State v. Barrera-Garrido , 296 Neb. 647 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/14/2017 01:10 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. BARRERA-GARRIDO
Cite as 296 Neb. 647
State of Nebraska, appellee, v.
A rturo Barrera-Garrido, appellant.
___ N.W.2d ___
Filed May 12, 2017. No. S-16-426.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo
a determination that the defendant failed to allege sufficient facts to
demonstrate a violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is entitled to
no relief.
2. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
To establish a right to postconviction relief because of counsel’s inef-
fective assistance, the defendant has the burden, in accordance with
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), to show that counsel’s performance was deficient; that is,
counsel’s performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law. Next, the defendant must show that coun-
sel’s deficient performance prejudiced the defense in his or her case. To
show prejudice, the defendant must demonstrate a reasonable probability
that but for counsel’s deficient performance, the result of the proceeding
would have been different.
3. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
tion is based upon a guilty or no contest plea, the prejudice requirement
for 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 or no contest.
4. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
When a district court denies postconviction relief without conduct-
ing an evidentiary hearing, an appellate court must determine whether
the petitioner has alleged facts that would support a claim of inef-
fective assistance of counsel and, if so, whether the files and records
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STATE v. BARRERA-GARRIDO
Cite as 296 Neb. 647
affirmatively show that he or she is entitled to no relief. However, if the
motion alleges only conclusions of fact or law, or the records and files
in the case affirmatively show that the movant is entitled to no relief, no
evidentiary hearing is required.
5. Effectiveness of Counsel: Pleas: Proof. Self-serving declarations that a
defendant would have gone to trial are not enough to warrant a hearing;
a defendant must present objective evidence showing a reasonable prob-
ability that he or she would have insisted on going to trial.
Appeal from the District Court for Douglas County: W.
M ark Ashford, Judge. Affirmed.
Daniel S. Reeker, of Kendall Law Office, P.C., L.L.O.,
for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
I. NATURE OF CASE
Arturo Barrera-Garrido appeals the order of the district
court for Douglas County which overruled his motion for post-
conviction relief without conducting an evidentiary hearing.
We affirm.
II. STATEMENT OF FACTS
In 2014, Barrera-Garrido pled no contest to one count of
first degree false imprisonment and one count of use of a
deadly weapon, not a firearm, to commit a felony. The State
set forth a factual basis in support of the pleas. The State
generally asserted that Barrera-Garrido had used a knife and
other means to hold his then-girlfriend, M.C., captive after
she attempted to leave him “due to some alleged domestic
abuse.” At the time the pleas were accepted, the State dis-
missed a third charge, which was for one count of first degree
sexual assault.
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STATE v. BARRERA-GARRIDO
Cite as 296 Neb. 647
As context for the crimes, the State explained that M.C.’s
sister called police on the morning of February 1, 2014.
According to the sister, on the previous night, she and her
husband had attempted to help M.C., but Barrera-Garrido dis-
played a knife and “pulled” M.C. into a bedroom. The sister
and her husband then left, hoping their departure would defuse
the situation. When the police responded to the call, they
found M.C. “in his, meaning [Barrera-Garrido’s], embrace and
he had a knife displayed as well.” The police were able to free
M.C. from Barrera-Garrido.
When police interviewed M.C., she said that the previ-
ous night, Barrera-Garrido had pulled her into the bedroom,
locked the door, and refused to let her leave. She said that
throughout the night, Barrera-Garrido had “threatened her sev-
eral times with a knife, indicating that he would kill her if she
left him as well as have her family killed.” M.C. further stated
that Barrera-Garrido had “hit her several times all over her
body and even grabbed her by her throat, squeezing slightly,
while he threatened her life” and that “he would take the knife
and tap her left shoulder blade with it over and over while he
was talking to her.”
M.C. initially told police that Barrera-Garrido had asked
her to perform oral sex on him, but that when she refused, he
“grabbed her by the hair” and forced her to engage in oral sex.
