State v. Betancourt-Garcia , 295 Neb. 170 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/02/2016 09:10 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. BETANCOURT-GARCIA
Cite as 295 Neb. 170
State of Nebraska, appellee, v. Rosario
Betancourt-Garcia, appellant.
___ N.W.2d ___
Filed December 2, 2016. No. S-15-1001.
1. Appeal and Error. An appellate court does not consider errors which
are argued but not assigned.
2. Judgments: Pleadings: Plea in Abatement: Appeal and Error.
Regarding questions of law presented by a motion to quash or plea in
abatement, an appellate court is obligated to reach a conclusion indepen-
dent of the determinations reached by the trial court.
3. Convictions: Evidence: Appeal and Error. 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 favor-
ably to the State, is sufficient to support the conviction.
4. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
5. Courts: Appeal and Error. Appellate review is limited to those errors
specifically assigned as error in an appeal to a higher appellate court.
6. Criminal Law: Limitations of Actions: Indictments and Informations.
It is generally sufficient in an information to describe the crime charged
in the language of the statute and it is not ordinarily necessary to nega-
tive the exceptions contained in a statute defining a crime if they are not
descriptive of the offense. The statute of limitations is not descriptive of
the offense, and it is not necessary to plead an exception which makes
it inoperative.
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7. Criminal Law: Limitations of Actions: Pleadings: Pleas. Statutes of
limitations, as applied to criminal procedure, need not be pleaded and
may be raised under the general plea of not guilty.
8. Criminal Law: Indictments and Informations: Proof. The State,
within the information, has the burden to set forth all of the elements of
the crime charged.
9. Criminal Law: Limitations of Actions: Words and Phrases. For the
purposes of Neb. Rev. Stat. § 29-110(1) (Reissue 1995), the phrase
“fleeing from justice” means leaving one’s usual abode or leaving the
jurisdiction where an offense has been committed, with intent to avoid
detection, prosecution, or punishment for some public offense.
10. Convictions: Evidence: Appeal and Error. An appellate court does not
resolve conflicts in the evidence, pass on the credibility of the 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
properly admitted evidence, viewed and construed most favorably to the
State, is sufficient to support the conviction.
11. Criminal Law: Directed Verdict. In a criminal case, the court can
direct a verdict only when (1) there is a complete failure of evidence
to establish an essential element of the crime charged or (2) evidence is
so doubtful in character and lacking in probative value that a finding of
guilt based on such evidence cannot be sustained.
12. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved. The determining factor is
whether the record is sufficient to adequately review the question.
13. Effectiveness of Counsel: Proof: Appeal and Error. An appellant must
make specific allegations of the conduct that he or she claims constitutes
deficient performance by trial counsel when raising an ineffective assist­
ance claim on direct appeal.
14. ____: ____: ____. 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 coun-
sel’s performance was deficient and that this deficient performance
actually prejudiced the defendant’s defense. An appellate court may
address the two prongs of this test, deficient performance and prejudice,
in either order.
15. Effectiveness of Counsel: Proof. To show prejudice on a claim of inef-
fective assistance of counsel, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance, the result
of the proceeding would have been different.
16. Effectiveness of Counsel: Speedy Trial: Appeal and Error. When a
defendant alleges he or she was prejudiced by trial counsel’s failure to
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STATE v. BETANCOURT-GARCIA
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properly assert the defendant’s speedy trial rights on appeal, the court
must consider the merits of the defendant’s speedy trial rights under
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984).
17. Effectiveness of Counsel: Speedy Trial. Only if a motion for dis-
charge on speedy trial grounds should have resulted in the defendant’s
absolute discharge, thus barring a subsequent trial and conviction,
could a failure by counsel to make the motion for discharge be deemed
prejudicial.
18. Speedy Trial. Nebraska’s speedy trial statutes require that those who are
charged with crimes be brought to trial within 6 months, as calculated
by the applicable statute. To calculate the deadline for trial under the
speedy trial statutes, a court must exclude the day the State filed the
information, count forward 6 months, back up 1 day, and then add any
time excluded under Neb. Rev. Stat. § 29-1207(4) (Cum. Supp. 2014).
19. ____. If the State does not bring the defendant to trial within the per-
missible time, the court must order an absolute discharge from the
offense charged.
20. Speedy Trial: Indictments and Informations. For a felony, the
speedy trial clock begins to run on the date that the indictment is
returned or the information is filed, not on the date on which the com-
plaint is filed.
21. Constitutional Law: Speedy Trial. Determining whether a defendant’s
constitutional right to a speedy trial has been violated requires a balanc-
ing test in which the courts must approach each case on an ad hoc basis.
This balancing test involves four factors: (1) length of delay, (2) the
reason for the delay, (3) the defendant’s assertion of the right, and (4)
prejudice to the defendant. None of these four factors standing alone is
a necessary or sufficient condition to the finding of a deprivation of the
right to speedy trial. Rather, the factors are related and must be consid-
ered together with other circumstances as may be relevant.
22. ____: ____. In analyzing the prejudice factor of the four-factor test
to determine whether constitutional speedy trial rights have been vio-
lated, the U.S. Supreme Court enumerated three aspects: (1) preventing
oppressive pretrial incarceration, (2) minimizing anxiety and concern of
the defendant, and (3) limiting the possibility that the defense will be
impaired by dimming memories and loss of exculpatory evidence.
23. Constitutional Law: Speedy Trial: Presumptions. Until there is some
delay which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance when determining
whether constitutional speedy trial rights have been violated.
24. Constitutional Law: Speedy Trial. A showing of actual prejudice to
a defendant alleging violation of constitutional speedy trial rights is
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STATE v. BETANCOURT-GARCIA
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required if the government exercised reasonable diligence in pursuing
the defendant.
25. Kidnapping: Sentences. The provisions of Neb. Rev. Stat. § 28-313(3)
(Reissue 1995) are mitigating circumstances which may reduce the pen-
alty for kidnapping and are therefore a matter for the court at sentencing,
not the jury.
26. Kidnapping. Rescue is not a voluntary release of a kidnapping victim.
27. Appeal and Error: Words and Phrases. Plain error exists where there
is error, plainly evident from the record but not complained of at trial,
which prejudicially affects a substantial right of a litigant and is of such
a nature that to leave it uncorrected would cause a miscarriage of justice
or result in damage to the integrity, reputation, and fairness of the judi-
cial process.
28. Constitutional Law: Criminal Law: Pleas. The considerations
involved in determining whether one freely, intelligently, voluntarily,
and understandingly pleads guilty have no application where a criminal
defendant pleads not guilty, for in such a circumstance, the defendant
does not surrender the constitutional rights inherent in a trial.
Appeal from the District Court for Madison County: M ark
A. Johnson, Judge. Affirmed in part, and in part vacated and
remanded for resentencing.
Mark D. Albin for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
K elch, J.
I. INTRODUCTION
Following a jury trial, Rosario Betancourt-Garcia
(Betancourt) appeals his convictions and sentences for kidnap-
ping, use of a firearm to commit kidnapping, and conspiracy to
commit kidnapping. On appeal, Betancourt alleges that the dis-
trict court for Madison County erred in overruling his motion
to quash, in overruling his motion for directed verdict, and in
sentencing him for kidnapping. Further, Betancourt contends
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STATE v. BETANCOURT-GARCIA
Cite as 295 Neb. 170
that he received ineffective assistance of counsel. We reject
Betancourt’s claims, but we find plain error in the sentencing
for the conspiracy conviction. Therefore, we affirm in part and
in part vacate and remand for resentencing.
II. FACTS
On November 15, 2003, officers of the Madison Police
Department responded to a call and found a young man who
had been bound and gagged. After the young man related that
Betancourt had kidnapped him, the Madison Police Department
conducted an immediate search for Betancourt, but did not
find him.
On November 17, 2003, the Madison County Court issued
warrants for the arrest of Betancourt and another suspect. That
day, the State filed an information in county court, charging
Betancourt with kidnapping and use of a deadly weapon to
commit a felony.
On May 7, 2004, Texas authorities arrested Betancourt in
Plano, Texas, based on the Nebraska warrant. On May 11,
Betancourt signed a waiver of extradition proceedings.
On May 17, 2004, the Madison County sherriff’s office
dispatched transport personnel to Texas to extradite Betancourt
back to Nebraska. At that time, the Madison County sher-
riff’s office withdrew the warrant from a national notification
system which was termed at trial the “teletype system” and
placed a “hold” on Betancourt in Texas, but the warrant itself
remained active. That day, Texas authorities mistakenly trans-
ferred Betancourt to the custody of the “immigration services,”
and subsequently, he was deported to Mexico.
On May 17, 2004, the Madison County sherriff’s office
directed its transport personnel, then en route to Texas, to
return to Nebraska. On May 25, the Madison County sherriff’s
office reentered Betancourt’s still-active warrant on the tele-
type system.
On July 1, 2013, nearly a decade later, Betancourt was
arrested once more in Texas, based on the Nebraska warrant,
and extradited to Nebraska.
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STATE v. BETANCOURT-GARCIA
Cite as 295 Neb. 170
The case was bound over to district court, and on August
21, 2013, the State filed an information charging Betancourt
with kidnapping and use of a deadly weapon to commit a
felony. Betancourt pled not guilty, and on November 14, he
filed a motion for absolute discharge on speedy trial grounds.
After hearing the foregoing evidence surrounding the events
leading up to Betancourt’s ultimate arrest and extradition to
Nebraska, the district court overruled the motion. Betancourt’s
counsel appealed on his behalf, but then subsequently moved
to dismiss that appeal, which motion the Nebraska Court of
Appeals granted.
On May 21, 2014, the State filed an amended information.
It again charged Betancourt with kidnapping (count I) and use
of a deadly weapon to commit a felony (count II) and added a
third charge, conspiracy to commit kidnapping (count III).
In response to the amended information, Betancourt filed
a motion to quash count III as barred by the statute of limita-
tions. His motion to quash stated:
1. That the State filed an Amended Information charg-
ing [Betancourt] in Count III with Conspiracy to Commit
Kidnapping on May 21st, 2014;
2. That the State has not previously filed any informa-
tion charging [Betancourt] with Conspiracy to Commit
Kidnapping;
3. That the alleged events are to have occurred on
November 15th, 2003, and
4. That the time for filing an Information for Conspiracy
to Commit Kidnapping has lapsed.
The district court conducted a hearing, wherein it again
heard the evidence recounted above regarding the events pre-
ceding Betancourt’s ultimate arrest and extradition to Nebraska.
The district court overruled Betancourt’s motion to quash.
Betancourt later pled not guilty to all three charges.
At trial, the jury heard evidence that on November 15, 2003,
officers with the Madison Police Department responded to a
report of a man who had been found bound and gagged. When
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STATE v. BETANCOURT-GARCIA
Cite as 295 Neb. 170
officers arrived, they discovered a young Hispanic man on
the front porch of a residence, with duct tape tightly wrapped
around his face, ankles, and wrists, along with a “shoestring
type cord” around his ankles and wrists, the latter of which
were bound behind his back. The man was later identified as
Pedro Jesus Rayon-Piza (Pedro). Pedro appeared “terrified”
and, once freed, explained through a translator that he had been
kidnapped at gunpoint by two people, one of whom he identi-
fied as his uncle, Betancourt.
Pedro testified that on November 15, 2003, Leonel Torres-
Garcia (Torres) came to the house Pedro shared with his
brother Jose Rayon-Piza (Jose) and asked for help with his
car, which Torres said was stranded several miles away. Pedro
stated that Torres requested Jose’s help, but because Jose was
unavailable, Pedro offered to help.
Pedro testified that he left with Torres in Pedro’s car and
drove several miles to Torres’ car. According to Pedro, when
he exited his car to help “jump-start” Torres’ car, Betancourt
appeared with a gun, put the gun to Pedro’s head, and threat-
ened to kill him. Pedro testified that Torres also produced a gun
and pointed it at his head. Pedro stated that the men bound and
gagged him and that Betancourt repeatedly asked him about
the whereabouts of Betancourt’s wife, from whom Betancourt
was separated. Betancourt told Pedro that he believed Jose was
“going out” with Betancourt’s wife.
Pedro testified that Betancourt and Torres put him in a car
and drove him to Betancourt’s house. According to Pedro,
Betancourt continued to threaten him with a gun and told him
that Betancourt and Torres would put Pedro in a bag with stones
and throw him in a river. When they arrived, the men put Pedro
in a shed behind the house. Pedro testified that Betancourt told
him that he was going to leave Pedro there, bring Jose to the
same location, and then kill them both. Betancourt and Torres
then left.
Pedro testified that Betancourt and Torres had not injured
him. He testified that the doorway to the shed was open and
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STATE v. BETANCOURT-GARCIA
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that he was not tethered to anything inside the shed. Pedro,
still bound, managed to stand and jumped to the nearest house,
where officers found him.
Torres testified that he and Betancourt had kidnapped Pedro.
He generally minimized his involvement and denied par-
ticipating in any plan. Torres admitted that he and Betancourt
threatened Pedro with guns, took him to the shed, and left him
there while they sought out Jose. Torres stated that Betancourt
spoke to Jose on the telephone that evening.
Torres testified that when they could not find Jose, they
returned to the area of the shed but saw officers everywhere.
Torres testified that when Betancourt realized that Pedro had
likely escaped, he appeared furious. Eventually, Betancourt and
Torres decided to flee and drove all night to Houston, Texas.
According to Torres, they threw the guns out of the car along
the highway.
Jose testified similarly to his brother Pedro concerning the
events preceding the abduction. He stated that sometime after
Pedro departed with Torres, Jose went out looking for Pedro,
but could not find him. Jose testified that after he returned from
his search, Betancourt called him, threatened to “gut [him] like
a deer,” and made several more threatening calls throughout
the night. Jose testified that Betancourt was angry because
he believed Jose was in a relationship with Betancourt’s wife
and had accused Jose of having such a relationship sometime
before Betancourt’s wife had left Betancourt.
Betancourt’s wife testified that a few months before she left
Betancourt, Betancourt had accused Jose of having a relation-
ship with her.
After Betancourt’s wife testified, the State rested.
Subsequently, Betancourt moved for directed verdict, claiming
that “[t]he State’s failed to present a prima facie case.” The
district court overruled the motion.
Next, Betancourt testified that he was not in Nebraska on
or about the day of the offenses. He stated that at that time, he
was working 6 days a week or more in Houston.
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STATE v. BETANCOURT-GARCIA
Cite as 295 Neb. 170
The jury heard Betancourt’s testimony and other evidence
concerning the search for Betancourt, his initial arrest in Texas,
his deportation, his second arrest, and his ultimate extradition
to Nebraska. At trial, the parties essentially established the
same facts on these topics as they did at previous hearings.
Betancourt testified that due to his deportation in 2004,
he assumed there was no longer a warrant for his arrest in
Nebraska at that time. Betancourt admitted that shortly after
being deported, he returned to Texas illegally and lived there
for almost a decade. He testified that had he been aware of the
Nebraska warrant, he did not think he would have returned
from Mexico.
After Betancourt rested his case, he made another motion for
directed verdict, asserting that no reasonable jury could find
him guilty based on the evidence presented. The district court
overruled the motion.
The district court held a jury instruction conference. Only
the instruction for the conspiracy charge directed the jury to
consider whether Betancourt had fled from justice during the
period between the offenses and the second arrest, exclud-
ing the time Betancourt was incarcerated in Texas prior to
being deported. The instructions defined the phrase “fleeing
from justice” as “leav[ing] one’s usual abode or . . . leav[ing]
the jurisdiction where an offense has been [committed], with
intent to avoid detection, prosecution, or punishment for some
public offense.” They advised the jury to find Betancourt
not guilty of count III if it concluded that he had not fled
from justice.
The jury found Betancourt guilty on all three charges.
Following the verdicts, the district court conducted a mitiga-
tion hearing to determine whether mitigating factors existed
under Neb. Rev. Stat. § 28-313(3) (Reissue 2016), the presence
of which would render the kidnapping conviction a Class II
felony rather than a Class IA felony. The district court found
that mitigating factors did not exist and that the kidnapping
conviction was a Class IA felony.
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STATE v. BETANCOURT-GARCIA
Cite as 295 Neb. 170
The district court sentenced Betancourt to life imprisonment
for the kidnapping conviction and 10 to 30 years’ imprison-
ment for the use of a weapon to commit a felony conviction,
to be served consecutively. Further, the district court treated
the conspiracy conviction as a Class II felony and sentenced
Betancourt to 30 to 50 years’ imprisonment, to be served con-
currently with the other sentences.
Betancourt now appeals.
III. ASSIGNMENTS OF ERROR
Betancourt assigns, rephrased, (1) that the district court
erred in failing to quash the amended information because
it showed on its face that the 3-year statute of limitations
set forth in Neb. Rev. Stat. § 29-l10 (Reissue 1995) barred
the State’s prosecution; (2) that the district court erred in
failing to direct a verdict of acquittal because the State
failed to produce evidence sufficient to sustain a jury ver-
dict that Betancourt was “fleeing from justice” as provided
in § 29-110(1); (3) that his trial counsel provided ineffec-
tive assistance by moving for dismissal of his appeal of the
district court’s denial of his motion for absolute discharge,
thereby waiving his right to challenge counts I and II on
speedy trial grounds; and (4) that the district court erred in
failing to take into account any mitigating factors in sentenc-
ing Betancourt.
[1] Further, Betancourt argues, but does not assign, that his
counsel was ineffective in failing to investigate, develop, and
present exculpatory evidence to support his alibi defense. But
an appellate court does not consider errors which are argued
but not assigned. State v. Sellers, 290 Neb. 18, 858 N.W.2d
577 (2015).
IV. STANDARD OF REVIEW
[2] Regarding questions of law presented by a motion to
quash or plea in abatement, an appellate court is obligated to
reach a conclusion independent of the determinations reached
by the trial court. See, State v. Gozzola, 273 Neb. 309, 729
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N.W.2d 87 (2007) (motion to quash); State v. Bottolfson, 259
Neb. 470, 610 N.W.2d 378 (2000) (plea in abatement).
[3] Regardless of whether the evidence is direct, circum-
stantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insuffi-
ciency 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. Duncan,
293 Neb. 359, 878 N.W.2d 363 (2016).
[4] Whether a claim of ineffective assistance of trial counsel
may be determined on direct appeal is a question of law. State
v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014).
V. ANALYSIS
1. Motion to Quash
Betancourt contends that the district court erred in overrul-
ing his motion to quash the amended information. He argues
that the amended information showed on its face that the
3-year statute of limitations set forth in § 29-110 barred the
State’s prosecution. However, as the State correctly points
out, Betancourt’s motion to quash was limited to only count
III, the conspiracy charge. Because Betancourt’s motion to
quash references only count III, we shall limit our discus-
sion accordingly.
[5] In addition, Betancourt specifically assigns that the
amended information showed on its face that the 3-year stat-
ute of limitations barred any prosecution. Appellate review
is limited to those errors specifically assigned as error in an
appeal to a higher appellate court. State v. Hays, 253 Neb.
467, 570 N.W.2d 823 (1997). Therefore, we shall treat his
motion as one to quash count III based upon the face of the
amended information.
