State v. Jaso , 31 Neb. Ct. App. 236 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/09/2022 09:06 AM CDT
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STATE V. JASO
Cite as 31 Neb. App. 236State of Nebraska, appellee, v.
Albert Russell Jaso, appellant.
___ N.W.2d ___
Filed August 2, 2022. No. A-21-481.
1. Effectiveness of Counsel: Constitutional Law: Statutes: Records:
Appeal and Error. 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. 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.
2. Effectiveness of Counsel: Proof: Appeal and Error. To prevail on a
claim of ineffective assistance of counsel, the defendant must show that
his or her counsel’s performance was deficient and that this deficient
performance actually prejudiced the defendant’s defense.
3. Effectiveness of Counsel: Records: Appeal and Error. On direct
appeal, the resolution of ineffective assistance of counsel claims turns
upon the sufficiency of the record.
4. ____: ____: ____. In those cases where the record on direct appeal was
sufficient to address a claim of ineffective assistance of trial counsel,
the record itself either affirmatively proved or rebutted the merits of
the claim. That is, the record established either that trial counsel’s per­
formance was not deficient, that appellant could not establish prejudice,
or that trial counsel’s actions could not be justified as a part of any
plausible trial strategy.
5. Effectiveness of Counsel: Appeal and Error. It is fundamental to a
claim of ineffective assistance of counsel based on failure to appeal or
failure to properly perfect an appeal, that the defendant directed that
such appeal be filed.
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STATE V. JASO
Cite as 31 Neb. App. 2366. ____: ____. With regard to ineffective assistance of counsel for failing
to perfect an appeal, the critical issue is whether a timely appeal from
the pretrial order denying absolute discharge would have resulted in a
reversal and prevented a subsequent trial and conviction. Only if that
question is resolved in the affirmative could the failure to perfect the
appeal be deemed prejudicial in the sense that it would have altered
the result of the prosecution.
7. Speedy Trial. To calculate the deadline for trial under the speedy trial
statutes, a court must exclude the day the State filed the information,
count forward 6 months, back up 1 day, and then add any time excluded
under Neb. Rev. Stat. § 29‑1207(4) (Reissue 2016).
8. ____. For speedy trial purposes, the calculation of excludable time for a
continuance begins the day after the continuance is granted and includes
the day on which the continuance ends.
9. Speedy Trial: Attorney and Client. Neb. Rev. Stat. § 29‑1207(4)(b)
(Reissue 2016) excludes the period of delay resulting from a continu-
ance granted at the request or with the consent of the defendant or his or
her counsel.
10. Speedy Trial: Good Cause: Motions for Continuance. The extent to
which a defendant has “good cause” for requesting a continuance is of
no consequence under Neb. Rev. Stat. § 29‑1207(4)(b) (Reissue 2016).
11. Constitutional Law: Speedy Trial: Appeal and Error. There is
no appellate jurisdiction over a pretrial order denying a motion for
discharge on constitutional speedy trial grounds until the case is
concluded.
Appeal from the District Court for Dawson County: James
E. Doyle IV, Judge. Affirmed.
Brian J. Davis, of Davis Law, L.L.C., for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Pirtle, Chief Judge.
I. INTRODUCTION
Albert Russell Jaso brings this direct appeal alleging,
through new counsel, two claims of ineffective assistance of
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STATE V. JASO
Cite as 31 Neb. App. 236trial counsel. For the following reasons, we conclude Jaso can-
not show prejudice with regard to either claim.
II. BACKGROUND
On May 1, 2019, the State filed an information charging
Jaso with one count of first degree sexual assault in viola-
tion of Neb. Rev. Stat. § 28‑319(1)(a) and (b) (Reissue 2016)
(count I) and one count of incest in violation of Neb. Rev. Stat.
§ 28‑703(1) (Reissue 2016) (count II). Additionally, the State
alleged that Jaso was a habitual criminal under Neb. Rev. Stat.
§ 29‑2221 (Reissue 2016) (count III).
