State v. Amaro-Sanchez ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. AMARO-SANCHEZ
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.
ISRAEL AMARO-SANCHEZ, APPELLANT.
Filed April 11, 2023. No. A-22-899.
Appeal from the District Court for Douglas County: JAMES M. MASTELLER, Judge.
Affirmed.
Thomas C. Riley, Douglas County Public Defender, and Rebecca A. McClung for
appellant.
Michael T. Hilgers, Attorney General, and Teryn Blessin for appellee.
PIRTLE, Chief Judge, and MOORE and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Israel Amaro-Sanchez appeals his plea-based convictions for attempted first degree sexual
assault and incest with a victim aged 17 or under. Amaro-Sanchez contends that the sentences
imposed were excessive and that trial counsel was ineffective in failing to file a motion for
discovery, failing to file a motion for production, and failing to advise him of the possible
immigration consequences of his pleas. For the reasons set forth herein, we affirm.
II. STATEMENT OF FACTS
Following an investigation stemming from allegations of inappropriate conduct with his
16-year-old daughter, Amaro-Sanchez was charged with first degree sexual assault, a Class II
felony, and incest (victim 17 years old or younger), a Class IIA felony. Pursuant to a plea
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agreement, Amaro-Sanchez pled no contest to attempted first degree sexual assault and incest
(victim 17 years old or younger), both Class IIA felonies.
The State provided a factual basis which set forth that, upon responding to a hospital report
of a sexual assault, the victim’s mother advised investigators that her husband, Amaro-Sanchez,
had sexually assaulted his biological daughter who was born in April 2006. During a forensic
interview, the victim reported that Amaro-Sanchez provided her with beer and shots of whiskey,
then subjected her to cunnilingus and digital penetration of her vagina. After the victim told
Amaro-Sanchez to stop, Amaro-Sanchez told her not to tell anyone and that he did not want to go
to jail. At the time of the offenses, Amaro-Sanchez was 41 years old.
At the sentencing hearing, the district court stated:
In determining the appropriate sentence in this case, I have considered the factors
set forth in Nebraska Revised Statute Section 29-2260, as well as the defendant’s age,
mentality, education and experience, social and cultural background, past criminal record
or record of law-abiding conduct, the motivation for the offense, the nature of the offense,
and the amount, if any, of violence involved in the commission of the offense.
[Amaro-Sanchez] is 41 years old. As to what brings him before the Court, basically,
the sheriff’s office was dispatched to the hospital shortly after midnight on May 30 of this
year, where they made contact with the stepmother of the minor child . . . who advised that
her husband, [Amaro-Sanchez], had sexually assaulted his daughter tonight while [the
stepmother] was at work.
The victim advised that [Amaro-Sanchez] . . . had her consume approximately four
beers, a whiskey shot, and several puffs from a vape pen, which contained an unknown
substance. She reported having been fondled by [Amaro-Sanchez], one hand underneath
her shirt and the other fondling her vagina.
[The victim] implored him to stop, saying, “You’re my father. You can’t be doing
this.” He continued to fondle her vagina, pulled down her boxers, pulled up her shirt, licked
her breasts and vagina, penetrated her vagina with his fingers. She advised [that
Amaro-Sanchez] tried to insert his penis at one point, but she was able to prevent him from
doing so.
When questioned, [Sanchez-Amaro] reports that he doesn’t remember what exactly
happened. He advised that he had been drinking until he passed out and doesn’t remember
anything after that. He does say that his daughter is a good girl, and he has no reason to
think that she is lying.
[Amaro-Sanchez’] criminal history is minimal. He has no prior felony convictions.
[Amaro-Sanchez’] overall [level of service/case management inventory] LS/CMI score is
33, which places him in the very high risk category for community-based supervision.