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[6-8] In Betancourt’s challenge to the amended information,
he points out that because all relevant events were alleged
to have taken place in 2003, the amended information was
required to set forth facts that tolled the 3-year statute of limi-
tations. He quotes a civil case, Broekemeier Ford v. Clatanoff,
240 Neb. 265, 272, 481 N.W.2d 416, 421 (1992): “‘If a peti-
tion alleges a cause of action ostensibly barred by the statute
of limitations, such petition, in order to state a cause of action,
must show some excuse tolling the operation and bar of the
statute.’” Quoting S.I.D. No. 145 v. Nye, 216 Neb. 354, 343
N.W.2d 753 (1984). However, the controlling criminal case is
Emery v. State, 138 Neb. 776, 777, 295 N.W. 417, 418 (1940),
wherein this court held:
It is generally sufficient in an information to describe the
crime charged in the language of the statute and it is not
ordinarily necessary to negative the exceptions contained
in a statute defining a crime if they are not descrip-
tive of the offense. . . . The statute of limitations is not
descriptive of the offense and it is not necessary to plead
an exception which makes it inoperative. . . . We think
the better rule is that statutes of limitation, as applied
to criminal procedure, need not be pleaded and may be
raised under the general plea of not guilty.
(Citations omitted.) Therefore, the State is not required to
plead an exception to the statute of limitations in a criminal
case. But the State, within the information, has the burden to
set forth all of the elements of the crime charged. See State
v. Jost, 219 Neb. 162, 361 N.W.2d 526 (1985). Certainly,
that burden required the State to allege that the crime had
been committed within the time fixed by law. The amended
information in this instance fulfilled these requirements; thus,
we conclude that the district court did not err in overruling
Betancourt’s motion to quash.
2. Directed Verdict
[9] Betancourt assigns that the district court erred in not
directing a verdict of acquittal because the State failed to
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produce evidence sufficient to sustain a jury verdict that he
was “fleeing from justice” as provided in § 29-110(1). Section
29-110 states:
(1) Except as provided in subsections (2) and (3) of
this section, no person or persons shall be prosecuted for
any felony . . . unless the indictment for the same shall
be found by a grand jury within three years next after the
offense shall have been done or committed or unless a
complaint for the same shall be filed before the magistrate
within three years next after the offense shall have been
done or committed and a warrant for the arrest of the
defendant shall have been issued . . . . This section shall
not extend to any person fleeing from justice.
The phrase “fleeing from justice” means leaving one’s usual
abode or leaving the jurisdiction where an offense has been
committed, with intent to avoid detection, prosecution, or
punishment for some public offense. See State v. Thomas,
236 Neb. 84, 459 N.W.2d 204 (1990), disapproved on other
grounds, State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999).
The State contends that this assignment of error, like the
previous one, is limited to count III because the issue of “flee-
ing from justice” applies only to that count, counts I and II
having been filed within the statute of limitations. We agree.
Because the State filed counts I and II of the amended infor-
mation within the 3-year statute of limitations, any delay in
their prosecution would be reviewed pursuant to a motion to
discharge. See Neb. Rev. Stat. § 29-1207 (Reissue 2016). As a
result, we shall limit our analysis of this assignment of error to
count III of the amended information.
[10] Betancourt essentially challenges the sufficiency of
the evidence to support his conspiracy conviction. Prior to
trial, Betancourt raised the 3-year statute of limitations set
forth by § 29-110 as an affirmative defense to any prosecu-
tion for events which occurred in 2003. See State v. Loyd, 269
Neb. 762, 696 N.W.2d 860 (2005) (statute of limitations is
affirmative defense). Whether it applied ultimately became a
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factual question for the jury to resolve, and the district court
properly instructed the jury to consider count III in light of
the definition of “flee[ing] from justice.” The jury made the
factual determination that the evidence was sufficient to show
that Betancourt had fled from justice. And an appellate court
does not resolve conflicts in the evidence, pass on the credibil-
ity of the 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 properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support the conviction. State v. Larsen, 255 Neb. 532, 586
N.W.2d 641 (1998). However, for the sake of completeness, we
consider Betancourt’s arguments.
[11] Betancourt primarily contends that given the fact he
waived extradition back to Nebraska, there is insufficient
evidence to support a finding that he was “fleeing from jus-
tice.” Brief for appellant at 23. In a criminal case, the court
can direct a verdict only when (1) there is a complete failure
of evidence to establish an essential element of the crime
charged or (2) evidence is so doubtful in character and lacking
in probative value that a finding of guilt based on such evi-
dence cannot be sustained. State v. Brown, 235 Neb. 374, 455
N.W.2d 547 (1990). However, under this standard and upon
this record, we cannot conclude that the district court erred
in overruling Betancourt’s motions for directed verdict. There
was evidence that upon seeing law enforcement officers near
the shed where they had left Pedro, Betancourt and Torres fled
to Texas. Subsequently, Betancourt was arrested and waived
extradition proceedings, thus showing that he was aware that
charges were pending against him in Nebraska. Yet, there is
no evidence that Betancourt made any effort to surrender to
Nebraska authorities while in custody prior to his deportation
or after.
