IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. ALHAKEMI

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).

STATE OF NEBRASKA, APPELLEE,

V.

ALI ALHAKEMI, APPELLANT.

Filed September 29, 2015. No. A-14-723.

Appeal from the District Court for Lancaster County: STEVEN D. BURNS, Judge. Affirmed.

Matthew K. Kosmicki for appellant.

Douglas J. Peterson, Attorney General, and George R. Love for appellee.

IRWIN, INBODY, and RIEDMANN, Judges.

RIEDMANN, Judge.

INTRODUCTION

Ali Alhakemi appeals from his convictions in the Lancaster County District Court of 4 

counts of delivery of a controlled substance and 1 count of possession of a controlled substance. 

He argues that the evidence was insufficient to sustain the convictions, that his sentence is 

erroneous and excessive, and that he received ineffective assistance of counsel. We find that the 

record is insufficient to address the ineffective assistance of counsel claims and find no merit to 

the remaining claims. We therefore affirm the convictions and sentences.

BACKGROUND

Alhakemi was charged with 4 counts of delivery of a controlled substance and 1 count of 

possession of a controlled substance. The information alleged that Alhakemi delivered 

methamphetamine on or about 4 separate dates in 2013, May 15, May 28, June 13, and July 5, and 

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that he possessed methamphetamine on or about August 8. It also alleged that Alhakemi is a 

habitual criminal.

At trial, the jury heard testimony from Jordan Wilmes, an investigator with the 

Lincoln-Lancaster County narcotics task force. On May 14, 2013, Wilmes met with a confidential 

informant (CI) who provided Wilmes the name and telephone number of a person the CI described 

as a source of methamphetamine in Lincoln. Wilmes researched the telephone number in a police 

database and confirmed the name associated with the telephone number was Alhakemi’s. The CI 

also informed Wilmes that the methamphetamine source lived in the area of 12th Street and B 

Street in Lincoln, and Wilmes’ research confirmed an address in that area for Alhakemi.

At Wilmes’ request, the CI placed a recorded call to the telephone number he provided to 

Wilmes. A copy of the recorded call was received into evidence at trial, and Wilmes confirmed 

that the voices that could be heard on the recording belonged to the CI and a man he came to know 

as Alhakemi. Wilmes testified that he recognized, based on his training and experience, that the 

conversation between the CI and Alhakemi was consistent with the arrangement of a narcotics 

transaction.

The following day, the CI placed another recorded call to Alhakemi, and they arranged to 

meet. When the CI and Wilmes, who was working undercover, arrived at the agreed-upon location, 

Alhakemi got into the backseat of Wilmes’ undercover vehicle. Alhakemi directed Wilmes to drive 

to a different location, at which Alhakemi exited the vehicle. About 15 minutes later, Alhakemi 

returned to Wilmes’ vehicle and placed a plastic baggie containing a crystalline substance on the 

center console. The parties discussed a price, and Alhakemi was given $260 of drug task force buy 

money. Wilmes explained at trial that the drug task force provides him “buy money” for his 

undercover drug transactions, and the serial numbers of the buy money are recorded so that the 

money can later be identified during drug investigations.

Subsequent testing confirmed that the baggie that Alhakemi sold to Wilmes contained 

methamphetamine. Three other narcotics task force officers who were providing surveillance of 

the transaction testified that they observed Alhakemi exit and reenter Wilmes’ vehicle.

On May 28, 2013, Wilmes made a recorded call to Alhakemi, and they agreed to meet so 

Wilmes could buy what Wilmes referred to in the call as “tickets,” which Wilmes explained at trial 

meant methamphetamine. At the agreed-upon location, Alhakemi got into Wilmes’ vehicle and 

gave Wilmes a clear plastic baggie containing a crystalline substance later determined to be 

methamphetamine. In exchange, Wilmes gave Alhakemi $280. Two other drug task force officers 

testified at trial that they observed Alhakemi enter and exit Wilmes’ vehicle on that date.

Wilmes next spoke with Alhakemi on June 13, 2013, and they agreed to meet again so that 

Wilmes could purchase methamphetamine. At the agreed-upon location, Alhakemi got into

Wilmes’ vehicle, and after confirming that Wilmes wanted “a ball,” which means one-eighth of 

an ounce of methamphetamine, Alhakemi gave Wilmes a clear plastic baggie containing suspected 

methamphetamine. Wilmes then gave Alhakemi $250. The contents of the baggie later tested 

positive for methamphetamine. Two other task force officers providing surveillance for the 

transaction testified at trial that they observed Alhakemi walking in the area at the time of the 

transaction.

