State v. Pelc ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. PELC
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.
DARRIN E. PELC, APPELLANT.
Filed April 2, 2019. No. A-18-540.
Appeal from the District Court for Boyd County: MARK D. KOZISEK, Judge. Affirmed.
Bradley A. Ewalt, of Ewalt Law Office, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.
MOORE, Chief Judge.
I. INTRODUCTION
Darrin E. Pelc appeals from his convictions in the district court for Boyd County, following
a jury trial, for strangulation, terroristic threats, and first degree false imprisonment. The district
court found Pelc was a habitual criminal as defined by Neb. Rev. Stat. § 29-2221 (Reissue 2016)
and imposed concurrent sentences of a mandatory minimum of 10 years in prison and a maximum
of 14 years. On appeal, Pelc claims prosecutorial misconduct, challenges certain questioning by
the prosecutor, asserts the court should have instructed the jury on self-defense, challenges the
sufficiency of the evidence for his convictions and the court’s finding that he was a habitual
criminal, and raises various claims of ineffective assistance of trial counsel. Finding no error, we
affirm.
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II. BACKGROUND
The charges in this case arose out of an incident that occurred between Pelc and his
girlfriend, Hebbie Snyder, on the evening of April 9, 2017. On May 17, the State filed an
information in the district court, charging Pelc with strangulation in violation of Neb. Rev. Stat.
§ 28-310.01 (Reissue 2016), a Class IIIA felony; terroristic threats in violation of Neb. Rev. Stat.
§ 28-311.01 (Reissue 2016), a Class IIIA felony; first degree false imprisonment in violation of
Neb. Rev. Stat. § 28-314 (Reissue 2016), a Class IIIA felony; and third degree domestic assault in
violation of Neb. Rev. Stat. § 28-323 (Reissue 2016), a Class I misdemeanor. The State also alleged
that Pelc was a habitual criminal under § 29-2221.
Pelc filed a motion for disclosure of intention to use evidence of other crimes, wrongs, or
acts pursuant to Neb. Rev. Stat. § 27-404 (Reissue 2016). At the hearing on this motion, the State
expressed no intent to offer such evidence, and the district court ordered that the State was
prohibited from adducing such evidence.
At the start of the jury trial, held on February 28 and March 1, 2018, the State dismissed
the third degree domestic assault charge. The State presented testimony from the victim, a person
contacted by the victim shortly after the incident, and various law enforcement officers who
investigated the incident. The district court received into evidence numerous photographs
documenting Snyder’s injuries following the incident. Pelc presented testimony from two
witnesses about the victim’s character and copies of his medical records following the incident.
In April 2017, Snyder and her three children were living with Pelc, whom Snyder was
dating, in Pelc’s farmhouse in Boyd County. Pelc and Snyder both worked at a “mechanic shop”
in Butte, Nebraska.
On the evening of April 9, 2017, Pelc and Snyder left the farmhouse in Pelc’s vehicle. Pelc
was driving, and he told Snyder, who was in the front passenger seat, to “start talking.” Snyder
testified that when she asked Pelc what he wanted her to talk about, he “started driving like a
maniac going back and forth on the road.” When Snyder asked him to stop and let her out of the
vehicle, he again told her to “[s]tart talking,” and upon further inquiry, he told her to “tell the
truth.” According to Snyder, Pelc would not stop the vehicle, kept repeating himself and screaming
at her, and “just kept driving real crazy.”
Pelc continued to drive, and at some point they passed the shop. When they reached a
gravel road, Snyder jumped out of the moving vehicle and rolled into a ditch full of water. She
testified that the vehicle was moving “pretty fast” at that point, but she jumped out because Pelc
would not stop, was screaming at her, and would not “quit driving crazy.” Pelc stopped the vehicle,
got out, and told Snyder to get back inside the vehicle. When Snyder refused, Pelc told her that if
she did not get back in the vehicle, he was going to drown her. Snyder testified that this “scared
the shit out of [her]” because she thought he might actually drown her based on the tone of his
voice and his actions up to that point. Snyder got back in the vehicle and tried to drive off without
Pelc, but he stopped her and told her “to never make a stupid move like that again” or he would
kill her. Snyder testified that she felt “very scared” at that point.