As part of the presentence investigation the probation office administered the New
Vermont Assessment for Sex Offender Risk-2 and the Sex Offender Risk Intervention and
Progress Scale [sic]. [Amaro-Sanchez] scored a 6 out of a possible 22 on the VASOR-2,
placing him in the moderate/low risk range for reoffending. [Amaro-Sanchez] scored a 28
out of 48 on the SOTIPS, making him a high risk for reoffending. The combined scores
[make] him a moderate/high risk for reoffending.
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. . . a history of sexual abuse does place [the victim] at significant risk for long-term
mental health and physical health complications.
The probation office does not believe [Amaro-Sanchez] is an appropriate candidate
for probation and recommends that the Court sentence [him] to straight sentences of
incarceration.
The district court sentenced Amaro-Sanchez to 10 to 20 years’ imprisonment for each of
his convictions. The sentences were ordered to be served consecutively and he was credited for
169 days previously served. Amaro-Sanchez has timely appealed to this court and is represented
by different counsel than represented him during his pleas and sentencing.
III. ASSIGNMENTS OF ERROR
Amaro-Sanchez’ assignments of error, consolidated and restated, are that (1) the sentences
imposed were excessive and (2) trial counsel was ineffective in failing to (a) file a motion for
discovery and/or a motion for production, and (b) advise him of the possible immigration
consequences of his pleas.
IV. STANDARD OF REVIEW
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Hines, 313 Neb. 685, 985 N.W.2d 625 (2023).
Whether a claim of ineffective assistance of counsel may be determined on direct appeal is
a question of law. State v. Fernandez, 313 Neb. 745, 986 N.W.2d 53 (2023).
V. ANALYSIS
1. EXCESSIVE SENTENCE
Amaro-Sanchez first contends that the sentences imposed upon him were excessive.
Specifically, he claims that the court failed to sufficiently consider mitigating factors and placed
too much emphasis on the nature of the offense.
Amaro-Sanchez pled to two Class IIA felonies and was sentenced to 10 to 20 years’
imprisonment on each conviction. See, Neb. Rev. Stat. § 28-201(4)(b) (Reissue 2016) (criminal
attempt); Neb. Rev. Stat. § 28-319(1)(a) (Reissue 2016) (first degree sexual assault); Neb. Rev.
Stat. § 28-703 (Reissue 2016) (incest). These sentences are within the statutory sentencing range
for Class IIA felonies which are punishable by a minimum of no imprisonment and a maximum
of 20 years’ imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022). Further, Amaro-Sanchez
received a benefit from his plea agreement in which a Class II felony was reduced to a Class IIA
felony.
Further, we reject Amaro-Sanchez’ claim that the district court placed insufficient
emphasis on some factors and placed too much emphasis on the nature of the offense. When
sentences imposed within statutory limits are alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in considering well-established
factors and any applicable legal principles. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
A judicial abuse of discretion exists only 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. Id.-3-
During the sentencing hearing, the court noted that it had considered the statutory factors
set forth in Neb. Rev. Stat. § 29-2260 (Reissue 2016), “as well as [Amaro-Sanchez’] age,
mentality, education and experience, social and cultural background, past criminal record or record
of law-abiding conduct, the motivation for the offense, the nature of the offense, and the amount,
if any, of violence involved in the commission of the offense.” The court then gave an extensive
recitation of the facts of the case and information contained in the presentence investigation report.
We further note that although Amaro-Sanchez’ criminal history does not include any sexual
offenses, it does include convictions for driving under the influence, domestic violence, driving on
a suspended license, failure to appear, and other minor offenses.
As the Nebraska Supreme Court has stated:
Though it is always good practice for district courts to provide a record of their reasoning,
like § 29-2260, § 29-2281 does not require the sentencing court to specifically articulate
that it has considered the listed statutory factors. It also does not require that trial courts
make explicit findings as to facts pertaining to the statutory factors or the relative weight
given to each factor.
State v. McCulley, 305 Neb. 139, 148, 939 N.W.2d 373, 382 (2020).
