                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        STATE V. PARSON


  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.

                                MICHAEL J. PARSON, APPELLANT.


                           Filed November 17, 2015.      No. A-15-306.


       Appeal from the District Court for Lancaster County: PAUL D. MERRITT, JR., Judge.
Affirmed.
       Robert Wm. Chapin, Jr., for appellant.
       Douglas J. Peterson, Attorney General, and George R. Love for appellee.


       MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
       BISHOP, Judge.
        Michael J. Parson pled no contest to one count of third degree domestic assault in violation
of Neb. Rev. Stat. § 28-323(1) (Cum. Supp. 2014). The district court for Lancaster County
accepted his plea and sentenced him to 180 days’ imprisonment. Parson appeals, contending that
(1) the district court erred by relying on double hearsay to determine that a factual basis existed
for the plea and (2) his trial counsel was ineffective for failing to object to the factual basis on
hearsay grounds. For the following reasons, we affirm.
                                        BACKGROUND
       On October 7, 2014, the State filed a complaint in the county court for Lancaster County
charging Parson with one count of third degree domestic assault arising out of an incident that
occurred on October 5 of that year in Lancaster County, Nebraska. The State alleged that on that
date Parson intentionally and knowingly caused bodily injury to his intimate partner, Amanda



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Parson, or threatened her with imminent bodily injury. Because the State alleged that Parson had
two prior convictions of third degree domestic assault, it charged Parson with a Class IV felony.
See § 28-323(4).
        Parson waived his right to a preliminary hearing and was bound over to the district court
for Lancaster County. On January 26, 2015, the State filed an amended information in the district
court reducing the classification of the charge from a Class IV felony to a Class I misdemeanor by
omitting the allegation that Parson had two prior convictions of third degree domestic assault. See
§ 28-323(4). In exchange for the reduced charge, Parson agreed to plead either guilty or no contest.
        A plea hearing took place on January 26, 2015. Parson, who was represented by counsel,
pled no contest. Prior to accepting his plea, the court inquired into his competency and found him
competent. It then advised Parson of the nature of the charge and extensively advised him of the
rights he would waive if he pled guilty or no contest. The court ensured Parson understood these
rights and understood he would waive them by pleading no contest. The court also explained the
range of potential punishments for the crime.
        The court asked the prosecutor to provide the factual basis for the charge, which was as
follows:
                 On Sunday, October 5th of 2014, at approximately 6:13 a.m., officers of the Lincoln
        Police Department were dispatched to [an address in Lancaster County] in regards to a
        domestic assault. Upon arrival, officers met the resident -- or met the owner of that
        residence, Sara Mares, and her friend, Kelli Erickson. Ms. Mares said that at approximately
        5 a.m. that morning, there was a loud knock at her door. She said Amanda Parsons [sic]
        had come over and it appeared to her that Amanda Parsons [sic] had been assaulted. She
        observed, on Ms. Parsons’ [sic] face -- she observed bruising on Ms. Parsons’ [sic] face
        and dried blood around her mouth. She said that, at that time, Ms. Parsons [sic] told her
        that she had been assaulted by her husband, the defendant in this case, Mr. Michael Parsons
        [sic]. Ms. Parsons [sic] stated, during that night, she rolled over onto the defendant, in bed,
        which made him angry. She said, at this time, the defendant grabbed her head and slammed
        it onto the floor several times. Ms. Mares stated that Ms. Parsons [sic] also lifted her shirt
        to reveal several bruises on her breasts. According to Ms. Mares, Ms. Parsons [sic] said the
        defendant had grabbed and twisted her breasts and also urinated in her hair. Ms. Parsons
        [sic] told Ms. Mares that their daughter . . . age 11 at the time, witnessed the assault. Ms.
        Parsons [sic] also stated that, “He violated me down there,” but would not elaborate any
        further on that.
                 Ms. Erickson, who was spending the night at Ms. Mares’ home, said that she is a
        friend of Ms. Parsons [sic] as well, and was present during the explanation given by Ms.
        Parsons [sic]. Ms. Mares said, as she was calling the Lincoln Police Department, Ms.
        Parsons [sic] told them that she was leaving because she did not want the defendant to lose
        his job, as he is the main source of family income.
                 When officers made contact with Ms. Parsons [sic] at her home, she denied any
        assault had occurred and said that she had fell. Officers observed bruising, swelling and
        abrasions on her face, as well as dried blood around her mouth.




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             Ms. Parsons [sic] was very uncooperative and would not allow officers into the
       home or to take photographs of her.
             Ms. Parsons [sic] and the defendant were married at the time.
             All of these events occurred in Lancaster County, Nebraska.