Wilmes spoke with Alhakemi again on July 5, 2013, and they arranged to meet so that 

Wilmes could purchase methamphetamine. When Wilmes arrived, Alhakemi motioned for him to 

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get into Alhakemi’s vehicle, and Wilmes did so. Alhakemi again provided Wilmes a small, clear 

baggie containing methamphetamine, and Wilmes paid him $250.

Wilmes met with Alhakemi for the final time on August 8, 2013. They arranged to meet 

via text messages and a phone conversation so that Wilmes could purchase one-eighth of an ounce 

of methamphetamine. At the agreed-upon location, Alhakemi got into Wilmes’ vehicle, they 

discussed methamphetamine, and Alhakemi provided a baggie of methamphetamine to Wilmes in 

exchange for $260.

Alhakemi was arrested later that day, and although Wilmes did not participate in the arrest, 

he was able to observe it. The task force officer who assisted in arresting Alhakemi testified that 

at the time of the arrest, Alhakemi had an additional quantity of methamphetamine in his pocket 

as well as $257 in cash that matched the documented drug task force buy money that Wilmes had 

given him earlier that day. Alhakemi was interviewed after he was arrested and admitted that he 

had been selling methamphetamine for several months. He also described providing 

methamphetamine regularly to a white male with long hair named “Jay.” The description matched 

the appearance and name Wilmes used when working undercover.

Wilmes identified Alhakemi in court as the man who had sold him methamphetamine on 

5 occasions. Wilmes also confirmed that all of the events he described occurred in Lancaster 

County.

Alhakemi testified on his own behalf at trial. He admitted that he began using 

methamphetamine in 2005 and was using it almost daily at the time of the charged offenses. He 

admitted to meeting with Wilmes but claimed that Wilmes and the CI only gave him a ride. He 

denied providing methamphetamine to Wilmes or accepting any money from him. He also denied 

that it was his voice on the recorded phone calls.

The jury found Alhakemi guilty on all 5 counts. A habitual criminal enhancement hearing 

was held prior to sentencing. Upon receipt of the State’s evidence, the district court found that 

Alhakemi is a habitual criminal, and thus, his sentences for all 5 counts should be enhanced 

pursuant to Nebraska statute. Alhakemi was sentenced to 10 to 12 years’ imprisonment for each 

count with all sentences to be served consecutively. He received credit for 174 days served. He 

now appeals to this court.

ASSIGNMENTS OF ERROR

Alhakemi assigns that the district court erred in (1) finding sufficient evidence to support 

the convictions, (2) ordering that the sentences be served consecutively, and (3) imposing an 

excessive sentence. He also assigns that he received ineffective assistance of trial counsel.

STANDARD OF REVIEW

In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the 

evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate 

court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh 

the evidence; such matters are for the finder of fact. State v. Escamilla, 291 Neb. 181, 864 N.W.2d 

376 (2015). The relevant question for an appellate court is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. Id.

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An appellate court will not disturb a sentence imposed within the statutory limits absent an 

abuse of discretion by the trial court. State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).

ANALYSIS

Sufficiency of Evidence.

Alhakemi asserts that the evidence was insufficient to support his convictions. He argues 

that no photographs of the transactions were presented to the jury and that the quality of the audio 

recordings is so poor that the jury could not identify his voice. He further notes that the baggies 

containing methamphetamine were never tested for fingerprints. We reject Alhakemi’s arguments 

and find that the State adduced sufficient evidence so that a rational jury could have found all 

elements of the offenses beyond a reasonable doubt.

Alhakemi was convicted of 4 counts of delivering a controlled substance. Under Neb. Rev. 

Stat. § 28-416(1) (Supp. 2013), it is unlawful for any person to knowingly or intentionally deliver 

a controlled substance. Deliver or delivery means the actual, constructive, or attempted transfer 

from one person to another of a controlled substance, whether or not there is an agency 

relationship. Neb. Rev. Stat. § 28-401(12) (Supp. 2013). Methamphetamine is a controlled 

substance. See Neb. Rev. Stat. § 28-405 (Supp. 2013).

Alhakemi was also convicted of 1 count of possession of a controlled substance. To prove 

a person guilty of possession of a controlled substance, the State must prove that the person 

knowingly or intentionally possessed a controlled substance. Neb. Rev. Stat. § 28-416(3) (Supp. 

2013). A person possesses a controlled substance when he knows of the nature or character of the 

substance and of its presence and has dominion or control over it. State v. Howard, 282 Neb. 352, 

803 N.W.2d 450 (2011).

Alhakemi’s arguments on appeal are entirely challenges to the credibility of the witnesses, 

which it is well-established that we will not reweigh or pass on. Viewed in the light most favorable 

to the State, the evidence indicates that Alhakemi sold methamphetamine to Wilmes on the 4 dates 

charged in the information and that he had methamphetamine on his person at the time of his arrest. 

