State v. Garcia-Contreras ( 2023 )

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www.nebraska.gov/apps-courts-epub/
03/21/2023 09:04 AM CDT
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STATE V. GARCIA-CONTRERAS
Cite as 31 Neb. App. 657State of Nebraska, appellee, v. Emilio
Garcia-Contreras, appellant.
___ N.W.2d ___
Filed March 21, 2023. No. A-22-316.
1. Convictions: Evidence: Appeal and Error. 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. 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 ele-
ments of the crime beyond a reasonable doubt.
2. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
3. Judges: Words and Phrases. 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.
4. Effectiveness of Counsel: Records: Appeal and Error. 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; the deter-
mining factor is whether the record is sufficient to adequately review
the question.
5. Effectiveness of Counsel: Records: Proof: Appeal and Error. The
record is sufficient to resolve on direct appeal a claim of ineffective
assistance of counsel if the record affirmatively proves or rebuts either
deficiency or prejudice with respect to the defendant’s claims.
6. Sexual Assault: Proof: Words and Phrases. The slightest intrusion
into the genital opening is sufficient to constitute sexual penetration
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Cite as 31 Neb. App. 657under Neb. Rev. Stat. § 28-318(6) (Reissue 2016), and such element
may be proved by either direct or circumstantial evidence.
7. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
counsel’s performance was deficient and that this deficient performance
actually prejudiced his or her defense.
8. ____: ____. To show deficient performance, a defendant must show that
counsel’s performance did not equal that of a lawyer with ordinary train-
ing and skill in criminal law.
9. ____: ____. To show prejudice, the defendant must demonstrate a rea-
sonable probability that but for counsel’s deficient performance, the
result of the proceeding would have been different.
Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Allyson A. Mendoza for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Pirtle, Chief Judge, and Riedmann and Arterburn,
Judges.
Pirtle, Chief Judge.
INTRODUCTION
Emilio Garcia-Contreras appeals from his convictions and
sentences on two counts of first degree sexual assault of a
child. Following a bench trial, the district court for Douglas
County found Garcia-Contreras guilty on both counts and sen-
tenced him to 30 to 70 years of incarceration on each count,
which sentences were to be served concurrently. On appeal,
Garcia-Contreras challenges the sufficiency of the evidence
against him and argues that the district court imposed excessive
sentences. Garcia-Contreras further raises two claims of inef-
fective assistance of trial counsel. For the reasons that follow,
we affirm.
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Cite as 31 Neb. App. 657BACKGROUND
On February 3, 2022, the State filed a second amended
information against Garcia-Contreras in the district court.
The information charged Garcia-Contreras with two counts
of first degree sexual assault of a child. Both counts of the
information alleged that Garcia-Contreras, who was at least 19
years of age, subjected Y.A., who was a child under 12 years
of age, to sexual penetration, in violation of Neb. Rev. Stat.
§ 28-319.01(1)(a) and (2) (Reissue 2016). The only difference
between the two counts was the date of the alleged offenses.
In count 1, Garcia-Contreras was alleged to have subjected
Y.A. to sexual penetration on or about June 5, 2018, through
November 20, 2019. In count 2, Garcia-Contreras was alleged
to have subjected Y.A. to sexual penetration on or about
November 21, 2019. The case proceeded to a bench trial held
over the course of 3 days from February 8 to 10, 2022, and the
following evidence was adduced.
Y.A.’s mother, Karelin Gomez, testified that Y.A. is the
oldest of her three children and that Y.A. was 6 years old as
of November 21, 2019. At that time, Gomez and her three
children lived with Gomez’ mother, Maria Abarca, at an
address on E Street in Omaha, Nebraska. Garcia-Contreras,
who was identified as Abarca’s boyfriend, also lived at the
E Street address, along with his two minor children. Prior to
September 2019, Abarca lived with Garcia-Contreras and his
two children at an address on U Street in Omaha and Gomez
and her three children lived in Lincoln, Nebraska, with the
man she identified as the father of her children. They sepa-
rated around September 2019, and Gomez and the children
came to live with Abarca and Garcia-Contreras in Omaha.
Gomez and the children initially moved into the U Street
address, and the whole family relocated to the E Street address
shortly thereafter.
Prior to moving to Omaha, Gomez’ children typically
spent at least one or two weekends a month with Abarca and
Garcia-Contreras at the U Street address. Abarca also recalled
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Cite as 31 Neb. App. 657at least one weekend in 2018 which the children spent alone
with Garcia-Contreras at that address. Gomez recalled that Y.A.
began exhibiting some hesitation about the weekend visits with
Abarca and Garcia-Contreras in the months prior to moving
to Omaha.
Gomez noticed further behavioral changes in Y.A. after
moving to Omaha. Gomez recalled that Y.A. started to “jump”
when Gomez would attempt “to wash her private parts.” Gomez
further recalled instances in which Y.A. “would just wake
up, like hysterically crying.” Additionally, Abarca noticed that
Y.A. was increasingly reluctant to have contact with Garcia-
Contreras in the weeks leading up to November 21, 2019. At
some point prior to November 21, Y.A. disclosed an allega-
tion that Garcia-Contreras had inappropriately “touched her
butt,” and Abarca testified that Y.A. seemed to be afraid of
Garcia-Contreras.
In the early morning hours of November 21, 2019, Abarca
went to Y.A.’s bedroom to check on her and observed that she
was “very scared and she was shaking.” Abarca asked what
was wrong, and Y.A. responded that “‘Grandpa is annoy-
ing’ . . . ‘[b]ecause when everybody is sleeping, he’s come
to my room and he touch my cula.’” It was later revealed
that “cula” is a word that Y.A. used to refer to her vagina at
the time. Gomez was in the basement of the house when she
heard Abarca calling for Gomez to hurry upstairs. Gomez
discovered Abarca comforting Y.A., and Garcia-Contreras
was standing in the hallway outside Y.A.’s room. Y.A. and
Abarca were both crying, and Abarca stated that Garcia-
Contreras had inappropriately touched Y.A. Abarca confronted
Garcia-Contreras, who denied the allegation and promptly
left the home, after which Gomez and Abarca contacted
law enforcement.
A law enforcement officer responded to the E Street address
at approximately 9:30 a.m. and made contact with Gomez and
Abarca. Abarca reported that when she went to wake Y.A.
up that morning, Y.A. was “upset” and stated that “grandpa
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Cite as 31 Neb. App. 657had touched her.” The officer transported Y.A. to Project
Harmony, a child advocacy center, for a forensic interview
and medical examination. During the interview, Y.A. disclosed
allegations that Garcia-Contreras had digitally penetrated her
vagina and had inappropriately touched her “butt.” It was
believed that Y.A.’s disclosure regarding digital penetration
was an “acute disclosure,” meaning the abuse occurred within
24 to 48 hours of disclosure. Y.A. made a number of addi-
tional disclosures during the medical examination that were
believed to be “delayed disclosures,” meaning the alleged
abuse occurred more than 48 hours prior to disclosure.
The manager of the forensic interview program at Project
Harmony testified that delayed disclosures are much more
common due to a number of factors. She added that one such
factor is a possible reluctance to report abuse when the per-
petrator is a close family member. She further testified that
children tend to disclose abuse over time as opposed to all at
once and that the details of the reports may change depend-
ing on whom the child is talking to and how that individual
responds to the disclosures. She also testified that children
can have difficulty describing specific episodes of abuse if
the abuse was frequent and ongoing because the incidents can
blur together.
Ashley Harris, the nurse practitioner who conducted Y.A.’s
medical examination, testified to additional details of the
alleged abuse that Y.A. disclosed during the examination.
With respect to the acute disclosure of digital penetration,
Y.A. reported to Harris that sometime in the night prior to
November 21, 2019, Garcia-Contreras “put his fingers in what
[Y.A.] called her penis.” When Harris sought to clarify what
Y.A. meant by “penis,” Y.A. “pointed to her vaginal area and
said he twisted his fingers inside there to make it red.” Y.A.
described Garcia-Contreras pulling her pants and underwear
down to her knees, and she reported that the contact “made it
feel hot when she would go pee.” Harris noted that Y.A. used
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Cite as 31 Neb. App. 657a lot of hand gestures to describe the contact and opined that
Y.A. was “very descriptive for her age.”
Y.A. further disclosed previous occasions in which Garcia-
Contreras would make Y.A. touch her mouth to his penis.
Y.A. reported that Garcia-Contreras “pushed her head to his
penis” the night before but that she refused on that occasion.
