State v. Cerros ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. CERROS
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.
JOEL A. CERROS, APPELLANT.
Filed November 21, 2023. No. A-22-976.
Appeal from the District Court for Butler County: JAMES C. STECKER, Judge. Affirmed.
Joel A. Cerros, pro se.
Michael T. Hilgers, Attorney General, and Nathan A. Liss for appellee.
RIEDMANN, BISHOP, and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Joel A. Cerros appeals from the order of the Butler County District Court denying his
motion for postconviction relief without an evidentiary hearing. He argues that the district court
erred in rejecting his claims of ineffective assistance of trial counsel due to counsel’s allowing him
to be charged, convicted, and sentenced for manslaughter rather than motor vehicle homicide, and
in failing to object to the manslaughter jury instruction because it did not include “proximate
cause” as an element of the offense or to request a jury instruction on the element of proximate
cause. For the reasons stated herein, we affirm.
STATEMENT OF FACTS
BACKGROUND
Following a traffic accident in June 2020, which led to the death of a motorcyclist, Cerros
was charged with, inter alia, (1) motor vehicle homicide (with driving under the influence (DUI)
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as the underlying unlawful act); (2) DUI; and (3) manslaughter (with reckless driving as the
underlying unlawful act). Following a jury trial, Cerros was convicted of manslaughter, but
acquitted of DUI and motor vehicle homicide. Cerros was subsequently sentenced to 8 to 12 years’
imprisonment.
DIRECT APPEAL
Cerros filed a direct appeal with the assistance of his same counsel and raised three errors
on appeal. He alleged that the district court erred in (1) allowing a law enforcement officer’s
testimony that driving on the wrong side of the road could be a sign of reckless driving; (2)
accepting the jury’s guilty verdict on the manslaughter charge which he claimed was not supported
by the evidence; and (3) failing to instruct the jury on careless driving as a lesser-included offense.
The Nebraska Supreme Court moved the case to its docket and rejected all of Cerros’ assigned
errors. See State v. Cerros, 312 Neb. 230, 978 N.W.2d 162 (2022). The mandate was issued in
September 2022.
CURRENT POSTCONVICTION MOTION
In November 2022, Cerros filed a timely verified motion for postconviction relief alleging
that (1) he was denied his right to effective assistance of counsel, his right to equal protection, and
his right against cruel and unusual punishment due to his conviction and sentencing for
manslaughter rather than motor vehicle homicide; and (2) trial counsel was ineffective for failing
to object to the manslaughter jury instruction, which Cerros claimed was erroneous because it did
not include “proximate cause” as an essential element of the offense.
The district court denied Cerros’ motion for postconviction relief without an evidentiary
hearing. The court found that Cerros’ first claim was without merit because the prosecution has
discretion whether to charge a defendant with manslaughter or motor vehicle homicide. State v.
Roth, 222 Neb. 119, 382 N.W.2d 348 (1986), disapproved on other grounds, State v. Wright, 261
Neb. 277, 622 N.W.2d 676 (2001). The district court further noted that motor vehicle homicide is
not a lesser-included offense of manslaughter, State v. Wright, supra, and that a defendant
convicted of manslaughter for killing another with a motor vehicle must be sentenced under the
manslaughter statute not the motor vehicle homicide statute. State v. Burnett, 254 Neb. 771, 579
N.W.2d 513 (1998).
The district court likewise rejected Cerros’ second claim that his trial counsel was
ineffective for failing to object to the manslaughter jury instruction because it did not include
“proximate cause” as an element of the offense. The district court acknowledged that, although
Cerros correctly pointed out that the word “proximate” was not included in the manslaughter jury
instruction:
[jury] instruction no. 3, count 3 required that “Cerros caused the death of [the victim]
unintentionally while in the commission of an unlawful act.” At the jury instruction
conference, Cerros’ attorney objected to instruction number 3 and submitted his own
proposed instruction. [On direct appeal, the] Supreme Court considered the correctness of
instruction no. 3 and found the instruction was correct as given. Cerros asks for the addition
of the words “proximate cause” when the instruction already required that Cerros “caused”
the death of [the victim].
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Cerros has timely appealed the denial of his motion for postconviction relief without an
evidentiary hearing.
ASSIGNMENTS OF ERROR
Cerros, pro se, assigns as error that the district court erred in: (1) finding that the record
and allegations in his motion for postconviction relief did not show that his rights to effective
assistance of counsel, equal protection of laws, and against cruel and unusual punishment were
violated by the ineffectiveness of his trial counsel in allowing him to be charged, convicted, and
sentenced for manslaughter rather than motor vehicle homicide; and (2) failing to find that Cerros’
trial counsel was ineffective for failing to object to the insufficient manslaughter jury instruction
and failing to request that said jury instruction include instruction on the essential element of
proximate cause.
