State v. Benito Ya

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. BENITO YA
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.
MARTIN BENITO YA, APPELLANT.
Filed November 9, 2021. No. A-21-518.
Appeal from the District Court for Dodge County: GEOFFREY C. HALL, Judge. Affirmed.
Richard Register, for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.
RIEDMANN, BISHOP, and ARTERBURN, Judges.
ARTERBURN, Judge.
INTRODUCTION
Martin Benito Ya appeals from his plea-based convictions in the district court for Dodge
County for first degree sexual assault of a child and incest. On appeal, Benito Ya alleges that the
district court failed to preserve an accurate record of the proceedings, erred by not ensuring he
understood the proceedings, and imposed excessive sentences. For the reasons set forth herein, we
affirm.
BACKGROUND
On February 17, 2021, the State charged Benito Ya by information with two counts of first
degree sexual assault of a child, two counts of incest, and two counts of child abuse. Pursuant to a
plea agreement, the State amended the information to charge Benito Ya with one count of first
degree sexual assault of a child, a Class IB felony, pursuant to Neb. Rev. Stat. § 28-319.01 (Reissue
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2016), and one count of incest, a Class IIA felony, pursuant to Neb. Rev. Stat. § 28-703 (Reissue
2016). Benito Ya pled no contest to the charges contained in the amended information.
Benito Ya does not read, write, or speak English. He speaks K’iche’, a Mayan language.
He was appointed an interpreter to assist him during the court proceedings; however, there is no
court certification for the K’iche’ language. At the initial hearing before the district court, Benito
Ya’s counsel informed the court that there would be some translation issues because Benito Ya
could not read the rights or advisories in his native language. However, his counsel also stated that
“[t]he Court should be informed that we’ve had multiple communications with this interpreter and
[Benito Ya] and explained various things. He does appear to understand and respond appropriately
to this language as it is being translated.”
At that same hearing, the district court informed Benito Ya that first degree sexual assault
of a child is a Class IB felony. The court at that time incorrectly advised Benito Ya that the
minimum sentence is 20 years’ imprisonment, but accurately identified the maximum sentence as
being life imprisonment. See State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015). Initially,
Benito Ya indicated that he did not understand the court’s sentencing advisement. The district
court explained the sentencing advisement again, and Benito Ya then informed the court that he
now understood the advisement. The district court then advised Benito Ya that the charge of incest
is a Class IIA felony, which carries a minimum sentence of no imprisonment and a maximum
sentence of 20 years’ imprisonment. After the district court advised Benito Ya about the possible
sentences and his rights, Benito Ya’s counsel informed the court:
I have spoken with my client [and] with the interpreter on multiple occasions. We have
reviewed these rights with him. He’s had ample opportunity to ask follow-up questions to
see if he would understand those rights. And when he did not understand a technical word,
other words were substitute[d] with equivalent meaning. For example, cross-examination
was used by me in the terms of ask questions of their witness. This has happened on
multiple occasions. All his questions have been answered ad infinitum.
The district court continued to pursue whether Benito Ya understood what was happening by
asking him if there were any words or phrases that he did not understand. Benito Ya, through his
interpreter, affirmatively indicated that he understood. When Benito Ya’s counsel was asked
whether he believed that Benito Ya fully understood his rights and the consequences of waiving
those rights, his counsel responded in the affirmative. Counsel specifically stated that there was no
reason the court should not accept Benito Ya’s pleas.
The factual basis provided by the State revealed that between November and December
2018, Benito Ya had penile-vaginal sexual intercourse with his biological daughter, D.B.T., who
was 15 years old. D.B.T. became pregnant with Benito Ya’s child. The child was born in May
2019 and had a type of anemia, normally associated with children from incestuous relationships.
A DNA paternity test was conducted and confirmed that Benito Ya is both the biological father
and biological grandfather of D.B.T.’s child.
The court found that Benito Ya fully understood his rights, that he freely and voluntarily
waived them, and that he fully understood the nature of the charges brought against him and the
penalties that can be imposed. The court further found that Benito Ya’s pleas were made freely,
voluntarily, knowingly, and intelligently. The court accepted Benito Ya’s pleas of no contest and
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adjudged him guilty of first degree sexual assault of a child and incest. The court then ordered that
a presentence investigation be conducted.
The presentence investigation report (PSR) revealed that Benito Ya scored in the high risk
range to reoffend according to the Level of Service Case Management. Benito Ya was 44 years
old at the time of sentencing and was unemployed. The probation officer who conducted the
investigation noted repeatedly that in the opinion of the interpreter and in his opinion, Benito Ya
was often evasive in his answers. At other times he refused to cooperate and answer questions.
