State v. Garcia

27 Neb.App. 705

936 N.W.2d 1

STATE of Nebraska, appellee,

v.Eleazar Z. GARCIA, also known as Eleazar Garcia-Zuniga, appellant.

No. A-18-661.

Court of Appeals of Nebraska.

Filed October 22, 2019.

Thomas P. Strigenz, Sarpy County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein, for appellee.

Pirtle, Bishop, and Arterburn, Judges.

Bishop, Judge.

INTRODUCTION

Eleazar Z. Garcia, also known as Eleazar Garcia-Zuniga, entered guilty pleas to charges of second degree assault and use of a weapon to commit a felony. The Sarpy County District Court orally sentenced Garcia to 15 to 20 years' imprisonment for his conviction of second degree assault and 5 to 10 years' imprisonment for his conviction of use of a weapon to commit a felony. The latter sentence was to run consecutive to his sentence for second degree assault. Garcia claims his pleas were not intelligently and understandingly made because the district court failed to ensure statutes pertaining to interpreters were followed. He also claims that the district court abused its discretion in imposing excessive sentences and that his trial counsel was ineffective. We affirm Garcia’s convictions and sentences. However, because the district court’s oral pronouncement of the sentences does not match its written order, we remand the matter with directions to modify the written sentencing order to reflect the district court’s oral pronouncement.

BACKGROUND

In September 2017, the State filed a criminal complaint in the county court for Sarpy County, charging Garcia with one count each of attempted first degree murder, first degree sexual assault, and first degree assault. In October, the State filed an amended criminal complaint, charging Garcia with one count each of attempted second degree murder, use of a weapon to commit a felony, and terroristic threats. A journal entry and order of the county court from October shows that Garcia "require[d] an Interpreter for Spanish" and a "Court Certified" interpreter appeared at a hearing, that Garcia waived his right to a preliminary hearing on the counts as amended, and that he was bound over to the district court on those counts.

In November 2017, the State charged Garcia by information in the district court with the same counts brought under the prior amended criminal complaint. After a continuance of trial at Garcia’s request, trial was set for June 2018. A plea hearing took place on March 19, at which a self-identified "certified court interpreter" entered her appearance. Garcia answered affirmatively when the district court asked him if he could understand what the court was saying to him with the aid of the court interpreter. The district court granted the State’s request for leave to file an amended information, pursuant to a plea agreement, to charge Garcia with second degree assault (count 1) and use of a weapon to commit a felony (count 2); the State filed the amended information. Garcia waived the 24-hour notice and reading of the amended information and entered pleas of guilty to both counts. The State provided the following factual basis:

On September 2nd, 2017[,] officers responded to Bergan Mercy Hospital emergency room in reference to a woman who had a cut on her neck saying her boyfriend had caused that.

Officers made contact with ... Garcia [sic]. Stated that the ... boyfriend, ... Garcia had been arguing the evening before. She stated she proceeded to [an address on] Harvest Hills Drive in Sarpy County, Nebraska. At that time she made contact with [Garcia’s] niece ... who was also present. [The victim] also made contact with [Garcia’s sister]. They were in the living room talking about the relationship. [The victim] said she was sitting on the edge of the couch near at [sic] the kitchen. [Garcia’s sister] was standing at the top of the stairs. And [Garcia’s niece] was standing by the entrance to the kitchen. [Garcia] was outside talking to an unidentified Hispanic male. She said [Garcia] then came in and overheard [the victim] talking about taking the car and some money and leaving [Garcia]. At that time [Garcia] got angry and started yelling at her. Then, according to [the victim], as well as [Garcia’s niece], [Garcia] got quiet and calmly walked into the kitchen, walked back out of the kitchen. He went up to [the victim], grabbed her by the hair, pulled her head to the side and started attempting to cut her neck with the knife. According to [the victim], he stated you're going to stay here, I'm going to kill you. Those three parties then with the assistance of the unidentified male at some point were able to remove [Garcia] from [the victim] and take the knife from him. [Garcia] then left the scene.

