State v. Cutaia ( 2021 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. CUTAIA
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
BRANDON J. CUTAIA, APPELLANT.
Filed November 2, 2021. No. A-21-002.
Appeal from the District Court for Sarpy County: MICHAEL A. SMITH, Judge. Affirmed.
Douglas J. Amen, of Douglas J. Amen Law, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
PIRTLE, Chief Judge, and MOORE and WELCH, Judges.
WELCH, Judge.
I. INTRODUCTION
Brandon J. Cutaia appeals his plea-based convictions for stalking and third degree domestic
assault. On appeal, he contends that the Sarpy County District Court erred in (1) denying his
motion to withdraw his pleas, (2) finding that the factual basis provided by the State established
venue in Sarpy County, and (3) in granting the State’s motion to consolidate. His fourth assignment
of error is that his trial counsel was ineffective in failing to (a) obtain discovery from the public
defender’s office, (b) investigate Cutaia’s cell phone, (c) interview and obtain statements from
defense witnesses, (d) object to the factual basis for stalking, and (e) properly calculate time served.
For the reasons set forth herein, we affirm.
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II. STATEMENT OF FACTS
CHARGES, CONSOLIDATION OF CASES, AND PLEA HEARING
In 2019, Cutaia was charged in Sarpy County District Court with the strangulation of his
girlfriend. As a result of this incident, the victim obtained a protection order against Cutaia which
was served in November. Although the Sarpy County Public Defender’s Office was initially
appointed to represent Cutaia, he eventually hired replacement counsel who entered his appearance
in the case in March 2020. The same day, he filed stipulations for reciprocal discovery.
In May 2020, in a separate case but involving the same victim, the State charged Cutaia
with stalking, a Class IIIA felony, and violation of a domestic violence protection order, a Class I
misdemeanor. Following a motion to consolidate filed by the State, the district court consolidated
the two cases, over Cutaia’s objection, on the basis that the alleged offenses were “of a similar
character and may be viewed as part of a common scheme” and that consolidation would not
prejudice Cutaia.
Pursuant to a plea agreement, on August 25, 2020, Cutaia pled guilty to stalking, a Class
IIIA felony, and pled no contest to an amended charge of third degree domestic assault, a Class I
misdemeanor. The strangulation charge in the separate case was dismissed by the State.
In relation to the third degree domestic assault charge, the State’s factual basis and
presentence investigation report (PSR) indicated that on October 30, 2019, in Sarpy County,
Nebraska, the victim, Cutaia’s girlfriend, reported to law enforcement that she was awakened from
sleep by Cutaia “forcibly shoving a slice of pizza in her face.” He called her names and “then
forcibly applied his hand to her mouth and nose restricting her breathing. She stated that Cutaia
then put his other hand over her mouth and nose causing her to be unable to breathe.” The victim
stated this lasted for “at least a minute” while she thrashed and kicked in an attempt to break free.
As a result of this incident, the victim obtained a protection order which was served on Cutaia on
November 7, 2019. The protection order prohibited Cutaia from threatening, assaulting, molesting,
attacking, or otherwise disturbing the victim’s peace. The protection order also restricted Cutaia
from telephoning, contacting, or otherwise communicating with the victim and excluded him from
the victim’s residence.
Regarding the stalking charge, the State’s factual basis indicated that, on February 6, 2020,
the victim, Cutaia’s girlfriend, reported to law enforcement that Cutaia had been attempting to
contact her “several times” despite an active protection order being in place restricting him from
“threatening, assaulting, molesting, attacking, or otherwise disturbing the peace” of the victim.
The victim also advised that, while she was at a bar, “an individual came up to her and stated that
she was paid by a man named Brandon to take pictures of [the victim] at a bar.” The victim further
advised that she found two tracking devices on her vehicle, one of which was in a car seat, and
that “numerous times around the city she would see [Cutaia] following her in an area where she
was located.” When asked about the tracking devices, Cutaia responded that “he was tracking his
son and not [the victim].” The State further set forth that, in February 2020, Cutaia called the child
abuse hotline reporting that the victim had been drinking at a bar and that the children’s babysitter
was noticing signs of intoxication of the victim when she picked up her children. Officers also
listened to jail calls where Cutaia called his son and asked him “to pick a fight with [the victim]
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so she would get angry enough to hit him so [she would] be arrested for child abuse.” At another
point, Cutaia called his mother and asked her to call the victim at her work because the victim’s
“place of employment is not a violation of the Protection Order because it was not mentioned in
the Protection Order.” Officers were able to determine that Cutaia used a “spoofing application”
on his phone to contact the victim’s place of employment to find out her work hours. Officers also
located numerous messages on Cutaia’s phone talking about where the victim was located during
January and February 2020 and, at one point, Cutaia sent a message to his mother that he was
parked down the block from the victim’s house. The State asserted that all the events occurred in
Sarpy County, Nebraska.
