Effectiveness of Counsel: Appeal and Error.
Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact. When reviewing a
claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for
clear error. With regard to the questions of counsel's
performance or prejudice to the defendant as part of the
two-pronged test articulated in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), an appellate court reviews such legal determinations
independently of the lower court's decision.
_:__. In reviewing claims of ineffective assistance of
counsel on direct appeal, an appellate court decides only
whether the undisputed facts contained within the record are
sufficient to conclusively determine whether counsel did or
did not provide effective assistance and whether the
defendant was or was not prejudiced by counsel's alleged
Sentences: Appeal and Error. An appellate
court will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial
Effectiveness of Counsel: Appeal and Error.
When a defendant's trial counsel is different from his or
her counsel on direct appeal, the defendant must raise on
direct appeal any issue of trial counsel's ineffective
performance which is known to the defendant or is apparent
from the record, in order to preserve such claim. Once
raised, the appellate court will determine whether the record
on appeal is sufficient to review the merits of the
ineffective performance claims.
Trial: Effectiveness of Counsel: Evidence: Appeal and
Error. An ineffective assistance of counsel claim
will not be addressed on direct appeal if it requires an
Neb. 732] 6. Sentences. When imposing a
sentence, a sentencing judge should consider the
defendant's (1) age, (2) mentality, (3) education and
experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6)
motivation for the offense, as well as (7) the nature of the
offense and (8) the violence involved in the commission of
from the District Court for Lancaster County: Darla S. Ideus,
Timothy S. Noerrlinger for appellant.
Douglas J. Peterson, Attorney General, Erin E. Tangeman, and,
on brief, Joe Meyer for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
NATURE OF CASE
to a plea agreement with the State, the defendant entered no
contest pleas and was subsequently convicted of possession of
a firearm by a prohibited person, a Class ID felony, in
violation of Neb. Rev. Stat. § 28-1206(3) (Supp. 2017);
attempted first degree assault, a Class IIA felony, in
violation of Neb. Rev. Stat. §§ 28-201 and 28-308
(Reissue 2016); and use of a firearm to commit a felony, a
Class IC felony, in violation of Neb. Rev. Stat. §
28-1205(1) (Reissue 2016). The lower court imposed an
aggregate sentence of 42 to 55 years in prison. The central
issues on appeal are whether the defendant's sentences
were excessive and whether his assistance of trial counsel
was ineffective for failing to meet with the defendant with
an interpreter present, investigate witnesses and exculpatory
evidence, and file a motion to suppress the defendant's
statements to law enforcement officers.
11, 2017, at approximately 12:20 p.m., Habacuc Quintero
Chairez, while driving on Interstate 80 in Lancaster [302
Neb. 733] County, Nebraska, used a firearm to shoot at
another vehicle four times, hitting the targeted vehicle at
least twice. The vehicle was occupied by Nicholas Pearson and
his 15-year-old son; however, no one was injured. Pearson
called the 911 emergency dispatch service and provided an
account of the incident, including a description of the
vehicle that Chairez was driving.
troopers located Chairez in his vehicle on Interstate 80,
partially blocking one lane of traffic. When the state
troopers initiated contact with Chairez, he displayed a
handgun outside of the driver's-side window. He was then
ordered out of his vehicle at gunpoint and taken into
was eventually advised of his Miranda rights and
interviewed by a member of the Nebraska State Patrol with the
assistance of an interpreter. Chairez admitted to having
fired the gun at Pearson's vehicle, stating that he
thought the vehicle was following him. During the interview,
he further admitted that he purchased the firearm and
acknowledged that he was a convicted felon on federal parole.
was originally charged with possession of a firearm by a
prohibited person under § 28-1206(3), discharge of a
firearm near a vehicle under Neb. Rev. Stat. §
28-1212.04 (Reissue 2016), attempted first degree assault
under §§ 28-201 and 28-308, and use of a firearm to
commit a felony under § 28-1205(1). Pursuant to a plea
agreement with the State, Chairez appeared with counsel and
entered pleas of no contest to the charges of possession of a
firearm by a prohibited person, attempted first degree
assault, and use of a firearm to commit a felony. In exchange
for the pleas, the State agreed to dismiss the charge of
discharge of a firearm near a vehicle. The State also agreed
to not file additional charges in the matter or seek any
habitual criminal enhancements, which would have exposed
Chairez to several significant mandatory minimum sentences if
he were convicted.
Chairez' plea hearing, the district court judge and
Chairez engaged in a thorough colloquy in assessing the [302
Neb. 734] validity of his pleas. When questioned by the
judge, he admitted, among other things, that (1) he had no
difficulty understanding the proceedings before him, (2) he
understood that he was waiving his right to present witnesses
in his case, (3) his attorney spoke to him and he understood
the immigration consequences of his pleas and convictions,
(4) his counsel was competent, and (5) his counsel did not
refuse or fail to do anything Chairez asked of him throughout
his representation during this case.
an interpreter was present throughout the proceeding, Chairez
chose not to utilize the interpreter at all, immediately
answering each question in English when asked in English by
the judge. The judge further inquired regarding Chairez'
responding in English without the use of the interpreter.
Chairez indicated that when he answered in English, he was
doing so because he understood and was comfortable
communicating with the judge in English. In an abundance of
caution, the judge encouraged Chairez to use the interpreter
if he needed to as they continued through the proceedings.
Chairez acknowledged the judge's statement that
interpretive service would continue to be available and then
continued through the remainder of the proceedings using
on the evidence presented and the answers provided by Chairez
in the assessment of his pleas, the district court found that
Chairez had entered his pleas freely, knowingly, voluntarily,
and intelligently, and found Chairez guilty beyond a
reasonable doubt on all charges in the amended information.
After a subsequent sentencing hearing, the court ...