State v. Betancourt-Garcia

310 Neb. 440

967 N.W.2d 111

STATE of Nebraska, appellee,

v.Rosario BETANCOURT-GARCIA, appellant.

No. S-20-538.

Supreme Court of Nebraska.

Filed December 3, 2021

Brad J. Montag, of Egley, Fullner, Montag, Morland & Easland, P.C., for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Papik, JJ., and Harder and Masteller, District Judges.

Miller-Lerman, J.

I. NATURE OF CASE

Rosario Betancourt-Garcia (Betancourt), who is serving sentences of imprisonment for his convictions for kidnapping, use of a firearm to commit a felony, and conspiracy to commit kidnapping, filed a petition for postconviction relief. The district court for Madison County granted an evidentiary hearing on three of Betancourt's claims and denied the balance of Betancourt's petition without an evidentiary hearing. Betancourt appeals. He claims on appeal that he was entitled to an evidentiary hearing generally concerning several layered claims of ineffective assistance of appellate counsel, related to, inter alia, the handling of lost or destroyed evidence, potential plea offers, translation discrepancies, witness investigations, and a sentencing error. Because Betancourt alleged ineffective assistance of counsel for failing to object on remand to the unauthorized sentence of "life imprisonment without parole" on the conspiracy conviction, we remand this cause to the district court for a hearing. With respect to the remaining claims, because Betancourt failed to allege facts that show he was entitled to relief, or the record or law refute his claims, we affirm the judgment of the district court.

II. STATEMENT OF FACTS

The facts surrounding Betancourt's convictions are set forth in our opinion in State v. Betancourt-Garcia , 295 Neb. 170, 887 N.W.2d 296 (2016) (Betancourt I ), abrogated on other grounds, State v. Guzman , 305 Neb. 376, 940 N.W.2d 552 (2020). See, also, State v. Betancourt-Garcia , 299 Neb. 775, 910 N.W.2d 164 (2018) (Betancourt II ). The evidence at trial reflected that Betancourt and Leonel Torres-Garcia (Torres) kidnapped Betancourt's nephew, Pedro Jesus Rayon-Piza (Pedro), bound him, gagged him, threatened him with a gun, and placed him in a shed. The State's theory was that Betancourt believed that Pedro or his brother Jose Rayon-Piza (Jose) knew the whereabouts of Betancourt's wife, Gabriela Ortiz, from whom Betancourt was separated. Betancourt believed that Jose was "going out" with Ortiz. Pedro testified that Betancourt told him that he was going to leave him there, bring Jose to the same location, and kill them both. Pedro, still bound, managed to stand, exit the open door of the shed, and jump to the nearest house, evidently where Paula Chadwick and Bob Chadwick lived and where officers found Pedro. Torres also testified that he and Betancourt had kidnapped Pedro.

In 2015, following a jury trial, Betancourt was convicted of count I, kidnapping, a Class IA felony, for which he was originally sentenced to a term of life imprisonment; count II, use of a firearm to commit a felony, a Class IC felony, for which he was originally sentenced to a term of 10 to 30 years’ imprisonment, including a mandatory minimum of 5 years’ imprisonment; and count III, conspiracy to commit kidnapping, a Class II felony, for which he was originally sentenced to a term of 30 to 50 years’ imprisonment. The sentences for kidnapping and conspiracy were to be served concurrently, and the sentence for use of a firearm was to be served consecutively thereto.

Prior to trial, Betancourt was variously represented by the Madison County public defender and, subsequently, by private counsel. Through trial and sentencing, Betancourt was again represented by the Madison County public defender's office, through a different public defender and a deputy public defender. Betancourt had different counsel for his direct appeal and subsequent resentencing and still other counsel in Betancourt II , one of whom continues to represent Betancourt in this postconviction proceeding.

On the direct appeal, we affirmed the convictions and affirmed the sentence in part and remanded the sentence in part for resentencing on the conspiracy count to impose a life sentence rather than a range of years. Betancourt I , supra. On January 27, 2017, without objection, Betancourt was resentenced on his conspiracy conviction "to life imprisonment without parole."

On February 27, 2017, Betancourt filed a motion for forensic DNA testing seeking to have certain items of physical evidence, including duct tape, tennis shoes, and shoelaces, tested for DNA evidence. The record showed that the evidence had been destroyed prior to the filing of the motion. Although originally arrested in 2004, Betancourt was deported and rearrested in 2013. At the time the evidence was destroyed in 2010, Betancourt had been deported, his whereabouts were unknown, and the charges against him had been pending for 7 years. Following a hearing, the district court overruled Betancourt's motion for DNA testing. Because the material sought to be tested was not in the actual or constructive control of the State or others as required by Neb. Rev. Stat. § 29-4120(1)(b) (Reissue 2016), we affirmed the district court's order. See Betancourt II , supra.