Betancourt further argues that although he did leave the
State of Nebraska for Texas, once he was arrested in Texas
and waived extradition proceedings, this stopped any tolling
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associated with his initial flight. Betancourt relies on United
States v. Gonsalves, 675 F.2d 1050 (9th Cir. 1982), where the
court held that the statute of limitations period is not tolled
during the time an accused makes a good faith effort to surren-
der himself to authorities. However, any efforts by Betancourt
to voluntarily surrender to Nebraska authorities ended after
he was taken into custody by the immigration services and
deported to Mexico.
Betancourt also cites United States v. Catino, 735 F.2d 718
(2d Cir. 1982), where the government agreed that a fugitive
who executes a formal and voluntary consent to extradition
regains the benefit of the statute of limitations. Here, we
discern a significant difference between Betancourt’s sign-
ing a waiver of extradition and actually submitting himself to
Nebraska authorities, which he failed to do.
The court in Catino further found that the intent to flee from
prosecution or arrest may be inferred from a person’s failure
to surrender to authorities once he learns that charges against
him are pending and that “[a] person can be ‘fleeing from jus-
tice’ in one jurisdiction even though in prison in another.” 735
F.2d at 722. Both points apply here, in that Betancourt knew
about pending charges in Nebraska and we see no distinction
between his apprehension by the immigration services and
imprisonment in another state.
Further, Betancourt argues:
[T]he lack of any attempt by Nebraska law enforcement
authorities to follow up on Betancourt’s whereabouts
upon being transferred to [DHS] custody on or after May
17, 2004, further lends support to Betancourt’s argument
that the State failed to meet its burden to show the statute
of limitations was tolled in the case at bar.
Brief for appellant at 24. In support, he cites U.S. v. Sotelo-
Salgado, 201 F. Supp. 2d 957, 966 (S.D. Iowa 2002), where the
court held that it was “fundamentally unfair” to toll a statute
of limitations where there was evidence of inaction by the gov-
ernment to locate a wanted person. However, Sotelo-Salgado
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is distinguishable from this instance because in that case, the
federal authorities were notified but took no action to appre-
hend the fugitive.
In this case, law enforcement immediately attempted to
extradite Betancourt. This certainly constitutes immediate
action. Moreover, as the State points out, Nebraska had lit-
tle authority after the immigration services took Betancourt
into custody and deported him to Mexico. Nor did Nebraska
authorities have the means to detect when Betancourt illegally
reentered the United States. In sum, we conclude that because
Betancourt did not actually surrender himself to Nebraska
authorities after fleeing, in person or through another law
enforcement agency, the evidence the State produced was
sufficient to sustain a verdict that Betancourt was “fleeing
from justice.”
Therefore, the district court did not err in overruling
Betancourt’s motions for directed verdict.
3. Ineffective Assistance
of Counsel
[12,13] We next address Betancourt’s allegation that he
received ineffective assistance of counsel. We have often 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. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571
(2014). The determining factor is whether the record is suffi-
cient to adequately review the question. 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.
In this instance, Betancourt assigns and argues that his
trial counsel was deficient in dismissing his appeal of the
district court’s order that overruled his motion for absolute
discharge on counts I and II. Although Betancourt does not
set forth specifically how the district court erred in over-
ruling his motion for absolute discharge on counts I and II,
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both his allegations and the record are sufficient to warrant
further review.
[14,15] The test for ineffective assistance of counsel is
well settled. 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 defend­
ant’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. 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. Id.
[16,17] When a defendant alleges he or she was prejudiced
by trial counsel’s failure to properly assert the defendant’s
speedy trial rights on appeal, the court must consider the mer-
its of the defendant’s speedy trial rights under Strickland. See
State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006). See,
also, State v. Meers, 267 Neb. 27, 671 N.W.2d 234 (2003).
Only if the motion should have resulted in the defendant’s
absolute discharge, thus barring a subsequent trial and con-
viction, could the failure to make a motion for discharge be
deemed prejudicial. State v. Sims, 272 Neb. 811, 725 N.W.2d
175 (2006).
(a) Statutory Speedy Trial
[18,19] We first consider whether Betancourt’s motion for
discharge would have been successful under statutory speedy
trial grounds. Nebraska’s speedy trial statutes require that
those who are charged with crimes be brought to trial within
6 months, as calculated by the applicable statute. State v.
Lee, 282 Neb. 652, 807 N.W.2d 96 (2011). To calculate the
deadline for trial under the speedy trial statutes, a court must
exclude the day the State filed the information, count forward
6 months, back up 1 day, and then add any time excluded
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under § 29-1207(4). State v. Lee, supra. If the State does
not bring the defendant to trial within the permissible time,
the court must order an absolute discharge from the offense
charged. Id.