Following the recitation of the factual bases by the State, the district court asked defense
counsel “Any comment regarding the factual basis?” to which counsel responded “No objection
for the purposes of factual basis, Your Honor.” The State accepted Cutaia’s pleas finding that they
had been knowingly, intelligently, and voluntarily entered.
2. MOTION TO WITHDRAW PLEAS
Prior to the sentencing hearing, Cutaia filed a motion to withdraw his plea for the reasons
that (1) “the State misspoke during the entry of plea when it stated that all events occurred in Sarpy
County, which was incorrect. [Cutaia] is being held accountable for events which took place and/or
originated outside of and/or had no connection to Sarpy County” and (2) “the State withheld
exculpatory evidence from the defense [by] not furnishing defense counsel [with videos] which
had been provided to the Public Defender’s office. Hired counsel for [Cutaia] had not received the
videos before the plea hearing.”
During the 2-day hearing on the motion to withdraw, Cutaia offered into evidence an
affidavit by replacement counsel with attachments that included a photocopy of a DVD that he
alleged was not initially provided to him by the State, but which was later provided after Cutaia
had entered pleas in this case. A viewable copy of the DVD was not included in the exhibit, only
a photocopy of the DVD itself was attached to the affidavit. Cutaia made three arguments to the
district court. First, he argued that the factual basis provided by the State was insufficient to
establish venue in Sarpy County for the stalking charge. Second, he argued that the stalking
conviction was barred by double jeopardy because some of the events referred to in the State’s
factual basis were the same events forming the basis for a Douglas County conviction for violation
of a protection order. Finally, Cutaia argued that his current defense counsel had not been provided
material evidence by the State prior to the entry of Cutaia’s pleas.
In response, the State asserted that the State had turned over all required evidence to
Cutaia’s prior defense counsel, the Sarpy County Public Defender’s Office. Regarding venue, the
prosecutor noted that he could have “been more eloquent” in setting forth the factual basis for
stalking by explaining which events occurred in which county, but that Neb. Rev. Stat.
§ 29-1301.01 (Reissue 2016) allowed for jurisdiction “based upon [Cutaia’s] actions.” Finally, the
prosecutor argued that he could use the same facts that supported Cutaia’s Douglas County
conviction for violation of a protection order because those facts were part of the course of conduct
supporting the Sarpy County stalking charge.
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At the close of the hearing, the district court denied Cutaia’s motion to withdraw his plea
for the reasons that the double jeopardy claim failed because “[t]he dates and times and locations
listed in the two Informations and the matters are just different. There’s really no showing that
they are, in fact, the same conduct that’s being punished,” the State had fulfilled its statutory
obligation to provide discovery, and the fact that former defense counsel may not have turned over
certain discovery to current defense counsel was not a good and just reason to allow withdrawal
of Cutaia’s pleas.
3. SENTENCING
At the sentencing hearing the district court stated:
The Court has considered the nature and circumstances of the crime, the history,
character, and condition of [Cutaia], the statements in the presentence investigation, and
finds there are substantial and compelling reasons why [Cutaia] cannot effectively and
safely be supervised on probation, and a lesser sentence would depreciate the seriousness
of the crime, would promote disrespect for the law. Incarceration is necessary to protect
the security of the public. The risk is substantial that during a period of probation [Cutaia]
will likely engage in additional criminal conduct. The court cannot find the circumstance[s]
. . . of this crime are unlikely to [recur], and the Court cannot find that the character and
attitudes of [Cutaia] indicate that he is unlikely to commit another crime.
The court sentenced Cutaia to 2 years’ imprisonment for stalking followed by 9 months of
post-release supervision and 90 days’ imprisonment for third degree domestic assault. The court
ordered the sentences to run concurrently and Cutaia was awarded credit for 134 days previously
served. Cutaia has timely filed this direct appeal and is represented by different counsel than
represented him during his plea and sentencing.
III. ASSIGNMENTS OF ERROR
Cutaia’s assignments of error, renumbered and restated, allege that the district court (1)
erred in granting the State’s motion to consolidate, (2) committed plain error in finding that the
factual basis provided by the State for the stalking charge established venue in Sarpy County, and
(3) erred in denying his motion to withdraw his pleas. His fourth assignment of error is that his
trial counsel was ineffective in failing to (a) obtain discovery from the public defender’s office,
(b) investigate Cutaia’s cell phone, (c) interview and obtain statements from defense witnesses,
(d) object to the factual basis for stalking, and (e) properly calculate time served.