Jaso appeared for an arraignment on May 20, 2019, at
which time he entered pleas of not guilty to the charges in the
information. The matter was set for a jury trial to commence
on August 13, with a pretrial conference on July 31. However,
trial was delayed by numerous continuances, many of which
were granted at Jaso’s request.
Eventually, the court convened for a pretrial conference on
February 24, 2020, and trial was set for March 10. However,
at the February hearing, Jaso’s counsel made an oral motion
to continue the March 10 trial date to the April trial term. At
the start of the hearing, Jaso had informed the court that he
was transported from the Nebraska State Penitentiary (NSP)
without his medication and that he felt “not right all the way.”
The court engaged in a lengthy colloquy with Jaso in order
to assess his mental state and advise him that his counsel’s
request for a continuance would result in further delay of his
trial which would not be included in the speedy trial calcu-
lation. Jaso confirmed that there were two reasons for the
request: (1) to discuss the possibility of filing a motion for
independent DNA testing and (2) to give further consideration
to a plea offer that the State had presented. Satisfied that Jaso
understood the nature of his request, the court granted the
continuance and rescheduled trial for April 7, with a pretrial
conference on March 13.
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Cite as 31 Neb. App. 236Jaso refused to be transported for the March 13, 2020,
pretrial conference, and his counsel made an oral motion to
continue the April 7 trial date to the June trial term. The court
granted that motion and rescheduled trial for June 9, with a
pretrial conference on May 14. Jaso appeared via videoconfer-
ence at the May 14 pretrial conference, and his counsel made
an oral motion for “dismissal under grounds of speedy trial.”
The court granted leave for Jaso to supplement his oral motion
with a written motion for discharge and set the matter for
hearing on July 10. Although the evidence adduced at the July
10 hearing will be discussed in more detail below, the court
ultimately denied Jaso’s motion for discharge via written order
entered on August 31.
After a number of additional delays, and the withdrawal of
Jaso’s first trial counsel, the court eventually convened for a
pretrial conference on March 17, 2021. At that hearing, Jaso’s
second trial counsel informed the court that an agreement had
been struck, under which the State filed an amended informa-
tion dismissing counts I and III and Jaso entered a written
waiver of his right to a jury trial. The parties also agreed to a
written stipulation of facts establishing the elements of count
II, pursuant to which Jaso’s counsel expected a finding of guilt
on that count. The State further agreed to “recommend a term
of incarceration [of] no more than ten years.”
The court confirmed the substance and effect of the agree-
ment with Jaso, explicitly advising him that count II is pun-
ishable by a maximum of 20 years’ imprisonment. The court
recited the single charge in the amended information, to which
Jaso pled not guilty, and the case was submitted to the court
pursuant to the stipulated facts contained in exhibit 4. Upon
reviewing exhibit 4, the court found Jaso guilty on count II of
the amended information. The court ordered that a presentence
investigation report be prepared, and it set the case for sentenc-
ing on May 14, 2021.
At the May 14, 2021, sentencing hearing, pursuant to the
agreement discussed above, the State recommended a term
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Cite as 31 Neb. App. 236of incarceration of not more than 10 years. In consideration
of the statutory factors and the information in the presen-
tence investigation report, the court sentenced Jaso to 12 to
16 years’ incarceration with credit for 121 days served and
ordered Jaso to register as a sex offender for life. Thereafter,
Jaso’s second trial counsel was granted leave to withdraw and
Jaso brought this appeal through new counsel.
III. ASSIGNMENTS OF ERROR
Jaso assigns, restated, that his trial counsel was ineffective
for (1) failing to perfect an appeal from the district court’s
order denying Jaso’s motion for discharge on speedy trial
grounds and (2) promising a maximum sentence to induce Jaso
to enter into a plea agreement.
