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05/31/2019 08:07 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                                 STATE v. CHAIREZ
                                                 Cite as 302 Neb. 731




                                 State   of Nebraska, appellee, v. H abacuc
                                         Quintero Chairez, appellant.
                                                   ___ N.W.2d ___

                                         Filed March 29, 2019.    No. S-18-646.

                 1. Effectiveness of Counsel: Appeal and Error. Appellate review of a
                    claim of ineffective assistance of counsel is a mixed question of law and
                    fact. When reviewing a claim of ineffective assistance of counsel, an
                    appellate court reviews the factual findings of the lower court for clear
                    error. With regard to the questions of counsel’s performance or prejudice
                    to the defendant as part of the two-pronged test articulated in Strickland
                    v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
                    an appellate court reviews such legal determinations independently of
                    the lower court’s decision.
                 2. ____: ____. 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 deter-
                    mine whether counsel did or did not provide effective assistance and
                    whether the defendant was or was not prejudiced by counsel’s alleged
                    deficient performance.
                 3. Sentences: Appeal and Error. An appellate court will not disturb a sen-
                    tence imposed within the statutory limits absent an abuse of discretion
                    by the trial court.
                 4. Effectiveness of Counsel: Appeal and Error. When a defendant’s trial
                    counsel is different from his or her counsel on direct appeal, the defend­
                    ant 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, in order to preserve such claim. Once raised, the appellate court
                    will determine whether the record on appeal is sufficient to review the
                    merits of the ineffective performance claims.
                 5. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
                    ineffective assistance of counsel claim will not be addressed on direct
                    appeal if it requires an evidentiary hearing.
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             Nebraska Supreme Court A dvance Sheets
                     302 Nebraska R eports
                             STATE v. CHAIREZ
                             Cite as 302 Neb. 731

 6. Sentences. When imposing a sentence, a sentencing judge should con-
    sider the defendant’s (1) age, (2) mentality, (3) education and experi-
    ence, (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 violence involved in the
    commission of the crime.

   Appeal from the District Court for Lancaster County: Darla
S. Ideus, Judge. Affirmed.
   Timothy S. Noerrlinger for appellant.
  Douglas J. Peterson, Attorney General, Erin E. Tangeman,
and, on brief, Joe Meyer for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Freudenberg, J.
                     I. NATURE OF CASE
   Pursuant to a plea agreement with the State, the defendant
entered no contest pleas and was subsequently convicted of
possession of a firearm by a prohibited person, a Class ID
felony, in violation of Neb. Rev. Stat. § 28-1206(3) (Supp.
2017); attempted first degree assault, a Class IIA felony, in
violation of Neb. Rev. Stat. §§ 28-201 and 28-308 (Reissue
2016); and use of a firearm to commit a felony, a Class IC
felony, in violation of Neb. Rev. Stat. § 28-1205(1) (Reissue
2016). The lower court imposed an aggregate sentence of 42 to
55 years in prison. The central issues on appeal are whether the
defend­ant’s sentences were excessive and whether his assist­
ance of trial counsel was ineffective for failing to meet with
the defendant with an interpreter present, investigate witnesses
and exculpatory evidence, and file a motion to suppress the
defendant’s statements to law enforcement officers.
                         II. FACTS
  On June 11, 2017, at approximately 12:20 p.m., Habacuc
Quintero Chairez, while driving on Interstate 80 in Lancaster
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. CHAIREZ
                        Cite as 302 Neb. 731

