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State v. Bol

Supreme Court of Nebraska

July 22, 2016

State of Nebraska, appellee,
v.
Angelo M. Bol, appellant.

         1. Pleas. To support a finding that a defendant has entered a guilty plea freely, intelligently, voluntarily, and understandingly, a court must inform a defendant concerning (1) the nature of the charge, (2) the right to assistance of counsel, (3) the right to confront witnesses against the defendant, (4) the right to a jury trial, and (5) the privilege against self-incrimination. The record must also establish a factual basis for the plea and that the defendant knew the range of penalties for the crime charged.

         2. Trial: Interpreters. The appointment of an interpreter for an accused at trial largely rests in the trial court's discretion.

         3. __: __ .A trial court does not abuse its discretion by failing to appoint an interpreter if the record shows that the defendant had a sufficient command of the English language to understand questions posed and answers given.

         4. Trial: Witnesses: Interpreters. Generally, a defendant is entitled to an interpreter only if he or she timely requests one, or it is otherwise brought to the trial court's attention that the defendant or a witness has a language difficulty that may prevent meaningful understanding of, or communication in, the proceeding.

         5. Effectiveness of Counsel: Proof: Appeal and Error. To establish ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that counsel's deficiency prejudiced the defendant.

         6. Effectiveness of Counsel: Evidence: Appeal and Error. An appellate court addresses an ineffective assistance claim raised on direct appeal only if the record allows the court to adequately review the question without an evidentiary hearing.

         [294 Neb. 249] Appeal from the District Court for Buffalo County: William T. Wright, Judge.

          Charles D. Brewster, of Anderson, Klein, Brewster & Brandt, for appellant.

          Douglas J. Peterson, Attorney General, and George R. Love for appellee.

          Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          Connolly, J.

         SUMMARY

         Angelo M. Bol pleaded no contest to first degree murder. The court accepted Bol's plea and sentenced him to life imprisonment. On appeal, Bol argues that his plea was involuntary and that the court should have appointed him an interpreter because he had trouble understanding the English language. We conclude that Bol could comprehend the proceedings and communicate in English. We therefore affirm.

         BACKGROUND

         According to the prosecutor's factual basis to support Bol's plea of no contest, in December 2014, Bol got in a fight with the victim. The fight occurred at the meatpacking plant where they worked. Later, Bol's employer fired him. Bol went home and returned to the plant with a handgun. Bol waited a few hours for a shift change. While the victim was leaving the plant, Bol approached him, supposedly to ask a question. He then shot the victim several times in the torso and head. The victim died at the scene.

         Although Bol focuses his assignments of error on the plea hearing, the record includes Bol's motion to suppress statements that he made at the scene and to an investigator for the county sheriff during questioning at the jail. Bol claimed that his statements were not freely and voluntarily made [294 Neb. 250] because the court did not properly inform him of his constitutional rights.

         Officers responding at the scene wondered if Bol could speak English because he never said a word. They learned that Bol was Sudanese and tried to find an interpreter to come to the jail. But when the investigator asked Bol during the booking procedure if he understood English, he said yes. His native language is Dinka Bor. The interpreter who came to the jail appeared to know Bol or to know of him, and the sheriff's office decided not to use him. Because Bol had answered questions during the booking procedure in English, the sheriff's office decided that an interpreter was unnecessary. The booking procedure took 3 to 4 minutes. Later, the investigator read Bol his Miranda rights, had him sign a waiver form, and told him that if he did not understand something, he needed to tell the investigator. Bol said that he was willing to speak to the investigator. During the 2-hour interview, Bol never said that he did not understand a question.

         Immigration officials told the investigator that Bol came to the United States in 2001 and became a lawful permanent resident in 2004. In addition to working in various meatpacking plants, Bol obtained a commercial driver's license. The court overruled the motion to suppress Bol's statements, finding that Bol gave his consent freely and voluntarily.

         At the plea hearing, Bol's attorney stated that Bol had reached a plea agreement with the State. In exchange for Bol's plea of guilty or no contest to first degree murder, the State agreed to dismiss the charge of using a weapon to commit a felony. The court informed Bol that he would give up the constitutional rights the court would next describe by pleading guilty or no contest to the charges. The court informed Bol that he had the right to (1) have a trial by a jury of 12 persons or the judge alone; (2) be presumed innocent; (3) have guilt proved beyond a reasonable doubt; (4) have the court determine whether bond was appropriate; (5) be represented by counsel at the county's expense if he could not [294 Neb. 251] afford an attorney; (6) remain silent and not testify, or testify if he wished; (7) have witnesses against him testify and cross-examine them; (8) call witnesses and present evidence; and (9) use the court's subpoena power to compel a witness' testimony. Conversely, the court explained that Bol still had the right to counsel through sentencing and a direct appeal but that he would likely waive any court error to that point in the proceedings by entering a plea.

         After this explanation, the court asked Bol a series of questions calling for yes or no answers. First, it asked Bol whether he had a condition or illness, or had used any substance, that would affect his ability to understand. Bol said no. After Bol's attorney described the plea agreement, Bol confirmed to the court that the stated agreement was correct and that he was satisfied with his attorney's advice and representation. Bol denied being compelled to comply with the agreement. The following colloquy then occurred:

[Court]: Do you understand that if you plead guilty or no contest to Count I in the amended information, which now charges you with first-degree murder, a Class IA felony, you will, in essence, be telling this Court that you committed the crime described in Count I or at least you do not contest the accuracy of the facts stated in Count I; do you understand that?
[Bol]: No.
[Court]: Okay. What is it about that you don't understand?
[Bol]: The process, the way it work.
[Court]: All right. Basically what's going to happen is if you plead guilty or no contest, there will not be any trial. What will happen is you are telling the Court that I did that crime. Or you are saying I'm not going to agree that I did that crime, but I am going to say that I'm not going to contest it[.] I'm not going to argue against anything that's said in Count I.
[Bol]: Well, yeah.
[294 Neb. 252] [Court]: Do you understand that?
[Bol]: Yeah. [Court]: Okay. In this particular case the State has filed an amended information, that is, it has changed the original information. The way they changed it is they have dismissed the second count. That leaves one count only against you. That count now charges you with first-degree murder, which is a Class IA felony, . . . one of the most serious levels of felony under Nebraska law.
. . . .
Do you understand that is the charge or count to which you will be pleading guilty or no contest today?
[Bol]: Yes.
. . . .
[Court]: Now, did you hear my description of the rights that you have under the constitution of the United States, the constitution of the State of Nebraska and the laws of both?
[Bol]: Yes.
[Court]: Do you have any questions with regard to those ...

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