State v. Martinez, A-16-606.

STATE OF NEBRASKA, APPELLEE, v. FRANCISCO J. MARTINEZ, APPELLANT.

No. A-16-606.

NEBRASKA COURT OF APPEALS

September 5, 2017

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: J RUSSELL DERR, Judge. Affirmed in part, and in part sentence vacated.

Francisco J. Martinez, pro se.

Douglas J. Peterson, Attorney General, Erin E. Tangeman, and, on brief, Stacy M. Foust for appellee.

INBODY, RIEDMANN, and ARTERBURN, Judges.

INBODY, Judge.

I. INTRODUCTION

Francisco J. Martinez, appearing pro se, appeals the decision of the Douglas County District Court denying his motion for postconviction relief without an evidentiary hearing.

II. STATEMENT OF FACTS

In 1996, following a jury trial, Martinez was convicted of first degree sexual assault, use of a deadly weapon to commit a felony, terroristic threats, and tampering with a witness. Martinez did not appear at the sentencing hearing. Martinez was eventually apprehended and, in 2012, he was sentenced to 15 to 15 years' imprisonment for first degree sexual assault, 10 to 10 years' imprisonment for use of a deadly weapon to commit a felony, and 1 to 1 year imprisonment each for terroristic threats and tampering with a witness. The district court ordered the sentences to run consecutively and Martinez was given credit for 244 days served.

Martinez filed a direct appeal and was represented by different counsel than represented him at trial and sentencing. On direct appeal, he assigned as error and argued that the district court erred in failing to direct a verdict for him because the evidence presented by the State was insufficient to support his convictions for first degree sexual assault and terroristic threats, he received ineffective assistance of trial counsel, and the sentences imposed were excessive. See State v. Martinez, A-12-0379 (memorandum opn. March 27, 2013). The facts of Martinez' offenses are set forth in detail in that opinion and will not be repeated here. Id. This court found his claims that the district court erred in failing to direct a verdict and that the sentences imposed were excessive to be without merit. See id. Further, we found that his claim that his trial counsel was ineffective for failing to call witnesses to corroborate his relationship with the victim was without merit. See id.

On March 27, 2014, Martinez filed a pro se verified motion for postconviction relief. Martinez subsequently filed, through counsel, an amended motion for postconviction relief. We note that in his reply brief, Martinez argues that the district court has "urge[d]" this Court to examine the district court's decision to proceed on the amended motion for postconviction relief and "ignore" his original pro se motion for postconviction relief. Reply brief for appellant at 10. A similar issue was succinctly addressed by the Nebraska Supreme Court in State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015), in which the defendant alleged that the district court erred in not considering his original motion for postconviction relief in combination with his amended motion for postconviction relief. The Nebraska Supreme Court noted that the defendant's argument was based on a fundamental misunderstanding of the nature of an amended pleading or motion. Id. Since an amended pleading supersedes the original pleading, whereupon the original pleading ceases to perform any function as a pleading, the district court did not err in limiting its analysis to the motion that was before it, i.e., the amended motion. Id. Similarly, in the instant case, after Martinez' attorney filed an amended motion for postconviction relief, the amended motion became the relevant motion to be considered by the district court and Martinez' previously filed pro se motion for postconviction relief ceased to perform any function as a pleading.

In his amended motion for postconviction relief, Martinez alleged various errors committed by the trial court, his trial counsel, and his appellate counsel. Martinez contended that the district court erred in: (1) improperly binding over and allowing the State to prosecute him without probable cause on charges of terroristic threats and witness tampering; (2) in failing to advise him of his right not to testify and admonish him of the consequences of waiving this right; (3) in failing to sustain trial counsel's motions for a directed verdict because the State failed to adduce sufficient evidence of the charge of tampering with a witness and failed to prove that the events occurred in Douglas County, Nebraska; (4) in allowing the State to play the 911 call during closing arguments after it had already been played once to the jury during the State's case-in-chief; (5) in allowing the jury to listen to the 911 call during deliberations; (6) in failing to present a proper verdict form which included the use of force or threat of force or coercion as an aggravating factor that must be proven; (7) improperly instructing the jury in instruction No. 5 indicating that the presumption of innocence continues throughout the trial "until he shall have been proved guilty beyond areasonable doubt"; and (8) allowing the State to present evidence which varied from the information and presented a second, uncharged theory of guilt regarding the charge of tampering with a witness.

