  Decisions of the Nebraska Court of Appeals
62	22 NEBRASKA APPELLATE REPORTS



                      State of Nebraska, appellee, v.
                   Juan Antonio Hernandez, appellant.
                                      ___ N.W.2d ___

                           Filed June 3, 2014.     No. A-13-687.

 1.	 Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
      tion relief must establish the basis for such relief, and the findings of the district
      court will not be disturbed unless they are clearly erroneous.
 2.	 Effectiveness of Counsel. A claim that defense counsel provided ineffective
      assistance presents a mixed question of law and fact.
 3.	 Postconviction: Appeal and Error. On appeal from a proceeding for postconvic-
      tion relief, the trial court’s findings of fact will be upheld unless such findings are
      clearly erroneous.
 4.	 Effectiveness of Counsel: Appeal and Error. 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.
 5.	 Effectiveness of Counsel: Plea Bargains. The right to effective assistance of
      counsel extends to the negotiation of a plea bargain.
  6.	 ____: ____. Claims of ineffective assistance of counsel in the plea bargain con-
      text are governed by the two-part test set forth in Strickland v. Washington, 466
      U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
 7.	 Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance
      of counsel, the defendant must show that counsel’s performance was deficient
      and that this deficient performance actually prejudiced his or her defense.
  8.	 ____: ____. To show deficient performance, a defendant must show that coun-
      sel’s performance did not equal that of a lawyer with ordinary training and skill
      in criminal law in the area.
  9.	 ____: ____. To show prejudice, the defendant must demonstrate reasonable prob-
      ability that but for counsel’s deficient performance, the result of the proceeding
      would have been different.
10.	 Effectiveness of Counsel: Plea Bargains. The prejudice inquiry in cases involv-
      ing plea agreements focuses upon whether counsel’s ineffective performance
      affected the outcome of the plea process.
11.	 Effectiveness of Counsel: Plea Bargains: Proof. To show prejudice from inef-
      fective assistance of counsel where a plea offer has lapsed or been rejected
      because of counsel’s deficient performance, defendants must demonstrate a rea-
      sonable probability that they would have accepted the earlier plea offer had they
      been afforded effective assistance of counsel.
12.	 Postconviction: Evidence: Witnesses. In an evidentiary hearing for postconvic-
      tion relief, the postconviction trial judge, as the trier of fact, resolves conflicts in
      evidence and questions of fact, including witness credibility and the weight to be
      given a witness’ testimony.

  Appeal from the District Court for Dakota County: Paul J.
Vaughan, Judge. Affirmed.
          Decisions   of the  Nebraska Court of Appeals
	                        STATE v. HERNANDEZ	63
	                        Cite as 22 Neb. App. 62

    Stuart B. Mills for appellant.
  Jon Bruning, Attorney General, and Melissa R. Vincent for
appellee.
    Irwin, Riedmann, and Bishop, Judges.
    Riedmann, Judge.
                      INTRODUCTION
   Juan Antonio Hernandez appeals from the order of the dis-
trict court for Dakota County, which denied his motion for
postconviction relief after an evidentiary hearing limited to
the issue of whether trial counsel was ineffective during the
plea negotiation process. Finding no error in the district court’s
decision, we affirm.
                        BACKGROUND
   Hernandez was originally charged in January 2010 with two
counts of first degree sexual assault of a child, both Class IB
felonies, and two counts of child abuse, one a Class III felony
and the other a Class IIIA felony. The State also alleged that
Hernandez was a habitual criminal. Pursuant to a plea agree-
ment, Hernandez pled guilty to one count of first degree
sexual assault of a child, a Class II felony, and one count of
child abuse, a Class IIIA felony. In exchange, the State agreed
to dismiss the other two charges, forgo habitual criminal
enhancement, and remain silent at sentencing. Hernandez was
sentenced to 16 to 17 years’ imprisonment for sexual assault
and 18 to 20 months’ imprisonment for child abuse, to be
served consecutively.
   On August 6, 2012, Hernandez filed a pro se motion for
postconviction relief, alleging that (1) trial counsel was inef-
fective during the plea bargaining process, (2) trial counsel
was ineffective for failing to consult with him about filing a
direct appeal, (3) the State engaged in prosecutorial miscon-
duct by failing to honor the plea agreement, and (4) the trial
court abused its discretion by allowing the State to amend
the information.
   The district court issued an order on October 23, 2012,
granting an evidentiary hearing on the limited issue of trial
  Decisions of the Nebraska Court of Appeals
64	22 NEBRASKA APPELLATE REPORTS



