State v. Fierro

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. FIERRO
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.
ALAN A. FIERRO, APPELLANT.
Filed February 9, 2021. No. A-20-496.
Appeal from the District Court for Lancaster County: ANDREW R. JACOBSEN, Judge.
Affirmed.
Joe Nigro, Lancaster County Public Defender, and Paul E. Cooney for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.
Pirtle, Chief Judge, and Moore, and Riedmann, Judges.
Moore, Judge.
I. INTRODUCTION
Alan A. Fierro appeals from his plea-based conviction in the district court for Lancaster
County for Refusal to Submit to a Chemical Test -- 3 prior convictions, a Class IIA felony. Fierro
was sentenced to a term of incarceration of 2 to 4 years. On appeal, Fierro asserts that the sentence
imposed is excessive and that he received ineffective assistance of counsel. For the reasons set
forth herein, we affirm.
II. BACKGROUND
On November 14, 2019, the State filed an information, charging Fierro with Driving Under
the Influence -- 4th offense (Count 1), a Class IIIA felony, and Refusal to Submit to a Chemical
Test -- 3 prior convictions (Count 2), a Class IIA felony.
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On January 29, 2020, pursuant to a plea agreement, Fierro pled no contest to Count 2 and,
in exchange, the State agreed to dismiss Count 1. Fierro was advised by the court of the charge to
which he was pleading no contest, the possible penalties, and the constitutional rights he was
waiving by entering his plea, which Fierro stated he understood. Fierro stated that other than the
plea agreement, he was not threatened or promised anything in order to get him to waive his rights
and enter a no contest plea, nor was he promised a specific sentence. Fierro also acknowledged
that he understood the district court would determine the appropriate sentence, within the limits of
the statute. Fierro stated he was entering his plea and waiving his rights freely and voluntarily.
The following factual basis was provided to support Fierro’s plea:
On or about July 4th, 2019. . . a Game and Parks officer was on patrol at Branched
Oak State Recreation Area in Lancaster County, when at approximately 10 o’clock p.m.,
he observed a vehicle, a dark GMC Yukon, make a left-hand turn from the campground
entrance onto West Branched Oak Road. That vehicle pulled out in front of another vehicle
that was travelling west, forcing that vehicle to slow abruptly.
The Yukon, then, pulled over of its own volition to the side of the road and stopped.
The conservation officer pulled in behind the driver to see if he needed assistance, and then
he had contact with the driver, who was identified as Alan Fierro.
Upon contact, he could smell the odor of alcoholic beverage coming from inside
the vehicle. Mr. Fierro’s eyes appeared to be bloodshot and watery. He admitted to
consuming alcoholic beverages prior to speaking with the officer, and he had slurred
speech at that time.
As he exited his vehicle, he appeared to be unsteady on his feet. The odor of
alcoholic beverage continued after he entered the officer’s vehicle. Horizontal gaze
nystagmus was conducted, and all six clues were observed. Due to safety concerns in the
area, the other standardized field sobriety tests were not conducted.
Mr. Fierro indicated that he knew that he would not pass the breath test and
ultimately refused to submit to a preliminary breath test. He was subsequently placed under
arrest for driving under the influence, where he was advised by reading a post-arrest
chemical test advisement -- or having a post-arrest chemical test advisement form read to
him. He ultimately refused to provide a breath sample on the DataMaster. All these events
occurred at Lancaster County, Nebraska.
The court then found beyond a reasonable doubt that Fierro understood the nature of the
charges and possible sentences, that his plea was made freely, knowingly, intelligently, and
voluntarily, and that the factual basis was sufficient to support Fierro’s plea. The court accepted
Fierro’s plea of no contest. The court then ordered a presentence investigation (PSI).
Fierro was sentenced on June 12, 2020. The district court proceeded with an enhancement
hearing, where the State offered exhibits of Fierro’s three prior convictions, which were received
without objection. The district court reviewed the exhibits, found each was proper for
enhancement, and found Fierro guilty of Refusal to Submit to a Chemical Test -- 3 prior
convictions, a Class IIA felony.
During sentencing, defense counsel informed the district court of certain additions and
corrections to the PSI, including that “Mr. Fierro’s currently in intensive outpatient program” and
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that although the probation officer provided an addendum to the PSI stating Fierro was on
probation, Fierro had since been released from probation the previous week. When given the
opportunity to provide further information to the district court, which may be relevant to
sentencing, Fierro declined to do so.
Defense counsel, advocating for the statutory minimum sentence of one year
imprisonment, made the following argument to the district court:
Judge, I do not believe that at the time of this offense Mr. Fierro was yet on
probation, however, he did apparently have a case pending, so that creates a problem for
Mr. Fierro as to what he can do in reference to sentencing, and I’m asking, Judge, that you
sentence Mr. Fierro to the statutory mandatory -- the statutory minimum in this case, which
would be one year, and allow Mr. Fierro a time to self-surrender. That way, Mr. Fierro can
make an application for work release, and he can continue working.