County, Nebraska, used a firearm to shoot at another vehicle
four times, hitting the targeted vehicle at least twice. The
vehicle was occupied by Nicholas Pearson and his 15-year-
old son; however, no one was injured. Pearson called the 911
emergency dispatch service and provided an account of the
incident, including a description of the vehicle that Chairez
was driving.
   State troopers located Chairez in his vehicle on Interstate 80,
partially blocking one lane of traffic. When the state troopers
initiated contact with Chairez, he displayed a handgun outside
of the driver’s-side window. He was then ordered out of his
vehicle at gunpoint and taken into custody.
   Chairez was eventually advised of his Miranda rights and
interviewed by a member of the Nebraska State Patrol with the
assistance of an interpreter. Chairez admitted to having fired
the gun at Pearson’s vehicle, stating that he thought the vehicle
was following him. During the interview, he further admitted
that he purchased the firearm and acknowledged that he was a
convicted felon on federal parole.
   Chairez was originally charged with possession of a fire-
arm by a prohibited person under § 28-1206(3), discharge of
a firearm near a vehicle under Neb. Rev. Stat. § 28-1212.04
(Reissue 2016), attempted first degree assault under §§ 28-201
and 28-308, and use of a firearm to commit a felony under
§ 28-1205(1). Pursuant to a plea agreement with the State,
Chairez appeared with counsel and entered pleas of no con-
test to the charges of possession of a firearm by a prohibited
person, attempted first degree assault, and use of a firearm to
commit a felony. In exchange for the pleas, the State agreed to
dismiss the charge of discharge of a firearm near a vehicle. The
State also agreed to not file additional charges in the matter or
seek any habitual criminal enhancements, which would have
exposed Chairez to several significant mandatory minimum
sentences if he were convicted.
   During Chairez’ plea hearing, the district court judge and
Chairez engaged in a thorough colloquy in assessing the
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. CHAIREZ
                        Cite as 302 Neb. 731

validity of his pleas. When questioned by the judge, he admit-
ted, among other things, that (1) he had no difficulty under-
standing the proceedings before him, (2) he understood that
he was waiving his right to present witnesses in his case, (3)
his attorney spoke to him and he understood the immigration
consequences of his pleas and convictions, (4) his counsel
was competent, and (5) his counsel did not refuse or fail to do
anything Chairez asked of him throughout his representation
during this case.
   Although an interpreter was present throughout the pro-
ceeding, Chairez chose not to utilize the interpreter at all,
immediately answering each question in English when asked
in English by the judge. The judge further inquired regarding
Chairez’ responding in English without the use of the inter-
preter. Chairez indicated that when he answered in English, he
was doing so because he understood and was comfortable com-
municating with the judge in English. In an abundance of cau-
tion, the judge encouraged Chairez to use the interpreter if he
needed to as they continued through the proceedings. Chairez
acknowledged the judge’s statement that interpretive service
would continue to be available and then continued through the
remainder of the proceedings using English.
   Based on the evidence presented and the answers provided
by Chairez in the assessment of his pleas, the district court
found that Chairez had entered his pleas freely, knowingly,
voluntarily, and intelligently, and found Chairez guilty beyond
a reasonable doubt on all charges in the amended information.
After a subsequent sentencing hearing, the court sentenced
Chairez to an aggregate sentence of 42 to 55 years in prison,
with credit for 368 days served.
   Chairez appeals. He is represented by different counsel
on appeal.
               III. ASSIGNMENTS OF ERROR
  Chairez assigns that the district court erred in affirming the
county court’s excessive sentences. Chairez also assigns on
appeal that he received ineffective assistance of trial counsel.
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                             STATE v. CHAIREZ
                             Cite as 302 Neb. 731

                 IV. STANDARD OF REVIEW
   [1] Appellate review of a claim of ineffective assistance of
counsel is a mixed question of law and fact.1 When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error.2 With regard to the questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington,3 an appellate court
reviews such legal determinations independently of the lower
court’s decision.4
   [2] 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 whether counsel did or did not provide
effective assistance and whether the defendant was or was not
prejudiced by counsel’s alleged deficient performance.5
   [3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.6
                          V. ANALYSIS
              1. Ineffective Assistance of Counsel
   We first address Chairez’ arguments that he received inef-
fective assistance of trial counsel. Chairez argues that his trial
counsel was ineffective because counsel failed to (1) utilize an
interpreter when meeting with Chairez; (2) investigate, collect
evidence from, and meet with Chairez’ wife and mother, who
allegedly had digital evidence to corroborate that Chairez had

1
    State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
2
    Id.
3
    Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
    (1984).
4
    State v. Filholm, supra note 1.
5
    State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017).
6
    State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                             STATE v. CHAIREZ
                             Cite as 302 Neb. 731

been recently threatened by members of a Mexican drug car-
tel; and (3) file a motion to suppress Chairez’ statements made
to state troopers when he was under the influence of meth-
amphetamine. We find that the record is sufficient on direct
appeal to address Chairez’ first two contentions. However, the
record is insufficient to address his third claim.
   [4] 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,
in order to preserve such claim.7 Once raised, the appellate
court will determine whether the record on appeal is sufficient
to review the merits of the ineffective performance claims.8
   [5] We have said that the fact that an ineffective assistance
of counsel claim is raised on direct appeal does not necessarily
mean that it can be resolved.9 This is because the trial record
reviewed on appeal is generally “‘devoted to issues of guilt or
innocence’” and does not usually address issues of counsel’s
performance.10 The determining factor is whether the record is
sufficient to adequately review the question.11 An ineffective
assistance of counsel claim will not be addressed on direct
appeal if it requires an evidentiary hearing.12
   If the record is sufficient to address the ineffective assist­
ance of counsel claim, an appellate court reviews the factual
findings of the lower court for clear error.13 With regard to the
questions of counsel’s performance or prejudice to the defendant

