State v. Diaz

STATE OF NEBRASKA, APPELLEE, v. LORENZO DIAZ, APPELLANT.

No. A-19-153.

NEBRASKA COURT OF APPEALS

August 20, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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).

Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge. Affirmed.

Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne for appellee.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

MOORE, Chief Judge.

INTRODUCTION

Lorenzo Diaz appeals from an order of the district court for Douglas County denying his request to withdraw his no contest plea to a charge of attempted second degree assault. Further, Diaz assigns that he received ineffective assistance from his counsel at the initial plea hearing and that the district court imposed an excessive sentence. We affirm.

BACKGROUND

On April 27, 2018, the State filed an information charging Diaz with second degree assault, under Neb. Rev. Stat. § 28-309(1)(a) (Reissue 2016), a class IIA felony.

The district court held a plea hearing on September 6, 2018. A certified interpreter was present at the hearing, and translated for Diaz. Both Diaz and the State indicated that they had reached a plea agreement. The State agreed to request leave to file an amended information that reduced the charge against Diaz to attempted second degree assault, a class IIIA felony, under § 28-309(1) and Neb. Rev. Stat. § 28-201(4)(c) (Reissue 2016). In exchange, Diaz agreed to plead no contest to the allegations in the State's amended information.

The State provided the following factual basis for Diaz' no contest plea:

On or about March, 24, 2018, here within Douglas County, law enforcement were dispatched to [a residence] for a domestic disturbance. They came into contact with the defendant's ex-wife, Natalie Diaz, who stated that the defendant, her ex-husband, had come to the residence [and] attempted to get into the residence by damaging a door with a brick. During the process, the victim, the twin sister, Esperanza Aponte-Trujillo[,] was also at the residence and opened up the door. The defendant then hit her with a brick[,] causing a four-inch laceration to her head. [The] State's evidence would suggest that everything happened here in Douglas County, and that the victim's injuries were serious enough that she had to go to the hospital.

Upon the district court's inquiry, Diaz affirmed that he understood the constitutional rights he was waiving by pleading no contest and that he understood the possible penalties for the charge in the State's amended information. Diaz additionally confirmed that he was entering the plea agreement voluntarily and without force or threat. Diaz affirmed that he discussed everything he knew about his case with his attorney and that he was satisfied with her representation. The court notified Diaz of the possible immigration consequences of his no contest plea:

THE COURT: Also, under Nebraska law, I further have to tell you -- or give you this following notification, and the notification that follows: If you are not a United States citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of removal from the United States or denial of naturalization pursuant to the laws of the United States. Do you understand that notification.

[DIAZ]: Yes.

The district court found that a sufficient factual basis existed to support Diaz' plea; that Diaz understood the charge and possible penalties; that Diaz understood his rights and that he knowingly, intelligently, and voluntarily waived them. The court accepted Diaz' no contest plea and found him guilty of the crime of attempted second degree assault. The court ordered a presentence investigation and set the matter for sentencing.

On October 9, 2018, Diaz' counsel moved to withdraw, asserting that Diaz wished to withdraw his plea due to allegations against her. The district court granted this motion and appointed Diaz new counsel.

Diaz subsequently filed a motion to withdraw plea through his new counsel, arguing three reasons the district court should grant his motion. First, Diaz asserted that the court failed to administer the advisement that Neb. Rev. Stat. § 29-1819.02 (Reissue 2016) requires a defendant to receive prior to the entry of a plea. Diaz next asserted that his counsel failed to provide him with effective assistance because she did not advise him of the removal risk associated with a no contest plea under Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), andbecause she failed to investigate the allegations underlying the amended information. Diaz also asserted that he did not commit the offense for which he was charged. Diaz' motion further stated "[S]uccessor counsel avers that [initial counsel] provided [Diaz] with an advisement consistent with the requirements of Padilla v. Kentucky, supra."

Prior to sentencing, the district court took up Diaz' motion to withdraw plea. The court received the translation of a letter Diaz wrote in which he asserted that he would like to change his plea because his counsel "lied" to him about the consequences of pleading no contest. The court also received a bill of exceptions from the plea hearing and Diaz' affidavit in support of his motion to change plea. In his affidavit, Diaz asserted that he was unaware of the consequences of pleading no contest to the State's charge, that he did not commit the charged offense, that he did not enter the plea voluntarily, that his initial counsel was ineffective for failing to investigate his case, and that his initial counsel was ineffective for failing to inform him of the immigration consequences of entering his plea.

After reviewing the exhibits, the court denied Diaz' motion to withdraw plea.

The district sentenced Diaz to imprisonment for a term of 3 years and credited him for 299 days served. Following release from his incarceration, the court sentenced Diaz to an 18-month term of postrelease supervision.

Diaz appeals.

ASSIGNMENTS OF ERROR

Diaz assigns, restated, that (1) the district court erred in denying his motion to withdraw plea, (2) he received ineffective assistance from his trial counsel, and (3) the district court erred in imposing an excessive sentence.

STANDARD OF REVIEW

Prior to sentencing, the withdrawal of a plea forming the basis of a conviction is addressed to the discretion of the trial court, and its ruling will not be disturbed on appeal absent an abuse of that discretion. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).

A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court. State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).

A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. State v. Ettleman, 303 Neb. 581, 930 N.W.2d 538 (2019).

Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. 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. State v. Blaha, 303 Neb. 415, 929 N.W.2d 494 (2019).

ANALYSIS

Denial of Diaz' Motion to Withdraw Plea.

Diaz assigns that the district court erred in denying his motion to withdraw plea. We disagree.

The right to withdraw a plea previously entered is not absolute. See State v. Garcia, 301 Neb. 912, 920 N.W.2d 708 (2018). When a defendant moves to withdraw his or her plea before sentencing, a court, in its discretion, may sustain the motion for any fair and just reason, provided that such withdrawal would not substantially prejudice the prosecution. State v. Schanaman, 286 Neb. 125, 835 N.W.2d 66 (2013). The defendant has the burden to show the grounds for withdrawal by clear and convincing evidence. State v. Carr, 294 Neb. 185, 881 N.W.2d 192 (2016). Clear and convincing evidence is that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved. State v. Kirby, 25 Neb. App. 10, 901 N.W.2d 704 (2017).

Diaz argues that because the State did not present any evidence at the hearing on his motion to withdraw plea, his allegations were uncontested. Diaz asserts the affidavit he presented, in the absence of other evidence from the State, established "a fair and just reason to grant the motion." Brief for appellant at 13. However, as discussed further below, the record from the plea hearing contradicts the facts contained in his affidavit, and thus, we conclude Diaz did not meet burden to prove his grounds for plea withdrawal by clear and convincing evidence.

First, Diaz asserts that the district court erred in failing to grant his motion to withdraw his no contest plea because he was unaware of the adverse immigration consequences of the plea at the time he entered it. The record does not support this conclusion.

Neb. Rev. Stat. § 29-1819.02(1) (Reissue 2016) directs trial courts to administer the following advisement to a defendant prior to accepting a plea of guilty or no contest "to any offense punishable as a crime under state law, except offenses designated as infractions under state law": "IF YOU ARE NOT A UNITED STATES CITIZEN, YOU ARE HEREBY ADVISED THAT CONVICTION OF THE OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY HAVE THE CONSEQUENCES OF REMOVAL FROM THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF...