State v. Chilen ( 2014 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
STATE V. CHILEN
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.
ALLEN D. CHILEN, APPELLANT.
Filed September 16, 2014. No. A-13-1099.
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and Shawn Elliott for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
IRWIN, MOORE, and PIRTLE, Judges.
MOORE, Judge.
I. INTRODUCTION
Allen D. Chilen appeals from his conviction following a jury trial in the district court for
Lancaster County for first degree assault and driving during revocation. The court sentenced
Chilen to prison for 10 to 15 years’ imprisonment for the assault conviction and to a consecutive
sentence of 1 to 3 years’ imprisonment for the driving during revocation conviction. On appeal,
Chilen assigns error to the court’s failure to sever the two charges for trial, to declare a mistrial,
and to direct a verdict on the assault charge. He also asserts that the court imposed excessive
sentences and that he was denied effective assistance of trial counsel in various regards. We find
no abuse of discretion in the district court’s decisions with regard to the motion to sever the
charges, the motion for mistrial, the motion for directed verdict on the assault charge, and with
respect to the sentences imposed. Because the record is insufficient to review Chilen’s
allegations of ineffective assistance of counsel, we do not reach those claims in this direct
appeal.
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II. BACKGROUND
1. INFORMATION AND PRETRIAL PROCEEDINGS
On Ju1y 3, 2013, the State filed an information in the district court, charging Chilen with
first degree assault in violation of Neb. Rev. Stat. § 28-308 (Cum. Supp. 2012), a Class II felony,
and driving during revocation, first offense, in violation of Neb. Rev. Stat. § 60-6,197.06
(Reissue 2010), a Class IV felony. Specifically, the State alleged that on or about April 28, 2013,
Chilen intentionally or knowingly caused serious bodily injury to John Card and operated a
motor vehicle while his operator’s license had been revoked.
On October 9, 2013, Chilen orally moved to sever the two counts for trial, asserting
unfair prejudice would result if the charges were tried together. The State argued that the two
charges were properly joined as they were factually interconnected. The court denied Chilen’s
motion, finding that the res gestae of the crimes were sufficiently interlinked and that there
would not be any unfair prejudice in having the jury consider both charges.
On October 15, 2013, prior to the start of trial, the district court held a Jackson v. Denno
hearing regarding Chilen’s statement to the police. See Jackson v. Denno, 378 U.S. 368, 84 S.
Ct. 1774, 12 L. Ed. 2d 908 (1964). The State presented testimony from Sgt. Philip Lang of the
Lancaster County Sheriff’s Department. Lang testified about his involvement in the arrest and
subsequent police interview of Chilen. Following Lang’s testimony, the court reserved ruling
until the second officer who interviewed Chilen was available to testify. Near the end of the trial,
the Jackson v. Denno hearing resumed with testimony from Officer Curtis Reha of the Lancaster
County Sheriff’s Department. Reha was present when Chilen was arrested, and he transported
Chilen to the sheriff’s office. Reha testified that no threat, promise, or coercion was used to get
Chilen to talk to police during the transport. At the sheriff’s office, Reha advised Chilen of his
Miranda rights. Reha testified that he made no threats or promises to get Chilen to sign the
waiver form and that Chilen’s responses during the advisement seemed appropriate. The court
received the Miranda form signed by Chilen and a DVD of the police interview into evidence.
The court found that Chilen’s statements to the police were made freely, voluntarily, knowingly,
and intelligently.
Also, prior to the start of trial and prior to the district court’s ruling on the Jackson v.
Denno hearing, Chilen’s counsel made two oral motions in limine in the event the court ruled
that Chilen’s statement to police was admissible. Chilen’s counsel objected to a reference in the
police interview to a hearsay statement from “a guy named Chuck” and objected to a reference to
Chilen’s child support obligation as not relevant and unfairly prejudicial. The court sustained the
motions in limine. Later, during the trial, the prosecutor informed the court that the video of the
interview had been redacted pursuant to the court’s order, and Chilen’s counsel stated that he
was satisfied with the redaction.
2. JURY TRIAL
A jury trial was held before the district court on October 15 through 18, 2013. The court
heard testimony from various witnesses, including Chilen and Card, and received exhibits,
including numerous photographs of the crime scene and Card’s injuries and a DVD of Chilen’s
police interview.