On October 19, 2017, Betancourt filed a verified petition for postconviction relief. Following a records hearing on the operative postconviction motion, the district court granted an evidentiary hearing on three of Betancourt's claims, including his claim that appellate counsel failed to raise the issue of the trial counsel's failure to explore an alibi defense; the choice to pursue a misidentification defense; and the failure to object to Betancourt's invalid sentence for count II, which should not have included a mandatory minimum. The district court denied Betancourt's remaining claims without an evidentiary hearing. The district court found, with respect to the unsuccessful claims addressed in the order, they either were insufficiently alleged, were affirmatively refuted by evidence in the record, or were not examples of ineffective assistance of trial and/or appellate counsel.

Betancourt appeals.

III. ASSIGNMENTS OF ERROR

Betancourt assigns, summarized and restated, that the district court erred when it denied him an evidentiary hearing generally on the issues of (1) lost or destroyed evidence, (2) ineffective assistance of appellate counsel for failing to raise the trial counsel's ineffectiveness ensuring Betancourt understood a plea offer, and (3) other claims of ineffective assistance of appellate counsel. The other claims of ineffectiveness of appellate counsel generally relate to failing to raise trial counsel's ineffectiveness for the following:

• Claim 3(a), not moving to quash counts I (kidnapping) and II (use of a firearm to commit a felony) of the information based on the statute of limitations;

• Claim 3(b), not moving to quash and/or dismiss count II (use of a firearm to commit a felony);

• Claim 3(c), not objecting to hearsay testimony at a preliminary hearing;

• Claim 3(d), not securing a different translator; • Claim 3(e), operating under a conflict of interest within the Madison County public defender's office;

• Claim 3(f), not calling Ernest Nino-Mucia to testify regarding inaccurate translations;

• Claim 3(g), not moving for a directed verdict on count III (conspiracy);

• Claim 3(h), not investigating, deposing, and subpoenaing the Chadwicks to testify on their observations of Pedro;

• Claim 3(i), not moving for a new trial based on alleged lack of opportunity to confront Paula Chadwick;

• Claim 3(j), not objecting to Ortiz’ testimony regarding Betancourt's domestic assault;

• Claim 3(k), not objecting to jury instructions Nos. 2, 4, 8, 13, and 15;

• Claim 3(l), not adequately advising Betancourt about his right not to testify;

• Claim 3(m), not objecting on remand to the district court's sentence of "life imprisonment without parole" on the conspiracy conviction; and

• Claim 3(n), failing to raise plain error on the district court's refusal to instruct the jury on the lesser-included offense of first degree false imprisonment.

IV. STANDARDS OF REVIEW

In appeals from postconviction proceedings, an appellate court reviews de novo a determination that the defendant failed to allege sufficient facts to demonstrate a violation of his or her constitutional rights or that the record and files affirmatively show that the defendant is entitled to no relief. State v. Malone , 308 Neb. 929, 957 N.W.2d 892 (2021), modified on denial of rehearing 309 Neb. 399, 959 N.W.2d 818.

Claims of ineffective assistance of counsel involve mixed questions of law and fact. Id. When reviewing claims of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error and the legal determinations de novo. Id.

V. ANALYSIS

As an initial matter, we observe that Betancourt's appeal of the district court's order of July 1, 2020, is properly before us, because within a postconviction proceeding, an order granting an evidentiary hearing on some issues and denying a hearing on others is a final, appealable order as to the claims denied without a hearing. State v. Koch , 304 Neb. 133, 933 N.W.2d 585 (2019). Such an order is appealable because as to the denied claim, it is a "final judgment" under Neb. Rev. Stat. § 29-3002 (Reissue 2016). State v. Koch, supra .

Below, we analyze each of Betancourt's assignments of error. We find merit only to Betancourt's claim that upon remand occasioned by Betancourt I , Betancourt's counsel was deficient for failing to object to the district court's imposition of a sentence for conspiracy (count III) of "life imprisonment without parole," rather than "life imprisonment." We remand the cause to the district court for a hearing on this claim, and we affirm the order of the district court with respect to Betancourt's remaining claims.

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