counsel’s alleged ineffectiveness in the plea negotiation proc­
ess. The court dismissed the remaining allegations without
an evidentiary hearing, and Hernandez did not appeal from
that order. Counsel was appointed to represent Hernandez for
the remainder of the postconviction proceedings. During the
evidentiary hearing, Hernandez and his trial counsel testified
regarding various plea negotiations that had occurred, as sum-
marized below:
   On March 5, 2010, trial counsel informed Hernandez of the
State’s plea offer under which Hernandez could plead guilty
or no contest to one count of second degree sexual assault, a
Class III felony, and, in exchange, the State would forgo habit-
ual criminal enhancement and remain silent at sentencing. Trial
counsel testified that he discussed the offer with Hernandez
and encouraged him to accept it. Trial counsel told Hernandez
that there was really no reason not to accept it, although the
State did have some problems with its initial complaint. Trial
counsel testified that Hernandez decided to reject the offer
because he wanted to force the State to proceed with its prob-
lematic complaint.
   Hernandez, on the other hand, testified that he rejected the
March 5, 2010, plea offer because there had been no allegation
by the alleged victim concerning the charges contained in the
information and because trial counsel led Hernandez to believe
that absent such an allegation, the State would be forced to
dismiss the charges altogether. When asked whether he recalled
advising Hernandez that the charges would be dismissed, trial
counsel testified, “I don’t believe I would have said that. I
just don’t believe it because I don’t believe it would have
been true.” Trial counsel further explained that he had been
practicing law for several years and could count on one hand
the number of times the State had simply dismissed charges
against a defendant.
   Hernandez testified that after rejecting the March 5, 2010,
offer, he planned to proceed to trial, with the expectation
that the charges would be dropped. In mid-April, however,
Hernandez discovered that the alleged victim was cooperating
with the prosecution and had made a statement corroborating
        Decisions   of the  Nebraska Court of Appeals
	                      STATE v. HERNANDEZ	65
	                      Cite as 22 Neb. App. 62

another witness’ allegations. At that point, Hernandez told trial
counsel to accept the plea offer that he had initially rejected
on March 5. When trial counsel advised him that the March 5
plea offer was no longer available, Hernandez instructed trial
counsel to secure a plea agreement that would enable him to
receive probation.
   Trial counsel suggested making an offer to the State to plead
guilty to one Class II felony and one Class IIIA felony, with
the State remaining silent at sentencing so that trial counsel
could argue for probation. Hernandez agreed, and trial counsel
communicated that offer to the State. The State countered by
offering an agreement that would allow Hernandez to plead
guilty to one Class III felony and one Class IIIA felony, but
would not require the State to remain silent at sentencing. For
purposes of discussing these plea negotiations, we will refer to
Hernandez’ mid-April offer as “option A” and the State’s coun-
teroffer as “option B.”
   Trial counsel testified that he engaged in a long discus-
sion with Hernandez about the pros and cons of the two
options. Trial counsel advised Hernandez that option B would
minimize his risk, since it involved a Class III felony rather
than a Class II felony, but that it was not the best option for
attempting to obtain probation. According to trial counsel,
Hernandez was hoping for a short period of upfront jail time
followed by an extended period of probation so that he could
get out of jail as soon as possible to be with his family. Trial
counsel advised Hernandez that option A was his best chance
at receiving probation because it required the State to remain
silent at sentencing, whereas option B would result in the
State’s arguing against probation and requesting prison terms
on both counts. Trial counsel further advised Hernandez that
probation was more likely under option A because the Class II
felony would provide the sentencing judge with greater lever-
age over Hernandez if he were to violate the terms of his
probation. Trial counsel testified that Hernandez discussed the
options with his family and then decided to accept option A
in hopes of obtaining probation. Trial counsel communicated
  Decisions of the Nebraska Court of Appeals
66	22 NEBRASKA APPELLATE REPORTS