 7
     See, State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014); State
     v. Williams, 259 Neb. 234, 609 N.W.2d 313 (2000). See, also, State v.
     Filholm, supra note 1.
 8
     State v. Abdullah, supra note 7.
 9
     State v. Filholm, supra note 1.
10
     Id. at 769, 848 N.W.2d at 578.
11
     State v. Filholm, supra note 1.
12
     State v. Abdullah, supra note 7.
13
     See State v. Filholm, supra note 1.
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                              STATE v. CHAIREZ
                              Cite as 302 Neb. 731

as part of the two-pronged test articulated in Strickland,14 an
appellate court reviews such legal determinations indepen-
dently of the lower court’s decision.15 To show deficient per-
formance, 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.16 To show prejudice, the defendant
must demonstrate a reasonable probability that but for coun-
sel’s deficient performance, the result of the proceeding would
have been different.17
              (a) Failure to Use Interpreter During
                  Meetings With Trial Counsel
   First, Chairez argues that his trial counsel was ineffective
because he neglected to utilize an interpreter when meet-
ing with Chairez. He contends that although he speaks some
English, his native language is Spanish. Chairez further con-
tends that he did not understand many of the legal terms that
his trial counsel used during their conferences prior to Chairez’
pleas. In addition, Chairez argues that because of the lan-
guage barrier, Chairez’ trial counsel failed to comprehend that
Chairez was asking him to investigate a potential affirmative
defense and Chairez was not properly advised as to the manda-
tory minimum charges and immigration consequences of his
crimes prior to entering his pleas.
   These assertions lack merit. During the plea colloquy,
Chairez, answering in English, admitted that he had no dif-
ficulty understanding the judge or the proceedings before him.
He also admitted that the judge did not use any word or phrase
that he did not understand throughout the colloquy. Chairez
expressly acknowledged during the plea colloquy that his
counsel did not neglect or refuse to do anything that Chairez
requested him to do during counsel’s representation of Chairez.

14
     Strickland v. Washington, supra note 3.
15
     State v. Filholm, supra note 1.
16
     State v. Vanderpool, 286 Neb. 111, 835 N.W.2d 52 (2013).
17
     Id.
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                         STATE v. CHAIREZ
                         Cite as 302 Neb. 731

He further expressly acknowledged to the judge that his trial
counsel performed competently and advised him of all of his
rights, including his immigration consequences, as well as the
mandatory minimum sentence requirements of his charges.
Even further, the court advised Chairez of both the immigration
consequences of his pleas, as well as the mandatory minimum
sentences associated with Chairez’ charges.
   Throughout his plea hearing, Chairez clearly stated that
counsel did not (1) act incompetently, (2) fail to investigate
anything that Chairez requested of him, or (3) fail to properly
advise Chairez as to the mandatory minimum charges and
immigration consequences of his crimes prior to entering his
pleas. Because these statements in the record affirmatively
refute Chairez’ claim that his counsel’s performance did not
equal that of a lawyer with ordinary training and skill in crimi-
nal law in the area, we find trial counsel’s performance was
not deficient for failing to utilize an interpreter during Chairez’
attorney-client meetings. Chairez does not challenge the know-
ingness and voluntariness of his admissions and responses dur-
ing his colloquy with the district court. We conclude the record
on direct appeal sufficiently shows that Chairez’ counsel’s fail-
ure to utilize an interpreter during their meetings did not render
counsel’s performance deficient.
              (b) Failure to Collect Evidence and
                Interview Exculpatory Witnesses
   Second, Chairez contends that trial counsel was ineffective
because counsel failed to investigate, collect evidence from,
and meet with exculpatory witnesses regarding an affirmative
defense. Specifically, Chairez asserts that though he indicated
to counsel that his wife and mother had digital evidence to cor-
roborate that a recent threat on Chairez’ life had been made by
a Mexican drug cartel, counsel failed to investigate this asser-
tion and interview these witnesses as related to this affirma-
tive defense. As a result, Chairez was prejudiced because this
defense could have been used at trial or as a mitigating factor
in sentencing to explain why he fired into the vehicle.
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                             STATE v. CHAIREZ
                             Cite as 302 Neb. 731