Benito Ya, a citizen of Guatemala, was determined to be an undocumented immigrant. Benito Ya
had minimal criminal history which included a charge of contempt of court in 2006 in Florida. His
record indicated that he was also deported from the United States in 2018, however, he indicated
that he left the United States on his own. D.B.T. completed a victim impact statement, which was
included within the PSR. She indicated she had come to the United States with her father in 2018.
She asserted that Benito Ya raped her multiple times while he was drunk. In addition, she stated
that Benito Ya attempted to strangle her. She stated that Benito Ya had previously abused her
psychologically, emotionally, and verbally. Benito Ya expressed to the probation officer that he
believed that D.B.T. had sex with him of her own free will. Benito Ya explained to the probation
officer that “we do not understand his culture” inferring that his acts were not prohibited in his
culture. However, he denied that he or anyone else in his family had subjected his female relatives
to similar sexual abuse.
At the sentencing hearing, the district court reiterated the possible sentence Benito Ya faced
on the charge of incest and partially corrected what the possible sentence was on the charge of first
degree sexual assault of a child. Specifically, the court still advised Benito Ya that the penalty on
that charge was 20 years’ to life imprisonment, but added that the statute did require that a 15-year
mandatory minimum sentence be imposed on that charge. Benito Ya informed the court he
understood the revision to the court’s sentencing advisement as well as the court’s reiteration of
the penalty for incest. Benito Ya’s counsel informed the court that he (through the interpreter), had
explained to Benito Ya that he could potentially withdraw his plea based on the prior advisement
not being complete, but that Benito Ya “has decided that it is still in his best interests to accept the
plea bargain as previously pled to even with the correction.” On appeal, Benito Ya does not assign
error to the court’s advisement as corrected. While we note that the proper advisement would have
been simply that the minimum term of imprisonment on count one is a mandatory minimum of 15
years, we find no prejudice to Benito Ya or plain error by virtue of the court’s advisement. See
State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).
The State asked the district court to impose a lengthy prison sentence because the offenses
involved Benito Ya’s minor daughter. The State explained that Benito Ya raped and violated his
daughter repeatedly. In addition, he impregnated her and the child was born with a blood disorder.
The State noted that Benito Ya abused D.B.T. emotionally, physically, and sexually. According to
the PSR, Benito Ya was considered a high risk to reoffend. The State also argued that Benito Ya
was uncooperative during the presentence investigation and he continued to blame D.B.T.
Benito Ya’s counsel argued, primarily, that there was a difference between Benito Ya’s
culture and American culture. He noted that there was a significant difference in the age of consent
and issues regarding sexuality. He stated that it took multiple conversations for Benito Ya to realize
that his relationship with his daughter was unlawful and forbidden. Benito Ya’s counsel also
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explained that although Benito Ya may have seemed as if he was not cooperating during the
presentence investigation, it was more likely that Benito Ya did not understand what was
happening.
Benito Ya also addressed the court during the sentencing hearing. He stated that he knew
what he did was bad. He also asked for an opportunity to be allowed to remain in the United States
so that he can work. He also reiterated that he “will not do this, again.”
Prior to imposing a sentence, the court expressed its concerns about multiple issues that
were included in the PSR. The district court was concerned that Benito Ya believed D.B.T.
consented to the sexual relationship with Benito Ya. The court then stated that the crimes involved
“depraved and despicable conduct by [Benito Ya] towards [his] own daughter.” Then the district
court explained that it was “not aware of any nationality, or culture, or nation that condones this
type of conduct. It is disgusting and evil. . . . Now, in her teenage years, she must raise a child on
her own without appropriate support, all because of your criminal and despicable actions.” The
district court also observed that the actions toward D.B.T. are “so wrong, they are almost beyond
human comprehension and they are offensive to this Court, and the citizens of Dodge County, and
the citizens of the State of Nebraska.”
The district court specifically indicated that it had considered the nature and circumstances
of the crime and the history, character, and condition of Benito Ya. The district court explained
that it considered the PSR and all statements received in the PSR. As to Benito Ya’s conviction
for first degree sexual assault of a child, the district court sentenced Benito Ya to 75 to 85 years’
imprisonment, including a mandatory minimum 15-year sentence. As to his conviction for incest,
Benito Ya was sentenced to 18 to 20 years’ imprisonment. These sentences were ordered to be
served consecutively.
Benito Ya appeals to this court.