Alhakemi admitted to selling methamphetamine, including selling it to a man matching Wilmes’

description.

Viewed in the light most favorable to the State, the testimony of Wilmes and the arresting 

officer satisfies all of the statutory elements necessary to sustain the convictions. The jury found 

this testimony credible, a finding we do not reweigh on appeal. We therefore cannot say that no 

rational trier of fact could have found the elements proven beyond a reasonable doubt. This 

assignment of error is meritless.

Consecutive Sentences.

Alhakemi asserts that the district court erred in ordering that his sentences be served 

consecutively. He acknowledges that the record is unclear as to whether the district court believed 

it was required to sentence him consecutively, but he points out that the State argued that was, in 

fact, the requirement, and the district court did not correct the State’s incorrect argument. We 

disagree and find no abuse of discretion in the court’s decision to order Alhakemi’s sentences to 

run consecutively.

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Generally, it is within a trial court’s discretion to direct that sentences imposed for separate 

crimes be served either concurrently or consecutively. State v. Lantz, 290 Neb. 757, 763, 861 

N.W.2d 728, 732 (2015). In Nebraska, unless prohibited by statute or unless the sentencing court 

states otherwise when it pronounces the sentences, multiple sentences imposed at the same time 

run concurrently with each other. Id. The Supreme Court recently clarified that not all convictions 

carrying a mandatory minimum sentence, including enhancements under the habitual criminal 

statute, must be served consecutively to all other sentences. See State v. Lantz, supra; State v. 

Berney, 288 Neb. 377, 847 N.W.2d 732 (2014). Rather, a court is required to order consecutive 

sentences only for those specific crimes that require a mandatory minimum sentence to be served 

consecutively to other sentences imposed. State v. Lantz, supra. If the conviction requires only a 

mandatory minimum sentence but the statute does not mandate that the minimum sentence run 

consecutively to other sentences, the decision as to whether to run the sentences consecutively or 

concurrently is left to the sentencing court. See id.

In the present case, because methamphetamine is an exceptionally hazardous drug, delivery 

of methamphetamine is a Class II felony. See Neb. Rev. Stat. §§ 28-401(28) (Supp. 2013); 

28-416(2)(a) (Supp. 2013). Class II felonies are punishable by 1 to 50 years imprisonment. Neb. 

Rev. Stat. § 28-105 (Cum. Supp. 2014). Possession of methamphetamine is a Class IV felony, 

punishable by up to 5 years imprisonment. Neb. Rev. Stat. §§ 28-105; 28-416(3). The crimes were 

enhanced under the habitual criminal statute, which provides that each crime enhanced under that 

statute carries a mandatory minimum sentence of 10 years. See Neb. Rev. Stat. § 29-2221(1) 

(Reissue 2008). Thus, because none of the applicable statutes requires consecutive sentences, the 

district court had the discretion to order the sentences to run consecutively or concurrently.

Contrary to Alhakemi’s arguments, we find nothing in the record indicating that the district 

court was under the mistaken impression that it was, in fact, required to order consecutive 

sentences. As Alhakemi points out, the State raised the issue of consecutive sentences during a 

pretrial hearing. That hearing occurred on May 8, 2014 and the State informed the court of a plea 

agreement it had offered, but which Alhakemi had rejected. The State advised the court “that it is 

the State’s position that if convicted on more than one count, each count would have to be served 

consecutively under State versus Castillas.”

At sentencing on July 24, 2014, the State asked that the habitual criminal enhancement 

allegation apply to all 5 counts of the information and requested “that the mandatory minimum 

sentence would apply to all five counts.” In response, the defense stated that it thought “the court 

[sic] can ask to give Mr. Alhakemi 10 years, and it could make all the charges concurrent based 

on my reading of the case law.” The State requested “an extremely lengthy sentence” while defense 

counsel asked that the court impose “the minimum sentence, which is 10 years.”

In pronouncing its sentence, the court stated:

. . . it is the judgment and sentence of this court with regard to each of the [5] counts that 

the defendant should be and hereby is ordered imprisoned in an institution under the 

jurisdiction of the Nebraska Department of Correctional Services for a period of not less 

than 10 years nor more than 12 years, no part of which would be in solitary confinement 

except for violation of prison rules.

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The defendant is not eligible for parole and must serve 10 years actual time with no 

credit for any good time. If the defendant retains all of his good time, he’ll be eligible for 

mandatory discharge after serving 11 years on each of the [5] counts.