IV. STANDARD OF REVIEW
A trial court’s ruling on a motion for consolidation of prosecutions properly joinable will
not be disturbed on appeal absent an abuse of discretion. State v. McPherson, 266 Neb. 715, 668
N.W.2d 488 (2003); State v. Clark, 21 Neb. App. 581, 842 N.W.2d 151 (2013).
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
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fairness of the judicial process. State v. Childs, 309 Neb. 427, 960 N.W.2d 585 (2021). Generally,
we will find plain error only when a miscarriage of justice would otherwise occur. Id.A trial court has discretion to allow defendants to withdraw their guilty or no contest pleas
before sentencing. State v. Carr, 294 Neb. 185, 881 N.W.2d 192 (2016). An appellate court will
not disturb the trial court’s ruling on a presentencing motion to withdraw a guilty or no contest
plea absent an abuse of discretion. Id.Whether a claim of ineffective assistance of counsel may be determined on direct appeal is
a question of law. State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021). In reviewing claims of
ineffective assistance of counsel on direct appeal, an appellate court decides only whether the
undisputed facts contained within the record are sufficient to conclusively determine whether
counsel did or did not provide effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance. Id. When the claim is raised in a direct
appeal, the appellant is not required to allege prejudice; however, an appellant must make specific
allegations of the conduct that he or she claims constitutes deficient performance by trial counsel.
Id.Assignments of error on direct appeal regarding ineffective assistance of trial counsel must
specifically allege deficient performance, and an appellate court will not scour the remainder of
the brief in search of such specificity. State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019); State
v. Duckworth, 29 Neb. App. 27, 950 N.W.2d 650 (2020).
V. ANALYSIS
1. MOTION TO CONSOLIDATE
First, Cutaia contends that the district court erred in granting the State’s motion to
consolidate the two cases for purposes of trial. He contends that the cases did not involve the same
transaction or series of events and that the consolidation prejudiced him.
The voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge,
whether the defense is procedural, statutory, or constitutional. State v. Manjikian, 303 Neb. 100,
927 N.W.2d 48 (2019). Exceptions include the defenses of insufficiency of the indictment,
information, or complaint; ineffective assistance of counsel; and lack of jurisdiction. Id. A
sufficient factual basis is a requirement for finding that a plea was entered into understandingly
and voluntarily. State v. Ettleman, 303 Neb. 581, 930 N.W.2d 538 (2019); State v. Wilkinson, 293
Neb. 876, 881 N.W.2d 850 (2016); State v. Morton, 29 Neb. App. 624, 957 N.W.2d 522 (2021).
A challenge of a trial court’s ruling granting consolidation of two cases for trial is not one
of the permitted challenges following a plea of guilty or no contest to the charged offenses. Thus,
by entering guilty and no contest pleas, Cutaia waived any challenges to the district court’s
decision to grant the State’s motion to consolidate his cases.
2. VENUE
Second, Cutaia contends that the district court committed plain error in finding that the
factual basis provided by the State for the stalking charge established venue in Sarpy County. He
contends that, in support of the charge, the prosecutor “listed several instances allegedly involving
[Cutaia] contacting [the victim]. However, [the prosecutor] failed to establish that the events he
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conveyed to the court actually occurred in Sarpy County. In fact, many of them occurred in
Douglas County.” Brief for appellant at 17.
The voluntary entry of a guilty plea or a plea of no contest waives every defense to a charge,
whether the defense is procedural, statutory, or constitutional. State v. Manjikian, supra.Exceptions include the defenses of insufficiency of the indictment, information, or complaint;
ineffective assistance of counsel; and lack of jurisdiction. Id. A sufficient factual basis is a
requirement for finding that a plea was entered into understandingly and voluntarily. State v.
Ettleman, supra; State v. Wilkinson, supra; State v. Morton, supra. A defendant does not waive a
challenge to the factual basis by entering a plea, because a sufficient factual basis is a prerequisite
for a judicial finding that the plea was entered into understandingly and voluntarily. State v.
Wilkinson, supra; State v. Morton, supra.
However, it is possible for a defendant to waive challenges to the factual basis under certain
circumstances. In State v. Ettleman, 303 Neb. at 594, 930 N.W.2d at 547, after finding that the
State’s factual basis was insufficient to support the offense, the Nebraska Supreme Court held:
Our opinion today should not be read to preclude a defendant from being treated as having
waived an objection to the sufficiency of the State’s factual basis where the record of a plea
colloquy demonstrates that the trial court specifically asked the defendant or his or her
counsel whether the factual basis provided by the State is sufficient to support the plea and
the defendant failed to object to its sufficiency upon inquiry by the court.
