim.
(e) Prior Conviction
Diego-Antonio next asserts that his counsel was ineffective for failing to challenge the use
of his 2011 DUI conviction to enhance the present conviction. Exhibit 4, which was included in
the record presented for our review, shows that Diego-Antonio pled no contest and was found
guilty of first-offense DUI on November 3, 2011. He was sentenced to serve 9 months’ probation
and 120 hours’ community service, which he successfully completed and was discharged
therefrom on July 25, 2012. Diego-Antonio lists seven specific points supporting his proposition
that his 2011 conviction cannot enhance the present conviction. These seven points can be
regrouped into arguments that a conviction under a city ordinance cannot enhance a conviction
under § 28-306 and arguments that are collateral attacks on his 2011 conviction. Neither line of
argument has merit.
Section 28-306(3)(c) specifically provides that motor vehicle homicide is a Class II felony
if the proximate cause of the death of another is the operation of a motor vehicle by one who is
under the influence of alcohol in violation of § 60-6,196 and “if the defendant has a prior
conviction for a violation . . . under a city or village ordinance.” (Emphasis added.) Thus,
Diego-Antonio’s arguments that his 2011 conviction under a city ordinance cannot now be used
to enhance the present offense flies in the face of our relevant law.
Collateral attacks on previous DUI convictions are impermissible unless the challenge is
grounded upon the court’s lack of jurisdiction over the parties or subject matter or entail a violation
of the defendant’s due process rights to appeal or rights to counsel in violation of the Sixth
Amendment. State v. Anderson, 279 Neb. 631, 781 N.W.2d 55 (2010). Diego-Antonio’s arguments
are primarily collateral attacks regarding the voluntariness of his 2011 plea and thus are not based
on the court’s lack of jurisdiction or violations of his due process rights to appeal or to counsel.
Moreover, our record reflects that Diego-Antonio was represented by counsel during the 2011
proceedings. He unsuccessfully appealed his 2011 conviction and was represented by counsel
during that appeal as well. Accordingly, his collateral attacks of his 2011 conviction are
impermissible. Therefore, we find that the district court did not err in failing to grant an evidentiary
hearing for this claim.
(f) Plea Bargain
Diego-Antonio contends that his counsel provided ineffective assistance because she did
not secure a beneficial plea bargain. In his brief on appeal, Diego-Antonio makes only a bare
assertion that his counsel was ineffective for not securing him some benefit in exchange for his
guilty plea. He articulates no facts indicating how counsel may have secured a benefit in exchange
for his plea or what that benefit may have been. Moreover, he does not contend that he would not
have entered the plea but for counsel’s ineffectiveness. Diego-Antonio merely argues that the lack
of a benefit received in exchange for his guilty plea must mean that his counsel was ineffective
somehow.
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To show prejudice when the alleged ineffective assistance relates to the entry of a plea, the
defendant must show that there is a reasonable probability that, but for counsel’s errors, he or she
would not have entered the plea and would have insisted on going to trial. State v. Crawford, 291
Neb. 362, 865 N.W.2d 360 (2015). Because Diego-Antonio fails to show or even allege prejudice,
his claim that counsel was ineffective because she did not secure a beneficial plea bargain fails.
Accordingly, we find that the district court did not err in failing to grant an evidentiary hearing for
this claim.
(g) Suppression Under Vienna Convention on Consular Relations
Diego-Antonio next argues that his counsel was ineffective because she did not file a
motion to suppress based on alleged violations of the Vienna Convention on Consular Relations.
Ignoring that Diego-Antonio provides no evidence that he is a foreign national to whom the Vienna
Convention on Consular Relations provides certain rights, suppression is not a proper remedy for
a violation of the Vienna Convention on Consular Relations. See Sanchez-Llamas v. Oregon, 548
U.S. 331, 126 S. Ct. 2669, 165 L. Ed. 2d 557 (2006). Because suppression is not a proper remedy
for violations of the Vienna Convention on Consular Relations, there would have been no merit in
Diego-Antonio’s counsel filing such a motion to suppress. As a matter of law, counsel cannot be
ineffective for failing to raise a meritless argument. State v. Williams, supra. Therefore, we find
that the district court did not err in failing to grant an evidentiary hearing for this claim.
(h) Expert Witness on Intoxication
Diego-Antonio alleges that his counsel provided ineffective assistance because she did not
offer during a pretrial motion to suppress the testimony of an expert witness on intoxication and
its effects. Diego-Antonio says the expert witness could have testified that he was so intoxicated
as to be unable to understand the meaning or incriminating effect of the statements he made to
officers.
In assessing postconviction claims of ineffective assistance of counsel for failure to call a
particular witness, our courts have upheld the dismissal without an evidentiary hearing where the
motion did not include specific allegations regarding the testimony which the witness would have
given if called. State v. Dubray, supra. A claim must include more than mere conclusory
allegations. An appellant must allege sufficient facts which, if proved, would establish a reasonable
probability that the outcome of his case would have been different if his trial counsel had called or
interviewed the witnesses he mentions. See State v. Marks, 286 Neb. 166, 835 N.W.2d 656 (2013).
In his brief on appeal, Diego-Antonio does not state with specificity what expert witness
ought to have been called during the hearing on his motion to suppress. He does not name a
particular expert. He does not state the particular testimony that such expert would offer. He does
not establish a reasonable probability that the outcome of the hearing on his motion to suppress
would have been different if an expert were called to testify on his behalf. Because Diego-Antonio
makes no specific allegations regarding his claim that his counsel was ineffective for failing to call
an expert witness, we find that the district court did not err in failing to grant an evidentiary hearing
for this claim.
