State v. Ortega ( 2015 )

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172 290 NEBRASKA REPORTS
State of Nebraska, appellee, v. Rodrigo Alberto
Ortega, also known as Rodrigo
Alberto Garcia, appellant.
___ N.W.2d ___
Filed February 20, 2015. No. S-14-185.
1. Attorney Fees: Appeal and Error. When attorney fees are authorized, the trial
court exercises its discretion in setting the amount of the fee, which ruling an
appellate court will not disturb on appeal unless the court abused its discretion.
2. Pleas: Appeal and Error. Prior to sentencing, the withdrawal of a plea forming
the basis of a conviction is addressed to the discretion of the trial court, and its
ruling will not be disturbed on appeal absent an abuse of that discretion.
3. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
4. Affidavits: Attorney Fees. By obtaining permission to proceed in forma pau-
peris under Neb. Rev. Stat. § 25-2301.01 (Reissue 2008), a party is not granted
the payment of his or her attorney fees. Attorney fees are not the type of fees and
costs contemplated by the in forma pauperis statutes.
5. Right to Counsel: Attorney Fees. When counsel is appointed to represent an
indigent misdemeanor defendant pursuant to Neb. Rev. Stat. § 29-3906 (Reissue
2008), an application for attorney fees must be made to the appointing court.
6. Appeal and Error. Appellate courts do not generally consider arguments and
theories raised for the first time on appeal.
7. Effectiveness of Counsel: Proof. 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 counsel’s performance
was deficient and that this deficient performance actually prejudiced his or
her defense.
8. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective
assistance of counsel raised for the first time on direct appeal do not require
dismissal ipso facto; the determining factor is whether the record is sufficient to
adequately review the question.
9. Pleas. After the entry of a plea of guilty or no contest, but before sentencing, a
court, in its discretion, may allow a defendant to withdraw his or her plea for any
fair and just reason, provided that the prosecution has not been or would not be
substantially prejudiced by its reliance on the plea entered.
10. Pleas: Appeal and Error. The right to withdraw a plea previously entered is
not absolute, and, in the absence of an abuse of discretion on the part of the trial
court, refusal to allow a defendant’s withdrawal of a plea will not be disturbed
on appeal.
11. Pleas: Proof. The burden is on the defendant to establish by clear and convincing
evidence the grounds for withdrawal of a plea.
12. Pleas. To support a finding that a plea of guilty has been entered freely, intel-
ligently, voluntarily, and understandingly, a court must inform a defendant
concerning (1) the nature of the charge, (2) the right to assistance of counsel,
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STATE v. ORTEGA 173
Cite as 290 Neb. 172(3) the right to confront witnesses against the defendant, (4) the right to a jury
trial, and (5) the privilege against self-incrimination. The record must also
establish a factual basis for the plea and that the defendant knew the range of
penalties for the crime charged.
Appeal from the District Court for Dakota County, Paul J.
Vaughan, Judge, on appeal thereto from the County Court for
Dakota County, Kurt Rager, Judge. Judgment of District Court
affirmed in part, and in part vacated.
Randy S. Hisey and Zachary S. Hindman, of Bikakis, Mayne,
Arneson, Hindman & Hisey, for appellant.
Jon Bruning, Attorney General, and Austin N. Relph for
appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman,
and Cassel, JJ.
Cassel, J.
INTRODUCTION
After Rodrigo Alberto Ortega, also known as Rodrigo
Alberto Garcia, pled guilty to three misdemeanor charges in
the county court and was sentenced, he first appealed to the
district court. After the district court affirmed, he filed a second
appeal to the Nebraska Court of Appeals. In an order authoriz-
ing Ortega to proceed in forma pauperis on the second appeal,
the district court intended to deny payment of attorney fees
beyond the first appeal. Before this court, Ortega primarily
attacks this purported denial of attorney fees. But we conclude
that payment of attorney fees was not denied, because the dis-
trict court was not the proper court to address the issue and
no application for payment was made pursuant to the statutory
procedure. Thus, to the extent that the order may be construed
as addressing attorney fees, we vacate it. Finding no merit to
Ortega’s other claims regarding denial of permission to with-
draw his guilty pleas and allegedly excessive sentences, we
otherwise affirm.
BACKGROUND
After Ortega’s vehicle was stopped by police and he was
arrested, Ortega was charged in the county court with five
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counts. At the time of the stop, the police officers were
responding to a complaint of a suspicious vehicle. Upon
arrival, an officer observed Ortega’s vehicle stopped in the
center of the roadway. During the stop, Ortega repeatedly
disregarded the officer’s commands. Ultimately, a physical
altercation ensued, and multiple officers were required to take
Ortega into custody.
