State v. Lopez, A-01-849 (not designated for permanent publication)

State of Nebraska, appellee,
v. Ruben Lopez, appellant.

State v. Lopez
(not designated for permanent publication)

Filed May 14, 2002. No. A-01-849.

Appeal from the District Court for Madison County: Robert B. Ensz, Judge. Affirmed.

Ronald J. Albin for appellant.

Don Stenberg, Attorney General, and Marilyn B. Hutchinson for appellee.

Hannon, Inbody, and Carlson, Judges.

Carlson, Judge.
INTRODUCTION

Ruben Lopez was convicted of murder in the second degree and possession of cocaine with intent to deliver pursuant to no contest pleas. A motion to withdraw his pleas was denied after an evidentiary hearing. Lopez was subsequently sentenced to 40 to 60 years' imprisonment on the second degree murder conviction and 5 to 20 years' imprisonment on the possession of cocaine with intent to deliver conviction. The sentences were to be served consecutively.

Lopez appeals his convictions, claiming primarily that the district court abused its discretion in denying his motion to withdraw his pleas. We find no error and therefore affirm the judgment of the district court.

STATEMENT OF FACTS

Background.

On January 5, 2000, Lopez pled not guilty to charges of murder in the first degree and possession of cocaine with intent to deliver. Motions to suppress were filed on behalf of Lopez. Lopez was represented by two attorneys in that proceeding. A number of witnesses were called to testify, and on June 21, the district judge overruled both of Lopez' motions to suppress physical evidence and statements. After recusal by the judge handling the motions, a different judge took over the case, revisited the prior motions, and found that the ruling on the motions was correct.

Pleas.

At the hearing on September 22, 2000, Lopez appeared with his attorneys and entered pleas of no contest to an amended information of count I, murder in the second degree, a Class IB felony, and count II, possession of cocaine with intent to deliver, a Class IC felony. Count I charged that on November 20, 1999, Lopez intentionally caused the death of Rafael Garcia, and count II stated that on the same date, Lopez had at least 28 grams of cocaine in his possession with the intent to deliver. The pleas were entered pursuant to a plea agreement which included the above reduced charges and the dismissal of two bad-check charges. As part of the factual basis, the State offered the record of the 3-day suppression hearing and noted that the court had reviewed that record in reconsidering the motions to suppress. The factual basis for the drug charge was supported by a number of witnesses who would have testified that Lopez was selling drugs and that on the date in question, he had in his possession 28 grams of cocaine.

In regard to the second degree murder charge, the factual basis outlined by the State indicated that both the victim and Lopez were in the business of selling drugs and that there was some jealousy on the part of Lopez of Garcia's position in the drug trade. It was also noted that a number of statements supported the theory that this was a robbery for cocaine and that the drug packaging was consistent with the way packages of this type are smuggled across the border from Mexico to the United States. There was some evidence that Lopez was in debt to Garcia and that the killing would erase that obligation.

On November 20, 1999, a neighbor of Lopez complained to the police about a man being beat up. An officer arrived at Lopez' residence and found Lopez' garage door half open with a car partially inside. The officer approached Lopez and saw in the garage a body which was that of Garcia. A Troy Rodriguez was taken into custody, and he stated that he and a Genaro Cuevas were at the scene and participated, along with Lopez, in the attack on Garcia. Specifically, Garcia was dragged into the garage and a number of blows to the head were administered by Lopez with a piece of 2 by 4.

At some point while Lopez was hitting Garcia on the skull, Lopez pulled out a packinghouse knife, lifted up the head of Garcia, and slit his throat. The factual basis states that this account is supported by the testimony of Rodriguez and Cuevas. The autopsy lists the cause of death as "attributed to blunt trauma to the head, and to stab and cutting wounds of the neck." At the close of the factual basis, the two attorneys for Lopez were asked to comment or respond to what the State had presented, and the attorneys indicated they had nothing to offer. The court then accepted the pleas, adjudged Lopez guilty of the charges, ordered a presentence investigation, and set a sentencing date.

Motion to Withdraw Pleas.

On April 6, 2001, the district court had a hearing on Lopez' motion to withdraw his no contest pleas entered on September 22, 2000. It should be noted that we find no motion to withdraw in this record. Also of note is that certain stipulations were made at the hearing in regard to the first four paragraphs of the motion. Obviously, we are not privy to these stipulations, since the motion is not in this record.

In support of Lopez' "motion," he presented evidence that after his pleas on September 22, 2000, there was a conversation between one of his codefendants and another inmate, which conversation indicated that Lopez was not responsible for Garcia's death, but that Lopez' codefendants, Cuevas and Rodriguez, were responsible, and that the two men framed Lopez for the murder.