After that, Pelc continued “driving like crazy,” and every time Snyder tried to get out of
the vehicle again, Pelc would “smack [her] or hit [her] or something” and prevent her from doing
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so. At some point, Pelc told Snyder that “he knew where all the holes were and that [she] was
next,” which she took to mean that he “had somewhere to bury her.” Snyder testified that this
remark scared her. According to Snyder, Pelc punched her several times in the face, the ribs, and
the gut while they were driving around. At one point when Snyder reached for the door handle,
Pelc “jumped on top [her]” and choked her, impeding her ability to breathe. Snyder testified that
Pelc let go of her neck after a few seconds, punched her again, and told her to “stop faking it.”
Snyder testified that she “seriously thought that was going to be the last night of [her] life.”
They continued to drive, passing through Spencer driving toward O’Neill, Nebraska, but
Snyder testified that she was certain the injuries inflicted on her by Pelc occurred “between Butte
and Spencer on gravel roads.” At some point, Snyder opened the passenger door to the vehicle and
jumped out again. As she did so, Pelc grabbed her hoodie and her hair, so that a big chunk of her
hair was ripped out when she jumped. After that, Snyder took off running the other direction, and
although Pelc tried to turn around and drive after her, he ended up rolling the vehicle. Snyder kept
running and flagged down another vehicle, but when she got into the back seat, she saw that Pelc
was already in the front passenger seat. Snyder asked the driver of that vehicle to call 911 but he
told her he did not have a phone. The driver took them to the shop in Butte, and although Snyder
asked him to take her somewhere else, he refused. Snyder exited the vehicle on the opposite side
from Pelc, and she ran across the highway to a house, where one of the residents, Brandee Reiser,
called 911 for Snyder.
Reiser testified that on the evening in question, she and her husband were awoken by
Snyder “slamming on the door” to their house and “screaming to be let in.” Reiser went to the door
and Snyder, who Reiser described as “hysteric [sic]” and “panicked,” asked her to call the police
and explained what had happened. Reiser called the police, and her husband called another
individual, who went with him to Pelc’s farmhouse to retrieve Snyder’s children.
Police received the call around 11:30 p.m. and deputies from the Boyd County Sheriff’s
Department responded to the call. When the deputies got to the Reiser residence, they spoke with
Snyder, who was crying and highly upset, and one of them photographed her visible injuries, which
included bruising on her leg, hands, arms, back, neck and eye. The deputies also documented a
wad of hair wrapped around the drawstring of Snyder’s hoodie. The deputies then transported
Snyder to the sheriff’s office to speak with her further. They also took a few more photographs of
Snyder’s bruising, which had started to show up a little bit better, before transporting Snyder and
her children to a motel. That night, the deputies also investigated the scene of the vehicle rollover,
where they found a clump of hair, consistent with the hair found on the drawstring of Snyder’s
hoodie, among the rubbish scattered outside of the vehicle. The deputies took additional
photographs of Snyder the next morning.
At trial, the deputies were asked about whether bruising on Snyder’s knuckles showed
offensive or defensive marks. One deputy responded, “It could be, potentially, either/or.” He also
testified that the bruises on Snyder documented at the Reiser residence appeared to be relatively
recent, although he agreed that it was possible the bruises could have been “at least six hours old.”
Another deputy testified that he took photographs of Snyder’s hands to document bruising, but he
did not know whether the marks were offensive or defensive. This deputy also testified that it was
“possible” that some of the bruising observed on Snyder in the early morning hours of April 10,
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2017, could have occurred prior to 9:30 p.m. on April 9. During her trial testimony, Snyder
reviewed the photographs taken by the deputies and confirmed that all of the injuries shown
occurred during the incident in question and that none of her injuries were preexisting. She also
denied assaulting Pelc and testified that all of her injuries were defensive.
