State v. Yos–chiguil

• Decision Date: 27 May 2011
• Docket Number: No. S–10–671.,S–10–671.
• Citation: 798 N.W.2d 832,281 Neb. 618
• Parties: STATE of Nebraska, appellee,v.Mauro YOS–CHIGUIL, appellant.
• Court: Nebraska Supreme Court

281 Neb. 618

798 N.W.2d 832

STATE of Nebraska, appellee,

v.Mauro YOS–CHIGUIL, appellant.

No. S–10–671.

Supreme Court of Nebraska.

May 27, 2011.

Syllabus by the Court

1.Jurisdiction: Appeal and Error.An appellate court determines a jurisdictional question that does not involve a factual dispute as a matter of law.

2.Judgments: Appeal and Error.When reviewing questions of law. an appellate court resolves the questions independently of the lower court's conclusion.

3.Postconviction: Appeal and Error.Whether a claim raised in a postconviction proceeding is procedurally barred presents a question of law.

4.Effectiveness of Counsel: Appeal and Error.A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.Determinations regarding whether counsel was deficient and whether the defendant was prejudiced are questions of law that an appellate court reviews independently of the lower court's decision.The court reviews factual findings for clear error.

5.Jurisdiction: Appeal and Error.Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

6.Postconviction: Final Orders.Within a postconviction proceeding, an order granting an evidentiary hearing on some issues and denying a hearing on others is a final order.

7.Postconviction: Appeal and Error.In a postconviction motion, an appellate court will not consider as an assignment of error a claim that was not presented to the district court.

8.Postconviction: Statutes.Neb.Rev.Stat. § 29–1819.02(Reissue 2008) is not a general postconviction relief statute.

9.Statutes: Appeal and Error.An appellate court will not read into a statute a meaning that is not there.

10.Postconviction: Pleas: Waiver.Normally, a voluntary guilty plea waives all defenses to a criminal charge.

11.Postconviction: Pleas: Effectiveness of Counsel.In a postconviction action brought by a defendant because of a guilty plea or a plea of no contest, a court will consider an allegation that the plea was the result of ineffective assistance of counsel.

12.Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.When a court denies relief without an evidentiary hearing, an appellate court must determine whether the petitioner has alleged facts that would support a claim of ineffective assistance of counsel and, if so, whether the files and records affirmatively show that he is entitled to no relief.

13.Postconviction: Effectiveness of Counsel: Proof.To establish a right to post-conviction relief on a claim of ineffective assistance of counsel, the petitioner has the burden to show that counsel's performance was deficient and that counsel's deficient performance prejudiced the defendant.

14.Effectiveness of Counsel: Proof.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.

15.Effectiveness of Counsel: Proof.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.

16.Effectiveness of Counsel: Pleas: Proof.Within the plea context, in order to satisfy the prejudice requirement to establish an ineffective assistance of counsel claim, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

17.Effectiveness of Counsel: Pleas: Proof.To establish an ineffective assistance of counsel claim, the viability of the defense is relevant as to how it would have reasonably affected the defendant's decision whether to plead guilty or go to trial.

18.Postconviction: Effectiveness of Counsel: Proof.A postconviction petitioner does not need to show that a defense of which counsel failed to advise him would have succeeded at trial.Instead, he must show only a reasonable probability that he would have insisted on going to trial.

19.Effectiveness of Counsel: Pleas: Proof.In a claim for ineffective assistance of counsel, the likelihood of the defense's success should be considered with other factors such as the likely penalties the defendant would face if convicted at trial, the relative benefit of the plea bargain, and the strength of the State's case.Self-serving declarations that he would have gone to trial will not be enough; he must present objective evidence showing a reasonable probability that he would have insisted on going to trial.

20.Effectiveness of Counsel: Proof.As with all applications of the ineffective assistance of counsel test under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), the question whether a given defendant has made the requisite showing will turn on the facts of a particular case.

21.Postconviction: Right to Counsel.Under the Nebraska Postconviction Act, it is within the discretion of the trial court as to whether to appoint counsel to represent the defendant.

