State v. Gonzalez-Faguaga, S-02-172.

• Decision Date: 06 June 2003
• Docket Number: No. S-02-172.,S-02-172.
• Citation: 662 N.W.2d 581,266 Neb. 72
• Parties: STATE of Nebraska, Appellee, v. Oscar GONZALEZ-FAGUAGA, Appellant.
• Court: Nebraska Supreme Court

662 N.W.2d 581

266 Neb. 72

STATE of Nebraska, Appellee, v. Oscar GONZALEZ-FAGUAGA, Appellant.

No. S-02-172.

Supreme Court of Nebraska.

June 6, 2003.

Rachel A. Daugherty, of Lauritsen, Brownell, Brostrom, Stehlik, Thayer & Myers, Doniphan, for appellant.

Don Stenberg, Attorney General, and Mark D. Raffety for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

In October 2000, Oscar Gonzalez-Faguaga, under a plea agreement, pled no contest to one count of first degree assault. Gonzalez-Faguaga subsequently moved for postconviction relief. The district court denied his motion without an evidentiary hearing. The issue is whether the district court should have held an evidentiary hearing on Gonzalez-Faguaga's claim that his trial counsel was ineffective.

He alleges that his counsel failed to bring to the trial court's attention that the State had breached the plea agreement. Because Gonzalez-Faguaga pled sufficient facts to show ineffective assistance of trial counsel and the record fails to affirmatively show that he is not entitled to relief, we reverse in part, and remand with directions for an evidentiary hearing.

I. BACKGROUND

Gonzalez-Faguaga stabbed Ricardo Ibarra in the chest. The State charged him with first degree assault, use of a deadly weapon in the commission of a felony, and two counts of terroristic threats. Under a plea agreement reached with the State, Gonzalez-Faguaga withdrew his initial not guilty plea and entered a plea of no contest to the first degree assault charge.

At the arraignment in which Gonzalez-Faguaga pled no contest, the court inquired about the terms of the plea agreement. The prosecutor stated that in return for Gonzalez-Faguaga's plea of no contest to the charge of first degree assault, the State would drop the remaining charges. The prosecutor also told the court that if Gonzalez-Faguaga was under a hold by the Immigration and Naturalization Service (INS) at the time of the sentencing, the State would recommend time served; but that if he was not under an INS hold, it would stand silent.

Gonzalez-Faguaga's counsel responded that he was under the impression that the State, regardless of whether there was an INS hold, would recommend time served. The prosecutor then clarified that the State would recommend time served only if there was an INS hold at the time of the sentencing hearing. Gonzalez-Faguaga and his counsel then had an off-the-record discussion, after which his counsel told the court that Gonzalez-Faguaga was willing to proceed on the terms set out by the prosecutor.

After Gonzalez-Faguaga's conversation with his counsel, the court, through an interpreter, told him

Mr. Gonzalez-Faguaga, as I understand the plea agreement that you entered into with the State is that the State agreed to dismiss [the other counts]. The State further agreed at the time of your sentencing if you were convicted of Count I that if you are facing deportation by the Immigration and Naturalization Service at the time of your sentence, the State will ... make a recommendation to the Court you serve a sentence of the time you've spent in jail on this charge until its completion. If you are not facing deportation by the Immigration and Naturalization Service on the date of your sentencing, the State will stand silent at your sentencing and make no recommendation to the Court.

Is that your entire understanding of the plea agreement that you entered into with the State?

Through the interpreter, Gonzalez-Faguaga responded in the affirmative. The trial court then found Gonzalez-Faguaga guilty of first degree assault and sentenced him to serve 10 to 15 years in prison.

Gonzalez-Faguaga filed a direct appeal, during which he was represented by the counsel he had had when he entered his no contest plea. His sole assignment of error in his direct appeal was the excessiveness of the sentence.

After the Nebraska Court of Appeals affirmed his conviction, see State v. Gonzalez-Faguaga, 10 Neb.App. ___ (No. A-00-1306, June 29, 2001), Gonzalez-Faguaga moved to vacate and set aside his conviction. He also requested court-appointed counsel and an interpreter. The district court denied his motions for counsel and an interpreter and determined, without an evidentiary hearing, that he was not entitled to postconviction relief.

