State v. Betancourt-Garcia ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/21/2022 12:07 AM CST
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440State of Nebraska, appellee, v. Rosario
Betancourt-Garcia, appellant.
___ N.W.2d ___
Filed December 3, 2021. No. S-20-538.
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 dem-
onstrate 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. Effectiveness of Counsel: Appeal and Error. Claims of ineffective
assistance of counsel involve mixed questions of law and fact.
3. ____: ____. When reviewing claims of ineffective assistance of counsel,
an appellate court reviews the factual findings of the lower court for
clear error and the legal determinations de novo.
4. Postconviction: Final Orders: Appeal and Error. Within a post­
conviction proceeding, an order granting an evidentiary hearing on some
issues and denying a hearing on others is a final, appealable order as to
the claims denied without a hearing. Such an order is appealable because
as to the denied claim, it is a “final judgment” under Neb. Rev. Stat.
§ 29-3002 (Reissue 2016).
5. Postconviction: Constitutional Law: Proof. A defendant seeking relief
under the Nebraska Postconviction Act, Neb. Rev. Stat. § 29-3001 et
seq. (Reissue 2016), must show that his or her conviction was obtained
in violation of his or her constitutional rights.
6. Postconviction: Appeal and Error. Postconviction relief is a narrow
category of relief and is not intended to secure a routine review for any
defendant dissatisfied with his or her sentence.
7. ____: ____. A motion for postconviction relief cannot be used to secure
review of issues that were known to the defendant and which were or
could have been litigated on direct appeal.
8. Postconviction: Constitutional Law: Judgments: Proof. An eviden-
tiary hearing on a motion for postconviction relief is required on an
appropriate motion containing factual allegations which, if proved,
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440constitute an infringement of the movant’s rights under the Nebraska or
federal Constitution, causing the judgment against the defendant to be
void or voidable.
9. Postconviction: Proof. An evidentiary hearing on a motion for post­
conviction relief is not required if (1) the motion does not contain factual
allegations of a violation or infringement of the prisoner’s constitutional
rights, (2) the motion alleges only conclusions of fact or law, or (3) the
record affirmatively shows that the prisoner is entitled to no relief.
10. 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 affirma-
tively show that he or she is entitled to no relief.
11. Postconviction: Effectiveness of Counsel: Proof. If the petitioner has
not alleged facts which would support a claim of ineffective assistance
of counsel or if the files and records affirmatively show he or she is
entitled to no relief, then no evidentiary hearing is necessary.
12. Effectiveness of Counsel: Proof. To prevail under 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), a defendant must first show that
his or her attorney’s performance was deficient, meaning it objectively
did not equal that of a lawyer with ordinary training and skill in crimi-
nal law.
13. ____: ____. To show that defense counsel’s performance was deficient,
a defendant must show that counsel’s performance did not equal that of
a lawyer with ordinary training and skill in criminal law.
14. Effectiveness of Counsel: Proof: Words and Phrases. To show preju-
dice, the defendant must demonstrate a reasonable probability that but
for counsel’s deficient performance, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.
15. Criminal Law: Weapons. The operability of a handgun is not relevant
to whether it is a firearm used under Neb. Rev. Stat. § 28-1205(1)(a)
(Reissue 2008).
16. Criminal Law: Statutes: Legislature. Under Nebraska law, all crimes
are statutory and no act is criminal unless the Legislature has in express
terms declared it to be so.
17. Constitutional Law: Effectiveness of Counsel: Conflict of Interest:
Words and Phrases. An actual conflict of interest for Sixth Amendment
purposes is defined broadly. The phrase “actual conflict of interest”
encompasses any situation in which a defense counsel faces divided loy-
alties such that regard for one duty tends to lead to disregard of another.
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 44018. Effectiveness of Counsel: Conflict of Interest. An actual conflict of
interest for Sixth Amendment purposes is one that adversely affects
counsel’s performance.
19. Criminal Law: Conspiracy: Intent: Proof. With respect to proving the
intent element of a conspiracy, direct evidence of a positive agreement
to jointly participate in the violation of a criminal statute is not required
to establish a crime.
20. ____: ____: ____: ____. A criminal conspiracy must necessarily be
entered into with the intent to defraud the State or to violate a criminal
law, and intent being a matter of the mind, it is rarely possible to prove
that element of the crime except by circumstances.
21. Criminal Law: Conspiracy. Conspiracy may be charged in both the
place of the agreement, as well as any locale where any overt act by any
one of the conspirators took place.
Appeal from the District Court for Madison County: Mark
A. Johnson, Judge. Affirmed in part, and in part reversed and
remanded with direction.
Brad J. Montag, of Egley, Fullner, Montag, Morland &
Easland, P.C., for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Papik,
JJ., and Harder and Masteller, District Judges.
Miller-Lerman, J.
I. NATURE OF CASE
Rosario Betancourt-Garcia (Betancourt), who is serving
sentences of imprisonment for his convictions for kidnap-
ping, use of a firearm to commit a felony, and conspiracy to
commit kidnapping, filed a petition for postconviction relief.
The district court for Madison County granted an evidentiary
hearing on three of Betancourt’s claims and denied the bal-
ance of Betancourt’s petition without an evidentiary hearing.
