State v. Chairez
| Decision Date | 29 March 2019 |
| Docket Number | No. S-18-646.,S-18-646. |
| Citation | 924 N.W.2d 725,302 Neb. 731 |
| Parties | STATE of Nebraska, Appellee, v. Habacuc Quintero CHAIREZ, Appellant. |
| Court | Nebraska Supreme Court |
Timothy S. Noerrlinger, for appellant.
Douglas J. Peterson, Attorney General, Erin E. Tangeman, Lincoln, and, on brief, Joe Meyer, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Pursuant to a plea agreement with the State, the defendant entered no contest pleas and was subsequently convicted of possession of a firearm by a prohibited person, a Class ID felony, in violation of Neb. Rev. Stat. § 28-1206(3) (Supp. 2017); attempted first degree assault, a Class IIA felony, in violation of Neb. Rev. Stat. §§ 28-201 and 28-308 (Reissue 2016) ; and use of a firearm to commit a felony, a Class IC felony, in violation of Neb. Rev. Stat. § 28-1205(1) (Reissue 2016). The lower court imposed an aggregate sentence of 42 to 55 years in prison. The central issues on appeal are whether the defendant’s sentences were excessive and whether his assistance of trial counsel was ineffective for failing to meet with the defendant with an interpreter present, investigate witnesses and exculpatory evidence, and file a motion to suppress the defendant’s statements to law enforcement officers.
On June 11, 2017, at approximately 12:20 p.m., Habacuc Quintero Chairez, while driving on Interstate 80 in Lancaster County, Nebraska, used a firearm to shoot at another vehicle four times, hitting the targeted vehicle at least twice. The vehicle was occupied by Nicholas Pearson and his 15-year-old son; however, no one was injured. Pearson called the 911 emergency dispatch service and provided an account of the incident, including a description of the vehicle that Chairez was driving.
State troopers located Chairez in his vehicle on Interstate 80, partially blocking one lane of traffic. When the state troopers initiated contact with Chairez, he displayed a handgun outside of the driver’s-side window. He was then ordered out of his vehicle at gunpoint and taken into custody.
Chairez was eventually advised of his Miranda rights and interviewed by a member of the Nebraska State Patrol with the assistance of an interpreter. Chairez admitted to having fired the gun at Pearson’s vehicle, stating that he thought the vehicle was following him. During the interview, he further admitted that he purchased the firearm and acknowledged that he was a convicted felon on federal parole.
Chairez was originally charged with possession of a firearm by a prohibited person under § 28-1206(3), discharge of a firearm near a vehicle under Neb. Rev. Stat. § 28-1212.04 (Reissue 2016), attempted first degree assault under §§ 28-201 and 28-308, and use of a firearm to commit a felony under § 28-1205(1). Pursuant to a plea agreement with the State, Chairez appeared with counsel and entered pleas of no contest to the charges of possession of a firearm by a prohibited person, attempted first degree assault, and use of a firearm to commit a felony. In exchange for the pleas, the State agreed to dismiss the charge of discharge of a firearm near a vehicle. The State also agreed to not file additional charges in the matter or seek any habitual criminal enhancements, which would have exposed Chairez to several significant mandatory minimum sentences if he were convicted.
During Chairez’ plea hearing, the district court judge and Chairez engaged in a thorough colloquy in assessing the validity of his pleas. When questioned by the judge, he admitted, among other things, that (1) he had no difficulty understanding the proceedings before him, (2) he understood that he was waiving his right to present witnesses in his case, (3) his attorney spoke to him and he understood the immigration consequences of his pleas and convictions, (4) his counsel was competent, and (5) his counsel did not refuse or fail to do anything Chairez asked of him throughout his representation during this case.
Although an interpreter was present throughout the proceeding, Chairez chose not to utilize the interpreter at all, immediately answering each question in English when asked in English by the judge. The judge further inquired regarding Chairez’ responding in English without the use of the interpreter. Chairez indicated that when he answered in English, he was doing so because he understood and was comfortable communicating with the judge in English. In an abundance of caution, the judge encouraged Chairez to use the interpreter if he needed to as they continued through the proceedings. Chairez acknowledged the judge’s statement that interpretive service would continue to be available and then continued through the remainder of the proceedings using English.