II. ASSIGNMENTS OF ERROR

Gonzalez-Faguaga assigns, reordered and restated, that the district court erred in refusing to grant an evidentiary hearing on his claims that his trial counsel was ineffective by (1) not informing the trial court that the prosecution had breached the plea agreement, (2) allowing him to enter a no contest plea when his trial counsel did not know the terms of the plea agreement, (3) advising him to plead no contest when the factual basis to support the conviction was inadequate, (4) advising him to plead no contest when there was a question whether he understood the constitutional right he was waiving as interpreted, (5) advising him to plead no contest when there was a possible self-defense claim, and (6) reciting an incorrect factual narrative at the sentencing hearing.

Gonzalez-Faguaga also assigns that the district court erred in not appointing counsel to represent him on his motion for postconviction relief and in not allowing him to amend his motion.

III. STANDARD OF REVIEW

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. State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002).

An evidentiary hearing on a motion for postconviction relief is required on an appropriate motion containing factual allegations which, if proved, constitute an infringement of the movant's rights under the Nebraska or federal Constitution. When such an allegation is made, an evidentiary hearing may be denied only when the records and files affirmatively show that the defendant is entitled to no relief. State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002).

IV. ANALYSIS

1. INEFFECTIVE ASSISTANCE OF COUNSEL

Gonzalez-Faguaga argues that the court should have held an evidentiary hearing on his claim and that his counsel failed to inform the trial court that the State had breached the terms of the plea agreement. Because we conclude that this claim has merit, we reverse in part, and remand with directions for an evidentiary hearing.

A plea of no contest is equivalent to a plea of guilty. State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000). Normally, a voluntary guilty plea waives all defenses to a criminal charge. But, in a postconviction action brought by a defendant convicted because of a guilty plea, a court will consider an allegation that the plea was the result of ineffective assistance of counsel. State v. Bishop, 263 Neb. 266, 639 N.W.2d 409 (2002); State v. Buckman, supra. We also note that because Gonzalez-Faguaga was represented by his trial counsel on direct appeal, he is not procedurally barred from asserting an ineffective assistance of counsel claim in his motion for postconviction relief. See State v. Buckman, supra.

To sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution or article I, § 11, of the Nebraska Constitution, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defendant. State v. Zarate, 264 Neb. 690, 651 N.W.2d 215 (2002).

(a) Deficient Performance

To demonstrate that his or her counsel's performance was deficient, a defendant must show that counsel did not perform at least as well as a criminal lawyer with ordinary training and skill in the area. State v. Al-Zubaidy, 263 Neb. 595, 641 N.W.2d 362 (2002). In determining whether trial counsel's performance was deficient, there is a strong presumption that counsel acted reasonably. Id. We afford trial counsel due deference to formulate trial strategy and tactics. Id.

The U.S. Supreme Court has recognized that "`plea bargaining' is an essential component of the administration of justice." Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The benefits to be derived from plea bargaining, however, "presuppose fairness in securing agreement between an accused and a prosecutor." 404 U.S. at 261, 92 S.Ct. 495. Thus, "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 262, 92 S.Ct. 495. Accord State v. Birge, 263 Neb. 77, 638 N.W.2d 529 (2002).

If the State commits a material breach of a negotiated plea agreement, it would be a rare circumstance when a lawyer with ordinary training and skill in the area of criminal law would not inform the court of the breach. See, State v. Carrillo, 597 N.W.2d 497 (Iowa 1999); State v. Smith, 207 Wis.2d 258, 558 N.W.2d 379 (1997). While we afford counsel due deference to formulate trial strategy and tactics, it is difficult to imagine what possible advantage a defendant could gain by his or her counsel's remaining silent in such a situation. Only by pointing out the breach can counsel protect the benefits the defendant bargained to receive in exchange for his or her plea. See State v. Birge, supra.

Here, Gonzalez-Faguaga has alleged that as part of the plea agreement he entered into, the State agreed to recommend time served if he were under an INS hold at the time of the sentencing; that at the time of the sentencing, Gonzalez Faguaga had "an INS hold lodged against him"; and that instead of recommending time served, the State stood silent. Gonzalez-Faguaga has also alleged that counsel failed to object when the State stood silent at the sentencing hearing. The record does not affirmatively contradict these allegations and, if proved, they would show that...