At arraignment, the county court informed Ortega of the
charges and asked him whether he wished to request counsel at
public expense. Ortega replied that he “would like to proceed
without [counsel].” The court immediately asked Ortega, “Do
you understand the Court would appoint an attorney for you at
public expense if you could not afford one?” Ortega responded,
“Yes, I do.” In response to further inquiries, Ortega confirmed
that he understood that counsel could be of assistance to him
and that no one had made any threats or promises to persuade
him to proceed without counsel. And he further confirmed
that he was not under the influence of alcohol or drugs. The
court pronounced its conclusion that Ortega had knowingly,
intelligently, and voluntarily waived the right to counsel, and
it cautioned Ortega to “let the Court know right away” if he
changed his mind.
The county court next inquired whether a plea agreement
had been made. The State responded that there was no plea
agreement. The court questioned Ortega as to his knowledge of
the possible pleas and their effect upon his rights, and Ortega
confirmed his understanding. The court further informed
Ortega of the potential sentences and the possibility that future
convictions could be enhanced. And Ortega again confirmed
that he was not under the influence of alcohol or drugs. Ortega
pled guilty to count 1, resisting arrest; count 3, driving during
revocation or impoundment; and count 4, no operator’s license,
nonresident. The State dismissed count 2, obstructing a peace
officer, and count 5, driving left of center. The court deter-
mined that Ortega had entered his pleas knowingly, voluntarily,
and intelligently, and it found him guilty.
The county court continued the matter for sentencing and
ordered the preparation of a presentence investigation report.
Several days later, Ortega filed an “Inmate Request Form”
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Cite as 290 Neb. 172seeking to withdraw his guilty pleas and to stop the prepara-
tion of the presentence investigation report. As grounds for
withdrawal, Ortega alleged that he was under the influence
of drugs when he entered his pleas, because he was arraigned
only 3 days after his arrest.
Upon its own motion, the county court appointed Ortega
counsel from the public defender’s office. Despite the appoint-
ment of counsel, Ortega personally filed a second inmate
request form seeking to withdraw his guilty pleas. He again
claimed that he was under the influence of drugs when he
entered his pleas, and he further alleged that he was suf-
fering from depression and stress and that the proceeding
was “to[o] fast.” Ortega claimed that he had requested his
appointed counsel withdraw his pleas but that counsel could
not help him.
Ortega’s appointed counsel moved to withdraw and alleged
that Ortega no longer desired his representation. Counsel
attached a letter from Ortega, stating: “I’m gonna ask you
to stop doing anything you [are] doing for me. You are not
the lawyer I want to defend me. You are polluted and I have
request[ed] and sen[t] a letter to the judge to court appoint me
a different lawyer.”
A hearing was held on the motion to withdraw, and Ortega
confirmed that he no longer wanted to be represented by his
appointed counsel. He explained that he did not agree with
counsel “on a lot of things” and that whenever he asked coun-
sel to do something, counsel would “always go a different
way.” However, Ortega requested that the county court appoint
another attorney to represent him. The court overruled the
motion, concluding that no grounds had been established to
permit the withdrawal.
Ortega’s appointed counsel subsequently filed a second
motion to withdraw, alleging that Ortega was refusing to speak
with him and that there had been a breakdown of communi-
cation and trust. One day later, Ortega filed a letter detailing
“all the legal reasons” to permit the withdrawal. He stated
that he desired an “appropri[a]te” or “ade[q]uate” defense, and
he claimed that his relationship with counsel was broken and
could not be fixed.
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A second hearing was conducted, and appointed counsel
explained that the relationship between himself and Ortega had
reached such a “caustic” level that there was no “real ability”
for him to represent Ortega. Ortega again confirmed that he
wanted counsel to withdraw. However, the county court over-
ruled the motion, again finding that good cause to permit the
withdrawal had not been shown.
After denying the withdrawal, the county court proceeded
to sentencing. Rather than presenting an argument, appointed
counsel stated that Ortega had asked him to refrain from
making any comments. The court asked Ortega if there was
anything he wanted to say, and Ortega replied that he wanted
counsel to withdraw. The court responded that at that point,
Ortega was effectively proceeding pro se. Ortega asserted that
when he pled guilty, he was depressed, under a “lot of stress,”
and without the benefit of counsel. And he claimed that he
had made multiple attempts to withdraw his pleas, but counsel
refused to file an appropriate motion.