After hearing this evidence from Lopez and four witnesses by the State, the trial court made the following findings:

    The Court finds that based on the evidence the defendant has failed by clear and convincing evidence to sustain his burden of presenting a fair and just reason to allow him to withdraw his plea. The defendant's motion is denied.
    The defendant relies solely on sworn deposition testimony of one Charles Scott. That testimony was essentially that a co-defendant of Lopez, namely Rodney Rodriguez, advised Scott, a fellow inmate, that Rodriguez and his cousin, co-defendant Genaro Cuevas committed the murder and framed the defendant for the crime. It is undisputed that a conversation took place between Scott and Rodriguez subsequent to the entry of the no contest plea to second degree murder by the defendant. This conversation is the basis for the defendant's claim that this newly discovered evidence now creates a defense for the defendant. This defense always existed, and the defendant was aware of it, notwithstanding the emergence of Scott.
    This evidence, however, adds little to the defense. Scott's testimony has two versions, and he is at best equivocal and at worst noncredible. In addition to the foregoing version, Scott testifies that Rodriguez states that "the Ruben guy killed some guy . . . He (Rodriguez) said something about the other guy had done the killing or something like that . . ." Exhibit 62 . . . . That testimony impeaches his prior testimony and the testimony later given in Exhibit 61. Rodriguez testified that he told Scott only that he (Rodriguez) accepted the plea agreement because if he hadn't he would have been convicted of felony murder. He denied that he told Scott that he and Cuevas committed the murder.
    The factual basis furnished by the State at the time of the entry of the no contest plea was complete and comprehensive. The defendant had sufficient time to consider his plea before entering it. He was given an opportunity to withdraw the plea prior to its acceptance. He declined to do so. The seriousness accompanying his entry of the plea should not be offset by a newly discovered impeachment witness who by his own testimony is subject to impeachment. The Court finds that Scott's statements provide no fair and just reason to permit the defendant to withdraw his plea.
    . . . .
    At the time of the taking of the plea, the County Attorney referred in its extensive factual basis to motive evidence to be provided by one Kristi Kitto and by an individual represented by attorney Mike Brogan, referred to in testimony as David Echavarria who would testify as to plan and intent and for rebuttal purposes. The evidence is that these two witnesses are now unavailable and their unavailability would prejudice the State's case. Although such a finding is not necessary for resolution of the defendant's motion here, the Court finds that the unavailability of Kitto and Evitarea would now substantially prejudice the State's case.

The district court denied Lopez' motion to withdraw his no contest pleas on April 30, 2000.

Sentences.

On June 29, 2001, Lopez was sentenced to 40 to 60 years' imprisonment on count I, murder in the second degree, and 5 to 20 years' imprisonment on count II, possession of cocaine with intent to deliver.

ASSIGNMENTS OF ERROR

Lopez assigns as error, rephrased and renumbered, that (1) the district court erred in overruling his motion to withdraw his plea of nolo contendere to second degree murder entered on September 22, 2000, (2) the attorneys who represented him prior to sentencing were ineffective in that they did not protect Lopez' interest nor did they obey his request to withdraw his no contest plea at the time of the September 22 hearing, and (3) the sentences imposed were excessive.

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. Roeder, 262 Neb. 951, 636 N.W.2d 870 (2001); State v. Carlson, 260 Neb. 815, 619 N.W.2d 832 (2000); State v. Wetherell, 259 Neb. 341, 609 N.W.2d 672 (2000).

ANALYSIS

Motion to Withdraw.

After the entry of a plea of guilty or no contest, but before sentencing, a court, in its discretion, may allow a defendant to withdraw his or her plea for any fair and just reason, provided that the prosecution has not been or would not be substantially prejudiced by its reliance on the plea entered. State v. Roeder, supra; State v. Carlson, supra; State v. Wetherell, supra; State v. Minshall, 227 Neb. 210, 416 N.W.2d 585 (1987). See State v. Nearhood, 223 Neb. 768, 393 N.W.2d 530 (1986). The burden is upon the defendant to establish by clear and convincing evidence the grounds for withdrawal of a plea. State v. Carlson, supra. In this determination, this court may review both the circumstances surrounding the plea and the propriety of the court's denial of the motion. Lopez' specific burden was to present that amount of evidence which would produce in the trier of fact a firm belief or conviction about the existence of the fact to be proved, i.e., a fair and just reason to allow withdrawal of the pleas in question. See In re Estate of Mecello, 262 Neb. 493, 633 N.W.2d 892 (2001). The district court in the present case concluded that Lopez failed to meet his burden. The reasons for this conclusion were enunciated and outlined in the district court's order referenced earlier herein. We find no abuse of discretion in that decision.