Hernandez’ acceptance of option A to the State and scheduled
a plea hearing.
   According to Hernandez, he met with trial counsel just
before his plea hearing on May 3, 2010, and discovered that
trial counsel had conveyed the wrong plea deal to the State.
Hernandez claims he told trial counsel to accept option B so
that he could avoid the Class II felony. Hernandez testified
that trial counsel advised the district court that he had made a
mistake regarding the plea agreement and requested a contin­
uance so he could try to correct it. Trial counsel denied having
made a mistake, however, and maintained that Hernandez had
instructed him to accept option A.
   Thereafter, trial counsel approached the State and attempted
to change the agreement to option B, but was advised that
option B was no longer available because the State had recently
acquired DNA evidence showing that Hernandez was the father
of the victim’s child. Faced with the choice of accepting
option A or proceeding to trial on all of the charges in the
amended information, Hernandez decided to accept option A
and was sentenced accordingly.
   At the close of the evidentiary hearing, the district court
took the matter under advisement. It issued a written order
on July 12, 2013, denying postconviction relief. In overruling
Hernandez’ motion, the district court stated:
         The essence of the allegation of ineffective assistance
      of counsel comes down to a dispute regarding the factual
      allegation of what plea offers were made and when and
      what advice was given by [trial counsel]. The Court finds
      that the testimony by [trial counsel] was more credible
      than the testimony of [Hernandez] and appeared to be
      more in line with the normal process of the give-and-take
      in the plea negotiation process. [Hernandez’] recollection
      of the offers that were made and the reasons for his rejec-
      tion were [sic] unclear, while [trial counsel’s] testimony
      appeared to be credible.
         The Court finds that [Hernandez] has failed to meet
      his burden of proof to establish that he received ineffec-
      tive assistance of counsel in the plea negotiation process.
      All plea offers that were made were conveyed accurately
          Decisions   of the  Nebraska Court of Appeals
	                        STATE v. HERNANDEZ	67
	                        Cite as 22 Neb. App. 62

      to [Hernandez]. [Hernandez] made strategic decisions
      whether or not to accept plea offers. [Hernandez] ulti-
      mately accepted an offer where the State would remain
      silent. This was the objective he had advised [trial coun-
      sel] to pursue; even in his own testimony at the post-
      conviction relief hearing he indicated that he wished
      to seek probation. Ultimately, [Hernandez] entered the
      plea agreement that was provided through the negotiation
      proc­ ss. It appears that he is simply unhappy at this time
           e
      that he did not receive probation rather than a substantial
      prison sentence.
    Hernandez timely appeals.
                 ASSIGNMENT OF ERROR
   Hernandez alleges that the district court erred in finding
that he received effective assistance of counsel during the plea
bargaining process.
                  STANDARD OF REVIEW
   [1] A defendant requesting postconviction relief must estab-
lish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
State v. Keyser, 286 Neb. 176, 835 N.W.2d 650 (2013).
   [2-4] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact. State
v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012). On appeal
from a proceeding for postconviction relief, the trial court’s
findings of fact will be upheld unless such findings are clearly
erroneous. Id. Determinations regarding whether counsel was
deficient and whether the defendant was prejudiced are ques-
tions of law that we review independently of the lower court’s
decision. Id.
                          ANALYSIS
   [5,6] Hernandez contends on appeal that he received inef-
fective assistance of counsel during the plea negotiation proc­
ess. The U.S. Supreme Court has clearly established that
the right to effective assistance of counsel extends to the
negotiation of a plea bargain. See Missouri v. Frye, ___ U.S.
___, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012). Claims of
  Decisions of the Nebraska Court of Appeals
68	22 NEBRASKA APPELLATE REPORTS



ineffective assistance of counsel in the plea bargain context
are governed by the two-part test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Missouri v. Frye, supra.
   [7-9] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, the defendant must
show that counsel’s performance was deficient and that this
deficient performance actually prejudiced his or her defense.
State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013). To
show deficient performance, a defendant must show that coun-
sel’s performance did not equal that of a lawyer with ordinary
training and skill in criminal law in the area. Id. To show prej-
udice, the defendant must demonstrate reasonable probability
that but for counsel’s deficient performance, the result of the
proceeding would have been different. Id.
   [10,11] The prejudice inquiry in cases involving plea agree-
ments focuses upon whether counsel’s ineffective performance
affected the outcome of the plea process. State v. Lopez,
274 Neb. 756, 743 N.W.2d 351 (2008). To show prejudice
from ineffective assistance of counsel where a plea offer has
lapsed or been rejected because of counsel’s deficient per-
formance, defendants must demonstrate a reasonable prob-
ability they would have accepted the earlier plea offer had
they been afforded effective assistance of counsel. Missouri v.
Frye, supra.
   On appeal, Hernandez’ argument appears to focus primar-
ily on trial counsel’s advice regarding the March 5, 2010,
plea offer. Hernandez argues that he rejected the March 5
plea offer based on trial counsel’s erroneous advice that the
charges would be dismissed. Hernandez asserts that but for
trial counsel’s deficient performance, he would have accepted
the March 5 plea offer, which was more advantageous than the
plea agreement he ultimately accepted.
   Whether trial counsel’s advice was deficient in this regard
turns on a factual determination as to the content of the
advice given. Hernandez testified that he rejected the March
5, 2010, plea offer because there had been no allegation by
the victim concerning the charges contained in the informa-
tion and trial counsel led Hernandez to believe that absent
         Decisions   of the  Nebraska Court of Appeals
	                       STATE v. HERNANDEZ	69
	                       Cite as 22 Neb. App. 62