As you know, he has a good job. He’s an electrician apprentice, making $21.00 an
hour. He has a family, children that he is the sole provider for, so I believe that would be a
reasonable sentence and allow Mr. Fierro a time for him to surrender.
Prior to imposing a sentence, the district court stated it had reviewed the PSI and made the
following comments:
As you know, Mr. Fierro, driving under the influence of alcohol is a very dangerous
offense, and repeated violations are also a very dangerous offense to both -- well, to society,
basically. I don’t think that needs much explanation. I do not consider you to be a candidate
for probation, at least on the nature of the offense and the number of times that you have
committed it.
Fierro was sentenced to a term of 2 to 4 years’ imprisonment, along with the statutorily required
15-year license revocation.
Fierro now appeals.
III. ASSIGNMENTS OF ERROR
Fierro assigns that he was denied effective assistance of counsel, specifically arguing that
trial counsel improperly implied ineligibility for probation, failed to introduce evidence regarding
Fierro’s participation in substance abuse treatment, and failed to introduce evidence regarding
mitigating circumstances and factors favoring probation. Fierro also assigns that the district court
abused its discretion in imposing an excessive sentence.
IV. STANDARD OF REVIEW
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. State v. Martinez, 306 Neb. 516, 946 N.W.2d 445 (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. State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
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An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. Id. An 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. State v. Martinez, supra.V. ANALYSIS
1. INEFFECTIVE ASSISTANCE OF COUNSEL
When a defendant’s trial counsel is different from his or her counsel on direct appeal, the
defendant must raise on direct appeal any issue of trial counsel’s ineffective performance which is
known to the defendant or is apparent from the record, otherwise, the issue will be procedurally
barred in a subsequent postconviction proceeding. See State v. Garcia, supra. An ineffective
assistance of counsel claim is raised on direct appeal when the claim alleges deficient performance
with enough particularity for (1) an appellate court to make a determination of whether the claim
can be decided upon the trial record and (2) a district court later reviewing a petition for
postconviction relief to recognize whether the claim was brought before the appellate court. Id.Whether a claim of ineffective assistance of trial counsel can be determined on direct
appeal depends upon the sufficiency of the record to address the claim to determine whether a
defense counsel’s performance was deficient and whether the defendant was prejudiced by the
alleged deficient performance. State v. Thiesen, 306 Neb. 591, 946 N.W.2d 677 (2020). The record
on direct appeal is sufficient if it establishes either that trial counsel’s performance was not
deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions
could not be justified as a part of any plausible trial strategy. Id. When a claim of ineffective
assistance of trial counsel is raised on direct appeal, the appellant is not required to allege
prejudice; however, an appellant must make specific allegations of the conduct that he or she
claims constitutes deficient performance. State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020).
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 his or her
counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020). To show that
counsel’s performance was deficient, a defendant must show that counsel’s performance did not
equal that of a lawyer with ordinary training and skill in criminal law. State v. Anderson, 305 Neb.
978, 943 N.W.2d 690 (2020). To show prejudice in a claim of ineffective assistance of counsel,
the defendant must demonstrate a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different. Id. A reasonable probability
is a probability sufficient to undermine confidence in the outcome. Id.(a) Eligibility for Probation
Although Fierro asserts that his trial counsel implied to the district court that Fierro was
ineligible for a probationary sentence, we find that the record does not support this claim. Defense
counsel never stated Fierro was ineligible for probation; instead he indicated because this offense
was committed while another offense was pending, that could create problems for him in terms of
sentencing. Here, Fierro was convicted of his fourth DUI-related offense in 10 years, which was a
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Class IIA felony. It was likely a strategic decision by trial counsel to recommend the statutory
minimum sentence when probation was unlikely to be imposed.
Further, Fierro is not able to establish that he was prejudiced by trial counsel’s conduct.
The fact that Fierro had three prior convictions for similar conduct, as well as the danger his
conduct posed to the safety of the community, was particularly concerning for the district court.
The district court found that due to the dangerous nature of the offenses and repeated violations,
Fierro was not a candidate for probation. Since the district court refused to follow trial counsel’s
recommendation of 1 year’s imprisonment, which was more serious than a request for probation,
there is no reasonable probability the district court would order a sentence of probation had trial
counsel advocated for it. Therefore, this claim of ineffective assistance of counsel fails.
(b) Evidence of Substance Abuse Treatment
Fierro asserts his trial counsel was deficient by failing to introduce evidence of Fierro’s
participation in substance abuse treatment and his efforts at rehabilitation. While it is true that no
detailed evidence was introduced regarding Fierro’s participation in treatment, trial counsel did
advise the district court of Fierro’s participation in an intensive outpatient program when
discussing changes to the PSI. The PSI also contained a substance abuse evaluation which
recommended that Fierro engage in such a program. Fierro was offered the opportunity to tell the
court anything he wanted it to know before sentence was imposed and again he did not provide
further details regarding his treatment. The record is sufficient to show that trial counsel’s
performance was not deficient in this regard.
