                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                      STATE V. ALCANTARA


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                                V.

                                GERSON ALCANTARA, APPELLANT.


                               Filed July 7, 2020.   No. A-20-069.


       Appeal from the District Court for Douglas County: KIMBERLY MILLER PANKONIN, Judge.
Affirmed.
       Thomas C. Riley, Douglas County Public Defender, and Allyson A. Mendoza for appellant.
       Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.


       MOORE, Chief Judge, and RIEDMANN and ARTERBURN, Judges.
       MOORE, Chief Judge.
                                       I. INTRODUCTION
        Gerson Alcantara appeals from his plea-based convictions in the district court for Douglas
County of attempted first degree sexual assault of a child and two counts of third degree sexual
assault of a child. On appeal, Alcantara claims that he received ineffective assistance of trial
counsel and that his sentences were excessive. We affirm.
                                       II. BACKGROUND
        Alcantara was originally charged in the district court with first degree sexual assault of a
child, a Class IB felony, and two counts of third degree sexual assault of a child, Class IIIA
felonies. In exchange for Alcantara’s plea of no contest, the State filed an amended information in
which the first degree sexual assault charge was amended to attempted first degree sexual assault
of a child, a Class II felony. The third degree sexual assault charges remained the same.



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        At the plea hearing, Alcantara was provided with a Nebraska court certified Spanish
interpreter. In response to questions by the court, Alcantara indicated that he had been able to go
over the police reports with his attorney and he was able to read them. Alcantara’s counsel stated
that Alcantara was aware of what happened in the deposition that was taken. The court asked
Alcantara whether he had any problems understanding any of the evidence in the case and he
responded with “no.” The court advised Alcantara of the constitutional rights that he was giving
up by entering a plea, and Alcantara indicated that he understood the rights that he was waiving
and he still wished to enter pleas of no contest to the amended charges. The court then reviewed
with Alcantara the charges, the elements to be proven for each charge, and the possible sentences;
he again indicated that he understood. The court advised Alcantara that it could impose concurrent
or consecutive sentences, and he indicated that he understood the difference. The court asked
whether he understood that the sentencing decision was fully within the discretion of the court,
and he responded affirmatively. Alcantara agreed that he had gone over the sentencing ranges with
his attorney. The court asked Alcantara whether anyone had told him that by entering his pleas, he
would “get a light sentence, be rewarded, or promised you anything” and Alcantara answered “no.”
He further denied that anyone, including law enforcement, had offered him leniency to get him to
plead. Alcantara answered affirmatively that his pleas were his own free and voluntary act. He
answered affirmatively that he had enough time to discuss his case with his attorney, that he was
satisfied with his attorney, and that he felt his attorney properly represented him.
        According to the factual basis provided by the State, Alcantara is related to the two victims;
he is their father’s cousin. Alcantara subjected both victims to sexual contact on multiple
occasions, and he subjected one of the victims to penile penetration of her vagina. The victims
were between the ages of 9 and 11 when these events occurred.
        The district court found beyond a reasonable doubt that (1) Alcantara understood the nature
of the charges against him and the possible sentences that could be imposed, and (2) his pleas were
made freely, knowingly, intelligently, and voluntarily. The court accepted his pleas of no contest
and found him guilty of the charges.
        Following the preparation of a presentence investigation (PSI), the district court sentenced
Alcantara to 40 to 46 years’ imprisonment on the attempted first degree sexual assault charge and
to 2 to 3 years on each of the third degree sexual assault charges, with all sentences to be served
consecutively. He was given credit for 296 days previously served. Alcantara filed this timely
appeal.
                                 III. ASSIGNMENTS OF ERROR
        Restated, Alcantara assigns that he received ineffective assistance of counsel because his
trial counsel (1) failed to review vital discovery with Alcantara prior to his decision to plead no
contest, (2) provided him with English language legal documents despite knowing that he could
not understand the English language, and (3) impermissibly promised him that he would receive
no more than 10 years of imprisonment in return for pleading no contest to the amended
information. Alcantara further assigns that the cumulative effect of all the errors shows that trial
counsel’s overall performance was so deficient that it denied him the effective assistance of