IV. STANDARD OF REVIEW
[1] Whether a claim of ineffective assistance of trial coun-
sel 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. Collins, 307 Neb. 581, 950 N.W.2d 89(2020). We determine 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. Ineffective Assistance of Counsel for
Failing to Perfect Appeal
Jaso first assigns that his first trial counsel was ineffective
for failing to “preserve” the issue of Jaso’s right to a speedy
trial for appeal. Brief for appellant at 19. The State argues
that this argument fails because the district court’s denial of
Jaso’s motion for discharge was final and appealable, such
that “[u]nless the [order] is timely appealed, the decision of
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Cite as 31 Neb. App. 236the district court becomes final, and all parties are bound by
it.” Brief for appellee at 4. Thus, because Jaso failed to file a
timely appeal of the district court’s ruling on his motion for
discharge, the State argues, there was no way for that issue to
be “‘preserved’” for a later appeal. Id. We agree.
However, in his reply brief, Jaso counters that, although
he used the term “preserve” in his first assignment of error,
the substance of his argument is actually that “[t]he failure
of trial counsel to perfect that appeal has prejudiced [Jaso]
by waiving his opportunity to make a case on the merits with
respect to any violation of his right to a speedy trial.” Reply
brief for appellant at 5 (emphasis supplied). Indeed, in his
original brief, Jaso cited to State v. Johnson, 243 Neb. 758,
502 N.W.2d 477 (1993), and State v. Trotter, 259 Neb. 212,
609 N.W.2d 33 (2000), as precedent for establishing that trial
counsel may be ineffective for failing to properly perfect an
appeal when the defendant directed such an appeal to be filed.
Jaso then argues as follows: “The record in this case estab-
lishes that [Jaso] and his counsel argued extensively about his
right to a speedy trial being violated . . . indicating that [Jaso]
had directed that his right to challenge the violation of statu-
tory and constitutional rights be preserved. But that appeal
was not perfected.” Brief for appellant at 22. Thus, giving
Jaso the benefit of the doubt, we address his first assignment
of error as the failure of trial counsel to properly perfect an
appeal of the district court’s denial of Jaso’s motion for dis-
charge on speedy trial grounds.
[2] To prevail on a claim of ineffective assistance of coun-
sel 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. Filholm, 287 Neb. 763, 848 N.W.2d 571(2014). Jaso argues:
Instead of relying on the 2‑pronged standard stated in
Strickland v. Washington . . . this court must rely on the
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Cite as 31 Neb. App. 236companion case of United States v. Cronic, [466 U.S. 648,
104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)], which held
that certain deficient conduct by counsel will be presumed
prejudicial . . . .
Brief for appellant at 22 (citing State v. Trotter, supra). However,
the Nebraska Supreme Court explicitly rejected this argument
in State v. Meers, 267 Neb. 27, 671 N.W.2d 234 (2003).
In Meers, as in the present case, the appellant claimed that
trial counsel was ineffective for failing to perfect an appeal
from a pretrial denial of his motion for discharge on speedy
trial grounds. The court distinguished this scenario from Trotter
and other cases where there was a failure to perfect an appeal
after a trial and conviction. Where the failure to perfect an
appeal after trial and conviction completely foreclosed appel-
late review of the case, “[t]he absence of a timely appeal from
the pretrial order denying discharge on speedy trial grounds
foreclosed appellate review on that single issue . . . but it did
not affect the right to seek appellate review of other issues.”
State v. Meers, 267 Neb. at 31, 671 N.W.2d at 238. Thus,
rather than extending the presumption of prejudice discussed
in Trotter, our Supreme Court concluded that the scenario
presented in Meers, which is the same as in the present case,
should be analyzed under the Strickland test for determining
the effectiveness of counsel.
[3,4] On direct appeal, the resolution of ineffective assist­
ance of counsel claims turns upon the sufficiency of the record.
State v. Filholm, supra. In those cases where the record on
direct appeal was sufficient to address a claim of ineffective
assistance of trial counsel, the record itself either affirmatively
proved or rebutted the merits of the claim. Id. That is, the
record established either that trial counsel’s performance was
not deficient, that appellant could not establish prejudice, or
that trial counsel’s actions could not be justified as a part of
any plausible trial strategy. Id.