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(a) Undisputed Events of
April 27 and 28, 2013
Chilen and Card both testified about the events in question and their testimony reflects
certain undisputed facts with respect to what happened on April 27 and 28, 2013. Chilen and
Card are stepbrothers, and at that time, they lived together in a trailer home in Martell, Nebraska.
Chilen and Card also worked together in construction. Card is 10 years older than Chilen, and at
the time of the assault, Card weighed substantially less than Chilen.
On Saturday, April 27, 2013, Chilen and Card worked on a garage in Crete, Nebraska.
They left the worksite together at approximately 3 p.m. and returned to the trailer in Martell,
where they drank some beer. Eventually, they went to an individual’s house in Lincoln,
Nebraska, where both Chilen and Card smoked “K2.”
After leaving Lincoln, Chilen and Card stopped at CJ’s Paintball. At some point, Card
drove away from CJ’s Paintball, leaving Chilen behind, and returned to the trailer. From this
point in the evening onward, Chilen’s and Card’s recitation of events differs.
(b) Card’s Testimony
Card’s testimony reflects that Chilen drove them to and from work on April 27, 2013,
and continued to drive up until Card took the vehicle and left Chilen behind at CJ’s Paintball.
With respect to the assault, Card testified that after leaving Chilen behind at CJ’s
Paintball and returning to the trailer, he fell asleep in the living room on a couch that he used as a
bed. The next thing Card remembers is waking to find Chilen on top of him, hitting him in the
face. Card testified that Chilen struck him more than once with a closed fist, but he could not
remember how many times Chilen struck him while they were on the couch. Card testified that
Chilen also kicked or kneed him in the groin. Card was sheltering his face and never had a
chance to hit Chilen. According to Card, Chilen was angry because Card “stole [his] Blazer” in
front of his friends and called him “a bitch” all the time. Card remembers sitting up on the couch
and noticing that his nose was bleeding and that a lot of hair had been pulled from his head.
Because his nose was bleeding, Card left the couch and went into the bathroom, but
Chilen followed him. According to Card, Chilen then tried to shove him into the shower, but
because Card resisted, he ended up seated on the toilet. Chilen grabbed Card by the hair with one
hand and continued to hit Card, ripping out more hair and striking him at least 15 times on his
face and head. Chilen also kicked or kneed him again. Chilen kept asking, “[A]m I your bitch
now, am I your bitch?”
According to Card, the entire assault lasted approximately 20 to 30 minutes. He testified
that the portion of the assault that took place in the bathroom lasted about 10 minutes and ended
when one of Chilen’s dogs bit Chilen, at which point, Chilen grabbed the dog and started kicking
it. Chilen then returned to the bathroom and took some pictures of Card with his cell phone.
When Card left the bathroom, he looked for Chilen and noticed that the vehicle Chilen had been
driving earlier was gone. Card left the trailer around midnight, went to the nearby home of his
niece, and asked her to dial the 911 emergency dispatch service. Card testified that he was in a
lot of pain, had blood all over his face, and was having difficulty breathing. After law
enforcement and medical personnel arrived, Card was taken to a hospital in Lincoln.
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(c) Medical Evidence
Dr. Reginald Burton testified when Card was brought to the emergency room on April
28, 2013, he was evaluated with a CAT scan of his head, cervical spine, and facial bones. The
medical testing showed fractures of Card’s nasal bones, maxilla (cheekbone), pterygoid bone
(bone behind the cheekbone), and left mandible (jawbone). Subsequent followup x rays showed
a fracture of Card’s pelvis. Card also suffered multiple contusions and scrapes. Medica1 testing
did not establish any fracture of Card’s ribs, but Burton testified that Card had some bruising of
the chest wall or “clinical rib fractures,” which are often too small to show up on x rays. Burton
testified that fractures to nasal bones and cheekbones can result in breathing and sinus problems.
According to Burton, because of its location, significant force would have been required to
fracture Card’s pterygoid bone. Jawbone fractures carry a risk of infection and less than optimal
nutrition during the healing process. The displacement of Card’s jawbone was not significant
enough to require surgery, but he was placed on a liquid diet for 6 to 8 weeks. Card was also
restricted from lifting more than 8 to 10 pounds for a period.