Here, unlike Ettleman, after the State provided the factual basis, the district court asked
defense counsel “Any comment regarding the factual basis?” to which counsel responded “No
objection for the purposes of factual basis, Your Honor.” Thus, because the record demonstrates
that the district court specifically asked defense counsel if he had any comments regarding the
factual basis and counsel responded that he had no objections, Cutaia has waived the issue of the
sufficiency of the factual basis to support his pleas.
Further, there was no plain error in the district court’s finding that the factual basis was
sufficient to support Cutaia’s conviction of stalking. Plain error exists where there is an error,
plainly evident from the record but not complained of at trial, which prejudicially affects a
substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a
miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial
process. State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021). Although we agree with Cutaia
that some of the alleged incidents occurred outside of Sarpy County, § 29-1301.01, the statute
dealing with venue for crimes committed in different counties, provides:
If any person shall commit an offense against the person of another, such accused
person may be tried in the county in which the offense is committed, or in any county into
or out of which the person upon whom the offense was committed may, in the prosecution
of the offense, have been brought, or in which an act is done by the accused in instigating,
procuring, promoting, or aiding in the commission of the offense, or in aiding, abetting, or
procuring another to commit such offense.
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In State v. Petersen, 16 Neb. App. 339, 344-45, 744 N.W.2d 266, 270-71 (2008), this court
relied upon § 29-1301.01 in rejecting the defendant’s argument that Sarpy County was not the
proper venue for the charge of child enticement by computer because the computer used to commit
the crime was located in Douglas County. We held:
The offense of child enticement involves the soliciting, coaxing, enticing, or luring of a
child or a police officer believed by a defendant to be a child. Thus, the crime requires that
there be a recipient of a defendant’s actions in order for soliciting, coaxing, enticing, or
luring to occur. In the instant case, the police officer being solicited, the recipient of
Petersen’s actions, was located in Sarpy County and was receiving and responding to [the
defendant’s] messages from a computer located in Sarpy County. Therefore, the place
where the soliciting, coaxing, enticing, or luring occurred was in Sarpy County. Further,
the meeting which was arranged between Petersen and Missy took place in Sarpy County.
Thus, we conclude that Sarpy County is a county “in which an act is done by the accused
in instigating, procuring, promoting, or aiding in the commission of the offense.”
Accordingly, Sarpy County is a proper venue in which to hold Petersen’s trial for the
offense of child enticement by computer.
Id., 16 Neb. App. at 344-45, 744 N.W.2d at 270-71. See, also, State v. Phelps, 241 Neb. 707, 490
N.W.2d 676 (1992) (in kidnapping prosecution, venue was proper in county where 9-year-old
victim resided even though victim’s clothing and defendant’s admission of “getting out of . . .
vehicle, holding the child’s arms, becoming aroused, being frightened, and departing” all occurred
in second county where victim did not have ability to transport herself out of her county of
residence and thus circumstantial evidence was sufficient to support conclusion that victim was
originally abducted in county of residence); State v. Ellis, 208 Neb. 379, 303 N.W.2d 741 (1981),
disapproved on other grounds, State v. Riensche, 283 Neb. 820, 812 N.W.2d 293 (2012) (in
manslaughter prosecution, evidence including that victim did not have her own transportation,
defendant was absent from class at university on day on which victim disappeared, and that hairs
found in defendant’s automobile exhibited same characteristics as hairs taken from victim,
sufficiently indicated that victim had been taken, for criminal purposes, from county in which she
lived to county in which her remains were found so as to sustain venue in the county of residence);
State v. Tiff, 199 Neb. 519, 260 N.W.2d 296 (1977) (in prosecution for first degree sexual assault,
venue was proper in county where automobile trip originated and concluded regardless of where
actual sexual assault occurred); State v. Lindsey, 193 Neb. 442, 227 N.W.2d 599 (1975) (where
incident leading to prosecution for resisting police officer arose out of officer’s attempt to arrest
defendant for speeding and which ended with defendant resisting as defendant was sitting in truck
which straddled county line, court located in one of two counties in question could proceed with
prosecution either under statute providing that where offense is committed on county line, trial of
offense may be had in either county divided by such line, or under § 29-1301.01); State v. Garza,
191 Neb. 118, 214 N.W.2d 30 (1974) (where trip during which rape occurred originated in Douglas
County, venue was proper in Douglas County even though actual rape may have occurred in
another county).