[5] It is fundamental to a claim of ineffective assistance
of counsel based on failure to appeal or failure to properly
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Cite as 31 Neb. App. 236perfect an appeal that the defendant directed that such appeal
be filed. State v. Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000).
As previously quoted, Jaso argues that his direction to file an
appeal is “indicat[ed]” by the fact that he argued extensively
with counsel about whether his right to a speedy trial had been
violated. However, it is not clear where in the record Jaso finds
support for the assertion that Jaso argued extensively with trial
counsel about this issue. Moreover, even if such argument did
occur, it would not necessarily indicate that Jaso directed an
appeal to be filed.
[6] Nevertheless, even if Jaso had timely directed trial coun-
sel to file an appeal, Jaso cannot show prejudice from counsel’s
failure to do so. In State v. Meers, supra, the court determined
that “the critical issue is whether a timely appeal from the
pretrial order denying absolute discharge would have resulted
in a reversal and prevented a subsequent trial and conviction.”
State v. Meers, 267 Neb. at 32, 671 N.W.2d at 238. “Only if
that question is resolved in the affirmative could the failure to
perfect the appeal be deemed prejudicial in the sense that it
would have altered the result of the prosecution.” Id. See, also,
State v. Betancourt‑Garcia, 295 Neb. 170, 887 N.W.2d 296(2016). Thus, we examine whether a timely appeal would have
resulted in a reversal of the court’s denial of Jaso’s motion
for discharge.
(a) Statutory Speedy Trial
[7] Under Neb. Rev. Stat. § 29‑1207(1) (Reissue 2016),
“[e]very person indicted or informed against for any offense
shall be brought to trial within six months, and such time
shall be computed as provided in this section.” To calculate
the deadline for trial under the speedy trial statutes, a court
must exclude the day the State filed the information, count
forward 6 months, back up 1 day, and then add any time
excluded under § 29‑1207(4). State v. Lovvorn, 303 Neb. 844,
932 N.W.2d 64 (2019). The original information against Jaso
was filed on May 1, 2019, so the initial speedy trial deadline
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Cite as 31 Neb. App. 236was November 1, 2019. We note that the district court miscal-
culated the initial speedy trial deadline as October 31, so we
adjust its calculation accordingly.
[8] Under § 29‑1207(4)(b), a court shall exclude from the
speedy trial clock “[t]he period of delay resulting from a
continuance granted at the request or with the consent of the
defendant or his or her counsel.” The calculation of excludable
time for a continuance begins the day after the continuance is
granted and includes the day on which the continuance ends.
State v. Lovvorn, supra.In denying Jaso’s motion for absolute discharge, the district
court determined that 257 days of the delay were attributable
to Jaso; thus, prior to filing his motion to dismiss, the speedy
trial deadline had been extended to July 14, 2020 (which, as
adjusted, would be July 15). In Jaso’s calculations and argu-
ment in support of his motion to discharge, he acknowledged
that 154 days, from August 13, 2019, to January 14, 2020,
should be excluded from the speedy trial clock due to contin­
uances he requested. The court, however, excluded 166 days,
beginning August 1, 2019, instead, which was the day after
the court granted Jaso’s oral motion to continue trial from
August 1 to September 10. These additional days were properly
excluded pursuant to State v. Lovvorn, supra.Jaso contended, however, that the 91‑day period from March
10, 2020, to the next scheduled jury trial date of June 9 should
not count against him, despite the fact that the continuances
were requested by his counsel. He asserted that these continu-
ances were necessitated because personnel at the Department
of Correctional Services withheld his medications, resulting in
a mental condition which precluded him from effectively par-
ticipating in his defense. The district court rejected this argu-
ment based upon the record before it. Because a determination
of whether this time period was properly excluded is deter-
minative of whether Jaso was prejudiced by counsel’s failure
to appeal the denial of his motion for absolute discharge, we
focus our attention here.
