State v. Garcia ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/29/2019 12:07 AM CDT
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STATE v. GARCIA
Cite as 27 Neb. App. 705State of Nebraska, appellee, v.
Eleazar Z. Garcia, also known
as Eleazar Garcia-Zuniga,
appellant.
___ N.W.2d ___
Filed October 22, 2019. No. A-18-661.
1. 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.
2. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
3. ____: ____. 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 deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
4. Trial: Waiver: Appeal and Error. Failure to make a timely objection
waives the right to assert prejudicial error on appeal.
5. Sentences: Waiver: Appeal and Error. Generally, where no objection
is made at a sentencing hearing when a defendant is provided an oppor-
tunity to do so, any claimed error is waived and is not preserved for
appellate review.
6. Appeal and Error. An appellate court may find plain error on appeal
when an error unasserted or uncomplained of at trial, but plainly evident
from the record, prejudicially affects a litigant’s substantial right and,
if uncorrected, would result in damage to the integrity, reputation, and
fairness of the judicial process.
7. Rules of the Supreme Court: Interpreters. Pursuant to Neb. Rev. Stat.
§ 25-2405 (Reissue 2016), a court interpreter is not required to recite an
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Cite as 27 Neb. App. 705oath at the beginning of each proceeding if already certified under the
rules of the Nebraska Supreme Court.
8. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
9. ____. An appellate court does not consider errors which are argued but
not assigned.
10. Effectiveness of Counsel. As a matter of law, counsel cannot be ineffec-
tive for failing to raise a meritless argument.
11. Sentences: Time. A sentence validly imposed takes effect from the time
it is pronounced.
12. Sentences. When a valid sentence has been put into execution, the trial
court cannot modify, amend, or revise it in any way, either during or
after the term or session of court at which the sentence was imposed.
13. Judgments: Records. When there is a conflict between the record of a
judgment and the verbatim record of the proceedings in open court, the
latter prevails.
14. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
15. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
16. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
17. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
counsel is different from his or her counsel on direct appeal, the defend­
ant 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.
18. Effectiveness of Counsel: Records: Proof: Appeal and Error. An
ineffective assistance of counsel claim made on direct appeal can be
found to be without merit if the record establishes that trial counsel’s
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Cite as 27 Neb. App. 705performance was not deficient or that the appellant could not estab-
lish prejudice.
19. 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 has the burden to
show that his or her counsel’s performance was deficient and that this
deficient performance actually prejudiced the defendant’s defense.
20. Effectiveness of Counsel: Pleas. In a plea context, deficiency depends
on whether counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
21. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
tion is based upon a guilty or no contest plea, the prejudice requirement
for an ineffective assistance of counsel claim is satisfied if the defend­
ant shows a reasonable probability that but for the errors of counsel,
the defendant would have insisted on going to trial rather than plead-
ing guilty.
22. Pleas. To support a finding that a defendant has entered a guilty
plea 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.
23. Effectiveness of Counsel: Proof: Appeal and Error. General allega-
tions that trial counsel performed deficiently or that trial counsel was
ineffective are insufficient to raise an ineffective assistance claim on
direct appeal and thereby preserve the issue for later review.
Appeal from the District Court for Sarpy County: George A.
Thompson, Judge. Affirmed as modified, and cause remanded
with directions.
Thomas P. Strigenz, Sarpy County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Pirtle, Bishop, and A rterburn, Judges.
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INTRODUCTION
Eleazar Z. Garcia, also known as Eleazar Garcia-Zuniga,
entered guilty pleas to charges of second degree assault and
use of a weapon to commit a felony. The Sarpy County District
Court orally sentenced Garcia to 15 to 20 years’ imprisonment
for his conviction of second degree assault and 5 to 10 years’
imprisonment for his conviction of use of a weapon to commit
a felony. The latter sentence was to run consecutive to his sen-
tence for second degree assault. Garcia claims his pleas were
not intelligently and understandingly made because the district
court failed to ensure statutes pertaining to interpreters were
followed. He also claims that the district court abused its discre-
tion in imposing excessive sentences and that his trial counsel
was ineffective. We affirm Garcia’s convictions and sentences.