When asked about occasions in which Y.A.’s mouth did touch
Garcia-Contreras’ penis, Y.A. described a white substance that
“came out of his little hole on his penis and that he would
want her to drink it.” Y.A. also disclosed prior incidents in
which Garcia-Contreras would put his mouth on her vagina
and reported that he “bit her or would lick her and . . . that
it would hurt.” Y.A. further reported previous occasions in
which Garcia-Contreras’ penis “went in [Y.A.’s] penis” and
that it “felt hot.”
After gathering this history from Y.A., Harris collected a
number of DNA samples and Y.A.’s underwear, all of which
were provided to law enforcement. Harris then conducted
a sexual assault examination and tested Y.A. for sexually
transmitted infections, all of which returned normal results.
With respect to the sexual assault examination, Harris testi-
fied she did not expect to discover injuries based on Y.A.’s
disclosures, and she clarified that it is not unusual to obtain
a normal result on a sexual assault examination because the
“areas of the body that can be penetrated” can “stretch easily
without injury.” In fact, Harris referred to research indicating
that sexual assault examinations reveal normal results in “95
percent” of delayed disclosure cases and “80 percent” of acute
disclosure cases. Altogether, Harris testified that the results of
the medical examination were consistent with the disclosures
made by Y.A.
Y.A. also testified at trial, further describing her recollection
of the alleged abuse. Y.A. was 8 years old at the time. Y.A.
identified Garcia-Contreras in the courtroom and described
him as the “guy who did a lot of bad stuff to me.” As men-
tioned above, Y.A. refers to her vagina as her “cula,” and
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Cite as 31 Neb. App. 657Y.A. testified to multiple occasions in which Garcia-Contreras
touched her “cula” with the part of his body “where he pees.”
Y.A. recalled at least one occasion in which Garcia-Contreras
came into her room at night and touched “where he pees” to
the inside of her “cula.” Y.A. further recalled at least one occa-
sion in which Garcia-Contreras took Y.A. to pick up pizza, and
he touched her “cula” with “[w]here he pees” when they were
parked in a parking lot. Y.A. testified that Garcia-Contreras
had also put his hand on her “cula” in the past. Y.A. estimated
that Garcia-Contreras started touching her in these ways when
she was 5 years old, and Y.A. turned 5 years old in June 2018.
Y.A. had difficulty remembering specific details of the abuse,
but she recalled incidents occurring at both the E Street and U
Street addresses.
Following the forensic interview and medical examination,
law enforcement contacted Garcia-Contreras, who then vol-
untarily transported himself to a formal interview with law
enforcement around 2 p.m. on November 21, 2019. Following
that interview, Garcia-Contreras was placed under arrest.
Evidence collected during Y.A.’s medical examination, as well
as additional items suspected of containing DNA evidence,
was sent to be analyzed. The parties stipulated at trial that the
chain of custody of pertinent DNA evidence was maintained at
all times.
A DNA analyst, Joe Choquette, testified that analysis of
two swabs collected during the sexual assault examination
returned a presumptive positive result for seminal fluid, but
that the confirmatory tests were negative. The presumptive
test was described as an “acid phosphatase” test, and the con-
firmatory test was described as a “prostate specific antigen”
(PSA) test. Choquette was careful to limit his testimony to
the refrain that those two samples were “[acid phosphatase]
positive and PSA negative.” Choquette noted that it is pos-
sible to have a negative PSA and yet have semen present, just
as it is possible to have a positive PSA without the presence
of semen.
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Cite as 31 Neb. App. 657Choquette also analyzed multiple samples collected from the
underwear that Y.A. was wearing on the morning of November
21, 2019. A swab collected from the outside waistband of the
underwear revealed a mixture of DNA from three individ­
uals, and Garcia-Contreras could not be excluded as a minor
contributor. Specifically, Choquette testified that it was 3,260
times more likely that the mixture contained DNA from Y.A.,
Garcia-Contreras, and one unknown individual than DNA from
Y.A. and two unknown individuals. Choquette testified that this
established “moderate support” for the conclusion that Garcia-
Contreras’ DNA was included in the mixture.
On February 10, 2022, the district court found Garcia-
Contreras guilty on both counts of the second amended infor-
mation. Following a presentence investigation and hearing, the
court sentenced Garcia-Contreras to 30 to 70 years of incar-
ceration for each conviction and ordered the sentences to run
concurrently. Garcia-Contreras appealed.
