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State v. Barrera-Garrido

Supreme Court of Nebraska

May 12, 2017

State of Nebraska, appellee,
v.
Arturo Barrera-Garrido, appellant.

         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 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 counsel'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. 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 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.

         4. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. When a district court denies postconviction relief without 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 [296 Neb. 648] 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 probability that he or she would have insisted on going to trial.

         Appeal from the District Court for Douglas County: W. Mark 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, Kelch, 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 dismissed a third charge, which was for one count of first degree sexual assault.

         [296 Neb. 649] 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 displayed 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 previous 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 several 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 ...


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