However, because the district court’s oral pronouncement of
the sentences does not match its written order, we remand the
matter with directions to modify the written sentencing order
to reflect the district court’s oral pronouncement.
BACKGROUND
In September 2017, the State filed a criminal complaint in
the county court for Sarpy County, charging Garcia with one
count each of attempted first degree murder, first degree sexual
assault, and first degree assault. In October, the State filed an
amended criminal complaint, charging Garcia with one count
each of attempted second degree murder, use of a weapon to
commit a felony, and terroristic threats. A journal entry and
order of the county court from October shows that Garcia
“require[d] an Interpreter for Spanish” and a “Court Certified”
interpreter appeared at a hearing, that Garcia waived his right
to a preliminary hearing on the counts as amended, and that he
was bound over to the district court on those counts.
In November 2017, the State charged Garcia by informa-
tion in the district court with the same counts brought under
the prior amended criminal complaint. After a continuance of
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Cite as 27 Neb. App. 705trial at Garcia’s request, trial was set for June 2018. A plea
hearing took place on March 19, at which a self-identified
“certified court interpreter” entered her appearance. Garcia
answered affirmatively when the district court asked him if he
could understand what the court was saying to him with the aid
of the court interpreter. The district court granted the State’s
request for leave to file an amended information, pursuant to
a plea agreement, to charge Garcia with second degree assault
(count 1) and use of a weapon to commit a felony (count 2);
the State filed the amended information. Garcia waived the
24-hour notice and reading of the amended information and
entered pleas of guilty to both counts. The State provided the
following factual basis:
On September 2nd, 2017[,] officers responded to Bergan
Mercy Hospital emergency room in reference to a woman
who had a cut on her neck saying her boyfriend had
caused that.
Officers made contact with . . . Garcia [sic]. Stated
that the . . . boyfriend, . . . Garcia had been arguing the
evening before. She stated she proceeded to [an address
on] Harvest Hills Drive in Sarpy County, Nebraska. At
that time she made contact with [Garcia’s] niece . . . who
was also present. [The victim] also made contact with
[Garcia’s sister]. They were in the living room talking
about the relationship. [The victim] said she was sit-
ting on the edge of the couch near at [sic] the kitchen.
[Garcia’s sister] was standing at the top of the stairs.
And [Garcia’s niece] was standing by the entrance to the
kitchen. [Garcia] was outside talking to an unidentified
Hispanic male. She said [Garcia] then came in and over-
heard [the victim] talking about taking the car and some
money and leaving [Garcia]. At that time [Garcia] got
angry and started yelling at her. Then, according to [the
victim], as well as [Garcia’s niece], [Garcia] got quiet
and calmly walked into the kitchen, walked back out of
the kitchen. He went up to [the victim], grabbed her by
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Cite as 27 Neb. App. 705the hair, pulled her head to the side and started attempt-
ing to cut her neck with the knife. According to [the
victim], he stated you’re going to stay here, I’m going to
kill you. Those three parties then with the assistance of
the unidentified male at some point were able to remove
[Garcia] from [the victim] and take the knife from him.
[Garcia] then left the scene.
Defense counsel had nothing to add to the State’s factual
basis. The State then noted that “when [Garcia] went into the
kitchen [the victim] and [Garcia’s niece] stated initially they
didn’t see a knife. But after he started to cut her, they noticed
that he did have a knife, knife in his hand.” Defense counsel
had no objection to that further factual basis. The district court
found beyond a reasonable doubt that Garcia understood the
nature of the charges and the possible sentences; that Garcia’s
pleas were accurate and made freely, knowingly, intelligently,
and voluntarily; and that there was a factual basis for Garcia’s
pleas. The district court accepted Garcia’s pleas and found him
guilty of both counts.
Garcia’s sentencing hearing took place in June 2018, at
which a self-identified “State Certified Spanish interpreter”
appeared. This was a different individual than the interpreter
who had been present for the plea hearing. At the close of the
sentencing hearing, the district court sentenced Garcia to 15
to 20 years’ imprisonment on his conviction of second degree
assault and 5 to 10 years’ imprisonment on his conviction of
use of a weapon to commit a felony (to run consecutive to
his sentence for second degree assault). Garcia was given 245
days’ credit for time served.