22.Postconviction: Justiciable Issues: Right to Counsel: Appeal and Error.Where the assigned errors in the postconviction petition before the district court are either procedurally barred or without merit, establishing that the postconviction action contained no justiciable issue of law or fact, it is not an abuse of discretion to fail to appoint counsel for an indigent defendant.

23.Postconviction: Justiciable Issues: Right to Counsel.When the defendant's petition presents a justiciable issue to the district court for postconviction determination, an indigent defendant is entitled to the appointment of counsel.

Mauro Yos–Chiguil, pro se.Jon Bruning, Attorney General, and Stacy M. Foust for appellee.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.CONNOLLY, J.

In 2008, Mauro Yos–Chiguil pleaded nolo contendere to attempted second degree murder and second degree assault.The Court of Appeals dismissed his direct appeal as untimely.He then unsuccessfully sought relief under Nebraska's immigration advisement statute.¹He now petitions for postconviction relief.The district court denied his petition without an evidentiary hearing, and he appealed.We conclude that we lack jurisdiction over some, but not all, of Yos–Chiguil's claims.We remand the claim over which we have jurisdiction for an evidentiary hearing.

BACKGROUND

The State initially charged Yos–Chiguil in December 2007 with one count of attempted second degree murder, a Class II felony ²; one count of second degree assault, a Class IIIA felony ³; and two counts of use of a deadly weapon to commit a felony, a Class III felony.⁴As part of a plea bargain, Yos–Chiguil pleaded nolo contendere to amended charges of one count of attempted second degree murder and one count of second degree assault.On May 9, 2008, the court sentenced him to prison for 18 to 28 years on the attempted murder conviction and 2 to 5 years on the assault conviction.The court gave Yos–Chiguil credit for 153 days served and ordered that the sentences be served concurrently.Yos–Chiguil did not file his notice of appeal until June 17, which rendered it untimely under Neb.Rev.Stat. § 25–1912(Reissue 2008).On July 15, 2008, in case No. A–08–697, the Court of Appeals summarily dismissed his appeal.

Later in 2008, Yos–Chiguil sought to withdraw his nolo contendere pleas under § 29–1819.02, which allows defendants facing immigration consequences to withdraw their pleas if the court failed to warn them of such consequences.⁵The district court denied him relief.On appeal in State v. Yos–Chiguil,⁶we upheld the district court's order.We concluded that although the trial court did not warn Yos–Chiguil of the effect his conviction would have on efforts to gain naturalization, he had not shown that his conviction had had any effect on such efforts.

Yos–Chiguil next moved for postconviction relief, which is the current appeal.His first claim is somewhat difficult to pin down.It seemingly alleges both a due process violation and an ineffective assistance of counsel claim.Yos–Chiguil seems to argue that due process requires strict compliance with § 29–1819.02 and that his attorney was ineffective for failing to press this claim.Yos–Chiguil's next claim is clearer; he argues that his attorney was ineffective for not explaining that the defense of intoxication could possibly negate the intent element required for second degree murder.As his final claim, Yos–Chiguil argues that his attorney was ineffective in failing to timely perfect his direct appeal.Yos–Chiguil explains that he made his desire to appeal known to his attorney but that it was frustrated because the attorney wrote all correspondence to Yos–Chiguil in English, a language that Yos–Chiguil does not understand.Yos–Chiguil argues that this language barrier complicated the perfecting of the appeal and ultimately caused it to be untimely.As relief, Yos–Chiguil sought an evidentiary hearing, discovery, and ultimately a vacation of the convictions and sentences.

On January 22, 2010, the district court ruled on several of Yos–Chiguil's claims.The district court denied the first claim regarding strict compliance with § 29–1819.02.The court seems to have considered our previous ruling in Yos–Chiguil dispositive as to that issue.The court also denied the claim that trial counsel was ineffective in failing to perfect an appeal.The court said that it was aware of no precedent requiring that counsel provide translated documents to his client.The court also noted that Yos–Chiguil apparently had access to translation services in prison because he has been able to file lengthy legal documents.Finally, the court found that defense counsel should have discussed an intoxication defense with the defendant.It gave the State 30 days to...