Betancourt appeals. He claims on appeal that he was entitled
to an evidentiary hearing generally concerning several layered
claims of ineffective assistance of appellate counsel, related to,
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440inter alia, the handling of lost or destroyed evidence, potential
plea offers, translation discrepancies, witness investigations,
and a sentencing error. Because Betancourt alleged ineffective
assistance of counsel for failing to object on remand to the
unauthorized sentence of “life imprisonment without parole”
on the conspiracy conviction, we remand this cause to the dis-
trict court for a hearing. With respect to the remaining claims,
because Betancourt failed to allege facts that show he was
entitled to relief, or the record or law refute his claims, we
affirm the judgment of the district court.
II. STATEMENT OF FACTS
The facts surrounding Betancourt’s convictions are set forth
in our opinion in State v. Betancourt-Garcia, 295 Neb. 170,
887 N.W.2d 296 (2016) (Betancourt I), abrogated on other
grounds, State v. Guzman, 305 Neb. 376, 940 N.W.2d 552(2020). See, also, State v. Betancourt-Garcia, 299 Neb. 775,
910 N.W.2d 160 (2018) (Betancourt II). The evidence at trial
reflected that Betancourt and Leonel Torres-Garcia (Torres) kid-
napped Betancourt’s nephew, Pedro Jesus Rayon-Piza (Pedro),
bound him, gagged him, threatened him with a gun, and placed
him in a shed. The State’s theory was that Betancourt believed
that Pedro or his brother Jose Rayon-Piza (Jose) knew the
whereabouts of Betancourt’s wife, Gabriela Ortiz, from whom
Betancourt was separated. Betancourt believed that Jose was
“going out” with Ortiz. Pedro testified that Betancourt told him
that he was going to leave him there, bring Jose to the same
location, and kill them both. Pedro, still bound, managed to
stand, exit the open door of the shed, and jump to the nearest
house, evidently where Paula Chadwick and Bob Chadwick
lived and where officers found Pedro. Torres also testified that
he and Betancourt had kidnapped Pedro.
In 2015, following a jury trial, Betancourt was convicted
of count I, kidnapping, a Class IA felony, for which he was
originally sentenced to a term of life imprisonment; count II,
use of a firearm to commit a felony, a Class IC felony, for
which he was originally sentenced to a term of 10 to 30 years’
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STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440imprisonment, including a mandatory minimum of 5 years’
imprisonment; and count III, conspiracy to commit kidnap-
ping, a Class II felony, for which he was originally sentenced
to a term of 30 to 50 years’ imprisonment. The sentences for
kidnapping and conspiracy were to be served concurrently, and
the sentence for use of a firearm was to be served consecu-
tively thereto.
Prior to trial, Betancourt was variously represented by the
Madison County public defender and, subsequently, by pri-
vate counsel. Through trial and sentencing, Betancourt was
again represented by the Madison County public defender’s
office, through a different public defender and a deputy pub-
lic defender. Betancourt had different counsel for his direct
appeal and subsequent resentencing and still other counsel in
Betancourt II, one of whom continues to represent Betancourt
in this postconviction proceeding.
On the direct appeal, we affirmed the convictions and
affirmed the sentence in part and remanded the sentence in
part for resentencing on the conspiracy count to impose a life
sentence rather than a range of years. Betancourt I, supra. On
January 27, 2017, without objection, Betancourt was resen-
tenced on his conspiracy conviction “to life imprisonment
without parole.”
On February 27, 2017, Betancourt filed a motion for foren-
sic DNA testing seeking to have certain items of physical evi-
dence, including duct tape, tennis shoes, and shoelaces, tested
for DNA evidence. The record showed that the evidence had
been destroyed prior to the filing of the motion. Although orig-
inally arrested in 2004, Betancourt was deported and ­rearrested
in 2013. At the time the evidence was destroyed in 2010,
Betancourt had been deported, his whereabouts were unknown,
and the charges against him had been pending for 7 years.
Following a hearing, the district court overruled Betancourt’s
motion for DNA testing. Because the material sought to be
tested was not in the actual or constructive control of the
State or others as required by Neb. Rev. Stat. § 29-4120(1)(b)
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STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440(Reissue 2016), we affirmed the district court’s order. See
Betancourt II, supra.
On October 19, 2017, Betancourt filed a verified petition
for postconviction relief. Following a records hearing on the
operative postconviction motion, the district court granted an
evidentiary hearing on three of Betancourt’s claims, including
his claim that appellate counsel failed to raise the issue of the
trial counsel’s failure to explore an alibi defense; the choice to
pursue a misidentification defense; and the failure to object to
Betancourt’s invalid sentence for count II, which should not
have included a mandatory minimum. The district court denied
Betancourt’s remaining claims without an evidentiary hear-
ing. The district court found, with respect to the unsuccessful
claims addressed in the order, they either were insufficiently
alleged, were affirmatively refuted by evidence in the record,
or were not examples of ineffective assistance of trial and/or
appellate counsel.
Betancourt appeals.