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Here, Cutaia was convicted of stalking. “Any person who willfully harasses another person
or a family or household member of such person with the intent to injure, terrify, threaten, or
intimidate commits the offense of stalking.” Neb. Rev. Stat. § 28-311.03 (Reissue 2016). We look
to both the factual basis provided by the State and the PSR to determine whether the State proved
venue. See, State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021) (in criminal case, proper venue
is jurisdictional fact that, in absence of defendant’s waiver by requesting change of venue, State
has burden of proving beyond a reasonable doubt); State v. Richter, 220 Neb. 551, 371 N.W.2d
125 (1985) (factual basis may be determined from inquiry of defendant or county attorney, or by
examination of presentence investigation report). The factual basis provided by the State combined
with information contained in the PSR provided that the victim’s residence and place of
employment were located in Sarpy County; that officers determined that Cutaia used a “spoofing
application” on his phone to contact the victim’s place of employment and located numerous
messages on Cutaia’s phone talking about where the victim was located during January and
February 2020 and, a message sent by Cutaia to his mother that he was parked down the block
from the victim’s house; that the victim found two tracking devices on her vehicle, one of which
was in a car seat, and that “numerous times around the city she would see [Cutaia] following her
in an area where she was located” and, when asked about the tracking devices, Cutaia responded
that “he was tracking his son and not [the victim].” Officers also listened to Sarpy County jail calls
where Cutaia called his son and asked him “to pick a fight with [the victim] so she would get angry
enough to hit him so [she would] be arrested for child abuse.” During one of the jail calls, Cutaia
made a comment about retrieving a camera from the victim’s home and setting it up at a neighbor’s
house “so [Cutaia] could watch [the victim] coming and going.” During another jail call, Cutaia
called his mother and asked her to call the victim at her work because the victim’s “place of
employment is not a violation of the Protection Order because it was not mentioned in the
Protection Order.” Because the victim’s residence and place of employment are both located in
Sarpy County and many of Cutaia’s acts originated in Sarpy County, Sarpy County was the
appropriate venue for the stalking charge as it was a county “in which an act is done by the accused
in instigating, procuring, promoting, or aiding in the commission of the offense.” This assigned
error fails.
3. MOTION TO WITHDRAW PLEAS
Cutaia’s third assigned error is that the district court erred in denying his motion to
withdraw his pleas on the basis that his replacement trial counsel “had not been provided material
evidence” prior to Cutaia’s pleas in this case. Brief for appellant at 13. Cutaia argues that “the
State withheld exculpatory evidence from [the] defense by not furnishing his [replacement] trial
counsel with a disc containing videos” taken by Cutaia of the October 30, 2019, incident which
was the subject of the third degree domestic assault charge. Id. at 14. According to Cutaia, the disc
also contained law enforcement’s interview with the victim, photos of the victim’s injuries, and
photos of injuries to Cutaia. Id. Cutaia acknowledges that the disc had been provided to his prior
defense counsel, the Sarpy County Public Defender’s Office.
The right to withdraw a plea previously entered is not absolute. State v. Carr, 294 Neb.
185, 881 N.W.2d 192 (2016). When a defendant moves to withdraw his or her plea before
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sentencing, a court, in its discretion, may sustain the motion for any fair and just reason, provided
that such withdrawal would not substantially prejudice the prosecution. Id. The defendant has the
burden to show the grounds for withdrawal by clear and convincing evidence. Id.Although Cutaia argues that the State withheld evidence from his replacement counsel, he
admits that the evidence forming the basis of his request to withdraw his pleas was provided to his
previous counsel, the Sarpy County Public Defender’s Office. Exhibit 5 confirms that the evidence
was provided to the Sarpy County Public Defender’s Office on December 19, 2019, which was
nearly 8 months prior to Cutaia’s August 25, 2020, guilty pleas.
Cutaia also argues that the evidence was newly discovered evidence providing a “fair and
just” reason to allow Cutaia to withdraw his pleas. Brief for appellant at 15. We acknowledge that
“[n]ewly discovered evidence can be a fair and just reason to withdraw a guilty or no contest plea
before sentencing.” State v. Carr, 294 Neb. at 192, 881 N.W.2d at 197-98. If a defendant moves
to withdraw his or her plea because of newly discovered evidence, the court must consider the
credibility of the newly discovered evidence. State v. Carr, supra. Further, the Nebraska Supreme
Court has recognized that matters affecting the credibility of a major witness are material to the
defense in a criminal case; consequently, evidence which the defendant might use to impeach an
important witness for the State, in addition to evidence which tends to show the defendant’s factual
innocence, may form the basis for withdrawal. Id.Here, the evidence at issue was not “newly discovered evidence,” as the disc had been
provided to the defense in December 2019. Further, Cutaia did not present any evidence supporting
his claim that the content of the disc was exculpatory in nature or otherwise exonerated him. A
viewable copy of the disc was not offered into evidence and the affidavit submitted by Cutaia’s
attorney stated that “At the time . . . Cutaia entered his plea . . . , I discovered that there was a video
taken by . . . Cutaia of the incident which is the cause of action in the Domestic Assault case
herein.” Videos taken by Cutaia cannot be newly discovered evidence because Cutaia, by virtue
of being the person who took the videos, was aware of the video’s existence and their content.