The county court sentenced Ortega to 250 days’ impris-
onment on the resisting arrest conviction, 60 days’ impris-
onment on the driving during revocation or impoundment
conviction, and 30 days’ imprisonment on the no operator’s
license, nonresident, conviction. Each sentence was ordered
to run consecutively, and Ortega was given credit for 65
days served.
Ortega, represented by new counsel, filed a timely notice
of appeal to the district court. On appeal, Ortega alleged that
his guilty pleas were not entered knowingly, voluntarily, and
intelligently and that his sentences were unreasonable. But the
district court observed that at the time Ortega entered his pleas,
he had been informed of the charges, his rights, and the conse-
quences of a guilty plea. And it determined that his sentences
were within the statutory guidelines. It therefore affirmed his
convictions and sentences.
Ortega filed a timely notice of appeal to the Court of
Appeals, along with a poverty affidavit and a motion to pro-
ceed in forma pauperis. The district court granted the motion
to proceed in forma pauperis, but in its order doing so, it struck
out the provision stating that Ortega’s “fees” would be paid
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Cite as 290 Neb. 172by Dakota County, Nebraska. Thus, the relevant portion of the
order read, “IT IS ORDERED: that the defendant is allowed to
proceed with his appeal in forma pauperis and that the fees and
costs of said appeal shall be paid by Dakota County.”
Based upon the denial of Ortega’s “fees,” his appellate
counsel filed a motion to withdraw in the Court of Appeals.
Appellate counsel alleged that they had been appointed to rep-
resent Ortega in his appeal and that, pursuant to his direction,
they had been required to file a notice of appeal to the Court
of Appeals. However, they claimed that the district court had
denied them payment by striking out the term “fees” from the
order in forma pauperis. The Court of Appeals overruled the
motion, and we moved the case to our docket pursuant to statu-
tory authority.1
Ortega’s appellate counsel filed a second motion to with-
draw in this court. They explained that after the denial of
the prior motion, they filed a second motion to proceed in
forma pauperis in the district court. They also stated that
the district court indicated in an e-mail that it did not intend
to rule on the motion, because it believed that it did not
have jurisdiction. According to Ortega’s appellate counsel, the
court further explained that it did not believe Ortega had the
right to appointed counsel after his first appeal to the district
court. However, the above actions do not appear in the record
received from the district court, and we do not have any tran-
script including either the second motion or any ruling on the
motion. We overruled the second motion to withdraw without
prejudice and permitted appellate counsel to brief the issue of
attorney fees.
After briefing was completed, we heard oral arguments. At
oral argument, appellate counsel reported that the district court
had later ruled on the second motion, confirming its inten-
tion to deny attorney fees, and counsel sought leave to file a
supplemental transcript. We now overrule this request as moot.
As discussed in greater detail below, the granting of counsel’s
request would not affect the result of our analysis.
1
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
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ASSIGNMENTS OF ERROR
Ortega assigns, consolidated and reordered, that the dis-
trict court erred in (1) ordering that his attorney fees would
not be paid at public expense; (2) rejecting his claim that
his guilty pleas were not entered knowingly, voluntarily, and
intelligently; and (3) rejecting his claim that his sentences
were unreasonable.
STANDARD OF REVIEW
[1] When attorney fees are authorized, the trial court exer-
cises its discretion in setting the amount of the fee, which
ruling an appellate court will not disturb on appeal unless the
court abused its discretion.2
[2] Prior to sentencing, the withdrawal of a plea forming the
basis of a conviction is addressed to the discretion of the trial
court, and its ruling will not be disturbed on appeal absent an
abuse of that discretion.3
[3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.4
ANALYSIS
We begin our analysis with the primary issue of appellate
counsel’s attorney fees. We then turn to Ortega’s remain-
ing claims.
Attorney Fees
Ortega argues that pursuant to Neb. Ct. R. App. P. § 2-103,
his appellate counsel were required to represent him before the
Court of Appeals, unless permitted to withdraw. And he claims
that by striking out the term “fees” from the order in forma
pauperis, the district court denied his appellate counsel pay-
ment for their representation.
We acknowledge, as did the State in its brief, that the district
court, in striking out the term “fees” from the order in forma
2
In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 (2013).
3
State v. Williams, 276 Neb. 716, 757 N.W.2d 187 (2008).
4
State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
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Cite as 290 Neb. 172pauperis, intended to deny the payment of attorney fees. But
the district court’s belief that it could deny Ortega’s attorney
fees through the order in forma pauperis was flawed. Thus, this
assigned error evidences several misconceptions.