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counsel. Finally, Alcantara assigns that the district court abused its discretion in imposing an
excessive sentence.
                                  IV. STANDARD OF REVIEW
        Whether a claim of ineffective assistance of counsel may be determined on direct appeal is
a question of law. State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018). 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 counsel did
or did not provide effective assistance and whether the defendant was or was not prejudiced by
counsel’s alleged deficient performance. Id.
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020). An
abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or conscience, reason, and evidence. State v.
Becker, 304 Neb. 693, 936 N.W.2d 505 (2019).
                                           V. ANALYSIS
                             1. INEFFECTIVE ASSISTANCE OF COUNSEL
        Alcantara argues that he received ineffective assistance of trial counsel in several respects.
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. State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
Once raised, the appellate court will determine whether the record on appeal is sufficient to review
the merits of the ineffective performance claims. Id.
        To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that the deficient performance actually prejudiced the
defendant’s defense. State v. Iddings, supra.
        In a plea context, deficiency depends on whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases. State v. Blaha, 303 Neb. 415, 929 N.W.2d
494 (2019). The prejudice requirement in a plea context is satisfied if the defendant shows a
reasonable probability that but for the errors of counsel, the defendant would have insisted on
going to trial rather than pleading guilty. State v. Haynes, 299 Neb. 249, 908 N.W.2d 40 (2018),
disapproved on other grounds, State v. Allen, 301 Neb. 560, 919 N.W.2d 500 (2018). In
determining the prejudice component of alleged ineffective assistance of counsel in a plea context,
the likelihood of the defense’s success had the defendant gone to trial should be considered along
with other factors, such as the likely penalties the defendant would have faced if convicted at trial,
the relative benefit of the plea bargain, and the strength of the State’s case. Id.
        Alcantara suggests that this court may find the record insufficient to determine his claims
of ineffective assistance of counsel and if so, requests that his claim be preserved for an evidentiary
hearing. To the contrary, we find the record is sufficient to review the merits of Alcantara’s claims.




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                                  (a) Failure to Provide Discovery
        Alcantara claims that he repeatedly requested trial counsel to provide him with police
reports and witness statements that the State had accumulated in the case against him. He further
asserts that trial counsel refused to provide and sufficiently review the important discovery
evidence with him, which prejudiced his ability to knowingly and adequately respond to the
charges against him. Alcantara argues that had he been presented with all of the evidence in this
case, there is a reasonable probability that he would not have accepted an unfavorable plea deal
and would have proceeded to trial.
        We find the record sufficient to review this claim. As set forth above, Alcantara indicated
at the plea hearing that he had received and read the police reports and that he understood the
evidence in the case. He agreed that he had enough time to discuss the case with his attorney and
was satisfied with his representation. His attorney further stated that he had reviewed with
Alcantara the deposition taken in the case. Thus, the record affirmatively indicates that trial counsel
was not deficient as claimed in this assigned error.
                              (b) English Language Legal Documents
        Alcantara next claims that trial counsel was deficient in failing to provide him with Spanish
translations of important legal documents. He asserts that he is a Spanish-speaking immigrant who
is unable to read, write, and understand the English language. He argues that despite knowledge
of his English language deficiencies, trial counsel permitted him to read and even sign important
legal documents written entirely in English without providing any translation or explanation of the
meaning of the legal documents. Alcantara maintains that failure to translate these documents
prejudiced his ability to mount an adequate defense and to fully understand both the plea
bargaining and sentencing proceedings.
        Alcantara does not specify which important legal documents he was not provided a
translation of or was required to sign. Thus, his allegations of ineffective assistance of counsel are
not pled with sufficient particularity. See State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).
Further, as noted above, Alcantara represented to the court at the plea hearing that he read the
police reports and reviewed them with his attorney, and that he had no problem understanding the
evidence in the case. This assigned error also fails.
                                       (c) Sentencing Promise
        Alcantara asserts that trial counsel promised that he would receive no more than 10 years’
imprisonment if he pled no contest to the amended charges. He claims that trial counsel told him
that the district court would place great weight at sentencing upon his decision to waive a jury trial.
Finally, he maintains that trial counsel misled him to believe that the district court would sentence
him at the lower end of the sentencing range if he agreed to the plea deal. Alcantara argues that he
would not have pled had trial counsel not misled him as to the possible sentencing ramifications,
and the case would have proceeded to trial.
        The record clearly refutes this claim. At the plea hearing, the State advised the court that
there was no agreement as to sentencing, and the court advised Alcantara that it was fully the
court’s discretion as to the sentence imposed. Alcantara affirmed that no one told him or led him