[20] In this case, the original information was filed on
August 21, 2013. For a felony, the speedy trial clock begins
to run on the date that the indictment is returned or the infor-
mation is filed, not on the date on which the complaint is
filed. Id. Betancourt filed his motion for absolute discharge
on November 14. The district court determined that only 55
days should count against the State pursuant to the speedy
trial statute. Based upon the record, we concur. Therefore, trial
counsel was not ineffective in not pursuing a meritless argu-
ment. See id.
(b) Constitutional Right
to Speedy Trial
[21] We next consider Betancourt’s contention that his
motion for discharge would have succeeded on appeal due
to a violation of his right to a speedy trial under U.S. Const.
amend. VI and Neb. Const. art. I, § 11. Determining whether
a defendant’s constitutional right to a speedy trial has been
violated requires a balancing test in which the courts must
approach each case on an ad hoc basis. This balancing test
involves four factors: (1) length of delay, (2) the reason for
the delay, (3) the defendant’s assertion of the right, and (4)
prejudice to the defendant. State v. Sims, supra. None of these
four factors standing alone is a necessary or sufficient con-
dition to the finding of a deprivation of the right to speedy
trial. Rather, the factors are related and must be considered
together with other circumstances as may be relevant. Id. See,
also, Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed.
2d 101 (1972).
[22] In analyzing the prejudice factor of this four-factor
test, the U.S. Supreme Court in Barker v. Wingo, supra,
enumerated three aspects: (1) preventing oppressive pretrial
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incarceration, (2) minimizing anxiety and concern of the
defendant, and (3) limiting the possibility that the defense will
be impaired by dimming memories and loss of exculpatory
evidence. Of these three aspects, the third is considered most
important “because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system.” Id.,
407 U.S. at 532.
[23] First, we must examine the length of the delay, which
acts as the “triggering mechanism.” Id., 407 U.S. at 530. Until
there is some delay which is presumptively prejudicial, there
is no necessity for inquiry into the other factors that go into
the balance. Id. In this matter, the district court found that the
10-year delay from initial arrest until trial was “presumptively
prejudicial” and that this factor favored Betancourt, citing
Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L.
Ed. 2d 520 (1992), and U.S. v. Erenas-Luna, 560 F.3d 772 (8th
Cir. 2009). We agree that the 10-year delay from initial arrest
until trial was “presumptively prejudicial.” Therefore, we move
to the second factor.
Under the second Barker factor, we consider the reasons
for the delay and evaluate “whether the government or the
criminal defendant is more to blame.” Doggett v. United States,
505 U.S. at 651. Accord U.S. v. Erenas-Luna, supra. Here,
the record contains no evidence that the State intentionally or
negligently caused the delay. Further, Betancourt’s citizenship
status led to his deportation to Mexico, which caused the delay.
Moreover, as pointed out by the State, with Betancourt know-
ing of the pending charges, he could have contacted authori-
ties to resolve this case. This second Barker factor weighs
against Betancourt.
The third Barker factor considers whether in due course
the defendant asserted his right to a speedy trial. Doggett
v. United States, supra; U.S. v. Erenas-Luna, supra. Again,
Betancourt did not assert this right until he returned to
Nebraska after a 10-year absence. This third Barker factor
weighs against Betancourt.
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[24] The final Barker factor considers whether the defendant
suffered prejudice as a result of the delay. Doggett v. United
States, supra; U.S. v. Erenas-Luna, supra. A showing of actual
prejudice is required if the government exercised reasonable
diligence in pursuing the defendant. Doggett v. United States,
supra; U.S. v. Erenas-Luna, supra. Here, the State promptly
attempted to extradite Betancourt but was prohibited by the
federal government’s deporting him. In addition, it is not rea-
sonable to expect the State to assume that Betancourt would
again illegally enter the United States or, if he did reenter,
that he would not enter under the scrutiny of federal authori-
ties. Because the State acted diligently to the extent it could,
Betancourt must show actual prejudice. He did not offer any
instance of prejudice nor argue any presumed prejudice. This
factor weighs against Betancourt.
After weighing the totality of the circumstances and the
four factors from Barker v. Wingo, supra, we conclude that
Betancourt’s right to a speedy trial under U.S. Const. amend.
VI and Neb. Const. art. I, § 11, was not violated. Because
Betancourt’s motion for absolute discharge lacked merit,
trial counsel could not be ineffective by moving for dis-
missal of Betancourt’s appeal of the district court’s denial of
that motion.
4. Mitigating Factors
at Sentencing
[25,26] Betancourt challenges his sentence on count I, the
kidnapping conviction. Section 28-313(3) provides, “If the
person kidnapped was voluntarily released or liberated alive
by the abductor and in a safe place without having suffered
serious bodily injury, prior to trial, kidnapping is a Class II
felony.” The provisions of § 28-313(3) are mitigating circum-
stances which may reduce the penalty for kidnapping and are
therefore a matter for the court at sentencing, not the jury.
See State v. Becerra, 263 Neb. 753, 642 N.W.2d 143 (2002).