III. ASSIGNMENTS OF ERROR
Betancourt assigns, summarized and restated, that the dis-
trict court erred when it denied him an evidentiary hearing
generally on the issues of (1) lost or destroyed evidence, (2)
ineffective assistance of appellate counsel for failing to raise
the trial counsel’s ineffectiveness ensuring Betancourt under-
stood a plea offer, and (3) other claims of ineffective assistance
of appellate counsel. The other claims of ineffectiveness of
appellate counsel generally relate to failing to raise trial coun-
sel’s ineffectiveness for the following:
•  Claim 3(a), not moving to quash counts I (kidnapping) and
II (use of a firearm to commit a felony) of the information
based on the statute of limitations;
•  Claim 3(b), not moving to quash and/or dismiss count II (use
of a firearm to commit a felony);
•  Claim 3(c), not objecting to hearsay testimony at a prelimi-
nary hearing;
•  Claim 3(d), not securing a different translator;
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440•  Claim 3(e), operating under a conflict of interest within the
Madison County public defender’s office;
•  Claim 3(f), not calling Ernest Nino-Mucia to testify regarding
inaccurate translations;
•  Claim 3(g), not moving for a directed verdict on count III
(conspiracy);
•  Claim 3(h), not investigating, deposing, and subpoenaing the
Chadwicks to testify on their observations of Pedro;
•  Claim 3(i), not moving for a new trial based on alleged lack
of opportunity to confront Paula Chadwick;
•  Claim 3(j), not objecting to Ortiz’ testimony regarding
Betancourt’s domestic assault;
•  Claim 3(k), not objecting to jury instructions Nos. 2, 4, 8, 13,
and 15;
•  Claim 3(l), not adequately advising Betancourt about his right
not to testify;
•  Claim 3(m), not objecting on remand to the district court’s
sentence of “life imprisonment without parole” on the con-
spiracy conviction; and
•  Claim 3(n), failing to raise plain error on the district court’s
refusal to instruct the jury on the lesser-included offense of
first degree false imprisonment.
IV. STANDARDS OF REVIEW
[1] 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. State v. Malone,
308 Neb. 929, 957 N.W.2d 892 (2021), modified on denial of
rehearing 309 Neb. 399, 959 N.W.2d 818.
[2,3] Claims of ineffective assistance of counsel involve
mixed questions of law and fact. Id. When reviewing claims of
ineffective assistance of counsel, an appellate court reviews the
factual findings of the lower court for clear error and the legal
determinations de novo. Id.- 447 -
Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440V. ANALYSIS
[4] As an initial matter, we observe that Betancourt’s appeal
of the district court’s order of July 1, 2020, is properly before
us, because within a postconviction proceeding, an order grant-
ing an evidentiary hearing on some issues and denying a
hearing on others is a final, appealable order as to the claims
denied without a hearing. State v. Koch, 304 Neb. 133, 933
N.W.2d 585 (2019). Such an order is appealable because as to
the denied claim, it is a “final judgment” under Neb. Rev. Stat.
§ 29-3002 (Reissue 2016). State v. Koch, supra.Below, we analyze each of Betancourt’s assignments of
error. We find merit only to Betancourt’s claim that upon
remand occasioned by Betancourt I, Betancourt’s counsel was
deficient for failing to object to the district court’s imposition
of a sentence for conspiracy (count III) of “life imprisonment
without parole,” rather than “life imprisonment.” We remand
the cause to the district court for a hearing on this claim,
and we affirm the order of the district court with respect to
Betancourt’s remaining claims.
[5-7] A defendant seeking relief under the Nebraska
Postconviction Act, Neb. Rev. Stat. § 29-3001 et seq. (Reissue
2016), must show that his or her conviction was obtained in
violation of his or her constitutional rights. State v. Johnson,
298 Neb. 491, 904 N.W.2d 714 (2017). Postconviction relief
is a narrow category of relief and is not intended to secure a
routine review for any defendant dissatisfied with his or her
sentence. See State v. Malone, supra. A motion for postconvic-
tion relief cannot be used to secure review of issues that were
known to the defendant and which were or could have been
litigated on direct appeal. Id.[8,9] An evidentiary hearing on a motion for postconviction
relief is required on an appropriate motion containing factual
allegations which, if proved, constitute an infringement of the
movant’s rights under the Nebraska or federal Constitution,
causing the judgment against the defendant to be void or
voidable. State v. Johnson, supra. Section 29-3001(2) of the
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440Nebraska Postconviction Act entitles a prisoner to an eviden-
tiary hearing on a motion for postconviction relief unless the
motion and the files and records of the case show to the sat-
isfaction of the court that the prisoner is entitled to no relief.
State v. Malone, supra. An evidentiary hearing is not required
if (1) the motion does not contain factual allegations of a viola-
tion or infringement of the prisoner’s constitutional rights, (2)
the motion alleges only conclusions of fact or law, or (3) the
record affirmatively shows that the prisoner is entitled to no
relief. Id.[10,11] Thus, 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 affirmatively show that
he or she is entitled to no relief. State v. Johnson, supra. If the
petitioner has not alleged facts which would support a claim
of ineffective assistance of counsel or if the files and records
affirmatively show he or she is entitled to no relief, then no
evidentiary hearing is necessary. Id.Our ineffective assistance of counsel jurisprudence stems
from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), which held that a criminal defendant’s
rights under U.S. Const. amend. VI may be violated if he or
she is afforded inadequate representation by his or her attor-
ney. State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021),
modified on denial of rehearing 309 Neb. 399, 959 N.W.2d
818. Under Strickland, we apply a two-step analysis for deter-
mining whether a defendant is entitled to postconviction relief
based on a claim of ineffective assistance of counsel. State v.