Pelc did not testify. He offered into evidence his medical records from a visit to a medical
clinic on April 10, 2017, where he was treated for a laceration to his right hand and complaints of
“left shoulder pain radiating into head and neck.” He also offered testimony from two witnesses
who were asked about Snyder’s “propensity to tell the truth.” One of Pelc’s witnesses testified that
in the three or four times she had met Snyder, she had not “caught any lies or anything;” the other
testified that he did not think Snyder told the truth “all the time.”
The jury found Pelc guilty of strangulation, terroristic threats, and first degree false
imprisonment. The district court accepted the verdicts and scheduled an enhancement and a
sentencing hearing.
During the enhancement hearing, the State offered evidence of several prior convictions
for which Pelc was sentenced to a year or more of imprisonment. On May 7, 2018, the district
court entered an order, finding that the State had shown sufficient evidence of three prior felony
convictions in which Pelc was sentenced and committed to prison for terms of not less than 1 year
each. Accordingly, the court determined that Pelc would be sentenced as a habitual criminal.
The district court imposed concurrent sentences of imprisonment for a mandatory
minimum of 10 years and a maximum of 14 years on each of Pelc’s three convictions. The court
gave Pelc credit for 47 days of time served.
Pelc subsequently perfected his appeal to this court.
III. ASSIGNMENTS OF ERROR
Pelc asserts, reordered, that (1) the State committed prosecutorial misconduct by asking
Snyder certain questions in violation of the district court’s order prohibiting Rule 404 evidence,
(2) the court erred by allowing the State to ask leading questions of Snyder without first asking to
treat her as a hostile witness, (3) the court erred by failing to give a self-defense jury instruction as
requested by Pelc, (4) the evidence was insufficient to convict him on each of the charges, (5) the
court erred in finding Pelc was a habitual criminal under § 29-2221, and (6) he received ineffective
assistance of trial counsel in various regards.
IV. STANDARD OF REVIEW
When a defendant has not preserved a claim of prosecutorial misconduct for direct appeal,
an appellate court will review the record only for plain error. State v. Cotton, 299 Neb. 650, 910
N.W.2d 102 (2018), disapproved on other grounds, State v. Avina-Murillo, 301 Neb. 185, 917
N.W.2d 865 (2018).
An appellate court reviews a trial court’s allowance of leading questions for an abuse of
discretion. State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016). A judicial abuse of discretion
exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying a just result in matters submitted for disposition. State v.
Ralios, 301 Neb. 1027, 921 N.W.2d 362 (2019).
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In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is
controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. State v. Savage, 301 Neb. 873, 920 N.W.2d
692 (2018). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the
discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse
of discretion. State v. Savage, supra. When judicial discretion is not a factor, whether the
underlying facts satisfy the legal rules governing the admissibility of a proponent’s evidence is a
question of law, subject to de novo review. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).
Whether jury instructions are correct is a question of law, which an appellate court resolves
independently of the lower court’s decision. State v. Lessley, 301 Neb. 734, 919 N.W.2d 884
(2018).
In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the
evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate
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. State v. Smith, supra. The relevant question
for an appellate court is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Id.
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. Id.
Whether a claim of ineffective assistance of trial counsel can be determined on direct
appeal presents a question of law, which turns upon the sufficiency of the record to address the
claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a
statute or constitutional requirement. State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018). An
appellate court determines as a matter of law whether the record conclusively shows that (1) a
defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a
defense counsel’s alleged deficient performance. Id.
V. ANALYSIS
1. ERRORS RELATING TO PROSECUTOR’S QUESTIONING OF SNYDER
(a) Prosecutorial Misconduct
Pelc asserts that the State committed prosecutorial misconduct by asking Snyder certain
questions in violation of the district court’s order prohibiting evidence under § 27-404.
Specifically, the prosecutor asked Snyder whether she was “a frequent flyer . . . one of those that’s
in court a lot” and whether it was also “the case with . . . Pelc” that he had “been in court a lot.”
Snyder replied affirmatively to all of these questions, and Pelc did not object or make a motion for
mistrial.
One may not waive an error, gamble on a favorable result, and, upon obtaining an
unfavorable result, assert the previously waived error. State v. Herrera, 289 Neb. 575, 856 N.W.2d
310 (2014). A party who fails to make a timely motion for mistrial based on prosecutorial
misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due
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to such prosecutorial misconduct. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018),
disapproved on other grounds, State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018).