ASSIGNMENTS OF ERROR
Garcia-Contreras assigns, restated, that the district court
erred in finding Garcia-Contreras guilty without sufficient evi-
dence. Garcia-Contreras also assigns that the district court
imposed excessive sentences and raises two claims of ineffec-
tive assistance of trial counsel.
STANDARD OF REVIEW
[1] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, 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. Stack, 307 Neb. 773,
950 N.W.2d 611 (2020). 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 rea-
sonable doubt. Id.- 665 -
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Cite as 31 Neb. App. 657[2,3] A sentence imposed within the statutory limits will not
be disturbed on appeal in the absence of an abuse of discretion
by the trial court. State v. Greer, 312 Neb. 351, 979 N.W.2d
101 (2022). 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. Id.[4,5] 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; the determining factor is whether
the record is sufficient to adequately review the question. State
v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022). The record
is sufficient to resolve on direct appeal a claim of ineffec-
tive assistance of counsel if the record affirmatively proves or
rebuts either deficiency or prejudice with respect to the defend­
ant’s claims. Id.ANALYSIS
Sufficiency of Evidence.
Garcia-Contreras first challenges the sufficiency of the evi-
dence against him on both counts of the second amended infor-
mation. Garcia-Contreras argues that the State failed to prove
that Garcia-Contreras subjected Y.A. to sexual penetration at
any time. In support of this contention, Garcia-Contreras points
to various alleged conflicts in the evidence and challenges the
credibility of certain witnesses, including Y.A. However, we
do not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence. Rather, we must view
the evidence in the light most favorable to the prosecution,
and then we determine whether a rational trier of fact could
have found the essential elements of counts 1 and 2 beyond a
reasonable doubt. The only element of the charges in dispute is
whether Garcia-Contreras subjected Y.A. to sexual penetration
on or about the dates alleged.
[6] Neb. Rev. Stat. § 28-318(6) (Reissue 2016) pro-
vides in pertinent part that sexual penetration means sexual
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Cite as 31 Neb. App. 657intercourse in its ordinary meaning, cunnilingus, fellatio, or
any intrusion, however slight, of any part of the actor’s or
victim’s body into the genital opening of the victim’s body
which can be reasonably construed as being for nonmedi-
cal, nonhealth, or nonlaw enforcement purposes. The slightest
intrusion into the genital opening is sufficient to constitute
penetration, and such element may be proved by either direct
or circumstantial evidence. State v. Archie, 273 Neb. 612, 733
N.W.2d 513 (2007).
With regard to count 1, Y.A. disclosed a number of instances
in which Garcia-Contreras subjected her to sexual penetra-
tion in the ordinary sense, cunnilingus, and fellatio between
June 5, 2018, and November 20, 2019. From June 5, 2018, to
September 2019, Garcia-Contreras had repeated access to Y.A.
when she would visit the U Street address, including at least
one weekend in which Garcia-Contreras cared for the chil-
dren alone. From September to November 20, 2019, Garcia-
Contreras had even more consistent access to Y.A., as she now
lived under the same roof.
On appeal, Garcia-Contreras emphasizes that the E Street
address was a crowded home and that Y.A. often shared a bed
with her younger brother. While that is true, Y.A. reported that
the abuse often occurred at night “‘when everybody is sleep-
ing.’” Moreover, Gomez testified that Y.A.’s younger brother
was a “heavy sleeper” and indicated that it was not unusual
for some or all of the children to “sneak” downstairs and sleep
with her instead of staying in their room upstairs. Viewing the
evidence in the light most favorable to the prosecution, a ratio-
nal trier of fact could have concluded that Garcia-Contreras
subjected Y.A. to sexual penetration on at least one occasion
between June 5, 2018, and November 20, 2019.
With regard to count 2, Y.A. made an acute disclosure on
November 21, 2019, alleging that Garcia-Contreras digitally
penetrated her vagina sometime during the night before. Y.A.
provided a detailed description of the incident during the
forensic interview and medical examination. Y.A. described
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Cite as 31 Neb. App. 657Garcia-Contreras removing her pants and underwear prior to
the abuse, and Garcia-Contreras’ DNA was found on the out-
side waistband of the underwear that Y.A. was wearing at
the time. Viewing the evidence in the light most favorable to
the prosecution, a rational trier of fact could have concluded
that Garcia-Contreras subjected Y.A. to sexual penetration on
or about November 21, 2019.