The first, and most fundamental, misconception is the
notion that the striking of the words “fees and” from the
order granting leave to proceed in forma pauperis affected
the right to or amount of any attorney fees for Ortega’s court-
appointed counsel.
The district court’s attempt to deny attorney fees by means
of an interlineation within the order in forma pauperis failed
for two reasons. First, the court conflated the “fees” regard-
ing permission to proceed in forma pauperis with fees for a
court-appointed attorney. Second, the determination of fees is
regulated by a separate statutory procedure, which directs the
question in the first instance to the appointing court. In this
instance, that means the county court. We explain each reason
in more detail.
Both civil and criminal proceedings in forma pauperis are
governed by Neb. Rev. Stat. § 25-2301 et seq. (Reissue 2008).5
Section 25-2301(2) sets forth that “[i]n forma pauperis means
the permission given by the court for a party to proceed with-
out prepayment of fees and costs or security.” However, the
“fees” specified in § 25-2301(2) do not include a party’s attor-
ney fees.
In considering § 25-2301.02, we have observed that the fees,
costs, or security referred to are those customarily required to
docket an appeal.6 And the statutes delineate various specific
fees, costs, or security that a party is excused from paying
by proceeding in forma pauperis, including the service of all
necessary writs, process, and proceedings7; the subpoena of
any witnesses that have material and necessary evidence8; the
5
See Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).
6
See id.7
§ 25-2302.
8
§ 25-2304.
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preparation of the record on appeal9; and the printing of appel-
late briefs.10
[4] But the statutes governing proceedings in forma pau-
peris make no mention of a party’s attorney fees. By obtaining
permission to proceed in forma pauperis under § 25-2301.01,
a party is not granted the payment of his or her attorney fees.
Attorney fees are not the type of “fees and costs” contemplated
by the in forma pauperis statutes.
[5] Rather, for appointed counsel to obtain payment for his
or her representation of an indigent criminal defendant, a sepa-
rate application must be made to the appropriate court.11 When
counsel is appointed to represent an indigent misdemeanor
defendant pursuant to § 29-3906, an application for attorney
fees must be made to the “appointing court.” Although no
order appointing appellate counsel appears within the record,
Ortega’s notice of appeal from the county court to the district
court was filed by appellate counsel. Thus, it is apparent that
they were appointed by the county court.
Because the county court was the appointing court in this
case and the district court functioned purely as an intermediate
appellate court,12 the county court was and remains the appro-
priate court for an application for attorney fees. But the record
does not disclose any application by appellate counsel for the
payment of their attorney fees pursuant to the statutory proce-
dure. Thus, the propriety of appellate counsel’s fees was not an
issue properly before the district court.
The payment of appellate counsel’s fees was an issue to
be determined, in the first instance, by the county court. And
an application for court-appointed attorney fees would be
appropriately addressed to the county court, after the district
court acts upon our mandate and issues its mandate to the
county court. “The court, upon hearing the application, shall
fix reasonable expenses and fees, and the county board shall
9
§§ 25-2305 and 25-2306.
10
§ 25-2307.
11
See Neb. Rev. Stat. §§ 29-3905 and 29-3906 (Reissue 2008).
12
See State v. Boham, 233 Neb. 679, 447 N.W.2d 485 (1989).
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Cite as 290 Neb. 172allow payment to counsel in the full amount determined by the
court.”13 To the extent that the district court purported to deny
attorney fees for Ortega’s court-appointed counsel, we vacate
its order. At this point, there is no order effectively granting or
denying attorney fees for Ortega’s appellate counsel.
However, in order to assist the lower courts, we briefly
address Ortega’s argument regarding § 2-103 of our appellate
rules of procedure. That rule states:
(A) Representation on Appeal. Counsel appointed in
district court to represent a defendant in a criminal case
other than a postconviction action shall, upon request by
the defendant after judgment, file a notice of appeal and
continue to represent the defendant unless permitted to
withdraw by this court.
(B) Motion to Withdraw. A motion of court-appointed
counsel for permission to withdraw shall state the reason
for the request, and shall be served upon opposing coun-
sel by regular mail and on the defendant by certified mail
to the defendant’s last-known address. An original and
one copy of the motion and proof of service shall be filed
with the Supreme Court Clerk.
Ortega claims that pursuant to § 2-103, appellate counsel
were obligated to continue the representation beyond his first
appeal to the district court. But Ortega’s reliance upon § 2-103
is unfounded.