Defense counsel had nothing to add to the State’s factual basis. The State then noted that "when [Garcia] went into the kitchen [the victim] and [Garcia’s niece] stated initially they didn't see a knife. But after he started to cut her, they noticed that he did have a knife, knife in his hand." Defense counsel had no objection to that further factual basis. The district court found beyond a reasonable doubt that Garcia understood the nature of the charges and the possible sentences; that Garcia’s pleas were accurate and made freely, knowingly, intelligently, and voluntarily; and that there was a factual basis for Garcia’s pleas. The district court accepted Garcia’s pleas and found him guilty of both counts.

Garcia’s sentencing hearing took place in June 2018, at which a self-identified "State Certified Spanish interpreter" appeared.

This was a different individual than the interpreter who had been present for the plea hearing. At the close of the sentencing hearing, the district court sentenced Garcia to 15 to 20 years' imprisonment on his conviction of second degree assault and 5 to 10 years' imprisonment on his conviction of use of a weapon to commit a felony (to run consecutive to his sentence for second degree assault). Garcia was given 245 days' credit for time served.

Garcia appeals.

ASSIGNMENTS OF ERROR

Garcia claims, restated and reordered, that (1) his pleas were not intelligently and understandingly made because the district court failed to ensure statutes pertaining to interpreters were followed, (2) the district court abused its discretion by imposing excessive sentences, and (3) his trial counsel was ineffective.

STANDARD OF REVIEW

An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Leahy , 301 Neb. 228, 917 N.W.2d 895 (2018).

Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. State v. Golyar , 301 Neb. 488, 919 N.W.2d 133 (2018). 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. Id.

ANALYSIS

QUALIFICATIONS OF INTERPRETERS

Garcia assigns as error that the district court erred by failing to ensure interpreter statutes were followed. We note that a similar argument was recently made by an appellant in another case before this court. See State v. Lastor , No. A-19-221, 2019 WL 3729723 (Neb. App. Aug. 1, 2019) (not selected for posting to court website). Here, Garcia argues that the district court "needed to make sure the Interpreter was certified under the rules of the Supreme Court and has taken the prescribed oath of office." Brief for appellant at 14. He assigns as error that his plea was not "intelligently and understandingly made." He argues generally about the content and purpose of the interpreter statutes and then suggests that this court should "review the record for plain error on this issue." Id. at 15. Garcia presumably requests a plain error review because he did not object to any matter concerning either interpreter during the plea or sentencing hearings, even though there were opportunities to do so at both hearings (e.g., after each interpreter stated her appearance on the record). Additionally, when asked by the district court during the sentencing hearing whether there was any reason sentencing could not proceed, Garcia’s trial counsel responded, "No." Having made no pertinent and timely objections during those hearings, his claim on appeal with respect to each interpreter is waived and is not preserved for appellate review. See, State v. Swindle , 300 Neb. 734, 915 N.W.2d 795 (2018) (failure to make timely objection waives right to assert prejudicial error on appeal); State v. Pereira , 284 Neb. 982, 824 N.W.2d 706 (2013) (generally, where no objection is made at sentencing hearing when defendant is provided opportunity to do so, any claimed error is waived and is not preserved for appellate review).

Further, we do not find the issue qualifies as plain error. See State v. Munoz , 303 Neb. 69, 927 N.W.2d 25 (2019) (appellate court may find plain error on appeal when error unasserted or uncomplained of at trial, but plainly evident from record, prejudicially affects litigant’s substantial right and, if uncorrected, would result in damage to integrity, reputation, and fairness of judicial process). We see no substantial right of Garcia’s prejudicially affected by the district court’s acceptance, without further inquiry, of the interpreters' representations that they were certified interpreters. Nebraska law requires the appointment of an interpreter in a court proceeding when the defendant is unable to communicate the English language. See Neb. Rev. Stat. §§ 25-2401 to 25-2407 (Reissue 2016). "[S]ections 25-2401 to 25-2407 provide a procedure for the appointment of such interpreters to avoid injustice and to assist such persons in their own defense." § 25-2401. Section 25-2405 states that every...