Garcia appeals.
ASSIGNMENTS OF ERROR
Garcia claims, restated and reordered, that (1) his pleas
were not intelligently and understandingly made because the
district court failed to ensure statutes pertaining to interpret-
ers were followed, (2) the district court abused its discretion
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was ineffective.
STANDARD OF REVIEW
[1] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Leahy, 301 Neb. 228, 917 N.W.2d
895 (2018).
[2,3] Whether a claim of ineffective assistance of trial coun-
sel may be determined on direct appeal is a question of law.
State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018). 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 preju-
diced by counsel’s alleged deficient performance. Id.ANALYSIS
Qualifications of Interpreters
[4,5] Garcia assigns as error that the district court erred
by failing to ensure interpreter statutes were followed. We
note that a similar argument was recently made by an appel-
lant in another case before this court. See State v. Lastor, No.
A-19-221, 2019 WL 3729723 (Neb. App. Aug. 1, 2019) (not
selected for posting to court website). Here, Garcia argues
that the district court “needed to make sure the Interpreter
was certified under the rules of the Supreme Court and has
taken the prescribed oath of office.” Brief for appellant at
14. He assigns as error that his plea was not “intelligently
and understandingly made.” He argues generally about the
content and purpose of the interpreter statutes and then sug-
gests that this court should “review the record for plain error
on this issue.” Id. at 15. Garcia presumably requests a plain
error review because he did not object to any matter concern-
ing either interpreter during the plea or sentencing hearings,
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Cite as 27 Neb. App. 705even though there were opportunities to do so at both hear-
ings (e.g., after each interpreter stated her appearance on the
record). Additionally, when asked by the district court during
the sentencing hearing whether there was any reason sentenc-
ing could not proceed, Garcia’s trial counsel responded, “No.”
Having made no pertinent and timely objections during those
hearings, his claim on appeal with respect to each interpreter
is waived and is not preserved for appellate review. See, State
v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018) (failure to
make timely objection waives right to assert prejudicial error
on appeal); State v. Pereira, 284 Neb. 982, 824 N.W.2d 706(2013) (generally, where no objection is made at sentencing
hearing when defendant is provided opportunity to do so,
any claimed error is waived and is not preserved for appel-
late review).
[6] Further, we do not find the issue qualifies as plain
error. See State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019)
(appellate court may find plain error on appeal when error
unasserted or uncomplained of at trial, but plainly evident
from record, prejudicially affects litigant’s substantial right
and, if uncorrected, would result in damage to integrity, repu-
tation, and fairness of judicial process). We see no substantial
right of Garcia’s prejudicially affected by the district court’s
acceptance, without further inquiry, of the interpreters’ repre-
sentations that they were certified interpreters. Nebraska law
requires the appointment of an interpreter in a court proceed-
ing when the defendant is unable to communicate the English
language. See Neb. Rev. Stat. §§ 25-2401 to 25-2407 (Reissue
2016). “[S]ections 25-2401 to 25-2407 provide a procedure for
the appointment of such interpreters to avoid injustice and to
assist such persons in their own defense.” § 25-2401. Section
25-2405 states that every interpreter,
except those certified under the rules of the Supreme
Court and who have taken the prescribed oath of office
. . . shall take an oath that he or she will, to the best of
his or her skill and judgment, make a true interpretation
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guage . . . .
Interpreters certified under the rules of the Nebraska Supreme
Court are subject to an ethical code and must take an inter-
preter oath. See, Neb. Ct. R. § 6-703 (rev. 2014) (interpreters
serving pursuant to court rules “shall have read the Code of
Professional Responsibility for Interpreters” and shall have
taken “the Interpreter Oath”); Neb. Ct. R. § 6-705 (rev. 2018)
(certified court interpreter requirements). Also, a statewide
register of interpreters is maintained and published which lists
interpreters by their level of certification. See Neb. Ct. R.
§ 6-702 (rev. 2018) (interpreter register).
[7] Garcia acknowledges in the “Statement of Facts” sec-
tion of his brief that a Spanish-speaking interpreter assisted
him during his plea hearing and that the interpreter entered
an appearance as a “‘certified Court interpreter.’” Brief for
appellant at 8. Garcia again acknowledges that an interpreter
was provided at his sentencing hearing and that the interpreter
entered an appearance as a “‘State certified Spanish inter-
preter.’” Id. at 9. However, he argues that “since no oath was
given” to the interpreter, the district court needed to make sure
the interpreter was certified under the rules of the Nebraska
Supreme Court and had taken the prescribed oath of office. Id.
at 14. Garcia cites to no authority to support that a trial court
must engage in some type of courtroom confirmation when an
interpreter represents to the court that he or she is a certified
court interpreter. We conclude that pursuant to § 25-2405, a
court interpreter is not required to recite an oath at the begin-
ning of each proceeding if already certified under the rules of
the Nebraska Supreme Court. Further, a trial court can accept,
without further inquiry, an interpreter’s representation that he
or she is a certified court interpreter. We find no plain error by
the district court’s acceptance, without further inquiry, of the
representations made by the interpreters in this case that they
were certified interpreters and, thus, were not required to be
administered an oath prior to the proceedings.
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Cite as 27 Neb. App. 705[8-10] Under this same argument section of his brief,
Garcia also states he “would reassert his arguments made in
the above error at law in support of his claim that he received
ineffective assistance of counsel such that his trial counsel
did not make sure he freely, intelligently, voluntarily, and
understandingly enter[ed] a guilty plea.” Brief for appellant
at 14-15. However, to the extent Garcia’s assertion here is
that trial counsel was deficient for failing to make objections
related to the certification of the court interpreters, Garcia
did not assign this as an error in the “Assignments of Error”
section of his brief where he set forth his claims of ineffec-
tive assistance of trial counsel. An alleged error must be both
specifically assigned and specifically argued in the brief of
the party asserting the error to be considered by an appel-
late court. State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851(2019). An appellate court does not consider errors which
are argued but not assigned. State v. Dill, 300 Neb. 344,
913 N.W.2d 470 (2018). Regardless, we have already con-
cluded there was no plain error by the district court’s accept­
ance, without further inquiry, of the interpreters’ represen-
tations that they were certified (and therefore not required
to take an oath at the proceedings). As a matter of law,
counsel cannot be ineffective for failing to raise a meritless
argument. State v. Schwaderer, 296 Neb. 932, 898 N.W.2d
318 (2017).
Excessive Sentences
Although not raised by the parties, before reaching Garcia’s
claim that the district court abused its discretion in impos-
ing excessive sentences upon him, we note that the written
sentencing order differs from the district court’s oral sen-
tencing pronouncement. The district court orally sentenced
Garcia on “Count I,” second degree assault, to 15 to 20 years’
imprisonment, and on “[C]ount II,” use of a weapon to com-
mit a felony, to “a period of not less than 5 years, nor more
than 10 years.” The written sentencing order shows sentence
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Cite as 27 Neb. App. 705terms on two counts (one sentence of imprisonment of 15 to
20 years and another of 5 to 10 years), but each are written as
sentences associated with “Count 1,” and, thus, each purport
to refer to Garcia’s conviction for second degree assault. But
it is evident that the discrepancy was an unintended error, as
“Count 2” is accurately referenced elsewhere in the sentenc-
ing order.
[11-13] A sentence validly imposed takes effect from the
time it is pronounced. State v. Lessley, 301 Neb. 734, 919
N.W.2d 884 (2018). When a valid sentence has been put into
execution, the trial court cannot modify, amend, or revise it in
any way, either during or after the term or session of court at
which the sentence was imposed. Id. When there is a conflict
between the record of a judgment and the verbatim record
of the proceedings in open court, the latter prevails. State v.
Lantz, 21 Neb. App. 679, 842 N.W.2d 216 (2014). During
the sentencing hearing, the district court orally ordered that
Garcia’s sentence on “Count I,” second degree assault, was 15
to 20 years’ imprisonment, and his sentence on “[C]ount II,”
use of a weapon to commit a felony, was 5 to 10 years’ impris-
onment. Pursuant to law, the district court’s oral pronounce-
ment controls.
