                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                     STATE V. MAGALLANES


  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.

                               JESUS J. MAGALLANES, APPELLANT.


                             Filed August 20, 2019.    No. A-18-934.


       Appeal from the District Court for Blaine County: MARK D. KOZISEK, Judge. Affirmed.
       Rodney W. Smith for appellant.
       Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.


       PIRTLE, ARTERBURN, and WELCH, Judges.
       PIRTLE, Judge.
                                        INTRODUCTION
        Jesus J. Magallanes appeals his plea-based conviction and sentence in the district court for
Blaine County for assault in the second degree, a Class IIA felony. He claims that he did not get
full credit for time served prior to sentencing and that his trial counsel was ineffective in this
regard, as well as in failing to interview or depose witnesses who provided statements to police.
Based on the reasons that follow, we affirm.
                                        BACKGROUND
        Magallanes was originally charged by information with first degree assault against Miller
Heller and Elizabeth Komach, a Class II Felony. An amended information was later filed charging
Magallanes with second degree assault against Komach in violation of Neb. Rev. Stat. § 28-309
(Reissue 2016), a Class IIA Felony. Magallanes entered into a plea agreement with the State
wherein he would plead no contest to second degree assault as set forth in the amended information



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and the State would not file charges for use of a deadly weapon to commit a felony or being a
habitual criminal.
        A plea hearing was held where the court explained to Magallanes his constitutional and
statutory rights, the charge against him, the possible penalties, and the effects of entering a no
contest plea. The State then gave the following factual basis:
        [O]n April 16th of 2017, in Blaine County, [Magallanes] and a friend came up from North
        Platte to the residence of Miller Heller, who resides in Blaine County, Nebraska.
                They had some business with a couple of people that were living there at the time.
                [Magallanes] knocked on Miller Heller’s door. Miller Heller answered that door.
        [Magallanes] entered, hit him in the chest, knocked him over -- he’s over 90 years old -- he
        fell over a chair and hit his head on the coffee table.
                Elizabeth Komach observed this, ran to his aid, and [Magallanes] then grabbed a
        cane that’s about three feet long and about three quarters of an inch round, smacked
        Elizabeth Komach on the head, causing her injury, bleeding, pain. She was taken to the
        hospital where they worked on her and stitched her back up to make her whole.
                All of this occurred within Blaine County, state of Nebraska.

        Following the State’s factual basis, the court found that a factual basis existed to support
Magallanes’ plea of no contest. It further found beyond a reasonable doubt that Magallanes
understood his rights, the nature of the charges, the possible penalties and the effect of his no
contest plea, and that he was making his plea freely, voluntarily, knowingly, and intelligently. The
court accepted Magallanes’ plea and found him guilty of second degree assault.
        On September 11, 2018, the court sentenced Magallanes to a term of imprisonment of not
less than 16 years nor more than 20 years. He was given credit for 316 days served.
                                  ASSIGNMENTS OF ERROR
        Magallanes assigns that the trial court erred in imposing an excessive sentence and in
failing to give him full credit for time served prior to sentencing. He also assigns that his trial
counsel’s performance was ineffective in failing to provide evidence to allow Magallanes to
receive full credit for time served and in failing to provide Magallanes with sufficient advice to
make an informed decision on trial strategy and a plea agreement by not conducting interviews or
depositions of several witnesses.
                                   STANDARD OF REVIEW
        Whether a defendant is entitled to credit for time served and in what amount are questions
of law, subject to appellate review independent of the lower court. State v. Phillips, 302 Neb. 686,
924 N.W.2d 699 (2019).
        An ineffective assistance of counsel claim is raised on direct appeal when allegations of
deficient performance are made with enough particularity for (1) an appellate court to make a
determination of whether the claim can be decided upon the trial record and (2) a district court
later reviewing a petition for postconviction relief to be able to recognize whether the claim was
brought before the appellate court. State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).




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        Whether a claim of ineffective assistance of trial counsel may be determined on direct
appeal is a question of law. State v. Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017). In
reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides
only questions of law: Are the undisputed facts contained within the record 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? Id.
                                           ANALYSIS
Credit for Time Served.
         Magallanes assigns that the trial court erred in imposing an excessive sentence and in
failing to give him full credit for time served prior to sentencing. However, he does not argue that
the term of imprisonment is excessive; he only argues that he is entitled to 17 additional days of
credit for time served.
         The first page of the presentence investigation states that Magallanes was entitled to 172
days’ credit for time served. At the sentencing hearing, Magallanes’ trial counsel informed the
court that Magallanes was arrested in Colorado on October 31, 2017, and was entitled to 316 days’
credit. The State agreed that Magallanes was in custody for 316 days prior to sentencing, and the
court ultimately gave Magallanes credit for 316 days.
         Magallanes argues that he was actually taken into custody for the current offense on
October 13, 2017, rather than October 31, 2017. Magallanes relies on an arrest record found in the
presentence investigation which shows that he was booked in Denver County, Colorado, on
October 13. The presentence investigation also shows that Magallanes told Mid-Plains Center for
Behavioral Healthcare Services that he was arrested for the current offense in Denver, Colorado,
on October 13. Magallanes contends that the use of the October 31 date, rather than October 13,
denied him 17 days of credit for time served and that therefore, he is serving a sentence in excess
of that allowed by law.
         The arrest record from Denver County, Colorado, on which Magallanes relies, does not
state the offense for which he was arrested and booked. Further, Magallanes’ criminal history in
the presentence investigation indicates that on October 13, 2017, he committed a misdemeanor
offense, possession of a controlled substance, in Denver, Colorado. He was sentenced to 6 months
in jail as a result of the Colorado possession of a controlled substance offense.
         Neb. Rev. Stat. § 83-1,106 (Reissue 2014) provides in part that an offender is to be given
credit for time spent in custody as a result of a criminal charge for which a prison sentence is
imposed or as a result of the conduct on which such a charge is based. Under our statutes, an
offender shall be given credit for time served as a result of the charges that led to the sentences;
however, presentence credit is applied only once. State v. Banes, 268 Neb. 805, 688 N.W.2d 594
(2004).
         The Nebraska Supreme Court has stated that “what matters in the credit for time served
analysis is not whether [the defendant] was detained in Nebraska and awaiting trial and sentencing
on Nebraska charges, but, rather, whether [the defendant] was forced to be in custody because of
those charges.” State v. Leahy, 301 Neb. 228, 235, 917 N.W.2d 895, 900-01 (2018) (emphasis in