Before beginning our analysis, to the extent that Cerros is assigning a stand-alone claim
that the nature of the charges and resulting conviction violated his constitutional rights to equal
protection and against cruel and unusual punishment, such claims are procedurally barred because
they were not raised on direct appeal. See State v. Galindo, 315 Neb. 1, 994 N.W.2d 562 (2023)
(motion for postconviction relief cannot be used to secure review of issues that were known to
defendant and which were or could have been litigated on direct appeal). To the extent that Cerros
is claiming his counsel was ineffective for failing to raise these claims, we will address that
contention in connection with the analysis section of this opinion.
STANDARD OF REVIEW
In appeals from postconviction proceedings, an appellate court reviews de novo a
determination that the defendant failed to allege sufficient facts to demonstrate a violation of his
or her constitutional rights or that the record and files affirmatively show that the defendant is
entitled to no relief. State v. Galindo, supra.Whether a claim raised in a postconviction proceeding is procedurally barred is a question
of law which an appellate court reviews independently of the lower court’s ruling. Id.ANALYSIS
GENERAL LEGAL PRINCIPLES
Before addressing Cerros’ specific assignments of error, we briefly review the general legal
principles that govern appeals from the denial of postconviction relief without an evidentiary
hearing.
In Nebraska, postconviction relief is a very narrow category of relief, available only to
remedy prejudicial constitutional violations that render the judgment void or voidable. State v.
Galindo, supra. An evidentiary hearing is not required on a motion for postconviction relief when
(1) the motion does not contain factual allegations which, if proved, constitute an infringement of
the movant’s constitutional rights rendering the judgment void or voidable; (2) the motion alleges
only conclusions of fact or law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief. Id. In addition to the substantive rules governing
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postconviction relief, there are procedural rules which can bar postconviction relief regardless of
the merits of a particular claim. Id.To establish a right to postconviction relief based on a claim of ineffective assistance of
counsel, the defendant has the burden, in accordance with Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) to show that counsel’s performance was deficient; that
is, counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal
law. State v. Ross, 296 Neb. 923, 899 N.W.2d 209 (2017). Next, the defendant must show that
counsel’s deficient performance prejudiced the defense in his or her case. Id. Under the Strickland
v. Washington framework, a court may address the two elements, deficient performance and
prejudice, in either order. Id.FAILURE TO CHALLENGE INFORMATION
Cerros’ first assignment of error is that the district court erred in finding that the record and
allegations in his motion for postconviction relief did not show that his rights to effective assistance
of counsel, equal protection of laws, and against cruel and unusual punishment were violated due
to trial counsel’s ineffectiveness in allowing him to be charged, convicted, and sentenced for
manslaughter rather than motor vehicle homicide. Cerros claims that his conviction and sentencing
pursuant to the manslaughter statute resulted in a more serious felony conviction and harsher
sentence, even though the specific acts for which he was charged also met the elements of motor
vehicle homicide. He contends that by enacting the more specific statute for motor vehicle
homicide, the Nebraska Legislature expressed its intent that offenders who caused deaths
unintentionally while committing an unlawful act involving operation of a motor vehicle should
only be subject to a maximum of 3 years’ imprisonment.
This argument has been addressed by the Nebraska Supreme Court in State v. Wright, 261
Neb. 277, 287-88, 622 N.W.2d 676, 683 (2001). In Wright, the Nebraska Supreme Court rejected
the defendant’s argument that the State should have been required to charge him with motor
vehicle homicide rather than manslaughter, stating:
[The defendant] notes that the specific acts for which he was charged meet the
elements of both motor vehicle homicide and manslaughter. [The defendant] claims that
the motor vehicle homicide statute, § 28-306, is a specific statute which controls over the
general manslaughter statute, § 28-305, and that the prosecutor must, therefore, be limited
to charging motor vehicle homicide. [The defendant] argues that deaths caused
unintentionally while committing an unlawful act involving operation of a motor vehicle
must be prosecuted under the specific statute dealing with motor vehicle homicide rather
than the general manslaughter statute. This argument was rejected by the court in State v.
Roth, 222 Neb. 119, 382 N.W.2d 348 (1986), and we conclude that this portion of Roth
remains good law.
In Roth, the court held that in a situation wherein a set of facts is sufficient to
constitute the violation of one of several crimes, the prosecutor is free to choose under
which crime he or she will seek a conviction, so long as the selection is not deliberately
based upon an unjustifiable standard such as race, religion, or other arbitrary classification.
Similar to the instant case, the defendant in Roth argued that where death is caused by a
motor vehicle, the defendant must be charged with motor vehicle homicide and may not be
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charged with manslaughter. We rejected this argument, noting that “there is nothing in the
legislative history of either § 28-305 or § 28-306 to indicate that the Legislature intended
to bring about the result urged by [the defendant], nor are the statutes repugnant to each
other so as to cause the type of conflict which requires a court to consider that a statute has
been repealed by implication.”
We further note that a defendant convicted of manslaughter for killing another with a motor vehicle
must be sentenced under the manslaughter statute not the motor vehicle homicide statute. State v.
Burnett, 254 Neb. 771, 579 N.W.2d 513 (1998).