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(i) Failure to Investigate
Diego-Antonio next argues that his counsel provided ineffective assistance because she
failed to investigate. Primarily, he argues that his counsel ought to have deposed the moving van
driver and investigated the traffic signals at the time of the accident. The crux of Diego-Antonio’s
argument is that a complete investigation would have revealed his conduct to not be the cause of
Horowitz’ death. As the State notes, Diego-Antonio omits a showing of prejudice related to this
claim. Without taking responsibility for the omission, Diego-Antonio appears to admit that he fails
to show prejudice related to this claim: “In the case at hand, any evidence of counsel’s deficiency
that resulted in prejudice is missing from the record precisely because of the incompetence of
counsel.” Brief for appellant at 40-41. We agree that prejudice was not--and cannot--be shown in
relation to this claim because Diego-Antonio’s conduct is unquestionably the proximate cause of
Horowitz’ death.
Criminal conduct is a proximate cause of the event if the event in question would not have
occurred but for that conduct. State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016). A “proximate
cause” is a moving or effective cause or fault which, in the natural and continuous sequence,
unbroken by an efficient intervening cause, produces a death or injury and without which the death
or injury would not have occurred. Id. Three basic requirements must be met in establishing
proximate cause: (1) that without the misconduct, the injury would not have occurred, commonly
known as the “but for” rule; (2) that the injury was a natural and probable result of the misconduct;
and (3) that there was no efficient intervening cause. Id.Regardless of the results of investigating the other driver or the state of the traffic signals
just before the accident occurred, Diego-Antonio’s act of driving under the influence would remain
the proximate cause of Horowitz’ death. Thus, Diego-Antonio is unable to show how he was
prejudicially affected by this lack of investigation. We therefore find that the district court did not
err in failing to grant an evidentiary hearing for this claim.
(j) Sentencing
Diego-Antonio next argues that his appellate counsel was ineffective because she failed to
argue on appeal that the district court erred in not considering all relevant sentencing factors.
Specifically, Diego-Antonio contends that the district court ignored his age, mentality, education,
and social and cultural background. Diego-Antonio acknowledges that his appellate counsel
assigned as error and argued that his sentence was excessive.
We note that Diego-Antonio’s direct appeal assigned the district court erred in imposing
an excessive sentence. At that time, we thoroughly reviewed the record, including the district
court’s consideration of relevant sentencing factors, and summarily affirmed Diego-Antonio’s
sentence.
A basic tenet of Nebraska law provides that an appellant has the responsibility of including
within the bill of exceptions matters from the record which the party believes are material to the
issues presented for review. Neb. Rev. Stat. § 25-1140 (Reissue 2016); State v. Saylor, 294 Neb.
492, 883 N.W.2d 334 (2016). Because a bill of exceptions is the only manner of presenting
evidence to an appellate court, evidence cited but not included within the bill of exceptions may
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not be considered. State v. Saylor, supra. Without the benefit of a proper record, errors cannot be
considered. Id.The bill of exceptions presented to us does not include a copy of Diego-Antonio’s brief on
direct appeal. Thus, we cannot determine the facial veracity of Diego-Antonio’s claim that counsel
failed to argue on appeal that the district court erred in not considering all relevant sentencing
factors. Without making that initial determination, we certainly cannot move on to evaluate the
merits of Diego-Antonio’s argument. In the absence of a proper record, we will not consider this
assigned error.
3. CONSTITUTIONALITY OF § 28-306(3)(c)
Diego-Antonio argues that § 28-306(1)(3)(c) is unconstitutional, but it appears he meant
§ 28-306(3)(c) as the former does not actually exist. Notably, Diego-Antonio does not assert this
argument in the vein of ineffective assistance of counsel. This argument could have been raised in
Diego-Antonio’s direct appeal, but it was not. Thus, it is now procedurally barred, and we will not
consider it. “It is well established that a petition for postconviction relief may not be used to obtain
review of issues that were or could have been reviewed on direct appeal. Any attempts to raise
issues at the postconviction stage that were or could have been raised on direct appeal are
procedurally barred.” State v. Dubray, 294 Neb. 937, 949, 885 N.W.2d 540, 552 (2016).
4. DENIAL OF REQUEST FOR APPOINTMENT OF POSTCONVICTION COUNSEL
Diego-Antonio’s final argument is that the district court erred by denying his request for
appointment of counsel to represent him in the postconviction proceedings. There is no federal or
state constitutional right to an attorney in a state postconviction proceeding. State v. Custer, 298
Neb. 279, 903 N.W.2d 911 (2017). Whether counsel is to be appointed in postconviction relief
proceedings is discretionary with the trial court. Neb. Rev. Stat. § 29-3004 (Reissue 2016). Where
the assigned errors in the postconviction petition before the district court are either procedurally
barred or without merit, establishing that the postconviction action contained no justiciable issue
of law or fact, it is not an abuse of discretion to fail to appoint appellate counsel for an indigent
defendant. State v. Custer, supra. Having determined that Diego-Antonio’s motion for
postconviction relief presented no justiciable issues, the district court did not abuse its discretion
in denying Diego-Antonio’s motion for appointment of counsel.
VI. CONCLUSION
For the reasons discussed above, we affirm the judgment of the district court dismissing
Diego-Antonio’s motion for postconviction relief without an evidentiary hearing and denying his
request for postconviction counsel.
AFFIRMED.
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