She later stated that she had “volunteered” to perform oral sex
“thinking that would help her get out of the situation.”
After police arrested Barrera-Garrido, they placed him in
a cruiser and searched the house for the knife. They did not
find the knife in the house, but they later found a knife in the
cruiser in the area where Barrera-Garrido had been seated. The
State concluded its factual basis by stating that these events
had occurred in Douglas County, Nebraska.
The district court found that Barrera-Garrido’s pleas had
been entered knowingly, understandingly, intelligently, and
voluntarily. The court further found that there was a factual
basis for the pleas and that proper advisement had been made
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STATE v. BARRERA-GARRIDO
Cite as 296 Neb. 647
in regard to the potential for removal from the United States.
The court found Barrera-Garrido guilty of false imprisonment
in the first degree and use of a deadly weapon, not a firearm,
to commit a felony.
On September 18, 2014, the court sentenced Barrera-Garrido
to imprisonment for 5 to 5 years for first degree false impris-
onment and for 15 to 20 years for use of a deadly weapon.
The court ordered the sentences to run consecutively to one
another.
On September 14, 2015, Barrera-Garrido filed a motion
for postconviction relief. He claimed that his trial counsel
provided ineffective assistance in certain respects and that but
for such ineffective assistance, he would not have entered his
pleas. He claimed that counsel (1) did not adequately explain
the charges or the evidence to him, (2) did not “adequately
address evidentiary issues” and failed to pursue potential wit-
nesses suggested by him, (3) failed to pursue an affirmative
defense based on his assertion that he possessed a knife for
the sole purpose of self-defense because M.C.’s family mem-
bers had threatened him, (4) refused to “fight the charges”
and instead coerced him to take a plea agreement he did not
want, and (5) did not adequately advise him regarding the
consequences of entering pleas and instead advised him that
“he should just plead guilty to the charges with no plea agree-
ment.” As an additional claim, Barrera-Garrido asserted that
the court’s order entered after the plea hearing “points out that
no plea agreement was entered into in the case.”
In an order filed March 29, 2016, the district court over-
ruled Barrera-Garrido’s motion for postconviction relief with-
out conducting an evidentiary hearing. The court considered
and rejected each of Barrera-Garrido’s claims of ineffective
assistance of counsel.
The court first addressed Barrera-Garrido’s claim that coun-
sel failed to explain the charges and the evidence against him.
The court referred to the record of the plea hearing and noted
that whether or not counsel had advised him properly, the court
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STATE v. BARRERA-GARRIDO
Cite as 296 Neb. 647
itself “fully explained the charges,” and that Barrera-Garrido
stated he understood the charges. The court also noted that
Barrera-Garrido replied in the affirmative when asked whether
he had sufficient time to discuss the case with his attorney and
whether the attorney had done a good job. The court finally
noted that after the State “provided a thorough description” of
the factual basis for the charges and the evidence supporting
such factual basis, Barrera-Garrido stated that he did not have
any questions or concerns for the court. The court concluded
that these “unequivocal representations” by Barrera-Garrido at
the plea hearing established that he was not entitled to an evi-
dentiary hearing on his claim that counsel failed to adequately
explain the charges and evidence against him.
The court then considered together the next three of the five
claims set forth above. The court characterized the claims as
a claim that “counsel was ineffective in several areas of his
investigation of the case, including failing to depose [M.C.],
not contacting witnesses he provided to counsel or in pursu-
ing a self-defense claim.” The court noted that during the
plea hearing, both the State and defense counsel referred to
a deposition of M.C. With regard to Barrera-Garrido’s other
claims, including his reference to the “other witnesses” that
counsel allegedly failed to pursue, the court determined that
Barrera-Garrido “failed to set forth enough facts, such as the
name[s] of the witnesses or what exculpatory evidence would
have been found had such further investigation been pursued.”
The court concluded that these claims did not warrant an evi-
dentiary hearing.