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Cite as 31 Neb. App. 236The first period of these 91 days occurred during the pre-
trial conference on February 24, 2020. The record reveals
that on that date, Jaso’s counsel requested that the trial be
continued from March 10 to April 7 to provide him time to
consider obtaining another DNA test and to give Jaso addi-
tional time to consider a plea offer that was pending. After
questioning Jaso to confirm he understood the nature of his
request and that the additional time would be excluded from
the calculation of speedy trial, the court granted the request.
The record refutes Jaso’s argument that these 28 days should
not be excluded on the basis that the continuance was due to
a lack of medication.
The remaining period of these 91 days resulted from Jaso’s
oral motion on March 13, 2020, to continue the trial from April
7 to June 9. A transport order had been issued to bring Jaso
from the NSP to the courthouse on March 13, but he refused
transport. Consequently, defense counsel requested a continu-
ance to the June jury term, which continuance was granted.
At the hearing on the motion for absolute discharge, Jaso’s
counsel argued that this time should not be excluded from the
speedy trial calculation because the Department of Correctional
Services failed to provide Jaso’s medications for transport. At
a subsequent evidentiary hearing on the motion for absolute
discharge, Jaso’s counsel offered two affidavits from staff
members at the Department of Correctional Services in support
of his position. However, the district court determined that the
affidavits refuted Jaso’s position.
The first affidavit was from an administrative assistant at the
NSP. Therein, the administrative assistant attested that on June
26, 2020, Jaso’s counsel sent her an email including “attach-
ments of motions and orders from this Court for . . . Jaso to
be transported to Court in Dawson County on May 14, 2020
. . . with a supply of any medications he was prescribed and
taking at this facility.” She then confirmed that “this facility
was never provided with copies of these orders and was never
given notice of these orders.” However, this is not surprising
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Cite as 31 Neb. App. 236because, as the court noted in its order, Jaso appeared at the
May 14 hearing via videoconference, such that there was no
need for him to be transported with his medication.
The second affidavit was from a medical provider at the
NSP, Margaret Chipendo. Chipendo attested that she worked
with Jaso to assist him with managing his “PTSD, anxiety, and
mood disorder,” which management included psychotropic
medications. Chipendo attested that Jaso “was failing to take
one of his medications as prescribed in the early part of this
year because of a misunderstanding on his part.” Chipendo
also confirmed that Jaso reported being in the Dawson County
jail without his medications for 4 days prior to the February
24, 2020, hearing, and she further attested that Jaso’s descrip-
tions of lethargy and “other symptoms” “would be consistent
with discontinuing his medications.” Chipendo noted that
because “[a]bruptly discontinuing his medications could be
dangerous” for Jaso, “[i]t was therefore decided that [he]
should be taken off his medications for a period.” Chipendo
added that Jaso “was not placed back on his medications until
May 30, 2020.”
Thus, the evidence is that Jaso was not even prescribed to
take his medications at the time that he refused transport to
the March 13, 2020, hearing. Indeed, in the written supple-
ment to his motion for discharge, Jaso argued that he “refused
to leave the Department of Correction[al Services] because he
had not been placed back on his medication by DOC staff and
he felt the medication was necessary for him to effectively par-
ticipate in that hearing.” Although Jaso may have felt that his
medications were necessary, it appears the medical personnel
in charge of managing his medications disagreed. Moreover,
Jaso was apparently without his medications during hearings
on February 24 and May 14, yet the court was neverthe-
less satisfied that Jaso was able to effectively participate in
those proceedings.
[9] Based on the foregoing evidence, Jaso argued that the 91
days in question should not be excluded because they “were
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Cite as 31 Neb. App. 236precipitated by his lack of medication which prevented him for
[sic] effectively participating in any hearings.” However, as the
district court observed, the evidence weighs against that claim.
In any case, even if it were true that Jaso’s lack of medica-
tion prevented him from consenting to his counsel’s requests
for continuance, § 29‑1207(4)(b) excludes the period of delay
resulting from a continuance granted at the request or with the
consent of the defendant or his or her counsel. See State v.
McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004) (delay result-
ing from defense counsel’s request for continuance was exclud-
able despite defendant’s objections thereto).