Garcia was convicted of second degree assault, a Class IIA
felony, under Neb. Rev. Stat. § 28-309 (Reissue 2016), and use
of a weapon (other than a firearm) to commit a felony, a Class II
felony, under Neb. Rev. Stat. § 28-1205(1) (Reissue 2016). A
Class IIA felony is punishable by up to 20 years’ imprison-
ment. See Neb. Rev. Stat. § 28-105(1) (Cum. Supp. 2018). A
Class II felony is punishable by 1 to 50 years’ imprisonment.
Id. Garcia was sentenced to 15 to 20 years’ imprisonment for
second degree assault and 5 to 10 years’ imprisonment for use
of a weapon to commit a felony. His sentence for use of a
weapon to commit a felony was ordered to run consecutive to
his sentence for second degree assault, and he was given 245
days’ credit for time served. His sentences are within the statu-
tory range.
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Cite as 27 Neb. App. 705[14-16] Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discre-
tion in considering and applying the relevant factors as well
as any applicable legal principles in determining the sentence
to be imposed. State v. Leahy, 301 Neb. 228, 917 N.W.2d 895(2018). In determining a sentence to be imposed, relevant fac-
tors customarily considered and applied are 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 amount of violence
involved in the commission of the crime. Id. The appropriate-
ness of a sentence is necessarily a subjective judgment and
includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life. Id.A presentence investigation report (PSR) shows Garcia was
39 years old at the time of sentencing. He attended high school
in Mexico, but did not graduate. At the time of the PSR, Garcia
was unemployed due to his incarceration, but he reported hav-
ing been previously employed by a trucking company. The
PSR shows several charges on Garcia’s criminal record that
took place in either Illinois or Iowa and for which the dis-
position is unknown, including “DWI/Causing Injury” (two
charges in different years), “Battery/Bodily Harm,” “DWI,”
and “Criminal Damage/Fire/Expl. $300-$10,000.” He was
extradited at some point after being charged with “Inadmissible
Alien” in Illinois in 2008. His convictions include the follow-
ing: disorderly conduct (2012, fine); attempted possession of
controlled substance and domestic assault, intentionally caus-
ing bodily injury to intimate partner (2013, 148 days’ jail for
each); and “DUS” and failure to appear (2013, fine for each).
In October 2017, after committing his present offenses, Garcia
was extradited on a “Fugitive From Justice” offense out
of Iowa.
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Cite as 27 Neb. App. 705The PSR shows the probation officer’s conclusion that
Garcia’s criminal history appears to be directly or indirectly
related to alcohol abuse. When asked about his behavior with
alcohol, Garcia indicated “he goes through a ‘personality
change’ and admits that he is quite aggressive.” When asked
about what he is like sober, Garcia indicated “he does not say
much, however does become angry from time to time and that
is when he begins drinking.” The PSR states Garcia “readily
admits” he has a problem with alcohol. A “Simple Screening
Instrument” shows Garcia was a “moderate to high degree of
risk for alcohol or drug abuse.” An “Adult Probation Substance
Abuse Questionnaire” shows Garcia’s truthfulness was in the
low risk range and that he scored in the “problem-max percent­
ile” for the categories of alcohol, drugs, violence, antisocial,
aggressiveness, and stress coping.
The PSR indicates that during his interview, Garcia admit-
ted he had a “‘problem’” and that he “was so angry that he
‘tried to kill her.’” Garcia said he thought he should be in jail
due to his present aggressive behavior. Due to the nature of the
offenses, a “Domestic Violence Offender Matrix” was admin-
istered to Garcia to assess the appropriateness of specialized
community supervision. Garcia scored in the high risk range of
the matrix. The probation officer wrote that Garcia had never
been diagnosed with antisocial personality disorder but that he
“displays some associated traits and behaviors.” The probation
officer’s opinion was that Garcia’s mental status was question-
able because during the interview “he expresse[d] a significant
amount of guilt and shame for his behavior . . . and felt that
jail at this point was the safest place for him.”