According to Card, in addition to the injuries noted by Burton, a part of his ear was
missing as a result of the assault. He was given medication for his pain and antibiotics because of
the five hairline fractures in his jaw. Card testified that his ribs were sore for at least 6 weeks.
Following the assault, Card also noticed memory loss and blurry vision in his left eye. At tria1,
Card testified that he continues to have periodic blurry vision in his left eye and a loss of hearing,
numbness, and occasional ringing in his left ear. Card was evaluated for posttraumatic stress
following the assault, and he testified that he continues to have problems with sleep and still
experiences flashbacks to the assault.
With respect to his memory of the evening in question, Card testified that his memory is
good up to the point where he and Chilen went to the individual’s house in Lincoln. Card
admitted that after they left that individual’s house, there are things he does not remember. He
does not remember going to the house of an individual named “E,” nor does he remember falling
down at that individual’s house. He agreed that it was possible he and Chilen went to the house,
but he testified that he would have remembered receiving injuries from falling down.
(d) Other Witnesses
Two of the State’s witnesses recalled seeing Chilen at CJ’s Paintball on the evening in
question. Both witnesses observed Chilen receive a ride away from CJ’s Paintball, drive himself
back sometime later, and then run off when a sheriff’s deputy pulled into the parking lot. One of
the witnesses testified that after returning to CJ’s Paintball, Chilen showed him some pictures on
his cell phone that appeared to depict Card and the aftermath of an assault. According to this
witness, Chilen had fresh cuts and scrapes on his hands when he returned.
(e) Law Enforcement Investigation
Deputy Jason Mayo of the Lancaster County Sheriff’s Department was dispatched to the
trailer in Martell shortly before 2 a.m. on April 28, 2013. When he arrived at the scene, Mayo
spoke to Card, who was bloody, disheveled, moaning, and in obvious pain. In the trailer, Mayo
did not notice any blood or hair near the couch, but he did observe blood and hair in the
bathroom. Chilen was eventually arrested and transported to the sheriff’s office, where he was
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interviewed by Reha and Lang. After Reha read Chilen his Miranda rights, Chilen signed the
Miranda form and agreed to make a partial statement. The district court received the DVD of the
recorded interview into evidence without objection from Chilen’s trial counsel, and the recording
was played for the jury.
(f) Chilen’s Police Interview
We have limited our recitation of Chilen’s police interview to those details relevant to his
assignments of error on appeal. In Chilen’s recorded statement, following the Miranda
advisement, he was asked if he would make a statement, to which Chilen replied that he was
willing to make a partial statement. During the interview, the officers asked Chilen four times if
he had been driving. Chilen did not answer those questions, stating that he would rather not say.
Near the end of the interview, Chilen asserted his Fifth Amendment right not to answer questions
about whether he had been driving.
(g) Stipulation and State Rest
After the conclusion of Reha’s testimony, the parties stipulated that on or about April 28,
2013, Chilen’s operator’s license was revoked, he was under a court order not to operate any
motor vehicle for any purpose, and he did not have an ignition interlock permit. Chilen’s
attorney noted that his agreement to the stipulation was subject to his motion to sever the counts.
Thereafter, the State rested, and the district court denied Chilen’s motion to dismiss the assault
charge.
(h) Advisement Regarding
Right to Remain Silent
Prior to the close of the State’s case, Chilen’s counsel informed the district court that
Chilen might testify. The court advised Chilen it was his right to testify and that he had the right
to remain silent which could not be used against him. The court explained that it would give a
jury instruction that Chilen’s silence could not be used against him but that if he did testify, he
would be waiving his right to silence, that he would be subject to cross-examination, and that
there would not be any such jury instruction. The court also explained that Chilen’s prior felony
conviction could be used to impeach him. The court told Chilen to further discuss the matter of
testifying with his attorney.
The following day, the district court inquired whether Chilen had determined whether he
would be testifying. When Chilen’s counsel informed the court that Chilen had not yet made that
determination, the court again advised Chilen regarding his right to remain silent and the
consequences if he chose to testify. Chilen acknowledged that he understood his rights. Chilen
stated that it was “[c]rystal” clear to him that if he took the stand, he would be waiving his right
to remain silent.
Just before Chilen took the stand and testified in his own defense, the district court
questioned him yet again and established that Chilen understood he was waiving his right to
remain silent by taking the stand and answering the first question, that he had discussed doing so
with his counsel, and that he was freely and voluntarily waiving that right.