Based on the evidence presented and the answers provided by Chairez in the assessment of his pleas, the district court found that Chairez had entered his pleas freely, knowingly, voluntarily, and intelligently, and found Chairez guilty beyond a reasonable doubt on all charges in the amended information. After a subsequent sentencing hearing, the court sentenced Chairez to an aggregate sentence of 42 to 55 years in prison, with credit for 368 days served.
Chairez appeals. He is represented by different counsel on appeal.
Chairez assigns that the district court erred in affirming the county court’s excessive sentences. Chairez also assigns on appeal that he received ineffective assistance of trial counsel.
Appellate review of a claim of ineffective assistance of counsel is a mixed question of law and fact.1 When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error.2 With regard to the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland v. Washington ,3 an appellate court reviews such legal determinations independently of the lower court’s decision.4
In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only whether the undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance.5
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.6
We first address Chairez’ arguments that he received ineffective assistance of trial counsel. Chairez argues that his trial counsel was ineffective because counsel failed to (1) utilize an interpreter when meeting with Chairez; (2) investigate, collect evidence from, and meet with Chairez’ wife and mother, who allegedly had digital evidence to corroborate that Chairez had been recently threatened by members of a Mexican drug cartel; and (3) file a motion to suppress Chairez’ statements made to state troopers when he was under the influence of methamphetamine. We find that the record is sufficient on direct appeal to address Chairez’ first two contentions.
However, the record is insufficient to address his third claim.
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, in order to preserve such claim.7 Once raised, the appellate court will determine whether the record on appeal is sufficient to review the merits of the ineffective performance claims.8
We have said that the fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved.9 This is because the trial record reviewed on appeal is generally " ‘devoted to issues of guilt or innocence’ " and does not usually address issues of counsel’s performance.10 The determining factor is whether the record is sufficient to adequately review the question.11 An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing.12
If the record is sufficient to address the ineffective assistance of counsel claim, an appellate court reviews the factual findings of the lower court for clear error.13 With regard to the questions of counsel’s performance or prejudice to the defendant as part of the two-pronged test articulated in Strickland ,14 an appellate court reviews such legal determinations independently of the lower court’s decision.15 To show deficient performance, a defendant must show that counsel’s performance did not equal that of a lawyer with ordinary training and skill in criminal law in the area.16 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.17
First, Chairez argues that his trial counsel was ineffective because he neglected to utilize an interpreter when meeting with Chairez. He contends that although he speaks some English, his native language is Spanish. Chairez further contends that he did not understand many of the legal terms that his trial counsel used during their conferences prior to Chairez’ pleas. In addition, Chairez argues that because of the language barrier, Chairez’ trial counsel failed to comprehend that Chairez was asking him to investigate a potential affirmative defense and Chairez was not properly advised as to the mandatory minimum charges and immigration consequences of his crimes prior to entering his pleas.
These assertions lack merit. During the plea colloquy, Chairez, answering in English, admitted that he had no difficulty understanding the judge or the...
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State v. Morton
...for predicate offenses were very light).36 See, e.g., State v. Becker , 304 Neb. 693, 936 N.W.2d 505 (2019) ; State v. Chairez , 302 Neb. 731, 924 N.W.2d 725 (2019) ; State v. Castaneda , 295 Neb. 547, 889 N.W.2d 87 (2017).37 State v. Morton, supra note 5, 29 Neb. App. at 642, 957 N.W.2d at......
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State v. Morton
...sentences for predicate offenses were very light). [36] See, e.g., State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019); State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019); State v. Castaneda, 295 Neb. 547, 889 N.W.2d 87 (2017). [37] State v. Morton, supra note 5, 29 Neb.App. at 642, 957......
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State v. Mabior
...[68] Brief for appellant at 38 (quoting State v. Thompson, 30 Neb.App. 135, 966 N.W.2d 872 (2021)). [69] See, e.g., State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019) (collecting cases). [70] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [71] State v. Johnson, 3......
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...ineffective performance which is known to the defendant or is apparent from the record, in order to preserve such claim. State v. Chairez, 302 Neb. 731, 924 N.W.2d 725 (2019). Once raised, the appellate court will determine whether the record on appeal is sufficient to review the merits of ......