STEPHAN, J.
Adrian M. Casares pled no contest to an amended information charging one count of aiding and abetting second degree murder. He was subsequently sentenced to no less than life imprisonment or more than life imprisonment. In this direct appeal, he alleges that his trial counsel was ineffective in various respects and that his sentence was excessive. We affirm his conviction and sentence.
On December 30, 2012, at approximately 4 a.m., a newspaper carrier found the body of Tyler Schoenrock on a gravel road in rural Lancaster County, Nebraska. Schoenrock had been shot twice in the back and once in the head. The resulting investigation identified Casares and Miguel Castillo as suspects.
Casares was originally charged with making terroristic threats, a Class IV felony, and use of a firearm to commit a felony, a Class IC felony.
The State later moved to file a second amended information, in which it planned
At the plea hearing, the court had an extended colloquy with Casares discussing his rights, the nature of the charge, and the possible penalty. The factual basis for the plea was set forth in the written plea agreement, which characterized the stated facts as "true and undisputed." According to the factual statement in the plea agreement, Casares, Castillo, and Schoenrock were all involved with methamphetamine use and distribution. On December 29, 2012, Casares confronted Schoenrock at Schoenrock's residence with a handgun and accused Schoenrock of being a law enforcement "`snitch.'" Casares later left the residence, but in the early morning hours of December 30, he and Castillo returned and picked Schoenrock up in a vehicle which Casares drove. Casares had the handgun with him, and a witness described the handgun and the ammunition it contained with specificity. The handgun and ammunition were eventually determined to have been used to kill Schoenrock. The handgun was stolen, and its owner informed police he noticed it was missing from his truck on December 25, shortly after a visit from Castillo and Casares.
Castillo was arrested soon after Schoenrock's body was discovered. He told police that after they picked Schoenrock up, Casares drove the vehicle out of the city into the country. Castillo stayed in the car while Casares and Schoenrock got out. Castillo told authorities that Casares was responsible for shooting Schoenrock at that location.
Casares was arrested on January 15, 2013, in Texas. At the time of the arrest, he was accompanied by a woman. He denied knowing Castillo well and denied being in Lincoln, Nebraska, when Schoenrock was killed. The woman later told police that she drove Castillo and Casares to her apartment after the shooting and that she went to Omaha, Nebraska, with them later in the day on December 30, 2012. On the way to Omaha, Castillo and Casares discussed disposing of the handgun, which was in a silver lockbox. The woman stated that she eventually buried the lockbox in the backyard of an Omaha residence, and eventually led police to it. Casares' cell phone records showed he was in and around Lincoln on December 29 and 30, and that the cell phone was frequently used for calls and messaging, except from 3:05 a.m. to 4:08 a.m. on December 30, when it was turned off. Casares informed the court at the time he entered his plea that he had no disagreement with the factual basis set forth in the plea agreement.
After accepting the plea, the court ordered a presentence investigation (PSI). After reviewing the results of this investigation and conducting a hearing, the district court sentenced Casares to a term of life-to-life imprisonment. Additional facts relevant to the analysis are included therein.
Casares assigns that his trial counsel was ineffective in (1) failing to take the depositions of certain witnesses, (2) failing to engage in effective advocacy at sentencing,
The resolution of an ineffective assistance of counsel claim made on direct appeal turns on the sufficiency of the record.
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
Casares is represented in this direct appeal by different counsel than the counsel who represented him at the trial level. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred.
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,
Appellate courts have generally reached ineffective assistance of counsel claims on direct appeal only in those instances where it was clear from the record that such claims were without merit or in the rare case where trial counsel's error was so egregious and resulted in such a high level of prejudice that no tactic or strategy could overcome the effect of the error, which effect was a fundamentally unfair trial.
Casares raises five allegations of ineffective assistance of counsel in this appeal. We address each in turn.
Casares claims that his trial counsel failed to take the depositions of certain witnesses, identified as Felicia Guevara, Perla Cisneros, and Isaiah Nevins. He alleges that these three witnesses were "critical" and that their testimony would have provided facts sufficient to argue that Castillo was the shooter and had lied to law enforcement.
Because the record does not show whether these depositions were taken or whether the letters exist, it is insufficient for review of this claim on direct appeal, and we therefore do not reach it.
Casares argues that his counsel was ineffective at sentencing because he (1) allowed various letters of support for Casares to be included in the PSI, (2) did not object to certain victim impact statements included in the PSI, and (3) did not include certain depositions in the PSI.
