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State v. Betancourt-Garcia

Supreme Court of Nebraska

December 2, 2016

State of Nebraska, appellee,
v.
Rosario Betancourt-Garcia, appellant.

         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 independent 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 favorably to the State, is sufficient to support the conviction.

         4. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective 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 negative 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.

         [295 Neb. 171] 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 assistance 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 counsel'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 ineffective assistance of counsel, the defendant must demonstrate a reasonable 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 [295 Neb. 172] 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 discharge 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 permissible 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 complaint is filed.

         21. Constitutional Law: Speedy Trial. 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. 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 considered 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 violated, 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 [295 Neb. 173] 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 penalty 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 judicial 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: Mark A. Johnson, Judge. Affirmed in part, and in part vacated and remanded for resentencing.

          Mark D. Alb in for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

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

          Kelch, J.

         I. INTRODUCTION

         Following a jury trial, Rosario Betancourt-Garcia (Betancourt) appeals his convictions and sentences for kidnapping, use of a firearm to commit kidnapping, and conspiracy to commit kidnapping. On appeal, Betancourt alleges that the district 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 [295 Neb. 174] 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 ...


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