State v. Barrientos, S-92-241
Decision Date | 25 February 1994 |
Docket Number | No. S-92-241,S-92-241 |
Citation | 512 N.W.2d 144,245 Neb. 226 |
Parties | STATE of Nebraska, Appellee, v. Epifanio J. BARRIENTOS, Appellant. |
Court | Nebraska Supreme Court |
Syllabus by the Court
1. Postconviction: Proof. In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or federal Constitution, causing the judgment against the defendant to be void or voidable.
2. Postconviction: Proof: Appeal and Error. A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous.
3. Presentence Reports. A defendant has a qualified right to review his presentence report, and the defendant may, with his attorney, examine the presentence report subject to the court's supervision.
4. Postconviction. An evidentiary hearing may be denied on a motion for postconviction relief when the records and files affirmatively show that the defendant is entitled to no relief.
5. Postconviction: Right to Counsel. Under the Nebraska Postconviction Act, it is within the discretion of the trial court as to whether counsel shall be appointed to represent the defendant.
Brian S. Munnelly and, on brief, Epifanio J. Barrientos, for appellant.
Don Stenberg, Atty. Gen., and Delores Coe-Barbee, for appellee.
The defendant, Epifanio J. Barrientos, appeals from the order of the district court which denied his petition for postconviction relief.
On July 17, 1990, the defendant pled guilty to unlawful possession of cocaine with intent to deliver. He was sentenced on October 15, 1990, to 10 to 12 years' imprisonment. He did not appeal from the conviction and sentence.
On February 28, 1991, the district court denied the defendant's request for reduction of sentence, finding that the request had not been timely filed.
On January 6, 1992, the defendant filed a motion for postconviction relief claiming that he had been sentenced without any meaningful opportunity to review the presentence investigation report and that he had been denied effective assistance of counsel because his trial counsel failed to familiarize himself with the presentence report and failed to make the substance of the report known to the defendant.
After examining the record, the district court found that an evidentiary hearing was not required. Declining to appoint counsel for the defendant, the district court denied the defendant's motion for postconviction relief, finding that the defendant had no constitutional right to personally review the presentence investigation report; that the defendant had never requested to personally review the presentence investigation report prior to sentencing; that the defendant's counsel reviewed the report and discussed its contents with the defendant and the court; that if the court was misinformed regarding the defendant's chemical abuse, the misinformation would not have had any bearing on the length of the defendant's sentence; that it was true that the defendant had committed murder; and that the defendant had received effective assistance of counsel.
The defendant claims the district court erred in (1) holding that the defendant's constitutional rights had not been violated, (2) holding that the defendant had no right to personally review the presentence investigation report, (3) finding that the defendant had not been denied effective assistance of counsel at the sentencing, (4) denying an evidentiary hearing on the defendant's motion for postconviction relief, and (5) denying appointment of counsel on the defendant's motion for postconviction relief.
The defendant's postconviction motion alleged that there was inaccurate information in his presentence investigation report, of which he was unaware at the time of sentencing, as he had not personally reviewed the report. The inaccurate information of which the defendant complains is the following statements in the report: (1) The defendant "emphatically stated [that] he does not have a problem with drugs and/or alcohol," (2) the defendant "did not indicate [that] he had any plans of changing or modifying his cocaine habit," and (3) a codefendant "stated several times that he was scared of [the defendant] because he had heard that [the defendant] has killed people who have snitched on him."
In a motion for postconviction relief, the defendant must allege facts which, if proved, constitute a denial or violation of his or her rights under the Nebraska or federal Constitution, causing the judgment against the defendant to be void or voidable. State v. Keithley, 238 Neb. 966, 473 N.W.2d 129 (1991). A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly erroneous. Id.
The record shows that after the defendant pled guilty, the defendant's attorney, at the request of the defendant, asked for an expedited presentence. The defendant had initially told his attorney that he wanted to be sentenced without the preparation of a presentence report; however, his attorney advised against this as not being in his best interests.
At the sentencing, the defendant's counsel testified that he had reviewed the presentence report and discussed its contents with the defendant. The defendant's counsel attempted to clear up any misinformation about the defendant's drug abuse by telling the district court that the defendant did not have a $200-a-day cocaine habit. The district court gave the defendant the opportunity to make any statement to the court, and the defendant responded by asking the court for mercy. Nothing in the record indicates that the defendant ever requested to personally review the presentence report.
In State v. Clear, 236 Neb. 648, 463 N.W.2d 581 (1990), this court held that a defendant has a qualified right to review his presentence report and that the defendant may, with his attorney, examine the presentence report subject to the court's supervision. In that case, the defendant claimed ineffective...
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State v. Williams
...a basis for such relief, and the findings of the district court will not be disturbed unless clearly erroneous. State v. Barrientos, 245 Neb. 226, 512 N.W.2d 144 (1994). Furthermore, a criminal defendant in a postconviction proceeding has the burden of alleging and proving that a claimed er......
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State v. Ryan
...court will not be disturbed unless clearly erroneous. State v. Williams, 247 Neb. 931, 531 N.W.2d 222 (1995); State v. Barrientos, 245 Neb. 226, 512 N.W.2d 144 (1994). In an evidentiary hearing at a bench trial provided by Neb.Rev.Stat. § 29-3001 et seq. (Reissue 1989 & Cum.Supp.1994) for p......
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State v. Ryan
...under the U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. See State v. Barrientos, 245 Neb. 226, 512 N.W.2d 144 (1994). In an appeal based on the claim of an erroneous instruction, the appellant has the burden to show that the questioned ins......
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State v. McGurk
...State v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994); State v. Marchese, 245 Neb. 975, 515 N.W.2d 670 (1994); State v. Barrientos, 245 Neb. 226, 512 N.W.2d 144 (1994). A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district co......