ASSIGNMENTS OF ERROR
Consolidated and restated, Benito Ya assigns and argues that the district court erred in not
assuring there was proper translation of the proceedings such that Benito Ya could understand the
proceedings, and in failing to preserve the record in the original language spoken for what was
said during the proceedings. Benito Ya also assigns and argues that the district court imposed
excessive sentences. Benito Ya assigns but does not argue that the district court erred by accepting
his plea as having been entered knowingly, voluntarily, and intelligently made. This assignment
of error will not be considered. To be considered by an appellate court, the party asserting the
alleged error must both specifically assign and specifically argue it in the party’s initial brief.
Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).
STANDARD OF REVIEW
Rulings regarding the conduct of fair and impartial hearings rests with the trial court, and
its rulings are reviewed for an abuse of discretion. State v. Sellers, 279 Neb. 220, 777 N.W.2d 779(2010).
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020). An
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abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.ANALYSIS
Translation of Proceedings/Failure to Preserve Record.
Benito Ya argues that the district court erred in not assuring there was a proper translation
of the proceedings for him. However, Benito Ya made no objection during the proceedings with
respect to the interpreter and the translation given to him. In fact, Benito Ya, both personally and
through counsel, repeatedly represented that he understood the proceedings throughout the course
of the plea hearing and sentencing. Having made no pertinent and timely objections during those
hearings, his claim on appeal with respect to the translation services provided by the interpreter is
waived and is not preserved for appellate review. Similarly, to the extent that he argues that the
interpreter was unqualified since she was not certified, he has waived any error by not objecting
to her services before the district court. See State v. Garcia, 27 Neb. App. 705, 936 N.W.2d 1(2019). See, also, State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018) (failure to make timely
objection waives right to assert prejudicial error on appeal); State v. Pereira, 284 Neb. 982, 824
N.W.2d 706 (2013) (generally, where no objection is made at sentencing hearing when defendant
is provided opportunity to do so, any claimed error is waived and is not preserved for appellate
review). We note that pursuant to Neb. Rev. Stat. § 25-2405 (Reissue 2016), uncertified
interpreters are to be administered an oath at any hearing in which they provide interpretation
services. Our record does not reveal whether such an oath was administered at the plea hearing or
sentencing. However, even if no oath was administered, Benito Ya made no objection to the
hearings moving forward without such an oath. Accordingly, we find that Benito Ya’s assignment
of error regarding the provision of interpretation services to be waived.
Benito Ya further argues that the district court erred by failing to preserve what was said
during the court proceedings in the original language it was said in, in order to ensure the accuracy
of the translations provided to Benito Ya and to the court. Arguably, Benito Ya has also waived
this claimed error. Our record demonstrates no request by Benito Ya that a record be made of the
actual exchange in K’iche’, nor does he explain how the court reporter is supposed to make a
verbatim record of a language that he or she does not understand. However, since the record
complained of has been produced following the proceedings, we will address this aspect of his
assigned error.
Benito Ya cites to no case law or other authority for the proposition that a court is required
to preserve the record as he suggests. The Nebraska Supreme Court has previously explained that
there is no constitutional right to a “flawless” interpretation. State v. Martinez, 306 Neb. 516, 528,
946 N.W.2d 445, 457 (2020). Minor or isolated inaccuracies, omissions, interruptions, or other
defects in translation are inevitable and do not warrant relief where the translation is on the whole
reasonably timely, complete, and accurate, and the defects do not render the proceeding
fundamentally unfair. Id.Neb. Rev. Stat. § 25-2401 et. seq. (Reissue 2016) addresses the provision of interpretation
services, the qualifications required for interpreters and safeguards the court should utilize to
ensure accurate interpretation. In practice, interpreters’ translation of English language statements
to a litigant in a language they understand are not audible to the court reporter or others in the
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courtroom. If Benito Ya was not able to understand what the interpreter was translating for him, it
was incumbent upon him to inform the interpreter or counsel of his lack of understanding. Our
record displays occasions where this happened. The hearing was paused so as to allow the
interpreter to clarify what the court was saying after inquiries were made. Moreover, the record
demonstrates that the interpretation given to Benito Ya was understood by him. He appeared to
understand the questions asked of him and responded appropriately. Benito Ya’s counsel indicated
that Benito Ya understood what occurred and had answered all of his questions. Moreover, Benito
Ya fails to indicate any inaccuracies contained within the record. Rather, he merely questions
whether the record was accurate. Accordingly, based on the record before us, we find this error to
be without merit.