Cutaia’s claim that the district court erred in denying his motion to withdraw his pleas on the basis
that his replacement trial counsel “had not been provided material evidence” prior to Cutaia’s pleas
in this case fails.
4. INEFFECTIVE ASSISTANCE OF COUNSEL
Cutaia’s final assigned error is that his trial counsel was ineffective for failing to (a) obtain
discovery from the public defender’s office, (b) investigate Cutaia’s cell phone, (c) interview and
obtain statements from defense witnesses, (d) object to the factual basis for stalking, and (e)
properly calculate time served.
Where, as here, appellate counsel is different from trial counsel, a defendant must raise on
direct appeal any issue of ineffective assistance of trial counsel which is known to the defendant
or is apparent from the record, or the issue will be procedurally barred on postconviction review.
State v. Manjikian, 303 Neb. 100, 927 N.W.2d 48 (2019). An ineffective assistance of counsel
claim is raised on direct appeal when the claim alleges deficient performance with enough
particularity for (1) an appellate court to make a determination of whether the claim can be decided
upon the trial record and (2) a district court later reviewing a petition for postconviction relief to
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be able to recognize whether the claim was brought before the appellate court. Id. The fact that an
ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it
can be resolved on direct appeal. State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021). The
determining factor is whether the record is sufficient to adequately review the question. Id. The
record is sufficient if it establishes either that trial counsel’s performance was not deficient, that
the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be
justified as a part of any plausible trial strategy. Id.(a) Discovery
Cutaia’s first allegation of ineffective assistance of counsel is that his trial counsel failed
to obtain a disc containing relevant videos from the public defender’s office until after the plea
hearing. Cutaia further admits that the discovery had been provided to Cutaia’s prior counsel, the
Sarpy County public defender’s office. He contends that “trial counsel could have arranged a time
to retrieve all discovery previously provided, which would have included videos from [Cutaia’s]
phone of the night of October 30, 2019, the victim’s interview with [law enforcement], and photos
of both the victim’s and [Cutaia’s] injuries. By failing to do so, he fell short of the standard by
which a criminal attorney of his experience should be held to.” Brief for appellant at 21.
Here, an affidavit by Cutaia’s replacement trial counsel stated that, in early March 2020,
he entered his appearance in these cases and, that same day, filed stipulations for reciprocal
discovery. The affidavit further set forth that he did not receive the disc at issue until after the
hearing to withdraw Cutaia’s plea. The record does not indicate why the disc at issue was not
obtained from Cutaia’s prior counsel, the Sarpy County public defender’s office. The record on
direct appeal is insufficient to consider Cutaia’s claim of ineffective assistance of trial counsel for
counsel’s failure to timely obtain the disc at issue here and this issue is preserved.
(b) Investigation of Cell Phone
Cutaia’s second allegation of ineffective assistance of trial counsel is that counsel was
deficient in failing to review the contents of Cutaia’s phone which he contends was in police
custody at the time of the plea hearing. Cutaia alleges that his phone contained exculpatory
evidence, including text messages and admissions by the victim, in a file called “Krissy Court.”
Specifically, Cutaia contends:
Trial Counsel could have asked for permission from either the district court or the police
department to inspect [Cutaia’s] phone. According to [Cutaia], had trial counsel inspected
his phone, he would have uncovered files which showed:
i. Messages from [the victim] to other women which conveyed an inconsistent
version of the events from October 30, 2019;
ii. Security footage from [Cutaia’s] cameras showing [the victim] continuing to
come over to his house after the protection order was served;
iii. A recording of [the victim] admitting she started the incident that occurred on
October 30, 2019.
Brief for appellant at 22.
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Here, Cutaia’s claim of ineffective assistance of counsel is based upon his allegation that
trial counsel did not inspect Cutaia’s phone. Because the record on direct appeal does not include
the contents of Cutaia’s cell phone, the record on appeal is insufficient to resolve this assigned
error on direct appeal. Accordingly, this issue is preserved.
(c) Failure to Interview and Obtain Statements From Defense Witnesses
Cutaia’s third allegation of ineffective assistance of trial counsel is that counsel “failed to
interview witnesses that could have provided assistance in defending [Cutaia] at trial.” Brief for
appellant at 23. Cutaia identified those individuals and their prospective testimony as follows:
1. Janine Cutaia is [Cutaia’s] mother. Janine arrived at [Cutaia’s] home shortly after the
October 30th incident. She would be able to testify about text messages C.C. ([Cutaia’s]
son) sent on October 30, 2019. These test messages were about [the victim] being upset
and [Cutaia] and Carmine were hiding in the garage. Janine also would be able to testify
to [the victim] being upset that night.