Having determined that Cerros’ arguments have previously been considered and rejected
by the Nebraska Supreme Court, his trial counsel was not ineffective in failing to file a motion to
quash based on meritless claims. See State v. Williams, 295 Neb. 575, 889 N.W.2d 99 (2017) (as
matter of law, counsel cannot be ineffective for failing to raise meritless argument). This
assignment of error fails.
In the argument section of his brief, Cerros acknowledges the above-stated authority, but
argues that unlike the instant case, the Nebraska Supreme Court was not presented with the
constitutional challenges he is raising here. That is, he argues that the Nebraska Supreme Court
did not address whether being convicted and sentenced for manslaughter rather than motor vehicle
homicide was a violation of the rights to equal protection and against cruel and unusual
punishment. He argues that his counsel was ineffective for failing to raise these novel legal
theories. However, it is well-settled that “counsel’s failure to raise novel legal theories or
arguments or to make novel constitutional challenges in order to bring a change in existing law
does not constitute deficient performance.” State v. Kipple, 310 Neb. 654, 667, 968 N.W.2d 613,
625 (2022). This principle applies here. Cerros’ argument fails.
JURY INSTRUCTIONS
Cerros’ second assignment of error is that his trial counsel was ineffective in failing to
object to the manslaughter jury instruction or request a jury instruction on the element of proximate
cause.
In an appeal based upon a claim of an erroneous jury instruction, the appellant has the
burden to show that the questioned instruction was prejudicial or otherwise adversely affected a
substantial right of the appellant. State v. Fernandez, 313 Neb. 745, 986 N.W.2d 53 (2023). All
the jury instructions must be read together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by the pleadings and the evidence,
there is no prejudicial error necessitating reversal. Id.As relevant to this appeal, Nebraska’s manslaughter statute provides that “a person
commits manslaughter if he or she . . . causes the death of another unintentionally while in the
commission of an unlawful act.” Neb. Rev. Stat. § 28-305 (Reissue 2016). During the jury
instruction conference, trial counsel objected to the court’s proposed manslaughter instruction
which provided that:
Regarding Count III of the information charging the defendant with manslaughter, the
elements of the State’s case are:
1. That [Cerros] caused the death of [the victim];
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2. That [Cerros] did so while operating a motor vehicle upon the public streets or highways
of the state of Nebraska;
3. That [Cerros] did so unintentionally while in the commission of an unlawful act, to-wit:
reckless driving as defined in Instruction No. 4.
4. That [Cerros] did so on or about June 20, 2020, in Butler County, Nebraska.
Cerros’ trial counsel argued that the underlying unlawful act should be willful reckless
driving, not reckless driving, and that the jury instructions should include the lesser-included
offense of reckless driving. Additionally, Cerros’ trial counsel submitted proposed jury
instructions. The trial court overruled counsel’s objections and rejected the proposed instructions.
See State v. Cerros, 312 Neb. 230, 978 N.W.2d 162 (2022).
In connection with Cerros’ challenges to the proffered jury instructions on direct appeal,
the Nebraska Supreme Court rejected the challenge, and in connection with Cerros’ separate
challenge to the sufficiency of the evidence to support Cerros’ conviction for manslaughter, the
court noted:
The State charged manslaughter based on reckless driving as the unlawful act. The
court’s jury instruction setting forth the elements of manslaughter stated, inter alia, that the
jury must find that Cerros caused the death of the motorcyclist while in the commission of
the unlawful act of reckless driving, and a separate instruction set forth the elements of
reckless driving as being that Cerros drove a vehicle “in such a manner as to indicate an
indifferent or wanton disregard for the safety of persons or property.” The instruction
therefore tracked the statute defining reckless driving and included the mens rea we found
sufficient in [State v.] Carman [, 292 Neb. 207, 872 N.W.2d 559 (2015)].
State v. Cerros, 312 Neb. at 242, 978 N.W.2d at 171 (Emphasis supplied).
Although the Nebraska Supreme Court was not specifically addressing the language in the
instruction governing causation, we likewise recognize that the instruction tracks the statute
governing manslaughter which utilizes the word “causes” rather than “proximately causes” the
death of another unintentionally while in the commission of an unlawful act. See State v. Senn,
295 Neb. 315, 888 N.W.2d 716 (2016) (reiterating that, as general rule, in giving instruction to
jury, it is proper for court to describe elements of offense in language of statute).
Additionally, as the Nebraska Supreme Court held in State v. Pope, 305 Neb. 912, 943
N.W.2d 294 (2020), an instruction on proximate cause is not warranted if there is no dispute as to
the proximate cause of the victim’s death. In the instant case, the record reflects that there was no
dispute as to the cause of the victim’s death. Where, as here, there was no dispute at trial governing
the cause of the victim’s death, we find that the instruction given was a correct statement of the
law. Cerros’ trial counsel could not be ineffective for failing to raise an argument that has no merit.
See State v. Devers, 313 Neb. 866, 986 N.W.2d 747 (2023). This assignment of error fails.
CONCLUSION
Having considered and rejected Cerros’ assigned errors, we affirm the district court’s
denial of his motion for postconviction relief without an evidentiary hearing.
AFFIRMED.
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