Because Pelc failed to object and make a timely motion for mistrial, he failed to preserve the issue
of prosecutorial misconduct for appellate review. Id. Accordingly, we review the record only for
plain error. See id. Plain error may be found 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. State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018).
Public prosecutors are charged with the duty to conduct criminal trials in such a manner
that the accused may have a fair and impartial trial. State v. Cotton, supra. Generally, prosecutorial
misconduct encompasses conduct that violates legal or ethical standards for various contexts
because the conduct will or may undermine a defendant’s right to a fair trial. Id.
Prosecutorial misconduct prejudices a defendant’s right to a fair trial when the misconduct
so infected the trial that the resulting conviction violates due process. State v. Gonzales, 294 Neb.
627, 884 N.W.2d 102 (2016). Whether prosecutorial misconduct is prejudicial depends largely
upon the context of the trial as a whole. State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 (2018).
In determining whether a prosecutor’s improper conduct prejudiced the defendant’s right to a fair
trial, an appellate court considers the following factors: (1) the degree to which the prosecutor’s
conduct or remarks tended to mislead or unduly influence the jury; (2) whether the conduct or
remarks were extensive or isolated; (3) whether defense counsel invited the remarks; (4) whether
the court provided a curative instruction; and (5) the strength of the evidence supporting the
conviction. State v. Cotton, supra.
Prosecutors also may not inflame the jurors’ prejudices or excite their passions against the
accused. State v. Hernandez, supra. Prosecutors should not make statements or elicit testimony
intended to focus the jury’s attention on the qualities and personal attributes of the victim. Id.
These facts lack any relevance to the criminal prosecution and have the potential to evoke juror
sympathy and outrage against the defendant. Id. Further, under § 27-404(2), evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that
he or she acted in conformity therewith. State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).
It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Id.
Pelc argues that the prosecutor’s questions about Pelc being a “frequent flyer” who had
been “in court a lot” suggested that he had a past criminal history and made it more likely for the
jurors to believe that he would be involved in further criminal acts, such as those with which he
was charged in this case. He argues that the prosecutor’s misconduct in asking these questions of
Snyder prejudiced his right to a fair and impartial trial. The prosecutor’s questions to Snyder arose
at the start of the second day of trial. The prosecutor did not elicit any testimony about the nature
of any of Pelc’s prior appearances in court. These questions were part of a series of questions
addressing concerns about Snyder’s credibility. The questions were not invited by Pelc’s attorney,
but the isolated nature of this questioning weighs against a finding of prejudice. No curative
instruction was provided because Pelc’s attorney did not object, but again, the jury was instructed
not to be influenced by sympathy or prejudice. Finally, as discussed further below, there was
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significant uncontroverted evidence supporting the elements of each of the crimes tried to the jury.
Having considered the relevant factors, to the extent the State’s questioning was improper, it was
not prejudicial and does not rise to the level of plain error.
(b) Leading Questions
Pelc asserts that the district court erred by allowing the State to ask leading questions of
Snyder without first asking to treat her as a hostile witness. Neb. Rev. Stat. § 27-611(3) (Reissue
2016) provides that leading questions, “should not be used on the direct examination of a witness
except as may be necessary to develop his testimony;” however, “[w]hen a party calls a hostile
witness, an adverse party, or a witness identified with an adverse party, interrogation may be by
leading questions.” The concern with the use of leading questions during direct examination is that
a witness already giving favorable testimony to a party may testify to facts suggested to the
witness, rather than those personally known by the witness. State v. Smith, 292 Neb. 434, 873
N.W.2d 169 (2016). It is usual and proper for the trial court to permit leading questions in
conducting the examination of a witness who is immature; unaccustomed to court proceedings;
inexperienced, agitated, terrified, or embarrassed while on the stand; and lacking in comprehension
of the questions asked. State v. Fleming, 280 Neb. 967, 792 N.W.2d 147 (2010).