Malone, supra.[12-14] To prevail under Strickland, a defendant must first
show that his or her attorney’s performance was deficient,
meaning it objectively did not equal that of a lawyer with
ordinary training and skill in criminal law. State v. Malone,
supra. Second, the defendant must show that he or she suffered
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STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440prejudice as a result of the attorney’s deficient performance. Id.To show that defense counsel’s performance was deficient, a
defendant must show that counsel’s performance did not equal
that of a lawyer with ordinary training and skill in criminal
law. State v. Weathers, 304 Neb. 402, 935 N.W.2d 185 (2019).
To show prejudice, the defendant must demonstrate a reason-
able probability that but for counsel’s deficient performance,
the result of the proceeding would have been different. Id. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. The two prongs of this test
may be addressed in either order, and the entire ineffective-
ness analy­sis should be viewed with a strong presumption that
counsel’s actions were reasonable. Id.
1. Destroyed Evidence
Betancourt contends that he received ineffective assistance
of counsel when, in his direct appeal, his appellate counsel
failed to raise trial counsel’s ineffectiveness for failing to argue
that the destruction and unavailability of destroyed evidence
violated his right to due process. The evidence, which was
destroyed prior to Betancourt’s rearrest, included tape and cord
that bound Pedro’s face, ankles, and wrists, and Betancourt
contends that such evidence could have contained the perpe-
trator’s skin cells or hair stuck to the tape. Betancourt rea-
sons that if the evidence could have been tested, the absence
of Betancourt’s DNA or inclusion of DNA other than that of
Betancourt or Torres would have supported his defenses of mis-
identification or alibi. He contends that the evidence points to
bad faith handling of the evidence, because of the method, the
procedure, and the seriousness of the felonies involved.
The record, including testimony on Betancourt’s motion
for DNA testing, shows that a local law enforcement officer
burned the evidence as part of an initiative to clean out the
evidence locker of evidence from old cases. See Betancourt II,
supra. At that time, Betancourt was deported, his whereabouts
were unknown, and the charges against him had been pending
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STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440for 7 years. Even if the evidence was potentially exculpatory,
the record shows that its destruction was not done in bad faith,
and under Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct.
333, 102 L. Ed. 2d 281 (1988), the State’s acts did not violate
Betancourt’s right to due process. A hearing on this claim was
not warranted.
2. Plea Offer
Betancourt claims that appellate counsel was deficient for
not raising trial counsel’s allegedly deficient conduct concern-
ing plea offers. Betancourt generally asserts that he was not
properly advised of the penalty for conspiracy to commit kid-
napping and that he did not understand the sentencing recom-
mendation from the State. He claims an interpreter contacted
Betancourt’s counsel and advised that because Betancourt
believed he was ineligible for good time as an undocumented
immigrant, Betancourt did not understand the good time law.
Betancourt claims in particular that counsel failed to present to
him a plea offer of a Class II felony and a recommendation of
50 to 50 years’ imprisonment.
Betancourt does not allege, and the record does not suggest,
that appellate counsel knew or should have known to raise this
claim. The record shows that Betancourt rejected a plea offer
of a Class II felony and a recommendation of 20 to 20 years’
imprisonment. Thus, there is little reason to believe that he
would have accepted a 50 to 50 years’ imprisonment offer if
presented to him in a different way. Even if the claim concern-
ing counsel’s conveyance of the plea offer reflected deficient
performance, Betancourt was not prejudiced thereby. A hearing
on this claim was not warranted.
3. Other Claims
(a) Motion to Quash Counts I and II of the
Information Based on a Statute of
Limitations Defense
Betancourt asserts that his appellate counsel was deficient
for not raising ineffectiveness of trial counsel for not filing
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STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440a motion to quash count I, kidnapping, and count II, use of a
firearm to commit a felony. The district court did not adjudi-
cate this allegation in its order. However, the claim is affirma-
tively refuted by the record as we determined in Betancourt I,
wherein we concluded that counts I and II were filed within
the statute of limitations. Further, Betancourt’s counsel filed a
motion to quash the State’s amended information based on the
statute of limitations and specifically sought dismissal on count
III, conspiracy.
The record showed that on November 17, 2003, the State
timely filed an initial information charging counts I and II and
obtained an arrest warrant 2 days after the crimes were com-
mitted. The State filed an amended information on May 21,
2014. The district court conducted a hearing on Betancourt’s
motion to quash count III. The court heard evidence on whether
Betancourt fled from justice for purposes of Neb. Rev. Stat.
§ 29-110(7) (Reissue 2008), which provides that the time
limitation for filing charges “shall not extend to any person
fleeing from justice.” That evidence showed the events involv-
ing Betancourt’s ultimate arrest in Texas to where Betancourt
had fled and subsequent extradition to Nebraska. Given the
undisputed evidence that Betancourt had fled Nebraska and
by application of § 29-110(7), the district court overruled
Betancourt’s motion to quash count III. A motion to quash on
counts I and II would have been similarly unsuccessful under
§ 29-110(7). Betancourt I, supra. A hearing on this claim was
not warranted.