Martinez' amended motion for postconviction relief alleged that his trial counsel was ineffective (1) in failing to interview, investigate, or call witnesses on his behalf; (2) in failing to properly prepare him for direct testimony and cross-examination by the State; (3) in failing to request a motion in limine to preclude testimony or evidence that Martinez was married to an individual other than the victim; (4) in failing to research, prepare, or present any proposed jury instructions when the court's final instructions misstated the applicable law, specifically jury instruction No. 5; (5) in failing to move for a mistrial when the State improperly sought to induce testimony of impermissible prior bad acts evidence; (6) in failing to properly seek out, negotiate, and communicate a plea offer by the State prior to trial that, had Martinez known of the potential consequences of proceeding to trial, he would have accepted; (7) in failing to object to the State's playing of the 911 call during closing arguments; (8) failing to object to the jury being permitted to listen to the 911 call during deliberations; (9) in failing to object to evidence presented to the jury that varied from conduct alleged in the information, to-wit: tampering with a witness; and (10) in failing to object to improper remarks made by the State in opening statements and closing arguments which amounted to prosecutorial misconduct, as the improper remarks expressed the prosecutor's opinions, were inflammatory, implied an improper burden upon the defendant, and misstated the evidence.

Finally, Martinez' amended motion for postconviction relief alleged that his appellate counsel was ineffective for failing to raise all the aforementioned issues on direct appeal as well as failing to assign as error that the district court "presented improper jury instructions, which failed to accurately set forth the law, did not conform to the NJI2d Crim. Model Jury Instructions and prejudiced [Martinez]" and failing to properly advise Martinez of his right to file a petition for further review (PFR) of the Nebraska Court of Appeals' decision to the Nebraska Supreme Court and failed to file such PFR.

The district court denied Martinez' motion for postconviction relief without an evidentiary hearing finding that Martinez had not set forth sufficient facts to warrant an evidentiary hearing under the Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1989), test prong of prejudice. Martinez has timely appealed to this court.

III. ASSIGNMENTS OF ERROR

On appeal, Martinez contends that the district court erred (1) in denying his motion for postconviction relief without an evidentiary hearing based upon errors committed by the original trial court, his trial counsel, and his appellate counsel; (2) the district court erred in conducting a hearing on its own motion solely for the benefit of the State; and (3) in receiving testimonial evidence relating to ineffective assistance of counsel and failing to make findings of fact and conclusions of law.

IV. STANDARD 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. Nolan, 292 Neb. 118, 870 N.W.2d 806 (2015); State v. Huston, 291 Neb. 708, 868 N.W.2d 766 (2015).

A court must grant an evidentiary hearing to resolve the claims in a postconviction motion when the motion contains factual allegations which, if proved, constitute an infringement of the defendant's rights under the Nebraska or federal Constitutions. State v. Huston, supra. If a postconviction motion alleges only conclusions of fact or law, or if the records and files in the case affirmatively show that the defendant is entitled to no relief, the court is not required to grant an evidentiary hearing. Id.

Whether a claim raised in a postconviction proceeding is procedurally barred is a question of law, which an appellate court resolves independently of the lower court's conclusion. State v. Jackson, 296 Neb. 31, 892 N.W.2d 67 (2017).

V. ANALYSIS

1. DENIAL OF MOTION FOR POSTCONVICTION RELIEFWITHOUT EVIDENTIARY HEARING

Martinez contends that the district court erred in denying his motion for postconviction relief without an evidentiary hearing based upon errors committed by the original ...