A “Level of Service/Case Management Inventory” shows
Garcia scored in the high risk range to reoffend. He scored
as a low risk in the domains of criminal history, education/
employment, family/marital, procriminal attitude/orientation,
and antisocial pattern; high risk in the leisure/recreation
and alcohol/drug problem domains; and very high risk in
the “companions” domain. The probation officer made no
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recommendations in the event the district court wished to
place Garcia on a term of probation.
During the sentencing hearing, defense counsel noted Garcia
was an undocumented worker so there was a “great likelihood”
that after the case he would be federally indicted for illegal
reentry and “would be looking at an additional 60 months,” or
would “likely” be deported. Defense counsel highlighted that
Garcia acknowledged he had “a real problem with alcohol” and
pointed out his low risk scores on the “Level of Service/Case
Management Inventory.” Defense counsel found it unusual in
“a case like this” to see Garcia had “demonstrated a lot of guilt
and shame as noted by the probation officer.” Defense counsel
requested a “total sentence of 15 to 20,” adding “this clearly
is not a probation case. He is going to be deported afterwards,
and we think that total sentence would be appropriate given
where he is in his acceptance and his feelings about this
situation.” According to defense counsel, imprisonment was
appropriate for Garcia to serve his “debt to society and address
those mental health issues before he gets deported.”
In a letter from Garcia to the district court judge, Garcia
said he took “full ownership” of his actions and knew what he
did was wrong. He stated in the letter that anytime he had had
“trouble it has been due to alcohol” and that he was “going to
get the help in prison that [he] need[s].” Garcia spoke during
the sentencing hearing, stating he was “very sorry about all of
this, for the damage that [he] caused to many people that love
[him].” He hoped “the best” for the victim, that she could “redo
her life,” and stated the victim was “always in [his] prayers.”
He asked for mercy and reiterated he was “really sorry.”
The State pointed out that present at the time of Garcia’s
offenses were three 2-year-old children (including Garcia’s
daughter), a 10-year-old child, and a 13-year-old child, as well
as the victim and Garcia’s “mother” (it was actually his sis-
ter) and niece. The State reported that the victim and Garcia’s
niece “both said they were terrified of the situation of what
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STATE v. GARCIA
Cite as 27 Neb. App. 705happened.” The State noted Garcia’s substance abuse question-
naire scores, his score in the high risk range of the domestic
violence matrix, and his prior domestic violence assault con-
viction. The State requested a “straight sentence.”
The district court said it had a chance to review the PSR and
“noted some of the comments” it had heard during the sentenc-
ing hearing. The district court found the facts of the case “dis-
turbing to say the least.” The court agreed with Garcia’s trial
counsel that alcohol was a factor. However, the court found it
had to “counter” that with the “high scores[,] prior criminal
history, and the nature and circumstances of the offense[s].” In
reviewing those factors, it said it found imprisonment neces-
sary for the protection of the public because the risk is sub-
stantial that Garcia will engage in additional criminal conduct
if placed on probation.
On appeal, Garcia asserts that the district court abused its
discretion “by giving the crime substantial weight,” brief for
appellant at 16, even though in his letter to the court he had
indicated awareness of the seriousness of his actions under-
lying his convictions. He offers a conclusory argument that
probation would not depreciate the seriousness of his offenses,
although he concedes the district court found otherwise. He
contends that the PSR shows “several factors, which mitigate
in favor of [a] lower sentence to include probation,” but does
not explain which factors he is referring to or his reasoning for
that belief. Brief for appellant at 18.
As the State notes, “even [Garcia’s] trial counsel did not
believe that probation was appropriate.” Brief for appellee at
7. Garcia’s letter and the PSR indicate that, at least around
the time of sentencing, Garcia himself believed imprisonment
suited him best. The PSR covered all of the relevant sentenc-
ing factors as set forth in State v. Leahy, 301 Neb. 228, 917
N.W.2d 895 (2018), and the record does not show that the dis-
trict court relied on any inappropriate consideration in impos-
ing Garcia’s sentences. The record supports the district court’s
sentencing of Garcia. Also, the district court correctly ordered
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STATE v. GARCIA
Cite as 27 Neb. App. 705Garcia’s sentence for use of a weapon to commit a felony to
be served consecutively to his other sentence as is required
under § 28-1205(3). We find the district court did not abuse
its discretion in sentencing Garcia, but as noted previously, the
district court’s oral pronouncement controls.
