State v. Barrera-Garrido, S-16-426
| Decision Date | 12 May 2017 |
| Docket Number | No. S-16-426,S-16-426 |
| Citation | 296 Neb. 647,895 N.W.2d 661 |
| Parties | STATE of Nebraska, appellee, v. Arturo BARRERA-GARRIDO, appellant. |
| Court | Nebraska Supreme Court |
Daniel S. Reeker, of Kendall Law Office, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi, for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
Arturo Barrera-Garrido appeals the order of the district court for Douglas County which overruled his motion for postconviction relief without conducting an evidentiary hearing. We affirm.
In 2014, Barrera-Garrido pled no contest to one count of first degree false imprisonment and one count of use of a deadly weapon, not a firearm, to commit a felony. The State set forth a factual basis in support of the pleas. The State generally asserted that Barrera-Garrido had used a knife and other means to hold his then- girlfriend, M.C., captive after she attempted to leave him "due to some alleged domestic abuse." At the time the pleas were accepted, the State dismissed a third charge, which was for one count of first degree sexual assault.
As context for the crimes, the State explained that M.C.'s sister called police on the morning of February 1, 2014. According to the sister, on the previous night, she and her husband had attempted to help M.C., but Barrera-Garrido displayed a knife and "pulled" M.C. into a bedroom. The sister and her husband then left, hoping their departure would defuse the situation. When the police responded to the call, they found M.C. "in his, meaning [Barrera-Garrido's], embrace and he had a knife displayed as well." The police were able to free M.C. from Barrera-Garrido.
When police interviewed M.C., she said that the previous night, Barrera-Garrido had pulled her into the bedroom, locked the door, and refused to let her leave. She said that throughout the night, Barrera-Garrido had "threatened her several times with a knife, indicating that he would kill her if she left him as well as have her family killed." M.C. further stated that Barrera-Garrido had "hit her several times all over her body and even grabbed her by her throat, squeezing slightly, while he threatened her life" and that "he would take the knife and tap her left shoulder blade with it over and over while he was talking to her."
M.C. initially told police that Barrera-Garrido had asked her to perform oral sex on him, but that when she refused, he "grabbed her by the hair" and forced her to engage in oral sex. She later stated that she had "volunteered" to perform oral sex "thinking that would help her get out of the situation."
After police arrested Barrera-Garrido, they placed him in a cruiser and searched the house for the knife. They did not find the knife in the house, but they later found a knife in the cruiser in the area where Barrera-Garrido had been seated. The State concluded its factual basis by stating that these events had occurred in Douglas County, Nebraska.
The district court found that Barrera-Garrido's pleas had been entered knowingly, understandingly, intelligently, and voluntarily. The court further found that there was a factual basis for the pleas and that proper advisement had been made in regard to the potential for removal from the United States. The court found Barrera-Garrido guilty of false imprisonment in the first degree and use of a deadly weapon, not a firearm, to commit a felony.
On September 18, 2014, the court sentenced Barrera-Garrido to imprisonment for 5 to 5 years for first degree false imprisonment and for 15 to 20 years for use of a deadly weapon. The court ordered the sentences to run consecutively to one another.
On September 14, 2015, Barrera-Garrido filed a motion for postconviction relief. He claimed that his trial counsel provided ineffective assistance in certain respects and that but for such ineffective assistance, he would not have entered his pleas. He claimed that counsel (1) did not adequately explain the charges or the evidence to him, (2) did not "adequately address evidentiary issues" and failed to pursue potential witnesses suggested by him, (3) failed to pursue an affirmative defense based on his assertion that he possessed a knife for the sole purpose of self-defense because M.C.'s family members had threatened him, (4) refused to "fight the charges" and instead coerced him to take a plea agreement he did not want, and (5) did not adequately advise him regarding the consequences of entering pleas and instead advised him that "he should just plead guilty to the charges with no plea agreement." As an additional claim, Barrera-Garrido asserted that the court's order entered after the plea hearing "points out that no plea agreement was entered into in the case."
In an order filed March 29, 2016, the district court overruled Barrera-Garrido's motion for postconviction relief without conducting an evidentiary hearing. The court considered and rejected each of Barrera-Garrido's claims of ineffective assistance of counsel.