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(i) Defense Case/Chilen’s Testimony
Chilen admitted that he was driving on April 27, 2013, and knew his license was revoked.
He testified that at some point after Card left him at CJ’s Paintball, the owner of that business
drove him back to the trailer. According to Chilen, when he entered the trailer, he found Card
lying on the couch, awake. Chilen raised his voice and asked Card several times why he had left
CJ’s Paintball without him. Chilen denied hitting Card with a closed fist while he was on the
couch but admitted that he slapped Card’s mouth with an open hand after Card told him to “shut
up, bitch.” According to Chilen, Card looked surprised and then got up from the couch and went
into the bathroom. Chilen denied having any other physical contact with Card prior to when Card
entered the bathroom.
Chilen testified that he grabbed his cell phone and went into the bathroom, intending to
take a video of Card. Chilen accidentally took still pictures of Card instead. When Chilen entered
the bathroom, he observed that Card was urinating. After Chilen took a picture, Card turned to
him and made a vulgar inquiry, to which Chilen replied, “[T]hat will never happen again.”
Chilen testified that he then hit Card “pretty square” on the nose. Chilen testified that Card
buckled from the blow and ended up seated on the toilet. Chilen denied kicking Card but recalled
that at some point, he did try to knee Card and ended up striking Card with his thigh instead.
Chilen testified that he was yelling at Card and asked him, “[A]m I your bitch now?” He also
admitted that he had Card by the hair and that he pulled out some of Card’s hair. Card was
bleeding from his mouth and nose. Chilen denied hitting or kicking Card in the ribs, taking “a
chunk out of [Card’s] ear,” or attempting to push Card into the shower.
Chilen agreed that one of the dogs bit or nipped him, but he did not recall hitting the dog.
He testified that he left the bathroom to “gather” the dogs to keep them from hurting Card or
tracking blood around the trailer, after which he returned to the bathroom and took an additional
picture of Card. Chilen estimated that the incident in the bathroom lasted less than 1 minute.
Chilen admitted that he was not proud of his actions and that he left the trailer to let Card clean
himself up. After leaving the trailer, Chilen testified that he drove back to CJ’s Paintball and
stayed there awhile, consuming more alcohol.
Chilen denied that he caused any significant injury to Card. He attributed Card’s injuries
to an incident that happened before the assault in the trailer. According to Chilen, he and Card
stopped at the house of the individual named “E” prior to returning to the trailer in Martell.
According to Chilen, Card became very intoxicated and began to fall down. Chilen testified that
while on the porch at the house, Card fell face first into a rockpile. Chilen testified that Card
suffered at least a bloody nose from the fall and some pain and that Chilen even asked him if he
wanted to go to a hospital. Chilen admitted that there were longstanding issues between him and
Card. He also admitted that he had been convicted of a felony in the previous 10 years.
At the conclusion of Chilen’s testimony, the defense rested, and the district court denied
Chilen’s motion for a directed verdict.
3. VERDICT AND JUDGMENT
On October 18, 2013, the jury returned a verdict of guilty on both felony counts. The
district court accepted the verdicts; entered judgment, accordingly; and ordered a presentence
investigation.
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4. SENTENCING
On November 19, 2013, following a sentencing hearing, the district court entered an
order, sentencing Chilen to prison for 10 to 15 years on his conviction for first degree assault and
to a consecutive term of 1 to 3 years on his conviction for driving during revocation. The court
also ordered Chilen not to drive for 15 years from the date of his release and revoked his
operator’s license for the same period. Chilen subsequently perfected his appeal to this court.
III. ASSIGNMENTS OF ERROR
Chilen asserts that the district court erred in (1) failing to grant his motion to sever the
two counts for trial, (2) failing to declare a mistrial, and (3) failing to direct a verdict on the
assault charge. He also asserts that he received ineffective assistance of trial counsel in various
regards and that the court imposed excessive sentences.
IV. STANDARD OF REVIEW
A motion for a separate trial is addressed to the sound discretion of the trial court, and its
ruling on such motion will not be disturbed in the absence of a showing of an abuse of discretion.
