State v. Merheb

Nebraska Advance Sheets
STATE v. MERHEB 83
Cite as 290 Neb. 83
Elizabeth’s recounting of the events at trial differed some-
what from her statements to Warner, and her statements to
Warner themselves were not identical. This was a matter that
the jury could consider when weighing Elizabeth’s testimony
and credibility, but it is not a matter for us. Our question is
only whether a reasonable trier of fact could find the essen-
tial elements of the crime beyond a reasonable doubt.30 The
credibility and weight of witness testimony is the province
of the jury, and we will not reassess credibility on appel-
late review.31
CONCLUSION
We conclude that the out-of-court statements Oseka and
Guidebeck testified about were excited utterances, and there-
fore admissible despite their hearsay status. And we conclude
that the evidence is sufficient to support Hale’s conviction for
murder in the first degree.
Affirmed.
Heavican, C.J., participating on briefs.
30
See State v. Matit, supra note 4.
31
See, State v. Tolbert, 288 Neb. 732, 851 N.W.2d 74 (2014); State v. Huff,
282 Neb. 78, 802 N.W.2d 77 (2011).
State of Nebraska, appellee, v.
Ramez Merheb, appellant.
___ N.W.2d ___
Filed February 6, 2015. No. S-14-315.
1. Appeal and Error. To the extent issues of law are presented, an appellate court
has an obligation to reach independent conclusions irrespective of the determina-
tions made by the court below.
2. Constitutional Law: Postconviction. A manifest injustice common-law claim
must be founded on a constitutional right that cannot and never could have been
vindicated under the Nebraska Postconviction Act or by any other means.
3. Constitutional Law: Effectiveness of Counsel: Convictions. As a general
proposition, counsel’s advice about collateral matters—those not involving
the direct consequences of a criminal conviction—are irrelevant under the
Sixth Amendment.
Nebraska Advance Sheets
84 290 NEBRASKA REPORTS
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Miller-Lerman, JJ.
Heavican, C.J.
INTRODUCTION
Ramez Merheb filed a verified motion to set aside his
plea. The district court denied the motion. Merheb appeals.
We affirm.
FACTUAL BACKGROUND
On October 6, 2008, Merheb pled guilty to attempted pos-
session of marijuana with intent to deliver. On December 2, he
was sentenced to 1 to 2 years’ imprisonment. No direct appeal
was filed.
On May 22, 2009, Merheb filed a motion for postconvic-
tion relief. In the motion, Merheb alleged that he received
ineffective assistance of counsel when his immigration coun-
sel provided erroneous advice regarding the consequences
of his conviction. Merheb further alleged that he would not
have pled guilty and would have pursed an appeal on the
denial of a motion to suppress in his case had his counsel
acted effectively.
The district court denied Merheb’s motion on June 26,
2009. Merheb appealed to the Nebraska Court of Appeals
on July 7. On December 17, the State filed a suggestion of
mootness, because Merheb had been released from prison
on May 23 and his parole had expired on November 17. The
State argued that because he was no longer under a term of
imprisonment or parole, Merheb had no right to postconvic-
tion relief. The Court of Appeals dismissed Merheb’s appeal
as moot on January 20, 2010. We denied Merheb’s petition for
Nebraska Advance Sheets
STATE v. MERHEB 85
Cite as 290 Neb. 83
further review on March 10, and the mandate was spread by
the district court on March 26.
On March 31, 2010, the U.S. Supreme Court decided
Padilla v. Kentucky.1 In Padilla, the Court held that in order
to comply with Sixth Amendment standards regarding com-
petent representation, counsel must inform a client whether a
plea carries a risk of deportation. On February 20, 2013, the
Court held in Chaidez v. U.S.2 that its decision in Padilla was
a new rule and not retroactive, and that defendants whose con-
victions became final before Padilla could not benefit from
its holding.
On August 16, 2012, Merheb filed a motion to set aside his
plea. He alleged that his immigration counsel was ineffective
in providing “clearly erroneous and unreasonable information
as the immigration consequences of the plea agreement and
resulting conviction.” Merheb further alleged that if not for
the erroneous immigration advice, he would have proceeded to
trial or otherwise preserved his right to appeal the order deny-
ing his motion to suppress, and that the relief was necessary to
correct a manifest injustice.
The district court denied Merheb’s motion, reasoning that
his conviction was final prior to the Court’s decision in
Padilla and that thus, Padilla was inapplicable to Merheb.
The district court further noted that under this court’s deci-
sion in State v. Gonzalez,3 the common-law right to withdraw
a plea after final judgment was narrow. The district court
reasoned that because Merheb’s motion to set aside his plea
was filed more than 2 years after Padilla, it was not timely for
Gonzalez purposes.
Merheb appeals.
ASSIGNMENT OF ERROR
Merheb assigns, restated and consolidated, that the district
court erred in denying his motion to set aside his plea.
1
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
(2010).
2
Chaidez v. U.S., ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).
3
State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013).