Pelc argues that there was no finding that Snyder was immature or did not understand the
questions asked of her, and while there was some indication that Snyder had not cooperated with
efforts to meet with the prosecution to prepare for trial, the prosecutor did not ask to treat her as a
hostile witness. Pelc directs us to a number of instances where the prosecutor asked Snyder leading
questions; however, because his attorney did not object, any error in allowing the evidence elicited
through these questions has not been preserved for appellate review. Failure to make a timely
objection waives the right to assert prejudicial error on appeal. State v. Swindle, 300 Neb. 734, 915
N.W.2d 795 (2018).
2. JURY INSTRUCTION
Pelc asserts that the district court erred by failing to give his requested self-defense jury
instruction.
To establish reversible error from a court’s refusal to give a requested instruction, an
appellant has the burden to show that (1) the tendered instruction is a correct statement of the law,
(2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by
the court’s refusal to give the tendered instruction. State v. Swindle, supra.
To successfully claim one was acting in self-defense, the force used in defense must be
immediately necessary and must be justified under the circumstances. State v. Abdulkadir, 293
Neb. 560, 878 N.W.2d 390 (2016). See, also, Neb. Rev. Stat. § 28-1409 (Reissue 2016)
(concerning use of force in self-protection). A trial court must instruct the jury on the issue of
self-defense when there is any evidence adduced which raises a legally cognizable claim of
self-defense. State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006). To successfully assert
the claim of self-defense, one must have a reasonable and good faith belief in the necessity of using
force. State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011). In addition, the force used in defense
must be immediately necessary and must be justified under the circumstances. Id. If the trial
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evidence does not support a claim of self-defense, the jury should not be instructed on it. State v.
Iromuanya, supra.
In this case, the trial evidence did not support a claim of self-defense. Snyder and Pelc were
the only witnesses to the altercation. Snyder’s injuries were well-documented by law enforcement.
She testified that she never assaulted Pelc and that all of her injuries resulted from the incident in
question and were defensive. Despite Pelc’s assertions, Snyder’s testimony that the injuries on her
hands were defensive was not rebutted by the testimony of the deputies who investigated the
incident. One deputy agreed that the marks on Snyder’s hands could have been either offensive or
defensive wounds. The other deputy testified that he took certain photographs to document
bruising on Snyder’s hands but that he did not know if they were offensive or defensive marks.
Neither deputy opined or suggested that the bruising on Snyder’s hands showed offensive injuries;
they simply acknowledged that they could not tell whether the wounds were offensive or defensive.
Pelc’s medical records show that he complained of shoulder pain, radiating into his head and neck,
the following day and that he sustained a laceration to his hand, injuries that may have occurred
as a result of the vehicle rollover. The evidence does not support an inference that Pelc had a
reasonable and good faith belief in the necessity of using force to defend himself against Snyder.
Because there was no evidence to support a claim of self-defense in this case, the district court did
not err in refusing to give the requested instruction. This assignment of error is without merit.
3. SUFFICIENCY OF EVIDENCE
Pelc asserts that the evidence was insufficient to convict him on each of the charges.
(a) Strangulation
“A person commits the offense of strangulation if the person knowingly or intentionally
impedes the normal breathing or circulation of the blood of another person by applying pressure
on the throat or neck of the other person.” § 28-310.01.
Snyder testified that Pelc jumped on top of her during the incident, that he choked her, and
that she could not breathe. She also testified that there was a point when he actually had his hands
around her neck, that he applied pressure, and that she could not breathe. There were photographs
admitted into evidence showing marks on Snyder’s neck. One of the detectives testified that these
marks signified “[p]ossible -- either grabbing or something around the neck.”
(b) Terroristic Threats
Pursuant to § 28-311.01:
A person commits terroristic threats if he or she threatens to commit any crime of
violence:
(a) With the intent to terrorize another;
(b) With the intent of causing the evacuation of a building, place of assembly, or
facility of public transportation; or
(c) In reckless disregard of the risk of causing such terror or evacuation.
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The crime proscribed by § 28-311.01 does not require an intent to execute the threats made. State
v. Smith, 267 Neb. 917, 678 N.W.2d 733 (2004). Likewise, it does not require that the recipient of
the threat be terrorized; rather, it requires that the actor have the intent to terrorize the recipient as
a result of the threat. See State v. Saltzman, 235 Neb. 964, 458 N.W.2d 239 (1990).