State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010). A judicial abuse of discretion exists
when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted for disposition. State v. Berney,
288 Neb. 377, 847 N.W.2d 732 (2014).
Whether to grant a mistrial is within the trial court’s discretion, and an appellate court
will not disturb its ruling unless the court abused its discretion. State v. Ramirez, 287 Neb. 356,
842 N.W.2d 694 (2014).
Regardless of whether the evidence is direct, circumstantial, or a combination thereof,
and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the
evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal
conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will
be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and
construed most favorably to the State, is sufficient to support the conviction. State v. Collins, 281
Neb. 927, 799 N.W.2d 693 (2011).
The fact that an ineffective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
The determining factor is whether the record is sufficient to adequately review the question. Id.
An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing. Id.
An appellate court will not disturb a sentence imposed within the statutory limits absent
an abuse of discretion by the trial court. State v. Berney, supra.
V. ANALYSIS
1. MOTION TO SEVER
Chilen asserts that the district court erred in failing to grant his motion to sever the two
counts for trial. Severance is not a matter of right, and a ruling of the trial court with regard
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thereto will not be disturbed on appeal absent a showing of prejudice to the defendant. State v.
Hilding, 278 Neb. 115, 769 N.W.2d 326 (2009). Neb. Rev. Stat. § 29-2002 (Reissue 2008)
provides:
(1) Two or more offenses may be charged in the same indictment, information, or
complaint in a separate count for each offense if the offenses charged, whether felonies or
misdemeanors, or both, are of the same or similar character or are based on the same act
or transaction or on two or more acts or transactions connected together or constituting
parts of a common scheme or plan.
(2) The court may order two or more indictments, informations, or complaints, or
any combination thereof, to be tried together if the offenses could have been joined in a
single indictment, information, or complaint or if the defendants, if there is more than
one, are alleged to have participated in the same act or transaction or in the same series of
acts or transactions constituting an offense or offenses. The procedure shall be the same
as if the prosecution were under such single indictment, information, or complaint.
(3) If it appears that a defendant or the state would be prejudiced by a joinder of
offenses in an indictment, information, or complaint or by such joinder of offenses in
separate indictments, informations, or complaints for trial together, the court may order
an election for separate trials of counts, indictments, informations, or complaints, grant a
severance of defendants, or provide whatever other relief justice requires.
The district court denied Chilen’s motion to sever the assault and driving during
revocation charges, finding that the res gestae of the crimes were sufficiently interlinked and that
there would not be any unfair prejudice in having the jury consider both charges. In place of the
term “res gestae” evidence, some courts have substituted phrases such as “same transaction
evidence” or “complete story principle.” State v. Robinson, 271 Neb. 698, 715 N.W.2d 531
(2006), cert. denied 549 U.S. 1283, 127 S. Ct. 1815, 167 L. Ed. 2d 326 (2007). “Such evidence is
often referred to as ‘intrinsic evidence.’ Evidence in this category ‘is admissible for the purpose
of providing the context in which the crime occurred.’ [Citation omitted.]” Id. at 713-14, 715
N.W.2d at 549. Where evidence of other crimes is so blended or connected with the ones on trial
so that proof of one incidentally involves the others, or explains the circumstances, or tends
logically to prove any element of the crime charged, it is admissible as an integral part of the
immediate context of the crime charged. Id.
In this case, part of Chilen’s motive for the assault was his anger about Card’s taking the
vehicle Chilen had been driving, leaving Chilen behind, and embarrassing him in front of his
friends at CJ’s Paintball. The actions of both Chilen and Card, including the fact that Chilen
drove the vehicle to various places prior to the assault, were part of the complete story of what
led to the assault. Chilen is not entitled to severance as a matter of right, and the district court did
not abuse its discretion in denying his motion. This assignment of error is without merit.
2. MISTRIAL
Chilen asserts that the district court erred in failing to declare a mistrial. Specifically, he
argues that the court should have declared a mistrial when the jury heard that he was only willing
to make a partial statement to law enforcement, that he refused to answer certain questions posed
to him, and that he then asserted his right to remain silent.
