State v. Casares
| Citation | 864 N.W.2d 667 |
| Decision Date | 19 June 2015 |
| Docket Number | No. S–14–442,S–14–442 |
| Parties | State of Nebraska, Appellee, v. Adrian M. Casares, Appellant. |
| Court | Supreme Court of Nebraska |
Nancy K. Peterson, Lincoln, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
Syllabus by the Court
1. Effectiveness of Counsel: Records: Appeal and Error.The resolution of an ineffective assistance of counsel claim made on direct appeal turns on the sufficiency of the record.
2. Sentences: Appeal and Error.An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
3. Effectiveness of Counsel: Appeal and Error.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.
4. Effectiveness of Counsel: Proof.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 counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.
5. Effectiveness of Counsel: Records: Appeal and Error.A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. The determining factor is whether the record is sufficient to adequately review the question.
6. Effectiveness of Counsel: Proof: Appeal and Error.When an ineffective assistance of counsel claim is raised in a 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 by trial counsel.
7. Effectiveness of Counsel: Proof: Appeal and Error.General allegations that trial counsel performed deficiently or that trial counsel was ineffective are insufficient to raise an ineffective assistance claim on direct appeal and thereby preserve the issue for later review.
8. Effectiveness of Counsel: Records: Appeal and Error.An ineffective assistance of counsel claim made on direct appeal can be found to be without merit if the record establishes that trial counsel's performance was not deficient or that the appellant could not establish prejudice.
9. Sentences: Evidence.A sentencing court has broad discretion as to the source and type of evidence and information which may be used in determining the kind and extent of the punishment to be imposed, and evidence may be presented as to any matter that the court deems relevant to the sentence.
10. Sentences.When imposing a sentence, a sentencing judge should 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.
11. Sentences: Appeal and Error.Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the 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.
Adrian M. Casares pled no contest to an amended information charging one count of aiding and abetting second degree murder. He was subsequently sentenced to no less than life imprisonment or more than life imprisonment. In this direct appeal, he alleges that his trial counsel was ineffective in various respects and that his sentence was excessive. We affirm his conviction and sentence.
On December 30, 2012, at approximately 4 a.m., a newspaper carrier found the body of Tyler Schoenrock on a gravel road in rural Lancaster County, Nebraska. Schoenrock had been shot twice in the back and once in the head. The resulting investigation identified Casares and Miguel Castillo as suspects.
Casares was originally charged with making terroristic threats, a Class IV felony, and use of a firearm to commit a felony, a Class IC felony.1 The information was later amended to add charges of possession of a firearm by a prohibited person, a Class ID felony, and accessory to a felony, a Class III felony.2
The State later moved to file a second amended information, in which it planned to charge a total of six crimes, including first degree murder, a Class IA felony.3 But before that information was filed, the parties negotiated a plea agreement. Pursuant to the terms of that agreement, Casares entered a plea of no contest to a second amended information charging a single count of aiding and abetting second degree murder, a Class IB felony.4
At the plea hearing, the court had an extended colloquy with Casares discussing his rights, the nature of the charge, and the possible penalty. The factual basis for the plea was set forth in the written plea agreement, which characterized the stated facts as “true and undisputed.” According to the factual statement in the plea agreement, Casares, Castillo, and Schoenrock were all involved with methamphetamine use and distribution. On December 29, 2012, Casares confronted Schoenrock at Schoenrock's residence with a handgun and
accused Schoenrock of being a law enforcement “ ‘snitch.’ ” Casares later left the residence, but in the early morning hours of December 30, he and Castillo returned and picked Schoenrock up in a vehicle which Casares drove. Casares had the handgun with him, and a witness described the handgun and the ammunition it contained with specificity. The handgun and ammunition were eventually determined to have been used to kill Schoenrock. The handgun was stolen, and its owner informed police he noticed it was missing from his truck on December 25, shortly after a visit from Castillo and Casares.
Castillo was arrested soon after Schoenrock's body was discovered. He told police that after they picked Schoenrock up, Casares drove the vehicle out of the city into the country. Castillo stayed in the car while Casares and Schoenrock got out. Castillo told authorities that Casares was responsible for shooting Schoenrock at that location.
Casares was arrested on January 15, 2013, in Texas. At the time of the arrest, he was accompanied by a woman. He denied knowing Castillo well and denied being in Lincoln, Nebraska, when Schoenrock was killed. The woman later told police that she drove Castillo and Casares to her apartment after the shooting and that she went to Omaha, Nebraska, with them later in the day on December 30, 2012. On the way to Omaha, Castillo and Casares discussed disposing of the handgun, which was in a silver lockbox. The woman stated that she eventually buried the lockbox in the backyard of an Omaha residence, and eventually led police to it. Casares' cell phone records showed he was in and around Lincoln on December 29 and 30, and that the cell phone was frequently used for calls and messaging, except from 3:05 a.m. to 4:08 a.m. on December 30, when it was turned off. Casares informed the court at the time he entered his plea that he had no disagreement with the factual basis set forth in the plea agreement.
After accepting the plea, the court ordered a presentence investigation (PSI). After reviewing the results of this investigation and conducting a hearing, the district court sentenced Casares to a term of life-to-life imprisonment. Additional facts relevant to the analysis are included therein.
Casares assigns that his trial counsel was ineffective in (1) failing to take the depositions of certain witnesses, (2) failing to engage in effective advocacy at sentencing, (3) failing to obtain a drug and alcohol evaluation of Casares, (4) failing to arrange for Casares to review discovery, and (5) inducing Casares to enter his plea by promising him he would receive a specific sentence. In addition, Casares assigns that the sentence of life-to-life imprisonment is excessive and was an abuse of the sentencing court's discretion.
The resolution of an ineffective assistance of counsel claim made on direct appeal turns on the sufficiency of the record.5
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.6
Casares is represented in this direct appeal by different counsel than the counsel who represented him at the trial level. 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.7
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,8 the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.9 A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal.10 The determining factor is whether the record is sufficient to adequately review the question.11 When the claim is raised in a 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 by trial counsel.12 General allegations that trial counsel performed deficiently or that trial counsel was ineffective are insufficient to raise an ineffective assistance claim on direct appeal and thereby preserve the issue for later review.13
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