Excessive Sentences.
Garcia-Contreras next assigns that the district court imposed
excessive sentences. Garcia-Contreras does not dispute that the
sentences imposed by the district court were within the statu-
tory limits. Rather, Garcia-Contreras argues that the district
court failed to adequately account for various mitigating fac-
tors, such as Garcia-Contreras’ background, limited education,
and lack of criminal record. However, there is no indication in
the record that the district court failed to account for these mit-
igating factors. To the contrary, all of the information to which
Garcia-Contreras refers was contained within the presentence
investigation report, and the court had full access to that report.
Moreover, the court explicitly noted that it had considered
information such as Garcia-Contreras’ “age, his background,
[and] his criminal history.” Upon our review of the record,
we cannot say that the sentences imposed by the district court
amounted to an abuse of discretion.
Ineffective Assistance of Counsel.
Garcia-Contreras raises two claims of ineffective assistance
of trial counsel. However, before addressing the merits of
those claims, we must first resolve the State’s contention that
Garcia-Contreras’ claims are premature because his trial coun-
sel remains counsel of record on appeal. See State v. Parnell,
294 Neb. 551, 883 N.W.2d 652 (2016) (ineffective assistance
claims raised on direct appeal by trial counsel are premature
and will not be addressed). Garcia-Contreras was represented
at trial by attorney Alexander McAtee. Following trial, on
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Cite as 31 Neb. App. 657April 27, 2022, McAtee filed a notice of appeal and motion
to proceed in forma pauperis on behalf of Garcia-Contreras
and a motion to withdraw as counsel in his own behalf. Along
with the motion to withdraw was a proposed order grant-
ing the motion that was prepared by McAtee and signed by
Garcia-Contreras.
On May 2, 2022, the court entered an order granting leave
for Garcia-Contreras to proceed in forma pauperis on appeal
and signed the proposed order granting McAtee’s withdrawal.
The order granting leave to proceed in forma pauperis was
file stamped at 10:44 a.m., and the order granting McAtee’s
motion to withdraw was file stamped 1 minute later at 10:45
a.m. On May 3, the court entered an order appointing the
Douglas County public defender’s office to prosecute Garcia-
Contreras’ appeal. The record suggests that the public defend-
er’s office handled Garcia-Contreras’ appeal from that point
on without any additional involvement by McAtee. However,
McAtee remains certified as counsel of record on appeal to
this court. The clerk of the district court filed a certificate of
appeal on April 28 and an amended certificate of appeal on
May 2, both of which list McAtee as the counsel of record for
Garcia-Contreras.
The State argues that Garcia-Contreras’ ineffective assistance
claims are premature and should not be addressed because
McAtee is listed as counsel of record on appeal and has failed
to properly withdraw in this court. Garcia-Contreras, on the
other hand, argues that McAtee properly withdrew in the dis-
trict court, as evidenced by the district court’s May 2, 2022,
order granting McAtee’s motion to withdraw. As such, Garcia-
Contreras argues that McAtee’s certification was erroneous
and should not prevent review of his ineffective assistance of
counsel claims.
The Nebraska Supreme Court addressed a similar scenario
in State v. Parnell, supra. The court recognized a “substantive
component” to the appellate rules governing counsel of record
in the context of ineffective assistance of counsel claims, as
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Cite as 31 Neb. App. 657they enable appellate courts to easily distinguish trial counsel
from appellate counsel. Id. at 579, 883 N.W.2d at 672. The
court further noted that appellate review of ineffectiveness
claims can be “frustrated or unnecessarily complicated” when
the rules regarding counsel of record are not “strictly fol-
lowed.” Id. The present case illustrates that point.
Neb. Ct. R. App. P. § 2-101(F)(2) (rev. 2022) provides, in
pertinent part, that attorneys of record in the court below shall
be deemed the attorneys of the same parties in the appellate
court, as certified to the appellate court by the trial court,
until a motion for withdrawal has been filed and granted by
the appellate court. Neb. Ct. R. App. P. § 2-106(F) (rev. 2022)
then provides the manner for filing a motion to withdraw in the
appellate court.