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A mistrial may be warranted where unfairness has been injected into a jury trial and so
permeates the proceedings that no amount of admonition to the jury can remove the unfairness to
a party. State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 (1989). Prosecutors are charged with the
duty of conducting criminal trials in such a manner that an accused may have a fair trial. Id. A
prosecutor’s comment on a defendant’s silence in the defendant’s trial is a violation of an
accused’s right to remain silent under the 5th and 14th Amendments to the U.S. Constitution and
under article I, § 12, of the Nebraska Constitution. State v. Pierce, supra. An accused’s right to
remain silent at trial, accorded by the 5th and 14th Amendments to the U.S. Constitution and
article I, § 12, of the Nebraska Constitution, is not limited to a statement concerning a
defendant’s failure to testify at trial, but includes the prosecutor’s use of any language or device
which compels a defendant to testify. State v. Pierce, supra.
While the State adduced some evidence concerning Chilen’s invocation of his right to
remain silent when asked by law enforcement if he had been driving on the night in question,
Chilen’s counsel did not object to the introduction of this evidence. The failure to make a timely
objection waives the right to assert prejudicial error on appeal. State v. Foster, 286 Neb. 826, 839
N.W.2d 783 (2013). One may not waive an error, gamble on a favorable result, and, upon
obtaining an unfavorable result, assert the previously waived error. State v. Nadeem, 284 Neb.
513, 822 N.W.2d 372 (2012). An appellate court will not consider an issue on appeal that was
not presented to or passed upon by the trial court. State v. Huston, 285 Neb. 11, 824 N.W.2d 724
(2013). Chilen has not preserved this issue for appellate review.
3. DIRECTED VERDICT
Chilen asserts that the district court erred in failing to direct a verdict on the assault
charge. Specifically, he argues that there was insufficient evidence that his actions resulted in
Card being exposed to serious bodily injury.
Section 28-308 provides that “[a] person commits the offense of assault in the first degree
if he or she intentionally or knowingly causes serious bodily injury to another person.” Neb. Rev.
Stat. § 28-109(20) (Reissue 2008) defines “[s]erious bodily injury” as “bodily injury which
involves a substantial risk of death, or which involves substantial risk of serious permanent
disfigurement, or protracted loss or impairment of the function of any part or organ of the body.”
Card testified that following the assault by Chilen, he suffered from contusions and a
concussion, that he had five hairline fractures in his jaw, and that part of his ear was missing.
Burton testified that Card suffered fractures of various facial bones and his jawbone; that he had
a fractured pelvis; and that he had clinical rib fractures. Burton testified further to risks which
could result from Card’s injuries, including pneumonia, breathing problems, blood clots, and
infection. Card was treated with pain medication and antibiotics, placed on a liquid diet, and
given lifting restrictions for a period. Following the assault, Card experienced memory loss,
blurry vision, sleep issues, and flashbacks. At the time of tria1, he continued to have periodic
blurry vision as well as hearing and other issues with his left ear. The evidence was sufficient to
support a finding that Chilen intentionally or knowingly caused serious bodily injury to Card.
The district court did not err in failing to grant Chilen’s motion for directed verdict. This
assignment of error is without merit.
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4. INEFFECTIVE ASSISTANCE OF COUNSEL
Chilen asserts that he received ineffective assistance of trial counsel in various regards.
The fact that an ineffective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
The determining factor is whether the record is sufficient to adequately review the question. Id.
An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing. Id. In the context of a direct appeal, like the requirement in postconviction
proceedings, mere conclusions of fact or law are not sufficient to allege ineffective assistance of
counsel. Id.
To prevail on a claim of ineffective assistance of counsel under 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 performance actually prejudiced the
defendant’s defense. State v. Filholm, supra. An appellate court may address the two prongs of
this test, deficient performance and prejudice, in either order. Id. An appellant must make
specific allegations of the conduct that he or she claims constitutes deficient performance by trial
counsel when raising an ineffective assistance claim on direct appeal. Id. General allegations that
trial counsel performed deficiently or that trial counsel was ineffective are insufficient to raise an
ineffective assistance claim on direct appeal and thereby preserve the issue for later review. Id.
To show prejudice on 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. Id.
Chilen alleges that he received ineffective assistance of counsel because his trial attorney
failed to object to or request redaction of portions of the recorded police interview concerning his
Fifth Amendment assertions with respect to the driving during revocation charge, and failed to
move for a mistrial when the jury heard this evidence. Chilen also alleges that his counsel was
ineffective for failing to move to suppress his statement prior to trial and to suppress evidence
gained from the search of the trailer. Chilen further alleges that he received ineffective assistance
of counsel because his attorney was not fully prepared for trial and should have requested a
continuance.