(b) Motion to Quash and/or Dismiss Count II,
Use of a Firearm to Commit a Felony
Betancourt claims that his appellate counsel was ineffective
for not raising trial counsel’s ineffectiveness for not moving to
quash or dismiss the use of a firearm to commit a felony charge
on the ground that the State did not recover the gun described
by witnesses. Betancourt claims that without the gun, the State
could not have demonstrated that it met the requirements of
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STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440Neb. Rev. Stat. § 28-1201 (Reissue 2008), which generally
describes an operable firearm.
[15,16] In State v. Lee, 195 Neb. 348, 237 N.W.2d 880(1976), we held that the State is not required to prove that a
firearm is operable under a predecessor to our statute criminal-
izing possession of a firearm by a prohibited person, Neb. Rev.
Stat. § 28-1206 (Reissue 2008). We stated: “[E]vidence of pos-
session of a revolver or gun of prohibited description, which
is in apparently good condition and has the characteristics and
appearance commonly understood to be those of the firearm it
purports to be, is prima facie evidence sufficient to go to the
jury.” State v. Lee, 195 Neb. at 350, 237 N.W.2d at 882. We log-
ically apply this rationale to § 28-1201(1), which provides that
“[f]irearm shall mean any weapon which is designed to or may
readily be converted to expel any projectile by the action of an
explosive or frame or receiver of any such weapon.” Thus, the
operability of a handgun is not relevant to whether it is a fire-
arm used under Neb. Rev. Stat. § 28-1205(1)(a) (Reissue 2008)
(use of deadly weapon to commit felony). See State v. Clark,
10 Neb. App. 758, 766, 637 N.W.2d 671, 677 (2002) (firearm
did not have to be operable to prove use of deadly weapon to
commit felony). If courts required a firearm to be operable, we
effectively would be adding an element to this statute. Under
Nebraska law, all crimes are statutory and no act is criminal
unless the Legislature has in express terms declared it to be so.
State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). “‘Had
the legislature wished to draw a distinction between operable
and inoperable firearms, it would have done so with clear and
distinct language.’” State v. Clark, 10 Neb. App. at 765, 637
N.W.2d at 676-77 (quoting Armstrong v. Commonwealth, 36
Va. App. 312, 549 S.E.2d 641 (2001)).
The district court did not adjudicate this allegation. However,
the claim is affirmatively refuted by the record by evidence
that Betancourt and his coconspirator both used a “firearm.”
Torres admitted at trial that he and Betancourt threatened Pedro
with guns, took him to the shed, and left him there while they
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STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440looked for Pedro’s brother Jose. A hearing on this claim was
not warranted.
(c) Hearsay Testimony at Pretrial Hearing
Betancourt claims ineffectiveness of appellate counsel for
failing to raise that trial counsel did not object to hearsay
testimony during the pretrial hearing on Betancourt’s motion
for absolute discharge. The testimony consisted of a law
enforcement officer’s reading from the information contained
in the records of the Madison County sheriff’s office about
Betancourt’s arrest in Texas in 2004. Betancourt’s claim is
affirmatively refuted by the record. The hearing was prelimi-
nary, and the rules of evidence did not apply pursuant to Neb.
Rev. Stat. § 27-1101 (Reissue 2008). A hearing on this claim
was not warranted.
(d) Change of Interpreter
Betancourt claims that his appellate counsel was ineffective
for not raising trial counsel’s ineffectiveness for not secur-
ing a different translator for Betancourt’s recorded jail phone
calls. Betancourt alleged that the Madison County Attorney
suspected Betancourt was tampering with witnesses and that in
his conversations, Betancourt expressed consciousness of guilt.
The county attorney directed interpreter Izabel Chavez to lis-
ten, translate, and transcribe Betancourt’s recorded phone calls.
The transcriptions were used against Betancourt. Betancourt
claims that Chavez had a conflict of interest because, in addi-
tion to translating for court appearances and attorney visits,
Chavez was working under the supervision of the county attor-
ney. He claims numerous errors with the quality of Chavez’
translations.
The district court did not adjudicate this allegation. Our
review of the allegations is that they are insufficient to show
that a different translator of the jail phone calls would have
changed the substance of the translation or that Betancourt was
prejudiced by counsel’s alleged inattentiveness to this claim. A
hearing on this claim was not warranted.
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STATE v. BETANCOURT-GARCIA
Cite as 310 Neb. 440(e) Conflict of Interest of Public
Defender’s Office
Betancourt claims that his trial counsel operated under a
conflict of interest, because the district court reappointed the
Madison County public defender’s office to represent him even
though he had previously fired an attorney from that office for
“not answering his phone calls, investigating the case, contact-
ing . . . alibi witnesses and communicating with Betancourt.”
Brief for appellant at 30. Betancourt claims he was unaware
that he had a conflict of interest with the Madison County pub-
lic defender’s office, which, if raised, could have compelled
the court to appoint different attorneys.