[10] Additionally, Jaso argued that excluding the 91 days
“would violate [§] 29‑1207(4)(f),” but Jaso’s interpretation of
that section is misguided. Section 29‑1207(4)(f) provides for
the exclusion of a period of delay when such was precipitated
by good cause. However, Jaso relied on that section to advo-
cate for the inclusion of time for speedy trial purposes. Such
an interpretation of § 29‑1207 would run contrary to the plain
language of the statute and existing precedent. Jaso explicitly
acknowledged that the entire 91 days of delay were “due to
continuances made by [Jaso] and his attorney.” The extent to
which Jaso had “good cause” for requesting the continuances
is of no consequence under § 29‑1207(4)(b). See State v. Sims,
272 Neb. 811, 725 N.W.2d 175 (2006) (in determining whether
period of delay is attributable to defense counsel’s motion to
continue, appellate court need not inquire as to what extent
there was good cause for delay).
Accordingly, the district court properly excluded the con-
tested 91 days from its speedy trial calculation; therefore,
Jaso’s motion for discharge on May 14, 2020, was prematurely
filed because the speedy trial clock had been extended to July
15. A timely appeal from the pretrial order denying absolute
discharge would not have resulted in a reversal and prevented
a subsequent trial and conviction. Consequently, Jaso cannot
prove he was prejudiced by counsel’s failure to timely appeal
the denial of his motion for discharge.
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Cite as 31 Neb. App. 236(b) Constitutional Speedy Trial
[11] To the extent that the district court’s August 31, 2020,
order addressed the merits of Jaso’s constitutional speedy
trial right, we note that there is no appellate jurisdiction over
a pretrial order denying a motion for discharge on constitu-
tional speedy trial grounds until the case is concluded. See
State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022).
Jaso’s argument on appeal is that trial counsel was ineffective
for failing to immediately perfect an appeal from the district
court’s August 31 order. However, as discussed in Abernathy,
the constitutional speedy trial issue was not immediately
appealable at that time. Thus, trial counsel could not have
been ineffective for failing to immediately perfect an appeal
on that issue.
2. Ineffective Assistance of Counsel for
Promising Maximum Sentence
Jaso’s second assignment of error alleges that trial counsel
was ineffective for inducing Jaso into the “plea agreement” by
promising a maximum sentence of 10 years of incarceration.
Jaso argues that he “advised trial counsel that [he] would not
enter into the plea agreement unless the sentence was capped
at 10 years, otherwise he wanted to go to trial.” Brief for
appellant at 26. Thus, Jaso contends that “[i]f defense counsel
actually induced [Jaso] into entering a plea agreement . . .
by advising [Jaso] that the judge could not sentence [Jaso] to
more than 10 years of incarceration,” then counsel was clearly
deficient. Id. at 27. Jaso then indicates that the record is insuf-
ficient to address this claim on direct appeal because the record
fails to reveal the substance of any conversations between Jaso
and counsel.
Jaso is correct that the record fails to reveal whether or
not his counsel actually advised him that he could not be
sentenced to more than 10 years. However, at the March 17,
2021, hearing, the court recited the substance of the agreement
and specifically asked Jaso whether “anybody promised you
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Cite as 31 Neb. App. 236anything, except what I just described here in open court . . .
that would cause you to enter into this agreement,” to which
Jaso simply responded, “No.” Thereafter, the court explicitly
advised Jaso that count II was “punishable by a maximum of
20 years’ imprisonment,” adding, “[d]o you understand those
are the penalties that apply?” Jaso responded, “Yes, I do.”
Accordingly, we conclude Jaso cannot show prejudice, because
he acknowledged on the record that count II was punishable by
a maximum of 20 years’ imprisonment and the record refutes
that he was enticed to entering the plea by a promise of a maxi-
mum sentence less than that.
VI. CONCLUSION
For the foregoing reasons, we conclude that Jaso cannot
show prejudice with regard to either claim of ineffective assist­
ance. As these were the only claims raised on direct appeal, we
affirm Jaso’s conviction and sentence.
Affirmed.