These assertions all touch on matters of trial strategy. Trial counsel is afforded due
deference to formulate trial strategy and tactics. State v. Watt, 285 Neb. 647, 832 N.W.2d 459
(2013). When reviewing a claim of ineffective assistance of counsel, an appellate court will not
second-guess reasonable strategic decisions by counsel. Id. There is no evidence in the record to
allow us to determine whether Chilen’s trial counsel consciously chose the above-referenced
actions as part of his trial strategy. Because the record is insufficient to adequately review these
claims of ineffective assistance of trial counsel, we do not address these claims on direct appeal.
Finally, Chilen alleges that his trial counsel was ineffective for failing to adequately
prepare him for his decision on whether to testify and for his testimony. An accused may waive
the privilege against self-incrimination or the right to remain silent, provided the waiver is made
voluntarily, knowingly, and intelligently. State v. Pettit, 227 Neb. 218, 417 N.W.2d 3 (1987).
The Nebraska Supreme Court has held that defense counsel’s advice to waive the right to testify
can present a valid claim of ineffective assistance in two instances: if the defendant shows that
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counsel interfered with his or her freedom to decide to testify or if counsel’s tactical advice to
waive the right was unreasonable. State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
The record shows that Chilen was advised by the district court multiple times of his right
to remain silent and that if he testified, he would waive that right. The record also shows that
Chilen had several opportunities to discuss with his attorney the issue of whether he would
testify and that Chilen understood his rights and the consequences of choosing to testify.
However, the record does not reveal what the nature of the discussions between Chilen and his
trial counsel were regarding Chilen’s decision to testify and waiver of his right to remain silent.
Thus, the record is insufficient to determine whether any advice given by counsel interfered with
Chilen’s freedom to decide to testify or if any advice given was unreasonable. Likewise, the
record is insufficient to address Chilen’s claim that counsel did not adequately prepare him for
his testimony. Therefore, we do not address this claim of ineffective assistance of counsel.
By finding the record insufficient to address Chilen’s claims, we make no comment on
whether his allegations of ineffective assistance would be sufficient to require an evidentiary
hearing in the context of a postconviction action. We simply decline to reach Chilen’s claims on
direct appeal because the record is insufficient to do so.
5. EXCESSIVE SENTENCES
Chilen asserts that the district court erred by imposing excessive sentences. Where a
sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate
court must determine whether the sentencing court abused its discretion in considering and
applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. State v. Carngbe, 288 Neb. 347, 847 N.W.2d 302 (2014). 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 amount of violence involved in the commission of the crime. Id.
Chilen was convicted of first degree assault, which is a Class II felony, and driving
during revocation, which is a Class IV felony. See, § 28-308; § 60-6,197.06. Class II felonies are
punishable by 1 to 50 years’ imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2012). Class
IV felonies are punishable by 0 to 5 years’ imprisonment, a $10,000 fine, or both. Id. The district
court sentenced Chilen to 10 to 15 years’ imprisonment for the assault conviction and to a
consecutive sentence of 1 to 3 years’ imprisonment for the driving during revocation conviction.
Accordingly, Chilen’s sentences did not exceed the statutory limits.
A review of the presentence investigation report and the district court’s comments during
the sentencing hearing show no abuse of discretion. The court clearly considered the relevant
factors, and the presentence investigation report shows that Chilen has a somewhat lengthy
criminal history, consisting of many traffic-related offenses but also including convictions for
third degree assault of an officer, disturbing the peace, and refusing to comply with the order of a
police officer. The level of service/case management inventory administered by the probation
office assessed Chilen as a very high risk to reoffend. Chilen argues that the assault was
motivated in part by incidents that occurred when he and Card were growing up together, but the
assault on Card occurred many years after these incidents. The record shows that Chilen was
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angered by Card’s behavior and actions on April 27 and 28, 2013, and beat him severely, leading
to injuries including multiple bone fractures. The court did not abuse its discretion in sentencing
Chilen. This assignment of error is without merit.
VI. CONCLUSION
The district court did not abuse its discretion with regard to the motion to sever the
charges, the motion for mistrial, the motion for directed verdict on the assault charge, and the
sentences imposed. The record on appeal is insufficient to review Chilen’s allegations of
ineffective assistance of counsel.
AFFIRMED.
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