[17,18] We define an actual conflict of interest for Sixth
Amendment purposes broadly. State v. Malone, 308 Neb. 929,
957 N.W.2d 892 (2021), modified on denial of rehearing 309
Neb. 399, 959 N.W.2d 818. The phrase “actual conflict of
interest” encompasses any situation in which a defense counsel
faces divided loyalties such that regard for one duty tends to
lead to disregard of another. Id. An actual conflict of interest is
one that adversely affects counsel’s performance. Id. We have
recognized that “‘[n]ot all conflicts of interest that affect the
attorney’s “duty of loyalty” have the same consequences . .
. .’” State v. Avina-Murillo, 301 Neb. 185, 198, 917 N.W.2d
865, 875 (2018).
Betancourt’s claim of ineffectiveness based on trial counsel’s
conflict of interest is insufficiently alleged. He does not claim
that he notified his appellate counsel of the conflict. Further,
appointment of a public defender where the defendant has pre-
viously worked with the same office and requests appointment
of counsel from that office, even if it is a conflict, is not the
type of conflict from which we presume prejudice. See id. A
hearing on this claim was not warranted.
(f ) Testimony of Nino-Mucia on
Inaccurate Translations
Betancourt claims that his appellate counsel was ineffective
for not raising the ineffectiveness of trial counsel for failing
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Cite as 310 Neb. 440to call interpreter Nino-Mucia to testify regarding inaccurate
translations. Betancourt alleges that Nino-Mucia would have
testified that the translations performed by Chavez in the
course of the case (1) were incomplete because the “industry
standards required that the original Spanish be included in the
translation transcription”; (2) were of poor quality; (3) included
omissions, mislabeling of speakers, punctuation errors, and
typographical errors; (4) included several “fix/add” in the tran-
scriptions; (5) were, in his professional opinion, of poor qual-
ity; and (6) were unfit such that they posed a legal issue. Brief
for appellant at 33. On appeal, Betancourt contends that if
Nino-Mucia had testified, “one of the jury members could have
concluded that [Chavez’] translation/transcription was of such
bad quality” that Betancourt could not fully understand the trial
proceedings and the nature of the decisions made by his attor-
neys. Id. at 34. The petition for postconviction relief offers no
examples of substantive weaknesses of the translations.
We agree with the district court that the allegations were
insufficiently alleged to warrant an evidentiary hearing. A hear-
ing on this claim was not warranted.
(g) Motion for Directed Verdict
on Count III, Conspiracy
Betancourt claims that appellate counsel was ineffective
for failing to raise trial counsel’s ineffectiveness because no
motion for a directed verdict of acquittal was filed on count
III, conspiracy to commit kidnapping. Betancourt asserts that
the State failed to prove beyond a reasonable doubt that he and
his coconspirator, Torres, had an agreement or understanding to
kidnap Pedro. He points to testimony by Torres that Betancourt
asserts shows they had different intentions and objectives on
the day the crimes were committed. Betancourt claims that trial
counsel did not make clear to the trial court that Betancourt
and Torres did not share intentions.
[19,20] The district court did not adjudicate this allegation.
However, this claim is affirmatively refuted by the record.
Betancourt’s trial counsel moved for a directed verdict and
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Cite as 310 Neb. 440renewed the motion. Each motion was overruled. Recasting
trial counsel’s motion for a directed verdict as a more spe-
cific argument concerning Betancourt’s intent would not have
changed the ultimate issue decided by the trial court. We have
held that with respect to proving the intent element of a con-
spiracy, “direct evidence of a positive agreement” to jointly
participate in the violation of a criminal statute is not required
to establish a crime. See Beyl v. State, 165 Neb. 260, 272, 85
N.W.2d 653, 660 (1957). A criminal conspiracy must neces-
sarily be entered into with the intent to defraud the State or to
violate a criminal law, and intent being a matter of the mind,
it is rarely possible to prove that element of the crime except
by circumstances. Id. Pedro testified to coordinated and joint
illegal actions by Betancourt and Torres continuing beyond the
initial abduction. A hearing on this claim was not warranted.
(h) Inquiry Into Paula Chadwick
and Bob Chadwick
Betancourt claims that appellate counsel was ineffective for
not raising trial counsel’s decision not to investigate, depose,
and subpoena both Paula Chadwick and Bob Chadwick, the wit-
nesses who encountered Pedro after the kidnapping and called
law enforcement. He claims that the Chadwicks may have been
able to testify that Pedro was released voluntarily.
The district court did not adjudicate this allegation. On our
review of the record, we determine that this claim was specula-
tive and, as alleged, is refuted by the record. The testimony sug-
gested by Betancourt regarding how Pedro’s tape was removed
following his kidnapping and arrival at the Chadwicks’ house
while still bound would not have supported a lesser crime and
would not have changed the outcome of the trial. A hearing on
this claim was not warranted.
(i) Motion for New Trial
Betancourt claims that appellate counsel was ineffective for
not raising trial counsel’s failure to move for a new trial on the
basis of his constitutional right to confront Paula Chadwick.
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Cite as 310 Neb. 440He claims that her testimony would have shown that she con-
taminated the crime scene by helping to cut tape from Pedro’s
face, ankles, and wrists.