During the incident, Snyder jumped out of the vehicle at one point and rolled into a ditch
full of water. Pelc stopped the vehicle, got out, and told Snyder he would drown her if she did not
get back into the vehicle. Pelc told her that if she tried to leave the vehicle again he would kill her.
And, at some point during the incident, he told that he knew where all the holes were, which Snyder
took to mean that he had somewhere to bury her. Snyder was very scared by Pelc’s words and the
tone of his voice and was afraid that he was trying to kill her.
(c) False Imprisonment
“A person commits false imprisonment in the first degree if he or she knowingly restrains
or abducts another person (a) under terrorizing circumstances or under circumstances which
expose the person to the risk of serious bodily injury; or (b) with intent to hold him or her in a
condition of involuntary servitude.” § 28-314(1).
During the incident, Pelc drove erratically. Although Snyder was able to exit the vehicle
on two occasions while it was moving, Pelc thwarted her other attempts by hitting and choking her
and grabbing onto her clothing and hair. And, as noted above, Pelc made various threatening
statements to Snyder during the incident. Although Pelc suggests that Snyder’s testimony shows
that he “let her go” when she jumped out of the vehicle the second time, the record shows that
Snyder continued to pull against Pelc’s grip on her hair and clothing until he could no longer hold
on to her.
(d) Conclusion
In arguing that the evidence was insufficient to support his convictions, Pelc attacks
Snyder’s credibility and the weight of some of the evidence. However, we do not resolve conflicts
in the evidence, pass on the credibility of witnesses, or reweigh the evidence, which are all matters
are for the finder of fact. See State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016). Because the
jury as the trier of fact could have found all of the essential elements for strangulation, terroristic
threats, and false imprisonment beyond a reasonable doubt based on the State’s evidence, the
evidence was sufficient to support Pelc’s convictions. His assertions to the contrary are without
merit.
4. HABITUAL CRIMINAL
Pelc asserts that the district court erred in finding Pelc was a habitual criminal under
§ 29-2221. He argues that his prior convictions were invalid for enhancement purposes because
the State failed to prove his identity, i.e., that it was in fact Pelc who was convicted and sentenced
to prison for each prior convictions used to make the habitual criminal determination.
In a habitual criminal proceeding, the State’s evidence must establish with requisite
trustworthiness, based upon a preponderance of the evidence, that (1) the defendant has been twice
convicted of a crime, for which he or she was sentenced and committed to prison for not less than
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1 year; (2) the trial court rendered a judgment of conviction for each crime; and (3) at the time of
the prior conviction and sentencing, the defendant was represented by counsel or had knowingly
and voluntarily waived representation for those proceedings. State v. Jenkins, 294 Neb. 684, 884
N.W.2d 429 (2016). In a proceeding to enhance punishment because of prior convictions, the State
has the burden of proving such prior convictions by a preponderance of the evidence. State v. Bol,
288 Neb. 144, 846 N.W.2d 241 (2014).
The existence of a prior conviction and the identity of the accused as the person convicted
may be shown by any competent evidence, including the oral testimony of the accused and duly
authenticated records maintained by the courts or penal and custodial authorities. State v. Bol,
supra. See, also, Neb. Rev. Stat. § 29-2222 (Reissue 2016) (duly authenticated copy of former
judgment and commitment shall be competent and prima facie evidence of former judgment and
commitment). An authenticated record establishing a prior conviction of a defendant with the same
name is prima facie evidence sufficient to establish identity for the purpose of enhancing
punishment and, in the absence of any denial or contradictory evidence, is sufficient to support a
finding by the court that the accused has been convicted prior thereto. State v. Dixon, 282 Neb.
274, 802 N.W.2d 866 (2011).
Pelc argues that that the State did not prove his identity “as the individual sentenced and
committed to prison for each of the prior convictions used” by the district court to make the
habitual criminal determination, “such as through a fingerprints expert or other testimony.” Brief
for appellant at 24. As set forth above, this is not what is required. The State offered certified
copies of several prior convictions for which an individual named “Darrin Pelc” or “Darrin E.