Finally, the court addressed Barrera-Garrido’s claim that
counsel coerced him to enter pleas and did not pursue plea
negotiations. The court noted that the record refuted this alle-
gation, because the court stated at the plea hearing that the
State would request that the sexual assault charge be dismissed
pursuant to a plea agreement negotiated by defense counsel
and the county attorney. The court concluded that this claim
did not warrant an evidentiary hearing.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. BARRERA-GARRIDO
Cite as 296 Neb. 647
Barrera-Garrido appeals the district court’s order which
overruled his motion for postconviction relief without conduct-
ing an evidentiary hearing.
III. ASSIGNMENT OF ERROR
Barrera-Garrido claims that the district court erred when it
overruled his motion for postconviction relief and denied his
request for an evidentiary hearing on his claims of ineffective
assistance of counsel.
IV. STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appel-
late court reviews de novo a determination that the defendant
failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirma-
tively show that the defendant is entitled to no relief. State v.
Robertson, 294 Neb. 29, 881 N.W.2d 864 (2016).
V. ANALYSIS
1. Postconviction Standards
We begin by setting forth standards relating to our review
of the district court’s order which overruled Barrera-Garrido’s
motion for postconviction relief.
Barrera-Garrrido makes various postconviction claims of
ineffective assistance of counsel in connection with the entry
of his pleas. The district court overruled Barrera-Garrido’s
motion for postconviction relief without conducting an eviden-
tiary hearing.
[2] To establish a right to postconviction relief because of
counsel’s ineffective assistance, the defendant has the burden,
in accordance with Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to show that coun-
sel’s performance was deficient; that is, counsel’s performance
did not equal that of a lawyer with ordinary training and skill
in criminal law. Next, the defendant must show that counsel’s
deficient performance prejudiced the defense in his or her case.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. BARRERA-GARRIDO
Cite as 296 Neb. 647
To show prejudice, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different. State v.
Ely, 295 Neb. 607, 889 N.W.2d 377 (2017).
[3] When a conviction is based upon a guilty or no contest
plea, the prejudice requirement for 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 or no contest. See State v. Armendariz, 289 Neb. 896,
857 N.W.2d 775 (2015).
[4] When a district court denies postconviction relief with-
out conducting an evidentiary hearing, an appellate court must
determine whether the petitioner has alleged facts that would
support a claim of ineffective assistance of counsel and, if so,
whether the files and records affirmatively show that he or
she is entitled to no relief. State v. Ely, supra. However, if the
motion alleges only conclusions of fact or law, or the records
and files in the case affirmatively show that the movant is
entitled to no relief, no evidentiary hearing is required. State v.
Harrison, 293 Neb. 1000, 881 N.W.2d 860 (2016).
Finally, we note that the State concedes in its brief that
Barrera-Garrido was represented by his trial counsel during
the time in which he could have filed a direct appeal and that
therefore, this postconviction motion was his first opportunity
to assert ineffective assistance of trial counsel. See State v.
Payne, 289 Neb. 467, 855 N.W.2d 783 (2014).
2. Merits of Barrera-Garrido’s A ppeal
On appeal, Barrera-Garrido generally claims that the district
court erred when it rejected his claims of ineffective assist­
ance of counsel and overruled his motion for postconviction
relief without conducting an evidentiary hearing. Although he
alleged various instances of ineffective assistance, Barrera-
Garrido focuses on three claims: (1) that counsel failed to
adequately inform him regarding the charges and the evidence
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE v. BARRERA-GARRIDO
Cite as 296 Neb. 647
against him, (2) that counsel failed to investigate and pursue
potential witnesses and potential defenses, and (3) that coun-
sel pressured him to enter pleas that were not advantageous
to him.
(a) Alleged Failure to Inform
Barrera-Garrido first argues that the district court erred
when it rejected his claim that counsel failed to adequately
inform him of the charges and the evidence against him. We
conclude that the district court did not err when it determined
that this claim did not warrant an evidentiary hearing.
Barrera-Garrido claimed in his postconviction motion that
“counsel did not fully explain the charges to him and that
[counsel] did not adequately review the evidence with him.”