The court first addressed Barrera-Garrido's claim that counsel failed to explain the charges and the evidence against him. The court referred to the record of the plea hearing and noted that whether or not counsel had advised him properly, the court itself "fully explained the charges," and that Barrera-Garrido stated he understood the charges. The court also noted that Barrera-Garrido replied in the affirmative when asked whether he had sufficient time to discuss the case with his attorney and whether the attorney had done a good job. The court finally noted that after the State "provided a thorough description" of the factual basis for the charges and the evidence supporting such factual basis, Barrera-Garrido stated that he did not have any questions or concerns for the court. The court concluded that these "unequivocal representations" by Barrera-Garrido at the plea hearing established that he was not entitled to an evidentiary hearing on his claim that counsel failed to adequately explain the charges and evidence against him.
The court then considered together the next three of the five claims set forth above. The court characterized the claims as a claim that "counsel was ineffective in several areas of his investigation of the case, including failing to depose [M.C.], not contacting witnesses he provided to counsel or in pursuing a self-defense claim." The court noted that during the plea hearing, both the State and defense counsel referred to a deposition of M.C. With regard to Barrera-Garrido's other claims, including his reference to the "other witnesses" that counsel allegedly failed to pursue, the court determined that Barrera-Garrido "failed to set forth enough facts, such as the name[s] of the witnesses or what exculpatory evidence would have been found had such further investigation been pursued." The court concluded that these claims did not warrant an evidentiary hearing.
Finally, the court addressed Barrera-Garrido's claim that counsel coerced him to enter pleas and did not pursue plea negotiations. The court noted that the record refuted this allegation, because the court stated at the plea hearing that the State would request that the sexual assault charge be dismissed pursuant to a plea agreement negotiated by defense counsel and the county attorney. The court concluded that this claim did not warrant an evidentiary hearing.
Barrera-Garrido appeals the district court's order which overruled his motion for postconviction relief without conducting an evidentiary hearing.
Barrera-Garrido claims that the district court erred when it overruled his motion for postconviction relief and denied his request for an evidentiary hearing on his claims of ineffective assistance of counsel.
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. Robertson , 294 Neb. 29, 881 N.W.2d 864 (2016).
We begin by setting forth standards relating to our review of the district court's order which overruled Barrera-Garrido's motion for postconviction relief.
Barrera-Garrido makes various postconviction claims of ineffective assistance of counsel in connection with the entry of his pleas. The district court overruled Barrera-Garrido's motion for postconviction relief without conducting an evidentiary hearing.
To establish a right to postconviction relief because of counsel's ineffective assistance, 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. Next, the defendant must show that counsel's deficient performance prejudiced the defense in his or her case.
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. State v. Ely , 295 Neb. 607, 889 N.W.2d 377 (2017).
When a conviction is based upon a guilty or no contest plea, the prejudice requirement for an ineffective assistance of counsel claim is satisfied if the defendant shows a reasonable probability that but for the errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty or no contest. See State v. Armendariz , 289 Neb. 896, 857 N.W.2d 775 (2015).
When a district court denies postconviction relief without conducting an evidentiary hearing, an appellate court must determine whether the petitioner has alleged facts that would support a claim of ineffective assistance of counse...
To continue reading
Request your trial
-
State v. Haynes
...1029, 145 L.Ed. 2d 985 (2000).29 See State v. Yos-Chiguil, supra note 15.30 Id. at 632, 798 N.W.2d at 844.31 See State v. Barrera-Garrido, 296 Neb. 647, 895 N.W.2d 661 (2017).32 State v. Start, supra note 14. See, also, State v. Russell, supra note 14; State v. Wiemer, supra note 14.33 See ......
-
State v. Valentine, A-18-978.
...errors of counsel, the defendant would have insisted on going to trial rather than pleading guilty or no contest. State v. Barrera-Garrido, 296 Neb. 647, 895 N.W.2d 661 (2017).(a) Failure to Provide Discovery and Investigative Reportsand/or Explain State's Evidence or Possible Defenses Vale......
-
State v. St. Louis
...present objective evidence showing a reasonable probability that he or she would have insisted on going to trial. State v. Barrera-Garrido, 296 Neb. 647, 895 N.W.2d 661 (2017). St. Louis argues that he would have insisted on going to trial if his trial counsel had informed of the lack of kn......
-
State v. Martin
...plea hearing refute his allegations that his trial counsel neglected to contact witnesses at his request. See State v. Barrera-Garrido, 296 Neb. 647, 895 N.W.2d 661 (2017) (allegations of ineffective assistance which are affirmatively refuted by defendant's assurances at a plea hearing do n......