Further, Fierro cannot establish that there was a reasonable probability that his sentence
would have been different had further details regarding his treatment been known to the court. As
noted above, the district court was concerned about the serious nature of Fierro’s repeated actions
of driving while intoxicated and found that he was not an appropriate candidate for probation. We
find this claim of ineffective assistance of counsel to be without merit.
(c) Evidence of Mitigating Circumstances
Fierro asserts his trial counsel failed to adequately advocate certain mitigating
circumstances favoring probation during the sentencing hearing; including his age, his decision to
plead no contest, his expression of remorse, his employment history, his efforts towards
rehabilitation, and the excessive hardship a term of imprisonment would cause for his dependents.
However, the record reflects that trial counsel advised the court of Fierro’s participation in a
substance abuse treatment program, Fierro’ current employment as an electrician’s apprentice, and
that Fierro was the sole provider for his children.
The record also reflects that the district court reviewed the contents of the PSI, which
included Fierro’s age (30); the plea agreement in which a second felony offense was dismissed in
exchange for Fierro’s no contest plea to the remaining charge; information regarding his
employment as an electrician’s apprentice earning $21 per hour; his responsibility for one
dependent and the fact his girlfriend was expecting another child in July 2020; his completion of
a substance abuse evaluation; his expected commencement of intensive outpatient treatment,
which involved attendance three times per week; and his expression of feeling bad about the
incident, as it could have resulted in an accident. In addition, at sentencing, Fierro himself
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acknowledged that he had made some “poor choices behind the wheel” that he was not proud of,
and he asked the court to give him an opportunity to turn himself in after his “wife,” who was “due
any day,” delivered their child. All of the mitigating factors noted by Fierro were either presented
to the court at sentencing or included in the PSI. Therefore, Fierro has not shown that his trial
counsel’s performance at the sentencing hearing was deficient nor can Fierro establish that he was
prejudiced in any way. This claim of ineffective assistance of counsel also fails.
2. EXCESSIVE SENTENCE
Fierro’s second assignment of error is that the district court imposed an excessive sentence.
Fierro was convicted of Refusal to Submit to a Chemical Test -- 3 prior convictions, a Class IIA
felony, in violation of Neb. Rev. Stat. §§ 60-6,197 and 60-6,197.03(8) (Reissue 2016). A Class
IIA felony is punishable by a minimum of 1 year’s imprisonment and a maximum of 20 years’
imprisonment. Neb. Rev. Stat. § 28-105 (Reissue 2016). This offense also requires a 15-year
license revocation. Neb. Rev. Stat. § 60-6,197.03(8). Here, Fierro was sentenced to 2 to 4 years’
imprisonment and a 15-year license revocation, which is well within the statutory limits.
Nevertheless, Fierro argues the district court failed to give proper weight to certain sentencing
factors, including his remorse for committing the offense, his willingness to enter a plea, the
hardship a sentence of imprisonment would cause to his dependents, and his rehabilitative efforts.
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019). In determining a
sentence to be imposed, relevant factors customarily considered and applied are 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.
Id. However, the sentencing court is not limited to any mathematically applied set of factors. State
v. Majikian, 303 Neb. 100, 927 N.W.2d 48 (2019). 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.According to the presentence investigation, Fierro was 30 years old at the time of the
investigation. He was unmarried, with an 11-year-old daughter and another child expected to be
born in July 2020. He dropped out of high school after the 11th grade in order to work and support
his daughter, and is currently employed as an electrician’s apprentice earning $21 per hour. The
PSI shows that Fierro’s prior criminal history is extensive. He had two juvenile charges, including
his first DUI charge. His adult convictions include leaving the scene of a property damage accident,
racing on streets, possession of marijuana (less than an ounce) (four times), possession of drug
paraphernalia (four times), liquor in possession of a minor (twice), driving under the influence
(three times), driving under suspension (twice), resisting arrest, open container, unlawful entry
without a park permit, assault -- 3rd degree, and criminal mischief. Fierro scored in the
medium-high risk to reoffend on the overall LS/CMI assessment.
Upon a review of the record, we cannot say that the district court abused its discretion in
imposing a sentence of 2 to 4 years. The district court reviewed the presentence investigation report
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before imposing sentence and found that Fierro was not a suitable candidate for probation. The
decision to impose a sentence of 2 to 4 years is not clearly untenable or unreasonable, nor does the
record reflect it was based on any inappropriate factors.
VI. CONCLUSION
For the foregoing reasons, we conclude that the record refutes Fierro’s allegations that he
received ineffective assistance from his trial counsel and that the district court did not abuse its
discretion in sentencing Fierro to 2 to 4 years’ imprisonment.
AFFIRMED.
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