As Ortega’s counsel forthrightly conceded at oral argument,
§ 2-103 does not create any substantive right to counsel at
public expense. Those rights flow from our federal and state
Constitutions.14 In some instances, a statute may also provide
for appointment of counsel at public expense.15
Rather, § 2-103 ensures orderly proceedings by mandating
that after an appeal is perfected, counsel in the court below is
deemed as counsel in the appellate court until a withdrawal
13
§ 29-3905.
14
See, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799(1963); State v. Hughan, 13 Neb. App. 862, 703 N.W.2d 263 (2005).
15
See §§ 29-3905 and 29-3906. See, also, Neb. Rev. Stat. § 29-3004(Reissue 2008).
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of appearance has been filed. And counsel in any criminal
case pending in an appellate court may withdraw only after
obtaining permission of the appellate court.16 A recent decision
of the Court of Appeals illustrates the disruption to orderly
procedure that may flow from counsel’s failure to make the
appropriate motion to withdraw.17
In the case before us, counsel complied with § 2-103 and
filed an appropriate motion to withdraw. Indeed, counsel did
so twice. But because of the district court’s irregular order
purporting to deny attorney fees, both motions were overruled.
Instead, we directed counsel to address the matter in briefing,
and counsel did so. These circumstances should be considered
when the county court addresses a proper application for attor-
ney fees. Having disposed of the primary matter before us,
we now turn to the issues pertaining to Ortega’s convictions
and sentences.
Withdrawal of P leas
Ortega assigns that the district court erred in rejecting his
claim that his guilty pleas were not entered knowingly, vol-
untarily, and intelligently. He argues that at the time of his
pleas, he was under the influence of drugs and was suffering
from stress and depression. And he claims that any failure
to preserve this issue for appeal was the result of ineffective
assistance of counsel.
[6] This assignment of error raises a needlessly complex
procedural question as to how the issue should be addressed
in this appeal. In the county court, Ortega’s appointed counsel
never filed a motion to withdraw Ortega’s guilty pleas. And
we have stated that appellate courts do not generally consider
arguments and theories raised for the first time on appeal.18 In
apparent recognition of this principle, Ortega asserts that any
failure to raise this issue before the county court was ineffec-
tive assistance of counsel.
16
See § 2-103(1). See, also, Neb. Ct. R. App. P. § 2-101(F)(1) (rev. 2015).
17
See State v. Agok, 22 Neb. App. 536, 857 N.W.2d 72 (2014).
18
See Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).
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Cite as 290 Neb. 172But Ortega himself made numerous requests to the county
court to withdraw his pleas. He filed two inmate request forms
in the county court seeking to withdraw his pleas. And at sen-
tencing, he asserted that he had been under the influence of
stress and depression when he pleaded guilty and he referred to
his prior efforts to withdraw his pleas. However, these requests
were never explicitly ruled upon, and the court ultimately sen-
tenced Ortega.
Thus, we are presented with Ortega’s claim that his coun-
sel was ineffective for failing to make a motion which
Ortega himself made on multiple occasions, along with the
additional complication that the county court never explicitly
addressed Ortega’s requests. To resolve this quandary, we
consider the sentencing of Ortega as a denial of his requests.
In his argument at the sentencing hearing, Ortega renewed
his assertions that he did not make his pleas knowingly and
intelligently; yet, the court proceeded to impose its sentences.
We therefore consider the issue as properly preserved for
appellate review.
[7,8] However, we decline to address any claim of ineffec-
tive assistance of counsel predicated on this issue in this subse-
quent appeal. To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,19 the defendant must
show that counsel’s performance was deficient and that this
deficient performance actually prejudiced his or her defense.20
Claims of ineffective assistance of counsel raised for the first
time on direct appeal do not require dismissal ipso facto; the
determining factor is whether the record is sufficient to ade-
quately review the question.21
[9] The record is insufficient to address Ortega’s claim of
ineffective assistance of counsel. The record is silent as to
counsel’s motivations in failing to bring a motion to withdraw
Ortega’s pleas. Our case law provides that after the entry of a
plea of guilty or no contest, but before sentencing, a court, in
19
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984).
20
State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
21
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its discretion, may allow a defendant to withdraw his or her
plea for any fair and just reason, provided that the prosecu-
tion has not been or would not be substantially prejudiced by
its reliance on the plea entered.22 It is possible that counsel
believed that no fair and just reason existed for the withdrawal
of Ortega’s pleas and that the refusal to bring the motion was a
strategic decision. Without a more complete record, we decline
to address the issue.