We also find on this record that Lopez entered voluntary pleas. To support a finding that a plea of guilty or nolo contendere has been entered freely, intelligently, voluntarily, and understandingly, the court must inform the defendant concerning the nature of the charge, the right to assistance of counsel, the right to confront witnesses against the defendant, the right to a jury trial, and the privilege against self-incrimination. The court must also examine the defendant to determine that he or she understands the foregoing. Additionally, the record must establish that there is a factual basis for the plea and that the defendant knew the range of penalties for the crime with which he or she is charged. Our review shows that every facet of this mandate was followed by the district court at the September 22, 2000, hearing. Even Lopez cannot challenge the finding that on the record before this court, his plea was entered freely, intelligently, voluntarily, and understandingly.

Therefore, upon our review of the record, we conclude that the district court did not abuse its discretion in determining that Lopez had failed in his burden, and we reject his first assignment of error.

Ineffective Assistance of Counsel.

In Lopez' second assignment of error, he claims that his attorneys prior to sentencing were ineffective in that they "did not protect the defendant's interest nor did they obey his request to withdraw his no contest plea at the time of the September 22, 2000 hearing."

On May 24, 2001, Lopez appeared through his present counsel and made an oral motion to withdraw his motion to withdraw his pleas due to ineffective assistance of counsel. The motion was sustained. Obviously, this issue was not considered by the district court.

A claim of ineffective assistance of counsel need not necessarily be dismissed merely because it is made on direct appeal; the determining factor is whether the record is sufficient to adequately review the question. State v. Cody, 248 Neb. 683, 539 N.W.2d 18 (1995). When the issue of ineffective assistance of counsel has not been raised or ruled on at the trial court level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000), abrogated on other grounds, State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).

As previously indicated, the ineffective assistance of counsel issue in the present case was not raised or ruled upon at the trial court level. We determine that the record is not sufficient to adequately review Lopez' ineffective assistance of counsel claim. Thus, we do not address this issue on direct appeal.

Excessive Sentences.

Lopez claims that the district court abused its discretion by imposing excessive sentences. We do not agree.

Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Heitman, 262 Neb. 185, 629 N.W.2d 542 (2001). In imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001). Where a sentence imposed within statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying these factors as well as any applicable legal principles in determining the sentence to be imposed. Id. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. Id.

Lopez was convicted of murder in the second degree, a Class IB felony, pursuant to Neb. Rev. Stat. § 28-304(1) (Reissue 1995), and possession of cocaine with intent to deliver, a Class IC felony, as proscribed by Neb. Rev. Stat. § 28-416(1)(a) (Cum. Supp. 2000). The penalty for the murder charge is a maximum of life imprisonment with a minimum of 20 years' imprisonment, and the penalty for the possession charge is a maximum of 50 years' imprisonment with a mandatory minimum of 5 years' imprisonment. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2000). Lopez was sentenced to 40 to 60 years' imprisonment on the murder conviction and 5 to 20 years' imprisonment on the possession of cocaine with intent to deliver conviction, with the latter sentence to be served consecutive to the first sentence. Lopez' sentences were therefore within statutory limits.

The sentencing court certainly considered all the factors noted in State v. Decker, supra, and specifically made the following statement to Lopez just prior to sentencing:

    I think the evidence is clear that your role in this was substantial and in fact was the role that ultimately resulted in -- resulted in the death of the victim. You can't put any other -- you can't cast it in any other way. That's the way the evidence shows.
    You've pleaded to this reduced charge, you've I think gotten as good a deal as you could expect under the circumstances considering your participation in the murder of the victim, and the sentence must be appropriate to your involvement.
    The Court finds that imprisonment of the defendant is necessary for the protection of the public because the risk is substantial that during a period of probation the defendant will engage in additional criminal conduct, that the defendant is in need of correctional treatment that can be provided most effectively by a commitment to a correctional facility, and that a lesser sentence will depreciate the seriousness of the defendant's crime or promote disrespect for the law.

We find that the district court did not abuse its discretion in the sentences imposed, and therefore, we reject Lopez' final assignment of error.

CONCLUSION

We conclude that the district court did not abuse its discretion in denying Lopez' motion to withdraw his pleas. We further conclude that the district court did not abuse its discretion in sentencing Lopez. We therefore affirm Lopez' convictions and sentences.

Affirmed.