   The record on appeal refutes this contention. As stated
above, Chairez explicitly stated during his plea colloquy that
he had told his attorney everything he knew about the cases,
there was nothing that could help him in connection with the
case that he had not shared with his attorney, he was satisfied
with the job of his counsel, and there was nothing that Chairez
asked him to do that counsel failed or refused to do. Again,
Chairez does not challenge the knowingness and voluntariness
of his responses in his plea colloquy. Based on his admis-
sion that counsel did not neglect or refuse to do anything that
Chairez asked of him, we must find that Chairez’ counsel was
not ineffective, because based on Chairez’ clear and unchal-
lenged admissions in the record, his counsel’s performance was
not deficient as a matter of law.
              (c) Failure to File Motion to Suppress
   Lastly, Chairez argues that trial counsel was ineffective
by failing to file a motion to suppress his statements made
to state troopers. Chairez contends that his Miranda waiver
was involuntarily made because he was under the influence
of methamphetamine at the time and that he had informed
counsel of that fact. The State concedes that the record is not
sufficient to make a determination on this claim. The record
on appeal provides no indication of the circumstances and
facts surrounding Chairez’ Miranda waiver on the day of his
arrest. Nor is the record indicative of any potential trial strat-
egy utilized by trial counsel by rejecting to file a motion to
suppress Chairez’ statements to the state troopers on the day
of his arrest. In similar circumstances, we have found the trial
record insufficient to determine the merits of a claim on direct
appeal that counsel was ineffective for failing to file a motion
to suppress.18 We find that the record is insufficient to make

18
     See, State v. Wabashaw, 274 Neb. 394, 740 N.W.2d 583 (2007); State v.
     Dawn, 246 Neb. 384, 519 N.W.2d 249 (1994); State v. Balvin, 18 Neb.
     App. 690, 791 N.W.2d 352 (2010); State v. Heslep, 17 Neb. App. 236,
     757 N.W.2d 386 (2008); State v. Greer, 7 Neb. App. 770, 586 N.W.2d 654
     (1998).
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                              STATE v. CHAIREZ
                              Cite as 302 Neb. 731

a determination as to whether trial counsel was ineffective for
failing to file a motion to suppress.
                     2. Excessive Sentences
   We turn next to Chairez’ contention that the district court
erred by imposing excessive sentences. When a trial court’s
sentence is within the statutory guidelines, the sentence will be
disturbed by an appellate court only when an abuse of discre-
tion is shown.19
   Chairez admits that the sentences he received were within
the statutory limits. Therefore, Chairez’ sentences will be dis-
turbed only upon a finding of abuse of discretion. 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.20
   [6] Chairez argues that the court abused its discretion
because it failed to fashion sentences that fit Chairez, “given
[his] history, character, and condition.”21 When imposing a
sentence, a sentencing judge should consider 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 violence
involved in the commission of the crime.22 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.23
   Based on the record before us, the sentencing court did
not consider any inappropriate or unreasonable factors in

19
     State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
20
     State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).
21
     Brief for appellant at 15.
22
     State v. Huff, supra note 19.
23
     State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                        STATE v. CHAIREZ
                        Cite as 302 Neb. 731

determining the sentences. The presentence investigation
revealed that Chairez had a “troubling, violent criminal his-
tory,” including charges of attempted murder, murder, and
kidnapping. We find that the court did not make its decision
based upon reasons that are untenable or unreasonable, nor
was its action clearly against justice or conscience, reason,
and evidence.
                        VI. CONCLUSION
   For the foregoing reasons, we find that Chairez’ ineffec-
tive assistance of counsel assertions regarding his counsel’s
failure to utilize an interpreter when meeting with Chairez and
counsel’s failure to investigate, collect evidence, and interview
witnesses are meritless. However, we find that the record is
insufficient to address whether Chairez’ assistance of trial
counsel was ineffective for failing to file a motion to suppress
regarding Chairez’ statements. Lastly, we find that the district
court did not abuse its discretion when sentencing Chairez.
Therefore, we affirm the decision of the district court.
                                                      A ffirmed.