He alleged that as a result of counsel’s failure to adequately
inform him of these matters, it was “impossible for [him]
to knowingly and intelligently enter a plea in his case.” The
district court rejected this claim because the record showed
that at the plea hearing, the court fully explained the charges
to Barrera-Garrido and he indicated that he understood the
charges. The district court also noted that Barrera-Garrido
stated to the court that he did not have any questions or con-
cerns regarding the factual basis for the pleas that was set forth
by the State. The district court concluded that these “unequivo-
cal representations” showed that no evidentiary hearing was
required on Barrera-Garrido’s claim that counsel failed to
adequately inform him.
In connection with his failure to inform claim, Barrera-
Garrido refers us to Padilla v. Kentucky, 559 U.S. 356, 130
S. Ct. 1473, 176 L. Ed. 2d 284 (2010), a case regarding the
failure to inform a defendant of immigration consequences.
Barrera-Garrido relies on Padilla in support of his argu-
ment that counsel’s failure to explain important information
to a defend­ ant is considered ineffective assistance regard-
less of whether or not the court explains such information to
the defendant. Barrera-Garrido seems to conclude that under
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STATE v. BARRERA-GARRIDO
Cite as 296 Neb. 647
Padilla deficient performance equates to ineffective assistance
of counsel. We believe that Padilla does not support the broad
conclusion Barrera-Garrido urges.
As the State notes, the U.S. Supreme Court in Padilla
stated that allegations of counsel’s failure to inform were suf-
ficient allegations of “constitutional deficiency to satisfy the
first prong of Strickland,” i.e., deficient performance, but that
whether the defendant was “entitled to relief on his claim will
depend on whether he can satisfy Strickland’s second prong,
prejudice.” 559 U.S. at 369. Consistent with Padilla, we have
looked to a court’s advisements in a plea hearing to refute a
defendant’s claim that he was prejudiced by counsel’s failure to
advise him of important information. See State v. Armendariz,
289 Neb. 896, 857 N.W.2d 775 (2015).
Whether or not Barrera-Garrido’s counsel adequately
informed him regarding the charges and the evidence against
him, Barrera-Garrido could not show prejudice because he was
informed of the charges and the evidence at the plea hearing.
We further note that Barrera-Garrido indicated that he under-
stood the charges and did not have concerns regarding the fac-
tual basis. Thus, Barrera-Garrido could not show a reasonable
probability that he would not have entered pleas and insisted
on going to trial but for counsel’s alleged failures to adequately
inform him. We therefore determine that the district court did
not err when it rejected this claim without conducting an evi-
dentiary hearing.
(b) Alleged Failure to Investigate
Barrera-Garrido next claims that the district court erred
when it rejected his claim that counsel failed to investigate
and pursue potential witnesses and potential defenses. We con-
clude that the district court did not err when it determined that
this claim did not warrant an evidentiary hearing.
In his postconviction motion, Barrera-Garrido alleged that
trial counsel failed to interview potential witnesses suggested
by him and failed to investigate and pursue a self-defense
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STATE v. BARRERA-GARRIDO
Cite as 296 Neb. 647
theory based on his claim that M.C.’s family members were
threatening him. The district court concluded that these allega-
tions did not warrant an evidentiary hearing, because Barrera-
Garrido failed to set forth facts to indicate how such further
investigation would have helped his defense.
In his postconviction motion, Barrera-Garrido did not iden-
tify the potential witnesses or what they would have said
that would have helped his defense. To the extent it may be
assumed that these witnesses would have supported his claim
of self-defense based on the existence of threats by mem-
bers of M.C.’s family, Barrera-Garrido did not show how
such a defense would have been successful. The charges to
which Barrera-Garrido pled—false imprisonment and use of a
weapon to commit a felony—were based on allegations that he
held M.C. captive overnight after she attempted to leave him
and that he used a knife to do so. Although the evidence indi-
cated that members of M.C.’s family were present at a previ-
ous point in time, the evidence further indicated that for much
of the period during which Barrera-Garrido was holding M.C.
captive, only the two of them were present. Barrera-Garrido
does not explain how the earlier threats required him to use a
knife to hold M.C. captive or how holding her captive over-
night was necessary to defend himself from the earlier threats
of family members.