[10,11] We now turn to the county court’s denial of Ortega’s
requests to withdraw his pleas on the grounds espoused by
Ortega. We have held that the right to withdraw a plea previ-
ously entered is not absolute, and, in the absence of an abuse
of discretion on the part of the trial court, refusal to allow
a defendant’s withdrawal of a plea will not be disturbed
on appeal.23 The burden is on the defendant to establish by
clear and convincing evidence the grounds for withdrawal of
a plea.24
[12] We find no merit to Ortega’s assertion that his pleas
were not entered knowingly, voluntarily, and intelligently on
the basis that he was under the influence of drugs, stress, or
depression. The record affirmatively establishes that Ortega
understood the nature of the plea hearing and the effect of his
guilty pleas. To support a finding that a plea of guilty has been
entered freely, intelligently, voluntarily, and understandingly,
a court must inform a defendant concerning (1) the nature of
the charge, (2) the right to assistance of counsel, (3) the right
to confront witnesses against the defendant, (4) the right to
a jury trial, and (5) the privilege against self-incrimination.
The record must also establish a factual basis for the plea
and that the defendant knew the range of penalties for the
crime charged.25
The county court complied with all of these requirements.
Ortega confirmed his understanding of the charges, the right
22
See Williams, supra note 3.
23
See id.24
Id.25
See State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002).
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Cite as 290 Neb. 172to assistance of counsel, the effect of a guilty plea upon his
constitutional rights, and the possible penalties. And on two
occasions, he confirmed that he was not under the influence of
drugs. Thus, Ortega’s assertion that his pleas were not entered
knowingly, voluntarily, and intelligently is affirmatively refuted
by the record.
Ortega attempts to compare this case to State v. Schurman,26
in which the Court of Appeals concluded that the defendant
should have been permitted to withdraw his pleas on the bases
that the defendant exhibited confusion during the plea hear-
ing and was suffering from bipolar disorder and hearing loss.
However, in contrast to Schurman, Ortega did not exhibit any
confusion during the plea hearing. Ortega responded appro-
priately to each of the county court’s questions, and he con-
firmed his understanding of the proceeding on multiple occa-
sions. Thus, we disagree that Schurman supports Ortega’s
assigned error.
We find no abuse of discretion in the county court’s refusal to
permit the withdrawal of Ortega’s pleas. The record established
that Ortega’s bare assertions of impairment were unfounded.
This assignment of error is without merit.
Excessive Sentences
Ortega asserts that his sentences were unreasonable, because
they were near the maximum permitted by the statutory guide-
lines. He further asserts that the circumstances of the crimes
did not warrant the sentences imposed.
Ortega’s sentences were within the statutory guidelines. The
principles of law governing review of sentences imposed in
criminal cases are so familiar that we need not repeat them
here.27 Based upon the relevant sentencing factors, we do not
find Ortega’s sentences to be an abuse of discretion. Ortega
had an extensive prior criminal history, including several
convictions similar to those in the present case. He had previ-
ous convictions for no valid operator’s license; driving under
26
State v. Schurman, 17 Neb. App. 431, 762 N.W.2d 337 (2009).
27
See State v. Tolbert, 288 Neb. 732, 851 N.W.2d 74 (2014).
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s­uspension; driving during revocation; refusing to comply
with the orders of police; and hindering, delaying, or inter-
rupting an arrest. Ortega’s criminal history demonstrates a
continued disregard for the lawful authority of police and the
laws governing the operation of motor vehicles in the State of
Nebraska. This assignment clearly lacks merit.
CONCLUSION
We find no merit to Ortega’s assertion that the district
court’s order in forma pauperis had the legal effect of denying
his appellate counsel payment for their representation. Further,
the district court was not the proper court to address the issue
of attorney fees. To the extent that the district court’s order
granting leave to proceed in forma pauperis may be under-
stood as addressing attorney fees, we vacate the order. As to
Ortega’s other claims, the record establishes that his guilty
pleas were entered knowingly, voluntarily, and intelligently
and that his sentences were not excessive. We affirm the judg-
ment of the district court, which affirmed Ortega’s convictions
and sentences.
Affirmed in part, and in part vacated.
Heavican, C.J., participating on briefs.
State of Nebraska, appellee, v.
Aron D. Wells, Sr., appellant.
___ N.W.2d ___
Filed February 20, 2015. No. S-14-331.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error. But whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
2. Convictions: Appeal and Error. In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence. Such matters are for the finder of fact, and