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State v. Ortega

Supreme Court of Nebraska

February 20, 2015


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[Copyrighted Material Omitted]

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Appeal from the District Court for Dakota County, PAUL J. VAUGHAN, Judge, on appeal thereto from the County Court for Dakota County, KURT RAGER, Judge.

Randy S. Hisey and Zachary S. Hindman, of Bikakis, Mayne, Arneson, Hindman & Hisey, for appellant.

Jon Bruning, Attorney General, and Austin N. Relph for appellee.



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[290 Neb. 173] Cassel, J.


After Rodrigo Alberto Ortega, also known as Rodrigo Alberto Garcia, pled guilty to three misdemeanor charges in the county court and was sentenced, he first appealed to the district court. After the district court affirmed, he filed a second appeal to the Nebraska Court of Appeals. In an order authorizing Ortega to proceed in forma pauperis on the second appeal, the district court intended to deny payment of attorney fees beyond the first appeal. Before this court, Ortega primarily attacks this purported denial of attorney fees. But we conclude that payment of attorney fees was not denied, because the district court was not the proper court to address the issue and no application for payment was made pursuant to the statutory procedure. Thus, to the extent that the order may be construed as addressing attorney fees, we vacate it. Finding no merit to Ortega's other claims regarding denial of permission to withdraw his guilty pleas and allegedly excessive sentences, we otherwise affirm.


After Ortega's vehicle was stopped by police and he was arrested, Ortega was charged in the county court with five [290 Neb. 174] counts. At the time of the stop, the police officers were responding to a complaint of a suspicious vehicle. Upon arrival, an officer observed Ortega's vehicle stopped in the center of the roadway. During the stop, Ortega repeatedly disregarded the officer's commands. Ultimately, a physical altercation ensued, and multiple officers were required to take Ortega into custody.

At arraignment, the county court informed Ortega of the charges and asked him whether he wished to request counsel

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at public expense. Ortega replied that he " would like to proceed without [counsel]." The court immediately asked Ortega, " Do you understand the Court would appoint an attorney for you at public expense if you could not afford one?" Ortega responded, " Yes, I do." In response to further inquiries, Ortega confirmed that he understood that counsel could be of assistance to him and that no one had made any threats or promises to persuade him to proceed without counsel. And he further confirmed that he was not under the influence of alcohol or drugs. The court pronounced its conclusion that Ortega had knowingly, intelligently, and voluntarily waived the right to counsel, and it cautioned Ortega to " let the Court know right away" if he changed his mind.

The county court next inquired whether a plea agreement had been made. The State responded that there was no plea agreement. The court questioned Ortega as to his knowledge of the possible pleas and their effect upon his rights, and Ortega confirmed his understanding. The court further informed Ortega of the potential sentences and the possibility that future convictions could be enhanced. And Ortega again confirmed that he was not under the influence of alcohol or drugs. Ortega pled guilty to count 1, resisting arrest; count 3, driving during revocation or impoundment; and count 4, no operator's license, nonresident. The State dismissed count 2, obstructing a peace officer, and count 5, driving left of center. The court determined that Ortega had entered his pleas knowingly, voluntarily, and intelligently, and it found him guilty.

The county court continued the matter for sentencing and ordered the preparation of a presentence investigation report. Several days later, Ortega filed an " Inmate Request Form" [290 Neb. 175] seeking to withdraw his guilty pleas and to stop the preparation of the presentence investigation report. As grounds for withdrawal, Ortega alleged that he was under the influence of drugs when he entered his pleas, because he was arraigned only 3 days after his arrest.

Upon its own motion, the county court appointed Ortega counsel from the public defender's office. Despite the appointment of counsel, Ortega personally filed a second inmate request form seeking to withdraw his guilty pleas. He again claimed that he was under the influence of drugs when he entered his pleas, and he further alleged that he was suffering from depression and stress and that the proceeding was " to[o] fast." Ortega claimed that he had requested his appointed counsel withdraw his pleas but that counsel could not help him.

Ortega's appointed counsel moved to withdraw and alleged that Ortega no longer desired his representation. Counsel attached a letter from Ortega, stating: " I'm gonna ask you to stop doing anything you [are] doing for me. You are not the lawyer I want to defend me. You are polluted and I have request[ed] and sen[t] a letter to the judge to court appoint me a different lawyer."

A hearing was held on the motion to withdraw, and Ortega confirmed that he no longer wanted to be represented by his appointed counsel. He explained that he did not agree with counsel " on a lot of things" and that whenever he asked counsel to do something, counsel would " always go a different way." However, Ortega requested that the county court appoint another attorney to represent him. The court overruled the motion, concluding that no grounds had been established to permit the withdrawal.

Ortega's appointed counsel subsequently filed a second motion to withdraw, alleging that Ortega was refusing to speak with him and that there had been a breakdown

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of communication and trust. One day later, Ortega filed a letter detailing " all the legal reasons" to permit the withdrawal. He stated that he desired an " appropri[a]te" or " ade[q]uate" defense, and he claimed that his relationship with counsel was broken and could not be fixed.

[290 Neb. 176] A second hearing was conducted, and appointed counsel explained that the relationship between himself and Ortega had reached such a " caustic" level that there was no " real ability" for him to represent Ortega. Ortega again confirmed that he wanted counsel to withdraw. However, the county court overruled the motion, again finding that good cause to permit the withdrawal had not been shown.

After denying the withdrawal, the county court proceeded to sentencing. Rather than presenting an argument, appointed counsel stated that Ortega had asked him to refrain from making any comments. The court asked Ortega if there was anything he wanted to say, and Ortega replied that he wanted counsel to withdraw. The court responded that at that point, Ortega was effectively proceeding pro se. Ortega asserted that when he pled guilty, he was depressed, under a " lot of stress," and without the benefit of counsel. ...

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