State v. Diego-Antonio
| Decision Date | 18 December 2018 |
| Docket Number | No. A-17-817.,A-17-817. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. PEDRO DIEGO-ANTONIO, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge. Affirmed.
Pedro Diego-Antonio, pro se.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.
Pedro Diego-Antonio appeals the district court for Douglas County's denial of his motion for postconviction relief without an evidentiary hearing. On appeal, Diego-Antonio contends the district court erred in failing to grant him postconviction relief because his guilty plea was involuntary, his trial and appellate counsel was ineffective, the statute under which he was convicted is unconstitutional, and he was entitled to the appointment of counsel for postconviction proceedings. For the reasons that follow, we affirm the decision of the district court.
On June 22, 2014, Diego-Antonio was driving a motor vehicle near the intersection of 38th and Dodge Streets in Omaha, Nebraska. As Edward Horowitz, M.D., crossed the street in a crosswalk with the correct traffic control signal, Diego-Antonio drove through the intersection. Diego-Antonio hit Horowitz with his automobile, causing Horowitz to become airborne and hit a moving van before landing. Diego-Antonio left the scene but was located a short time later.
Officers who located Diego-Antonio said he exhibited signs of intoxication and impairment. Later testing revealed that Diego-Antonio's blood alcohol content (BAC) was .246. After officers advised Diego-Antonio of his rights, he stated that he was driving the vehicle that struck a person in the crosswalk near the intersection of 38th and Dodge Streets. An autopsy showed that Horowitz died as the result of massive blunt force trauma attributable to the traffic collision.
Diego-Antonio was charged with motor vehicle homicide with prior driving under the influence (DUI) conviction, a Class II felony. At the plea hearing on February 25, 2015, Diego-Antonio stated that he had received a second-grade education in Guatemala, his native home. In his brief, Diego-Antonio stated that Q'anjob'al is his first language and that Spanish is his second language. At all times during both the plea hearing and sentencing, a Spanish interpreter was present for Diego-Antonio.
During the plea hearing, the State offered for enhancement purposes a certified document from the Douglas County Court that showed Diego-Antonio had been convicted of aggravated driving under the influence in 2011 under a City of Omaha ordinance for which he was sentenced to 9 months' probation. He entered a plea of guilty to the current charge, and the court advised him of those rights that he would forfeit by entering a guilty plea. The State provided a sufficient factual basis. The court was satisfied that Diego-Antonio entered his plea freely, knowingly, intelligently, and voluntarily. Thus, the court found Diego-Antonio guilty of motor vehicle homicide and ordered that a presentence investigation be conducted before sentencing.
Sentencing occurred on April 22, 2015. During sentencing, one of Horowitz' brothers read a victim impact statement to the court. Diego-Antonio spoke as well, asking for forgiveness from the court and Horowitz' family. The court found that while Diego-Antonio at times accepted responsibility for his actions, he also placed blame on alcohol and had not changed his behavior after his first DUI conviction. After reviewing the presentence investigation report (PSR) and considering the seriousness of the offense and the possibility of Diego-Antonio's rehabilitation, the court sentenced him to 35 to 40 years' imprisonment and gave him credit for 305 days of time served.
Diego-Antonio appealed, alleging only that his sentence was excessive. Diego-Antonio's counsel was the same at trial and on direct appeal. In response to Diego-Antonio's appeal, the State moved for summary affirmance, which this court granted on September 1, 2015.
On August 1, 2016, Diego-Antonio moved for postconviction relief, requested an evidentiary hearing, and further requested that counsel be appointed to represent him. In his motion for postconviction relief, Diego-Antonio argued first, that his plea was not made freely, knowingly, intelligently, and understandingly due to a conflict between the information and the plea hearing as to whether he was pleading to DUI or motor vehicle homicide; second, that his counsel provided ineffective assistance for myriad reasons; and third, that Neb. Rev. Stat. § 28-306 (Reissue 2016) is unconstitutional as applied to his conviction because his prior 2011 DUI conviction under the Omaha municipal code is not a valid prior conviction.
The district court denied Diego-Antonio's motion for postconviction relief without an evidentiary hearing and without appointing counsel. Although the court examined a few of Diego-Antonio's specific arguments related to ineffective assistance of counsel, it noted that he failed to set forth any facts related to prejudice and that his ineffective assistance of counsel claim therefore warranted dismissal. The district court also found that Diego-Antonio's arguments related to his plea were "simply untrue, inaccurate and . . . not supported by the official court record." Thus, after finding Diego-Antonio presented no justiciable issues for postconviction relief, the district court denied his request for the appointment of counsel and denied his motion for postconviction relief without an evidentiary hearing.
Diego-Antonio now appeals.
Diego-Antonio assigns, restated, that the district court erred in finding no merit in his claims (1) that his guilty plea was involuntary, (2) that his trial and appellate counsel was ineffective, and (3) that § 28-306(3)(c) is unconstitutional, and erred in denying his motion for postconviction relief without an evidentiary hearing or the appointment 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. Collins, 299 Neb. 160, 907 N.W.2d 721 (2018).
Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law. State v. Ross, 296 Neb. 923, 899 N.W.2d 209 (2017). When reviewing a question of law, an appellate court resolves the question independently of the lower court's conclusion. Id.
We review the failure of the district court to provide court-appointed counsel in a postconviction proceeding for an abuse of discretion. State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018).
Postconviction relief is available to a prisoner in custody under sentence who seeks to be released on the ground that there was a denial or infringement of his or her constitutional rights such that the judgment was void or voidable. State v. Vela, 297 Neb. 227, 900 N.W.2d 8 (2017). Thus, 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 U.S. or Nebraska Constitution, causing the judgment against the defendant to be void or voidable. Id.
Relief under the Nebraska Postconviction Act is a very narrow category of relief. State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). In a postconviction proceeding, an evidentiary hearing is not required when (1) the motion does not contain factual allegations which, if proved, constitute an infringement of the movant's constitutional rights; (2) the motion alleges only conclusions of fact or law; or (3) the records and files affirmatively show that the defendant is entitled to no relief. Id.
Notably, a petition for postconviction relief is not merely a second direct appeal. State v. Dubray, 294 Neb. 937, 949, 885 N.W.2d 540, 552 (2016).
In this postconviction appeal, Diego-Antonio first contends that his guilty plea was involuntary, invalid, void, or voidable and obtained in violation of various constitutional protections. Diego-Antonio did not raise these claims in his direct appeal, and he does not phrase this error in terms of ineffective assistance of counsel. The State, like the district court, notes that Diego-Antonio could have, but did not, raise these issues in his direct appeal, which renders them procedurally barred for purposes of the present action. See State v. Dubray, supra. We agree and thus find that the district court did not err when it denied these procedurally barred claims without an evidentiary hearing
The Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e." The right to counsel has been interpreted to include the right to effective counsel. State v. Dubray, supra. Under the standard established by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), claims of ineffective assistance of counsel by criminal defendants are evaluated using a two-prong analysis: first, whether counsel's performance was deficient, and second, whether the deficient performance...
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