In this case, Garcia-Contreras’ appeal was perfected at 10:44
a.m. on May 2, 2022, when the district court granted him leave
to proceed in forma pauperis. See § 2-101(A)(1). Yet, McAtee
was not formally granted permission to withdraw from the dis-
trict court until 1 minute later at 10:45 a.m. on May 2. Thus,
it appears that McAtee technically failed to withdraw prior to
perfection of the appeal, and he was thus required to promptly
withdraw in the appellate court. See State v. Parnell, 294 Neb.
551, 580, 883 N.W.2d 652, 673 (2016) (“[i]f new counsel has
been appointed for an appeal but the former counsel has not
withdrawn before an appeal is perfected, the former counsel
must promptly withdraw in the appellate court”).
Assuming for the sake of argument that the court’s order
granting withdrawal was timely and effective, then Garcia-
Contreras would be correct that it was error for the district
court to certify McAtee as counsel of record on appeal. Even
in that case, it was incumbent upon McAtee to heed notices
from this court and promptly resolve his status by either
(1) ensuring a corrected certificate of appeal is transmitted
from the trial court or (2) filing a proper request to with-
draw as counsel in this court. See State v. Parnell, supra.Having failed to do so, McAtee technically remains counsel
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Cite as 31 Neb. App. 657of record on appeal, and, generally speaking, claims of ineffec-
tive assist­ance of counsel raised on direct appeal by the same
counsel who represented the defendant at trial are premature
and will not be addressed on direct appeal. Id. However,
the Parnell court carved out an exception that is controlling
in the present case.
Despite the fact that the appellant in Parnell was “techni-
cally” represented by trial counsel on appeal, the court went
on to address the merits of the ineffectiveness claims because
it was apparent that (1) the appellant was aware of his claims
and capable of raising them through his new counsel on
appeal and (2) trial counsel was not involved in the appeal.
294 Neb. at 583, 883 N.W.2d at 675. The court concluded
that delaying review of the appellant’s claims on direct appeal
would not serve the purpose of postconviction review under
those circumstances.
Although the Parnell court issued an order to show cause
regarding trial counsel’s involvement in the appeal prior to
addressing the merits, we find that unnecessary in the present
case. All indications are that Garcia-Contreras is being exclu-
sively represented by the public defender’s office on appeal.
The public defender’s office was appointed the day immedi-
ately after perfection of the appeal, and McAtee’s name is not
listed on Garcia-Contreras’ appellate brief or reply brief. As
in Parnell, there are no other filings in this court suggesting
that McAtee played any role as counsel for Garcia-Contreras
on appeal. While McAtee initially filed the appeal on Garcia-
Contreras’ behalf, he immediately requested leave to withdraw
as counsel along with Garcia-Contreras’ express consent to that
request. Thereafter, it appears that McAtee attempted and failed
to properly request permission to withdraw in this court. We
find it apparent that McAtee was not substantively involved in
Garcia-Contreras’ appeal. Moreover, Garcia-Contreras’ brief on
appeal demonstrates that he is aware of and capable of raising
his claims through new counsel on appeal.
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Cite as 31 Neb. App. 657Altogether, we reiterate the admonition by the court in
State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016), that
the appellate court rules shall be strictly followed. We like-
wise urge attorneys to be mindful of notices from the appel-
late courts and to take prompt actions to resolve any apparent
concerns. However, we also conclude that, like in Parnell,
delaying review of the ineffectiveness claims at hand under
the circumstances of this case would not serve the purpose
of postconviction review. Therefore, we turn to the merits of
those claims.
[7-9] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show
that counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defense. State v.
Parnell, supra. 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. Id. 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.Garcia-Contreras first claims that trial counsel was inef-
fective for failing to preserve a ruling on a pretrial motion in
a manner that “directly harmed [Garcia-Contreras’] right to a
speedy trial” under Neb. Rev. Stat. § 29-1207 (Reissue 2016).
Brief for appellant at 21-22. Specifically, Garcia-Contreras
points to a motion for deposition filed by trial counsel on March
2, 2020, which motion operated to toll the statutory speedy
trial clock until its final disposition under § 29-1207(4)(a).
However, the record is devoid of an order memorializing
whether or when the court ruled on that motion.