Rescue is not a voluntary release of a kidnapping victim. State
v. Delgado, 269 Neb. 141, 690 N.W.2d 787 (2005).
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Betancourt contends, “Because the evidence at trial showed
that [Pedro] was voluntarily released, alive, . . . in a safe place
without having suffered any bodily injury whatsoever . . . , the
mitigating factors set forth in . . . § 28-313(3) were satisfied.”
Brief for appellant at 30. Consequently, he argues that the
district court should have treated the kidnapping conviction
as a Class II felony, resulting in a sentence to a term of years
rather than life imprisonment.
The evidence at trial reflected that after Betancourt and
Torres had kidnapped Pedro, bound him with tape and “shoe-
string type cord,” gagged him, and threatened him with a gun,
they placed him in a shed. Pedro testified that Betancourt told
him that he was going to leave him there, bring Jose to the
same location, and then kill them both. Pedro advised that
Betancourt and Torres had not injured him or tethered him to
anything inside the shed and that the doorway to the shed was
open. Pedro, still bound, managed to stand and jump to the
nearest house, where officers found him. Based on these facts,
the district court found count I to be a Class IA felony, because
Betancourt did not voluntarily release Pedro, who instead
escaped through his own efforts.
Pedro’s ability to effectuate an escape despite being
bound and gagged does not equate with a voluntary release.
Accordingly, we conclude that the mitigating factors in
§ 28-313(3) were not present, because the rescue was not a
voluntary release, and that the district court did not err in find-
ing count I to be a Class IA felony.
5. Plain Error
[27] Finally, although the State did not file a cross-appeal
contending that the sentence imposed was excessively lenient,
it urges us to recognize plain error. The State argues that the
district court committed plain error in the classification of,
and the sentence for, count III, the conspiracy conviction.
Plain error exists where there is error, plainly evident from
the record but not complained of at trial, which prejudicially
affects a substantial right of a litigant and is of such a nature
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that to leave it uncorrected would cause a miscarriage of jus-
tice or result in damage to the integrity, reputation, and fair-
ness of the judicial process. State v. Aguallo, 294 Neb. 177,
881 N.W.2d 918 (2016).
The State points out that Neb. Rev. Stat. § 28-202(4)
(Reissue 2008) provided, “Conspiracy is a crime of the same
class as the most serious offense which is an object of the
conspiracy, except that conspiracy to commit a Class I felony
is a Class II felony.” Here, the most serious offense which
was an object of the conspiracy was kidnapping, a Class IA
felony. See § 28-313(2). Therefore, count III, the conspiracy
conviction, was a Class IA felony and had a mandatory sen-
tence of life imprisonment. See Neb. Rev. Stat. § 28-105
(Reissue 2008). The district court erroneously treated count III
as a Class II felony and sentenced Betancourt to 30 to 50
years’ imprisonment.
[28] We digress to note that Betancourt acknowledges this
mistake, but argues that the district court incorrectly advised
him at the arraignment hearing using the classification and
penalty above, and that he relied on the incorrect advisement
to his detriment, resulting in the violation of his due process
rights. He cites State v. Schnell, 17 Neb. Ct. App. 211, 220, 757
N.W.2d 732, 739 (2008), for the proposition that “[w]here
a defendant was unaware of the penal consequences of his
or her guilty plea because he or she had been misinformed
by the court, his or her plea is not voluntary.” Citing State
v. Golden, 226 Neb. 863, 415 N.W.2d 469 (1987). However,
both Schnell and Golden are distinguishable from the case at
hand because they involved pleas. Here, Betancourt pled not
guilty and went to trial. Where a defendant pleads not guilty at
arraignment and proceeds to trial, “the considerations involved
in determining whether one freely, intelligently, voluntarily,
and understandingly pleads guilty have no application . . . ,
for in such a circumstance, the defendant does not surrender
the constitutional rights inherent in a trial.” State v. McBride,
252 Neb. 866, 876, 567 N.W.2d 136, 144 (1997). Because
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Betancourt proceeded to trial, there has been no violation of
his due process rights.
Turning again to plain error, where, after a conviction fol-
lowing a jury trial, the trial judge imposed an incorrect sen-
tence, we have found plain error and ordered the trial court
to correct the sentence. See State v. Thorpe, 280 Neb. 11,
26, 783 N.W.2d 749, 762 (2010) (remanding with directions
to resentence to life imprisonment because “life imprison-
ment without parole” was not a valid sentence for first degree
murder). In this instance, the incorrect sentence constituted
plain error, and we remand for imposition of a sentence of
life imprisonment.
VI. CONCLUSION
Having found no merit to Betancourt’s assigned errors, we
affirm his convictions for counts I, II, and III and his sentences
for counts I and II. However, because we find plain error in the
sentencing for count III, we vacate that sentence and remand
the matter to the district court with directions to resentence
Betancourt to “life imprisonment” for count III.
A ffirmed in part, and in part vacated
and remanded for resentencing.