This claim is affirmatively refuted by the record. Paula
Chadwick was not a witness at trial, and no testimonial state-
ments from her were offered into evidence at the trial. U.S.
Const. amend. VI provides, in relevant part, that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him . . . .” Because
Paula Chadwick was not a witness against Betancourt, U.S.
Const. amend. VI does not grant him the right to confront
her. See Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004) (observing that “‘witnesses’
against the accused,” for Confrontation Clause purposes, are
“those who ‘bear testimony’”). A hearing on this claim was
not warranted.
( j) Ortiz’ Testimony on Domestic Assault
Betancourt claims that appellate counsel was ineffective
for failing to assign that trial counsel was ineffective when
counsel did not object to the testimony of Betancourt’s wife,
Ortiz. Such an objection would be based on the grounds of
spousal privilege and relevance. Ortiz testified that she had
two children with Betancourt, that she left Betancourt without
telling him where she went, that she intended to hide from
Betancourt, and that she had been hiding from Betancourt for
13 years. Betancourt claims that trial counsel performed defi-
ciently by not informing Ortiz that, if she chose, she would not
be compelled to testify against her husband. See Trammel v.
United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186(1980). Further, Betancourt claims that his trial counsel should
have objected to Ortiz’ testimony based on relevance and
forced a hearing pursuant to Neb. Rev. Stat. § 27-403 (Reissue
2016) to determine if her testimony was relevant and, even if
relevant, whether its probative value was outweighed by its
prejudice to Betancourt. Betancourt claims a § 27-403 hearing
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Cite as 310 Neb. 440would have prevented him from being found guilty by the jury
on an “emotional basis.” Brief for appellant at 42.
With respect to spousal privilege, this claim is affirmatively
refuted by the record. Betancourt’s trial counsel objected to
Ortiz’ testimony on spousal privilege grounds and was over-
ruled on the basis of Neb. Rev. Stat. § 27-505(3)(a) (Reissue
2016) (providing, in relevant part, that spousal privilege may
not be claimed “[i]n any criminal case where the crime charged
is a crime of violence . . .”) Trial counsel was not deficient and,
similarly, appellate counsel was not deficient in not pursuing
this argument. A hearing on this claim was not warranted.
(k) Jury Instructions
Betancourt next claims that appellate counsel was inef-
fective for not raising trial counsel’s ineffectiveness for not
objecting to jury instructions Nos. 2 (presumption of inno-
cence), 4 (prior inconsistent statements), 8 (definition of
intent), 13 (presence in Madison County), and 15 (elements
of conspiracy). Reading the jury instructions together, and as
a whole, the record affirmatively refutes Betancourt’s claims
with respect to instructions Nos. 2, 4, 8, and 15; the instruc-
tions are a correct statement of the law, not misleading, and
adequately cover the issues supported by the pleadings and
evidence. Instruction No. 13, regarding Betancourt’s physical
presence in Madison County, was correct as to count I, kidnap-
ping, and count II, use of a firearm to commit a felony, but
was erroneous with respect to count III, conspiracy. However,
this error is harmless.
Jury instruction No. 2, regarding the presumption of inno-
cence, read in relevant part as follows: “The defendant has
pled not guilty to each of these crimes. He is presumed to be
innocent. That means you must find him not guilty unless you
decide that the State has proved him guilty beyond a reason-
able doubt.” Contrary to Betancourt’s assertion, the court’s use
of the word “unless” rather than the phrase “unless and until”
in instruction No. 2 did not make the instruction defective. See,
e.g., State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
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Cite as 310 Neb. 440Regarding instruction No. 4, contrary to Betancourt’s asser-
tion, the typographical errors to which he draws our attention
were insignificant and did not detract from the instruction’s
meaning or purpose. With respect to instruction No. 8, con-
trary to Betancourt’s assertion, the inclusion of the second
paragraph, which is not in NJI2d Crim. 5.1, was an accurate
statement of the law. See State v. Kennedy, 239 Neb. 460, 476
N.W.2d 810 (1991). Regarding instruction No. 15, contrary to
Betancourt’s assertion, whether Betancourt fled from justice
was in fact relevant to whether the conspiracy charge was time
barred and whether Betancourt could be found guilty of the
conspiracy charge. See § 29-110(7) (tolling statute of limita-
tions when defendant has fled). See Taylor v. State, 138 Neb.
156, 292 N.W. 233 (1940). Further, contrary to Betancourt’s
assertion, it did not improperly shift the burden of proof
to Betancourt.
[21] Instruction No. 13 read: “An issue in this case is whether
[Betancourt] was present in Madison County, Nebraska, on
November 15, 2003. The State must prove that he was.” We
agree with Betancourt and the State that with respect to count
III, conspiracy, instruction No. 13 was an inaccurate statement
of the law because Betancourt’s physical presence in Madison
County need not have been proved for purposes of the conspir-
acy. Neb. Rev. Stat. § 28-202(1) (Reissue 2008), which defines
criminal conspiracy, states:
A person shall be guilty of criminal conspiracy if, with
intent to promote or facilitate the commission of a felony:
(a) He agrees with one or more persons that they or one
or more of them shall engage in or solicit the conduct or
shall cause or solicit the result specified by the definition
of the offense; and
(b) He or another person with whom he conspired com-
mits an overt act in pursuance of the conspiracy.