The sentence I’m imposing here is ordered to be served on each of these [5] counts 

consecutively.

Although the sentences were ordered to be served consecutively, the court did not express 

a belief that it was required to do so. Moreover, the Supreme Court had clarified the law with 

respect to required consecutive sentences prior to Alhakemi’s sentencing hearing, which was held 

on July 24, 2014. On June 20, 2014, the Supreme Court released its opinion in State v. Berney, 288 

Neb. 377, 847 N.W.2d 732 (2014). In Berney, the Supreme Court distinguished between a 

conviction for a crime that requires both a mandatory minimum sentence and mandates 

consecutive sentences, and the enhancement of a penalty for a crime because the defendant is a 

habitual criminal. See id. The court stated, “In the latter, the law does not require the enhanced 

penalty to be served consecutively to any other sentence imposed. The sentence is left to the 

discretion of the court.” Id. at 383, 847 N.W.2d at 736. Thus, the sentencing law was clarified at 

the time of Alhakemi’s sentencing to mean enhancement sentences were not required to be 

consecutive.

We therefore conclude there is insufficient evidence in the record to find that the district 

court erroneously believed Alhakemi’s sentences must be served consecutively. Because it was 

within the court’s discretion to so order, however, we find no abuse of discretion in the sentences.

Excessive Sentences.

Alhakemi also argues that the sentences he received are excessive. He asserts that the trial 

court failed to properly consider the mitigating factors present, including his age, immaturity, and 

admitted methamphetamine addiction. We find no abuse of discretion in Alhakemi’s sentences.

As indicated above, Alhakemi’s sentences fall within the statutory limits for the habitual 

criminal enhancement. The district court indicated that it considered the information contained in 

the presentence investigation report, the comments made at sentencing, and the statutorily required 

factors. Alhakemi spoke on his own behalf at sentencing, informing the court of his history, his 

addiction to methamphetamine, and his family situation.

Alhakemi was 50 years old at the time of sentencing. He began using methamphetamine in 

2005 and was a daily user at the time of his arrest. He has several prior convictions for possession 

of methamphetamine and possession with intent to deliver methamphetamine for which he was 

incarcerated. The current offenses occurred while he was on parole and remained under the 

supervision of the Department of Correctional Services. Alhakemi was placed on probation in 

2003 for methamphetamine-related offenses, but his probation was ultimately revoked. Because 

the district court considered the appropriate factors and the sentences fall within the statutory 

limits, we conclude that the sentences imposed are not an abuse of discretion.

Ineffective Assistance of Counsel.

Alhakemi claims he received ineffective assistance of trial counsel when counsel failed to 

utilize an Arabic interpreter for all communications with Alhakemi, which impacted his ability to 

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fully understand and appreciate every facet of his case. Alhakemi also asserts that trial counsel 

was ineffective in failing to properly advise him of the evidence against him so that he could make 

an informed decision regarding the plea agreement offered by the State.

Claims of ineffective assistance of counsel raised for the first time on direct appeal do not 

require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately 

review the question. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015). Whether a claim of 

ineffective assistance of trial counsel may be determined on direct appeal is a question of law. 

State v. Abdullah, 289 Neb. 123, 853 N.W.2d 858 (2014). In reviewing claims of ineffective 

assistance of counsel on direct appeal, an appellate court decides only questions of law: Are the 

undisputed facts contained within the record 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? State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 

14 (2014).

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. State v. Casares, 291 Neb. 150, 864 N.W.2d 667 (2015).

In the present case, with respect to Alhakemi’s first claim, we initially note that Alhakemi 

has been in the United States for 21 years. Most of his interactions during the case were in English, 

and there is no evidence he was unable to understand. An Arabic translator was present during 

trial, but on occasion, Alhakemi communicated directly with the court without using the 

interpreter’s services. Further, Wilmes testified that all of his conversations with Alhakemi 

occurred in English, and it never appeared that Alhakemi had difficulty understanding or speaking 

English. However, we conclude that the record is insufficient to address this claim because the 

record before us does not contain the contents of Alhakemi’s communications with trial counsel 

from which we can evaluate whether Alhakemi asked for an interpreter or expressed confusion as 

to his case.

Likewise, we find the record insufficient to address Alhakemi’s second claim because, 

again, the record on direct appeal does not contain the contents of communications between 

Alhakemi and trial counsel. We therefore cannot address the merits of this assigned error.

CONCLUSION

We find that the evidence is sufficient to sustain the convictions and that the sentences 

imposed were not improper or excessive. We also find that the record is insufficient to address the 

ineffective assistance of counsel claims. We therefore affirm.

AFFIRMED.

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