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original). Therefore, any time served for the Colorado offense could not be applied as credit to the
sentence imposed by the trial court for Magallanes’ second degree assault offense.
        Based on the presentence investigation, any time Magallanes was in custody between
October 13 and October 31, 2017, was as result of the misdemeanor charge in Colorado. The record
does not support Magallanes’ contention that he was taken into custody for the current offense on
October 13 rather than October 31. Magallanes’ trial counsel stated that Magallanes was arrested
in Colorado for the present charge on October 31, and both parties agreed that Magallanes was
entitled to 316 days’ credit. The record supports this calculation. We determine that Magallanes
was not entitled to an additional 17 days of credit for time served and that the trial court did not
err in giving him credit for 316 days.
        We note that the State suggests that Magallanes was actually given more days of credit
than he was entitled to. It suggests his credit should be modified to reflect the original 172 days
calculated in the presentence investigation. However, the State did not cross-appeal so we will not
address its argument further.
Ineffective Assistance of Counsel.
        Magallanes next assigns that his trial counsel provided ineffective assistance in regard to
two matters. 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 counsel’s performance was deficient and that this deficient performance actually prejudiced
his or her defense. State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016). The two prongs of this test
may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a
strong presumption that counsel’s actions were reasonable. Id.
        Magallanes is represented on direct appeal by different counsel than the counsel who
represented him at trial. 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. Otherwise, the issue
will be procedurally barred. Id.
        An ineffective assistance of counsel claim is raised on direct appeal when the claim alleges
deficient performance with enough particularity for (1) an appellate court to make a determination
of whether the claim can be decided upon the trial record and (2) a district court later reviewing a
petition for postconviction relief to recognize whether the claim was brought before the appellate
court. Id.
        The fact that an ineffective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved on direct appeal. Id. The determining factor is whether the
record is sufficient to adequately review the question. Id. An ineffective assistance of counsel
claim will not be resolved on direct appeal if it requires an evidentiary hearing. Id.
        Magallanes first argues that his trial counsel was ineffective in failing to provide evidence
to allow Magallanes to receive full credit for time served prior to sentencing. Having found no
error in the credit given for time served, Magallanes cannot show that trial counsel’s performance
in this regard was deficient and therefore, cannot show that trial counsel was ineffective. As a




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matter of law, counsel cannot be ineffective for failing to raise a meritless argument. State v.
Schwaderer, 296 Neb. 932, 898 N.W.2d 318 (2017).
        Magallanes next argues that his trial counsel was ineffective in failing to interview or take
depositions of several witnesses who provided statements to the police about the incident that led
to the second degree assault charge. This assignment of error primarily arises out of two statements
submitted by one witness, Nancy Sipes. Magallanes contends that Sipes’ second statement
contradicted her first statement, as well as the statements by other witnesses. The second statement
also provided a motive of the witnesses for making the allegations against Magallanes that they
did. Magallanes argues that his trial counsel should have interviewed or deposed Sipes and other
witnesses following Sipes’ second, inconsistent statement. He contends that because the record
does not show whether or not trial counsel conducted interviews or depositions, the record is
insufficient to review this claim on direct appeal. We agree that the record is void of any indication
as to whether trial counsel interviewed or deposed any witnesses. Accordingly, we conclude that
the record is insufficient to address this ineffective assistance of counsel claim on direct appeal.
Victim Impact Statement.
        Magallanes also argues in his appellate brief that the trial court erred in failing to strike and
giving consideration to a victim impact statement contained in the presentence investigation.
However, Magallanes did not assign the court’s consideration of the victim impact statement as
error. An appellate court does not consider errors which are argued but not assigned. State v.
McGinn, 303 Neb. 224, 928 N.W.2d 391 (2019). Accordingly, we do not address the victim impact
statement issue.
                                           CONCLUSION
       We affirm Magallanes’ conviction and sentence. In regard to his ineffective assistance of
counsel claims, the record was sufficient to refute his claim of ineffectiveness in regard to credit
for time served, but insufficient to resolve the claim related to interviewing and deposing
witnesses.
                                                                                        AFFIRMED.




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