Excessive Sentence.
In his brief on appeal, Benito Ya argues that the district court abused its discretion in
imposing an excessive sentence. Specifically, Benito Ya argues that the district court imposed an
excessive sentence because it was prejudiced against him and relied on its personal bias in
sentencing him. In addition, Benito Ya argues that the court failed to consider his social and
cultural background prior to imposing the sentences.
When imposing a sentence, a sentencing judge should customarily consider the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7)
the nature of the offense and (8) the amount of violence involved in the commission of the crime.
State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017). However, the sentencing court is not limited
to any mathematically applied set of factors. Id. The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding the defendant’s life. Id.First degree sexual assault of a child is a Class IB felony, punishable by a mandatory
minimum sentence of 15 years and a maximum of life imprisonment. § 28-319.01. Incest with a
person who is under 18 years of age is a Class IIA felony, punishable by between 0 and 20 years.
See § 28-703. The district court sentenced Benito Ya to 75 to 85 years’ imprisonment on his
conviction for first degree sexual assault of a child and to 18 to 20 years’ imprisonment on his
conviction for incest. Benito Ya concedes that his sentences are within the statutory limits. Because
Benito Ya’s sentences fall within the statutorily provided range, we review the sentences imposed
only for an abuse of discretion. State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
Benito Ya argues that the district court abused its discretion because it did not consider
Benito Ya’s cultural and social background prior to sentencing. He also argues that the district
court’s comments prior to sentencing show that it relied on personal bias or prejudice in
determining his sentences. We find no abuse of discretion in the sentences imposed.
Benito Ya made similar statements to the probation officer as were argued by counsel at
sentencing. He commented to the probation officer that “we” do not understand his culture,
implying that females, in his culture, are routinely subjected to unwanted intercourse with their
fathers. However, he acknowledged that his female relatives were not subjected to such abuse.
Moreover, D.B.T., in her statement provided to the probation officer, talked of the nightmare she
suffered through and the shame she now carries. Benito Ya also expressed his belief that his
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daughter had freely consented to having sexual intercourse with him. In contrast, D.B.T. talked of
the pattern of ongoing verbal, emotional, physical, and sexual abuse she had been subjected to.
The district court noted that it had reviewed the PSR which contained information regarding Benito
Ya’s culture and, in fact, explicitly stated that it had considered Benito Ya’s cultural background.
Given the court’s sentencing decision, however, it clearly found that Benito Ya’s argument
regarding his culture provided little mitigation for his abusive behavior which included physical
and forcible sexual assault. We find that the court did not abuse its discretion in this regard.
Moreover, we are not persuaded by Benito Ya’s argument that the district court relied on
personal bias or prejudice in sentencing Benito Ya. The court characterized Benito Ya’s criminal
acts as “depraved and despicable.” We find no inaccuracy in the court’s description. While the
court stated that it was unaware of any culture which “condones this kind of conduct,” we cannot
find that this statement indicates any type of racial or cultural animus. The court had before it
conflicting statements regarding the acceptability of such behavior in Benito Ya’s cultural
background and chose to credit the evidence that such behavior is not common or acceptable. The
probation officer noted that Benito Ya gave inconsistent and evasive answers during the course of
the interview he conducted with him during the preparation of the PSR. For example, Benito Ya
initially contended that he had only been in the United States since 2018. However, when
confronted with his 2006 conviction in Florida and the record of his deportation in 2018, he
acknowledged that he had been in this country for an extended period previously, though he
continued to maintain that he voluntarily left the United States in 2018 prior to reentering, this
time bringing D.B.T. with him. Based on the totality of the record, we find no basis to Benito Ya’s
allegation that the sentences were motivated by bias or prejudice.
Upon our review, we cannot find that the district court abused its discretion in sentencing
Benito Ya to an aggregate sentence of 93 to 105 years’ imprisonment. Benito Ya’s crimes were
serious, violent, and ongoing. Testing revealed him to be at high risk to commit further offenses
involving sexual assault. There is nothing in the record to suggest that the district court failed to
consider the relevant statutory factors. Instead, the record reflects that the court considered all the
facts and circumstances surrounding Benito Ya’s life and made a subjective judgment. See State
v. Stabler, 305 Neb. 415, 940 N.W.2d 572 (2020). The sentences are within statutory limits and
are supported by the serious nature of the offenses.
CONCLUSION
We find no abuse of discretion with respect to the preservation of the record. We further
find no abuse of discretion in the sentences imposed. Accordingly, we affirm.
AFFIRMED.
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