2. C.C. is [Cutaia’s] son. He would have been able to testify that [the victim] was banging
on the garage door on October 30, 2019. That [he and Cutaia] were standing in the
garage and that he never saw [Cutaia] physically assault [the victim] that night.
3. Michelle Perez would be able to testify that she has witnessed [the victim] become upset
with [Cutaia] which resulted in her knocking his motorcycle helmet off his head. This
event occurred in July or August . . . 2019.
4. Thomas Morello is a friend of [Cutaia]. He would be able to testify to an incident that
occurred on Memorial Day weekend of 2019. Morello, [the victim], and [Cutaia], were
in Solider, (sic) Iowa. While there, [the victim] became upset with [Cutaia] and began
attacking him and ripping off parts of his motorcycle.
5. Willy Garcia is a bartender at the Corner Pocket Bar in Omaha, who could testify that
[the victim] drank at a bar before picking up [Cutaia’s] children.
6. “Mike” (last name unknown) could echo Willy Garcia’s testimony.
7. Jacqui Brown knows [the victim]. She was with [Cutaia] when [the victim] would
contact him while the protection order was in place. Brown could also testify that she
was the one that told [Cutaia] about the second tracking device [the victim] found in her
car.
Brief for appellant at 23-24. Cutaia further alleged that “[w]hile trial counsel may have met with
some of the witnesses listed above (Janine Cutaia, C.C., Michelle Perez), he did not fully prepare
them for trial thus frustrating [Cutaia’s] ability to prepare for trial.” Brief for appellant at 24.
We note that Cutaia’s reply brief raised an allegation that trial counsel was ineffective for
failing to interview Carly Fonfara. “[T]he purpose of an appellant’s reply brief is to respond to the
arguments the appellee has advanced against the errors assigned in the appellant’s initial brief and
that errors may not be asserted for the first time in a reply brief.” State v. Archie, 305 Neb. 835,
841, 943 N.W.2d 252, 257 (2020). Since Cutaia raised the issue of counsel’s failure to interview
Fonfara for the first time in his reply brief, we do not consider the allegation relating to Fonfara.
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Here, because Cutaia’s allegations regarding the testimony of Janine Cutaia and C.C.
directly relate to the October 30, 2019, incident, that evidence is relevant to the charged offense of
third degree domestic assault. Cutaia claims that his mother would be able to testify that she was
present at his home shortly after the October 2019 incident and would be able to testify regarding
text messages sent by Cutaia’s son and that the victim was upset. Likewise, Cutaia claims that C.C.
would have been able to testify that he and Cutaia were standing in the garage on October 30, that
the victim was banging on the garage door, and that he did not see Cutaia physically assault the
victim that night. However, the record on direct appeal is insufficient to determine the merits of
Cutaia’s allegations that trial counsel was ineffective to interview and/or fully prepare Janine
Cutaia and C.C. for trial. Accordingly, Cutaia’s claims of ineffective assistance of counsel for
failing to interview or adequately prepare Janine Cutaia and C.C. for trial is preserved. See State
v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014) (record on direct appeal of defendant’s
conviction for first degree sexual assault was insufficient to address merits of defendant’s claim
that trial counsel was ineffective for failing to interview witnesses who could have provided
alternative reason for presence of victim’s DNA on defendant’s person).
However, we find that Cutaia’s allegations of ineffective assistance of counsel for failing
to interview or adequately prepare Michelle Perez, Thomas Morello, Willy Garcia, “Mike” (last
name unknown), and Jacqui Brown for trial fail. Although Cutaia has made his allegations
regarding these witnesses with sufficient particularity, his allegations regarding the testimony that
each witness would provide were not relevant to his charged offenses. Had the matter gone to trial,
as Cutaia was charged in the amended information, the State would have been required to prove
that Cutaia committed the offense of third degree domestic assault by threatening the victim, who
was an intimate partner, with imminent bodily injury. See Neb. Rev. Stat. § 28-323(1)(b) (Reissue
2016). Regarding the charge of stalking, as charged as a Class IIIA felony, the State would have
been required to prove that Cutaia willfully harassed the victim with the intent to injure, terrify,
threaten, or intimidate and was in violation of a valid protection order. See, § 28-311.03 (stalking);
Neb. Rev. Stat. § 28-311.04(2)(d) (Cum. Supp. 2020) (stalking, violations, penalties). None of the
witnesses and testimony are relevant to the essential elements of the charged offenses.
