State v. Betancourt-Garcia

1

317 Neb. 174

State of Nebraska, Appellee, v. Rosario Betancourt-Garcia, Appellant.

No. S-23-738

Supreme Court of Nebraska

July 19, 2024

1. Postconviction: Evidence: Witnesses: Appeal and Error. In an evidentiary hearing on a motion for postconviction relief, the trial judge, as the trier of fact resolves conflicts in the evidence and questions of fact. An appellate court upholds the trial court's findings unless they are clearly erroneous.

2. 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.

3. Criminal Law: Evidence: Proof. To establish an alibi defense, a defendant must show (1) he or she was at a place other than where the crime was committed and (2) he or she was at such other place for such a length of time that it was impossible to have been at the place where and when the crime was committed.

4. Effectiveness of Counsel: Appeal and Error. When a claim of ineffective assistance of appellate counsel is based on the failure to raise a claim on direct appeal of ineffective assistance of trial counsel (a layered claim of ineffective assistance of counsel), an appellate court will first look at whether trial counsel was ineffective under the test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If trial counsel was not ineffective, then the defendant was not prejudiced by appellate counsel's failure to raise the issue.

5. Effectiveness of Counsel: Proof: Appeal and Error. 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 this deficient performance actually prejudiced the defendant's defense.

6. Effectiveness of Counsel: Proof. To show that counsel's performance was deficient, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.

7. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice in a claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

8. Trial: Effectiveness of Counsel: Appeal and Error. A reasonable strategic decision to present particular evidence, or not to present particular evidence will not, without more, sustain a finding of ineffective assistance of counsel. Strategic decisions made by trial counsel will not be second-guessed so long as those decisions are reasonable.

9. Rules of Evidence: Impeachment: Prior Statements. Prior inconsistent statements are admissible as impeachment evidence, but they are not admissible as substantive evidence unless they are otherwise admissible under the Nebraska Evidence Rules.

10. Actions: Appeal and Error. Unlike the doctrines of claim preclusion and issue preclusion, which involve successive lawsuits, the law-of-the-case doctrine involves successive stages of one continuing lawsuit.

11. __: __. When it applies, the law-of-the-case doctrine operates to preclude reconsideration of substantially similar, if not identical, issues at successive stages of the same suit or prosecution.

12. __: __. The law-of-the-case doctrine promotes judicial efficiency and protects parties' settled expectations by preventing parties from relitigating settled issues within a single action.

Appeal from the District Court for Madison County, Mark A. Johnson, Judge. Affirmed.

Jack W. Lafleur, of Moyer, Moyer &Lafleur, for appellant.

Michael T. Hilgers, Attorney General, and Austin N. Relph for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke and Papik, JJ.

FUNKE, J.

INTRODUCTION

This appeal arises from a petition for postconviction relief filed by Rosario Betancourt-Garcia (Betancourt). After an evidentiary hearing, the district court for Madison County, Nebraska, granted Betancourt relief in the form of corrected sentences for two of his convictions. But the district court denied Betancourt's claim that his appellate counsel was ineffective for failing to raise a claim on direct appeal that his trial counsel were ineffective in their handling of his alibi defense and his "misidentification defense." Betancourt appeals that ruling and also argues that he was entitled to an evidentiary hearing on other claims of ineffective assistance of counsel. Because the district court did not err in finding that trial counsel made a reasonable strategic decision in their handling of the purported defenses, and because Betancourt's other claims either resulted in relief or are precluded under the law-of-the-case doctrine, we affirm.

BACKGROUND

This is the fourth time that we have opined on matters related to Betancourt's convictions.^[1] The following summary of the proceedings to date is based on our prior opinions.

Convictions and Direct Appeal

Betancourt was convicted of kidnapping, use of a firearm to commit a felony, and conspiracy to commit kidnapping after his nephew was found bound and gagged in Madison Nebraska, on November 15, 2003. Betancourt was subsequently arrested in Texas, but he did not stand trial until over a decade later. At trial, Betancourt testified that he was working 6 days a week or more in Houston, Texas, at the time of the offenses. However, Betancourt's nephew testified that Betancourt was one of two men who kidnapped and threatened to kill him and left him bound and gagged in a shed near Betancourt's former house. The other man involved in the kidnapping also testified to Betancourt's involvement.

Betancourt was sentenced to consecutive terms of life imprisonment for kidnapping and 10 to 30 years' imprisonment, including a mandatory minimum of 5 years' imprisonment, for use of a weapon to commit a felony. Further, the district court treated the conspiracy conviction as a Class II felony and sentenced Betancourt to 30 to 50 years' imprisonment, to be served concurrently with the other sentences.

Betancourt appealed his convictions and sentences, arguing that the district court erred in several regards and that he received ineffective assistance of counsel. We rejected those arguments. We also declined to consider Betancourt's argument that his trial counsel were ineffective in failing to investigate, develop, and present exculpatory evidence to support his alibi defense, because that claim was not assigned in his brief on appeal.^[2] But we found plain error in Betancourt's sentence for the conspiracy conviction, which was inconsistent with the statutory framework. As such, we vacated that sentence and remanded the matter to the district court with directions to resentence Betancourt to "life imprisonment" for conspiracy.

On remand, Betancourt was resentenced, without objection, to "life imprisonment without parole."

Motion for Postconviction Relief and Appeal of Denial of Evidentiary Hearing

Betancourt then filed a verified petition for postconviction relief. In that petition, Betancourt alleged that his appellate counsel on direct appeal was ineffective for failing to raise several claims of ineffective assistance of trial counsel (layered claims of ineffective assistance of counsel). The district court granted an evidentiary hearing on Betancourt's layered claims of ineffective assistance of counsel, based on the failure to assert an alibi defense, pursuit of a "misidentification defense," and failure to object to Betancourt's sentence for use of a firearm to commit a felony, which should not have included a mandatory minimum. But the district court denied Betancourt's remaining claims without an evidentiary hearing on the grounds that they were insufficiently alleged, were affirmatively refuted by the evidence in the record, or were not examples of ineffective assistance of counsel.

Betancourt appealed the district court's order denying him an evidentiary hearing on his remaining claims. On appeal, we affirmed that order except as to Betancourt's claim that appellate counsel, while serving as trial counsel upon remand for resentencing on the conspiracy conviction, was ineffective for not objecting to the imposition of a sentence of "life imprisonment without parole." Because that sentence was not a valid sentence, we remanded the cause to the trial court for a hearing on Betancourt's sentence for conspiracy.

Evidentiary Hearing

On remand, the district court held an evidentiary hearing on Betancourt's layered claims of ineffective assistance of counsel regarding his (1) alibi defense, (2) "misidentification defense," (3) sentence for use of a firearm to commit a felony, and (4) sentence for conspiracy. Betancourt testified at the hearing, as did four of the five attorneys (Attorneys 1 through 5) who represented him in these proceedings. That testimony is summarized below as it relates to the parties' arguments on appeal.

Betancourt testified that he moved to Houston 20 days or more before the offenses and that he was working in Houston on November 15, 2003. Betancourt also testified that he advised counsel that his former employer and an...