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State v. Armendariz

Supreme Court of Nebraska

January 16, 2015

STATE OF NEBRASKA, APPELLEE,
v.
JONATHON L. ARMENDARIZ, APPELLANT

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Appeal from the District Court for Sarpy County: David K. Arterburn, Judge.

Affirmed.

Jonathon L. Armendariz, Pro se.

Jon Bruning, Attorney General, and Erin E. Tangeman for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 780

[289 Neb. 898] Stephan, J.

Jonathon L. Armendariz pled guilty to an amended information charging one count of second degree murder and one count of use of a firearm to commit a felony. The Nebraska Court of Appeals summarily affirmed a direct appeal filed by his trial counsel. Armendariz then filed this action seeking postconviction relief. The district court denied relief without conducting an evidentiary hearing, and Armendariz filed this timely appeal. We affirm the judgment of the district court.

I. FACTS

Armendariz was originally charged with one count of first degree murder, one count of use of a firearm to commit a felony, and one count of robbery. In July 2011, he pled guilty to an amended information charging one count of second degree murder and one count of use of a firearm to commit a felony. At the time the pleas were entered, Armendariz informed the court that there had been no promises or threats made to him in exchange for his pleas and that he was acting freely and voluntarily. Armendariz also told the court that he understood the proceedings and that he knew what he was doing.

Before accepting the pleas, the court advised Armendariz of his constitutional and statutory rights, and cautioned Armendariz to ask any questions he had during the advisement. The court advised Armendariz that he had a right to be represented by an attorney at all stages of the proceedings, including sentencing; that he had the right not to incriminate

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himself, which included the right to remain silent at any hearing or trial; that he was presumed innocent; that he had the right to a speedy and public trial before a jury; that he had the right to confront his accusers at trial; that he had the right to cross-examine his accusers at trial; and that he had the right at trial to call witnesses on his own behalf. Armendariz was also advised that if he went to trial, a jury would have to find him [289 Neb. 899] guilty beyond a reasonable doubt; that he had a right to challenge any search or seizure and contest the use of evidence obtained during them; and that because he was 17 years old when the crimes were committed, he had the right to seek transfer to juvenile court. He was also advised that he had the right to appeal any final order of the court.

The court then advised Armendariz that if he entered a guilty plea, he was waiving most of the rights he had just been advised of. He was specifically advised that he retained the right to have his attorney represent him and retained the right to appeal, but that by pleading guilty, he was waiving many appeal issues.

Armendariz was advised by the court that to prove the charge of second degree murder, the State would have to prove beyond a reasonable doubt that he intentionally, but without premeditation, killed the victim. Armendariz acknowledged his understanding that by entering the pleas, he was relieving the State of its trial burden and would be found guilty based on the pleas and the factual basis provided by the State. He was advised that the possible penalty for second degree murder was a minimum of 20 years' imprisonment and a maximum of life imprisonment. He informed the court he understood the possible penalties. Armendariz stated he had reviewed the facts of the case and explained his story to his attorney, had explored possible defenses with his attorney, and had discussed the possible penalties with his attorney. He stated he was satisfied with the services and advice received from his counsel.

The State then gave a factual basis for the pleas. Summarized, it was that the victim was found in his bedroom and had died of a single gunshot wound to the back of his head, which shot was fired at close range. A 9-mm shell casing and a spent bullet were found at the crime scene. Investigators discovered that the last cell phone call to the victim had been placed by Armendariz, and when they searched Armendariz' residence, they discovered a 9-mm handgun and two cell phones that had belonged to the victim. The handgun was tested and found to be the weapon that had fired the bullet that matched the shell casing found at the [289 Neb. 900] crime scene. A witness was located and informed police that he had gone with Armendariz to the victim's home the morning of the crime in order to rob the victim and had stayed in the car while Armendariz went inside.

In response to this, Armendariz' attorney informed the court that " [t]he actual facts would not support that there was going to be or that there was a robbery, but we don't dispute that the State has a witness that would testify to that." He otherwise agreed with the factual basis as presented by the State.

Armendariz' guilty pleas were accepted by the court. At sentencing, he informed the court, " I know I'm going to prison, and I have come to terms with that. I just hope it's not for life. . . . Whether I do life or 20 years in prison, everything happens for a reason . . . ." He ultimately was sentenced to 80 years' to life imprisonment on the murder charge and 10 to 20 years' imprisonment on the firearm charge. His trial counsel filed a direct appeal, assigning as error that the sentences imposed were excessive. The Court of Appeals summarily affirmed.

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Armendariz subsequently filed this action for postconviction relief, alleging ineffective assistance of trial and appellate counsel. After allowing Armendariz leave to amend his original postconviction motion, the district court denied relief without conducting an evidentiary hearing. Armendariz filed this timely appeal.

II. ASSIGNMENTS OF ERROR

Armendariz broadly assigns that the district court erred in not granting him an evidentiary hearing on the claims of ineffective assistance of counsel that he asserted in his amended motion for postconviction relief. Arguments in support of each of these claims are scattered throughout his pro se brief. In addition to this broad assignment of error and related arguments, he specifically assigns and argues that he was entitled to an evidentiary hearing, because his trial counsel (1) failed to transfer or move to transfer his case to juvenile court, (2) failed to have him evaluated prior to entering his guilty pleas, (3) failed to prepare an adequate defense, (4) failed to create a [289 Neb. 901] record of the factual basis of the crimes, (5) failed to move to suppress his statements, (6) misadvised him prior to the entry of his pleas, (7) failed to challenge information in the presentence investigation report, and (8) failed to object during the colloquy when he entered his guilty pleas.

Armendariz also assigns that the district court erred in not combining his original postconviction motion with his amended motion and in not appointing him counsel ...


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