On March 4, 2020, the court entered an order setting a
pretrial conference, but there was no mention of a pend-
ing motion for deposition. Thereafter, on May 11, the court
entered an order continuing that pretrial conference on the
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Cite as 31 Neb. App. 657motion of Garcia-Contreras. In that order, the court specifi-
cally noted that Garcia-Contreras’ motion to continue oper-
ated to toll the speedy trial clock under § 29-1207(4)(b), yet
there was again no mention of a pending motion for deposi-
tion or any other speedy trial concerns. There is nothing in
the record before us which would show the district court ever
ruled on that motion for deposition. In any case, even if we
assume that trial counsel may have been ineffective for fail-
ing to secure such a record of that ruling, Garcia-Contreras
cannot show prejudice.
Garcia-Contreras argues that “[b]ut for trial counsel’s inac-
tion in obtaining an order ruling on his initial motion for depo-
sition, [the] speedy trial clock would not have been suspended
until his trial in February 2022.” Brief for appellant at 23. In
other words, if there was a proper record of the court’s ruling
on the motion for deposition, then that motion would not have
tolled the speedy trial clock indefinitely as Garcia-Contreras
claims. This may be true, but it does not create a reasonable
probability of a different outcome. The different outcome con-
templated by Garcia-Contreras’ claim is dismissal of the sec-
ond amended information on speedy trial grounds, and the fact
that a period of time is not excluded for speedy trial purposes
does not, in and of itself, create a reasonable probability of a
speedy trial violation.
Rather, the ultimate question is whether there was a rea-
sonable probability that the charges against Garcia-Contreras
would have been dismissed on speedy trial grounds if coun-
sel had ensured a proper record of the court’s ruling on the
motion for deposition. Yet, Garcia-Contreras “does not argue”
the merits of the speedy trial claim on appeal and points
only to the “lack of reasonable ‘professional norms’ taken by
trial counsel prior to the start of trial to ensure that [Garcia-
Contreras] was brought to trial at a reasonable time.” Brief for
appellant at 22.
Even assuming that trial counsel’s performance was defi-
cient, Garcia-Contreras cannot show prejudice without a
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Cite as 31 Neb. App. 657reasonable probability that but for trial counsel’s failure to
make a record of the order at issue, the record would have
revealed a speedy trial violation. There was no mention of
a speedy trial violation before the district court, and neither
party makes any such argument on appeal. Under these circum-
stances, we conclude that Garcia-Contreras cannot show preju-
dice and that his first ineffectiveness claim is affirmatively
refuted by the record.
Garcia-Contreras next claims that trial counsel was ineffec-
tive for failing to move for a mistrial when Garcia-Contreras
tested positive for COVID-19 and was thus prevented from
appearing in person for the third day of trial. On February 10,
2022, the district court convened for the third and final day
of trial. The State had finished calling witnesses the day prior
but decided to wait until that morning to rest its case. Prior to
resuming trial, the court was informed that Garcia-Contreras
tested positive for COVID-19 and thus could not be transported
from jail.
The court stated on the record that it had discussed the
matter with counsel and proposed one of two options: “the
Court could grant a continuance until such time as . . . Garcia-
Contreras was able to come to court safely. . . . Or the Court
would allow . . . Garcia-Contreras to appear by [videoconfer-
encing] if he chose to do so.” Trial counsel advised the court
that he had conferred with Garcia-Contreras and that Garcia-
Contreras intended to proceed by videoconferencing. The court
then confirmed that the decision to proceed was made freely
and voluntarily through a colloquy with Garcia-Contreras him-
self. Trial resumed, and the State promptly rested its case. Trial
counsel made a motion for directed verdict, which the court
denied, at which point the defense rested and the court heard
closing arguments.
Garcia-Contreras appeared in person for the first 2 days of
trial, during which the entirety of the evidence was adduced.
When Garcia-Contreras tested positive for COVID-19, the
court made clear that it would either continue the matter
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Cite as 31 Neb. App. 657or proceed by videoconferencing at Garcia-Contreras’ election.
Garcia-Contreras elected to proceed by videoconferencing,
and the court confirmed that that decision was made freely
and voluntarily. No further evidence was adduced, and the
matter was submitted after closing arguments. Under the cir-
cumstances of this case, trial counsel’s failure to move for a
mistrial was not deficient performance, and Garcia-Contreras
could not demonstrate prejudice even if it was. Accordingly,
Garcia-Contreras’ second ineffectiveness claim is also affirma-
tively refuted by the record.
CONCLUSION
For the foregoing reasons, we affirm Garcia-Contreras’
convictions and sentences. We further conclude that both of
Garcia-Contreras’ ineffectiveness claims are affirmatively
refuted by the record.
Affirmed.