After hearing the factual basis, Parson informed the court that he had discussed any and all possible
defenses to the charge with his attorney and that he still wished to plead no contest. The court
accepted Parson’s plea, finding it was freely, voluntarily, knowingly, and intelligently made. The
court then sentenced Parson to 180 days’ imprisonment. Parson timely appeals to this court.
                                   ASSIGNMENTS OF ERROR
        Restated and renumbered, Parson assigns that (1) the district court erred in relying on
double hearsay to find a factual basis for his plea and (2) trial counsel was ineffective by not
objecting to the factual basis on hearsay grounds.
                                    STANDARD OF REVIEW
        A plea of no contest is equivalent to a plea of guilty. State v. Gonzalez-Faguaga, 266 Neb.
72, 662 N.W.2d 581 (2003). A trial court is afforded discretion in deciding whether to accept guilty
pleas, and an appellate court will reverse the trial court’s determination only in case of an abuse of
discretion. State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999). An abuse of discretion takes place
when the court’s reasons or rulings are clearly untenable and unfairly deprive a litigant of a
substantial right and a just result. Id.
        A claim that defense counsel provided ineffective assistance presents a mixed question of
law and fact. State v. Sidzyik, 281 Neb. 305, 795 N.W.2d 281 (2011). In order to establish a right
to relief based on a claim of ineffective assistance of counsel, the defendant has the burden, in
accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
to show that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the defense in his or her case. Sidzyik, supra.
        The fact that an ineffective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved. Id. The determining factor is whether the record is
sufficient to adequately review the question. Id.
                                            ANALYSIS
        The voluntary entry of a plea of guilty or no contest waives every defense to a charge,
whether the defense is procedural, statutory, or constitutional. State v. Trackwell, 250 Neb. 46, 547
N.W.2d 471 (1996). When a defendant pleads guilty or no contest, he is limited to challenging
whether the plea was understandingly and voluntarily made and whether it was the result of
ineffective assistance of counsel. State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008). The
establishment of a factual basis for a plea is a component of finding that a plea was understandingly
and voluntarily made. State v. Parks, 8 Neb. App. 491, 596 N.W.2d 712 (1999). A factual basis
for a plea may be determined from inquiry of the defendant, inquiry of the county attorney, or
examination of the presentence investigation report. State v. Richter, 220 Neb. 551, 371 N.W.2d




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125 (1985). One purpose of determining that a factual basis exists is to ensure that a defendant
actually committed an offense at least as serious as the one to which he is willing to plead guilty.
State v. Jost, 219 Neb. 162, 361 N.W.2d 526 (1985).
Sufficiency of Factual Basis.
         Parson argues that the district court erred in relying on double hearsay to determine that a
factual basis existed for his plea. Parson contends that the State’s factual basis consisted of
statements from Mares as to what Amanda told her; he maintains the statements are inadmissible
double hearsay and without them the factual basis is insufficient. He points out that other than
Mares’ statements as to what Amanda told her, the only facts were the bruises, swelling, and
abrasions observed by Mares and the officers. According to Parson, these observations alone do
not establish that he committed third degree domestic assault.
         Parson has not cited any case, and our research has uncovered none, holding that the
Nebraska Rules of Evidence apply to a trial court’s inquiry into the factual basis for a plea. In fact,
case law suggests otherwise. As stated, a trial court may determine whether a factual basis exists
for a plea from inquiry of the defendant, inquiry of the county attorney, or examination of the
presentence investigation report. Richter, supra. Cleary, this contemplates an informal colloquy
between the trial court and the defendant or between the trial court and the county attorney, rather
than a formal evidentiary hearing subject to the rules of evidence. Notably, statements from the
county attorney would not be admissible under the rules of evidence, yet they are sufficient to
establish a factual basis for a plea. See Neb. Rev. Stat. § 27-602 (Reissue 2008) (providing that a
witness may testify to a matter only if he or she has personal knowledge of the matter). See, also,
Neb. Ct. R. of Prof. Cond. § 3-503.7 (generally prohibiting a lawyer from combining the roles of
advocate and witness).
         Moreover, Parson’s contention that hearsay cannot form part of the factual basis for a plea
is undermined by the consideration that statements included in a presentence investigation
constitute hearsay. A presentence investigation includes, among other things, any written
statements submitted by the victim. Neb. Rev. Stat. § 29-2261(3) (Cum. Supp. 2014). Such
statements qualify as hearsay and would be inadmissible at trial. See Neb. Rev. Stat. § 27-801(3)
(Reissue 2008) (defining hearsay as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”).
Nevertheless, they may provide the factual basis for a plea in whole or in part.
         Parson asserts that “[t]his matter would be different if the [county attorney] had stated that
if this matter went to trial they [sic] would call the alleged victim who would testify as follows.”
Brief for appellant at 8. He points out that the factual basis suggested that Amanda had been
uncooperative with authorities, which implies that she would not be willing to testify against
Parson at trial. In essence, Parson is suggesting that to establish a factual basis, the State must
indicate which witnesses it would call at trial and how it would prove the defendant’s guilt.
However, Parson has cited no authority imposing such a requirement, and we have found none.
Regardless, it would be pure speculation at this point to conclude that Amanda would be unwilling
to testify against Parson at trial, or that Amanda and Parson’s daughter would be unwilling to
testify (the factual basis indicates that the daughter witnessed the assault).



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        Having rejected Parson’s argument that the factual basis improperly contained double
hearsay, we conclude that the trial court did not abuse its discretion in determining that a sufficient
factual basis existed for Parson’s plea to third degree domestic assault. As pertinent here, a person
commits third degree domestic assault if he or she intentionally and knowingly causes bodily
injury to his or her intimate partner, which includes a spouse. § 28-323(1)(a), (6). “Bodily injury”
means “physical pain, illness, or impairment of physical condition.” Neb. Rev. Stat. § 28-109(4)
(Reissue 2008). If the State proved the facts contained in the factual basis at trial, including that
Parson grabbed Amanda’s head and slammed it onto the floor several times, it would prove
Parson’s guilt of third degree domestic assault beyond a reasonable doubt.
Ineffective Assistance of Counsel.
        Parson also assigns that trial counsel was ineffective for failing to object to the factual basis
for his plea. He contends that counsel should have objected to the factual basis on grounds that it
included inadmissible double hearsay. Because we have already concluded that the factual basis
was sufficient despite any hearsay included in it, we conclude that Parson’s claim for ineffective
assistance of counsel has no merit; the record is sufficient for us to make this determination on
direct appeal. See State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015) (an ineffective
assistance of counsel claim made on direct appeal can be found to be without merit if the record
establishes that trial counsel’s performance was not deficient).
                                           CONCLUSION
      For the foregoing reasons, we affirm the judgment of the district court for Lancaster
County.
                                                                                 AFFIRMED.




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