The letters of support are a part of the record before us. While certain of the letters express a belief that Casares was innocent, the prevailing tone of the letters is that Casares was a good person who did a bad thing. Casares argues they should not have been included, because they were attempts to demonstrate his innocence, which was no longer an issue at sentencing. Having viewed the letters, we find counsel was not deficient in allowing them to be included in the PSI.
The victim impact statements Casares complains about are also part of the record before us. One was written by the sister of Schoenrock's girlfriend and one was written by a friend of Schoenrock's girlfriend. There are also impact statements written by the mother of Schoenrock's infant son in her own behalf and on behalf of the child.
According to Neb.Rev.Stat. § 29-2261(3) (Cum.Supp. 2014), the presentence investigation report should include any written statements submitted to either the county attorney or the probation officer by a victim. "Victim" in this context is statutorily defined in the case of a homicide as the "nearest surviving relative under the law
Based on these statutes, only Schoenrock's infant son, and perhaps Schoenrock's parents, had the statutory right to have a victim impact statement included in the PSI. But the relevant statutes also state that a PSI is to include "any other matters that the probation officer deems relevant or the court directs to be included."
Casares claims that his trial counsel failed to include in the PSI copies of the depositions that were taken of Castillo and three others. He alleges that inclusion of these depositions would have demonstrated how the witnesses' stories changed over time. He alleges this information would have further challenged the credibility of Castillo's claim that Casares was the shooter.
But the credibility of Castillo's story was not an issue at sentencing. The factual basis of Casares' no contest plea was that he drove Schoenrock to a rural area and shot him, while Castillo waited in the car. Casares expressly told the court at the time the plea was entered that he had "no disagreement" with this factual basis. Moreover, the PSI was over 2,000 pages long, and the court acknowledged at sentencing that "virtually everyone knowing any—having any knowledge about what happened prior to, at the time of, and shortly after the killing ... lied to one degree or another to those investigating the murder." Additional examples of inconsistent statements or lies would not, with any reasonable likelihood, have convinced the sentencing court to impose a different sentence. This allegation is without merit.
Casares alleges that his trial counsel was ineffective in failing to arrange for him to have a separate drug and alcohol evaluation and then include the results of that evaluation in the PSI. He alleges such an evaluation would have provided more detail about his life and was "one tool
As noted, the PSI was extensive. It includes sections regarding Casares' background, criminal history, family life and relationships, use of alcohol and drugs, and prior treatment for alcohol and drugs, as well as the circumstances of the offense. Any additional information obtained by a drug and alcohol evaluation would have been largely cumulative. There is no reasonable probability that the sentence would have been different if a drug and alcohol evaluation had been included in the PSI. This allegation is without merit.
Casares claims his trial counsel did not arrange for him to review materials obtained during discovery before he entered his plea. He alleges that as a result, he was unable to make an informed decision about the resolution of his case. The record does not show whether Casares' counsel reviewed discovery with him, and the record is therefore insufficient to review this claim on direct appeal.
Casares claims that his trial counsel promised him he would receive a sentence of 30 to 60 years' imprisonment if he entered his plea of no contest. But the files and records of the case affirmatively show that this allegation of deficient performance has no merit. At the plea hearing, Casares was specifically asked whether "any promises or representations" had been made to him "to get [him] to enter [his] plea," and he responded "[n]o." He was also specifically asked whether "anyone made any promises or representations" to him as to what the "sentence will be" and again responded "[n]o." He also was asked whether any inducement or promise was made to get him to enter his plea, and he again responded "[n]o." This record affirmatively refutes Casares' claim that he was promised a sentence of 30 to 60 years' imprisonment. This claim of ineffective assistance of counsel is without merit.
Casares was sentenced to a minimum term of life imprisonment and a maximum term of life imprisonment for aiding and abetting second degree murder. He alleges the sentence was excessive.
Casares' sentence was within the statutory limits,
Moreover, Casares' criminal history and background, as demonstrated in the PSI, supports the life-to-life sentence. Prior to imposing the sentence, the trial court reviewed the entire PSI and considered Casares' circumstances as a whole. In concluding that life-to-life imprisonment was an appropriate sentence, it noted that Schoenrock's killing was "intentional and cold blooded" and that Casares was a "dangerous person who needs to be kept off the streets and away from the public as long as possible." The record demonstrates that the sentence imposed was not an abuse of discretion.
We do not reach Casares' claims that his trial counsel was ineffective in failing to take certain depositions and in failing to review discovery materials with him, because the record on direct appeal is insufficient for us to do so. We conclude that his remaining claims of ineffective assistance of counsel are without merit and that his sentence is not excessive. Accordingly, we affirm the conviction and sentence.
AFFIRMED.