In sum, based upon factors including that the sentences imposed were within the statutory
sentencing range, the benefit that Amaro-Sanchez received from the plea agreement, his very high
risk to reoffend as assessed by the LS/CMI, the nature of the offenses, his failure to take
responsibility for the commission of the offenses, and his criminal history, the sentences imposed
did not constitute an abuse of discretion.
2. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Amaro-Sanchez’ second assignment of error is that his trial counsel was ineffective in
failing to (a) file a motion for discovery and/or a motion for production and (b) advise him of the
possible immigration consequences of his pleas.
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. State v.
Spang, 302 Neb. 285, 923 N.W.2d 59 (2019). The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean that it can be resolved on direct appeal;
the determining factor is whether the record is sufficient to adequately review the question. State
v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). The record is sufficient to resolve on direct appeal
a claim of ineffective assistance of counsel if the record affirmatively proves or rebuts either
deficiency or prejudice with respect to the defendant’s claims. 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. John, 310 Neb. 958, 969 N.W.2d 894 (2022). To show that counsel’s
performance was deficient, the defendant must show counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law in the area. Id. To show prejudice under
the prejudice component of the Strickland test, the defendant must demonstrate a reasonable
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probability that but for his or her counsel’s deficient performance, the result of the proceeding
would have been different. Id. When a conviction is based upon a guilty or no contest plea, the
prejudice requirement of an ineffective assistance of counsel claim is satisfied if the defendant
shows a reasonable probability that but for the errors of counsel, the defendant would have insisted
on going to trial rather than pleading guilty. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).
Assignments of error on direct appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate court will not scour the remainder of
the brief in search of such specificity. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). An
ineffective assistance of counsel claim is raised on direct appeal when the claim alleges deficient
performance with enough particularity for (1) an appellate court to make a determination of
whether the claim can be decided upon the trial record and (2) a district court reviewing a petition
for postconviction relief to recognize whether the claim was brought before the appellate court.
State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).
(a) Motion for Discovery and/or Motion
for Production of Documents
Amaro-Sanchez contends that his trial counsel was ineffective in failing to file a motion
for discovery and/or a motion for production.
A similar assignment was made by the appellant in State v. Fernandez, 313 Neb. 745, 986
N.W.2d 53 (2023), In Fernandez, the Nebraska Supreme Court rejected the appellant’s claim that
she received ineffective assistance of counsel because “‘her trial counsel failed to present
documents and witnesses that would support her defense.’” Id., 313 Neb. at 761, 986 N.W.2d at
64. The court held that this assignment of error lacked the specificity demanded on direct appeal.
See also State v. Miranda, 313 Neb. 358, 984 N.W.2d 261 (2023) (assignment of error
insufficiently alleged where appellant broadly argued that trial counsel was ineffective in failing
to file motions to suppress but failed to provide basis for filing such motions).
Amaro-Sanchez’ assigned error is broadly stated and does not identify what discovery or
other information that he allegedly failed to receive. As our court noted in State v. Woodruff, 30
Neb. App. 193, 205, 965 N.W.2d 836, 846-47 (2021):
It has been held that a claim of ineffective assistance of counsel that is insufficiently stated
is no different than a claim not stated at all. State v. Abdullah, 289 Neb. 123, 853 N.W.2d
858 (2014). Therefore, if insufficiently stated, an assignment of error and accompanying
argument will not prevent the procedural bar accompanying the failure to raise all known
or apparent claims of ineffective assistance of trial counsel. Id.Further, even if Amaro-Sanchez’ assigned error had been sufficiently pled, we note that
the record on direct appeal establishes that the district court ordered “mutual and reciprocal
discovery pursuant to Neb. Rev. Stat. § 29-1912 [Cum. Supp. 2022].” Section 29-1912 provides,
in pertinent part,
(1) When a defendant is charged with a felony or when a defendant is charged with
a misdemeanor or a violation of a city or village ordinance for which imprisonment is a
possible penalty, he or she may request the court where the case is to be tried, at any time
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after the filing of the indictment, information, or complaint, to order the prosecuting
attorney to permit the defendant to inspect and copy or photograph:
(a) The defendant’s statement, if any. For purposes of this subdivision, statement
includes any of the following which relate to the investigation of the underlying charge or
charges in the case and which were developed or received by law enforcement agencies:
(i) Written or recorded statements;
(ii) Written summaries of oral statements; and
(iii) The substance of oral statements;
(b) The defendant’s prior criminal record, if any;
(c) The defendant’s recorded testimony before a grand jury;
(d) The names and addresses of witnesses on whose evidence the charge is based;
(e) The results and reports, in any form, of physical or mental examinations, and of
scientific tests, or experiments made in connection with the particular case, or copies
thereof;
(f) Documents, papers, books, accounts, letters, photographs, objects, or other
tangible things of whatsoever kind or nature which could be used as evidence by the
prosecuting authority; and
(g) Reports developed or received by law enforcement agencies when such reports
directly relate to the investigation of the underlying charge or charges in the case.