Nebraska Advance Sheets
86 290 NEBRASKA REPORTS
STANDARD OF REVIEW
[1] To the extent issues of law are presented, an appellate
court has an obligation to reach independent conclusions irre-
spective of the determinations made by the court below.4
ANALYSIS
On appeal, Merheb assigns a number of errors which can be
consolidated as one: that the district court erred in denying his
motion to set aside his plea.
In his motion, Merheb attempts to set aside his plea on just
one ground—that his immigration counsel was ineffective. He
had previously filed a motion for postconviction relief which
was denied as moot; he makes no argument in this motion that
postconviction relief is currently available to him. Nor does he
argue that he could withdraw his plea due to the failure of the
trial court to inform him of the necessary advisements under
Neb. Rev. Stat. § 29-1819.02 (Reissue 2008). In fact, a review
of the trial record reveals that Merheb was given the necessary
advisements under § 29-1819.02.
[2] Thus, the only avenue Merheb seeks to use here is that
of the “manifest injustice” procedure which this court recog-
nized in State v. Gonzalez.5 A manifest injustice common-law
claim must be founded on a constitutional right that cannot
and never could have been vindicated under the Nebraska
Postconviction Act or by any other means.6 Merheb seeks to
vindicate the constitutional right set forth in Padilla, where the
U.S. Supreme Court held that Sixth Amendment standards of
competent representation require counsel to inform his or her
client whether a plea carries a risk of deportation.7
We assume for the purposes of this appeal that Merheb
could not have vindicated this claimed constitutional right in
a postconviction action, because he was released from prison
and parole before his postconviction claim could be decided
4
State v. Chiroy Osorio, 286 Neb. 384, 837 N.W.2d 66 (2013).
5
State v. Gonzalez, supra note 3.
6
See id.
7
Padilla v. Kentucky, supra note 1.
Nebraska Advance Sheets
STATE v. MERHEB 87
Cite as 290 Neb. 83
on appeal. But we conclude that the district court did not err
in dismissing Merheb’s motion, because Merheb is not entitled
to relief.
[3] As a general proposition, counsel’s advice about col-
lateral matters—those not involving the direct consequences
of a criminal conviction—are irrelevant under the Sixth
Amendment.8 Such an analysis is excluded from a Strickland
v. Washington9 analysis on the ineffectiveness of counsel.10
But in Padilla, the Court concluded that no such distinction
should apply in the case of deportation, because deportation
was “unique”11 in that it was “particularly severe,”12 was “inti-
mately related to the criminal process,”13 and was “nearly an
automatic result”14 of some convictions. Later, in Chaidez, the
Court noted that the rule from Padilla counted as “‘break[ing]
new ground’ or ‘impos[ing] a new obligation’”15 for purposes
of a retroactivity analysis under Teague v. Lane,16 and thus was
not retroactive in its application.
There is no distinction in the application of these principles
based upon whether counsel failed to give any advice regard-
ing immigration consequences or whether counsel instead
gave erroneous advice. As noted by the Seventh Circuit in
Chavarria v. U.S.,17 the Court in neither Padilla nor Chaidez
found any relevant distinction between the two: “There is no
question that the [Chaidez] majority understood that Padilla
announced a new rule for all advice, or lack thereof, with
8
See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011). See,
generally, Chaidez v. U.S., supra note 2.
9
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
10
See, State v. Yos-Chiguil, supra note 8; Chaidez v. U.S., supra note 2.
11
Padilla v. Kentucky, supra note 1, 559 U.S. at 365.
12
Id.
13
Id.
14
Id., 559 U.S. at 366.
15
Chaidez v. U.S., supra note 2, 133 S. Ct. at 1110.
16
Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).
17
Chavarria v. U.S., 739 F.3d 360, 363 (7th Cir. 2014).
Nebraska Advance Sheets
88 290 NEBRASKA REPORTS
respect to the consequences of a criminal conviction for immi-
gration status.”
Thus, prior to the decision in Padilla, whether counsel
informed a defendant of the potential immigration conse-
quences of a conviction was excluded from analysis under
Strickland. And under Chaidez, the right granted in Padilla is
not retroactive. Thus, if a conviction was final as of the date
of the Court’s decision in Padilla, a criminal defendant cannot
benefit from the Padilla holding.
Because Merheb did not appeal from his conviction and
sentence, Merheb’s conviction became final in early January
2009—30 days after his sentence was imposed by the trial
court. Padilla was not decided until March 31, 2010. Thus, the
constitutional right under which Merheb seeks relief is inap-
plicable as a matter of law and the procedure set forth under
Gonzalez is unavailable. Merheb’s argument that the district
court erred in denying his motion to set aside his plea is with-
out merit.
CONCLUSION
The district court’s denial of Merheb’s motion to set aside
his plea is affirmed.
Affirmed.
Cassel, J., not participating.
State of Nebraska, appellee, v.
Trent R. Esch, appellant.
___ N.W.2d ___
Filed February 6, 2015. No. S-14-471.
1. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard 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 elements of the crime beyond a rea-
sonable doubt.