Ineffective Assistance of Counsel
[17,18] Garcia claims his trial counsel was ineffective. His
counsel for this direct appeal differs from his trial counsel.
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. State v. Spang, 302
Neb. 285, 923 N.W.2d 59 (2019). Once raised, the appellate
court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims.
Id. An ineffective assistance of counsel claim made on direct
appeal can be found to be without merit if the record estab-
lishes that trial counsel’s performance was not deficient or
that the appellant could not establish prejudice. Id.[19-21] 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 has the
burden to show that his or her counsel’s performance was
deficient and that this deficient performance actually preju-
diced the defendant’s defense. State v. Spang, supra. In a plea
context, deficiency depends on whether counsel’s advice was
within the range of competence demanded of attorneys in
criminal cases. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494(2019). When a conviction is based upon a guilty or no contest
plea, the prejudice requirement for an ineffective assistance of
counsel claim is satisfied if the defendant shows a reasonable
probability that but for the errors of counsel, the defendant
would have insisted on going to trial rather than pleading
guilty. Id.- 721 -
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Cite as 27 Neb. App. 705Garcia assigns as error that his trial counsel was ineffective
“based upon his guilty pleas not being voluntary, knowingly,
and intelligently made due to the lack of communication,
lack of explanation of the law, and exertion of undue pres-
sure by trial counsel.” All of his claims relate to the entry of
his pleas.
[22] To support a finding that a defendant has entered a
guilty plea freely, intelligently, voluntarily, and understand-
ingly, 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. State v. Lane, 299 Neb. 170, 907 N.W.2d 737(2018). The record must also establish a factual basis for the
plea and that the defendant knew the range of penalties for the
crime charged. Id.Garcia does not specifically raise any of the factors set forth
above in Lane as a basis for his ineffective assistance claims
related to his guilty pleas. Rather, he asserts that
he was not able to discuss fully with his trial counsel
about the terms of the plea agreement, the facts thereon,
specifically the victim who was named in the Information,
the fact that he had a Motion to Discharge outstanding
and that if he pled No Contest, no ruling would be made
on the Motion nor would he be able to appeal a detrimen-
tal decision.
Brief for appellant at 12. The first part of that assertion appears
to relate to his claim in his assignment of error regarding “lack
of communication” regarding the terms of the plea agreement
and the factual basis upon which it was based. The second part
of the assertion appears to relate to his claim in his assign-
ment of error regarding “lack of explanation of the law,”
which seems to be connected to an alleged outstanding motion
to discharge. He also asserts that the record on direct appeal
“might be sufficient to address his claim of being subjected to
pressure on a level and to the extent to render his guilty pleas
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STATE v. GARCIA
Cite as 27 Neb. App. 705invalid.” Id. at 13. This appears to relate to his claim in his
assignment of error regarding “exertion of undue pressure by
trial counsel.” Garcia then states:
The record is devoid [of] whether [Garcia] had enough
time to speak to his attorney. Ultimately, the record, as
a whole, indicates that [Garcia] did not knowingly, vol-
untarily and intelligently plead no contest to the charges
but [Garcia] would also state that testimony from him-
self and his attorneys of their discussions off the record
and evidence extrinsic to the record most likely is neces-
sary to address his contentions.
Id. at 13. This again appears to broadly relate to the claim in
his assignment of error regarding “lack of communication.” We
will address Garcia’s claims of ineffective assistance of trial
counsel in the following order: (1) the lack of communication
regarding the plea agreement and the factual basis upon which
it was based, (2) the lack of explanation of the law related to
an alleged outstanding motion to discharge, and (3) the exer-
tion of undue pressure by trial counsel.
As to his allegation of trial counsel’s lack of communication
regarding the plea agreement and the factual basis upon which
it was based, Garcia asserts he “was not able to discuss fully
with his trial counsel about the terms of the plea agreement,
the facts thereon, specifically the victim who was named in
the Information.” Brief for appellant at 12. He also argues the
“record is devoid [of] whether [he] had enough time to speak
to his attorney.” Id. at 13. The record is sufficient to decide
this claim.