Cutaia’s allegations regarding the testimony of Perez and Morello occurred prior to the
October 2019 incident and were irrelevant to the third degree domestic assault charge. Also
irrelevant to the third degree domestic assault charge or the stalking charge were Perez’s
allegations that Garcia and “Mike” would testify that the victim drank at a bar. Finally, the
testimony Cutaia alleges he would have sought from Brown that the victim contacted Cutaia when
the protection order was in place and that she notified Cutaia about the victim finding the second
tracking device in her car, is irrelevant to either offense of third degree domestic assault or stalking.
We conclude that Cutaia’s allegations do not establish deficient conduct by his trial
counsel, but even if they had done so, he would be unable to show any prejudice. Because the
witnesses and their alleged testimony were not relevant considerations for the purposes of the
charged offenses, even had trial counsel conducted interviews of those witnesses, those interviews
would not have produced any evidence to create a reasonable probability that Cutaia would have
insisted on proceeding to trial rather than entering a plea. The claim of ineffective assistance of
counsel as to trial counsel’s alleged failure to interview or adequately prepare Michelle Perez,
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Thomas Morello, Willy Garcia, “Mike” (last name unknown), and Jacqui Brown fails, while trial
counsel’s alleged ineffectiveness for failure to interview or adequately prepare Janine Cutaia and
C.C. is preserved.
(d) Failure to Object to Factual Basis for Stalking
Cutaia’s fourth allegation regarding ineffective assistance of trial counsel is that counsel
was deficient in failing to object to the factual basis for the stalking charge. He contends that “there
is nothing the factual basis for [the stalking charge] that establishes clear locations for where these
events occurred.” Brief for appellant at 25. Having previously rejected Cutaia’s allegation that the
factual basis for the stalking charge failed to establish venue, his trial counsel was not ineffective
for failing to object to the factual basis for stalking. Defense counsel is not ineffective for failing
to raise an argument that has no merit. State v. Martinez, 302 Neb. 526, 924 N.W.2d 295 (2019).
This assigned error fails.
(e) Calculation of Time Served
Cutaia’s fifth allegation of ineffective assistance of counsel is that trial counsel’s request
for 134 days’ credit for time served was an incorrect calculation of his time served. He alleges that
he was entitled to 142 days’ credit for time served.
Neb. Rev. Stat. § 83-1,106 (Reissue 2014) provides, in part, that an offender is to be given
credit for time spent in custody as a result of a criminal charge for which a prison sentence is
imposed or as a result of the conduct on which such a charge is based. Under our statutes, an
offender shall be given credit for time served as a result of the charges that led to the sentences;
however, presentence credit is applied only once. State v. Banes, 268 Neb. 805, 688 N.W.2d 594(2004). Whether a defendant is entitled to credit for time served and in what amount are questions
of law, subject to appellate review independent of the lower court. State v. McCain, 29 Neb. App.
981, 961 N.W.2d 576 (2021).
In State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020), the Nebraska Supreme Court
determined that the defendant’s argument that trial counsel was ineffective for failing to request
additional credit for time served, and made specific allegations regarding time served for which
defendant did not receive credit, was not subject to review on direct appeal where there was no
PSR and necessary facts to conduct analysis were not contained in record.
Here, Cutaia alleges that he was entitled to 142 days of credit for time served. We note that
the presentence investigation report affirmatively indicates that Cutaia was in jail from February
24, 2020, until July 6, 2020, for a total of 134 days, which was the amount of credit that was
requested by trial counsel and was granted by the trial court. However, because the record does
not contain any allegations to support Cutaia’s claim that his credit for time served was incorrect,
we find that the record on direct appeal is insufficient to address this allegation of insufficiency of
trial counsel.
VI. CONCLUSION
Having considered Cutaia’s assigned errors, we reject his claims that the district court:
erred in granting the State’s motion to consolidate, committed plain error in finding that the factual
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basis provided by the State for the stalking charge established venue in Sarpy County, and erred
in denying his motion to withdraw his pleas. Regarding Cutaia’s allegations concerning ineffective
assistance of his trial counsel, we reject his claims that trial counsel was ineffective for failing to
object to the factual basis for stalking, and failing to interview and adequately prepare for trial
defense witnesses Michelle Perez, Thomas Morello, Willy Garcia, “Mike” (last name unknown),
and Jacqui Brown.
We find that the evidence is insufficient on direct appeal to address Cutaia’s claims that
trial counsel was ineffective for failing to obtain discovery from the public defender’s office,
failing to inspect Cutaia’s cell phone, failing to interview defense witnesses Janine Cutaia and C.C.
and adequately prepare them for trial, and properly calculate time served. These allegations are
preserved for postconviction review.
Finally, we find that Cutaia’s allegation that trial counsel was ineffective for failing to
interview Fontana, which claim was raised for the first time in his reply brief, was not properly
raised or preserved for review.
AFFIRMED.
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