Pelc” was sentenced to imprisonment for a year or more, thus providing prima facie evidence
sufficient to establish Pelc’s identity for the purpose of enhancing punishment given the absence
of any denial or contradictory evidence from Pelc. The district court determined that three of the
submitted prior convictions could be used for enhancement purposes. Pelc offered no evidence to
contradict the State’s prima facie evidence establishing his identity for enhancement purposes, and
he does not challenge any other elements of the habitual criminal determination in this case. This
assignment of error is without merit.
5. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Pelc asserts that he received ineffective assistance of trial counsel in various regards. He is
represented on direct appeal by different counsel than 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, otherwise, the issue will be procedurally barred in a subsequent
postconviction proceeding. State v. Smith, 302 Neb. 154, 992 N.W.2d 444 (2019). The fact that an
ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it
can be resolved. Id. The determining factor is whether the record is sufficient to adequately review
the question. Id.
Appellate courts have generally reached ineffective assistance of counsel claims on direct
appeal only in those instances where it was clear from the record that such claims were without
merit, or in the rare case where trial counsel’s error was so egregious and resulted in such a high
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level of prejudice that no tactic or strategy could overcome the effect of the error, which effect was
a fundamentally unfair trial. State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019). An
ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing. State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
When an ineffective assistance of counsel 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. State v. Sundquist,
supra. General allegations 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. Id. 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 recognize whether the claim
was brought before the appellate court. State v. Smith, supra. 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 performance was not deficient or that the appellant could not establish prejudice. State
v. Sundquist, supra.
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 his or her
counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. State v. Henderson, 301 Neb. 633, 920 N.W.2d 246 (2018). To show deficient
performance, a defendant must show that counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law. State v. Parnell, 294 Neb. 551, 883 N.W.2d 652
(2016). To show prejudice, the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have been different. Id. A
reasonable probability is a probability sufficient to undermine confidence in the outcome. State v.
Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018). The two prongs of the ineffective assistance
of counsel test under Strickland v. Washington, supra, may be addressed in either order, and the
entire ineffectiveness analysis should be viewed with a strong presumption that counsel’s actions
were reasonable. State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018).
Pelc specifically argues that his trial counsel was ineffective for (1) not allowing him to
testify in his own defense despite his desire to do so, (2) failing to object to some of the questioning
by the State, (3) failing to call certain witnesses that Pelc wanted to be called, (4) failing to produce
certain mitigating evidence at trial, and (5) failing to provide enough evidence to justify a
self-defense instruction.
(a) Right to Testify
Pelc argues that he wanted to testify in his defense but that his attorney did not allow him
to do so. A defendant has a fundamental constitutional right to testify. State v. Golyar, 301 Neb.
488, 919 N.W.2d 133 (2018). The right to testify is personal to the defendant and cannot be waived
by defense counsel’s acting alone. Id.
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Defense counsel bears the primary responsibility for advising a defendant of his or her right
to testify or not to testify, of the strategic implications of each choice, and that the choice is
ultimately for the defendant to make. Id. Defense counsel’s advice to waive the right to testify can
present a valid claim of ineffective assistance of counsel in two instances: (1) if the defendant
shows that counsel interfered with his or her freedom to decide to testify or (2) if counsel’s tactical
advice to waive the right was unreasonable. Id.
Pelc does not argue that he was not informed of his right to testify; rather, he argues that
he wanted to testify and that his attorney prevented him from doing so. In arguing that his trial
counsel interfered with his freedom to testify, Pelc notes that the only witnesses called by his
attorney had no independent knowledge of the events of April 9, 2017. He argues that if he had
been allowed to testify “it is very possible that the testimony he provided would be enough to place
reasonable doubts in the minds of the jurors.” Brief for appellant at 19-20. Pelc did not waive his
right to testify on the record, and the record does not reveal the details of any discussion between
him and his attorney on this issue. We conclude that the record is insufficient to address this claim
on direct appeal.
