State v. Martin Benito Ya

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 Dodge County: Geoffrey C. Hall, Judge. Affirmed.

Richard Register, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee.

Riedmann, Bishop, and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Arterburn, Judge.

INTRODUCTION

Martin Benito Ya appeals from his plea-based convictions in the district court for Dodge County for first degree sexual assault of a child and incest. On appeal, Benito Ya alleges that the district court failed to preserve an accurate record of the proceedings, erred by not ensuring he understood the proceedings, and imposed excessive sentences. For the reasons set forth herein, we affirm.

BACKGROUND

On February 17, 2021, the State charged Benito Ya by information with two counts of first degree sexual assault of a child, two counts of incest, and two counts of child abuse. Pursuant to a plea agreement, the State amended the information to charge Benito Ya with one count of first degree sexual assault of a child, a Class IB felony, pursuant to Neb. Rev. Stat. § 28-319.01 (Reissue

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2016), and one count of incest, a Class IIA felony, pursuant to Neb. Rev. Stat. § 28-703 (Reissue 2016). Benito Ya pled no contest to the charges contained in the amended information.

Benito Ya does not read, write, or speak English. He speaks K'iche', a Mayan language. He was appointed an interpreter to assist him during the court proceedings; however, there is no court certification for the K'iche' language. At the initial hearing before the district court, Benito Ya's counsel informed the court that there would be some translation issues because Benito Ya could not read the rights or advisories in his native language. However, his counsel also stated that "[t]he Court should be informed that we've had multiple communications with this interpreter and [Benito Ya] and explained various things. He does appear to understand and respond appropriately to this language as it is being translated."

At that same hearing, the district court informed Benito Ya that first degree sexual assault of a child is a Class IB felony. The court at that time incorrectly advised Benito Ya that the minimum sentence is 20 years' imprisonment, but accurately identified the maximum sentence as being life imprisonment. See State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015). Initially, Benito Ya indicated that he did not understand the court's sentencing advisement. The district court explained the sentencing advisement again, and Benito Ya then informed the court that he now understood the advisement. The district court then advised Benito Ya that the charge of incest is a Class IIA felony, which carries a minimum sentence of no imprisonment and a maximum sentence of 20 years' imprisonment. After the district court advised Benito Ya about the possible sentences and his rights, Benito Ya's counsel informed the court:

I have spoken with my client [and] with the interpreter on multiple occasions. We have reviewed these rights with him He's had ample opportunity to ask follow-up questions to see if he would understand those rights. And when he did not understand a technical word, other words were substitute[d] with equivalent meaning. For example, cross-examination was used by me in the terms of ask questions of their witness This has happened on multiple occasions. All his questions have been answered ad infinitum

The district court continued to pursue whether Benito Ya understood what was happening by asking him if there were any words or phrases that he did not understand. Benito Ya, through his interpreter, affirmatively indicated that he understood. When Benito Ya's counsel was asked whether he believed that Benito Ya fully understood his rights and the consequences of waiving those rights, his counsel responded in the affirmative. Counsel specifically stated that there was no reason the court should not accept Benito Ya's pleas.

The factual basis provided by the State revealed that between November and December 2018, Benito Ya had penile-vaginal sexual intercourse with his biological daughter, D.B.T., who was 15 years old. D.B.T. became pregnant with Benito Ya's child. The child was born in May 2019 and had a type of anemia, normally associated with children from incestuous relationships. A DNA paternity test was conducted and confirmed that Benito Ya is both the biological father and biological grandfather of D.B.T.'s child.

The court found that Benito Ya fully understood his rights, that he freely and voluntarily waived them, and that he fully understood the nature of the charges brought against him and the penalties that can be imposed. The court further found that Benito Ya's pleas were made freely, voluntarily, knowingly, and intelligently. The court accepted Benito Ya's pleas of no contest and

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adjudged him guilty of first degree sexual assault of a child and incest. The court then ordered that a presentence investigation be conducted.

The presentence investigation report (PSR) revealed that Benito Ya scored in the high risk range to reoffend according to the Level of Service Case Management. Benito Ya was 44 years old at the time of sentencing and was unemployed. The probation officer who conducted the investigation noted repeatedly that in the opinion of the interpreter and in his opinion, Benito Ya was often evasive in his answers. At other times he refused to cooperate and answer questions. Benito Ya, a citizen of Guatemala, was determined to be an undocumented immigrant. Benito Ya had minimal criminal history which included a charge of contempt of court in 2006 in Florida. His record indicated that he was also deported from the United States in 2018, however, he indicated that he left the United States on his own. D.B.T. completed a victim impact statement, which was included within the PSR. She indicated she had come to the United States with her father in 2018. She asserted that Benito Ya raped her multiple times while he was drunk. In addition, she stated that Benito Ya attempted to strangle her. She stated that Benito Ya had previously abused her psychologically, emotionally, and verbally. Benito Ya expressed to the probation officer that he believed that D.B.T. had sex with him of her own free will. Benito Ya explained to the probation officer that "we do not understand his culture" inferring that his acts were not prohibited in his culture. However, he denied that he or anyone else in his family had subjected his female relatives to similar sexual abuse.

At the sentencing hearing, the district court reiterated the possible sentence Benito Ya faced on the charge of incest and partially corrected what the possible sentence was on the charge of first degree sexual assault of a child. Specifically, the court still advised Benito Ya that the penalty on that charge was 20 years' to life imprisonment, but added that the statute did require that a 15-year mandatory minimum sentence be imposed on that charge. Benito Ya informed the court he understood the revision to the court's sentencing advisement as well as the court's reiteration of the penalty for incest. Benito Ya's counsel informed the court that he (through the interpreter), had explained to Benito Ya that he could potentially withdraw his plea based on the prior advisement not being complete, but that Benito Ya "has decided that it is still in his best interests to accept the plea bargain as previously pled to even with the correction." On appeal, Benito Ya does not assign error to the court's advisement as corrected. While we note that the proper advisement would have been simply that the minimum term of imprisonment on count one is a mandatory minimum of 15 years, we find no prejudice to Benito Ya or plain error by virtue of the court's advisement. See State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).

The State asked the district court to impose a lengthy prison sentence because the offenses involved Benito Ya's minor daughter. The State explained that Benito Ya raped and violated his daughter repeatedly. In addition, he impregnated her and the child was born with a blood disorder. The State noted that Benito Ya abused D.B.T. emotionally, physically, and sexually. According to the PSR, Benito Ya was considered a high risk to reoffend. The State also argued that Benito Ya was uncooperative during the presentence investigation and he continued to blame D.B.T.

Benito Ya's counsel argued, primarily, that there was a difference between Benito Ya's culture and American culture. He noted that there was a significant difference in the age of consent and issues regarding sexuality. He stated that it took multiple conversations for Benito Ya to realize that his relationship with his daughter was unlawful and forbidden. Benito Ya's counsel also

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explained that although Benito Ya may have seemed as if he was not cooperating during the presentence investigation, it was more likely that Benito Ya did not understand what was happening.

Benito Ya also addressed the court during the sentencing hearing. He stated that he knew what he did was bad. He also asked for an opportunity to be allowed to remain in the United States so that he can work. He also reiterated that he "will not do this, again."

Prior to...