such an allegation, the charges would be dismissed. Trial
counsel acknowledged that there were some problems with
the State’s initial complaint, but he did not believe he advised
Hernandez that the charges would be dismissed, because,
based upon trial counsel’s experience, he “[did not] believe
it would have been true.” Trial counsel testified that he actu-
ally encouraged Hernandez to accept the March 5 plea offer
but that despite his advice, Hernandez decided to reject the
offer in hopes that the State would be stuck with its problem-
atic complaint.
   [12] In an evidentiary hearing for postconviction relief, the
postconviction trial judge, as the trier of fact, resolves conflicts
in evidence and questions of fact, including witness credibility
and the weight to be given a witness’ testimony. State v. Benzel,
269 Neb. 1, 689 N.W.2d 852 (2004). Here, after considering
the testimony of Hernandez and trial counsel, the district court
found that trial counsel’s testimony was more credible. Based
on the evidence presented at the evidentiary hearing, we cannot
say that this finding was clearly erroneous. Thus, we conclude
that trial counsel’s performance was not deficient with respect
to the March 5, 2010, plea offer.
   To the extent that Hernandez is arguing that trial coun-
sel was ineffective for accepting the wrong plea deal, we
similarly find no merit to this argument. There was a conflict
in the testimony at the evidentiary hearing regarding which
plea agreement Hernandez instructed trial counsel to accept.
Although Hernandez testified that he told trial counsel to
accept option B to avoid the Class II felony, trial counsel testi-
fied that Hernandez told him to accept option A in hopes of
obtaining probation. The district court considered the conflict-
ing testimony and found that trial counsel’s testimony was
more credible. This finding is not clearly erroneous. In fact, it
is consistent with Hernandez’ own testimony that he instructed
trial counsel to obtain a plea deal that would allow him to
receive probation. We agree with the district court’s conclu-
sions that trial counsel accurately conveyed all plea offers
to Hernandez and that Hernandez instructed trial counsel to
accept option A. Thus, trial counsel was not deficient for acting
in accordance with Hernandez’ decision.
  Decisions of the Nebraska Court of Appeals
70	22 NEBRASKA APPELLATE REPORTS



   Finally, Hernandez argues that his pleas were not voluntary
and intelligent, due to trial counsel’s ineffectiveness during
the plea bargaining process. Because we have found that trial
counsel was not ineffective in the plea bargaining process, this
argument is also without merit.
                         CONCLUSION
   The district court did not err in finding that Hernandez was
not deprived of his right to effective assistance of counsel
in the plea bargaining process. Thus, we affirm the denial of
Hernandez’ motion for postconviction relief.
                                                     Affirmed.



                In   re I nterest of Gabriella H., a child
                            under 18 years of age.
                       State of Nebraska, appellee,
                         v. R icardo R., appellant.
                                    ___ N.W.2d ___

                         Filed June 3, 2014.    No. A-13-900.

 1.	 Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
      record, and an appellate court is required to reach a conclusion independent of
      the juvenile court’s findings.
 2.	 Evidence: Appeal and Error. When the evidence is in conflict, an appellate
      court may consider and give weight to the fact that the trial court observed the
      witnesses and accepted one version of the facts over the other.
 3.	 Parental Rights: Proof. For a juvenile court to terminate parental rights under
      Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012), it must find clear and convincing
      evidence that one or more of the statutory grounds listed in that section have been
      satisfied and that termination is in the child’s best interests.
 4.	 Evidence: Words and Phrases. Clear and convincing evidence is that amount of
      evidence which produces in the trier of fact a firm belief or conviction about the
      existence of the fact to be proved.
 5.	 Parental Rights: Time: Abandonment. Neb Rev. Stat. § 43-292(1) (Cum. Supp.
      2012) provides grounds for termination of parental rights when a parent has
      abandoned the juvenile for 6 months or more immediately prior to the filing of
      the petition for termination.
  6.	 ____: ____: ____. The crucial time period for purposes of determining whether
      a parent has intentionally abandoned a child under Neb. Rev. Stat. § 43-292(1)
      (Cum. Supp. 2012) is determined by counting back 6 months from the date the
      petition was filed.
