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State v. Vela

Supreme Court of Nebraska

July 21, 2017

State of Nebraska, appellee,
v.
Erick F. Vela, appellant.

         1. Constitutional Law: Appeal and Error. A constitutional issue not presented to or passed upon by the trial court is not appropriate for consideration on appeal.

         2. 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.

         3. Postconviction: Constitutional Law: Judgments. Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable.

         4. Postconviction: Constitutional Law: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable.

         5. ___: ___:___.A court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant's rights under the Nebraska or federal Constitution.

         6. Postconviction: Proof. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively show that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing.

         7. Postconviction: Effectiveness of Counsel: Appeal and Error. When a defendant was represented both at trial and on direct appeal by the same [297 Neb. 228] counsel, the defendant's first opportunity to assert ineffective assistance of counsel is in a motion for postconviction relief.

         8. Constitutional Law: Effectiveness of Counsel. A proper ineffective assistance of counsel claim alleges a violation of the fundamental constitutional right to a fair trial.

         9. Effectiveness of Counsel: Proof: Words and Phrases: Appeal and Error. 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. To show prejudice under the prejudice component of the Strickland test, the defendant must demonstrate a reasonable probability that but for his or her counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability does not require that it be more likely than not that the deficient performance altered the outcome of the case; rather, the defendant must show a probability sufficient to undermine confidence in the outcome.

         10. Postconviction: Effectiveness of Counsel: Appeal and Error. A claim of ineffective assistance of appellate counsel which could not have been raised on direct appeal may be raised on postconviction review.

         11. Effectiveness of Counsel: Appeal and Error. When analyzing a claim of ineffective assistance of appellate counsel, courts usually begin by determining whether appellate counsel actually prejudiced the defendant. That is, courts begin by assessing the strength of the claim appellate counsel failed to raise.

         12. ___:___. Counsel's failure to raise an issue on appeal could be ineffective assistance only if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal.

         13. Trial: Juries. The retention or rejection of a venireperson as a juror is a matter of discretion with the trial court.

         14. Juries: Discrimination: Appeal and Error. An appellate court reviews de novo the facial validity of an attorney's race-neutral explanation for using a peremptory challenge as a question of law.

         15. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error. An appellate court reviews for clear error a trial court's factual determination regarding whether a prosecutor's race-neutral explanation is persuasive and whether the prosecutor's use of a peremptory challenge was purposefully discriminatory.

         Appeal from the District Court for Madison County: James G. Kube, Judge. Affirmed.

         [297 Neb. 229] Patrick P. Carney, of Carney Law, PC, for appellant.

          Douglas J. Peterson, Attorney General, and James D. Smith for appellee.

          Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ., and Inbody, Judge.

          Miller-Lerman, J.

         NATURE OF CASE

         Erick F. Vela appeals the order of the district court for Madison County which overruled his motion for postconvic-tion relief without an evidentiary hearing. He claims the district court erred when it rejected six of his claims of ineffective assistance of counsel. He also asks this court to consider an additional claim that was not presented to or passed upon by the district court. We affirm the district court's order.

         STATEMENT OF FACTS

         On June 12, 2003, Vela pled guilty to the murders of Lisa Bryant, Lola Elwood, Jo Mausbach, Evonne Turtle, and Samuel Sun. The five victims had been killed during an attempted bank robbery carried out by Vela and two other men, Jorge Galindo and Jose Sandoval, in Norfolk, Nebraska, on September 26, 2002. Vela pled guilty to five counts of first degree murder and five counts of use of a deadly weapon to commit a felony. He also pled guilty to counts of burglary, robbery, and use of a deadly weapon to commit a felony related to the forcible entry into a home and the theft of a vehicle, which occurred after the men left the bank.

         The State sought the death penalty, and an aggravation hearing was held in which a jury found the existence of five statutory aggravating circumstances for each of the five murders. After a sentencing hearing, a three-judge panel imposed the death penalty for each of the five murders. We affirmed ...


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