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to believe that he would get a light sentence, be rewarded, or promised anything to get him to plead
no contest. He also agreed that no one had offered him leniency to get him to plead no contest.
Alcantara has failed to show deficient performance in this regard.
                                          (d) Cumulative Error
        Alcantara assigns that even if one of the foregoing examples of trial counsel’s performance
did not, by itself, rise to the level of a constitutional violation, the cumulative effect of all the errors
shows trial counsel’s overall performance was so deficient that it denied him the effective
assistance of counsel. Because we have found that Alcantara failed to show deficient performance
in any of the ways alleged, there was no cumulative error.
                                        2. EXCESSIVE SENTENCE
        Alcantara was sentenced to a term of 40 to 46 years’ imprisonment on the attempted first
degree sexual assault of a child, a Class II felony, and to terms of 2 to 3 years’ imprisonment on
each of the third degree sexual assault of a child charges, both Class IIIA felonies. A Class II
felony is punishable by a minimum of 1 year’s and a maximum of 50 years’ imprisonment. Neb.
Rev. Stat. § 28-105 (Reissue 2016). Class IIIA felonies are punishable by a maximum of 3 years’
imprisonment, a $10,000 fine, or both. Id. All of Alcantara’s sentences are within the statutory
limits.
        Absent an abuse of discretion by the trial court, an appellate court will not disturb a
sentence imposed within the statutory limits. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747
(2020). An abuse of discretion occurs when a trial court’s decision is based upon reasons that are
untenable or unreasonable or if its action is clearly against justice or conscience, reason, and
evidence. Id. The appropriateness of a sentence is necessarily a subjective judgment and includes
the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life. Id. In determining a sentence to be imposed,
relevant factors customarily considered and applied are the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background, (5) past criminal record or record of
law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense,
and (8) the amount of violence involved in the commission of the crime. Id. Generally, it is within
a trial court’s discretion to direct that sentences imposed for separate crimes be served either
concurrently or consecutively. State v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017).
        Alcantara argues that the district court abused its discretion in sentencing him to a term of
imprisonment near the high end of the range permitted by statute. He asserts that the court did not
give sufficient consideration to his mentality, education, social and cultural background, lack of
criminal history, and his record of law-abiding conduct. Alcantara points to his acceptance of
responsibility and cooperation in taking the plea deal, and his expression of remorse as mitigating
factors. In addition, he points to his background; having been born in Guatemala, moving here
when he was 21 to escape poverty and crime, his lack of education, and his difficult adjustment
due to the language barrier. Finally, he points to his lack of criminal history and gainful
employment since moving to the United States.




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        According to the PSI, Alcantara, age 27, came to the United States from Guatemala when
he was 21 years old. He completed 3 years of elementary school and performed agricultural work
in Guatemala. He has had various jobs in the United States, mostly working for cash since he does
not have a Social Security number. He is an illegal and undocumented person in the United States
and is facing possible deportation. Other than two citations for no valid operator’s license for which
he received fines, he has no criminal history. Alcantara scored in the overall medium risk range on
the Level of Service/Case Management Inventory and in the problem risk range for truthfulness
on the Substance Abuse Questionnaire.
        At the sentencing hearing, Alcantara stated that he was “repentant,” and he asked for
forgiveness from the court and the parents of the victims. His counsel made argument for leniency.
The district court indicated that it took into account all of the information and argument presented
to it, information in the PSI, including Alcantara’s age, mentality, education, experience,
background, past criminal record, nature of the offenses, including the presence of violence, and
motivation for the offenses.
        Based upon this record, we can find no abuse of discretion by the district court in the
sentences imposed.
                                        VI. CONCLUSION
        The record refutes that Alcantara received ineffective assistance from his trial counsel. We
find no abuse of discretion in the sentences imposed. We affirm the convictions and sentences.
                                                                                          AFFIRMED.




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