Thus, the crime of conspiracy does not require the physical
presence of the accused. It has been noted that conspiracy
may be charged in both the place of the agreement, as well as
any locale where any overt act by any one of the conspirators
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Cite as 310 Neb. 440took place. See 2 Wayne R. LaFave, Substantive Criminal Law
§ 12.1(b)(2) (3d ed. 2018).
Instruction No. 13 was an accurate statement of the law as to
count I, kidnapping, and count II, use of a firearm to commit a
felony, and we conclude that although erroneous as applied to
the conspiracy charge, any such error was harmless. See State
v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012). The undis-
puted evidence was that all three alleged crimes physically
took place in Madison County, and as such, instruction No. 13
would not have confused the jury. A hearing on this claim was
not warranted.
(l) Right Not to Testify
Betancourt claims that appellate counsel did not raise that
trial counsel did not adequately advise him about his right not
to testify and that if he decided not to testify, that fact could not
be considered an admission of guilt and must not influence the
verdict in any way. Regardless of whether trial counsel advised
Betancourt he had a right not to testify, the record shows that
he was so advised by the court. At his arraignment, Betancourt
was advised of his right not to testify, as well as advised that if
he chose not to testify, that fact could not be used against him.
Thus, even if trial counsel failed to advise Betancourt in this
regard, he was not prejudiced thereby and appellate counsel
was not ineffective in not pursuing this argument. A hearing on
this claim was not warranted.
(m) Sentence for Count III, Conspiracy
Betancourt claims that appellate counsel, while serving as
trial counsel upon remand for resentencing on the conspiracy
conviction, was ineffective for not objecting to the district
court’s imposition of a sentence of “life imprisonment without
parole.” The State concedes that Betancourt’s conspiracy sen-
tence of “life imprisonment without parole” is not authorized.
In Betancourt I, the direct appeal, we remanded the cause
for resentencing on the conspiracy conviction with directions
to impose a life sentence. We said:
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Cite as 310 Neb. 440Turning again to plain error, where, after a conviction
following a jury trial, the trial judge imposed an incorrect
sentence, we have found plain error and ordered the trial
court to correct the sentence. See State v. Thorpe, 280
Neb. 11, 26, 783 N.W.2d 749, 762 (2010) (remanding
with directions to resentence to life imprisonment because
“life imprisonment without parole” was not a valid sen-
tence for first degree murder). In this instance, the incor-
rect sentence constituted plain error, and we remand for
imposition of a sentence of life imprisonment.
Betancourt I, 295 Neb. at 192, 887 N.W.2d at 313. Despite this
direction, the district court on January 27, 2017, resentenced
Betancourt to a term of “life imprisonment without parole.”
We agree with Betancourt and the State that counsel was
deficient by failing to object to an improper sentence for count
III, conspiracy to commit kidnapping. Because this is a post­
conviction proceeding brought under the provisions of § 29-3001
et seq., rather than vacating this sentence, this court is required
to remand the cause to the trial court for a hearing. See State v.
Rolling, 218 Neb. 51, 352 N.W.2d 175 (1984).
(n) Jury Instruction on Lesser-Included Offense
of First Degree False Imprisonment
Betancourt claims that his appellate counsel was ineffective
for not challenging the district court’s refusal to instruct the
jury on the lesser-included offense of first degree false impris-
onment. He claims that such an instruction would have allowed
the jury to determine whether Betancourt intended to commit
kidnapping or the crime of first degree false imprisonment.
The lesser-included offense instruction was not warranted by
the evidence. This claim is affirmatively refuted by the record.
We have stated:
“Where the prosecution has offered uncontroverted evi-
dence on an element necessary for a conviction of the
greater crime but not necessary for the lesser offense,
a duty rests on the defendant to offer at least some
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Cite as 310 Neb. 440evidence to dispute this issue if he or she wishes to have
the benefit of a lesser-offense instruction.”
State v. Stabler, 305 Neb. 415, 424-25, 940 N.W.2d 572, 580
(2020). It is the intent to terrorize that distinguishes kidnapping
from first degree false imprisonment. State v. Becerra, 261
Neb. 596, 624 N.W.2d 21 (2001). In this case, the State offered
ample evidence that Betancourt and Torres intended to terror-
ize Pedro through their words and acts, and Betancourt did not
introduce evidence to dispute the issue of intent to terrorize. A
hearing on this claim was not warranted.
VI. CONCLUSION
The district court erred when it failed to determine that
Betancourt was entitled to an evidentiary hearing regarding
his claim that counsel who appeared with Betancourt at the
resentencing upon remand from Betancourt I was deficient for
failing to object to the resentence of “life imprisonment with-
out parole” for conspiracy. This is not an authorized sentence;
a sentence of life imprisonment is authorized. The judgment
of the district court is reversed with respect to this claim, and
the cause is remanded to the district court with directions to
conduct a hearing on Betancourt’s sentence for conspiracy. On
Betancourt’s remaining claims, we affirm the judgment of the
district court that denied postconviction relief without an evi-
dentiary hearing.
Affirmed in part, and in part reversed
and remanded with direction.
Funke and Freudenberg, JJ., not participating.