Barrera-Garrido presents no plausible explanation of how
his proposed theory of self-defense could have been success-
ful against the charges of false imprisonment and use of a
weapon or how any other witnesses could have helped his
defense. We therefore conclude that the district court did not
err when it rejected this claim without conducting an eviden-
tiary hearing.
(c) Alleged Failure to Negotiate
Plea Agreement
Barrera-Garrido finally argues that the district court erred
when it rejected his claim that counsel failed to negotiate a
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STATE v. BARRERA-GARRIDO
Cite as 296 Neb. 647
plea agreement or, in any event, pressured him to enter a plea
agreement that was not advantageous. We conclude that the
district court did not err when it determined that this claim did
not warrant an evidentiary hearing.
We note first that in connection with this argument, Barrera-
Garrido asserts that counsel failed to negotiate a plea agree-
ment. In his brief in this appeal, Barrera-Garrido asserts that his
pleas were made “pursuant to no negotiated plea agreement.”
Brief for appellant at 6. To support this assertion, Barrera-
Garrido refers us to a checkmarked form in the record on
which a box for “no” is checked next to the words “Negotiated
Plea.” The record of the hearing at which the court accepted
Barrera-Garrido’s pleas refutes the claim that there was no
negotiated plea agreement.
At the beginning of the hearing, Barrera-Garrido’s counsel
stated, “Judge, we are here and we’ve reached an agreement
with the State. My client will plead no contest to two of the
charges and the third will be dismissed.” Later in the hear-
ing, during a colloquy with Barrera-Garrido, the court stated
that a serious charge of first degree sexual assault was going
to be dismissed and that “[t]he reason for that is your attor-
ney has worked with the county attorney and negotiated this
plea arrangement where that third count would be dropped in
exchange for your pleas to Counts I and II, which you’ve just
now pled no contest to.” The court then asked Barrera-Garrido,
“Do you understand the benefit you’re getting or receiv-
ing due to your attorney’s efforts?” Barrera-Garrido replied,
through an interpreter, “Yes.” Therefore, the record refutes
Barrera-Garrido’s allegation that counsel failed to negotiate a
plea agreement.
[5] Furthermore, Barrera-Garrido’s general allegation that
counsel forced him to accept the plea agreement does not war-
rant an evidentiary hearing. We have stated that self-serving
declarations that a defendant would have gone to trial are not
enough to warrant a hearing; a defendant must present objec-
tive evidence showing a reasonable probability that he or she
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STATE v. BARRERA-GARRIDO
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would have insisted on going to trial. See State v. Yos-Chiguil,
281 Neb. 618, 798 N.W.2d 832 (2011). The record of the plea
hearing supports the court’s finding that Barrera-Garrido’s
pleas had been entered knowingly, understandingly, intelli-
gently, and voluntarily. In light of the available evidence
against him, the plea agreement—pursuant to which the
State dropped a first degree sexual assault charge—benefited
Barrera-Garrido. He did not allege facts showing a reasonable
probability that he would have rejected the plea agreement and
insisted on going to trial but for counsel’s alleged coercion;
and his bare assertion of counsel’s coercion did not warrant an
evidentiary hearing. We conclude that the district court did not
err when it rejected this claim without conducting an eviden-
tiary hearing.
VI. CONCLUSION
Having reviewed all of Barrera-Garrido’s claims of ineffec-
tive assistance of counsel, including those claims specifically
discussed above, we conclude that the district court did not err
when it determined that Barrera-Garrido’s motion for postcon-
viction relief should be overruled without conducting an evi-
dentiary hearing. We therefore affirm the district court’s order
overruling the motion.
A ffirmed.