At the outset of the plea hearing, the district court specifi-
cally informed Garcia that if at any point in time he had ques-
tions, he should “feel free to ask the Court or [he could] meet
with [his] attorneys.” Garcia responded, “Okay.” To the extent
Garcia believed he needed more time to speak with his attor-
ney before entering his pleas, the court made it clear it would
make that time available. During the plea hearing, the State
recited the terms of the intended plea agreement: charging
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STATE v. GARCIA
Cite as 27 Neb. App. 705Garcia with one count of second degree assault and one count
of use of a weapon to commit a felony (Garcia was expected
to plead guilty to each count) and withholding filing of “any
associated sexual assault charges.” Defense counsel stated the
intended plea agreement also dismissed the count of terroristic
threats. The State provided its factual basis (which identified
the victim and witnesses), as set forth previously. The district
court asked Garcia if he agreed that “the State could present
that evidence at trial” and that it “would support the conviction
for the crime charged that you’re pleading guilty to?” Garcia
responded, “Yes.” Also, as previously discussed, there was an
interpreter present at the plea hearing. Garcia answered affirm­
atively when asked if he could understand what the district
court was saying to him with the aid of that interpreter. And
although Garcia complains of the interpreter’s qualifications
on appeal, he does not dispute the accuracy of interpreta-
tions of statements and questioning or contend that he did not
understand what was said during the proceedings. Notably, the
district court directly asked Garcia if the plea negotiations had
been fully set out on the record for him. Garcia responded,
“Yes.” Regardless of the extent of his trial counsel’s commu-
nication with him before entering his pleas, the record shows
Garcia was informed of the contemplated plea agreement and
the State’s factual basis. He was provided further opportunity
to speak with his attorney at the time of the plea hearing, and
he never made such a request. Garcia does not provide any
explanation for why further communication with his attorney
was necessary before entering his plea, and there is nothing
in the record to suggest that if he had been able to speak fur-
ther with his attorney, he would have insisted on going to trial
rather than pleading guilty. This claim of ineffective assistance
of counsel fails.
Regarding his claim that there was a lack of explanation of
the law related to an alleged outstanding motion to discharge
and pleading “No Contest,” brief for appellant at 12, we note
that the pleas in the present case were guilty pleas and there
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Cite as 27 Neb. App. 705is no motion to discharge filed or ruled upon in our record.
As the State contends, “counsel cannot be ineffective for not
explaining how a guilty plea would affect a motion that was
never filed.” Brief for appellee at 5. We agree. This claim of
ineffective assistance of counsel also fails.
[23] As to his final claim, Garcia does not allege with any
particularity the basis for his claim related to trial counsel’s
exertion of undue pressure upon him. General allegations
that trial counsel performed deficiently or that trial counsel
was ineffective are insufficient to raise an ineffective assist­
ance claim on direct appeal and thereby preserve the issue
for later review. State v. Casares, 291 Neb. 150, 864 N.W.2d
667 (2015). By definition, a claim insufficiently stated is no
different than a claim not stated at all. State v. Abdullah, 289
Neb. 123, 853 N.W.2d 858 (2014). Therefore, if insufficiently
stated, an assignment of error and accompanying argument
will not prevent the procedural bar accompanying the failure
to raise all known or apparent claims of ineffective assistance
of trial counsel. Id. Accordingly, Garcia’s claim about his trial
counsel’s alleged exertion of undue pressure is not preserved
for later review.
CONCLUSION
For the foregoing reasons, we affirm Garcia’s convictions.
We also affirm Garcia’s sentences. However, the matter is
remanded with directions to modify the written sentencing
order to reflect the district court’s oral pronouncement of 15 to
20 years’ imprisonment on “Count I,” second degree assault,
and 5 to 10 years’ imprisonment on “[C]ount II,” use of a
weapon to commit a felony. In all other respects, the judgment
of the district court is affirmed.
A ffirmed as modified, and cause
remanded with directions.