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State v. chairez

Supreme Court of Nebraska

March 29, 2019

State of Nebraska, appellee,
v.
Habacuc quintero chairez, appellant.

         1. 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.

         2. _:__. 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 deficient performance.

         3. 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 court.

         4. 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.

         5. 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 evidentiary hearing.

         [302 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 the crime.

          Appeal from the District Court for Lancaster County: Darla S. Ideus, Judge. Affirmed.

          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.

          FREUDENBERG, J.

         I. NATURE OF CASE

         Pursuant 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.

         II. FACTS

         On June 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.

         State 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 custody.

         Chairez 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.

         Chairez 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.

         During 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.

         Although 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 English.

         Based 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 ...


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