(b) Questioning by State
Pelc argues that his trial counsel was ineffective for failing to object to the leading
questions the prosecutor asked of Snyder on the second day of trial. Pelc cannot show a reasonable
probability that he would have been acquitted absent these questions. Even if his attorney had
objected to the leading questions asked of Snyder on direct examination and those objections had
been sustained, the prosecutor could have elicited the same testimony from Snyder by asking her
non-leading questions.
Pelc also argues that his attorney should have objected when the prosecutor asked Snyder
whether Pelc was a “frequent flyer” and had been “in court a lot.” He argues that this line of
questioning violated the district court’s pretrial ruling with respect to evidence under § 27-404 and
that the information that he had been in court frequently likely had some impact on the jury’s
decision to convict him. Pelc cannot show he was prejudiced in this regard. The prosecutor asked
Snyder these questions as part of a series of questions acknowledging issues with her credibility.
To the extent that her testimony revealed that Pelc had had prior contacts with the court, it was a
very brief discussion and did nothing to inform the jury as to the nature of Pelc’s prior criminal
history. While the failure of his attorney to object to this line of questioning may have been
deficient performance, Pelc cannot show a reasonable probability that but for his counsel’s failure
to object to this questioning, the result of the proceeding would have been different, especially
considering the overwhelming uncontroverted evidence against him.
Because Pelc cannot show prejudice with respect to his attorney’s failure to object to the
State’s questioning of Snyder, this claim is without merit.
(c) Failure to Call Witnesses
Pelc argues that he provided his attorney with a lengthy list of witnesses he wanted his
attorney to call on his behalf. He argues that he provided a list of several individuals other than
those called by his attorney, some of whom could have provided character evidence showing
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Snyder had a reputation for being untruthful and some of whom would have been able to “explain
away some of the injuries to Snyder.” Brief for appellant at 20. He also indicates that he would
have had some testimony from witnesses about his own injuries. Finally, he argues that his attorney
attempted to subpoena two witnesses, Alan Holtz and Jeremy Pelc, but that his attorney never
ensured that the subpoenas were served on these individuals for their testimony at trial. Other than
the two individuals identified above, Pelc does not identify any other witnesses or the nature of
their testimony and as such, these allegations are not sufficiently pled and we reject these claims.
As to the identified witnesses, we are unable to ascertain why Pelc’s attorney allegedly failed to
ensure their attendance at trial. The record on direct appeal is insufficient to address this claim.
(d) Failure to Produce Mitigating Evidence
Pelc references his attorney’s cross examination of Snyder with respect to a meeting she
had with the prosecutor prior to trial. He argues that there was a video tape of this meeting that
“would have been enlightening in the method of coercion used to get Snyder to understand what
she needed to testify about to ensure a felony” conviction, which was not offered at trial. Brief for
appellant at 21. He also argues that there were other sworn statements by Snyder that were not
offered, which would have raised more doubts as to her credibility. Finally, he argues that there
was video evidence that one of the deputies was concerned that Snyder may have been under the
influence of a controlled substance, which was not offered as evidence, nor was the deputy
questioned on this issue. The decision by Pelc’s attorney not to offer this evidence involves issues
of trial strategy, and the record is insufficient to address this claim on direct appeal.
(e) Self-Defense Instruction
We have determined above that the evidence presented at trial did not support a jury
instruction on self-defense. Pelc argues that his attorney should have provided more evidence to
justify the requested self-defense instruction. Again, this involves matters of trial strategy, and the
record is insufficient to address it on direct appeal.
VI. CONCLUSION
We find no plain error with respect to Pelc’s claim of prosecutorial misconduct, and he has
waived any error relating to the prosecutor’s use of leading questions in questioning Snyder. The
district court did not err in refusing to give the requested self-defense jury instruction or in finding
that Pelc was a habitual criminal. The evidence was sufficient to support Pelc’s convictions. Except
for Pelc’s claim that his attorney was ineffective for failing to object to certain questioning of
Snyder by the prosecutor, for which he cannot show prejudice, and his claim that his attorney failed
to call certain unnamed witnesses, for which he failed to sufficiently plead, the record is
insufficient to address Pelc’s other claims of ineffective assistance of trial counsel on direct appeal.
AFFIRMED.
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