Because the district court ordered mutual and reciprocal discovery, pursuant to § 29-1912,
the State had the obligation to disclose information which was material to the presentation of a
defense to the charge or charges against the defendant. See State v. Johnson, 31 Neb. App. 207,
979 N.W.2d 123 (2022), review denied (Aug. 29, 2022). Further, during the plea hearing, the court
asked trial counsel “To the best of your knowledge, have you received all discovery to which
you’re constitutionally and statutorily entitled?” Trial counsel responded “Yes.” Amaro-Sanchez
did not contradict his counsel’s statement. Further, Amaro-Sanchez responded affirmatively when
asked by the court if he was “satisfied with your attorney, and do you believe that he’s properly
represented you throughout this case?”
In sum, Amaro-Sanchez’ claim that his trial counsel was ineffective for failing to file a
motion for discovery or for production of documents was insufficiently pled or, in the alternative,
the record on direct appeal refutes his claim.
(b) Immigration Consequences of Plea
Amaro-Sanchez also contends that his trial counsel was ineffective for failing to advise
him of the immigration consequences of his pleas. We find that, even if trial counsel was deficient
for failing to advise Amaro-Sanchez of the immigration consequences of pleading to the amended
charges, that deficient performance would not have prejudiced Amaro-Sanchez because the district
court specifically advised Amaro-Sanchez of the immigration consequences of his pleas during
the plea hearing.
During the plea hearing, the district court advised Amaro-Sanchez of his rights including
the immigration consequences of entering pleas. The district court advised Amaro-Sanchez that
“[i]f you are not a United States citizen, you are hereby advised that conviction of the offense for
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which you have been charged may have the consequences of removal from the United States or
denial of naturalization pursuant to the laws of the United States. Do you understand that?”
Amaro-Sanchez responded “Yes, I do.” Later in the hearing, the following colloquy between the
court and Amaro-Sanchez occurred:
THE COURT: Is there anything that has occurred in this hearing today that you do
not understand?
[Amaro-Sanchez]: No.
THE COURT: Do you have any questions for me or for your attorney?
[Amaro-Sanchez]: No.
Here, the record on direct appeal is sufficient to adequately resolve this specific assignment
of ineffective assistance of Amaro-Sanchez’ trial counsel. Even assuming without deciding that
trial counsel did not discuss with him the immigration consequences of entering a plea, the record
affirmatively establishes that Amaro-Sanchez was specifically advised of the immigration
consequences of convictions of the charges by the district court. Because the record affirmatively
establishes that Amaro-Sanchez was not prejudiced by this claim of ineffective assistance by his
trial counsel, this claim of ineffective assistance of trial counsel fails.
VI. CONCLUSION
Having considered and rejected Amaro-Sanchez’ assignments of error, his convictions and
sentences are affirmed.
AFFIRMED.
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